Federal Register / Vol. 74, No. 94 / Monday, May 18, 2009 / Proposed Rules 23147 

Dated: May 8, 2009. 

Deborah S. Ingram, 

Acting Deputy Assistant Administrator for 

Mitigation, Mitigation Directorate, 

Department of Homeland Security, Federal 

Emergency Management Agency. 

[FR Doc. E9–11514 Filed 5–15–09; 8:45 am] 

BILLING CODE 9110–12–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 071220873–7862–01] 

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: Proposed rule; request for 

comments. 

SUMMARY: NMFS proposes regulations to 

implement Amendment 1 to the Tilefish 

Fishery Management Plan (FMP). The 

proposed measures are intended to 

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 include 

measures to implement an Individual 

Fishing Quota (IFQ) program. 

DATES: Comments must be received no 

later than 5 p.m., eastern standard time, 

on July 2, 2009. 

ADDRESSES: You may submit comments, 

identified by 0648–AS25, by any one of 

the following methods: 

• Mail: Regional Administrator, 

Northeast Region, NMFS, 55 Great 

Republic Drive, Gloucester, MA 01930– 

2298. Mark on the outside of the 

envelope, ‘‘Comments on Tilefish 

Amendment 1 Proposed Rule.’’ 

• Fax: (978) 281–9135. 

• Federal e-Rulemaking Portal: http:// 

www.regulations.gov. 

Instructions: All comments received 

are a part of the public record and will 

generally be posted to http:// 

www.regulations.gov without change. 

All Personal Identifying Information (for 

example, name, address, etc.) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit Confidential Business 

Information or otherwise sensitive or 

protected information. NMFS will 

accept anonymous comments (enter N/ 

A in the required fields if you wish to 

remain anonymous). Attachments to 

electronic comments will be accepted in 

Microsoft Word, Excel, WordPerfect, or 

Adobe PDF file formats only. 

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 the address above and 

by e-mail to 

DavidlRostker@omb.eop.gov, or fax to 

202–395–7285. 

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/. 

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 

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. 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) implement 

recreational permits and reporting 

requirements; (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 proposed 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 proposes to 

create a tilefish Charter/Party permit, 

which would 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 believed 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 would 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. 

Proposed Measures 

The measures proposed in this rule 

are based on the description of the 

measures in Amendment 1. NMFS has 

noted instances where it has interpreted 

the language in Amendment 1 to 

account for any missing details in the 

Council’s description of the proposed 

measures. NMFS seeks comments on all 

of the measures in this proposed rule, 

particularly those that, where noted, 

involve an interpretation of Council 

intent. 

Institution of an IFQ Program in the 

Tilefish Fishery 

Amendment 1 proposes that a 

qualified vessel owner must 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, any vessel owner 

would be 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. An 

incidental catch of 300 lb (136 kg) of 

tilefish, per trip, could be landed by any 

vessel issued a tilefish vessel permit, 

other than a Charter/Party vessel permit, 

not fishing under a tilefish IFQ 


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23148 Federal Register / Vol. 74, No. 94 / Monday, May 18, 2009 / Proposed Rules 

Allocation permit. All permits issued to 

current limited access vessels (i.e., all 

Full-time and Part-time vessels) would 

be automatically converted to tilefish 

open access permits and issued to the 

permit holder of record prior to the 

effective date of the final regulations. In 

addition, current holders of tilefish 

limited access permits would be issued 

a tilefish IFQ Allocation permit if they 

meet the proposed Amendment 1 

qualification criteria (see item B below). 

IFQ Allocation permit holders would be 

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). 

A. Initial IFQ Allocation Permit 

Application 

NMFS would notify all vessel owners, 

for whom NMFS has 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 6 months after the effective 

date of the final regulations. 

B. Qualifying Criteria 

Amendment 1 specifies the landings 

and permit history criteria that must be 

met to qualify for a tilefish IFQ 

Allocation permit. Under Amendment 

1, an individual would be eligible to be 

issued a tilefish IFQ Allocation permit 

if he/she owned a vessel that was issued 

a valid tilefish limited access permit for 

the 2005 permit year, or if the 

individual currently holds a valid 

Confirmation of Permit History (CPH) 

for the fishing history associated with 

that vessel (see Item C below for further 

detail regarding CPH vessels). Vessel 

owners that meet this permit 

requirement, and that held, unless 

otherwise listed under item C, a 2005 

tilefish Full-time limited access permit 

(Category A or B), would be eligible to 

receive an IFQ allocation based on their 

average landings for the 2001 through 

2005 calendar years. These landings 

would 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 would then be applied to the 

adjusted TAL to derive an IFQ 

allocation percentage. This percentage 

would 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. Vessel 

owners that meet the above permit 

requirement, and that held, unless listed 

under item C, a 2005 tilefish Part-time 

limited access permit (i.e., Category C, 

which is allocated 19 percent of the 

adjusted TAL), would be eligible to 

receive an 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. This 

percentage would also be converted to 

pounds. For example, if 10 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 

would be based on NMFS dealer data 

for 2001, and NMFS IVR data for 2002– 

2005. For additional information, see 

item D (Appeal Permit Denial). In order 

to qualify for an IFQ Allocation, the 

owner of a vessel issued a valid limited 

access permit during the 2005 permit 

year must have average landings, from 

the 2001–2005 period, that constitute at 

least 0.5 percent of the quota for the 

Category for which it was permitted. 

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 during the 2005 

permit year, if the applicant intends to 

maintain eligibility 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 an individual 

who owns the history of a vessel that 

was in CPH during the 2005 permit 

year, 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 would be restricted 

under the proposed 49–percent cap on 

the acquisition of IFQ. 

