[Federal Register Volume 60, Number 92 (Friday, May 12, 1995)]
[Proposed Rules]
[Pages 25677-25687]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-11777]
[[Page 25677]]
DEPARTMENT OF COMMERCE
50 CFR Parts 671, 672, 675, and 676
[Docket No. 950508130-5130-01; I.D. 050195A]
RIN 0648-AH62
Limited Access Management of Federal Fisheries In and Off Alaska;
Groundfish and Crab Fisheries Moratorium
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 a temporary moratorium on the entry of new
vessels into the groundfish and crab fisheries under Federal
jurisdiction in the Bering Sea and Aleutian Islands (BSAI) area, and
the groundfish fisheries under Federal jurisdiction in the Gulf of
Alaska (GOA). This action is proposed by the North Pacific Fishery
Management Council (Council) to curtail increases in fishing capacity
and provide industry stability while the Council and NMFS prepare,
review, and, if approved, implement a comprehensive management plan for
these fisheries. This action is intended to promote the conservation
and management objectives of the Council and the Magnuson Fishery
Conservation and Management Act (Magnuson Act).
DATES: Comments must be received at the following address by June 1,
1995.
ADDRESSES: Comments must be sent to Ronald J. Berg, Chief, Fisheries
Management Division, Alaska Region, NMFS, 709 West 9th Street, Juneau,
AK 99801, or P.O. Box 21668, Juneau, AK 99802, Attention: Lori J.
Gravel. Copies of the proposed Fishery Management Plan (FMP) amendments
and the Environmental Assessment/Regulatory Impact Review/Initial
Regulatory Flexibility Analysis (EA/RIR/IRFA) for the moratorium may be
obtained from the North Pacific Fishery Management Council, P.O. Box
103136, Anchorage, AK 99510.
FOR FURTHER INFORMATION CONTACT: Jay Ginter, 907-586-7228.
SUPPLEMENTARY INFORMATION:
Background
Domestic groundfish fisheries in the exclusive economic zone (EEZ)
of the GOA and the BSAI are managed by NMFS under the GOA and BSAI
groundfish FMPs. The commercial harvest of king and Tanner crabs is
managed under the Fishery Management Plan for the Commercial King and
Tanner Crab Fisheries in the Bering Sea and Aleutian Islands Area.
These FMPs were prepared by the Council under the Magnuson Act. The FMP
for the GOA groundfish fisheries is implemented primarily by
regulations at 50 CFR part 672. The FMP for the BSAI groundfish
fisheries is implemented primarily by regulations at 50 CFR part 675.
The FMP for the king and Tanner crab fisheries in the BSAI is
implemented by regulations at 50 CFR part 671 and by Alaska
Administrative Code regulations at title 5, chapters 34 and 35. Other
Federal regulations that also affect the groundfish and crab fisheries
are set out at 50 CFR parts 620, 676, and 677.
This action would implement proposed revisions of Amendment 23 to
the Fishery Management Plan for the Groundfish Fishery of the Bering
Sea and Aleutian Islands Area, Amendment 28 to the Fishery Management
Plan for the Groundfish of the Gulf of Alaska, and Amendment 4 to the
Fishery Management Plan for the Commercial King and Tanner Crab
Fisheries in the Bering Sea and Aleutian Islands Area. These revisions
would establish temporary entry controls until more formal controls on
harvesting capacity can be implemented. The Council has been aware of
the fishery management problems caused by excess harvesting capacity or
over-capitalization since the late 1970's. The Council first
recommended a moratorium on new entry into the Alaska halibut fishery
in 1983. This proposal was disapproved by NMFS because it would not
have resolved the basic problem of overcapitalization in the halibut
fishery. In 1987, amid growing indications of excess harvesting
capacity in the North Pacific groundfish fisheries, the Council adopted
a statement of commitment to pursue alternative management measures
that would achieve optimum yield through more rational fishing effort
than exists with the current open access system. The Council
established its Future of Groundfish Committee in 1987, which examined
management problems in the groundfish, crab, and halibut fisheries off
Alaska. The Committee concluded that problems of excess harvesting
capacity and allocation conflicts would worsen under a continued open
access system. The Committee recommended a limited access management
approach for these three fisheries.
The Council, concerned that overcapitalization may be exacerbated
by speculative entry into the fisheries during its discussion of
limited access alternatives, requested NMFS to publish a control date
notice. This notice, announcing a control date of September 15, 1990,
was published in the Federal Register on September 5, 1990 (55 FR
36302) and corrected on September 13, 1990 (55 FR 37729). The notice
(a) informed the public of the Council's intention to develop measures
to limit access, and (b) established the control date after which
owners of vessels that had not previously participated would not be
assured future access to these fisheries if a limited access system
were implemented using that control date. The control date notice also
stated that ``due consideration'' would be given to vessels that were
under construction or under contract for purchase or construction and
that had harvested or processed groundfish, crab, or halibut by January
15, 1992. In response to the delay of the 1992 trawl groundfish season
from January 1, 1992, until January 20, 1992, the Council decided in
September 1991 to change the final ``due consideration'' date to
February 9, 1992.
Since 1990, the Council has contended with difficult public policy
issues related to overcapitalization and its attendant resource
allocations. Although the Council continues to develop a comprehensive
rationalization plan (CRP) to resolve most of these problems,
transition from an open access management system to a limited access,
market-based, allocation system for public fishery resources is
difficult and time consuming. For example, the Council began work on a
limited access system for the sablefish (and later halibut) longline
fisheries in 1987. The Council proposed an individual fishing quota
(IFQ) program for these fisheries in 1991. NMFS approved the IFQ
program in 1993 and fishing under the program began in 1995. For other
groundfish and crab fisheries, the Council has proposed the moratorium
as a temporary measure to slow significant increases in the harvesting
capacity of the groundfish and crab fishing fleets until a CRP can be
implemented.
This proposed moratorium is not expected to resolve the problem of
excess harvesting capacity in the groundfish and BSAI crab fisheries.
This proposed moratorium would stop the entry of a potentially
unlimited number of vessels into these fisheries that would exacerbate
overcapitalization problems and confound the ultimate development and
approval of a CRP. As an interim management measure, this proposed
moratorium would provide temporary industry stability by freezing the
number of vessels allowed to participate in the affected fisheries and
limiting increases in fishing capacity. This could [[Page 25678]] have
a limited effect of increasing economic benefits to fishermen and
reducing the risk of overfishing.
The Council originally proposed the moratorium at its meeting in
June 1992. In August 1992, and in January 1993, the Council clarified
its moratorium proposal. The Council prepared an EA/RIR/IRFA for the
proposal dated April 28, 1994, and NMFS' review of the proposal was
initiated on May 3, 1994. A notice of availability of the proposed FMP
amendments and corresponding analysis was published in the Federal
Register on May 12, 1994 (59 FR 24679), which started a 60-day public
comment period on these documents. A concurrent 45-day public comment
period on proposed implementing rules for the moratorium began on May
31, 1994 (59 FR 28827, June 3, 1994).
The Council's original moratorium proposal was disapproved by NMFS
on August 5, 1994 (59 FR 43534, August 24, 1994). In a letter to the
Council chairman on that date, the Director, Alaska Region, NMFS
(Regional Director), stated that the principal reasons for the
disapproval were that certain provisions of the moratorium would have
allowed significantly more vessels to qualify for a moratorium permit
than participate on average in any year, thereby undermining the
expressed purpose of the moratorium. The provisions were inconsistent
with several national standards of the Magnuson Act and other
applicable law. Specifically, the inconsistent provisions were:
a. The proposed qualifying period of January 1, 1980, through
February 9, 1992, would have allowed about 13,500 vessels to qualify to
participate in the fisheries under the moratorium when approximately
2,500 vessels was the annually permitted fleet size in the groundfish
and BSAI crab fisheries in recent years;
b. The crossover provision, which would have allowed a vessel to
cross over from one moratorium fishery into another moratorium fishery
in which it had no previous qualifying history while denying entry to a
vessel currently active in one of the fisheries. The crossover
provision would have exacerbated overcapacity problems;
c. The Council had not adequately considered present participation
and other factors required to be considered in developing a limited
access system by the Magnuson Act; and
d. An appeals process for the moratorium, which was redundant
because a similar limited access appeals process was already
established for the IFQ program.
