42580 Federal Register / Vol. 74, No. 162 / Monday, August 24, 2009 / Rules and Regulations 

national security. Disclosure of the 

accounting would also permit the individual 

who is the subject of a record to impede the 

investigation, to tamper with witnesses or 

evidence, and to avoid detection or 

apprehension, which would undermine the 

entire investigative process. 

(b) From subsection (d) (Access to Records) 

because access to the records contained in 

this system of records could inform the 

subject of an investigation of an actual or 

potential criminal, civil, or regulatory 

violation, to the existence of the 

investigation, and reveal investigative 

interest on the part of DHS or another agency. 

Access to the records could permit the 

individual who is the subject of a record to 

impede the investigation, to tamper with 

witnesses or evidence, and to avoid detection 

or apprehension. Amendment of the records 

could interfere with ongoing investigations 

and law enforcement activities and would 

impose an impossible administrative burden 

by requiring investigations to be 

continuously reinvestigated. In addition, 

permitting access and amendment to such 

information could disclose security-sensitive 

information that could be detrimental to 

homeland security. 

(c) From subsection (e)(1) (Relevancy and 

Necessity of Information) because in the 

course of investigations into potential 

violations of Federal law, the accuracy of 

information obtained or introduced 

occasionally may be unclear or the 

information may not be strictly relevant or 

necessary to a specific investigation. In the 

interests of effective law enforcement, it is 

appropriate to retain all information that may 

aid in establishing patterns of unlawful 

activity. 

(d) From subsection (e)(2) (Collection of 

Information from Individuals) because 

requiring that information be collected from 

the subject of an investigation would alert the 

subject to the nature or existence of an 

investigation, thereby interfering with the 

related investigation and law enforcement 

activities. 

(e) From subsection (e)(3) (Notice to 

Subjects) because providing such detailed 

information would impede law enforcement 

in that it could compromise investigations 

by: revealing the existence of an otherwise 

confidential investigation and thereby 

provide an opportunity for the subject of an 

investigation to conceal evidence, alter 

patterns of behavior, or take other actions 

that could thwart investigative efforts; reveal 

the identity of witnesses in investigations, 

thereby providing an opportunity for the 

subjects of the investigations or others to 

harass, intimidate, or otherwise interfere 

with the collection of evidence or other 

information from such witnesses; or reveal 

the identity of confidential informants, 

which would negatively affect the 

informant’s usefulness in any ongoing or 

future investigations and discourage 

members of the public from cooperating as 

confidential informants in any future 

investigations. 

(f) From subsections (e)(4)(G), (H), and (I) 

(Agency Requirements), and (f) (Agency 

Rules) because portions of this system are 

exempt from the individual access provisions 

of subsection (d) for the reasons noted above, 

and therefore DHS is not required to establish 

requirements, rules, or procedures with 

respect to such access. Providing notice to 

individuals with respect to existence of 

records pertaining to them in the system of 

records or otherwise setting up procedures 

pursuant to which individuals may access 

and view records pertaining to themselves in 

the system would undermine investigative 

efforts and reveal the identities of witnesses, 

and potential witnesses, and confidential 

informants. 

(g) From subsection (e)(5) (Collection of 

Information) because in the collection of 

information for law enforcement purposes it 

is impossible to determine in advance what 

information is accurate, relevant, timely, and 

complete. Compliance with (e)(5) would 

preclude DHS agents from using their 

investigative training and exercise of good 

judgment to both conduct and report on 

investigations. 

(h) From subsection (e)(8) (Notice on 

Individuals) because compliance would 

interfere with DHS’ ability to obtain, serve, 

and issue subpoenas, warrants, and other law 

enforcement mechanisms that may be filed 

under seal, and could result in disclosure of 

investigative techniques, procedures, and 

evidence. 

(i) From subsection (g) to the extent that 

the system is exempt from other specific 

subsections of the Privacy Act relating to 

individuals’ rights to access and amend their 

records contained in the system. Therefore 

DHS is not required to establish rules or 

procedures pursuant to which individuals 

may seek a civil remedy for the agency’s: 

refusal to amend a record; refusal to comply 

with a request for access to records; failure 

to maintain accurate, relevant timely and 

complete records; or failure to otherwise 

comply with an individual’s right to access 

or amend records. 

Dated: August 12, 2009. 

Mary Ellen Callahan, 

Chief Privacy Officer, Department of 

Homeland Security. 

[FR Doc. E9–20154 Filed 8–21–09; 8:45 am] 

BILLING CODE 9110–9B–P 

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. 

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 http://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 email 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 

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Federal Register / Vol. 74, No. 162 / Monday, August 24, 2009 / Rules and Regulations 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 MagnusonStevens 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 × 0.66 × 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 Parttime 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 

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42582 Federal Register / Vol. 74, No. 162 / Monday, August 24, 2009 / Rules and Regulations 

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 

§ 648.291(d)(3), will impose a trip limit 

to reduce the landings of individuals 

fishing under an LOA. 

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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 costrecovery 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 costrecovery 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. 

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IFQ Allocation permit holders are 

required to submit payment within 45 

days of the date of the NMFS costrecovery 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 costrecovery 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 costrecovery 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, http:// 

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 costrecovery 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 

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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. 

Canyon 

N. Lat. W. Long. 

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; 

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42586 Federal Register / Vol. 74, No. 162 / Monday, August 24, 2009 / Rules and Regulations 

(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 SnapperGrouper 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 

§ 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 § 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 

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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 

§ 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 MagnusonStevens 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 

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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 nongovernmental 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 MagunsonStevens 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 § 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 nongovernmental environmental 

organization, commented that the IFQ 

program results in excessive geographic 

consolidation, as prohibited by section 

303A(c)(5)(B)(ii) of the MagnusonStevens Act, and results in affects to 

fishing communities that are 

inconsistent with National Standard 8 

(section 301(a)(8)) of the MagnusonStevens 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 socioeconomic 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 Parttime 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 

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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, while 

proper analysis is required by the 

Magnuson-Stevens Act, and is 

contained in Amendment 1, the 

National Standard 8 guidelines at 

§ 600.345(b)(2) state that the standard 

does not constitute a basis for allocating 

resources to a specific fishing 

community, nor for providing 

preferential treatment based on 

residence in a fishing community. The 

analysis contained within Amendment 

1 concluded that the economic impacts 

of the commercial tilefish fishery 

relative to employment and wages is 

difficult to determine; however, the 

analysis concludes that only a small 

amount of the region’s fishing vessel 

employment, wages, and sales are 

dependant on tilefish, since the relative 

contribution of tilefish to the total value 

and poundage of finfish and shellfish is 

very small. As stated above, from 2000 

through 2005, only 2.1 percent of the 

total value of seafood landings in 

Barnegat Light/Long Beach, NJ, were 

associated with tilefish. The other 

species with the highest commercial 

landings in Barnegat Light/Long Beach, 

NJ, are sea scallops, monkfish, and 

swordfish. The longline gear used in the 

directed tilefish fishery is also used in 

the tuna and swordfish fisheries. 

Therefore, the community impacts 

associated with the potential reduction 

in tilefish landings, and a reduction in 

inactive tilefish permitted vessels, may 

be mitigated somewhat by vessels that 

transition to fish for other species, such 

as those listed above. During the time 

period selected by the Council to qualify 

individuals for an IFQ allocation, 

approximately six vessels landed the 

majority of the commercial tilefish 

quota. The majority of these landings 

were made in Montauk, NY. The 

analysis concerning the economic 

impacts to specific ports, as a result of 

the approved measures, are described in 

section 6.5.1 of the Amendment 1 

document. The allocation scheme 

adopted under Amendment 1 is 

consistent with the requirements under 

section 303A(c)(5)(A) of the MagnusonStevens Act to consider the current and 

historic participation of fishing 

communities. NMFS does not concur 

with the commenter that Congress, by 

enacting the provisions contained in 

section 303A, and National Standard 8 

of the Magnuson-Stevens Act, intended 

to prevent an IFQ allocation distribution 

similar to that adopted under 

Amendment 1. NMFS has determined 

that the socio-economic effects of the 

approved measures on selected fishing 

ports and regions need to be analyzed in 

the context of what would maximize 

benefits to fishing communities as a 

whole, consistent with the National 

Standard 4 guidelines. NMFS has 

determined that reducing the 

overcapacity in the tilefish fishery, 

preventing the race-to-fish mentality, 

and reducing or eliminating the derbystyle fishery is beneficial for fishing 

communities within the Northeast 

Region. 

Comment 13: The attorney, and a nongovernmental environmental 

organization, commented that the IFQ 

program results in excessive shares and 

impermissible concentration of harvest 

privileges, as prohibited by National 

Standard 4 (section 301(a)(4)), and 

section 303A(c)(5)(D)(ii) of the 

Magnuson-Stevens Act. 

Response: National Standard 4, and 

section 303A(c)(5)(D)(ii) of the 

Magnuson-Stevens Act, require that 

allocations in LAPPs be distributed in 

such a manner that no particular 

individual, corporation, or other entity 

acquire an excessive share of the limited 

access privilege. NMFS has determined 

that Amendment 1 meets this 

requirement, as under Amendment 1, a 

specific maximum percentage (49 

percent of the adjusted TAL) of the total 

limited access privilege that may be 

held by any one entity is identified. 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. The Council also 

concluded that setting a 49-percent IFQ 

share cap would provide tilefish vessels 

with an opportunity to accumulate 

shares above what some specific vessels 

had landed in recent history to allow for 

a reduction in capacity within the 

tilefish fishery. As such, the Council 

considered management objectives in 

their analysis of what cap level would 

be appropriate in the fishery. The 

Council identified that a management 

objective of the IFQ program was 

economic efficiency, and that allowing 

for some future consolidation, through 

transfer of share above the current level 

of ownership in the fishery, would 

encourage less efficient operators to 

transfer their allocation to more efficient 

operators. 

Comment 14: The attorney, and a nongovernmental environmental 

organization, commented that the IFQ 

program raises serious antitrust 

concerns that have been submitted to 

the U.S. Department of Justice, Antitrust 

Division, in accordance with section 

303(A)(c)(9) of the Magnuson-Stevens 

Act. 

Response: Although NMFS concurs 

with the commenters that section 

303A(c)(9) of the Magnuson-Stevens Act 

does not preclude the application of 

antitrust laws to LAPPs, NMFS does not 

consider Amendment 1 to violate any 

antitrust laws for the reasons stated in 

the response to Comments 12 and 13. 

Comment 15: NMFS received a 

comment from a non-governmental 

environmental organization that urged 

NMFS to adopt the GRA conservation 

measures in Amendment 1 while 

expanding their coverage to prohibit 

bottom-tending mobile gear in all 13 

deepwater canyons. 

Response: The EFH regulations at 

§ 600.815(a)(2)(ii) require NMFS to 

ensure that each FMP minimize, to the 

extent practicable, adverse effects from 

fishing on EFH, including EFH 

designated under other Federal FMPs. 

Under Amendment 1, the Council 

conducted a practicability analysis, 

described in section 7.18.6 of 

Amendment 1, to determine which 

areas, if any, should be closed to 

bottom-tending mobile gear. This 

analysis included a determination of 

whether none, some, or all of the 13 

deepwater canyons that contain pueblo/ 

clay outcrop habitat for tilefish should 

be closed to bottom-tending mobile gear. 

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 

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described in Amendment 1. Under 

Amendment 1, the Council adopted 

measures to close the four canyons that 

are known to contain tilefish pueblo or 

clay outcrop habitat as these closures 

were determined to be highly 

practicable. The other deepwater 

canyons were not selected, as they are 

not known to contain these habitats, and 

their closure would not have been as 

practicable. Also, since these other 

canyons are not known to contain 

pueblo or clay outcrop habitat, a 

rationale for closing these areas does not 

appear to exist. Absent such a basis, a 

closure of these areas appears to be 

indefensible under the ‘‘arbitrary and 

capricious’’ standard of the 

Administrative Procedure Act. 

Comment 16: NMFS received a 

comment from a non-governmental 

environmental organization that urged 

NMFS to adopt the HAPC conservation 

measures in Amendment 1, while 

requesting that they be expanded. The 

commenting organization contended 

that all 13 canyons should be designated 

as HAPC, as they meet at least one of the 

sensitivity criteria specified in 

§ 600.815(a)(8), and that all of the 

canyons are known to contain clay 

outcrop/pueblo habitat. 

Response: The Council considered 

several action alternatives to designate 

HAPC within tilefish EFH. The Council 

decided to designate HAPC in the four 

canyons that are known to contain clay 

outcrop/pueblo habitats that are 

considered highly vulnerable to the 

adverse impacts of bottom-tending 

mobile gear. The canyons that are not 

known to contain clay outcrop/pueblo 

habitat were not designated as HAPC. 

The Amendment 1 document states that, 

if clay outcroppings are identified in the 

future in these other canyons, they 

could be designated as additional 

HAPCs through a framework action or 

amendment to the FMP. NMFS is not 

able to expand the designated areas, as 

its authority, based on a delegation from 

the Secretary, is limited to approval, 

disapproval, or partial disapproval of 

Amendment 1. 

