[Federal Register Volume 59, Number 106 (Friday, June 3, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-13469]
[[Page Unknown]]
[Federal Register: June 3, 1994]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 671, 672, 675, and 676
[Docket No. 940556-4156; I.D. 050494B]
RIN 0648-AE62
Limited Access Management of Federal Fisheries In and Off of
Alaska
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: This proposed rule would implement a moratorium for a
temporary period on the entry of new vessels into the groundfish, crab,
and halibut fisheries contained in proposed Amendment 23 to the Fishery
Management Plan (FMP) for the Groundfish Fishery of the Bering Sea and
Aleutian Islands Management Area (BSAI), proposed Amendment 28 to the
FMP for Groundfish of the Gulf of Alaska (GOA), proposed Amendment 4 to
the FMP for the Commercial King and Tanner Crab Fisheries in the Bering
Sea and Aleutian Islands Area, and a proposed regulatory amendment
affecting the Pacific halibut fishery in the waters in and off of
Alaska. The moratorium is designed as a temporary measure that is
necessary to curtail increases in fishing capacity and provide industry
stability while the North Pacific Fishery Management Council (Council)
and the Secretary of Commerce (Secretary) prepare, review, and, if
approved, implement a comprehensive management plan for these
fisheries. This action is intended to promote the objectives of the
Council to promote conservation and management of groundfish, crab, and
halibut resources, and to further the objectives of the Northern
Pacific Halibut Act of 1982 (Halibut Act) and the Magnuson Fishery
Conservation and Management Act (Magnuson Act).
DATES: Comments must be received at the following address by July 15,
1994.
ADDRESSES: Comments must be sent to Ronald J. Berg, Chief, Fisheries
Management Division, Alaska Region, NMFS, 709 West 9th Street, Juneau,
AK 99801, or P.O. Box 21668, Juneau, AK 99802, Attention: Lori J.
Gravel. Copies of proposed Amendments 23 and 28 to the BSAI and GOA
groundfish FMPs, Amendment 4 to the Bering Sea and Aleutian Islands
Area king and Tanner crab FMP, and the Environmental Assessment/
Regulatory Impact Review/Initial Regulatory Flexibility Analysis (EA/
RIR/IRFA) for the moratorium may be obtained from the North Pacific
Fishery Management Council, P.O. Box 103136, Anchorage, AK 99510.
FOR FURTHER INFORMATION CONTACT: David C. Ham, Fishery Management
Biologist, Alaska Region, NMFS at 907-586-7228.
SUPPLEMENTARY INFORMATION:
Background
Domestic groundfish fisheries in the exclusive economic zone (EEZ)
of the GOA and the BSAI are managed by the Secretary under the GOA and
BSAI FMPs. The commercial harvest of king and Tanner crabs is managed
under the FMP for the Commercial King and Tanner Crab Fisheries in the
Bering Sea and Aleutian Islands Area. These FMPs were prepared by the
Council under the Magnuson Act. The FMP for the GOA groundfish
fisheries is implemented by regulations at 50 CFR parts 672 and 676,
and the FMP for the BSAI groundfish fisheries is implemented by
regulations at 50 CFR parts 675 and 676. The FMP for the king and
Tanner crab fisheries in the BSAI is implemented by regulations at 50
CFR part 671 and by Alaska Administrative Code regulations at title 5,
chapters 34 and 35. For crab, BSAI means the Bering Sea and Aleutian
Islands area as defined at Sec. 671.2, and is a slightly different area
than the BSAI management area as defined for groundfish at Sec. 675.2.
General regulations that also pertain to the U.S. groundfish and crab
fisheries are set out at 50 CFR part 620.
The Council does not have a FMP for halibut. The domestic fishery
for halibut in and off of Alaska is managed by the International
Pacific Halibut Commission (IPHC) as provided by the Convention between
the United States and Canada for the Preservation of the Halibut
Fishery of the Northern Pacific Ocean and the Bering Sea (Convention),
signed at Washington, DC, March 29, 1979, and the Halibut Act. The
Convention and the Halibut Act authorize the respective Regional
Fishery Management Councils established by the Magnuson Act to develop
regulations that are in addition to, but not in conflict with,
regulations adopted by the IPHC affecting the U.S. halibut fishery.
Under this authority, the Council may develop for approval by the
Secretary limited access policies for the Pacific halibut fishery in
Convention waters in and off of Alaska. ``Convention waters'' means the
maritime areas off the west coast of the United States and Canada as
described in Article I of the Convention (see 16 U.S.C. 773(d)). The
Council acted under this authority in recommending its proposed
moratorium for the halibut fishery. Regulations governing the
harvesting of Pacific halibut are set out at 50 CFR parts 301 and 676.
In 1987, amid growing indications of excess harvesting capacity in
the North Pacific groundfish fisheries, the Council adopted a
``statement of commitment'' to pursue alternative management measures
that would achieve optimum yield through more rational fishing effort
than exists with the current open access system. The Council identified
ways to fulfill this commitment that included the development of an
alternative management strategy for groundfish fisheries and the
consideration of effort management in the crab and halibut fisheries.
Fishery management planning work continued in 1987 with the
formation of the Future of Groundfish (FOG) Committee. The FOG
Committee undertook a comprehensive examination of the groundfish,
crab, and halibut fisheries off of Alaska. It concluded that problems
of excess harvesting capacity and allocation conflicts would worsen
under a continued open access system. The committee recommended a
limited access management approach for these three fisheries.
In 1989 and 1990, the Council considered methods for implementing a
moratorium that would limit access of new vessels into the groundfish,
crab, and halibut fisheries. At its meeting in August 1990, the Council
recommended that NMFS publish a notice in the Federal Register to: a.
Inform the public of the Council's intention to develop measures to
limit access; and b. announce a control date after which owners of
vessels that had not previously participated would not be assured
future access to these fisheries if a limited access system were
implemented using that control date. The control date notice was
published on September 5, 1990 (55 FR 36302), corrected on September
13, 1990 (55 FR 37729), and announced September 15, 1990, as the
control date.
The control date notice stated that ``due consideration'' would be
given to vessels that were under construction or under contract for
purchase or construction and that had harvested or processed
groundfish, crab, or halibut by January 15, 1992. In response to the
delay of the 1992 trawl groundfish season from January 1, 1992, until
January 20, 1992, the Council decided at its September 1991 meeting to
change the final ``due consideration'' date to February 9, 1992.
The control date notice indicated that the Council was examining a
change in the current open-access nature of the groundfish, crab, and
halibut fisheries as part of a long-term solution to chronic
conservation and management problems. The Council is continuing its
study of long-term solutions to problems in these fisheries in its
comprehensive management plan.
The moratorium is not expected to resolve the problem of excess
capacity. However, the Council considers it necessary as an interim
management measure to curtail increases in fishing capacity and provide
temporary industry stability. While the moratorium is in effect, the
Council can prepare and the Secretary can review and, if approved,
implement a comprehensive management plan. The Council also determined
that the moratorium would aid in the achievement of optimum yield by
freezing the number of vessels allowed to participate in these
fisheries and limiting increases in fishing capacity, both of which
would increase economic benefits to fishermen and reduce the risk of
overfishing.
Vessel Moratorium Program
The following section provides a summary of the provisions included
in the motion, clarifications, and the Council's rationale for
selecting those provisions. The subsequent section, ``Implementation of
the Moratorium,'' explains how the moratorium would be implemented if
approved by the Secretary and includes changes proposed by NMFS to
supplement the Council's proposed moratorium. The Council adopted a
moratorium by approving a motion at its June 1992 meeting, with
clarification in August 1992 and January 1993.
Section 304(a)(1)(D) of the Magnuson Act, as amended, requires the
Secretary to publish regulations proposed by a Council within 15 days
of receipt of the FMP amendments and regulations. At this time, the
Secretary has not determined that the FMP amendments these regulations
would implement are consistent with the national standards, other
provisions of the Magnuson Act, and other applicable law. The
Secretary, in making final determinations, will take into account the
data, views, and comments received during the comment period.
Provisions Contained in the Council's Motions
1. Moratorium Fisheries
The proposed moratorium fisheries would be: a. All groundfish
fisheries managed under the GOA FMP; b. all groundfish fisheries
managed under the BSAI FMP; c. all crab fisheries managed under the FMP
for the Commercial King and Tanner Crab Fisheries in the BSAI; and d.
the commercial Pacific halibut fishery conducted in the waters in and
off of the State of Alaska (State).
2. Affected Sectors of the Industry
The moratorium would apply only to catcher vessels and catcher-
processor vessels participating in one or more of the moratorium
fisheries. The Council designed the moratorium to stem the growth in
harvesting capacity. It determined that restricting motherships,
tendering vessels, and other support vessels would not accomplish this
goal.
