[Federal Register Volume 64, Number 33 (Friday, February 19, 1999)]
[Rules and Regulations]
[Pages 8263-8269]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-4061]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 648 and 649

[Docket No. 981026267-9013-02; I.D. 100798B]
RIN 0648-AL36


Fisheries of the Northeastern United States; American Lobster 
Fishery; Fishery Management Plan (FMP) Amendments to Achieve Regulatory 
Consistency on Permit Related Provisions for Vessels Issued Limited 
Access Federal Fishery Permits

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

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to implement measures contained in 
Amendment 11 to the Summer Flounder, Scup, and Black Sea Bass FMP; 
Amendment 7 to the Atlantic Mackerel, Squid, and Butterfish FMP; 
Amendment 11 to the Atlantic Surf Clam and Ocean Quahog FMP; Amendment 
8 to the Atlantic Sea Scallop FMP; Amendment 10 to the Northeast 
Multispecies FMP; and Amendment 7 to the American Lobster FMP. These 
amendments implement regulations to achieve regulatory consistency on 
vessel permitting for FMPs which have limited access permits issued by 
the Northeast Region of the NMFS. The regulations are intended to 
facilitate transactions such as buying, selling, replacing or upgrading 
commercial fishing vessels issued limited access permits. Consistency 
among these regulations is especially important for vessels which have 
limited access permits in more than one fishery in the Northeast 
Region.

DATES: All measures are effective on March 22, 1999.

ADDRESSES: Copies of these amendments, the regulatory impact review, 
and the environmental assessment are available from the Executive 
Director, Mid-Atlantic Fishery Management Council, Room 2115 Federal 
Building, 300 S. New Street, Dover, DE 19904-6790, or the Executive 
Director, New England Fishery Management Council, 5 Broadway, Saugus, 
MA 01906-1036.
    Comments on the burden hour estimates for collection-of-information 
requirements contained in this rule should be sent to Jon Rittgers, 
Acting Administrator, Northeast Region, NMFS, One Blackburn Drive, 
Gloucester, MA 01930, and to the Office of Information and Regulatory 
Affairs, Attention: NOAA Desk Officer, Office of Management and Budget, 
Washington, DC 20503.

FOR FURTHER INFORMATION CONTACT: Richard A. Pearson, Fishery Policy 
Analyst, 978-281-9279.

SUPPLEMENTARY INFORMATION:

Background

    Current limited access vessel permit regulations for FMPs in the 
Northeast Region were developed by the Mid-Atlantic Fishery Management 
Council (MAFMC) and New England Fishery Management Council (NEFMC) over 
a period of many years. As a result, the FMPs differ widely on 
important provisions regarding vessel replacement and upgrade, permit 
history transfer, permit splitting, and permit renewal. The current 
regulations are not only inconsistent among FMPs, they are also, in 
some instances, overly restrictive. This has proven to be confusing and 
inefficient, especially for the approximately 2,079 vessel owners, 
whose vessels possess more than one limited access Federal fishery 
permit. Routine business transactions, such as the sale or purchase of 
a vessel, have become unnecessarily complicated because of these 
differences. In a worst case situation, four different sets of 
guidelines would need to be interpreted by both industry and NMFS if a 
vessel with multispecies, summer flounder, black sea bass, and scup 
limited access permits was bought, sold, or upgraded.
    A notice of availability for these amendments was published in the 
Federal Register on October 15, 1998 (63 FR 55357), and the proposed 
rule to implement the amendments was published on November 13, 1998 (63 
FR 63436). The notice of availability solicited public comments through 
December 14, 1998. The proposed rule solicited public comments through 
December 28, 1998.
    The proposed amendments contained a number of changes to the summer 
flounder, scup, black sea bass, mahogany quahog, Loligo/butterfish, 
Illex squid, northeast multispecies, Atlantic sea scallop, and American 
lobster FMPs. Details concerning the development and necessity of these

[[Page 8264]]

amendments were provided in the notice of proposed rulemaking and are 
not repeated here. Summary of Approved Measures
    NMFS, on behalf of the Secretary of Commerce, has approved the 
measures consolidating the regulations governing permit-associated 
activities for all Northeast Region FMPs that have limited access 
permits. None of the approved measures apply retroactively. The 
approved measures: (1) allow a one-time vessel upgrade/replacement 
allowance of 10 percent in size (length overall (LOA), gross registered 
tons (GRT), and net tons (NT)), or 20 percent in horsepower (HP) for 
all limited access permits except American lobster (an engine HP 
increase may be performed separately from a vessel size increase); (2) 
require that the fishing and permit history of a vessel and the 
replacement vessel be owned by the same person when transferring 
limited access permits to replacement vessels; (3) allow voluntary 
replacement of vessels, regardless of vessel condition; (4) require 
that the fishing and permit history of a vessel transfer with the 
vessel whenever it is bought, sold or otherwise transferred, unless 
there is a written agreement between the buyer and seller, or other 
credible written evidence, verifying that the seller is retaining the 
vessel's fishing and permit history for purposes of replacing the 
vessel; (5) set the effective date of the final rule implementing the 
FMP amendments March 22, 1999, as the vessel baseline specification 
date for FMPs without baselines against which upgrades and replacements 
are measured (mahogany quahog, Loligo/butterfish, Illex, scup, and 
black sea bass,); (6) set the effective date of the final rule 
implementing the FMP amendments as the revised replacement baseline 
specification date and the newly established upgrade baseline 
specification date for the summer flounder FMP; (7) authorize the 
permanent voluntary relinquishment of permit eligibility; (8) implement 
a restriction on permit splitting; and (9) require a one-time 
Confirmation of Permit History (CPH) registration and an annual permit 
renewal. For the American Lobster FMP, the amendments prohibit permit 
splitting and require a one-time CPH registration.

