[Federal Register Volume 64, Number 3 (Wednesday, January 6, 1999)]
[Proposed Rules]
[Pages 823-828]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-219]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 660
[Docket No. 981204297-8297-01; I.D. 110698B]
RIN 0648-AK21
Fisheries off West Coast States and in the Western Pacific;
Bottomfish and Seamount Groundfish Fisheries; Amendment 5
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 issues this proposed rule to implement Amendment 5 to the
Fishery Management Plan for Bottomfish and Seamount Groundfish of the
Western Pacific Region (FMP). Amendment 5 would establish a permanent
limited access program for the Mau Zone Bottomfish fishery in the
Northwestern Hawaiian Islands (NWHI). The intent of this action is to
conserve and to support the long-term productivity of the bottomfish
stocks by preventing the potential for excessive harvest capacity and
to improve the low economic returns in the fishery.
DATES: Comments on this proposed rule must be received on or before
February 22, 1999.
ADDRESSES: Comments on this proposed rule or Amendment 5 should be sent
to Alvin Katekaru, Fishery Management Specialist, Pacific Islands Area
Office (PIAO), NMFS, 2570 Dole Street, Room 106, Honolulu, HI 96822-
2396. Copies of these documents are available from, Kitty Simonds,
Executive Director, Western Pacific Fishery Management Council, 1164
Bishop St., Suite 1400, Honolulu, HI 96813. Send comments on the
modifications to approved collection-of-information requirements to
PIAO, NMFS, 2570 Dole Street, Honolulu, HI, 96822 and to the Office of
Information and Regulatory Affairs, Office of Management and Budget
(OMB), Washington, D.C. 20503 (ATTN: NOAA Desk Officer).
[[Page 824]]
FOR FURTHER INFORMATION CONTACT: Alvin Katekaru, NMFS, at 808-973-2985
or Kitty M. Simonds at 808-522-8220.
SUPPLEMENTARY INFORMATION: NMFS is proposing this rule to implement
Amendment 5, as recommended by the Western Pacific Fishery Management
Council (Council) under the authority of the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens Act). Amendment 5
would establish a limited access program for the Mau Zone bottomfish
fishery in the NWHI. The Mau Zone, which was established in 1989 as an
open access zone adjacent to the Ho'omalu bottomfish limited access
zone, is located north of Kauai between 161 deg.20' W. and 165 deg.00'
W. longitude in the U.S. exclusive economic zone around the Hawaiian
Islands. The amendment is intended to prevent biological overfishing
and improve poor economic returns that are plaguing the open access
bottomfish fishery in the Mau Zone.
In January 1989, a permit system for the NWHI bottomfish fishery
was implemented for the open access Mau Zone and limited access
Ho'omalu Zone. Two years later, on December 17, 1991, the Council
established a control date putting vessel owners on notice that if they
were issued a Mau Zone permit after the control date they may be
ineligible for continued participation in the fishery if the Council
decided to limit access to the fishery based on historic participation
(56 FR 67598, December 31, 1991). Although the fishery in the Ho'omalu
Zone was stabilized, the fishery in the Mau Zone showed signs of
instability as evidenced in the species mix of the catch and high
turnover rate of permitted vessels in the Mau Zone. Between 1994 and
1996, the average Mau Zone vessel suffered a net return of minus $1,186
per trip (-$7,827 per season) and as a result was not able to cover
annual costs. Also, in 1994 and 1995, bottomfish landings from the zone
exceeded the maximum sustainable yield, which is estimated to be
131,210 lb (59,516 kg). Although it is difficult to estimate and
interpret biological parameters from catch and effort data due to the
instability and unpredictability of the number of vessels participating
in the Mau Zone fishery year to year, the Council was concerned about
the future biological condition of the bottomfish resources in the Mau
Zone. The Council was also concerned that the declining bottomfish
resources in the main Hawaiian Islands and the State's enforcement of
the bottomfish fishing closed areas around the main Hawaiian Island
would force additional fishermen from the main Hawaiian Islands to move
to the Mau Zone fishery. On March 27, 1997, the Council established a
2-year moratorium on the issuance of new Mau Zone permits (62 FR 8637,
February 26, 1997).
