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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 961203339-6339-01; I.D. 111896B]

RIN 0648-AI88

Fisheries of the Exclusive Economic Zone Off Alaska; Scallop

Fishery Off Alaska; Scallop Vessel Moratorium

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

Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes a temporary moratorium on the entry of

additional vessels into the scallop fishery off Alaska. This action

would implement Amendment 2 to the Fishery Management Plan for the

Scallop Fishery off Alaska (FMP) as recommended by the North Pacific

Fishery Management Council (Council). The intended effect of Amendment

2 is to curtail increases in fishing capacity and to provide stability

for industry while the Council develops a long-term limited access

system for this fishery. This action is necessary to promote the

conservation and management objectives of the FMP.

DATES: Comments must be received at the following address by February

10, 1997.

ADDRESSES: Comments on the proposed rule must be sent to Ronald J.

Berg, Chief, Fisheries Management Division, Alaska Region, NMFS, P.O.

Box 21668, Juneau, AK 99802, Attn: Lori J. Gravel. Copies of Amendment

2 and the Environmental Assessment/Regulatory Impact Review/Initial

Regulatory Flexibility Analysis (EA/RIR/IRFA) prepared for this action

may be obtained from the same address. Send comments regarding burden

estimates or any other aspect of the data requirements, including

suggestions for reducing the burdens, to NMFS and to the Office of

Information and Regulatory Affairs, Office of Management and Budget

(OMB), Washington, D.C. 20503, Attn: NOAA Desk Officer.

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

SUPPLEMENTARY INFORMATION:

Management Authority

The scallop fishery in the exclusive economic zone (EEZ) off Alaska

is managed by NMFS under the FMP. The FMP was prepared by the Council

under the Magnuson-Stevens Act and approved by NMFS on July 26, 1995.

Regulations implementing the FMP are set out at 50 CFR part 679.

General regulations that also affect fishing in the EEZ are set out at

50 CFR part 600.

The Council is authorized by the Magnuson-Stevens Act to establish

a system for limiting access to a fishery in order to achieve optimum

yield if, in developing such a system, the Council and NMFS take into

account: (1) Present participation in the fishery, (2)

[[Page 67991]]

historical fishing practices in, and dependence on, the fishery, (3)

the economics of the fishery, (4) the capability of fishing vessels

used in the fishery to engage in other fisheries; (5) the cultural and

social framework relevant to the fishery, and (6) any other relevant

considerations (16 U.S.C. 1853).

Scallop Management Background

Management of scallops in the EEZ off Alaska was conducted by the

Alaska State Department of Fish and Game (ADF&G) from 1968 until the

implementation of the Federal FMP and an interim closure of the EEZ to

fishing for scallops in 1995. In 1992, ADF&G developed an Interim

Fishery Management Plan (IFMP) for scallops, as fishing effort was

rapidly increasing and maximum sustainable yield may have been

exceeded. The IFMP specified three major management measures: (1)

Setting area-specific guideline harvest levels and gear restrictions to

prevent localized overharvesting, (2) creating an observer program to

monitor the fishery and obtain biological information, and (3) limiting

effort via gear restrictions, seasons, minimum size limits, and other

measures. Consistent with scallop management actions taken on the east

coast, the State of Alaska (State) promulgated regulations that limit

crew size to a total of 12, and mandated that weathervane scallops only

be shucked manually to control effort. In 1993, the Commissioner of

ADF&G declared scallops a High Impact Emerging Fishery (5 AAC 39.210)

because of mounting resource concerns. A fishery may be regulated as a

high impact emerging commercial fishery if the Commissioner determines

that any of the following conditions apply to a species or species

group in an area or region: (1) Harvesting effort has recently

increased beyond a low sporadic level; (2) interest has been expressed

in harvesting the resource by more than a single user group; (3) the

level of harvest might be approaching a level that might not be

sustainable on a local or regional level; and (4) comprehensive

regulations to address issues of conservation, allocation, and conduct

of an orderly fishery have not been developed.

In 1993, the Council also began to address the issues of

overexploitation and overcapitalization in the scallop fishery. At the

January 1993 meeting, the Council determined that the scallop fishery

may require Federal management to protect the fishery from

overexploitation and further overcapitalization. The Council set a

control date of January 20, 1993, to notify the industry that a

moratorium for this fishery may be implemented. This control date,

which was published in the Council's newsletter, meant that fishermen

and/or vessels not participating in the fishery by that date may not be

guaranteed future access to the fishery.