Technical Changes

    Amendment 2 to the Summer Flounder FMP established the vessel 
permit moratorium, which was initially to expire after 1997. Amendment 
10 to the Summer Flounder FMP extended the moratorium indefinitely (62 
FR 63872, December 3, 1997), but Sec. 648.4(a)(3)(i) was not revised as 
necessary. This inadvertent omission is being corrected in this 
rulemaking.

Comments and Responses

    NMFS did not receive any comments from the public regarding the 
measures contained in the proposed rule, or in response to the Notice 
of Availability of the omnibus amendment. NMFS specifically sought 
comments from the public regarding the impact of implementing a 
restriction on vessel upgrading in some fisheries, but did not receive 
any responses.

Changes From the Proposed Rule

    Four minor changes from the proposed rule are noted. The first 
change involves the eligibility criteria in Secs. 648.4(a)(1)(i)(A), 
648.4(a)(2)(i)(A), 648.4(a)(3)(i)(A), 648.4(a)(4)(i)(A), 
648.4(a)(5)(i)(A), 648.4(a)(6)(i)(A), and Sec. 648.4(a)(7)(i)(A). The 
universe of eligibility for limited access permits has been expanded to 
include vessels which are replacing vessels for which CPHs have been 
issued. This is intrinsic to the concept of CPHs, and this has been an 
established procedure in cases where CPH's have been issued. Also, it 
is consistent with the American lobster eligibility criteria. This 
rulemaking will codify the procedure.
    Similarly, the second change from the proposed rule involves 
including a CPH in the qualification restriction in 
Sec. 648.4(a)(1)(i)(C). This section in the multispecies regulations is 
incorporated by reference in subsequent sections for the other FMPs. 
The final rule indicates that if more than one vessel owner claims 
eligibility for a limited access permit or CPH, based on one vessel's 
fishing and permit history, the Administrator, Northeast Region, NMFS 
(Regional Administrator) will determine who is entitled to qualify for 
the permit or CPH and any DAS allocation according to 
Sec. 648.4(a)(1)(i)(D). The CPH language was added to this section 
because it is intrinsic to the CPH concept, and has been an established 
practice in cases where CPH's have been issued. It is also consistent 
with the American Lobster FMP.
    The third change from the proposed rule clarifies the restrictions 
on changes to a vessel's multispecies or scallop limited access permit 
category. Sections 648.4(a)(1)(i)(I)(2) and 648.4(a)(2)(i)(I) now 
clarify that, although it is permissible to request a change in permit 
category within 45 days of the effective date of a permit, a vessel may 
fish under only one multispecies or scallop permit category during a 
fishing year. This clarification is necessary to prohibit vessels from 
receiving more than one allocation of DAS under different permit 
categories. This language is consistent with the regulations at 
Sec. 648.4(a)(1)(i)(I)(1), and codifies existing policy. Also, the term 
effective date is now used instead of the issue date because the issue 
date will no longer appear on vessel permits. The effective date will 
be either the first day of the fishing year, or the date on which the 
permit is issued if it is issued during the fishing year.
    The fourth change clarifies the manner in which the restriction on 
vessel upgrades in the summer flounder, mahogany quahog, Loligo/
butterfish, Illex, scup and black sea bass fisheries will be 
implemented for vessels in the process of upgrading when the 
restriction becomes effective. As has been the policy for the 
imposition of other limited access permit requirements, if as of the 
effective date of the restriction, the vessel is in the process of 
construction or rerigging, or under agreement or written contract for 
construction or rerigging, the vessel owner will have an additional 12 
months to establish the initial baseline specification for the vessel.

