[Federal Register Volume 66, Number 225 (Wednesday, November 21, 2001)]
[Notices]
[Pages 58440-58442]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-29159]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 111201B]


Directed Economic Assistance Program; Establishment

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

ACTION: Notice of Direct Assistance Program

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SUMMARY: The Consolidated Appropriations Act of 2001 makes $3,000,000 
available to the Secretary of Commerce to provide economic assistance 
to fishermen and fishing communities affected by Federal closures and 
fishing restrictions in the Hawaii long line fishery. In furtherance of 
this directive, NOAA, NMFS, is establishing a direct economic 
assistance program (DEAP) to provide financial assistance to vessel 
owners that fished under a Hawaii longline limited access permit and 
harvested pelagic species in the Hawaii-based longline fishery between 
January 1, 1999, and November 29, 1999. This document announces the 
availability of assistance under the DEAP and the eligibility 
requirements.

DATES: Effective November 21, 2001.

ADDRESSES: Copies of the analysis used by NMFS to categorize vessels 
qualifying for the eligibility period as either ``swordfish'' or 
``tuna'' fishing vessels are available from Dr. Charles Karnella, 
Administrator, Pacific Islands Area Office, 1601 Kapiolani Blvd., Suite 
1110, Honolulu, HI 96814-4700.

FOR FURTHER INFORMATION CONTACT: Dr. Charles Karnella, Administrator, 
Pacific Islands Area Office (PIAO), NMFS, 808-973-2937.

SUPPLEMENTARY INFORMATION:

Background

    Section 208 of Appendix D of the Consolidated Appropriations Act, 
2001 (Pub. L. 106-554, enacted December 21, 2000) makes available 
$3,000,000 to the Secretary of Commerce: ``...to provide economic 
assistance to fishermen and fishing communities affected by federal 
closures and fishing restrictions in the Hawaii long line fishery....'' 
The Federal closures and fishing restrictions described began in late 
1999 when vessels registered for use under Hawaii longline limited 
access permits (Hawaii-based longline vessels) were prohibited from 
engaging in fishing in certain accustomed areas and with certain gear. 
These restrictions were the result of injunctions issued by the U.S. 
District Court for the District of Hawaii (the Court) to reduce the 
number of sea turtles injured and killed incidental to fishing 
operations. Specifically, on February 24, 1999, Turtle Island 
Restoration Network and The Center for Marine Conservation filed Center 
for Marine Conservation, et al. v. National Marine Fisheries Service, 
et al., Civil Action No. 99-00152(DAE)(CMC v. NMFS). The Court in CMC 
v. NMFS issued an order on October 18, 1999, determining that an 
injunction was warranted during the time that NMFS prepared an 
environmental impact statement (EIS). On November 23, 1999, the Court 
issued the first in a series of orders directing NMFS to impose certain 
restrictions on the fishery (Order Setting Terms of Injunction filed 
November 23, 1999, Order Amending Order Setting Terms of Injunction 
filed January 11, 2000, Amended Order Modifying Provisions of Order of 
Injunction filed June 26, 2000, Order Clarifying Order Modifying 
Provisions of Order of Injunction filed June 26, 2000, Order Further 
Amending Order Modifying Provisions of Order of Injunction filed August 
4, 2000, and Order Modifying Injunction filed March 30, 2001).
    Additionally, while preparing the EIS, using revised methods 
adopted for estimating the fishery's impacts on sea turtles, NMFS 
learned that the longline fishery had taken more olive ridley turtles 
than anticipated in a biological opinion (BO) under the Endangered 
Species Act (ESA) issued in November of 1998. Therefore, on June 7, 
2000, NMFS reinitiated consultation under section 7 of the ESA to 
reassess the fishery's impacts on all sea turtles and on March 29, 
2001, NMFS issued a new BO that superceded the BO of November 1998. In 
the 2001 BO, NMFS determined that continued operation of the Hawaii-
based longline fishery was likely to jeopardize the continued existence 
of leatherback, loggerhead, and green sea turtle populations. To avoid 
the likelihood of jeopardy, NMFS developed Reasonable and Prudent 
Alternatives (RPAs) to the management regime. The RPAs include seasonal 
closure of certain areas and a prohibition of swordfish style fishing 
(e.g., shallow longline sets, etc.) north of the equator. NMFS has 
implemented, by emergency rule at 66 FR 31561, June 12, 2001, measures 
that conform with that BO and comply with the most recent court order 
in CMC v. NMFS (March 30th Order). Background information on actions to 
implement the various orders in CMC v. NMFS is not repeated here; this 
information was published in several previous Federal Register 
documents (64 FR 72290, December 27, 1999; 65 FR 16346, March 28, 2000; 
65 FR 37917, June 19, 2000; 65 FR 51992, August 25, 2000; 65 FR 66186, 
November 3, 2000; 66 FR 1110, February 22, 2001; and 66 FR 15358, March 
19, 2001).
    The June 12, 2001, emergency rule cited above eliminated the 
swordfish portion of the Hawaii longline fishery, and further, will 
close an area from 0  deg.-15 deg. north lat., between 145 deg.-
180 deg. west long., approximately 1.9 million square miles, to the 
tuna component of the Hawaii longline fishery each April and May to 
protect sea turtles. These and previous closures have had, and will 
continue to have, adverse economic effects on the participants in the 
Hawaii-based longline fishery. For fiscal year 2001, Congress 
appropriated

