[Federal Register Volume 67, Number 121 (Monday, June 24, 2002)]
[Proposed Rules]
[Pages 42525-42529]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-15884]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 020606142-2142-02; I.D. 041802F]
RIN 0648-AP39


Pacific Coast Groundfish Fishery; Experimental Setnet Sablefish 
Landings To Qualify Limited Entry Sablefish-Endorsed Permits for Tier 
Assignment

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes this rule to revise sablefish tier 
qualifications for the limited entry, fixed gear, primary sablefish 
fishery. The proposed rule would amend tier qualifications to include 
sablefish landings taken under the provisions of an exempted fishing 
permit (EFP) from 1984-1985 with setnet gear north of 38 deg. N. lat. 
Setnet EFP landings would be added to the current pot (trap) and 
longline landings to qualify a sablefish-endorsed permit for its tier 
assignment. This action is intended to recognize historical sablefish 
landings made by current primary season participants.

DATES: Comments must be submitted in writing by July 24, 2002.

ADDRESSES: Send comments to D. Robert Lohn, Regional Administrator, 
Northwest Region, NMFS, 7600 Sand Point Way NE, Seattle, WA 98115 or 
Rod McInnis, Acting Regional Administrator, Southwest Region, NMFS, 501 
West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213. Copies of the 
environmental assessment/regulatory impact review/initial regulatory 
flexibility analysis (EA/RIR/IRFA) for this action are available from 
Donald McIsaac, Executive Director, Pacific Fishery Management Council, 
7700 NE Ambassador Place, Suite 200, Portland, OR 97220.

FOR FURTHER INFORMATION CONTACT: Yvonne deReynier or Jamie Goen 
(Northwest Region, NMFS), phone: 206-526-6140; fax: 206-526-6736; and 
email: [email protected], [email protected] ; or Svein 
Fougner (Southwest Region, NMFS), phone: 562-980-4040; fax: 562-980-
4047; and email: [email protected].

SUPPLEMENTARY INFORMATION:

Electronic Access

    This proposed rule is available on the Government Printing Office's 
website at http://www.access.gpo.gov/su_docs/aces/aces140.html.
    NMFS is proposing this rule based on a recommendation of the 
Pacific Fishery Management Council (Council), under the authority of 
the Pacific Coast Groundfish Fishery Management Plan (FMP) and the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act). The background and rationale for the Council's 
recommendation are discussed subsequently in this preamble. Additional 
information is available in the EA/RIR/IRFA prepared by the Council for 
this action. Detailed information regarding the management history of 
the limited entry, fixed gear, sablefish-endorsed fishery, including 
the 3-tier program is available in the preamble to the 3-tier proposed 
rule at 63 FR 19878, April 22, 1998.

Background

    The Pacific Coast Groundfish FMP, established in 1982, directs 
groundfish management in Federal waters off Washington, Oregon and 
California. The Federal regulations at 50 CFR part 660, subpart G and 
the annual specifications and management measures published in the 
Federal Register implement the Pacific Coast groundfish FMP. During the 
last 20 years, groundfish management has been through many changes 
including allocations of particular stocks, season scheduling, areas 
fished and gears used.
    Sablefish (Anoplopoma fimbria), also known as ``blackcod,'' is one 
of the most valuable groundfish species on the Pacific Coast. Because 
of its value, management decisions affecting the harvest of sablefish 
can be contentious. In the past, the Council has made several sablefish 
management decisions including allocation among different sectors of 
the fleet. Within the last decade, NMFS and the Council have made major 
changes in the allocation structure of the commercial sablefish fishery 
by creating a limited entry program, sablefish endorsements, and a 
tiered quota system.

