Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Snapper-Grouper Fishery Off the Southern Atlantic States; Restricted Reopening of Limited Access Permit Application Process

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 990820230-9230-01; I.D. 080599B]

RIN 0648-AM92

Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic;

Snapper-Grouper Fishery Off the Southern Atlantic States; Restricted

Reopening of Limited Access Permit Application Process

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: This emergency interim rule provides an additional opportunity

to obtain snapper-grouper limited access permits for those vessel

owners who were previously determined by NMFS to be eligible for such

permits but did not submit an application by the application deadline,

on or before October 14, 1998, provided they have not violated the

permit requirement in the interim. This rule is intended to avoid

adverse social and economic impacts on the affected individuals.

DATES: This rule is effective September 3, 1999 through March 1, 2000.

Comments must be received no later than October 4, 1999.

ADDRESSES: Comments on this emergency interim rule must be mailed to,

and copies of documents supporting this action may be obtained from,

the Southeast Regional Office, NMFS, 9721 Executive Center Drive N.,

St. Petersburg, FL 33702.

Written comments regarding the collection-of-information

requirements contained in this rule may be submitted to Edward E.

Burgess, Southeast Regional Office, NMFS, 9721 Executive Center Drive

N., St. Petersburg, FL 33702, and to the Office of Information and

Regulatory Affairs, Office of Management and Budget (OMB), Washington,

DC 20503 (Attention: NOAA Desk Officer).

FOR FURTHER INFORMATION CONTACT: Peter J. Eldridge, 727-570-5305.

SUPPLEMENTARY INFORMATION: The snapper-grouper fishery off the southern

Atlantic states is managed under the Fishery Management Plan for the

Snapper-Grouper Fishery of the South Atlantic Region (FMP). The FMP was

prepared by the South Atlantic Fishery Management Council (Council),

approved by NMFS, and implemented under the authority of the Magnuson-

Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act)

by regulations at 50 CFR part 622.

Background

Amendment 8 to the FMP, approved by NMFS on January 28, 1998, and

implemented by final rule (July 16, 1998; 63 FR 38298), limits access

to the snapper-grouper fishery. A vessel owner who met certain required

landings and permit histories in the snapper-grouper fishery was

eligible for an initial limited access permit, provided the vessel

owner applied for such a permit by no later than October 14, 1998. NMFS

notified each vessel owner of NMFS' initial determination of the

individual's eligibility for either a transferable or trip-limited

limited access permit. Notifications were sent by regular mail to the

owner's address as shown in NMFS' permit records.

For various reasons, including hurricanes Bonnie, Georges, and

Mitch, some permit eligibility notifications were not received and/or

were not responded to on or before October 14,

[[Page 48327]]

1998. Approximately 260 vessel owners who had been determined by NMFS

to have met the required landings and permit histories in the snapper-

grouper fishery and, thus, were eligible for a limited access permit,

did not apply for a permit by the permit application deadline. Because

these owners failed to submit applications in a timely manner, their

vessels could not fish in the snapper-grouper fishery as of December

14, 1998.

After considerable public input, the Council concluded that there

were compelling reasons for a significant number of vessel owners to

have missed the permit application deadline. Further, the resultant

inability to continue to fish in the snapper-grouper fishery was

causing significant economic hardships and adverse community impacts.

The Council further concluded that allowing an additional period for

applications of owners who were known to have met the initial

qualifying criteria would be consistent with the goals of its limited

access program. The limited access program had not considered that

these owners might not be able to apply in a timely manner for

compelling reasons.

At its meeting on June 17, 1999, the Council requested that NMFS

implement by emergency rule a limited reopening of the application

period for limited access permits in the snapper-grouper fishery.

