[Federal Register Volume 62, Number 70 (Friday, April 11, 1997)]
[Rules and Regulations]
[Pages 17749-17753]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-9433]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 961203339-7063-02; I.D. 111896B]
RIN 0648-AI88


Fisheries of the Exclusive Economic Zone Off Alaska; Scallop 
Fishery Off Alaska; Scallop Vessel Moratorium

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

ACTION: Final rule.

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SUMMARY: NMFS approves a temporary moratorium on the entry of 
additional vessels into the scallop fishery off Alaska. This action 
implements Amendment 2 to the Fishery Management Plan for the Scallop 
Fishery off Alaska (FMP) as recommended by the North Pacific Fishery 
Management Council (Council). The purpose of Amendment 2 is to curtail 
increases in fishing capacity and provide stability for industry while 
the Council develops a long-term limited access system for this 
fishery. This action is necessary to promote the conservation and 
management objectives of the FMP.

DATES: Effective May 12, 1997 through June 30, 2000, except for 
Sec. 679.4(g)(1)(ii), which will become effective on July 1, 1997, 
through June 30, 2000; and the amendments to 

[[Page 17750]]

Secs. 679.2, 679.4(c)(10)(i), and 679.43 will become 
effective May 12, 1997.

ADDRESSES: Copies of Amendment 2 and the Environmental Assessment/
Regulatory Impact Review/Final Regulatory Flexibility Analysis (EA/RIR/
FRFA) prepared for this action may be obtained from NMFS, P.O. Box 
21668, Juneau, AK 99802, Attn: Lori J. Gravel.

FOR FURTHER INFORMATION CONTACT: Kent Lind, 907-586-7228.

SUPPLEMENTARY INFORMATION:

Background

    The scallop fishery in the exclusive economic zone (EEZ) off Alaska 
is managed by NMFS under the FMP. The FMP was prepared by the Council 
under the Magnuson-Stevens Fishery Conservation and Management Act 
(Magnuson-Stevens Act) and approved by NMFS on July 26, 1995. 
Regulations implementing the FMP are set out at 50 CFR part 679. 
General regulations that also affect fishing in the EEZ are set out at 
50 CFR part 600.
    At its April 1996 meeting, the Council adopted Amendment 2 and 
recommended that NMFS prepare a rulemaking to implement the amendment. 
A notice of availability of Amendment 2 was published in the Federal 
Register on December 3, 1996 (61 FR 64087), and invited comment on the 
amendment through February 3, 1997. No written comments were received 
on the amendment. A proposed rule to implement Amendment 2 was 
published in the Federal Register on December 26, 1996 (61 FR 67990). 
Comments on the proposed rule were invited through February 10, 1997. 
One letter containing three comments on the proposed rule was received 
by the end of the comment period. These comments are summarized and 
responded to in the Response to Comments section below.
    Upon reviewing the reasons for Amendment 2, and the comments on the 
proposed rule to implement it, NMFS has determined that this action is 
necessary for the conservation and management of the scallop fishery 
off Alaska. Amendment 2 was approved by NMFS on March 5, 1997, under 
section 304(b) of the Magnuson-Stevens Act. Additional information on 
this action may be found in the preamble to the proposed rule and in 
the EA/RIR/FRFA.

