[Federal Register Volume 62, Number 70 (Friday, April 11, 1997)]
[Rules and Regulations]
[Pages 17749-17753]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-9433]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 961203339-7063-02; 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: Final rule.
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SUMMARY: NMFS approves a temporary moratorium on the entry of
additional vessels into the scallop fishery off Alaska. This action
implements 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 purpose of Amendment 2 is to curtail
increases in fishing capacity and 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: Effective May 12, 1997 through June 30, 2000, except for
Sec. 679.4(g)(1)(ii), which will become effective on July 1, 1997,
through June 30, 2000; and the amendments to
[[Page 17750]]
Secs. 679.2, 679.4(c)(10)(i), and 679.43 will become
effective May 12, 1997.
ADDRESSES: Copies of Amendment 2 and the Environmental Assessment/
Regulatory Impact Review/Final Regulatory Flexibility Analysis (EA/RIR/
FRFA) prepared for this action may be obtained from NMFS, P.O. Box
21668, Juneau, AK 99802, Attn: Lori J. Gravel.
FOR FURTHER INFORMATION CONTACT: Kent Lind, 907-586-7228.
SUPPLEMENTARY INFORMATION:
Background
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 Fishery Conservation and Management Act
(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.
At its April 1996 meeting, the Council adopted Amendment 2 and
recommended that NMFS prepare a rulemaking to implement the amendment.
A notice of availability of Amendment 2 was published in the Federal
Register on December 3, 1996 (61 FR 64087), and invited comment on the
amendment through February 3, 1997. No written comments were received
on the amendment. A proposed rule to implement Amendment 2 was
published in the Federal Register on December 26, 1996 (61 FR 67990).
Comments on the proposed rule were invited through February 10, 1997.
One letter containing three comments on the proposed rule was received
by the end of the comment period. These comments are summarized and
responded to in the Response to Comments section below.
Upon reviewing the reasons for Amendment 2, and the comments on the
proposed rule to implement it, NMFS has determined that this action is
necessary for the conservation and management of the scallop fishery
off Alaska. Amendment 2 was approved by NMFS on March 5, 1997, under
section 304(b) of the Magnuson-Stevens Act. Additional information on
this action may be found in the preamble to the proposed rule and in
the EA/RIR/FRFA.
Response to Comments
Comment 1. The moratorium will authorize 15 vessels to operate in
Federal waters outside Cook Inlet. We believe this is too large a fleet
to be economically sustainable. NMFS and the State of Alaska manage the
scallop fishery by establishing total allowable catch (TAC) limits that
are actually the upper limit of a range of harvest that will be
permitted. It appears that analysis of the scallop moratorium has
focused on the TAC as if it were the amount guaranteed to the scallop
fleet for harvest. However, harvests are often stopped before the TAC
is reached, due to attainment of the crab bycatch limit or because
declining catch per unit effort in the fishery indicates that the
resource is not healthy enough to sustain yield at the TAC level.
Consequently, the published TACs do not accurately portray the
availability of scallop resource for harvest.
In our experience of over 20 years in the Alaska scallop fishery,
declines in catch closely follow years of overcapitalization. In our
view, the Federal waters outside Cook Inlet cannot support 15 vessels.
The scallop fishery has never sustained that level of effort for more
than a 2- or 3-year period, and those periods of overharvest have
always been followed by years when effort was reduced to one or even
zero vessels. We agree with the conclusion in the proposed rule--that
four to six vessels could harvest the available quota. However, because
the available quota is overstated, reviewers may misunderstand the
economics of the fishery. Under the actual harvest levels realized in
the fishery, four to six vessels may make a living--nothing more.
Response. NMFS agrees that the scallop resource may be insufficient
to support all qualified vessels in a year-round fishery. However, the
scallop vessel moratorium is designed as a temporary measure to curtail
additional increases in fishing capacity and provide stability for
industry while a long-term limited access program is developed. The
moratorium qualification criteria were established by the Council after
extensive analysis, public testimony, and debate. These qualification
criteria will achieve the Council's objectives while treating past and
present participants in the fishery in a fair and equitable manner.