Limited Reopening of the Application Period

As requested by the Council and implemented in this emergency

interim rule, a vessel owner who was determined by NMFS to be eligible

for an initial limited access permit, but did not apply in a timely

manner, will have an additional 45-day period to apply. However, an

owner who has been determined by a final administrative decision to

have violated the snapper-grouper permit requirement on or after

December 14, 1998, is not eligible to apply. An otherwise qualified

owner who has been charged with such a violation, but whose case has

not been finally resolved, may apply for a permit, but the issuance

will be withheld until the case has been resolved in the applicant's

favor.

Each owner who was initially determined by the Southeast Regional

Administrator (RA) to be eligible for a transferable permit under

Amendment 8 may apply for an unlimited permit. An unlimited permit is

similar to the transferable permits initially issued, i.e., it is not

subject to a trip limit, but its transferability is significantly

restricted as described here. An owner who was initially determined by

the RA to be eligible for a trip-limited permit under Amendment 8 may

apply for a trip-limited permit. A trip-limited permit issued under

this emergency interim rule does not differ from those initially issued

under Amendment 8.

Each owner to whom this limited reopening of the permit application

process applies will be so advised by the RA by certified mail, which

will include an application form, not later than 5 days after the date

of publication of this document. The notification will be sent to the

address in NMFS' permit files. An owner who receives such notification

must submit an application, postmarked or hand-delivered not later than

October 18, 1999 to the RA. Failure to apply in a timely manner will

preclude permit issuance.

Upon receipt of a complete application submitted in a timely

manner, NMFS will issue an initial limited access permit for the

snapper-grouper fishery, either unlimited or trip-limited, as specified

in the letter of notification, provided the applicant has not been

determined by a final administrative decision to have violated the

snapper-grouper permit requirement on or after December 14, 1998.

Limitations on Transfers of Unlimited Permits

The limited access program for the snapper-grouper fishery limits

the transfers of both transferable and trip-limited permits. Included

in those transfer limitations is a provision that allows a new entrant

into the non-trip-limited fishery to obtain a permit only upon

obtaining and trading in two existing transferable permits. As a

result, existing transferable permits have significantly increased in

value. An owner who met the catch and permit history criteria for a

transferable limited access permit, but who did not apply for such

permit because he/she no longer desired to participate in the fishery,

may be tempted to obtain an unlimited permit under this emergency rule

solely for the purpose of a windfall profit. This rule is intended to

benefit qualified owners who are suffering economic losses as a result

of their exclusion from the fishery because of not meeting the permit

application deadline rather than owners who opted not to participate in

the fishery. To preclude such windfall profits, the Council requested

that an unlimited permit obtained under this emergency rule be non-

transferable for 3 years, except for a transfer to a replacement vessel

owned by the same entity. The permit will become transferable for the

purposes of the two-for-one provision only if at least 1,000 lb (453.6

kg) of South Atlantic snapper-grouper are landed by the permitted

vessel, or its replacement, in each of the 3 years. If landings in one

of these 3 years are less than 1,000 lb (453.6 kg), the permit may be

renewed only as a trip-limited permit.

The sole basis for determination of meeting this catch criterion

will be the fishing records, which are required by 50 CFR

622.5(a)(1)(iv)(A) for all permitted vessels, that are submitted in a

timely manner. The initial 1-year period for meeting the catch

criterion will end at the end of the month 12 months after the

unlimited permit is issued and similarly for each of the 2 succeeding

years.

Because of the requirement that an unlimited permit revert to a

trip-limited permit when the landings criterion is not met, an initial

unlimited permit issued under this emergency interim rule must have an

expiration date that is more than 12 months from the initial date of

issue. Otherwise, an owner whose vessel reaches the 1,000-lb (453.6-kg)

threshold in the 12th month will be without a valid permit before a

renewal permit can be issued. Accordingly, an initial unlimited permit

issued under this emergency rule will expire at the end of the month 13

months after it is issued. However, the 1,000-lb (453.6-kg) landing

requirement must be met during the first full 12-month period under the

permit, and in each succeeding 12-month period, for the full 3-year

period. After the initial permit an unlimited permit will be renewed

for a 12-month period.