D. Appeal Permit Denial 

Amendment 1 specifies an appeals 

process for applicants who have been 

denied a tilefish IFQ Allocation permit. 

Such applicants would be able to appeal 

in writing to the NMFS Northeast 

Regional Administrator (RA). Under this 

amendment, appeals would 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 would 

be 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 would review, evaluate, 

and render final decisions on appeals. 

Amendment 1 would require appeals to 

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 would 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 

option of the applicant, at a hearing 

before an officer appointed by the RA. 

The hearing officer would make a 

recommendation to the RA. The RA’s 

decision on the appeal would be the 

final decision of the Department of 

Commerce. 

The final regulations instituting the 

original FMP were made effective on 

November 1, 2001. Effective that date, 

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 

would be used to determine landings for 

years 2002 through 2005, and NMFS 

dealer data would be 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 used for 

the historical landings were 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 permitted tilefish vessels to 

submit their landings into the IVR 

system. Although dealer data have 


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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 Fulltime Tier 1 vessels that sold 

predominantly to a single dealer 

(especially in 2004 and 2005); and (3) 

the Council did not believe 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 effect those who 

over-reported. Under Amendment 1, 

during the first year of the IFQ program 

only, the RA would 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 an applicant’s appeal. 

Any portion of the 15–percent reserve 

remaining after the appeals process has 

been completed would 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 would 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 would 

be treated as an overage in the 

subsequent fishing year (see Other 

Measures, item E). An individual whose 

IFQ Allocation permit application is 

denied would 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 would only be 

issued to an individual that was issued 

a valid tilefish limited access permit for 

the 2008 permit year. This LOA would 

allow a vessel to continue to fish for 

tilefish. NMFS has preliminarily 

determined that the number of qualified 

individuals expected to fish under an 

LOA, pending an appeal, would 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 would unreasonably 

diminish the allocations issued to IFQ 

Allocation permit holders, the RA, 

under authority proposed in 

§ 648.291(d)(3), would impose a trip 

limit to reduce the landings of 

individuals fishing under an LOA. 

IFQ Program Administration 

A. IFQ Allocation Permit Renewal and 

Allocation of the Tilefish IFQ Total 

Allowable Landings (TAL) 

In order to ensure the processing of an 

IFQ Allocation permit by the start of the 

fishing year on November 1, applicants 

would need to submit their application 

to NMFS by September 15. Applications 

received after September 15th 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 would be required to 

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 

would deem the permit as voluntarily 

relinquished, with no possibility for 

reissue or renewal in a subsequent year. 

The allocation listed on the IFQ 

Allocation permit would 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 would 

be calculated by multiplying an IFQ 

allocation percentage by the annual 

adjusted TAL. The updated IFQ 

Allocation permits would 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 would be able to monitor 

the status of their allocations by 

contacting NMFS or by monitoring the 

NMFS webpage. IFQ Allocation permit 

holders would 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 exvessel landings value to pay a costrecovery fee at the conclusion of the 

calendar year. 

B. Vessel Permit Renewal 

Under this proposed rule, a vessel 

owner, other than the owner of a private 

recreational vessel, would have to 

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 

would be 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 

under the Magnuson-Stevens Act. 

Tilefish IFQ Allocation permit holders 

would be allowed to transfer IFQ on a 

temporary and permanent basis by 

submitting an IFQ Transfer Form to 

NMFS. This form would 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; and the 

amount of quota to be transferred. A 

temporary IFQ transfer (lease) would 

allow 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 would allow 

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 their IFQ to another 

individual would be 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 would be 

denied by NMFS. Once all, or a portion 

of, an IFQ allocation is leased, the lessee 

would not be able to subsequently sublease that IFQ allocation. 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 before his/her base allocation, 

if any remains, for the purposes of 

calculating the cost-recovery fees, as 

discussed in Item D. 

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 


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management, data collection and 

analysis, and enforcement of IFQ 

programs such as the one proposed by 

Amendment 1. The authority and 

procedures for the collection of costrecovery fees would be established in 

this rule. Under the Magnuson-Stevens 

Act, the cost-recovery fee for any IFQ 

that was temporarily transferred to 

another IFQ Allocation permit holder 

would be the responsibility of the owner 

of the permanent IFQ allocation, not the 

lessee. Due to the administrative burden 

associated with allowing a lessee to pay 

a cost-recovery fee for temporarily 

transferred IFQ, such payments are not 

authorized. Therefore, under 

Amendment 1, a tilefish IFQ Allocation 

permit holder with a permanent 

allocation would 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 would determine the 

recoverable costs associated with the 

management, data collection and 

analysis, and enforcement of the IFQ 

allocation program. The cost-recovery 

billing period would be 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 would not have 

information needed to determine the 

recoverable costs. Therefore, during the 

initial cost-recovery billing period, the 

recoverable costs would be set at 3 

percent. The recoverable costs would be 

divided by the amount of the adjusted 

TAL to derive a fee cost per pound. IFQ 

Allocation permit holders would be 

assessed a fee based on the fee cost per 

pound multiplied by total allocated 

tilefish landings, in pounds, by such 

permit holder. If the recoverable costs 

are determined to be less than 3 percent, 

NMFS would 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 costrecovery billing period, as reported to 

NMFS from federally permitted dealers, 

would determine the maximum annual 

costs that would be recoverable in the 

fishery. Payment of the cost-recovery fee 

would be an IFQ Allocation permit 

condition. NMFS would mail a costrecovery bill to each IFQ Allocation 

permit holder for the IFQ cost-recovery 

fee incurred by that IFQ Allocation 

permit holder for the previous costrecovery billing period. IFQ Allocation 

permit holders would be required to 

submit payment within 45 days of the 

date of the NMFS cost-recovery bill. A 

tilefish IFQ Allocation permit would not 

be renewed (i.e., not be issued), for the 

subsequent fishing year, by NMFS, until 

payment for the prior cost-recovery 

billing period fee is received in full. The 

bill for a cost-recovery fee may also be 

made available electronically, by NMFS, 

via the Internet. As described above, all 

IFQ Allocation permit holders would be 

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 would not be 

renewed for the subsequent fishing year, 

and no transfers (permanent or 

temporary) could be made involving 

this IFQ. 

