[Federal Register Volume 61, Number 249 (Thursday, December 26, 1996)]
[Proposed Rules]
[Pages 67990-67995]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-32751]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 961203339-6339-01; I.D. 111896B]
RIN 0648-AI88


Fisheries of the Exclusive Economic Zone Off Alaska; Scallop 
Fishery Off Alaska; Scallop Vessel 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 
additional vessels into the scallop fishery off Alaska. This action 
would implement Amendment 2 to the Fishery Management Plan for the 
Scallop Fishery off Alaska (FMP) as recommended by the North Pacific 
Fishery Management Council (Council). The intended effect of Amendment 
2 is to curtail increases in fishing capacity and to provide stability 
for industry while the Council develops a long-term limited access 
system for this fishery. This action is necessary to promote the 
conservation and management objectives of the FMP.

DATES: Comments must be received at the following address by February 
10, 1997.

ADDRESSES: Comments on the proposed rule must be sent to Ronald J. 
Berg, Chief, Fisheries Management Division, Alaska Region, NMFS, P.O. 
Box 21668, Juneau, AK 99802, Attn: Lori J. Gravel. Copies of Amendment 
2 and the Environmental Assessment/Regulatory Impact Review/Initial 
Regulatory Flexibility Analysis (EA/RIR/IRFA) prepared for this action 
may be obtained from the same address. Send comments regarding burden 
estimates or any other aspect of the data requirements, including 
suggestions for reducing the burdens, to NMFS and to the Office of 
Information and Regulatory Affairs, Office of Management and Budget 
(OMB), Washington, D.C. 20503, Attn: NOAA Desk Officer.

FOR FURTHER INFORMATION CONTACT: Kent Lind, 907-586-7228.

SUPPLEMENTARY INFORMATION:

Management Authority

    The scallop fishery in the exclusive economic zone (EEZ) off Alaska 
is managed by NMFS under the FMP. The FMP was prepared by the Council 
under the Magnuson-Stevens Act and approved by NMFS on July 26, 1995. 
Regulations implementing the FMP are set out at 50 CFR part 679. 
General regulations that also affect fishing in the EEZ are set out at 
50 CFR part 600.
    The Council is authorized by the Magnuson-Stevens Act to establish 
a system for limiting access to a fishery in order to achieve optimum 
yield if, in developing such a system, the Council and NMFS take into 
account: (1) Present participation in the fishery, (2)

[[Page 67991]]

historical fishing practices in, and dependence on, the fishery, (3) 
the economics of the fishery, (4) the capability of fishing vessels 
used in the fishery to engage in other fisheries; (5) the cultural and 
social framework relevant to the fishery, and (6) any other relevant 
considerations (16 U.S.C. 1853).