Sablefish Setnet EFPs

    When the FMP was implemented in 1982, the Council banned the use of 
setnet gear (a buoyed and anchored gillnet or trammel net) to target 
any groundfish, including sablefish, north of 38 deg. N. lat. The 
decision, based on limited scientific data, was made primarily to 
reduce social conflicts over possible salmon bycatch in the groundfish 
setnet fisheries. In addition to the Council's concerns about salmon 
bycatch, the Council was concerned over the lack of information on 
other incidentally caught species, the ability of setnets to fish 
indefinitely if lost or unattended, the complications associated with 
adding another gear type to an already complex fishery, the fact that 
the fishery is heavily capitalized, and the history of conflict between 
mobile and fixed gears. When the Council decided to ban setnet gear for 
groundfish north of 38 deg. N. lat. because of these concerns, NMFS 
approved the ban but also approved an EFP in that area in 1982 to 
collect more scientific information about the gear's operations.
    The FMP specifies that EFPs may be issued to authorize fishing that 
would otherwise be prohibited. EFPs gather information intended to 
promote increased use of underutilized species, realize the expansion 
potential of the groundfish fishery, and increase the harvest 
efficiency of the fishery consistent with the Magnuson-Stevens Act and 
the FMP.
    From 1982-1985, NMFS issued EFPs to harvest sablefish with setnet 
gear, including the use of setnet gear north of 38 deg. N. lat. The 
purpose of setnet EFPs was to study the use of setnet gear as a 
possible allowable gear type under the FMP and to explore the validity 
of the Council's concerns in prohibiting the gear north of 38 deg. N. 
lat. NMFS issued the permits to get information on the use of setnets 
to harvest sablefish and to evaluate gear conflicts with other 
fisheries, gear loss, and incidental harvest of salmon, halibut, other 
groundfish species, marine mammals

[[Page 42526]]

and birds. At the Council's March 1986 meeting, the Council recommended 
that NMFS not issue setnet EFPs beginning in 1986 because enough 
information had been gathered on setnets over the 4 years from 1982-
1985 to validate their reasons for the ban on setnet gear north of 
38 deg. N lat. After considering the Council's recommendation, NMFS 
decided not to issue any setnet EFPs after 1985.

Sablefish Allocation

    Since 1987, the Council has allocated the annual sablefish harvest 
between trawl gear and nontrawl gear. In the nontrawl, or fixed gear, 
sector there are two operationally distinct gear types, pot (trap) and 
longline, that compete for the nontrawl sablefish harvest allocation. 
From 1987-1994, both sectors, trawl and nontrawl, continued to be open 
access fisheries where an unlimited number of vessels could enter the 
fishery.
    The Council created a limited entry program (57 FR 54001, November 
16, 1992) beginning in 1994 that split the commercial allocation 
between open access and limited entry fleets. Limited entry program 
qualifications were based on vessel catch histories using trawl, 
longline or pot gear from 1984-1988 (known as the ``window period''). 
Qualifying requirements varied for the gear types, from 5 to 17 
separate days of landing at least 500 lb (227 kg) of groundfish during 
the window period. Depending on landings made and gear types used, 
limited entry permits were issued with gear endorsements, allowing 
vessels to participate in the groundfish fisheries with trawl, longline 
or pot gear. Only trawl, longline and pot gear were eligible for gear 
endorsements in the limited entry program. Even though setnet gear is a 
stationary or ``fixed gear'' like longline and pot gear, NMFS and the 
Council did not allow setnet gear in the limited entry program because 
it had been prohibited in the FMP north of 38 deg. N lat. EFP setnet 
landings were not a major issue when establishing the limited entry 
program, since most longline and pot vessels with a history in the 
groundfish fishery easily met the qualifying requirements at some point 
during the window period.
    The Council first considered whether to include sablefish landings 
under an EFP during Council deliberations in April 1994 on Amendment 8 
to the FMP. Amendment 8 was intended to create an individual quota 
system for West Coast sablefish and halibut. The Council-preferred 
alternative for Amendment 8 included EFP setnet landings as fixed gear 
landings, along with landings from longline and pot gear, to count 
toward a vessel's fixed gear sablefish catch history. However, the 
Council tabled Amendment 8 in October 1994.
    After Amendment 8 was tabled, the Council created Amendment 9 to 
restrict participation in the limited entry fixed gear fishery. In 
1997, Amendment 9 to the FMP again changed the allocation structure of 
the fishery (62 FR 34670, June 27, 1997) by requiring that limited 
entry fixed gear vessels qualify for a sablefish endorsement to 
participate in the primary sablefish fishery. The sablefish endorsement 
qualifying criteria were at least 16,000 lb (7,257 kg) of Council-
managed sablefish caught with longline or pot gear in any one year from 
1984-1994. Again, including landings with setnet gear under the 
provisions of an EFP as a qualifying requirement was not an issue for 
sablefish endorsement applicants, since fixed gear vessels with a 
history of participation in the groundfish fishery easily met the low 
poundage requirements.

