[Federal Register Volume 63, Number 122 (Thursday, June 25, 1998)]
[Rules and Regulations]
[Pages 34606-34609]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-16789]


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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