Comment 17: NMFS received a 

comment letter from a nongovernmental environmental 

organization that urged NMFS to close 

all 13 deepwater canyons to bottomtending mobile gear to protect 

deepwater coral communities. 

Response: The Council exercised its 

discretion not to include measures to 

protect deepwater coral communities in 

Amendment 1, since it is not a required 

provision of an FMP or amendment. 

Amendment 1 to the Tilefish FMP was 

developed primarily to implement a 

LAPP in the fishery. As required by 

§ 600.815(a)(10), NMFS reviewed the 

EFH provisions of the tilefish FMP and, 

within Amendment 1, revised and 

amended the EFH provisions as 

warranted based on available 

information. Under Amendment 1, the 

Council considered the impacts of 

fishing gear to juvenile and adult tilefish 

EFH to determine whether any GRAs 

should be identified. The Council 

analyzed several alternatives, including 

whether to close none, some, or all of 

the 13 deepwater canyons to bottomtending mobile gear to protect tilefish 

pueblo/clay outcrop habitat. Although 

the Council did not explicitly consider 

alternatives to protect deepwater coral 

habitat in this amendment, the adopted 

GRAs will have the indirect benefit of 

protecting deepwater species such as 

sponges and corals from the impacts of 

bottom-tending mobile gear. 

Comments on Proposed Measures and 

Regulations 

Comment 18: Two commenters stated 

that the regulation at § 648.291(b)(1), 

that requires an IFQ Allocation permit 

holder to declare all vessel(s) that they 

own, or lease, that will land their 

allocation, by providing a list to NMFS 

at the beginning of each fishing year, 

could be a problem in the case where a 

vessel was lost or broken down during 

the fishing year. The commenter also 

questioned whether the allocation could 

be transferable under this condition. 

Response: NMFS revised the 

regulations at § 648.291(b)(3) to clarify 

that all Federal vessel permit numbers 

that are listed on the IFQ Allocation 

permit are authorized to possess tilefish 

pursuant to the IFQ Allocation permit 

until the end of the tilefish fishing year, 

or until NMFS receives written 

notification from the IFQ Allocation 

permit holder that the vessel is no 

longer authorized to possess tilefish 

pursuant to the subject IFQ Allocation 

permit. 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 dates on which the vessel may 

fish for tilefish pursuant to the IFQ 

Allocation permit. In addition to this 

requirement, allocation is transferable 

under § 648.291(e). 

Comment 19: Two commenters stated 

that the regulation at § 648.291(d)(4) 

that reserves 15 percent of the IFQ TAL 

to allow an individual to continue to 

fish under an LOA, pending resolution 

of an appeal, should not be deducted 

from the overall IFQ TAL. Rather, the 

15-percent reserve should be 

proportionally reserved from each of the 

three limited access categories. This 

would allow for 66 percent of the 15- 

percent reserve (9.90 percent of the IFQ 

TAL) to be applied to the Full-time tier 

1 category; 15 percent of the 15 percent 

reserve (2.25 percent of the IFQ TAL) to 

be applied to the Full-time tier 2 

category; and for 19 percent of the 15 

percent reserve (2.85 percent of the IFQ 

TAL) to be applied to the Part-time 

category. This alternate method for 

reserving 15 percent of the IFQ TAL 

would allow for the reserve to be 

ultimately deducted from the category 

for which the appeals are submitted. 

Response: NMFS has determined that 

this revision to the rule would not be 

consistent with the intent of the 

Council, as described in the 

Amendment 1 document. Although the 

Council was not specific as to how the 

15-percent reserve should be deduced 

from the IFQ TAL (i.e., either from the 

overall IFQ TAL, or proportionately 

from the contribution of each limited 

access category), NMFS has determined 

that the intent of the reserve is to allow 

vessels to continue to fish pursuant to 

a LOA, pending the resolution of 

appeals. The Council did specifically 

intend, as described in Amendment 1, 

that, if the resolution of appeals requires 

more than a 15-percent reserve, the 

allocations of all initial IFQ Allocation 

permit holder’s would be reduced 

proportionately to accommodate the 

required allocation in excess of the 15- 

percent reserve. Therefore, the reserve is 

not specific to a particular category, but 

rather is to be deducted from the overall 

IFQ TAL at the beginning of the initial 

year of the IFQ program only. NMFS has 

determined that the majority of the 

vessels that would be likely to appeal 

their IFQ Allocation permit applications 

are currently permitted in the Part-time 

category. The 15-percent reserve was 

designed to allow these vessels an 

ability to continue to fish, pursuant to 

an LOA, until their appeals are resolved. 

NMFS determined that, if only 19 

percent of the 15-percent reserve (2.85 

percent of the IFQ TAL) was accessible 

to the majority of vessels fishing under 

an LOA, these vessels would not have 

the ability to continue to fish while their 

appeal is resolved, contrary to the intent 

of the Council. 

Comment 20: One commenter 

opposed the initial cost-recovery fee of 

3 percent of the landed value of the IFQ 

allocation, as described in § 648.291(h). 

The commenter stated that NMFS 

should estimate this cost prior to the 

implementation of the IFQ program. 

Response: As described in 

Amendment 1, and as stated in this final 

rule, NMFS will not know the actual 

cost of the management, data collection 

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and analysis, and enforcement, of the 

tilefish IFQ program until after the end 

of the first year of the program. If the 

recoverable costs are determined to be 

less than 3 percent of the ex-vessel 

value of the fishery, NMFS will issue 

each IFQ Allocation permit holder a feeoverage credit, equal to the amount paid 

in excess of their portion of the 

recoverable cost, towards their 

subsequent year’s fee. 

Changes From Proposed Rule to Final 

Rule 

In § 648.2, the definition of ‘‘interest 

in an IFQ allocation,’’ is revised to 

define what an immediate family 

member is. 

In § 648.2, the definition of ‘‘bottomtending mobile gear,’’ and ‘‘Interest in 

an IFQ allocation,’’ are revised to correct 

syntax errors. 

In § 648.4, paragraph (a)(12) is revised 

to correct syntax errors. 

In § 648.7, paragraph (b)(2)(ii) is 

revised to correct syntax errors. 

In § 648.14, paragraph (u)(2)(v) is 

revised to replace ‘‘golden tilefish,’’ 

with ‘‘tilefish.’’ 

In § 648.14, paragraph (cc)(11) is 

revised to clarify that a vessel fishing 

subject to a trip limit is not prohibited 

from discarding tilefish. 

In § 648.290, paragraph (b) is revised 

to replace ‘‘TAC,’’ with ‘‘amount,’’ so 

that the term is consistent with other 

portions of the regulatory text. 

In § 648.291, paragraph (a)(1)(i) is 

revised to clarify that a person or entity 

meets the qualification criteria if they 

own a vessel with permit and fishing 

history containing a valid tilefish 

limited access permit for the 2005 

permit year and qualifying landing 

amount, or if they currently hold a valid 

CPH for the fishing history associated 

with a vessel that was issued a valid 

tilefish limited access permit for the 

2005 permit year that has a qualifying 

landing amount. In addition, ‘‘quota,’’ 

within this paragraph was replaced with 

‘‘landings,’’ to better reflect the intent of 

the Council as described within 

Amendment 1. 

In § 648.291, paragraph (a)(1)(ii) is 

revised to clarify the intent. 

In § 648.291, paragraph (b)(1) is 

revised to clarify what each IFQ 

Allocation permit application must 

include. 

In § 648.291, paragraph (e)(4)(i) ‘‘proof 

of eligibility to receive IFQ allocation,’’ 

is replaced with, ‘‘indicate eligibility to 

receive IFQ allocation.’’ 

In § 648.291, paragraph (b)(3) is 

revised to add the requirement that IFQ 

Allocation permit holders must notify 

NMFS in writing if they wish to remove 

a Federal vessel permit number from the 

list of vessels that may possess tilefish 

pursuant to their IFQ Allocation permit. 

This section was also revised to specify 

that 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(s) permit number, 

and the dates on which the vessel(s) is 

authorized to land tilefish pursuant to 

the IFQ Allocation permit. 

In § 648.291, paragraph (h)(1) is 

revised to clarify how NMFS will 

determine the cost-recovery fee. 

In § 648.291, paragraph (c)(1)(i) is 

revised to clarify the intent. 

In § 648.291, paragraph (d)(2) is 

revised to clarify 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. 

In § 648.291, text within paragraph 

(d)(3) is moved to paragraph (d)(4). 

In § 648.291, paragraphs (e)(2), 

(e)(2)(i) and (e)(3)(iii) are revised to 

clarify the intent. 

In § 648.291, paragraph (g) is revised 

for a syntax error. 

In § 648.291, paragraph (h) is revised 

to clarify that an IFQ Allocation permit 

holder will incur a cost-recovery fee for 

his/her permanent allocation that he/ 

she leased to another IFQ Allocation 

permit holder, if it is landed. 

In § 648.291, paragraph (h)(1) is 

revised to clarify that, if the costs 

associated with the management, data 

collection and analysis, and 

enforcement of the IFQ allocation 

program are greater than 3 percent of the 

ex-vessel value of the fishery, only 3 

percent will be recoverable. 

In § 648.291, paragraph (h)(3) is 

revised to clarify the intent. 

Section 648.292 is removed and 

reserved to negate the RA’s authority to 

close the EEZ to tilefishing, as this is not 

consistent with the intent of the IFQ 

program as described in Amendment 1. 

In § 648.294, paragraph (a)(1) is 

revised to clarify that management 

measures may be adjusted, but not 

implemented, under the framework 

process. 

Classification 

Pursuant to section 304(b)(1)(A) of the 

Magnuson-Stevens Act, NMFS has 

determined that this final rule is 

consistent with the FMP, and other 

provisions of the Magnuson-Stevens 

Act, and other applicable law. NMFS, in 

making that determination, has taken 

into account the data, views, and 

comments received during the public 

comment period. 

This rule has been determined to be 

not significant for purposes of Executive 

Order 12866. 

An NOA was published in the 

Federal Register on May 4, 2009 (74 FR 

20448), and a proposed rule was 

published in the Federal Register on 

May 18, 2009 (74 FR 23147). Public 

comments were solicited on the 

amendment, and the proposed rule. 

The Council prepared an FEIS for 

Amendment 1; the FEIS describes the 

impacts of the proposed Amendment 1 

measures on the environment. Since 

most of the measures determine whether 

or not fishermen can continue to fish for 

tilefish, and at what level in the future, 

the majority of the impacts are social 

and economic. Although the impacts 

may be negative in the short term for 

fishermen who do not qualify for an IFQ 

Allocation, the long-term benefits to the 

Nation of a tilefish fishery without overcapitalization and derby-style fishing 

are positive. 

The Assistant Administrator for 

Fisheries, NOAA, finds good cause 

under 5 U.S.C. 553(b)(A) to waive prior 

notice and opportunity for public 

comment for the revisions to 15 CFR 

902.1(b) because this portion of this 

final rule specifies actions of agency 

organization, procedure, or practice. 

Revisions to 15 CFR 902.1(b) in this 

action are necessary to maintain an 

accurate inventory of valid OMB control 

numbers for NOAA actions. The public 

has already been provided opportunity 

to comment on these information 

collections through the publication of 

the proposed rule for Amendment 1. 

Further, pursuant to 5 U.S.C. 553(d)(3), 

the Assistant Administrator finds good 

cause to waive the 30-day delayed 

effectiveness for revisions to 15 CFR 

902.1(b) in this final rule because these 

revisions are necessary for the purposes 

of agency procedure and practice to 

comply with the requirements of the 

PRA, and are necessary to allow for the 

collections required under § 648.291 of 

this final rule. These non-substantive 

revisions are necessary to ensure that 

the public is informed of the accurate 

OMB control number associated with 

particular regulatory citations. These 

revisions do not affect vessel operations. 

The Assistant Administrator for 

Fisheries, NOAA, finds good cause 

under 5 U.S.C. 553(d)(3) to waive the 

30-day delay in effective date for 

§§ 648.290 and 648.291 of this rule. 

These sections give NMFS the authority 

to qualify individuals for IFQ 

allocations, issue IFQ Allocation 

permits, and process IFQ Allocation 

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Transfer Forms. A delay in the effective 

date of these sections of this final rule 

would cause a disruption in the 

ordinary commerce of the tilefish 

fishery, and would be contrary to the 

public interest. IFQ Allocation permit 

holders will receive a portion of the 

overall annual quota for the species. 

Fishing for tilefish under the IFQ 

program begins on November 1, 2009, to 

coincide with the start of the 2010 

fishing year. IFQ allocations are often 

transferred, either permanently or 

temporarily, to meet changing economic 

circumstances in an IFQ fishery prior to 

the beginning of the fishing year so that 

they are effective on the first day of the 

fishing year. Without the portions of 

this rule that allow NMFS to qualify 

applicants, issue IFQ Allocation 

permits, and process IFQ Allocation 

Transfer Forms in effect, NMFS could 

not ensure that the IFQ Allocation 

permits would be issued to the qualified 

individuals by the beginning of the 

fishing year; or make a transfer of part 

or the entirety of an allocation, either 

permanently or temporarily, that would 

be effective on the beginning of the 

fishing year. This inability on the part 

of NMFS to issue such permits and 

process such IFQ allocation transfers 

would preclude the intended recipients 

of such permits or transfers from 

fishing, thereby engendering a negative 

economic impact on the tilefish fishery. 