Scallop Management Background

    Management of scallops in the EEZ off Alaska was conducted by the 
Alaska State Department of Fish and Game (ADF&G) from 1968 until the 
implementation of the Federal FMP and an interim closure of the EEZ to 
fishing for scallops in 1995. In 1992, ADF&G developed an Interim 
Fishery Management Plan (IFMP) for scallops, as fishing effort was 
rapidly increasing and maximum sustainable yield may have been 
exceeded. The IFMP specified three major management measures: (1) 
Setting area-specific guideline harvest levels and gear restrictions to 
prevent localized overharvesting, (2) creating an observer program to 
monitor the fishery and obtain biological information, and (3) limiting 
effort via gear restrictions, seasons, minimum size limits, and other 
measures. Consistent with scallop management actions taken on the east 
coast, the State of Alaska (State) promulgated regulations that limit 
crew size to a total of 12, and mandated that weathervane scallops only 
be shucked manually to control effort. In 1993, the Commissioner of 
ADF&G declared scallops a High Impact Emerging Fishery (5 AAC 39.210) 
because of mounting resource concerns. A fishery may be regulated as a 
high impact emerging commercial fishery if the Commissioner determines 
that any of the following conditions apply to a species or species 
group in an area or region: (1) Harvesting effort has recently 
increased beyond a low sporadic level; (2) interest has been expressed 
in harvesting the resource by more than a single user group; (3) the 
level of harvest might be approaching a level that might not be 
sustainable on a local or regional level; and (4) comprehensive 
regulations to address issues of conservation, allocation, and conduct 
of an orderly fishery have not been developed.
    In 1993, the Council also began to address the issues of 
overexploitation and overcapitalization in the scallop fishery. At the 
January 1993 meeting, the Council determined that the scallop fishery 
may require Federal management to protect the fishery from 
overexploitation and further overcapitalization. The Council set a 
control date of January 20, 1993, to notify the industry that a 
moratorium for this fishery may be implemented. This control date, 
which was published in the Council's newsletter, meant that fishermen 
and/or vessels not participating in the fishery by that date may not be 
guaranteed future access to the fishery.
    The Council was presented with information indicating that the 
stocks of weathervane scallops were fully exploited and any increase in 
effort would be detrimental to the stocks and the Nation. Information 
indicated that dramatic changes in age composition had occurred after 
the fishing-up period (1980-90), with commensurate declines in harvest. 
In recent years, many fishermen abandoned historical fishing areas and 
searched for new areas to maintain catch levels. Increased numbers of 
small scallops were reported. Additionally, scallops are highly 
susceptible to overfishing and boom/bust cycles worldwide.
    The need to limit access was the primary motivation for the Council 
to prepare the FMP in lieu of State management of the scallop fishery. 
As anticipated, effort in the scallop fishery increased in 1993 when 32 
scallop permits, representing 21 vessels, were issued by the State. 
Fifteen of these vessels had made landings by the end of 1993. Even 
without additional vessels entering the fishery, the Council believed 
that the 1993 fishery was overcapitalized, meaning that too much 
capital was invested relative to the fleet size necessary to conduct 
the fishery. In 1992, seven vessels harvested 1.8 million lb (816 mt), 
for an average of 257,143 lb (116.6 mt) harvested per vessel. The 1993 
quota was set at 890,000 lb (403.7 mt) for areas with specified 
guideline harvest levels, or about one-half of the 1992 landings. This 
quota could have been harvested by three or four vessels. In 1993, 
landings from areas without guideline harvest levels totaled 524,000 lb 
(237.7 mt), which could have been taken by an additional two vessels. 
Yet, 15 vessels participated in the 1993 fishery. In 1994, the growth 
trend in the fishery continued with 16 vessels harvesting 1,235,269 lb 
(560.3 mt) of scallops.
    At its January 1993 meeting, the Council directed staff to proceed 
with an analysis to evaluate potential Federal management of Alaskan 
scallops. A vessel moratorium was proposed as an essential element of a 
Federal management regime to stabilize the size and capitalization of 
the scallop fleet during the time that the Council considers limited 
entry alternatives for this fishery.
    At its June 1993 meeting, the Council and its advisory panels 
reviewed a draft EA/RIR/IRFA analysis of management alternatives for 
the scallop fishery. Also at that meeting, the Council reaffirmed the 
control date of January 20, 1993, and recommended several revisions to 
the draft analysis, which was subsequently released for public review 
on August 9, 1993. At the September 1993 Council meeting, public 
testimony was received on scallop management, particularly on the 
qualifying criteria for a moratorium. At that meeting, the Council 
tentatively identified its preferred alternative of a separate FMP for 
the scallop fishery, with shared management authority with the State. 
The preferred alternative also included a vessel moratorium option. 
However, the Council requested additional analysis to assist with 
determining appropriate qualifying criteria. Additional analysis was 
incorporated into the revised draft FMP, including a draft EA/RIR/IRFA, 
and was released for public review on November 30, 1993.
    At its April 1994 meeting, the Council and its advisory bodies 
reviewed the draft FMP, took public testimony, and voted to adopt a 
separate FMP for the scallop fishery. Eighteen vessels would qualify 
under the criteria adopted by the Council in April 1994. The 1994 draft 
FMP, which deferred most management measures to the State, was based on 
the premise that all vessels fishing for scallops in the Federal waters 
off Alaska would also be registered with the State.
    While regulations were being drafted to implement the FMP, a vessel 
that had nullified its registration with the State began fishing for 
scallops in the Federal waters of the Prince William Sound Registration 
Area, which the State had already closed after the guideline harvest 
level of 50,000 lb (22,686 kg) was taken on January 26, 1995. The State 
did not have authority to stop the vessel from fishing, because it was 
no longer registered with the State and was fishing in the EEZ. On 
February 17, 1995, the Council met by emergency teleconference and 
recommended that NMFS implement an emergency rule to close the EEZ off 
Alaska to scallop fishing to prevent further uncontrolled harvests in 
Federal waters. The emergency rule went into effect on February 23, 
1995 and was published on March 1, 1995 (60 FR 11054).
    At its April 1995 meeting, the Council took additional steps to 
prevent unregulated and uncontrolled harvests after the emergency rule 
expired. On April 19, 1995, the Council adopted an FMP, which continued 
the closure of the EEZ to fishing for scallops for a 1-year period. The 
FMP was approved by

