Fisheries Off West Coast States and in the Western Pacific; Pacific Coast Groundfish Fishery; Restrictions on Frequency of Limited Entry Permit Transfers; Sorting Catch by Species; Retention of Fish Tickets

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 971208294-8154-02; I.D. 103097B]

RIN 0648-AJ20

Fisheries Off West Coast States and in the Western Pacific;

Pacific Coast Groundfish Fishery; Restrictions on Frequency of Limited

Entry Permit Transfers; Sorting Catch by Species; Retention of Fish

Tickets

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to implement management measures

that restrict the frequency of limited entry permit transfers to once

every 12 months, with transfers taking effect on the first day of a

cumulative landings limit period. This rule also requires the sorting

of all groundfish species with trip limits, size limits, quotas, or

harvest guidelines at the point of landing, and the retention of

landings receipts on board the vessel that has made those landings.

This rule is intended to constrain the introduction of new fishing

effort into the Pacific Coast groundfish fisheries, and to improve the

enforceability of Federal and state fisheries regulations.

DATES: Effective July 27, 1998.

ADDRESSES: Copies of the Environmental Assessments/Regulatory Impact

Reviews (EA/RIRs) for these issues are available from Lawrence D. Six,

Executive Director, Pacific Fishery Management Council, 2130 SW Fifth

Avenue, Suite 224, Portland, OR 97201.

FOR FURTHER INFORMATION CONTACT: Yvonne deReynier at 206-526-6140,

Svein Fougner at 562-980-4000, or the Pacific Fishery Management

Council at 503-326-6352.

SUPPLEMENTARY INFORMATION: This rule implements three separate

regulatory changes: (1) Restricting the frequency of limited entry

permit transfers to once every 12 months, with transfers taking effect

only on the first day of a cumulative landings limit period; (2)

providing Federal regulatory support for existing state requirements

that require the sorting of all groundfish species with trip limits,

size limits, quotas, or harvest guidelines; and (3) providing

consistent regulatory requirements on the retention of landings

receipts throughout the management area. These regulatory changes were

recommended by the Council at its June 1995 and October 1996 meetings.

The notice of proposed rulemaking for this action (62 FR 67610,

December 29, 1997) fully described the background and rationale for the

Council's recommendations. NMFS requested public comments on this

action through February 12, 1998. NMFS received one comment during the

comment period, which is addressed later in the preamble to this final

rule.

Restrictions on Permit Transfer Frequency

This rule implements Council recommendations to constrain

groundfish fleet effort expansion by restricting the frequency of

limited entry permit transfers to once every 12 months, with transfers

taking effect only on the first day of a major cumulative limit period.

The major cumulative limit periods are the cumulative limit periods

that govern all gears in the groundfish fishery. These are generally 1-

or 2- month periods. The major cumulative limit periods will be

announced each

[[Page 34607]]

year in the Federal Register with the annual specifications and

management measures, or with routine management measures when the

cumulative limit periods are changed. Cumulative limit periods that

govern just a portion of the groundfish fisheries, such as the fixed

gear regular sablefish season, are not considered ``major'' cumulative

limit periods. For permit holders participating in the ``B'' delivery

platoon, transfer effectiveness dates will align with ``B'' platoon

cumulative limit period dates, and the new holder of the ``B'' platoon

permit will be required to participate in ``B'' platoon deliveries for

the remainder of the calendar year.

This action is expected to constrain effort expansion in two ways:

(1) It should prevent two or more vessels from sharing a limited entry

permit during a single cumulative limit period and thereby landing more

than one limit on that permit, and (2) it should discourage increased

fishing effort in the fishery by preventing limited entry permit

holders from temporarily transferring their permits during times when

the vessel is undergoing repairs, operating in other fisheries, or

otherwise idle.

If a permit holder suffers one of two specified hardships, NMFS may

allow transfer of a permit within 12 months of a prior transfer.

Hardship exemptions for this issue are either death of the permit

holder or total loss of the permitted vessel. An application for a

hardship transfer must include documents demonstrating that the

transfer meets the exceptions of death of the permit holder or loss of

the vessel. Hardship exemptions may not be used to waive the

requirement that transfers take effect only on the first day of a

cumulative limit period.

Total loss of vessel is defined in the Pacific Coast groundfish

regulations at Sec. 660.302, ``Totally lost means the vessel being

replaced no longer exists in specie, or is absolutely and irretrievably

sunk or otherwise beyond the possible control of the owner, or the

costs of repair (including recovery) would exceed the repaired value of

the vessel.'' Death of a permit holder would be documented by a copy of

the death certificate of the permit holder. If the permit is owned by a

partnership or a corporation, a transfer within 12 months of the last

transfer will be allowed if a person or persons owning 50 percent or

more of the ownership interest in the partnership or corporation have

died.