Sablefish 3-Tier System

    Over time, sablefish fleet capitalization increased and the Council 
needed to set ever-shorter regular seasons to control catch levels. The 
primary sablefish season in 1996 was only 5 days long, an intense 
``derby'' fishery. A ``derby'' fishery is a short competition with no 
trip or cumulative landing limits. The Council considered the sablefish 
derby to be hazardous because it gave fishers strong incentives to stay 
on the ocean during bad weather, working at sea with heavy machinery 
and little or no sleep throughout the season. Amendment 14 (66 FR 
41152, August 7, 2001) has recently eliminated the sablefish derby by 
extending the season to 2.5 months in 2001 and a 7 month season in 
2002.
    In 1998, the Council further subdivided the allocation structure of 
the limited entry, fixed gear, sablefish-endorsed primary sablefish 
fishery into 3 tiers (63 FR 38101, July 15, 1998). The 3-tier system 
was intended to recognize historical and more recent participation and 
investment in the fixed gear sablefish fishery while eliminating the 
traditional derby style management system.
    Permit owners were divided into 3 separate tiers based on permit 
catch history using longline or pot gear between 1984-1994. To qualify 
for Tier 1, the highest tier, a permit had to be associated with at 
least 898,000 lb (407,326 kg) of cumulative sablefish landings. To 
qualify for Tier 2, a permit had to be associated with between 897,999 
lb (407,326 kg) and 380,000 lb (172,365 kg) of cumulative sablefish 
landings. Permits with cumulative sablefish landings below 380,000 lb 
(172,365 kg), but which had qualified for sablefish endorsements, were 
placed in Tier 3. Because the qualifying requirements for the 3-tier 
system ranked participants for future harvest allocation based on high 
cumulative landings, participants had an incentive to try to qualify 
for as high a tier assignment as possible in order to increase their 
future economic returns from the fishery.

Setnet Landings as Tier Qualifications

    After the 3-tier system was implemented in 1998, the Council 
realized it had overlooked the setnet issue. For the first time since 
Amendment 8 was tabled, a permit owner brought the setnet issue to the 
attention of NMFS and the Council during implementation of the 3-tier 
program.
    NMFS notified sablefish-endorsed permit owners of their tier 
assignment by a ``letter of qualification.'' If a permit owner believed 
that he qualified for a different tier, he had 30 days to submit 
evidence to NMFS. NMFS then reviewed the evidence and issued a ``letter 
of determination'' stating whether the permit owner's tier assignment 
had been revised.
    In this case, a permit owner challenged a tier assignment, stating 
that the EFP setnet landings should have been included in the fixed 
gear catch history as had been intended with Amendment 8. NMFS 
disapproved the permit owner's request because setnet landings were 
never considered for the 3-tier program. The permit owner then took the 
issue before the Council in September 1998. The Council members 
requested a decision package from the Council staff and the Northwest 
Region (Region) for the setnet issue in June 1999 but, due to the 
Council's and the Region's busy schedules and agenda priorities, no 
action was taken on the issue of including EFP setnet landings in the 
qualification requirements for tier assignment until the June 2001 
Council meeting.
    In the case of the setnet fishery north of 38 deg. N. lat., fishing 
under the EFP during 1984-1985 diverted some vessels from historical 
participation in the pot or longline sablefish fishery. If those 
vessels had not participated in the setnet EFP and had fished for 
sablefish with pot or longline gear during 1984-1985 as usual, the 
vessels may have qualified for a higher tier assignment.
    In order to resolve this discrepancy equitably and not discourage 
future participation in EFPs, the Council