[[Page 58441]]

$3,000,000 to help offset some of these negative economic effects in 
order to assist the fishermen and fishing communities.

Direct Economic Assistance Program

    NMFS is establishing a DEAP to provide financial assistance for 
owners of vessels registered for use under a Hawaii longline limited 
access permit and that operated that vessel in the fishery between 
January 1, 1999, and November 29, 1999 (inclusive). This January 1, 
1999, through November 29, 1999, designated period of eligibility 
(eligibility period) includes all days in the 1999 fishing year up to 
and including the first business Monday after the Order Setting Terms 
of Injunction was filed on November 23, 1999 (November Order), in CMC 
v. NMFS. This was the first order directing NMFS to take management 
action restricting fishing operations of Hawaii longline limited access 
vessels.
    Among other things, the November Order required that within 30 days 
of the order, NMFS shall prohibit all activities of the Hawaii longline 
fishery authorized by the Fishery Management Plan for the Pelagic 
Fisheries of the Western Pacific Region, as amended, within the area 
encompassed and bounded by the following description: North of 28 deg. 
north lat. and between 168 deg. and 150 deg. west long. Subsequent 
Court orders mandated adjustments to time, area, and gear restrictions.

Eligibility

    NMFS will provide direct financial assistance to vessel owners that 
were registered for use under a Hawaii longline limited access permit 
during the eligibility period of January 1, 1999, and November 29, 
1999, so long as those vessels harvested and submitted to NMFS logbooks 
documenting the catch of Pacific pelagic management unit species (PMUS) 
during that eligibility period. To qualify for relief under the DEAP, 
an applicant must have (1) owned a vessel registered for use under a 
Hawaii longline limited access permit during the eligibility period, 
and (2) harvested PMUS using that vessel during the eligibility period 
as documented by logbooks timely submitted to NMFS.
    For purposes of the DEAP, the definition of ``owner'' at 50 CFR 
660.12 will be applied to determine ownership during the eligibility 
period. Under this definition, ``owner'' means a person who is 
identified as the owner of the vessel (during the period of 
eligibility) as described in the Certificate of Documentation (Form CG-
1270) issued by the United States Coast Guard (USCG) for a documented 
vessel, or in a registration certificate issued by a state, a 
territory, or the USCG for an undocumented vessel. Vessel ownership 
determinations will be solely based on these official vessel 
documentation records. For purposes of the DEAP, documentation of 
ownership transfers may include the Coast Guard documentation filing 
date. Corporate or partnership or shared ownership interest 
determinations will be based solely on information in the limited 
access permit records.
    Vessel harvesting determinations for the Hawaii-based longline 
fishery during the eligibility period will be documented by and solely 
based upon existing Federal fishery records and databases. NMFS 
requires vessels to submit catch and effort logbooks (vessel logbooks) 
to document fishing activities and catch by species within 72 hours of 
each landing. The logbook database will be used by NMFS to determine 
which vessels participated in the Hawaii pelagic longline fishery 
during the eligibility period. Logbook submissions or corrections made 
after June 1, 2000, will not be accepted as a cure for missing or 
erroneous logbook submissions.
    Based on logbooks, a total of 118 vessels have been identified by 
NMFS as submitting logbooks documenting the harvest of PMUS in the 
Hawaii-based longline fishery during this period. Therefore, the owners 
of these 118 vessels are eligible for financial assistance under this 
program.