Classification

    NMFS has determined that the amendments implemented by this final 
rule are consistent with the national standards of the Magnuson-Stevens 
Fishery Conservation and Management Act and other applicable laws. In 
making this determination, NMFS considered the data, views, and 
comments received during the comment period for the amendments and 
proposed rule.
    This final rule has been determined to be not significant for the 
purposes of E.O. 12866.
    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce certified to the Chief Counsel for Advocacy of 
the Small Business Administration that this final rule would not have a 
significant economic impact on a substantial number of small entities.
    NMFS' standards for criteria to determine if a regulatory action is 
significant include: (1) a decrease in annual gross revenues of more 
than 5 percent for 20 percent or more of the affected small entities; 
(2) an increase in total costs of production of more than 5 percent as 
a result of an increase in compliance costs for 20 percent or more of 
the affected small entities; (3) compliance costs as a percent of sales 
for small entities that are at least 10 percent higher than compliance 
costs as a percent of sales for large entities for 20 percent or more 
of the affected small

[[Page 8265]]

entities; (4) capital costs of compliance that represent a significant 
portion of capital available to small entities, considering internal 
cash flow and external financing capabilities; or (5) 2 percent of the 
small business entities affected being forced to cease business 
operations.
    A substantial number of entities may be directly or indirectly 
impacted by this proposed action because all of the impacted vessels 
(4,430) in these fisheries are small entities and hold at least one 
limited access moratorium permit in the Northeast Region. However, the 
final rule would not have a significant economic impact because it 
would not result in a decrease in gross revenues, result in significant 
compliance costs, or cause businesses to cease operations. Many of 
these small entities currently operate under existing restrictions 
affecting vessel replacement, vessel upgrade, permit transfers, and 
permit renewals that are more restrictive and more complicated than the 
measures contained in this final rule.
    Current restrictions governing these activities differ for each 
vessel, depending upon the unique combination of permits which the 
vessel possesses. There are currently four different sets of 
regulations. This creates confusion and is inefficient when attempting 
to sell, modify, or replace a fishing vessel. These amendments reduce 
the number of sets of guidelines from four to one, and these guidelines 
are already applicable in the multispecies and Atlantic sea scallop 
fisheries.
    This action will not result in a decrease in annual gross revenues 
of more than 5 percent for 20 percent or more of the affected small 
entities because these new requirements are generally more lenient and 
less complicated than the existing array of regulations governing 
permit-related activities. In addition, these requirements do not 
impose compliance costs, such as gear purchases or direct restrictions 
on fishing activities. If and when a vessel owner chooses to buy, sell, 
upgrade, or replace a vessel then the regulations would affect them. 
However, these actions are still permissible and, with the exception of 
upgrades in some fisheries, the regulations are more lenient. Because 
the proposed restriction on vessel upgrades was difficult to quantify, 
NMFS sought comments from the public to establish any potential impacts 
that the restriction may have created. No comments regarding the 
upgrade restrictions were received. Costs of production and capital 
costs of compliance will not increase because the regulations do not 
impose immediate compliance requirements. This determination was 
supported by the lack of comments on any of the measures during the 
proposed rulemaking. Because this action would not have a significant 
economic impact on a substantial number of small entities, an initial 
regulatory flexibility analysis was not required.
    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 Office of Management and Budget (OMB) Control Number.
    This rule contains a new collection-of-information requirement that 
is subject to the Paperwork Reduction Act (PRA) and has been approved 
by the OMB under control number 0648-0202. Vessel owners intending to 
replace vessels, upgrade vessels, or obtain a CPH are required to 
complete an application form. Public reporting burden for this 
collection of information is estimated to average 3 hours per response 
for applicants requesting replacements of vessels permitted for Mid-
Atlantic fisheries, including the time for reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed, and completing and reviewing the collection of information. For 
applicants requesting a history retention, the estimated average 
response time is one-half hour per response. For applicants requesting 
vessel specification upgrades, the estimated average response time is 3 
hours. For applicants requesting replacements of undocumented vessels, 
the estimated average response time is 3 hours.
    This rule also contains two collection-of-information requirements 
previously approved under OMB control number 0648-0202. The response 
time for a multispecies permit holder to request a change in permit 
category is 5 minutes. The response time for a multispecies permit 
holder to request a permit appeal in writing is 3 minutes. Send 
comments regarding these burden estimates or any other aspect of this 
collection of information, including suggestions for reducing this 
burden, to NMFS and OMB (see ADDRESSES).

List of Subjects

50 CFR Part 648
    Fisheries, Fishing, Reporting and recordkeeping requirements.
50 CFR Part 649
    Fisheries, Reporting and recordkeeping requirements.

    Dated: February 12, 1999,
Andrew A. Rosenberg, Deputy Assistant Administrator for Fisheries, 
National Marine Fisheries Service.
    For the reasons set out in the preamble, 50 CFR parts 648 and 649 
are to be amended as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

    1. The authority citation for part 648 continues to read as 
follows:

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

    2. Section 648.4 is amended by removing paragraph (a)(5)(ii); 
redesignating existing paragraphs (a)(5)(iii), (a)(5)(iv), and 
(a)(5)(v) as paragraphs (a)(5)(ii), (a)(5)(iii), and (a)(5)(iv) 
respectively; revising paragraphs (a)(1)(i)(A) through (a)(1)(i)(C), 
(a)(1)(i)(E), (a)(1)(i)(F), (a)(1)(i)(H), (a)(1)(i)(I)(2), (a)(1)(i)(J) 
through (a)(1)(i)(L), (a)(2)(i)(A), (a)(2)(i)(B), (a)(2)(i)(H), 
(a)(2)(i)(I), (a)(3)(i) heading, (a)(3)(i)(A), (a)(3)(i)(B), 
(a)(3)(i)(C), (a)(4)(i), (a)(5)(i), (a)(6)(i), (a)(7)(i); and adding 
paragraphs (a)(1)(i)(M), (a)(2)(i)(L), (a)(2)(i)(M), (a)(3)(i)(D) 
through (a)(3)(i)(L) to read as follows:


Sec. 648.4  Vessel and individual commercial permits.