Section 304(b)(3) of the Magnuson Act provides the Council an
opportunity to revise the disapproved moratorium FMP amendment and
submit a revised proposal for expedited review by NMFS. The Council
decided to take this action at its September and December 1994
meetings. NMFS has not yet made a final determination whether the
revised moratorium FMP amendments are consistent with the national
standards, other provisions of the Magnuson Act, and other applicable
law. A brief description of the Council's September and December
revisions follows.
The Council revised its original moratorium proposal at its meeting
in September 1994, by:
1. Changing the qualifying period to January 1, 1988, through
February 9, 1992;
2. Substituting the appeals procedure developed for the halibut and
sablefish IFQ program for a special moratorium appeals process; and
3. Removing the halibut and sablefish longline fisheries from the
moratorium.
The Council prepared a supplement to the analysis for the original
moratorium proposal assessing the effects of the Council's proposed
revisions. The supplemental analysis, dated February 13, 1995,
indicates that the Council's September 1994 revisions to the proposed
moratorium would substantially reduce the potential moratorium fleet
from 13,350 vessels to 4,144 vessels. The analysis estimates the
revised fleet size to be about 180 percent of the average number of
vessels that operated each year 1988 through 1991 in the groundfish and
crab fisheries. This change in the qualifying period also gave greater
weight to a vessel that participated in these fisheries in those years
as opposed to a vessel that may have participated before 1988 but not
in later years 1988 through February 9, 1992. A demonstration of recent
participation generally indicates a vessel's greater dependence on a
fishery than a vessel that has not participated in recent years. The
Council decided not to extend the qualifying period from February 9,
1992, through mid-June 1994. The Council believed its control date
notice of 1990 and its original action on a proposed moratorium in 1992
adequately alerted fishermen about the risks of entering a vessel in
these fisheries for the first time. The analysis indicates that not
extending the qualifying date through mid-June 1994 eliminated 494
vessels that entered the fisheries during the period between the cutoff
date of February 9, 1992, and mid-June 1994. About 3,600 additional
vessels were eliminated from the potential moratorium fleet by removing
those that fished only for halibut and sablefish with longline gear.
These vessels could continue to operate in these longline fisheries
under the IFQ program if their owners/operators hold a valid IFQ
permit. A landing of only halibut or sablefish caught with longline
gear during the qualifying period would not be considered a groundfish
landing to qualify a vessel for the proposed moratorium.
In September 1994, the Council decided not to change the crossover
provision. The Council reasoned that its intent was to create a single
moratorium for groundfish and BSAI crab fisheries within which
qualified vessels would be free to move among fisheries as they have
done under the open access management system. The flexibility the
crossover provision gave to vessels in one or more of these fisheries
was considered by the Council to be a critically important part of its
moratorium proposal.
In December 1994, NMFS informed the Council that the crossover
provision could continue to be an impediment to approval of the revised
moratorium proposal. The Regional Director suggested a way to overcome
this problem by providing for limited crossovers based on certain
criteria. The Council approved this change to the crossover provision
on December 11, 1994.
The revised moratorium proposal would allow a moratorium-qualified
vessel to cross over between one moratorium fishery (e.g., BSAI crab
fishery) and another moratorium fishery (e.g., the groundfish fishery,
or vice versa) during the moratorium if:
i. The vessel had made a legal landing in both fisheries during the
qualifying period; or
ii. The vessel uses the same type of fishing gear in the second
fishery that it used in the first fishery to qualify for the
moratorium; or
iii. The vessel qualified for the moratorium in one fishery and,
during the period February 9, 1992, through December 11, 1994, made a
legal landing in the other moratorium fishery and uses the same type of
fishing gear it used during that period.
The following paragraphs describe how NMFS would implement this
limited crossover provision and provide a general description of the
proposed moratorium program.
Proposed Vessel Moratorium Program
The proposed moratorium program, if approved, would limit access to
the groundfish and BSAI crab resources off Alaska to a vessel that has
been issued a moratorium permit by NMFS. A [[Page 25679]] moratorium
permit would be required in addition to any other permit or license
required by Federal or state regulations unless those requirements are
specifically waived. NMFS is considering alternatives that would
simplify the permit application and issuance process, including a
unified Federal permitting system for groundfish and crab.
1. Vessels Affected by the Proposed Moratorium
The proposed moratorium would require a moratorium permit for a
vessel that catches and retains any species of king and Tanner crabs
whose commercial fishing is governed by the Fishery Management Plan for
the Commercial King and Tanner Crab Fisheries in the Bering Sea and
Aleutian Islands Area and its implementing regulations at 50 CFR part
671 (``moratorium crab species''). A moratorium permit also would be
required of a vessel that conducts directed fishing for any groundfish
species whose commercial fishing is governed by the Fishery Management
Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands
Area, and the Fishery Management Plan for Groundfish of the Gulf of
Alaska and their respective implementing regulations at 50 CFR parts
672 and 675 (``moratorium groundfish species''). Moratorium crab
species and moratorium groundfish species are collectively referred to
as ``moratorium species.'' A vessel that catches and retains moratorium
crab species and is issued a moratorium permit would be required to
have any Federal or state permits specified in the applicable
regulations. However, a vessel that conducts directed fishing for any
moratorium groundfish species and is issued a moratorium permit would
not be required to have a Federal groundfish permit.
A vessel ``directed fishing'' or targeting on groundfish species
would be required to have a moratorium permit, unless the vessel is
exempted, as described below. The term ``directed fishing'' is defined
in the groundfish FMPs' implementing regulations at 50 CFR parts 672
and 675. Basically, this term establishes criteria by which NMFS may
determine which species of groundfish a vessel has been targeting when
any fish are on board the vessel. A vessel that takes only incidental
catches of moratorium groundfish species in the EEZ would not be
required to have a moratorium permit; however, it would be required to
have a Federal groundfish permit. A vessel without a moratorium permit
in the EEZ would be required to discard any catch of a moratorium
groundfish species that exceeds the maximum retainable bycatch amount
specified in the directed fishing definition in parts 672 and 675.
Crabs are prohibited species in the groundfish fishery, which means
that any bycatch of crab must be immediately returned to the sea.
The Council specifically exempted certain vessels from the proposed
moratorium. Such vessels would not be required to obtain moratorium
permits. The rationale for these exemptions was provided in the
proposed rule for the original moratorium proposal (59 FR 28827, June
3, 1994). Other existing Federal and state permit requirements would
continue to apply to exempted vessels. A vessel within one of the
following categories would be exempt from the moratorium and would not
be required to have a moratorium permit (but may be required to have a
Federal groundfish permit):
A vessel that is not used to catch fish (e.g., processor
vessel, tender, or support vessel); or
A vessel that does not catch and retain moratorium crab
species or that does not conduct directed fishing for moratorium
groundfish species; or
A vessel that catches and retains moratorium crab species
or that conducts directed fishing for moratorium groundfish species
only within state waters; or
A vessel that conducts directed fishing for moratorium
groundfish species in the GOA and that does not exceed 26 ft (7.9 m) in
length overall (LOA) providing such vessel length is not increased
beyond this LOA limit; or
A vessel that catches and retains moratorium crab species
or that conducts directed fishing for moratorium groundfish species in
the BSAI area and that does not exceed 32 ft (9.8 m) LOA providing such
vessel length is not increased beyond this LOA limit; or
A vessel that catches IFQ halibut or IFQ sablefish or
halibut or sablefish under the Western Alaska Community Development
Quota (CDQ) program; or
A vessel that, after the implementation of the CDQ program
for pollock on November 18, 1992 (57 FR 54937, November 23, 1992) is
specifically constructed and used to harvest pollock in accordance with
a Community Development Plan (CDP), is specially designed and equipped
to meet specific needs that are described in the CDP, and is no greater
than 125 ft (38.1 m) LOA.
