[Federal Register Volume 59, Number 4 (Thursday, January 6, 1994)]
[Rules and Regulations]
[Pages 685-701]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 93-32117]


[[Page Unknown]]

[Federal Register: January 6, 1994]


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DEPARTMENT OF COMMERCE
50 CFR Part 663

[Docket No. 931248-3348; ID. 100693A]

 

Pacific Coast Groundfish Fishery

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Interim final rule; request for comments.

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SUMMARY: This interim final rule amends the regulations governing the 
Pacific coast groundfish limited-entry fishery to: (1) Clarify 
distinctions between holders, owners, and lessees of limited-entry 
permits in the Pacific coast groundfish fishery by adding definitions 
of these terms and making minor corrections consistent with the new 
definitions; (2) clarify that shrimp (including spot and ridgeback 
prawn) trawls, California halibut trawls, and California sea cucumber 
trawls are ``exempted gear''; (3) delete trip limits for groundfish 
taken in the pink shrimp and spot and ridgeback prawn trawl fisheries; 
(4) designate trip limits in the pink shrimp and spot and ridgeback 
prawn fisheries as ``routine'' management measures; (5) modify the 
method of calculating allocations for the ``open-access'' fishery; and 
(6) clarify that the sablefish ``regular'' season for nontrawl gear 
only applies to the limited-entry groundfish fishery. These actions are 
necessary to make the regulations implementing the Fishery Management 
Plan for the Pacific Coast Groundfish Fishery (FMP) consistent with 
Amendment 6 (limited entry) to the FMP, and to improve recordkeeping 
and enforcement of regulations in the Pacific coast groundfish fishery.

DATES: Effective on December 30, 1993. Comments will be accepted 
through January 31, 1994.

ADDRESSES: Effective January 1, 1994. Comments should be sent to Mr. J. 
Gary Smith, Acting Director, Northwest Region, National Marine 
Fisheries Service, 7600 Sand Point Way NE., BIN C15700, Seattle, WA 
98115-0070.

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

SUPPLEMENTARY INFORMATION: On November 16, 1992, NOAA promulgated 
regulations (57 FR 54001) that establish a license limitation limited-
entry program for the Pacific coast commercial groundfish fishery based 
on the issuance of gear-specific Federal permits (the ``limited-entry 
program''). Under the program, permits are initially issued to owners 
of qualifying vessels. Permits with type ``A'' gear endorsements are 
transferrable, and may be leased by one vessel owner to another. The 
implementing regulations, codified at 50 CFR part 663, subpart C, use 
the terms ``permit holder'' and ``permit owner'' interchangeably, and 
do not clearly define the relationship between permit owners and permit 
lessees. This lack of definition creates potential recordkeeping and 
enforcement problems. These problems stem from a person being able to 
``own'' a permit, but lease it to someone else. Maintenance of records 
identifying the permit owner, even if the permit is currently 
registered to a lessee, is essential for recording and enforcement 
purposes. The NMFS records system is the only place available to 
officially record permit ownership, and give notice to creditors, 
purchasers, encumbrancers, and other interested parties. NMFS itself 
needs to know who owns the permit in the event it becomes necessary to 
take an enforcement action such as sanctioning the permit or collecting 
a delinquent penalty.
    Accordingly, the first clarification made by this interim final 
rule is to add the following definitions for ``permit owner,'' ``permit 
lessee,'' and ``permit holder.'' A ``permit owner'' is defined as the 
person owning the permit; a ``permit lessee'' is defined as a person 
who does not own the permit, but has the right to possess and use it 
for a designated period, with reversion to the permit owner; and 
``permit holder'' is an umbrella term which includes both ``permit 
owners'' and ``permit lessees.'' This rule amends the regulations in 
multiple paragraphs to use the term ``permit owner'' rather than 
``permit holder'' when appropriate, and to amend the definition of 
``owner'' to ``owner of a vessel'' or ``vessel owner'' to distinguish a 
vessel owner from a ``permit owner.'' These revisions clarify that only 
permit owners may transfer a limited-entry permit to a different 
person, thus not allowing a lessee to transfer the permit to someone 
other than the permit owner.
    With respect to administration of the limited-entry program, the 
terms ``permit holder,'' ``permit owner,'' and ``permit lessee'' are 
used for ease of understanding only, and do not signify traditional 
property rights. As stated in Amendment 6,


    Groundfish limited entry permits and endorsements confer a right 
to participate in the Pacific coast groundfish fishery with a 
limited entry gear in accordance with the limited entry system 
established under the Pacific Coast Groundfish FMP as modified by 
this chapter of the FMP (created under Amendment 6) or any future 
amendment which may modify or even abolish the limited entry system. 
The permits and endorsement are also subject to sanctions, including 
revocation, as provided by the Magnuson Fishery Conservation and 
Management Act, 16 U.S.C. at 1858(g) and 15 CFR part 904, subpart D.