The Council was presented with information indicating that the

stocks of weathervane scallops were fully exploited and any increase in

effort would be detrimental to the stocks and the Nation. Information

indicated that dramatic changes in age composition had occurred after

the fishing-up period (1980-90), with commensurate declines in harvest.

In recent years, many fishermen abandoned historical fishing areas and

searched for new areas to maintain catch levels. Increased numbers of

small scallops were reported. Additionally, scallops are highly

susceptible to overfishing and boom/bust cycles worldwide.

The need to limit access was the primary motivation for the Council

to prepare the FMP in lieu of State management of the scallop fishery.

As anticipated, effort in the scallop fishery increased in 1993 when 32

scallop permits, representing 21 vessels, were issued by the State.

Fifteen of these vessels had made landings by the end of 1993. Even

without additional vessels entering the fishery, the Council believed

that the 1993 fishery was overcapitalized, meaning that too much

capital was invested relative to the fleet size necessary to conduct

the fishery. In 1992, seven vessels harvested 1.8 million lb (816 mt),

for an average of 257,143 lb (116.6 mt) harvested per vessel. The 1993

quota was set at 890,000 lb (403.7 mt) for areas with specified

guideline harvest levels, or about one-half of the 1992 landings. This

quota could have been harvested by three or four vessels. In 1993,

landings from areas without guideline harvest levels totaled 524,000 lb

(237.7 mt), which could have been taken by an additional two vessels.

Yet, 15 vessels participated in the 1993 fishery. In 1994, the growth

trend in the fishery continued with 16 vessels harvesting 1,235,269 lb

(560.3 mt) of scallops.

At its January 1993 meeting, the Council directed staff to proceed

with an analysis to evaluate potential Federal management of Alaskan

scallops. A vessel moratorium was proposed as an essential element of a

Federal management regime to stabilize the size and capitalization of

the scallop fleet during the time that the Council considers limited

entry alternatives for this fishery.

At its June 1993 meeting, the Council and its advisory panels

reviewed a draft EA/RIR/IRFA analysis of management alternatives for

the scallop fishery. Also at that meeting, the Council reaffirmed the

control date of January 20, 1993, and recommended several revisions to

the draft analysis, which was subsequently released for public review

on August 9, 1993. At the September 1993 Council meeting, public

testimony was received on scallop management, particularly on the

qualifying criteria for a moratorium. At that meeting, the Council

tentatively identified its preferred alternative of a separate FMP for

the scallop fishery, with shared management authority with the State.

The preferred alternative also included a vessel moratorium option.

However, the Council requested additional analysis to assist with

determining appropriate qualifying criteria. Additional analysis was

incorporated into the revised draft FMP, including a draft EA/RIR/IRFA,

and was released for public review on November 30, 1993.

At its April 1994 meeting, the Council and its advisory bodies

reviewed the draft FMP, took public testimony, and voted to adopt a

separate FMP for the scallop fishery. Eighteen vessels would qualify

under the criteria adopted by the Council in April 1994. The 1994 draft

FMP, which deferred most management measures to the State, was based on

the premise that all vessels fishing for scallops in the Federal waters

off Alaska would also be registered with the State.

While regulations were being drafted to implement the FMP, a vessel

that had nullified its registration with the State began fishing for

scallops in the Federal waters of the Prince William Sound Registration

Area, which the State had already closed after the guideline harvest

level of 50,000 lb (22,686 kg) was taken on January 26, 1995. The State

did not have authority to stop the vessel from fishing, because it was

no longer registered with the State and was fishing in the EEZ. On

February 17, 1995, the Council met by emergency teleconference and

recommended that NMFS implement an emergency rule to close the EEZ off

Alaska to scallop fishing to prevent further uncontrolled harvests in

Federal waters. The emergency rule went into effect on February 23,

1995 and was published on March 1, 1995 (60 FR 11054).

At its April 1995 meeting, the Council took additional steps to

prevent unregulated and uncontrolled harvests after the emergency rule

expired. On April 19, 1995, the Council adopted an FMP, which continued

the closure of the EEZ to fishing for scallops for a 1-year period. The

FMP was approved by

[[Page 67992]]

NMFS on July 26, 1995. Additional information on the FMP and the

interim closure of Federal waters to fishing for scallops may be found

in the proposed and final rules implementing the FMP (60 FR 24822, May

10, 1995, and 60 FR 42070, August 15, 1995, respectively).

