[Federal Register Volume 75, Number 113 (Monday, June 14, 2010)]
[Proposed Rules]
[Pages 33570-33572]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-14246]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 600
[Docket No. 100330171-0232-01]
RIN 0648-AY79
Magnuson-Stevens Act Provisions; Fishing Capacity Reduction
Framework
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 amendments to the framework regulations
specifying procedures for implementing fishing capacity reduction
programs (reduction programs) in accordance with the Magnuson-Stevens
Fishery Conservation and Management (Magnuson-Stevens) Reauthorization
Act of 2007. A reduction program pays harvesters in a fishery that has
more vessels than capacity either to surrender their fishing permits
including relevant fishing histories for that fishery, or surrender all
their fishing permits and cancelling their fishing vessels= fishing
endorsements by permanently withdrawing the vessel from all fisheries.
The cost of the program can be paid by post-reduction harvesters,
taxpayers, or others. The intent of a program is to decrease the number
of harvesters in the fishery, increase the economic efficiency of
harvesting, and facilitate the conservation and management of fishery
resources in each fishery in which NMFS conducts a reduction program.
DATES: Comments must be received by July 29, 2010.
ADDRESSES: You may submit comments, identified by 0648-AY79, by either
of the following methods:
Electronic Submission: Submit all electronic public comments via
the Federal eRulemaking Portal http://www.regulations.gov; or
Mail: Michael A. Sturtevant, Financial Services Division, NMFS-MB5,
1315 East-West Highway, Silver Spring, MD 20910.
Instructions: Comments will be posted for public viewing after the
comment period has closed. 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). You may submit attachments to
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF
file formats only.
Send comments regarding the burden-hour estimates or other aspects
of the collection-of-information requirements contained in this
proposed rule to Michael A. Sturtevant at the address specified above
and also to the Office of Information and Regulatory Affairs, Office of
Management and Budget (OMB), Washington, DC 20503 (Attention: NOAA Desk
Officer) or e-mail to [email protected], or fax to (202) 395-
7825. Copies of the Initial Regulatory Flexibility Analysis (IRFA) and
Regulatory Impact Review prepared for this action may be obtained from
Michael A. Sturtevant at the above address.
FOR FURTHER INFORMATION CONTACT: Michael A. Sturtevant at 301-713-2390
or [email protected].
SUPPLEMENTARY INFORMATION:
Electronic Access
This Federal Register document is also accessible via the Internet
at www.gpoaccess.gov/fr.
I. Statutory and Regulatory Background
Many U.S. fisheries have excess fishing capacity. Excess fishing
capacity decreases earnings, complicates management, and imperils
conservation. To provide for fishing capacity reduction programs, in
1996 Congress amended the Magnuson-Stevens Fishery Conservation and
Management Act (Magnuson-Stevens Act) by adding section 312(b)-(e) (16
U.S.C. 1861a(b)-(e)). The framework regulations to conduct these
reduction programs were published as an interim final rule on May 18,
2000 (65 FR 31430) and codified as subpart L to 50 CFR part 600. To
finance reduction costs, Congress amended Title XI of the Merchant
Marine Act, 1936 (Title XI), by adding new sections 1111 and 1112. The
Title XI provisions involving fishing capacity reduction loans have
been codified at 46 U.S.C. 53735.
This action proposes to amend subpart L to 50 CFR part 600 to
implement the Magnuson-Stevens Fishery Conservation and Management
Reauthorization Act (Public Law 109-479) amendments for requesting and
conducting fishing capacity reduction programs.
II. Magnuson-Stevens Reauthorization Act Changes
The Magnuson-Stevens Reauthorization Act requires several
modifications to the framework regulations.
First, the Magnuson-Stevens Reauthorization Act contained a
provision that states that, in addition to the appropriate fishery
management Council or Governor of a State, a majority of permit holders
in the fishery may request a buyback program. Such a program may be
conducted if the Secretary determines that the program is necessary to
prevent or end overfishing, rebuild stocks of fish, or achieve
measurable and significant improvements in the conservation and
management of the fishery. As a result of this change, NMFS is amending
the definition of ``Requester@ and the regulations outlining the
process for submission requests to allow permit holders, if they
constitute a majority, to request a buyback program.
