[Federal Register Volume 66, Number 152 (Tuesday, August 7, 2001)]
[Rules and Regulations]
[Pages 41152-41159]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-19769]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 010108006-1198-03; I.D. 050101D]
RIN 0648-AO97


Fisheries off West Coast States and in the Western Pacific 
Pacific Coast Groundfish Fishery; Amendment 14

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

ACTION: Final rule; announcement of approval of an amendment to a 
fishery management plan.

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SUMMARY: NMFS announces the approval of Amendment 14 to the Pacific 
Coast Groundfish Fishery Management Plan (FMP) and issues a final rule 
to implement portions of it. Amendment 14 creates a permit stacking 
program for limited entry permits with sablefish endorsements. This 
permit stacking program will lengthen the duration of the limited 
entry, fixed gear primary sablefish fishery. It is intended to increase 
safety in that fishery, to provide flexibility to participants, and to 
reduce capacity in the limited entry fixed gear fleet.

DATES: Effective August 2, 2001.

ADDRESSES: Copies of Amendment 14 to Pacific Coast Groundfish FMP and 
the environmental assessment/regulatory impact review (EA/RIR) are 
available from Donald McIsaac, Executive Director, Pacific Fishery 
Management Council, 7700 NE Ambassador Place, Portland, OR 97220.

FOR FURTHER INFORMATION CONTACT: Yvonne deReynier or Becky Renko at: 
phone, 206-526-6140; fax, 206-526-6736, and email, 
[email protected]or [email protected], or Svein Fougner at: 
phone, 562-980-4000; fax, 562-980-4047; and email, 
[email protected].

SUPPLEMENTARY INFORMATION:

Electronic Access

    This Federal Register document is also accessible via the internet 
at the website of the Office of the Federal Register: http://www.access.gpo.gov/su-docs/aces/aces140.html.

Background

    The notice of availability for Amendment 14 was published on May 9, 
2001 (66 FR 23660), and NMFS requested public comments on Amendment 14 
through July 9, 2001. A proposed rule to implement portions of 
Amendment 14 was published on June 8, 2001 (66 FR 30869). NMFS 
requested public comment on the proposed rule through July 9, 2001. 
During the comment periods on the notice of availability and on the 
proposed rule, NMFS received 3 letters of comment, which are addressed 
later in this preamble. See the preamble to the proposed rule for 
additional background information on the fishery and on this rule.
    NMFS approved Amendment 14 on July 30, 2001. Amendment 14 
introduces a permit stacking program in the limited entry, fixed gear 
primary sablefish season. Under Amendment 14, a vessel owner is allowed 
to ``stack'' up to three sablefish endorsed permits on his/her vessel 
in order to harvest the cumulative sablefish limits associated with 
each of the stacked permits. Permit stacking allows fleet participants 
with greater harvest capacity to better match their sablefish 
cumulative limits with individual vessel capacity by stacking multiple 
permits. For each stacked permit, a vessel will be removed from the 
fishery, reducing overall limited entry fixed gear fishery capacity. 
Amendment 14 will allow longer fishing seasons. Beyond the safety 
benefits of a longer season, fishers will be able to use the time to 
fish more selectively and to increase their incomes by improving the 
quality of their ex-vessel product.
    The Pacific Fishery Management Council (Council) adopted Amendment 
14 in November 2000. Amendment 14 is complex, with many provisions that 
will be time-consuming to implement. However, some of the Amendment 14 
provisions most desired by the fleet can be and with this final rule, 
are being implemented for the 2001 season, including a longer primary 
sablefish season and allowing up to three limited entry permits to be 
registered with a single vessel. The fixed gear sablefish fleet has 
been in favor of a longer duration primary sablefish season for several 
years, wishing to end the derby-style fishery and to move to a slower 
paced and safer season. For this reason, NMFS decided to split 
implementation of Amendment 14 into two rulemakings with the first one 
implementing the less complex provisions in time for the 2001

[[Page 41153]]

season, and the second to follow later in time for the 2002 season and 
beyond.
    Under this final rule: (1) up to three sablefish endorsed permits 
may be registered for use with a single vessel; (2) the limited entry, 
fixed gear primary sablefish season opens on August 15 and ends on 
October 31, 2001; (3) a vessel may fish for sablefish during the 
primary season with any of the gears specified on at least one of the 
limited entry sablefish endorsed permits registered for use with that 
vessel; (4) no person may hold (own or lease) more than three sablefish 
endorsed limited entry permits unless that person owned more than three 
permits as of November 1, 2000; (5) no partnership or corporation may 
own a sablefish endorsed limited entry permit unless that partnership 
or corporation owned a permit as of November 1, 2000; (6) cumulative 
limits for species other than sablefish and for the sablefish daily 
trip limit fishery remain per vessel limits and are not affected by 
permit stacking; and (7) the limited entry daily trip limit fishery for 
sablefish will be open during the primary season for vessels not 
participating in the primary season.
    NMFS expects that the proposed rule to implement the additional 
provisions of Amendment 14 for 2002 and beyond will propose the 
following: (1) holding the limited entry, fixed gear primary sablefish 
season from April 1 through October 31; (2) requiring persons, 
partnerships, and corporations owning sablefish endorsed limited entry 
permits to document the ownership interests in those permits to ensure 
that no person holds more than three permits; (3) prohibiting vessels 
that do not meet minimum frozen sablefish historic landing requirements 
to process sablefish at sea; (4) requiring persons who own sablefish 
endorsed limited entry permits who did not own sablefish endorsed 
permits on November 1, 2000, to be on board their vessels while those 
vessels are participating in the primary sablefish fishery; (5) 
requiring vessels landing sablefish against their primary season 
cumulative limits to report to enforcement officers before making any 
sablefish landings; and (6) charging participants a fee to cover the 
management costs of this program.