For example, if an initial unlimited permit is issued on January 1,

2000, it will be valid through January 31, 2001, but the

1000-lb (453.6-kg) landing requirement must be met January 1, through

December 31, 2000. If the landing requirement is met, the permit will

be renewed and will be valid January 31, 2001, through

January 31, 2002, and the landing criterion must be met

January 1, 2001, through December 31, 2001. If the landing

requirement is met, the permit will be renewed and will be valid

January 31, 2002, through January 31, 2003, and the landing requirement

must be met January 1, 2002, through December 31, 2002. If the 1000-lb

(453.6-kg) landing requirement is met for all 3 years, the unlimited

permit will become a transferable permit when it is renewed in January

2003.

Criteria for Issuing an Emergency Rule

This emergency interim rule meets NMFS policy guidelines for the

use of emergency rules (62 FR 44421, August 21, 1997), because the

emergency

[[Page 48328]]

situation: Results from recent, unforeseen events, or recently

discovered circumstances; presents a serious management problem; and

realizes immediate benefits from the emergency rule that outweigh the

value of prior notice, opportunity for public comment, and deliberative

consideration expected under the normal rulemaking process. When the

initial 90-day application period was established, the Council did not

foresee the extreme circumstances that would cause some qualified

vessel owners to miss the application deadline. The full scope of these

circumstances became known only after the application period ended.

Further, the full scope of the economic hardships and adverse community

impacts were not known until the Council's public hearing on June 16,

1999. These economic hardships and adverse community impacts constitute

serious management problems in the fishery, as the fishery includes the

fishermen as well as the fish stocks themselves. Economic hardship will

be alleviated for up to 260 vessel owners as a result of this emergency

interim rule. However, the rule will not adversely affect the benefits

that were anticipated from the Council's limited access program. Thus,

the benefits of immediate restricted reopening of the application

period for limited access permits are considered to outweigh the value

of prior notice, opportunity for public comment, and deliberative

consideration under the normal rulemaking process.

Period of Effectiveness

This emergency interim rule is effective for not more than 180

days, as authorized by section 305(c) of the Magnuson-Stevens Act. It

may be extended for an additional period of not more than 180 days,

provided that the public has had an opportunity to comment on it and

the Council is actively preparing an amendment to address the emergency

on a permanent basis. Public comments on this rule and the Council's

actions will be considered in determining whether to extend this rule.

Classification

The Assistant Administrator for Fisheries, NOAA (AA), has

determined that this emergency interim rule is necessary to minimize

significant adverse social and economic impacts on the affected

snapper-grouper vessel owners. The AA has also determined that this

rule is consistent with the Magnuson-Stevens Act and other applicable

laws.

This emergency interim rule has been determined to be not

significant for purposes of E.O. 12866.

NMFS prepared an economic evaluation of the regulatory impacts

associated with this emergency interim rule, which is summarized as

follows. The long-term economic consequences of this emergency rule are

expected to be very small. The reasoning is that the rule is designed

to provide an additional opportunity for fishermen who originally

qualified for a permit, but did not apply for reasons beyond their

control. This rule applies only to fishermen deemed to qualify

originally and will not provide an additional open season for entities

not previously in the fishery to enter the fishery. Accordingly, the

total number of entities that can engage in the snapper-grouper fishery

will not increase beyond the number envisioned by the original action.

While the number will not increase, it could actually decrease because

some of the eligible entities that did not renew their permits

originally may not renew them this time either.

There are 1,167 qualified holders of permits at present.

