Federal Register / Vol. 60, No. 92 / Friday, May 12, 1995 / Proposed Rules 25677

50 CFR Parts 671, 672, 675, and 676

[Docket No. 950508130–5130–01; I.D.

050195A]

RIN 0648–AH62

Limited Access Management of

Federal Fisheries In and Off Alaska;

Groundfish and Crab Fisheries

Moratorium

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Proposed rule; request for

comments.

SUMMARY: NMFS proposes a temporary

moratorium on the entry of new vessels

into the groundfish and crab fisheries

under Federal jurisdiction in the Bering

Sea and Aleutian Islands (BSAI) area,

and the groundfish fisheries under

Federal jurisdiction in the Gulf of

Alaska (GOA). This action is proposed

by the North Pacific Fishery

Management Council (Council) to

curtail increases in fishing capacity and

provide industry stability while the

Council and NMFS prepare, review,

and, if approved, implement a

comprehensive management plan for

these fisheries. This action is intended

to promote the conservation and

management objectives of the Council

and the Magnuson Fishery Conservation

and Management Act (Magnuson Act).

DATES: Comments must be received at

the following address by June 1, 1995.

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 the proposed Fishery Management

Plan (FMP) amendments 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: Jay

Ginter, 907–586–7228.

SUPPLEMENTARY INFORMATION:

Background

Domestic groundfish fisheries in the

exclusive economic zone (EEZ) of the

GOA and the BSAI are managed by

NMFS under the GOA and BSAI

groundfish FMPs. The commercial

harvest of king and Tanner crabs is

managed under the Fishery

Management Plan 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 primarily by regulations at

50 CFR part 672. The FMP for the BSAI

groundfish fisheries is implemented

primarily by regulations at 50 CFR part

675. 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. Other Federal regulations that

also affect the groundfish and crab

fisheries are set out at 50 CFR parts 620,

676, and 677.

This action would implement

proposed revisions of Amendment 23 to

the Fishery Management Plan for the

Groundfish Fishery of the Bering Sea

and Aleutian Islands Area, Amendment

28 to the Fishery Management Plan for

the Groundfish of the Gulf of Alaska,

and Amendment 4 to the Fishery

Management Plan for the Commercial

King and Tanner Crab Fisheries in the

Bering Sea and Aleutian Islands Area.

These revisions would establish

temporary entry controls until more

formal controls on harvesting capacity

can be implemented. The Council has

been aware of the fishery management

problems caused by excess harvesting

capacity or over-capitalization since the

late 1970’s. The Council first

recommended a moratorium on new

entry into the Alaska halibut fishery in

1983. This proposal was disapproved by

NMFS because it would not have

resolved the basic problem of

overcapitalization in the halibut fishery.

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 established

its Future of Groundfish Committee in

1987, which examined management

problems in the groundfish, crab, and

halibut fisheries off Alaska. The

Committee 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.

The Council, concerned that

overcapitalization may be exacerbated

by speculative entry into the fisheries

during its discussion of limited access

alternatives, requested NMFS to publish

a control date notice. This notice,

announcing a control date of September

15, 1990, was published in the Federal

Register on September 5, 1990 (55 FR

36302) and corrected on September 13,

1990 (55 FR 37729). The notice (a)

informed the public of the Council’s

intention to develop measures to limit

access, and (b) established the 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 also 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

in September 1991 to change the final

‘‘due consideration’’ date to February 9,

1992.

Since 1990, the Council has

contended with difficult public policy

issues related to overcapitalization and

its attendant resource allocations.

Although the Council continues to

develop a comprehensive

rationalization plan (CRP) to resolve

most of these problems, transition from

an open access management system to a

limited access, market-based, allocation

system for public fishery resources is

difficult and time consuming. For

example, the Council began work on a

limited access system for the sablefish

(and later halibut) longline fisheries in

1987. The Council proposed an

individual fishing quota (IFQ) program

for these fisheries in 1991. NMFS

approved the IFQ program in 1993 and

fishing under the program began in

1995. For other groundfish and crab

fisheries, the Council has proposed the

moratorium as a temporary measure to

slow significant increases in the

harvesting capacity of the groundfish

and crab fishing fleets until a CRP can

be implemented.

This proposed moratorium is not

expected to resolve the problem of

excess harvesting capacity in the

groundfish and BSAI crab fisheries. This

proposed moratorium would stop the

entry of a potentially unlimited number

of vessels into these fisheries that would

exacerbate overcapitalization problems

and confound the ultimate development

and approval of a CRP. As an interim

management measure, this proposed

moratorium would provide temporary

industry stability by freezing the

number of vessels allowed to participate

in the affected fisheries and limiting

increases in fishing capacity. This could
25678 Federal Register / Vol. 60, No. 92 / Friday, May 12, 1995 / Proposed Rules

have a limited effect of increasing

economic benefits to fishermen and

reducing the risk of overfishing.

The Council originally proposed the

moratorium at its meeting in June 1992.

In August 1992, and in January 1993,

the Council clarified its moratorium

proposal. The Council prepared an EA/

RIR/IRFA for the proposal dated April

28, 1994, and NMFS’ review of the

proposal was initiated on May 3, 1994.

A notice of availability of the proposed

FMP amendments and corresponding

analysis was published in the Federal

Register on May 12, 1994 (59 FR 24679),

which started a 60-day public comment

period on these documents. A

concurrent 45-day public comment

period on proposed implementing rules

for the moratorium began on May 31,

1994 (59 FR 28827, June 3, 1994).

The Council’s original moratorium

proposal was disapproved by NMFS on

August 5, 1994 (59 FR 43534, August

24, 1994). In a letter to the Council

chairman on that date, the Director,

Alaska Region, NMFS (Regional

Director), stated that the principal

reasons for the disapproval were that

certain provisions of the moratorium

would have allowed significantly more

vessels to qualify for a moratorium

permit than participate on average in

any year, thereby undermining the

expressed purpose of the moratorium.

The provisions were inconsistent with

several national standards of the

Magnuson Act and other applicable law.

Specifically, the inconsistent provisions

were:

a. The proposed qualifying period of

January 1, 1980, through February 9,

1992, would have allowed about 13,500

vessels to qualify to participate in the

fisheries under the moratorium when

approximately 2,500 vessels was the

annually permitted fleet size in the

groundfish and BSAI crab fisheries in

recent years;

b. The crossover provision, which

would have allowed a vessel to cross

over from one moratorium fishery into

another moratorium fishery in which it

had no previous qualifying history

while denying entry to a vessel

currently active in one of the fisheries.

The crossover provision would have

exacerbated overcapacity problems;

c. The Council had not adequately

considered present participation and

other factors required to be considered

in developing a limited access system

by the Magnuson Act; and

d. An appeals process for the

moratorium, which was redundant

because a similar limited access appeals

process was already established for the

IFQ program.

Section 304(b)(3) of the Magnuson Act

provides the Council an opportunity to

revise the disapproved moratorium FMP

amendment and submit a revised

proposal for expedited review by NMFS.

The Council decided to take this action

at its September and December 1994

meetings. NMFS has not yet made a

final determination whether the revised

moratorium FMP amendments are

consistent with the national standards,

other provisions of the Magnuson Act,

and other applicable law. A brief

description of the Council’s September

and December revisions follows.

The Council revised its original

moratorium proposal at its meeting in

September 1994, by:

1. Changing the qualifying period to

January 1, 1988, through February 9,

1992;

2. Substituting the appeals procedure

developed for the halibut and sablefish

IFQ program for a special moratorium

appeals process; and

3. Removing the halibut and sablefish

longline fisheries from the moratorium.

The Council prepared a supplement

to the analysis for the original

moratorium proposal assessing the

effects of the Council’s proposed

revisions. The supplemental analysis,

dated February 13, 1995, indicates that

the Council’s September 1994 revisions

to the proposed moratorium would

substantially reduce the potential

moratorium fleet from 13,350 vessels to

4,144 vessels. The analysis estimates the

revised fleet size to be about 180 percent

of the average number of vessels that

operated each year 1988 through 1991

in the groundfish and crab fisheries.

