[Federal Register Volume 81, Number 115 (Wednesday, June 15, 2016)]
[Rules and Regulations]
[Pages 38969-38974]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-14087]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 150902808-6451-02]
RIN 0648-BF04
Fisheries of the Northeastern United States; Amendment 17 to the
Atlantic Surfclam and Ocean Quahog Fishery Management Plan
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: This final rule approves and implements management measures
contained in Amendment 17 to the Atlantic Surfclam and Ocean Quahog
Fishery Management Plan. Amendment 17 management measures were
developed by the Mid-Atlantic Fishery Management Council to: Add cost
recovery provisions for the Individual Transferable Quota component of
the fishery; modify how biological reference points are incorporated
into the fishery management plan; and remove the plan's optimum yield
range. These changes are intended to make the management plan
consistent with requirements of the Magnuson-Stevens Act, and to
improve the management of these fisheries.
DATES: This rule is effective July 15, 2016.
ADDRESSES: Copies of Amendment 17 and the Environmental Assessment
(EA), with its associated Finding of No Significant Impact (FONSI) and
the Regulatory Impact Review (RIR), are available from the Mid-Atlantic
Fishery Management Council, 800 North State Street, Suite 201, Dover,
DE 19901. The Amendment 17 EA/FONSI/RIR is also accessible online at:
www.greateratlantic.fisheries.noaa.gov.
FOR FURTHER INFORMATION CONTACT: Douglas Potts, Fishery Policy Analyst,
978-281-9341.
SUPPLEMENTARY INFORMATION:
Background
This final rule concurrently approves Amendment 17 to the Atlantic
Surfclam and Ocean Quahog Fishery Management Plan (FMP) on behalf of
the Secretary of Commerce and finalizes implementing regulations. The
Mid-Atlantic Fishery Management Council developed this amendment to
establish a program to recover the costs of managing the surfclam and
ocean quahog individual transferable quota (ITQ) fisheries, as required
by the Magnuson-Stevens Fishery Conservation and Management Act
(Magnuson-Stevens Act), and to make administrative changes to improve
the efficiency of the FMP. We published a notice of availability on
February 24, 2016 (81 FR 9159), announcing a 60-day period for the
public to review and provide written comments on whether we, acting on
behalf of the Secretary of Commerce, should approve Amendment 17. This
comment period ended on April 25, 2016. On March 16, 2016, we published
a proposed rule (81 FR 14072) to implement the amendment, and solicited
written comments on the proposed rule for a 30-day period, which ended
on April 15, 2016.
We reviewed all comments received during these comment periods,
whether directed at our approval decision or the proposed regulations.
See Comments and Responses section for more information. Now, on behalf
of the Secretary of Commerce, we are approving and implementing
Amendment 17, consistent with the review and approval process outlined
in section 304 of the Magnuson-Stevens Act (16 U.S.C. 1854).
Cost Recovery Program
The Magnuson-Stevens Act requires each limited access privilege
program (LAPP), such as the surfclam/ocean quahog ITQ program, to
include measures to recover the costs of management, data collection
and analysis, and enforcement activities involved with the program.
This action implements a cost recovery program for the surfclam and
ocean quahog ITQ fisheries modeled on the Council's existing cost
recovery program for the Tilefish Individual Fishing Quota (IFQ)
Program.
Under the program, any surfclam or ocean quahog ITQ permit holder
who has quota share (i.e., receives an initial allocation of cage tags
each year) will be responsible for paying a fee at the end of the year.
The fee will be based on the number of the ITQ permit holder's cage
tags that were used to land clams that year. In the first quarter of
each year, the Greater Atlantic Regional Fisheries Office (GARFO) will
announce the fee percentage and the associated per-tag fee for that
year, and distribute this announcement widely, and distribution will
include posting the announcement online and sending it to each ITQ
permit holder. Annual fee information will not be published in the
Federal Register. The fee percentage will be based on the total
recoverable costs from the prior fiscal year, adjusted for any prior
over- or under-collection, divided by the total ex-vessel value of the
fishery. The resulting percentage cannot exceed the 3-percent statutory
maximum. Then NMFS will calculate a per-tag fee based on the total
number of cage tags used to land surfclams or ocean quahogs in the
previous year. This tag fee will be separate from, and in addition to,
the price ITQ permit holders currently pay to the tag vendor to obtain
the physical cage tags each year. If an ITQ permit holder transfers
some or all of his or her cage tags or quota share after the start of
the fishing year, they will still be liable for any cost recovery fee
based on landings of the initial allocation of cage tags.
