Pacific Coast Groundfish Fishery

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]

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