[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