Comment 2. Vessels that immigrate to the scallop fishery from other
areas or fisheries in which they are licensed are able to return to
those fisheries after a downturn in the scallop stock. Vessels that
have depended exclusively on the Alaskan scallop fishery to the extent
that they hold no permits nor expertise in other fisheries or areas are
unable to compensate for losses in the scallop fishery. Ultimately,
then, the price for overcapitalization is paid only by those who
exclusively depend on the Alaskan scallop fishery.
Response. Comment noted. Also, see response to comment 1.
Comment 3. We agree with ending the qualifying period in 1993 as
approved by the Council. Although not stated in the proposed rule, the
emergency action required of the Council and NMFS in reaction to
unrestricted fishing by a vessel that had renounced its Alaskan
registration also contributed significantly to the delay in issuance of
the moratorium proposed rule.
Response. Comment noted.
Elements of the Scallop Vessel Moratorium
The following paragraphs explain each aspect of the scallop vessel
moratorium.
Applicability
Beginning July 1, 1997, any vessel fishing for scallops in the EEZ
off Alaska must carry a valid scallop moratorium permit at all times,
and the vessel owner or operator must be named on the moratorium
permit.
Duration of the Moratorium
The scallop vessel moratorium will remain in effect for 3 years
from July 1, 1997, unless repealed or replaced by a permanent limited
access program. Under Amendment 2, the Council may recommend that the
moratorium be extended for no more than 2 years if a permanent limited
access program is imminent.
Qualification Criteria
A vessel qualifies 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. This two-tier approach
emphasizes recent participation in the fishery by allowing all vessels
with any legal landings in 1991, 1992, or 1993 to qualify. Historic
participants qualify under the more restrictive standard of a legal
landing during at least 4 separate years from 1980 through 1990.
Scallop moratorium permits will be issued to the person (or
successor in interest) who owned the qualifying vessel when it most
recently made a qualifying landing. If that vessel were sold during or
after the moratorium qualification period, the moratorium permit would
be available to the person who owned the vessel (or successor in
interest) when it most recently made a qualifying landing, such that
each vessel generates only one moratorium permit.
[[Page 17751]]
Area Endorsements
Moratorium permits will be endorsed for fishing in Federal waters
within Registration Area H (Cook Inlet) or fishing within Federal
waters outside Registration Area H. Qualified vessels must 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 will be allowed between Registration Area H and waters
outside Registration Area H unless a vessel qualifies in both areas.
Vessel Reconstruction and Maximum Length Overall (LOA)
To prevent increased capitalization in the scallop fishery,
lengthening of a vessel is limited to no more than 1.2 times or 20
percent of the vessel's LOA on January 20, 1993. For vessels under
reconstruction on January 20, 1993, vessels are limited to the LOA on
the date reconstruction was completed, with no additional increases
allowed. Each scallop moratorium permit will specify a maximum LOA
based on the above criteria. These restrictions will 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 are valid on any vessel that is less than or
equal to the maximum LOA identified on the permit, provided that the
vessel owner or operator is named on the moratorium permit. A person
may transfer a moratorium permit to another person if a completed
transfer application is submitted to NMFS and subsequently approved. In
this event, a new permit will be issued in the name of the person who
received the transferred permit. A permit transfer is required to
reflect any change in permit ownership including the addition or
deletion of a partner's name. In addition, the area endorsements on a
moratorium permit may not be transferred independently of the permit
itself.
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, are exempt from the scallop moratorium when
fishing for scallops with dive gear. An operator of a vessel under the
size limits listed above is still required to carry a valid scallop
moratorium permit on board when fishing with dredge gear or when dredge
gear is on board.
Appeals
NMFS will 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 individual fishing
quota program at Sec. 679.43. An initial administrative determination
that denies an application for a scallop moratorium permit may
authorize the affected person to catch and retain scallops with an
interim permit. Any interim permit that authorizes fishing will 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 is the final
agency action for purposes of judicial review.
Technical Changes to Existing Regulations
This final 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 are necessary 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 also is 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 Administrator, Alaska
Region, NMFS (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) is revised to indicate that the appeals
process described at Sec. 679.43 also applies to scallop moratorium
appeals made under Sec. 679.4(g).
Changes from the Proposed Rule
The following changes were made from the proposed rule.
