Proposed Rule2022-18201
Fisheries of the Northeastern United States; Amendment 20 to the Atlantic Surfclam and Ocean Quahog Fishery Management Plan
Primary source
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Published
August 24, 2022
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS proposes regulations to implement Amendment 20 to the Atlantic Surfclam and Ocean Quahog Fishery Management Plan. The Mid- Atlantic Fishery Management Council developed this action to limit the amount of surfclam or ocean quahog individual transferable quota share or annual allocation in the form of cage tags that an individual or their family members could hold. These changes are intended to ensure the management plan is consistent with requirements of the Magnuson- Stevens Fishery Conservation and Management Act, and to improve the management of these fisheries.
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<title>Federal Register, Volume 87 Issue 163 (Wednesday, August 24, 2022)</title>
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[Federal Register Volume 87, Number 163 (Wednesday, August 24, 2022)]
[Proposed Rules]
[Pages 51955-51959]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-18201]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 220818-0171]
RIN 0648-BI18
Fisheries of the Northeastern United States; Amendment 20 to the
Atlantic Surfclam and Ocean Quahog Fishery Management Plan
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS proposes regulations to implement Amendment 20 to the
Atlantic Surfclam and Ocean Quahog Fishery Management Plan. The Mid-
Atlantic Fishery Management Council developed this action to limit the
amount of surfclam or ocean quahog individual transferable quota share
or annual allocation in the form of cage tags that an individual or
their family members could hold. These changes are intended to ensure
the management plan is consistent with requirements of the Magnuson-
Stevens Fishery Conservation and Management Act, and to improve the
management of these fisheries.
DATES: Comments must be received by September 23, 2022.
ADDRESSES: You may submit comments on this document, identified by
NOAA-NMFS-2020-0112, by any of the following methods:
<bullet> Electronic Submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and enter NOAA-NMFS-2020-0112 in the Search box.
Click the ``Comment'' icon, complete the required fields, and enter or
attach your comments.
<bullet> Mail: Submit written comments to Michael Pentony, Regional
Administrator, NMFS, Greater Atlantic Regional Fisheries Office, 55
Great Republic Drive, Gloucester, MA 01930. Mark the outside of the
envelope: ``Comments on Surfclam/Ocean Quahog Excessive Shares
Amendment.''
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NMFS. All comments received are a part of the
public record and will generally be posted for public viewing on
<a href="http://www.regulations.gov">www.regulations.gov</a> without change. All personal identifying
information (e.g., name, address, etc.), confidential business
information, or otherwise sensitive information submitted voluntarily
by the sender will be publicly accessible. NMFS will accept anonymous
comments (enter ``N/A'' in the required fields if you wish to remain
anonymous). Written comments regarding the burden-hour estimates or
other aspects of the collection-of-information requirements contained
in this proposed rule may be submitted to the Greater Atlantic Regional
Fisheries Office and to <a href="http://www.reginfo.gov/public/do/PRAMain">www.reginfo.gov/public/do/PRAMain</a>. Find this
particular information collection by selecting ``Currently under 30-day
Review--Open for Public Comments'' or by using the search function.
Copies of Amendment 20, including the draft Environmental
Assessment (EA), are available on request from the Mid-Atlantic Fishery
Management Council, 800 North State Street, Suite 201, Dover, DE 19901.
These documents are also accessible via the internet at <a href="https://www.mafmc.org">https://www.mafmc.org</a>.
FOR FURTHER INFORMATION CONTACT: Douglas Potts, Fishery Policy Analyst,
978-281-9341.
SUPPLEMENTARY INFORMATION:
Background
This action proposes regulations to implement Amendment 20, also
known as the Excessive Shares Amendment, to the Atlantic Surfclam and
Ocean Quahog Fishery Management Plan (FMP). The Mid-Atlantic Fishery
Management Council developed this amendment to establish limits to the
amount of individual transferable quota (ITQ) quota share or cage tags
such that any particular individual, corporation, or other entity can
not acquire an excessive share of such privileges, 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.