Comments and Responses

    During the comment period for Amendment 14, NMFS received three 
letters of comment: one letter was written by an association of seafood 
processors; one letter was written by an association of vessel owners 
and an association of fishing crew members; and one letter was written 
by the United States Coast Guard (USCG). Comments received address both 
Amendment 14 and the proposed rule to implement Amendment 14.
    Comment 1: Amendment 14 is consistent with National Standard 10 
because it improves the safety in this fishery. The longer fishing 
season will also give vessel owners the flexibility to fish their 
sablefish tier limits at times when sablefish prices are high, rather 
than only during a short opening.
    Response: NMFS agrees. National Standard 10 requires that 
conservation measures, to the extent practicable, promote the safety of 
human life at sea. For the past several years, overcapitalization and 
competition in the fixed gear sablefish fleet have resulted in an 
intense derby-style fishery. The rule increases the duration of the 
fishery from 9 days in 2000 to 2.5 months in 2001. Participants in past 
limited entry fixed gear sablefish fisheries often complained that 
fishing during the derby meant working for several days at a time 
without sleep. The rule allows holders of sablefish endorsed limited 
entry permits to harvest their sablefish tier limits at a reasonable 
pace and during optimal weather and ocean conditions.
    NMFS also agrees that Amendment 14 and this final rule will give 
permit holders more flexibility to fish for sablefish under optimal 
marketing conditions. In past years, the short derby season prevented 
permit holders from taking advantage of changes in the sablefish 
market, and the sablefish produced from the derby would briefly flood 
the market. Most West Coast sablefish is exported to Japan, where 
consumers pay higher prices for carefully handled fish. Amendment 14 
will give fishers a chance to slow down their operations so that they 
have a better product to offer to the market and will allow them to 
choose their fishing time to coincide with higher market prices.
    Comment 2: This permit stacking program limits the number of 
permits that may be stacked and held by a single individual. This 
provision will limit social disruptions in the fishery while also 
allowing a reasonable concentration of capital.
    Response: NMFS agrees. While the Council intended Amendment 14 to 
reduce overall fleet capacity, the Council also wished to ensure that 
the fleet would remain a locally owned, owner operated fleet. Thus, 
Amendment 14 allows no more than three permits per vessel, and no more 
than three permits per person, partnership, or corporation, unless that 
person, partnership, or corporation held more than three permits as of 
the Council's November 1, 2000, decision date on Amendment 14. By 
allowing up to three permits per vessel, Amendment 14 could reduce the 
number of vessels participating in the fishery by as much as two-
thirds. The Council has expressed a goal of reducing fleet capacity in 
West Coast groundfish fisheries, and Amendment 14 is a step in that 
direction.
    Comment 3: Amendment 14 sets an accumulation limit of three 
permits, prohibiting a person, partnership or corporation from holding 
more than three permits. The amendment also allows an exception to this 
accumulation limit for persons, partnerships, or corporations that 
owned more than three permits as of November 1, 2000. A permit 
accumulation limit is contrary to the Council's goal of reducing 
capacity in the groundfish fishery. Further, an exception to the permit 
accumulation limit creates an elite class of permit holders and allows 
those meeting the exception an excessive share of fishing privileges. 
Both the accumulation limit and the exception to that limit should be 
disapproved.
    Response: NMFS disagrees. In October 2000, the Council completed a 
Strategic Plan, which discussed the Council's goals for the future of 
the groundfish fishery. One goal is to reduce vessel overcapacity, with 
the objective of reducing the size of the groundfish fleet by one-half. 
As stated in the response to Comment 2, Amendment 14 could reduce the 
size of the affected segment of the groundfish fleet by up to two-
thirds. Amendment 14 allows some consolidation, but no unlimited 
consolidation, because it could cause excessive concentration of 
control over this segment of the fleet. Thus, the primary sablefish 
fishery is expected to become more efficient without dramatically 
changing the character of the fleet.
    The commenter is correct in saying that Amendment 14 allows 
persons, partnerships, or corporations who owned more than three 
permits as of November 1, 2000, to continue to own those same permits. 
If, however, one of these initial permit holders were to sell one of 
his/her originally owned permits, the maximum number of permits that 
person could own would be reduced. As of November 1, 2000, it appears 
that only four persons had ownership interest in more than three 
permits, and none of those persons owned more than 5 permits. (Since 
NMFS does not currently have complete ownership information, this 
number may be low). NMFS does not believe that this small number of 
excepted permit owners

