[Federal Register Volume 59, Number 250 (Friday, December 30, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-32157]


[[Page Unknown]]

[Federal Register: December 30, 1994]


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DEPARTMENT OF COMMERCE
50 CFR Part 663

[Docket No. 941262-4362; I.D. 121294B]

 

Pacific Coast Groundfish Fishery; Emergency Rule To Provide for 
Interim ``A'' Limited Entry Permits

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

ACTION: Emergency interim rule; request for comments.

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SUMMARY: NOAA issues this emergency interim rule to amend the 
implementing regulations for the Pacific Coast Groundfish Fishery 
Management Plan (FMP) to relax the qualifying criteria for issuance of 
``A'' limited entry fishing permits endorsed with the size of larger 
replacement vessels. This action is necessary to rectify immediately 
what NOAA has determined to be an inequity in the treatment, under the 
current regulations, of certain vessel owners with replacement vessels 
more than 5 ft (1.52 m) longer than the qualifying vessel that was 
replaced. The intended effect of this rule is to provide for 
participation in the Pacific Coast groundfish fishery by larger 
replacement vessels acquired prior to September 30, 1990 (and provided 
the vessel replaced was disposed of by that date), but whose owners 
were denied permits with an endorsed size for the larger vessel.
DATES: Effective December 23, 1994, until March 30, 1995. Comments will 
be accepted through January 30, 1995.

ADDRESSES: Submit comments to William Stelle, Jr., Director, Northwest 
Region, National Marine Fisheries Service, 7600 Sand Point Way NE, BIN-
C15700, Seattle, WA 98115-0070; or Hilda Diaz-Soltero, Director 
Southwest Region, National Marine Fisheries Service, 501 West Ocean 
Blvd., Suite 4200, Long Beach, CA 90802-4213. Documentation supporting 
this emergency action is available at the Northwest Regional Office, 
NMFS, at the address above.

FOR FURTHER INFORMATION CONTACT: William L. Robinson at (206) 526-6140; 
or Rodney McInnis at (310) 980-4030. For further information on 
application procedures, phone (206) 526-4353.

