[Federal Register Volume 60, Number 86 (Thursday, May 4, 1995)]
[Rules and Regulations]
[Pages 21994-21998]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10942]



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DEPARTMENT OF COMMERCE
50 CFR Part 649

[Docket No. 950224059-5114-02; I.D. 011195C]
RIN 0648-AH36


American Lobster Fishery; Framework Adjustments 2 and 3

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
[[Page 21995]] Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS implements measures contained in Framework Adjustments 2 
and 3 to the American Lobster Fishery Management Plan (FMP). These 
framework adjustments change the eligibility requirements for lobster 
limited access permits to address potentially unequal standards for 
lobster harvesters who reside in different states. Framework Adjustment 
3 also authorizes NMFS to issue a letter of authorization to the owners 
of some vessels, in order to allow them to continue to fish for lobster 
while pursuing an appeal of the denial of a Federal limited access 
permit.

EFFECTIVE DATE: May 1, 1995.

ADDRESSES: Copies of Framework Adjustments 2 and 3, Amendment 5 to the 
FMP, its regulatory impact review, initial regulatory flexibility 
analysis, and final supplemental environmental impact statement (FSEIS) 
are available from Douglas Marshall, Executive Director, New England 
Fishery Management Council, 5 Broadway, Saugus, MA 01906-1097.

FOR FURTHER INFORMATION CONTACT: Paul H. Jones, Fishery Policy Analyst, 
508-281-9273.

SUPPLEMENTARY INFORMATION:

Background

    Eligibility for a Federal American lobster limited access permit 
can be established with a vessel's or a person's state permit history 
(59 FR 31938, June 21, 1994). Because the various states have not had 
uniform permitting systems, potentially unequal eligibility criteria 
were inadvertently created for lobster harvesters who reside in 
different states. These framework actions are implemented to remedy 
that inequity. This rule also implements a measure contained in 
Framework Adjustment 3 to prevent harm to active fishery participants 
by allowing them to continue fishing while they are appealing the 
denial of a limited access permit.

Framework Adjustment 2

    Prior to this action, to qualify for a limited access American 
lobster permit, which may be issued only to a vessel, the vessel or 
vessel owner must have been issued a Federal American lobster permit, 
or a federally endorsed state lobster permit, and must have landed 
American lobster prior to March 25, 1991. This requirement resulted in 
potentially unequal eligibility criteria for lobster harvesters 
residing or fishing in different states. Framework Adjustment 2 
remedies this by requiring all permit applicants who base their 
eligibility on a federally endorsed state license to demonstrate that 
they owned a boat and used it to land lobsters during the qualification 
period. These applicants will be required to show proof of ownership of 
a fishing vessel and of having landed lobsters from that vessel prior 
to March 25, 1991.
    Sections of the current regulations dealing with transferability of 
permit eligibility were previously written from the perspective of 
Federal permits issued to vessels. As a result, the regulations were 
not directly applicable to the transfer of eligibility based on 
federally endorsed state lobster permits that are issued to 
individuals. To be consistent with the transferability of eligibility 
associated with federally permitted vessels, this rule includes 
regulatory language at Sec. 649.4(b)(1)(i)(B)(2) and (b)(3)(ii) to 
clarify that eligibility based on a federally endorsed state lobster 
permit can be transferred with the sale of a vessel after March 25, 
1991, if the intent to transfer such rights is verified by credible 
written evidence.
    Because this rule changes the qualification criteria for obtaining 
a limited access American lobster permit for 1995, it also changes the 
dates by which vessel owners are required to obtain permits. This rule 
also makes several minor modifications to Sec. 649.4 (p) and (q) to 
ease the public's administrative burden and to conform the requirement 
to the Council's recommendation.
    The New England Fishery Management Council (Council) followed the 
framework procedure codified in 50 CFR part 649, subpart C, when making 
adjustments to the FMP, by developing and analyzing the actions at two 
Council meetings, on September 21-22 and October 28-29, 1994. In 
accordance with the regulations, public comments on the framework 
adjustment were solicited during these Council meetings. No comments 
were received. However, because this action was initiated at the first 
of these meetings without adequate notice to the public, the Council 
recommended that NMFS publish the measures contained in Framework 
Adjustment 2 as a proposed rule to ensure that the public was afforded 
sufficient prior notice and an opportunity for comment. The proposed 
rule was published on March 16, 1995 (60 FR 14261) and the comment 
period ended on March 30, 1995. No comments were received.
    This adjustment is being made through the framework process 
(Sec. 649.44) and is within the scope of analyses contained in 
Amendment 5 and the FSEIS. Supplemental rationale and analyses of 
expected biological effects, economic impacts, impacts on employment, 
and safety concerns are contained within the supporting documents for 
Framework Adjustment 2 (see ADDRESSES).