[[Page 41154]]

creates an ``elite class,'' particularly given that the number of 
exempted permit owners is expected to decrease over time. Amendment 14 
could have required persons owning in excess of three permits to sell 
those excess permits, but the Council did not wish to unnecessarily 
disrupt existing fishing businesses, but rather wanted to guide future 
developments.
    Comment 4: Under Amendment 14, a vessel owner who stacks more than 
one permit on his/her vessel would not be required to permanently 
combine those permits. Stacked permits could be ``unstacked'' and 
freely traded. Allowing permit unstacking is contrary to the Council's 
goal of capacity reduction. The Amendment 14 provision to allow 
unstacking should be disapproved because it will prevent the program 
from reducing the number of vessels in the sablefish fishery or in 
other non-sablefish groundfish fisheries.
    Response: NMFS agrees that permanent capacity reduction could have 
been achieved if Amendment 14 had not allowed permit owners to separate 
and unstack their permits. However, permit owners would likely be more 
reluctant to stack and consolidate their permits if they could not 
again separate those permits, particularly considering the uncertainty 
in how other segments of the fishery will be managed in the future. For 
example, Council advisory groups have discussed establishing rockfish 
endorsements, similar to sablefish endorsements, and/or adopting an 
individual quota (IQ) program. Without a resolution of these issues, 
permit holders might be reluctant to permanently stack permits. In 
2004-2005, NMFS will review this provision and the state of groundfish 
management to see how well this provision works and whether there have 
been changes in the fishery that provide incentives to stack permits 
even if they cannot later be unstacked.
    The Council's Strategic Plan emphasized voluntary methods of fleet 
reduction over mandatory methods. Allowing unstacking is in keeping 
with the Council's general practice of allowing some permit owner 
flexibility in how an owner uses his/her permits. NMFS also notes that 
limited entry program regulations prohibit permit owners from 
transferring their permits more than once per calendar year (50 CFR 
660.335 (e)). This prohibition should ensure that stacked permits 
remain unused outside the primary sablefish season for up to a year per 
permit.
    Comment 5: Amendment 14 requires permit owners to be on board the 
permitted vessel while that vessel is fishing for sablefish, unless the 
permit owner owned a limited entry sablefish endorsed permit on 
November 1, 2000. This owner-on-board requirement will preserve the 
basic character of the fleet, the majority of which are vessel owners 
operating their own boats.
    Response: NMFS agrees. Amendment 14 is essentially an IQ program. 
An often-expressed concern about IQ programs is that, if fishing 
privileges are for sale, persons who do not fish could buy those 
privileges. Allowing persons who do not fish to own fishing privileges 
and then rent those privileges out to fishers is often referred to as 
``share-cropping'' the fishing privileges. Members of the West Coast 
sablefish fleet were concerned that without an owner-on-board 
provision, permit ownership could flow out of fishing communities and 
into the hands of speculative non-fishing buyers. To ensure that only 
fishers could buy into the sablefish fleet, the Council included an 
owner-on-board provision in Amendment 14.
    Comment 6: The owner-on-board provision could result in increased 
sablefish discards because a vessel operator who encounters sablefish 
when the owner is not on board would be forced to discard that 
sablefish. The exception to this requirement for permit owners who 
owned permits on November 1, 2000, is discriminatory and provides an 
excessive advantage to one group over another. Both the owner-on-board 
provision and the exception to that provision should be disapproved.
    Response: At its June 2001 meeting, the Council addressed the 
concern that an owner-on-board provision could result in discard. The 
Council clarified its intent that Amendment 14 implementation require 
that the owner be on board from the start of the sablefish primary 
season until that vessel's primary season limits have been reached and 
that all sablefish harvested during this period count toward that 
vessel's primary sablefish season limits. Therefore, there will not be 
a period during which a vessel would have the ability to harvest 
rockfish or other groundfish and be required to discard sablefish 
because the owner was not on board.
    As stated by the commenter, permit owners who owned permits on 
November 1, 2000, will be exempt from the owner-on-board requirement. 
This provision does provide an advantage to initial permit owners over 
permit owners who buy into the fleet. Amendment 14 provides a 
grandfathered exemption to this rule for initial permit owners to 
minimize disruption to the fleet while guiding future development of 
the fishery. As discussed above in the response to Comment 5, the 
owner-on-board requirement is intended to ensure that only fishers may 
buy into the fleet. Approximately 75 to 80 percent of the fleet is 
already owner-operated vessels; thus even most initial permit owners 
are expected to continue fishing their sablefish-endorsed permits.
    NMFS supports the intention of the owner-on-board provision; 
however, the agency also believes that the permit stacking program 
could benefit from future analysis of the effects of this provision on 
the fishery. In 2004-2005, NMFS will analyze how this provision and the 
exemption to the owner-on-board requirement have affected participation 
in the fishery. At that time, the agency will consider whether an 
owner-on-board requirement is beneficial, considering all of the 
effects on the fishery and, if it is, whether it should also be applied 
to persons who owned permits as of November 1, 2000. NMFS believes that 
the fishery will need a few years of operating under Amendment 14 to 
test the effect of this provision.
    Comment 7: Amendment 14 restricts permit ownership to individual 
human beings, unless a permit is owned by a partnership or corporation 
that owned that permit before November 1, 2000. This provision 
precludes efficiencies that might result from corporate or partnership 
ownership. When viewed in connection with the owner-on-board provision, 
restricting permit ownership to individuals also imposes a burden on 
small business owners. In a partnership or corporation belonging to a 
married couple, only one of the two could own the permit and would have 
to be on board when the permit is fished. If the permit owner suffers a 
medical emergency, Amendment 14's exemption to the owner-on-board 
requirement might not be approved in time to allow the couple to use 
the permit. As with other provisions, the exception to this provision 
allows an elite group to operate freely while restricting the actions 
of others. For these reasons, the restriction on partnership or 
corporations should be disapproved.
    Response: NMFS agrees that this provision prevents persons who buy 
into the fleet from enjoying the efficiencies of partnership or 
corporate ownership of a permit. However, the Council intended this 
restriction to have the same effect as the owner-on-board provision. As 
with the owner-on-board provision, initial owners are exempted to 
ensure that they transition smoothly into the permit stacking program.