3. Qualifying Period
A vessel could be used to participate in any of the moratorium
fisheries during the moratorium, if a reported landing in one of the
moratorium fisheries was made from that vessel between January 1, 1980,
and February 9, 1992. Such a vessel would be called a ``qualifying
vessel.''
The Council determined that a date earlier than January 1, 1980,
would have increased the size of the fleet eligible to participate
during the moratorium period and placed a greater weight on past
participation. A date later than January 1, 1980, would have restricted
the size of the fleet eligible to participate during the moratorium
period only to current or very recent participants.
The Council selected February 9, 1992, as the ending date for the
qualifying period instead of the announced control date of September
15, 1990, with its ``due consideration'' requirements. Determining
which vessels should be allowed to participate during the moratorium
under ``due consideration'' would have required extensive review of
documents submitted by the vessel owners and investigation as to
whether the documents proved that vessels were qualifying vessels under
the ``due consideration'' criteria. The Council deemed the submission
and review of documents as too burdensome and expensive to implement.
By selecting February 9, 1992, the Council included all vessels that
were under ``due consideration'' without having to make any findings
concerning construction or vessels under contract.
The qualifying period adopted by the Council would allow
approximately 13,500 vessels to be eligible to participate in the
moratorium fisheries during the moratorium. Substantially fewer vessels
participate in any one year. In 1991, only about 4,500 vessels
participated in the moratorium fisheries. NMFS particularly requests
public comment on the effect of this qualifying period on the
objectives of the moratorium.
4. Minimum Qualifying Poundage
The Council did not require landing of a specific minimum poundage
from a moratorium fishery. A qualifying vessel would be one that made a
reported landing from a moratorium fishery during the qualifying
period. The Council reasoned that basing moratorium eligibility on
landing a minimum amount from a moratorium fishery would become
allocative among different segments of the industry and should be
addressed in the comprehensive management plan.
5. Duration of Moratorium
The moratorium would be in effect for no longer than 3 years from
the date of implementation. The proposed FMP amendment language states
that the Council may extend the moratorium for up to 2 years if a
permanent limited access program is imminent. This provides flexibility
in the duration of the moratorium if progress is made on a permanent
limited access program, but does not unnecessarily prolong the
moratorium in the absence of further progress on the underlying
overcapitalization problem. If no further action is taken concerning a
limited access program during the moratorium, the moratorium would
expire, because its justification would no longer be valid.
6. Crossovers
The Council determined that a qualifying vessel would be allowed to
participate in all moratorium fisheries during the moratorium, even if
the vessel had a reported landing from only one moratorium fishery. The
Council reasoned that restrictions on the ability to crossover into
other moratorium fisheries would constrain a fisherman's flexibility
during the moratorium and would be allocative among different sectors
of the industry. The Council determined that crossover restrictions
would be addressed under the comprehensive management plan.
Crossovers during the moratorium could result in the entry of
groundfish and halibut vessels into the crab fisheries, halibut vessels
into the groundfish fisheries, and crab pot vessels into the groundfish
fisheries. NMFS particularly requests public comment on crossovers,
because crossover ability could have the potential to increase the
harvesting capacity in the groundfish and crab fisheries, thwarting the
goals of the moratorium.
7. Transfer of Moratorium Qualification
``Moratorium qualification'' is proposed for all qualifying
vessels. Moratorium qualification could be transferred if two
requirements were satisfied. First, the vessel transferring moratorium
qualification would no longer be eligible to participate in any of the
moratorium fisheries for the remainder of the moratorium unless that
vessel subsequently received transferred moratorium qualification from
another vessel. Second, if moratorium qualification were transferred to
another vessel, a vessel length restriction would apply to the
receiving vessel. The latter restriction, known as the ``20 percent
rule'', would restrict vessels that are equal to, or less than, 125 ft
(38.1 m) length overall (LOA) from increasing LOA by more than 20
percent, or 125 ft (38.1 m), whichever is less. Vessels over 125 ft
(38.1 m) LOA would not be allowed to increase LOA during the
moratorium. The LOA of a vessel, as defined at Secs. 672.2 and 675.2,
means the horizontal distance, rounded to the nearest foot (.33 m)
between the foremost part of the stem and the aftermost part of the
stern, excluding bowsprits, rudders, outboard motor brackets, and
similar fittings or attachments. For example, the owner of a vessel
that is 100 ft (30.5 m) LOA could transfer that vessel's moratorium
qualification to a vessel that is 120 ft (36.6 m) LOA or less. The 100-
ft (30.5 m) LOA vessel would not be able to participate in any of the
moratorium fisheries for the duration of the moratorium because it does
not have moratorium qualification. The 100-ft (30.5 m) vessel would be
able to participate if it received transferred moratorium qualification
from a vessel that was 83 ft (25.3 m) LOA or longer.
The Council did not select a date before which the transfer of
moratorium qualification would not be allowed. Recognizing that a
market in moratorium qualification had developed, the Council
determined that moratorium qualification would rest with the qualifying
vessel unless otherwise specified by legal agreement. The Council also
determined that the transfer of moratorium qualification would not
result in a transfer of the vessel's catch history.
8. Replacement of Vessel
Until the moratorium expires, the owner of a vessel with moratorium
qualification would be able to replace that vessel with a vessel that
does not have moratorium qualification as long as two requirements were
satisfied. First, the replaced vessel would no longer be eligible to
participate in any of the moratorium fisheries for the remainder of the
moratorium, unless that vessel subsequently received transferred
moratorium qualification from another vessel. Second, any increase in
LOA through vessel replacement, sequential vessel replacements, or
combined replacement and reconstruction would be limited by the 20
percent rule. The Council deemed the vessel replacement provision as
necessary to facilitate the normal and on-going vessel replacement
activities undertaken by vessel owners in response to financial,
economic, and efficiency incentives.
9. Reconstruction of Vessel
A qualifying vessel that is reconstructed would have to comply with
certain restrictions in LOA to remain eligible to participate in any of
the moratorium fisheries. The proposed restrictions are: a. If vessel
reconstruction were completed before June 24, 1992, any increase in LOA
resulting from that reconstruction would be unrestricted; additional
reconstruction would be allowed after June 24, 1992, subject to the 20
percent rule. b. If reconstruction were started before June 24, 1992,
but not completed by that date, any increase in LOA resulting from that
reconstruction would be unrestricted, but no more increases in LOA
would be allowed during the moratorium. c. If reconstruction were
started on or after June 24, 1992, any increase in LOA resulting from
that reconstruction would be subject to the 20 percent rule.
The Council determined that it was important to allow increases in
vessel LOA through reconstruction to provide for enhanced safety and
stability, or to allow for the installation of processing equipment.
However, the Council determined that reconstruction should not allow
unlimited increases in LOA or the objectives of the moratorium would be
compromised. The Council chose to limit LOA as a measure of fishing
capacity, because it believed LOA was unambiguous, easily determined,
and difficult to circumvent. To account equitably for actions already
taken by vessel owners, restrictions on increases in LOA would be
applicable only to changes that occurred after June 24, 1992, which was
the day the Council adopted the 20 percent rule and the public became
aware of this Council action through the June 24th Council meeting.
10. Replacement of Lost or Destroyed Vessel
Any qualifying vessel that is lost or destroyed during the
moratorium could be replaced by a non-qualifying vessel. Any qualifying
vessel that was lost or destroyed on or after January 1, 1989, until
the date of moratorium implementation could be replaced with a non-
qualifying vessel. However, the replacement vessel would be required to
make a landing from a moratorium fishery within 2 years of the
moratorium implementation date. A qualifying vessel lost or destroyed
before January 1, 1989, could not be replaced. A vessel that replaced a
lost or destroyed vessel would be subject to the 20 percent rule, and
the replaced vessel would become a non-qualifying vessel unless that
vessel subsequently received transferred moratorium qualification.
The Council included this provision to make allowance for a vessel
lost or destroyed before and during the moratorium. The January 1,
1989, date was selected because the Council determined that an owner of
a vessel lost or destroyed prior to 1989 is likely to have received
insurance claims, and already obtained a replacement vessel.
11. Salvage of Lost or Destroyed Vessel
A qualifying vessel that was lost or destroyed on or after January
1, 1989, may be salvaged and remain a qualifying vessel. The Council
chose this date because the owner of a vessel lost or destroyed prior
to 1989 is likely to have received insurance claims, and already have
obtained a replacement vessel.
However, the Council created an exception for a qualifying vessel
that was lost or destroyed before January 1, 1989. It could be salvaged
and remain moratorium eligible if: a. The salvage operations began by
June 24, 1992; and b. the salvaged vessel makes a landing from a
moratorium fishery within 2 years of the date of implementation of the
moratorium.