A delay in the effectiveness of these 

portions of the rule would be contrary 

to the rule’s intent to shift the tilefish 

fishery from a limited access quotamonitored fishery, to an IFQ fishery that 

is efficient, reduces capacity in the 

fishing fleet, reduces the incentive for 

derby-style fishing, and allows the 

fishermen more flexibility in their 

operations so as to minimize the 

negative impacts of fishing in adverse 

weather. Allowing these sections of the 

rule to be effective upon publication 

would have the support of a majority of 

the qualified IFQ Allocation permit 

holders and would facilitate the 

permitting and transfer of IFQ. The 

publication of the proposed rule was 

delayed because the original submission 

of the Amendment 1 document to 

NMFS from the Council needed 

revisions to allow NMFS to consider it 

complete. Every effort was made to 

publish this final rule as expeditiously 

as possible. 

This rule contains a collection-ofinformation requirement subject to the 

Paperwork Reduction Act (PRA) and 

which has been approved by OMB 

under control number 0648–0590. 

Public reporting burden for this 

collection is estimated to average as 

follows: 

1. Initial application for an IFQ 

Allocation permit—30 min per 

response; 

2. Renewal application for an IFQ 

Allocation permit—15 min per 

response; 

3. Appeal of an initial IFQ Allocation 

permit denial—2 hr per response; 

4. Completion of an IFQ allocation 

interest declaration form—5 min per 

response; 

5. Application for an IFQ transfer 

(permanent or temporary)—5 min per 

response; 

6. Electronic payment of cost-recovery 

fees—2 hr per response; 

7. Additional IFQ reporting 

requirements—2 min per response. 

These estimates include the time for 

reviewing instructions, searching 

existing data sources, gathering and 

maintaining the data needed, and 

completing and reviewing the collection 

of information. 

Send comments regarding this burden 

estimate, or any other aspect of this data 

collection, including suggestions for 

reducing the burden, to NMFS (see 

ADDRESSES) and by e-mail to 

David_Rostker@omb.eop.gov, or fax to 

(202) 395–7285. 

Notwithstanding any other provision 

of the law, no person is required to 

respond to, nor shall any person be 

subject to a penalty for failure to comply 

with, a collection of information subject 

to the requirements of the PRA, unless 

that collection of information displays a 

currently valid OMB Control Number. 

Pursuant to 5 U.S.C. 603, NMFS 

prepared a FRFA, which describes the 

economic impact that this final rule, 

along with other non-preferred 

alternatives, would have on small 

entities. The FRFA incorporates the 

economic impacts and analysis 

summarized in the IRFA for the 

proposed rule to implement 

Amendment 1, the comments and 

responses in this final rule, and the 

corresponding economic analyses 

prepared for Amendment 1 (e.g., the 

FEIS and the RIR). The contents of these 

documents are not repeated in detail 

here. There are no Federal rules that 

duplicate, overlap, or conflict with this 

proposed rule. 

Statement of Need for This Action 

The purpose of this action is to 

improve the management of the tilefish 

fishery by the implementation of an IFQ 

program in the Tilefish FMP. 

A Summary of the Significant Issues 

Raised by the Public Comments in 

Response to the IRFA, a Summary of 

the Assessment of the Agency of Such 

Issues, and a Statement of Any Changes 

Made in the Final Rule as a Result of 

Such Comments 

Sixteen comment letters were 

received during the comment periods on 

the FMP and proposed rule. The 

majority of comments were not 

specifically directed to the IRFA, but 

most were related to economic impacts 

on small entities. The comments and 

responses are contained in the 

Comments and Responses section of the 

preamble of this final rule and are not 

repeated here. Comments 2, 4, 7, 8, 10, 

11, 12, 13, 14, and 15 were specifically 

directed at the economic consequences 

of Amendment 1 and, particularly, at 

the IFQ program and its potential 

impacts on individual vessels, all of 

which are small entities. 

Description and Estimate of the Number 

of Small Entities to Which This 

Proposed Rule Would Apply 

When the original Tilefish FMP was 

implemented, the tilefish quota was 

divided among three limited access 

fishing categories under a limited access 

program. A total of 31 vessels (Fulltime, Part-time, and CPH) are currently 

permitted to participate in the limited 

access tilefish fishery. In addition, 

approximately 2,400 vessels currently 

hold an open access tilefish Incidental 

category permit. The approved measures 

will mostly affect the 31 vessels that are 

permitted to participate in the fishery 

under the current limited access system. 

The approved measures only apply to 

the Full-time and Part-time tilefish 

vessels. Vessels with an Incidental 

tilefish permit would continue to 

operate with a tilefish open access 

permit that would allow the landing of 

an incidental catch of tilefish, i.e., 300 

lb (136 kg). In addition, according to 

NMFS VTR data, 32 vessels have landed 

tilefish from 1996 through 2005. The 

Small Business Administration (SBA) 

defines a small business in the 

commercial fishing and recreational 

fishing industry, as a firm with receipts 

(gross revenues) of up to $4.0 and $6.5 

million, respectively. All persons or 

entities that own permitted vessels fall 

within the definition of small business. 

Description of Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements 

This action contains several new 

collection-of-information, reporting, and 

recordkeeping requirements. The 

following describes these requirements. 

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1. Initial IFQ Allocation Permit 

Because 32 vessels have landed 

tilefish during the period described 

above, NMFS estimates that there would 

be, at most, 32 applicants for an IFQ 

Allocation permit. Each IFQ Allocation 

permit application will take 

approximately 30 min to process. 

Consequently, the total time burden for 

the initial applications will be 

approximately 16 hr (32 × 30 min/60 

min = 16). According to the analysis for 

Amendment 1, only 13 IFQ applicants 

are expected to qualify and 

consequently renew their applications 

each year. IFQ Allocation permit 

renewal is estimated to take 15 min per 

application on average, for a total 

burden of approximately 3.25 hr per 

year (13 × 15 min/60 min = 3.25). Thus, 

the 3-year average total public time 

burden for IFQ Allocation permit 

applications and permit renewals would 

be approximately 7.33 hr ((15.5 + 3.25 

+ 3.25)/3 = 7.33). Up to 32 applicants 

could potentially appeal their IFQ 

Allocation permit application decisions 

over the course of the application 

period. The appeals process is estimated 

to take 2 hr per appeal to complete, on 

average, for a total burden of 64 hr. The 

burden of this one-time appeal, 

annualized over 3 years, would be 21.33 

hr. 

2. Permanent and Temporary 

Transferability of IFQ 

Using the NMFS Northeast Region 

Atlantic Surfclam and Ocean Quahog 

(SC/OQ) ITQ Transfer Program (OMB 

Control No. 0648–0240) as a proxy for 

the response rate for the tilefish IFQ 

quota transfer program, it is anticipated 

that there will be approximately 65 

quota transfers (permanent and 

temporary) annually in the tilefish IFQ 

program. It is reasonable that it would 

take the same amount of time to 

complete a tilefish IFQ transfer 

application as it does to complete a SC/ 

OQ transfer application. Therefore, 

using SC/OQ as a proxy, it is estimated 

that each transfer application will take 

approximately 5 min to complete. As 

noted above, the Council estimates that 

13 entities will qualify for an initial 

tilefish IFQ Allocation. If these 13 IFQ 

Allocation permit holders completed 5 

transfers annually, at 5 min per form, 

the annual burden would be 

approximately 5 hr. 

3. IFQ Allocation Acquisition 

To administer the 49-percent limit on 

IFQ allocation acquisition, tilefish IFQ 

Allocation permit holders will be 

required to submit an IFQ allocation 

interest declaration form annually, at 

the time that they submit their IFQ 

Allocation permit renewal applications. 

If there are approximately 13 initial 

tilefish IFQ Allocation permits issued, 

there will be approximately 13 interest 

declaration forms each in the second 

and third years. However, due to IFQ 

allocation transfer, it is possible that 

there could be a different number of IFQ 

allocations after the initial year. It is 

estimated that it would take 5 min to 

complete each IFQ allocation interest 

declaration form; therefore, the annual 

reporting burden would be 1 hr (13 × 5 

min/60 min), or 1 hr, averaged over the 

first 3 years. 

4. Cost-Recovery Fee Collection 

As NMFS is initiating cost-recovery 

for this program, there are no current 

data for use in estimating the burden 

associated with submitting a costrecovery payment. Using the burden per 

response used by the NMFS Alaska 

Region’s Individual Fishing Quota CostRecovery Program (OMB Control No. 

0648–0398) as a proxy for the tilefish 

IFQ program, it is estimated that it 

would take 2 hr per response. Each 

tilefish IFQ Allocation permit holder 

will be required to submit a costrecovery payment once annually. 

Assuming that there are 13 tilefish IFQ 

Allocation permit holders, the burden 

hour estimate is 26 hr (13 × 2). 

5. IFQ Reporting Requirements 

Tilefish vessels will be required to 

input their pre-printed VTR serial 

number and dealer number into the IVR 

system within 48 hr of landing. Using 

the burden per response used by the 

current Northeast Family of Forms 

(OMB Control No. 0648–0202) as a 

proxy for the tilefish IFQ program, it is 

estimated that it will take 2 min for each 

IVR response. Landings data collected 

from vessels within the Full-time Tier1 category for the previous 3 years 

indicate that they land, on average, 19 

times a year. The current Full-time Tier 

1 category is thought to most closely 

resemble the future IFQ program, as 

vessels currently have a cooperative 

system in place to evenly distribute 

landings throughout the year. As stated 

earlier, the Council estimates that 13 

entities will qualify for an initial tilefish 

IFQ Allocation. The 13 vessels 

associated with these initial allocations 

will each call into the IVR system 

approximately 19 times a year. 

Amendment 1 requires two new IVR 

reporting requirements (dealer number 

and pre-printed VTR serial number). 

Each call to the IVR system will now 

include an additional two responses, 

each requiring 2 min of response time. 

This additional burden would be 

approximately 16 hr (13 × 19 × 4/60 

min). 

Description of the Steps the Agency Has 

Taken To Minimize the Significant 

Economic Impact on Small Entities 

Consistent With the Stated Objectives of 

Applicable Statutes, Including a 

Statement of the Factual, Policy, and 

Legal Reasons for Selecting the 

Alternative Adopted in the Final Rule 

and Why Each One of the Other 

Significant Alternatives to the Rule 

Considered by the Agency Which Affect 

the Impact on Small Entities Was 

Rejected 

The following discussion also 

includes a description of the economic 

impacts of the proposed action 

compared to significant non-selected 

alternatives as required under the RFA 

for inclusion in the FRFA. In addition, 

descriptions of the economic analysis 

for several of the selected and nonselected alternatives contained in the 

IRFA were not included in the FRFA, as 

NMFS determined that they are not 

significant under the RFA, and should 

not have been included in the IRFA. 

These alternatives include the 

Commercial Trip Limit, IFQ Program 

Review Process, Reporting 

Requirements, Recreational Bag-Size 

Limits, Framework Adjustment Process, 

Monitoring of Tilefish Landings, EFH 

Designations, and the HAPC designation 

measures. 

Based on preliminary unpublished 

NMFS dealer data from Maine to 

Virginia, the 2005 total commercial 

value for tilefish was estimated at $3.3 

million from Maine through Virginia. In 

summary, assuming 2005 ex-vessel 

prices, the overall reduction in gross 

revenue in all Federally managed 

fisheries, under the approved measures, 

would be approximately $100,000. This 

includes: 

• An increase in tilefish ex-vessel 

revenue by approximately $253,000, as 

landings will likely be spread 

throughout the year, thus supporting a 

higher price per pound, and there will 

likely be a reduction in derby-style 

fishing. 

• The implementation of costrecovery will decrease vessel gross 

revenues by approximately $141,066, 

assuming a TAL of 1.995 million lb 

(0.905 million kg), 2005 tilefish exvessel value, and an initial default costrecovery fee of 3 percent of ex-vessel 

value. 

• The potential reduction in ex-vessel 

revenue, for all fisheries, associated 

with the implementation of GRAs may 

be approximately $210,000. 

The initial default fee and costrecovery rate of 3 percent may change 

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in subsequent years if the fee and costrecovery is lower than initially assessed. 

Therefore, potential changes in revenue 

associated with the cost-recovery 

program may be lower than estimated 

here. The table included in the 

Measures to Reduce Gear Impacts in 

EFH section of the preamble to this final 

rule shows the economic impact to the 

fisheries as a result of the 

implementation of the Veatch and 

Oceanographer Canyon GRAs. However, 

as indicated in the analysis of the GRA 

alternatives, it is expected that localized 

reductions in revenues due to the 

proposed GRAs are likely to be partially 

or completely recouped due to an 

increase in effort outside of the GRAs. 