This change in the qualifying period

also gave greater weight to a vessel that

participated in these fisheries in those

years as opposed to a vessel that may

have participated before 1988 but not in

later years 1988 through February 9,

1992. A demonstration of recent

participation generally indicates a

vessel’s greater dependence on a fishery

than a vessel that has not participated

in recent years. The Council decided not

to extend the qualifying period from

February 9, 1992, through mid-June

1994. The Council believed its control

date notice of 1990 and its original

action on a proposed moratorium in

1992 adequately alerted fishermen about

the risks of entering a vessel in these

fisheries for the first time. The analysis

indicates that not extending the

qualifying date through mid-June 1994

eliminated 494 vessels that entered the

fisheries during the period between the

cutoff date of February 9, 1992, and

mid-June 1994. About 3,600 additional

vessels were eliminated from the

potential moratorium fleet by removing

those that fished only for halibut and

sablefish with longline gear. These

vessels could continue to operate in

these longline fisheries under the IFQ

program if their owners/operators hold

a valid IFQ permit. A landing of only

halibut or sablefish caught with longline

gear during the qualifying period would

not be considered a groundfish landing

to qualify a vessel for the proposed

moratorium.

In September 1994, the Council

decided not to change the crossover

provision. The Council reasoned that its

intent was to create a single moratorium

for groundfish and BSAI crab fisheries

within which qualified vessels would be

free to move among fisheries as they

have done under the open access

management system. The flexibility the

crossover provision gave to vessels in

one or more of these fisheries was

considered by the Council to be a

critically important part of its

moratorium proposal.

In December 1994, NMFS informed

the Council that the crossover provision

could continue to be an impediment to

approval of the revised moratorium

proposal. The Regional Director

suggested a way to overcome this

problem by providing for limited

crossovers based on certain criteria. The

Council approved this change to the

crossover provision on December 11,

1994.

The revised moratorium proposal

would allow a moratorium-qualified

vessel to cross over between one

moratorium fishery (e.g., BSAI crab

fishery) and another moratorium fishery

(e.g., the groundfish fishery, or vice

versa) during the moratorium if:

i. The vessel had made a legal landing

in both fisheries during the qualifying

period; or

ii. The vessel uses the same type of

fishing gear in the second fishery that it

used in the first fishery to qualify for the

moratorium; or

iii. The vessel qualified for the

moratorium in one fishery and, during

the period February 9, 1992, through

December 11, 1994, made a legal

landing in the other moratorium fishery

and uses the same type of fishing gear

it used during that period.

The following paragraphs describe

how NMFS would implement this

limited crossover provision and provide

a general description of the proposed

moratorium program.

Proposed Vessel Moratorium Program

The proposed moratorium program, if

approved, would limit access to the

groundfish and BSAI crab resources off

Alaska to a vessel that has been issued

a moratorium permit by NMFS. A
Federal Register / Vol. 60, No. 92 / Friday, May 12, 1995 / Proposed Rules 25679

moratorium permit would be required

in addition to any other permit or

license required by Federal or state

regulations unless those requirements

are specifically waived. NMFS is

considering alternatives that would

simplify the permit application and

issuance process, including a unified

Federal permitting system for

groundfish and crab.

1. Vessels Affected by the Proposed

Moratorium

The proposed moratorium would

require a moratorium permit for a vessel

that catches and retains any species of

king and Tanner crabs whose

commercial fishing is governed by the

Fishery Management Plan for the

Commercial King and Tanner Crab

Fisheries in the Bering Sea and Aleutian

Islands Area and its implementing

regulations at 50 CFR part 671

(‘‘moratorium crab species’’). A

moratorium permit also would be

required of a vessel that conducts

directed fishing for any groundfish

species whose commercial fishing is

governed by the Fishery Management

Plan for the Groundfish Fishery of the

Bering Sea and Aleutian Islands Area,

and the Fishery Management Plan for

Groundfish of the Gulf of Alaska and

their respective implementing

regulations at 50 CFR parts 672 and 675

(‘‘moratorium groundfish species’’).

Moratorium crab species and

moratorium groundfish species are

collectively referred to as ‘‘moratorium

species.’’ A vessel that catches and

retains moratorium crab species and is

issued a moratorium permit would be

required to have any Federal or state

permits specified in the applicable

regulations. However, a vessel that

conducts directed fishing for any

moratorium groundfish species and is

issued a moratorium permit would not

be required to have a Federal groundfish

permit.

A vessel ‘‘directed fishing’’ or

targeting on groundfish species would

be required to have a moratorium

permit, unless the vessel is exempted, as

described below. The term ‘‘directed

fishing’’ is defined in the groundfish

FMPs’ implementing regulations at 50

CFR parts 672 and 675. Basically, this

term establishes criteria by which

NMFS may determine which species of

groundfish a vessel has been targeting

when any fish are on board the vessel.

A vessel that takes only incidental

catches of moratorium groundfish

species in the EEZ would not be

required to have a moratorium permit;

however, it would be required to have

a Federal groundfish permit. A vessel

without a moratorium permit in the EEZ

would be required to discard any catch

of a moratorium groundfish species that

exceeds the maximum retainable

bycatch amount specified in the

directed fishing definition in parts 672

and 675. Crabs are prohibited species in

the groundfish fishery, which means

that any bycatch of crab must be

immediately returned to the sea.

The Council specifically exempted

certain vessels from the proposed

moratorium. Such vessels would not be

required to obtain moratorium permits.

The rationale for these exemptions was

provided in the proposed rule for the

original moratorium proposal (59 FR

28827, June 3, 1994). Other existing

Federal and state permit requirements

would continue to apply to exempted

vessels. A vessel within one of the

following categories would be exempt

from the moratorium and would not be

required to have a moratorium permit

(but may be required to have a Federal

groundfish permit):

• A vessel that is not used to catch

fish (e.g., processor vessel, tender, or

support vessel); or

• A vessel that does not catch and

retain moratorium crab species or that

does not conduct directed fishing for

moratorium groundfish species; or

• A vessel that catches and retains

moratorium crab species or that

conducts directed fishing for

moratorium groundfish species only

within state waters; or

• A vessel that conducts directed

fishing for moratorium groundfish

species in the GOA and that does not

exceed 26 ft (7.9 m) in length overall

(LOA) providing such vessel length is

not increased beyond this LOA limit; or

• A vessel that catches and retains

moratorium crab species or that

conducts directed fishing for

moratorium groundfish species in the

BSAI area and that does not exceed 32

ft (9.8 m) LOA providing such vessel

length is not increased beyond this LOA

limit; or

• A vessel that catches IFQ halibut or

IFQ sablefish or halibut or sablefish

under the Western Alaska Community

Development Quota (CDQ) program; or

• A vessel that, after the

implementation of the CDQ program for

pollock on November 18, 1992 (57 FR

54937, November 23, 1992) is

specifically constructed and used to

harvest pollock in accordance with a

Community Development Plan (CDP), is

specially designed and equipped to

meet specific needs that are described in

the CDP, and is no greater than 125 ft

(38.1 m) LOA.

2. Moratorium Permit Qualifications

Generally, a vessel would be qualified

to receive a moratorium permit, if it

made a legal landing of any moratorium

species during the qualifying period of

January 1, 1988, through February 9,

1992. The exceptions to this general rule

are described below.

A ‘‘legal landing’’ would be defined as

any amount of a moratorium species

that was landed in compliance with

Federal and state regulations in effect at

the time of the landing. The primary

effect of this definition would be to

limit landing claims to those that could

be verified through Federal and state

records of required landing reports. A

vessel owner who alleges that

government records are in error would

have to produce a copy of a valid state

fish ticket or other required report as

evidence of participation of the vessel in

a fishery for a moratorium species

during the qualifying period.