    The second clarification revises the definition of ``exempted 
gear'' in the implementing regulations. Section 4.2.1 of the FMP states 
that exempted gear includes all gears other than groundfish trawl, 
longline, and fishpot (which are limited-entry gears). The FMP points 
out that shrimp trawl gear, a non-groundfish trawl gear, is an exempt 
gear. Shrimp trawl gear is not defined in terms of physical attributes, 
but includes trawl gear used to take pink shrimp, or spot or ridgeback 
prawns. Two other trawl fisheries, California halibut and California 
sea cucumber, also have been identified as non-groundfish trawl 
fisheries, which have traditionally landed small quantities of 
groundfish as a bycatch. However, the implementing regulations at 50 
CFR 663.31 define ``exempted'' gear as all types of fishing gear except 
trawl, longline, and trap (or pot) gear, thus inadvertently excluding 
shrimp, California halibut, and California sea cucumber trawl gear from 
participation in the open-access fishery. This action clarifies that 
``exempted'' gear includes all gear other than longline, trap, and 
groundfish trawl gear. Trawl gear used to take pink shrimp, spot 
prawns, ridgeback prawns, California halibut, or California sea 
cucumbers is specifically defined as ``exempted gear.'' ``Limited-entry 
gear'' is redefined to include ``groundfish trawl gear'' rather than 
``all trawl gear.'' A new definition of ``groundfish trawl gear'' is 
added to include only trawl gear used under the authority of a valid 
Pacific Coast Groundfish limited-entry permit affixed with an 
endorsement for trawl gear.
    The third and fourth clarifications address how trip limits are 
established for groundfish taken in trawl fisheries for pink shrimp and 
spot and ridgeback prawn fisheries. Trip limits for groundfish in these 
fisheries have been fixed in the regulations at 50 CFR 663.24(a) and 
(b). The trip limits were codified because the Council did not foresee 
any future need to revise them under the management regime that existed 
prior to limited entry. Under Amendment 6, however, groundfish bycatch 
in the shrimp and prawn trawl fisheries is managed as a component of 
the ``open-access'' fishery because it is taken with ``exempted gear.'' 
Amendment 6 provides for the establishment of trip limits for bycatch 
of groundfish with exempted gear in the open-access fishery to make 
sure that the total catch of each species and species group does not 
exceed the historical catch proportions during the limited-entry 
qualifying period, and that the open-access allocations are not 
exceeded during the fishing year. Because the amount of effort in the 
open-access fishery may change over time, Amendment 6 contemplated that 
trip limits may need frequent revision.
    The Pacific coast groundfish regulations at 50 CFR 663.23(c) 
establish a category of management measures called ``routine.'' Routine 
measures include the types of management measures, primarily trip 
limits but also including trip frequency limits and bag limits in the 
recreational fishery, that need to be adjusted frequently in order to 
manage the fishery consistent with the FMP's goals and objectives. Once 
a particular management measure has been established by regulation as 
``routine,'' the Pacific Fishery Management Council (Council) may 
recommend that the Secretary adjust that measure at any time, following 
consideration at a single Council meeting and publication of the 
adjustment in the Federal Register, provided that the purpose for the 
adjustment is consistent with the rationale for needing frequent 
adjustments that was articulated at the time the management measure was 
determined to be ``routine.''
    Implementing regulations for Amendment 6 inadvertently omitted a 
``routine'' designation for trip limits for groundfish in the shrimp 
and prawn trawl fisheries. The routine designation is necessary in 
order to limit the open-access catch of groundfish to its historical 
catch proportions and to ensure that the annual open-access allocation 
is not exceeded. Thus, this rule deletes the trip limits in the pink 
shrimp and spot and ridgeback prawn fisheries at 50 CFR 663.24(a) and 
(b) while simultaneously designating them as ``routine'' under 50 CFR 
663.23(c)(2) so that the Council may recommend adjustments as necessary 
without undertaking the time-consuming regulatory amendment process.
    In accordance with the procedures for routine designation, the 
Council considered the routine designation for trip limits for pink 
shrimp and prawns at the September 1993 meeting and recommended the 
designation at its November 1993 meeting. Rockfish and sablefish trip 
landing and trip frequency limits for all gear are already designated 
as routine. This action clarifies the regulations to include trip 
landing and frequency limits for rockfish and sablefish in the open-
access as well as the limited-entry portion of the Pacific coast 
groundfish fishery.
    The fifth clarification addresses an inconsistency between how 
catches in the ``limited-entry'' and ``open-access'' fisheries are 
accounted for, and how the allocations are calculated for each fishery. 
50 CFR 663.32(c) provides that any groundfish caught by a vessel with a 
limited-entry permit will be counted against the limited-entry 
allocation while the limited-entry fishery for that vessel's limited-
entry gear type is open. Thus, for example, while the limited-entry 
fishery for groundfish is open, any groundfish taken by a vessel with a 
limited-entry permit, even if it is fishing with exempted gear such as 
shrimp trawl gear, will be counted against the limited-entry 
allocation. In sections II.E.(d)(3) and (d)(4)(A)(1) and (2) of the 
appendix to part 663, the ``open-access'' allocation is derived by 
applying the open-access allocation percentage to the annual harvest 
guideline or quota after subtracting any set asides for recreational 
fishing or treaty Indians. The ``open-access allocation percentage'' is 
calculated by computing the total catch during the limited-entry 
qualifying (window) period by longlines and traps (or pots) not 
initially receiving a limited-entry endorsement for that gear, and by 
exempted gear, and dividing that amount by the total catch during the 
window period by all gear. Thus, the groundfish catch taken during the 
window period with exempted gear by a vessel that initially receives a 
limited-entry permit will be included in the open-access allocation 
even though the catch with that same exempted gear in 1994 and beyond 
will count against the limited-entry allocation as long as the limited-
entry fishery is open. To rectify this inconsistency, this rule amends 
the regulations to provide that the window period catch by vessels not 
initially receiving limited-entry permits will count toward the ``open-
access'' allocation; conversely, the window period catch with exempted 
gear by vessels initially receiving a limited-entry permit will count 
toward the ``limited-entry'' allocation.
    Finally, this rule clarifies that the ``regular'' season with 
longline and fish trap (or pot) gear (nontrawl gear) for sablefish 
refers only to the ``limited-entry'' fishery. Vessels participating in 
the ``open-access'' fishery are not affected by the regular season 
because they are regulated under open-access trip landing limits which 
extend throughout the year.

