[Federal Register Volume 83, Number 50 (Wednesday, March 14, 2018)]
[Rules and Regulations]
[Pages 11146-11152]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-05186]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 170817773-8213-02]
RIN 0648-BG81


Fisheries Off West Coast States; Highly Migratory Fisheries; 
California Drift Gillnet Fishery; Implementation of a Federal Limited 
Entry Drift Gillnet Permit

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS is issuing regulations under the authority of the 
Magnuson-Stevens Fishery Conservation and Management Act (MSA) to 
implement a March 2017 recommendation by the Pacific Fishery Management 
Council (Pacific Council) to amend the Fishery Management Plan for U.S. 
West Coast Fisheries for Highly Migratory Species (HMS FMP). The rule 
implements Amendment 5 to the HMS FMP and establishes a Federal limited 
entry (LE) permit system for the California/Oregon large-mesh drift 
gillnet (DGN) fishery using standards that are very similar to those 
used in the existing State of California LE permit program for the DGN 
fishery. Amendment 5 is intended to streamline management and future 
decision-making by placing all aspects of DGN fishery management under 
MSA authority. All current California LE DGN permit holders are 
eligible to apply for, and receive, a Federal LE DGN permit, and no 
additional LE DGN permits are created under this rule. This final rule 
is administrative in nature and is not anticipated to result in 
increased activity, effort, or capacity in the fishery.

DATES: This final rule is effective on April 13, 2018.

ADDRESSES: Copies of supporting documents that were prepared for this 
final rule, including the Regulatory Impact Review and the proposed 
rule, are available via the Federal eRulemaking Portal: http://www.regulations.gov, docket NOAA-

[[Page 11147]]

NMFS-2017-0052. These documents are also available from Lyle Enriquez, 
NMFS West Coast Region, 501 W. Ocean Blvd. Suite 4200, Long Beach, CA 
90802, or [email protected]. Written comments regarding the 
burden-hour estimates or other aspects of the collection-of-information 
requirements contained in this final rule may be submitted to the West 
Coast Regional Office and by email to [email protected] or 
fax to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT: Lyle Enriquez, NMFS, West Coast 
Region, 562-980-4025, or [email protected].

SUPPLEMENTARY INFORMATION: The California/Oregon large-mesh DGN fishery 
is managed under the HMS FMP, which was prepared by the Pacific Council 
and implemented under the authority of the MSA by regulations at 50 CFR 
part 660. Although it adopted all conservation and management measures 
in place under various Federal statutes (e.g., the Marine Mammal 
Protection Act and the Endangered Species Act) and state regulations, 
the HMS FMP did not incorporate the LE DGN permit programs of 
California and Oregon. California has an active LE DGN program, Oregon 
no longer issues DGN permits, and DGN fishing is prohibited in waters 
off of Washington.

Background

    On March 12, 2017, the Pacific Council voted to recommend Amendment 
5 to the HMS FMP, which establishes a LE DGN permit program under MSA 
authority and entitles all fishermen authorized to fish with large-mesh 
DGN gear under state law, as of the publication date of this final 
rule, to be eligible to receive a Federal LE DGN permit. On September 
15, 2017, NMFS published a Notice of Availability (NOA) in the Federal 
Register (82 FR 43323) for Amendment 5 with a 60-day public comment 
period. After consideration of public comments on Amendment 5, NMFS 
approved it on December 14, 2017. With that approval, Amendment 5, 
which requires establishment of a Federal DGN program under the HMS 
FMP, is now official Federal policy.
    On October 31, 2017, NMFS published a proposed rule in the Federal 
Register (82 FR 50366) that would add regulations at 50 CFR part 660, 
subpart K, to implement Amendment 5. The proposed rule contained 
additional background information, including information on the basis 
for the new regulations and the recommendations of the Pacific Council, 
which is not repeated in this final rule. The proposed rule was open to 
public comment through December 15, 2017, and the comments that NMFS 
received are addressed in this final rule.