A vessel for which acceptable

evidence exists of a legal landing of a

moratorium species during the

qualifying period would be considered

by NMFS to have moratorium

qualification, except if that vessel is

exempt from the moratorium as

described above. For example, a vessel

that is less than or equal to 26 ft (7.9 m)

LOA and that made a legal landing of

moratorium species caught only in the

GOA would not have moratorium

qualification. Likewise, a vessel that

made a legal landing only of halibut and

sablefish caught with fixed gear during

the qualifying period would not have

moratorium qualification.

An exempt vessel may continue to

fish for moratorium species, if it has on

board a groundfish permit issued by

NMFS or a crab permit issued by the

State of Alaska pursuant to existing

regulations. For example, a Federal

groundfish permit would be required of

any vessel that participates in the EEZ

groundfish fisheries off Alaska,

including a processor vessel, a support

vessel, a small vessel exempted from the

moratorium, as well as a vessel that

harvests IFQ sablefish. Issuance of a

groundfish permit would not require

moratorium qualification. By not

allowing such a vessel a moratorium

qualification, the vessel would be

prevented from transferring moratorium

qualification to another vessel that

could increase the overall harvesting

capacity of the fleet counter to the

Council’s objective in proposing the

moratorium.

A vessel that operates under the IFQ

program and that does not have

moratorium qualification would be able

to retain bycatch amounts of
25680 Federal Register / Vol. 60, No. 92 / Friday, May 12, 1995 / Proposed Rules

moratorium groundfish species, such as

Pacific cod and rockfish, up to the

maximum allowable retention limits set

forth at 50 CFR parts 672 and 675. The

retention of these species is required

under the IFQ program regulations at 50

CFR part 676, unless retention is

otherwise restricted or prohibited by

Federal or state regulations. Hence, a

moratorium permit would not be

required of vessels used by fishermen

with IFQs for halibut or sablefish.

A moratorium permit would be issued

to the person who owns a moratoriumqualified vessel after approval of an

application for a moratorium permit for

that vessel. Moratorium qualification

would be a characteristic of a vessel that

stays with the vessel, except as

described below. NMFS would maintain

a database of vessels that are

moratorium-qualified according to

official landings records. If the owner of

a vessel that would require a

moratorium permit applies for one,

NMFS may issue a permit if the vessel

is on the list of moratorium-qualified

vessels and is within its maximum LOA.

Moratorium permits would be valid

only for the year in which they are

issued. A vessel owner who receives a

moratorium permit for a vessel one year

may not necessarily receive one for the

same vessel in a succeeding year if the

vessel loses its moratorium

qualification.

The moratorium qualification of a

vessel could be lost if it is transferred to

another vessel or person, or if the

vessel’s LOA is increased to exceed the

maximum LOA for that vessel. A

vessel’s maximum LOA is defined in the

proposed rule as the greatest LOA that

the vessel, or its replacement, may have

and remain qualified for a moratorium

permit. The maximum LOA of a vessel

that is less than 125 ft (38.1 m) LOA

would be either 1.2 times the vessel’s

original qualifying length, or 125 ft (38.1

m), whichever is less. The maximum

LOA of a vessel that is 125 ft (38.1 m)

or greater would be equal to its original

qualifying length. The original

qualifying length of a vessel would be

the LOA of the vessel on or before June

24, 1992. This limited length increase

allowance, known as the ‘‘20 percent

rule,’’ is intended to provide an owner

of a smaller vessel with an opportunity

to increase the vessel’s stability by

widening and lengthening the hull. The

20 percent rule could increase safety

margins for a vessel, although it also

would provide an opportunity to

increase its fishing capacity. The

Council recognized this possibility, and

limited any vessel length increases to a

vessel less than 125 ft (38.1 m) LOA.

The Council made this decision on June

24, 1992, to discourage a vessel owner

from increasing the vessel’s length

substantially between that date and the

potential implementation date of the

moratorium. Any violation of the 20

percent rule would nullify the

moratorium qualification of the vessel

that exceeds its maximum LOA.

3. Crossovers

The Council’s original moratorium

proposal would not have limited the

ability of a vessel that qualified for a

moratorium permit because of a legal

landing, for example, of a moratorium

crab species to cross over to a fishery for

a moratorium groundfish species, even

if it had no previous landing history in

a groundfish fishery. For the reasons

described above, the Council decided at

its meeting in December 1994, to limit

crossovers. The rationale for this

revision is to allow a vessel to move

between the groundfish and BSAI crab

fisheries as intended in the original

moratorium proposal, but to limit that

movement based on the type of fishing

gear used by the vessel either to qualify

for the moratorium or during the period

of time immediately following the

qualifying period and before December

11, 1994. This crossover limitation

recognizes the basic similarity of fishing

gear used in the BSAI crab fisheries and

some groundfish fisheries. It also

recognizes the fact that some

moratorium-qualified vessels crossed

over to enter a new moratorium fishery

after the cutoff date of February 9, 1992,

based on the Council’s original

moratorium proposal. These vessels

would be allowed to continue to operate

in these fisheries under the moratorium

but would be restricted to using the

fishing gear used from February 10,

1992, through December 11, 1994, the

date of the Council’s decision on the

revised moratorium proposal.

Either of two conditions would allow

a moratorium-qualified vessel that had a

legal landing during the qualifying

period only in the groundfish fishery to

cross over under the moratorium as a

new vessel in the BSAI crab fishery (or

vice versa):

1. The vessel could cross over into the

new fishery providing it uses only the

same basic (authorized) fishing gear that

it used to qualify for the moratorium; or

2. The vessel could cross over into the

new fishery providing it had made a

legal landing in that fishery during the

period February 10, 1992, through

December 11, 1994, and it uses only the

same basic (authorized) fishing gear that

it used during that period.

Example 1. A vessel that made a legal

landing in the BSAI crab fisheries

during the qualifying period would be

eligible for a moratorium permit to

operate in that fishery and in the BSAI

or GOA groundfish fisheries using pot

gear where that gear is authorized. The

only legal fishing gear in the BSAI crab

fisheries is pot gear. Therefore, this

vessel would be limited in crossing over

into the groundfish fisheries to using

pot gear.

Example 2. A vessel that made a legal

landing in the BSAI or GOA groundfish

fisheries during the qualifying period

would be eligible for a moratorium

permit to operate in that fishery using

any authorized fishing gear for

groundfish. The same vessel also made

a legal landing in the BSAI crab fishery

during the period February 10, 1992,

through December 11, 1994. Therefore,

this vessel also would be eligible for a

moratorium permit to operate in the

BSAI crab fishery, and its flexibility to

move between fisheries using any

authorized gear would be unlimited.

Example 3. A vessel that made a legal

landing in the BSAI crab fisheries

during the qualifying period would be

eligible for a moratorium permit to

operate in that fishery and in the BSAI

or GOA groundfish fisheries using pot

gear where that gear is authorized. The

same vessel also made a legal landing in

the groundfish fisheries using hook-andline gear during the period February 10,

1992, through December 11, 1994.

Therefore, this vessel also would be

eligible for a moratorium permit to

operate in the groundfish fisheries using

hook-and-line gear. This vessel would

not be eligible to cross over into the

groundfish fishery using trawl gear

under the moratorium, but would be

limited to fishing for groundfish with

either pot or hook-and-line gear.

This revision to the proposed

moratorium would require NMFS to

issue moratorium permits with fisheryspecific fishing gear endorsements. A

moratorium permit would not be valid

without at least one gear endorsement.

Four types of fishery/gear endorsements

are proposed that comprise categories of

fishing gear that are specifically

authorized in Federal regulations (with

respect to groundfish) or in State of

Alaska regulations (with respect to

crab). These fishery/gear endorsement

categories are as follows:

a. Groundfish/trawl, includes

groundfish pelagic and nonpelagic trawl

gears as defined at 50 CFR part 672;

b. Crab/pot, includes crab pot gear as

defined in the Alaska Administrative

Code at title 5, chapters 34 and 35;

c. Groundfish/pot, includes

groundfish longline pot and pot-andline gears as defined at 50 CFR part 672;

and
Federal Register / Vol. 60, No. 92 / Friday, May 12, 1995 / Proposed Rules 25681

d. Groundfish/hook, includes

groundfish hook-and-line and jig gears

as defined at 50 CFR part 672.