[[Page 67992]]

NMFS on July 26, 1995. Additional information on the FMP and the 
interim closure of Federal waters to fishing for scallops may be found 
in the proposed and final rules implementing the FMP (60 FR 24822, May 
10, 1995, and 60 FR 42070, August 15, 1995, respectively).
    At its June 1995 meeting, the Council considered the testimony and 
recommendations of its Scientific and Statistical Committee, fishing 
industry representatives, and the general public on alternative 
management options for the scallop fishery to replace the interim 
closure. The Council also reviewed a revised EA/RIR/IRFA that outlined 
the potential impacts of a full Federal management regime, including a 
vessel moratorium based on the previously approved qualifying criteria. 
Based on the above information, the Council adopted Amendment 1 to the 
FMP authorizing a suite of Federal management measures, including the 
vessel moratorium.
    In April 1996, the Council separated the scallop vessel moratorium 
from the other management measures contained in Amendment 1 and 
recommended instead that the moratorium proceed as Amendment 2 to the 
FMP. The Council took this action so that the development of a vessel 
moratorium would not delay the reopening of the fishery. Amendment 1 
was subsequently approved by NMFS on July 10, 1996 (61 FR 38099, July 
23, 1996).

Scallop Vessel Moratorium

    The following paragraphs explain each aspect of the proposed 
scallop vessel moratorium.

Duration of the Moratorium

    The temporary vessel moratorium would remain in effect for 3 years 
from the date of implementation or until repealed or replaced by a 
permanent limited access program. Amendment 2 would allow the Council 
to recommend that the moratorium be extended for no more than 2 years 
if a limited access program were imminent.