If a request for transfer is denied, the Sustainable Fisheries

Division (SFD), NMFS Northwest Region, will explain in writing why the

transfer request has been denied. Further, if the transfer is denied,

the permit holder may appeal that decision within 30 days to the

Regional Administrator, explaining the basis for the appeal. The

Regional Administrator will decide upon the appeal within 45 days in a

final agency action.

Sorting of Groundfish Catch by Species

This measure requires the sorting of all species managed by trip

limits, size limits, quotas, or harvest guidelines. This requirement

will facilitate enforcement because agents will not have to examine

unsorted catches. Compliance should also be enhanced if fishers sort at

sea because fishers will be more aware of the harvest amount of

individual species.

Retaining Fish Tickets on Board the Vessel

This action requires that all West Coast groundfish fishers retain

landings receipts on board their vessels throughout the cumulative trip

limit period of the landings and for 15 days thereafter. This rule also

clarifies that the fish tickets must be provided to an authorized

officer upon request. This is a minor regulatory change that is

expected to eliminate confusion among fishers as to which state's

landings receipts should be kept on board for what length of time.

Changes from the Proposed Rule

NMFS has made one change from the proposed rule, which is explained

under ``Comment of Clarification.''

Comments and Responses

NMFS received one comment on the proposed rule during the 45-day

comment period. NMFS also received comments on the proposal to restrict

the frequency of limited entry permit transfers outside the comment

period and subsequent to the Council's recommendation on this issue.

Because those comments spoke directly to the intent of this rule, they

will be summarized and addressed in this section.

Comment of Clarification

If a permit owner leases out his permit for a period of time, and

then receives the permit back from the lessee without immediately

registering the permit for use with a specific vessel, the vessel

registration for that permit is listed as ``Unidentified'' until the

permit owner specifies the vessel that will be registered with his or

her permit. The proposed changes to the regulations at

Sec. 660.333(f)(2) read in part, ``Limited entry permits may not be

transferred to a different holder or registered for use with a

different vessel more than once every 12 months, except in cases of

death of the permit holder or if the permit is totally lost.'' How

would this provision apply to cases where a permit is transferred off

one vessel and from one permit holder to another permit holder and yet

not registered for use with a new vessel?

Response: NMFS has clarified the regulatory language

Sec. 660.333(f)(2) to address this comment as follows: ``When a permit

transferred from one holder to another holder is initially registered

as 'unidentified' with regard to vessel association, or when a permit's

vessel registration is otherwise unidentified', the transaction is not

considered a transfer' for purposes of this restriction until the

permit is registered for use with a specific vessel.'' Because a permit

may not be used unless it is registered for use with a particular

vessel, NMFS does not expect that this change will alter the

effectiveness of the rule in restricting the frequency of limited entry

permit transfers. The result of this clarification is that a permit may

be transferred to a different owner within 12 months, but it may not be

registered for use with a vessel until the end of the 12-month period.

In addition, a permit owner may remove a permit from a vessel within

the 12-month period, but may not register it for use with another

vessel until the end of the 12-month period.

Comments Opposing the Rule

As stated in the proposed rule, some members of the at-sea

component of the whiting fishery oppose this action, because their

participation in Pacific coast groundfish fisheries is limited to the

whiting fishery and depends upon their ability to have short-term use

of limited entry permits. Some permit owners wish to retain the

flexibility to transfer their permits between vessels appropriate for

the whiting fishery and vessels appropriate for the cumulative limit

groundfish complex fishery occurring outside the whiting fishery. At

and subsequent to the October 1996 Council meeting where these changes

were first proposed, interested members of the public suggested that

transfers made for the purpose of operating in the whiting fishery

should not be subject to the restrictions described above.

Response: When making its recommendation on this issue, the Council

determined that the benefits to the groundfish fishery that could be

gained from restricting the entrance of new effort into the fishery as

a whole

[[Page 34608]]

outweighed the concerns of the at-sea whiting sector. NMFS concurs with

the Council's determination. When the limited entry program was

implemented in 1994, NMFS and the Council expected that requirements

associated with permit ownership would change over time. Permits were

viewed as allowing a permit holder to operate the permitted vessel in

the Pacific coast groundfish fishery, in conformance with the Pacific

Coast Groundfish Fishery Management Plan (FMP), and to use the gear(s)

for which the permit is endorsed. The Council and NMFS specifically

retained the right to revise the FMP in the future, and to change or

abolish the requirements associated with limited entry permits. NMFS

finds that the restriction on permit transfers to once every 12 months

is acceptable within the scope and intentions of the FMP and the

Magnuson-Stevens Fishery Conservation and Management Act.

Classification

This final 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 certified to the Chief Counsel for Advocacy of

the Small Business Administration that this rule would not have a

significant economic impact on a substantial number of small entities.

