[Federal Register Volume 59, Number 250 (Friday, December 30, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-32157]
[[Page Unknown]]
[Federal Register: December 30, 1994]
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DEPARTMENT OF COMMERCE
50 CFR Part 663
[Docket No. 941262-4362; I.D. 121294B]
Pacific Coast Groundfish Fishery; Emergency Rule To Provide for
Interim ``A'' Limited Entry Permits
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: NOAA issues this emergency interim rule to amend the
implementing regulations for the Pacific Coast Groundfish Fishery
Management Plan (FMP) to relax the qualifying criteria for issuance of
``A'' limited entry fishing permits endorsed with the size of larger
replacement vessels. This action is necessary to rectify immediately
what NOAA has determined to be an inequity in the treatment, under the
current regulations, of certain vessel owners with replacement vessels
more than 5 ft (1.52 m) longer than the qualifying vessel that was
replaced. The intended effect of this rule is to provide for
participation in the Pacific Coast groundfish fishery by larger
replacement vessels acquired prior to September 30, 1990 (and provided
the vessel replaced was disposed of by that date), but whose owners
were denied permits with an endorsed size for the larger vessel.
DATES: Effective December 23, 1994, until March 30, 1995. Comments will
be accepted through January 30, 1995.
ADDRESSES: Submit comments to William Stelle, Jr., Director, Northwest
Region, National Marine Fisheries Service, 7600 Sand Point Way NE, BIN-
C15700, Seattle, WA 98115-0070; or Hilda Diaz-Soltero, Director
Southwest Region, National Marine Fisheries Service, 501 West Ocean
Blvd., Suite 4200, Long Beach, CA 90802-4213. Documentation supporting
this emergency action is available at the Northwest Regional Office,
NMFS, at the address above.
FOR FURTHER INFORMATION CONTACT: William L. Robinson at (206) 526-6140;
or Rodney McInnis at (310) 980-4030. For further information on
application procedures, phone (206) 526-4353.
SUPPLEMENTARY INFORMATION: NOAA issues this emergency rule under the
authority of section 305(c)(1) of the Magnuson Fishery Conservation and
Management Act. An emergency rule that changes a fishery management
plan is treated as an amendment to such plan for the period in which
such regulation is in effect.
The Pacific Fishery Management Council (Council) prepared, and the
Secretary of Commerce approved and implemented, an amendment (Amendment
6) to the FMP, which established a limited entry program for the
Pacific Coast groundfish fishery off the coasts of Washington, Oregon,
and California. Described simply, Amendment 6 and its implementing
regulations base initial issuance of limited entry permits upon: (1)
Actual participation in the fishery during the ``window period'' of
July 11, 1984, to August 1, 1988, as evidenced by requisite landings of
groundfish; or (2) other evidence of an intent to participate in the
fishery prior to August 1, 1988, followed by actual participation in
the fishery. Owners of vessels that made the requisite groundfish
landings during the window period are eligible to receive an ``A''
endorsement, which entitles the owner to fish with the same vessel,
transfer the permit to another vessel no larger than 5 ft (1.52 m)
longer than the qualifying vessel, or sell the permit. ``A'' endorsed
permits do not expire, so long as the owner renews them annually; that
is, there is no need to actually use the vessel in the fishery to
maintain eligibility for the program.
Owners of vessels that did not make the requisite groundfish
landings during the window period, but can show evidence that they were
preparing to enter the fishery, are eligible to receive a ``provisional
A'' endorsement, which allows them to participate in the fishery for up
to a 3-year period. The ``provisional A'' category is intended to cover
persons who, prior to the close of the window period, began to
construct a new vessel or convert an old vessel (or contracted for such
construction/conversion), but did not make the requisite landings of
groundfish during the window period. This category requires that the
vessel actually participate in the groundfish fishery after its
construction or its conversion is complete. A ``provisional A''
endorsement requires that the owner land a minimum amount of groundfish
during each 365-day period commencing with the first landing of any
species of fish subsequent to the vessel having been constructed or
converted. If the requisite 3 years of landings are completed, the
owner is eligible to convert a ``provisional A'' endorsement into an
``A'' endorsement. If the requisite 3 years of landings are not
completed, when scheduled, the ``provisional A'' endorsed permit
expires.
The FMP amendment that describes the limited entry program was
adopted by the Council in September 1991, and submitted to the
Secretary for approval in 1992. A notice of availability and a proposed
rule for Amendment 6 were published for public comment in the Federal
Register on June 10, 1992 (57 FR 24589), and July 22, 1992 (57 FR
32499) respectively. The Secretary approved Amendment 6 on September 4,
1992. Final regulations responding to public comment were published on
November 16, 1992 (57 FR 54001).