SUPPLEMENTARY INFORMATION: NOAA issues this emergency rule under the 
authority of section 305(c)(1) of the Magnuson Fishery Conservation and 
Management Act. An emergency rule that changes a fishery management 
plan is treated as an amendment to such plan for the period in which 
such regulation is in effect.
    The Pacific Fishery Management Council (Council) prepared, and the 
Secretary of Commerce approved and implemented, an amendment (Amendment 
6) to the FMP, which established a limited entry program for the 
Pacific Coast groundfish fishery off the coasts of Washington, Oregon, 
and California. Described simply, Amendment 6 and its implementing 
regulations base initial issuance of limited entry permits upon: (1) 
Actual participation in the fishery during the ``window period'' of 
July 11, 1984, to August 1, 1988, as evidenced by requisite landings of 
groundfish; or (2) other evidence of an intent to participate in the 
fishery prior to August 1, 1988, followed by actual participation in 
the fishery. Owners of vessels that made the requisite groundfish 
landings during the window period are eligible to receive an ``A'' 
endorsement, which entitles the owner to fish with the same vessel, 
transfer the permit to another vessel no larger than 5 ft (1.52 m) 
longer than the qualifying vessel, or sell the permit. ``A'' endorsed 
permits do not expire, so long as the owner renews them annually; that 
is, there is no need to actually use the vessel in the fishery to 
maintain eligibility for the program.
    Owners of vessels that did not make the requisite groundfish 
landings during the window period, but can show evidence that they were 
preparing to enter the fishery, are eligible to receive a ``provisional 
A'' endorsement, which allows them to participate in the fishery for up 
to a 3-year period. The ``provisional A'' category is intended to cover 
persons who, prior to the close of the window period, began to 
construct a new vessel or convert an old vessel (or contracted for such 
construction/conversion), but did not make the requisite landings of 
groundfish during the window period. This category requires that the 
vessel actually participate in the groundfish fishery after its 
construction or its conversion is complete. A ``provisional A'' 
endorsement requires that the owner land a minimum amount of groundfish 
during each 365-day period commencing with the first landing of any 
species of fish subsequent to the vessel having been constructed or 
converted. If the requisite 3 years of landings are completed, the 
owner is eligible to convert a ``provisional A'' endorsement into an 
``A'' endorsement. If the requisite 3 years of landings are not 
completed, when scheduled, the ``provisional A'' endorsed permit 
expires.
    The FMP amendment that describes the limited entry program was 
adopted by the Council in September 1991, and submitted to the 
Secretary for approval in 1992. A notice of availability and a proposed 
rule for Amendment 6 were published for public comment in the Federal 
Register on June 10, 1992 (57 FR 24589), and July 22, 1992 (57 FR 
32499) respectively. The Secretary approved Amendment 6 on September 4, 
1992. Final regulations responding to public comment were published on 
November 16, 1992 (57 FR 54001).
    During the development of Amendment 6, NOAA published two notices 
in the Federal Register informing the public of the Council's progress 
in developing the program so that fishing vessel owners could make 
business decisions with some idea of what to expect the limited entry 
program would require, regarding requirements to qualify for a limited 
entry permit.
    In a ``control date'' notice of August 4, 1988 (53 FR 29337), the 
Council announced that only current owners of vessels used to catch 
fish in the fishery during the period commencing on July 11, 1984, and 
ending on August 1, 1988, were likely to be eligible for initial 
permits under the forthcoming Amendment 6.
    A subsequent notice published August 28, 1990 (55 FR 35163), set 
forth the Council's intent to impose a September 30, 1990, cutoff date 
for the completion of newly constructed or converted vessels, and that 
the Council would attempt to limit fishing vessel harvesting capacity 
by endorsing limited entry permits with the ``length overall'' of the 
qualifying vessel. This notice also announced that replacement vessels 
more than 5 ft (1.52 m) greater in overall length than qualifying 
vessels that they replaced may be given a permit endorsed for the size 
of the smaller qualifying vessel if replacement occurred after 
September 30, 1990, while replacement vessels in place prior to 
September 30, 1990, may be given a permit endorsed for the size of the 
larger replacement vessel. ``In place'' means that a new vessel had 
been acquired and the old vessel had been disposed of.
    In Amendment 6 and its implementing regulations, the eligibility 
requirements for a replacement vessel more than 5 ft (1.52 m) longer 
than the replaced vessel were significantly different from the 
requirements indicated in the August 28, 1990, notice. Under the final 
regulations, a replacement vessel more than 5 ft (1.52 m) longer than 
the qualifying vessel it replaces is eligible for a ``provisional A'' 
permit endorsed for the length of the longer vessel, but such a 
``provisional A'' permit can be converted to a permanent ``A'' 
endorsement only if the vessel made Pacific groundfish landings in 
three successive 365-day periods after replacement.
    Amendment 6 provides sufficient rationale as to why a new entrant--
that is, a vessel under contract for construction or conversion during 
the 1984 to 1988 window period--should have to meet a subsequent 
landing requirement to convert a ``provisional A'' endorsement to an 
``A'' endorsement. Absent this requirement, any fishing vessel under 
contract for construction in any U.S. shipyard prior to August 1, 1988, 
would have been eligible for a limited entry permit, regardless of the 
actual intent of the owners to participate in the Pacific groundfish 
fishery. The landings requirement was thus a useful surrogate for 
confirming the owners' actual intent to operate in the fishery.
    With respect to replacement vessels, however, the new landings 
requirement served to disqualify persons who were clearly committed to 
the Pacific Coast groundfish fishery through their prior participation, 
but had the misfortune of not knowing in advance that they would be 
subjected to a 3-year landing requirement for their new vessel.
    It is reasonable to assume that some owners of qualifying vessels 
replaced those vessels prior to September 30, 1990, with larger vessels 
based on the expectation that they would be issued a limited entry 
permit endorsed with the size of the replacement vessel. A decision to 
grant these individuals an ``A'' permit endorsed with the size of the 
larger replacement vessel is consistent with the objectives of the FMP 
to ``accommodate historical participation'' and is consistent with the 
information on probable qualifying criteria available to the public 
prior to September 30, 1990. Therefore, NOAA has determined that those 
fishing vessel owners who replaced a qualifying vessel prior to 
September 30, 1990, with a larger vessel and who were denied ``A'' 
permits endorsed with the size of the larger replacement vessel were 
treated unfairly and should be issued ``A'' permits endorsed with the 
size of the larger replacement vessel.
    Some individuals denied limited entry permits for larger 
replacement vessels in place prior to September 30, 1990, may have 
already purchased additional permits and combined them with a permit 
endorsed with the size of a smaller replaced vessel in order to obtain 
a permit endorsed with the size of the larger replacement vessel or may 
have sold the permit issued for the smaller vessel. NOAA intends to 
allow vessel owners in this circumstance to be granted a permit 
endorsed for a length overall which, if combined with a permit endorsed 
for the length overall of the replaced vessel, would result in a permit 
endorsed for the length overall of the replacement vessel. This will be 
determined based on the harvesting capacity ratings listed in 50 CFR 
663.33(g).
    For the reasons described above, NOAA has determined it is 
necessary to provide immediately, by emergency regulation, for the 
issuance of ``A'' permits to the owners of larger replacement vessels 
in place prior to September 30, 1990. NOAA has determined that 
immediate issuance is necessary to provide the opportunity to those 
vessel owners to apply for and receive ``A'' permits and participate in 
the Pacific groundfish fishery. Vessel owners in this circumstance have 
demonstrated substantial participation in the Pacific Coast groundfish 
fishery in the past and their continued participation is consistent 
with the FMP. In the absence of an emergency regulation, vessel owners 
would be prohibited from using their larger replacement vessels in the 
groundfish fishery unless they purchase sufficient additional permits.
    Under this rule, owners who were denied ``A'' permits for larger 
replacement vessels, which were in place prior to September 30, 1990, 
will have 45 days from the date this rule is published in the Federal 
Register to apply for a permit with an ``A'' endorsement. If qualified 
under the limited entry regulations, as amended by this rule, 
applicants will be issued an ``A'' endorsement for the size of the 
larger replacement vessel. Applicants denied an ``A'' permit under this 
rule may appeal to the Director, Northwest Region, NMFS (Regional 
Director), under Sec. 663.42 of the Pacific Coast groundfish 
regulations, except that the opportunity to have the appeal heard by 
the Council's Permit Review Board under Sec. 663.42(e) will not be 
available, due to the short length of time this emergency rule will be 
in effect.
    In addition, any vessel owner wishing to submit a new application 
for an ``A'' permit under the provisions of this rule must apply to the 
Fishery Permits Office of the Northwest Region (see ADDRESSES).