Changes From the Proposed Rule

    After the development of Framework Adjustment 2, additional 
concerns were raised to the attention of the Council concerning 
inequities resulting from differences among the states in the handling 
of federally endorsed state permits. Framework Adjustment 3 was 
developed to address these and other issues. Both Framework Adjustments 
2 and 3 deal with aspects of applicant eligibility for limited access 
permits. These Frameworks are published together in order to present 
the revisions to the regulations in the clearest manner possible. In 
the interests of clarity, this presentation has resulted in some 
changes in the final text when compared to the text published in the 
proposed rule for Framework Adjustment 2. The changes are listed below.
    Paragraph (b)(1)(i)(B)(3) is added to implement the action adopted 
by the Council in Measure 2 of Framework Adjustment 3.
    Paragraph (b)(1)(i)(B)(4) is added to implement the action adopted 
by the Council in Measure 1 of Framework Adjustment 3.
    Paragraph (b)(1)(i)(C) is revised to clarify the relation of the 
permit eligibility criteria for vessels that were under construction or 
re-rigging to the measures contained in Framework Adjustment 3.
    Paragraph (b)(1)(iii) is deleted, because NMFS is reexamining the 
scheduling of permit renewals.
    A new paragraph (b)(2)(iii) was proposed to clarify the application 
deadline for permit renewal in 1996. This paragraph was not included in 
this final rule, because the issue of permit renewal is under 
reexamination by NMFS.
    Paragraph (b)(5)(vi) is added to implement Measure 4 of Framework 
Adjustment 3.