New Regulations

    This rule adopts many of the current State of California management 
measures associated with the DGN fishery. For example, NMFS adopts 
current California requirements regarding the assignment of a permit 
(i.e., permits are issued to an individual and assigned to a specific 
vessel), the transfer of permits between permit holders (i.e., a permit 
must be held for three years before it is eligible to be transferred), 
and an annual renewal cycle.
    As of the publication date of this final rule, all 70 California LE 
DGN permit holders are eligible to receive a Federal LE DGN permit if 
they have renewed their state LE DGN permit by March 31, 2018. Permit 
holders who fail to renew their state DGN permit by March 31, 2018, are 
not eligible for a Federal LE DGN permit. As of January 10, 2018, 68 
permit holders have renewed their state LE DGN permit. If a state LE 
DGN permit was transferred after publication of the proposed rule, the 
transferee, but not the transferor, is eligible to receive a Federal LE 
DGN permit.
    Federal LE DGN permits will be issued annually for the fishing year 
starting April 1 and ending March 31 of the following year. Permits 
expire on March 31 of each year and, after initial issuance (expected 
in 2018), the permit renewal deadline is April 30 of each fishing year. 
A completed LE DGN permit renewal form must be received by NMFS no 
later than close-of-business April 30. Any renewal form received after 
that date will result in the permanent expiration of the Federal LE DGN 
permit. A permit owner who fails to submit a renewal form by the 
deadline may submit a renewal form to NMFS with a written statement 
that the failure to renew the permit by the deadline was proximately 
caused by the permit owner's illness or injury. When a permit owner has 
died, the owner's estate or other personal representative may submit a 
statement explaining that the permit owner's death prevented a timely 
renewal. The permit holder, or in the case of a deceased permit owner, 
the estate or other personal representative, will need to provide 
written proof of illness, injury, or death. NMFS will not consider any 
such renewal request made after July 31. A permit holder needs to hold 
a Federal LE DGN permit for a vesting period of at least three years 
before it is eligible to be transferred. This vesting period extends 
across both state and Federal permit programs (i.e., if a permit holder 
held a state LE DGN permit for two years and a Federal LE DGN permit 
for one year, the permit may be transferred).
    This rule also includes technical edits to existing regulatory 
text. These edits add the word ``general'' before instances of ``HMS 
permit'' to distinguish the existing HMS permit from the new LE DGN 
permit; update a web address from which permit applications may be 
obtained; update the reference to the NMFS ``Southwest Region'' to 
refer to the West Coast Region, into which it was incorporated; and 
update the description of the NMFS regional ``Sustainable Fisheries 
Division'' to describe it as part of the West Coast Region.

Public Comment and Responses

    NMFS received 17 written public comments during the proposed 
rulemaking stage. The summarized comments and NMFS' responses are 
below.
    Comment 1: The DGN fishery is conducted in Federal waters and 
belongs under Federal law and permitting.
    Response: NMFS agrees that the DGN fishery belongs under Federal 
authority. In 2004, NMFS approved the HMS FMP, which included the DGN 
fishery as an authorized fishery, bringing the fishery under MSA 
authority for the first time. Furthermore, the DGN fishery operates 
only in Federal waters of the exclusive economic zone (EEZ) off of the 
States of California and Oregon. California, Oregon, and Washington do 
not allow the DGN fishery to operate in state waters.
    Comment 2: Consolidating management responsibility for all aspects 
of the swordfish fishery under one authority, including the permit 
process, creates a higher level of management efficacy that currently 
does not exist.
    Response: NMFS agrees. The 2004 HMS FMP included the DGN fishery as 
an authorized fishery under MSA authority and adopted state and Federal 
regulations in place at that time, except for the limited entry DGN 
permit systems of Oregon and California. Oregon no longer issues DGN 
permits, and California maintains a state LE DGN permit program. 
Currently, changes to the number of LE DGN permits or qualifications to 
possess a LE DGN permit are made by the California State Legislature. 
Creating a Federal LE DGN permit may streamline implementation of 
future DGN management measures recommended by the Pacific Council.

[[Page 11148]]