2. Moratorium Permit Qualifications
Generally, a vessel would be qualified to receive a moratorium
permit, if it made a legal landing of any moratorium species during the
qualifying period of January 1, 1988, through February 9, 1992. The
exceptions to this general rule are described below.
A ``legal landing'' would be defined as any amount of a moratorium
species that was landed in compliance with Federal and state
regulations in effect at the time of the landing. The primary effect of
this definition would be to limit landing claims to those that could be
verified through Federal and state records of required landing reports.
A vessel owner who alleges that government records are in error would
have to produce a copy of a valid state fish ticket or other required
report as evidence of participation of the vessel in a fishery for a
moratorium species during the qualifying period.
A vessel for which acceptable evidence exists of a legal landing of
a moratorium species during the qualifying period would be considered
by NMFS to have moratorium qualification, except if that vessel is
exempt from the moratorium as described above. For example, a vessel
that is less than or equal to 26 ft (7.9 m) LOA and that made a legal
landing of moratorium species caught only in the GOA would not have
moratorium qualification. Likewise, a vessel that made a legal landing
only of halibut and sablefish caught with fixed gear during the
qualifying period would not have moratorium qualification.
An exempt vessel may continue to fish for moratorium species, if it
has on board a groundfish permit issued by NMFS or a crab permit issued
by the State of Alaska pursuant to existing regulations. For example, a
Federal groundfish permit would be required of any vessel that
participates in the EEZ groundfish fisheries off Alaska, including a
processor vessel, a support vessel, a small vessel exempted from the
moratorium, as well as a vessel that harvests IFQ sablefish. Issuance
of a groundfish permit would not require moratorium qualification. By
not allowing such a vessel a moratorium qualification, the vessel would
be prevented from transferring moratorium qualification to another
vessel that could increase the overall harvesting capacity of the fleet
counter to the Council's objective in proposing the moratorium.
A vessel that operates under the IFQ program and that does not have
moratorium qualification would be able to retain bycatch amounts of
[[Page 25680]] moratorium groundfish species, such as Pacific cod and
rockfish, up to the maximum allowable retention limits set forth at 50
CFR parts 672 and 675. The retention of these species is required under
the IFQ program regulations at 50 CFR part 676, unless retention is
otherwise restricted or prohibited by Federal or state regulations.
Hence, a moratorium permit would not be required of vessels used by
fishermen with IFQs for halibut or sablefish.
A moratorium permit would be issued to the person who owns a
moratorium-qualified vessel after approval of an application for a
moratorium permit for that vessel. Moratorium qualification would be a
characteristic of a vessel that stays with the vessel, except as
described below. NMFS would maintain a database of vessels that are
moratorium-qualified according to official landings records. If the
owner of a vessel that would require a moratorium permit applies for
one, NMFS may issue a permit if the vessel is on the list of
moratorium-qualified vessels and is within its maximum LOA. Moratorium
permits would be valid only for the year in which they are issued. A
vessel owner who receives a moratorium permit for a vessel one year may
not necessarily receive one for the same vessel in a succeeding year if
the vessel loses its moratorium qualification.
The moratorium qualification of a vessel could be lost if it is
transferred to another vessel or person, or if the vessel's LOA is
increased to exceed the maximum LOA for that vessel. A vessel's maximum
LOA is defined in the proposed rule as the greatest LOA that the
vessel, or its replacement, may have and remain qualified for a
moratorium permit. The maximum LOA of a vessel that is less than 125 ft
(38.1 m) LOA would be either 1.2 times the vessel's original qualifying
length, or 125 ft (38.1 m), whichever is less. The maximum LOA of a
vessel that is 125 ft (38.1 m) or greater would be equal to its
original qualifying length. The original qualifying length of a vessel
would be the LOA of the vessel on or before June 24, 1992. This limited
length increase allowance, known as the ``20 percent rule,'' is
intended to provide an owner of a smaller vessel with an opportunity to
increase the vessel's stability by widening and lengthening the hull.
The 20 percent rule could increase safety margins for a vessel,
although it also would provide an opportunity to increase its fishing
capacity. The Council recognized this possibility, and limited any
vessel length increases to a vessel less than 125 ft (38.1 m) LOA. The
Council made this decision on June 24, 1992, to discourage a vessel
owner from increasing the vessel's length substantially between that
date and the potential implementation date of the moratorium. Any
violation of the 20 percent rule would nullify the moratorium
qualification of the vessel that exceeds its maximum LOA.
3. Crossovers
The Council's original moratorium proposal would not have limited
the ability of a vessel that qualified for a moratorium permit because
of a legal landing, for example, of a moratorium crab species to cross
over to a fishery for a moratorium groundfish species, even if it had
no previous landing history in a groundfish fishery. For the reasons
described above, the Council decided at its meeting in December 1994,
to limit crossovers. The rationale for this revision is to allow a
vessel to move between the groundfish and BSAI crab fisheries as
intended in the original moratorium proposal, but to limit that
movement based on the type of fishing gear used by the vessel either to
qualify for the moratorium or during the period of time immediately
following the qualifying period and before December 11, 1994. This
crossover limitation recognizes the basic similarity of fishing gear
used in the BSAI crab fisheries and some groundfish fisheries. It also
recognizes the fact that some moratorium-qualified vessels crossed over
to enter a new moratorium fishery after the cutoff date of February 9,
1992, based on the Council's original moratorium proposal. These
vessels would be allowed to continue to operate in these fisheries
under the moratorium but would be restricted to using the fishing gear
used from February 10, 1992, through December 11, 1994, the date of the
Council's decision on the revised moratorium proposal.
Either of two conditions would allow a moratorium-qualified vessel
that had a legal landing during the qualifying period only in the
groundfish fishery to cross over under the moratorium as a new vessel
in the BSAI crab fishery (or vice versa):
1. The vessel could cross over into the new fishery providing it
uses only the same basic (authorized) fishing gear that it used to
qualify for the moratorium; or
2. The vessel could cross over into the new fishery providing it
had made a legal landing in that fishery during the period February 10,
1992, through December 11, 1994, and it uses only the same basic
(authorized) fishing gear that it used during that period.
Example 1. A vessel that made a legal landing in the BSAI crab
fisheries during the qualifying period would be eligible for a
moratorium permit to operate in that fishery and in the BSAI or GOA
groundfish fisheries using pot gear where that gear is authorized. The
only legal fishing gear in the BSAI crab fisheries is pot gear.
Therefore, this vessel would be limited in crossing over into the
groundfish fisheries to using pot gear.
Example 2. A vessel that made a legal landing in the BSAI or GOA
groundfish fisheries during the qualifying period would be eligible for
a moratorium permit to operate in that fishery using any authorized
fishing gear for groundfish. The same vessel also made a legal landing
in the BSAI crab fishery during the period February 10, 1992, through
December 11, 1994. Therefore, this vessel also would be eligible for a
moratorium permit to operate in the BSAI crab fishery, and its
flexibility to move between fisheries using any authorized gear would
be unlimited.
Example 3. A vessel that made a legal landing in the BSAI crab
fisheries during the qualifying period would be eligible for a
moratorium permit to operate in that fishery and in the BSAI or GOA
groundfish fisheries using pot gear where that gear is authorized. The
same vessel also made a legal landing in the groundfish fisheries using
hook-and-line gear during the period February 10, 1992, through
December 11, 1994. Therefore, this vessel also would be eligible for a
moratorium permit to operate in the groundfish fisheries using hook-
and-line gear. This vessel would not be eligible to cross over into the
groundfish fishery using trawl gear under the moratorium, but would be
limited to fishing for groundfish with either pot or hook-and-line
gear.