This process includes an inherent assumption that a similar number
of cage tags will be used each year. While the fishery has been largely
stable over time, many factors (e.g., weather events, market demand,
etc.) may result in the use of more or fewer tags in any given year. As
a result, we fully anticipate that, in some years, we will collect more
or less money than is necessary to recover our costs. Refunding over-
collections and issuing supplemental bills to make up for shortfalls
would increase the cost of administering the fishery, which would
increase the amount charged in bills the following year. To avoid these
additional costs, we will apply any over- or under-collection to our
calculation of recoverable costs and per-tag fees for the following
year. Our communications with ITQ permit holders each year will make
clear that any prior over- or under-collection adjustments will be
incorporated into the following year's cost-recovery billing.
Under the cost recovery program established by this final rule, at
the start of the 2017 calendar year, we will use the total recoverable
costs from the 2016 fiscal year (October 1, 2015, through September 30,
2016) and the total value of the fisheries in the 2016 calendar year
[[Page 38970]]
to calculate fee percentages for both surfclam and ocean quahogs. We
will then use the total number of tags used during the 2016 calendar
year to determine a per-tag fee for the 2017 calendar year.
In early 2018 (most likely February or March) we will issue the
first cost recovery bills based on the previously announced per-tag fee
and the number of cage tags that were used to land surfclams or ocean
quahogs in 2017. At the same time, we will announce the fee percentage
and per-tag fees for the 2018 fishing year. This anticipated timeline
is detailed in Table 1.
Table 1--Surfclam and Ocean Quahog Cost Recovery Implementation Timeline
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Date Anticipated action
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October 2015................................ We began tracking recoverable costs for surfclam and ocean quahog
ITQ fisheries during fiscal year 2016.
March 2017.................................. We will announce the 2017 cost recovery per-tag fee, based on
recoverable costs in fiscal year 2016 and the total number of
cage tags used in calendar year 2016.
March 2018.................................. We will issue a 2017 bill to each ITQ permit holder based on the
previously announced per-tag fee and how many of the ITQ permit
holder's 2017 cage tags were used to land clams.
March 2018.................................. Concurrent with issuing bills for 2017, we will announce the 2018
cost recovery per-tag fee, based on costs in fiscal year 2017
(adjusted for any anticipated over- or under-collection) and the
total number of cage tags used in calendar year 2017.
Subsequent years............................ Each year, we will issue bills for the previous fishing year and
announce the cost recovery per-tag fee for the current fishing
year.
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Cost recovery bills will be due within 30 days of the date of the
bill, and must be paid using the GARFO fishing industry Web site: Fish
Online (www.greateratlantic.fisheries.noaa.gov/apps/login/login). Fish
Online is a secure Web site and we provide a username and password for
individuals to access their accounts. Members of the fishing industry
may use the site to check details about their fishing permit and
landings. The Web page has been used since 2010 to collect cost
recovery payments for the Tilefish IFQ and Limited Access General
Category Scallop IFQ fisheries. Cost recovery bills may be paid with a
credit card or with an account number and routing number from a bank
account, often referred to as an Automated Clearing House or ACH
payment. Once bills are issued, ITQ permit holders will be able to log
onto Fish Online and access the Cost Recovery section. Payments made
through Fish Online are processed using the U.S. Treasury Department's
Pay.gov tool, and no bank account or credit card information is
retained by NMFS. We will not be able to accept partial payments or
advance payments before bills are issued. We do not anticipate that
other payment methods will be accepted, as the current payment system
has been effective for other cost recovery programs. However, other
payment methods may be authorized if the Regional Administrator
determines that electronic payment is not practicable.