The Magnuson-Stevens Act requires that any FMP or implementing
regulation be consistent with ten national standards for fishery
conservation and management. National Standard 4 stipulates that, ``If
it becomes necessary to allocate or assign fishing privileges among
various United States fishermen, such allocation shall be . . . carried
out in such manner that no particular individual, corporation, or other
entity acquires an excessive share of such privileges.'' When the
Council adopted Amendment 8 to the Atlantic Surfclam and Ocean Quahog
FMP, which created the individual transferable quota (ITQ) system for
managing the fishery, it relied on Federal antitrust laws to prevent
entities from acquiring excessive shares. In 2002, the Government
Accountability Office (GAO) released a report titled, Better
Information Could Improve Program Management (GAO-03-159, December 11,
2002). One of the recommendations from that report was for the Council
to define what constitutes an excessive share for this fishery. By
2007, the Council had begun development of an FMP amendment to address
this recommendation as well as implement a cost recovery program and
accountability measure requirements that were introduced by the
Magnuson-Stevens Fishery Conservation and Management Reauthorization
Act (Pub. L. 109-479). The accountability measure provisions were
subsequently removed and were implemented as part of the Council's
Annual Catch Limit and Accountability Measure Omnibus Amendment (76 FR
60605, September 29, 2011).
As part of the development of this action, an economic consulting
company, Compass Lexecon, was contracted to evaluate the fishery and to
provide advice on how to set an excessive share limit on ITQ systems
that could protect against market power without constraining the
workings of competition. The 2011 Compass Lexecon report and associated
Center for Independent Experts review indicated that, in order to
implement an excessive shares definition, managers would need more
reliable information regarding quota share ownership, and would need to
better monitor control of the quota by tracking transfers and long-term
leases of cage tags in the surfclam and ocean quahog fisheries.
In 2012, the Council voted to split the FMP amendment that was
under development. The cost recovery provisions became Amendment 17 (81
FR 38969, June 15, 2016). The Council requested that NMFS create a data
collection program as authorized under Section 402A of the Magnuson-
Stevens Act, and the Council subsequently established a new fishery
management action team (FMAT) to develop recommendations for the
program. The new program became effective on January 1, 2016 (80 FR
42747, July 20, 2015), and collected more detailed
[[Page 51956]]
information about the individual owners of companies holding quota
share and annual cage tags than was previously available.
In 2017, the Council reformed the FMAT to continue development of
the Excessive Shares Amendment. The FMAT developed a wide range of
options for defining an excessive share in this fishery and for
potential management measures to prevent anyone from acquiring an
excessive share. The full range of alternatives considered by the
Council is described in the amendment document and not repeated here.
In December 2019, the Council selected preferred alternatives, and
approved the Excessive Shares Amendment for submission to NMFS.
However, additional work was needed to prepare the environmental
analysis of the action and for NMFS to develop the systems and
protocols that would be needed to effectively monitor and enforce the
excessive share caps approved by the Council.
Excessive Share Caps
Under the Council's preferred alternative, separate caps would be
established for quota share and for annual cage tags for both the
surfclam and ocean quahog ITQ programs. The amount of quota share that
an individual or entity could have ownership in would be capped at 35
percent of the surfclam quota and 40 percent of the ocean quahog quota.
A higher cap would be established for cage tags in recognition that
additional temporary consolidation through leasing or other
transactions may be warranted within a fishing year to meet market
demand because of the limited number of processors available. There is
a limited market for fresh surfclams or ocean quahogs. The fisheries
largely rely on a small number of processing plants to convert these
species into final products or ingredients for other food companies.
These plants operate by leasing cage tags from multiple quota
shareholders and then providing those tags to harvesting vessels that
deliver clams, as needed by the plants. The amount of annual cage tags
that an individual or entity could have in a given year would be capped
at 65 percent for surfclam and 70 percent for ocean quahog.