This revision to the proposed moratorium would require NMFS to
issue moratorium permits with fishery-specific fishing gear
endorsements. A moratorium permit would not be valid without at least
one gear endorsement. Four types of fishery/gear endorsements are
proposed that comprise categories of fishing gear that are specifically
authorized in Federal regulations (with respect to groundfish) or in
State of Alaska regulations (with respect to crab). These fishery/gear
endorsement categories are as follows:
a. Groundfish/trawl, includes groundfish pelagic and nonpelagic
trawl gears as defined at 50 CFR part 672;
b. Crab/pot, includes crab pot gear as defined in the Alaska
Administrative Code at title 5, chapters 34 and 35;
c. Groundfish/pot, includes groundfish longline pot and pot-and-
line gears as defined at 50 CFR part 672; and [[Page 25681]]
d. Groundfish/hook, includes groundfish hook-and-line and jig gears
as defined at 50 CFR part 672.
The Regional Director would determine the appropriate fishery/gear
endorsement for a moratorium permit based on the permit application
received and existing landings records and vessel LOA. A moratorium
permit may be issued for the groundfish fishery or the BSAI crab
fishery or both. In addition, a moratorium permit may be issued with
one or more of the fishery/gear endorsements listed above. For example,
a moratorium-qualified vessel that made a legal landing of BSAI crab
during the qualifying period would be issued a moratorium permit to
fish for groundfish and BSAI crab with a pot gear endorsement.
Alternatively, a moratorium-qualified vessel that made a legal landing
of groundfish using trawl gear during the qualifying period would be
issued a moratorium permit to fish for groundfish with all groundfish
gear endorsements, but that vessel would not be permitted to fish for
BSAI crabs unless it also had made a legal landing in the BSAI crab
fishery during the period February 10, 1992, through December 11, 1994.
This restriction is necessary to carry out the proposed limited
crossover policy.
4. Transferability
The moratorium qualification issued to a vessel would be
transferrable under certain conditions. All such transfers would have
to be approved by the Regional Director before they would be effective.
A vessel that loses its moratorium qualification due to a transfer
would become disqualified to participate in any moratorium fishery on
the effective date of the transfer. The purpose of providing for
transfers is to allow vessels to make limited improvements or to
replace existing vessels in the moratorium fisheries. Restrictions on
transfers are necessary to limit the potential fishing capacity
resulting from vessel improvements or replacements. A moratorium
qualification may be transferred without a moratorium permit if, for
example, no such permit has been issued based on that qualification. A
moratorium permit would not be transferrable during the year for which
it is issued without also transferring the moratorium qualification on
which it is based.
Moratorium qualification would be assumed to remain attached to the
vessel that made a legal landing of moratorium species during the
qualifying period, unless otherwise specified in a purchase agreement
or contract. Hence, NMFS would presume that the owner of a moratorium-
qualified vessel at the time of a moratorium permit application also
possesses the moratorium qualification for that vessel. The moratorium
qualification of a vessel may be transferred from the owner of the
vessel to another person by mutual agreement. For example, the
moratorium qualification of a vessel, commonly referred to as the
vessel's ``fishing rights,'' may be retained by the vessel's owner to
liquidate independently of the vessel. A vessel owner also may choose
to retain the moratorium qualification of his or her vessel when it is
sold, lost or destroyed, so that he/she can apply it to a replacement
vessel. Regardless of the reason for transferring the moratorium
qualification, NMFS would require valid documentation of the transfer
before the moratorium qualification could be used as a basis for
issuing a moratorium permit.
A moratorium permit would not be valid without a valid moratorium
qualification. Moratorium permits would be valid only in the calendar
year for which they are issued. Hence, the validity of a vessel's
moratorium qualification would be confirmed at least annually, or
whenever a moratorium permit application is submitted. The validity of
a vessel's moratorium qualification would depend on its compliance with
the 20 percent rule described above, with respect to the vessel's
maximum LOA. Each moratorium qualification would be characterized by a
maximum LOA. A transfer of a vessel's moratorium qualification to a
vessel that exceeds the maximum LOA of the moratorium qualification
would not be approved by NMFS, for example, and no moratorium permit
would be issued.
A moratorium permit would not be separable from the moratorium
qualification on which the permit is based. A moratorium qualification
transfer by itself would automatically invalidate any moratorium permit
that had been based on that moratorium qualification. Fishery and gear
endorsements could not be separated and transferred independently. For
example, a moratorium permit that authorizes a vessel to harvest
moratorium species of groundfish and crab with pot gear could not be
separated into a groundfish/pot permit and a crab/pot permit. Likewise,
gear endorsements could not be separately transferred from a moratorium
permit. For example, the hook endorsement on a groundfish/trawl, pot,
and hook permit would not be transferrable.
Replacement or salvage of a lost or destroyed vessel: A cutoff date
of January 1, 1989, is proposed for determining the replacement of a
moratorium-qualified vessel that was lost or destroyed. The moratorium
qualification of a vessel that was lost or destroyed before that date
would no longer be valid for purposes of a moratorium permit, unless
salvage of the vessel had started before June 24, 1992. The Council
reasoned that a vessel owner who lost a vessel before January 1, 1989,
would have replaced the vessel before the end of the qualifying period
if the owner intended to continue participation in the moratorium
fisheries.
The moratorium qualification of a vessel that was lost or destroyed
on or after January 1, 1989, but before the effective date of the
moratorium, may be valid and transferred to a replacement vessel if the
LOA of the replacement vessel does not exceed the maximum LOA of the
moratorium-qualified vessel that was lost, and the replacement vessel
makes a legal landing of a moratorium species within the first 2 years
(730 days) after the effective date of the moratorium. At the beginning
of the third year of the moratorium, NMFS would determine whether the
replacement vessel made a legal landing of a moratorium species. If
not, then no moratorium permit would be issued to the vessel that year.
The moratorium qualification of a vessel that is lost or destroyed
after the effective date of the moratorium may be transferred to a
replacement vessel, providing it does not exceed the maximum LOA of the
moratorium-qualified vessel that was lost.
The moratorium qualification of a vessel that was lost or destroyed
before January 1, 1989, may be valid for the vessel if salvage
operations began on or before June 24, 1992, the salvaged vessel does
not exceed its maximum LOA, and the salvaged vessel makes a legal
landing of a moratorium species within the first 2 years (730 days)
after the effective date of the moratorium. A moratorium-qualified
vessel that was lost or destroyed on or after January 1, 1989, may be
salvaged and may be eligible for a moratorium permit if the salvaged
vessel does not exceed its maximum LOA and the moratorium qualification
of the vessel has not been transferred.
Reconstruction: Vessel reconstruction means a change in the
original qualifying length of a moratorium-qualified vessel. The
moratorium qualification of a vessel reconstructed in a manner that
changes its LOA would be controlled under the moratorium by the 20
percent rule described above and the dates when reconstruction was
started and finished. The LOA of a moratorium- [[Page 25682]] qualified
vessel could be changed to exceed the vessel's maximum LOA without
invalidating its moratorium qualification only if reconstruction of the
vessel began before June 24, 1992, was completed after that date, and a
transfer of the vessel's moratorium qualification or moratorium permit
to the reconstructed vessel is approved by NMFS. The revised maximum
LOA of such a vessel would be established as equal to the reconstructed
LOA even if the reconstructed LOA were less than 125 ft (38.1 m). The
purpose for this exception to the 20 percent rule is to prevent the
disqualification of a vessel that was undergoing reconstruction on the
date that the Council initially acted to recommend its original
moratorium proposal. The Council decided that such a vessel should be
allowed to participate in the fisheries under the moratorium, but that
it should not be allowed any additional length increases under the 20
percent rule. A vessel that completed reconstruction before June 24,
1992, would have its LOA on that date used as a basis for determining
its maximum LOA, and a vessel that started reconstruction after June
24, 1992, would have its LOA restricted by the 20 percent rule.
Vessel reconstruction would begin and end with the start and
completion of the physical modification of the vessel. The
determination of any adjustment in maximum LOA for reconstructed
vessels would have to be approved by NMFS and be based on documentation
supplied to NMFS that verifies the beginning and ending dates of vessel
reconstruction. NMFS proposes that acceptable documentation of the
beginning and ending dates of reconstruction would be limited to a
notarized affidavit signed by the vessel owner and the owner/manager of
the shipyard that specifies the beginning and ending dates of the
reconstruction. NMFS particularly requests comments from the public on
this proposed method for documenting the beginning and ending dates of
vessel reconstruction.