[[Page 42527]]

recommended that NMFS include EFP setnet landings from 1984-1987 in the 
qualifying requirements for tier assignment. However, NMFS did not 
issue any setnet EFPs after 1985. Therefore, NMFS proposes to amend the 
regulations at 50 CFR part 660 to include landings of sablefish taken 
with setnet gear north of 38 deg. N. lat. under the provisions of an 
EFP issued by NMFS in 1984-1985 when determining tier qualifications 
for permits that already have a sablefish endorsement.

Housekeeping Corrections to 50 CFR Part 660

    NMFS proposes a technical correction to 50 CFR part 660 Subpart A, 
Subpart B, Subpart C, Subpart D, Subpart E, Subpart F, Subpart G, and 
Subpart H that would correct an outdated title of an agency official.
    NMFS proposes technical corrections to the groundfish regulations 
at 50 CFR part 660. The first correction adds clarifying language to 
Sec. 660.323(a)(4)(vi) to connect activities authorized under other 
paragraphs, such that if a whiting reapportionment authorized under 
Sec. 660.323(a)(4)(iv) were to occur, the re-opening of primary whiting 
season described at Sec. 660.323(a)(3)(i) is included in the list of 
Federal actions to be announced at Sec. 660.323(a)(4)(vi). The second 
correction updates the title of an agency official referenced in 
Sec. 660.324(d) and Sec. 660.350(b)(3). The third correction amends a 
cross reference in Sec. 660.324(f), and Sec. 660.325(d)(2) and (e)(1). 
These housekeeping corrections are technical amendments to the 
groundfish regulations and will not change the effect of the 
regulations on fisheries entities or resources.