No person or entity currently exceeds the proposed quota share cap,
nor has any entity exceeded the proposed cap on annual cage tags in
recent years. The analysis conducted by Compass Lexecon did not support
a conclusion that market power was being exercised through withholding
of quota in this fishery. The Council's preferred cap limits were
chosen to ensure that potential future consolidation does not reach the
level of an excessive share of this fishery, and were not intended to
restrict current quota share holdings.
Once implemented, NMFS would determine where each individual or
entity that holds quota share is relative to the cap. This
determination is based on the allocation held in whole or in part by
that individual and the allocation held in whole or in part by their
immediate family members. When an ITQ permit holder submits an
application to transfer quota share and/or cage tags, NMFS would review
the total allocation held by the ITQ permit holder and their immediate
family members to determine whether the transfer would exceed the quota
share cap or cage tag cap. If the ITQ permit is held by a business or
partnership, the allocation held by the owners of that business (and
their family members, if applicable) would be used in that
determination.
An individual's immediate family members, for the purposes of
monitoring these caps would consist of the individual's: Spouse and the
spouse's parents; children and their spouses; parents and their
spouses; siblings and their spouses; and grandparents and grandchildren
and their spouses.
The excessive share caps would be monitored using a calculation of
potential control. A person or entity would be considered to have
potential control of any allocation held by themselves, their family
members, or any business they have an ownership interest in. Here is a
set of example calculations of potential control.
Example 1, Potential control of allocation by an individual or a
company: Sue holds 2 percent of the Atlantic surfclam quota in her own
name. She is also a part owner, along with Mary, of ABC Clams, a
business that holds 5 percent of the quota. Mary's brother has 4
percent of the quota in his own name. For the purpose of monitoring the
quota share cap:
<bullet> Sue has potential control of 7 percent (the 2 percent of
the quota in her name plus the 5 percent of the quota held by the
company she part owns);
<bullet> Mary has potential control of 9 percent (the 5 percent of
the quota held by the company she part owns plus the 4 percent of the
quota held by her brother); and
<bullet> ABC Clams, Inc., has potential control of 11 percent of
the quota (the 5 percent of the quota it holds directly plus the quota
controlled by its owners, which in this case is the 2 percent of the
quota Sue holds separately and the 4 percent of the quota Mary's
brother holds).
Example 2, Potential control of allocation by an individual or a
company and transfers of quota allocation: Sue's son, John, wishes to
get into the business. He submits an application to transfer 3 percent
of the quota from another quota shareholder. When we process his
transfer application, we see that, as a result of the transfer, John
would have potential control of 10 percent (his new 3 percent plus his
mother's 7 percent of the quota allocation, which includes her own
quota and her ownership in ABC Clams); Sue would also have potential
control of 10 percent; ABC Clams, Inc., would have potential control of
14 percent, and Mary would still be connected to the same 9 percent.
The transfer would be approved because no entity would be over the
proposed 35-percent cap.
Example 3, Potential control of allocation by an individual or a
company and the total, cumulative cap on transfers of quota allocation:
Before the start of each fishing year, the total quota is converted
from bushels into tags for the industry-standard 32-bushel (1,700 L)
cages. Each quota shareholder is allocated cage tags based on the
amount of quota share they hold. For simplicity, this example will
assume the total quota equates to 1,000 tags, so shareholders receive
10 tags for each 1 percent of the quota they hold. As a result, and
continuing with the examples described above, Sue receives 20 tags,
John gets 30 tags, and ABC Clams gets 50 tags. In addition, based on
the proposed surfclam cage tag cap of 65 percent, no entity could hold
or potentially control more than 650 tags over the course of the
fishing year. The rules of potential control are the same for tags as
they are for quota share. Therefore, while Sue received 20 tags to her
personal allocation, she is still considered to have potential control
of the 30 tags that John received and the 50 tags that ABC Clams
received, for a total of 100 tags toward the 650-tag cap. Likewise,
John will start off the year at 100 tags, ABC Clams at 140 tags, and
Mary at 90 tags. If John and Sue both transfer their tags to ABC Clams,
the transfer would make no change to the cap total for John, Sue, or
ABC Clams (each of those entities were considered to have potential
control of those tags through ownership and family connections).