Amendment 5 would: (1) restrict participation in the Mau Zone
bottomfish fishery to vessel owners who hold limited access permits;
(2) adopt, based on biological and economic factors, a long-term target
number of 10 vessels that would be allowed to fish for bottomfish in
the Mau Zone; (3) establish qualifying criteria for allocating initial
limited access permits based on historic participation in the fishery
(December 17, 1991, control date) and landing of bottomfish from the
Mau Zone up to December 31, 1996; (4) prohibit the transfer, lease,
charter, or sale of permits to reduce the number of vessels in the
fishery in order to achieve the target number; (5) revoke limited
access permits issued to partnerships or corporations upon a change in
more than 50 percent ownership in the vessel, partnership or
corporation; (6) limit the amount of time a permit holder may register
a limited access permit for use with a leased or chartered vessel; (7)
limit the length of replacement vessels to 60 ft (18.3 m); (8) require
permit holders to make a minimum of five landings of at least 500 lb
(227 kg) each of bottomfish management unit species each year from the
Mau Zone to qualify for permit renewal; (9) require the Council to
undertake a 5-year comprehensive review of the limited access program
to determine its effectiveness in meeting the objectives of the FMP;
(10) require the Council to develop criteria to allow new entry into
the Mau Zone when the number of permitted vessels falls below 10; and
(11) reserve 20 percent of the long-term target number of limited
access permits, i.e., two permits, for a Western Pacific Community
Development Program (CDP). The above measures and other requirements,
such as establishing a fee for processing Mau Zone permits, specifying
an appeals process for permit actions, and prohibiting the retention of
incidentally-caught bottomfish in the Mau Zone without a limited access
permit are described in Amendment 5.
Since March 1997, there has been a moratorium on the issuance of
new permits for harvesting bottomfish in the Mau Zone to stabilize
effort in the fishery while the Council developed a permanent limited
access program (see the final rule published in the February 26, 1997,
issue of the Federal Register at 62 FR 8637). The moratorium expires on
March 27, 1999, at which time this proposed rule is expected to be
implemented. Current holders of Mau Zone (open access) permits, which
expire on December 31, 1998, and are renewable for another year, have
been advised that if Amendment 5 is approved by the Secretary of
Commerce (Secretary), renewed Mau Zone permits will expire 45 days
after the date of publication of the final rule implementing Amendment
5. Only vessel owners, including those currently holding Mau Zone open
access permits, who apply and are eligible for Mau Zone limited access
permits would be allowed to participate in the new Mau Zone limited
access program. Holders of existing Mau Zone permits who make a timely
application for a limited entry permit will be allowed to fish in the
Mau Zone pending final agency action on their applications.
The proposed rule also would revise certain provisions governing
the Ho'omalu Zone limited access program for housekeeping purposes
only, such as moving the description of ``qualifying landing'' for
initial Ho'omalu Zone permit eligibility points and permit renewal from
the Definitions section (Sec. 660.12) of subpart B (Western Pacific
Fisheries - General) to subpart E (Bottomfish and Seamount Groundfish
Fisheries).
The proposed rule also contains provisions for an appeal process
involving the granting, denial, conditioning, or suspension of Ho'omalu
and Mau Zone permits. Appeals would be made to the NMFS Southwest
Region Administrator who, in consultation with the Council, would
decide the appeal in accordance with the FMP and implementing
regulations. The appeals process would allow for informal hearings
before a hearing officer.
Section 660.67(d)(3) of the current bottomfish regulations refers
to 1985 and 1986 ``control dates'' for limiting access to the fisheries
off the NWHI, Guam, and American Samoa. As a housekeeping action, NMFS
proposes to remove this paragraph from the regulations because it is
very unlikely the Council and NMFS will use such old control dates.
With the establishment of a limited access program for the Mau Zone
under Amendment 5, the entire NWHI bottomfish fishery would be under
limited access regimes. The Ho'omalu Zone, the other bottomfish zone in
the NWHI, was established as a limited access program in 1989. Under
section 305(a)(2)(B)(iii) of the Magnuson-Stevens Act, the Council may
establish a CDP to provide access to a fishery for
[[Page 825]]
a community consisting of residents descended from the aboriginal
people indigenous to the area. Under Amendment 5, the Council would set
aside two Mau Zone limited access permits for a CDP. Initially
reserving 2 permits of the target number of Mau Zone permits (10) for a
CDP is consistent with the estimated 20 percent of Hawaii's population
descended from the indigenous people of Hawaii. This proposed rule
would not implement the Western Pacific CDP or assign Mau Zone permits
to a community. A community development plan must be prepared by an
eligible community and be approved by the Council and the Secretary
before the two reserved permits could be issued by NMFS. This
description is provided here for background information only.