5. Administration
The moratorium would be implemented by limiting the issuance of a
moratorium permit to only a moratorium-qualified vessel. The Restricted
Access Management Division within the Alaska Region, NMFS, would
administer the moratorium program by maintaining a database of
moratorium-qualified vessels, issuing, receiving, and reviewing permit
and transfer applications, making initial determinations of
eligibility, and issuing moratorium permits. This work would be
conducted in parallel with the issuance of a Federal groundfish permit
to each vessel that would not need a moratorium permit but that
otherwise would participate in the groundfish fisheries in the EEZ
(i.e., a moratorium-exempt vessel such as a processor, support vessel,
and a small vessel). Federal groundfish permits would continue to be
unlimited and issued without cost on receipt of an application. A
moratorium permit would be required in lieu of a Federal groundfish
permit for vessels subject to the moratorium. A vessel that intended to
harvest moratorium crab species in the BSAI area would need a
moratorium permit in addition to all permits and licenses required by
the State of Alaska.
An application for a moratorium permit could be submitted at any
time. The permit would be valid only through December 31 of the year
for which the permit is issued. NMFS expects that most moratorium
permit applications would be submitted in November and December for the
succeeding fishing year. An approved moratorium permit would be issued
to the owner of a moratorium-qualified vessel after review and
processing of the permit application. The moratorium permit application
would be similar in form to the Federal groundfish application
currently in use.
The primary test for approval of a moratorium permit application
for a vessel would be demonstration of the vessel's moratorium
qualification and that its LOA is less than or equal to the maximum LOA
associated with the moratorium qualification. As stated above,
moratorium qualification would be assumed to remain with a vessel that
made a legal landing of any moratorium species during the qualifying
period. Otherwise, a valid contract or agreement to transfer a vessel's
moratorium qualification or retain it when the vessel is transferred
would be required to demonstrate ownership of the moratorium
qualification. Determination of a vessel's maximum LOA would be based
on Federal or state permit or registration documents dated on or before
June 24, 1992 that demonstrate the original qualifying length of the
vessel. If these documents are not available or contested, NMFS may
request the vessel owner to produce marine survey, builders plans, or
other third-party documentation of the vessel's length on or before
June 24, 1992.
An application for transfer of moratorium qualification or a
moratorium permit also could be submitted at any time, and both
applications could be submitted simultaneously. The primary test for
approval of a transfer would be demonstration of agreement to the
transfer by the owners and would-be receivers of the moratorium
qualification/permit, and proof that the vessel that would receive the
moratorium qualification/permit is less than or equal to the maximum
LOA associated with the moratorium qualification.
An initial administrative determination to deny the issuance of a
moratorium permit would be explained in writing to the permit
applicant, and the denial could be appealed following the procedures
set forth at 50 CFR 676.25. A written appeal would have to be submitted
to the Alaska Region, NMFS, within 60 days after the date that the
determination was made. An initial administrative determination to deny
an application for a permit would include a letter of authorization to
the applicant authorizing the affected vessel to operate as if the
application were approved pending appeal. The temporary authority
granted by the letter of authorization would expire on the effective
date of the final agency action on the appeal. The final agency action
on the appeal, for purposes of judicial review, would occur at the end
of the 60-day appeal period if no appeal were filed, or 30 days after
the appellate officer's decision is issued, except as provided at 50
CFR 676.25. No appeal is provided for a denial of a transfer of
moratorium qualification or moratorium permit. The maximum LOA
restrictions would be too easily circumvented and the purpose of the
moratorium undermined, if appeals of transfer denials were allowed.
Classification
Section 304(a)(1)(D) of the Magnuson Act requires NMFS to publish
regulations proposed by a Council within 15 days of receipt of the
amendment and regulations. At this time NMFS has not determined that
the amendment these rules would implement is consistent with the
national standards, other provisions of the Magnuson Act, and other
applicable laws. NMFS, in making that determination, will take into
account the data, views, and comments received during the comment
period.
The Assistant Administrator for Fisheries, NOAA, has determined
that this proposed rule, if adopted, could have a significant economic
impact on a substantial number of small entities. Based on the EA/RIR/
IRFA of the moratorium prepared by the Council, total participation in
the moratorium fisheries for a given year is influenced
[[Page 25683]] by the annual rate of entrance and exit of vessels.
Although new entrants averaged nearly 900 vessels annually over the
period 1977-91, total participation increased only 180 vessels per
year, on average, because 500 to 1,000 vessels annually exited the
fisheries.
The revised moratorium proposal would reduce the potential fleet of
vessels qualified to fish under the moratorium from 13,350 under the
original proposal to 4,144 under the revised proposal. The number of
qualifying vessels under the revised proposal is about 180 percent of
the average number of vessels that operated in the affected fisheries
each year 1988-91. Roughly 25 percent of this potential qualifying
fleet is small vessels that would be exempted and permitted to operate
in the moratorium fisheries, regardless of the moratorium. The proposed
moratorium would prevent the participation of vessels that entered the
affected fisheries for the first time between February 9, 1992, and the
end of 1994, or that made landings only in the fixed-gear fisheries for
halibut and sablefish. An estimated 973 vessels would not qualify for a
moratorium permit for these reasons, unless they received transferred
moratorium qualification. This number includes about 324 vessels that
are 26 ft (7.9 m) in length or less that would be able to participate
with a normal Federal groundfish permit. Large vessels over 90 ft (27.4
m) in length have the greatest fish harvesting capacity, and the
greatest potential impact on the fishery resources. About 28 large
vessels that entered the fisheries after February 9, 1992, would not
qualify for a moratorium permit. A copy of the EA/RIR/IRFA may be
obtained (see ADDRESSES).
This rule involves collection-of-information requirements subject
to the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) that have been
approved by the Office of Management and Budget (OMB) (OMB control
number 0648-0282). This approval expires August 31, 1997, and was based
on the original moratorium proposal submitted in 1994. The revised
moratorium proposal would affect fewer vessels. Therefore, the
paperwork burden would be somewhat less than originally estimated for
the original collection-of-information request. These paperwork burdens
include the time for reviewing the instructions, gathering and
maintaining the data needed, and completing and reviewing the
collection of information that pertains to permit, appeals, and
transfer applications. Send comments regarding this paperwork burden or
any other aspect of the data requirements, including suggestions for
reducing the burden, to NMFS (see ADDRESSES) and to the Office of
Information and Regulatory Affairs, OMB, Washington, D.C. 20503 (ATTN:
NOAA Desk Officer).
This action has been determined to be not significant for purposes
of E.O. 12866.
List of Subjects
50 CFR Part 671
Fisheries, Fishing, Reporting and recordkeeping requirements.
50 CFR Parts 672 and 675
Fisheries, Recordkeeping and reporting requirements.
50 CFR Part 676
Alaska, Fisheries, Reporting and recordkeeping requirements.
Dated: May 9, 1995.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR parts 671, 672,
675, and 676 are proposed to be amended to read as follows:
PART 671--KING AND TANNER CRAB FISHERIES OF THE BERING SEA AND
ALEUTIAN ISLANDS
1. The authority citation for 50 CFR part 671 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. Section 671.2 is amended by adding the definitions for ``King
crab'' and ``Tanner crab'', in alphabetical order, to read as follows:
Sec. 671.2 Definitions.
* * * * *
King crab means red king crab, Paralithodes camtschatica; blue king
crab, P. platypus; or brown (or golden) king crab, Lithodes aequispina;
scarlet (or deep sea) king crab, L. couesi.
* * * * *
Tanner crab means Chionoecetes bairdi; snow crab, C. opilio;
grooved Tanner crab, C. tanneri; triangle Tanner crab, C. angulatus; or
any hybrid of these Tanner crab species.
3. Section 671.3 is added to read as follows:
Sec. 671.3 Relation to other laws.