Financial Assistance

    Using the vessel logbook data base, NMFS conducted an analysis to 
categorize vessels qualifying for the eligibility period as either 
``swordfish'' or ``tuna'' fishing vessels. Vessel harvesting activity 
during the eligibility period was categorized based on gear 
configurations and catch composition. Fifteen attributes for each 
qualifying vessel were reviewed, including the number of hooks per 
float, use of light sticks, bait employed, set time, target species, 
and fish kept. A copy of the analysis is available from the PIAO 
Administrator upon request at the address provided (see ADDRESSES). 
NMFS will allocate financial assistance to owners of ``swordfish'' 
vessels at a rate of two times that of owners of ``tuna'' vessels.
    In the event ownership of a vessel qualifying for financial 
assistance changed during the eligibility period, NMFS will prorate the 
relief available per vessel and make a distribution based on the number 
of days of ownership within the eligibility period by each respective 
owner. To address any disputed ownership claims, including claims of 
dual or multiple vessel owners, NMFS will request and consider 
information from the parties disputing ownership. If, after submission 
to NMFS and review of the additional information, the parties reach 
agreement on ownership, an agreement signed by affected parties will be 
submitted to NMFS and distribution will be based on that agreement. If 
agreement cannot be reached, NMFS will make a determination as to 
vessel ownership during the eligibility period on the sole basis of 
official vessel documentation records, including, for U.S. Coast Guard 
documentation, the date of filing.
    In instances of dual or multiple ownership interests, distribution 
will be prorated based on percentage of ownership interest. 
Distributions to corporations will be to the corporation.
    On September 21, 2001, NMFS sent a letter to owners of permitted 
vessels, identified as having fished (based on logbook data) during the 
eligibility period. The letters asked for confirmation of contact and 
permit information. NMFS then attempted to contact non-responding 
owners of vessels that fished under a Hawaii longline permit during the 
eligibility period. These efforts included inquiries through local 
fishing industry associations and the announcement through this public 
notice. The initial list of eligible vessel owners will be determined 
by NMFS from the available vessel logbook and permit data, and the 
analysis using gear configuration and catch composition. NMFS will send 
a letter to vessel owners indicating NMFS' initial decision on the 
eligibility, categorization, and the anticipated level of financial 
assistance within 30 days of the effective date of this document.

Review Process

    A process for requesting review of claims for eligibility under the 
DEAP is available for up to 60 days after the effective date of this 
notice. During this review period, individuals or firms that believe 
they owned qualifying vessels active during the eligibility period, but 
that have not been contacted by NMFS for address confirmation, or 
disagree with an initial determination by NMFS, may contact the PIAO 
Administrator (see ADDRESSES) to document eligibility (e.g., ownership 
of a qualifying vessel during the eligibility period, or verification 
of a vessels' tuna or swordfish categorization). Applicants pursuing 
review must present written vessel logbook documentation that was filed 
in a timely manner in accordance

[[Page 58442]]

with NMFS regulations or USCG or state or territorial documents to 
support claims of eligibility. All relevant documentation must be sent 
via certified mail to the PIAO Administrator's address and must be 
postmarked no later than 60 days after the effective date of this 
notice.
    Upon receipt of a request for review, NMFS will complete a 
technical review of the information to determine eligibility no later 
than 90 days after the date of effectiveness of this notice. If, after 
review and consideration of the documentation provided during this 
technical review, NMFS verifies eligibility, NMFS will send a 
confirmation letter by certified mail to the owner of the vessel during 
the eligibility period, and NMFS records will be adjusted to reflect 
the eligibility determination. If, after technical review, NMFS is not 
able to verify eligibility, NMFS will refer the claim for eligibility 
for further review.
    A final determination on the eligibility claim will be made by the 
Assistant Administrator for Fisheries, based on all relevant 
information provided by the applicant and the determination by the PIAO 
Administrator, no later than 140 days after the effective date of this 
Notice, and a determination letter will be sent by certified mail to 
the individual seeking review. The Assistant Administrator's 
determination is the final agency decision, and will be incorporated in 
NMFS records.

