[Federal Register Volume 64, Number 171 (Friday, September 3, 1999)]
[Rules and Regulations]
[Pages 48326-48329]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-22954]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 990820230-9230-01; I.D. 080599B]
RIN 0648-AM92


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Snapper-Grouper Fishery Off the Southern Atlantic States; Restricted 
Reopening of Limited Access Permit Application Process

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

ACTION: Emergency interim rule; request for comments.

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SUMMARY: This emergency interim rule provides an additional opportunity 
to obtain snapper-grouper limited access permits for those vessel 
owners who were previously determined by NMFS to be eligible for such 
permits but did not submit an application by the application deadline, 
on or before October 14, 1998, provided they have not violated the 
permit requirement in the interim. This rule is intended to avoid 
adverse social and economic impacts on the affected individuals.

DATES: This rule is effective September 3, 1999 through March 1, 2000. 
Comments must be received no later than October 4, 1999.

ADDRESSES: Comments on this emergency interim rule must be mailed to, 
and copies of documents supporting this action may be obtained from, 
the Southeast Regional Office, NMFS, 9721 Executive Center Drive N., 
St. Petersburg, FL 33702.
    Written comments regarding the collection-of-information 
requirements contained in this rule may be submitted to Edward E. 
Burgess, Southeast Regional Office, NMFS, 9721 Executive Center Drive 
N., St. Petersburg, FL 33702, and to the Office of Information and 
Regulatory Affairs, Office of Management and Budget (OMB), Washington, 
DC 20503 (Attention: NOAA Desk Officer).

FOR FURTHER INFORMATION CONTACT: Peter J. Eldridge, 727-570-5305.

SUPPLEMENTARY INFORMATION: The snapper-grouper fishery off the southern 
Atlantic states is managed under the Fishery Management Plan for the 
Snapper-Grouper Fishery of the South Atlantic Region (FMP). The FMP was 
prepared by the South Atlantic Fishery Management Council (Council), 
approved by NMFS, and implemented under the authority of the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) 
by regulations at 50 CFR part 622.

Background

    Amendment 8 to the FMP, approved by NMFS on January 28, 1998, and 
implemented by final rule (July 16, 1998; 63 FR 38298), limits access 
to the snapper-grouper fishery. A vessel owner who met certain required 
landings and permit histories in the snapper-grouper fishery was 
eligible for an initial limited access permit, provided the vessel 
owner applied for such a permit by no later than October 14, 1998. NMFS 
notified each vessel owner of NMFS' initial determination of the 
individual's eligibility for either a transferable or trip-limited 
limited access permit. Notifications were sent by regular mail to the 
owner's address as shown in NMFS' permit records.
    For various reasons, including hurricanes Bonnie, Georges, and 
Mitch, some permit eligibility notifications were not received and/or 
were not responded to on or before October 14,

[[Page 48327]]

1998. Approximately 260 vessel owners who had been determined by NMFS 
to have met the required landings and permit histories in the snapper-
grouper fishery and, thus, were eligible for a limited access permit, 
did not apply for a permit by the permit application deadline. Because 
these owners failed to submit applications in a timely manner, their 
vessels could not fish in the snapper-grouper fishery as of December 
14, 1998.
    After considerable public input, the Council concluded that there 
were compelling reasons for a significant number of vessel owners to 
have missed the permit application deadline. Further, the resultant 
inability to continue to fish in the snapper-grouper fishery was 
causing significant economic hardships and adverse community impacts. 
The Council further concluded that allowing an additional period for 
applications of owners who were known to have met the initial 
qualifying criteria would be consistent with the goals of its limited 
access program. The limited access program had not considered that 
these owners might not be able to apply in a timely manner for 
compelling reasons.
    At its meeting on June 17, 1999, the Council requested that NMFS 
implement by emergency rule a limited reopening of the application 
period for limited access permits in the snapper-grouper fishery.