(a) Foreign fishing. Regulations governing foreign fishing for
groundfish in the Gulf of Alaska are set forth at Sec. 611.92 of this
chapter. Regulations governing foreign fishing for groundfish in the
Bering Sea and Aleutian Islands Management Area are set forth at
Sec. 611.93 of this chapter.
(b) King and Tanner crab. Regulations governing the conservation
and management of king and Tanner crab also are found in the Alaska
Administrative Code at title 5, chapters 34, 35, and 39.
(c) Halibut fishing. Regulations governing the conservation and
management of Pacific halibut are set forth at part 301 of this title
and part 676 of this chapter.
(d) Domestic fishing for groundfish. Regulations governing the
conservation and management of groundfish in the EEZ of the Gulf of
Alaska and in the Bering Sea and Aleutian Islands Management area are
set forth at parts 620, 672, 675, and 676 of this chapter.
(e) Limited access. Regulations governing access to commercial
fishery resources are set forth at part 676 of this chapter.
(f) Marine mammals. Regulations governing exemption permits and the
recordkeeping and reporting of the incidental take of marine mammals
are set forth at Sec. 216.24 and part 229 of this title.
(g) Research plan. Regulations governing elements of the North
Pacific Fisheries Research Plan are set forth at part 677 of this
chapter.
4. Section 671.4 is revised to read as follows:
Sec. 671.4 Permits.
This section is effective from January 1, 1996, through December
31, 1998, unless otherwise specified. In addition to any other permits
or licenses that may be required by Federal or state regulations, the
owner of a vessel of the United States must obtain a moratorium permit
issued under 50 CFR part 676 before using the vessel to catch and
retain king or Tanner crab in the Bering Sea and Aleutian Islands Area
unless specifically exempt under 50 CFR part 676.
PART 672--GROUNDFISH OF THE GULF OF ALASKA
5. The authority citation for 50 CFR part 672 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
6. Section 672.3, paragraph (f) is added to read as follows:
Sec. 672.3 Relation to other laws.
* * * * *
(f) Crab fishing. Regulations governing the conservation and
management of king and Tanner crab in the Bering Sea and Aleutian
Islands Area are set forth at parts 671 and 676 of this chapter, and
[[Page 25684]] in the Alaska Administrative Code at title 5, chapters
34, 35, and 39.
7. Section 672.4, paragraph (a) is revised to read as follows:
Sec. 672.4 Permits.
(a) General. This section is effective from January 1, 1996,
through December 31, 1998, unless otherwise specified. Unless
specifically exempt under 50 CFR part 676, the owner of a vessel of the
United States must obtain a moratorium permit issued under 50 CFR part
676 before using the vessel to conduct directed fishing for moratorium
groundfish species, as defined at Sec. 676.2 of this chapter, in the
Gulf of Alaska. The owner of a vessel of the United States that is not
required to have a moratorium permit because the vessel is specifically
exempt under Sec. 676.3 of this chapter must obtain a groundfish permit
issued under this part before using the vessel to fish for groundfish
in the Gulf of Alaska. Such permits shall be issued without charge.
* * * * *
PART 675--GROUNDFISH OF THE BERING SEA AND ALEUTIAN ISLANDS AREA
8. The authority citation for 50 CFR part 675 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
9. Section 675.3, paragraph (f) is added to read as follows:
Sec. 675.3 Relation to other laws.
* * * * *
(f) Crab fishing. Regulations governing the conservation and
management of king and Tanner crab in the Bering Sea and Aleutian
Islands Area are set forth at parts 671 and 676 of this chapter, and in
the Alaska Administrative Code at title 5, chapters 34, 35, and 39.
10. Section 675.4(a) is revised to read as follows:
Sec. 675.4 Permits.
(a) General. This section is effective from January 1, 1996,
through December 31, 1998, unless otherwise specified. The owner of a
vessel of the United States must obtain a moratorium permit issued
under 50 CFR part 676 before the vessel is used to conduct directed
fishing for moratorium groundfish species, as defined at Sec. 676.2 of
this chapter, in the Bering Sea and Aleutian Islands management area,
unless specifically exempt under Sec. 676.3 of this chapter. The owner
of a vessel of the United States that is not required to have a
moratorium permit because the vessel is specifically exempt under
Sec. 676.3 of this chapter must obtain a groundfish permit issued under
this part before using the vessel to fish for groundfish in the Bering
Sea and Aleutian Islands management area. Such permits shall be issued
without charge.
* * * * *
PART 676--LIMITED ACCESS MANAGEMENT OF FEDERAL FISHERIES IN AND OFF
ALASKA
11. The authority citation for part 676 continues to read as
follows:
Authority: 16 U.S.C. 773 et seq. and 1801 et seq.
12. Subpart A is amended by adding Secs. 676.1 through 676.6 to
read as follows:
Subpart A--Moratorium on Entry
Sec.
676.1 Purpose and scope.
676.2 Definitions.
676.3 Moratorium permits.
676.4 Transfer of moratorium permits.
676.5 Permit application procedure.
676.6 Prohibitions.
676.7-676.9 [Reserved]
Subpart A--Moratorium on Entry
Sec. 676.1 Purpose and scope.
This subpart is effective from [date 30 days after date of
publication of the final rule in the Federal Register], through
December 31, 1998.
(a) This subpart implements a vessel moratorium program developed
by the North Pacific Fishery Management Council and approved by NMFS.
(b) Regulations in this subpart govern:
(1) The issuance of Federal moratorium permits to limit the number
and size of vessels in the commercial fisheries for groundfish in that
portion of the Gulf of Alaska and Bering Sea and Aleutian Islands
management area over which the United States exercises exclusive
fishery management authority; and
(2) The issuance of Federal moratorium permits to limit the number
and size of vessels in the commercial fisheries for king and Tanner
crabs in that portion of the Bering Sea and Aleutian Islands Area over
which the United States exercises exclusive fishery management
authority.
Sec. 676.2 Definitions.
In addition to the terms in the Magnuson Act and in parts 620, 671,
672, and 675 of this chapter, the terms in this subpart have the
following meanings:
Catcher vessel means, with respect to moratorium groundfish
species, a vessel as defined at parts 672 and 675 of this chapter, or a
vessel that is used to catch, take, or harvest moratorium crab species
that are retained on board as fresh fish product at any time.
Catcher/processor vessel means a vessel that can be used as a
catcher vessel and can process or prepare fish to render it suitable
for human consumption, industrial use, or long-term storage, including,
but not limited to, cooking, canning, smoking, salting, drying,
freezing, and rendering into meal or oil, but does not include heading
and gutting unless additional preparation is done.
Directed fishing means, with respect to moratorium groundfish
species, directed fishing as defined at parts 672 and 675 of this
chapter, or the catching and retaining of any moratorium crab species.
Legal landing means any amount of a moratorium species that was or
is landed in compliance with Federal and state regulations in effect at
the time of the landing.
LOA means length overall as defined at parts 672 and 675 of this
chapter.
Lost or destroyed vessel means a vessel that has sunk at sea or has
been destroyed by fire or other type of physical damage and is listed
on the U.S. Coast Guard Report of Marine Casualty, Form 2692.
Maximum LOA with respect to a vessel means the greatest LOA of that
vessel or its replacement that may qualify it to use a moratorium
permit to catch and retain moratorium crab species or conduct directed
fishing for moratorium groundfish species during the moratorium, except
as provided at Sec. 676.4(d). The maximum LOA of a vessel with
moratorium qualification will be determined by the Regional Director as
follows:
(1) For a vessel with moratorium qualification that is less than
125 ft (38.1 m) LOA, the maximum LOA will be equal to 1.2 times the
vessel's original qualifying length or 125 ft (38.1 m), which ever is
less; and
(2) For a vessel with moratorium qualification that is equal to or
greater than 125 ft (38.1 m), the maximum LOA will be equal to the
vessel's original qualifying length.
Moratorium crab species means species of king or Tanner crabs
harvested in the Bering Sea and Aleutian Islands Area, the commercial
fishing for which is governed by part 671 of this chapter.