Effort displacement could, however, 

increase operating costs for fishermen 

who are forced to fish in other areas. As 

such, the lost revenue estimates 

represent a worst-case prediction of the 

anticipated loss in ex-vessel revenues 

that would result from closing this area 

to bottom-tending mobile gear. There 

was no bottom-tending mobile gear 

activity reported within the Norfolk and 

Lydonia GRAs in 2005. Finally, the 

proposed IFQ program also has 

associated costs to fishermen from the 

processing of payment fees, sale of IFQ 

allocations, and lease of IFQ allocations. 

These additional costs are estimated to 

be approximately $1,270 total for 

fishermen during the first year of the 

IFQ program. These costs are expected 

to be reduced, thereafter, to 

approximately $600 per IFQ Allocation 

permit. 

Measures Affecting Fishery Program 

Administration 

1. IFQ System 

A detailed description of each IFQ 

Allocation alternative is presented in 

section 5.1 of Amendment 1, and the 

analysis of impacts is presented in 

section 7.1. The original FMP 

implemented a limited entry program 

and a tiered commercial quota 

allocation of the TAL. However, the 

original FMP does not address how the 

quota is to be distributed among vessels 

within each of the three limited access 

fishing categories. Currently, the tilefish 

fishery is overcapitalized. While there 

are fewer boats participating in the 

fishery today, there are still more boats 

in the fishery than required to 

efficiently harvest the TAL. 

Furthermore, derby-style fishing 

conditions in the Part-time and Fulltime Tier 2 categories have forced early 

closures in recent years. The approved 

IFQ program should eliminate the 

derby-style fishing that exists under the 

current management system. Under the 

approved IFQ program, fishermen can 

decide when to harvest, taking into 

consideration weather conditions and 

price at the dock, without losing fishing 

opportunity when the quota is reached. 

The IFQ Allocation management 

measures within Amendment 1 analyze 

a wide variety of different systems. The 

evaluated IFQ programs could have 

implemented quota allocations for any 

combination of the limited access 

categories. As is currently the case, the 

Full-time Tier 1 category would initially 

receive 66 percent of the initial adjusted 

TAL, the Full-time Tier 2 category 

vessels would receive 15 percent, and 

the Part-time category would receive 19 

percent. However, each IFQ alternative 

proposed under Amendment 1 would 

allocate specific quota allocations to 

vessels within the three permit 

categories based on historical landings 

from one of three proposed sets of time 

periods (average landings for 1988– 

1998, average landings for 2001–2005, 

or best 5 years from 1997 to 2005) or by 

dividing the overall quota for each 

permit category equally among all 

permitted vessels in each category. 

As previously indicated, all of the IFQ 

Allocation alternatives considered 

under Amendment 1 would have the 

potential to reduce fishing capacity, as 

it is expected that these alternatives 

would all allow fishermen to improve 

overall fishing methods by providing 

more flexibility in deciding when, 

where, and how to fish. The reduction 

in fishing capacity could potentially be 

the highest under the IFQ programs 

evaluated that include the largest 

number of permit holders (e.g., 

Alternatives 5.1.D and 5.1.E within 

Amendment 1). Furthermore, 

alternatives that allocate the initial IFQ 

in a manner that rewards more recent 

fishing participation would also further 

reduce excess fishing capacity and 

latent fishing effort. In addition, smaller 

operators, with limited quota 

allocations, but with other fishing 

opportunities and earnings, may quickly 

exit the fishery. Operators with larger 

quota allocations, more experience, and/ 

or significantly less fishing 

opportunities and earnings in other 

fisheries (or sectors of the economy) 

may take longer, or not exit the fishery 

at all. These marginal operations are 

expected to continue to fish for tilefish 

under an IFQ program, as long as they 

can cover their variable costs. By 

improving catch efficiency under an IFQ 

program, operating costs could be 

lowered, as fishermen have more 

flexibility in their input choices and trip 

planning. This in turn is expected to 

promote safer at-sea operating 

conditions. 

The Council adopted management 

measures to implement an IFQ program 

in all three of the current limited access 

permit categories. Under Amendment 1, 

IFQ Allocation for qualifying Full-time 

vessels will be distributed using average 

landings for the 2001–2005 period. For 

Part-time vessels, an equal allocation 

will be used to calculate IFQ for vessels 

that landed tilefish during the 2001– 

2005 period. The specific IFQ 

Allocations associated with all of the 

evaluated alternatives are fully 

described in section 7.1 of Amendment 

1. It is expected that landings for Fulltime vessels will not change under an 

IFQ program when compared to the 

landings generated by these vessels 

under the current limited access system 

in 2005 (base year). The approved IFQ 

program is not expected to change the 

overall amount of tilefish landed, since 

this fishery is already operating under a 

hard TAL system, and the TAL is being 

fully harvested. The IFQ program will 

only divide and assign the current TAL 

(as reduced by research set-asides, 

incidental catch, and prior year 

overages) to individual fishermen. 

Overall tilefish prices are not expected 

to change significantly, and the overall 

landings are likely to remain constant 

under the current rebuilding scheme. 

However, it is likely that Part-time 

vessels qualifying for IFQ Allocations 

may spread their landings throughout 

the year (to avoid the current derbystyle fishing practices) and, therefore, 

they are more likely to receive higher 

prices for their product. Assuming the 

current TAL allocated to the Part-time 

vessels, and the 2005 tilefish price 

differential between Full-time and Parttime vessels, it is expected that Parttime vessels may generate revenue 

increases, from spreading landings 

throughout the year and not engaging in 

a derby-style fishery, of approximately 

$253,000. An increase in tilefish prices 

could decrease consumer surplus. If 

there is a change in the price of tilefish 

there would be associated changes in 

producer surplus (PS). The magnitude 

of the PS change will be associated with 

the price elasticity of demand for this 

species. The law of demand states that 

the price and quantity demanded are 

inversely related. The elasticity of 

demand is a measure of the 

responsiveness of the quantity that will 

be purchased by consumers, given 

changes in the price of that commodity 

(while holding other variables constant). 

Seafood demand, in general, appears to 

be elastic. For example, an increase in 

the ex-vessel price of tilefish may 

increase PS. A decrease in the ex-vessel 

price of tilefish may also increase PS if 

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we assume that the demand for tilefish 

is moderately to highly elastic. The 

exact shape of the market demand curve 

for tilefish is not known; therefore, the 

magnitude of these changes cannot be 

fully assessed. In addition, the proposed 

tilefish IFQ program may also affect the 

ability of fishermen to negotiate better 

prices for their product. 

Under the non-selected status quo 

alternative, the commercial tilefish fleet 

would likely continue to be 

characterized by higher than necessary 

levels of capital investment and 

increased operating costs. In addition, 

shortened seasons and limited at-sea 

safety, price fluctuations, and depressed 

ex-vessel price, would continue. The 

implementation of an IFQ program will 

likely decrease overcapitalization, 

distribute fishing effort throughout the 

year, decrease operating costs by 

allowing fishermen to better manage 

their operations, and potentially 

increase ex-vessel prices. The approved 

measures are not expected to change 

enforcement costs drastically. However, 

it is possible that these costs could 

decrease. 

2. Permanent Transferability of 

Ownership 

The Council considered five 

alternatives that would define 

transferability of ownership. 

Restrictions on who may purchase quota 

allocations, after an initial IFQ 

allocation has been established, are 

frequently a major consideration when 

developing IFQ programs. Transfer 

restrictions are generally used to 

address concerns that implementation 

of an IFQ program will result in drastic 

and rapid changes to the status quo. In 

the short-run, transferability results in 

lower operating costs and higher 

production value in fisheries that have 

large harvesting capacity. Fishermen 

that can operate at the lowest cost, or 

produce the most valuable product, are 

able to buy or lease fishing quotas from 

marginal operators at a price that is 

satisfactory to both parties. In the longrun, transferability of quota is 

anticipated to optimize the size of the 

tilefish fishing fleet as an allocation 

holder will have no economic incentive 

to invest in a level of capital larger than 

needed to land their quota allocation. 

The free transfer of quota allocation, 

implemented under the IFQ program, 

will likely change the existing fishery 

rapidly and/or substantially. In 

addition, it is possible that IFQ could be 

sold to entities that are willing to pay 

the highest price. It is likely that these 

entities would operate at the lowest 

cost, produce the most valuable 

product, and in general terms, be the 

most efficient. 

The no action alternative would have 

prohibited the transfer of IFQ 

allocations. Thus, the no action 

alternative would not have benefited 

those individuals that wanted to sell 

their allocations or buy allocations to 

enter the fishery or expand fishing 

operations. The Amendment 1 approved 

measure for quota allocation transfer 

allows for free quota allocation 

transfers, with limited restrictions, and 

will enhance the market for IFQ 

allocations to a greater extent than any 

other evaluated alternative. The other 

non-selected alternatives would all 

restrict the transfer of IFQ in some 

fashion, at a level between the no-action 

and the preferred alternative. It is likely 

that increased demand for a commodity 

that has a fixed supply would tend to 

increase the selling price. 

3. Temporary Transferability of 

Ownership 

As indicated in section 7.3 of 

Amendment 1, some degree of 

temporary transfer (leasing) flexibility 

may be important to allow fisheries to 

adapt to change. For instance, leasing 

would allow fishermen without a quota 

allocation, or a small initial quota, to 

lease quota allocation in order to 

participate in the fishery, and fine-tune 

their operations before they make a 

commitment to purchase IFQ 

allocations. The supply and demand 

factors that affect the price of IFQ 

allocations, and the benefits to fishing 

operations that are derived from the 

various levels of transferability systems 

discussed under the previous 

alternative, also apply here. As occurs 

with the permanent transfer of 

ownership, the difference in leasing 

price for the alternatives evaluated 

cannot be estimated with the existing 

information. It is possible that a lease 

would move quota allocations to 

individuals that are willing to pay the 

highest price. It is likely that these 

individuals would operate at the lowest 

cost, produce the most valuable 

product, and in general terms be the 

most efficient operators. However, the 

overall harvest cost may increase for 

these individuals as a consequence of 

leasing IFQ Allocations. IFQ Allocation 

permit holders can also benefit from 

leasing, as they can modify their 

operations to deal with market 

fluctuations, lease their allocations in 

the event of some type of physical or 

mechanical hardship, or lease to 

generate revenue. 

4. IFQ Allocation Acquisition 

IFQ consolidation may lead to 

positive economic development and 

may be considered a rational outcome of 

a LAPP. However, consolidation may 

result in only a few participants 

enjoying the benefits of the public 

tilefish resource. As the price of 

allocations rise, smaller operators may 

not be able to afford to buy into the 

fishery. Therefore, smaller operators 

may lease allocations and the fishery 

may become comprised of absentee 

owners. Alternative 4A would not have 

restricted allocation consolidation. This 

could have potentially led to increased 

economic efficiency, as vessel owners 

could attempt to maximize profit by 

improving vessel efficiency and benefit 

from the opportunity to reduce 

production costs (economic efficiency 

grounds; exploitation of economies of 

scale). Other alternatives would have 

limited the amount of consolidation in 

the fishery, which may not have 

allowed for the most efficient vessel 

operations, and/or impact the initial 

quota allocation. An excessive 

allocation limit can only be defined in 

the context of a well defined problem, 

which is related to the amount of quota 

allocation owned or controlled by a 

single entity, or by the number of 

operating entities. The excessive 

allocation limit is defined as the limit 

that prevents the problem from 

occurring, or keeps it at an acceptable 

level. One of these problems is the 

potential control of market power in the 

tilefish fishery. The Amendment 1 

adopted measure sets an individual 

allocation accumulation limit at 49 

percent of the TAL (adjusted). In 

selecting this alternative, the Council 

considered the potential market power 

impact that an individual entity could 

have when accumulating tilefish IFQ 

allocations, 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. The Council also 

considered historical landings and 

participation when setting the allocation 

cap at 49 percent. Prior to the 

implementation of the original FMP, 

one vessel landed approximately 36 and 

37 percent of the overall tilefish 

landings during the 1989 and 1990 

years, respectively. Therefore, a 49- 

percent IFQ allocation acquisition limit 

provides tilefish vessels with an 

opportunity to accumulate allocations 

modestly above what some specific 

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vessels have landed in recent history in 

order to potentially allow for the most 

efficient operations to harvest the quota. 

Furthermore, the Council was 

concerned that, if the overall TAL is 

reduced in the future, then Full-time 

Tier 1 and Tier 2 vessels may not be 

able to fish at efficient levels and may 

require the buying or leasing of 

additional allocations from other vessels 

in order to continue to participate in the 

fishery. The vessels that originally 

qualified for the Full-time permit 

categories had more than enough 

capacity to harvest the current quota 

level. In fact, in 1997, three Full-time 

vessels landed between 706,000 lb 

(320,236 kg) and 811,000 lb (367,863 kg) 

of tilefish. 