Framework Adjustment 3

Approved Measures
    Framework Adjustment 3 revises the permit qualification criteria to 
clarify eligibility criteria for: (1) Applicants who leased federally 
endorsed state permits, (2) applicants who owned vessels that fished 
for lobster under a federally endorsed state permit issued to 
[[Page 21996]] the operator, and (3) applicants who seek a transfer of 
permit eligibility as a result of inheritance. Framework Adjustment 3 
also establishes a fourth measure, which will allow the owner of a 
vessel that is denied a Federal limited access lobster permit to 
continue to fish for lobster while pursuing an appeal of the denial 
under Sec. 649.4(b)(5) if the vessel was issued a Federal or federally 
endorsed state permit for the lobster fishery in 1994.
    Measure 1 addresses the issue of permit eligibility in the case of 
harvesters who leased federally endorsed state lobster permits. The 
Council and NMFS have concurred that this measure is required in order 
to apply the eligibility criteria equitably to these applicants. The 
measure entitles the applicant to the fishing right associated with the 
exercise of the permit, despite the fact that the permit was held 
through a lease arrangement. This criteria applies only to applicants 
who have met all other eligibility requirements.
    Measure 2 addresses the issue of permit eligibility for vessels 
that operated legally under federally endorsed state lobster permits 
issued to the vessel captain. If such vessels meet all other 
eligibility criteria, the Council believes and NMFS concurs that they 
should be eligible for the limited access lobster permit because the 
vessel was operated legally under the existing laws. Permit eligibility 
for a limited access permit is conferred on the owner of the vessel 
rather than the vessel captain because the captain who is not the 
vessel owner cannot satisfy the vessel ownership requirement. This 
policy is consistent with the Council's policy for limited access 
permit eligibility for the Northeast multispecies and Atlantic sea 
scallop fisheries.
    Measure 3 was intended by the Council to clarify that the rules 
relating to permit transfers apply to inheritance of limited access 
permits. NMFS determined that the existing language specified in 
Sec. 649.4(b)(3) would apply to transfers through inheritance in a 
manner consistent with Council intent and that additional regulatory 
language is not necessary.
    Measure 4 allows some applicants to continue to harvest lobsters if 
they have appealed the denial of their application for the 1995 limited 
access permit. This action is intended to prevent needless harm to 
current participants in the fishery. Based on the determination that 
vessels with a current economic dependence upon the EEZ lobster fishery 
would have obtained permits in 1994, this provision is restricted to 
vessels that were issued a 1994 Federal or federally endorsed state 
lobster permit.
Disapproved Measure
    Framework Adjustment 3 included one measure that was disapproved by 
the Director, Northeast Region, NMFS (Regional Director). The proposed 
measure would have allowed vessel owners who could show that their 
vessel landed lobster from the EEZ before the control date, to qualify 
for a limited access permit, despite never having had a permit to fish 
in the EEZ. This measure was disapproved because, in part, there is no 
apparent justification for such an exception in the lobster limited 
access fishery given that this exemption was not included in the 
recently implemented amendments establishing limited access programs in 
the Northeast Multispecies and Atlantic Sea Scallop FMPs. Without 
justification, NMFS would not implement a measure inconsistent with 
other similar fishery regulations. In addition, the measure would 
undermine the perceived importance and the effective enforcement of 
Federal permitting requirements by appearing to grant a benefit to 
harvesters who acknowledge that they fished illegally in Federal 
waters. Moreover, given the indefiniteness of the proposed logbook 
criterion for establishing an applicant's participation in the Federal 
lobster fishery, it would be very difficult, if not impossible, to 
administer this measure consistently, fairly, and equitably, and it is 
likely that the measure would invite fraud and abuse.
    The Council followed the framework procedure codified in 50 CFR 
part 649, subpart C, when making adjustments to the FMP, by notifying 
the public of the proposed actions and providing opportunities for 
comment at two Council meetings, on February 16 and March 30, 1995. Ten 
members of the industry made comments at these meetings. Most 
commenters supported the proposed measures. However, there were two 
commenters who opposed the proposal that would have allowed vessel 
owners who could show that their vessel landed lobster from the 
exclusive economic zone (EEZ) before the control date to qualify for a 
limited access permit, despite never having had a permit to fish in the 
EEZ.
    This adjustment is being made through the framework process 
(Sec. 649.44) and is within the scope of analyses contained in 
Amendment 5 and the FSEIS. Supplemental rationale and analyses of 
expected biological effects, economic impacts, impacts on employment, 
and safety concerns are contained within the supporting documents for 
Framework Adjustment 3 (see ADDRESSES).
    There are four factors that the Council and NMFS are required to 
consider in order to publish a framework adjustment as a final rule: 
(1) Whether the availability of data allows for adequate time to 
publish the action as a proposed rule, (2) whether there has been 
adequate notice and opportunity for public participation in the 
development of the measures, (3) whether there is an immediate need to 
protect the resource, and (4) whether there will be a continuing 
evaluation of management measures adopted following publication of the 
final rule.
    The Council recommended publication of these measures as a final 
rule, rather than as a proposed rule, in order to minimize disruption 
in the fishery and clarify the administrative requirements associated 
with the limited access permit requirement. Implementation of these 
measures is not dependent upon data availability. The Council 
determined, and NMFS agrees, that adequate notice and opportunity for 
public participation was provided in the development of the measures. 
The measures in Framework Adjustment 3 are necessary to administer 
effectively the management measures contained in the FMP, which was 
developed in response to the need to protect the resource. The Council 
will be carrying out continuing evaluation of the management measures 
adopted under this action.