    (a) * * *
    (1) * * *
    (i) * * *
    (A) Eligibility. To be eligible to apply for a limited access 
multispecies permit, as specified in Sec. 648.82, a vessel must have 
been issued a limited access multispecies permit for the preceding 
year, be replacing a vessel that was issued a limited access 
multispecies permit for the preceding year, or be replacing a vessel 
that was issued a confirmation of permit history.
    (B) Application/renewal restrictions. All limited access permits 
established under this section must be issued on an annual basis by the 
last day of the fishing year for which the permit is required, unless a 
Confirmation of Permit History (CPH) has been issued as specified in 
paragraph (a)(1)(i)(J) of this section. Application for such permits 
must be received no later than 30 days before the last day of the 
fishing year. Failure to renew a limited access permit in any fishing 
year bars the renewal of the permit in subsequent years.
    (C) Qualification restriction. Unless the Regional Administrator 
determines otherwise, no more than one vessel may qualify, at any one 
time, for a limited access permit or CPH based on that or another 
vessel's fishing and permit

[[Page 8266]]

history. If more than one vessel owner claims eligibility for a limited 
access permit or CPH, based on one vessel's fishing and permit history, 
the Regional Administrator will determine who is entitled to qualify 
for the permit or CPH and any DAS allocation according to paragraph 
(a)(1)(i)(D) of this section.
* * * * *
     (E) Replacement vessels. To be eligible for a limited access 
permit under this section, the replacement vessel must meet the 
following criteria and any other applicable criteria under paragraph 
(a)(1)(i)(F) of this section:
    (1) The replacement vessel's horsepower may not exceed by more than 
20 percent the horsepower of the vessel's baseline specifications, as 
applicable.
    (2) The replacement vessel's length, GRT, and NT may not exceed by 
more than 10 percent the length, GRT, and NT of the vessel's baseline 
specifications, as applicable.
    (F) Upgraded vessel. A vessel may be upgraded, whether through 
refitting or replacement, and be eligible to retain or renew a limited 
access permit, only if the upgrade complies with the following:
    (1) The vessels's horsepower may be increased only once, whether 
through refitting or replacement. Such an increase may not exceed 20 
percent of the horsepower of the vessel's baseline specifications, as 
applicable.
    (2) The vessel's length, GRT, and NT may be increased only once, 
whether through refitting or replacement. Any increase in any of these 
three specifications of vessel size may not exceed 10 percent of the 
vessel's baseline specifications, as applicable. If any of these three 
specifications is increased, any increase in the other two must be 
performed at the same time. This type of upgrade may be done separately 
from an engine horsepower upgrade.
* * * * *
    (H) Vessel baseline specifications. The vessel baseline 
specifications in this section are the respective specifications 
(length, GRT, NT, horsepower) of the vessel that was initially issued a 
limited access permit as of the date the initial vessel applied for 
such permit.
    (I) * * *
    (2) The owner of a vessel issued a limited access multispecies 
permit may request a change in permit category, unless otherwise 
restricted by paragraph (a)(1)(i)(I)(1) of this section. The owner of a 
limited access multispecies vessel eligible to request a change in 
permit category must elect a category upon the vessel's permit 
application and will have one opportunity to request a change in permit 
category by submitting an application to the Regional Administrator 
within 45 days of the effective date of the vessel's permit. If such a 
request is not received within 45 days, the vessel owner may not 
request a change in permit category and the vessel permit category will 
remain unchanged for the duration of the fishing year. A vessel may not 
fish in more than one multispecies permit category during a fishing 
year.
* * * * *
    (J) Confirmation of permit history. Notwithstanding any other 
provisions of this part, a person who does not currently own a fishing 
vessel, but who has owned a qualifying vessel that has sunk, been 