However, the additional tags would now count toward Mary's potential
control, bringing her total to 140 (50 tags initially held by ABC
Clams, 50 tags transferred in from Sue
[[Page 51957]]
and John, plus the 40 tags initially allocated to her brother).
Using tags to land surfclams does not reduce the calculation of
potential control of cage tags, nor does transferring tags to another
allocation holder. Continuing this example, ABC Clams uses all 100 tags
it physically holds to land surfclams for a processor. The company
agrees to acquire, through a temporary transfer, an additional 200 tags
from another source in order to continue fishing. Because the potential
control of allocation is considered cumulative in any given fishing
year, this results in ABC Clams having potential control of 340 tags,
even though it only has 200 tags physically in its possession. The tag
transfer would also result in a corresponding increase to the potential
control calculations for Sue (300 tags), John (300 tags), and Mary (340
tags). If ABC Clams decides to transfer 50 tags to another company, the
transfer would not reduce ABC Clams calculation of potential control
because ABC Clams controlled those tags at some point during the
fishing year. If, later in the year, ABC Clams acquires another 50 tags
to replace those it transferred earlier, its potential control would
increase to 390 tags. In this way, acquiring tags during the fishing
year would increase the calculated potential control, but using tags to
land clams or transferring tags to others would not reduce the level of
potential control.
If an entity inadvertently exceeds a cap, they would be required to
take action to correct the situation. Such an overage could occur
because of a change in company ownership that does not require a
transfer application, for example. There may be a number of ways an
entity could address such an overage and NMFS would not specify how the
overage is to be corrected.
The Magnuson-Stevens Act specifies that any information submitted
to the Secretary by any person in compliance with the requirements of
the Act is confidential unless it falls under one of the listed
exceptions. One of these exceptions is for information that is required
to be submitted to the Secretary for any determination under a limited
access program. If these regulations are finalized as proposed, the
ownership information used by NMFS to monitor and enforce these caps
would likely meet this exception and would no longer be subject to the
Act's confidentiality requirements. This would include the identities
of individuals who own businesses that hold quota share and annual cage
tags as well as the family relationships that are used to link those
individuals.
The information collection program implemented in 2016 included a
wide range of information to ensure the Council had the data it needed
to design and analyze a range of alternative management measures. The
monitoring and enforcement of the caps being proposed do not require
continued collection of some data elements, which would no longer be
collected. The ITQ Ownership form would be modified to remove the
collection of the names of corporate officers. The ITQ transfer form
would be modified to remove most of the questions under ``additional
transaction details'' except for total price. The questions being
removed include broker fees and whether the transfer is part of a long-
term contract.
Multi-Year Specifications
The FMP currently limits multi-year specifications to a maximum
duration of three years. The proposed change would allow the Council to
develop specifications for the number of years needed to align with the
stock assessment schedule approved by the Northeast Region Coordinating
Council (NRCC). The NRCC is comprised of representatives from the Mid-
Atlantic Fishery Management Council, the New England Fishery Management
Council, the Atlantic States Marine Fisheries Commission, the NMFS
Greater Atlantic Regional Fisheries Office, and the Northeast Fishery
Science Center. One of its roles is to develop a schedule for fishery
stock assessments that balances the needs of the numerous fisheries in
the region with the available resources. The current schedule calls for
an updated stock assessment every four years for surfclam and every six
years for ocean quahog. These assessment intervals are the result of
recent improvements to the methods used to survey these wild
populations. Changing the duration of specifications to match the
assessments will allow the Council, Council staff, and NMFS staff to
avoid spending time developing new specifications packages when no new
information on the health of the stocks are available. The Council and
its Scientific and Statistical Committee will continue the current
practice of reviewing the specifications each year, and making mid-
cycle adjustments if conditions warrant.
