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. 961203339-7063-02; I.D. 111896B]

RIN 0648-AI88

Fisheries of the Exclusive Economic Zone Off Alaska; Scallop

Fishery Off Alaska; Scallop Vessel Moratorium

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

Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: NMFS approves a temporary moratorium on the entry of

additional vessels into the scallop fishery off Alaska. This action

implements Amendment 2 to the Fishery Management Plan for the Scallop

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

Management Council (Council). The purpose of Amendment 2 is to curtail

increases in fishing capacity and provide stability for industry while

the Council develops a long-term limited access system for this

fishery. This action is necessary to promote the conservation and

management objectives of the FMP.

DATES: Effective May 12, 1997 through June 30, 2000, except for

Sec. 679.4(g)(1)(ii), which will become effective on July 1, 1997,

through June 30, 2000; and the amendments to

[[Page 17750]]

Secs. 679.2, 679.4(c)(10)(i), and 679.43 will become

effective May 12, 1997.

ADDRESSES: Copies of Amendment 2 and the Environmental Assessment/

Regulatory Impact Review/Final Regulatory Flexibility Analysis (EA/RIR/

FRFA) prepared for this action may be obtained from NMFS, P.O. Box

21668, Juneau, AK 99802, Attn: Lori J. Gravel.

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

SUPPLEMENTARY INFORMATION:

Background

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

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

under the Magnuson-Stevens Fishery Conservation and Management Act

(Magnuson-Stevens Act) and approved by NMFS on July 26, 1995.

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

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

50 CFR part 600.

At its April 1996 meeting, the Council adopted Amendment 2 and

recommended that NMFS prepare a rulemaking to implement the amendment.

A notice of availability of Amendment 2 was published in the Federal

Register on December 3, 1996 (61 FR 64087), and invited comment on the

amendment through February 3, 1997. No written comments were received

on the amendment. A proposed rule to implement Amendment 2 was

published in the Federal Register on December 26, 1996 (61 FR 67990).

Comments on the proposed rule were invited through February 10, 1997.

One letter containing three comments on the proposed rule was received

by the end of the comment period. These comments are summarized and

responded to in the Response to Comments section below.

Upon reviewing the reasons for Amendment 2, and the comments on the

proposed rule to implement it, NMFS has determined that this action is

necessary for the conservation and management of the scallop fishery

off Alaska. Amendment 2 was approved by NMFS on March 5, 1997, under

section 304(b) of the Magnuson-Stevens Act. Additional information on

this action may be found in the preamble to the proposed rule and in

the EA/RIR/FRFA.

Response to Comments

Comment 1. The moratorium will authorize 15 vessels to operate in

Federal waters outside Cook Inlet. We believe this is too large a fleet

to be economically sustainable. NMFS and the State of Alaska manage the

scallop fishery by establishing total allowable catch (TAC) limits that

are actually the upper limit of a range of harvest that will be

permitted. It appears that analysis of the scallop moratorium has

focused on the TAC as if it were the amount guaranteed to the scallop

fleet for harvest. However, harvests are often stopped before the TAC

is reached, due to attainment of the crab bycatch limit or because

declining catch per unit effort in the fishery indicates that the

resource is not healthy enough to sustain yield at the TAC level.

Consequently, the published TACs do not accurately portray the

availability of scallop resource for harvest.

In our experience of over 20 years in the Alaska scallop fishery,

declines in catch closely follow years of overcapitalization. In our

view, the Federal waters outside Cook Inlet cannot support 15 vessels.

The scallop fishery has never sustained that level of effort for more

than a 2- or 3-year period, and those periods of overharvest have

always been followed by years when effort was reduced to one or even

zero vessels. We agree with the conclusion in the proposed rule--that

four to six vessels could harvest the available quota. However, because

the available quota is overstated, reviewers may misunderstand the

economics of the fishery. Under the actual harvest levels realized in

the fishery, four to six vessels may make a living--nothing more.

Response. NMFS agrees that the scallop resource may be insufficient

to support all qualified vessels in a year-round fishery. However, the

scallop vessel moratorium is designed as a temporary measure to curtail

additional increases in fishing capacity and provide stability for

industry while a long-term limited access program is developed. The

moratorium qualification criteria were established by the Council after

extensive analysis, public testimony, and debate. These qualification

criteria will achieve the Council's objectives while treating past and

present participants in the fishery in a fair and equitable manner.

Comment 2. Vessels that immigrate to the scallop fishery from other

areas or fisheries in which they are licensed are able to return to

those fisheries after a downturn in the scallop stock. Vessels that

have depended exclusively on the Alaskan scallop fishery to the extent

that they hold no permits nor expertise in other fisheries or areas are

unable to compensate for losses in the scallop fishery. Ultimately,

then, the price for overcapitalization is paid only by those who

exclusively depend on the Alaskan scallop fishery.