The provision to allow the salvage of a vessel before January 1,
1989, was added at the Council's August 1992 meeting based on public
testimony received at that meeting. The Council chose June 24, 1992,
because that was the date the Council approved the motion on the
moratorium. The Council required such a salvaged vessel to make a
landing within 2 years of the moratorium implementation date to ensure
that the vessel was participating in a moratorium fishery.
12. Exemptions to the Moratorium
The Council included three exemptions to the moratorium. First, a
vessel that participates in moratorium fisheries in the GOA that does
not exceed 26 ft (7.9 m) LOA, and a vessel that participates in
moratorium fisheries in the BSAI that does not exceed 32 ft (9.8 m) LOA
would be exempt, providing such vessel lengths are not increased beyond
these LOA limits. The Council provided these exemptions because,
according to the EA/RIR/IRFA, vessels less than 36 ft (11 m) LOA in the
BSAI and GOA were responsible for less than 1 percent of the moratorium
fisheries landings and comprised approximately 65 percent of the fleet
of qualified vessels in 1991. Eliminating the smaller vessels from the
moratorium would lessen the burden on small vessel owners, while not
compromising the goals of the moratorium. The limit was set at 26 ft
(7.9 m) LOA or less in the GOA because vessels of this size represent
the typical skiff fleet. In the BSAI, 32 ft (9.8 m) LOA represents the
historical length restriction imposed on vessels participating in the
Bristol Bay drift gillnet salmon fishery.
Second, a newly constructed vessel that was constructed pursuant to
an approved Community Development Plan (CDP) under provisions of 50 CFR
parts 675 and 676 would be exempted if: a. It were constructed solely
for the purpose of furthering the goals of a CDP; b. it were a
specialized vessel designed and equipped to meet the needs of a
community or group of communities that have specific and unique
operating requirements; and c. it were 125 ft (38.1 m) LOA or less.
Such a vessel could participate in Community Development Quota (CDQ)
and non-CDQ fisheries during the moratorium subject to other regulatory
provisions. Such a vessel would lose its exempt status and would be
restricted from participating in any of the moratorium fisheries, if it
were transferred to a non-CDQ entity during the moratorium, unless the
vessel subsequently received transferred moratorium qualification.
Third, a halibut or sablefish fixed gear vessel operating under the
provisions of the Individual Fishery Quota (IFQ) program would be
exempted from the vessel moratorium, as it affects directed halibut and
sablefish operations. The Secretary approved the IFQ program for the
halibut and sablefish fixed gear fishery on January 29, 1993 (58 FR
59375, November 9, 1993). A non-qualifying vessel that is harvesting
IFQ halibut or sablefish would not be able to participate in any other
directed moratorium fishery, but would be permitted to retain
moratorium species other than halibut and sablefish in amounts up to 20
percent of the amount of halibut and sablefish on board.
13. Appeals
The Council's preferred alternative provides for an administrative
appeal of an initial denial of a vessel permit or license. The intent
of the Council, in recommending the opportunity for an administrative
appeal, was to allow for an administrative solution to contested
eligibility without the expense of a court proceeding. The Council
determined that most appeals under the moratorium would be resolved
through the examination of records. In the event that review of an
appeal would require more than a review of the records and application
of the regulations and would benefit from industry expertise, the
Council recommended establishment of an adjudication or appeals board
to review the appeals.
Implementation of the Moratorium
If approved by the Secretary, the moratorium would be effective for
3 years from its implementation date, as recommended by the Council. If
approved, NMFS intends to implement the moratorium on January 1, 1995,
through December 31, 1997.
Permit Requirements
Under the moratorium, NMFS is proposing that only a vessel that is
issued a permit would be able to participate in the moratorium
fisheries. Currently, an owner of a vessel harvesting halibut in the
waters in and off of Alaska must obtain a vessel license from the IPHC,
a groundfish harvesting, processing or support vessel in Federal waters
off of Alaska must obtain a vessel permit from NMFS, and a king or
Tanner crab harvesting, processing, or support vessel in Federal and
State waters must obtain a vessel permit from the State.
Under the moratorium, a vessel owner would continue to apply to the
IPHC for a halibut vessel license, and to NMFS for a groundfish vessel
permit. Since the State does not have authority to impose a moratorium
on vessels, NMFS also would require a crab harvesting, processing, or
support vessel participating in the crab fisheries in the Federal
waters of the BSAI to obtain a Federal vessel permit. The State would
continue to require a State vessel permit to participate in crab
fisheries in State waters, and the FMP for the Commercial King and
Tanner Crab Fisheries in the BSAI would continue to defer much of the
management of the fishery to the State.
An owner of a support vessel that intends to participate in the
moratorium fisheries from January 1, 1995, through December 31, 1997,
would have to apply for and receive a permit, but would not be subject
to the moratorium eligibility requirements.
Permits and licenses issued under the moratorium would remain
harvesting privileges and the Secretary would have the authority to
amend or revoke the moratorium and any harvesting privileges
thereunder, if required for conservation of the resources.
Eligibility Requirements
As previously discussed, a vessel would be eligible to receive a
permit or license if it has moratorium qualification and if its LOA
does not exceed the applicable length restrictions. NMFS is proposing
to implement the Council's length increase restrictions, or the 20
percent rule, by requiring the LOA of a vessel to be no greater than
1.2 times the ``original qualifying length'' of the qualifying vessel.
This calculation results in a ``maximum LOA'' that the vessel may not
exceed during the moratorium. The original qualifying length would be
the registered length of a qualifying vessel that appears on the most
recently submitted application prior to June 24, 1992, for U.S. Coast
Guard Certificate of Documentation, or State documentation if the
vessel is not required to have U.S. Coast Guard Documentation. For
vessels with an original qualifying length of less than or equal to 104
ft (31.7 m), the maximum LOA would be 1.2 times the original qualifying
length. For vessels with an original qualifying length greater than 104
ft (31.7 m) but less than or equal to 125 ft (38.1 m), the maximum LOA
would be 125 ft (38.1 m). For vessels with an original qualifying
length greater than 125 ft (38.1 m), the maximum LOA would be the
original qualifying length. Vessels that satisfy both moratorium
conditions would be ``eligible vessels.''
Vessel Reconstruction
Vessel reconstruction means an adjustment in the LOA of a
qualifying vessel. NMFS proposes that the maximum LOA for a qualifying
vessel that is 125 ft (38.1 m) LOA or less could be adjusted through
reconstruction and the vessel would remain an eligible vessel under the
following three conditions. First, if vessel reconstruction were
completed on or before June 24, 1992, the LOA of the reconstructed
vessel would become the new original qualifying length of the vessel.
The new original qualifying length then would be used to calculate
maximum LOA as described above under ``Eligibility Requirements.''
Second, if vessel reconstruction were started before June 24, 1992, but
not finished by that date, the LOA of the reconstructed vessel would
become the new maximum LOA for the vessel. No further increase in LOA
would be permitted during the moratorium. Third, if vessel
reconstruction were started on or after June 24, 1992, the maximum LOA
would not be adjusted during the moratorium, and any increases in LOA
as a result of reconstruction would have to be less than or equal to
the maximum LOA for the vessel. Vessel reconstruction would begin and
end with the start and completion of the physical modification of the
vessel. The determination of any adjustment in maximum LOA for
reconstructed vessels would have to be approved by NMFS and be based on
documentation supplied to NMFS that verifies the beginning and ending
dates of vessel reconstruction. NMFS proposes that acceptable
documentation of the beginning and ending dates of reconstruction would
be limited to a notarized affidavit signed by the vessel owner and the
owner/manager of the shipyard that specifies the beginning and ending
dates of the reconstruction. NMFS particularly requests comments from
the public on this proposed method for documenting the beginning and
ending dates of vessel reconstruction.
Transfer of Moratorium Qualification
Moratorium qualification would be transferable from a vessel to
another vessel or person, or from a person to another person or vessel.
Any transfer of moratorium qualification by a vessel would make that
vessel ineligible. For the purposes of implementing the moratorium,
vessel replacement would be considered a transferral of moratorium
qualification. Additionally, to establish transfer of moratorium
qualification by legal agreement, NMFS proposes that a written contract
must exist that documents the transfer and includes certain information
as proposed in Sec. 676.3(b)(1)(i).