Response to Comments

    Comment 1. The moratorium will authorize 15 vessels to operate in 
Federal waters outside Cook Inlet. We believe this is too large a fleet 
to be economically sustainable. NMFS and the State of Alaska manage the 
scallop fishery by establishing total allowable catch (TAC) limits that 
are actually the upper limit of a range of harvest that will be 
permitted. It appears that analysis of the scallop moratorium has 
focused on the TAC as if it were the amount guaranteed to the scallop 
fleet for harvest. However, harvests are often stopped before the TAC 
is reached, due to attainment of the crab bycatch limit or because 
declining catch per unit effort in the fishery indicates that the 
resource is not healthy enough to sustain yield at the TAC level. 
Consequently, the published TACs do not accurately portray the 
availability of scallop resource for harvest.
    In our experience of over 20 years in the Alaska scallop fishery, 
declines in catch closely follow years of overcapitalization. In our 
view, the Federal waters outside Cook Inlet cannot support 15 vessels. 
The scallop fishery has never sustained that level of effort for more 
than a 2- or 3-year period, and those periods of overharvest have 
always been followed by years when effort was reduced to one or even 
zero vessels. We agree with the conclusion in the proposed rule--that 
four to six vessels could harvest the available quota. However, because 
the available quota is overstated, reviewers may misunderstand the 
economics of the fishery. Under the actual harvest levels realized in 
the fishery, four to six vessels may make a living--nothing more.
    Response. NMFS agrees that the scallop resource may be insufficient 
to support all qualified vessels in a year-round fishery. However, the 
scallop vessel moratorium is designed as a temporary measure to curtail 
additional increases in fishing capacity and provide stability for 
industry while a long-term limited access program is developed. The 
moratorium qualification criteria were established by the Council after 
extensive analysis, public testimony, and debate. These qualification 
criteria will achieve the Council's objectives while treating past and 
present participants in the fishery in a fair and equitable manner.
    Comment 2. Vessels that immigrate to the scallop fishery from other 
areas or fisheries in which they are licensed are able to return to 
those fisheries after a downturn in the scallop stock. Vessels that 
have depended exclusively on the Alaskan scallop fishery to the extent 
that they hold no permits nor expertise in other fisheries or areas are 
unable to compensate for losses in the scallop fishery. Ultimately, 
then, the price for overcapitalization is paid only by those who 
exclusively depend on the Alaskan scallop fishery.
    Response. Comment noted. Also, see response to comment 1.
    Comment 3. We agree with ending the qualifying period in 1993 as 
approved by the Council. Although not stated in the proposed rule, the 
emergency action required of the Council and NMFS in reaction to 
unrestricted fishing by a vessel that had renounced its Alaskan 
registration also contributed significantly to the delay in issuance of 
the moratorium proposed rule.
    Response. Comment noted.

Elements of the Scallop Vessel Moratorium

    The following paragraphs explain each aspect of the scallop vessel 
moratorium.

Applicability

    Beginning July 1, 1997, any vessel fishing for scallops in the EEZ 
off Alaska must carry a valid scallop moratorium permit at all times, 
and the vessel owner or operator must be named on the moratorium 
permit.

Duration of the Moratorium

    The scallop vessel moratorium will remain in effect for 3 years 
from July 1, 1997, unless repealed or replaced by a permanent limited 
access program. Under Amendment 2, the Council may recommend that the 
moratorium be extended for no more than 2 years if a permanent limited 
access program is imminent.

Qualification Criteria

    A vessel qualifies for inclusion in the moratorium if it made a 
legal landing of scallops during 1991, 1992, or 1993; or during at 
least 4 separate years from 1980 through 1990. This two-tier approach 
emphasizes recent participation in the fishery by allowing all vessels 
with any legal landings in 1991, 1992, or 1993 to qualify. Historic 
participants qualify under the more restrictive standard of a legal 
landing during at least 4 separate years from 1980 through 1990.
    Scallop moratorium permits will be issued to the person (or 
successor in interest) who owned the qualifying vessel when it most 
recently made a qualifying landing. If that vessel were sold during or 
after the moratorium qualification period, the moratorium permit would 
be available to the person who owned the vessel (or successor in 
interest) when it most recently made a qualifying landing, such that 
each vessel generates only one moratorium permit.

[[Page 17751]]

Area Endorsements

    Moratorium permits will be endorsed for fishing in Federal waters 
within Registration Area H (Cook Inlet) or fishing within Federal 
waters outside Registration Area H. Qualified vessels must have made at 
least one legal landing of scallops during the qualifying period within 
an endorsement area to receive an endorsement for that area. No 
crossovers will be allowed between Registration Area H and waters 
outside Registration Area H unless a vessel qualifies in both areas.