At its June 1995 meeting, the Council considered the testimony and

recommendations of its Scientific and Statistical Committee, fishing

industry representatives, and the general public on alternative

management options for the scallop fishery to replace the interim

closure. The Council also reviewed a revised EA/RIR/IRFA that outlined

the potential impacts of a full Federal management regime, including a

vessel moratorium based on the previously approved qualifying criteria.

Based on the above information, the Council adopted Amendment 1 to the

FMP authorizing a suite of Federal management measures, including the

vessel moratorium.

In April 1996, the Council separated the scallop vessel moratorium

from the other management measures contained in Amendment 1 and

recommended instead that the moratorium proceed as Amendment 2 to the

FMP. The Council took this action so that the development of a vessel

moratorium would not delay the reopening of the fishery. Amendment 1

was subsequently approved by NMFS on July 10, 1996 (61 FR 38099, July

23, 1996).

Scallop Vessel Moratorium

The following paragraphs explain each aspect of the proposed

scallop vessel moratorium.

Duration of the Moratorium

The temporary vessel moratorium would remain in effect for 3 years

from the date of implementation or until repealed or replaced by a

permanent limited access program. Amendment 2 would allow the Council

to recommend that the moratorium be extended for no more than 2 years

if a limited access program were imminent.

Qualification Criteria

Scallop moratorium permits would be issued to the person (or

successor in interest) who owned the qualifying vessel when it most

recently made qualifying landings. The Council indicated that when

vessels were sold during or after the moratorium qualification period,

the moratorium rights should attach to the owner of the vessel when it

most recently made qualifying landings such that each vessel generates

only one moratorium permit. The Council believed that moratorium rights

should be assigned to the person who owned a vessel when it qualified

for a moratorium permit rather than some subsequent owner who does not

have a history of participation in the fishery with that vessel. The

Council adopted this approach after the testimony of one scallop

fisherman who had a long history of participation in the scallop

fishery, but who had sold his qualified vessel prior to the

announcement of a moratorium control date and had replaced it with a

new vessel that would not qualify under the moratorium.

A vessel would qualify for inclusion in the moratorium if it made a

legal landing of scallops during 1991, 1992 or 1993; or during at least

4 separate years from 1980 through 1990. The Council chose this two-

tier approach to emphasize recent participation in the fishery by

allowing all vessels with any legal landings in 1991, 1992, or 1993 to

qualify. Historic participants would qualify under the more restrictive

standard of a legal landing during at least 4 separate years from 1980

through 1990.

The Council adopted the 1980 start date for qualification of

historic participants, because data prior to 1980 were not available.

More important, 1980 marked the first year of the buildup of the

scallop fishery and was thus considered to be a reasonable base year

for historical participation. Less than three vessels participated in

1974, 1976, 1977, and 1979, and no vessels participated in 1978. The

1990 cutoff date for historic participation was chosen because vessels

making landings in 1991, 1992, or 1993 would be included as recent

participants. The Council did not include those vessels that

participated in 1990, but that did not have sufficient historic

participation or more recent participation in the fishery, as

moratorium qualified. The Council determined that such vessels had

neither recent nor historic dependence on the fishery. Vessels that

were in the ``pipeline'' to fish for Alaskan scallops (i.e., under

construction, being refitted, relocated, etc.) but that had not made a

required landing, would not qualify under the moratorium. The Council

had been discussing a scallop moratorium throughout 1993. The

qualification period was extended from the January 20, 1993, control

date to the end of 1993 to address the problem of vessels in the

``pipeline.''

The Council chose not to extend the moratorium qualifying period

past 1993 in order to discourage speculative entry while the moratorium

was being developed and submitted for review. Additional entry into the

fishery during the development and implementation phase would only

exacerbate the very problems that the moratorium is intended to solve.

Fishermen received extensive notice through the Council process

described above that the fishery was being limited in a way that

jeopardized any investments they would make in the fishery after 1993.