5. Fees and Cost-Recovery 

As previously indicated, NMFS is 

required under the Magnuson-Stevens 

Act to collect fees to recover the costs 

directly related to the management, 

enforcement, and data collection and 

analysis of IFQ programs. Under section 

304(d)(2) of the Magnuson-Stevens Act, 

the Secretary is authorized to collect a 

fee to recover these costs. The fee shall 

not exceed 3 percent of the ex-vessel 

value of the fish harvested. A fee and 

cost-recovery program for the tilefish 

fishery is implemented under the 

adopted measures. The main difference 

between the adopted measure and the 

other non-selected action alternative is 

the manner in which payments are 

collected and made. Under the adopted 

measure, the IFQ Allocation permit 

holder is responsible for self-collecting 

his or her own fee liability for all of his/ 

her IFQ tilefish landings for later 

submission to NMFS. Under the nonselected alternative, Federally permitted 

dealers would be required to collect a 

fee, for later submission to NMFS, when 

they purchase tilefish. Each of these 

alternatives proposed to implement a 3- 

percent fee of the actual ex-vessel value 

of tilefish landed under the IFQ 

program. The fee can be adjusted 

downward by NMFS in the event the 

recovered fees exceed the costs directly 

related to the management, 

enforcement, and data collection and 

analysis of the LAPP components of the 

tilefish fishery. The approved measures 

will implement an IFQ program for all 

permit categories. Using a TAL of 1.995 

million lb (904,917 kg) of tilefish, and 

applying a 2005 coast-wide average exvessel price for all market categories of 

$2.48 per pound at the maximum fee 

level of 3 percent, the total fee expected 

to be collected in the first year of the 

program is $141,066. Applying these 

assumptions regarding quota and price 

at a 2-percent fee level, the total fee 

expected to be collected would be 

$94,044. Producer surplus is reduced by 

the amount of the fee plus any other 

costs associated with paying the fee. 

Those costs include time and materials 

required for completing the paperwork 

and paying the fee. Preliminary analyses 

show that the management, 

enforcement, and data collection and 

analysis cost would be approximately 

$94,000, which is less than the 3- 

percent maximum fee. 

Recreational Charter/Party Vessel 

Permits and Reporting Requirements 

The no action alternative would not 

have implemented permit and reporting 

requirements for Charter/Party 

permitted vessels and operators. The 

adopted measures require that Charter/ 

Party vessels fishing for tilefish obtain a 

Federal open access Charter/Party 

permit, and require that any vessel 

fishing under a Charter/Party permit 

have on board at least one person who 

holds an operator permit. According to 

NMFS VTR data, 32 vessels landed 

tilefish between 1996 and 2005. It is 

expected that all of these vessels will 

apply for a Charter/Party permit in order 

to maintain flexibility in their 

operations. The implementation of this 

measure would likely increase the 

understanding of the recreational 

participation in the fishery, and would 

assist managers to better assess fishing 

trends. This action is purely 

administrative and is not expected to 

change current participation of charter/ 

party vessels in the tilefish fishery. 

Measures To Reduce Gear Impacts on 

EFH 

Under the adopted measure, the 

Council decided to close a portion of 

Norfolk, Veatch, Lydonia, and 

Oceanographer Canyons to bottomtending mobile gear to reduce gear 

impacts on juvenile and adult tilefish 

EFH. The associated potential changes 

in ex-vessel revenues associated with 

each of the evaluated GRAs are 

discussed in detail in sections 7.18.5 

and 7.18.6 of Amendment 1. The status 

quo alternative is expected to have 

neutral short-term social and economic 

impacts, as the current status quo would 

be maintained. However, there could 

potentially be longer-term negative 

socioeconomic impacts if the failure to 

establish a GRA prevents potential 

future increases in the productivity and 

associated fishery yields of managed 

resources in the region. Alternative 18B 

would have implemented a closure to 

protect tilefish habitat between 

70°00’W. long. and 39°00’N. lat. on the 

outer continental shelf/slope from 

bottom otter trawling. This area was 

considered for closure because of the 

extensive bottom trawl activity 

identified in the overlap analysis 

(Appendix E of Amendment 1) in these 

two statistical areas. This alternative 

would have had significant short-term 

negative socioeconomic impacts based 

on an examination of 2005 VTR data 

within the proposed closure area. It 

should be noted that, because the data 

are self-reported, there could be errors 

in the spatial information or reported 

data resulting from inaccurate reporting, 

unclear handwriting, or errors in 

transcribing the written information. 

Potential losses in ex-vessel revenue 

could be as high as $18.3 million (when 

compared to 2005 fishing opportunities) 

if this alternative was selected, and the 

EFH designation was not changed. 

Economic losses associated with this 

non-selected alternative could have 

been slightly lower under the adopted 

EFH measures. Under the approved 

measures, the combined potential 

changes in ex-vessel revenues 

associated with the implementation of 

GRAs in Veatch and Oceanographer 

Canyons, for all fisheries, is expected to 

be approximately $210,000 (see table 

below). There was no bottom trawl 

activity reported within the Norfolk and 

Lydonia GRAs in 2005. 

VEATCH 

CANYON 

GRA 

OCEANOGRAPHER 

CANYON GRA 

NUMBER OF TRIPS ............................................................................................................................... 9 5 

SPECIES VALUE ($) VALUE ($) 

MONKFISH .............................................................................................................................................. 1,198 3,929 

BLUEFISH ............................................................................................................................................... 0 0 

BUTTERFISH .......................................................................................................................................... 4,059 2,293 

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Federal Register / Vol. 74, No. 162 / Monday, August 24, 2009 / Rules and Regulations 42597 

VEATCH 

CANYON 

GRA 

OCEANOGRAPHER 

CANYON GRA 

ATLANTIC CROAKER ............................................................................................................................. ................................ ................................

COD ......................................................................................................................................................... 0 1,055 

BLUEBACK HERRING ............................................................................................................................ ................................ ................................

CONGER EEL ......................................................................................................................................... ................................ ................................

UNKOWN EEL ......................................................................................................................................... ................................ ................................

WINTER FLOUNDER .............................................................................................................................. 0 2,656 

SUMMER FLOUNDER ............................................................................................................................ 4,798 4,072 

WITCH FLOUNDER ................................................................................................................................ 0 1,357 

YELLOWTAIL FLOUNDER ..................................................................................................................... 0 6,031 

AMERICAN PLAICE ................................................................................................................................ 0 741 

FOURSPOT FLOUNDER ........................................................................................................................ ................................ ................................

HADDOCK ............................................................................................................................................... 0 16,946 

RED HAKE .............................................................................................................................................. 439 392 

WHITE HAKE .......................................................................................................................................... 0 0 

ATLANTIC HERRING .............................................................................................................................. 0 0 

JOHN DORY ............................................................................................................................................ 821 0 

KING WHITING ....................................................................................................................................... 0 0 

LUMPFISH ............................................................................................................................................... 0 0 

ATLANTIC MACKEREL ........................................................................................................................... 3 355 

POLLOCK ................................................................................................................................................ ................................ ................................

SCUP ....................................................................................................................................................... 0 0 

UNKNOWN SEATROUT ......................................................................................................................... 0 0 

BLACK SEA BASS .................................................................................................................................. 347 0 

SEA ROBINS ........................................................................................................................................... ................................ ................................

SQUETEAGUE WEAKFISH .................................................................................................................... 5 0 

SPOTTED WEAKFISH ............................................................................................................................ ................................ ................................

SPINY DOGFISH ..................................................................................................................................... ................................ ................................

SKATES (MIX) ......................................................................................................................................... 0 0 

LITTLE SKATE ........................................................................................................................................ ................................ ................................

BLUELINE TILEFISH ............................................................................................................................... 0 0 

GOLDEN TILEFISH ................................................................................................................................. 1,287 0 

BLACK WHITING .................................................................................................................................... 0 0 

SILVER HAKE ......................................................................................................................................... 1,476 42,620 

LOBSTER ................................................................................................................................................ 0 0 

SEA SCALLOP ........................................................................................................................................ 0 766 

LOLIGO SQUID ....................................................................................................................................... 109,294 154 

ILLEX SQUID ........................................................................................................................................... 0 0 

UNKNOWN SQUID ................................................................................................................................. 0 0 

2005 TOTAL ..................................................................................................................................... $123,728 $83,368 

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 ‘‘the small entity 

compliance guides.’’ The agency shall 

explain the actions a small entity is 

required to take to comply with a rule 

or group of rules. As part of this 

rulemaking process, a letter to permit 

holders that also serves as small entity 

compliance guide (the guide) was 

prepared. Copies of this final rule are 

available from the Northeast Regional 

Office, and the guide, i.e., permit holder 

letter, will be sent to all holders of 

permits for the tilefish fishery. The 

guide and this final rule will be 

available upon request. 

List of Subjects 

15 CFR Part 902 

Reporting and recordkeeping 

requirements. 

50 CFR Part 648 

Fisheries, Fishing, Reporting and 

recordkeeping requirements. 

Dated: August 17, 2009. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

■ For the reasons stated in the preamble, 

15 CFR part 902, and 50 CFR part 648 

are amended as follows: 

TITLE 15—COMMERCE AND 

FOREIGN TRADE 

PART 902—NOAA INFORMATION 

COLLECTION REQUIREMENTS UNDER 

THE PAPERWORK REDUCTION ACT: 

OMB CONTROL NUMBERS 

■ 1. The authority citation for part 902 

continues to read as follows: 

Authority: 44 U.S.C. 3501 et seq. 

■ 2. In § 902.1, the table in paragraph (b) 

under 50 CFR is amended by: 

■ a. Revising the existing entry for 

§ 648.7; and 

■ b. Adding new OMB control numbers 

in numerical order and new entries for 

§ 648.291 to read as follows: 

§ 902.1 OMB control numbers assigned 

pursuant to the Paperwork Reduction Act. 

* * * * * 

(b) Display. 

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42598 Federal Register / Vol. 74, No. 162 / Monday, August 24, 2009 / Rules and Regulations 

CFR part or section where the information collection requirement is located Current OMB control number 

(all numbers begin with 0648–) 

* * * * * * * 

50 CFR. 

* * * * * * * 

648.7 ......................................................................................................................................................... –0018, –0202, –0212, –0229, and 

–0590. 

* * * * * * * 

648.291 ..................................................................................................................................................... –0590. 

* * * * * * * 

* * * * * 

TITLE 50—WILDLIFE AND FISHERIES 

PART 648—FISHERIES OF THE 

NORTHEASTERN UNITED STATES 

■ 3. The authority citation for part 648 

continues to read as follows: 

Authority: 16 U.S.C. 1801 et seq. 

■ 4. In § 648.2, the definitions for 

‘‘Bottom-tending mobile gear,’’ 

‘‘Lessee,’’ and ‘‘Lessor’’ are revised, and 

a definition of ‘‘Interest in an IFQ 

allocation’’ is added in alphabetical 

order to read as follows: 

§ 648.2 Definitions. 

* * * * * 

Bottom-tending mobile gear, with 

respect to the NE multispecies and 

tilefish fisheries, means gear in contact 

with the ocean bottom, and towed from 

a vessel, which is moved through the 

water during fishing in order to capture 

fish, and includes otter trawls, beam 

trawls, hydraulic dredges, nonhydraulic dredges, and seines (with the 

exception of a purse seine). 

* * * * * 

Interest in an IFQ allocation means: 

An allocation permanently or 

temporarily held by an individual; or by 

a company in which the individual is an 

owner, part owner, officer, shareholder, 

or partner; or by an immediate family 

member (an individual’s parents, 

spouse, children, and siblings). 

* * * * * 

Lessee means: 

(1) A vessel owner who receives 

temporarily transferred NE multispecies 

DAS from another vessel through the 

DAS Leasing Program specified at 

§ 648.82(k); or 

(2) A person or entity eligible to own 

a documented vessel under the terms of 

46 U.S.C. 12102(a), who receives 

temporarily transferred tilefish IFQ 

Allocation, as specified at 

§ 648.291(e)(1). 

* * * * * 

Lessor means: 

(1) A vessel owner who temporarily 

transfers NE multispecies DAS to 

another vessel through the DAS Leasing 

Program specified at § 648.82(k); or 

(2) An IFQ Allocation permit holder 

who temporarily transfers tilefish IFQ 

Allocation, as specified at 

§ 648.291(e)(1). 

* * * * * 

■ 5. In § 648.4, paragraph (a)(12) is 

revised to read as follows: 

§ 648.4 Vessel permits. 

(a) * * * 

(12) Tilefish vessels. Any vessel of the 

United States must have been issued, 

under this part, and carry on board, a 

valid vessel permit to fish for, possess, 

or land tilefish, in or from the Tilefish 

Management Unit, and must fish under 

the authorization of a tilefish IFQ 

Allocation permit, issued pursuant to 

§ 648.291, to possess, or land tilefish in 

excess of the trip limit as specified 

under § 648.293. 

(i) Party and charter vessel permits. 

Any party or charter vessel must have 

been issued, under this part, a Federal 

Charter/Party vessel permit to fish for 

tilefish in the Tilefish Management 

Unit, if it carries passengers for hire. 

Recreational fisherman fishing onboard 

such a vessel must observe the 

recreational possession limits as 

specified at § 648.295 and the 

prohibition on sale. 