Pursuant to section 303(c) of the Magnuson-Stevens Act, the Council
has deemed that this proposed rule is necessary and appropriate for the
purpose of implementing Amendment 20.
Classification
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the
Assistant Administrator for Fisheries, NOAA, has determined that this
proposed rule is consistent with Amendment 20, other provisions of the
Magnuson-Stevens Act, and other applicable law, subject to further
consideration after public comment.
This proposed 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 (SBA) that this proposed rule, if adopted, would not
have a significant economic impact on a substantial number of small
entities. The factual basis for this certification is as follows.
A complete description of the measures, why they are being
considered, and the legal basis for proposing and implementing these
measures for the surfclam and ocean quahog fisheries are contained
above in the preamble to this proposed rule.
The measures proposed by this action apply to surfclam and ocean
quahog allocation owners. These are the individuals or entities that
received initial individual transferable quota (ITQ) allocations (i.e.,
owners of record) at the beginning of each fishing year. There were 64
allocation owners of record for surfclam and 33 for ocean quahog in
2019.
For Regulatory Flexibility Act purposes, NMFS has established a
size standard for small businesses, including their affiliated
operations, whose primary industry is commercial fishing (see 50 CFR
200.2). A business primarily engaged in commercial fishing (North
American Industry Classification System (NAICS) code 11411) is
classified as small if it is independently owned and operated, is not
dominant in its field of operation (including its affiliates), and has
combined annual receipts not in excess of $11.0 million for all its
affiliated operations worldwide. For other types of businesses, the SBA
size standards for the relevant NAICS codes were used to categorize
businesses by industry description. Of the 64 initial surfclam
allocation owners of record for 2019, 19 were categorized as
``Commercial Fishing,'' with 100 percent of them classified as small
entities (under $11 million in revenues). Of the nine allocation owners
that were categorized as ``Fish and Seafood Merchant Wholesalers,'' one
was classified as a small entity (under 100 employees) (11
[[Page 51958]]
percent) and eight were classified as large entities (89 percent).
Eight allocation owners were categorized as ``Commercial Banking,'' one
of which was classified as a small entity (under $550 million in
assets) (12 percent), and seven of which were classified as large
entities (88 percent). Six allocations were categorized as ``Credit
Unions,'' with 100 percent of them classified as large entities (over
$550 million in assets). There were also five allocations categorized
as ``Sector 92'' (Public Administration sector); therefore, small
business size standards are not applicable for these five allocation
owners. Lastly, the SBA classification for the remaining 17 surfclam
allocation owners was unknown due to lack of information.
Of the 33 initial ocean quahog allocation owners of record for
2019, 14 were categorized as ``Commercial Fishing,'' with 100 percent
of them classified as small entities. Of the six allocation owners that
were categorized as ``Fish and Seafood Merchant Wholesalers,'' two were
classified as small entities (33 percent) and four were classified as
large entities (67 percent). One allocation owner was categorized as
``Commercial Banking'' and one was categorized as ``Credit Unions''
with 100 percent of them classified as large entities. The SBA
classification for the remaining allocations owners is unknown.
The proposed measures are administrative in nature and are not
expected to have impacts on the prosecution of the surfclam and ocean
quahog fisheries, including landings levels (no changes in surfclam or
ocean quahog ex-vessel revenues are expected), fishery distribution, or
fishing methods and practices. The proposed action is not expected to
result in changes to the manner in which the surfclam and ocean quahog
fisheries are prosecuted, or the manner in which the industry operates.
An analysis of the operation of the fishery in 2017 shows that if the
proposed caps had been in place, all entities would have fallen below
the proposed cap levels. As such, no entity would have been constrained
by those cap levels, and the caps would help prevent future excessive
consolidation of the fishery. The proposed change to the maximum
duration of multi-year specifications is administrative and would not
affect how the fishery currently operates.