[[Page 41155]]

 Persons buying into the fleet are required to be ``individual human'' 
persons both to ensure the owner-operator quality of the fleet and to 
implement the owner-on-board requirement.
    NMFS supports the intention of the requirement that only individual 
humans may own permits; however, the agency also believes that the 
permit stacking program could benefit from future analysis of the 
effects of this provision on the fishery. In 2004-2005, NMFS will 
analyze how this provision and the exemption to the provision have 
affected participation in the fishery. At that time, the agency will 
consider whether this requirement is necessary and, if it is necessary, 
whether it should also be applied to persons who owned permits as of 
November 1, 2000. NMFS believes that the fishery will need a few years 
of operating under Amendment 14 to test the efficacy of this provision.
    The commenter also mentions the medical exemption to the owner-on-
board requirement. NMFS will process emergency applications swiftly. In 
addition, the fishery under Amendment 14 will be 2.5 months in 
duration. With the longer season, there is less need for swift action 
than there is during the current 8- to 9-day fishery.
    Comment 8: The economic analysis of the effects of Amendment 14 on 
coastal communities and seafood processors is woefully inadequate. This 
is particularly problematic given that most of the provisions of 
Amendment 14 are based on the economics of the fishery, rather than on 
biology or conservation.
    Response: NMFS disagrees. The effects of Amendment 14 on coastal 
communities and seafood processors are discussed throughout the EA/RIR/
Initial Regulatory Flexibility Analysis (IRFA) for Amendment 14. NMFS 
also notes that several Amendment 14 provisions, like the owner-on-
board requirement, reflect social values, rather than economic values.
    Comment 9: The USCG supports Amendment 14 for its expected 
improvement to safety in the sablefish fishery. Safety improvements 
that NMFS expects to result from Amendment 14 are discussed in the 
response to Comment 1.
    Response: The comment is noted.

Changes From the Proposed Rule

    This final rule includes four significant changes to the regulatory 
text from the proposed rule. The first change is a result of June 2001 
Council discussions on Amendment 14, held within the comment period on 
the proposed rule for this action. The Amendment 14 EA/RIR/IRFA 
included some ambiguous language within the provision that limited 
permit ownership to no more than three permits per person, with an 
exception for those persons who held more than three permits as of 
November 1, 2001. A ``permit owner'' is ``a person who owns a limited 
entry permit'' (50 CFR 660.302). A ``permit holder'' is ``a permit 
owner or a permit lessee'' (50 CFR 660.302). The Council confirmed that 
it had not intended Amendment 14 to allow a person to own three permits 
and then lease any number of additional permits. Nor had the Council 
intended to provide exemptions to the three-permit limit for persons 
who held more than three permits, but who did not own more than three 
permits as of November 1, 2000. Rather, the Council's intent had been 
to allow a person to hold no more than three permits, regardless of 
whether those permits are owned or leased. Further, exceptions to the 
limit of three permits will only be allowed for persons who owned more 
than three permits as of November 1, 2000. These clarifications are 
reflected in the regulations at 50 CFR 660.334 (d)(3)(ii). NMFS checked 
its permits records and concluded that, based on current information, 
all of the persons who held more than three permits as of November 1, 
2000, were owners of those permits.
    The second change is technical and is the result of NMFS having 
published two proposed rules in quick succession. On May 30, 2001 (66 
FR 29276), NMFS published a proposed rule to revise the timing and 
frequency of limited entry permit transfers and to clarify and update 
overall limited entry program regulations. This rule proposed amending 
the then current regulatory text in 50 CFR 660.333-340. On June 8, 2001 
(66 FR 30869), NMFS published the proposed rule to implement Amendment 
14, which proposed amending the then current regulatory text in 50 CFR 
660.333 and 660.336. On August 1, 2001 , NMFS filed the final rule 
revising limited entry program regulations with the Federal Register, 
which was effective on filing. Thus, this final rule revises the new 
regulations that were filed on August 1, 2001. Renumbering the limited 
entry program regulations did not result in any substantive changes to 
the Amendment 14 regulatory language. Although this trail of regulatory 
changes is somewhat confusing, NMFS believes that the resultant new 
regulatory text for the limited entry program regulations is more 
logically arranged and easier to understand.
    The third change is to add a temporary provision at 50 CFR 
660.335(e)(3)(ii), which allows limited entry permit holders with 
sablefish endorsements who transfer their permits between August 1 and 
August 14, 2001, to have the permit's registration with the new vessel 
effective August 15, 2001. Without this change, permit transfers made 
in the first part of August would be effective on the first day of the 
next major cumulative limit period, September 1, 2001. If all permit 
transfer activities for sablefish endorsed permits are effective for 
the start date of the primary sablefish fishery, participating vessels 
will have the opportunity to begin fishing at the same time.
    The final change from the proposed rule is to change the start date 
of the primary sablefish fishery from August 1, 2001, to August 15, 
2001. This later start date will allow permit holders to make 
arrangements for stacking or transferring their permits once this rule 
is effective, yet before the start of the season.