The Regional Director would

determine the appropriate fishery/gear

endorsement for a moratorium permit

based on the permit application

received and existing landings records

and vessel LOA. A moratorium permit

may be issued for the groundfish fishery

or the BSAI crab fishery or both. In

addition, a moratorium permit may be

issued with one or more of the fishery/

gear endorsements listed above. For

example, a moratorium-qualified vessel

that made a legal landing of BSAI crab

during the qualifying period would be

issued a moratorium permit to fish for

groundfish and BSAI crab with a pot

gear endorsement. Alternatively, a

moratorium-qualified vessel that made a

legal landing of groundfish using trawl

gear during the qualifying period would

be issued a moratorium permit to fish

for groundfish with all groundfish gear

endorsements, but that vessel would not

be permitted to fish for BSAI crabs

unless it also had made a legal landing

in the BSAI crab fishery during the

period February 10, 1992, through

December 11, 1994. This restriction is

necessary to carry out the proposed

limited crossover policy.

4. Transferability

The moratorium qualification issued

to a vessel would be transferrable under

certain conditions. All such transfers

would have to be approved by the

Regional Director before they would be

effective. A vessel that loses its

moratorium qualification due to a

transfer would become disqualified to

participate in any moratorium fishery

on the effective date of the transfer. The

purpose of providing for transfers is to

allow vessels to make limited

improvements or to replace existing

vessels in the moratorium fisheries.

Restrictions on transfers are necessary to

limit the potential fishing capacity

resulting from vessel improvements or

replacements. A moratorium

qualification may be transferred without

a moratorium permit if, for example, no

such permit has been issued based on

that qualification. A moratorium permit

would not be transferrable during the

year for which it is issued without also

transferring the moratorium

qualification on which it is based.

Moratorium qualification would be

assumed to remain attached to the

vessel that made a legal landing of

moratorium species during the

qualifying period, unless otherwise

specified in a purchase agreement or

contract. Hence, NMFS would presume

that the owner of a moratoriumqualified vessel at the time of a

moratorium permit application also

possesses the moratorium qualification

for that vessel. The moratorium

qualification of a vessel may be

transferred from the owner of the vessel

to another person by mutual agreement.

For example, the moratorium

qualification of a vessel, commonly

referred to as the vessel’s ‘‘fishing

rights,’’ may be retained by the vessel’s

owner to liquidate independently of the

vessel. A vessel owner also may choose

to retain the moratorium qualification of

his or her vessel when it is sold, lost or

destroyed, so that he/she can apply it to

a replacement vessel. Regardless of the

reason for transferring the moratorium

qualification, NMFS would require

valid documentation of the transfer

before the moratorium qualification

could be used as a basis for issuing a

moratorium permit.

A moratorium permit would not be

valid without a valid moratorium

qualification. Moratorium permits

would be valid only in the calendar year

for which they are issued. Hence, the

validity of a vessel’s moratorium

qualification would be confirmed at

least annually, or whenever a

moratorium permit application is

submitted. The validity of a vessel’s

moratorium qualification would depend

on its compliance with the 20 percent

rule described above, with respect to the

vessel’s maximum LOA. Each

moratorium qualification would be

characterized by a maximum LOA. A

transfer of a vessel’s moratorium

qualification to a vessel that exceeds the

maximum LOA of the moratorium

qualification would not be approved by

NMFS, for example, and no moratorium

permit would be issued.

A moratorium permit would not be

separable from the moratorium

qualification on which the permit is

based. A moratorium qualification

transfer by itself would automatically

invalidate any moratorium permit that

had been based on that moratorium

qualification. Fishery and gear

endorsements could not be separated

and transferred independently. For

example, a moratorium permit that

authorizes a vessel to harvest

moratorium species of groundfish and

crab with pot gear could not be

separated into a groundfish/pot permit

and a crab/pot permit. Likewise, gear

endorsements could not be separately

transferred from a moratorium permit.

For example, the hook endorsement on

a groundfish/trawl, pot, and hook

permit would not be transferrable.

Replacement or salvage of a lost or

destroyed vessel: A cutoff date of

January 1, 1989, is proposed for

determining the replacement of a

moratorium-qualified vessel that was

lost or destroyed. The moratorium

qualification of a vessel that was lost or

destroyed before that date would no

longer be valid for purposes of a

moratorium permit, unless salvage of

the vessel had started before June 24,

1992. The Council reasoned that a

vessel owner who lost a vessel before

January 1, 1989, would have replaced

the vessel before the end of the

qualifying period if the owner intended

to continue participation in the

moratorium fisheries.

The moratorium qualification of a

vessel that was lost or destroyed on or

after January 1, 1989, but before the

effective date of the moratorium, may be

valid and transferred to a replacement

vessel if the LOA of the replacement

vessel does not exceed the maximum

LOA of the moratorium-qualified vessel

that was lost, and the replacement

vessel makes a legal landing of a

moratorium species within the first 2

years (730 days) after the effective date

of the moratorium. At the beginning of

the third year of the moratorium, NMFS

would determine whether the

replacement vessel made a legal landing

of a moratorium species. If not, then no

moratorium permit would be issued to

the vessel that year. The moratorium

qualification of a vessel that is lost or

destroyed after the effective date of the

moratorium may be transferred to a

replacement vessel, providing it does

not exceed the maximum LOA of the

moratorium-qualified vessel that was

lost.

The moratorium qualification of a

vessel that was lost or destroyed before

January 1, 1989, may be valid for the

vessel if salvage operations began on or

before June 24, 1992, the salvaged vessel

does not exceed its maximum LOA, and

the salvaged vessel makes a legal

landing of a moratorium species within

the first 2 years (730 days) after the

effective date of the moratorium. A

moratorium-qualified vessel that was

lost or destroyed on or after January 1,

1989, may be salvaged and may be

eligible for a moratorium permit if the

salvaged vessel does not exceed its

maximum LOA and the moratorium

qualification of the vessel has not been

transferred.

Reconstruction: Vessel reconstruction

means a change in the original

qualifying length of a moratoriumqualified vessel. The moratorium

qualification of a vessel reconstructed in

a manner that changes its LOA would be

controlled under the moratorium by the

20 percent rule described above and the

dates when reconstruction was started

and finished. The LOA of a moratorium-
25682 Federal Register / Vol. 60, No. 92 / Friday, May 12, 1995 / Proposed Rules

qualified vessel could be changed to

exceed the vessel’s maximum LOA

without invalidating its moratorium

qualification only if reconstruction of

the vessel began before June 24, 1992,

was completed after that date, and a

transfer of the vessel’s moratorium

qualification or moratorium permit to

the reconstructed vessel is approved by

NMFS. The revised maximum LOA of

such a vessel would be established as

equal to the reconstructed LOA even if

the reconstructed LOA were less than

125 ft (38.1 m). The purpose for this

exception to the 20 percent rule is to

prevent the disqualification of a vessel

that was undergoing reconstruction on

the date that the Council initially acted

to recommend its original moratorium

proposal. The Council decided that such

a vessel should be allowed to participate

in the fisheries under the moratorium,

but that it should not be allowed any

additional length increases under the 20

percent rule. A vessel that completed

reconstruction before June 24, 1992,

would have its LOA on that date used

as a basis for determining its maximum

LOA, and a vessel that started

reconstruction after June 24, 1992,

would have its LOA restricted by the 20

percent rule.

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.