The cost recovery program implemented by this final rule includes
procedures in case an ITQ permit holder should fail to pay their cost
recovery bill. If a bill is not paid by the due date, NMFS would issue
a demand letter, formally referred to as an initial administrative
determination. This letter would describe the past-due fee, describe
any applicable interest or penalties that may apply, stipulate a 30-day
deadline to either pay the amount due or submit a formal appeal to the
Regional Administrator, and provide instructions for submitting such an
appeal. If no appeal is submitted by the deadline, the Regional
Administrator would issue a final determination based on the
information already on file. An appeal must be submitted in writing,
allege credible facts or circumstances, and include any relevant
information or documentation to support the appeal. If an appeal is
submitted, the Regional Administrator would appoint an appeals officer
to determine if there is sufficient information to support the appeal
and that all procedural requirements have been met. The appeals officer
would then review the record and issue a recommendation to the Regional
Administrator. The Regional Administrator, acting on behalf of the
Secretary of Commerce, would then review the appeal and issue a written
decision. If the Regional Administrator's final determination (whether
or not there was an appeal) finds that ITQ permit holder is out of
compliance, full payment would be required within 30 days. Following a
final determination, we may also prohibit any transfer of cage tags or
quota share, or renewal of the ITQ permit until full payment, including
any interest or penalties, is received. If full payment is not received
within this final 30-day period as required, we may then refer the
matter to the Department of Treasury for collection.
Each year NMFS will issue a report on the status of the ITQ cost
recovery program. This report will provide details of the recoverable
costs to be collected, the success of previous collection efforts, and
other relevant information.
Biological Reference Points
Under National Standard 1, the Magnuson-Stevens Act requires that
each Council FMP define overfishing as a rate or level of fishing
mortality (F) that jeopardizes a fishery's capacity to produce maximum
sustainable yield (MSY) on a continuing basis, and defines an
overfished stock as a stock size that is less than a minimum biomass
threshold (see 50 CFR 600.310(e)(2)). The Magnuson-Stevens Act also
requires that each FMP specify objective and measurable status
determination criteria (i.e., biological reference points (BRPs)) for
identifying when stocks covered by the FMP are overfished or subject to
overfishing (see section 303(a)(10), 16 U.S.C. 1853). To fulfill these
requirements, status determination criteria are comprised of two
components: (1) A maximum fishing mortality threshold; and (2) a
minimum stock size threshold.
This action modifies how these BRPs are incorporated in the FMP.
Rather than using specific definitions, the FMP will now include broad
criteria to allow for greater flexibility in incorporating changes to
the definitions of the maximum fishing mortality threshold and/or
minimum stock size threshold as the best scientific information becomes
available, consistent with National Standards 1 and 2. The Council has
already adopted this approach in several of its other FMPs, and this
change will make the Surfclam and Ocean Quahog FMP consistent with
these other FMPs. Further details of this change were provided in the
preamble to the proposed rule and are not repeated here.
[[Page 38971]]
Optimum Yield
This action removes the optimum yield ranges (1.85-3.40 million
bushels (98.5 to 181.0 million L) for surfclam, and 4.00-6.00 million
bushels (213.0 to 319.4 million L) for ocean quahog) from the FMP, as
explained in detail in the preamble to the proposed rule. As part of
the normal specifications process, the Council's Scientific and
Statistical Committee will recommend Acceptable Biological Catch
limits, and the Surfclam and Ocean Quahog Advisory Panel will develop
recommendations for commercial quotas, including optimum yield
recommendations. This information will be provided to the Council to
inform its decisions regarding annual catch limits, catch targets, and
commercial harvest quotas.
Corrections and Clarifications
Apart from the management measures in Amendment 17, this action
modifies the Atlantic surfclam and ocean quahog regulations pursuant to
the Secretary's authority under section 305(d) of the Magnuson-Stevens
Act (16 U.S.C. 1855(d)) to ensure that FMPs are implemented as intended
and consistent with the requirements of the Magnuson-Stevens Act. This
action modifies the regulations at 50 CFR 648.11(a) so that vessels
holding a Federal permit for Atlantic surfclam or ocean quahog are
included on the list of vessels required to carry a NMFS-certified
fisheries observer if requested by the Regional Administrator. A
detailed explanation for this change was provided in the preamble of
the proposed rule and is not repeated here.