(ii) [Reserved] 

* * * * * 

■ 6. In § 648.7, paragraph (b)(2)(ii) is 

revised to read as follows: 

§ 648.7 Recordkeeping and reporting 

requirements. 

* * * * * 

(b) * * * 

(2) * * * 

(ii) Tilefish vessel owners or 

operators. The owner or operator of any 

vessel fishing under a tilefish IFQ 

Allocation permit, issued under this 

part, as described in § 648.291(a), must 

submit a tilefish catch report by using 

the IVR system within 48 hr after 

returning to port and offloading. The 

report shall include at least the 

following information, and any other 

information required by the Regional 

Administrator: Vessel identification, 

trip during which tilefish are caught, 

pounds landed, VTR pre-printed serial 

number, and the Federal dealer number 

for the dealer who purchases the 

tilefish. IVR reporting does not exempt 

the owner or operator from other 

applicable reporting requirements of 

this section. 

* * * * * 

■ 7. In § 648.14, paragraph (u) is revised 

to read as follows: 

§ 648.14 Prohibitions. 

* * * * * 

(u) Golden tilefish. It is unlawful for 

any person owning or operating a vessel 

to do any of the following: 

(1) Permit requirements—(i) Operator 

permit. Operate, or act as an operator of, 

a vessel with a tilefish permit, or a 

vessel fishing for or possessing tilefish 

in or from the Tilefish Management 

Unit, unless the operator has been 

issued, and is in possession of, a valid 

operator permit. 

(ii) Dealer permit. Purchase, possess, 

receive for a commercial purpose; or 

attempt to purchase, possess, or receive 

for a commercial purpose; as a dealer, 

or in the capacity of a dealer, tilefish 

that were harvested in or from the 

Tilefish Management Unit, without 

having been issued, and in possession 

of, a valid tilefish dealer permit. 

(iii) Vessel permit. Sell, barter, trade, 

or otherwise transfer from a vessel; or 

attempt to sell, barter, trade, or 

otherwise transfer from a vessel; for a 

commercial purpose, other than solely 

for transport on land, any tilefish, 

unless the vessel has been issued a 

tilefish permit, or unless the tilefish 

were harvested by a vessel without a 

tilefish permit that fished exclusively in 

State waters. 

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Federal Register / Vol. 74, No. 162 / Monday, August 24, 2009 / Rules and Regulations 42599 

(2) Possession and landing. (i) Fish 

for, possess, retain, or land tilefish, 

unless: 

(A) The tilefish are being fished for or 

were harvested in or from the Tilefish 

Management Unit by a vessel holding a 

valid tilefish permit under this part, and 

the operator on board such vessel has 

been issued an operator permit that is 

on board the vessel. 

(B) The tilefish were harvested by a 

vessel that has not been issued a tilefish 

permit and that was fishing exclusively 

in State waters. 

(C) The tilefish were harvested in or 

from the Tilefish Management Unit by 

a vessel, other than a Party/Charter 

vessel, that is engaged in recreational 

fishing. 

(ii) Land or possess tilefish harvested 

in or from the Tilefish Management 

Unit, in excess of the trip limit pursuant 

to § 648.293, without a valid tilefish IFQ 

Allocation permit, as specified in 

§ 648.291(a). 

(iii) Land tilefish harvested in or from 

the Tilefish Management Unit in excess 

of that authorized under a tilefish IFQ 

Allocation permit as described at 

§ 648.291(a). 

(iv) Operate a vessel that takes 

recreational fishermen for hire to fish 

for tilefish in the Tilefish Management 

Unit without a valid tilefish Charter/ 

Party permit, as required in 

§ 648.4(a)(12)(i). 

(v) Fish for tilefish inside and outside 

of the Tilefish Management Unit on the 

same trip. 

(vi) Discard tilefish harvested in or 

from the Tilefish Management Unit, as 

defined in § 648.2, unless participating 

in recreational fishing, as defined in 

§ 648.2, or while fishing subject to a trip 

limit pursuant to § 648.291(d)(3) or 

§ 648.293. 

(3) Transfer and purchase. (i) 

Purchase, possess, or receive for a 

commercial purpose, other than solely 

for transport on land; or attempt to 

purchase, possess, or receive for a 

commercial purpose, other than solely 

for transport on land; tilefish caught by 

a vessel without a tilefish permit, unless 

the tilefish were harvested by a vessel 

without a tilefish permit that fished 

exclusively in State waters. 

(ii) Purchase or otherwise receive for 

commercial purposes tilefish caught in 

the EEZ from outside the Tilefish 

Management Unit unless otherwise 

permitted under 50 CFR part 622. 

(4) Presumption. For purposes of this 

part, the following presumption applies: 

All tilefish retained or possessed on a 

vessel issued any permit under § 648.4 

are deemed to have been harvested in or 

from the Tilefish Management Unit, 

unless the preponderance of all 

submitted evidence demonstrates that 

such tilefish were harvested by a vessel 

fishing exclusively in State waters. 

* * * * * 

■ 8. In § 648.290, the section heading, 

and paragraphs (b) and (c) are revised to 

read as follows: 

§ 648.290 Individual fishing quota program 

and other restrictions. 

* * * * * 

(b) TAL allocation. For each fishing 

year, up to 3 percent of the TAL may be 

set aside for the purpose of funding 

research. Once a research amount, if 

any, is set aside, the TAL will first be 

reduced by 5 percent to adjust for the 

incidental catch. The remaining TAL 

will, for the first year of the Individual 

Fishing Quota Program (IFQ TAL), be 

reduced by the 15-percent reserve, as 

specified in § 648.291(d)(4), and then 

allocated as follows: Full-time tier 

Category 1, 66 percent; Full-time tier 

Category 2, 15 percent; Part-time, 19 

percent, to allow for the calculation of 

IFQ allocations and the issuance of IFQ 

Allocation permits pursuant to 

§ 648.291. 

(c) Adjustments to the quota. If the 

incidental harvest exceeds 5 percent of 

the TAL for a given fishing year, the 

incidental trip limit of 300 lb (138 kg) 

may be reduced in the following fishing 

year. In the first year of the IFQ program 

only, any overages from the prior 

limited access category fishery will be 

deducted from the appropriate category, 

prior to the initial distribution of IFQ 

allocation as specified at § 648.291(c). If 

an adjustment is required, a notification 

of adjustment of the quota will be 

published in the Federal Register. 

* * * * * 

■ 9. Section 648.291 is revised to read 

as follows: 

§ 648.291 Individual fishing quota. 

(a) Individual fishing quota (IFQ) 

allocation permits. After adjustments for 

incidental catch, research set asides, 

and overages, as appropriate, during the 

first year of the IFQ Program, the 

Regional Administrator shall divide the 

Category quotas specified pursuant to 

§ 648.290(b), among the owners of 

vessels that meet the qualification 

criteria specified in paragraphs (a)(1)(i) 

and (ii) of this section. Initial allocations 

shall be made in accordance with 

paragraph (b)(1)(i) of this section, in the 

form of an IFQ Allocation permit issued 

to a qualifying vessel owner, who files 

a complete application, specifying the 

allocation percentage of the IFQ TAL 

that the owner is entitled to harvest. 

This allocation percentage shall be 

calculated pursuant to paragraph (c) of 

this section and converted annually into 

pounds of tilefish. Amounts of IFQ of 

0.5 lb (0.23 kg) or smaller created by this 

allocation shall be rounded downward 

to the nearest whole number, and 

amounts of IFQ greater than 0.5 lb (0.23 

kg) created by this division shall be 

rounded upward to the nearest whole 

number, so that IFQ allocations are 

specified in whole pounds. Allocations 

in subsequent years shall be made by 

applying the allocation percentages that 

exist on September 1 of a given fishing 

year to the IFQ TAL pursuant to 

§ 648.290(b), subject to any deductions 

for overages pursuant to paragraph (f) of 

this section. These allocations shall be 

issued in the form of an annual IFQ 

Allocation permit. 

(1) Qualifying criteria. (i) A person or 

entity qualifies for an IFQ Allocation 

permit if they: Own a vessel with a 

fishing history that includes a valid 

tilefish limited access permit for the 

2005 permit year and reported landings 

of tilefish from 2001 through 2005 that 

constituted at least 0.5 percent of the 

total landings in the tilefish Category for 

which it was permitted; or 

(ii) Hold a valid confirmation of 

permit history (CPH) that meets the 

criteria in paragraph (a)(1)(i) of this 

section. 

(2) [Reserved] 

(b) Application—(1) General. 

Applicants for a permit under this 

section must submit a completed 

application on an appropriate form 

obtained from NMFS. The application 

must be filled out completely and 

signed by the applicant. Each 

application must include a declaration 

of all interests in IFQ allocations, as 

defined in § 648.2, listed by IFQ 

Allocation permit number, and must list 

all Federal vessel permit numbers for all 

vessels that an applicant owns or leases 

that would be authorized to possess 

tilefish pursuant to the IFQ Allocation 

permit. The Regional Administrator will 

notify the applicant of any deficiency in 

the application. 

(i) Initial application. An applicant 

shall submit an application for an initial 

IFQ Allocation permit no later than 6 

months after the effective date of this 

regulation. 

(ii) Renewal applications. 

Applications to renew an IFQ 

Allocation permit must be received by 

September 15 to be processed in time 

for the start of the November 1 fishing 

year. Renewal applications received 

after this date may not be approved, and 

a new permit may not be issued before 

the start of the next fishing year. An IFQ 

Allocation permit holder must renew 

his/her IFQ Allocation permit on an 

annual basis by submitting an 

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42600 Federal Register / Vol. 74, No. 162 / Monday, August 24, 2009 / Rules and Regulations 

application for such permit prior to the 

end of the fishing year for which the 

permit is required. 

(2) Issuance. Except as provided in 

subpart D of 15 CFR part 904, and 

provided an application for such permit 

is submitted by September 15, as 

specified in paragraph (b)(1)(ii) of this 

section, NMFS shall issue annual IFQ 

Allocation permits on or before October 

31 to those who hold permanent 

allocation as of September 1 of the 

current fishing year. During the period 

between September 1 and October 31, 

transfer of IFQ is not permitted, as 

described in paragraph (e)(4) of this 

section. The IFQ Allocation permit shall 

specify the allocation percentage of the 

IFQ TAL which the IFQ permit holder 

is authorized to harvest. 

(3) Duration. An annual IFQ 

Allocation permit is valid until October 

31 of each fishing year unless it is 

suspended, modified, or revoked 

pursuant to 15 CFR part 904, or revised 

due to a transfer of all or part of the 

allocation percentage under paragraph 

(e) of this section. All Federal vessel 

permit numbers that are listed on the 

IFQ Allocation permit are authorized to 

possess tilefish pursuant to the IFQ 

Allocation permit until the end of the 

fishing year or until NMFS receives 

written notification from the IFQ 

Allocation permit holder that the vessel 

is no longer authorized to possess 

tilefish pursuant to the subject permit. 

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 dates on which the IFQ Allocation 

permit holder desires the vessel to be 

authorized to land IFQ tilefish pursuant 

to the IFQ Allocation permit to be 

effective. 

(4) Alteration. An annual IFQ 

Allocation permit that is altered, erased, 

or mutilated is invalid. 

(5) Replacement. The Regional 

Administrator may issue a replacement 

permit upon written application of the 

annual IFQ Allocation permit holder. 

(6) Transfer. The annual IFQ 

Allocation permit is valid only for the 

person to whom it is issued. All or part 

of the allocation specified in the IFQ 

Allocation permit may be transferred in 

accordance with paragraph (e) of this 

section. 

(7) Abandonment or voluntary 

relinquishment. Any IFQ Allocation 

permit that is voluntarily relinquished 

to the Regional Administrator, or 

deemed to have been voluntarily 

relinquished for failure to pay a 

recoverable cost fee, in accordance with 

the requirements specified in paragraph 

(h)(2) of this section, or for failure to 

renew in accordance with paragraph 

(b)(1)(ii) of this section, shall not be 

reissued or renewed in a subsequent 

year. 

(c) Initial allocation formulas—(1) 

General. An individual fishing quota of 

tilefish shall be calculated as a 

percentage of the IFQ TAL, based on the 

following formulas: 

(i) Full-time vessels. The owner of a 

vessel that held a Full-time (Category A 

or B; 66 percent of the adjusted TAL for 

Category A, and 15 percent of the 

adjusted TAL for Category B) limited 

access permit in 2005 shall receive an 

allocation based on the division of the 

vessel’s average landings from 2001 

through 2005 by the total average 

landings in their respective Category 

during this same time period to derive 

a percentage. This percentage shall then 

be applied to the IFQ TAL to derive an 

IFQ allocation percentage of the IFQ 

TAL that shall also be converted to an 

amount in pounds. If the landings of all 

qualified vessels yield percentages that 

are less than the allocation of the entire 

adjusted quota, the remainder shall be 

distributed among the qualified vessels 

based on the ratio of their respective 

percentages. Vessel landings during this 

time period will be calculated using 

NMFS interactive voice reporting (IVR) 

data for 2002 through 2005, and NMFS 

dealer data submitted for 2001 

(excluding landings reported from May 

15, 2003, through May 31, 2004, as a 

result of the Hadaja v. Evans lawsuit). 