Disputes regarding fees would be 

resolved through an administrative 

appeal procedure. If, upon preliminary 

review of the accuracy and 

completeness of a fee payment, NMFS 

determines the IFQ Allocation permit 

holder has not paid the amount due in 

full, NMFS would notify the IFQ 

Allocation permit holder by letter. 

NMFS would explain the discrepancy 

and the IFQ Allocation permit holder 

would 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 would not be renewed until the 

payment discrepancy is resolved. If the 

IFQ Allocation permit holder submits 

evidence in support of his/her payment, 

NMFS would evaluate it and, if there is 

any remaining disagreement as to the 

appropriate IFQ fee, prepare a Final 

Administrative Determination (FAD). A 

FAD would be the final decision of the 

Department of Commerce. If the FAD 

determines that the IFQ Allocation 

permit holder owes fees, and if the IFQ 

Allocation permit holder has not paid 

such fees within the 30 day time period 

prescribed in the FAD, no tilefish IFQ 

Allocation permit(s) held by the IFQ 

Allocation permit holder would be 

renewed until the required payment is 

received by NMFS. If NMFS does not 

receive such payment within the 

prescribed time period, NMFS would 

refer the matter to the appropriate 

authorities within the U.S. Treasury for 

purposes of collection. If NMFS does 

not receive such payment prior to the 

end of the next cost-recovery billing 

period, the IFQ Allocation permit would 

be considered voluntarily abandoned, 

and not renewable. Cost-recovery 

payments would be required to be made 

electronically via the Federal web 

portal, www.pay.gov, or other internet 

sites as designated by the RA. 

Instructions for electronic payment 

would be made available on both the 

payment website and the paper bill. 

Electronic payment options may 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 has determined that 

electronic payment is not possible for 

any reason. NMFS would create an 

annual IFQ report and provide it to the 

owner of the IFQ Allocation permit. The 

report would 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 would 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 would limit 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 

would allow 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 would also allow the two 

vessel owners that are anticipated to 

receive the largest initial allocation to 

consolidate. Thus, Amendment 1 would 

prohibit 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 would be 

monitored by NMFS to ensure that a 

transferee does not exceed this 


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allocation acquisition limit at any point 

during a fishing year. A declaration of 

interest in IFQ allocation(s), listed by 

IFQ Allocation permit number, would 

be 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 would institute a 

provision for regular review and 

evaluation of the performance of the IFQ 

program. The measures for review may 

include, but would not be 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 would be conducted by the 

Council. 

Recreational Measures 

A. Charter/Party Vessel Permit 

Requirements 

Amendment 1 would require 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), 

would be exempt from this permitting 

requirement; however, it could not 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 

would require that Federal Charter/ 

Party permitted vessels report tilefish 

landings on NMFS-issued Fishing 

Vessel Trip Report forms. The collection 

of this information would provide 

valuable data to determine the number 

of vessels and level of activity in the 

recreational tilefish fishery. 

B. Recreational Bag Limits 

Amendment 1 would institute a 

recreational landing limit of eight 

tilefish per person per trip. NMFS vessel 

trip report (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 proposed recreational bag 

limit of eight tilefish per person per trip 

would be at the upper range of the mean 

effort seen in the last 10 years. 

EFH Measures 

A. EFH Designations 

Amendment 1 would modify 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 would 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 (328 

to 984 ft). Specific locations and maps 

for the new proposed EFH designation 

can be found in Amendment 1. 

B. HAPC 

Amendment 1 would designate 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, 328–984 ft). 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 proposed to minimize 

impacts on juvenile and adult tilefish 

EFH from bottom trawling activity. 

These proposed 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 would 

also be closed to bottom trawling 

activity, even though they are not 

defined as EFH. Amendment 1 would 

prohibit 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. As proposed in 

this rule, the GRA closures would be 

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 


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Canyon 

N. Lat. W. Long. 

Degrees Min Seconds Degrees Min Seconds 

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 proposes additional 

management measures that have been 

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 would be 

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; 

(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 

would provide flexibility to managers to 

address potential changes in the fishery 

in a timely manner. 

B. Submission of Catch Reports 

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 

would ease this requirement to require 

that tilefish catch reports be submitted 

via the IVR within 48 hr after offloading. 

This would allow 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 would also 

require 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. This would allow for 

better matching of IVR data to dealer 

(weighout) data on a trip-by-trip basis. 

In addition, the dealer number would be 

required to be inputted into the IVR 

system. This would ensure that amounts 

of tilefish landed, and ex-vessel prices, 

are properly recorded for quota 

monitoring purposes and the calculation 

of IFQ fees, respectively. This would 

also ensure an accurate association of 

tilefish landings with IFQ Allocations. 

C. No Discard Provision 

Amendment 1 would prohibit any 

commercial vessel from discarding 

tilefish. This would prohibit the 

practice of highgrading, whereby lowvalue tilefish are discarded so that 

higher-value tilefish may be retained. As 

indicated in Amendment 1, current 

NMFS data show that commercial 

discard of tilefish is almost nonexistent. 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. 