Moratorium groundfish species means species of groundfish, except
sablefish caught with fixed gear as defined at Sec. 676.11, harvested
in the Gulf of Alaska or harvested in the Bering Sea and Aleutian
Islands management area, the commercial fishing for which is
[[Page 25685]] governed by parts 672 and 675 of this chapter,
respectively.
Moratorium permit means a transferrable permit or license that
authorizes a vessel to fish for moratorium species in the Gulf of
Alaska or the Bering Sea and Aleutian Islands management area.
Moratorium qualification means a transferrable prerequisite for a
moratorium permit. A vessel may be considered to have ``moratorium
qualification'' if it made a legal landing of a moratorium species
during the qualifying period.
Moratorium species means any moratorium crab species or moratorium
groundfish species.
Original qualifying length with respect to a vessel means the LOA
of the vessel on or before June 24, 1992.
Person means any individual who is a citizen of the United States
or any United States corporation, partnership, association, or other
entity (or its successor in interest), whether or not organized or
existing under the laws of any state.
Qualifying period means the period of time from January 1, 1988,
through February 9, 1992.
Regional Director means the Director, Alaska Region, NMFS, or an
individual to whom the Regional Director has delegated authority.
Sec. 676.3 Moratorium permit.
(a) General. The owner of a vessel of the United States must obtain
a moratorium permit issued under this subpart before using the vessel
to catch and retain any moratorium crab species or before using the
vessel to conduct directed fishing for any moratorium groundfish
species. A moratorium permit required by this section is in addition to
any other permit or license required by Federal or state regulations.
(1) A moratorium permit issued under this part is valid only if:
(i) The permit is on board the vessel to which it is assigned at
all times when the vessel is fishing for any moratorium species;
(ii) The permit has at least one endorsement authorizing the use of
a specific type of fishing gear;
(iii) The vessel to which the permit is assigned has on board no
fishing gear other than the type of gear authorized by permit
endorsement;
(iv) The vessel to which the permit is assigned is fishing for a
moratorium species during an open fishing season for that species in
the fishing year for which the permit is issued; and
(v) The permit is not revoked, suspended, or modified under 15 CFR
part 904 (Civil procedures).
(2) A moratorium permit must be presented for inspection on request
of any authorized officer.
(b) Exceptions. A vessel within one of the following categories is
not required to have on board a moratorium permit required under
paragraph (a) of this section and may catch and retain moratorium
species during the effective dates of the moratorium in compliance with
the permit or license requirements of the State of Alaska with respect
to moratorium crab species, Federal permit requirements at parts 672
and 675 of this chapter with respect to moratorium groundfish species,
and other applicable Federal and state regulations:
(1) A vessel other than a catcher vessel or catcher/processor
vessel;
(2) A catcher vessel or catcher/processor vessel that conducts
directed fishing for groundfish in the Gulf of Alaska and does not
exceed 26 ft (7.9 m) LOA;
(3) A catcher vessel or catcher/processor vessel that catches and
retains moratorium crab species or that conducts directed fishing for
moratorium groundfish species in the Bering Sea and Aleutian Islands
area and does not exceed 32 ft (9.8 m) LOA;
(4) A catcher vessel or catcher/processor vessel that is catching
IFQ halibut or IFQ sablefish or halibut or sablefish under the Western
Alaska Community Development Quota Program in accordance with
regulations at subparts B and C of this part and that is not directed
fishing for any moratorium species; or
(5) A catcher vessel or catcher/processor vessel that, after
November 18, 1992, is specifically constructed for and used in
accordance with a Community Development Plan approved by the Secretary
under Sec. 675.27 of this chapter, is designed and equipped to meet
specific needs that are described in the Community Development Plan,
and does not exceed 125 ft (38.1 m) LOA.
(c) Moratorium permit qualification. Any vessel that was used to
make a legal landing of any amount of any moratorium species during the
qualifying period shall be a vessel with moratorium qualification and
may be eligible to receive a moratorium permit, if:
(1) The vessel does not exceed its maximum LOA;
(2) The vessel is greater than 26 ft (7.9 m) LOA and is used to
conduct directed fishing for moratorium groundfish species in the Gulf
of Alaska;
(3) The vessel is greater than 32 ft (9.8 m) LOA and is used to
conduct directed fishing for moratorium groundfish species in the
Bering Sea and Aleutian Islands management area; and
(4) The moratorium qualification for the vessel has not been
transferred to another vessel.
(d) Moratorium permit endorsements. A moratorium permit is not
valid unless the permit has at least one endorsement authorizing the
use of a type of fishing gear specified in this paragraph. Authorized
fishing gear for the Bering Sea and Aleutian Islands crab fisheries is
defined in the Alaska Administrative Code at title 5, chapters 34 and
35; authorized fishing gears for the Gulf of Alaska and the Bering Sea
and Aleutian Islands groundfish fisheries are defined at part 672 of
this chapter. Any one or a combination of the following fishing gear
endorsements may be included in a moratorium vessel permit:
(1) Trawl, includes pelagic and nonpelagic trawl gears;
(2) Pot, includes longline pot and pot-and-line gears; and/or
(3) Hook, includes hook-and-line and jig gears.
(e) Gear endorsement criteria. A vessel with moratorium
qualification shall be issued a moratorium permit with one or more gear
endorsement(s) based on the gear endorsement criteria in this
paragraph. For purposes of this paragraph, the qualifying period is
``period 1,'' and the period of time from February 10, 1992, through
December 11, 1994, is ``period 2.''
(1) Crab/pot permit. A vessel is eligible to receive a moratorium
permit for the crab fisheries with a pot gear endorsement if the
vessel:
(i) Made a legal landing of a moratorium crab species in period 1;
(ii) Made a legal landing of a moratorium groundfish species with
any authorized fishing gear in period 1, and, in period 2, made a legal
landing of a moratorium crab species; or
(iii) Made a legal landing of moratorium groundfish in period 1
with pot gear.
(2) Groundfish/trawl permit. A vessel is eligible to receive a
moratorium permit for the groundfish fisheries with a trawl gear
endorsement if the vessel:
(i) Made a legal landing of a moratorium groundfish species with
any authorized fishing gear in period 1; or
(ii) Made a legal landing of a moratorium crab species in period 1,
and, in period 2, made a legal landing of a moratorium groundfish
species using trawl gear.
(3) Groundfish/pot permit. A vessel is eligible to receive a
moratorium permit for the groundfish fisheries with a pot gear
endorsement if the vessel: [[Page 25686]]
(i) Made a legal landing of a moratorium groundfish species with
any authorized fishing gear in period 1; or
(ii) Made a legal landing of a moratorium crab species in period 1.
(4) Groundfish/hook permit. A vessel is eligible to receive a
moratorium permit for the groundfish fisheries with a hook gear
endorsement if the vessel:
(i) Made a legal landing of a moratorium groundfish species with
any authorized fishing gear in period 1; or
(ii) Made a legal landing of a moratorium crab species in period 1,
and, in period 2, made a legal landing of a moratorium groundfish
species using hook gear.
Sec. 676.4 Transfer of moratorium permit.
(a) General. A transfer of a vessel's moratorium qualification or
its moratorium permit is not valid unless it is approved by the
Regional Director. Gear or species endorsement(s) are not severable
from the permit in which the endorsement(s) is included. A moratorium
permit transfer will not be approved without a coincident transfer of
the moratorium qualification on which the permit is based. A transfer
will not be approved by the Regional Director unless:
(1) A complete transfer application that satisfies all requirements
specified at Sec. 676.5 is submitted; and
(2) The vessel that would be receiving the transferred moratorium
qualification or permit does not exceed the maximum LOA of the vessel
relinquishing the moratorium qualification or permit.
(b) Lost or destroyed vessel. (1) The moratorium qualification of a
vessel that was lost or destroyed before January 1, 1989, is null and
void, unless the vessel is salvaged, and:
(i) The salvaged vessel does not exceed its maximum LOA;
(ii) Salvage of the vessel began on or before June 24, 1992; and
(iii) The salvaged vessel is used to make a legal landing of a
moratorium species on or before [insert date 2 years after the
effective date of this final rule.].