Response. Comment noted. Also, see response to comment 1.

Comment 3. We agree with ending the qualifying period in 1993 as

approved by the Council. Although not stated in the proposed rule, the

emergency action required of the Council and NMFS in reaction to

unrestricted fishing by a vessel that had renounced its Alaskan

registration also contributed significantly to the delay in issuance of

the moratorium proposed rule.

Response. Comment noted.

Elements of the Scallop Vessel Moratorium

The following paragraphs explain each aspect of the scallop vessel

moratorium.

Applicability

Beginning July 1, 1997, any vessel fishing for scallops in the EEZ

off Alaska must carry a valid scallop moratorium permit at all times,

and the vessel owner or operator must be named on the moratorium

permit.

Duration of the Moratorium

The scallop vessel moratorium will remain in effect for 3 years

from July 1, 1997, unless repealed or replaced by a permanent limited

access program. Under Amendment 2, the Council may recommend that the

moratorium be extended for no more than 2 years if a permanent limited

access program is imminent.

Qualification Criteria

A vessel qualifies for inclusion in the moratorium if it made a

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

least 4 separate years from 1980 through 1990. This two-tier approach

emphasizes recent participation in the fishery by allowing all vessels

with any legal landings in 1991, 1992, or 1993 to qualify. Historic

participants qualify under the more restrictive standard of a legal

landing during at least 4 separate years from 1980 through 1990.

Scallop moratorium permits will be issued to the person (or

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

recently made a qualifying landing. If that vessel were sold during or

after the moratorium qualification period, the moratorium permit would

be available to the person who owned the vessel (or successor in

interest) when it most recently made a qualifying landing, such that

each vessel generates only one moratorium permit.

[[Page 17751]]

Area Endorsements

Moratorium permits will be endorsed for fishing in Federal waters

within Registration Area H (Cook Inlet) or fishing within Federal

waters outside Registration Area H. Qualified vessels must have made at

least one legal landing of scallops during the qualifying period within

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

crossovers will be allowed between Registration Area H and waters

outside Registration Area H unless a vessel qualifies in both areas.

Vessel Reconstruction and Maximum Length Overall (LOA)

To prevent increased capitalization in the scallop fishery,

lengthening of a vessel is limited to no more than 1.2 times or 20

percent of the vessel's LOA on January 20, 1993. For vessels under

reconstruction on January 20, 1993, vessels are limited to the LOA on

the date reconstruction was completed, with no additional increases

allowed. Each scallop moratorium permit will specify a maximum LOA

based on the above criteria. These restrictions will allow for some

upgrading of vessels to improve stability and safety, while limiting

the further overcapitalization that could occur through massive

reconstruction of existing vessels.

Transferability

Moratorium permits are valid on any vessel that is less than or

equal to the maximum LOA identified on the permit, provided that the

vessel owner or operator is named on the moratorium permit. A person

may transfer a moratorium permit to another person if a completed

transfer application is submitted to NMFS and subsequently approved. In

this event, a new permit will be issued in the name of the person who

received the transferred permit. A permit transfer is required to

reflect any change in permit ownership including the addition or

deletion of a partner's name. In addition, the area endorsements on a

moratorium permit may not be transferred independently of the permit

itself.

Exemptions

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

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

and Aleutian Islands area, are exempt from the scallop moratorium when

fishing for scallops with dive gear. An operator of a vessel under the

size limits listed above is still required to carry a valid scallop

moratorium permit on board when fishing with dredge gear or when dredge

gear is on board.

Appeals

NMFS will issue an initial administrative determination to each

applicant who is denied a scallop moratorium permit. An initial

administrative determination may be appealed by the applicant in

accordance with the procedures established for the individual fishing

quota program at Sec. 679.43. An initial administrative determination

that denies an application for a scallop moratorium permit may

authorize the affected person to catch and retain scallops with an

interim permit. Any interim permit that authorizes fishing will expire

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

application. An administrative determination denying the issuance of a

scallop moratorium permit or application for transfer is the final

agency action for purposes of judicial review.

Technical Changes to Existing Regulations

This final rule contains technical changes to the existing

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

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

out at Sec. 679.2. These technical changes are necessary to clarify

which terms apply only to the existing groundfish and crab moratorium

and which terms also would apply to the scallop moratorium.

