[Federal Register Volume 67, Number 210 (Wednesday, October 30, 2002)]
[Proposed Rules]
[Pages 66103-66107]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-27613]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 021016235-2235-01; I.D. 092402E]
RIN 0648-AP87


Fisheries Off West Coast States and in the Western Pacific; 
Coastal Pelagic Species Fishery; Amendment 10

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

ACTION: Proposed rule.

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SUMMARY: NMFS proposes a regulation to implement Amendment 10 to the 
Coastal Pelagic Species Fishery Management Plan (FMP), which was 
submitted by the Pacific Fishery Management Council (Council) for 
review and approval by the Secretary of Commerce. Amendment 10 
addresses the two unrelated subjects of the transferability of limited 
entry permits and maximum sustainable yield (MSY) for market squid. 
Only the provisions regarding limited entry permits require regulatory 
action. The purpose of this proposed rule is to establish the 
procedures by which limited entry permits can be transferred to other 
vessels and/or individuals so that the holders of the permits have 
maximum flexibility in their fishing operations while the goals of the 
FMP are achieved.

DATES: Comments must be received by December 16, 2002.

ADDRESSES: Send comments on the proposed rule to Rodney R. McInnis, 
Acting Administrator, Southwest Region, NMFS, 501 West Ocean Boulevard, 
Suite 4200, Long Beach, CA 90802.
    Copies of Amendment 10, which includes an environmental assessment/
regulatory impact review, and determination of the impact on small 
businesses may be obtained from Donald O. McIssac, Executive Director, 
Pacific Fishery Management Council, 7700 NE Ambassador Place, Suite 
200, Portland, Oregon, 97220. Comments regarding the collection-of-
information requirements contained in this rule should be sent to 
Rodney R. McInnis, Acting Regional Administrator, Southwest Region, 
NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213, and 
to the Office of Information and Regulatory Affairs, Office of 
Management and Budget

[[Page 66104]]

(OMB), Washington, DC 20503 (ATTN: NOAA Desk Officer).

FOR FURTHER INFORMATION CONTACT: James Morgan, Sustainable Fisheries 
Division, NMFS, at 562-980-4036.

SUPPLEMENTARY INFORMATION: The Council distributed Amendment 10 for 
public review on April 22, 2002. At its June 2002 meeting, the Council 
reviewed written comments, received comments from its advisory bodies, 
and heard public comments. The Council submitted Amendment 10 for 
Secretarial review by a letter dated August 19, 2002. On October, 3, 
2002, a notice of availability of Amendment 10 and the associated 
documents was published in the Federal Register (67 FR 62001).

Background

    On June 10, 1999, Amendment 8 to the Northern Anchovy Fishery 
Management Plan was partially approved by the Secretary of Commerce. 
Two of the provisions of Amendment 8 were disapproved. However, these 
two provisions addressed matters required by the Magnuson-Stevens 
Fishery Conservation and Management Act (Magnuson-Stevens Act) to be 
included in all fishery management plans. As such, the Council was 
required to revisit these issues in subsequent actions. First, bycatch 
provisions of Amendment 8 were disapproved because they did not contain 
a standardized reporting methodology to assess the amount and type of 
bycatch in the fishery. Bycatch requirements of the Magnuson-Stevens 
Act were eventually addressed in Amendment 9, which was approved on 
March 22, 2001. Second, optimum yield for market squid (Loligo 
opalescens) was disapproved because Amendment 8 did not provide an 
estimate of MSY. The Council is addressing MSY through submission of 
Amendment 10.