In addition, this final rule includes corrections for two minor
errors in the existing regulations that were not addressed in the
proposed rule. These corrections (for an error in a cross-reference and
a conversion error) are described below in more detail.
Changes From the Proposed Rule
As mentioned above, this final rule corrects two minor errors in
the regulations that were not mentioned in the proposed rule. After
publication of the proposed rule, two minor errors were discovered in
the current surfclam and ocean quahog regulations. A cross reference in
Sec. 648.75(a)(2)(iii) refers to the wrong sub-paragraph, and Sec.
648.76(a) contains an erroneous conversion from nautical miles to
kilometers. Both errors, which were inadvertently introduced by a
September 29, 2011, final rule (76 FR 60606), are corrected in this
final rule.
We also have modified a portion of the proposed rule language that
would add a new paragraph (c) to the existing regulations at Sec.
648.74, pertaining to the consequences for failing to pay a cost
recovery fee. The proposed rule language at Sec.
648.74(c)(6)(iii)(C)(1) would have authorized NMFS to suspend an ITQ
permit for non-payment until the outstanding fee is paid in full. As a
result of suspension of an ITQ permit for non-payment, the ITQ permit
holder would have been prohibited from transferring quota share or cage
tags and from using any previously issued cage tags. In addition,
renewal of the permit could be prohibited in subsequent years until
payment is received. The resulting prohibition on using previously
issued cage tags for the current fishing year was potentially more
punitive than necessary, and was inconsistent with other catch share
programs that we administer around the country. Therefore, the language
of this final rule at Sec. 648.74(c)(6)(iii)(C)(1) does not authorize
suspension of the current ITQ permit, but instead authorizes the
Regional Administrator to disapprove any application to transfer quota
share or cage tags to or from the ITQ permit holder and to deny
issuance of an ITQ permit in subsequent years, until full payment is
received. Thus, the current ITQ permit would remain valid and any
previously issued cage tags could continue to be used to land clams for
the remainder of that fishing year.
Comments and Responses
A total of five comments were received on the proposed rule and
notice of availability. One commenter did not address the proposed
action, but was generally opposed to commercial fishing and our
management of the resource. The four other comments were submitted by
members and representatives of the commercial surfclam and ocean quahog
industry. All four letters made similar points, which are discussed by
topic.
Comment 1: Commenters from the clam industry assert that the
Magnuson-Stevens Act only requires collection of the incremental costs
of a LAPP, and that if those costs are negative then no cost recovery
program is necessary. To support this position, they cite the 2010 NOAA
Catch Share Policy document. The commenters state that the costs of
managing the clam fishery are significantly lower now, under the ITQ,
than they were in the 1980s. As a result, they assert that cost
recovery is not necessary and should not be imposed on the surfclam and
ocean quahog ITQ program.
Response: The 2010 NOAA Catch Share Policy document represents a
series of guiding principles for consideration when developing a catch
share program. It does not, however, have the force of law or represent
binding requirements for all catch share programs. In discussions of
cost recovery, the document does state that the relevant costs for cost
recovery would be the incremental costs of the catch share program, and
describes how those costs may be determined using a before and after
comparison, effectively describing the net costs of the program. This
language was taken from the 2007 report ``The Design and Use of Limited
Access Privilege Programs,'' by editors Lee Anderson and Mark Holliday
(NOAA Technical Memorandum NMFS-F/SPO-86). Since the publication of the
2007 report, it has become common to use the terms ``recoverable
costs'' and ``incremental costs'' interchangeably. However, there are
several problems with using this approach to determining recoverable
costs in a LAPP.
The Magnuson-Stevens Act does not use the term ``incremental
costs'' when addressing cost recovery in LAPPs. Section 304(d)(2)(A) of
the Act requires the Secretary to ``collect a fee to recover the actual
costs directly related to the management, data collection, and
enforcement'' (emphasis added) of any LAPP. The GARFO has consistently
advised the Council that this requirement is best interpreted to refer
to costs that are specific to the LAPP, and that would not have been
incurred if the fishery was not managed as a LAPP. This approach is
consistently applied across other LAPPs in the Greater Atlantic Region.
