[Federal Register Volume 74, Number 94 (Monday, May 18, 2009)]
[Proposed Rules]
[Pages 23147-23166]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-11540]


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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.

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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 [email protected], 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 Magnuson-Stevens 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

[[Page 23148]]

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 x 0.66 x 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

[[Page 23149]]

historically been used to calculate total landings for the purposes of 
setting an initial quota allocation, the Council decided to use IVR 
data beginning with 2002 landings to determine the initial tilefish IFQ 
Allocations.
    The rationale for this decision is that: (1) Landings reported via 
the IVR system were being used to monitor the tilefish quota during the 
2002-2005 time period; (2) there were a significant number of 
documented fishing trips in the IVR that were not reported in the 
dealer data system, particularly for Full-time Tier 1 vessels that sold 
predominantly to a single dealer (especially in 2004 and 2005); and (3) 
the Council did not 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 Sec.  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 ex-vessel 
landings value to pay a cost-recovery 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 sub-lease 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

[[Page 23150]]

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 cost-recovery 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 cost-recovery 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 
cost-recovery bill to each IFQ Allocation permit holder for the IFQ 
cost-recovery fee incurred by that IFQ Allocation permit holder for the 
previous cost-recovery billing period. 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 cost-recovery 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

[[Page 23151]]

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.

----------------------------------------------------------------------------------------------------------------
                                                                        N. Lat.                  W. Long.
                            Canyon                             -------------------------------------------------
                                                                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
----------------------------------------------------------------------------------------------------------------

[[Page 23152]]

 
                                                                  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 low-
value 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 non-existent. Therefore, this 
is an opportune time to prohibit commercial discards.
D. Monitoring of Tilefish Commercial Landings
    The management unit for this FMP is defined as all golden tilefish 
under U.S.

[[Page 23153]]

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 Sec.  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 Sec.  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 over-capitalization 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 Cost-recovery Fees - 2 hr per response;
    7. Additional IFQ Reporting Requirements - 2 min per response.
    These estimates include the time for reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed, and completing and reviewing the collection of information.
    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 [email protected] 
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 (Full-time, 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

[[Page 23154]]

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 x 
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 x 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 x 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 cost-recovery payment. Using the burden per response used 
by the NMFS Alaska Region's Individual Fishing Quota Cost-Recovery 
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 
cost-recovery payment once annually. Assuming that there are 13 
tilefish IFQ Allocation permit holders, the burden hour estimate is 26 
hr (13 x 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 Full-time 
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 x 19 x 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

[[Page 23155]]

other areas. As such, the lost revenue estimates represent a worst case 
prediction of the anticipated loss in ex-vessel revenues that would 
result from closing this area to bottom 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 Non-
Selected 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 Full-time Tier 2 categories have forced early closures in recent 
years. The proposed IFQ program would eliminate the derby-style 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 Full-time 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 
set-asides, incidental catch, and prior year overages) to individual 
fishermen. Overall tilefish prices are not expected to change 
significantly, and the overall landings are likely to remain constant 
under the current rebuilding scheme. However, it is likely that Part-
time vessels qualifying for IFQ Allocations may spread their landings 
throughout the year (to avoid the current derby-style 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 Part-time vessels, it is expected that Part-time 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

[[Page 23156]]

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 long-run, 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

[[Page 23157]]

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 ex-vessel 
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 
cost-recovery 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 (pre-printed 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 trip-by-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

[[Page 23158]]

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

[[Page 23159]]

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 no-action 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[deg]00 W. long. and 39[deg]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[deg]00'W. 
long. and 39[deg]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 self-reported, there could be errors in the spatial information or 
reported data resulting from inaccurate reporting, unclear handwriting, 
or errors in transcribing the written information. Potential losses in 
ex-vessel revenue could be as high as $18.3 million (when compared to 
2005 fishing opportunities) if 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 ex-vessel 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 Sec.  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:


Sec.  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, non-hydraulic 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.
* * * * *

[[Page 23160]]

    Lessee means: (1) A vessel owner who receives temporarily 
transferred NE multispecies DAS from another vessel through the DAS 
Leasing Program specified at Sec.  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 Sec.  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 Sec.  648.82(k); or
    (2) An IFQ Allocation permit holder who temporarily transfers 
tilefish IFQ Allocation, as specified at Sec.  648.291(e)(1).
* * * * *
     3. In Sec.  648.4, paragraph (a)(12) is revised to read as 
follows:


Sec.  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 Sec.  648.291, to possess, or land tilefish in 
excess of the trip limit as specified under Sec.  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 Sec.  648.295 and the 
prohibition on sale.
    (ii) [Reserved]
* * * * *
    4. In Sec.  648.7, paragraph (b)(2)(ii) is revised to read as 
follows:


Sec.  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 Sec.  648.291(a), must submit a tilefish catch report by 
using the IVR system within 48 hr after returning to port and 
offloading. The report shall include at least the following 
information, and any other information required by the Regional 
Administrator: Vessel identification, trip during which tilefish are 
caught, pounds landed, VTR pre-printed serial number, and the federal 
dealer number for the dealer who purchases the tilefish. IVR reporting 
does not exempt the owner or operator from other applicable reporting 
requirements of this section.
* * * * *
    5. In Sec.  648.14, paragraph (u) is revised as follows:


Sec.  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 Sec.  648.293, 
without a valid tilefish IFQ Allocation permit, as specified in Sec.  
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 Sec.  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 Sec.  648.4(a)(12)(i).
     (v) Fish for golden tilefish inside and outside of the Tilefish 
Management Unit, as defined in Sec.  648.2, on the same trip.
     (vi) Discard tilefish harvested in or from the Tilefish Management 
Unit, as defined in Sec.  648.2, unless participating in recreational 
fishing, as defined in Sec.  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 Sec.  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 Sec.  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 Sec.  648.290, the section heading, and paragraphs (b) and 
(c) are revised to read as follows:


Sec.  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

[[Page 23161]]

Allocation permits pursuant to Sec.  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 
Sec.  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:


Sec.  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 
Sec.  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 Sec.  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 Sec.  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

[[Page 23162]]

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

[[Page 23163]]

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 Sec.  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 cost-recovery billing period is 
defined as the full calendar year, beginning with the start of the 
first calendar year following the effective date of the final 
regulations. NMFS will create an annual IFQ allocation bill, for each 
cost-recovery 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 cost-
recovery 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 cost-recovery 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 cost-recovery fee bill. Electronic payment options shall 
include payment via a credit card, as specified in the cost-recovery 
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 cost-recovery 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

[[Page 23164]]

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:


Sec.  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:


Sec.  648.293  Tilefish trip limits.

    Any vessel of the United States fishing under a tilefish permit, as 
described at Sec.  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 Sec.  
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:


Sec.  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

[[Page 23165]]

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:


Sec.  648.295  Recreational possession limit.

    Any person fishing from a vessel that is not fishing under a 
tilefish vessel permit issued pursuant to Sec.  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:


Sec.  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:

----------------------------------------------------------------------------------------------------------------
                                                                        N. Lat.                  W. Long.
                            Canyon                             -------------------------------------------------
                                                                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
----------------------------------------------------------------------------------------------------------------


[[Page 23166]]

[FR Doc. E9-11540 Filed 5-15-09; 8:45 am]
BILLING CODE 3510-22-S