Second, the Magnuson-Stevens Reauthorization Act clarified that a
permit holder relinquishes any future limited access system claims
associated with the permit or vessel participating in a reduction
program and that (if not scrapped) the vessel will be effectively
prevented from fishing in Federal or state waters, or fishing on the
high seas or in the waters of a foreign nation. The Magnuson-Stevens
Reauthorization Act revised section 312(b)(2)(A) to recognize that the
owner of a fishing vessel may be different from the permit holder. As a
result of this change, NMFS is amending the regulations to require
that, along with surrendering the permit authorizing the participation
of the vessel in the fishery, for permanent revocation, both the vessel
owner and the permit holder, if different from the vessel owner,
relinquish any claim associated with the vessel or permit that could
qualify such owner or permit holder for any present or future limited
access system permit in the fishery for which the program is
established or in any other fishery.
Third, the Magnuson-Stevens Reauthorization Act added Section
312(b)(5) regarding payment conditions stating that if a vessel is not
scrapped,
[[Page 33571]]
the Secretary of Commerce (Secretary) must certify that the vessel will
not be used for fishing in the waters of a foreign nation or fishing on
the high seas. As a result of this change, NMFS is amending the
regulations so that the Secretary must make such certification before
making payment. Because each program is so different, and would need to
include fishery-specific information and requirements, NMFS is not
proposing at this time specific details that must be included in the
certification plans, but will provide the requirements for the
certification process on a case-by-case basis for each reduction
fishery program when the regulations for that program is published in
the Federal Register.
Although NMFS is not proposing a certification process in this
rulemaking, NMFS solicits comments on whether harvester proponents who
do not wish to scrap buyback vessels should develop and provide as part
of their plan, a clearly outlined plan to help track and monitor the
vessels in order to be granted certification by the Secretary under
Section 312(b)(5) of the Magnuson-Stevens Reauthorization Act.
NMFS desires to minimize the potential for post buyback misuse of
vessels as contract obligations by some buyback participants have been
breached in the past. In cases where vessels are sold, new owners have
violated the spirit and the letter of the statute and regulations in
the use of the buyback vessel. In addition, even if the vessels are not
sold after reduction payment is tendered, some vessel owners do not
maintain proper documentation of their vessel with the Coast Guard
which makes tracking the proper use of the vessel nearly impossible.
Additionally, some vessel owners have abandoned their vessels. In some
cases, this has caused environmental damage, created abandonment
issues, and/or forfeiture proceedings.
NMFS believes that the burden of tracking and monitoring of
reduction vessels should fall on the owner of the vessel, and not NOAA,
other Federal agencies, or the taxpayers. Monitoring and tracking
vessels whose fisheries endorsement has been cancelled is simply not
budgeted for in the NMFS, NOAA, Commerce, or Coast Guard annual
budgets. Therefore, any action that is taken by NMFS or other agencies
to identify, track, enforce rules, or correct any problems created by
vessels that are not scrapped cannot be undertaken with ease, and
without substantial cost of taxpayer dollars, either through direct
tracking and enforcement, or through re-tasking limited government
resources. For these reasons, NMFS solicits comments on the submission
of a clearly outlined plan to help track and monitor the vessels in
order to be granted certification by the Secretary under Section
312(b)(5) of the Magnuson-Stevens Reauthorization Act.
Fourth, the Magnuson-Stevens Reauthorization Act also changed the
approval threshold for the capacity reduction referendum. The
reauthorized Act now states that a fee system shall be considered
approved if the referendum votes which are cast in favor of the
proposed system constitute ``at least a majority of the permit holders
in the fishery, or 50 percent of the permitted allocation of the
fishery, who participate in the fishery''. Previously, a referendum was
approved with a two-thirds majority of the participating voters. As a
result of this amendment, NOAA is proposing to amend its regulations
that discusses the referendum procedure to implement this change.