(ii) Part-time vessels. An owner of a 

vessel that held a Part-time (Category C) 

limited access permit in 2005 shall 

receive an allocation based on the equal 

division of the Category C quota (19 

percent of the adjusted TAL) among 

vessels that had landings during the 

2001 through 2005 time period, to 

derive an IFQ allocation percentage of 

the IFQ TAL. This percentage shall also 

be converted to an amount in pounds. 

Vessel landings during this time period 

will be calculated using NMFS IVR data 

for 2002 through 2005, and NMFS 

dealer data submitted for 2001 

(excluding landings reported from May 

15, 2003, through May 31, 2004, as a 

result of the Hadaja v. Evans lawsuit). 

(2) [Reserved] 

(d) Appeal of denial of permit—(1) 

General. Any applicant denied an IFQ 

Allocation permit may appeal to the 

Regional Administrator within 30 days 

of the notice of denial. Any such appeal 

shall be in writing. The only ground for 

appeal is that the Regional 

Administrator erred in concluding that 

the vessel did not meet the criteria in 

this section. The appeal must set forth 

the basis for the applicant’s belief that 

the decision of the Regional 

Administrator was made in error. 

(2) Appeal review. The Regional 

Administrator shall appoint a designee 

who shall make the initial decision on 

the appeal. The appellant may appeal 

the initial decision to the Regional 

Administrator by submitting a request 

in writing within 30 days of the notice 

of the initial decision. If requested, the 

appeal may be presented at a hearing 

before a hearing officer appointed by the 

Regional Administrator. A hearing will 

only be held if the applicant presents 

credible documentation with the 

hearing request to show that the 

Regional Administrator 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. If the appellant does not request 

a review of the initial decision within 

30 days, the initial decision is the final 

administrative decision of the 

Department of Commerce. If a hearing is 

held, the hearing officer shall make 

findings and a recommendation based 

upon the administrative record, 

including that generated during any 

hearing, pertaining to the application 

and appeal within NMFS to the 

Regional Administrator, which shall be 

advisory only. Upon receiving the 

findings and the recommendations from 

the hearing officer, the Regional 

Administrator shall issue a final 

decision on the appeal. The Regional 

Administrator’s decision is the final 

administrative decision of the 

Department of Commerce. 

(3) Status of vessels pending appeal. 

Any applicant denied an IFQ Allocation 

permit may request the issuance of a 

letter of authorization (LOA) from the 

Regional Administrator to continue to 

fish for tilefish after the effective date of 

the final regulations, pending the 

resolution of the relevant appeal, if his/ 

her vessel was issued a valid tilefish 

permit in 2008. This LOA would allow 

a vessel to continue to fish for tilefish. 

If the appeal is finally denied, the LOA 

will become invalid 5 days after the 

receipt of the notice of final denial from 

the Regional Administrator. 

(4) LOA reserve. During the first year 

of the IFQ program, the Regional 

Administrator will reserve 15 percent of 

the IFQ TAL, prior to initial distribution 

of IFQ allocations, to allow for 

continued fishing under an LOA, as 

specified in paragraph (d)(3) of this 

section, pending resolution of the 

relevant appeal. Any portion of the 

reserve remaining after the appeals 

process has been completed will be 

distributed to IFQ Allocation permit 

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Federal Register / Vol. 74, No. 162 / Monday, August 24, 2009 / Rules and Regulations 42601 

holders based on their allocation 

percentages as soon as possible during 

that fishing year. If vessels fishing under 

an LOA are projected to land a portion 

of the IFQ TAL that NMFS determines 

would unreasonably diminish the 

allocations of IFQ Allocation permit 

holders, the Regional Administrator will 

impose a trip limit to reduce the 

landings of vessels fishing under an 

LOA. If vessels fishing under LOAs, 

pending resolution of the appeals 

process, are projected to harvest an 

amount of tilefish in excess of the 15- 

percent reserve, the allocations for all 

IFQ Allocation permit holders will be 

reduced proportionately during that 

fishing year, to increase the amount of 

the reserve determined to be necessary. 

If an IFQ Allocation permit holder has 

no allocation remaining at the time of 

the proportionate reduction of all IFQ 

allocations, this reduction will 

constitute an overage and will be 

deducted from the IFQ Allocation 

permit holder’s subsequent fishing year 

allocation. 

(e) Transferring IFQ allocations—(1) 

Temporary transfers. Unless otherwise 

restricted by the provisions in paragraph 

(e)(3) of this section, the owner of an 

IFQ allocation may transfer the entire 

IFQ allocation, or a portion of the IFQ 

allocation, to any person or entity 

eligible to own a documented vessel 

under the terms of 46 U.S.C. 12102(a). 

Temporary IFQ allocation transfers shall 

be effective only for the fishing year in 

which the temporary transfer is 

requested and processed, unless the 

applicant specifically requests that the 

transfer be processed for the subsequent 

fishing year. The Regional 

Administrator has final approval 

authority for all temporary IFQ 

allocation transfer requests. The 

approval of a temporary transfer may be 

rescinded if the Regional Administrator 

finds that an emergency has rendered 

the lessee unable to fish for the 

transferred IFQ allocation, but only if 

none of the transferred allocation has 

been landed. 

(2) Permanent transfers. Unless 

otherwise restricted by the provisions in 

paragraph (e)(3) of this section, an 

owner of an IFQ allocation may 

permanently transfer the entire IFQ 

allocation, or a portion of the IFQ 

Allocation, to any person or entity 

eligible to own a documented vessel 

under the terms of 46 U.S.C. 12102(a). 

The Regional Administrator has final 

approval authority for all permanent 

IFQ allocation transfer requests. 

(3) IFQ allocation transfer restrictions. 

(i) If IFQ allocation is temporarily 

transferred to any eligible entity, it may 

not be transferred by the transferee 

again within the same fishing year, 

unless the transfer is rescinded due to 

an emergency, as described in paragraph 

(e)(1) of this section. 

(ii) A transfer of IFQ will not be 

approved by the Regional Administrator 

if it would result in an entity owning, 

or having an interest in, a percentage of 

IFQ allocation exceeding 49 percent of 

the total tilefish adjusted TAL. 

(iii) If the owner of an IFQ allocation 

leases additional quota from another 

IFQ Allocation permit holder, any 

landings associated with this transferred 

quota would be deducted from the total 

yearly landings of the lessee, before his/ 

her base allocation, if any exists, for the 

purpose of calculating the appropriate 

cost-recovery fee. As described in 

paragraph (h) of this section, a tilefish 

IFQ Allocation permit holder with a 

permanent allocation shall incur a costrecovery fee, based on the value of 

landings of tilefish authorized under 

his/her tilefish IFQ Allocation permit, 

including allocation that he/she leases 

to another IFQ Allocation permit holder. 

(4) Application for an IFQ allocation 

transfer. Any IFQ Allocation permit 

holder applying for either permanent or 

temporary transfer of IFQ allocation 

must submit a completed IFQ 

Allocation Transfer Form, available 

from NMFS. The IFQ Allocation 

Transfer Form must be submitted to the 

NMFS Northeast Regional Office at least 

30 days before the date on which the 

applicant desires to have the IFQ 

allocation transfer effective. The 

Regional Administrator shall notify the 

applicants of any deficiency in the 

application pursuant to this section. 

Applications for IFQ allocation transfers 

must be received by September 1 to be 

processed for the current fishing year. 

(i) Application information 

requirements. An application to transfer 

IFQ allocation must include the 

following information: The type of 

transfer (either temporary or 

permanent), the signature of both parties 

involved, the price paid for the transfer, 

indicate eligibility to receive IFQ 

allocation, the amount of allocation to 

be transferred, and a declaration, by IFQ 

Allocation permit number, of all the IFQ 

allocations that the person or entity 

receiving the IFQ allocation has an 

interest in. The person or entity 

receiving the IFQ allocation must 

indicate the permit numbers of all 

Federally permitted vessels that will 

possess or land their IFQ allocation. 

Information obtained from the IFQ 

Allocation Transfer Form is confidential 

pursuant to 16 U.S.C. 1881a. 

(ii) Approval of IFQ transfer 

applications. Unless an application to 

transfer IFQ is denied according to 

paragraph (e)(4)(iii) of this section, the 

Regional Administrator shall issue 

confirmation of application approval in 

the form of a new or updated IFQ 

Allocation permit to the parties 

involved in the transfer within 30 days 

of receipt of a completed application. 

(iii) Denial of transfer application. 

The Regional Administrator may reject 

an application to transfer IFQ allocation 

for the following reasons: The 

application is incomplete; the transferor 

does not possess a valid tilefish IFQ 

Allocation permit; the transferor’s or 

transferee’s vessel or tilefish IFQ 

Allocation permit has been sanctioned, 

pursuant to an enforcement proceeding 

under 15 CFR part 904; the transfer will 

result in the transferee having a tilefish 

IFQ Allocation that exceeds 49 percent 

of the adjusted TAL allocated to IFQ 

Allocation permit holders; the transfer 

is to a person or entity that is not 

eligible to own a documented vessel 

under the terms of 46 U.S.C. 12102(a); 

or any other failure to meet the 

requirements of this subpart. Upon 

denial of an application to transfer IFQ 

allocation, the Regional Administrator 

shall send a letter to the applicant 

describing the reason(s) for the denial. 

The decision by the Regional 

Administrator is the final decision of 

the Department of Commerce; there is 

no opportunity for an administrative 

appeal. 

(f) IFQ allocation overages. Any IFQ 

allocation that is exceeded, including 

amounts of tilefish landed by a lessee in 

excess of a temporary transfer of IFQ 

allocation, will be reduced by the 

amount of the overage in the subsequent 

fishing year(s). 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 can not be 

reduced in the subsequent fishing year 

because the full allocation has already 

been landed or transferred, the IFQ 

Allocation permit will indicate a 

reduced allocation for the amount of the 

overage in the next fishing year. 

(g) IFQ allocation acquisition 

restriction. No person or entity may 

acquire more than 49 percent of the 

annual adjusted tilefish TAL, specified 

pursuant to § 648.290, at any point 

during a fishing year. For purposes of 

this paragraph, acquisition includes any 

permanent or temporary transfer of IFQ. 

The calculation of IFQ allocation for 

purposes of the restriction on 

acquisition includes IFQ allocation 

interests held by: A company in which 

the IFQ holder is a shareholder, officer, 

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42602 Federal Register / Vol. 74, No. 162 / Monday, August 24, 2009 / Rules and Regulations 

or partner; an immediate family 

member; or a company in which the IFQ 

holder is a part owner or partner. 

(h) IFQ cost-recovery. A fee shall be 

determined as described in paragraph 

(h)(1) of this section, and collected to 

recover the costs associated with 

management, data collection and 

analysis, and enforcement of the IFQ 

program. A tilefish IFQ Allocation 

permit holder shall be responsible for 

paying the fee assessed by NMFS. A 

tilefish IFQ Allocation permit holder 

with a permanent allocation shall incur 

a cost-recovery fee, based on the value 

of landings of tilefish authorized under 

his/her tilefish IFQ Allocation permit, 

including allocation that he/she leases 

to another IFQ Allocation permit holder. 

A tilefish IFQ Allocation permit holder, 

with a permanent allocation, shall be 

responsible for submitting this payment 

to NMFS once per year, as specified in 

paragraph (h)(2) of this section. For the 

purpose of this section, the costrecovery 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. NMFS will create an annual 

IFQ allocation bill for each costrecovery billing period and provide it to 

each IFQ Allocation permit holder. The 

bill will include annual information 

regarding the amount and value of IFQ 

allocation landed during the prior costrecovery billing period, and the 

associated cost-recovery fees. NMFS 

will also create a report that will detail 

the costs incurred by NMFS, for the 

management, enforcement, and data 

collection and analysis associated with 

the IFQ allocation program during the 

prior cost-recovery billing period. 

(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 exvessel 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 

authorized under their permanent IFQ 

Allocation permit, including landings 

on 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. Prior to 

the first year of the IFQ program, NMFS 

will not have information needed to 

determine the management, data 

collection and analysis, and 

enforcement costs of the program. 

Therefore, during the initial costrecovery billing period, the fee shall be 

set at 3 percent. If the recoverable costs 

are determined to be less than 3 percent, 

NFMS shall 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. 

(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 shall 

be determined from Northeast Federal 

dealer reports submitted to NMFS, 

which contain the price per pound at 

the time of dealer purchase. 

(ii) [Reserved] 

(2) Fee payment procedure. An IFQ 

Allocation permit holder who has 

incurred a cost-recovery fee must pay 

the fee to NMFS within 45 days of the 

date of the bill. Cost-recovery payments 

shall be made electronically via the 

Federal Web portal, http://www.pay.gov, 

or other Internet sites designated by the 

Regional Administrator. Instructions for 

electronic payment shall be available on 

both the payment Web site and the costrecovery fee bill. Electronic payment 

options shall include payment via a 

credit card, as specified in the costrecovery bill, or via direct automated 

clearing house (ACH) withdrawal from 

a designated checking account. 