2001 Primary Sablefish Season and NMFS Actions

    In addition to implementing Amendment 14, this final rule announces 
the season dates and cumulative landings limits for the 2001 limited 
entry, fixed gear, primary sablefish fishery. For the reasons stated 
here, NMFS announces the following changes to the 2001 annual 
specifications and management measures at 66 FR 2338, January 11, 2001, 
as amended at 66 FR 10211 (February 14, 2001), at 66 FR 18409 (April 9, 
2001), at 66 FR 22467 (May 4, 2001), at 66 FR 28676 (May 24, 2001), at 
66 FR 35388 (July 5, 2001), and at 66 FR 38162 (July 23, 2001) to read 
as follows:
    (1) In Section IV, under B. Limited Entry Fishery, paragraph 
(2)(b)(i) is revised to read as follows:

IV. NMFS Actions

B. Limited Entry Fishery

* * * * *
    (2) Sablefish * * *
    (b) Nontrawl trip and size limits * * *
    (i) Primary season. The primary season begins at 12 noon l.t. on 
August 15, 2001, and ends at 12 noon on October 31, 2001. There will 
be no pre-season or post-season closures in 2001. During the primary 
season, each vessel with at least one limited entry permit with a 
sablefish endorsement that is registered for use with that vessel 
may land up to the cumulative trip limit for each of the sablefish-
endorsed limited entry permits registered for use with that vessel, 
for the tier(s) to which the permit(s) are assigned. For 2001, the 
following tier limits are in effect: Tier 1,

[[Page 41156]]

57,000 lb (25,855 kg); Tier 2, 26,000 lb (11,793 kg); Tier 3, 15,000 
lb (6,804 kg). All limits are in round weight.
* * * * *

Classification

    The Administrator, Northwest Region, NMFS, determined that 
Amendment 14 to the FMP is necessary for the conservation and 
management of the West Coast groundfish fishery, and that it is 
consistent with the national standards of the Magnuson-Stevens Act and 
other applicable laws.
    This rule implements a permit stacking program in a limited entry 
primary sablefish fishery. Because it relieves a restriction, under 5 
U.S.C. 553 (d)(1) it is not subject to a 30-day delay in effectiveness.
    A delay in effectiveness of this rule could unnecessarily restrict 
permit transfer and stacking activities and cause financial harm to 
sablefish fishery participants. In some parts of the West Coast, 
difficult autumn ocean conditions arise in September. Thus, a delay in 
effectiveness of this rule could also prevent permit holders from 
participating in the sablefish season during the more favorable August 
weather. For these reasons, the Assistant Administrator for Fisheries, 
NOAA, finds for good cause under 553 (d)(3) that delaying the 
effectiveness of this rule for 30 days would be contrary to the public 
interest.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS prepared a final regulatory flexibility analysis (FRFA) 
describing the impact of this action on small entities. The IRFA was 
summarized in the proposed rule published on June 8, 2001 (66 FR 
30869). The following is the summary of the FRFA.
    Amendment 14 primarily affects the holders of the 164 limited entry 
permits with sablefish endorsements, with some minor positive effects 
on the 66 permit holders without sablefish endorsements. All of the 
permit owners and vessels in the Pacific Coast, limited entry, fixed 
gear fleet are considered small entities under Small Business 
Administration standards.
    The fixed gear fleet includes vessels that fish with longline and 
pot gear, varying in length between approximately 40-60 feet. All 36 
limited entry pot vessels have sablefish endorsements. Of the 202 
limited entry longline vessels, 136 have sablefish endorsements. The 
primary sablefish fishery is managed as a cumulative limit fishery, 
with participating vessels organized into three separate tiers based on 
permit catch history. Permits with the highest sablefish catch history 
are in Tier 1, while those with the lowest catch history are in Tier 3. 
Most of the sablefish endorsed pot vessels qualified for Tier 1, 
whereas most of the sablefish endorsed longline vessels qualified for 
Tier 3. Most vessels in the fleet are owner-operated.
    There were two major alternatives considered under Amendment 14, 
with numerous possible combinations of alternatives for the 11 
different provisions considered in the Amendment 14 EA/RIR. Continuing 
status quo, a derby fishery of less than 10 days in duration, would 
have continued the fishery's historically intense and unsafe management 
program. Continuing status quo would have also allowed only one permit 
per vessel, which would have been inefficient with the currently 
overcapitalized fleet. Permit stacking will allow vessel owners who 
wish to exit the fishery to sell or lease their permits to others who 
wish to continue in the fishery.
    Amendment 14 is expected to have generally positive economic 
effects on small entities and to provide more choices and flexibility 
for fishery participants. Amendment 14 will significantly improve the 
safety of the primary fishery for participating vessels. Under the 
current management system, the primary fishery is less than 10 days 
long, a brief and intense fishery. This final rule will lengthen the 
fishery to 2.5 months duration in 2001 and a rule to be proposed for 
2002 and beyond would extend the season to 6-7 months duration. 
Participants would have the opportunity to fish against their tiered 
cumulative limits at a more safe and rational pace than in past years. 
Changes to expenses associated with participating in the fishery could 
be both positive and negative. Vessel owners would likely hire fewer 
crew members if they do not have to fish in the same rapid-pace manner, 
but would spend more of their own time on the water. Participants may 
also have fewer gear expenses because the more-reasonably paced fishery 
would reduce chances of vessels losing gear. However, if these vessel 
owners catch their cumulative limits over a longer period of time, they 
may take more trips to do so and thereby use more gas to catch the same 
amount of fish. The major financial benefit to fishery participants 
would be that they would have more flexibility in deciding where and 
how to distribute operating expenses.
    Permit owners who decide to purchase additional permits to have 
access to more sablefish within the primary season will have to contend 
with the initial cost of those additional permits. Some of the permit 
owners who have not participated in the primary season in past years 
may decide to sell their permits and will receive compensation for 
leaving the fishery.
    In the past, limited entry permit holders without sablefish 
endorsements have been prohibited from participating in the daily trip 
limit fishery during the primary (regular + mop-up) season. Amendment 
14 would revise the FMP to allow the daily trip limit fishery to occur 
during the primary season. This change relieves a burden for limited 
entry permit holders without sablefish endorsements and allow them to 
schedule their sablefish fishing at their convenience.
    On the whole, Amendment 14 is expected to bring greater operational 
safety and more business planning flexibility to the participants in 
both the primary sablefish fishery and the daily trip limit fishery for 
sablefish. Permit stacking will allow fleet participants with greater 
harvest capacity to better match their sablefish cumulative limits with 
individual vessel capacity by stacking multiple permits. For each 
stacked permit, a vessel will be removed from the fishery, reducing 
overall primary fishery capacity. The Council will also be able to set 
longer, and therefore safer, fishing seasons. Beyond the safety 
benefits of a longer season, fishers will be able to use the time to 
fish more selectively and to increase their incomes by improving the 
quality of their ex-vessel product. It was for these reasons that NMFS 
and the Council have selected the alternative adopted by the final 
rule. A copy of this analysis is available from NMFS (see ADDRESSES).
    The Small Business Regulatory Enforcement Act of 1996 requires a 
plain language guide to assist small entities in complying with this 
rule. NMFS has produced a public notice for the 2001 season that 
includes frequently asked questions on Amendment 14 and the new 
sablefish season. Contact NMFS to request a copy of this public notice 
(see ADDRESSES) or see the NMFS Northwest Region's groundfish website 
at http://www.nwr.noaa.gov/1sustfsh/gdfsh01.htm.