5. Administration

The moratorium would be

implemented by limiting the issuance of

a moratorium permit to only a

moratorium-qualified vessel. The

Restricted Access Management Division

within the Alaska Region, NMFS, would

administer the moratorium program by

maintaining a database of moratoriumqualified vessels, issuing, receiving, and

reviewing permit and transfer

applications, making initial

determinations of eligibility, and issuing

moratorium permits. This work would

be conducted in parallel with the

issuance of a Federal groundfish permit

to each vessel that would not need a

moratorium permit but that otherwise

would participate in the groundfish

fisheries in the EEZ (i.e., a moratoriumexempt vessel such as a processor,

support vessel, and a small vessel).

Federal groundfish permits would

continue to be unlimited and issued

without cost on receipt of an

application. A moratorium permit

would be required in lieu of a Federal

groundfish permit for vessels subject to

the moratorium. A vessel that intended

to harvest moratorium crab species in

the BSAI area would need a moratorium

permit in addition to all permits and

licenses required by the State of Alaska.

An application for a moratorium

permit could be submitted at any time.

The permit would be valid only through

December 31 of the year for which the

permit is issued. NMFS expects that

most moratorium permit applications

would be submitted in November and

December for the succeeding fishing

year. An approved moratorium permit

would be issued to the owner of a

moratorium-qualified vessel after review

and processing of the permit

application. The moratorium permit

application would be similar in form to

the Federal groundfish application

currently in use.

The primary test for approval of a

moratorium permit application for a

vessel would be demonstration of the

vessel’s moratorium qualification and

that its LOA is less than or equal to the

maximum LOA associated with the

moratorium qualification. As stated

above, moratorium qualification would

be assumed to remain with a vessel that

made a legal landing of any moratorium

species during the qualifying period.

Otherwise, a valid contract or agreement

to transfer a vessel’s moratorium

qualification or retain it when the vessel

is transferred would be required to

demonstrate ownership of the

moratorium qualification.

Determination of a vessel’s maximum

LOA would be based on Federal or state

permit or registration documents dated

on or before June 24, 1992 that

demonstrate the original qualifying

length of the vessel. If these documents

are not available or contested, NMFS

may request the vessel owner to

produce marine survey, builders plans,

or other third-party documentation of

the vessel’s length on or before June 24,

1992.

An application for transfer of

moratorium qualification or a

moratorium permit also could be

submitted at any time, and both

applications could be submitted

simultaneously. The primary test for

approval of a transfer would be

demonstration of agreement to the

transfer by the owners and would-be

receivers of the moratorium

qualification/permit, and proof that the

vessel that would receive the

moratorium qualification/permit is less

than or equal to the maximum LOA

associated with the moratorium

qualification.

An initial administrative

determination to deny the issuance of a

moratorium permit would be explained

in writing to the permit applicant, and

the denial could be appealed following

the procedures set forth at 50 CFR

676.25. A written appeal would have to

be submitted to the Alaska Region,

NMFS, within 60 days after the date that

the determination was made. An initial

administrative determination to deny an

application for a permit would include

a letter of authorization to the applicant

authorizing the affected vessel to

operate as if the application were

approved pending appeal. The

temporary authority granted by the

letter of authorization would expire on

the effective date of the final agency

action on the appeal. The final agency

action on the appeal, for purposes of

judicial review, would occur at the end

of the 60-day appeal period if no appeal

were filed, or 30 days after the appellate

officer’s decision is issued, except as

provided at 50 CFR 676.25. No appeal

is provided for a denial of a transfer of

moratorium qualification or moratorium

permit. The maximum LOA restrictions

would be too easily circumvented and

the purpose of the moratorium

undermined, if appeals of transfer

denials were allowed.

Classification

Section 304(a)(1)(D) of the Magnuson

Act requires NMFS to publish

regulations proposed by a Council

within 15 days of receipt of the

amendment and regulations. At this

time NMFS has not determined that the

amendment these rules would

implement is consistent with the

national standards, other provisions of

the Magnuson Act, and other applicable

laws. NMFS, in making that

determination, will take into account

the data, views, and comments received

during the comment period.

The Assistant Administrator for

Fisheries, NOAA, has 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 of the

moratorium prepared by the Council,

total participation in the moratorium

fisheries for a given year is influenced
Federal Register / Vol. 60, No. 92 / Friday, May 12, 1995 / Proposed Rules 25683

by the annual rate of entrance and exit

of vessels. Although new entrants

averaged nearly 900 vessels annually

over the period 1977–91, total

participation increased only 180 vessels

per year, on average, because 500 to

1,000 vessels annually exited the

fisheries.

The revised moratorium proposal

would reduce the potential fleet of

vessels qualified to fish under the

moratorium from 13,350 under the

original proposal to 4,144 under the

revised proposal. The number of

qualifying vessels under the revised

proposal is about 180 percent of the

average number of vessels that operated

in the affected fisheries each year 1988–

91. Roughly 25 percent of this potential

qualifying fleet is small vessels that

would be exempted and permitted to

operate in the moratorium fisheries,

regardless of the moratorium. The

proposed moratorium would prevent

the participation of vessels that entered

the affected fisheries for the first time

between February 9, 1992, and the end

of 1994, or that made landings only in

the fixed-gear fisheries for halibut and

sablefish. An estimated 973 vessels

would not qualify for a moratorium

permit for these reasons, unless they

received transferred moratorium

qualification. This number includes

about 324 vessels that are 26 ft (7.9 m)

in length or less that would be able to

participate with a normal Federal

groundfish permit. Large vessels over 90

ft (27.4 m) in length have the greatest

fish harvesting capacity, and the greatest

potential impact on the fishery

resources. About 28 large vessels that

entered the fisheries after February 9,

1992, would not qualify for a

moratorium permit. A copy of the EA/

RIR/IRFA may be obtained (see

ADDRESSES).

This rule involves collection-ofinformation requirements subject to the

Paperwork Reduction Act (44 U.S.C.

3501 et seq.) that have been approved by

the Office of Management and Budget

(OMB) (OMB control number 0648–

0282). This approval expires August 31,

1997, and was based on the original

moratorium proposal submitted in 1994.

The revised moratorium proposal would

affect fewer vessels. Therefore, the

paperwork burden would be somewhat

less than originally estimated for the

original collection-of-information

request. These paperwork burdens

include the time for reviewing the

instructions, gathering and maintaining

the data needed, and completing and

reviewing the collection of information

that pertains to permit, appeals, and

transfer applications. Send comments

regarding this paperwork burden 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, OMB, Washington,

D.C. 20503 (ATTN: NOAA Desk

Officer).

This action has been determined to be

not significant for purposes of E.O.

12866.

List of Subjects

50 CFR Part 671

Fisheries, Fishing, Reporting and

recordkeeping requirements.

50 CFR Parts 672 and 675

Fisheries, Recordkeeping and

reporting requirements.

50 CFR Part 676

Alaska, Fisheries, Reporting and

recordkeeping requirements.

Dated: May 9, 1995.

Gary Matlock,

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’’, in alphabetical

order, to read as follows:

§ 671.2 Definitions.

* * * * *

King crab means red king crab,

Paralithodes camtschatica; blue king

crab, P. platypus; or brown (or golden)

king crab, Lithodes aequispina; scarlet

(or deep sea) king crab, L. couesi.

* * * * *

Tanner crab means Chionoecetes

bairdi; snow crab, C. opilio; grooved

Tanner crab, C. tanneri; triangle Tanner

crab, C. angulatus; or any hybrid of

these Tanner crab species.

3. Section 671.3 is added to read as

follows:

§ 671.3 Relation to other laws.

(a) Foreign fishing. Regulations

governing foreign fishing for groundfish

in the Gulf of Alaska are set forth at

§ 611.92 of this chapter. Regulations

governing foreign fishing for groundfish

in the Bering Sea and Aleutian Islands

Management Area are set forth at

§ 611.93 of this chapter.

(b) King and Tanner crab. Regulations

governing the conservation and

management of king and Tanner crab

also are found in the Alaska

Administrative Code at title 5, chapters

34, 35, and 39.