Market Squid

    Various approaches to determine an MSY proxy for market squid have 
been attempted. With little knowledge of the biology of squid and 
inadequate data available, other than landings, results from all 
methods used were determined to contain too much uncertainty for 
management, especially considering the large harvests in the 1990s 
resulting from new market demand. Amendment 10, which contains a 
description of these methods, examines such things as historical 
landings, the range of the species, and the manner in which the fishery 
is conducted.
    Additional data on squid became available from research conducted 
by the California Department of Fish and Game (CDFG) through a program 
implemented by State legislation establishing permit fees to fund squid 
research. With new information on growth, maturity, and fecundity, the 
Council's Scientific and Statistical Committee (SSC) recommended, and 
the Council concurred, that the SSC work with NMFS and the CDFG to 
organize a stock assessment review panel (STAR). The STAR panel met on 
May 14-17, 2001, at the Southwest Fisheries Science Center in La Jolla, 
California, and developed what became known as the egg escapement (EE) 
method. A report was prepared and presented to the Council's Coastal 
Pelagic Species Management Team (Management Team) in August 2001.
    At a public meeting on August 14-15, 2001, the Management Team 
discussed the STAR panel report and decided on the values to be used in 
the EE method, making its recommendations to the Council at the 
Council's November 21, 2001, meeting.
    The EE method is based on a modeling approach that addresses the 
life history of the species, with a focus on the mortality and spawning 
rates of sexually mature females. Per-recruit analysis theory was used 
to generate stock parameter estimates, such as mean standing stock of 
eggs per harvested female, eggs per recruit, and egg escapement. All of 
the estimates were evaluated across a range of fishing mortality. To 
gauge the fishery's impact on the squid population, the estimated 
reproductive output of the harvested population was compared with the 
population's output in the absence of fishing.
    The EE method allows for ``real-time'' management of the fishery, 
without an unnecessarily large investment in personnel or regulations. 
The method would be used as a management tool to assess whether the 
fleet is fishing above or below a sustainable level of exploitation. A 
sustainable level of egg escapement can be practically interpreted as a 
level of reproductive (egg) escapement that is believed to be at or 
near a minimum level necessary to allow the population to maintain its 
level of abundance into the future, that is, to allow for sustainable 
reproduction year after year.
    A critical underpinning of the EE approach is that the fishery 
continues to concentrate strictly on squid spawning grounds. This 
fishery has the following characteristics: (1) historically, harvests 
have consisted almost entirely of mature animals that have laid some or 
all of their eggs before capture; (2) recruitment and future catches in 
each fishing season largely depend on successful and adequate spawning 
in the preceding season; (3) the squid are determinate spawners, with 
potential lifetime fecundity fixed at maturity; (4) the squid die soon 
after laying their full complement of eggs; and (5) interpretable, 
anatomical evidence of spawning must be able to be estimated from 
commercial harvest data, which can be routinely collected through an 
ongoing port sampling program. The fact that evidence of spawning can 
be derived from commercially landed specimens offers a unique 
opportunity to implement an EE method for fisheries management.
    The proposed alternative in Amendment 10 is to adopt the EE method 
to monitor the market squid fishery in compliance with the Magnuson-
Stevens Act. This action will require amending the FMP, but will not 
require implementing rules.

Capacity Goal

    Regulations at 50 CFR 660.514 prohibit the transfer of a limited 
entry permit to a different vessel or a different owner after December 
31, 2000. This provision was imposed to allow for attrition in the 
fleet following an initial period of transfers. Since then, the 
Council's Management Team has been working on issues related to the 
harvesting capacity of the fleet by examining the fleet's dependency on 
a variety of species that exhibit wide variability and by determining 
the actual physical capacity of the fleet. Amendment 10 would establish 
a capacity goal for the fleet and set conditions for the transfer of 
permits to maintain the capacity goal.
    The purpose of the capacity goal is to ensure that fishing capacity 
in the CPS limited entry fishery is in balance with resource 
availability. The preferred alternative in Amendment 10 is to establish 
a capacity goal for the limited entry fleet by using a proxy of 5,650.9 
mt of the aggregate gross tonnage (GT) of the fleet. Measuring the 
actual harvesting capacity of a vessel and monitoring each vessel's 
capacity can be complicated because the amount of fish a vessel can 
carry depends on many factors; therefore, Amendment 10 proposes to use 
GT as a proxy for capacity. The aggregate gross tonnage level of 
5,650.9 mt would result in a larger, diverse CPS finfish fleet, which 
also relies on other fishing opportunities such as fishing for squid 
and tuna. The current fleet of 65 vessels, which totals 5,650.9 mt GT, 
satisfies this goal. Estimated normal harvesting capacity for the 
current fleet, which was determined by reviewing historical average and 
maximum landings per trip,

[[Page 66105]]

ranged from 60,000 mt to 111,000 mt per year. The physical harvesting 
capacity of the current fleet ranged from 361,000 to 539,000 mt per 
year. Physical capacity is a technological or engineering measure of 
the maximum potential output per unit of time.