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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 Fishery Management Plan 

for the Snapper-Grouper Fishery 

managed by the South Atlantic Fishery 

Management Council. Currently, the 

FMP does not restrict fishermen that 

hold both a Federal Northeast tilefish 

permit and a Southeast Federal snapper/ 

grouper permit, to fish for tilefish both 

inside and outside of the Tilefish 

Management Unit (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 

would require vessels that catch tilefish 

from the TMU to land tilefish within the 

TMU only, and prohibit combination 

trips in which vessels fish both inside 

and outside the TMU for golden tilefish 

on the same trip. Furthermore, 

Amendment 1 would prohibit 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 would 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. 

Classification 

Pursuant to Section 304 (b)(1)(A) of 

the Magnuson-Stevens Act, NMFS has 

determined that this proposed rule is 

consistent with the FMP, other 

provisions of the Magnuson-Stevens 

Act, and other applicable law, subject to 

further consideration after public 

comment. 

This proposed rule has been 

determined to be not significant for 

purposes of Executive Order 12866. 

A Notice of Availability (NOA) was 

published on May 4, 2009. Public 

comments are being solicited on the 

amendment through the end of the 

comment period stated in the NOA (July 

6, 2009). Public comments on the 

proposed rule must be received by the 

end of the comment period on the 

amendment, as published in the NOA, 

to be considered in the approval/ 

disapproval decision on the 

amendment. All comments received by 

the end of the comment period on the 

amendment, whether specifically 

directed to the amendment, or the 

proposed rule, will be considered in the 

approval/disapproval decision. 

Comments received after that date will 

not be considered in the approval/ 

disapproval decision on the 

amendment. To be considered, 

comments must be received by close of 

business on the last day of the comment 

period; that does not mean postmarked 

or otherwise transmitted by that date. 

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 would determine 

whether or not fishermen could 

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 

would be positive. 

This proposed rule contains a 

collection-of-information requirement 

subject to review and approval by the 

Office of Management and Budget 

(OMB) under the Paperwork Reduction 

Act (PRA). This requirement has been 

submitted to OMB for approval. Public 

reporting burden for these collections of 

information are 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 Costrecovery 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. 

Public comment is sought regarding: 

Whether this proposed collection of 

information is necessary for the proper 

performance of the functions of the 

agency, including whether the 

information shall have practical utility; 

the accuracy of the burden estimate; 

ways to enhance the quality, utility, and 

clarity of the information to be 

collected; and ways to minimize the 

burden of the collection of information, 

including through the use of automated 

collection techniques or other forms of 

information technology. Send comments 

on these or any other aspects of the 

collection of information to the RA as 

specified in ADDRESSES, and by e-mail to 

DavidlRostker@omb.eop.gov or fax to 

(202) 395–7285. 

Notwithstanding any other provision 

of the law, no person is required to 

respond to, and no person shall be 

subject to 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 an IRFA, which describes the 

economic impacts that this proposed 

rule, if adopted, would have on small 

entities. A description of the reasons 

why this action is being considered, as 

well as the objectives of and legal basis 

for this proposed rule, is found in the 

preamble to this document. There are no 

Federal rules that duplicate, overlap, or 

conflict with this proposed rule. This 

action primarily proposes to implement 

an IFQ program in the tilefish FMP. 

Description and Estimate of the Number 

of Small Entities to Which this 

Proposed Rule Would Apply 

Currently the tilefish quota is divided 

among three limited access fishing 

categories under the 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 proposed action 

would mostly affect the 31 vessels that 

participate in the fishery under the 

current limited access system. The 

proposed IFQ program only applies to 

the Full-time and Part-time tilefish 


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vessels. If this action is implemented, 

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. 

1. Initial IFQ Allocation Permit 

Since 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 would 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 decision 

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 & 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 would 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 would 

take approximately 5 min to complete. 

As noted above, the Council estimates 

that 13 entities would 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 would 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 would be 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 

would 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 would 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 would take 2 min for 

each IVR response. Landings data 

collected from vessels within the Fulltime Tier–1 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 would qualify for an 

initial tilefish IFQ Allocation. The 13 

vessels associated with these initial 

allocations would each call into the IVR 

system approximately 19 times a year. 

Amendment 1 would require two new 

IVR reporting requirements (dealer 

number and pre-printed VTR serial 

number). Each call to the IVR system 

would 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). 

Economic Impacts of the Proposed 

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. 

As estimated above, assuming 2005 

ex-vessel prices, the overall reduction in 

gross revenue under the proposed 

measures would be less than $100,000 

relative to 2005. More specifically, the 

proposed IFQ program is projected to 

increase ex-vessel revenue by 

approximately $253,000 resulting from 

spreading landings throughout the year 

and not engaging in derby-style fishing. 

The implementation of cost-recovery, 

under Amendment 1, will decrease 

vessel gross revenues by approximately 

$141,066, assuming a TAL of 1.995 

million lb (0.905 million kg), and 2005 

tilefish ex-vessel value. The initial 

default fee and cost-recovery rate of 3 

percent may change in subsequent years 

if the fee and cost-recovery is lower than 

initially assessed. Therefore, potential 

changes in revenue associated with the 

cost-recovery program may be lower 

than estimated here. The potential 

reduction in ex-vessel revenue 

associated with the implementation of 

GRAs could be approximately $210,000. 