NMFS would determine the maximum LOA for each qualifying vessel
prior to the implementation of the moratorium. When the moratorium
qualification of a qualifying vessel is transferred to another vessel
or person, the maximum LOA of the qualifying vessel also would be
transferred to the vessel or person receiving the moratorium
qualification. Maximum LOA would remain attached to a specific
moratorium qualification regardless of how many times that moratorium
qualification was transferred. If moratorium qualification is
transferred to a smaller vessel, that smaller vessel would retain the
maximum LOA of the qualifying vessel.
Definition of Vessel Length
The Council intended that the limitations on increases in vessel
length be based on the LOA of the vessel. The current LOA of a vessel
can be measured as it is defined in Secs. 672.2 and 675.2, but complete
records of the historical LOA of vessels during the qualifying period
are not available for calculating the maximum LOA as proposed by NMFS.
Various methods for measuring vessel length were used on vessel permit
and license forms during the qualifying period by NMFS, the State,
IPHC, and the U.S. Coast Guard (USCG). For example, several different
methods of measuring ``registered length'' were used, and an undefined
vessel ``length'' was used in addition to LOA. NMFS proposes, for
purposes of the moratorium, that historical LOA equal the registered
length listed on the most recently submitted application prior to June
24, 1992, for U.S. Coast Guard Certificate of Documentation to provide
a single source of data for most original qualifying vessels. A vessel
under 32 ft (9.8 m) LOA that does not have USCG documentation may use
vessel length as specified in State registration.
A difficulty with the NMFS proposal is that the USCG registered
length is sometimes less than actual LOA. This may cause a problem for
a vessel that already has increased its length using actual historical
LOA according to the Council's recommendations, resulting in an
increase that exceeds the maximum LOA. Consequently, the vessel would
be an ineligible vessel. Also, a vessel that has not yet increased its
length according to the Council's 20 percent limit would not be able to
increase its length as much as would be allowed if historical LOA were
used instead of historical registered length. NMFS particularly
requests comment from the public on this subject.
Replacement or Salvage of a Lost or Destroyed Vessel
If a vessel owner submits an application to NMFS for the
replacement or salvage of a lost or destroyed vessel, NMFS proposes to
determine whether a vessel is lost or destroyed by consulting the U.S.
Coast Guard Report of Marine Casualty, form 2692. If NMFS determines
that a vessel is lost or destroyed, a vessel owner would then be
required to submit documentation that satisfies the Council's
requirements for eligibility of a replacement or salvaged vessel. These
proposed information requirements are specified in
Sec. 676.3(b)(3)(iii).
Permit Issuance Procedure
For purposes of the moratorium, NMFS would prepare a database that
contains each vessel that made a qualifying landing during the
qualifying period. The database also would include information
concerning ownership and vessel length derived from permit and license
data. The database would be used by NMFS for determining eligible
vessels. NMFS proposes the following vessel permit and license issuance
procedure.
Groundfish
A vessel owner that intends to harvest groundfish in the GOA and
BSAI from January 1, 1995, through December 31, 1997, would have to
submit to the Director of the Alaska Region, NMFS (Regional Director),
a written application for a groundfish vessel permit. An applicant
would be issued a permit if: a. The vessel owner submitted a completed
vessel permit application; b. the vessel made a qualifying landing
during the qualifying period or submitted a completed moratorium
qualification transfer application with the vessel permit application;
and c. the LOA of the vessel did not exceed the maximum LOA for that
vessel. If the vessel reconstruction provisions at Sec. 676.3(b)(2)
apply, a vessel owner also should submit a completed vessel
reconstruction application with the vessel permit application. All
permits issued by NMFS would list the maximum LOA applicable for that
vessel and for any vessel to which the moratorium qualification is
transferred.
If a vessel owner applies to NMFS for a groundfish vessel permit,
and NMFS determines that the vessel is an ineligible vessel, the vessel
owner would be notified in writing by NMFS that a vessel permit would
not be issued. The applicant could appeal the initial decision within
45 days of issuance of the written notification according to the appeal
procedures described below. Although each GOA and BSAI groundfish
vessel would have to apply for and obtain a vessel permit from NMFS,
only catcher vessels and catcher/processor vessels would be required to
be eligible vessels.
Crab
A vessel owner that intends to fish for king and Tanner crab in the
Federal waters of the BSAI from January 1, 1995, through December 31,
1997, would have to submit to the Regional Director a written
application for a Federal crab vessel permit in addition to any permit
required by the State. The application and issuance procedure, and the
appeals procedure for crab vessel permits would be the same as for
groundfish. Although all vessels operating in crab fisheries in the
BSAI would have to apply for and obtain a vessel permit from NMFS, only
catcher vessels and catcher/processor vessels would be required to be
eligible vessels.
Halibut
A vessel owner that intends to harvest halibut from January 1,
1995, through December 31, 1997, in the waters in and off Alaska would
have to apply for a vessel license from the IPHC. Upon receipt of a
written vessel license application, the IPHC would compare the
information submitted by the applicant with the NMFS database of
eligible vessels. An unrestricted vessel license would be issued if: a.
The vessel owner were to submit a completed vessel license application
to the IPHC; b. the vessel made a qualifying landing during the
qualifying period; and c. the LOA of the vessel did not exceed the
maximum LOA. Each unrestricted vessel license issued by the IPHC would
list the maximum LOA applicable for the vessel and for any vessel to
which the moratorium qualification is transferred.
If a vessel owner applies to the IPHC for a halibut vessel license
but the information on the application does not correspond to the
information in the NMFS database, the IPHC would issue a restricted
vessel license, applicable only for IPHC management areas 2A or 2B
which are in and off British Columbia, Canada, and the States of
California, Oregon, and Washington. At this point, the vessel owner
would have the option of submitting additional written information
regarding eligibility to NMFS within 45 days of issuance of the
restricted vessel license. NMFS would review the additional information
and issue a written decision as to whether an unrestricted halibut
license would be issued. If NMFS initially determines that the vessel
is eligible, NMFS would amend the database and inform the IPHC that the
vessel is eligible and an unrestricted vessel license could be issued
to the vessel owner. If NMFS initially determines that a restricted
halibut license would be issued, the applicant may appeal the decision
to the Regional Director within 45 days of issuance of the written
notification from NMFS according to the appeal procedures described
below.
Although vessels operating in the halibut fisheries in the waters
in and off of Alaska would have to apply for and obtain a vessel
license from the IPHC, only catcher vessels and catcher/processor
vessels would be required to be eligible vessels.
Vessels Used in the IFQ Sablefish and Halibut Fixed Gear Fisheries
A vessel operating under the provisions of the halibut and
sablefish fixed gear IFQ program would be exempted from the vessel
moratorium as it affects directed halibut and sablefish operations. To
implement this exemption, an owner of a vessel used in the IFQ
sablefish and halibut fixed gear fisheries from January 1, 1995,
through December 31, 1997, would have to submit to the Regional
Director a written application for a groundfish and crab vessel permit.
A vessel permit would be issued if the vessel owner submits a completed
application to NMFS as required by Secs. 671.4, 672.4, or Sec. 675.4.
The type of permit issued would be based on the eligibility of the
vessel under the moratorium.
An eligible vessel used in the IFQ sablefish and halibut fixed gear
fisheries would be issued an unrestricted groundfish and crab vessel
permit. A vessel that is issued an unrestricted groundfish and crab
vessel permit may retain amounts of other moratorium species subject to
applicable directed fishing standards.
An ineligible vessel used in the IFQ sablefish and halibut fixed
gear fisheries would be issued a restricted groundfish and crab vessel
permit. A vessel that is issued a restricted groundfish and crab vessel
permit would not be able to retain an aggregate amount of moratorium
species other than sablefish and halibut in round weight equivalents in
excess of 20 percent of the aggregate amount of sablefish and halibut
in round weight equivalents on board.
Letter of Authorization
If a vessel owner submits a complete application for a vessel
permit or license, and NMFS preliminarily determines that a vessel is
an ineligible vessel, NMFS would send a Letter of Authorization to a
vessel owner authorizing a vessel to harvest moratorium species. A
Letter of Authorization would allow a vessel owner who applies for a
moratorium vessel permit or license to continue operating his vessel
until NMFS makes a decision regarding its moratorium qualification.
NMFS would send a Letter of Authorization to the vessel owner
within 30 days of receipt of the application, if NMFS has not issued a
written initial decision to the vessel owner regarding his vessel's
qualification. This Letter of Authorization would be in effect until
superseded or rescinded by the Regional Director.
If a vessel owner files a notice of appeal with the Regional
Director, NMFS would send a Letter of Authorization to the vessel owner
within 30 days of the filing of the appeal with NMFS, pending issuance
of a written final decision to the vessel owner on the appeal. This
Letter of Authorization would expire 30 days after the Regional
Director issues a written final decision on the appeal.