Permit Transfers

    Under the proposed alternative in Amendment 10, as long as 
aggregate fleet gross tonnage is not above 5,933.5 mt (fleet gt plus 5 
percent) limited entry permits could be transferred with the following 
restrictions: (1) full transferability of permits only to vessels of 
comparable capacity (vessel GT +.10 (GT) or less), and (2) permits 
could be combined up to a greater level of capacity in cases where the 
vessel to which the permits would be transferred to is of greater 
harvesting capacity than the vessel from which the permit originated.
    Each limited entry permit would have an endorsement based on the 
currently permitted vessel's calculated GT as defined by the formula in 
46 CFR 69.209 for ship-shaped hulls. This formula is used by the U.S. 
Coast Guard (GT=0.67 (length x breadth x depth)/100).
    The original permits and their respective endorsements would remain 
in effect for the lifetime of each permit, regardless of the GT of a 
vessel to which it was transferred. In cases where a permit was 
transferred to a vessel with a smaller GT, the original GT endorsement 
would remain, and excess GT could not be split out from the original 
permit configuration and sold. In cases where two or more permits were 
transferred to a larger vessel, the larger vessel would hold the 
original permits and could fish for CPS finfish as long as the 
aggregate GT endorsements, including the 10 percent allowance, as 
defined by the formula for comparable capacity (vessel GT + .10 (GT) or 
less) added up to the new vessel's calculated GT. In the event that a 
vessel with multiple permits leaves the CPS limited entry program, the 
permits could be sold together or separately, but the original permit 
endorsement could not be altered.
    To ensure manageability of the permit program and stability of the 
fleet, only one transfer per permit would be allowed during each 
calendar year. Permits could be used only on the vessel to which they 
were registered. Catch history would be tied to the vessel and not to 
the permits.

Maintaining the Capacity Goal

    When the upper threshold of aggregate fleet capacity plus 5 percent 
(5,933.5 mt) is reached, fleet capacity would be restored to the 
capacity goal (5,650.9 mt) by restricting conditions for permit 
transfer. When the threshold of 5,933.5 mt is reached or exceeded, 
permits could only be transferred to vessels with equal or smaller GT, 
and the 10-percent vessel allowance would be removed. Restoring the 10 
percent-allowance could be considered once total aggregate fleet 
capacity reached the 5,650.9 mt target.

Procedures for Issuing New Limited Entry Permits

    Based on positive changes in CPS finfish resources or market 
conditions, and, if the Council determines, and recommends to NMFS, 
that new limited entry permits should be issued, the qualifying 
criteria originally established in the FMP would be used for issuance 
of these new permits. This would entail continuing down the list of 
vessels having landings during the 1993-97 window period in order of 
decreasing window period landings from the original qualifying level of 
100 mt. If no vessel meets the qualifying criteria of 100 mt, then the 
permit would be issued to the vessel with total landings nearest 100 mt 
during the qualifying period. New permits could be issued on either a 
temporary or permanent basis, depending on the circumstances 
surrounding the need for additional fleet capacity.