Classification

    This proposed rule has been determined to be not significant for 
the purposes of Executive Order 12866.
    The Council prepared an IRFA that describes the economic impact 
this proposed rule, if adopted, would have on small entities. A 
description of the action and why it is being considered are contained 
in the preamble of this proposed rule and in the SUMMARY section of the 
preamble. A summary of the analysis on the proposed action (preferred 
alternative follows):
    A fish harvesting business is considered a small entity by the 
Small Business Administration (SBA) if it has annual receipts not in 
excess of $3.5 million. All of the permit owners and vessels in the 
Pacific Coast limited entry, fixed gear fleet are considered small 
entities under SBA standards. All 164 limited entry, fixed gear, 
sablefish-endorsed permits in the fleet are owned by small entities.
    Of the 499 limited entry permits in the West Coast groundfish 
fishery, 164 permits have fixed gear, sablefish endorsements. Among 
those 164 sablefish-endorsed permits, 2 participated in the setnet EFP 
for sablefish between 1984-1985. By including setnet landings in the 
qualifying requirements for tier assignments, 1 of these permits is 
expected to move up from Tier 2 to Tier 1. Tier 1 has the highest 
sablefish landing limits of the three tiers. The other permit 
associated with a vessel that participated in the 1984 1985 setnet EFP 
fisheries already has a Tier 1 assignment. This proposed rule will not 
allow new entrants to qualify for the limited entry program or 
sablefish endorsements. Nor will it change the allocation of the 
sablefish optimum yield (OY) among the fishery sectors, including the 
limited entry fixed gear sablefish-endorsed fleet. What will change is 
the amount of the limited entry fixed gear sablefish-endorsed fleet's 
OY that each permit in the tier system receives, due to a change in the 
number of permits in each tier.
    Based on expected cumulative limits for 2001 and average prices 
from 2000, moving 1 permit from Tier 2 up to Tier 1 will increase that 
permit's cumulative primary sablefish limit by 120 percent and increase 
the sablefish ex-vessel value for the permit an additional $51,942. 
Consequently, the limits for all other 163 tiered permits will decrease 
by 0.76 percent. The projected change in ex-vessel value of landed 
sablefish from a 0.76 percent decrease in permit limits are decreases 
of $737 for each of the 27 Tier 1 permits, $335 for each of the 42 Tier 
2 permits and $191 for each of the 94 Tier 3 permits. Overall, the 
change in permit value due to this proposed rule is expected to be 
minimal.
    In addition, the effect on private sector efficiency is not likely 
to be significant. Over the long term, in the 3-tier permit stacking 
system, like individual transferable quotas, permit owners will likely 
have a tendency to transfer permits to more efficient producers, thus 
absorbing the inefficiency, if any, that results from one permit 
shifting tiers. For the public sector, no effect is expected on 
enforcement and administrative costs, beyond the effort required to 
make the change in the regulations and alter the tier designations in 
the data system.
    This proposed rule is intended to recognize historical sablefish 
landings made by current primary season participants. Because of an 
oversight in qualification criteria during implementation of the 3-tier 
program, the 163 permit owners actually have been experiencing benefits 
from inflated gross revenues for the past 3 years that the program has 
been in place. The action proposed would equitably distribute the 
limited entry, fixed gear sablefish-endorsed permit allocation. This 
proposed rule is also intended to encourage participation in future 
EFPs by including setnet EFP landings in qualifying requirements for 
tier limits at a time when some fishers participated in a setnet EFP 
rather than participating in a regular commercial fishery.
    The intermediate alternatives the Council considered but didn't 
analyze were not reasonable in that there was no rationale behind why 
they were created. For example, one of the intermediate options was a 
temporary higher tier. The Council could not come up with a reason why 
they would consider a temporary higher tier, given that the tier system 
had been in place since 1998. Temporary regulations or tiers are 
generally put in place as a way of reducing the negative effects to 
small businesses of regulatory changes. It doesn't make sense to create 
a temporary tier in a tier system that is already in place and in which 
there will be no new entrants. Additionally, creating a temporary 
higher tier doesn't address, over the long-term, the issue of 
unfairness to historical fixed gear sablefish fishermen who chose to 
participate in the setnet EFP instead and were penalized when the tier 
system was created. Thus, a temporary higher tier might still 
discourage future participation in EFPS, which is part of what this 
proposed rule is trying to alleviate. Therefore, the intermediate 
alternative of a temporary higher tier does not address the purpose and 
need of the proposed action.
    A copy of this analysis is available from the Council (see 
ADDRESSES).

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, 2002.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 660 is 
proposed to be amended as follows:

[[Page 42528]]

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. 660.324, paragraph (d) remove the words ``Regional 
Director'' and add in their place, ``Regional Administrator'', and in 
Paragraph (f) remove the words ``subpart C'' and add in their place, 
``Sec. 660.331 through Sec. 660.341''.

    3. In Sec.  660.334, paragraphs (d)(2) and (3) are redesignated as 
paragraphs (d)(3) and (4), respectively, a new paragraph (d)(2) is 
added; the newly redesignated paragraphs (d)(3) and (d)(4) are revised 
to read as follows:


Sec. 660.334  Limited entry permits-endorsements.