For the surfclam and ocean quahog ITQ program, these costs would
include the costs of issuing and renewing ITQ permits, processing cage
tag transfers, and tracking cage tag usage. There are always some new
tasks associated with a new LAPP, so while these costs could be low
they could not be negative.
Comment 2: One commenter claims that the cost recovery program will
require the industry to pay for at-sea observers.
Response: As described in the previous response, we have determined
that the recoverable costs are for tasks that would not be conducted if
not for the ITQ program. Current observer coverage in the surfclam and
ocean quahog fisheries is based on the standardized bycatch reporting
methodology (SBRM). Coverage specified under the SBRM is paid for by
the Federal Government through NMFS. The SBRM is a requirement for all
fisheries managed by the Council and is not specific to the ITQ.
Therefore, the cost of SBRM observer coverage would
[[Page 38972]]
not be considered recoverable under this program.
Comment 3: The four members of the clam industry that provided
comments express opposition to the proposed change to how BRPs are
incorporated into the FMP. The commenters maintain that this change is
discretionary on the part of the Council, that the proposed criteria
for acceptable peer review is not rigorous enough, and that any change
could lead to instability in the management of these fisheries.
Response: As mentioned above, National Standard 1 guidelines direct
all FMPs to specify BRPs, and National Standard 2 requires all
conservation and management measures to be based on the best scientific
information available. Under the current specifications process, when
new BRPs are identified through an approved scientific review, they are
used in setting management measures consistent with National Standard
2, even though they may differ from the BRPs in the FMP. This can lead
to inconsistencies between the information in the FMP and what is used
for management, and such inconsistencies can linger and cause confusion
for years before an appropriate FMP amendment is developed and
implemented. The Council has elected to use a broad and standardized
list of potential peer review processes for establishing new BRPs. This
allows the Council to maintain some consistency between FMPs, while
ensuring that the best available scientific information is readily
available for use in decision making, but does not mean that all
potential peer review processes are equally applicable to every stock
the Council manages. Consistent with the process now used by the
Council and its SSC, each stock assessment is evaluated based on the
information available and how well it performs relative to previous
assessments. This change to the FMP does not reduce the scientific
rigor needed to establish BRPs for the surfclam and ocean quahog
stocks. We acknowledge that this change to the Council's FMP is
discretionary, as it is not specifically mandated by any statute.
However, the Council is free to determine how best to manage its
fisheries and to make such modifications to its FMPs, if those changes
are consistent with applicable law. Because updated BRPs are already
used in setting management measures for surfclam and ocean quahog,
regardless of the BRPs that are formally stated in the FMP, the
modification will have no practical impact on the specification-setting
process. The change implemented by this final rule will make the plan
consistent with other Council FMPs and established practice.
Comment 4: The four members of the clam industry that provided
comment express opposition to the proposed removal of the optimum yield
ranges for surfclams and ocean quahogs and support for the no-action
alternative. The commenters state that the change is unnecessary and
that they are concerned that removing the optimum yield ranges from the
FMP could result in significant and rapid changes in harvest quotas.
Response: As stated in the previous response, the Council has the
flexibility to determine how best to manage its fisheries and to make
such modifications to its FMPs, if those changes are consistent with
applicable law. As discussed in the preamble of this rule, the current
optimum yield ranges specified in the FMP have been in place for many
years and no longer reflect our understanding of the biology of the
stocks. Because the optimum yield ranges in the FMP are not connected
to the maximum sustainable yield, the use of the term is inconsistent
with how the term ``optimum yield'' is used in the current National
Standard 1 guidance. For these reasons, the Council has opted to remove
the ranges from the FMP. The industry's preference for a constant
harvest strategy is well known, and the Council is free to factor that
preference into its specifications-setting process and support
consistent harvest quotas for surfclams and ocean quahogs. The surfclam
and ocean quahog industry has consistently been an invaluable partner
in the successful management of these species. We are confident that
this partnership will continue in the future, and that the Council will
give full consideration to the preferences of the industry when
considering harvest quotas.