According to ADF&G landing records, at least three vessels have entered

the scallop fishery since the moratorium cut-off date, and they would

not qualify for moratorium permits. However, participation in the

scallop fishery by these vessels has been sporadic. None of these

vessels made a single landing during the entire moratorium

qualification period of 1980-93, nor have they participated on a

consistent basis since the moratorium cut-off date of December 31,

1993.

Area Endorsements

Moratorium permits would include area endorsements for fishing

within Registration Area H (Cook Inlet) and/or waters outside

Registration Area H. Qualified vessels should have made at least one

legal landing of scallops during the qualifying period within an

endorsement area to receive an endorsement for that area. No crossovers

would be allowed between Registration Area H and waters outside

Registration Area H unless a vessel qualifies in both areas.

The Council adopted the area endorsement approach in order to

preserve the unique nature of the Cook Inlet scallop fishery, which is

conducted exclusively by small boats operating out of Homer. The State

has preserved the Cook Inlet scallop fishery as a distinct small boat

fishery by limiting Cook Inlet vessels to a single 6-ft (1.83 m) dredge

and exempting Cook Inlet vessels from the observer coverage

requirements that are in effect for all other registration areas

(Sec. 679.65(c)). According to ADF&G landing data, only one qualifying

vessel fished both inside and outside Registration Area H during the

qualifying period and would receive endorsements to fish in both areas.

Vessel Reconstruction and Maximum Length Overall (LOA)

To prevent increased capitalization in the scallop fishery, the

Council chose to limit increases in vessel LOA due to the

reconstruction of vessels during the moratorium to no more than 1.2

times or 20 percent of the LOA of the vessel on the control date of

January 20, 1993. For vessels under reconstruction on January 20, 1993,

the maximum LOA would be the LOA on the date reconstruction was

completed, with no

[[Page 67993]]

additional increases allowed. Each scallop moratorium permit would

specify a maximum LOA based on the above criteria.

The 20-percent limit was chosen by the Council for the same reasons

that a 20-percent limit was established for the groundfish and crab

vessel moratorium. The Council believed that limiting increases in

vessel size to 20 percent of LOA would allow for some upgrading of

vessels to improve stability and safety, while limiting the further

overcapitalization that could occur through massive reconstruction of

existing vessels.

Transferability

Moratorium permits would be valid on any vessel that is less than

or equal to the maximum LOA identified on the permit and that is owned,

leased, or operated by the person identified on the moratorium permit.

A vessel fishing for scallops would be required to carry a valid

moratorium permit on board whenever the vessel is fishing for scallops,

or has scallops retained on board. A person could transfer a moratorium

permit to another person if a completed transfer application were

submitted to NMFS and subsequently approved. In this event, a new

permit would be issued in the name of the person who received the

transferred permit.

Exemptions

Vessels less than or equal to 26 ft (7.9 m) LOA in the Gulf of

Alaska, and less than or equal to 32 ft (9.8 m) LOA in the Bering Sea

and Aleutian Islands Area, would be exempt from the scallop moratorium

when fishing for scallops with dive gear. The Council wanted to provide

for the potential development of cleaner gear types such as dive gear

and chose to adopt the same size limits exemption for small vessels as

were established for the groundfish and crab vessel moratorium, except

that the exemption only applies when fishing with dive gear. An

operator of a vessel under the size limits listed above would still be

required to carry a valid scallop moratorium permit on board when

fishing with dredge gear, or from a vessel that has dredge gear on

board.

While commercial harvesting of shellfish and sea cucumbers with

dive gear does occur in Alaska waters, safety and technology factors

generally limit this type of fishing to shallow, near-shore State

waters. NMFS has no record of commercial divers harvesting scallops in

Federal waters off Alaska and believes it is unlikely that any

commercial divers would choose to attempt such an endeavor.

Nevertheless, this exemption would ensure that a vessel moratorium

designed to limit further overcapitalization by the dredge fleet would

not prevent future exploration with dive gear.

Appeals

NMFS would issue an initial administrative determination to each

applicant who is denied a scallop moratorium permit. An initial

administrative determination may be appealed by the applicant in

accordance with the procedures established for the groundfish and crab

moratorium at Sec. 679.43. An initial administrative determination that

denies an application for a scallop moratorium permit would authorize

the affected person to catch and retain scallops with an interim

permit. The interim permit would expire on the effective date of the

final agency action relating to the application. An administrative

determination denying the issuance of a scallop moratorium permit or

application for transfer would be the final agency action for purposes

of judicial review.