1. The applicable date of the scallop moratorium was delayed until
July 1, 1997, which coincides with the start of the scallop fishing
season in most areas of Alaska. The purpose of this change is to
provide industry with sufficient time to apply for and receive scallop
moratorium permits.
2. The language governing permit validity at
Sec. 679.4(g)(1)(iii)(A) was changed to specify that the permit is
valid only if the person named on the moratorium permit is the owner or
operator of the vessel on which the permit is used. This change was
made for clarity and consistency, because the terms ``owner'' and
``operator'' are defined in regulation at Sec. 600.10.
3. The language governing permit transfers at Sec. 679.4(g)(7) was
revised to clarify that a permit transfer is required to reflect any
change in permit ownership including the addition or subtraction of a
partner.
4. Finally, paragraph 679.4(g)(9) was added to clarify for the
public that scallop moratorium permits do not represent any interest
that is subject to the ``takings'' provision of the U.S. Constitution.
The public is advised that these permits represent a harvesting
privilege that may be amended or revoked subject to the requirements of
applicable Federal law.
Classification
The Regional Administrator determined that Amendment 2 is necessary
for the conservation and management of the scallop fishery off Alaska
and that it is consistent with the Magnuson-Stevens Act and other
applicable laws.
This final rule has been determined to be not significant for the
purposes of E.O. 12866.
The Council prepared a final regulatory flexibility analysis as
part of the regulatory impact review. The analysis concluded that
economic effects of Amendment 2 could have a significant and positive
impact on a substantial number of small entities. A moratorium on the
entry of new vessels into the scallop fishery will help prevent further
overcapitalization of the fishery and the loss of income to current
participants that would result from further overcapitalization.
However, it is impossible to determine how many new vessels would enter
the fishery in the absence of a vessel moratorium. As a consequence,
the benefits of a moratorium are impossible to quantify. The proposed
rule to implement Amendment 2 was published in the Federal Register on
December 26, 1996, and comments were invited on the IRFA. No comments
were received on the IRFA. Because the economic impacts are beneficial,
no efforts have been made to mitigate these effects. A copy of this
analysis is available from NMFS (see ADDRESSES).
This final rule contains a collection-of-information requirement
subject to the Paperwork Reduction Act. The collection of this
information has been approved by the Office of Management and Budget,
OMB Control Number 0648-0206. The new information
[[Page 17752]]
requirement includes 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 these burden
estimates 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, Office of Management and
Budget, Washington, DC 20503 (ATTN: NOAA Desk Officer).
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.
List of Subjects in 50 CFR Part 679
Fisheries, Reporting and recordkeeping requirements.
Dated: April 7, 1997.
Nancy Foster,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 679 is 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 June 30, 2000) 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 June 30, 2000) 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 June 30, 2000)--
(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) Applicable dates and duration. The requirement to carry a
moratorium permit is applicable from July 1, 1997, through June 30,
2000. A 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) A person named on the moratorium permit is the owner or
operator of the vessel on which the permit is used.
(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. To qualify for a
moratorium permit, a vessel must have 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, for
Federal waters outside Registration Area H, or for both areas.
(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
[[Page 17753]]
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 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--(i) Applicability. A moratorium permit
transfer is required to effect any change in permit ownership including
the addition or subtraction of partners. Area endorsements may not be
transferred independently of a moratorium permit.
(ii) Required information. A complete application for approval of
transfer of a scallop moratorium permit must include the following:
(A) The original moratorium permit to be transferred.
(B) 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(s) who is to receive the
transferred scallop moratorium permit.
(C) Name(s) and signature(s) of the person(s) from whom the
moratorium permit would be transferred or their representative, and the
person(s) who would receive the transferred moratorium permit or their
representative.
(D) 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. Any administrative
determination that authorizes fishing will expire 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.
(9) Harvesting privilege. Scallop moratorium permits issued
pursuant to this part do not represent an interest that is subject to
the ``takings'' provision of the 5th Amendment to the U.S.
Constitution. Rather, such permits represent only a harvesting
privilege that may be revoked or amended subject to the requirements of
the Magnuson-Stevens Act and other applicable laws.
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. 97-9433 Filed 4-10-97; 8:45 am]
BILLING CODE 3510-22-F