Appeals Procedure
NMFS proposes the following appeals procedure to implement the
Council's appeal provisions. A vessel owner may appeal the initial
denial of a groundfish and crab vessel permit, the issuance of a
restricted halibut vessel license, or the issuance of a restricted
groundfish and crab vessel permit to the Regional Director within 45
days of issuance of written notice from NMFS or the IPHC. The Regional
Director would decide the appeal on a review of the records submitted,
and issue a written decision on the appeal. If the Regional Director
were to determine that in deciding the appeal, his decision would
benefit from industry input, the Regional Director would forward the
appeal to the Appeals Board. NMFS proposes that the Appeals Board would
be a committee of the Council comprised of three appointed Council
Advisory Panel members. The Appeals Board would meet publicly to
discuss the appeal. After receiving the Appeals Board's recommendation
from the Council, the Regional Director would consider the
recommendation and issue a written decision on the appeal. The Regional
Director's decision would constitute the final agency action upon which
the applicant would be able to file suit in U.S. District Court.
Notice of a proposed rule that would govern appeals of
determinations made for the IFQ program was published on February 9,
1994 (59 FR 5979). Public comment is particularly requested on using
the same appeals procedure for the IFQ and moratorium programs.
Classification
The Assistant Administrator for Fisheries, NOAA, determined that
this proposed rule, if adopted, could have a significant economic
impact on a substantial number of small entities. Based on the EA/RIR/
IRFA for the moratorium, total participation in the moratorium
fisheries for a given year is influenced by the annual rate of entrance
and exit of vessels. Although new entrants averaged nearly 900 vessels
annually over the period from 1977 through 1991, total participation
increased only 180 vessels per year, on average, because 500 to 1,000
vessels exited the fisheries annually.
Vessel participation data for 1992 have become available since this
analysis was performed. The source of these data are the State of
Alaska fish ticket, NMFS groundfish vessel permit, weekly production
report, and catch estimate databases.
In 1991, 2,227 vessels fished in Alaska Federal groundfish
fisheries, and in 1992, 2,341 vessels fished, for an increase in 1992
of 114 vessels. Approximately half (46 vessels) of this increase is due
to vessels less than 60 ft (18.3 m) LOA. Such vessels normally do not
make a significant contribution to the overall landings of groundfish.
In addition, vessels less than 26 ft (7.9 m) LOA in the GOA and those
less than 32 ft (9.8 m) LOA in the BSAI area would be exempt from the
moratorium. After subtracting such small vessels and considering only
those newly permitted vessels that made recorded groundfish landings in
1992, only about 27 vessels apparently entered the groundfish fishery
in 1992 for the first time, and would not be eligible to fish under the
moratorium. With respect to halibut, about 156 ``new'' vessels made
landings for the first time in 1992 (some of these had groundfish and
crab landings records also). With respect to BSAI crab, eight ``new''
vessels made landings for the first time in 1992. Therefore, a total of
about 191 vessels apparently entered the groundfish, halibut, and crab
fisheries for the first time in 1992 and may not be eligible for a
license if the moratorium is approved and implemented as proposed.
The number of ``new'' vessels that entered these fisheries in 1993
and 1994 is unknown because individual vessel catch data are still
preliminary. Assuming that roughly the same number of ``new'' vessels
entered these fisheries in 1993 and 1994 as entered in 1992 probably is
unrealistic. The Council's moratorium decision occurred midway through
1992. Most fishermen decide whether to enter a fishery at the beginning
of the year. Public knowledge of the Council's action after June 1992
probably had a negative effect on a decision to enter a ``new'' vessel
in 1993 or 1994. According to the NMFS vessel permit database, about
447 Federal groundfish vessel permits were issued between February 9,
1992, and March 21, 1994, that had never before obtained a groundfish
vessel permit. However, the majority of these ``new'' vessel permits
likely were issued to halibut longline vessels, which would be exempt
from the moratorium when the halibut IFQ program is fully implemented
in 1995. In addition, some unknown number of these ``new'' groundfish
vessel permits were never used to actually harvest and land groundfish,
and others were issued to small vessels that would be exempt from the
moratorium. For the reasons described above, the number is likely more
than 35, but less than 100, based on the available data and knowledge
of the fisheries. A copy of the EA/RIR/IRFA may be obtained (see
ADDRESSES).
This rule involves collection-of-information requirements subject
to the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.) that have
been submitted to the Office of Management and Budget for approval.
Public reporting burden for each year of this collection is estimated
to average 0.5 hours per response for completing each of the six
information collection requests, except for the crab permit
application, which is .33 burden hours per response. The six
information collection requests and the estimated number of annual
responses are: 1. Crab vessel permit applications, 400; 2. applications
for transfer of moratorium qualification, 715; 3. applications for
vessel reconstruction, 143; 4. transfer of a lost or destroyed vessel's
moratorium qualification, 36; 5. salvage of lost or destroyed vessels,
36; and 6. applications for appeal, 358. These reporting burdens
include the time for reviewing the instructions, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. Send comments regarding these burden
estimates or any other aspect of the data requirements, including
suggestions for reducing the burden, to NMFS (see ADDRESSES) and to the
Office of Information and Regulatory Affairs, Office of Management and
Budget, Washington, DC 20503 (ATTN: NOAA Desk Officer).
This proposed rule is exempt from prepublication review for
purposes of E.O. 12866.
List of Subjects in 50 CFR Parts 671, 672, 675, and 676
Fisheries, Recordkeeping and reporting requirements.
Dated: May 27, 1994.
Charles Karnella,
Acting Program Management Officer, National Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR parts 671, 672,
675, and 676 are proposed to be amended to read as follows:
PART 671--KING AND TANNER CRAB FISHERIES OF THE BERING SEA AND
ALEUTIAN ISLANDS
1. The authority citation for 50 CFR part 671 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. Section 671.2 is amended by adding the definitions for ``King
crab'' and ``Tanner crab'' as follows:
Sec. 671.2 Definitions.
* * * * *
King crab means red king crab, Paralithodes camtschatica; blue king
crab, P. platypus; or brown (or golden) king crab, Lithodes aequispina.
* * * * *
Tanner crab means Chionoecetes bairdi; or snow crab, C. opilio.
3. Subpart A is amended by adding Sec. 671.3 to read as follows:
Sec. 671.3 Relation to other laws.
(a) Foreign fishing. Regulations governing foreign fishing for
groundfish in the Gulf of Alaska are set forth at 50 CFR 611.92.
Regulations governing foreign fishing for groundfish in the Bering Sea
and Aleutian Islands Management Area are set forth at 50 CFR 611.93.
(b) King and Tanner crab. Regulations governing the conservation
and management of king and Tanner crab are also found in Alaska
Administrative Code regulations at Title 5, Chapters 34 and 35.
(c) Halibut fishing. Regulations governing the conservation and
management of Pacific halibut are set forth at 50 CFR parts 301 and
676.
(d) Domestic fishing for groundfish. Regulations governing the
conservation and management of groundfish in the EEZ of the Gulf of
Alaska and in the Bering Sea and Aleutian Islands Management Area are
set forth at 50 CFR parts 620, 672, 675, and 676.
(e) Limited access. Regulations governing access to commercial
fishery resources are set forth at 50 CFR part 676.
(f) Marine mammals. Regulations governing exemption permits and the
recordkeeping and reporting of the incidental take of marine mammals
are set forth at 50 CFR 216.24 and part 229.
4. Subpart A is amended by adding Sec. 671.4 to read as follows:
Sec. 671.4 Permits.
This section is effective [DATE 30 DAYS FROM DATE OF PUBLICATION OF
FINAL RULE IN THE Federal Register], through December 31, 1997, unless
otherwise specified.
(a) General--(1) Effective from January 1, 1995, through December
31, 1997. No vessel of the United States may fish for king or Tanner
crab in the Bering Sea and Aleutian Islands Area without first
obtaining a permit issued under this part. Such permits shall be issued
without charge.
(2) Issuance of Permits for 1995, 1996, and 1997. Permits issued
under this section shall be issued in accordance with the moratorium
provisions at 50 CFR 676.3.
(b) Application. A vessel owner may obtain a vessel permit required
under paragraph (a) of this section by submitting a written application
to the Regional Director containing the following information:
(1) The vessel owner's name, mailing address, and telephone number;
(2) The name of the vessel;
(3) The vessel's U.S. Coast Guard documentation number or State
registration number;
(4) The home port of the vessel;
(5) The type of fishing gear to be used;
(6) The length and net tonnage of the vessel;
(7) The hull color of the vessel;
(8) The names of all operators and/or lessees of the vessel;
(9) Whether the vessel is to be used in crab harvesting, in which
case the type of fishing gear to be used must be specified; or for
processing or support operations, including the receipt of crab from
U.S. vessels at sea; and
(10) The signature of the applicant.