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 


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other areas. As such, the lost revenue 

estimates represent a worst case 

prediction of the anticipated loss in exvessel revenues that would result from 

closing this area to bottom otter 

trawling. Finally, the proposed IFQ 

program also has associated costs to 

fishermen and the Federal Government 

due to processing of payment fees, sale 

of IFQ allocations, and lease of IFQ 

allocations. These additional costs are 

estimated to be approximately $1,270 

for fishermen and $2,110 for the Federal 

Government during the first year of 

implementation. These additional costs 

are expected to be reduced thereafter to 

approximately $600 and $625 for 

fishermen and the Federal Government, 

respectively. 

Economic Impacts of the Proposed 

Action Compared to Significant NonSelected Alternatives 

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 proposed 

IFQ program would eliminate the derbystyle fishing that exists under the 

current management system. Under the 

proposed IFQ program, fishermen could 

decide when to harvest, taking into 

consideration weather conditions and 

price at the dock, without potentially 

losing their fishing opportunity if 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 the 

Full-time Tier 1 category only, or for the 

Full-time Tier 1 and Tier 2 categories 

only, or for all Full-time and Part-time 

categories. As is currently the case, the 

Full-time Tier 1 category would initially 

receive 66 percent of the initial TAL 

(after adjusting for incidental category 

landings), 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 would be distributed using 

average landings for the 2001–2005 

period. For Part-time vessels, an equal 

allocation would 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 would 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 proposed 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 would 

only be dividing and assigning the 

current TAL (as reduced by research setasides, 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 

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 status quo alternative, the 

commercial tilefish fleet would likely 

continue to be characterized by higher 

than necessary levels of capital 

investment and increased operating 


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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 

would 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 proposed measures are not 

expected to change enforcement costs 

drastically. However, it is possible that 

these costs would 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. If 

free transfer of quota allocations is 

implemented under an IFQ program, the 

existing fishery would likely change 

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 

prohibit the transfer of IFQ allocations. 

Thus, the no-action alternative would 

not benefit those wishing to sell their 

allocations or buy allocations to enter 

the fishery or expand fishing operations. 

The Amendment 1 preferred alternative 

for quota allocation transfer would 

allow for free quota allocation transfers 

where any entity could buy quota 

allocations with limited restrictions, 

and would enhance the market for IFQ 

allocations to a greater extent than any 

other evaluated alternative. The other 

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. These 

alternatives are not expected to alter the 

amount of tilefish landings and, as such, 

changes in the ex-vessel price, 

consumer surplus, and PS are not 

expected. In addition, no changes in 

enforcement costs are anticipated as a 

result of this action. However, the 

harvest cost for individuals that lease 

IFQ Allocations may increase, and thus, 

their producer surplus may decrease. 

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. These alternatives are 

not expected to alter the amount of 

tilefish landings; therefore, changes in 

the ex-vessel price and consumer 

surplus are not expected. In addition, no 

changes in enforcement costs are 

anticipated as a result of this action. 

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 

restrict allocation consolidation. This 

could potentially lead 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 limit 

the amount of consolidation in the 

fishery, which may not allow 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 

preferred alternative would set 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 

believe 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 

would provide tilefish vessels with an 

opportunity to accumulate allocations 

modestly above what some specific 

vessels have landed in recent history in 


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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. These alternatives are not 

expected to alter the amount of tilefish 

landings or result in changes to the exvessel price, consumer surplus, or PS. 

No changes in enforcement costs are 

anticipated as a result of this action. 

5. Commercial Trip limits 

Amendment 1 analyzed an alternative 

that would have instituted a commercial 

trip limit of 15,000 lb (6,804 kg) of 

tilefish for the Part-time category, if an 

IFQ program was not adopted for this 

category by the Council. The Part-time 

category had early closures in 2002, 

2004, 2005, and 2006. A threshold 

analysis (see section 7.5.1 of the 

Amendment 1 document) indicated that 

a 15,000–lb (6,804–kg) threshold would 

affect few trips, according to VTR 

landings data for the 2001 through 2005 

fishing years. Therefore, it is not likely 

that this trip limit would have 

significantly affected the fishing season 

for this permit category. Neither of these 

alternatives are expected to alter the 

amount of tilefish landings and, as such, 

changes in the ex-vessel price, harvest 

cost, consumer surplus, and PS are not 

expected. No changes in enforcement 

cost or distributive effects are 

anticipated as a result of this action. 

6. 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 would be implemented under 

the two action alternatives. The main 

difference between these two 

alternatives is the manner in which 

payments are collected and made. 

Under Alternative 6B, the IFQ 

Allocation permit holder would be 

responsible for self-collecting his or her 

own fee liability for all of his/her IFQ 

tilefish landings for later submission to 

NMFS. Under Alternative 6C, federally 

permitted dealers would be required to 

collect a fee, for later submission to 

NMFS, when they purchase tilefish. 

Each of these alternatives would 

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. If an 

IFQ program is implemented for all 

permit categories, based on a TAL of 

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

then applying a 2005 coast wide average 

ex-vessel 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 would be $141,066. Applying 

these assumptions regarding quota and 

price at the 2–percent fee level, the total 

fee expected to be collected would be 

$94,044. Producer surplus would be 

reduced by the amount of the fee plus 

any other costs associated with paying 

the fee. Those costs would 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 would be 

less than the 3–percent maximum fee. 

Under a dealer-pays cost-recovery 

scheme, dealers must report landings to 

the NMFS electronic system via the 

Internet. If needed, a dealer may have to 

expend approximately $1,500 for the 

start-up costs associated with computer 

and software purchases in order to use 

the electronic reporting and costrecovery fee payment systems. In 

addition, between $200 and $400 a year 

may be required for Internet access. 