For example, the Pacific Council may recommend management measures 
related to participation in the fishery, and NMFS could implement a 
recommendation (if approved) by placing conditions on eligibility for 
Federal LE DGN permits, without the California State Legislature having 
to take action.
    Comment 3: Going forward, California would continue to have 
influence through its seats on the Pacific Council and Pacific Offshore 
Cetacean Take Reduction Team (POCTRT).
    Response: NMFS agrees. The State of California has voting 
representatives on the Pacific Council and the POCTRT, and these groups 
recommend DGN management measures to NMFS. The Pacific Council 
recommends management measures related to all fisheries under the HMS 
FMP, which includes the DGN fishery and other fisheries that harvest 
swordfish and other HMS. The POCTRT was established under section 
118(f) of the Marine Mammal Protection Act, 16 U.S.C. 1387(f), 
specifically to make recommendations addressing marine mammal 
interactions in the DGN fishery. For example, in 1996 the POCTRT 
recommended that NMFS require the use of acoustic pingers to alert 
marine mammals to the presence of the net during all DGN fishing 
activity. NMFS implemented this measure in 1997 and it led to a 
significant reduction in the number of marine mammals entangled by the 
fishery. Further, in 2013 the POCTRT recommended that NMFS implement 
emergency, temporary regulations to limit the number of sperm whales 
taken in the fishery, require a Vessel Monitoring System (VMS) on board 
each DGN vessel, and establish a 100 percent observer coverage zone. 
NMFS implemented this recommendation in 2013, and later made the VMS 
requirement permanent.
    Comment 4: The rule only proposed to create a Federal LE DGN permit 
rather than replace the current California state permit regime, as the 
Council originally considered when it began discussing a Federal LE DGN 
permit in March 2014. The California state permit regime should be 
placed under Federal control, as the most scientific resources are 
available at the Federal level to make science-based decisions for the 
fishery.
    Response: In March 2017, the Pacific Council voted to authorize a 
Federal LE DGN permit. The Pacific Council recommended that, as soon as 
possible after Pacific Council final action, only fishermen authorized 
to fish with large-mesh DGN gear under state law would be entitled to a 
LE DGN permit issued by NMFS. Fishermen who hold valid state LE DGN 
permits on the date that this final rule is published would be eligible 
for the Federal LE DGN permit. These permits could be transferred only 
once every three years. The Pacific Council did not include a 
recommendation to repeal any state permit requirements. This final rule 
does not repeal any State of California requirements related to the 
California LE DGN permit. The California LE DGN permit will continue to 
be required by the state until and unless a change to California Fish 
and Game Code is made by the California State Legislature.
    Comment 5: Several commenters noted that the California Department 
of Fish and Wildlife is currently in the process of convening 
stakeholders to discuss potential collaborative solutions, including a 
buyout program, to improve the sustainability of the DGN fishery. The 
commenters support these efforts and urge NMFS to delay implementation 
of this rule until the State of California has had the opportunity to 
explore a collaborative solution with fishermen and other stakeholders 
under state authority.
    Response: Section 304(b) of the MSA, 16 U.S.C. 1854(b), requires 
NMFS to publish final implementing regulations for FMP amendments 
within 30 days of the close of the comment period on the proposed rule, 
if the amendment has been approved. Amendment 5 includes no provision 
to delay implementation of the Federal permit system. NMFS understands 
that the California Department of Fish and Wildlife has convened 
meetings with California LE DGN permit holders and environmental non-
governmental organizations to discuss a potential buyout program to 
reduce the number of California LE DGN permits. The results of these 
discussions are speculative and do not justify a delay in implementing 
a Federal LE DGN permit.
    Comment 6: The NOA and proposed rule note that NMFS' intent is to 
transition the State of California issued LE DGN permit program to 
Federal management under MSA authority. The NOA and proposed rule both 
specifically state ``[a]fter the LE DGN permit transitions from the 
State of California to Federal management, each participant will need 
to hold all of the same permits and licenses, except that the Federal 
LE DGN permit will take the place of the State of California LE DGN 
permit.'' This statement incorrectly implies that, upon implementation 
of the Federal LE DGN program, the state LE DGN permit will immediately 
cease to be required. The state LE DGN permit is required by California 
Fish and Game Code section 8561. The state LE DGN permit will continue 
to be required until the California State Legislature repeals or 
otherwise changes this requirement. Thus, even after implementation of 
a Federal LE DGN permit, each participant will continue to be required 
to possess all required state permits and licenses, including the state 
general gillnet permit and the state LE DGN permit. If NMFS elects to 
proceed, it should be made clear in the final rule implementing the 
Federal LE DGN permit that the state LE DGN permit will continue to be 
required until a change to Fish and Game Code, section 8561, is made by 
the California State Legislature.
    Response: To clarify, NMFS reiterates that this final rule does not 
repeal any State of California requirements related to the California 
LE DGN permit. Following implementation of the Federal LE DGN permit, 
the California LE DGN permit will continue to be required by the state 
until and unless a change to California Fish and Game Code is made by 
the California State Legislature.
    Comment 7: Several commenters stated that the proposed rule does 
not explain the clear need for a Federal LE DGN permit, because a State 
of California LE DGN permit will continue to be required to use DGN 
gear, absent legislative action. Implementation of this rule will 
merely create a duplicative permit requirement.
    Response: Although both permits will continue to be required until 
and unless the California State Legislature acts, the Pacific Council 
recommended requiring a Federal LE DGN permit in order to streamline 
Federal management of the DGN fishery. The fishery occurs in the EEZ, 
not in state waters, and therefore this is a Federal fishery shared by 
residents of different states. Currently, changes to the number of DGN 
permits or qualifications to possess a DGN permit can be made only 
through the California State Legislature. As described above, under 
Amendment 5, the Pacific Council may recommend future management 
measures related to participation in the fishery, and, if approved, 
NMFS could directly implement them by placing conditions on Federal LE 
DGN permits.
    Comment 8: Several commenters stated that DGN permitting authority 
should remain with the State of California, and that transitioning to 
Federal management will limit California's ability to make decisions 
that affect its natural resources or have input on the use of resources 
that are found in both Federal and state waters. They state that, while 
the California

