Pacific Coast Groundfish Fishery; Emergency Rule To Provide for Interim ``A'' Limited Entry Permits

DEPARTMENT OF COMMERCE

50 CFR Part 663

[Docket No. 941262-4362; I.D. 121294B]

Pacific Coast Groundfish Fishery; Emergency Rule To Provide for

Interim ``A'' Limited Entry Permits

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Emergency interim rule; request for comments.

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SUMMARY: NOAA issues this emergency interim rule to amend the

implementing regulations for the Pacific Coast Groundfish Fishery

Management Plan (FMP) to relax the qualifying criteria for issuance of

``A'' limited entry fishing permits endorsed with the size of larger

replacement vessels. This action is necessary to rectify immediately

what NOAA has determined to be an inequity in the treatment, under the

current regulations, of certain vessel owners with replacement vessels

more than 5 ft (1.52 m) longer than the qualifying vessel that was

replaced. The intended effect of this rule is to provide for

participation in the Pacific Coast groundfish fishery by larger

replacement vessels acquired prior to September 30, 1990 (and provided

the vessel replaced was disposed of by that date), but whose owners

were denied permits with an endorsed size for the larger vessel.

DATES: Effective December 23, 1994, until March 30, 1995. Comments will

be accepted through January 30, 1995.

ADDRESSES: Submit comments to William Stelle, Jr., Director, Northwest

Region, National Marine Fisheries Service, 7600 Sand Point Way NE, BIN-

C15700, Seattle, WA 98115-0070; or Hilda Diaz-Soltero, Director

Southwest Region, National Marine Fisheries Service, 501 West Ocean

Blvd., Suite 4200, Long Beach, CA 90802-4213. Documentation supporting

this emergency action is available at the Northwest Regional Office,

NMFS, at the address above.

FOR FURTHER INFORMATION CONTACT: William L. Robinson at (206) 526-6140;

or Rodney McInnis at (310) 980-4030. For further information on

application procedures, phone (206) 526-4353.

SUPPLEMENTARY INFORMATION: NOAA issues this emergency rule under the

authority of section 305(c)(1) of the Magnuson Fishery Conservation and

Management Act. An emergency rule that changes a fishery management

plan is treated as an amendment to such plan for the period in which

such regulation is in effect.

The Pacific Fishery Management Council (Council) prepared, and the

Secretary of Commerce approved and implemented, an amendment (Amendment

6) to the FMP, which established a limited entry program for the

Pacific Coast groundfish fishery off the coasts of Washington, Oregon,

and California. Described simply, Amendment 6 and its implementing

regulations base initial issuance of limited entry permits upon: (1)

Actual participation in the fishery during the ``window period'' of

July 11, 1984, to August 1, 1988, as evidenced by requisite landings of

groundfish; or (2) other evidence of an intent to participate in the

fishery prior to August 1, 1988, followed by actual participation in

the fishery. Owners of vessels that made the requisite groundfish

landings during the window period are eligible to receive an ``A''

endorsement, which entitles the owner to fish with the same vessel,

transfer the permit to another vessel no larger than 5 ft (1.52 m)

longer than the qualifying vessel, or sell the permit. ``A'' endorsed

permits do not expire, so long as the owner renews them annually; that

is, there is no need to actually use the vessel in the fishery to

maintain eligibility for the program.

Owners of vessels that did not make the requisite groundfish

landings during the window period, but can show evidence that they were

preparing to enter the fishery, are eligible to receive a ``provisional

A'' endorsement, which allows them to participate in the fishery for up

to a 3-year period. The ``provisional A'' category is intended to cover

persons who, prior to the close of the window period, began to

construct a new vessel or convert an old vessel (or contracted for such

construction/conversion), but did not make the requisite landings of

groundfish during the window period. This category requires that the

vessel actually participate in the groundfish fishery after its

construction or its conversion is complete. A ``provisional A''

endorsement requires that the owner land a minimum amount of groundfish

during each 365-day period commencing with the first landing of any

species of fish subsequent to the vessel having been constructed or

converted. If the requisite 3 years of landings are completed, the

owner is eligible to convert a ``provisional A'' endorsement into an

``A'' endorsement. If the requisite 3 years of landings are not

completed, when scheduled, the ``provisional A'' endorsed permit

expires.

The FMP amendment that describes the limited entry program was

adopted by the Council in September 1991, and submitted to the

Secretary for approval in 1992. A notice of availability and a proposed

rule for Amendment 6 were published for public comment in the Federal

Register on June 10, 1992 (57 FR 24589), and July 22, 1992 (57 FR

32499) respectively. The Secretary approved Amendment 6 on September 4,

1992. Final regulations responding to public comment were published on

November 16, 1992 (57 FR 54001).