Alternatively, payment by check may be 

authorized by Regional Administrator if 

he/she determines that electronic 

payment is not possible. 

(3) Payment compliance. If the costrecovery payment, as determined by 

NMFS, is not made within the time 

specified in paragraph (h)(2) of this 

section, the Regional Administrator will 

deny the renewal of the appropriate IFQ 

Allocation permit until full payment is 

received. If, upon preliminary review of 

a fee payment, the Regional 

Administrator determines that the IFQ 

Allocation permit holder has not paid 

the full amount due, he/she shall notify 

the IFQ Allocation permit holder in 

writing of the deficiency. NMFS shall 

explain the deficiency and provide the 

IFQ Allocation permit holder 30 days 

from the date of the notice, either to pay 

the amount assessed or to provide 

evidence that the amount paid was 

correct. If the IFQ Allocation permit 

holder submits evidence in support of 

the appropriateness of his/her payment, 

the Regional Administrator shall 

determine whether there is a reasonable 

basis upon which to conclude that the 

amount of the tendered payment is 

correct. This determination shall be in 

set forth in a Final Administrative 

Determination (FAD) that is signed by 

the Regional Administrator. A FAD 

shall be the final decision of the 

Department of Commerce. If the 

Regional Administrator determines that 

the IFQ Allocation permit holder has 

not paid the appropriate fee, he/she 

shall require payment within 30 days of 

the date of the FAD. If a FAD is not 

issued until after the start of the fishing 

year, the IFQ Allocation permit holder 

may be issued a letter of authorization 

to fish until the FAD is issued, at which 

point the permit holder shall have 30 

days to comply with the terms of the 

FAD or the tilefish IFQ Allocation 

permit shall not be issued, and the letter 

of authorization shall not be valid until 

such terms are met. Any tilefish landed 

pursuant to the above authorization will 

count against the IFQ Allocation permit, 

if issued. If the Regional Administrator 

determines that the IFQ Allocation 

permit holder owes additional fees for 

the previous cost-recovery billing 

period, and the renewed IFQ Allocation 

permit has already been issued, the 

Regional Administrator shall issue a 

FAD and will notify the IFQ Allocation 

permit holder in writing. The IFQ 

Allocation permit holder shall have 30 

days from the date of the FAD to comply 

with the terms of the FAD. If the IFQ 

Allocation permit holder does not 

comply with the terms of the FAD 

within this period, the Regional 

Administrator shall rescind the IFQ 

Allocation permit until such terms are 

met. If an appropriate payment is not 

received within 30 days of the date of 

a FAD, the Regional Administrator shall 

refer the matter to the appropriate 

authorities within the U.S. Department 

of the Treasury for purposes of 

collection. No permanent or temporary 

IFQ allocation transfers may be made to 

or from the allocation of an IFQ 

Allocation permit holder who has not 

complied with any FAD. If the Regional 

Administrator determines that the terms 

of a FAD have been met, the IFQ 

Allocation permit holder may renew the 

tilefish IFQ Allocation permit. If NMFS 

does not receive full payment of a 

recoverable cost fee prior to the end of 

the cost-recovery billing period 

immediately following the one for 

which the fee was incurred, the subject 

IFQ Allocation permit shall be deemed 

to have been voluntarily relinquished 

pursuant to paragraph (b)(7) of this 

section. 

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Federal Register / Vol. 74, No. 162 / Monday, August 24, 2009 / Rules and Regulations 42603 

(4) Periodic review of the IFQ 

program. A formal review of the IFQ 

program must be conducted by the 

Council within 5 years of the effective 

date of the final regulations. Thereafter, 

it shall be incorporated into every 

scheduled Council review of the FMP 

(i.e., future amendments or 

frameworks), but no less frequently than 

every 7 years. 

§ 648.292 [Removed and reserved] 

■ 10. Section 648.292 is removed and 

reserved. 

■ 11. Section 648.293 is revised to read 

as follows: 

§ 648.293 Tilefish trip limits. 

Any vessel of the United States 

fishing under a tilefish permit, as 

described at § 648.4(a)(12), is prohibited 

from possessing more than 300 lb (138 

kg) of tilefish at any time, unless the 

vessel is fishing under a tilefish IFQ 

Allocation permit, as specified at 

§ 648.291(a). Any tilefish landed by a 

vessel fishing under an IFQ Allocation 

permit, on a given fishing trip, count as 

landings under the IFQ Allocation 

permit. 

■ 12. Section 648.294 is added to read 

as follows: 

§ 648.294 Framework specifications. 

(a) Within-season management action. 

The Council may, at any time, initiate 

action to add or adjust management 

measures if it finds that action is 

necessary to meet or be consistent with 

the goals and objectives of the Tilefish 

FMP. 

(1) Specific management measures. 

The following specific management 

measures may be adjusted at any time 

through the framework process: 

(i) Minimum fish size; 

(ii) Minimum hook size; 

(iii) Closed seasons; 

(iv) Closed areas; 

(v) Gear restrictions or prohibitions; 

(vi) Permitting restrictions; 

(vii) Gear limits; 

(viii) Trip limits; 

(ix) Overfishing definition and related 

thresholds and targets; 

(x) Annual specification quota setting 

process; 

(xi) Tilefish FMP Monitoring 

Committee composition and process; 

(xii) Description and identification of 

EFH; 

(xiii) Fishing gear management 

measures that impact EFH; 

(xiv) Habitat areas of particular 

concern; 

(xv) Set-aside quotas for scientific 

research; 

(xvi) Changes to the Northeast Region 

SBRM, including the CV-based 

performance standard, the means by 

which discard data are collected/ 

obtained, fishery stratification, reports, 

and/or industry-funded observers or 

observer set-aside programs; 

(xvii) Recreational management 

measures, including the bag-size limit, 

fish size limit, seasons, and gear 

restrictions or prohibitions; and 

(xviii) IFQ program review 

components, including capacity 

reduction, safety at sea issues, 

transferability rules, ownership 

concentration caps, permit and 

reporting requirements, and fee and 

cost-recovery issues. 

(2) Adjustment process. If the Council 

determines that an adjustment to 

management measures is necessary to 

meet the goals and objectives of the 

FMP, it will recommend, develop, and 

analyze appropriate management 

actions over the span of at least two 

Council meetings. The Council will 

provide the public with advance notice 

of the availability of the 

recommendation, appropriate 

justifications and economic and 

biological analyses, and opportunity to 

comment on the proposed adjustments 

prior to and at the second Council 

meeting on that framework action. After 

developing management actions and 

receiving public comment, the Council 

will submit the recommendation to the 

Regional Administrator; the 

recommendation must include 

supporting rationale, an analysis of 

impacts, and a recommendation on 

whether to publish the management 

measures as a final rule. 

(3) Council recommendation. After 

developing management actions and 

receiving public testimony, the Council 

will make a recommendation to the 

Regional Administrator. The Council’s 

recommendation must include 

supporting rationale and, if management 

measures are recommended, an analysis 

of impacts and a recommendation to the 

Regional Administrator on whether to 

issue the management measures as a 

final rule. If the Council recommends 

that the management measures should 

be issued as a final rule, it must 

consider at least the following factors 

and provide support and analysis for 

each factor considered: 

(i) Whether the availability of data on 

which the recommended management 

measures are based allows for adequate 

time to publish a proposed rule, and 

whether regulations have to be in place 

for an entire harvest/fishing season. 

(ii) Whether there has been adequate 

notice and opportunity for participation 

by the public and members of the 

affected industry in the development of 

the Council’s recommended 

management measures. 

(iii) Whether there is an immediate 

need to protect the resource. 

(iv) Whether there will be a 

continuing evaluation of management 

measures adopted following their 

implementation as a final rule. 

(4) Regional Administrator action. If 

the Council’s recommendation includes 

adjustments or additions to management 

measures and, after reviewing the 

Council’s recommendation and 

supporting information: 

(i) If the Regional Administrator 

concurs with the Council’s 

recommended management measures 

and determines that the recommended 

management measures should be issued 

as a final rule based on the factors 

specified in paragraph (a)(2) of this 

section, the measures will be issued as 

a final rule in the Federal Register. 

(ii) If the Regional Administrator 

concurs with the Council’s 

recommendation and determines that 

the recommended management 

measures should be published first as a 

proposed rule, the measures will be 

published as a proposed rule in the 

Federal Register. After additional 

public comment, if the Regional 

Administrator concurs with the 

Council’s recommendation, the 

measures will be issued as a final rule 

in the Federal Register. 

(iii) If the Regional Administrator 

does not concur with the Council’s 

recommendation, the Council will be 

notified in writing of the reasons for the 

non-concurrence. 

(b) Emergency action. Nothing in this 

section is meant to derogate from the 

authority of the Secretary to take 

emergency action under section 305(e) 

of the Magnuson-Stevens Act. 

■ 13. Section 648.295 is added to 

subpart N to read as follows: 

§ 648.295 Recreational possession limit. 

Any person fishing from a vessel that 

is not fishing under a tilefish vessel 

permit issued pursuant to § 648.4(a)(12), 

may land up to eight tilefish per trip. 

Anglers fishing onboard a Charter/Party 

vessel shall observe the recreational 

possession limit. 

■ 14. Section 648.296 is added to 

subpart N to read as follows: 

§ 648.296 Gear restricted areas. 

No vessel of the United States may 

fish with bottom-tending mobile gear 

within the areas bounded by the 

following coordinates: 

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42604 Federal Register / Vol. 74, No. 162 / Monday, August 24, 2009 / Rules and Regulations 

Canyon 

N. Lat. W. Long. 

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 

[FR Doc. E9–20207 Filed 8–21–09; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF DEFENSE 

Department of the Navy 

32 CFR Part 706 

Certifications and Exemptions Under 

the International Regulations for 

Preventing Collisions at Sea, 1972 

AGENCY: Department of the Navy, DoD. 

ACTION: Final rule. 

SUMMARY: The Department of the Navy 

is amending its certifications and 

exemptions under the International 

Regulations for Preventing Collisions at 

Sea, 1972 (72 COLREGS), to reflect that 

the Deputy Assistant Judge Advocate 

General (Admiralty and Maritime Law) 

has determined that USS PROVIDENCE 

(SSN 719) is a vessel of the Navy which, 

due to its special construction and 

purpose, cannot fully comply with 

certain provisions of the 72 COLREGS 

without interfering with its special 

function as a naval ship. The intended 

effect of this rule is to warn mariners in 

waters where 72 COLREGS apply. 

DATES: This rule is effective August 24, 

2009 and is applicable beginning 

August 13, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Lieutenant Commander Ted Cook, 

JAGC, U.S. Navy, Admiralty Attorney, 

(Admiralty and Maritime Law), Office of 

the Judge Advocate General, Department 

of the Navy, 1322 Patterson Ave., SE., 

Suite 3000, Washington Navy Yard, DC 

20374–5066, telephone number: 202– 

685–5040. 

SUPPLEMENTARY INFORMATION: Pursuant 

to the authority granted in 33 U.S.C. 

1605, the Department of the Navy 

amends 32 CFR Part 706. 

This amendment provides notice that 

the Deputy Assistant Judge Advocate 

General (Admiralty and Maritime Law), 

under authority delegated by the 

Secretary of the Navy, has certified that 

USS PROVIDENCE (SSN 719) is a vessel 

of the Navy which, due to its special 

construction and purpose, cannot fully 

comply with the following specific 

provisions of 72 COLREGS without 

interfering with its special function as a 

naval ship: Rule 21(a), pertaining to the 

placement of the masthead light on the 

ship’s fore and aft centerline. The 

Deputy Assistant Judge Advocate 

General (Admiralty and Maritime Law) 

has also certified that the lights 

involved are located in closest possible 

compliance with the applicable 72 

COLREGS requirements. 

Moreover, it has been determined, in 

accordance with 32 CFR Parts 296 and 

701, that publication of this amendment 

for public comment prior to adoption is 

impracticable, unnecessary, and 

contrary to public interest since it is 

based on technical findings that the 

placement of lights on this vessel in a 

manner differently from that prescribed 

herein will adversely affect the vessel’s 

ability to perform its military functions. 

List of Subjects in 32 CFR Part 706 

Marine safety, Navigation (water), and 

Vessels. 

■ For the reasons set forth in the 

preamble, the Navy amends part 706 of 

title 32 of the Code of Federal 

Regulations as follows: 

PART 706—CERTIFICATIONS AND 

EXEMPTIONS UNDER THE 

INTERNATIONAL REGULATIONS FOR 

PREVENTING COLLISIONS AT SEA, 

1972 

■ 1. The authority citation for part 706 

continues to read as follows: 

Authority: 33 U.S.C. 1605. 

■ 2. Section 706.2 is amended as 

follows: 

■ A. In Table Two by adding, in alpha 

numerical order by vessel number, an 

entry for USS PROVIDENCE (SSN 719); 

The additions read as follows: 

§ 706.2 Certifications of the Secretary of 

the Navy under Executive Order 11964 and 

33 U.S.C. 1605. 

* * * * * 

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