During the development of Amendment 6, NOAA published two notices
in the Federal Register informing the public of the Council's progress
in developing the program so that fishing vessel owners could make
business decisions with some idea of what to expect the limited entry
program would require, regarding requirements to qualify for a limited
entry permit.
In a ``control date'' notice of August 4, 1988 (53 FR 29337), the
Council announced that only current owners of vessels used to catch
fish in the fishery during the period commencing on July 11, 1984, and
ending on August 1, 1988, were likely to be eligible for initial
permits under the forthcoming Amendment 6.
A subsequent notice published August 28, 1990 (55 FR 35163), set
forth the Council's intent to impose a September 30, 1990, cutoff date
for the completion of newly constructed or converted vessels, and that
the Council would attempt to limit fishing vessel harvesting capacity
by endorsing limited entry permits with the ``length overall'' of the
qualifying vessel. This notice also announced that replacement vessels
more than 5 ft (1.52 m) greater in overall length than qualifying
vessels that they replaced may be given a permit endorsed for the size
of the smaller qualifying vessel if replacement occurred after
September 30, 1990, while replacement vessels in place prior to
September 30, 1990, may be given a permit endorsed for the size of the
larger replacement vessel. ``In place'' means that a new vessel had
been acquired and the old vessel had been disposed of.
In Amendment 6 and its implementing regulations, the eligibility
requirements for a replacement vessel more than 5 ft (1.52 m) longer
than the replaced vessel were significantly different from the
requirements indicated in the August 28, 1990, notice. Under the final
regulations, a replacement vessel more than 5 ft (1.52 m) longer than
the qualifying vessel it replaces is eligible for a ``provisional A''
permit endorsed for the length of the longer vessel, but such a
``provisional A'' permit can be converted to a permanent ``A''
endorsement only if the vessel made Pacific groundfish landings in
three successive 365-day periods after replacement.
Amendment 6 provides sufficient rationale as to why a new entrant--
that is, a vessel under contract for construction or conversion during
the 1984 to 1988 window period--should have to meet a subsequent
landing requirement to convert a ``provisional A'' endorsement to an
``A'' endorsement. Absent this requirement, any fishing vessel under
contract for construction in any U.S. shipyard prior to August 1, 1988,
would have been eligible for a limited entry permit, regardless of the
actual intent of the owners to participate in the Pacific groundfish
fishery. The landings requirement was thus a useful surrogate for
confirming the owners' actual intent to operate in the fishery.
With respect to replacement vessels, however, the new landings
requirement served to disqualify persons who were clearly committed to
the Pacific Coast groundfish fishery through their prior participation,
but had the misfortune of not knowing in advance that they would be
subjected to a 3-year landing requirement for their new vessel.
It is reasonable to assume that some owners of qualifying vessels
replaced those vessels prior to September 30, 1990, with larger vessels
based on the expectation that they would be issued a limited entry
permit endorsed with the size of the replacement vessel. A decision to
grant these individuals an ``A'' permit endorsed with the size of the
larger replacement vessel is consistent with the objectives of the FMP
to ``accommodate historical participation'' and is consistent with the
information on probable qualifying criteria available to the public
prior to September 30, 1990. Therefore, NOAA has determined that those
fishing vessel owners who replaced a qualifying vessel prior to
September 30, 1990, with a larger vessel and who were denied ``A''
permits endorsed with the size of the larger replacement vessel were
treated unfairly and should be issued ``A'' permits endorsed with the
size of the larger replacement vessel.
Some individuals denied limited entry permits for larger
replacement vessels in place prior to September 30, 1990, may have
already purchased additional permits and combined them with a permit
endorsed with the size of a smaller replaced vessel in order to obtain
a permit endorsed with the size of the larger replacement vessel or may
have sold the permit issued for the smaller vessel. NOAA intends to
allow vessel owners in this circumstance to be granted a permit
endorsed for a length overall which, if combined with a permit endorsed
for the length overall of the replaced vessel, would result in a permit
endorsed for the length overall of the replacement vessel. This will be
determined based on the harvesting capacity ratings listed in 50 CFR
663.33(g).