During the development of Amendment 6, NOAA published two notices

in the Federal Register informing the public of the Council's progress

in developing the program so that fishing vessel owners could make

business decisions with some idea of what to expect the limited entry

program would require, regarding requirements to qualify for a limited

entry permit.

In a ``control date'' notice of August 4, 1988 (53 FR 29337), the

Council announced that only current owners of vessels used to catch

fish in the fishery during the period commencing on July 11, 1984, and

ending on August 1, 1988, were likely to be eligible for initial

permits under the forthcoming Amendment 6.

A subsequent notice published August 28, 1990 (55 FR 35163), set

forth the Council's intent to impose a September 30, 1990, cutoff date

for the completion of newly constructed or converted vessels, and that

the Council would attempt to limit fishing vessel harvesting capacity

by endorsing limited entry permits with the ``length overall'' of the

qualifying vessel. This notice also announced that replacement vessels

more than 5 ft (1.52 m) greater in overall length than qualifying

vessels that they replaced may be given a permit endorsed for the size

of the smaller qualifying vessel if replacement occurred after

September 30, 1990, while replacement vessels in place prior to

September 30, 1990, may be given a permit endorsed for the size of the

larger replacement vessel. ``In place'' means that a new vessel had

been acquired and the old vessel had been disposed of.

In Amendment 6 and its implementing regulations, the eligibility

requirements for a replacement vessel more than 5 ft (1.52 m) longer

than the replaced vessel were significantly different from the

requirements indicated in the August 28, 1990, notice. Under the final

regulations, a replacement vessel more than 5 ft (1.52 m) longer than

the qualifying vessel it replaces is eligible for a ``provisional A''

permit endorsed for the length of the longer vessel, but such a

``provisional A'' permit can be converted to a permanent ``A''

endorsement only if the vessel made Pacific groundfish landings in

three successive 365-day periods after replacement.

Amendment 6 provides sufficient rationale as to why a new entrant--

that is, a vessel under contract for construction or conversion during

the 1984 to 1988 window period--should have to meet a subsequent

landing requirement to convert a ``provisional A'' endorsement to an

``A'' endorsement. Absent this requirement, any fishing vessel under

contract for construction in any U.S. shipyard prior to August 1, 1988,

would have been eligible for a limited entry permit, regardless of the

actual intent of the owners to participate in the Pacific groundfish

fishery. The landings requirement was thus a useful surrogate for

confirming the owners' actual intent to operate in the fishery.

With respect to replacement vessels, however, the new landings

requirement served to disqualify persons who were clearly committed to

the Pacific Coast groundfish fishery through their prior participation,

but had the misfortune of not knowing in advance that they would be

subjected to a 3-year landing requirement for their new vessel.

It is reasonable to assume that some owners of qualifying vessels

replaced those vessels prior to September 30, 1990, with larger vessels

based on the expectation that they would be issued a limited entry

permit endorsed with the size of the replacement vessel. A decision to

grant these individuals an ``A'' permit endorsed with the size of the

larger replacement vessel is consistent with the objectives of the FMP

to ``accommodate historical participation'' and is consistent with the

information on probable qualifying criteria available to the public

prior to September 30, 1990. Therefore, NOAA has determined that those

fishing vessel owners who replaced a qualifying vessel prior to

September 30, 1990, with a larger vessel and who were denied ``A''

permits endorsed with the size of the larger replacement vessel were

treated unfairly and should be issued ``A'' permits endorsed with the

size of the larger replacement vessel.

Some individuals denied limited entry permits for larger

replacement vessels in place prior to September 30, 1990, may have

already purchased additional permits and combined them with a permit

endorsed with the size of a smaller replaced vessel in order to obtain

a permit endorsed with the size of the larger replacement vessel or may

have sold the permit issued for the smaller vessel. NOAA intends to

allow vessel owners in this circumstance to be granted a permit

endorsed for a length overall which, if combined with a permit endorsed

for the length overall of the replaced vessel, would result in a permit

endorsed for the length overall of the replacement vessel. This will be

determined based on the harvesting capacity ratings listed in 50 CFR

663.33(g).

