[Federal Register Volume 69, Number 80 (Monday, April 26, 2004)]
[Rules and Regulations]
[Pages 22454-22457]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-9438]



[[Page 22454]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 040122024-4105-02; I.D. 010904A]
RIN 0648-AR75


Fisheries of the Northeastern United States; Tilefish Fishery; 
Reinstatement of Permit Requirements for the Tilefish Fishery

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

ACTION: Final rule; reinstatement of the permit requirements for the 
tilefish fishery.

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SUMMARY: NMFS reinstates the permit requirements for commercial 
tilefish vessels. These permit requirements were set aside in a recent 
Federal Court Order (Court Order) on the grounds that the limited 
access program contained in the Tilefish Fishery Management Plan (FMP) 
violated National Standard 2 of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act). The Court found 
that there was insufficient support for the various limited access 
permit criteria in the administrative record for the FMP. NMFS is 
reinstating these permit requirements based on additional information 
in the form of a supplemental administrative record to the FMP 
(supplemental record) provided by the Mid-Atlantic Fishery Management 
Council (Council) that supports and explains the basis for the limited 
access permit criteria contained in the FMP. This action also allocates 
the remainder of the fishing year 2004 (November 1, 2003 - October 31, 
2004) tilefish total allowable landings (TAL) to the various limited 
access permit categories according to the regulations, based upon a 
projection of tilefish landings through the effective date of this 
rule, and using dealer reports. This action will enable NMFS to manage 
the tilefish fishery in accordance with the provisions of the Magnuson-
Stevens Act by preventing overfishing, and ensuring that the stock 
rebuilding objective of the FMP is achieved.

DATES: Effective May 31, 2004.

ADDRESSES: Copies of the Final Environmental Impact Statement (FEIS) 
prepared for the FMP may be obtained by contacting Daniel T. Furlong, 
Executive Director, Mid-Atlantic Fishery Management Council, Room 2115 
Federal Building, 300 South New Street, Dover, DE 19904. The FEIS, 
which was completed in 2001, contained a complete analysis of the 
impacts of the permit requirements contained in the FMP. Because 
nothing has changed since the FEIS was completed that would affect that 
determination, further analysis under the National Environmental Policy 
Act (NEPA) is unnecessary. Copies of the final rule, including the 
Final Regulatory Flexibility Analysis (FRFA), the supplemental record, 
and the small entity compliance guide are available upon request from 
Patricia A. Kurkul, Regional Administrator, NMFS, Northeast Regional 
Office, One Blackburn Drive, Gloucester, MA 01930-2298. The final rule, 
including the FRFA, and the small entity compliance guide are also 
accessible via the Internet at http://www.nero.nmfs.gov.

FOR FURTHER INFORMATION CONTACT: Douglas W. Christel, Fishery Policy 
Analyst, (978) 281-9141, fax (978) 281-9135, e-mail 
[email protected].

SUPPLEMENTARY INFORMATION: This final rule reinstates measures 
contained in the FMP, which was approved by NMFS on behalf of the 
Secretary of Commerce (Secretary) on May 10, 2001. Details concerning 
the rationale behind the need for this rulemaking to reinstate the 
permit requirements of the tilefish fishery were provided in the 
preamble to the proposed rule (69 FR 6635, February 11, 2004) and are 
only summarized here.