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.


[[Page 41157]]


    Dated: August 1, 2001.
William T. Hogarth,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out 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, a new definition for ``Ownership interest'' is 
added to read as follows:


Sec. 660.302  Definitions.

* * * * *
    Ownership interest, with respect to a s ablefish endorsed permit, 
means participation in ownership of a corporation, partnership, or 
other entity that owns a sablefish endorsed permit. Participation in 
ownership does not mean owning stock in a publicly owned corporation.
* * * * *

    3. In Sec. 660.306, paragraphs (s) and (t) are revised to read as 
follows:


Sec. 660.306  Prohibitions.

* * * * *
    (s) Take, retain, possess or land sablefish under the cumulative 
limits provided for the primary limited entry, fixed gear sablefish 
season, described in Sec. 660.323 (a)(2), from a vessel that is not 
registered to a limited entry permit with a sablefish endorsement.
    (t) Take, retain, possess, or land more than a single cumulative 
limit of a particular species, per vessel, per applicable cumulative 
limit period, except for sablefish taken in the primary limited entry, 
fixed gear sablefish season from a vessel authorized under Sec. 660.323 
(a)(2)(i) to participate in that season, as described at Sec. 660.323 
(a)(2)(ii).
* * * * *

    4. In Sec. 660.323, paragraph (a)(2) is revised to read as follows:


Sec. 660.323  Catch restrictions.