Qualification Criteria

    Scallop moratorium permits would be issued to the person (or 
successor in interest) who owned the qualifying vessel when it most 
recently made qualifying landings. The Council indicated that when 
vessels were sold during or after the moratorium qualification period, 
the moratorium rights should attach to the owner of the vessel when it 
most recently made qualifying landings such that each vessel generates 
only one moratorium permit. The Council believed that moratorium rights 
should be assigned to the person who owned a vessel when it qualified 
for a moratorium permit rather than some subsequent owner who does not 
have a history of participation in the fishery with that vessel. The 
Council adopted this approach after the testimony of one scallop 
fisherman who had a long history of participation in the scallop 
fishery, but who had sold his qualified vessel prior to the 
announcement of a moratorium control date and had replaced it with a 
new vessel that would not qualify under the moratorium.
    A vessel would qualify for inclusion in the moratorium if it made a 
legal landing of scallops during 1991, 1992 or 1993; or during at least 
4 separate years from 1980 through 1990. The Council chose this two-
tier approach to emphasize recent participation in the fishery by 
allowing all vessels with any legal landings in 1991, 1992, or 1993 to 
qualify. Historic participants would qualify under the more restrictive 
standard of a legal landing during at least 4 separate years from 1980 
through 1990.
    The Council adopted the 1980 start date for qualification of 
historic participants, because data prior to 1980 were not available. 
More important, 1980 marked the first year of the buildup of the 
scallop fishery and was thus considered to be a reasonable base year 
for historical participation. Less than three vessels participated in 
1974, 1976, 1977, and 1979, and no vessels participated in 1978. The 
1990 cutoff date for historic participation was chosen because vessels 
making landings in 1991, 1992, or 1993 would be included as recent 
participants. The Council did not include those vessels that 
participated in 1990, but that did not have sufficient historic 
participation or more recent participation in the fishery, as 
moratorium qualified. The Council determined that such vessels had 
neither recent nor historic dependence on the fishery. Vessels that 
were in the ``pipeline'' to fish for Alaskan scallops (i.e., under 
construction, being refitted, relocated, etc.) but that had not made a 
required landing, would not qualify under the moratorium. The Council 
had been discussing a scallop moratorium throughout 1993. The 
qualification period was extended from the January 20, 1993, control 
date to the end of 1993 to address the problem of vessels in the 
``pipeline.''
    The Council chose not to extend the moratorium qualifying period 
past 1993 in order to discourage speculative entry while the moratorium 
was being developed and submitted for review. Additional entry into the 
fishery during the development and implementation phase would only 
exacerbate the very problems that the moratorium is intended to solve. 
Fishermen received extensive notice through the Council process 
described above that the fishery was being limited in a way that 
jeopardized any investments they would make in the fishery after 1993. 
According to ADF&G landing records, at least three vessels have entered 
the scallop fishery since the moratorium cut-off date, and they would 
not qualify for moratorium permits. However, participation in the 
scallop fishery by these vessels has been sporadic. None of these 
vessels made a single landing during the entire moratorium 
qualification period of 1980-93, nor have they participated on a 
consistent basis since the moratorium cut-off date of December 31, 
1993.

Area Endorsements

    Moratorium permits would include area endorsements for fishing 
within Registration Area H (Cook Inlet) and/or waters outside 
Registration Area H. Qualified vessels should have made at least one 
legal landing of scallops during the qualifying period within an 
endorsement area to receive an endorsement for that area. No crossovers 
would be allowed between Registration Area H and waters outside 
Registration Area H unless a vessel qualifies in both areas.
    The Council adopted the area endorsement approach in order to 
preserve the unique nature of the Cook Inlet scallop fishery, which is 
conducted exclusively by small boats operating out of Homer. The State 
has preserved the Cook Inlet scallop fishery as a distinct small boat 
fishery by limiting Cook Inlet vessels to a single 6-ft (1.83 m) dredge 
and exempting Cook Inlet vessels from the observer coverage 
requirements that are in effect for all other registration areas 
(Sec. 679.65(c)). According to ADF&G landing data, only one qualifying 
vessel fished both inside and outside Registration Area H during the 
qualifying period and would receive endorsements to fish in both areas.

Vessel Reconstruction and Maximum Length Overall (LOA)

    To prevent increased capitalization in the scallop fishery, the 
Council chose to limit increases in vessel LOA due to the 
reconstruction of vessels during the moratorium to no more than 1.2 
times or 20 percent of the LOA of the vessel on the control date of 
January 20, 1993. For vessels under reconstruction on January 20, 1993, 
the maximum LOA would be the LOA on the date reconstruction was 
completed, with no

[[Page 67993]]

additional increases allowed. Each scallop moratorium permit would 
specify a maximum LOA based on the above criteria.
    The 20-percent limit was chosen by the Council for the same reasons 
that a 20-percent limit was established for the groundfish and crab 
vessel moratorium. The Council believed that limiting increases in 
vessel size to 20 percent of LOA would allow for some upgrading of 
vessels to improve stability and safety, while limiting the further 
overcapitalization that could occur through massive reconstruction of 
existing vessels.