Background

    The tilefish fishery is managed by the Council under the FMP, which 
was implemented on November 1, 2001 (66 FR 49136; September 26, 2001). 
Measures in the FMP include a limited entry program; a tiered 
commercial quota based on the limited entry program; permit and 
reporting requirements for commercial vessels, operators, and dealers; 
a prohibition on the use of gear other than longline gear by limited 
access tilefish vessels; and an annual specification and framework 
adjustment process.
    On May 15, 2003, the Court Order set aside the regulations 
pertaining to the permit requirements for commercial tilefish vessels 
specified under Sec.  648.4(a)(12). In its order, the Court concluded 
that the tilefish limited access program violated National Standard 2 
of the Magnuson-Stevens Act (16 U.S.C. 1801 et seq.) because it was not 
based on the best scientific information available. In doing so, the 
Court rendered inoperative the vessel operator permit requirements 
under Sec.  648.5(a), the vessel reporting requirements under Sec.  
648.7(b)(2)(ii), the observer coverage regulations under Sec.  
648.11(a), and the incidental catch limit under Sec.  648.292. The 
Court held that the Secretary must adopt a plan that is based on the 
best scientific information available, which may be the existing plan, 
but only if the evidence in the administrative record (record) clearly 
supports it.
    A supplemental record has been compiled that describes in detail 
the steps taken by the Council and the Tilefish Committee in developing 
the limited access program alternatives contained in the FMP, and the 
rationale behind their selection of a preferred limited access program. 
This supplemental record does not change any determinations made in the 
FEIS implementing the FMP. As a result, the qualification criteria used 
to qualify vessels for the three limited access permit categories is 
not changed by this rule. Therefore, vessels that held limited access 
tilefish permits prior to the Court's decision will remain in the 
permit category they initially qualified for. A summary of the 
supplemental record is contained in the preamble of the proposed rule 
and a copy of the full supplemental record is available from the 
Regional Administrator (see ADDRESSES).
    Based upon the supplemental record, this action reinstates the 
vessel permitting requirements of the FMP, specified under Sec.  
648.4(a)(12). Since the yearly tilefish TAL is distributed among the 
limited access permit categories, this action also distributes the 
remaining tilefish TAL for the 2004 fishing year among the 
reestablished permit categories according to the regulations at Sec.  
648.290. The 2004 tilefish TAL for the entire fishing year was set at 
1.995 million lb (904,932 kg). The TAL is first reduced by 5 percent to 
account for incidental catch of tilefish. The remaining 1,895,250 lb 
(861,477 kg) is then distributed among the limited access permit 
categories, with Full-time Tier 1 vessels allocated 66 percent, or 
1,250,865 lb (567,392 kg); Full-time Tier 2 vessels allocated 15 
percent, or 284,288 lb (128,953 kg); and Part-time vessels allocated 19 
percent, or 360,098 lb (163,340 kg). Through this final rule, the 
allocations for each permit category are reduced by the amount of 
tilefish projected to have been landed between the start of the fishing 
year (November 1, 2003) through the effective date of the final rule, 
May 31, 2004, to determine the amount of tilefish TAL remaining for 
each permit category for the remainder of the 2004 fishing year.

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    Because the Court Order rendered inoperative the vessel reporting 
requirements specified under Sec.  648.7(b)(2)(ii), vessels that held 
limited access permits under the FMP prior to the Court Order have not 
been required to report their landings within a 24-hour period through 
the interactive voice response (IVR) system. Although many of these 
vessels have continued to report their landings through the IVR system, 
the only required and, therefore, reliable means of monitoring the 
tilefish TAL has been through the dealer weighout (DWO) system. Because 
reliable real-time DWO data are currently only available through 
September 2003, DWO data reflecting the daily landings of limited 
access tilefish vessels from November 1, 2002, through May 31, 2003, 
were used to determine landings for the November 1, 2003, through May 
31, 2004, period. This information represents the most accurate 
information available. As a result, dealer reports were used to project 
tilefish landings attributable to limited access tilefish vessels 
through the effective date of this final rule. A total of 998,582 lb 
(452,957 kg) of tilefish was projected to be harvested by limited 
access vessels between November 1, 2002, and May 31, 2003. Based on 
this projection, during this period, Full-time Tier 1 vessels landed 
665,278 lb (301,770 kg) of tilefish, Full-time Tier 2 vessels landed 
173,997 lb (78,925 kg) of tilefish, and Part-time vessels landed 
159,307 lb (72,262 kg) of tilefish. As explained above, these amounts 
have been subtracted from the initial TAL allocated to each permit 
category. Accordingly, based upon the procedure specified above, the 
remaining tilefish TAL available for the remainder of the 2004 fishing 
year is as follows: Full-time Tier 1 vessels are allocated 585,587 lb 
(265,622 kg), Full-time Tier 2 vessels are allocated 110,291 lb (50,028 
kg), and Part-time vessels are allocated 200,791 lb (91,079 kg).
    This action also removes the prohibition of the use of all gear 
other than longline gear for limited access tilefish vessels, which was 
struck down by the Court. This prohibition is removed due to a lack of 
information to support reinstating the ban on the use of gear other 
than longline gear in the directed tilefish fishery.
    The purpose of this action is to prevent overfishing and ensure 
that the stock rebuilding objective of the FMP is achieved. Although 
the regulatory text for the tilefish permitting requirements was set 
aside by the Court Order, NMFS never formally removed these regulations 
from 50 CFR part 648. Therefore, this final rule does not contain any 
new regulatory language to reinstate the permit requirements.