(c) Issuance. (1) Except as provided in subpart D of 15 CFR part
904, and subpart A of 50 CFR part 676, upon receipt of a properly
completed application, the Regional Director will issue a permit to the
vessel. An application that includes the above information will be
deemed complete.
(2) Upon receipt of an incomplete or improperly completed
application, the Regional Director shall notify the applicant of the
deficiency in the application. If the applicant fails to correct the
deficiency within 10 days following the date of notification, the
application shall be considered abandoned.
(d) Notification of change. A vessel owner that has applied for and
received a permit under this section must give written notification of
any change in the information provided under paragraph (b) of this
section to the Regional Director within 30 days of the date of that
change.
(e) Duration. A permit will continue in full force and effect
through December 31 of the year for which it was issued, or until it is
revoked, suspended, or modified under part 621 (Civil Procedures) or
subpart A of part 676.
(f) Alteration. No person shall alter, erase, or mutilate any
permit. Any permit that has been intentionally altered, erased, or
mutilated shall be invalid.
(g) Transfer. Permits issued under this part are not transferable
or assignable. A permit shall be valid only for the vessel for which it
is issued.
(h) Inspection. Any permit issued under this part must be carried
aboard the vessel whenever the vessel is fishing for crab. The permit
shall be presented for inspection upon request of any authorized
officer.
(i) Sanctions. Procedures governing permit sanctions and denials
are found at subpart D of 15 CFR part 904.
PART 672--GROUNDFISH OF THE GULF OF ALASKA
5. The authority citation for 50 CFR part 672 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
6. Section 672.3(f) is added to read as follows:
Sec. 672.3
Relation to other laws.
* * * * *
(f) Crab fishing. This paragraph (f) is effective from [date 30
days from date of publication of final rule in the Federal Register],
through December 31, 1997. Regulations governing the conservation and
management of king and Tanner crab in the Bering Sea and Aleutian
Islands Area are set forth at 50 CFR parts 671 and 676.
7. Section 672.4(a) is revised to read as follows:
Sec. 672.4
Permits.
(a) General. (1) No vessel of the United States may fish for
groundfish in the Gulf of Alaska without first obtaining a permit
issued under this part. Such permits shall be issued without charge.
(2) Issuance of Permits for 1995, 1996, and 1997. This paragraph
(a)(2) is effective from [date 30 days after date of publication of
final rule in the Federal Register], through December 31, 1997. Permits
issued under this section for the 1995, 1996, and 1997 fishing years
shall be issued in accordance with the moratorium provisions at 50 CFR
676.3.
* * * * *
PART 675--GROUNDFISH OF THE BERING SEA AND ALEUTIAN ISLANDS
MANAGEMENT AREA
8. The authority citation for 50 CFR part 675 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
9. Section 675.3(f) is added to read as follows:
Sec. 675.3 Relation to other laws.
* * * * *
(f) Crab fishing. This paragraph (f) is effective from [date 30
days from date of publication of final rule in the Federal Register],
through December 31, 1997. Regulations governing the conservation and
management of king and Tanner crab in the Bering Sea and Aleutian
Islands Area are set forth at 50 CFR parts 671 and 676.
10. Section 675.4(a) is revised to read as follows:
Sec. 675.4 Permits.
(a) General. (1) No vessel of the United States may fish for
groundfish in the Bering Sea and Aleutian Islands management area
without first obtaining a permit issued under this part. Such permits
shall be issued without charge.
(2) Issuance of Permits During 1995, 1996, and 1997. This paragraph
(a)(2) is effective from [date 30 days after date of publication of
final rule in the Federal Register], through December 31, 1997. Permits
issued under this section for the 1995, 1996, and 1997 fishing years
shall be issued in accordance with the moratorium provisions at 50 CFR
676.3.
* * * * *
PART 676--LIMITED ACCESS MANAGEMENT OF FEDERAL FISHERIES IN AND OFF
OF ALASKA
11. The authority citation for part 676 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
12. Subpart A is amended by adding Secs. 676.1 through 676.7 to
read as follows:
Subpart A--Moratorium on Entry
Sec.
676.1 Purpose and scope.
676.2 Definitions.
676.3 Issuance of vessel permits.
676.4 Exemptions.
676.5 Permit issuance procedure.
676.6 Appeals.
676.7 Prohibitions.
Sec. 676.1 Purpose and scope.
This section is effective from [date 30 days after date of
publication of the final rule in the Federal Register], through
December 31, 1997.
(a) Subpart A of this part implements the moratorium program
developed by the North Pacific Fishery Management Council and approved
by the Secretary of Commerce.
(b) Regulations in subpart A govern:
(1) The issuance of Federal vessel permits for regulating
participation in the commercial fisheries for groundfish in that
portion of the Gulf of Alaska and Bering Sea and Aleutian Islands
management area over which the United States exercises exclusive
fishery management authority;
(2) The issuance of Federal vessel permits for regulating
participation in the commercial fisheries for king or Tanner crab in
that portion of the Bering Sea and Aleutian Islands area over which the
United States exercises exclusive fishery management authority; and
(3) The issuance of International Pacific Halibut Commission vessel
licenses for regulating participation in the commercial fisheries for
Pacific halibut in Convention waters as described in 50 CFR part 301
that are in and off the State of Alaska.
Sec. 676.2 Definitions.
This section is effective from [date 30 days after date of
publication of the final rule in the Federal Register], through
December 31, 1997. In addition to the definitions in the Magnuson Act
and in 50 CFR parts 301, 620, 671, 672, and 675, the terms in subpart A
of 50 CFR part 676 have the following meanings:
Appeals Board means a North Pacific Fishery Management Council
adjudication board comprised of three North Pacific Fishery Management
Council Advisory Panel members appointed by the North Pacific Fishery
Management Council.
Eligible vessel means a vessel that has moratorium qualification
and has an LOA that is less than or equal to the maximum LOA.
Harvest or harvesting means any activity, other than scientific
research conducted by a scientific research vessel, that involves the
catching or taking of fish, the attempted catching or taking of fish,
or any other activity that can reasonably be expected to result in the
catching or taking of fish.
Legal landing means any amount of a moratorium species that was
harvested and landed in compliance with State and Federal regulations
in existence at the time of the landing.
Letter of authorization means a letter from NMFS to a vessel owner
authorizing a vessel to make a legal landing of any moratorium species
during the moratorium pending an initial written decision by NMFS on a
vessel permit or license application or pending a final written
decision by the Regional Director on an appeal.
LOA means length overall as defined at Secs. 672.2 and 675.2.
Lost or destroyed vessel means a vessel that has been sunk at sea
or been destroyed by fire or other type of physical damage and is
listed on the U.S. Coast Guard Report of Marine Casualty, form 2692.
Maximum LOA means a length overall assigned by NMFS for each
original qualifying vessel that represents the greatest LOA to which a
vessel may increase and continue to participate in the moratorium
fisheries during the moratorium. For a vessel with an original
qualifying length less than or equal to 104 feet (31.7 meters), the
maximum LOA is 1.2 times the original qualifying length. For a vessel
with an original qualifying length greater than 104 feet (31.7 meters)
and equal to or less than 125 feet (38.1 meters), the maximum LOA is
125 feet (38.1 meters). For a vessel with an original qualifying length
greater than 125 feet (38.1 meters), the maximum LOA is the original
qualifying length.
Moratorium qualification means the privilege of a vessel to fish
for moratorium species during the moratorium if the vessel made a
qualifying landing. Moratorium qualification may be transferred to
another vessel or person.
Moratorium species means Pacific halibut harvested from Convention
waters as described in 50 CFR part 301 that are in and off the State of
Alaska; groundfish species harvested from the Gulf of Alaska management
area as specified in accordance with 50 CFR 672.20(c)(1); groundfish
species harvested from the Bering Sea and Aleutian Islands management
area as specified in accordance with 50 CFR 675.20(a)(7); and king or
Tanner crab harvested from the Bering Sea and Aleutian Islands area.
Original qualifying length means the registered length of an
original qualifying vessel that appears on the most recently submitted
application for U.S. Coast Guard Certificate of Documentation prior to
June 24, 1992, or State of Alaska documentation if the vessel is not
required to and does not have a U.S. Coast Guard Certificate of
Documentation.
Original qualifying vessel means a U.S. vessel that made a
qualifying landing.
Person means any individual who is a citizen of the United States
or any corporation, partnership, association, or other entity (or their
successor in interest), whether or not organized or existing under the
laws of any state, that is a United States citizen.
Qualifying landing means the legal landing of any amount of a
moratorium species during the qualifying period.