(c) Halibut fishing. Regulations

governing the conservation and

management of Pacific halibut are set

forth at part 301 of this title and part 676

of this chapter.

(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 parts

620, 672, 675, and 676 of this chapter.

(e) Limited access. Regulations

governing access to commercial fishery

resources are set forth at part 676 of this

chapter.

(f) Marine mammals. Regulations

governing exemption permits and the

recordkeeping and reporting of the

incidental take of marine mammals are

set forth at § 216.24 and part 229 of this

title.

(g) Research plan. Regulations

governing elements of the North Pacific

Fisheries Research Plan are set forth at

part 677 of this chapter.

4. Section 671.4 is revised to read as

follows:

§ 671.4 Permits.

This section is effective from January

1, 1996, through December 31, 1998,

unless otherwise specified. In addition

to any other permits or licenses that

may be required by Federal or state

regulations, the owner of a vessel of the

United States must obtain a moratorium

permit issued under 50 CFR part 676

before using the vessel to catch and

retain king or Tanner crab in the Bering

Sea and Aleutian Islands Area unless

specifically exempt under 50 CFR part

676.

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, paragraph (f) is

added to read as follows:

§ 672.3 Relation to other laws.

* * * * *

(f) Crab fishing. Regulations governing

the conservation and management of

king and Tanner crab in the Bering Sea

and Aleutian Islands Area are set forth

at parts 671 and 676 of this chapter, and
25684 Federal Register / Vol. 60, No. 92 / Friday, May 12, 1995 / Proposed Rules

in the Alaska Administrative Code at

title 5, chapters 34, 35, and 39.

7. Section 672.4, paragraph (a) is

revised to read as follows:

§ 672.4 Permits.

(a) General. This section is effective

from January 1, 1996, through December

31, 1998, unless otherwise specified.

Unless specifically exempt under 50

CFR part 676, the owner of a vessel of

the United States must obtain a

moratorium permit issued under 50 CFR

part 676 before using the vessel to

conduct directed fishing for moratorium

groundfish species, as defined at § 676.2

of this chapter, in the Gulf of Alaska.

The owner of a vessel of the United

States that is not required to have a

moratorium permit because the vessel is

specifically exempt under § 676.3 of this

chapter must obtain a groundfish permit

issued under this part before using the

vessel to fish for groundfish in the Gulf

of Alaska. Such permits shall be issued

without charge.

* * * * *

PART 675—GROUNDFISH OF THE

BERING SEA AND ALEUTIAN ISLANDS

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, paragraph (f) is

added to read as follows:

§ 675.3 Relation to other laws.

* * * * *

(f) Crab fishing. Regulations governing

the conservation and management of

king and Tanner crab in the Bering Sea

and Aleutian Islands Area are set forth

at parts 671 and 676 of this chapter, and

in the Alaska Administrative Code at

title 5, chapters 34, 35, and 39.

10. Section 675.4(a) is revised to read

as follows:

§ 675.4 Permits.

(a) General. This section is effective

from January 1, 1996, through December

31, 1998, unless otherwise specified.

The owner of a vessel of the United

States must obtain a moratorium permit

issued under 50 CFR part 676 before the

vessel is used to conduct directed

fishing for moratorium groundfish

species, as defined at § 676.2 of this

chapter, in the Bering Sea and Aleutian

Islands management area, unless

specifically exempt under § 676.3 of this

chapter. The owner of a vessel of the

United States that is not required to

have a moratorium permit because the

vessel is specifically exempt under

§ 676.3 of this chapter must obtain a

groundfish permit issued under this part

before using the vessel to fish for

groundfish in the Bering Sea and

Aleutian Islands management area.

Such permits shall be issued without

charge.

* * * * *

PART 676—LIMITED ACCESS

MANAGEMENT OF FEDERAL

FISHERIES IN AND OFF ALASKA

11. The authority citation for part 676

continues to read as follows:

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

et seq.

12. Subpart A is amended by adding

§§ 676.1 through 676.6 to read as

follows:

Subpart A—Moratorium on Entry

Sec.

676.1 Purpose and scope.

676.2 Definitions.

676.3 Moratorium permits.

676.4 Transfer of moratorium permits.

676.5 Permit application procedure.

676.6 Prohibitions.

676.7–676.9 [Reserved]

Subpart A—Moratorium on Entry

§ 676.1 Purpose and scope.

This subpart is effective from [date 30

days after date of publication of the final

rule in the Federal Register], through

December 31, 1998.

(a) This subpart implements a vessel

moratorium program developed by the

North Pacific Fishery Management

Council and approved by NMFS.

(b) Regulations in this subpart govern:

(1) The issuance of Federal

moratorium permits to limit the number

and size of vessels 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;

and

(2) The issuance of Federal

moratorium permits to limit the number

and size of vessels in the commercial

fisheries for king and Tanner crabs in

that portion of the Bering Sea and

Aleutian Islands Area over which the

United States exercises exclusive fishery

management authority.

§ 676.2 Definitions.

In addition to the terms in the

Magnuson Act and in parts 620, 671,

672, and 675 of this chapter, the terms

in this subpart have the following

meanings:

Catcher vessel means, with respect to

moratorium groundfish species, a vessel

as defined at parts 672 and 675 of this

chapter, or a vessel that is used to catch,

take, or harvest moratorium crab species

that are retained on board as fresh fish

product at any time.

Catcher/processor vessel means a

vessel that can be used as a catcher

vessel and can process or prepare fish

to render it suitable for human

consumption, industrial use, or longterm storage, including, but not limited

to, cooking, canning, smoking, salting,

drying, freezing, and rendering into

meal or oil, but does not include

heading and gutting unless additional

preparation is done.

Directed fishing means, with respect

to moratorium groundfish species,

directed fishing as defined at parts 672

and 675 of this chapter, or the catching

and retaining of any moratorium crab

species.

Legal landing means any amount of a

moratorium species that was or is

landed in compliance with Federal and

state regulations in effect at the time of

the landing.

LOA means length overall as defined

at parts 672 and 675 of this chapter.

Lost or destroyed vessel means a

vessel that has sunk at sea or has 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 with respect to a

vessel means the greatest LOA of that

vessel or its replacement that may

qualify it to use a moratorium permit to

catch and retain moratorium crab

species or conduct directed fishing for

moratorium groundfish species during

the moratorium, except as provided at

§ 676.4(d). The maximum LOA of a

vessel with moratorium qualification

will be determined by the Regional

Director as follows:

(1) For a vessel with moratorium

qualification that is less than 125 ft

(38.1 m) LOA, the maximum LOA will

be equal to 1.2 times the vessel’s

original qualifying length or 125 ft (38.1

m), which ever is less; and

(2) For a vessel with moratorium

qualification that is equal to or greater

than 125 ft (38.1 m), the maximum LOA

will be equal to the vessel’s original

qualifying length.

Moratorium crab species means

species of king or Tanner crabs

harvested in the Bering Sea and

Aleutian Islands Area, the commercial

fishing for which is governed by part

671 of this chapter.

Moratorium groundfish species means

species of groundfish, except sablefish

caught with fixed gear as defined at

§ 676.11, harvested in the Gulf of Alaska

or harvested in the Bering Sea and

Aleutian Islands management area, the

commercial fishing for which is
Federal Register / Vol. 60, No. 92 / Friday, May 12, 1995 / Proposed Rules 25685

governed by parts 672 and 675 of this

chapter, respectively.

Moratorium permit means a

transferrable permit or license that

authorizes a vessel to fish for

moratorium species in the Gulf of

Alaska or the Bering Sea and Aleutian

Islands management area.

Moratorium qualification means a

transferrable prerequisite for a

moratorium permit. A vessel may be

considered to have ‘‘moratorium

qualification’’ if it made a legal landing

of a moratorium species during the

qualifying period.

Moratorium species means any

moratorium crab species or moratorium

groundfish species.