Classification

    NMFS has determined that this rule is necessary to respond to an 
emergency situation and is consistent with the Magnuson Act and other 
applicable law.
    The Assistant Administrator for Fisheries, NOAA, also finds for 
good cause that the reasons justifying implementation of this rule on 
an emergency basis also make it impracticable and contrary to the 
public interest to provide prior notice and opportunity for public 
comment under section 553(b) of the Administrative Procedure Act. It is 
unnecessary to delay for 30 days the effective date of these emergency 
regulations, under section 553(d) of the Administrative Procedure Act 
because this rule relieves a restriction.
    This emergency rule has been determined to be not significant for 
purposes of E.O. 12866.
    No environmental assessment was prepared under the provisions of 
the National Environmental Policy Act because this rule makes a minor 
change and is within the scope of the Supplemental Environmental Impact 
Statement prepared for the limited entry plan (Amendment 6 to the FMP).
    This emergency interim rule is in compliance with the Paperwork 
Reduction Act. This rule, by broadening eligibility criteria for ``A'' 
permits, may slightly increase the information collection burden of the 
existing limited entry permit program. The emergency rule does not 
alter the types of information required in a limited entry permit 
application, as approved by the Office of Management and Budget, OMB 
Control Number 0648-0203.

List of Subjects in 50 CFR Part 663

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: December 23, 1994.
Charles Karnella,
Acting Program Management Officer, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 663 is amended 
as follows:

PART 663--PACIFIC COAST GROUNDFISH FISHERY

    1. The authority citation for part 663 continues to read as 
follows:

    Authority: 16 U.S.C. 1801 et seq.

    2. A new Sec. 663.45 is added to read as follows:


Sec. 663.45  ``A'' permits for replacement vessels.

    (a) Notwithstanding any other provision of this part, the owner of 
a replacement vessel who meets the criteria of Sec. 663.35(a)(4) may be 
issued a permit with an ``A'' endorsement for the size of the 
replacement vessel. This permit will replace any permit previously 
issued for the size of the replaced vessel.
    (b) The ``A'' endorsement will be issued only for the gear(s) for 
which the replaced vessel would have qualified for an ``A'' 
endorsement.
    (c) A request for the ``A'' permit authorized by this section must 
be submitted to FMD by February 13, 1995. The request must include the 
name and official number of the replaced vessel and the replacement 
vessel, and the NMFS groundfish limited entry application file number 
for either the replaced vessel or the replacement vessel. In the case 
of a vessel that would qualify under this section, for which no 
application has been submitted previously, a new application must be 
submitted. Application forms may be obtained from the FMD.
    (d) In the case of a vessel owner that qualifies for a new ``A'' 
permit under this section, who has already transferred his or her 
smaller permit, or purchased additional permits to combine with the 
original permit, the FMD has authority to grant a permit endorsed for a 
length overall which, if combined with a permit endorsed for the length 
overall of the replaced vessel, would result in a permit endorsed for 
the length overall of the replacement vessel. This will be determined 
based on the harvesting capacity ratings listed in Sec. 663.33(g).
    (e) The denial of an ``A'' permit under this section may be 
appealed to the Regional Director under Sec. 663.42, except that 
Sec. 663.42(e) does not apply to decisions on permits under this 
section.

[FR Doc. 94-32157 Filed 12-23-94; 3:57 pm]
BILLING CODE 3510-22-W