The proposed actions would have no impact on the way the fishery
operates, and, therefore, is not expected to disproportionately affect
small entities. Nor are the proposed actions expected to have a
significant economic impact on a substantial number of small entities.
As a result, an initial regulatory flexibility analysis is not required
and none has been prepared.
This proposed rule contains a collection-of-information requirement
subject to review and approval by OMB under the Paperwork Reduction Act
(PRA). This rule revises the existing requirements for the collection
of information 0648-0240 by removing the section of the ITQ Ownership
form that requires identification of corporate officers and removing
some of the ``additional transaction details'' questions from the ITQ
transfer form. The Council chose not to use this information to define
or monitor the excessive share caps and collecting the information
would no longer be necessary. Removing these questions is not
anticipated to change to the number of respondents or responses and
would not have a measurable reduction in burden hours or costs. An
extension of the collection is also requested through this action.
Public reporting burden for the ITQ ownership form is estimated to be
one hour to complete for new entrants and five minutes to review a pre-
filled form for renewing entities. The ITQ transfer form is estimated
to take five minutes to complete. These estimates include the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
Public comment is sought regarding: Whether this proposed
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information shall
have practical utility; the accuracy of the burden estimate; ways to
enhance the quality, utility, and clarity of the information to be
collected; and ways to minimize the burden of the collection of
information, including through the use of automated collection
techniques or other forms of information technology. Submit comments on
these or any other aspects of the collection of information at
<a href="http://www.reginfo.gov/public/do/PRAMain">www.reginfo.gov/public/do/PRAMain</a>.
Notwithstanding any other provisions of the law, no person is
required to respond to, nor shall any person by subject to a 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.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: August 18, 2022.
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
proposed to be 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. 648.14, add paragraph (j)(3)(viii) to read as follows:
Sec. 648.14 Prohibitions.
* * * * *
(j) * * *
(3) * * *
(viii) Take action to circumvent an ITQ quota share cap or cage tag
cap specified in 648.74(a)(2) or fail to take corrective action if such
cap is exceeded inadvertently.
* * * * *
0
3. In Sec. 648.72;
0
a. Revise paragraph (a) introductory text,
0
b. Revise paragraph (a)(1) introductory text, and;
0
c. Revise paragraph (b).
The revisions 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 by the Regional Administrator for a
period up to the maximum number of years needed to align with the
Northeast Region Coordinating Council-approved stock assessment
schedule. Specifications of the annual quotas will be accomplished in
the final year of the quota period, unless the quotas are 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
[[Page 51959]]
public comment, will recommend to the Regional Administrator annual
quotas and estimates of DAH and DAP for a period up to the maximum
number of years needed to align with the Northeast Region Coordinating
Council-approved stock assessment schedule. In selecting the annual
quotas, the MAFMC shall consider the current stock assessments, catch
reports, and other relevant information concerning:
* * * * *
(b) Interim quota modifications. Based upon information presented
in the quota reports described in paragraph (a)(1) of this section, the
MAFMC may recommend to the Regional Administrator a modification to the
annual quotas that have been specified for a multi-year period and any
estimate of DAH or DAP made in conjunction with such specifications
within the ranges specified in paragraph (a)(1) of this section. Based
upon the MAFMC's recommendation, the Regional Administrator may propose
surfclam and or ocean quahog quotas that differ from the annual quotas
specified for the current multi-year period. Such modification shall be
in effect for a period up to the maximum number of years needed to
align with the Northeast Region Coordinating Council-approved stock
assessment schedule, unless further modified. Any interim modification
shall follow the same procedures for establishing the annual quotas
that are specified for a multi-year period.
* * * * *
0
4. In Sec. 648.74, revise paragraphs (a)(2) and (b)(3) to read as
follows:
Sec. 648.74 Individual Transferable Quota (ITQ) Program.