Original qualifying length with

respect to a vessel means the LOA of the

vessel on or before June 24, 1992.

Person means any individual who is

a citizen of the United States or any

United States corporation, partnership,

association, or other entity (or its

successor in interest), whether or not

organized or existing under the laws of

any state.

Qualifying period means the period of

time from January 1, 1988, through

February 9, 1992.

Regional Director means the Director,

Alaska Region, NMFS, or an individual

to whom the Regional Director has

delegated authority.

§ 676.3 Moratorium permit.

(a) General. The owner of a vessel of

the United States must obtain a

moratorium permit issued under this

subpart before using the vessel to catch

and retain any moratorium crab species

or before using the vessel to conduct

directed fishing for any moratorium

groundfish species. A moratorium

permit required by this section is in

addition to any other permit or license

required by Federal or state regulations.

(1) A moratorium permit issued under

this part is valid only if:

(i) The permit is on board the vessel

to which it is assigned at all times when

the vessel is fishing for any moratorium

species;

(ii) The permit has at least one

endorsement authorizing the use of a

specific type of fishing gear;

(iii) The vessel to which the permit is

assigned has on board no fishing gear

other than the type of gear authorized by

permit endorsement;

(iv) The vessel to which the permit is

assigned is fishing for a moratorium

species during an open fishing season

for that species in the fishing year for

which the permit is issued; and

(v) The permit is not revoked,

suspended, or modified under 15 CFR

part 904 (Civil procedures).

(2) A moratorium permit must be

presented for inspection on request of

any authorized officer.

(b) Exceptions. A vessel within one of

the following categories is not required

to have on board a moratorium permit

required under paragraph (a) of this

section and may catch and retain

moratorium species during the effective

dates of the moratorium in compliance

with the permit or license requirements

of the State of Alaska with respect to

moratorium crab species, Federal permit

requirements at parts 672 and 675 of

this chapter with respect to moratorium

groundfish species, and other applicable

Federal and state regulations:

(1) A vessel other than a catcher

vessel or catcher/processor vessel;

(2) A catcher vessel or catcher/

processor vessel that conducts directed

fishing for groundfish in the Gulf of

Alaska and does not exceed 26 ft (7.9 m)

LOA;

(3) A catcher vessel or catcher/

processor vessel that catches and retains

moratorium crab species or that

conducts directed fishing for

moratorium groundfish species in the

Bering Sea and Aleutian Islands area

and does not exceed 32 ft (9.8 m) LOA;

(4) A catcher vessel or catcher/

processor vessel that is catching IFQ

halibut or IFQ sablefish or halibut or

sablefish under the Western Alaska

Community Development Quota

Program in accordance with regulations

at subparts B and C of this part and that

is not directed fishing for any

moratorium species; or

(5) A catcher vessel or catcher/

processor vessel that, after November

18, 1992, is specifically constructed for

and used in accordance with a

Community Development Plan

approved by the Secretary under

§ 675.27 of this chapter, is designed and

equipped to meet specific needs that are

described in the Community

Development Plan, and does not exceed

125 ft (38.1 m) LOA.

(c) Moratorium permit qualification.

Any vessel that was used to make a legal

landing of any amount of any

moratorium species during the

qualifying period shall be a vessel with

moratorium qualification and may be

eligible to receive a moratorium permit,

if:

(1) The vessel does not exceed its

maximum LOA;

(2) The vessel is greater than 26 ft (7.9

m) LOA and is used to conduct directed

fishing for moratorium groundfish

species in the Gulf of Alaska;

(3) The vessel is greater than 32 ft (9.8

m) LOA and is used to conduct directed

fishing for moratorium groundfish

species in the Bering Sea and Aleutian

Islands management area; and

(4) The moratorium qualification for

the vessel has not been transferred to

another vessel.

(d) Moratorium permit endorsements.

A moratorium permit is not valid unless

the permit has at least one endorsement

authorizing the use of a type of fishing

gear specified in this paragraph.

Authorized fishing gear for the Bering

Sea and Aleutian Islands crab fisheries

is defined in the Alaska Administrative

Code at title 5, chapters 34 and 35;

authorized fishing gears for the Gulf of

Alaska and the Bering Sea and Aleutian

Islands groundfish fisheries are defined

at part 672 of this chapter. Any one or

a combination of the following fishing

gear endorsements may be included in

a moratorium vessel permit:

(1) Trawl, includes pelagic and

nonpelagic trawl gears;

(2) Pot, includes longline pot and potand-line gears; and/or

(3) Hook, includes hook-and-line and

jig gears.

(e) Gear endorsement criteria. A

vessel with moratorium qualification

shall be issued a moratorium permit

with one or more gear endorsement(s)

based on the gear endorsement criteria

in this paragraph. For purposes of this

paragraph, the qualifying period is

‘‘period 1,’’ and the period of time from

February 10, 1992, through December

11, 1994, is ‘‘period 2.’’

(1) Crab/pot permit. A vessel is

eligible to receive a moratorium permit

for the crab fisheries with a pot gear

endorsement if the vessel:

(i) Made a legal landing of a

moratorium crab species in period 1;

(ii) Made a legal landing of a

moratorium groundfish species with any

authorized fishing gear in period 1, and,

in period 2, made a legal landing of a

moratorium crab species; or

(iii) Made a legal landing of

moratorium groundfish in period 1 with

pot gear.

(2) Groundfish/trawl permit. A vessel

is eligible to receive a moratorium

permit for the groundfish fisheries with

a trawl gear endorsement if the vessel:

(i) Made a legal landing of a

moratorium groundfish species with any

authorized fishing gear in period 1; or

(ii) Made a legal landing of a

moratorium crab species in period 1,

and, in period 2, made a legal landing

of a moratorium groundfish species

using trawl gear.

(3) Groundfish/pot permit. A vessel is

eligible to receive a moratorium permit

for the groundfish fisheries with a pot

gear endorsement if the vessel:
25686 Federal Register / Vol. 60, No. 92 / Friday, May 12, 1995 / Proposed Rules

(i) Made a legal landing of a

moratorium groundfish species with any

authorized fishing gear in period 1; or

(ii) Made a legal landing of a

moratorium crab species in period 1.

(4) Groundfish/hook permit. A vessel

is eligible to receive a moratorium

permit for the groundfish fisheries with

a hook gear endorsement if the vessel:

(i) Made a legal landing of a

moratorium groundfish species with any

authorized fishing gear in period 1; or

(ii) Made a legal landing of a

moratorium crab species in period 1,

and, in period 2, made a legal landing

of a moratorium groundfish species

using hook gear.

§ 676.4 Transfer of moratorium permit.

(a) General. A transfer of a vessel’s

moratorium qualification or its

moratorium permit is not valid unless it

is approved by the Regional Director.

Gear or species endorsement(s) are not

severable from the permit in which the

endorsement(s) is included. A

moratorium permit transfer will not be

approved without a coincident transfer

of the moratorium qualification on

which the permit is based. A transfer

will not be approved by the Regional

Director unless:

(1) A complete transfer application

that satisfies all requirements specified

at § 676.5 is submitted; and

(2) The vessel that would be receiving

the transferred moratorium qualification

or permit does not exceed the maximum

LOA of the vessel relinquishing the

moratorium qualification or permit.

(b) Lost or destroyed vessel. (1) The

moratorium qualification of a vessel that

was lost or destroyed before January 1,

1989, is null and void, unless the vessel

is salvaged, and:

(i) The salvaged vessel does not

exceed its maximum LOA;

(ii) Salvage of the vessel began on or

before June 24, 1992; and

(iii) The salvaged vessel is used to

make a legal landing of a moratorium

species on or before [insert date 2 years

after the effective date of this final

rule.].

(2) The moratorium qualification of

any vessel that was lost or destroyed on

or after January 1, 1989, and

subsequently salvaged, is valid and a

moratorium permit may be issued to the

owner of the salvaged vessel providing:

(i) The moratorium qualification of

the salvaged vessel has not been

transferred to a different vessel; and

(ii) The salvaged vessel does not

exceed its maximum LOA.