On June 3, 1998, a notice of availability of draft Amendment 5 was
published in the Federal Register (63 FR 30180). At its 97th meeting
held in July 1998, the Council approved draft Amendment 5 for
submission to the Secretary for review and approval. On November 18,
1998, a notice of availability of Amendment 5, inviting comments from
the public, was published in the Federal Register (63 FR 64033).
Classification
At this time, NMFS has not determined that Amendment 5 that this
rule would implement is consistent with the national standards 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.
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce made the following certification to the Chief
Counsel for Advocacy of the Small Business Administration that this
proposed rule, if adopted, would not have a significant economic impact
on a substantial number of small entities as follows:
NMFS considers an impact to be significant if it results in a
reduction in annual gross revenues by more than 5 percent, an
increase in annual compliance costs of greater than 5 percent,
compliance costs at least 10 percent higher for small entities than
for large entities, compliance costs that require significant
capital expenditures, or the likelihood that 2 percent of the small
entities would be forced out of business. NMFS considers a
``substantial number'' of small entities to be more than 20 percent
of those entities affected by the regulation engaged in the fishery.
Sixteen vessels have participated in this fishery during the
past 5 years (1994-mid 1998), all of which are small entities. This
rule would impact these vessels differently, depending on whether or
not they qualify for a limited entry permit. Initially, 14 of these
16 vessels will qualify for permits. If any of these vessels does
not continue to actively participate in the fishery, it will lose
its permit. NMFS anticipates that through such attrition the limited
entry system will eventually include only 10 vessels.
NMFS anticipates that the impacts, if any, on the permitted
vessels would be positive in that they would be able to continue
fishing, but future influx of effort would be prohibited, and
eventually capacity would be reduced. With an expected attrition
rate of 10 percent per year, annual gross revenues per vessel are
forecast to increase 29 percent by the year 2004 when the long-term
target number of 10 vessels is reached. Two of the vessels that have
participated in this fishery during the last 5 years would be
excluded. The change in potential annual gross revenues for excluded
vessels ranges from a loss of 64 percent, if no successful effort is
exerted to replace Mau Zone catches, to a gain of up to 29 percent
if these vessels replace their potential Mau Zone effort with
pelagic handlining around Hawaii's seamounts.
As a variety of alternative fisheries are available to excluded
vessels (including pelagic trolling, longlining, and handlining, as
well as bottomfishing around the main Hawaiian Islands), no operator
will be forced to cease business operations as a result of this
action. There are no additional compliance costs (capital
investments, operating costs, or recordkeeping requirements)
associated with this action.
If the proposed rule is adopted, 2 (12.5 percent) of the 16
vessels that participated in this fishery during the past 5 years
could experience significant economic impacts. In accordance with
the standard adopted by NMFS on ``substantial number'' for purposes
of the Regulatory Flexibility Act, because less than 20 percent of
fishery participants may be negatively impacted, I have determined
that this proposed rule will not have a significant economic impact
on a substantial number of small entities. As a result, a regulatory
flexibility analysis was not prepared.
This proposed rule contains collection-of-information requirements
subject to review and approval by OMB under the Paperwork Reduction Act
(PRA). These requirements have been submitted to OMB for approval. The
public reporting burden for these requirements is estimated to be 45
minutes for a Mau Zone limited access permit application, 2 hours for a
permit appeal submission, and 1 hour for permit renewal exemption
request per response, including the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collection of information.
This proposed rule also restates information collection requirement
already approved by OMB under control number 0648-0204. An application
for a Ho'omalu Zone limited access permit is estimated to take 2 hours
for an initial application and 1 hour for an application for renewal.
Public comment is sought regarding: whether this proposed
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information has
practical utility; the accuracy of the burden estimate; ways to
minimize the burden of the collection of information, including through
use of automated collection of techniques or other forms of information
technology.
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.
List of Subjects in 50 CFR Part 660
Administrative practice and procedure, American Samoa, Fisheries,
Fishing, Guam, Hawaiian Natives, Indians, Northern Mariana Islands,
Reporting and recordkeeping requirements.
Dated: December 30, 1998.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 660 is
proposed to be amended as follows:
PART 660 - FISHERIES OFF WEST COAST STATES AND IN THE WESTERN
PACIFIC
1. The authority citation for part 660 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. Section 660.12 is amended by removing the definitions of
``Pacific Area Office'', and ``Qualifying landing'', revising the
definition of ``Owner'' and adding a definition of ''Pacific Islands
Area Office'', to read as follows:
Sec. 660.12 Definitions.