[[Page 11149]]

Department of Fish and Wildlife will still be able to participate 
through the Pacific Council, its ability to make changes to the fishery 
will be diluted, and that the California State Legislature would 
potentially be cut out entirely from the management process for this 
fishery.
    Response: The fishery occurs in the EEZ, not in state waters, and 
therefore this is a Federal resource shared by residents of different 
states. Because the HMS fisheries are a Federal resource, the Council 
prepared and recommended adoption of the HMS FMP under Federal 
authority. With the exception of the LE program, the DGN fishery has 
been managed under Federal authority for years. Even under Amendment 5, 
the California State Legislature retains the ability to manage fishery 
resources wholly within state waters (within roughly 3 nautical miles 
from the coastline) and manage state-registered vessels beyond state 
waters to the extent such management does not conflict with MSA 
regulations.
    Comment 9: Several commenters stated that Federal LE DGN permits 
should only be issued upon implementation of the Pacific Council's 
proposed management measures to (1) establish protected species hard 
caps (limits on the serious injury and mortality of certain marine 
mammal and sea turtle species); and (2) require 100 percent monitoring 
in the fishery, or that the regulations implementing the Federal LE DGN 
permit program should require that permit holders operate under hard 
caps and 100 percent monitoring.
    Response: The Pacific Council recommended that NMFS implement DGN 
hard caps and 100 percent monitoring in September 2015. NMFS proposed 
regulations to implement DGN hard caps in October 2016. In a separate 
action, the Pacific Council recommended Amendment 5 (Federal LE DGN 
permit program) in March 2017. Amendment 5 was not conditioned on 
implementation of hard caps or 100 percent monitoring. In June 2017, 
NMFS withdrew the proposed regulations to establish protected-species 
hard caps for the DGN fishery, after further analysis showed that the 
action would have minor beneficial effects to target and non-target 
fish species and protected species, at the cost of significant adverse 
economic effects to the participants in the fishery if and when 
closures would occur. NMFS advised the Pacific Council of revisions 
that would make the proposed DGN hard caps regulations consistent with 
the MSA and meet the purpose and need for the action. NMFS continues to 
analyze ways to implement the Pacific Council's recommendation for 100 
percent DGN monitoring, and the Pacific Council revised its purpose and 
need for the action in November 2017. Because Amendment 5 is not 
conditioned on the establishment of hard caps or 100 percent 
monitoring, the status of those recommendations does not support a 
delay in creating the Federal LE DGN permit.
    Comment 10: The commenter opposes the proposed Federal permit 
program, stating it disregards key objectives outlined in the Pacific 
Council's Swordfish Management and Monitoring Plan for achieving 
bycatch reduction goals and limiting DGN fishing effort.
    Response: The Federal LE DGN permit is not intended to reduce 
bycatch. Future actions to manage the fishery may be streamlined by 
establishing a Federal permit program. Such potential future actions 
could be intended to reduce bycatch in the DGN fishery.
    Comment 11: The commenter requests that NMFS not finalize the 
proposed rule and instead return it to the Pacific Council to amend the 
purpose and need for the action, reduce latent permits in the DGN 
fishery, make clear that no additional Federal LE DGN permits shall be 
issued after the initial allocation, make Federal DGN permits non-
transferrable, and connect the Federal LE DGN program with the 
authorization of deep-set buoy gear.
    Response: NMFS is not returning the proposed rule to the Pacific 
Council, because the Pacific Council discussed these restrictions when 
considering establishing a Federal LE DGN permit, and did not include 
them as part of its recommendation to NMFS to create the permit. As 
explained above, requiring DGN vessels to operate under Federal permits 
is a tool to augment the Federal government's ability to directly 
manage participation and eligibility in this fishery in the future.
    Comment 12: Federalizing the drift gillnet fishery will 
significantly impact the environment. By preventing the opportunity for 
future state action to reduce environmental impacts, this action will 
cause significant environmental impacts, such as continued interactions 
with endangered species. These environmental impacts are significant, 
and the action requires full and appropriate analysis under the 
National Environmental Policy Act (NEPA). Reliance on a categorical 
exclusion (CE) to satisfy NEPA requirements would be inappropriate for 
the proposed action, as it involves several Extraordinary 
Circumstances, including (1) adverse effects from the action on species 
or habitats protected by the Endangered Species Act, the Marine Mammal 
Protection Act, the MSA, the National Marine Sanctuaries Act, or the 
Migratory Bird Treaty Act that are not negligible or discountable; (2) 
a potential violation of Federal, State, or local law or requirements 
imposed for the protection of the environment; and (3) highly 
controversial environmental effects.
    Response: The impacts of DGN fishing are addressed adequately in 
the combined August 2013 HMS FMP and final environmental impact 
statement. Amendment 5 is not expected in itself to change fishing 
levels or practices. NMFS has conducted the appropriate NEPA analysis 
of this action and has concluded that the proposed action would not 
have a significant effect, individually or cumulatively, on the human 
environment, and does not involve any extraordinary circumstances. NMFS 
disagrees that a CE is inappropriate for this action. Specifically, 
this action fits under the description of CE Category A1 in the NAO 
216-6A Companion Manual: ``an action that is a technical correction or 
a change to a fishery management action or regulation, which does not 
result in a substantial change in any of the following: fishing 
location, timing, effort, authorized gear types, or harvest levels.'' 
However, NMFS notes it is possible that Amendment 5 could facilitate 
changes in the future that affect fishing practices with impacts that 
could be subject to NEPA analyses, as appropriate.
    Comment 13: NMFS must delay taking action to federalize the LE 
system until after a new Biological Opinion is complete, as it will 
contain information vital for the decision of whether and how to 
federalize the fishery. In the absence of a new Biological Opinion, 
NMFS' statement that they do not anticipate significant environmental 
impacts is unsupported by environmental analysis and should not be 
relied upon in deciding whether to move finalize federalization.
    Response: NMFS disagrees. Nothing in this rule causes fishing 
activities to affect endangered and threatened species or critical 
habitat in any manner not considered in prior consultations on this 
fishery. This action is administrative in nature and is not expected to 
increase fishing activity or change current fishing practices.