(c) The moratorium qualification of

any vessel that was lost or destroyed on

or after January 1, 1989, may be

transferred with approval of the

Regional Director under the following

conditions:

(1) The moratorium qualification of

any vessel that was lost or destroyed on

or after January 1, 1989, but before the

effective date of the moratorium may be

transferred to another vessel providing

that vessel:

(i) Does not exceed the maximum

LOA of the vessel with moratorium

qualification; and

(ii) Makes a legal landing of a

moratorium species on or before [date 2

years after the effective date of this final

rule].

(2) The moratorium qualification of

any vessel that is lost or destroyed at

any time after the effective date of the

moratorium may be transferred to

another vessel providing that vessel

does not exceed the maximum LOA of

the vessel with moratorium

qualification.

(d) Reconstruction. The moratorium

qualification or moratorium permit for a

vessel is null and void if at any time

after June 24, 1992, the LOA of the

vessel is increased to exceed the vessel’s

maximum LOA. Any vessel that is

reconstructed such that the LOA of the

vessel exceeds its maximum LOA may

retain its moratorium qualification or

moratorium permit if:

(1) Reconstruction of the vessel began

before June 24, 1992 and was completed

after that date;

(2) The revised maximum LOA of the

vessel is approved by the Regional

Director as equal to the LOA of the

reconstructed vessel; and

(3) A transfer of the vessel’s

moratorium qualification or moratorium

permit to the reconstructed vessel is

approved by the Regional Director

pursuant to § 676.4.

§ 676.5 Permit application procedure.

(a) General. An application for a

moratorium vessel permit may be

requested from the Restricted Access

Management Division, Alaska Region,

National Marine Fisheries Service, P.O.

Box 21668, Juneau, AK 99802–1668.

Requests may be made by telephone by

calling 907–586–7202 or 800–304–4846.

(b) Application for permit. With

respect to any vessel, a moratorium

permit will be issued to any person who

is the owner of the vessel at the time of

the permit application, and who has

submitted, to the address in paragraph

(a) of this section, a complete

moratorium permit application that is

subsequently approved by the Regional

Director. A complete application for a

moratorium vessel permit must include

the following information for each

vessel for which a permit is requested:

(1) Name of the vessel for which a

permit is requested, state registration

number of the vessel and, if

documented, the U.S. Coast Guard

documentation number of the vessel;

(2) Name(s), business address(es), and

telephone and fax numbers of the

person who is the owner of the vessel;

(3) Name(s), business address(es), and

telephone and fax numbers of the

person responsible for the operation of

the vessel, if different from the owner;

(4) Valid documentation of the

vessel’s moratorium qualification if

requested by the Regional Director due

to an absence of landings records for the

vessel during the qualifying period;

(5) Documentation of the vessel’s

original qualifying length if requested

by the Regional Director or contested,

such as a vessel survey, builder’s plan,

state or Federal registration certificate,

fishing permit records, or other reliable

and probative documents that clearly

identify the vessel and are dated before

June 24, 1992;

(6) Specification of the fishing gear(s)

used during the moratorium qualifying

period and (if necessary) the fishing

gear(s) used during the period of time

from February 10, 1992 through

December 11, 1994;

(7) Specification of the vessel as either

a catcher vessel or a catcher/processor

vessel;

(8) If applicable, transfer

authorization if a permit request is

based on transfer of moratorium

qualification pursuant to paragraph (c)

of this section; and

(9) Signature of the person who is the

owner of the vessel or the person who

is responsible for representing the vessel

owner.

(c) Application for transfer. An

application for transfer of moratorium

qualification or a moratorium permit

must be completed by the applicant(s)

and approved by the Regional Director

before an application for a moratorium

permit can be approved. An application

for transfer and an application for a

moratorium permit may be submitted

simultaneously. A complete application

for transfer must include the following

information as applicable for each

vessel from which moratorium

qualification or a moratorium permit is

requested to be transferred:

(1) Name(s), business address(es), and

telephone and fax numbers of the

applicant(s) including the owners of the

moratorium qualification or moratorium

permit that is to be transferred and the

persons who would receive the

transferred moratorium qualification or

moratorium permit;

(2) Name of the vessel with

moratorium qualification or moratorium
Federal Register / Vol. 60, No. 92 / Friday, May 12, 1995 / Proposed Rules 25687

permit and the name of the vessel that

would receive the moratorium

qualification or moratorium permit (if

any), the state registration number of

each vessel and, if documented, the U.S.

Coast Guard documentation number of

each vessel;

(3) The original qualifying length of

the vessel with moratorium

qualification, its current LOA, and its

maximum LOA;

(4) The LOA of the vessel that would

receive the transferred moratorium

qualification and documentation of that

LOA by a current vessel survey or other

reliable and probative document;

(5) A legible copy of a contract or

agreement specifying the vessel or

person from which moratorium

qualification or moratorium permit is

requested to be transferred, the date of

the transfer agreement, and names and

signatures of all current owners of the

of the vessel with moratorium

qualification, the moratorium

qualification, or the moratorium permit,

and the applicant;

(6) With regard to a vessel

reconstruction:

(i) A legible copy of written contracts

or written agreements with the firm that

performed reconstruction of the vessel

and that relate to that reconstruction;

(ii) An affidavit signed by the vessel

owner(s) and the owner/manager of the

firm that performed the vessel

reconstruction specifying the beginning

and ending dates of the reconstruction;

and

(iii) An affidavit signed by the vessel

owner(s) specifying the LOA of the

reconstructed vessel;

(7) With regard to vessels lost or

destroyed, a copy of U.S. Coast Guard

Form 2692, Report of Marine Casualty;

and

(8) Signatures of the persons from

whom moratorium qualification or

moratorium permit would be transferred

or their representative and the persons

who would receive the transferred

moratorium qualification or moratorium

permit or their representative.

(d) Appeal. (1) The Regional Director,

or his or her appointee, will issue an

initial administrative determination to

each applicant who is denied a

moratorium vessel permit by that

official. An initial administrative

determination may be appealed by the

applicant in accordance with § 676.25.

The initial administrative determination

will be the final agency action for

purposes of judicial review if a written

appeal is not received by the Regional

Director within the period specified at

§ 676.25(d).

(2) An initial administrative

determination that denies an

application for a moratorium vessel

permit must authorize the affected

vessel to catch and retain moratorium

crab or moratorium groundfish species

with the type of fishing gear specified

on the application. The authorization

expires on the effective date of the final

agency action relating to the

application.

§ 676.6 Prohibitions.

In addition to the prohibitions

specified in §§ 620.7, 672.7, 675.7, and

676.16 of this chapter, it is unlawful for

any person to:

(a) Submit false or inaccurate

information on a moratorium vessel

permit application or application to

transfer moratorium qualification or a

moratorium vessel permit;

(b) Alter, erase, or mutilate any

moratorium vessel permit;

(c) Catch and retain a moratorium

species with a vessel that has a LOA

greater than the maximum LOA for the

vessel;

(d) Catch and retain a moratorium

species with a vessel that has received

an unauthorized transfer of moratorium

qualification;

(e) Catch and retain moratorium crab

species or conduct directed fishing for

any moratorium groundfish species with

a vessel that has not been issued a valid

moratorium vessel permit, unless the

vessel is lawfully conducting directed

fishing for sablefish under subparts B

and C of this part;

(f) Catch and retain moratorium crab

species or conduct directed fishing for

any moratorium groundfish species with

a vessel that does not have a valid

moratorium vessel permit on board,

unless the vessel is lawfully conducting

directed fishing for sablefish under

subparts B and C of this part; and

(g) Violate any other provision of

subpart A of this part.

§§ 676.7–676.9 [Reserved]

[FR Doc. 95–11777 Filed 5–11–95; 8:45 am]

BILLING CODE 3510–22–F