[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