For the reasons described above, NOAA has determined it is

necessary to provide immediately, by emergency regulation, for the

issuance of ``A'' permits to the owners of larger replacement vessels

in place prior to September 30, 1990. NOAA has determined that

immediate issuance is necessary to provide the opportunity to those

vessel owners to apply for and receive ``A'' permits and participate in

the Pacific groundfish fishery. Vessel owners in this circumstance have

demonstrated substantial participation in the Pacific Coast groundfish

fishery in the past and their continued participation is consistent

with the FMP. In the absence of an emergency regulation, vessel owners

would be prohibited from using their larger replacement vessels in the

groundfish fishery unless they purchase sufficient additional permits.

Under this rule, owners who were denied ``A'' permits for larger

replacement vessels, which were in place prior to September 30, 1990,

will have 45 days from the date this rule is published in the Federal

Register to apply for a permit with an ``A'' endorsement. If qualified

under the limited entry regulations, as amended by this rule,

applicants will be issued an ``A'' endorsement for the size of the

larger replacement vessel. Applicants denied an ``A'' permit under this

rule may appeal to the Director, Northwest Region, NMFS (Regional

Director), under Sec. 663.42 of the Pacific Coast groundfish

regulations, except that the opportunity to have the appeal heard by

the Council's Permit Review Board under Sec. 663.42(e) will not be

available, due to the short length of time this emergency rule will be

in effect.

In addition, any vessel owner wishing to submit a new application

for an ``A'' permit under the provisions of this rule must apply to the

Fishery Permits Office of the Northwest Region (see ADDRESSES).

Classification

NMFS has determined that this rule is necessary to respond to an

emergency situation and is consistent with the Magnuson Act and other

applicable law.

The Assistant Administrator for Fisheries, NOAA, also finds for

good cause that the reasons justifying implementation of this rule on

an emergency basis also make it impracticable and contrary to the

public interest to provide prior notice and opportunity for public

comment under section 553(b) of the Administrative Procedure Act. It is

unnecessary to delay for 30 days the effective date of these emergency

regulations, under section 553(d) of the Administrative Procedure Act

because this rule relieves a restriction.

This emergency rule has been determined to be not significant for

purposes of E.O. 12866.

No environmental assessment was prepared under the provisions of

the National Environmental Policy Act because this rule makes a minor

change and is within the scope of the Supplemental Environmental Impact

Statement prepared for the limited entry plan (Amendment 6 to the FMP).

This emergency interim rule is in compliance with the Paperwork

Reduction Act. This rule, by broadening eligibility criteria for ``A''

permits, may slightly increase the information collection burden of the

existing limited entry permit program. The emergency rule does not

alter the types of information required in a limited entry permit

application, as approved by the Office of Management and Budget, OMB

Control Number 0648-0203.

List of Subjects in 50 CFR Part 663

Fisheries, Fishing, Reporting and recordkeeping requirements.

Dated: December 23, 1994.

Charles Karnella,

Acting Program Management Officer, National Marine Fisheries Service.

For the reasons set out in the preamble, 50 CFR part 663 is amended

as follows:

PART 663--PACIFIC COAST GROUNDFISH FISHERY

1. The authority citation for part 663 continues to read as

follows:

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

2. A new Sec. 663.45 is added to read as follows:

Sec. 663.45 ``A'' permits for replacement vessels.

(a) Notwithstanding any other provision of this part, the owner of

a replacement vessel who meets the criteria of Sec. 663.35(a)(4) may be

issued a permit with an ``A'' endorsement for the size of the

replacement vessel. This permit will replace any permit previously

issued for the size of the replaced vessel.

(b) The ``A'' endorsement will be issued only for the gear(s) for

which the replaced vessel would have qualified for an ``A''

endorsement.

(c) A request for the ``A'' permit authorized by this section must

be submitted to FMD by February 13, 1995. The request must include the

name and official number of the replaced vessel and the replacement

vessel, and the NMFS groundfish limited entry application file number

for either the replaced vessel or the replacement vessel. In the case

of a vessel that would qualify under this section, for which no

application has been submitted previously, a new application must be

submitted. Application forms may be obtained from the FMD.

(d) In the case of a vessel owner that qualifies for a new ``A''

permit under this section, who has already transferred his or her

smaller permit, or purchased additional permits to combine with the

original permit, the FMD has authority to grant a permit endorsed for a

length overall which, if combined with a permit endorsed for the length

overall of the replaced vessel, would result in a permit endorsed for

the length overall of the replacement vessel. This will be determined

based on the harvesting capacity ratings listed in Sec. 663.33(g).

(e) The denial of an ``A'' permit under this section may be

appealed to the Regional Director under Sec. 663.42, except that

Sec. 663.42(e) does not apply to decisions on permits under this

section.

[FR Doc. 94-32157 Filed 12-23-94; 3:57 pm]

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