Limited Reopening of the Application Period

    As requested by the Council and implemented in this emergency 
interim rule, a vessel owner who was determined by NMFS to be eligible 
for an initial limited access permit, but did not apply in a timely 
manner, will have an additional 45-day period to apply. However, an 
owner who has been determined by a final administrative decision to 
have violated the snapper-grouper permit requirement on or after 
December 14, 1998, is not eligible to apply. An otherwise qualified 
owner who has been charged with such a violation, but whose case has 
not been finally resolved, may apply for a permit, but the issuance 
will be withheld until the case has been resolved in the applicant's 
favor.
    Each owner who was initially determined by the Southeast Regional 
Administrator (RA) to be eligible for a transferable permit under 
Amendment 8 may apply for an unlimited permit. An unlimited permit is 
similar to the transferable permits initially issued, i.e., it is not 
subject to a trip limit, but its transferability is significantly 
restricted as described here. An owner who was initially determined by 
the RA to be eligible for a trip-limited permit under Amendment 8 may 
apply for a trip-limited permit. A trip-limited permit issued under 
this emergency interim rule does not differ from those initially issued 
under Amendment 8.
    Each owner to whom this limited reopening of the permit application 
process applies will be so advised by the RA by certified mail, which 
will include an application form, not later than 5 days after the date 
of publication of this document. The notification will be sent to the 
address in NMFS' permit files. An owner who receives such notification 
must submit an application, postmarked or hand-delivered not later than 
October 18, 1999 to the RA. Failure to apply in a timely manner will 
preclude permit issuance.
    Upon receipt of a complete application submitted in a timely 
manner, NMFS will issue an initial limited access permit for the 
snapper-grouper fishery, either unlimited or trip-limited, as specified 
in the letter of notification, provided the applicant has not been 
determined by a final administrative decision to have violated the 
snapper-grouper permit requirement on or after December 14, 1998.

Limitations on Transfers of Unlimited Permits

    The limited access program for the snapper-grouper fishery limits 
the transfers of both transferable and trip-limited permits. Included 
in those transfer limitations is a provision that allows a new entrant 
into the non-trip-limited fishery to obtain a permit only upon 
obtaining and trading in two existing transferable permits. As a 
result, existing transferable permits have significantly increased in 
value. An owner who met the catch and permit history criteria for a 
transferable limited access permit, but who did not apply for such 
permit because he/she no longer desired to participate in the fishery, 
may be tempted to obtain an unlimited permit under this emergency rule 
solely for the purpose of a windfall profit. This rule is intended to 
benefit qualified owners who are suffering economic losses as a result 
of their exclusion from the fishery because of not meeting the permit 
application deadline rather than owners who opted not to participate in 
the fishery. To preclude such windfall profits, the Council requested 
that an unlimited permit obtained under this emergency rule be non-
transferable for 3 years, except for a transfer to a replacement vessel 
owned by the same entity. The permit will become transferable for the 
purposes of the two-for-one provision only if at least 1,000 lb (453.6 
kg) of South Atlantic snapper-grouper are landed by the permitted 
vessel, or its replacement, in each of the 3 years. If landings in one 
of these 3 years are less than 1,000 lb (453.6 kg), the permit may be 
renewed only as a trip-limited permit.
    The sole basis for determination of meeting this catch criterion 
will be the fishing records, which are required by 50 CFR 
622.5(a)(1)(iv)(A) for all permitted vessels, that are submitted in a 
timely manner. The initial 1-year period for meeting the catch 
criterion will end at the end of the month 12 months after the 
unlimited permit is issued and similarly for each of the 2 succeeding 
years.
    Because of the requirement that an unlimited permit revert to a 
trip-limited permit when the landings criterion is not met, an initial 
unlimited permit issued under this emergency interim rule must have an 
expiration date that is more than 12 months from the initial date of 
issue. Otherwise, an owner whose vessel reaches the 1,000-lb (453.6-kg) 
threshold in the 12th month will be without a valid permit before a 
renewal permit can be issued. Accordingly, an initial unlimited permit 
issued under this emergency rule will expire at the end of the month 13 
months after it is issued. However, the 1,000-lb (453.6-kg) landing 
requirement must be met during the first full 12-month period under the 
permit, and in each succeeding 12-month period, for the full 3-year 
period. After the initial permit an unlimited permit will be renewed 
for a 12-month period.
    For example, if an initial unlimited permit is issued on January 1, 
2000, it will be valid through January 31, 2001, but the 
1000-lb (453.6-kg) landing requirement must be met January 1, through 
December 31, 2000. If the landing requirement is met, the permit will 
be renewed and will be valid January 31, 2001, through 
January 31, 2002, and the landing criterion must be met 
January 1, 2001, through December 31, 2001. If the landing 
requirement is met, the permit will be renewed and will be valid 
January 31, 2002, through January 31, 2003, and the landing requirement 
must be met January 1, 2002, through December 31, 2002. If the 1000-lb 
(453.6-kg) landing requirement is met for all 3 years, the unlimited 
permit will become a transferable permit when it is renewed in January 
2003.