Classification

    At this time, NMFS has not determined that Amendment 10, which this 
rule would implement, is consistent with the national standards of the 
Magnuson-Stevens Act and other applicable law. NMFS, in making that 
determination, will take into account the data, views, and comments 
received during the comment period.
    This proposed rule has been determined to be not significant for 
the purposes of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities 
as follows:
    There are some fish processors operating in the west coast CPS 
finfish fishery that would not be considered small businesses, but 
the vast majority of CPS finfish fishery participants are considered 
small businesses under the SBA standards. The small entities that 
could be affected by the proposed regulatory actions would consist 
exclusively of fish-harvesting businesses, i.e. fishing vessels. All 
vessels fishing for CPS are considered small business.
    The proposed rule would establish a capacity goal for the CPS 
fleet, maintain the existing fleet of 65 vessels with limited entry 
permits, allow transfer of permits to new vessels and/or individuals 
under conditions controlling the size of the vessels, and issue new 
permits if justified by resource and economic conditions. 
Establishing a capacity goal sets a limit on the capital that can be 
invested to harvest a limited resource. Restraining the growth of 
the capacity of the existing fleet would maintain the capacity goal 
while allowing fishing vessels to take full advantage of all fishing 
opportunities, which is important to the economics of CPS vessels 
because of the wide fluctuations in abundance that occur with many 
of the individual species. Allowing the transfer of permits gives 
the holders of limited entry permits flexibility in the management 
of their individual business operations while maintaining the 
capacity goal and allows non participants in the fishery to enter 
the fishery. The payment to the seller for a permit would presumably 
at least reflect the worth of that permit remaining with the 
transferring vessel. Issuing new permits would only occur when 
economic conditions were favorable for adding additional vessels. 
The procedures for qualifying new vessels would therefore not have 
an impact on the existing fleet, but the alternatives for issuing 
new permits could have disproportionate effects on vessels vying for 
entry. Effects of the regulatory actions under consideration are 
expected to be neutral, although positive results will likely accrue 
in the long term by making permits transferable. This will provide 
some protection to the investments of individual fishermen and 
reduce the possibility of a declining fleet.
    As a result, an Initial Regulatory Flexibility Analysis wasnot 
prepared.
    This proposed rule contains a collection-of-information requirement 
subject to the Paperwork Reduction Act and which has been approved by 
OMB under control number 0648-0204. Public reporting burden for an 
application for transfer of a limited entry permit is estimated to 
average 30 minutes per response, including the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information. Send comments regarding this burden 
estimate, or any other aspect of this data collection, including 
suggestions for reducing the burden, to NMFS (See ADDRESSES) and to OMB 
at the Office of Information and Regulatory Affairs, OMB, Washington, 
D.C. 20503 (Attention: NOAA Desk Officer).
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall a person be subject to a penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.

[[Page 66106]]

List of Subject 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: October 24, 2002.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, NMFS proposes to amend 50 
CFR part 660 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.  660.502, definitions for ``comparable capacity'', and 
``gross tonnage'' are added, in alphabetical order, to read as follows:


Sec.  660.502  Definitions.

* * * * *
    Comparable capacity means gross tonnage plus 10 percent of the 
vessel's calculated gross tonnage.
* * * * *
    Gross tonnage (GT) means gross tonnage as determined by the formula 
in 46 CFR 69.209(a) for a vessel not designed for sailing (.67 x length 
x breadth x depth/100). A vessel's length, breadth, and depth are those 
specified on the vessel's certificate of documentation issued by the 
U.S. Coast Guard or State.
* * * * *

    3. In Sec.  660.512, a new paragraph (h) is added to read as 
follows:


Sec.  660.512  Limited entry fishery.

* * * * *
    (h) Issuance of new permits. (1) When the aggregate gross tonnage 
of all vessels participating in the limited entry fishery declines 
below 5,650.9 metric tons (mt), the Council will review the status of 
the fishery, taking into consideration:
    (i) The changes in gross tonnage that have and are likely to occur 
in the transfer of limited entry permits;
    (ii) The actual harvesting capacity as experienced in the current 
fishery in comparison to the capacity goal;
    (iii) Comments of the CPSMT;
    (iv) Any other relevant factors related to maintaining the capacity 
goal.
    (2) Following its review, the Council will recommend to NMFS 
whether additional permit(s) should be issued and if the new permit(s) 
should be temporary or permanent. The issuance of new permit(s) shall 
be based on the following:
    (i) The qualifying criteria in paragraph (b) of this section, but 
vessels that were issued a permit before December 31, 2000, are not 
eligible.
    (ii) If no vessel meets the qualifying criteria in paragraph (b), 
then the permit(s) will be issued to the vessel(s) with total landings 
nearest 100 mt during the qualifying period of paragraph (b).
    (iii) No vessel will be issued a permit under this paragraph (h) 
that is currently registered for use with a permit.
    (3) The Regional Administrator will review the Council's 
recommendation and determine whether issuing additional permit(s) is 
consistent with the FMP and with paragraph (h)(2) of this section. If 
issuing additional permit(s) is appropriate, the Regional Administrator 
will:
    (i) Issue the appropriate number of permits consistent with the 
Council's recommendation; and
    (ii) Publish a document in the Federal Register notifying the 
public that a new permit has been issued, the conditions attached to 
the permits, and the reasons for the action.

    4. Section 660.514 is revised to read as follows:


Sec.  660.514  Transferability.