Transferability

    Moratorium permits would be valid on any vessel that is less than 
or equal to the maximum LOA identified on the permit and that is owned, 
leased, or operated by the person identified on the moratorium permit. 
A vessel fishing for scallops would be required to carry a valid 
moratorium permit on board whenever the vessel is fishing for scallops, 
or has scallops retained on board. A person could transfer a moratorium 
permit to another person if a completed transfer application were 
submitted to NMFS and subsequently approved. In this event, a new 
permit would be issued in the name of the person who received the 
transferred permit.

Exemptions

    Vessels less than or equal to 26 ft (7.9 m) LOA in the Gulf of 
Alaska, and less than or equal to 32 ft (9.8 m) LOA in the Bering Sea 
and Aleutian Islands Area, would be exempt from the scallop moratorium 
when fishing for scallops with dive gear. The Council wanted to provide 
for the potential development of cleaner gear types such as dive gear 
and chose to adopt the same size limits exemption for small vessels as 
were established for the groundfish and crab vessel moratorium, except 
that the exemption only applies when fishing with dive gear. An 
operator of a vessel under the size limits listed above would still be 
required to carry a valid scallop moratorium permit on board when 
fishing with dredge gear, or from a vessel that has dredge gear on 
board.
    While commercial harvesting of shellfish and sea cucumbers with 
dive gear does occur in Alaska waters, safety and technology factors 
generally limit this type of fishing to shallow, near-shore State 
waters. NMFS has no record of commercial divers harvesting scallops in 
Federal waters off Alaska and believes it is unlikely that any 
commercial divers would choose to attempt such an endeavor. 
Nevertheless, this exemption would ensure that a vessel moratorium 
designed to limit further overcapitalization by the dredge fleet would 
not prevent future exploration with dive gear.

Appeals

    NMFS would issue an initial administrative determination to each 
applicant who is denied a scallop moratorium permit. An initial 
administrative determination may be appealed by the applicant in 
accordance with the procedures established for the groundfish and crab 
moratorium at Sec. 679.43. An initial administrative determination that 
denies an application for a scallop moratorium permit would authorize 
the affected person to catch and retain scallops with an interim 
permit. The interim permit would expire on the effective date of the 
final agency action relating to the application. An administrative 
determination denying the issuance of a scallop moratorium permit or 
application for transfer would be the final agency action for purposes 
of judicial review.

Technical changes to existing regulations

    This proposed rule contains technical changes to the existing 
definitions of ``legal landing'', ``maximum LOA'', ``moratorium 
qualification'', ``moratorium species'', and ``qualifying period'' set 
out at Sec. 679.2. These technical changes would be made to clarify 
which terms apply only to the existing groundfish and crab moratorium 
and which terms also would apply to the scallop moratorium.
    A technical change would also be made to the description of the 
groundfish and crab moratorium appeals process at Sec. 679.4(c)(10)(i) 
to specify that appeals are to be sent to the Regional Administrator 
rather than to the Chief, RAM Division. This change is necessary to 
make Sec. 679.4(c)(10)(i) consistent with the appeals process described 
at Sec. 679.43(c). In addition, Sec. 679.43(a) would be revised to 
indicate that the appeals process described at Sec. 679.43 also applies 
to scallop moratorium appeals made under Sec. 679.4(g).