A technical change also is made to the description of the

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

to specify that appeals are to be sent to the Administrator, Alaska

Region, NMFS (Regional Administrator), rather than to the Chief, RAM

Division. This change is necessary to make Sec. 679.4(c)(10)(i)

consistent with the appeals process described at Sec. 679.43(c). In

addition, Sec. 679.43(a) is revised to indicate that the appeals

process described at Sec. 679.43 also applies to scallop moratorium

appeals made under Sec. 679.4(g).

Changes from the Proposed Rule

The following changes were made from the proposed rule.

1. The applicable date of the scallop moratorium was delayed until

July 1, 1997, which coincides with the start of the scallop fishing

season in most areas of Alaska. The purpose of this change is to

provide industry with sufficient time to apply for and receive scallop

moratorium permits.

2. The language governing permit validity at

Sec. 679.4(g)(1)(iii)(A) was changed to specify that the permit is

valid only if the person named on the moratorium permit is the owner or

operator of the vessel on which the permit is used. This change was

made for clarity and consistency, because the terms ``owner'' and

``operator'' are defined in regulation at Sec. 600.10.

3. The language governing permit transfers at Sec. 679.4(g)(7) was

revised to clarify that a permit transfer is required to reflect any

change in permit ownership including the addition or subtraction of a

partner.

4. Finally, paragraph 679.4(g)(9) was added to clarify for the

public that scallop moratorium permits do not represent any interest

that is subject to the ``takings'' provision of the U.S. Constitution.

The public is advised that these permits represent a harvesting

privilege that may be amended or revoked subject to the requirements of

applicable Federal law.

Classification

The Regional Administrator determined that Amendment 2 is necessary

for the conservation and management of the scallop fishery off Alaska

and that it is consistent with the Magnuson-Stevens Act and other

applicable laws.

This final rule has been determined to be not significant for the

purposes of E.O. 12866.

The Council prepared a final regulatory flexibility analysis as

part of the regulatory impact review. The analysis concluded that

economic effects of Amendment 2 could have a significant and positive

impact on a substantial number of small entities. A moratorium on the

entry of new vessels into the scallop fishery will help prevent further

overcapitalization of the fishery and the loss of income to current

participants that would result from further overcapitalization.

However, it is impossible to determine how many new vessels would enter

the fishery in the absence of a vessel moratorium. As a consequence,

the benefits of a moratorium are impossible to quantify. The proposed

rule to implement Amendment 2 was published in the Federal Register on

December 26, 1996, and comments were invited on the IRFA. No comments

were received on the IRFA. Because the economic impacts are beneficial,

no efforts have been made to mitigate these effects. A copy of this

analysis is available from NMFS (see ADDRESSES).

This final rule contains a collection-of-information requirement

subject to the Paperwork Reduction Act. The collection of this

information has been approved by the Office of Management and Budget,

OMB Control Number 0648-0206. The new information

[[Page 17752]]

requirement includes an application for a moratorium permit and an

application for transfer of a moratorium permit. Public reporting

burden for these collections of information are estimated to be 0.33

and 0.5 hours, respectively. Send comments regarding these burden

estimates or any other aspect of the data requirements, including

suggestions for reducing the burden, to NMFS (see ADDRESSES) and to the

Office of Information and Regulatory Affairs, Office of Management and

Budget, Washington, DC 20503 (ATTN: NOAA Desk Officer).

Notwithstanding any other provision of the law, no person is

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

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

requirements of the PRA, unless that collection of information displays

a currently valid OMB control number.

List of Subjects in 50 CFR Part 679

Fisheries, Reporting and recordkeeping requirements.

Dated: April 7, 1997.

Nancy Foster,

Deputy Assistant Administrator for Fisheries, National Marine Fisheries

Service.

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

as follows:

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

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

follows:

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

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

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

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

Sec. 679.2 Definitions.

* * * * *

Legal landing (applicable through June 30, 2000) means any amount

of a moratorium species that was or is landed in compliance with

Federal and state commercial fishing regulations in effect at the time

of the landing.

* * * * *

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

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

means:

* * * * *

Moratorium qualification (applicable through December 31, 1998)

with respect to the groundfish and crab vessel moratorium program means

a transferable prerequisite for a moratorium permit.

Moratorium species means:

(1) (Applicable through June 30, 2000) any scallop species.

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

species or moratorium groundfish species.

* * * * *

Qualifying period (applicable through December 31, 1998) with

respect to the groundfish and crab vessel moratorium program means the

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

February 9, 1992.

* * * * *

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

paragraph (g) is added to read as follows:

Sec. 679.4 Permits.

* * * * *

(c) * * *

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

an initial administrative determination to each applicant who is denied

a moratorium permit by that official. An initial administrative

determination may be appealed by the applicant in accordance with

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

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

Administrator, within the period specified at Sec. 679.43.