    (a) * * *
    (2) Fixed gear sablefish. This paragraph (a)(2) applies to the 
primary season for the fixed gear limited entry sablefish fishery north 
of 36 deg. N. lat., except for paragraph (a)(2)(iii), of this section, 
which also applies to the open access fishery north of 36 deg. N. lat. 
Limited entry and open access fixed gear sablefish fishing south of 
36 deg. N. lat. is governed by routine management measures imposed 
under paragraph (b) of this section.
    (i) Sablefish endorsement. A vessel may not participate in the 
primary season for the fixed gear limited entry fishery, unless at 
least one limited entry permit with both a gear endorsement for 
longline or trap (or pot) gear and a sablefish endorsement is 
registered for use with that vessel. Permits with sablefish 
endorsements are assigned to one of three tiers, as described at 
Sec. 660.334(d).
    (ii) Primary season-- limited entry, fixed gear sablefish fishery--
(A) Season dates. North of 36 deg. N. lat., the primary sablefish 
season for limited entry, fixed gear vessels begins at 12 noon l.t. on 
August 15 and ends at 12 noon l.t. on October 31.
    (B) Gear type. During the primary season and when fishing against 
primary season cumulative limits, each vessel authorized to participate 
in that season under paragraph (a)(2)(i) of this section may fish for 
sablefish with any of the gear types, except trawl gear, endorsed on at 
least one of the permits registered for use with that vessel.
    (C) Cumulative limits. (1) A vessel participating in the primary 
season will be constrained by the sablefish cumulative limit associated 
with each of the permits registered for use with that vessel. The 
Regional Administrator will annually calculate the size of the 
cumulative trip limit for each of the three tiers associated with the 
sablefish endorsement such that the ratio of limits between the tiers 
is approximately 1:1.75:3.85 for Tier 3:Tier 2:Tier 1, respectively. 
The size of the cumulative trip limits will vary depending on the 
amount of sablefish available for the primary fishery and on estimated 
discard mortality rates within the fishery. The size of the cumulative 
trip limits for the three tiers in the primary fishery will be 
announced in the Federal Register each year before the fishery opens.
    (2) During the primary season, each vessel authorized to 
participate in that season under paragraph (a)(2)(i) of this section 
may take, retain, possess, and land sablefish, up to the cumulative 
limits for each of the permits registered for use with that vessel. If 
multiple limited entry permits with sablefish endorsements are 
registered for use with a single vessel, that vessel may land up to the 
total of all cumulative limits announced in the Federal Register for 
the tiers for those permits, except as limited by paragraph 
(a)(2)(ii)(c)(3) of this section. Up to 3 permits may be registered for 
use with a single vessel during the primary season; thus, a single 
vessel may not take and retain, possess or land more than 3 primary 
season sablefish cumulative limits in any one year. A vessel registered 
for use with multiple limited entry permits is subject to per vessel 
limits for species other than sablefish, and to per vessel limits when 
participating in the daily trip limit fishery for sablefish under 
paragraph (a)(2)(iii) of this section.
    (3) If a permit is registered to more than one vessel during the 
primary season in a single year, the second vessel may only take the 
portion of the cumulative limit for that permit that has not been 
harvested by the first vessel to which the permit was registered. The 
combined primary season sablefish landings for all vessels registered 
to that permit may not exceed the cumulative limit for the tier 
associated with that permit.
    (4) A cumulative trip limit is the maximum amount of sablefish that 
may be taken and retained, possessed, or landed per vessel in a 
specified period of time, with no limit on the number of landings or 
trips.
    (iii) Limited entry and open access daily trip limit fisheries. (A) 
Before the start of the primary season, all sablefish landings made by 
a vessel authorized under paragraph (a)(2)(i) of this section to 
participate in the primary season will be subject to the restrictions 
and limits of the limited entry daily trip limit fishery for sablefish, 
which is governed by routine management measures imposed under 
paragraph (b) of this section.
    (B) Following the start of the primary season, all landings made by 
a vessel authorized under paragraph (a)(2)(i) of this section to 
participate in the primary season will count against the primary season 
cumulative limit(s) associated with the permit(s) registered for use 
with that vessel. Once a vessel has reached its total cumulative 
allowable sablefish landings for the primary season under paragraph 
(a)(2)(ii)(C) of this section, any subsequent sablefish landings by 
that vessel will be subject to the restrictions and limits of the 
limited entry daily trip limit fishery for sablefish for the remainder 
of the calendar year.
    (C) Vessels registered for use with a limited entry, fixed gear 
permit that does not have a sablefish endorsement may participate in 
the limited entry, daily trip limit fishery for as long as that fishery 
is open during the year, subject to routine management measures imposed 
under paragraph (b) of this section.
    (D) Open access vessels may participate in the open access, daily 
trip limit fishery for as long as that fishery is open during the year, 
subject to the

[[Page 41158]]

routine management measures imposed under paragraph (b) of this 
section.
    (iv) Trip limits. Trip and/or frequency limits may be imposed in 
the limited entry fishery on vessels that are not participating in the 
primary season, under paragraph (b) of this section. Trip and/or size 
limits to protect juvenile sablefish in the limited entry or open-
access fisheries also may be imposed at any time under paragraph (b) of 
this section. Trip limits may be imposed in the open-access fishery at 
any time under paragraph (b) of this section.
* * * * *

    5. In Sec. 660.333, paragraph (a) is revised to read as follows:


Sec. 660.333  Limited entry fishery--general.

    (a) General. In order for a vessel to participate in the limited 
entry fishery, the vessel owner must hold (by ownership or lease) a 
limited entry permit and, through SFD, must register that permit for 
use with his/her vessel. When participating in the limited entry 
fishery, a vessel is authorized to fish with the gear type endorsed on 
the limited entry permit registered for use with that vessel. There are 
three types of gear endorsements: trawl, longline, and pot (or trap). A 
sablefish endorsement is also required for a vessel to participate in 
the primary season for the limited entry fixed gear sablefish fishery, 
north of 36 deg. N. lat. A limited entry permit confers a privilege of 
participating in the Pacific Coast limited entry groundfish fishery in 
accordance with Federal regulations in 50 CFR part 660.
* * * * *

    6. In Sec. 660.334, paragraphs (b), (c)(1)(i), and (d)(1) are 
revised, and (c)(3) and (d)(3) are added to read as follows:


Sec. 660.334  Limited entry permits--endorsements.