These alternatives are not expected to 

alter the amount of tilefish landings; 

therefore, changes in the ex-vessel price, 

harvest cost, and consumer surplus are 

not expected. No changes in 

enforcement cost or distributive effects 

are anticipated as a result of this action. 

7. IFQ Program Review Process 

Alternative 7C was considered, but 

rejected for further analysis, because 

this alternative would implement a 

review process that may be too 

complicated and tedious for managers 

and stakeholders to implement. It was 

not given further consideration beyond 

the justification for rejection. Under 

Alternative 7A, a formal review process 

would not be required if an IFQ program 

is put in place for the commercial 

tilefish fishery. Alternative 7B would 

provide for an enforceable provision for 

regular review and evaluation of the 

performance of the IFQ program. Either 

alternative may allow fishermen to 

engage in long-term planning and 

investment. Long-term fishing privileges 

reduce business uncertainty and 

provide incentives to invest in the 

resource, thus allowing for the 

flexibility for review and/or adjustments 

to improve the IFQ program. These 

alternatives are not expected to alter the 

amount of tilefish landings and, as such, 

changes in the ex-vessel price, harvest 

cost, and consumer or PS are not 

expected. No changes in enforcement 

costs or distributive effects are 

anticipated as a result of this action. 

8. Reporting Requirements 

The No-Action alternative would not 

change the current reporting system in 

the limited access fishery. Alternative 

8B would modify the current reporting 

system to include additional 

requirements that would identify 

landings under an IFQ program in a 

more efficient manner. Under 

Alternative 8B, a trip identifier (preprinted VTR serial number) would be 

mandatory for IVR reports in order to 

match all reported IVR landings to the 

dealer reports. This would allow for all 

IVR data to match dealer data on a tripby-trip basis, and this would ensure that 

amounts of tilefish landed and ex-vessel 

prices are properly recorded for quota 

monitoring purposes and the calculation 

of IFQ fees, respectively. In addition, 

the dealer number would also need to 

be recorded into the IVR to have vessels 

report pounds landed, by dealer, on the 

IVR. This action is purely 

administrative and is not expected to 

alter the amount of tilefish landings 

and, as such, changes in the ex-vessel 

price, harvest cost, and consumer or PS 

are not expected. In addition, no 

changes in enforcement cost or 

distributive effects are anticipated as a 

result of this action. The current tilefish 

regulations require that the owner or 

operator of any vessel issued a limited 

access permit for tilefish must submit a 

tilefish catch report via the IVR system 

within 24 hr after returning to port and 

offloading. The requirement to provide 

tilefish catch reports within 24 hr after 

landing/offloading may force fishermen 

to report preliminary catch data into the 

IVR system. In addition, industry 

members have also indicated that, if 

they report landings after reaching port 

but before the fish has been packed-out, 

the catch estimates can be off by as 


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much as 1,500 lb (680 kg). Alternative 

9A would maintain the status quo IVR 

reporting requirements. Under 

alternative 9B, the owner or operator of 

any vessel issued a limited access 

permit for tilefish must submit a tilefish 

catch report via the IVR system within 

48 hr after offloading fish. It is 

anticipated that increasing the time 

allowed for IVR reporting from 24 hr to 

48 hr would allow for tilefish catch 

reports to be more accurate. This action 

is purely administrative and is not 

expected to alter the amount of tilefish 

landings and, as such, changes in the 

ex-vessel price, harvest cost, and 

consumer or PS are not expected. No 

changes in enforcement cost or 

distributive effects are anticipated as a 

result of this action. 

Recreational Fishing Sector 

1. Recreational Charter/Party Vessel 

Permits and Reporting Requirements 

The No-Action alternative would not 

implement permit and reporting 

requirements for Charter/Party 

permitted vessels and operators. 

Alternative 12B would 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 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 alternative 

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. 

2. Recreational Bag-Size Limits 

None of the regulations that 

implemented the initial FMP are 

specific to the recreational sector. When 

the FMP was first developed, the 

recreational participation in this fishery 

was small. As such, recreational 

management measures were not 

included in the FMP. A small 

recreational fishery briefly occurred 

during the 1970’s, but subsequent 

recreational catches appear to be small. 

However, according to anecdotal 

information, there appears to have been 

an increase in the level of recreational 

fishing effort on this species in recent 

years. Nonetheless, VTR data indicate 

that, between 1996 and 2005, the 

number of tilefish caught by charter/ 

party vessels from Maine through 

Virginia was low, averaging 444 fish per 

year. In addition, Marine Recreational 

Fisheries Statistics Survey data indicate 

that, between 2000 and 2005, only two 

trips reported tilefish as the primary 

target species (see section 6.1 of 

Amendment 1). Under the status quo 

alternative, no recreational bag-size 

limits in the tilefish fishery would be 

implemented. The preferred alternative 

would set the tilefish recreational bag 

limit at the upper range of the mean 

effort seen between 1996 and 2005. 

Other alternatives would establish a 

recreational bag limit at lower levels. As 

described within Amendment 1, 

recreational fishermen typically fish for 

tilefish when tuna fishing, especially 

during the summer months. Fishers are 

highly unlikely to catch tilefish while 

targeting tuna on tuna fishing trips. 

However, these boats may fish for 

tilefish at any time during a tuna trip 

(i.e., when the tuna limit has been 

reached, on the way out or in from a 

tuna fishing trip, or at any time when 

tuna fishing is slow). While fishing for 

tuna, recreational fishermen may trawl 

using rod and reel (including 

downriggers), or use handline gear. Rod 

and reel is the typical gear used in the 

recreational tilefish fishery. There is 

very little information available to 

empirically estimate how sensitive the 

affected anglers might be to the 

proposed recreational bag-size limits. 