Classification

    At this time, NMFS has not determined that the FMP amendment that 
this rule would implement is consistent with the national standards, 
other provisions of the Magnuson-Stevens Act, and other applicable 
laws. NMFS, in making that determination will take into account the 
data, views, and comments received during the comment period.
    This proposed rule has been determined to be not significant for 
the purposes of E.O. 12866.
    This proposed rule contains a new collection-of-information 
requirement subject to the Paperwork Reduction Act (PRA). This 
collection-of-information requirement has been submitted to OMB for 
approval. The new information requirements include an application for a 
moratorium permit and an application for transfer of a moratorium 
permit. Public reporting burden for these collections of information 
are estimated to be 0.33 and 0.5 hours, respectively. Send comments 
regarding reporting burden or any other aspect of the data 
requirements, including suggestions for reducing the burdens, to NMFS 
and OMB (see ADDRESSES).
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be 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.
    An RIR was prepared for this proposed rule that describes the 
management background, the purpose and need for action, the management 
action alternatives, and the social impacts of the alternatives. The 
RIR also estimates the total number of small entities affected by this 
action and analyzes the economic impact on those small entities.
    The Council prepared an IRFA as part of the RIR, which describes 
the impact this proposed rule would have on small entities, if adopted. 
The analysis shows that the economic effects of this proposed rule to 
the regulated community would be significant and positive. By limiting 
participation at current levels, the temporary moratorium would prevent 
further overcapitalization of the fleet and reduce the potential for 
overfishing of the scallop resource. Most commercial fishing vessels 
harvesting scallops off Alaska meet the definition of a small entity 
under the RFA. In 1994, 86 percent of the scallop harvests off Alaska 
were taken from Federal waters and 11 of the 16 vessels harvesting 
scallops participated in no other fishery. Eighteen vessels would 
qualify for the moratorium under the qualification criteria adopted by 
the Council. According to ADF&G landing records, at least three vessels 
have entered the scallop fishery since the moratorium cut-off date and 
would not qualify for moratorium permits. However, participation in the 
scallop fishery by

[[Page 67994]]

these three vessels has been sporadic. None of these vessels made a 
single landing during the entire moratorium qualification period of 
1980-93, nor have they participated on a consistent basis since the 
moratorium cut-off date of December 31, 1993, and none of these three 
vessels has re-entered the fishery since the re-opening of Federal 
waters to February February fishing for scallops on August 1, 1996, 
under Amendment 1 to the FMP. Fishermen received extensive notice 
through the Council process that the fishery was being limited in a way 
that jeopardized any investments they made in the fishery after 1993. 
Copies of the EA/RIR/IRFA are available from NMFS (see ADDRESSES).

List of Subjects in 50 CFR Part 679

    Fisheries, Reporting and recordkeeping requirements.

    Dated: December 19, 1996.
Nancy Foster,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 679 is 
proposed to be amended as follows:

PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

    1. The authority citation for part 679 continues to read as 
follows:

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

    2. In Sec. 679.2, the definitions of ``Legal landing'', ``Maximum 
LOA'' introductory text, ``Moratorium qualification'', ``Moratorium 
species'', and ``Qualifying period'' are revised to read as follows:


Sec. 679.2  Definitions.

* * * * *
    Legal landing (applicable through [insert date 3 years after the 
effective date of the final rule]) means any amount of a moratorium 
species that was or is landed in compliance with Federal and state 
commercial fishing regulations in effect at the time of the landing.
* * * * *
    Maximum LOA (applicable through December 31, 1998), with respect to 
a vessel's eligibility for a groundfish or crab moratorium permit, 
means: * * *
* * * * *
    Moratorium qualification (applicable through December 31, 1998) 
with respect to the groundfish and crab vessel moratorium program means 
a transferable prerequisite for a moratorium permit.
    Moratorium species means:
    (1) (Applicable through [insert date 3 years after the effective 
date of the final rule]) any scallop species.
    (2) (Applicable through December 31, 1998) any moratorium crab 
species or moratorium groundfish species.
* * * * *
    Qualifying period (applicable through December 31, 1998) with 
respect to the groundfish and crab vessel moratorium program means the 
period to qualify for the moratorium from January 1, 1988, through 
February 9, 1992.
* * * * *
    3. In Sec. 679.4, paragraph (c)(10)(i) is revised and a new 
paragraph (g) is added to read as follows:


Sec. 679.4  Permits.