(2) The moratorium qualification of any vessel that was lost or
destroyed on or after January 1, 1989, and subsequently salvaged, is
valid and a moratorium permit may be issued to the owner of the
salvaged vessel providing:
(i) The moratorium qualification of the salvaged vessel has not
been transferred to a different vessel; and
(ii) The salvaged vessel does not exceed its maximum LOA.
(c) The moratorium qualification of any vessel that was lost or
destroyed on or after January 1, 1989, may be transferred with approval
of the Regional Director under the following conditions:
(1) The moratorium qualification of any vessel that was lost or
destroyed on or after January 1, 1989, but before the effective date of
the moratorium may be transferred to another vessel providing that
vessel:
(i) Does not exceed the maximum LOA of the vessel with moratorium
qualification; and
(ii) Makes a legal landing of a moratorium species on or before
[date 2 years after the effective date of this final rule].
(2) The moratorium qualification of any vessel that is lost or
destroyed at any time after the effective date of the moratorium may be
transferred to another vessel providing that vessel does not exceed the
maximum LOA of the vessel with moratorium qualification.
(d) Reconstruction. The moratorium qualification or moratorium
permit for a vessel is null and void if at any time after June 24,
1992, the LOA of the vessel is increased to exceed the vessel's maximum
LOA. Any vessel that is reconstructed such that the LOA of the vessel
exceeds its maximum LOA may retain its moratorium qualification or
moratorium permit if:
(1) Reconstruction of the vessel began before June 24, 1992 and was
completed after that date;
(2) The revised maximum LOA of the vessel is approved by the
Regional Director as equal to the LOA of the reconstructed vessel; and
(3) A transfer of the vessel's moratorium qualification or
moratorium permit to the reconstructed vessel is approved by the
Regional Director pursuant to Sec. 676.4.
Sec. 676.5 Permit application procedure.
(a) General. An application for a moratorium vessel permit may be
requested from the Restricted Access Management Division, Alaska
Region, National Marine Fisheries Service, P.O. Box 21668, Juneau, AK
99802-1668. Requests may be made by telephone by calling 907-586-7202
or 800-304-4846.
(b) Application for permit. With respect to any vessel, a
moratorium permit will be issued to any person who is the owner of the
vessel at the time of the permit application, and who has submitted, to
the address in paragraph (a) of this section, a complete moratorium
permit application that is subsequently approved by the Regional
Director. A complete application for a moratorium vessel permit must
include the following information for each vessel for which a permit is
requested:
(1) Name of the vessel for which a permit is requested, state
registration number of the vessel and, if documented, the U.S. Coast
Guard documentation number of the vessel;
(2) Name(s), business address(es), and telephone and fax numbers of
the person who is the owner of the vessel;
(3) Name(s), business address(es), and telephone and fax numbers of
the person responsible for the operation of the vessel, if different
from the owner;
(4) Valid documentation of the vessel's moratorium qualification if
requested by the Regional Director due to an absence of landings
records for the vessel during the qualifying period;
(5) Documentation of the vessel's original qualifying length if
requested by the Regional Director or contested, such as a vessel
survey, builder's plan, state or Federal registration certificate,
fishing permit records, or other reliable and probative documents that
clearly identify the vessel and are dated before June 24, 1992;
(6) Specification of the fishing gear(s) used during the moratorium
qualifying period and (if necessary) the fishing gear(s) used during
the period of time from February 10, 1992 through December 11, 1994;
(7) Specification of the vessel as either a catcher vessel or a
catcher/processor vessel;
(8) If applicable, transfer authorization if a permit request is
based on transfer of moratorium qualification pursuant to paragraph (c)
of this section; and
(9) Signature of the person who is the owner of the vessel or the
person who is responsible for representing the vessel owner.
(c) Application for transfer. An application for transfer of
moratorium qualification or a moratorium permit must be completed by
the applicant(s) and approved by the Regional Director before an
application for a moratorium permit can be approved. An application for
transfer and an application for a moratorium permit may be submitted
simultaneously. A complete application for transfer must include the
following information as applicable for each vessel from which
moratorium qualification or a moratorium permit is requested to be
transferred:
(1) Name(s), business address(es), and telephone and fax numbers of
the applicant(s) including the owners of the moratorium qualification
or moratorium permit that is to be transferred and the persons who
would receive the transferred moratorium qualification or moratorium
permit;
(2) Name of the vessel with moratorium qualification or moratorium
[[Page 25687]] permit and the name of the vessel that would receive the
moratorium qualification or moratorium permit (if any), the state
registration number of each vessel and, if documented, the U.S. Coast
Guard documentation number of each vessel;
(3) The original qualifying length of the vessel with moratorium
qualification, its current LOA, and its maximum LOA;
(4) The LOA of the vessel that would receive the transferred
moratorium qualification and documentation of that LOA by a current
vessel survey or other reliable and probative document;
(5) A legible copy of a contract or agreement specifying the vessel
or person from which moratorium qualification or moratorium permit is
requested to be transferred, the date of the transfer agreement, and
names and signatures of all current owners of the of the vessel with
moratorium qualification, the moratorium qualification, or the
moratorium permit, and the applicant;
(6) With regard to a vessel reconstruction:
(i) A legible copy of written contracts or written agreements with
the firm that performed reconstruction of the vessel and that relate to
that reconstruction;
(ii) An affidavit signed by the vessel owner(s) and the owner/
manager of the firm that performed the vessel reconstruction specifying
the beginning and ending dates of the reconstruction; and
(iii) An affidavit signed by the vessel owner(s) specifying the LOA
of the reconstructed vessel;
(7) With regard to vessels lost or destroyed, a copy of U.S. Coast
Guard Form 2692, Report of Marine Casualty; and
(8) Signatures of the persons from whom moratorium qualification or
moratorium permit would be transferred or their representative and the
persons who would receive the transferred moratorium qualification or
moratorium permit or their representative.
(d) Appeal. (1) The Regional Director, or his or her appointee,
will issue an initial administrative determination to each applicant
who is denied a moratorium vessel permit by that official. An initial
administrative determination may be appealed by the applicant in
accordance with Sec. 676.25. The initial administrative determination
will be the final agency action for purposes of judicial review if a
written appeal is not received by the Regional Director within the
period specified at Sec. 676.25(d).
(2) An initial administrative determination that denies an
application for a moratorium vessel permit must authorize the affected
vessel to catch and retain moratorium crab or moratorium groundfish
species with the type of fishing gear specified on the application. The
authorization expires on the effective date of the final agency action
relating to the application.
Sec. 676.6 Prohibitions.
In addition to the prohibitions specified in Secs. 620.7, 672.7,
675.7, and 676.16 of this chapter, it is unlawful for any person to:
(a) Submit false or inaccurate information on a moratorium vessel
permit application or application to transfer moratorium qualification
or a moratorium vessel permit;
(b) Alter, erase, or mutilate any moratorium vessel permit;
(c) Catch and retain a moratorium species with a vessel that has a
LOA greater than the maximum LOA for the vessel;
(d) Catch and retain a moratorium species with a vessel that has
received an unauthorized transfer of moratorium qualification;
(e) Catch and retain moratorium crab species or conduct directed
fishing for any moratorium groundfish species with a vessel that has
not been issued a valid moratorium vessel permit, unless the vessel is
lawfully conducting directed fishing for sablefish under subparts B and
C of this part;
(f) Catch and retain moratorium crab species or conduct directed
fishing for any moratorium groundfish species with a vessel that does
not have a valid moratorium vessel permit on board, unless the vessel
is lawfully conducting directed fishing for sablefish under subparts B
and C of this part; and
(g) Violate any other provision of subpart A of this part.
Secs. 676.7-676.9 [Reserved]
[FR Doc. 95-11777 Filed 5-11-95; 8:45 am]
BILLING CODE 3510-22-F