Technical changes to existing regulations

This proposed rule contains technical changes to the existing

definitions of ``legal landing'', ``maximum LOA'', ``moratorium

qualification'', ``moratorium species'', and ``qualifying period'' set

out at Sec. 679.2. These technical changes would be made to clarify

which terms apply only to the existing groundfish and crab moratorium

and which terms also would apply to the scallop moratorium.

A technical change would also be made to the description of the

groundfish and crab moratorium appeals process at Sec. 679.4(c)(10)(i)

to specify that appeals are to be sent to the Regional Administrator

rather than to the Chief, RAM Division. This change is necessary to

make Sec. 679.4(c)(10)(i) consistent with the appeals process described

at Sec. 679.43(c). In addition, Sec. 679.43(a) would be revised to

indicate that the appeals process described at Sec. 679.43 also applies

to scallop moratorium appeals made under Sec. 679.4(g).

Classification

At this time, NMFS has not determined that the FMP amendment that

this rule would implement is consistent with the national standards,

other provisions of the Magnuson-Stevens Act, and other applicable

laws. NMFS, in making that determination will take into account the

data, views, and comments received during the comment period.

This proposed rule has been determined to be not significant for

the purposes of E.O. 12866.

This proposed rule contains a new collection-of-information

requirement subject to the Paperwork Reduction Act (PRA). This

collection-of-information requirement has been submitted to OMB for

approval. The new information requirements include an application for a

moratorium permit and an application for transfer of a moratorium

permit. Public reporting burden for these collections of information

are estimated to be 0.33 and 0.5 hours, respectively. Send comments

regarding reporting burden or any other aspect of the data

requirements, including suggestions for reducing the burdens, to NMFS

and OMB (see ADDRESSES).

Notwithstanding any other provision of the law, no person is

required to respond to, nor shall any person be subject to a penalty

for failure to comply with, a collection of information subject to the

requirements of the PRA, unless that collection of information displays

a currently valid OMB control number.

An RIR was prepared for this proposed rule that describes the

management background, the purpose and need for action, the management

action alternatives, and the social impacts of the alternatives. The

RIR also estimates the total number of small entities affected by this

action and analyzes the economic impact on those small entities.

The Council prepared an IRFA as part of the RIR, which describes

the impact this proposed rule would have on small entities, if adopted.

The analysis shows that the economic effects of this proposed rule to

the regulated community would be significant and positive. By limiting

participation at current levels, the temporary moratorium would prevent

further overcapitalization of the fleet and reduce the potential for

overfishing of the scallop resource. Most commercial fishing vessels

harvesting scallops off Alaska meet the definition of a small entity

under the RFA. In 1994, 86 percent of the scallop harvests off Alaska

were taken from Federal waters and 11 of the 16 vessels harvesting

scallops participated in no other fishery. Eighteen vessels would

qualify for the moratorium under the qualification criteria adopted by

the Council. According to ADF&G landing records, at least three vessels

have entered the scallop fishery since the moratorium cut-off date and

would not qualify for moratorium permits. However, participation in the

scallop fishery by

[[Page 67994]]

these three vessels has been sporadic. None of these vessels made a

single landing during the entire moratorium qualification period of

1980-93, nor have they participated on a consistent basis since the

moratorium cut-off date of December 31, 1993, and none of these three

vessels has re-entered the fishery since the re-opening of Federal

waters to February February fishing for scallops on August 1, 1996,

under Amendment 1 to the FMP. Fishermen received extensive notice

through the Council process that the fishery was being limited in a way

that jeopardized any investments they made in the fishery after 1993.

Copies of the EA/RIR/IRFA are available from NMFS (see ADDRESSES).

List of Subjects in 50 CFR Part 679

Fisheries, Reporting and recordkeeping requirements.

Dated: December 19, 1996.

Nancy Foster,

Deputy Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons set out in the preamble, 50 CFR part 679 is

proposed to be amended as follows:

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

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

follows:

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

2. In Sec. 679.2, the definitions of ``Legal landing'', ``Maximum

LOA'' introductory text, ``Moratorium qualification'', ``Moratorium

species'', and ``Qualifying period'' are revised to read as follows:

Sec. 679.2 Definitions.