Vessel Reconstruction and Maximum Length Overall (LOA)

    To prevent increased capitalization in the scallop fishery, 
lengthening of a vessel is limited to no more than 1.2 times or 20 
percent of the vessel's LOA on January 20, 1993. For vessels under 
reconstruction on January 20, 1993, vessels are limited to the LOA on 
the date reconstruction was completed, with no additional increases 
allowed. Each scallop moratorium permit will specify a maximum LOA 
based on the above criteria. These restrictions will allow for some 
upgrading of vessels to improve stability and safety, while limiting 
the further overcapitalization that could occur through massive 
reconstruction of existing vessels.

Transferability

    Moratorium permits are valid on any vessel that is less than or 
equal to the maximum LOA identified on the permit, provided that the 
vessel owner or operator is named on the moratorium permit. A person 
may transfer a moratorium permit to another person if a completed 
transfer application is submitted to NMFS and subsequently approved. In 
this event, a new permit will be issued in the name of the person who 
received the transferred permit. A permit transfer is required to 
reflect any change in permit ownership including the addition or 
deletion of a partner's name. In addition, the area endorsements on a 
moratorium permit may not be transferred independently of the permit 
itself.

Exemptions

    Vessels less than or equal to 26 ft (7.9 m) LOA in the Gulf of 
Alaska, and less than or equal to 32 ft (9.8 m) LOA in the Bering Sea 
and Aleutian Islands area, are exempt from the scallop moratorium when 
fishing for scallops with dive gear. An operator of a vessel under the 
size limits listed above is still required to carry a valid scallop 
moratorium permit on board when fishing with dredge gear or when dredge 
gear is on board.

Appeals

    NMFS will issue an initial administrative determination to each 
applicant who is denied a scallop moratorium permit. An initial 
administrative determination may be appealed by the applicant in 
accordance with the procedures established for the individual fishing 
quota program at Sec. 679.43. An initial administrative determination 
that denies an application for a scallop moratorium permit may 
authorize the affected person to catch and retain scallops with an 
interim permit. Any interim permit that authorizes fishing will expire 
on the effective date of the final agency action relating to the 
application. An administrative determination denying the issuance of a 
scallop moratorium permit or application for transfer is the final 
agency action for purposes of judicial review.

Technical Changes to Existing Regulations

    This final rule contains technical changes to the existing 
definitions of ``legal landing'', ``maximum LOA'', ``moratorium 
qualification'', ``moratorium species'', and ``qualifying period'' set 
out at Sec. 679.2. These technical changes are necessary to clarify 
which terms apply only to the existing groundfish and crab moratorium 
and which terms also would apply to the scallop moratorium.
    A technical change also is made to the description of the 
groundfish and crab moratorium appeals process at Sec. 679.4(c)(10)(i) 
to specify that appeals are to be sent to the Administrator, Alaska 
Region, NMFS (Regional Administrator), rather than to the Chief, RAM 
Division. This change is necessary to make Sec. 679.4(c)(10)(i) 
consistent with the appeals process described at Sec. 679.43(c). In 
addition, Sec. 679.43(a) is revised to indicate that the appeals 
process described at Sec. 679.43 also applies to scallop moratorium 
appeals made under Sec. 679.4(g).

Changes from the Proposed Rule

    The following changes were made from the proposed rule.
    1. The applicable date of the scallop moratorium was delayed until 
July 1, 1997, which coincides with the start of the scallop fishing 
season in most areas of Alaska. The purpose of this change is to 
provide industry with sufficient time to apply for and receive scallop 
moratorium permits.
    2. The language governing permit validity at 
Sec. 679.4(g)(1)(iii)(A) was changed to specify that the permit is 
valid only if the person named on the moratorium permit is the owner or 
operator of the vessel on which the permit is used. This change was 
made for clarity and consistency, because the terms ``owner'' and 
``operator'' are defined in regulation at Sec. 600.10.
    3. The language governing permit transfers at Sec. 679.4(g)(7) was 
revised to clarify that a permit transfer is required to reflect any 
change in permit ownership including the addition or subtraction of a 
partner.
    4. Finally, paragraph 679.4(g)(9) was added to clarify for the 
public that scallop moratorium permits do not represent any interest 
that is subject to the ``takings'' provision of the U.S. Constitution. 
The public is advised that these permits represent a harvesting 
privilege that may be amended or revoked subject to the requirements of 
applicable Federal law.