* * * * *
    (d)* * *
    (2) Endorsement and tier assignment qualifying criteria.
    (i) Permit catch history. Permit catch history will be used to 
determine whether a permit meets the qualifying criteria for a fixed 
gear sablefish endorsement and to determine the appropriate tier 
assignment for endorsed permits. Permit catch history includes the 
catch history of the vessel(s) that initially qualified for the permit, 
and subsequent catch histories accrued when the limited entry permit or 
permit rights were associated with other vessels. The catch history of 
a permit also includes the catch of any interim permit held by the 
current owner of the permit during the appeal of an initial NMFS 
decision to deny the initial issuance of a limited entry permit, but 
only if the appeal for which an interim permit was issued was lost by 
the appellant, and the owner's current permit was used by the owner in 
the 1995 limited entry sablefish fishery. The catch history of an 
interim permit where the full ``A'' permit was ultimately granted will 
also be considered part of the catch history of the ``A'' permit. If 
the current permit is the result of the combination of multiple 
permits, then for the combined permit to qualify for an endorsement, at 
least one of the permits that were combined must have had sufficient 
sablefish history to qualify for an endorsement; or the permit must 
qualify based on catch occurring after it was combined, but taken 
within the qualifying period. If the current permit is the result of 
the combination of multiple permits, the combined catch histories of 
all of the permits that were combined to create a new permit before 
March 12, 1998, will be used in calculating the tier assignment for the 
resultant permit, together with any catch history (during the 
qualifying period) of the resultant permit. Only sablefish catch 
regulated by this part that was taken with longline or trap (pot) gear 
will be considered for the sablefish endorsement, except that vessels 
qualifying for the sablefish endorsement based on longline or trap 
(pot) landings may include setnet sablefish landings defined at 
paragraph (d)(2)(ii)(B) of this section in meeting tier assignment 
qualifications. Sablefish harvested illegally or landed illegally will 
not be considered for this endorsement.
    (ii) Sablefish endorsement tier assignments. Only limited entry, 
fixed gear permits with sablefish endorsements will receive cumulative 
trip limit tier assignments.
    (A) The qualifying weight criteria for Tier 1 are at least 898,000 
lb (407,326 kg) cumulative round weight of sablefish caught over the 
years 1984 1994. The qualifying weight criteria for Tier 2 are at least 
380,000 lb (172,365 kg), but no more than 897,999 lb (407,326 kg) 
cumulative round weight of sablefish caught over the years 1984-1994. 
Fixed gear permits with less than 380,000 lb (172,365 kg) cumulative 
round weight of sablefish caught over the years 1984 1994 qualify for 
Tier 3. All qualifying sablefish landings must be caught with longline 
or trap (pot), although setnet landings defined at sub-paragraph (B) of 
this section may also be included in tier assignment qualifying 
landings. Sablefish taken in tribal set aside fisheries does not 
qualify.
    (B) Setnet sablefish landings are included in sablefish endorsement 
tier assignment qualifying criteria if those landings were made north 
of 38 deg. N. lat. under the authority of an EFP issued by NMFS in any 
of the years 1984-1985, by a vessel that landed at least 16,000 lb 
(7,257 kg) of sablefish with longline or trap (pot) gear in any one 
year between 1984-1994.
    (iii) 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. The owner of 
a permit endorsed for longline or trap (pot) gear applying for a 
sablefish endorsement or a tier assignment under this section has the 
burden to submit evidence to prove that qualification requirements are 
met. The following evidentiary standards apply:
    (A) A certified copy of the current vessel document (USCG or state) 
is the best evidence of vessel ownership and LOA.
    (B) A certified copy of a state fish receiving ticket is the best 
evidence of a landing, and of the type of gear used.
    (C) A copy of a written contract reserving or conveying limited 
entry rights is the best evidence of reserved or acquired rights.
    (D) Such other relevant, credible evidence as the applicant may 
submit, or the SFD or the Regional Administrator request or acquire, 
may also be considered.
    (3) Issuance process for sablefish endorsements and tier 
assignments. (i) No new applications for sablefish endorsements will be 
accepted after November 30, 1998.
    (ii) All tier assignments and subsequent appeals processes were 
completed by September 1998. If, however, a permit owner with a 
sablefish endorsement believes that his permit may qualify for a change 
in tier status based on qualifications in paragraph (d)(2)(ii)(B) of 
this section, SFD will accept applications for a tier change through 
December 31, 2002. Paragraph (d)(2)(iii) of this section sets out the 
relevant evidentiary standards and burden of proof.
    (iii) After review of the evidence submitted under paragraph (ii), 
and any additional information the SFD finds to be relevant, the 
Regional Administrator will issue a letter of determination notifying a 
permit owner of whether the evidence submitted is sufficient to alter 
the initial tier assignment. If the Regional Administrator determines 
the permit qualifies for a different tier, the permit owner will be 
issued a revised tier assignment certificate once the initial 
certificate is returned to the SFD for processing.
    (iv) If a permit owner chooses to file an appeal of the 
determination under paragraph (iii) of this section, the appeal must be 
filed with the Regional Administrator within 30 days of the issuance of 
the letter of determination. The appeal must be in writing and must 
allege facts or circumstances, and include credible evidence 
demonstrating why the permit qualifies for a different tier assignment. 
The appeal of a denial of an application for a different tier 
assignment will not be referred to the Council for a recommendation 
under Sec. 660.340 (e).
    (v) Absent good cause for further delay, the Regional Administrator 
will issue a written decision on the appeal within 30 days of receipt 
of the appeal. The Regional Administrator's decision is the final 
administrative decision of