Classification

    This interim final rule is issued under the Magnuson Fishery 
Conservation and Management Act, 16 U.S.C. 1801 et seq. This rule makes 
minor changes designed to clarify and facilitate implementation of 
Amendment 6. NMFS became aware of the need for these changes while 
implementing the Pacific coast groundfish limited-entry program, a new 
and complex regulatory system. These changes need to be in place when 
the fishery itself begins to operate under the limited-entry system on 
January 1, 1994. Most of the changes effected by this rule are 
necessary to conform the implementing regulations to the letter and 
intent of Amendment 6 to the FMP. As such, these provisions were 
discussed and were subject to public comment and scrutiny during the 
years the Council developed Amendment 6. Furthermore, the revisions and 
clarifications are necessary to uniformly administer the program and to 
ensure accurate recordkeeping. These provisions will not result in any 
significant changes in the day-to-day operating practices of the 
fishery. Accordingly, the Assistant Administrator for Fisheries, NOAA, 
has determined under 5 U.S.C. 553(b) and (d), that it would be 
unnecessary and contrary to the public interest to delay the 
effectiveness of these provisions pending advance notice and comment 
and a 30-day delay in effectiveness.
    The revision of 50 CFR 663.22(d)(1) is the only change that was not 
necessarily contemplated by Amendment 6; however, it would be 
impracticable and contrary to the public interest to provide advance 
notice and comment before the fishery converts to limited-entry 
because, without it, permit owners and potential purchasers would be 
susceptible to substantial losses if permits could be freely 
transferred by permit lessees.

List of Subjects in 50 CFR Part 663

    Fisheries, Fishing, Reporting and recordkeeping requirements.

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

    Dated: December 30, 1993.
Samuel W. McKeen,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

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

PART 663--PACIFIC COAST GROUNDFISH FISHERY

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

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


Sec. 663.7  [Amended]

    2. In Sec. 663.7, in paragraph (q), the word ``groundfish'' is 
added before the words ``trawl gear'' the first two times they appear.
    3. In Sec. 663.23, paragraph (b)(2) is amended by revising the 
paragraph heading and adding introductory text, the title of paragraph 
(c)(1) is revised, paragraph (c)(2) is redesignated as (c)(3), and a 
new paragraph (c)(2) is added to read as follows:


Sec. 663.23  Catch restrictions.