destroyed, or transferred to another person, must apply for and receive 
a CPH if the fishing and permit history of such vessel has been 
retained lawfully by the applicant. To be eligible to obtain a CPH, the 
applicant must show that the qualifying vessel meets the eligibility 
requirements, as applicable, in this part. Issuance of a valid CPH 
preserves the eligibility of the applicant to apply for a limited 
access permit for a replacement vessel based on the qualifying vessel's 
fishing and permit history at a subsequent time, subject to the 
replacement provisions specified in this section. If fishing privileges 
have been assigned or allocated previously under this part, based on 
the qualifying vessel's fishing and permit history, the CPH also 
preserves such fishing privileges. A CPH must be applied for in order 
for the applicant to preserve the fishing rights and limited access 
eligibility of the qualifying vessel. An application for a CPH must be 
received by the Regional Administrator no later than 30 days prior to 
the end of the first full fishing year in which a vessel permit cannot 
be issued. Failure to do so is considered abandonment of the permit as 
described in paragraph (a)(1)(i)(K) of this section. A CPH issued under 
this part will remain valid until the fishing and permit history 
preserved by the CPH is used to qualify a replacement vessel for a 
limited access permit. Any decision regarding the issuance of a CPH for 
a qualifying vessel that has applied for or been issued previously a 
limited access permit is a final agency action subject to judicial 
review under 5 U.S.C. 704. Information requirements for the CPH 
application are the same as those for a limited access permit. Any 
request for information about the vessel on the CPH application form 
refers to the qualifying vessel that has been sunk, destroyed, or 
transferred. Vessel permit applicants who have been issued a CPH and 
who wish to obtain a vessel permit for a replacement vessel based upon 
the previous vessel history may do so pursuant to paragraph 
(a)(1)(i)(E) of this section.
    (K) Abandonment or voluntary relinquishment of permit history. If a 
vessel's limited access permit history for a particular fishery is 
voluntarily relinquished to the Regional Administrator or abandoned 
through failure to renew or otherwise, no limited access permit for 
that fishery may be reissued or renewed based on that vessel's history 
or to any other vessel relying on that vessel's history.
    (L) Restriction on permit splitting. A limited access permit issued 
pursuant to this section may not be issued to a vessel or its 
replacement or remain valid, if the vessel's permit or fishing history 
has been used to qualify another vessel for another Federal fishery.
    (M) Appeal of denial of permit--(1) Eligibility. Any applicant 
eligible to apply for a limited access multispecies permit who is 
denied such permit may appeal the denial to the Regional Administrator 
within 30 days of the notice of denial. Any such appeal must be based 
on one or more of the following grounds, must be in writing, and must 
state the grounds for the appeal:
    (i) The information used by the Regional Administrator was based on 
mistaken or incorrect data.
    (ii) The applicant was prevented by circumstances beyond his/her 
control from meeting relevant criteria.
    (iii) The applicant has new or additional information.
    (2) Appeal review. The Regional Administrator will appoint a 
designee who will make the initial decision on the appeal. The 
appellant may request a review of the initial decision by the Regional 
Administrator by so requesting in writing within 30 days of the notice 
of the initial decision. If the appellant does not request a review of 
the initial decision within 30 days, the initial decision is the final 
administrative action of the Department of Commerce. Such review will 
be conducted by a hearing officer appointed by the Regional 
Administrator. The hearing officer shall make findings and a 
recommendation to the Regional Administrator which shall be advisory 
only. Upon receiving the findings and the recommendation, the Regional 
Administrator will issue a final decision on the appeal. The Regional 
Administrator's decision is the final administrative action of the 
Department of Commerce.