Classification

    The Regional Administrator determined that Amendment 2 is necessary 
for the conservation and management of the scallop fishery off Alaska 
and that it is consistent with the Magnuson-Stevens Act and other 
applicable laws.
    This final rule has been determined to be not significant for the 
purposes of E.O. 12866.
    The Council prepared a final regulatory flexibility analysis as 
part of the regulatory impact review. The analysis concluded that 
economic effects of Amendment 2 could have a significant and positive 
impact on a substantial number of small entities. A moratorium on the 
entry of new vessels into the scallop fishery will help prevent further 
overcapitalization of the fishery and the loss of income to current 
participants that would result from further overcapitalization. 
However, it is impossible to determine how many new vessels would enter 
the fishery in the absence of a vessel moratorium. As a consequence, 
the benefits of a moratorium are impossible to quantify. The proposed 
rule to implement Amendment 2 was published in the Federal Register on 
December 26, 1996, and comments were invited on the IRFA. No comments 
were received on the IRFA. Because the economic impacts are beneficial, 
no efforts have been made to mitigate these effects. A copy of this 
analysis is available from NMFS (see ADDRESSES).
    This final rule contains a collection-of-information requirement 
subject to the Paperwork Reduction Act. The collection of this 
information has been approved by the Office of Management and Budget, 
OMB Control Number 0648-0206. The new information

[[Page 17752]]

requirement includes an application for a moratorium permit and an 
application for transfer of a moratorium permit. Public reporting 
burden for these collections of information are estimated to be 0.33 
and 0.5 hours, respectively. 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).
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.

List of Subjects in 50 CFR Part 679

    Fisheries, Reporting and recordkeeping requirements.

    Dated: April 7, 1997.
Nancy Foster,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 679 is amended 
as follows:

PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

    1. The authority citation for part 679 continues to read as 
follows:

    Authority: 16 U.S.C. 1801 et seq., 773 et seq.

    2. In Sec. 679.2, the definitions of ``Legal landing'', ``Maximum 
LOA'' introductory text, ``Moratorium qualification'', ``Moratorium 
species'', and ``Qualifying period'' are revised to read as follows:


Sec. 679.2  Definitions.

* * * * *
    Legal landing (applicable through June 30, 2000) means any amount 
of a moratorium species that was or is landed in compliance with 
Federal and state commercial fishing regulations in effect at the time 
of the landing.
* * * * *
    Maximum LOA (applicable through December 31, 1998), with respect to 
a vessel's eligibility for a groundfish or crab moratorium permit, 
means:
* * * * *
    Moratorium qualification (applicable through December 31, 1998) 
with respect to the groundfish and crab vessel moratorium program means 
a transferable prerequisite for a moratorium permit.
    Moratorium species means:
    (1) (Applicable through June 30, 2000) any scallop species.
    (2) (Applicable through December 31, 1998) any moratorium crab 
species or moratorium groundfish species.
* * * * *
    Qualifying period (applicable through December 31, 1998) with 
respect to the groundfish and crab vessel moratorium program means the 
period to qualify for the moratorium from January 1, 1988, through 
February 9, 1992.
* * * * *
    3. In Sec. 679.4, paragraph (c)(10)(i) is revised and a new 
paragraph (g) is added to read as follows:


Sec. 679.4  Permits.