Criteria for Issuing an Emergency Rule

    This emergency interim rule meets NMFS policy guidelines for the 
use of emergency rules (62 FR 44421, August 21, 1997), because the 
emergency

[[Page 48328]]

situation: Results from recent, unforeseen events, or recently 
discovered circumstances; presents a serious management problem; and 
realizes immediate benefits from the emergency rule that outweigh the 
value of prior notice, opportunity for public comment, and deliberative 
consideration expected under the normal rulemaking process. When the 
initial 90-day application period was established, the Council did not 
foresee the extreme circumstances that would cause some qualified 
vessel owners to miss the application deadline. The full scope of these 
circumstances became known only after the application period ended. 
Further, the full scope of the economic hardships and adverse community 
impacts were not known until the Council's public hearing on June 16, 
1999. These economic hardships and adverse community impacts constitute 
serious management problems in the fishery, as the fishery includes the 
fishermen as well as the fish stocks themselves. Economic hardship will 
be alleviated for up to 260 vessel owners as a result of this emergency 
interim rule. However, the rule will not adversely affect the benefits 
that were anticipated from the Council's limited access program. Thus, 
the benefits of immediate restricted reopening of the application 
period for limited access permits are considered to outweigh the value 
of prior notice, opportunity for public comment, and deliberative 
consideration under the normal rulemaking process.

Period of Effectiveness

    This emergency interim rule is effective for not more than 180 
days, as authorized by section 305(c) of the Magnuson-Stevens Act. It 
may be extended for an additional period of not more than 180 days, 
provided that the public has had an opportunity to comment on it and 
the Council is actively preparing an amendment to address the emergency 
on a permanent basis. Public comments on this rule and the Council's 
actions will be considered in determining whether to extend this rule.