Changes From the Proposed Rule

    No changes have been made to regulatory text of the proposed rule.

[[Page 11150]]

Classification

    The Administrator, West Coast Region, NMFS, determined that 
Amendment 5 to the HMS FMP is necessary for the conservation and 
management of the DGN fishery and that it is consistent with the 
Magnuson-Stevens Fishery Conservation and Management Act and other 
applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866. This final rule is not an Executive 
Order 13771 regulatory action because this final rule is not 
significant under 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 would 
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.
    This final rule contains a collection-of-information requirement 
subject to the Paperwork Reduction Act (PRA) and which has been 
approved by OMB under control number 0648-0204. The public reporting 
burden for the additional collection of information is estimated to 
average 30 minutes per response, including the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information. Send comments regarding these burden 
estimates or any other aspect of this data collection, including 
suggestions for reducing the burden, to NMFS (see ADDRESSES) and by 
email to [email protected], or fax to 202-395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number. All currently approved NOAA 
collections of information may be viewed at: http://www.cio.noaa.gov/services_programs/prasubs.html.

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: March 9, 2018.
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 660 is amended 
as follows:

PART 660--FISHERIES OFF WEST COAST STATES

0
1. The authority citation for part 660 continues to read as follows:

    Authority: 16 U.S.C. 1801 et seq., 16 U.S.C. 773 et seq., and 16 
U.S.C. 7001 et seq.