* * * * *
    (c) * * *
    (10) Appeal--(i) Determination. The Chief, RAM Division, will issue 
an initial administrative determination to each applicant who is denied 
a moratorium permit by that official. An initial administrative 
determination may be appealed by the applicant in accordance with 
Sec. 679.43. The initial administrative determination will be the final 
agency action if a written appeal is not received by the Regional 
Administrator, within the period specified at Sec. 679.43.
* * * * *
    (g) Scallop moratorium permits (applicable through June 30, 2000)--
(1) General--(i) Applicability. Except as provided under paragraph 
(g)(2) of this section, any vessel used to take or retain any scallop 
species in Federal waters must have a valid scallop moratorium permit 
on board the vessel at all times when the vessel is engaged in fishing 
for scallops in Federal waters or has scallops taken from Federal 
waters retained on board. Any vessel used to take or retain scallops in 
Federal waters within Scallop Registration Area H must have a scallop 
moratorium permit endorsed for Registration Area H. Any vessel used to 
take or retain scallop species in Federal waters outside Registration 
Area H must have a scallop moratorium permit endorsed for Federal 
waters exclusive of Registration Area H.
    (ii) Applicable dates and duration. The requirement to carry a 
moratorium permit is applicable from July 1, 1997, through June 30, 
2000. A scallop moratorium permit is valid for the duration of the 
moratorium unless otherwise specified.
    (iii) Validity. A scallop moratorium permit issued under this 
paragraph is valid only if:
    (A) A person named on the moratorium permit is the owner or 
operator of the vessel on which the permit is used.
    (B) The vessel's LOA does not exceed the maximum LOA specified on 
the permit.
    (C) The permit has not been revoked or suspended under 15 CFR part 
904.
    (iv) Inspection. A scallop moratorium permit must be presented for 
inspection upon the request of any authorized officer.
    (2) Exemptions. A vessel that has an LOA of less than or equal to 
26 ft (7.9 m) in the GOA, and less than or equal to 32 ft (9.8 m) in 
the BSAI and that does not have dredge gear on board is exempt from the 
requirements of this paragraph (g) when fishing for scallops with dive 
gear.
    (3) Qualification criteria--(i) Qualifying period. To qualify for a 
moratorium permit, a vessel must have made a legal landing of scallops 
during 1991, 1992, or 1993, or during at least 4 separate years from 
1980 through 1990.
    (ii) Area endorsements. A scallop moratorium permit may contain an 
area endorsement for Federal waters within Registration Area H, for 
Federal waters outside Registration Area H, or for both areas.
    (A) Registration Area H. A scallop moratorium permit may be 
endorsed for fishing in Federal waters within Registration Area H if a 
qualifying vessel made a legal landing of scallops taken inside 
Registration Area H during the qualifying period defined at paragraph 
(g)(3)(i) of this section.
    (B) Waters outside Registration Area H. A scallop moratorium permit 
may be endorsed for fishing in Federal waters outside Registration Area 
H if the qualifying vessel made a legal landing of scallops taken in 
waters outside Registration Area H during the qualifying period defined 
at paragraph (g)(3)(i) of this section.
    (iii) Legal landings. Evidence of legal landings shall be limited 
to documentation of State or Federal catch reports that indicate the 
amount of scallops harvested, the registration area or location in 
which they were caught, the vessel used to catch them, and the date of 
harvesting, landing, or reporting.
    (4) Maximum LOA--(i) All scallop moratorium permits will specify a 
maximum LOA, which will be 1.2 times the LOA of the qualifying vessel 
on January 20, 1993, unless the qualifying vessel was under 
reconstruction on January 20, 1993.
    (ii) If a qualifying vessel was under reconstruction on January 20, 
1993, the

[[Page 17753]]