* * * * *
Owner, as used in subparts C and D of this part and
Sec. 660.61(i)-(m), means a person who is identified as the current
owner of the vessel as described in the Certificate of Documentation
(Form CG-1270) issued by the USCG for a documented vessel, or in a
registration certificate issued by a state or territory
[[Page 826]]
or the USCG for an undocumented vessel. As used in subpart F of this
part and Sec. 660.61(c)-(h), the definition of ``owner'' in Sec. 600.10
of this chapter continues to apply.
Pacific Islands Area Office means the Pacific Islands Area Office,
Southwest Region, NMFS (PIAO), located in Honolulu, Hawaii. The address
and phone number may be obtained from the Regional Administrator, whose
address is in Table 1 to Sec. 600.502.
* * * * *
3. Section 660.13 is amended by revising paragraphs (f), (g), and
(i) to read as follows:
Sec. 660.13 Permits and fees.
* * * * *
(f) Fees. (1) PIAO will not charge a fee for a permit issued under
subpart D or F of this part, or for a Ho'omalu Zone limited access
permit issued under Sec. 660.61.
(2) PIAO will charge a fee for each application for a Hawaii
longline limited access permit (including permit transfers and permit
renewals) and Mau Zone limited access permit (including permit
renewals). The amount of the fee is calculated in accordance with the
procedures of the NOAA Finance Handbook, available from the Regional
Administrator, for determining the administrative costs of each special
product or service. The fee may not exceed such costs and is specified
with each application form. The appropriate fee must accompany each
application. Failure to pay the fee will preclude issuance of a Hawaii
longline or Mau Zone limited access permit.
(g) Expiration. (1) Permits issued under subparts C, D, and F of
this part are valid for the period specified on the permit unless
transferred, revoked, suspended, or modified under 15 CFR part 904.
(2) Permits issued under subpart E of this part expire on 2400
local time on December 31.
* * * * *
(i) Transfer. An application for a permit transfer under
Sec. 660.21(h), Sec. 660.41(e), or Sec. 660.61(e), or for registration
of a permit for use with a replacement vessel under Sec. 660.61(k),
must be submitted to the PIAO as described in paragraph (c) of this
section.
* * * * *
4. Section 660.61 is revised to read as follows:
Sec. 660.61 Permits.
(a) Applicability. (1) The owner of any vessel used to fish for
bottomfish management unit species in the Northwestern Hawaiian Islands
Subarea must have a permit issued under this section and the permit
must be registered for use with the vessel.
(2) The PIAO will not register a single vessel for use with a
Ho'omalu Zone permit and a Mau Zone permit at the same time.
(3) Mau Zone permits issued before the effective date of this rule
become invalid 45 days after the date of publication of the final rule
implementing Amendment 5, except that a permit issued to a person who
submitted a timely application under paragraph (i) of this section is
valid until the permit holder either receives a Mau Zone limited entry
permit or until final agency action is taken on the permit holder's
application. The Ho'omalu Zone and the Mau Zone limited entry systems
described in this section are subject to abolition, modification, or
additional effort limitation programs.
(b) Submission. (1) An application for a permit required under this
section must be submitted to the PIAO as described in Sec. 660.13. (2)
Ho'omalu Zone limited access permit. In addition to an application
under Sec. 660.13(c), each applicant for a Ho'omalu Zone permit must
also submit a supplementary information sheet provided by the PIAO,
which must be signed by the vessel owner or a designee and include the
following information:
(i) The qualification criterion that the applicant believes he or
she meets for issuance of a limited access permit;
(ii) Copies of landings receipts or other documentation, with a
certification from a state or Federal agency that this information is
accurate, to demonstrate participation in the NWHI bottomfish fishery;
and
(iii) If the application is filed by a partnership or corporation,
the names of each of the individual partners or shareholders and their
respective percentages of ownership of the partnership or corporation.