0
2. In Sec.  660.702, revise the definition of ``Sustainable Fisheries 
Division'' to read as follows:
* * * * *
    Sustainable Fisheries Division (SFD) means the Assistant Regional 
Administrator for Sustainable Fisheries, West Coast Region, NMFS, or 
his or her designee.
* * * * *

0
3. In Sec.  660.707, revise paragraphs (a)(1) and (4), (b)(1), (3), and 
(4), and (e) and add paragraph (f) to read as follows:


Sec.  660.707  Permits.

    (a) * * *
    (1) A commercial fishing vessel of the United States must be 
registered for use under a general HMS permit that authorizes the use 
of specific gear, and a recreational charter vessel must be registered 
for use under a HMS permit if that vessel is used:
    (i) To fish for HMS in the U.S. EEZ off the States of California, 
Oregon, and Washington; or
    (ii) To land or transship HMS shoreward of the outer boundary of 
the U.S. EEZ off the States of California, Oregon, and Washington.
* * * * *
    (4) Only a person eligible to own a documented vessel under the 
terms of 46 U.S.C. 12102(a) may be issued or may hold (by ownership or 
otherwise) a general HMS permit.
    (b) * * *
    (1) Following publication of the final rule implementing the FMP, 
NMFS will issue general HMS permits to the owners of those vessels on a 
list of vessels obtained from owners previously applying for a permit 
under the authority of the High Seas Fishing Compliance Act, the Tuna 
Conventions Act of 1950, the Marine Mammal Protection Act, and the 
Fishery Management Plan for Pelagic Fisheries of the Western Pacific 
Region, or whose vessels are listed on the vessel register of the 
Inter-American Tropical Tuna Commission.
* * * * *
    (3) An owner of a vessel subject to these requirements who has not 
received a permit under this section from NMFS and who wants to engage 
in the fisheries must apply to the SFD for the required permit in 
accordance with the following:
    (i) A West Coast Region Federal Fisheries application form may be 
obtained from the SFD or downloaded from the West Coast Region home 
page (http://www.westcoast.fisheries.noaa.gov/permits/commercial_fishing_research_permits.html) to apply for a permit under 
this section. A completed application is one that contains all the 
necessary information and signatures required.
    (ii) A minimum of 15 days should be allowed for processing a permit 
application. If an incomplete or improperly completed application is 
filed, the applicant will be sent a notice of deficiency. If the 
applicant fails to correct the deficiency within 30 days following the 
date of notification, the application will be considered abandoned.
    (iii) A permit will be issued by the SFD. If an application is 
denied, the SFD will indicate the reasons for denial.
    (iv)(A) Any applicant for an initial permit may appeal the initial 
issuance decision to the Regional Administrator. To be considered by 
the Regional Administrator, such appeal must be in writing and state 
the reasons for the appeal, and must be submitted within 30 days of the 
action by the Regional Administrator. The appellant may request an 
informal hearing on the appeal.
    (B) Upon receipt of an appeal authorized by this section, the 
Regional Administrator will notify the permit applicant, or permit 
holder as appropriate, and will request such additional information and 
in such form as will allow action upon the appeal.
    (C) Upon receipt of sufficient information, the Regional 
Administrator will decide the appeal in accordance with the permit 
provisions set forth in this section at the time of the application, 
based upon information relative to the application on file at NMFS and 
the Council and any additional information submitted to or obtained by 
the Regional Administrator, the summary record kept of any hearing and 
the hearing officer's recommended decision, if any, and such other 
considerations as the Regional Administrator deems appropriate. The 
Regional Administrator will notify all

[[Page 11151]]