    (a) General. (1) The SFD will process applications for transferring 
limited entry permits to a different owner and/or to a different vessel 
according to this section.
    (2) After the effective date of the final rule, the SFD will issue 
a limited entry permit to the owner of each vessel permitted to 
participate in the limited entry fishery for CPS. This permit will 
replace the existing permit and will include the gross tonnage of the 
vessel, which will constitute an endorsement for that vessel for the 
purpose of regulating the transfer of limited entry permits.
    (b) Criteria. (1) When the aggregate gross tonnage of all vessels 
participating the limited entry fishery is at or below 5,650.9 mt, a 
permit may be transferred to a different owner or to a different vessel 
in the following circumstances only:
    (i) A permit may be transferred to a vessel without a permit if the 
vessel without a permit has a comparable capacity to the capacity on 
the permit or is less than comparable capacity on the permit.
    (ii) When a permit is transferred to a vessel without a permit that 
has less gross tonnage than that of the permitted vessel, the excess 
gross tonnage may not be separated from the permit and applied to a 
second vessel.
    (iii) A permit may be transferred to a vessel without a permit that 
is of greater than comparable capacity only if two or more permits are 
transferred to the vessel without a permit to equal the gross tonnage 
of the vessel. The number of permits required will be determined by 
adding together the comparable capacity of all permits being 
transferred. Any gross tonnage in excess of that needed for a vessel 
remains with the permit.
    (2) When a vessel with multiple permits leaves the fishery, the 
permits may be sold separately and applied to other vessels according 
to the criteria in this section.
    (c) Stipulations. (1) The gross tonnage endorsement of a permit is 
integral to the permit for the duration of the permit, regardless of 
the gross tonnage of any vessel to which the permit is transferred.
    (2) Permits may be used only on the vessel for which they are 
registered by the SFD. All permits that authorize a vessel to operate 
in the limited entry fishery must be on board the vessel during any 
fishing trip on which CPS is harvested or is on board.
    (3) A permit may be transferred only once during a calendar year.
    (d) Vessel alterations. (1) A permitted vessel's length, breadth, 
or depth may be altered to increase the gross tonnage of the vessel 
only if the aggregate gross tonnage of all vessels participating the 
limited entry fishery equals to, or is below 5,650.9 mt, and only under 
the following conditions:
    (i) The gross tonnage of the altered vessel, calculated according 
to the formula in 46 CFR 69.209(a), does not exceed 110 percent of the 
vessel's original gross tonnage endorsement, and
    (ii) A new certificate of documentation is obtained from the U.S. 
Coast Guard or State. Modifications exceeding 110 percent of the 
vessel's gross tonnage endorsement will require registration of the 
vessel under an additional permit or permits or under a permit with a 
sufficient gross tonnage endorsement.
    (2) A copy of the certificate of documentation indicating changes 
in length, depth, or breadth must be provided to the SFD.
    (3) The revised gross tonnage will not be valid as an endorsement 
until a revised permit is issued by the SFD.
    (e) Applications. (1) All requests for the transfer of a limited 
entry permit will be made to the SFD in writing and shall contain the 
following information:

[[Page 66107]]

    (i) Name, address, and phone number of the owner of the permitted 
vessel.
    (ii) Name of the permitted vessel and documentation number of the 
vessel.
    (iii) Name, address, and phone number of the owner of the vessel to 
which the permit is to be transferred.
    (iv) Name and documentation number of the vessel to which the 
permit is to be transferred.
    (v) Signature(s) of the owner(s) of the vessels participating in 
the transfer.
    (vi) Any other information that the SFD may request.
    (2) No permit transfer is effective until the transfer has been 
authorized by the SFD.
    (f) Capacity reduction. (1) When the aggregate gross tonnage of the 
limited entry fleet reaches 5,933.5 mt, a permit may be transferred to 
a vessel without a permit only if the vessel without a permit is of the 
same or less gross tonnage.
    (2) When the aggregate gross tonnage of the limited entry fleet 
reaches 5,933.5 mt, alterations in the length, depth, or breadth of a 
permitted vessel may not result in an increase in the gross tonnage of 
the vessel.
[FR Doc. 02-27613 Filed 10-29-02; 8:45 am]
BILLING CODE 3510-22-S