[[Page 8267]]

    (3) Status of vessels pending appeal. A vessel denied a limited 
access multispecies permit may fish under the limited access 
multispecies category, provided that the denial has been appealed, the 
appeal is pending, and the vessel has on board a letter from the 
Regional Administrator authorizing the vessel to fish under the limited 
access category. The Regional Administrator will issue such a letter 
for the pendency of any appeal. Any such decision is the final 
administrative action of the Department of Commerce on allowable 
fishing activity, pending a final decision on the appeal. The letter of 
authorization must be carried on board the vessel. If the appeal is 
finally denied, the Regional Administrator shall send a notice of final 
denial to the vessel owner; the authorizing letter becomes invalid 5 
days after receipt of the notice of denial.
* * * * *
    (2) * * *
    (i) * * *
    (A) Eligibility. To be eligible to apply for a limited access 
scallop permit, a vessel must have been issued a limited access scallop 
permit for the preceding year, be replacing a vessel that was issued a 
limited access scallop permit for the preceding year, or be replacing a 
vessel that was issued a confirmation of permit history.
    (B) Application/renewal restrictions. See paragraph (a)(1)(i)(B) of 
this section.
* * * * *
    (H) Vessel baseline specifications. See paragraph (a)(1)(i)(H) of 
this section.
    (I) Limited access permit restrictions. A vessel may be issued a 
limited access scallop permit in only one category during a fishing 
year. The owner of a vessel issued a limited access scallop permit must 
elect a permit category upon the vessels permit application and will 
have one opportunity to request a change in permit category by 
submitting an application to the Regional Administrator within 45 days 
of the effective date of the vessel's permit. After this date, the 
vessel must remain in that permit category for the duration of the 
fishing year. Any DAS that a vessel uses prior to a change in permit 
category will be counted against its allocation received under any 
subsequent permit category.
* * * * *
    (L) Restriction on permit splitting. See paragraph (a)(1)(i)(L) of 
this section.
    (M) Percentage ownership restrictions. (1) For any vessel acquired 
after March 1, 1994, a vessel owner is not eligible to be issued a 
limited access scallop permit for the vessel if the issuance of the 
permit will result in the vessel owner, or in any other person who is a 
shareholder or partner of the vessel owner, having an ownership 
interest in limited access scallop vessels in excess of 5 percent of 
the number of all limited access scallop vessels at the time of permit 
application.
    (2) Vessel owners who were initially issued a 1994 limited access 
scallop permit or were issued or renewed a limited access scallop 
permit for a vessel in 1995 and thereafter, in compliance with the 
ownership restrictions in paragraph (a)(2)(i)(M)(1) of this section, 
are eligible to renew such permits(s), regardless of whether the 
renewal of the permits will result in the 5- percent ownership 
restriction being exceeded.
    (3) Having an ownership interest includes, but is not limited to, 
persons who are shareholders in a vessel owned by a corporation, who 
are partners (general or limited) to a vessel owner, or who, in any 
way, partly own a vessel.
* * * * *
    (3) * * *
    (i) Moratorium permits--(A) Eligibility. To be eligible to apply 
for a moratorium permit to fish for and retain summer flounder in 
excess of the possession limit in Sec. 648.105 in the EEZ, a vessel 
must have been issued a summer flounder moratorium permit for the 
preceding year, be replacing a vessel that was issued a moratorium 
permit for the preceding year, or be replacing a vessel that was issued 
a confirmation of permit history.
    (B) Application/renewal restriction. See paragraph (a)(1)(i)(B) of 
this section.
    (C) Qualification restriction. See paragraph (a)(1)(i)(C) of this 
section.
    (D) Change in ownership. See paragraph (a)(1)(i)(D) of this 
section.
    (E) Replacement vessels. See paragraph (a)(1)(i)(E) of this 
section.
    (F) Upgraded vessel. See paragraph (a)(1)(i)(F) of this section.
    (G) Consolidation restriction. See paragraph (a)(1)(i)(G) of this 
section.
    (H) Vessel baseline specifications. The vessel baseline 
specifications in this section are the respective specifications 
(length, GRT, NT, horsepower) of the vessel as of March 22, 1999, 
unless the vessel is in the process of construction or rerigging or 
under agreement or written contract for construction or rerigging, as 
of the effective baseline specification date in which case the baseline 
specifications will be established no later than February 19, 2000.
    (I) [Reserved]
    (J) Confirmation of permit history. See paragraph (a)(1)(i)(J) of 
this section.
    (K) Abandonment or voluntary relinquishment of permits. See 
paragraph (a)(1)(i)(K) of this section.
    (L) Restriction on permit splitting. See paragraph (a)(1)(i)(L) of 
this section.
* * * * *
    (4) * * *
    (i) Maine mahogany quahog permit. (A) A vessel is eligible for a 
Maine mahogany quahog permit to fish for ocean quahogs in the Maine 
mahogany quahog zone if it meets the following eligibility criteria in 
paragraphs (a)(1) and (a)(2) of this section, and an application for a 
Maine mahogany quahog permit is submitted by May 19, 1999. After May 
19, 1999, to be eligible to apply for a Maine mahogany quahog permit, a 
vessel must have been issued a Maine mahogany quahog permit for the 
preceding year, be replacing a vessel that was issued a Maine mahogany 
quahog permit for the preceding year, or be replacing a vessel that was 
issued a confirmation of permit history.
    (1) The vessel was issued a Federal Maine Mahogany Quahog 
Experimental Permit during one of the experimental fisheries authorized 
by the Regional Administrator between September 30, 1990, and September 
30, 1997; and,
    (2) The vessel landed at least one Maine bushel of ocean quahogs 
from the Maine mahogany quahog zone as documented by fishing or 
shellfish logs submitted to the Regional Administrator prior to January 
1, 1998.
    (B) Application/renewal restriction. See paragraph (a)(1)(i)(B) of 
this section.
    (C) Qualification restriction. See paragraph (a)(1)(i)(C) of this 
section.
    (D) Change in ownership. See paragraph (a)(1)(i)(D) of this 
section.
    (E) Replacement vessels. See paragraph (a)(1)(i)(E) of this 
section.
    (F) Upgraded vessel. See paragraph (a)(1)(i)(F) of this section.
    (G) Consolidation restriction. See paragraph (a)(1)(i)(G) of this 
section.
    (H) Vessel baseline specifications. See paragraph (a)(3)(i)(H) of 
this section.
    (I) [Reserved]
    (J) Confirmation of permit history. See paragraph (a)(1)(i)(J) of 
this section.
    (K) Abandonment or voluntary relinquishment of permits. See 
paragraph (a)(1)(i)(K) of this section.
    (L) Restriction on permit splitting. See paragraph (a)(1)(i)(L) of 
this section.
    (M) Appeal of denial of a permit. (1) Any applicant denied a Maine 
mahogany quahog permit may appeal to the Regional Administrator within 
30 days of the notice of denial. Any such appeal shall be in writing. 
The only ground for appeal is that the Regional Administrator's 
designee erred in concluding that the vessel did not meet