(a) * * *
(2) ITQ ownership caps. (i) Quota share. A business or individual
is not eligible to be issued an ITQ permit and is not eligible to
acquire additional quota share, if, as a result of the issuance of the
permit or quota share transfer, the business or individual, or any
other person who is a shareholder or partner, or their immediate family
member, would individually or collectively have an ownership interest
in more than 35 percent of the total surfclam quota or 40 percent of
the total ocean quahog quota.
(ii) Cage tags. A business or individual is not eligible to be
issued an ITQ permit and is not eligible to acquire additional cage
tags, if, as a result of the issuance of the permit or cage tag
transfer, the business or individual, or any other person who is a
shareholder or partner, or their immediate family member, would
individually or collectively have an ownership interest in more than 65
percent of the total surfclam cage tags issued that year or 70 percent
of the total ocean quahog cage tags issued that year.
(iii) Enforcement. The following conditions apply for the purposes
of monitoring and enforcing these caps.
(A) Any partial or shared ownership is counted as full ownership by
each party for the purpose of monitoring these caps. For example, if
two people share ownership of a business with quota share, the full
amount of quota share held by the business counts toward the cap for
both owners.
(B) Having an ownership interest includes, but is not limited to,
persons who are shareholders in a corporation that holds an ITQ permit,
who are partners (general or limited) to an ITQ permit holder, who are
immediate family members of an ITQ permit holder, or who, in any way,
partly own an entity that holds an ITQ permit.
(C) Immediate family members include individuals connected by the
following relationships:
(1) Spouse, and parents thereof;
(2) Children, and spouses thereof;
(3) Parents, and spouses thereof;
(4) Siblings, and spouses thereof; and
(5) Grandparents and grandchildren, and spouses thereof.
(D) The quota share and cage tag caps do not apply to a bank or
other lender that holds ITQ quota share as collateral on a loan as
described in paragraph (a)(1)(i)(C) of this section. The quota share
held as collateral and the associated cage tags will be treated as if
it is held by the borrower.
(E) Compliance with these ownership caps is based on the total
amount of quota share or cage tags controlled throughout a fishing
year. In this instance, control means the cumulative total amount of
quota share or cage tags, including the amount held by the ITQ permit
at the start of the fishing year plus any quota share or cage tags
acquired by the ITQ permit throughout the fishing year. This measure of
control during the fishing year is increased by acquiring quota share
or cage tags from other ITQ permits, but is not reduced by any quota
share or cage tags that are transferred to another ITQ permit.
(iv) Review. The MAFMC shall review these ITQ ownership cap
measures at least every 10 years, or sooner as needed. Such a review
should include an evaluation of the effects and effectiveness of the
caps in the fishery and whether the cap levels remain appropriate or
should be adjusted.
(b) * * *
(3) Denial of ITQ transfer application. The Regional Administrator
may reject an application to transfer surfclam or ocean quahog ITQ
quota share or cage tags for the following reasons: The application is
incomplete; the transferor or transferee does not possess a valid
surfclam or ocean quahog ITQ permit for the appropriate species; the
transfer is not allowed under paragraph (a)(1)(ii)(C)(3) of this
section; the transferor's or transferee's surfclam or ocean quahog ITQ
permit has been sanctioned pursuant to an enforcement proceeding under
15 CFR part 904; the transfer would result in exceeding an ownership
cap under paragraph (a)(2) of this section; or any other failure to
meet the requirements of this subpart. Upon denial of an application to
transfer ITQ allocation, the Regional Administrator shall send a letter
to the applicant describing the reason(s) for the denial. The decision
by the Regional Administrator is the final decision of the Department
of Commerce; there is no opportunity for an administrative appeal.
* * * * *
[FR Doc. 2022-18201 Filed 8-23-22; 8:45 am]
BILLING CODE 3510-22-P
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</html>Indexed from Federal Register on August 24, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.