Qualifying period means the period of time from January 1, 1980,
through February 9, 1992.
Vessel reconstruction means an adjustment in the LOA of a vessel.
Vessel reconstruction begins and ends with the start and completion of
the physical modification of the vessel.
Sec. 676.3 Issuance of vessel permits.
This section is effective from [date 30 days from date of
publication of final rule in the Federal Register], through December
31, 1997.
(a) Applicability. Except for the exemptions to the vessel
moratorium listed in Sec. 676.4, the moratorium applies to all catcher
vessels and catcher/processor vessels that apply for the following
permits or licenses:
(1) To commercially harvest king or Tanner crab in the Bering Sea
and Aleutian Islands area under 50 CFR 671.4;
(2) To harvest groundfish of the Gulf of Alaska management area
under 50 CFR 672.4;
(3) To harvest groundfish of the Bering Sea and Aleutian Islands
management area under 50 CFR 675.4; and
(4) To commercially harvest Pacific halibut from Convention waters
that are in and off the State of Alaska under 50 CFR part 301.
(b) Eligibility criteria. In order for a vessel to receive a vessel
permit or license during the moratorium, the vessel must have made a
qualifying landing, and the maximum LOA for the vessel must be greater
than or equal to the LOA of the vessel.
(1) Transfer of moratorium qualification. Moratorium qualification
may be transferred from a vessel to another vessel or to a person, or
from a person to another person or to a vessel. The maximum LOA for the
vessel must be transferred with the moratorium qualification. The
transfer of moratorium qualification will be authorized under the
following conditions:
(i) The owner of the moratorium qualification must submit a written
application to NMFS for the transfer of moratorium qualification that
must include a copy of a written contract that contains the following
information:
(A) Names and addresses of all persons taking part in the transfer;
(B) Vessel names, U.S. Coast Guard identification numbers of any
vessels taking part in the transfer, and the LOA of all vessels taking
part in the transfer;
(C) A statement describing the transfer of the moratorium
qualification; and
(D) Signatures and dates when signed by all persons taking part in
the transfer.
(ii) The vessel transferring moratorium qualification must
surrender to NMFS all valid permits or licenses to harvest moratorium
species and the vessel must not harvest any moratorium species for the
remainder of the moratorium unless the vessel subsequently receives
moratorium qualification from another vessel;
(iii) NMFS must give written approval to a vessel owner of any
transfer of the moratorium qualification prior to receipt by the vessel
of moratorium qualification and any harvesting of moratorium species.
(iv) NMFS must give written approval to a person that has received
the transfer of moratorium qualification before the transfer will be
authorized.
(2) Adjustment to maximum LOA through reconstruction. The maximum
LOA for a vessel may be adjusted through vessel reconstruction under
the following conditions:
(i) If vessel reconstruction was completed before June 24, 1992,
the LOA of the reconstructed vessel will be the new original qualifying
length for the vessel, from which a new maximum LOA will be calculated
for the reconstructed vessel.
(ii) If vessel reconstruction began before June 24, 1992, but was
not completed by that date, the LOA resulting from the reconstruction
is the new maximum LOA and no further adjustment in maximum LOA is
permitted for the duration of the moratorium.
(iii) If vessel reconstruction was started on or after June 24,
1992, the maximum LOA may not be adjusted.
(iv) Maximum LOA for vessels over 125 feet (38.1 meters) LOA cannot
be increased through reconstruction.
(v) NMFS must give written approval to the vessel owner of an
adjustment in the maximum LOA due to vessel reconstruction. A vessel
owner must receive written approval and a permit or license with the
new maximum LOA prior to harvesting any moratorium species. In order to
adjust the maximum LOA for a vessel, the vessel owner must submit to
NMFS an application for adjustment of the maximum LOA that includes the
following information:
(A) Name and address of vessel owner(s);
(B) Vessel name and U.S. Coast Guard vessel identification number;
(C) Written contracts or written agreements with the boatyard or
shipyard concerning the vessel reconstruction;
(D) An affidavit signed by the vessel owner(s) and the owner/
manager of the company performing the vessel reconstruction that states
the beginning and ending dates of reconstruction; and
(E) An affidavit signed by the vessel owner that lists the new LOA
of the vessel.
(3) Lost or destroyed vessel. A lost or destroyed vessel may
transfer its moratorium qualification or be salvaged under the
following conditions:
(i) Transfer of the Moratorium Qualification of a Lost or Destroyed
Vessel. (A) An eligible vessel that is lost or destroyed between
January 1, 1995, through December 31, 1997, may transfer its moratorium
qualification to another vessel or person as specified in paragraph
(b)(1) of this section.
(B) An eligible vessel that was lost or destroyed on or after
January 1, 1989, through December 31, 1994, may transfer its moratorium
qualification to another vessel or person as specified in paragraph
(b)(1) of this section, but the vessel receiving the transferred
moratorium qualification must make a legal landing of a moratorium
species by December 31, 1996, to remain an eligible vessel.
(C) An eligible vessel that was lost or destroyed before January 1,
1989, cannot transfer its moratorium qualification to another vessel or
person.
(ii) Salvage of a lost or destroyed vessel. (A) An eligible vessel
that was lost or destroyed on or after January 1, 1989, may be salvaged
and remain an eligible vessel.
(B) An eligible vessel that was lost or destroyed before January 1,
1989, may be salvaged and remain an eligible vessel only if salvage
operations began on or before June 24, 1992, and the vessel makes a
legal landing of a moratorium species by December 31, 1996.
(iii) Application. A vessel owner must submit an application to
NMFS for transfer of moratorium qualification from a lost or destroyed
vessel and for the salvage of a lost or destroyed vessel. NMFS must
give written approval before any such transfer of moratorium
qualification or salvage prior to harvesting moratorium species.
(A) The application for the transfer of moratorium qualification
from a vessel that was lost or destroyed from January 1, 1995, through
December 31, 1997, must include a copy of the U.S. Coast Guard form
2692, Report of Marine Casualty, and a completed application for the
transfer of moratorium qualification as specified in paragraph (b)(1)
of this section.
(B) The application for the transfer of moratorium qualification
from a vessel that was lost or destroyed during the period January 1,
1989, through December 31, 1994, must include a copy of the U.S. Coast
Guard form 2692, Report of Marine Casualty, and a completed application
for the transfer of moratorium qualification as specified in paragraph
(b)(1) of this section. The vessel owner must show an Alaska State fish
ticket to NMFS proving that a landing of a moratorium species was made
by December 31, 1996, for the vessel to remain eligible.
(C) The application for the salvage of a vessel lost or destroyed
on or after January 1, 1989, must include a copy of the U.S. Coast
Guard form 2692, Report of Marine Casualty.
(D) The application for the salvage of a vessel lost or destroyed
before January 1, 1989, must include a copy of the U.S. Coast Guard
form 2692, Report of Marine Casualty. The vessel owner must show an
Alaska State fish ticket to NMFS proving that a landing of a moratorium
species was made by December 31, 1996, for the vessel to remain
eligible.
Sec. 676.4 Exemptions.
Effective from January 1, 1995, through December 31, 1997; the
following vessels are not subject to the moratorium and may continue to
fish during the moratorium in accordance with parts 301, 671, 672, and
675.
(a) A vessel other than a catcher vessel or catcher-processing
vessel.
(b) A catcher vessel or catcher/processor vessel that harvests a
moratorium species in the Gulf of Alaska and does not exceed 26 feet
(7.9 meters) LOA.
(c) A catcher vessel or catcher processor vessel that harvests a
moratorium species in the Bering Sea and Aleutian Islands management
area and does not exceed 32 feet (9.8 meters) LOA.
(d) A catcher vessel or catcher/processor vessel that meets all the
following criteria:
(1) The vessel is a new vessel that is constructed for and used by
a Community Development Plan, approved by the Secretary as part of the
Community Development Quota programs under Secs. 675.27 and 676.24;
(2) The vessel is designed and equipped to meet specific needs that
are described in the Community Development Plan; and
(3) The vessel does not exceed 125 feet (38.1 meters) LOA.
(e) An ineligible catcher vessel or catcher/processor vessel that
is engaged in the IFQ sablefish and halibut fixed gear fisheries in
accordance with regulations at subpart B of 50 CFR part 676 that
retains an aggregate amount of moratorium species other than sablefish
and halibut in round weight equivalents less than 20 percent of the
aggregate amount of sablefish and halibut in round weight equivalents
on board.
Sec. 676.5 Permit issuance procedure.
This section is effective from [Date 30 days from date of
publication of final rule in the Federal Register], through December
31, 1997.