Classification

    The Assistant Administrator for Fisheries, NOAA (AA), has 
determined that this emergency interim rule is necessary to minimize 
significant adverse social and economic impacts on the affected 
snapper-grouper vessel owners. The AA has also determined that this 
rule is consistent with the Magnuson-Stevens Act and other applicable 
laws.
    This emergency interim rule has been determined to be not 
significant for purposes of E.O. 12866.
    NMFS prepared an economic evaluation of the regulatory impacts 
associated with this emergency interim rule, which is summarized as 
follows. The long-term economic consequences of this emergency rule are 
expected to be very small. The reasoning is that the rule is designed 
to provide an additional opportunity for fishermen who originally 
qualified for a permit, but did not apply for reasons beyond their 
control. This rule applies only to fishermen deemed to qualify 
originally and will not provide an additional open season for entities 
not previously in the fishery to enter the fishery. Accordingly, the 
total number of entities that can engage in the snapper-grouper fishery 
will not increase beyond the number envisioned by the original action. 
While the number will not increase, it could actually decrease because 
some of the eligible entities that did not renew their permits 
originally may not renew them this time either.
    There are 1,167 qualified holders of permits at present. 
Approximately 260 qualified individuals failed to renew under the 
original 90-day window. NMFS cannot determine how many of these 260 
fishermen will reapply. However, even if all 260 qualified individuals 
apply and receive permits under the 45-day window established by this 
emergency interim rule, the resulting number of permitted fishermen 
would still be less than the number originally contemplated by the 
Council in Amendment 8. In addition, it is expected that permitted 
fishing capability would still be smaller than originally envisioned 
when the decision was made to reissue permits only to those fishermen 
that were currently active in the fishery. This results from the 
requirement that the 260 fishermen can only qualify for non-
transferable permits, with the limited exception of a transfer to 
another vessel owned by the same entity. An unlimited permit would 
become transferable only if the vessel owner recorded 1,000 lb (453.6 
kg) of landings of South Atlantic snapper-grouper in each of the next 3 
years. If the landings criterion is not met, the permit will revert to 
a trip-limited permit, i.e., a permit under which a 225-lb (102.1-kg) 
trip limit applies. Copies of the economic evaluation of this rule are 
available (see ADDRESSES).
    Notwithstanding any other provision of 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.
    This rule contains two collection-of-information requirements, 
permit applications and submission of fishing records, that are subject 
to the Paperwork Reduction Act (PRA). These collections of information 
have been approved by OMB under control numbers 0648-0205 and 0648-
0016, respectively. The public reporting burdens for these collections 
of information are estimated to average 20 minutes and 10 minutes per 
response, respectively, including the time for reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed, and completing and reviewing the collections of information. 
Send comments regarding these burden estimates, or any other aspect of 
these data collections, including suggestions for reducing the burdens, 
to NMFS and OMB (see ADDRESSES).
    If NMFS does not immediately reopen the snapper-grouper permit 
application process, approximately 260 vessels, whose owners were 
determined to be eligible for an initial limited access commercial 
permit for snapper-grouper, will continue to be denied access to the 
snapper-grouper fishery because their owners, through no fault of their 
own, did not submit a permit application by the deadline. It is 
estimated that the total ex-vessel value of landings for the 260 
vessels is about $90,000 per month. Immediate reopening of the 
application process and consequent immediate permit issuance is 
critical to minimize the economic loss qualified vessel owners, their 
crews, and others dependent upon them, have been experiencing since 
December 14, 1998. If reopening of the application process is delayed 
to provide prior notice and opportunity for public comment, they will 
continue to experience economic harm with no apparent benefit. 
Accordingly, under authority set forth at 5 U.S.C. 553(b)(B), the AA 
finds good cause to waive the requirement to provide prior notice and 
the opportunity for public comment, as such procedures would be 
contrary to the public interest. Because reopening the application and 
permit issuance process relieves a restriction, under 5 U.S.C. 
553(d)(1), a 30-day delay in the effective date is not required. NMFS 
will advise the eligible vessel owners, by certified mail, of the 
reopening of the permit application process.
    Because prior notice and an opportunity for public comment are not 
required to be provided for this rule by 5 U.S.C. 553 or any other law, 
the analytical requirements of the

[[Page 48329]]

Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are inapplicable.

List of Subjects in 50 CFR Part 622

    Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping 
requirements, Virgin Islands.

    Dated: August 27, 1999.
Gary C. Matlock,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 622 is amended 
as follows:

PART 622--FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC

    1. The authority citation for part 622 continues to read as 
follows:

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

    2. In Sec. 622.18, the second sentence in paragraph (a) is 
suspended and paragraph (g) is added to read as follows:


Sec. 622.18  South Atlantic snapper-grouper limited access.