Comments and Responses

    The comment period on the proposed rule ended March 12, 2004. Two 
comments were received.
    Comment 1: The commenter suggested that the stock rebuilding 
schedule for the FMP should have been developed with a lower initial 
TAL and should have included quota reductions every year thereafter. In 
addition, the quota allocated for the Full-Time Tier 1 category should 
be reduced by 60 percent and that any research set aside should be 
allocated no more than 0.5 percent of the TAL.
    Response: The tilefish stock rebuilding schedule was implemented to 
provide a constant harvest strategy that would significantly reduce 
fishing mortality every year throughout the 10-year rebuilding time 
frame. This schedule has at least a 50-percent probability of 
rebuilding the stock within the rebuilding time frame. This rebuilding 
strategy fully complies with the Magnuson-Stevens Act. The quota 
allocated to various limited access permit categories reflects the 
percentage of the overall tilefish landings from 1988 through 1998 by 
vessels qualifying for each permit category. This management scheme was 
adopted by the Council and later approved by the Secretary. The final 
rule implementing the FMP incorporated the provisions contained in the 
Council's omnibus Framework Adjustment 1 (66 FR 42156; August 10, 
2001), which allowed the Council to recommend a research set aside 
(RSA) up to 3 percent of the yearly tilefish TAL. The Council's 
recommendation, and the RSA ultimately implemented by NMFS, provided a 
means to compensate valuable research, the results of which will accrue 
to the benefit of the tilefish resource and those dependent on it.
    Comment 2: The commenter supported reinstating the tilefish permit 
categories, but contested the percentage of the quota allocated to the 
limited access permit categories in the FMP. The commenter alleged that 
the percentages do not reflect the historical landings of the current 
participants in each permit category. The commenter suggested that the 
Council should reassess the basis used to calculate the allocation 
percentages for the limited access permit categories.
    Response: The Court Order set aside the vessel permit requirements 
at Sec.  648.4(a)(12). The only focus of this rule is to reinstate this 
section of the regulations. This comment relates to the percentage of 
the quota that is allocated to the limited access permit categories. 
These percentages are specified at Sec.  648.290. Therefore, this 
comment is outside the scope of this rulemaking. A separate Council 
action, either through a framework adjustment or amendment to the FMP, 
and rulemaking by NMFS, would be required to modify the percentage of 
the quota allocated to the limited access permit categories.

Changes From the Proposed Rule

    In Sec.  648.2, the definition for ``Fishing year'' is revised to 
include the fishing year for the tilefish fishery by including the 
phrase, ``For the tilefish fishery, from November 1 through October 31 
of the following year.''
    In Sec.  648.4(a)(12)(ii), the reference to the regulations 
specifying the tilefish trip limits contained at Sec.  648.252 is 
revised to read Sec.  648.292 to correct this reference to the tilefish 
trip limit regulations.

Classification

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    Included in this final rule is the Final Regulatory Flexibility 
Analysis (FRFA) that contains the items required by 5 U.S.C. 604(a). 
The FRFA consists of the Initial Regulatory Flexibility Analysis 
(IRFA), the comments and responses to the proposed rule, and the 
analyses completed in support of this action. A copy of the IRFA is 
available from the Council (see ADDRESSES).
    The preamble to the proposed rule included a detailed summary of 
the analyses contained in the IRFA, and that discussion is not repeated 
in its entirety here.

Final Regulatory Flexibility Analysis

Statement of Objective and Need

    A description of the reasons why this action is being considered, 
and the objectives of and legal basis for this action are contained in 
the preamble to the proposed rule and are not repeated here.

Summary of Significant Issues Raised in Public Comments

    Comments received prior to the close of the comment period for the 
proposed rule focused on the measures contained within the proposed 
rule and did not reference the analysis contained in the IRFA or the 
economic impacts of the rule. For a summary of the comments received, 
refer to ``Comments and Responses'' in the preamble of this final rule.

[[Page 22456]]

Description and Estimate of the Number of Small Entities to Which the 
Rule Will Apply

    A description and estimate of the number of small entities to which 
the rule will apply is provided in the IRFA and IRFA summary contained 
in the Classification section of the proposed rule and is only 
summarized here.
    The universe of vessels impacted by this action are those vessels 
that qualified for a limited access permit under the requirements 
established in the FMP, and those vessels that hold an incidental 
tilefish permit. A total of 32 vessels qualified for limited access 
permits under the limited access criteria established in the FMP. In 
addition, there are currently 1,650 vessels that held an open access 
Incidental tilefish permit prior to the Court Order. However, vessels 
have not been required to obtain any Federal permit to land tilefish 
since the Court Order. Therefore, a precise assessment of the number of 
vessels landing tilefish as incidental catch is not possible at this 
time. All of the affected businesses (fishing vessels) are considered 
small entities under the standards described by the Small Business 
Administration.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    There are no recordkeeping, reporting, or other compliance costs 
forthcoming from this action.