Comments and Responses--Framework Adjustment 3

    Comment--Measure 1: An applicant who is a vessel owner who only 
leased a federally endorsed permit did not actually have a Federal 
permit and therefore should not qualify for a limited access lobster 
permit.
    Response: The person who owned and operated the boat and leased the 
legal rights associated with the permit should be eligible for the 
limited access permit as a result of exercising the permit because that 
person legally operated the vessel with authority to fish in the EEZ.
    Comment--Measure 2: The operator and not the owner should be 
eligible for a Federal limited access lobster permit.
    Response: Fishing operations are permitted directly under the 
Federal permit system. The Council's intent is to base eligibility for 
limited access lobster permits on whether the vessel qualifies, not the 
operator. This measure attempts to make eligibility criteria based on 
federally endorsed state permits operate in an identical way. Moreover, 
to allow operators to qualify independently [[Page 21997]] would 
potentially result in significantly more limited access lobster permits 
being issued than the number of vessels participating in the Federal 
lobster fishery at the time of the control date.
    Comment--Measure 4: This provision discriminates between applicants 
with a recent history in the fishery and those who participated further 
in the past.
    Response: The opportunity to fish while appealing a permit denial 
is restricted to 1994 permit holders to avoid allowing a potentially 
unlimited group of non-bona fide applicants from using the appeals 
process to gain temporary access to the fishery. Based on the 
determination that vessels with a current economic dependence upon the 
EEZ lobster fishery would have obtained permits in 1994 and are more 
likely to be disadvantaged if not allowed to fish, this provision 
applies only to vessels that were issued a 1994 Federal or federally 
endorsed state lobster permit.
    Comment--Disapproved Measure: Several commenters supported this 
measure. They either thought they had federally endorsed state permits 
and were fishing illegally in the EEZ or were unaware of the 
requirement. Without this measure, these commenters would be ineligible 
for the limited access permit.
    Response: Though sympathetic with the commenter's dilemma, NMFS has 
disapproved this measure for the reasons stated above.
    Comment--Disapproved Measure: This provision unfairly qualifies 
people who should not qualify for a limited access permit. The permit 
applicant should have obtained a Federal lobster permit for a vessel 
that fished in the EEZ and therefore should not be granted a limited 
access permit.
    Response: NMFS agrees that persons who did not have a Federal 
lobster permit at the time of the control date should not be eligible 
for a limited access permit and has disapproved the measure.
    Comment--Disapproved Measure: This provision would let too many 
additional entrants into the EEZ lobster fishery and undermine the 
stock rebuilding program.
    Response: If the measure had been found to address inequities in 
the application of the criteria used to determine limited access permit 
eligibility, it would not have mattered how many additional entrants 
would result because the issue would have been one of equity. However, 
NMFS has disapproved the measure, because it is inconsistent with other 
similar fishery regulations, and it undermines the perceived importance 
and effective enforcement of Federal permitting requirements.

Classification

    The Assistant Administrator for Fisheries, NOAA, finds there is 
good cause to waive the requirements to provide prior notice and an 
opportunity for public comment concerning Framework Adjustment 3 under 
5 U.S.C. 553(b)(B). Two public meetings held by the Council to discuss 
the management measures implemented by this framework measure provided 
adequate prior notice and an opportunity for public comment to be 
considered. Furthermore, NMFS has responded to comments received from 
the public during those meetings on this rule. Thus, additional 
opportunity for public comment is unnecessary.
    The 30-day delay in effectiveness of these measures required by the 
APA is waived under 5 U.S.C. 553(d)(1), because this rule relieves 
restrictions on the eligibility for a lobster permit.

List of Subjects in 50 CFR Part 649

    Fisheries.

    Dated: April 28, 1995.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 649 is amended 
as follows:

PART 649--AMERICAN LOBSTER FISHERY

    1. The authority citation for part 649 continues to read as 
follows:

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

    2. In Sec. 649.4, the first sentence of paragraph (a)(1), the first 
sentence of paragraph (b) introductory text, and paragraphs (b)(1)(i), 
(b)(2)(i), (b)(3), (p), and (q) are revised; and paragraph (b)(5)(vi) 
is added to read as follows:


Sec. 649.4  Vessel permits.