* * * * *
    (g) Revised implementation procedures. A permit issued under this 
paragraph (g) will be either an unlimited permit (a permit not subject 
to a trip limit but with significant limitations on transferability) or 
a trip-limited permit.
    (1) Applicability. (i) The procedures and limitations in this 
paragraph (g) apply to an owner of a vessel for whom the RD's initial 
determination under paragraph (d)(1) of this section was that he/she 
was eligible for an initial limited access commercial vessel permit for 
South Atlantic snapper-grouper, but who did not apply for such permit 
in a timely manner.
    (ii) The RD's initial determination of eligibility notwithstanding, 
the procedures in this paragraph (g) do not apply to an owner against 
whom a final administrative decision has been taken on a Notice of 
Violation and Assessment (NOVA) for fishing in the snapper-grouper 
fishery without a permit on or since December 14, 1998. Such owner may 
not apply for an initial limited access commercial vessel permit for 
South Atlantic snapper-grouper. (See 15 CFR 904.2 for the definition of 
``Final administrative decision'' and 15 CFR 904.104, 904.271(d), and 
904.273(i) for determinations of when final administrative decisions 
are effective.)
    (2) Notification. Not later than September 8, 1999, the RD will 
renotify, by certified mail, each owner to whom this paragraph (g) 
applies of NMFS' determination of eligibility for either an unlimited 
or a trip-limited, limited access commercial permit for South Atlantic 
snapper-grouper. An owner who was advised under paragraph (b) of this 
section of eligibility for an initial transferable permit will be 
advised of eligibility for an unlimited permit under this paragraph 
(g). All other owners will be advised of eligibility for a trip-limited 
permit under this paragraph (g). Each notification will include an 
application for such permit. Addresses for such notifications will be 
based on NMFS' permit records. A vessel owner who believes he/she 
qualifies for a limited access commercial permit for South Atlantic 
snapper-grouper under this paragraph (g) and who does not receive such 
notification must contact the RD to verify eligibility status for a 
limited access permit. The RD will either provide such a person 
notification of eligibility, including an application, or advise him/
her of the reasons for ineligibility.
    (3) Applications. (i) An owner of a vessel who receives the 
notification specified in paragraph (g)(2) of this section and who 
desires a limited access commercial permit for South Atlantic snapper-
grouper must submit an application for such permit postmarked or hand-
delivered not later than October 18, 1999 to the RD. Failure to apply 
in a timely manner will preclude permit issuance.
    (ii) An application for an unlimited permit when the RD's certified 
mail notification specifies eligibility for a trip-limited permit will 
not be considered.
    (iii) If an application that is postmarked or hand-delivered in a 
timely manner is incomplete, the RD will notify the vessel owner of the 
deficiency. If the owner fails to correct the deficiency within 20 days 
of the date of the RD's notification, the application will be 
considered abandoned.
    (4) Issuance. (i) If a complete application is submitted in a 
timely manner, the RD will issue an initial limited access commercial 
vessel permit for South Atlantic snapper-grouper. The type of permit 
issued, unlimited or trip-limited, will be as specified in the RD's 
certified mail notification specified in paragraph (g)(2) of this 
section.
    (ii) An initial unlimited permit issued under this paragraph (g)(4) 
will be valid through the end of the month 13 months after its 
issuance, as specified on the permit. A trip-limited permit issued 
under this paragraph (g)(4) will be valid through the date specified on 
the permit.
    (iii) The provisions of paragraph (g)(4)(i) of this section 
notwithstanding, the RD will not issue a permit to an owner who has 
been issued a NOVA for fishing in the snapper-grouper fishery without a 
permit on or since December 14, 1998, until such NOVA is dismissed.
    (5) Transfers of unlimited permits. (i) An unlimited permit issued 
under this paragraph (g) may not be transferred for 3 years after it is 
issued, except that an owner may request that the RD transfer the 
permit to another vessel owned by the same entity.
    (ii) After the 3-year period, an unlimited permit issued under this 
paragraph (g) will become transferable in accordance with the 
provisions of paragraph (e)(1) of this section provided at least 1,000 
lb (453.6 kg) of South Atlantic snapper-grouper were landed by the 
permitted vessel, or its replacement, in each of the three 12-month 
periods after it was initially issued.
    (iii) When the landings of a vessel with an unlimited permit, or 
its replacement, are less than 1,000 lb (453.6 kg) of South Atlantic 
snapper-grouper in one of these three 12-month periods, the permit may 
be renewed only as a trip-limited permit.
    (iv) Fishing records submitted in a timely manner in accordance 
with Sec. 622.5(a)(1)(iv) and (a)(2) will be the sole basis for 
determination of landings of South Atlantic snapper-grouper for the 
purposes of meeting the 1,000-lb (453.6-kg) landing criterion.
[FR Doc. 99-22954 Filed 9-2-99; 8:45 am]
BILLING CODE 3510-22-F