Even though the proposed management 

measures could affect the demand for 

trips for tilefish, it is not expected that 

they would negatively affect the overall 

number of recreational fishing trips in 

the North and Mid-Atlantic regions. 

Therefore, the demand for fishing trips 

should remain relatively unaffected. 

Monitoring of Tilefish Landings 

Improve Monitoring of Tilefish 

Landings Caught in the Mid-Atlantic 

Region 

Currently, vessels that hold both a 

Federal Tilefish and Snapper/Grouper 

permit could potentially fish for golden 

tilefish, inside and outside of the 

Tilefish Management Unit, on the same 

trip. Under the status-quo alternative, if 

tilefish landings are not reported 

accurately, with catch location, the 

recovery of the stock could be adversely 

affected. The preferred alternative under 

Amendment 1 would not be expected to 

change fishing methods or practices. 

However, they would allow for better 

reporting and accounting for catches 

and landings of golden tilefish in the 

management unit. This action is not 

expected to effect tilefish landings and, 

as such, changes in the ex-vessel price, 

harvest cost, and consumer or PS are not 

expected. No changes in enforcement 

cost or distributive effects are 

anticipated as a result of this action. 

Framework Adjustment 

Framework Adjustment Process 

The No-Action alternative would 

maintain the status quo and, as such, 

the list of management measures that 

can be added or modified through a 

streamlined public review process 

would not change. The preferred 

alternative would allow for an 

expansion to the list of management 

measures that have been identified in 

the FMP that can be implemented or 

adjusted at any time. The recreational 

management measures that are proposed 

to be added to the list include: (1) 

Recreational bag-size limit, fish size 

limit, and seasons; and (2) recreational 

gear restrictions or prohibitions. 

Measures to facilitate the periodic 

review of the commercial IFQ program 

include: (1) Capacity reduction; (2) 

safety at sea issues; (3) transferability 

rules; (4) ownership concentration caps; 

(5) permit and reporting requirements; 

and (6) fee and cost-recovery issues. The 

inclusion of these management 

measures to the list of measures that can 

be addressed by the framework 

adjustment process would incorporate 

into the FMP mechanisms to control 

and address potential future increases in 

tilefish recreational landings and/or 

modifications to the IFQ program. This 

action is purely administrative and is 

not expected to alter the tilefish 

landings and, as such, changes in the 

ex-vessel price, harvest cost, and 

consumer or PS are not expected. No 

changes in enforcement cost or 

distributive effects are anticipated as a 

result of this action. 

EFH Measures 

1. EFH Designations 

Under the No-Action alternative, the 

current EFH designations for tilefish life 

stages would be maintained as 

described in Amendment 1; therefore, 

this alternative is expected to have 

neutral economic impacts. The impacts 

of designating EFH for tilefish relative to 

having no designation was evaluated in 

the original FMP; however, this no 

action alternative only proposes to 

maintain the currently established EFH 

designations. If the preferred alternative 

(16B) were implemented, the EFH 

designations for tilefish would be 

redefined as described in section 5.16.B 

of Amendment 1. Impacts of the 

preferred alternative on the social and 

economic aspects of human 


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communities are expected to be positive 

relative to the No-Action alternative. 

Under the preferred alternative, the EFH 

designation would be revised to be more 

narrowly defined in terms of substrate 

type, depth, and temperature ranges, 

and would include more detailed 

descriptions of essential substrates for 

juvenile and adult tilefish. The 

preferred alternative would allow for 

more effective consultations on 

oversight of vulnerable EFH areas when 

compared to the current definitions. 

This action is not expected to affect 

tilefish landings and, as such, changes 

in the ex-vessel price, harvest cost, and 

consumer or PS are not expected. No 

changes in enforcement cost or 

distributive effects are anticipated as a 

result of this action. 

2. HAPC Designation 

The Amendment 1 document 

analyzes eight possible HAPC 

designations, based on individual 

alternatives or combinations of 

alternatives. Alternative 17A, the noaction alternative, would maintain the 

existing HAPC designation established 

under the FMP. Alternative 17B would 

modify the current HAPC designation 

for juvenile and adult tilefish, and 

redefine HAPC for juvenile and adult 

tilefish to be clay outcrop/pueblo village 

habitats in an area of the outer 

continental shelf and slope bounded by 

70°00 W. long. and 39°00 N. lat., in 

depths of 100 to 300 m (328 to 984 ft). 

The preferred alternative would define 

HAPC for juvenile and adult tilefish to 

be clay outcrop/pueblo village habitats 

in an area of the outer continental shelf 

and slope within Norfolk, Veatch, 

Lydonia, and Oceanographer Canyons at 

the depth range specified for tilefish 

EFH (100 to 300 m (328 to 984 ft)). 

Alternatives 17C and 17D are smaller 

areas designated as HAPC relative to the 

No Action alternative or Alternative 

17B. The potential impacts on the social 

and economic aspects of human 

communities from the action 

alternatives are expected to be positive 

relative to the no action alternative, 

since they could result in less restricted 

human activity when compared to the 

larger status quo HAPC area. In 

addition, the two canyon HAPC 

alternatives are much smaller than 

either Alternative 17A or 17B and 

include a higher proportion of deep, 

steep bottom areas on the edge of the 

continental shelf that are not as 

accessible to fishing as the shallower, 

flatter areas on the shelf that make up 

most of the Alternative 17A and 17B 

areas. This action is not expected to 

affect tilefish landings and, as such, 

changes in the ex-vessel price, harvest 

cost, and consumer or PS are not 

expected. No changes in enforcement 

cost or distributive effects are 

anticipated as a result of this action. 