Classification
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the
Administrator, Greater Atlantic Region, NMFS, has determined that this
final rule is consistent with Amendment 17, other provisions of the
Magnuson-Stevens Act, and other applicable law.
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration during the proposed rule stage that this action will not
have a significant economic impact on a substantial number of small
entities. The factual basis for the certification was published in the
proposed rule and is not repeated here. No comments were received
regarding this certification. As a result, a regulatory flexibility
analysis was not required and none was prepared.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: June 9, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 648 is amended
as follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
0
1. The authority citation for part 648 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq.
0
2. In Sec. 648.11, revise paragraph (a) to read as follows:
Sec. 648.11 At-sea sea sampler/observer coverage.
(a) The Regional Administrator may request any vessel holding a
permit for Atlantic sea scallops, NE multispecies, monkfish, skates,
Atlantic mackerel, squid, butterfish, scup, black sea bass, bluefish,
spiny dogfish, Atlantic herring, tilefish, Atlantic surfclam, ocean
quahog, or Atlantic deep-sea red crab; or a moratorium permit for
summer flounder; to carry a NMFS-certified fisheries observer. A vessel
holding a permit for Atlantic sea scallops is subject to the additional
requirements specific in paragraph (g) of this section. Also, any
vessel or vessel owner/operator that fishes for, catches or lands
hagfish, or intends to fish for, catch, or land hagfish in or from the
exclusive economic zone must carry a NMFS-certified fisheries observer
when requested by the Regional Administrator in accordance with the
requirements of this section.
* * * * *
0
3. In Sec. 648.72, revise paragraph (a) introductory text and
paragraph (a)(1) to read as follows:
Sec. 648.72 Surfclam and ocean quahog specifications.
(a) Establishing catch quotas. The amount of surfclams or ocean
quahogs that may be caught annually by fishing vessels subject to these
regulations will be specified for up to a 3-year period by the Regional
Administrator. Specifications of the annual quotas will be accomplished
in the final year of the quota period, unless the quotas are
[[Page 38973]]
modified in the interim pursuant to paragraph (b) of this section.
(1) Quota reports. On an annual basis, MAFMC staff will produce and
provide to the MAFMC an Atlantic surfclam and ocean quahog annual quota
recommendation paper based on the ABC recommendation of the SSC, the
latest available stock assessment report prepared by NMFS, data
reported by harvesters and processors, and other relevant data, as well
as the information contained in paragraphs (a)(1)(i) through (vi) of
this section. Based on that report, and at least once prior to August
15 of the year in which a multi-year annual quota specification
expires, the MAFMC, following an opportunity for public comment, will
recommend to the Regional Administrator annual quotas and estimates of
DAH and DAP for up to a 3-year period. In selecting the annual quotas,
the MAFMC shall consider the current stock assessments, catch reports,
and other relevant information concerning:
(i) Exploitable and spawning biomass relative to the quotas.
(ii) Fishing mortality rates relative to the quotas.
(iii) Magnitude of incoming recruitment.
(iv) Projected effort and corresponding catches.
(v) Geographical distribution of the catch relative to the
geographical distribution of the resource.
(vi) Status of areas previously closed to surfclam fishing that are
to be opened during the year and areas likely to be closed to fishing
during the year.
* * * * *
0
4. In Sec. 648.74, add paragraph (c) to read as follows:
Sec. 648.74 Individual Transferable Quota (ITQ) Program.
* * * * *
(c) ITQ cost recovery--(1) General. The cost recovery program
collects fees of up to three percent of the ex-vessel value of
surfclams or ocean quahogs harvested under the ITQ program in
accordance with the Magnuson-Stevens Act. NMFS collects these fees to
recover the actual costs directly related to the management, data
collection, and enforcement of the surfclam and ocean quahog ITQ
program.