* * * * *

Legal landing (applicable through [insert date 3 years after the

effective date of the final rule]) means any amount of a moratorium

species that was or is landed in compliance with Federal and state

commercial fishing regulations in effect at the time of the landing.

* * * * *

Maximum LOA (applicable through December 31, 1998), with respect to

a vessel's eligibility for a groundfish or crab moratorium permit,

means: * * *

* * * * *

Moratorium qualification (applicable through December 31, 1998)

with respect to the groundfish and crab vessel moratorium program means

a transferable prerequisite for a moratorium permit.

Moratorium species means:

(1) (Applicable through [insert date 3 years after the effective

date of the final rule]) any scallop species.

(2) (Applicable through December 31, 1998) any moratorium crab

species or moratorium groundfish species.

* * * * *

Qualifying period (applicable through December 31, 1998) with

respect to the groundfish and crab vessel moratorium program means the

period to qualify for the moratorium from January 1, 1988, through

February 9, 1992.

* * * * *

3. In Sec. 679.4, paragraph (c)(10)(i) is revised and a new

paragraph (g) is added to read as follows:

Sec. 679.4 Permits.

* * * * *

(c) * * *

(10) Appeal--(i) Determination. The Chief, RAM Division, will issue

an initial administrative determination to each applicant who is denied

a moratorium permit by that official. An initial administrative

determination may be appealed by the applicant in accordance with

Sec. 679.43. The initial administrative determination will be the final

agency action if a written appeal is not received by the Regional

Administrator, within the period specified at Sec. 679.43.

* * * * *

(g) Scallop moratorium permits (applicable through [Insert date

three years after the effective date of the final rule])--(1) General--

(i) Applicability. Except as provided under paragraph (g)(2) of this

section, any vessel used to take or retain any scallop species in

Federal waters must have a valid scallop moratorium permit on board the

vessel at all times when the vessel is engaged in fishing for scallops

in Federal waters or has scallops taken from Federal waters retained on

board. Any vessel used to take or retain scallops in Federal waters

within Scallop Registration Area H must have a scallop moratorium

permit endorsed for Registration Area H. Any vessel used to take or

retain scallop species in Federal waters outside Registration Area H

must have a scallop moratorium permit endorsed for Federal waters

exclusive of Registration Area H.

(ii) Duration. The scallop moratorium permit is valid for the

duration of the moratorium unless otherwise specified.

(iii) Validity. A scallop moratorium permit issued under this

paragraph is valid only if:

(A) The vessel is owned, leased, or operated by the person named on

the moratorium permit.

(B) The vessel's LOA does not exceed the maximum LOA specified on

the permit.

(C) The permit has not been revoked or suspended under 15 CFR part

904.

(iv) Inspection. A scallop moratorium permit must be presented for

inspection upon the request of any authorized officer.

(2) Exemptions. A vessel that has an LOA of less than or equal to

26 ft (7.9 m) in the GOA, and less than or equal to 32 ft (9.8 m) in

the BSAI and that does not have dredge gear on board is exempt from the

requirements of this paragraph (g) when fishing for scallops with dive

gear.

(3) Qualification criteria--(i) Qualifying period. A vessel would

qualify for a moratorium permit if the vessel made a legal landing of

scallops during 1991, 1992 or 1993 or during at least 4 separate years

from 1980 through 1990.

(ii) Area endorsements. A scallop moratorium permit may contain an

area endorsement for Federal waters within Registration Area H and for

Federal waters outside Registration Area H.

(A) Registration Area H. A scallop moratorium permit may be

endorsed for fishing in Federal waters within Registration Area H if a

qualifying vessel made a legal landing of scallops taken inside

Registration Area H during the qualifying period defined at paragraph

(g)(3)(i) of this section.

(B) Waters outside Registration Area H. A scallop moratorium permit

may be endorsed for fishing in Federal waters outside Registration Area

H if the qualifying vessel made a legal landing of scallops taken in

waters outside Registration Area H during the qualifying period defined

at paragraph (g)(3)(i) of this section.

(iii) Legal landings. Evidence of legal landings shall be limited

to documentation of state or Federal catch reports that indicate the

amount of scallops harvested, the registration area or location in

which they were caught, the vessel used to catch them, and the date of

harvesting, landing, or reporting.

(4) Maximum LOA--(i) All scallop moratorium permits will specify a

maximum LOA, which will be 1.2 times the LOA of the qualifying vessel

on January 20, 1993, unless the qualifying vessel was under

reconstruction on January 20, 1993.