* * * * *
    (c) * * *
    (10) Appeal--(i) Determination. The Chief, RAM Division, will issue 
an initial administrative determination to each applicant who is denied 
a moratorium permit by that official. An initial administrative 
determination may be appealed by the applicant in accordance with 
Sec. 679.43. The initial administrative determination will be the final 
agency action if a written appeal is not received by the Regional 
Administrator, within the period specified at Sec. 679.43.
* * * * *
    (g) Scallop moratorium permits (applicable through [Insert date 
three years after the effective date of the final rule])--(1) General--
(i) Applicability. Except as provided under paragraph (g)(2) of this 
section, any vessel used to take or retain any scallop species in 
Federal waters must have a valid scallop moratorium permit on board the 
vessel at all times when the vessel is engaged in fishing for scallops 
in Federal waters or has scallops taken from Federal waters retained on 
board. Any vessel used to take or retain scallops in Federal waters 
within Scallop Registration Area H must have a scallop moratorium 
permit endorsed for Registration Area H. Any vessel used to take or 
retain scallop species in Federal waters outside Registration Area H 
must have a scallop moratorium permit endorsed for Federal waters 
exclusive of Registration Area H.
    (ii) Duration. The scallop moratorium permit is valid for the 
duration of the moratorium unless otherwise specified.
    (iii) Validity. A scallop moratorium permit issued under this 
paragraph is valid only if:
    (A) The vessel is owned, leased, or operated by the person named on 
the moratorium permit.
    (B) The vessel's LOA does not exceed the maximum LOA specified on 
the permit.
    (C) The permit has not been revoked or suspended under 15 CFR part 
904.
    (iv) Inspection. A scallop moratorium permit must be presented for 
inspection upon the request of any authorized officer.
    (2) Exemptions. A vessel that has an LOA of less than or equal to 
26 ft (7.9 m) in the GOA, and less than or equal to 32 ft (9.8 m) in 
the BSAI and that does not have dredge gear on board is exempt from the 
requirements of this paragraph (g) when fishing for scallops with dive 
gear.
    (3) Qualification criteria--(i) Qualifying period. A vessel would 
qualify for a moratorium permit if the vessel made a legal landing of 
scallops during 1991, 1992 or 1993 or during at least 4 separate years 
from 1980 through 1990.
    (ii) Area endorsements. A scallop moratorium permit may contain an 
area endorsement for Federal waters within Registration Area H and for 
Federal waters outside Registration Area H.
    (A) Registration Area H. A scallop moratorium permit may be 
endorsed for fishing in Federal waters within Registration Area H if a 
qualifying vessel made a legal landing of scallops taken inside 
Registration Area H during the qualifying period defined at paragraph 
(g)(3)(i) of this section.
    (B) Waters outside Registration Area H. A scallop moratorium permit 
may be endorsed for fishing in Federal waters outside Registration Area 
H if the qualifying vessel made a legal landing of scallops taken in 
waters outside Registration Area H during the qualifying period defined 
at paragraph (g)(3)(i) of this section.
    (iii) Legal landings. Evidence of legal landings shall be limited 
to documentation of state or Federal catch reports that indicate the 
amount of scallops harvested, the registration area or location in 
which they were caught, the vessel used to catch them, and the date of 
harvesting, landing, or reporting.
    (4) Maximum LOA--(i) All scallop moratorium permits will specify a 
maximum LOA, which will be 1.2 times the LOA of the qualifying vessel 
on January 20, 1993, unless the qualifying vessel was under 
reconstruction on January 20, 1993.
    (ii) If a qualifying vessel was under reconstruction on January 20, 
1993, the maximum LOA will be the LOA on the date reconstruction was 
completed.
    (5) Application for permit. A scallop moratorium permit will be 
issued to the person or successor in interest who was the owner of a 
qualifying vessel when