(a) Groundfish permits. (1) A vessel owner that intends to harvest
Gulf of Alaska or Bering Sea and Aleutian Islands management area
groundfish from January 1, 1995, through December 31, 1997, must apply
for and be issued a moratorium vessel permit from NMFS. An application
for a vessel permit can be obtained from NOAA/NMFS, Alaska Enforcement
Division, P.O. Box 21767, Juneau, Alaska 99802-1767. A vessel permit
will be issued if:
(i) The vessel owner submits a complete vessel permit application
to NMFS as required by Secs. 672.4 and 675.4;
(ii) The vessel has made a qualifying landing or submits a complete
moratorium qualification transfer application with the vessel permit
application; and
(iii) The LOA of the vessel, which is specified on the permit
application, does not exceed the maximum LOA for that vessel. If the
vessel reconstruction provisions at Sec. 676.3(b)(2) apply, a vessel
owner also should submit a complete vessel reconstruction application
with the vessel permit application. All permits issued by NMFS will
list the maximum LOA applicable for that vessel and for any vessel to
which the moratorium qualification is transferred.
(2) If NMFS determines that the vessel is not an eligible vessel,
the vessel owner will be notified in writing by NMFS that a vessel
permit will not be issued and the reasons therefor. If NMFS denies an
application for a vessel permit, the applicant may appeal the initial
decision within 45 days of issuance of the denial in accordance with
the appeal procedures set forth at Sec. 676.6.
(b) Crab permits. (1) A vessel owner that intends to harvest king
and Tanner crab fisheries in Federal waters of the Bering Sea and
Aleutian Islands Area from January 1, 1995, through December 31, 1997,
must apply for and be issued a crab moratorium vessel permit from NMFS.
An application for a vessel permit can be obtained from NOAA/NMFS,
Alaska Enforcement Division, P.O. Box 21767, Juneau, Alaska 99802-1767.
A vessel permit will be issued if:
(i) The vessel owner submits a complete vessel permit application
to NMFS as required by Sec. 671.4;
(ii) The vessel has made a qualifying landing or submits a complete
moratorium qualification transfer application with the vessel permit
application; and
(iii) The LOA of the vessel that is specified on the permit
application does not exceed the maximum LOA for that vessel. If the
vessel reconstruction provisions at Sec. 676.3(b)(2) apply, a vessel
owner also should submit a complete vessel reconstruction application
with the vessel permit application. A permit issued by NMFS will list
the maximum LOA for that vessel and for any vessel to which the
moratorium qualification is transferred.
(2) If NMFS determines that the vessel is not an eligible vessel,
the vessel owner will be notified in writing by NMFS that a vessel
permit will not be issued and the reasons therefor. If NMFS denies an
application for a vessel permit, the applicant may appeal the initial
decision within 45 days of issuance of the denial in accordance with
the appeals section at Sec. 676.6.
(c) Halibut Licenses. (1) A vessel owner that intends to harvest
halibut in waters in and off the State of Alaska from January 1, 1995,
through December 31, 1997, must apply for and be issued an unrestricted
vessel license from the International Pacific Halibut Commission. An
unrestricted vessel license will be issued if:
(i) The vessel owner submits a complete vessel license application
to the International Pacific Halibut Commission as required by part
301;
(ii) The vessel has made a qualifying landing; and
(iii) The LOA of the vessel specified on the license application
does not exceed the maximum LOA. An unrestricted vessel license issued
by the International Pacific Halibut Commission will list the maximum
LOA for that vessel and for any vessel to which the moratorium
qualification is transferred.
(2) If the IPHC determines that the vessel does not satisfy the
requirements of (c)(1) of this section, the vessel owner will be issued
a restricted vessel license applicable only for International Pacific
Halibut Commission management area 2A or 2B. If the applicant is issued
a restricted vessel license, the applicant may submit additional
information to NMFS within 45 days of issuance of the restricted
license. NMFS will review the additional information submitted and
notify the vessel owner in writing whether an unrestricted vessel
license will be issued. If NMFS determines that an unrestricted vessel
license should be issued, NMFS will instruct the IPHC to issue an
unrestricted vessel license to the vessel owner. If NMFS determines
that an unrestricted vessel license should not be issued, and the
reasons therefor, the vessel owner may appeal the initial decision
within 45 days of issuance of the denial in accordance with the appeal
procedures set forth at Sec. 676.6.
(d) Vessel used in the IFQ sablefish and halibut fixed gear
fisheries. An owner of a vessel used in the IFQ sablefish and halibut
fixed gear fisheries from January 1, 1995, through December 31, 1997,
must apply for a groundfish and crab vessel permit. A vessel permit
will be issued if the vessel owner submits a complete application to
NMFS as required by Secs. 671.4, 672.4, or 675.4. The type of permit
issued will be based upon the eligibility of the vessel under the
moratorium as follows:
(1) Eligible vessel. A vessel used in the IFQ sablefish and halibut
fixed gear fisheries that is an eligible vessel under the moratorium
will be issued an unrestricted groundfish and crab vessel permit. A
vessel that is issued an unrestricted groundfish and crab vessel permit
may retain amounts of moratorium species other than sablefish and
halibut subject to applicable directed fishing standards.
(2) Ineligible vessel. A vessel used in the IFQ sablefish and
halibut fixed gear fisheries that is an ineligible vessel under the
moratorium will be issued a restricted groundfish and crab vessel
permit. A vessel that is issued a restricted groundfish and crab vessel
permit must not retain an aggregate amount of moratorium species other
than sablefish and halibut in round weight equivalents greater than 20
percent of the aggregate amount sablefish and halibut in round weight
equivalents on board.
(e) Letter of authorization--(1) Vessel permit or license
application. If a vessel owner submits a complete application for a
vessel permit or license as specified in Secs. 671.4, 672.4 and 675.4,
and 50 CFR part 301, NMFS will send a letter of authorization to the
vessel owner if NMFS has not issued a written initial decision to the
vessel owner on the permit or license application within 30 days of
receipt of the application by NMFS. The letter of authorization will
expire 75 days after NMFS issues an initial written decision to the
vessel owner on the permit or license application.
(2) Filing notice of appeal. If a vessel owner files a notice of
appeal with the Regional Director as specified in Sec. 676.6, NMFS will
send a letter of authorization to the vessel owner if NMFS has not
issued a written final decision to the vessel owner on the appeal
within 30 days of the filing of the notice of appeal with NMFS. The
letter of authorization will expire 30 days after the Regional Director
issues a written final decision on the appeal.
Sec. 676.6 Appeals.
This section is effective from [date 30 days after date of
publication of final rule in the Federal Register], through December
31, 1997. A vessel owner may file a notice of appeal with the Regional
Director within 45 days of the issuance of an initial decision by NMFS
that a groundfish and crab vessel permit will not be issued, a
restricted halibut license will be issued, or that a restricted
groundfish and crab vessel permit will be issued. The notice of appeal
must be accompanied by a statement in support of the position of the
owner, along with all supporting data and information. The Regional
Director will review the records used to make the initial decision and
the information submitted with the appeal.
(a) If, during his review, the Regional Director determines that a
decision can be made based on a review of the records submitted, the
Regional Director will issue a written decision that will be the final
administrative decision of the U.S. Department of Commerce.
(b) If, during his review, the Regional Director determines that
his decision would benefit from industry expertise beyond that
available from a review of the records, then the Regional Director will
forward the appeal to the Appeals Board for a recommendation. Subject
to Federal and State of Alaska confidentiality regulations, the Appeals
Board will review the records used to make the initial decision and the
information submitted with the appeal at a public meeting and make a
recommendation on the appeal. After receiving the Appeals Board's
recommendation from the Council, the Regional Director will consider
the recommendation and issue a written decision on the appeal based on
his findings and state the reasons for his decision. The decision of
the Regional Director is the final administrative decision of the U.S.
Department of Commerce.
Sec. 676.7 Prohibitions.
Effective from January 1, 1995, through December 31, 1997, it is
unlawful for a person to:
(a) Submit false or inaccurate information on a vessel permit
application;
(b) Harvest a moratorium species with a vessel that has a LOA
greater than the maximum LOA for the vessel;
(c) Harvest a moratorium species with a vessel that has received an
unauthorized transfer of moratorium qualification;
(d) Fish for sablefish or halibut with IFQ from a vessel with a
restricted groundfish and crab vessel permit and retain an aggregate
amount of moratorium species other than sablefish and halibut in round
weight equivalents greater than 20 percent of the aggregate amount
sablefish and halibut in round weight equivalents on board; and
(e) Violate any other provision of subpart A of 50 CFR part 676.
[FR Doc. 94-13469 Filed 5-31-94; 9:18 am]
BILLING CODE 3510-22-P