3. Measures to Reduce Gear Impacts on 

EFH 

Under the preferred alternative, the 

Council had to decide which canyons to 

select for GRA designation. The Council 

could have selected to close one, some, 

or all of the 13 deep-water canyons to 

bottom otter trawling. The Council 

selected to close a portion of Norfolk, 

Veatch, Lydonia, and Oceanographer 

Canyons to bottom otter trawling 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 

implement 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 is expected to have 

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 selfreported, 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 the current EFH designation is not 

changed. Economic losses would 

potentially be slightly lower under the 

preferred EFH alternative (Alternative 

16B). The combined potential changes 

in ex-vessel revenues associated with 

the implementation of GRAs in Norfolk, 

Veatch, Lydonia, and Oceanographer 

Canyons would be approximately 

$210,000. As discussed in Amendment 

1, it is likely that errors in these 

estimates exist, because the VTR data 

are not collected at an appropriate level 

of detail for this type of analysis. 

Nevertheless, these values provide an 

estimate of the fishing activity in the 

proposed GRAs. 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 

closed area. This 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 exvessel revenues that would result from 

closing this area to bottom otter 

trawling. This action is not expected to 

alter the amount of tilefish landings; 

therefore, changes in the ex-vessel price, 

harvest cost, and consumer or PS are not 

expected. No changes in enforcement 

cost or distributive effects are 

anticipated as a result of this action. 

List of Subjects in 50 CFR Part 648 

Fisheries, Fishing, Reporting and 

recordkeeping requirements. 

Dated: May 12, 2009. 

John Oliver, 

Deputy Assistant Administrator For 

Operations, National Marine Fisheries 

Service. 

For the reasons set out in the 

preamble, 50 CFR part 648 is proposed 

to be amended as follows: 

PART 648—FISHERIES OF THE 

NORTHEASTERN UNITED STATES 

1. The authority citation for part 648 

continues to read as follows: 

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

2. In § 648.2, the definitions for 

‘‘Bottom-tending mobile gear,’’ 

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

‘‘Interest in an IFQ allocation’’ is added 

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. 

* * * * * 


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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). 

* * * * * 

3. 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, 

and carry on board, a valid 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 a Federal Charter/Party 

vessel permit under this part to fish for 

tilefish, 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] 

* * * * * 

4. 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 pursuant to a tilefish IFQ 

Allocation permit, 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 preprinted 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. 

* * * * * 

5. In § 648.14, paragraph (u) is revised 

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. 

(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 golden tilefish inside and 

outside of the Tilefish Management 

Unit, as defined in § 648.2, 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. 

(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, as described in 

§ 648.2, 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. 

* * * * * 

6. 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 TAC, 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 

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 


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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. 

* * * * * 

7. 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 vessel 

owner that was issued a valid Federal 

fisheries permit during the 2005 permit 

year (May 1 to April 30) that reported 

landings of tilefish from 2001 through 

2005 that constituted at least 0.5 percent 

of the quota for the tilefish Category for 

which it was permitted; or 

(ii) A person or entity that holds 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 interest in IFQ allocation, as 

defined in § 648.2. 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 

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. 

(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 which 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. An 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 adjusted TAL to derive 

an IFQ allocation percentage 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. 

This percentage shall also be converted 

to an amount in pounds. 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 


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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. 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. 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 vessels fishing under an LOA are 

projected to land a portion of the 

adjusted 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 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 15– 

percent reserve remaining after the 

appeals process has been completed 

will be distributed to IFQ Allocation 

permit holders based on their allocation 

percentages as soon as possible during 

that fishing year. 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 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 again 

within the same fishing year. 

(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 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. 

(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, 

proof of 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 


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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 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. 

(g) IFQ allocation acquisition 

restriction. No person or entity may 

acquire more than 49 percent of the 

annual tilefish adjusted 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, 

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, which shall be paid 

from the value of landings of tilefish 

authorized under his/her tilefish IFQ 

Allocation permit, including allocation 

that is landed under a temporary 

transfer of allocation. 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 adjusted 

TAL to derive a fee cost per pound. IFQ 

Allocation permit holders will be 

assessed a fee based on the fee cost per 

pound times their landings in pounds. 

This fee shall not exceed 3 percent of 

the total value of tilefish landings of the 

IFQ Allocation permit holder. 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, 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 for any reason. 

(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 


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23164 Federal Register / Vol. 74, No. 94 / Monday, May 18, 2009 / Proposed Rules 

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 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 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. 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. 

(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. 

8. Section 648.292 is revised to read 

as follows: 

§ 648.292 Closures. 

(a) EEZ closure. If the Regional 

Administrator determines that the 

tilefish TAL will be exceeded in a given 

fishing year, the Regional Administrator 

will close the EEZ to fishing for tilefish 

for the remainder of the fishing year, 

and publish notification in the Federal 

Register. 

(b) [Reserved] 

9. 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. 

10. 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 implemented or 

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, and 

(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. 

(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 


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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. 

11. Section 648.295 is added 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. 

12. Section 648.296 is added 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: 

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 


cprice-sewell on PRODPC61 with PROPOSALS
23166 Federal Register / Vol. 74, No. 94 / Monday, May 18, 2009 / Proposed Rules 

[FR Doc. E9–11540 Filed 5–15–09; 8:45 am] 

BILLING CODE 3510–22–S 


cprice-sewell on PRODPC61 with PROPOSALS