* * * * *
    (b) * * *
    (2) Nontrawl sablefish--Limited entry Fishery. This paragraph 
(b)(2) applies to vessels using nontrawl gear in the limited entry 
fishery, but not to vessels in the open access fishery as described in 
Subpart C--Limited entry and Open Access Fisheries. * * *
* * * * *
    (c) * * *
    (1) Commercial--Limited entry and Open Access Fisheries. * * *
* * * * *
    (2) Commercial--Open Access Fishery.
    (i) All groundfish--Shrimp trawls used to harvest pink shrimp, spot 
prawn, or ridgeback prawn--trip landing and frequency limits.
    (ii) Reasons for ``routine'' management measures. All routine 
management measures on the open access fisheries are intended to keep 
landings within the harvest levels announced by the Secretary, maintain 
landings at historical (1984-1988) proportions, and extend the fishing 
season to minimize disruption of traditional fishing and marketing 
patterns.
    (3) Recreational. * * *
* * * * *


Sec. 663.24  [Removed and Reserved]

    4. Section 663.24 is removed and reserved.
    5. Section 663.31 is amended by revising the definitions of 
``exempted gear,'' ``limited entry gear'', removing the definition of 
``owner'' and adding definitions for ``groundfish trawl gear'', ``owner 
of a vessel'', ``permit holder'', ``permit lessee'', and ``permit 
owner'' in alphabetical order as follows:


Sec. 663.31  Definitions.

* * * * *
    Exempted gear means all types of fishing gear except longline, trap 
(or pot), and groundfish trawl gear. Exempted gear includes trawl gear 
used to take pink shrimp, spot and ridgeback prawns, California halibut 
south of Pt. Arena, California, and sea cucumber, south of Pt. Arena, 
California, under the authority of a State of California limited entry 
permit for the sea cucumber fishery.
* * * * *
    Groundfish trawl gear means trawl gear that is used under the 
authority of a valid limited entry permit issued under this part 
endorsed for trawl gear. It does not include any type of trawl gear 
listed as ``exempted gear.''
* * * * *
    Limited entry gear means longline, trap (or pot) or groundfish 
trawl gear used under the authority of a valid limited entry permit 
affixed with an endorsement for that gear.
* * * * *
    Owner of a vessel or vessel owner, as used in this subpart, means a 
person who is identified as the current owner in the Certificate of 
Documentation (CG-1270) issued by the U.S. Coast Guard for a documented 
vessel, or in a registration certificate issued by a state or the U.S. 
Coast Guard for an undocumented vessel.
* * * * *
    Permit holder means a permit owner or a permit lessee.
    Permit lessee means a person who has the right to possess and use a 
limited entry permit for a designated period of time, with reversion to 
the permit owner.
    Permit owner means a person who owns a limited entry permit.
* * * * *


Sec. 663.33  [Amended]

    6. In Sec. 663.33, in paragraph (d)(1), the words ``Permit holder'' 
are revised to read ``Permit owner'', and the words ``person, or'' are 
revised to read ``person. The permit holder may''.


Sec. 663.35  [Amended]

    7. In Sec. 663.35, in paragraph (b)(1), the word ``holder'' is 
revised to read ``permit owner''.
    8. In Sec. 663.35, in paragraph (b)(2)(i), the words ``permit 
holder'' are revised to read ``permit owner''.
    9. In Sec. 663.35, in paragraph (b)(2)(ii), the word ``transferee'' 
is revised to read ``new permit owner''.


Sec. 663.36  [Amended]

    10. In Sec. 663.36, in paragraph (b)(1), the word ``holder'' is 
revised to read ``permit owner''.


Sec. 663.37  [Amended]

    11. In Sec. 663.37, in paragraph (b)(1), the word ``holder'' is 
revised to read ``permit recipient''.


Sec. 663.41  [Amended]

    12. In Sec. 663.41, in paragraph (c)(2), the twice occurrence of 
the words ``permit holder'' are revised to read ``permit owner''.
    13. In Sec. 663.41, in paragraph (c)(3), the words ``permit 
holder'' are revised to read ``permit owner''.
    14. In Section II.E.(d)(4)(i) of the appendix to part 663, 
paragraph (A) is revised to read as follows:

Appendix to Part 663--Groundfish Management Procedures

* * * * *
    II. * * *
    E. * * *
    (d) * * *
    (4) * * *
    (i) * * *

    (A) Computing the total catch for that species during the window 
period by any vessel that does not initially receive a limited entry 
permit; and
* * * * *
[FR Doc. 93-32117 Filed 12-30-93; 5:12 pm]
BILLING CODE 3510-22-M