[[Page 8268]]

the criteria in paragraph (a)(4)(i)(A) of this section. The appeal must 
set forth the basis for the applicant's belief that the decision of the 
Regional Administrator's designee was made in error.
    (2) The appeal may be presented, at the option of the applicant, at 
a hearing before an officer appointed by the Regional Administrator.
    (3) The hearing officer shall make a recommendation to the Regional 
Administrator.
    (4) The Regional Administrator will make a final decision based on 
the criteria in paragraph (a)(4)(i)(A) of this section and on the 
available record, including any relevant documentation submitted by the 
applicant and, if a hearing is held, the recommendation of the hearing 
officer. The decision on the appeal by the Regional Administrator is 
the final decision of the Department of Commerce.
* * * * *
    (5) * * *
    (i) Loligo squid/butterfish and Illex squid moratorium permits 
(Illex squid moratorium is applicable from July 1, 1997, until July 1, 
2002)--(A) Eligibility. To be eligible to apply for a moratorium permit 
to fish for and retain Loligo squid, butterfish, or Illex squid in 
excess of the incidental catch allowance in paragraph (a)(5)(ii) of 
this section in the EEZ, a vessel must have been issued a Loligo squid 
and butterfish moratorium permit or Illex squid moratorium permit, as 
applicable, for the preceding year, be replacing a vessel that was 
issued a moratorium permit for the preceding year, or be replacing a 
vessel that was issued a confirmation of permit history.
    (B) Application/renewal restriction. See paragraph (a)(1)(i)(B) of 
this section.
    (C) Qualification restriction. See paragraph (a)(1)(i)(C) of this 
section.
    (D) Change in ownership. See paragraph (a)(1)(i)(D) of this 
section.
    (E) Replacement vessels. See paragraph (a)(1)(i)(E) of this 
section.
    (F) Upgraded vessel. See paragraph (a)(1)(i)(F) of this section.
    (G) Consolidation restriction. See paragraph (a)(1)(i)(G) of this 
section.
    (H) Vessel baseline specifications. See paragraph (a)(3)(i)(H) of 
this section.
    (I) [Reserved]
    (J) Confirmation of permit history. See paragraph (a)(1)(i)(J) of 
this section.
    (K) Abandonment or voluntary relinquishment of permits. See 
paragraph (a)(1)(i)(K) of this section.
    (L) Restriction on permit splitting. See paragraph (a)(1)(i)(L) of 
this section.
* * * * *
    (6) * * *
    (i) Moratorium permit--(A) Eligibility. To be eligible to apply for 
a moratorium permit to fish for and retain scup, a vessel must have 
been issued a scup moratorium permit for the preceding year, be 
replacing a vessel that was issued a scup moratorium permit for the 
preceding year, or be replacing a vessel that was issued a confirmation 
of permit history.
    (B) Application/renewal restriction. See paragraph (a)(1)(i)(B) of 
this section.
    (C) Qualification restriction. See paragraph (a)(1)(i)(C) of this 
section.
    (D) Change in ownership. See paragraph (a)(1)(i)(D) of this 
section.
    (E) Replacement vessels. See paragraph (a)(1)(i)(E) of this 
section.
    (F) Upgraded vessel. See paragraph (a)(1)(i)(F) of this section.
    (G) Consolidation restriction. See paragraph (a)(1)(i)(G) of this 
section.
    (H) Vessel baseline specifications. See paragraph (a)(3)(i)(H) of 
this section.
    (I) [Reserved]
    (J) Confirmation of permit history. See paragraph (a)(1)(i)(J) of 
this section.
    (K) Abandonment or voluntary relinquishment of permits. See 
paragraph (a)(1)(i)(K) of this section.
    (L) Restriction on permit splitting. See paragraph (a)(1)(i)(L) of 
this section.
* * * * *
    (7) * * *
    (i) Moratorium permits--(A) Eligibility. To be eligible to apply 
for a moratorium permit to fish for and retain black sea bass in excess 
of the possession limit established pursuant to Sec. 648.145 in the EEZ 
north of 35 deg.15.3' N. Lat., the latitude of Cape Hatteras Light, NC, 
a vessel must have been issued a black sea bass moratorium permit for 
the preceding year, be replacing a vessel that was issued a black sea 
bass moratorium permit for the preceding year, or be replacing a vessel 
that was issued a confirmation of permit history.
    (B) Application/renewal restrictions. See paragraph (a)(1)(i)(B) of 
this section.
    (C) Qualification restriction. See paragraph (a)(1)(i)(C) of this 
section.
    (D) Change in ownership. See paragraph (a)(1)(i)(D) of this 
section.
    (E) Replacement vessels. See paragraph (a)(1)(i)(E) of this 
section.
    (F) Upgraded vessel. See paragraph (a)(1)(i)(F) of this section.
    (G) Consolidation restriction. See paragraph (a)(1)(i)(G) of this 
section.
    (H) Vessel baseline specifications. See paragraph (a)(3)(i)(H) of 
this section.
    (I) [Reserved]
    (J) Confirmation of permit history. See paragraph (a)(1)(i)(J) of 
this section.
    (K) Abandonment or voluntary relinquishment of permits. See 
paragraph (a)(1)(i)(K) of this section.
    (L) Restriction on permit splitting. See paragraph (a)(1)(i)(L) of 
this section.
* * * * *
    3. Section 648.14 is amended by adding paragraphs (a)(114) and 
(a)(115) to read as follows:


Sec. 648.14  Prohibitions.