For the reasons described above, NOAA has determined it is
necessary to provide immediately, by emergency regulation, for the
issuance of ``A'' permits to the owners of larger replacement vessels
in place prior to September 30, 1990. NOAA has determined that
immediate issuance is necessary to provide the opportunity to those
vessel owners to apply for and receive ``A'' permits and participate in
the Pacific groundfish fishery. Vessel owners in this circumstance have
demonstrated substantial participation in the Pacific Coast groundfish
fishery in the past and their continued participation is consistent
with the FMP. In the absence of an emergency regulation, vessel owners
would be prohibited from using their larger replacement vessels in the
groundfish fishery unless they purchase sufficient additional permits.
Under this rule, owners who were denied ``A'' permits for larger
replacement vessels, which were in place prior to September 30, 1990,
will have 45 days from the date this rule is published in the Federal
Register to apply for a permit with an ``A'' endorsement. If qualified
under the limited entry regulations, as amended by this rule,
applicants will be issued an ``A'' endorsement for the size of the
larger replacement vessel. Applicants denied an ``A'' permit under this
rule may appeal to the Director, Northwest Region, NMFS (Regional
Director), under Sec. 663.42 of the Pacific Coast groundfish
regulations, except that the opportunity to have the appeal heard by
the Council's Permit Review Board under Sec. 663.42(e) will not be
available, due to the short length of time this emergency rule will be
in effect.
In addition, any vessel owner wishing to submit a new application
for an ``A'' permit under the provisions of this rule must apply to the
Fishery Permits Office of the Northwest Region (see ADDRESSES).
Classification
NMFS has determined that this rule is necessary to respond to an
emergency situation and is consistent with the Magnuson Act and other
applicable law.
The Assistant Administrator for Fisheries, NOAA, also finds for
good cause that the reasons justifying implementation of this rule on
an emergency basis also make it impracticable and contrary to the
public interest to provide prior notice and opportunity for public
comment under section 553(b) of the Administrative Procedure Act. It is
unnecessary to delay for 30 days the effective date of these emergency
regulations, under section 553(d) of the Administrative Procedure Act
because this rule relieves a restriction.
This emergency rule has been determined to be not significant for
purposes of E.O. 12866.
No environmental assessment was prepared under the provisions of
the National Environmental Policy Act because this rule makes a minor
change and is within the scope of the Supplemental Environmental Impact
Statement prepared for the limited entry plan (Amendment 6 to the FMP).
This emergency interim rule is in compliance with the Paperwork
Reduction Act. This rule, by broadening eligibility criteria for ``A''
permits, may slightly increase the information collection burden of the
existing limited entry permit program. The emergency rule does not
alter the types of information required in a limited entry permit
application, as approved by the Office of Management and Budget, OMB
Control Number 0648-0203.
List of Subjects in 50 CFR Part 663
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: December 23, 1994.
Charles Karnella,
Acting Program Management Officer, National Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 663 is amended
as follows:
PART 663--PACIFIC COAST GROUNDFISH FISHERY
1. The authority citation for part 663 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. A new Sec. 663.45 is added to read as follows:
Sec. 663.45 ``A'' permits for replacement vessels.
(a) Notwithstanding any other provision of this part, the owner of
a replacement vessel who meets the criteria of Sec. 663.35(a)(4) may be
issued a permit with an ``A'' endorsement for the size of the
replacement vessel. This permit will replace any permit previously
issued for the size of the replaced vessel.
(b) The ``A'' endorsement will be issued only for the gear(s) for
which the replaced vessel would have qualified for an ``A''
endorsement.
(c) A request for the ``A'' permit authorized by this section must
be submitted to FMD by February 13, 1995. The request must include the
name and official number of the replaced vessel and the replacement
vessel, and the NMFS groundfish limited entry application file number
for either the replaced vessel or the replacement vessel. In the case
of a vessel that would qualify under this section, for which no
application has been submitted previously, a new application must be
submitted. Application forms may be obtained from the FMD.
(d) In the case of a vessel owner that qualifies for a new ``A''
permit under this section, who has already transferred his or her
smaller permit, or purchased additional permits to combine with the
original permit, the FMD has authority to grant a permit endorsed for a
length overall which, if combined with a permit endorsed for the length
overall of the replaced vessel, would result in a permit endorsed for
the length overall of the replacement vessel. This will be determined
based on the harvesting capacity ratings listed in Sec. 663.33(g).
(e) The denial of an ``A'' permit under this section may be
appealed to the Regional Director under Sec. 663.42, except that
Sec. 663.42(e) does not apply to decisions on permits under this
section.
[FR Doc. 94-32157 Filed 12-23-94; 3:57 pm]
BILLING CODE 3510-22-W