Steps Taken to Minimize Economic Impacts on Small Entities

    Management measures contained in this action would not alter the 
determinations made in the FEIS and described in the FMP. Section 4.9.3 
of the FMP provides an analysis of the economic impacts resulting from 
the various quota alternatives and limited entry alternatives 
considered in the FMP. The FMP considered six limited entry 
alternatives as a means of controlling effort in the tilefish fishery. 
Each of these alternatives consisted of at least two different limited 
access categories, Full-time and Part-time, having different qualifying 
criteria. The alternatives are summarized as follows:
    Option 1: Part-time - At least 10,000 lb (4,536 kg) in 1year 1988-
1993, and at least 10,000 lb (4,536 kg) in 1 year between 1994-1998; 
Full-time - At least 50,000 lb (22,680 kg) in 1 year 1988-1993, and at 
least 25,000 lb (11,340 kg) per year for 2 years during 1994-1998.
    Option 2: Part-time - Same as Option 1; Full-time, Tier 1 - At 
least 250,000 lb (113,400 kg) per year for 3 years between 1993-1998, 
and at least 1 lb (0.45 kg) of tilefish landed prior to the June 15, 
1993, control date; Full-time, Tier 2 - At least 30,000 lb (13,608 kg) 
per year for 3 years 1993 and 1998, and at least 1 lb (0.45 kg) of 
tilefish landed prior to the June 15, 1993, control date.
    Option 3: Part-time - At least 10,000 lb (4,536 kg) in 1 year 
between 1988 and June 15, 1993; Full-time - Same as Option 1.
    Option 4: Part-time - Same as Option 3; Full-time - At least 50,000 
lb (22,680 kg) in 1 year between 1988 and June 15, 1993.
    Option 5: Part-time - At least 10,000 lb (4,536 kg) in 1 year 
between 1977 and June 15, 1993; Full-time - At least 50,000 lb (22,680 
kg) in 1 year between 1977 and June 15, 1993.
    Option 6: Part-time - Same as Option 1, or 28,000 lb (12,701 kg) in 
1 year between 1984 and 1993; Full-time, Tier 1 - Same as Option 2; 
Full-time, Tier 2 - Same as Option 2.
    The Council's preferred alternative was Option 6, which was made 
effective through the final rule implementing the FMP. This final rule 
reinstates Option 6. This action minimizes the economic impacts of the 
overall TAL established in the FMP by dividing the TAL among the 
vessels that qualify under each limited access category. This enables 
those vessels that are dependent on the tilefish fishery (those vessels 
in the Full-time, Tier 1 category) to continue to harvest their share 
of the annual TAL in a manner that maximizes their total revenues. 
Furthermore, by maintaining the incidental catch limit of 5 percent of 
the yearly TAL and by distributing the remaining 2004 tilefish TAL 
among the limited access vessels as specified above, any increase in 
incidental tilefish landings resulting from the Court Order will not 
affect the ability of limited access vessels to land their portion of 
the yearly TAL.
    If the limited entry program were not reinstated, those vessels 
that are dependant on the tilefish resource would be faced with the 
uncertainty of when the overall quota would be harvested, forcing them 
to fish in a manner that would not maximize their total revenues. 
Furthermore, in the absence of a limited entry program, a derby fishery 
for tilefish could occur. A derby fishery could result in large 
quantities of tilefish entering the market, reducing the price received 
by the vessel, and reducing total revenues. A derby fishery would also 
increase safety concerns.

Small Entity Compliance Guide

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

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: April 20, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 648 is amended as 
follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

0
1. The authority citation for part 648 continues to read as follows:

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

0
2. In Sec.  648.2, the definition for ``Fishing year'' is revised to 
read as follows:


Sec.  648.2  Definitions.

* * * * *
    Fishing year means:
    (1) For the Atlantic sea scallop and Atlantic deep-sea red crab 
fisheries, from March 1 through the last day of February of the 
following year.
    (2) For the NE multispecies, monkfish and skate fisheries, from May 
1 through April 30 of the following year.
    (3) For the tilefish fishery, from November 1 through October 31 of 
the following year.
    (4) For all other fisheries in this part, from January 1 through 
December 31.
* * * * *

0
3. In Sec.  648.4, paragraph (a)(12)(ii) is revised to read as follows:


Sec.  648.4  Vessel permits.

    (a) * * *
    (12) * * *
    (ii) Tilefish incidental catch permit. A vessel of the United 
States that is subject to these regulations and that has not been 
issued a limited access tilefish

[[Page 22457]]

permit is eligible for and may be issued a tilefish incidental catch 
permit to possess or land tilefish in or from the tilefish management 
unit. Such vessel is subject to the restrictions in Sec.  648.292.
* * * * *
Sec.  648.14 [Amended]

0
4. In Sec.  648.14, paragraph (cc)(6) is removed and reserved.
Sec.  648.294 [Removed and reserved]

0
5. Section 648.294 is removed and reserved.
[FR Doc. 04-9438 Filed 4-23-04; 8:45 am]
BILLING CODE 3510-22-S