interested persons of the decision, and the reasons for the decision, 
in writing, normally within 30 days of the receipt of sufficient 
information, unless additional time is needed for a hearing.
    (D) If a hearing is requested, or if the Regional Administrator 
determines that one is appropriate, the Regional Administrator may 
grant an informal hearing before a hearing officer designated for that 
purpose after first giving notice of the time, place, and subject 
matter of the hearing to the applicant. The appellant, and, at the 
discretion of the hearing officer, other interested persons, may appear 
personally or be represented by counsel at the hearing and submit 
information and present arguments as determined appropriate by the 
hearing officer. Within 30 days of the last day of the hearing, the 
hearing officer shall recommend in writing a decision to the Regional 
Administrator.
    (E) The Regional Administrator may adopt the hearing officer's 
recommended decision, in whole or in part, or may reject or modify it. 
In any event, the Regional Administrator will notify interested persons 
of the decision, and the reason(s) therefore, in writing, within 30 
days of receipt of the hearing officer's recommended decision. The 
Regional Administrator's decision will constitute the final 
administrative action by NMFS on the matter.
    (F) Any time limit prescribed in this section may be extended for a 
period not to exceed 30 days by the Regional Administrator for good 
cause, either upon his or her own motion or upon written request from 
the appellant stating the reason(s) therefore.
    (4) General HMS permits issued under this subpart will remain valid 
until the first date of renewal, and permits may be subsequently 
renewed for 2-year terms. The first date of renewal will be the last 
day of the vessel owner's birth month in the second calendar year after 
the permit is issued (e.g., if the birth month is March and the permit 
is issued on October 3, 2007, the permit will remain valid through 
March 31, 2009).
* * * * *
    (e) Fees. An application for a permit, or renewal of an existing 
permit under this section will include a fee for each vessel. The fee 
amount required will be calculated in accordance with the NOAA Finance 
Handbook and specified on the application form.
    (f) Federal limited entry drift gillnet permit--(1) General. This 
section applies to individuals fishing with large-mesh (14 inch or 
greater stretched mesh) drift gillnet (DGN) gear. Individuals who 
target, retain, transship, or land fish captured with a large-mesh DGN 
must possess a valid Federal limited entry DGN permit. Federal limited 
entry DGN permits are issued to an individual, and a vessel must be 
specified on the permit.
    (2) Initial qualification. Upon publication of NMFS' final rule to 
establish the Federal limited entry DGN permit, all State of California 
limited entry DGN permit holders are eligible to obtain a Federal 
limited entry DGN permit. If a 2017-2018 California state DGN permit 
renewal application is not received by the California Department of 
Fish and Wildlife or postmarked by March 31, 2018, the permit holder is 
not eligible to receive a 2018-2019 Federal limited entry DGN permit.
    (3) Documentation and burden of proof. An individual applying for 
issuance, renewal, transfer, or assignment of a Federal limited entry 
DGN permit must prove that they meet the qualification requirements by 
submitting the following documentation, as applicable: A certified copy 
of the assigned vessel's documentation as a fishing vessel of the 
United States (U.S. Coast Guard or state) is the best evidence of 
vessel identification; a copy of a current State of California limited 
entry DGN permit is the best evidence of initial qualification for a 
Federal limited entry DGN permit; a copy of a written contract 
reserving or conveying limited entry rights is the best evidence of 
reserved or acquired rights; and other relevant, credible evidence that 
the applicant may wish to submit or that the SFD may request or 
require.
    (4) Fees. Any processing fee will be determined by the service 
costs needed to process a permit request. If a fee is required, it 
would cover administrative expenses related to issuing limited entry 
permits, as well as renewing, transferring, assigning, and replacing 
permits. The amount of any fee will be calculated in accordance with 
the procedures of the NOAA Finance Handbook for determining the 
administrative costs of each special product or service. A fee may not 
exceed such costs and is specified with each application form. The 
appropriate fee must accompany each application.
    (5) Initial decisions. (i) The SFD will make initial decisions 
regarding issuing, renewing, transferring, and assigning limited entry 
permits.
    (ii) Adverse decisions shall be in writing and shall state the 
reasons for the adverse decision.
    (iii) The SFD may decline to act on an application for issuing, 
renewing, transferring, or assigning a limited entry permit and will 
notify the applicant, if the permit sanction provisions of the 
Magnuson-Stevens Act at 16 U.S.C. 1858(a) and implementing regulations 
at 15 CFR part 904, subpart D, apply.
    (6) Issuance. Federal limited entry DGN permits will be issued by 
the SFD. If an application is denied, the SFD will indicate the reasons 
for denial. A DGN permit will be issued to an individual and assigned 
to a specific vessel. A permit holder may assign the permit to another 
vessel once per permit year (April 1 to March 31).
    (7) Appeals. Any applicant for an initial permit may appeal the 
initial issuance decision to the Regional Administrator. Appeals will 
be made and processed following procedures as described at paragraph 
(b)(3)(iv) of this section.
    (8) Transfers. Federal limited entry DGN permits may be transferred 
to another individual only if the current permit holder has held the 
Federal DGN permit for a minimum of three consecutive years (counted 
April 1 to March 31 of the following year). At the time of the 
establishment of the Federal limited entry DGN permit system, the 
length of time an individual has held a State of California limited 
entry DGN permit carries over (e.g., if an individual has held a 
California DGN permit for two years, they are eligible to transfer the 
Federal DGN permit after holding the Federal DGN permit for one year). 
Exceptions to this limitation on permit transfer may be made under the 
following circumstances:
    (i) The permit holder suffers from a serious illness or permanent 
disability that prevents the permit holder from earning a livelihood 
from commercial fishing.
    (ii) If a deceased permit holder's estate or heirs submit a 
transfer request within six months of the permit holder's death.
    (iii) Upon dissolution of marriage if the permit is held as 
community property.
    (9) Renewals. (i) The SFD will send notices to renew limited entry 
permits to the most recent address of the permit holder on file.
    (ii) The permit owner is responsible for renewing a limited entry 
permit.
    (iii) The deadline for receipt or postmark of a Federal DGN permit 
renewal application is April 30 of the permit year (i.e., April 30, 
2019 for 2019-2020 fishing season). Federal DGN permits must be renewed 
yearly.
    (iv) A DGN permit that is allowed to expire will not be renewed 
unless the permit owner requests reissuance by July 31 (three months 
after the renewal application deadline) and NMFS determines that 
failure to renew was