    (a) * * *
    (114) Fish for, possess, or land species regulated under this part 
with or from a vessel that is issued a limited access permit under 
Secs. 648.4(a)(1)(i), 648.4(a)(2)(i), 648.4(a)(3)(i), 648.4(a)(4)(i), 
648.4(a)(5)(i), 648.4(a)(6)(i), or Sec. 648.4(a)(7)(i), and that has 
had the horsepower of such vessel or its replacement upgraded or 
increased in excess of the limitations specified in 
Sec. 648.4(a)(1)(i)(E) and (F).
    (115) Fish for, possess, or land species regulated under this part 
with or from a vessel issued a limited access permit under 
Secs. 648.4(a)(1)(i), 648.4(a)(2)(i), 648.4(a)(3)(i), 648.4(a)(4)(i), 
648.4(a)(5)(i), 648.4(a)(6)(i), or Sec. 648.4(a)(7)(i), that has had 
the length, GRT, or NT of such vessel or its replacement upgraded or 
increased in excess of the limitations specified in 
Sec. 648.4(a)(1)(i)(E) and (F).
* * * * *

PART 649--AMERICAN LOBSTER FISHERY

    1. The authority citation for part 649 continues to read as 
follows:

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

    2. Section 649.4 is amended by revising paragraph (b)(2)(i) and by 
adding paragraphs (b)(3)(iii), (b)(3)(iv), and (b)(3)(v) to read as 
follows:


Sec. 649.4  Vessel permits.

* * * * *
    (b) * * *
    (2) * * *
    (i) To be eligible to renew or apply for a limited access lobster 
permit, a vessel or permit applicant must have been issued a limited 
access lobster permit for the preceding year, be replacing a vessel 
that was issued a limited access lobster permit for the preceding year, 
or be replacing a vessel that was issued a confirmation of permit 
history. If more than one applicant claims eligibility to apply for a 
limited access American lobster permit or CPH based on one fishing and 
permit history, the Regional Administrator shall determine who is 
entitled to qualify for the limited access permit or permit history 
confirmation.
* * * * *
    (3) * * *
    (iii) Restriction on permit splitting. A limited access American 
lobster permit

[[Page 8269]]

may not be issued to a vessel or to its replacement, or remain valid, 
if a vessel's permit or fishing history has been used to qualify 
another vessel for another Federal fishery.
    (iv) Consolidation restriction. Limited access permits may not be 
combined or consolidated.
    (v) Confirmation of permit history. Notwithstanding any other 
provisions of this part, a person who does not currently own a fishing 
vessel, but who has owned a qualifying vessel that has sunk, been 
destroyed, or transferred to another person, must apply for and receive 
a CPH if the fishing and permit history of such vessel has been 
retained lawfully by the applicant. To be eligible to obtain a CPH, the 
applicant must show that the qualifying vessel meets the eligibility 
requirements, as applicable, in this part. Issuance of a valid CPH 
preserves the eligibility of the applicant to apply for a limited 
access permit for a replacement vessel based on the qualifying vessel's 
fishing and permit history at a subsequent time, subject to the 
replacement provisions specified in this section. A CPH must be applied 
for in order for the applicant to preserve the fishing rights and 
limited access eligibility of the qualifying vessel. If fishing 
privileges have been assigned or allocated previously under this part, 
based on the qualifying vessel's fishing and permit history, the CPH 
also preserves such fishing privileges. Any decision regarding the 
issuance of a CPH for a qualifying vessel that has applied for or been 
issued previously a limited access permit is a final agency action 
subject to judicial review under 5 U.S.C. 704. An application for a CPH 
must be received by the Regional Administrator no later than 30 days 
prior to the end of the first full fishing year in which a vessel 
permit cannot be issued. Failure to do so is considered abandonment of 
the permit as described in paragraph (q) of this section. A CPH issued 
under this part will remain valid until the fishing and permit history 
preserved by the CPH is used to qualify a replacement vessel for a 
limited access permit. Information requirements for the CPH application 
are the same as those for a limited access permit with any request for 
information about the vessel being applicable to the qualifying vessel 
that has been sunk, destroyed, or transferred. Vessel permit applicants 
who have been issued a CPH and who wish to obtain a vessel permit for a 
replacement vessel based upon the previous vessel history may do so 
pursuant to paragraph (b)(1)(i)(D) of this section.
* * * * *
[FR Doc. 99-4061 Filed 2-18-99; 8:45 am]
BILLING CODE 3510-22-F