[Federal Register Volume 75, Number 195 (Friday, October 8, 2010)]
[Rules and Regulations]
[Pages 62326-62329]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-25437]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 100330171-0388-02]
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: Final rule.

-----------------------------------------------------------------------

SUMMARY: NMFS amends 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 cancel 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: This final rule is effective November 8, 2010.

ADDRESSES: Copies of the Regulatory Impact Review prepared for this 
action may be obtained from Michael A. Sturtevant, Financial Services 
Division, NMFS-MB5, 1315 East-West Highway, Silver Spring, MD 20910.
    Send comments regarding the burden-hour estimates or other aspects 
of the collection-of-information requirements contained in this rule to 
Michael A. Sturtevant at the above address 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.

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 http://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

[[Page 62327]]

fishing capacity reduction loans have been codified at 46 U.S.C. Sec.  
53735.
    This action amends subpart L to 50 CFR part 600 to implement the 
Magnuson-Stevens Fishery Conservation and Management Reauthorization 
Act (Pub. L. 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, 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 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.
    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 amends the referendum procedure 
accordingly.
    On June 14, 2010, NMFS published proposed regulations in the 
Federal Register (75 FR 33570) to implement the program's industry fee 
system. This final rule implements the changes as originally proposed 
and will be effective on November 8, 2010.

III. Summary of Comments and Responses

    NMFS received four comments in response to the proposed rule. Three 
were from individuals and one from the U.S. Department of the Interior 
(DOI). DOI reviewed the proposed rule and acknowledged that because it 
addresses the framework process it would not have any immediate effect 
on National Park Service fishery resources.
    Comment 1: The commenter expressed concern about the potential 
Southeast Alaska Purse Seine Salmon Buyback Program, specifically that 
future comment periods be open when stakeholders are available to 
participate.
    Response: This action affects the framework buyback rule. Each 
specific buyback program undergoes a separate rulemaking process. NMFS 
strives to get the most public input possible. Thus, for an individual 
fishery program with a finite season, NMFS would attempt to avoid 
holding open public comment periods solely while the fleet is fishing.
    Comment 2: The commenter expressed concern about charter boat 
participation in a buyback program.
    Response: This rule implements changes to the existing buyback 
framework rule. The framework rule establishes parameters for 
developing a buyback program for commercial fisheries. It does not 
apply to the charter fishing industry.
    Comment 3: The commenter expressed concern about future rule making 
and claimed that many of the vessels in question were built using tax 
payer money and implied that the government paying to scrap them was 
inefficient. The commenter also expressed concern about the 
implications of this action on small fishing entities and harbor based 
communities.
    Response: NMFS notes that this rule implements changes to the 
existing buyback framework rule. The framework provides a process to 
implement fishing capacity reduction programs which remove fishing 
permits and may or may not remove fishing vessels. This action does not 
directly remove any fishing permits or vessels. Specific rulemaking for 
each fishery would be necessary before a program could be implemented. 
NMFS would consider any impacts on such fishing at that time.
    Comment 4: The commenter expressed concern about the environmental 
impacts of fishing trawlers and other gear upon the ocean bottom and 
suggested that fishing capacity reduction programs be restricted to 
certain gear types.
    Response: This action only addresses the buyback framework rule 
process. This comment may be appropriate and relevant to the 
development of a specific fishing capacity reduction program in an 
individual fishery and would be considered when such programs are 
developed.
    Comment 5: The commenter expressed concern that fishing capacity 
reduction programs could increase the proliferation of fish farms which 
would cause negative environmental impacts.
    Response: This action affects the framework buyback rule and will 
not directly impact any fishery. Each specific buyback program 
undergoes a separate rulemaking process and consideration of 
environmental impacts at that time, which may include the impacts of 
aquaculture.
    Comment 6: The commenter expressed concerns that the Regulatory 
Flexibility Act considerations were insufficient and that small 
entities would be adversely affected.

[[Page 62328]]

    Response: NMFS disagrees. 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. Each program will be 
individually evaluated and analyzed at the appropriate time including 
its impact on small businesses. The Chief Counsel for Regulation of the 
Department of Commerce certified to the Chief Counsel for Advocacy of 
the Small Business Administration that this will not have a significant 
economic impact on a substantial number of small entities.

IV. Summary of Revisions

    NMFS revises the following sections of the regulations of subpart L 
to 50 CFR part 600:
    (1) Section 600.1000. This section is revised to amend the 
definition of ``Requester'' to include the majority of permit holders 
in a fishery.
    (2) Section 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) Section 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) Section 600.1009(a)(5)(ii). This section is revised to clarify 
title restrictions on any reduction vessel that is not scrapped.
    (5) Section 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.

V. Classification

    The Administrator for Fisheries, NMFS, determined that this rule is 
consistent with the Magnuson-Stevens Act, the Magnuson-Stevens 
Reauthorization Act (Pub. L. 109-479), and other applicable laws.
    The 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 pursuant to Executive Order 12866. NMFS prepared a 
Regulatory Impact Review which is available upon request (see 
ADDRESSES).
    Section 605 of the Regulatory Flexibility Act (RFA) provides that 
if an agency determines that a rule will not have a significant impact 
on a substantial number of small entities, it may certify that finding 
to the Small Business Administration in lieu of preparing an analysis. 
Although one commenter expressed concern that the RFA considerations 
were insufficient and small entities would be adversely affected, NMFS 
disagrees. 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. Each program will be individually evaluated and 
analyzed at the appropriate time including its impact on small 
businesses. The Chief Counsel for Regulation of the Department of 
Commerce certified to the Chief Counsel for Advocacy of the Small 
Business Administration that this will not have a significant economic 
impact on a substantial number of small entities.
    This final 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 final 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: October 5, 2010.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, NMFS amends 50 CFR part 600 as 
follows:

PART 600--MAGNUSON-STEVENS ACT PROVISIONS

0
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.


0
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.
* * * * *

0
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.
* * * * *

0
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.

[[Page 62329]]


0
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.
* * * * *

0
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. 2010-25437 Filed 10-7-10; 8:45 am]
BILLING CODE 3510-22-P