III. Summary of Revisions
NMFS proposes to revise the following sections of the regulations
of subpart L to 50 CFR part 600 with this proposed action:
(1) Sec. 600.1000. This section is revised to amend the definition
of ``Requester'' to include the majority of permit holders in a
fishery.
(2) Sec. 600.1001(a). This section is amended to provide for
authority that a majority of permit holders in the fishery may initiate
a voluntary fishing capacity reduction program.
(3) Sec. 600.1002(c). This new provision states the Secretary may
not make a fishing capacity reduction program payment with respect to a
reduction vessel that will not be scrapped unless the Secretary
certifies that the vessel will not be used for fishing in the waters of
the U.S., a foreign nation, or on the high seas.
(4) Sec. 600.1009(a)(5)(ii). This section is revised to clarify
title restrictions on any reduction vessel that is not scrapped.
(5) Sec. 600.1010(a). This section is revised to reflect the new
industry fee system approval threshold to at least a majority of the
permit holders in the fishery who participated in the fishery.
IV. Classification
The Administrator for Fisheries, NMFS, determined that this
proposed rule is consistent with the Magnuson-Stevens Act, the
Magnuson-Stevens Reauthorization Act (Public Law 109-479), and other
applicable laws.
The proposed revisions to the framework regulations do not propose
any major new programs. The framework modifications implemented by this
rule impact only the process under which fishery capacity reduction
programs are created and implemented, and would not directly implement
changes to specific fisheries. Therefore, the rulemaking does not lend
itself to quantitative or qualitative analysis. For example, the
analysis of impacts on vessels, vessel revenues, port revenues, fish
stock impacts, etc. are not possible in the absence of identifying
specific fisheries and buyback program fishery components. Each
individual program will be implemented through the rulemaking process
in accordance with 5 U.S.C. 553, and thus, each program will be
individually evaluated and appropriately analyzed under NEPA at the
appropriate time. This action is categorically excluded from the
requirement to prepare an environmental assessment in accordance with
NOAA Administrative Order (NAO) 216-6.
The Office of Management and Budget determined that this proposal
is not significant under Executive Order 12866. NMFS prepared a
Regulatory Impact Review which is available upon request (see
ADDRESSES).
The Regulatory Flexibility Act (RFA), first enacted in 1980, was
designed to place the burden on the government to review all
regulations to ensure that, while accomplishing their intended
purposes, they do not unduly inhibit the ability of small entities to
compete. The RFA recognizes that the size of a business, unit of
government, or nonprofit organization frequently has a bearing on its
ability to comply with a Federal regulation. The major goals of the RFA
are: (1) to increase agency awareness and understanding of the impact
of their regulations on small business, (2) to require that agencies
communicate and explain their findings to the public, and (3) to
encourage agencies to use flexibility and to provide regulatory relief
to small entities.
The RFA emphasizes predicting significant adverse impacts on small
entities as a group distinct from other entities and on the
consideration of alternatives that may minimize the impacts while still
achieving the stated objective of the action. When an agency publishes
a proposed rule, it must either 'certify' that the action will not have
a significant adverse impact on a substantial number of small entities,
and support that certification with the ``factual basis'' for the
decision; or it must prepare and make available for public review an
Initial Regulatory Flexibility Analysis that describes the impact of
the proposed rule on small entities. When an agency publishes a
[[Page 33572]]
final rule, it must prepare a Final Regulatory Flexibility Analysis.
Section 605 of the RFA allows an agency to certify a rule, in lieu
of preparing an analysis, if the proposed rulemaking is not expected to
have a significant economic impact on a substantial number of small
entities. The framework modifications implemented by this rule impact
only the process under which fishery capacity reduction programs are
created and implemented, and would not directly implement changes to
specific fisheries. Therefore, the rulemaking does not lend itself to
quantitative or qualitative analysis. Each individual program will be
implemented through the rulemaking process in accordance with 5 U.S.C.
553, and thus, each program will be individually evaluated and analyzed
at the appropriate time including its impact on small businesses.
Therefore, the Chief Counsel for Regulation of the Department of
Commerce certifiedto the Chief Counsel for Advocacy of the Small
Business Administration that this proposed rule, if adopted, would not
have a significant economic impact on a substantial number of small
entities.