maximum LOA will be the LOA on the date reconstruction was completed.
    (5) Application for permit. A scallop moratorium permit will be 
issued to the person or successor in interest who was the owner of a 
qualifying vessel when it most recently made qualifying landings under 
paragraph (g)(3) of this section, if he/she submits to the Regional 
Administrator a complete scallop moratorium permit application that is 
subsequently approved. A complete application for a scallop moratorium 
permit must include the following information:
    (i) Name(s), signature(s), business address(es), and telephone and 
fax numbers of the person(s) who owned the vessel when the most recent 
qualifying landing of scallops occurred.
    (ii) Name of the qualifying vessel, state registration number of 
the vessel and the USCG number of the vessel, if any.
    (iii) Valid documentation of the vessel's basis for moratorium 
qualification, if requested by the Regional Administrator due to an 
absence of landings records for the vessel for the qualifying period.
    (iv) Reliable documentation of the vessel's qualifying LOA, if 
requested by the Regional Administrator, such as a vessel survey, 
builder's plan, state or Federal registration certificate, or other 
reliable and probative documents that clearly identify the vessel and 
its LOA and that are dated on or before January 20, 1993.
    (v) Name(s) and signature(s) of the person(s) who is/are the 
owner(s) of the vessel or the person(s) responsible for representing 
the vessel owner.
    (vi) If the qualifying vessel was under reconstruction on January 
20, 1993, the permit application must contain the following additional 
information:
    (A) A legible copy of written contracts or written agreements with 
the firm that performed reconstruction of the vessel and that relate to 
that reconstruction.
    (B) An affidavit signed by the vessel owner(s) and the owner/
manager of the firm that performed the reconstruction specifying the 
beginning and ending dates of the reconstruction.
    (C) An affidavit signed by the vessel owner(s) specifying the LOA 
of the reconstructed vessel.
    (6) Vessel ownership. Evidence of vessel ownership shall be limited 
to the following documents, in order of priority:
    (i) For vessels required to be documented under the laws of the 
United States, the USCG abstract of title issued in respect to that 
vessel.
    (ii) A certificate of registration that is determinative as to 
vessel ownership.
    (iii) A bill of sale.
    (7) Permit transfer--(i) Applicability. A moratorium permit 
transfer is required to effect any change in permit ownership including 
the addition or subtraction of partners. Area endorsements may not be 
transferred independently of a moratorium permit.
    (ii) Required information. A complete application for approval of 
transfer of a scallop moratorium permit must include the following:
    (A) The original moratorium permit to be transferred.
    (B) Name(s), business address(es), and telephone and fax numbers of 
the applicant(s) including the holders of the scallop moratorium permit 
that is to be transferred and the person(s) who is to receive the 
transferred scallop moratorium permit.
    (C) Name(s) and signature(s) of the person(s) from whom the 
moratorium permit would be transferred or their representative, and the 
person(s) who would receive the transferred moratorium permit or their 
representative.
    (D) A legible copy of a contract or agreement to transfer the 
moratorium permit in question must be included with the application for 
transfer that specifies the person(s) from whom the scallop moratorium 
permit is to be transferred, the date of the transfer agreement, 
name(s) and signature(s) of the current holder(s) of the permit, and 
name(s) and signature(s) of person(s) to whom the scallop moratorium 
permit is to be transferred.
    (8) Appeal--(i) Determination. The Chief, RAM Division, will issue 
an initial administrative determination to an applicant upon denial of 
a scallop moratorium permit by that official. An initial administrative 
determination may be appealed by the applicant in accordance with 
Sec. 679.43. The initial administrative determination will be the final 
agency action if a written appeal is not received by the Regional 
Administrator postmarked within the period specified at Sec. 679.43.
    (ii) Permit denial. An initial administrative determination that 
denies an application for a scallop moratorium permit may authorize the 
affected person to take or retain scallops. Any administrative 
determination that authorizes fishing will expire on the effective date 
of the final agency action relating to the application.
    (iii) Final action. An administrative determination denying the 
issuance of a scallop moratorium permit is the final agency action for 
purposes of judicial review.
    (9) Harvesting privilege. Scallop moratorium permits issued 
pursuant to this part do not represent an interest that is subject to 
the ``takings'' provision of the 5th Amendment to the U.S. 
Constitution. Rather, such permits represent only a harvesting 
privilege that may be revoked or amended subject to the requirements of 
the Magnuson-Stevens Act and other applicable laws.
    4. In Sec. 679.43, paragraph (a) is revised to read as follows:


Sec. 679.43  Determinations and appeals.

    (a) General. This section describes the procedure for appealing 
initial administrative determinations made under this subpart as well 
as Sec. 679.4(c), Sec. 679.4(g), and portions of subpart C of this part 
that apply to the halibut and sablefish CDQ program.
* * * * *
[FR Doc. 97-9433 Filed 4-10-97; 8:45 am]
BILLING CODE 3510-22-F