Other Requirements for Financial Assistance

    An owner of an eligible vessel must be certified by NMFS, prior to 
distribution of any Federal funds, to ensure that the recipient does 
not have a delinquent Federal debt. If any Federal debt is identified, 
proof of payment must be made before funds will be disbursed. If an 
eligible owner has been found culpable of a violation of Federal 
natural resource laws, and has outstanding fines or penalties due and 
owing, proof of payment must be made before funds will be disbursed.
    NMFS has determined that funds, if any, remaining after direct 
distribution to eligible vessels, less administrative cost, may be used 
by NMFS to fund protected species work shops and gear reconfiguration 
workshops for the Hawaii-based longline fishery. NMFS has determined 
that educational workshops will also ameliorate the economic impacts of 
Federal regulatory actions on the fishery. Further notification of 
these programs, if any, will be published in a separate announcement.

DEAP Implementation Plan

    To assist fishermen and administer the DEAP in a rational and 
equitable manner, NMFS is basing eligibility for financial assistance 
on (1) ownership of a vessel, and (2) use of that vessel to harvest 
PMUS, during a designated eligibility period. Designation of the 
eligibility period, keyed to the dates described below, facilitates 
identification of qualifying vessels and owners. The start of the 
eligibility period, January 1, 1999, is the beginning of the fishing 
year in the calendar year that unanticipated litigation-driven, 
restrictive management adjustments were first implemented. The 
eligibility period ends November 29, 1999, the first business Monday 
after the November Order.
    Following the November Order, the Hawaii-based longline fishery 
could be reasonably expected to anticipate restrictions on fishing 
activity. This eligibility period directs financial assistance to 
owners of vessels engaged in harvesting activity under a Hawaii 
longline limited access permit in the months immediately preceding the 
November Order. NMFS has concluded that this period of eligibility best 
defines a category of owners with demonstrated investment in 
participation in the fishery. Gearing up for and participating in the 
1999 fishing year, prior to awareness of the restrictions imposed by 
the November Order, is a sign of commitment of resources. These fishery 
participants experienced unanticipated and serious business impairment 
and disruption as a result of the November Order and subsequent 
restrictive management actions. NMFS recognizes that operational and 
business decisions of owners with vessels active outside the 
eligibility period may have been affected by the litigation-driven 
management actions, and has determined that the financial assistance 
under this program is best focused on owners making business decisions 
and actively participating in the fishery in the 1999 fishing year 
through November 29, 1999.
    NMFS has concluded that restrictions imposed on the fishery have 
had larger operationl impacts on vessels targeting swordfish than on 
vessels targeting tunas. Further, swordfish vessels are anticipated to 
incur additional costs of $12,000 - $15,000 for outfitting for 
conversion to deep-set fishing activity. In response, NMFS is 
apportioning the assistance among eligible vessels to reflect this 
difference, and will allocate financial assistance to swordfish vessels 
at a rate of two times that of tuna vessels. To facilitate appropriate 
compensation and implement the apportionment, NMFS is categorizing 
vessels, based on submitted vessel logbooks, as ``tuna'' or 
``swordfish'' vessels.
    Vessel ownership and activity determinations will be based upon 
vessel logbook information, permit information, or official Coast 
Guard, state, or territorial documentation.

Not Eligible for DEAP

    Holding, by ownership or otherwise, of a Hawaii longline limited 
access permit, in and of itself, is not sufficient to qualify for 
financial assistance under the DEAP. Similarly, holding by ownership or 
otherwise, of a longline general permit, or longline general permit for 
a vessel registered under a Hawaii longline limited access permit used 
solely for transhipment of Pacific pelagic management unit species that 
were harvested with longline gear, in and of itself, is not sufficient 
to qualify for financial assistance under the DEAP.

Classification

Executive Order 12866

    This notice has been determined to be ``not significant'' for 
purposes of Executive Order 12866, ``Regulatory Planning and Review.''

Administrative Procedure Act and Regulatory Flexibility Act

    Because notice and comment are not required under 5 U.S.C. 553, or 
any other law, for this notice relating to public property, loans, 
grants benefits or contracts (5 U.S.C. 553(a)), a regulatory 
flexibility analysis is not required and has not been prepared for this 
notice.

Executive Order 13132 (Federalism)

    It has been determined that this notice does not contain policies 
with Federalism implications as that term is defined in Executive Order 
13132.

Catalog of Federal Domestic Assistance

    This is a new program and will be added to the Catalog of Federal 
Domestic Assistance # 11.452, Unallied Industry Projects.

    Authority: Pub. L. 106-554.

    Dated: November 15, 2001.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
[FR Doc. 01-29159 Filed 11-20-01; 8:45 am]
BILLING CODE 3510-22-S