[[Page 11152]]

proximately caused by illness, injury, or death of the permit owner. If 
the permit expires, it will be forfeited and NMFS will not reissue the 
permit to anyone.
    (10) Owner on-board requirement. (i) Except as provided in 
paragraphs (f)(10)(ii) through (v) of this section, the DGN permit 
holder must be on-board the vessel and in possession of a valid Federal 
limited entry DGN permit when engaged in DGN fishing activity.
    (ii) A permit holder may designate another individual to fish under 
their permit for up to 15 days per fishing year (April 1 to March 31 of 
the following year); the substitute must comply with all other Federal 
permitting requirements. A permit holder shall notify NMFS of a 
substitution at least 24 hours prior to the commencement of the trip.
    (iii) If the person who owns a Federal DGN permit is prevented from 
being on-board a fishing vessel because the person died, is ill, or is 
injured, NMFS may allow an exemption to the owner on-board requirement 
for more than 15 days. The person requesting the exemption must send a 
letter to NMFS requesting an exemption from the owner on-board 
requirements, with appropriate evidence as described at paragraph 
(f)(10)(iv) or (v) of this section. All exemptions for death, injury, 
or illness will be evaluated by NMFS and a decision will be made in 
writing to the permit owner (or, in the case of the death of the permit 
owner, to the estate or heirs of the permit owner) within 60 calendar 
days of receipt of the original exemption request.
    (iv) Evidence of death of the permit owner shall be provided to 
NMFS in the form of a copy of a death certificate. In the interim 
before the estate is settled, if the deceased permit owner was subject 
to the owner on-board requirements, the estate of the deceased permit 
owner may send a letter to NMFS with a copy of the death certificate, 
requesting an exemption from the owner-on-board requirements. An 
exemption due to death of the permit owner will be effective only until 
such time that the estate of the deceased permit owner has registered 
the deceased permit owner's permit to a beneficiary, transferred the 
permit to another owner, or three years after the date of death as 
proven by a death certificate, whichever is earliest. An exemption from 
the owner-on-board requirement will be conveyed in a letter from NMFS 
to the estate of the permit owner and is required to be on the vessel 
during DGN fishing operations.
    (v) Evidence of illness or injury that prevents the permit owner 
from participating in the fishery shall be provided to NMFS in the form 
of a letter from a certified medical practitioner. This letter must 
detail the relevant medical conditions of the permit owner and how 
those conditions prevent the permit owner from being on-board a fishing 
vessel during DGN fishing. An exemption due to injury or illness will 
be effective only for the fishing year of the request for exemption. In 
order to extend a medical exemption for a succeeding year, the permit 
owner must submit a new request and provide documentation from a 
certified medical practitioner detailing why the permit owner is still 
unable to be on-board a fishing vessel. An exemption from the owner-on-
board requirement will be conveyed in a letter from NMFS to the permit 
owner and is required to be on the vessel during DGN fishing 
operations.

[FR Doc. 2018-05186 Filed 3-13-18; 8:45 am]
 BILLING CODE 3510-22-P