[[Page 42529]]

the Department of Commerce as of the date of the decision.
    (4) 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. If, at some future time, a person, partnership, or 
corporation that owned more than 3 permits as of November 1, 2000, 
sells or otherwise permanently transfers (not leases) some of its 
originally owned permits, such that they then own fewer than 3 permits, 
they may then acquire additional permits, but may not have ownership 
interest in or hold more than 3 permits.
    (iii) A partnership or corporation will lose the exemptions 
provided in paragraphs (d)(4)(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.
* * * * *

    5. In Sec. 660.335, paragraphs (d)(1), (d)(2), and (e)(1) are 
revised to read as follows:


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

* * * * *
    (d) * * *
    (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)(4).
    (2) Effective date. The change in ownership of the permit or change 
in the permit holder will be effective on the day the change is 
approved by SFD, unless the there is a concurrent change in the vessel 
registered to the permit. Requirements for changing the vessel 
registered to the permit are described at paragraph (e) of this 
section.
* * * * *
    (e) * * *
    (1) General. A permit may not be used with any vessel other than 
the vessel registered to that permit. For purposes of this section, a 
permit transfer occurs when, through SFD, a permit owner registers a 
limited entry permit for use with a new vessel. Permit transfer 
applications must be submitted to SFD with the appropriate 
documentation described at paragraph (g) of this section. Upon receipt 
of a complete application, and following review and approval of the 
application, the SFD will reissue the permit registered to the new 
vessel.
* * * * *

    6. In Sec. 660.350, paragraph (b)(3) remove the term ``RA'' and 
add, in its place, the words ``Regional Administrator''.

    7. In addition to the amendments set forth above, in 50 CFR part 
660 remove the words ``Regional Director'' and add, in their place, the 
words ``Regional Administrator'' in the following places:
    a. Section 660.12;
    b. Section 660.14 ((a), (b), (c), (e), and (f)(2);
    c. Section 660.15, (e) and (j);
    d. Section 660.17 (a), (c), (d), (e), (e)2), (e)(4) and (k);
    e. Section 600.21 (k), (k)(1), (k)(2), and (k)(3) and (k)(4);
    f. Section 660.23 (a) and (b);
    g. Section 660.27 (e), (f)(1), (f)(2), and (f)(2)(i);
    h. Section 660.28 (b), (g), (h), (h)(i)(1), and (h)(2)(ii);
    i. Section 660.31 (c)(2)and (d)(2);
    j. Section 660.43 (b);
    k. Section 660.50 (c);
    l. Section 660.51 (a), (b), (c)(1),(c)(2), (d), (e), (f), (g)(1), 
(g)(2), and (j)(2);
    m. Section 660.52 (a), (b)(1) and (b)(3);
    n. Section 660.53 (c)(2) and (d)(2);
    o. Section 660.65 (a) and (d);
    p. Section 660.66 introductory text and (a);
    q. Section 660.67 (c)(1), (c)(2), (c)(4), (d)(2)(iii), and 
(d)(2)(iv);
    r. Section 660.81 (e);
    s. Section 660.84 (c)(2) and (c)(4);
    t. Section 660.85 (a);
    u. Section 660.302;
    v. Section 660.321 (a);
    w. Section 324 (d);
    x. Section 660.339;
    y. Section 660.402;
    z. Section 660.409 (a)(1) and (b)(1);
    aa. Section 660.411 (c).
[FR Doc. 02-15884 Filed 6-21-02; 8:45 am]
BILLING CODE 3510-22-S