(3) Mau Zone limited access permit. The PIAO will not accept
applications for a new Mau Zone permit more than 45 days following the
publication date of the final rule implementing Amendment 5. In
addition to an application under Sec. 660.13(c), each applicant for a
Mau Zone permit must also submit a supplementary information sheet
provided by the PIAO, which must
be signed by the vessel owner or a designee and include the
following information:
(i) The qualification criterion that the applicant believes he or
she meets for issuance of a limited access permit;
(ii) Copy of State of Hawaii catch report(s) to demonstrate that
the permitted vessel had made qualifying landings of bottomfish from
the Mau Zone; and
(iii) If the application is filed by a partnership or corporation,
the names of each of the individual partners or shareholders and their
respective percentage of ownership of the partnership or corporation.
(c) Sale or transfer of Ho'omalu limited access permits to new
vessel owners.
(1) A Ho'omalu zone permit may not be sold or otherwise transferred
to a new owner.
(2) A Ho'omalu zone permit or permits may be held by a partnership
or corporation. If 50 percent or more of the ownership of the vessel
passes to persons other than those listed in the original application,
the permit will lapse and must be surrendered to the Regional
Administrator.
(d) Transfer of Ho'omalu Zone limited access permits to replacement
vessels.
(1) Upon application by the owner of a permitted vessel, the
Regional Administrator will transfer that owner's permit to a
replacement vessel owned by that owner, provided that the replacement
vessel does not exceed 60 ft (18.3 m) in length. The replacement vessel
must be put into service no later than 12 months after the owner
applies for the transfer, or the transfer shall be void.
(2) An owner of a permitted vessel may apply to the Regional
Administrator for transfer of that owner's permit to a replacement
vessel greater than 60 ft (18.3 m) in length. The Regional
Administrator may transfer the permit upon determining, after
consultation with the Council and considering the objectives of the
limited access program, that the replacement vessel has catching power
that is comparable to the rest of the vessels holding permits for the
fishery, or has catching power that does not exceed that of the
original vessel, and that the transfer is not inconsistent with the
objectives of the program. The Regional Administrator shall consider
vessel length, range, hold capacity, gear limitations, and other
appropriate factors in making determinations of catching power
equivalency and comparability of the catching power of vessels in the
fishery.
(e) Ho'omalu Zone limited access permit renewal. (1) A qualifying
landing for Ho'omalu Zone permit renewal is a landing of at least 2,500
lb (1,134 kg) of bottomfish management unit species from the Ho'omalu
Zone or a landing of at least 2,500 lb (1,134 kg) of fish from
[[Page 827]]
the Ho'omalu Zone, of which at least 50 percent by weight was
bottomfish management unit species. A permit is eligible for renewal
for the next calendar year if the vessel covered by the permit made
three or more qualifying landings during the current calendar year.
(2) The owner of a permitted vessel that did not make three or more
qualifying landings of bottomfish in a year may apply to the Regional
Administrator for waiver of the landing requirement. If the Regional
Administrator finds that failure to make three landings was due to
circumstances beyond the owner's control, the Regional Administrator
may renew the permit. A waiver may not be granted if the failure to
make three landings was due to general economic conditions or market
conditions, such that the vessel operations would not be profitable.
(f) Issuance of new Ho'omalu Zone limited access permits. The
Regional Administrator may issue new Ho'omalu Zone limited access
permits under Sec. 660.13 if the Regional Administrator determines, in
consultation with the Council, that bottomfish stocks in the Ho'omalu
Zone are able to support additional fishing effort.
(g) Eligibility for new Ho'omalu Zone limited access permits. When
the Regional Administrator has determined that new permits may be
issued, they shall be issued to applicants based upon eligibility,
determined as follows:
(1) Point system. (i) Two points will be assigned for each year in
which the applicant was owner or captain of a vessel that made three or
more of any of the following types of landings in the NWHI:
(A) Any amount of bottomfish management unit species, regardless of
weight, if made on or before August 7, 1985;
(B) At least 2,500 lb (1,134 kg) of bottomfish management unit
species, if made after August 7, 1985; or
(C) At least 2,500 lb (1,134 kg) of any fish lawfully harvested
from the NWHI, of which at least 50 percent by weight was bottomfish,
if made after August 7, 1985.
(ii) One point will be assigned for each year in which the
applicant was owner or captain of a vessel that landed at least 6,000
lb (2,722 kg) of bottomfish from the main Hawaiian Islands.
(iii) For any one year, points will be assigned under either
paragraph (g)(1)(i) or (g)(1)(ii) of this section, but not under both
paragraphs.
(iv) Before the Regional Administrator issues an Ho'omalu zone
permit to fish for bottomfish under this section, the primary operator
and relief operator named on the application form must have completed a
protected species workshop conducted by NMFS.