[[Page 67995]]

it most recently made qualifying landings under paragraph (g)(3) of 
this section, if he/she submits to the Regional Administrator a 
complete scallop moratorium permit application that is subsequently 
approved. A complete application for a scallop moratorium permit must 
include the following information:
    (i) Name(s), signature(s), business address(es), and telephone and 
fax numbers of the person(s) who owned the vessel when the most recent 
qualifying landing of scallops occurred.
    (ii) Name of the qualifying vessel, state registration number of 
the vessel and the USCG number of the vessel, if any.
    (iii) Valid documentation of the vessel's basis for moratorium 
qualification, if requested by the Regional Administrator due to an 
absence of landings records for the vessel for the qualifying period.
    (iv) Reliable documentation of the vessel's qualifying LOA, if 
requested by the Regional Administrator, such as a vessel survey, 
builder's plan, state or Federal registration certificate, or other 
reliable and probative documents that clearly identify the vessel and 
its LOA, and that are dated on or before January 20, 1993.
    (v) Name(s) and signature(s) of the person(s) who is/are the 
owner(s) of the vessel or the person(s) responsible for representing 
the vessel owner.
    (vi) If the qualifying vessel was under reconstruction on January 
20, 1993, the permit application must contain the following additional 
information:
    (A) A legible copy of written contracts or written agreements with 
the firm that performed reconstruction of the vessel and that relate to 
that reconstruction.
    (B) An affidavit signed by the vessel owner(s) and the owner/
manager of the firm that performed the reconstruction specifying the 
beginning and ending dates of the reconstruction.
    (C) An affidavit signed by the vessel owner(s) specifying the LOA 
of the reconstructed vessel.
    (6) Vessel ownership. Evidence of vessel ownership shall be limited 
to the following documents, in order of priority:
    (i) For vessels required to be documented under the laws of the 
United States, the USCG abstract of title issued in respect to that 
vessel.
    (ii) A certificate of registration that is determinative as to 
vessel ownership.
    (iii) A bill of sale.
    (7) Permit transfer. A complete application for approval of 
transfer of a scallop moratorium permit must include the following 
information:
    (i) Name(s), business address(es), and telephone and fax numbers of 
the applicant(s) including the holders of the scallop moratorium permit 
that is to be transferred and the person who is to receive the 
transferred scallop moratorium permit.
    (ii) Name(s) and signature(s) of the person(s) from whom moratorium 
qualification would be transferred or their representative, and the 
person(s) who would receive the transferred moratorium qualification or 
their representative.
    (iii) A legible copy of a contract or agreement to transfer the 
moratorium permit in question must be included with the application for 
transfer that specifies the person(s) from whom the scallop moratorium 
permit is to be transferred, the date of the transfer agreement, 
name(s) and signature(s) of the current holder(s) of the permit, and 
name(s) and signature(s) of person(s) to whom the scallop moratorium 
permit is to be transferred.
    (8) Appeal--(i) Determination. The Chief, RAM Division, will issue 
an initial administrative determination to an applicant upon denial of 
a scallop moratorium permit by that official. An initial administrative 
determination may be appealed by the applicant in accordance with 
Sec. 679.43. The initial administrative determination will be the final 
agency action if a written appeal is not received by the Regional 
Administrator postmarked within the period specified at Sec. 679.43.
    (ii) Permit denial. An initial administrative determination that 
denies an application for a scallop moratorium permit may authorize the 
affected person to take or retain scallops. The authorization expires 
on the effective date of the final agency action relating to the 
application.
    (iii) Final action. An administrative determination denying the 
issuance of a scallop moratorium permit is the final agency action for 
purposes of judicial review.
    4. In Sec. 679.43, paragraph (a) is revised to read as follows:


Sec. 679.43  Determinations and appeals.

    (a) General. This section describes the procedure for appealing 
initial administrative determinations made under this subpart as well 
as Sec. 679.4(c), Sec. 679.4(g) and portions of subpart C of this part 
that apply to the halibut and sablefish CDQ program.
* * * * *
[FR Doc. 96-32751 Filed 12-20-96; 12:43 pm]
BILLING CODE 3510-22-F