(2) Fee responsibility. If you are an ITQ permit holder who holds
ITQ quota share and receives an annual allocation pursuant to paragraph
(a) of this section, you shall incur a cost recovery fee, based on all
landings of surfclams or ocean quahogs authorized under your initial
annual allocation of cage tags. You are responsible for paying the fee
assessed by NMFS, even if the landings are made by another ITQ permit
holder (i.e., if you transfer cage tags to another individual who
subsequently uses those tags to land clams). If you permanently
transfer your quota share, you are still responsible for any fee that
results from your initial annual allocation of cage tags even if the
landings are made after the quota share is permanently transferred.
(3) Fee basis. NMFS will establish the fee percentages and
corresponding per-tag fees for both the surfclam and ocean quahog ITQ
fisheries each year. The fee percentages cannot exceed three percent of
the ex-vessel value of surfclams and ocean quahogs harvested under the
ITQ fisheries pursuant to section 304(d)(2)(B) of the Magnuson-Stevens
Act.
(i) Calculating fee percentage. In the first quarter of each
calendar year, NMFS will calculate the fee percentages for both the
surfclam and ocean quahog ITQ fisheries based on information from the
previous year. NMFS will use the following equation to annually
determine the fee percentages: Fee percentage = the lower of 3 percent
or (DPC/V) x 100, where:
(A) ``DPC,'' or direct program costs, are the actual incremental
costs for the previous fiscal year directly related to the management,
data collection, and enforcement of the ITQ program. ``Actual
incremental costs'' mean those costs that would not have been incurred
but for the existence of the ITQ program. If the amount of fees
collected by NMFS is greater or lesser than the actual incremental
costs incurred, the DPC will be adjusted accordingly for calculation of
the fee percentage in the following year.
(B) ``V'' is the total ex-vessel value from the previous calendar
year attributable to the ITQ fishery.
(ii) Calculating per-tag fee. To facilitate fee collection, NMFS
will convert the annual fee percentages into per-tag fees for both the
surfclam and ocean quahog ITQ fisheries. NMFS will use the following
equation to determine each per-tag fee: Per-Tag Fee = (Fee Percentage x
V)/T, where:
(A) ``T'' is the number of cage tags used, pursuant to Sec.
648.77, to land shellfish in the ITQ fishery in the previous calendar
year.
(B) ``Fee percentage'' and ``V'' are defined in paragraph (c)(3)(i)
of this section.
(C) The per-tag fee is rounded down so that it is expressed in
whole cents.
(iii) Publication. During the first quarter of each calendar year,
NMFS will announce the fee percentage and per-tag fee for the surfclam
and ocean quahog ITQ fisheries, and publish this information on the
Regional Office Web site (www.greateratlantic.fisheries.noaa.gov).
(4) Calculating individual fees. If you are responsible for a cost
recovery fee under paragraph (c)(2) of this section, the fee amount is
the number of ITQ cage tags you were initially allocated at the start
of the fishing year that were subsequently used to land shellfish
multiplied by the relevant per-tag fee, as described in paragraph
(c)(3)(ii) of this section. If no tags from your initial allocation are
used to land clams you will not incur a fee.
(5) Fee payment and collection. NMFS will send you a bill each year
for any applicable ITQ cost recovery fee.
(i) Payment due date. You must submit payment within 30 days of the
date of the bill.
(ii) Payment method. You may pay your bill electronically using a
credit card or direct Automated Clearing House withdrawal from a
designated checking account through the Federal web portal,
www.pay.gov, or another internet site designated by the Regional
Administrator. Instructions for electronic payment will be included
with your bill and are available on the payment Web site.
Alternatively, payment by check may be authorized by the Regional
Administrator if he/she determines that electronic payment is not
practicable.
(6) Payment compliance. If you do not submit full payment by the
due date, NMFS will notify you in writing via an initial administrative
determination (IAD) letter.
(i) IAD. In the IAD, NMFS will:
(A) Describe the past-due fee;
(B) Describe any applicable interest charges that may apply;
(C) Provide you 30 days to either pay the specified amount or
submit an appeal; and
(D) Include instructions for submitting an appeal.