Approximately 260 qualified individuals failed to renew under the

original 90-day window. NMFS cannot determine how many of these 260

fishermen will reapply. However, even if all 260 qualified individuals

apply and receive permits under the 45-day window established by this

emergency interim rule, the resulting number of permitted fishermen

would still be less than the number originally contemplated by the

Council in Amendment 8. In addition, it is expected that permitted

fishing capability would still be smaller than originally envisioned

when the decision was made to reissue permits only to those fishermen

that were currently active in the fishery. This results from the

requirement that the 260 fishermen can only qualify for non-

transferable permits, with the limited exception of a transfer to

another vessel owned by the same entity. An unlimited permit would

become transferable only if the vessel owner recorded 1,000 lb (453.6

kg) of landings of South Atlantic snapper-grouper in each of the next 3

years. If the landings criterion is not met, the permit will revert to

a trip-limited permit, i.e., a permit under which a 225-lb (102.1-kg)

trip limit applies. Copies of the economic evaluation of this rule are

available (see ADDRESSES).

Notwithstanding any other provision of 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.

This rule contains two collection-of-information requirements,

permit applications and submission of fishing records, that are subject

to the Paperwork Reduction Act (PRA). These collections of information

have been approved by OMB under control numbers 0648-0205 and 0648-

0016, respectively. The public reporting burdens for these collections

of information are estimated to average 20 minutes and 10 minutes per

response, respectively, including the time for reviewing instructions,

searching existing data sources, gathering and maintaining the data

needed, and completing and reviewing the collections of information.

Send comments regarding these burden estimates, or any other aspect of

these data collections, including suggestions for reducing the burdens,

to NMFS and OMB (see ADDRESSES).

If NMFS does not immediately reopen the snapper-grouper permit

application process, approximately 260 vessels, whose owners were

determined to be eligible for an initial limited access commercial

permit for snapper-grouper, will continue to be denied access to the

snapper-grouper fishery because their owners, through no fault of their

own, did not submit a permit application by the deadline. It is

estimated that the total ex-vessel value of landings for the 260

vessels is about $90,000 per month. Immediate reopening of the

application process and consequent immediate permit issuance is

critical to minimize the economic loss qualified vessel owners, their

crews, and others dependent upon them, have been experiencing since

December 14, 1998. If reopening of the application process is delayed

to provide prior notice and opportunity for public comment, they will

continue to experience economic harm with no apparent benefit.

Accordingly, under authority set forth at 5 U.S.C. 553(b)(B), the AA

finds good cause to waive the requirement to provide prior notice and

the opportunity for public comment, as such procedures would be

contrary to the public interest. Because reopening the application and

permit issuance process relieves a restriction, under 5 U.S.C.

553(d)(1), a 30-day delay in the effective date is not required. NMFS

will advise the eligible vessel owners, by certified mail, of the

reopening of the permit application process.

Because prior notice and an opportunity for public comment are not

required to be provided for this rule by 5 U.S.C. 553 or any other law,

the analytical requirements of the

[[Page 48329]]

Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are inapplicable.

List of Subjects in 50 CFR Part 622

Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping

requirements, Virgin Islands.

Dated: August 27, 1999.

Gary C. Matlock,

Acting Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons set out in the preamble, 50 CFR part 622 is amended

as follows:

PART 622--FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC

1. The authority citation for part 622 continues to read as

follows:

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

2. In Sec. 622.18, the second sentence in paragraph (a) is

suspended and paragraph (g) is added to read as follows:

Sec. 622.18 South Atlantic snapper-grouper limited access.

* * * * *

(g) Revised implementation procedures. A permit issued under this

paragraph (g) will be either an unlimited permit (a permit not subject

to a trip limit but with significant limitations on transferability) or

a trip-limited permit.

(1) Applicability. (i) The procedures and limitations in this

paragraph (g) apply to an owner of a vessel for whom the RD's initial

determination under paragraph (d)(1) of this section was that he/she

was eligible for an initial limited access commercial vessel permit for

South Atlantic snapper-grouper, but who did not apply for such permit

in a timely manner.