* * * * *

(g) Scallop moratorium permits (applicable through June 30, 2000)--

(1) General--(i) Applicability. Except as provided under paragraph

(g)(2) of this section, any vessel used to take or retain any scallop

species in Federal waters must have a valid scallop moratorium permit

on board the vessel at all times when the vessel is engaged in fishing

for scallops in Federal waters or has scallops taken from Federal

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

Federal waters within Scallop Registration Area H must have a scallop

moratorium permit endorsed for Registration Area H. Any vessel used to

take or retain scallop species in Federal waters outside Registration

Area H must have a scallop moratorium permit endorsed for Federal

waters exclusive of Registration Area H.

(ii) Applicable dates and duration. The requirement to carry a

moratorium permit is applicable from July 1, 1997, through June 30,

2000. A scallop moratorium permit is valid for the duration of the

moratorium unless otherwise specified.

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

paragraph is valid only if:

(A) A person named on the moratorium permit is the owner or

operator of the vessel on which the permit is used.

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

the permit.

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

904.

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

inspection upon the request of any authorized officer.

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

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

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

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

gear.

(3) Qualification criteria--(i) Qualifying period. To qualify for a

moratorium permit, a vessel must have made a legal landing of scallops

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

1980 through 1990.

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

area endorsement for Federal waters within Registration Area H, for

Federal waters outside Registration Area H, or for both areas.

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

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

qualifying vessel made a legal landing of scallops taken inside

Registration Area H during the qualifying period defined at paragraph

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

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

may be endorsed for fishing in Federal waters outside Registration Area

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

waters outside Registration Area H during the qualifying period defined

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

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

to documentation of State or Federal catch reports that indicate the

amount of scallops harvested, the registration area or location in

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

harvesting, landing, or reporting.

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

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

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

reconstruction on January 20, 1993.

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

1993, the

[[Page 17753]]

maximum LOA will be the LOA on the date reconstruction was completed.

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

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

qualifying vessel when it most recently made qualifying landings under

paragraph (g)(3) of this section, if he/she submits to the Regional

Administrator a complete scallop moratorium permit application that is

subsequently approved. A complete application for a scallop moratorium

permit must include the following information:

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

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

qualifying landing of scallops occurred.

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

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

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

qualification, if requested by the Regional Administrator due to an

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

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

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

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

reliable and probative documents that clearly identify the vessel and

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

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

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

the vessel owner.

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

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

information:

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

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

that reconstruction.

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

manager of the firm that performed the reconstruction specifying the

beginning and ending dates of the reconstruction.

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

of the reconstructed vessel.

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

to the following documents, in order of priority:

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

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

vessel.

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

vessel ownership.

(iii) A bill of sale.

(7) Permit transfer--(i) Applicability. A moratorium permit

transfer is required to effect any change in permit ownership including

the addition or subtraction of partners. Area endorsements may not be

transferred independently of a moratorium permit.

(ii) Required information. A complete application for approval of

transfer of a scallop moratorium permit must include the following:

(A) The original moratorium permit to be transferred.

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

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

that is to be transferred and the person(s) who is to receive the

transferred scallop moratorium permit.

(C) Name(s) and signature(s) of the person(s) from whom the

moratorium permit would be transferred or their representative, and the

person(s) who would receive the transferred moratorium permit or their

representative.

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

moratorium permit in question must be included with the application for

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

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

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

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

permit is to be transferred.

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

an initial administrative determination to an applicant upon denial of

a scallop moratorium permit by that official. An initial administrative

determination may be appealed by the applicant in accordance with

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

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

Administrator postmarked within the period specified at Sec. 679.43.

(ii) Permit denial. An initial administrative determination that

denies an application for a scallop moratorium permit may authorize the

affected person to take or retain scallops. Any administrative

determination that authorizes fishing will expire on the effective date

of the final agency action relating to the application.

(iii) Final action. An administrative determination denying the

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

purposes of judicial review.

(9) Harvesting privilege. Scallop moratorium permits issued

pursuant to this part do not represent an interest that is subject to

the ``takings'' provision of the 5th Amendment to the U.S.

Constitution. Rather, such permits represent only a harvesting

privilege that may be revoked or amended subject to the requirements of

the Magnuson-Stevens Act and other applicable laws.

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

Sec. 679.43 Determinations and appeals.

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

initial administrative determinations made under this subpart as well

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

that apply to the halibut and sablefish CDQ program.

* * * * *

[FR Doc. 97-9433 Filed 4-10-97; 8:45 am]

BILLING CODE 3510-22-F