    (a) * * *
    (1) Through April 30, 1995, any vessel of the United States fishing 
for American lobster in the EEZ must have been issued and carry on 
board a valid permit required by or issued under this part. * * *
    (b) * * * From May 1, 1995, through December 31, 1999, any vessel 
of the United States that fishes for, possesses, or lands American 
lobster in or harvested from the EEZ must have been issued and carry on 
board a valid Federal limited access American lobster permit. * * *
    (1) * * *
    (i) To be eligible for a limited access permit for 1995, a vessel 
or the permit applicant must meet one of the following criteria:
    (A) The vessel was issued a Federal American lobster permit and 
landed American lobster prior to March 25, 1991, while in possession of 
the lobster permit.
    (B) To qualify for the limited access permit based on a federally 
endorsed state permit history, one of the following criteria must be 
met:
    (1) The permit applicant was issued a federally endorsed state 
American lobster permit, and landed American lobster prior to March 25, 
1991, and owned a vessel that landed American lobster prior to March 
25, 1991, while in possession of the lobster permit; or
    (2) The vessel was owned by a person who landed lobster prior to 
March 25, 1991, while in possession of a valid federally endorsed state 
American lobster permit, and the vessel was transferred to the current 
vessel owner in accordance with the exception to the presumption 
specified in paragraph (b)(3)(ii) of this section; or
    (3) The permit applicant owned a vessel that landed American 
lobster prior to March 25, 1991, while under the operation of an 
individual with a valid federally endorsed state lobster permit; or
    (4) The permit applicant owned a vessel that landed American 
lobster prior to March 25, 1991, while the applicant held a valid 
signed written lease, recognized and authorized by the issuing state, 
granting the rights to a federally endorsed state lobster permit.
    (C) The permit applicant owned a vessel that was under written 
agreement for construction or for rerigging for directed American 
lobster fishing as of March 25, 1991, and the applicant meets one of 
the eligibility criteria set forth in paragraphs (b)(1)(i)(A) or (B) of 
this section. For the purposes of paragraph (b)(1)(i)(C) all references 
to March 25, 1991, in paragraph (b)(1)(i)(A) or (B) of this section 
should be March 25, 1992.
    (D) The vessel is replacing a vessel that meets the criteria set 
forth in paragraph (b)(1)(i)(A), (B), or (C) of this section.
* * * * *
    (2) * * *
    (i) To be eligible to renew or apply for a limited access lobster 
permit after 1995, a vessel or permit applicant must have been issued 
either a limited access lobster permit or a confirmation of permit 
history for the preceding year, or a vessel must be replacing a valid 
limited access American lobster permit or permit history confirmation 
from the preceding year. If more than one applicant claims eligibility 
to apply for [[Page 21998]] a limited access American lobster permit 
based on one fishing and permit history, the Regional Director shall 
determine who is entitled to qualify for the limited access permit or 
permit history confirmation.
* * * * *
    (3) Change in ownership. (i) The fishing and permit history of a 
vessel that qualifies based on issuance of a Federal lobster permit 
under paragraphs (b)(1)(i)(A) and (C) of this section is presumed to 
transfer with the vessel whenever it is bought, sold or otherwise 
transferred, unless there is a written agreement, signed by the 
transferor/seller and transferee/buyer, or other credible written 
evidence, verifying that the transferor/seller is retaining the vessel 
fishing and permit history for purposes of replacing the vessel.
    (ii) The fishing and permit history of a vessel owner and a vessel 
that qualifies based on issuance of a federally endorsed state lobster 
permit under paragraphs (b)(1)(i)(B) and (C) of this section is 
presumed to remain with such owner for any transfers of the vessel 
before and including March 25, 1991; and for any transfers of ownership 
of the vessel after March 25, 1991, the fishing and permit history 
necessary to qualify for a limited access lobster permit under 
paragraphs (b)(1)(i)(B) and (C) of this section is presumed to remain 
with the last owner of the vessel as of or prior to March 25, 1991, 
unless there is a written agreement, signed by the transferor/seller 
and transferee/buyer, or other credible written evidence, verifying 
that the transferor/seller is transferring the fishing and permit 
history of a vessel necessary to qualify for a limited access lobster 
permit under paragraph (b)(1)(i)(B) or (C) of this section to the 
transferee/buyer.
* * * * *
    (5) * * *
    (vi) Fishing during appeal. A vessel for which an appeal has been 
initiated and that was issued a 1994 Federal or federally endorsed 
state lobster permit, may fish for American lobster in the EEZ if the 
appeal is pending and the vessel has on board an authorizing letter 
from the Regional Director. If the appeal is finally denied, the 
Regional Director shall send a notice of final denial to the vessel 
owner; the authorizing letter becomes invalid 5 days after receipt of 
the notice of denial.
* * * * *
    (p) Limited access American lobster permit renewal. To renew a 
limited access permit in 1996 and thereafter, a completed application 
must be received by the Regional Director by December 31 of the year in 
which the permit is required. Failure to renew a limited access 
American lobster permit or confirmation of permit history in any year 
prevents the renewal of such in subsequent years.
    (q) Abandonment or voluntary relinquishment of limited access 
American lobster permits. If a vessel's limited access American lobster 
permit or confirmation of permit history is voluntarily relinquished to 
the Regional Director, or abandoned through failure to renew or 
otherwise, no limited access American lobster permit or confirmation of 
permit history may be reissued or renewed based on that vessel's 
history.
[FR Doc. 95-10942 Filed 5-1-95; 10:53 am]
BILLING CODE 3510-22-F