(2) Restrictions. An applicant must own at least a 25-percent share
in the vessel that the permit would cover, and only one permit will be
assigned to any vessel.
(3) Order of issuance. New permits shall be awarded to applicants
in descending order, starting with the applicant with the largest
number of points. If two or more persons have an equal number of
points, and there are insufficient new permits for all such applicants,
the new permits shall be awarded by the Regional Administrator through
a lottery.
(4) Notification. The Regional Administrator shall place a notice
in the Federal Register and shall use other means to notify prospective
applicants of the opportunity to file applications for new permits
under this program.
(h) Eligibility for new Mau Zone limited access permits (1) The
PIAO will issue an initial Mau Zone permit to a vessel owner who
qualifies for at least three points under the following point system:
(i) An owner who held a Mau Zone permit on or before December 17,
1991, and whose permitted vessel made at least one qualifying landing
of bottomfish management unit species on or before December 17, 1991,
shall be assigned 1.5 points.
(ii) An owner whose permitted vessel made at least one qualifying
landing of bottomfish management unit species during 1991, shall be
assigned 0.5 point.
(iii) An owner whose permitted vessel made at least one qualifying
landing of bottomfish management unit species during 1992, shall be
assigned 1.0 point.
(iv) An owner whose permitted vessel made at least one qualifying
landing of bottomfish management unit species during 1993, shall be
assigned 1.5 points.
(v) An owner whose permitted vessel made at least one qualifying
landing of bottomfish management unit species during 1994, shall be
assigned 2.0 points.
(vi) An owner whose permitted vessel made at least one qualifying
landing of bottomfish management unit species during 1995, shall be
assigned 2.5 points.
(vii) An owner whose permitted vessel made at least one qualifying
landing of bottomfish management unit species during 1996, shall be
assigned 3.0 points.
(viii) Before the PIAO issues a Mau Zone permit to fish for
bottomfish under this section, the primary operator and relief operator
named on the application form must have completed a protected species
workshop conducted
by NMFS.
(2) For purposes of this paragraph Sec. 660.61(h), a ``qualifying
landing'' means any amount of bottomfish management unit species
lawfully harvested from the Mau Zone and offloaded for sale. No points
shall be assigned to an owner for any qualifying landings reported to
the State of Hawaii more than 1 year after the landing.
(3) More than one Mau Zone permit may be issued to an owner of two
or more vessels providing each of the owner's vessels for which a
permit will be registered for use has made the required qualifying
landings for the owner to be assigned at least three eligibility
points.
(4) A Mau Zone permit holder who does not own a vessel at the time
initial permits are issued must register the permit for use with a
vessel owned by the permit holder within 12 months from the date the
permit was issued. In the interim, the permit holder may register the
permit for use with a leased or chartered vessel. If within 12 months
of initial permit issuance, the permit holder fails to apply to the
PIAO to register the permit for use with a vessel owned by the permit
holder, then the permit expires.
(5) For each subparagraph of paragraph (h)(1) of this section, the
PIAO shall assign points based on the landings of one permitted vessel
to only one owner if the vessel did not have multiple owners during the
time frame covered by the subparagraph. If a vessel had multiple owners
during a time frame covered by one of the subparagraphs of paragraph
(h)(1) of this section (including joint owners, partners, or
shareholders of a corporate owner), the PIAO will assign the points for
that subparagraph to a single owner if only one owner submits an
application with respect to the landings of that vessel during that
time frame. If multiple owners submit separate applications with
respect to the same landings of the same vessel during the same time
frame, then the PIAO shall:
(i) Adhere to any written agreement between the applicants with
respect to who among them shall be assigned the aggregate point(s)
generated by landings during such time frame(s), or
(ii) If there is no agreement:
(A) Shall issue the applicants a joint permit provided the vessel's
landings during such time frames generate at least three points, or
(B) In the event the vessel's landings during such time frame(s)
generated less than three points, shall not assign any
[[Page 828]]
points generated by the vessel's landings during such time frame(s).
(i) Ownership requirements and registration of Mau Zone limited
access permits for use with other vessels. (1) A Mau Zone permit may be
held by an individual, partnership, or corporation. No more than 49
percent of the underlying ownership interest in a Mau Zone permit may
be sold, leased, chartered, or otherwise transferred to another person
or entity. If more than 49 percent of the underlying ownership of the
permit passes to persons or entities other than those listed in the
original permit application supplemental information sheet, then the
permit expires and must be surrendered to the PIAO.