(ii) If a qualifying vessel was under reconstruction on January 20,

1993, the maximum LOA will be the LOA on the date reconstruction was

completed.

(5) Application for permit. A scallop moratorium permit will be

issued to the person or successor in interest who was the owner of a

qualifying vessel when

[[Page 67995]]

it most recently made qualifying landings under paragraph (g)(3) of

this section, if he/she submits to the Regional Administrator a

complete scallop moratorium permit application that is subsequently

approved. A complete application for a scallop moratorium permit must

include the following information:

(i) Name(s), signature(s), business address(es), and telephone and

fax numbers of the person(s) who owned the vessel when the most recent

qualifying landing of scallops occurred.

(ii) Name of the qualifying vessel, state registration number of

the vessel and the USCG number of the vessel, if any.

(iii) Valid documentation of the vessel's basis for moratorium

qualification, if requested by the Regional Administrator due to an

absence of landings records for the vessel for the qualifying period.

(iv) Reliable documentation of the vessel's qualifying LOA, if

requested by the Regional Administrator, such as a vessel survey,

builder's plan, state or Federal registration certificate, or other

reliable and probative documents that clearly identify the vessel and

its LOA, and that are dated on or before January 20, 1993.

(v) Name(s) and signature(s) of the person(s) who is/are the

owner(s) of the vessel or the person(s) responsible for representing

the vessel owner.

(vi) If the qualifying vessel was under reconstruction on January

20, 1993, the permit application must contain the following additional

information:

(A) A legible copy of written contracts or written agreements with

the firm that performed reconstruction of the vessel and that relate to

that reconstruction.

(B) An affidavit signed by the vessel owner(s) and the owner/

manager of the firm that performed the reconstruction specifying the

beginning and ending dates of the reconstruction.

(C) An affidavit signed by the vessel owner(s) specifying the LOA

of the reconstructed vessel.

(6) Vessel ownership. Evidence of vessel ownership shall be limited

to the following documents, in order of priority:

(i) For vessels required to be documented under the laws of the

United States, the USCG abstract of title issued in respect to that

vessel.

(ii) A certificate of registration that is determinative as to

vessel ownership.

(iii) A bill of sale.

(7) Permit transfer. A complete application for approval of

transfer of a scallop moratorium permit must include the following

information:

(i) Name(s), business address(es), and telephone and fax numbers of

the applicant(s) including the holders of the scallop moratorium permit

that is to be transferred and the person who is to receive the

transferred scallop moratorium permit.

(ii) Name(s) and signature(s) of the person(s) from whom moratorium

qualification would be transferred or their representative, and the

person(s) who would receive the transferred moratorium qualification or

their representative.

(iii) A legible copy of a contract or agreement to transfer the

moratorium permit in question must be included with the application for

transfer that specifies the person(s) from whom the scallop moratorium

permit is to be transferred, the date of the transfer agreement,

name(s) and signature(s) of the current holder(s) of the permit, and

name(s) and signature(s) of person(s) to whom the scallop moratorium

permit is to be transferred.

(8) Appeal--(i) Determination. The Chief, RAM Division, will issue

an initial administrative determination to an applicant upon denial of

a scallop moratorium permit by that official. An initial administrative

determination may be appealed by the applicant in accordance with

Sec. 679.43. The initial administrative determination will be the final

agency action if a written appeal is not received by the Regional

Administrator postmarked within the period specified at Sec. 679.43.

(ii) Permit denial. An initial administrative determination that

denies an application for a scallop moratorium permit may authorize the

affected person to take or retain scallops. The authorization expires

on the effective date of the final agency action relating to the

application.

(iii) Final action. An administrative determination denying the

issuance of a scallop moratorium permit is the final agency action for

purposes of judicial review.

4. In Sec. 679.43, paragraph (a) is revised to read as follows:

Sec. 679.43 Determinations and appeals.

(a) General. This section describes the procedure for appealing

initial administrative determinations made under this subpart as well

as Sec. 679.4(c), Sec. 679.4(g) and portions of subpart C of this part

that apply to the halibut and sablefish CDQ program.

* * * * *

[FR Doc. 96-32751 Filed 12-20-96; 12:43 pm]

BILLING CODE 3510-22-F