This proposed rule does not contain any new collection of
information requirements subject to the PRA. The estimates of the
public reporting burden that have been previously approved by OMB,
under OMB Control No. 0648-0376 remain valid. Send comments regarding
the collection of information requirements contained in this proposed
rule, including the burden hour estimates, and suggestions for reducing
the burdens to NMFS (see ADDRESSES) and to OMB (see ADDRESSES).
Notwithstanding any other provision of law, no person is required
to respond to, nor shall any person be subject to a penalty for failure
to comply with, a collection of information subject to the requirements
of the Paperwork Reduction Act (PRA) unless that collection of
information displays a currently valid OMB control number.
List of Subjects in 50 CFR Part 600
Fisheries, Fishing capacity reduction, Fishing permits, Fishing
vessels, Intergovernmental relations, Loan programs-business, Reporting
and recordkeeping requirements.
Dated: June 8, 2010.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, NMFS proposes to amend 50
CFR part 600 as follows:
1. The authority citation for 50 CFR part 600 continues to read as
follows:
Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 et seq.
PART 600--MAGNUSON-STEVENS ACT PROVISIONS
2. In Sec. 600.1000, the definition of ``Requester'' is revised to
read as follows:
Sec. 600.1000 Definitions.
* * * * *
Requester means a Council for a fishery identified in Sec.
600.1001(c) or a state governor for a fishery identified in Sec.
600.1001(d), or a majority of permit holders in the fishery.
* * * * *
3. In Sec. 600.1001, paragraph (a) is revised to read as follows:
Sec. 600.1001 Requests.
(a) A Council, the Governor of a State under whose authority a
proposed reduction fishery is subject, or a majority of permit holders
in the fishery may request that NMFS conduct a program in that fishery.
Each request shall be in writing. Each request shall satisfy the
requirements of Sec. 600.1003 or Sec. 600.1005, as applicable, and
enable NMFS to make the determinations required by Sec. 600.1004 or
Sec. 600.1006, as applicable.
* * * * *
4. In Sec. 600.1002, paragraph (c) is added to read as follows:
Sec. 600.1002 General requirements.
* * * * *
(c) The Secretary may not make a fishing capacity reduction program
payment with respect to a reduction vessel that will not be scrapped
unless the Secretary certifies that the vessel will not be used for
fishing in the waters of the U.S., a foreign nation, or on the high
seas.
5. In Sec. 600.1009, paragraph (a)(5)(ii) is revised to read as
follows:
Sec. 600.1009 Bids.
(a) * * *
(5) * * *
(ii) Where the program also involves the withdrawal of reduction
vessels from fishing:
(A) Title restrictions imposed by the U.S. Coast Guard on any
reduction vessel that is Federally documented to forever prohibit and
effectively prevent any future use of the reduction vessel for fishing:
(1) In any area subject to the jurisdiction of the United States,
or any state, territory, commonwealth, or possession of the United
States, or
(2) On the high seas, or
(3) In the waters of a foreign nation; or
(B) Scrapping of all reduction vessels involved in a fishing
capacity reduction program, unless the reduction program vessel has
been certified by the Secretary, and the requirements established under
Sec. 600.1002(c) are met. Where reduction vessel scrapping is involved
and the reduction vessel's owner does not comply with the owner's
obligation under the reduction contract to scrap the reduction vessel,
the Secretary may take such measures as necessary to cause the
reduction vessel's prompt scrapping. The scrapping will be at the
reduction vessel owner's risk and expense. Upon completion of
scrapping, NMFS will take such action as may be necessary to recover
from the reduction vessel owner any cost, damages, or other expense
NMFS incurred in the scrapping of the reduction vessel.
* * * * *
6. In Sec. 600.1010, paragraph (a) is revised to read as follows:
Sec. 600.1010 Referenda.
(a) Referendum success. A referendum is successful if at least a
majority of the permit holders in the fishery who participate in the
fishery cast ballots in favor of an industry fee system.
* * * * *
[FR Doc. 2010-14246 Filed 6-11-10; 8:45 am]
BILLING CODE 3510-22-S