(2) A Mau Zone permit holder may apply under Sec. 660.13 to the
PIAO to register the permit for use with another vessel if that vessel
is owned by the permit holder, and is no longer than 60 ft (18.3 m).
(3) If a Mau Zone permit holder sells the vessel, for which the
permit is registered for use, the permit holder must within 12 months
of the date of sale apply to the PIAO to register the permit for use
with a vessel owned by the permit holder. If the permit holder has not
applied to register a replacement vessel within 12 months, then the
permit expires.
(4) If a permitted vessel owned by the permit holder is sold or
becomes unseaworthy, the Mau Zone permit with which the vessel was
registered may be registered for use with a leased or chartered vessel
for a period not to exceed 12 months from the date of registration of
the leased or chartered vessel. If by the end of that 12-month period
the permit holder fails apply to the PIAO to register the permit for
use with a vessel owned by the permit holder, then the permit expires.
(j) Mau Zone limited access permit renewal. (1) A Mau Zone permit
will be eligible for renewal if the vessel for which the permit is
registered for use made at least five separate fishing trips with
landings of at least 500 lb (227 kg) of bottomfish management unit
species per trip during the calender year. Only one landing of
bottomfish management unit species per fishing trip to the Mau Zone
will be counted toward the landing requirement.
(2) If the vessel for which the permit is registered for use
fails to meet the landing requirement of paragraph (j)(1) of this
section, the owner may apply to the Regional Administrator for a waiver
of the landing requirement. Grounds for a waiver are limited to captain
incapacitation, vessel breakdowns, and the loss of the vessel at sea if
the event prevented the vessel from meeting the landing requirement.
Unprofitability is not sufficient for waiver of the landing
requirement.
(3) Failure of the permit holder to register a vessel for use under
the permit does not exempt a permit holder from the requirements
specified in Sec. 660.61(j).
(k) Appeals of permit actions. (1) Except as provided in subpart D
of 15 CFR part 904, any applicant for a permit or a permit holder may
appeal the granting, denial, or revocation of his or her permit to the
Regional Administrator.
(2) In order to be considered by the Regional Administrator, such
appeal must be in writing, must state the action appealed, and the
reasons therefore, and must be submitted within 30 days of the appealed
action. The appellant may request an informal hearing on the appeal.
(3) The Regional Administrator, in consultation with the Council,
will decide the appeal in accordance with the FMP and implementing
regulations and based upon information relative to the application on
file at NMFS and the Council, and any additional information, the
summary record kept of any hearing and the hearing officer's
recommended decision, if any, and any other relevant considerations.
(4) If a hearing is requested, or if the Regional Administrator
determines that one is appropriate, the Regional Administrator may
grant an informal hearing before a hearing officer designated for that
purpose. The applicant or permit holder may appear personally or be
represented by counsel at the hearing and submit information and
present arguments as determined appropriate by the hearing officer.
Within 30 days of the last day of the hearing, the hearing officer
shall recommend in writing a decision to the Regional Administrator.
(5) The Regional Administrator may adopt the hearing officer's
recommended decision, in whole or in part, or may reject or modify it.
The Regional Administrator's decision on the application is the final
administrative decision of the Department of Commerce, and is effective
on the date the Administrator signs the decision.
5. Section 660.62 is amended by revising paragraph (b), removing
paragraph (c), and redesignating paragraphs (d) through (f) as
paragraphs (c) through (e), respectively to read as follows:
Sec. 660.62 Prohibitions.
* * * * *
(b) Fish for or retain on board a vessel, bottomfish management
unit species in the Ho'omalu Zone or Mau Zone without the appropriate
permit, registered for use with that vessel, issued under Sec. 660.13.
* * * * *
6. Section 660.67 is amended by removing paragraph (d)(3) and
adding new paragraph (e) to read as follows:
Sec. 660.67 Framework for regulatory adjustments.
* * * * *
(e) Five-year review. The Council will conduct a comprehensive
review on the effectiveness of the Mau Zone limited access program 5
years following implementation of the program. The Council will
consider the extent to which the FMP objectives have been met and
verify that the target number of vessels established for the fishery is
appropriate for current fishing activity levels, catch rates, and
biological condition of the stocks. The Council may establish a new
target number based on the 5-year review.
[FR Doc. 99-219 Filed 1-5-99; 8:45 am]
BILLING CODE 3510-22-F