(ii) Appeals. If you wish to appeal the IAD, your appeal must:
(A) Be in writing;
(B) Allege credible facts or circumstances;
(C) Include any relevant information or documentation to support
your appeal; and
(D) Be received by NMFS no later than 30 calendar days after the
date on the IAD. If the last day of the time period is a Saturday,
Sunday, or Federal holiday, the time period will extend to the close of
the business on the next business day. Your appeal must be mailed or
hand delivered to the address specified in the IAD.
[[Page 38974]]
(iii) Final decision--(A) Final decision on your appeal. If you
appeal an IAD, the Regional Administrator shall appoint an appeals
officer. After determining there is sufficient information and that all
procedural requirements have been met, the appeals officer will review
the record and issue a recommendation on your appeal to the Regional
Administrator, which shall be advisory only. The recommendation must be
based solely on the record. Upon receiving the findings and
recommendation, the Regional Administrator, acting on behalf of the
Secretary of Commerce, will issue a written decision on your appeal
which is the final decision of the Department of Commerce.
(B) Final decision if you do not appeal. If you do not appeal the
IAD within 30 calendar days, NMFS will notify you via a final decision
letter. The final decision will be from the Regional Administrator and
is the final decision of the Department of Commerce.
(C) If the final decision determines that you are out of
compliance. (1) The Regional Administrator may, at any time thereafter,
disapprove any application to transfer quota share or cage tags under
Sec. 648.74(b), and prohibit issuance of the surfclam or ocean quahog
ITQ permit for subsequent years, until the outstanding balance is paid
in full.
(2) The final decision will require full payment within 30 calendar
days.
(3) If full payment is not received within 30 calendar days of
issuance of the final decision, NMFS may refer the matter to the
appropriate authorities for the purposes of collection or enforcement.
(7) Annual report. NMFS will publish annually a report on the
status of the ITQ cost recovery program. The report will provide
details of the costs incurred by NMFS for the management, data
collection, and enforcement of the surfclam and ocean quahog ITQ
program, and other relevant information at the discretion of the
Regional Administrator.
0
5. In Sec. 648.75, revise paragraph (a)(2)(iii) to read as follows:
Sec. 648.75 Shucking at sea and minimum surfclam size.
(a) * * *
(2) * * *
(iii) If the Regional Administrator makes the determination
specified in paragraph (a)(2)(i) of this section, he/she may authorize
the vessel owner to shuck surfclams or ocean quahogs at sea. Such
authorization shall be in writing and be carried aboard the vessel.
* * * * *
0
6. In Sec. 648.76, revise paragraph (a)(1) to read as follows:
Sec. 648.76 Closed areas.
(a) * * *
(1) Boston Foul Ground. The waste disposal site known as the
``Boston Foul Ground'' and located at 42[deg]25'36'' N. lat.,
70[deg]35'00'' W. long., with a radius of 1 nm (1.852 km) in every
direction from that point.
* * * * *
0
7. In Sec. 648.79, revise paragraph (a)(1) to read as follows:
Sec. 648.79 Surfclam and ocean quahog framework adjustments to
management measures.
(a) * * *
(1) Adjustment process. The MAFMC shall develop and analyze
appropriate management actions over the span of at least two MAFMC
meetings. The MAFMC must provide the public with advance notice of the
availability of the recommendation(s), appropriate justification(s) and
economic and biological analyses, and the opportunity to comment on the
proposed adjustment(s) at the first meeting, and prior to and at the
second MAFMC meeting. The MAFMC's recommendations on adjustments or
additions to management measures must come from one or more of the
following categories: Adjustments within existing ABC control rule
levels; adjustments to the existing MAFMC risk policy; introduction of
new AMs, including sub-ACTs; description and identification of EFH (and
fishing gear management measures that impact EFH); habitat areas of
particular concern; set-aside quota for scientific research; VMS; and
suspension or adjustment of the surfclam minimum size limit. Issues
that require significant departures from previously contemplated
measures or that are otherwise introducing new concepts may require an
amendment of the FMP instead of a framework adjustment.
* * * * *
[FR Doc. 2016-14087 Filed 6-14-16; 8:45 am]
BILLING CODE 3510-22-P