* * * * *
    (b) Gear Endorsements. There are three types of gear endorsements: 
trawl, longline and pot (trap). When limited entry permits were first 
issued, some vessel owners qualified for more than one type of gear 
endorsement based on the landings history of their vessels. Each 
limited entry permit has one or more gear endorsement(s). Gear 
endorsement(s) assigned to the permit at the time of issuance will be 
permanent and shall not be modified. While participating in the limited 
entry fishery, the vessel registered to the limited entry permit is 
authorized to fish the gear(s) endorsed on the permit. While 
participating in the limited entry, primary fixed gear fishery for 
sablefish described at Sec. 660.323(a)(2), a vessel registered to more 
than one limited entry permit is authorized to fish with any gear, 
except trawl gear, endorsed on at least one of the permits registered 
for use with that vessel. During the limited entry fishery, permit 
holders may also fish with open access gear; except that vessels 
fishing against primary sablefish season cumulative limits described at 
Sec.  660.323 (a)(2)(ii)(C) may not fish with open access gear against 
those limits.
* * * * *
    (c) * * *
    (1) * * *
    (i) If the permit is registered for use with a trawl vessel that is 
more than 5 ft (1.52 m) shorter than the size for which the permit is 
endorsed, it will be endorsed for the size of the smaller vessel. This 
requirement does not apply to a permit with a sablefish endorsement 
that is endorsed for both trawl and either longline or pot gear and 
which is registered for use with a longline or pot gear vessel for 
purposes of participating in the limited entry primary fixed gear 
sablefish fishery described at Sec. 660.323 (a)(2).
* * * * *
    (3) Size endorsement requirements for sablefish endorsed permits. 
Notwithstanding paragraphs (c)(1) and (2) of this section, when 
multiple permits are ``stacked'' on a vessel as described in 
Sec. 660.335 (c), only one of the permits must meet the size 
requirements of those sections. Any additional permits that are stacked 
for use with a vessel participating in the limited entry primary fixed 
gear sablefish fishery may be registered for use with a vessel even if 
the vessel is more than 5 feet longer or shorter than the size endorsed 
on the permit.
    (d) * * *
    (1) General. Participation in the limited entry fixed gear 
sablefish fishery during the primary season described in Sec. 660.323 
(a)(2) north of 36 deg. N. lat., requires that an owner of a vessel 
hold (by ownership or lease) a limited entry permit, registered for use 
with that vessel, with a longline or trap (or pot) endorsement and a 
sablefish endorsement. Up to three permits with sablefish endorsements 
may be registered for use with a single vessel. Limited entry permits 
with sablefish endorsements are assigned to one of three different 
cumulative trip limit tiers, based on the qualifying catch history of 
the permit.
* * * * *
    (3) Ownership Requirements and Limitations. (i) No partnership or 
corporation may own a limited entry permit with a sablefish endorsement 
unless that partnership or corporation owned a limited entry permit 
with a sablefish endorsement on November 1, 2000. Otherwise, only 
individual human persons may own limited entry permits with sablefish 
endorsements.
    (ii) No person, partnership, or corporation may have ownership 
interest in or hold more than three permits with sablefish 
endorsements, except for persons, partnerships, or corporations that 
had ownership interest in more than 3 permits with sablefish 
endorsements as of November 1, 2000. The exemption from the maximum 
ownership level of 3 permits only applies to ownership of the 
particular permits that were owned on November 1, 2000. Persons, 
partnerships or corporations that had ownership interest 3 or more 
permits with sablefish endorsements as of November 1, 2000, may not 
acquire additional permits beyond those particular permits owned on 
November 1, 2000, until they own fewer than 3 permits; at that time 
they may not exceed the ownership cap of 3 permits.
    (iii) A partnership or corporation will lose the exemptions 
provided in paragraphs (d)(3)(i) and (ii) of this section on the 
effective date of any change in the corporation or partnership from 
that which existed on November 1, 2000. A ``change'' in the partnership 
or corporation means a change in the corporate or partnership 
membership, except a change caused by the death of a member providing 
the death did not result in any new members. A change in membership is 
not considered to have occurred if a member becomes legally 
incapacitated and a trustee is appointed to act on his behalf, nor if 
the ownership of shares among existing members changes, nor if a member 
leaves the corporation or partnership and is not replaced. Changes in 
the ownership of publicly held stock will not be deemed changes in 
ownership of the corporation.
* * * * *

    7. In Sec. 660.335, the section heading is revised, paragraphs (c) 
through (h) are designated as (d) through (i), respectively, a new 
paragraph (c) is added, and the newly redesignated paragraphs (d)(1) 
and (e)(3) are revised to read as follows:


Sec. 660.335  Limited entry permits--renewal, combination, stacking, 
change of permit ownership or permit holdership, and transfer.

* * * * *
    (c) ``Stacking'' Limited Entry Permits. ``Stacking'' limited entry 
permits refers to the practice of registering more than one permit for 
use with a single vessel. Only limited entry permits with

[[Page 41159]]

sablefish endorsements may be ``stacked.'' Up to three limited entry 
permits with sablefish endorsements may be registered for use with a 
single vessel during the primary sablefish season described at 
Sec. 660.323 (a)(2)(ii). Privileges, responsibilities, and restrictions 
associated with stacking permits to participate in the primary 
sablefish fishery are described at Sec. 660.323 (a)(2) and at 
Sec. 660.334 (d).
    (d) Changes in permit ownership and permit holder--(1) General. The 
permit owner may convey the limited entry permit to a different person. 
The new permit owner will not be authorized to use the permit until the 
change in permit ownership has been registered with and approved by the 
SFD. The SFD will not approve a change in permit ownership for limited 
entry permits with sablefish endorsements that does not meet the 
ownership requirements for those permits described at Sec. 660.334 
(d)(3).
* * * * *
    (e) * * *
    (3) Effective date. (i) Changes in vessel registration on permits 
will take effect no sooner than the first day of the next major limited 
entry cumulative limit period following the date that SFD receives the 
signed permit transfer form and the original limited entry permit. 
Transfers of permits designated as participating in the ``B'' platoon 
will become effective no sooner than the first day of the next ``B'' 
platoon major limited entry cumulative limit period following the date 
that SFD receives the signed permit transfer form and the original 
limited entry permit. No transfer is effective until the limited entry 
permit has been reissued as registered with the new vessel.
    (ii) Notwithstanding paragraph (i) of this section, if SFD receives 
the original sablefish endorsed permit, and a complete transfer 
application by August 14, 2001, the resultant change in vessel 
registration will be effective August 15, 2001, or as soon thereafter 
as the transfer has been approved. Transfer applications received after 
August 14, 2001, would be subject to the restrictions in paragraph (i) 
of this section.
* * * * *
[FR Doc. 01-19769 Filed 8-2-01; 4:53 pm]
BILLING CODE 3510-22-S