(ii) The RD's initial determination of eligibility notwithstanding,

the procedures in this paragraph (g) do not apply to an owner against

whom a final administrative decision has been taken on a Notice of

Violation and Assessment (NOVA) for fishing in the snapper-grouper

fishery without a permit on or since December 14, 1998. Such owner may

not apply for an initial limited access commercial vessel permit for

South Atlantic snapper-grouper. (See 15 CFR 904.2 for the definition of

``Final administrative decision'' and 15 CFR 904.104, 904.271(d), and

904.273(i) for determinations of when final administrative decisions

are effective.)

(2) Notification. Not later than September 8, 1999, the RD will

renotify, by certified mail, each owner to whom this paragraph (g)

applies of NMFS' determination of eligibility for either an unlimited

or a trip-limited, limited access commercial permit for South Atlantic

snapper-grouper. An owner who was advised under paragraph (b) of this

section of eligibility for an initial transferable permit will be

advised of eligibility for an unlimited permit under this paragraph

(g). All other owners will be advised of eligibility for a trip-limited

permit under this paragraph (g). Each notification will include an

application for such permit. Addresses for such notifications will be

based on NMFS' permit records. A vessel owner who believes he/she

qualifies for a limited access commercial permit for South Atlantic

snapper-grouper under this paragraph (g) and who does not receive such

notification must contact the RD to verify eligibility status for a

limited access permit. The RD will either provide such a person

notification of eligibility, including an application, or advise him/

her of the reasons for ineligibility.

(3) Applications. (i) An owner of a vessel who receives the

notification specified in paragraph (g)(2) of this section and who

desires a limited access commercial permit for South Atlantic snapper-

grouper must submit an application for such permit postmarked or hand-

delivered not later than October 18, 1999 to the RD. Failure to apply

in a timely manner will preclude permit issuance.

(ii) An application for an unlimited permit when the RD's certified

mail notification specifies eligibility for a trip-limited permit will

not be considered.

(iii) If an application that is postmarked or hand-delivered in a

timely manner is incomplete, the RD will notify the vessel owner of the

deficiency. If the owner fails to correct the deficiency within 20 days

of the date of the RD's notification, the application will be

considered abandoned.

(4) Issuance. (i) If a complete application is submitted in a

timely manner, the RD will issue an initial limited access commercial

vessel permit for South Atlantic snapper-grouper. The type of permit

issued, unlimited or trip-limited, will be as specified in the RD's

certified mail notification specified in paragraph (g)(2) of this

section.

(ii) An initial unlimited permit issued under this paragraph (g)(4)

will be valid through the end of the month 13 months after its

issuance, as specified on the permit. A trip-limited permit issued

under this paragraph (g)(4) will be valid through the date specified on

the permit.

(iii) The provisions of paragraph (g)(4)(i) of this section

notwithstanding, the RD will not issue a permit to an owner who has

been issued a NOVA for fishing in the snapper-grouper fishery without a

permit on or since December 14, 1998, until such NOVA is dismissed.

(5) Transfers of unlimited permits. (i) An unlimited permit issued

under this paragraph (g) may not be transferred for 3 years after it is

issued, except that an owner may request that the RD transfer the

permit to another vessel owned by the same entity.

(ii) After the 3-year period, an unlimited permit issued under this

paragraph (g) will become transferable in accordance with the

provisions of paragraph (e)(1) of this section provided at least 1,000

lb (453.6 kg) of South Atlantic snapper-grouper were landed by the

permitted vessel, or its replacement, in each of the three 12-month

periods after it was initially issued.

(iii) When the landings of a vessel with an unlimited permit, or

its replacement, are less than 1,000 lb (453.6 kg) of South Atlantic

snapper-grouper in one of these three 12-month periods, the permit may

be renewed only as a trip-limited permit.

(iv) Fishing records submitted in a timely manner in accordance

with Sec. 622.5(a)(1)(iv) and (a)(2) will be the sole basis for

determination of landings of South Atlantic snapper-grouper for the

purposes of meeting the 1,000-lb (453.6-kg) landing criterion.

[FR Doc. 99-22954 Filed 9-2-99; 8:45 am]

BILLING CODE 3510-22-F