No comments were received regarding this certification. As a result, a

regulatory flexibility analysis was not prepared.

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: June 18, 1998.

Rolland A. Schmitten,

Assistant Administrator for Fisheries, National Marine Fisheries

Services.

For the reasons set forth in the preamble, 50 CFR part 660 is

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. In Sec. 660.302, the definition of ``Fisheries Management

Division'' is removed and a definition of ``Sustainable Fisheries

Division'' is added to read as follows:

Sec. 660.302 Definitions.

* * * * *

Sustainable Fisheries Division (SFD) means the Chief, Fisheries

Management Division, Northwest Regional Office, NMFS, or a designee.

3. In Sec. 660.303, paragraph (c) is added to read as follows:

Sec. 660.303 Reporting and recordkeeping

* * * * *

(c) Any person landing groundfish must retain on board the vessel

from which groundfish is landed, and provide to an authorized officer

upon request, copies of any and all reports of groundfish landings

containing all data, and in the exact manner, required by the

applicable state law throughout the cumulative limit period during

which a landing occurred and for 15 days thereafter.

4. In Sec. 660.306, paragraph (h) is revised and paragraph (x) is

added to read as follows:

Sec. 660.306 Prohibitions.

* * * * *

(h) Fail to sort, prior to the first weighing after offloading,

those groundfish species or species groups for which there is a trip

limit, size limit, quota, or harvest guideline, if the vessel fished or

landed in an area during a time when such trip limit, size limit,

harvest guideline or quota applied.

* * * * *

(x) Fail to retain on board a vessel from which groundfish is

landed, and provide to an authorized officer upon request, copies of

any and all reports of groundfish landings, or receipts containing all

data, and made in the exact manner required by the applicable state law

throughout the cumulative limit period during which such landings

occurred and for 15 days thereafter.

5. In Sec. 660.333, paragraphs (c)(1) and (c)(2) are revised;

paragraphs (c)(3) and (c)(4) are redesignated as (c)(4) and (c)(5)

respectively and a new (c)(3) is added; paragraph (d) introductory text

is revised; paragraphs (f)(2) and (f)(3) are redesignated as (f)(3) and

(f)(4) respectively and a new (f)(2) is added to read as follows:

Sec. 660.333 Limited entry fishery - general.

* * * * *

(c) * * *

(1) Upon transfer of a limited entry permit, the SFD will reissue

the permit in the name of the new permit holder, with such gear

endorsements, and, if applicable, species endorsements as are eligible

for transfer with the permit. Permit transfers will take effect on the

first day of the next major limited entry cumulative limit period

following the date of the transfer. Transfers of permits designated as

participating in the ``B'' platoon will become effective on the first

day of the next ``B'' platoon major limited entry cumulative limit

period following the date of the transfer. No transfer is effective

until the limited entry permit has been reissued as registered with the

new vessel and the permit is in the possession of the new permit

holder.

(2) A limited entry permit may not be used with a vessel unless it

is registered for use with that vessel. Limited entry permits will

normally be registered for use with a particular vessel at the time the

permit is issued, renewed, transferred, or replaced. A permit not

registered for use with a particular vessel may not be used. If the

permit will be used with a vessel other than the one registered on the

permit, a registration for use with the new vessel must be obtained

from the SFD and placed on board the vessel before it is used under the

permit. Registration of a permit to be used with a new vessel will take

effect on the first day of the next major limited entry cumulative

limit period following the date of the transfer.

(3) The major limited entry cumulative limit periods will be

announced in the Federal Register each year with the annual

specifications and management measures, or with routine management

measures when the cumulative limit periods are changed.

* * * * *

(d) Evidence and burden of proof. A vessel owner (or person holding

limited entry rights under the express terms of a written contract)

applying for issuance, renewal, replacement, transfer, or registration

of a limited entry permit has the burden to submit evidence to prove

that qualification requirements are met. A permit holder applying to

register a limited entry permit has the burden to submit evidence to

prove that registration requirements are met. The following evidentiary

standards apply:

* * * * *

(f) * * *

(2) Limited entry permits may not be transferred to a different

holder or registered for use with a different vessel more than once

every 12 months, except in cases of death of the permit holder or if

the permitted vessel is totally lost, as defined at Sec. 660.302. The

exception for death of a permit holder applies for a permit held by a

partnership or a

[[Page 34609]]

corporation if the person or persons holding at least 50 percent of the

ownership interest in the entity dies. When a permit transferred from

one holder to another holder is initially ``unidentified'' with regard

to vessel registration, or when a permit's vessel registration is

otherwise ``unidentified'', the transaction is not considered a

``transfer'' for purposes of this restriction until the permit is

registered for use with a specific vessel.

* * * * *

[FR Doc. 98-16789 Filed 6-24-98; 8:45 am]

BILLING CODE 3510-22-F