67610 Federal Register / Vol. 62, No. 248 / Monday, December 29, 1997 / Proposed Rules

international agreement to which the

United States is a party. Another possible interpretation for

those situations in which the rebuilding

period would exceed 10 years in the

absence of fishing is to treat the 10-year

limit as a guide in determining the

length of a rebuilding program. In these

cases, the question that immediately

arises is, how long can the rebuilding

program be? Must it be constrained, as

in the scenario above, or can it be

longer? If so, how much longer? NMFS

believes that it is not desirable to have

an unspecified time period for

rebuilding and that such an

indeterminate rebuilding period would

be inconsistent with the other

provisions of the Magnuson-Stevens

Act. The guidelines could potentially

use the factors in section 304(e)(4)(A)(i)

to interpret ‘‘as short as possible’’ to

limit the time period beyond 10 years,

but NMFS believes that any rebuilding

program that exceeded the period based

on no fishing mortality would need to

be justified and constrained by the life

history characteristics of the stock. The issue is the interpretation of the

statutory language and how much

flexibility the statutory language allows.

NMFS is specifically seeking comment

on whether or not it is correct in its

interpretation that the duration of

rebuilding programs should not be

unspecified and, if so, what factors

should be considered in determining

that duration.

4. Mixed-stock exception. The

proposed guidelines, at § 600.310(6),

relied on the statute’s use of the term

‘‘fishery’’ to justify retention of a limited

exception to the requirement to prevent

overfishing on all stocks. The exception

would allow overfishing of one species

in a mixed-stock complex, but only if

certain stringent conditions are met (i.e.,

analysis demonstrates that it will result

in long-term net benefits to the Nation

and that a similar level of benefits

cannot be achieved through other

means; and the resulting rate of fishing

mortality will not cause any species or

ecologically significant unit thereof to

require protection under the

Endangered Species Act (ESA) or any

stock or stock complex to fall below its

minimum stock size threshold).

This proposed provision has been

criticized by those who believe the

Magnuson-Stevens Act allows no

exceptions to the requirement to prevent

overfishing, even in mixed-stock

fisheries. Others have criticized the

provision as too stringent and believe

the Magnuson-Stevens Act allows

overfishing on one or more stocks in

mixed-stock fisheries, even if the result

is to maintain, or reduce stocks to, an

overfished status.

The issue is whether to delete or

liberalize the limited exceptions, and

whether to add other exceptions. One

suggestion is that the recovery of stocks

listed under the ESA should be handled

under that statute, not under the

Magnuson-Stevens Act. Another is that

stocks whose rebuilding would not be

assisted by cessation of fishing mortality

in the exclusive economic zone should

be exempt from the provisions of

section 304(e)(4) of the MagnusonStevens Act.

NMFS will respond to comments

received on national standard 1 during

this 30-day comment period, and to all

comments received on the proposed

national standard guidelines during the

comment period for the proposed rule,

in the preamble to the final rule.

Dated: December 19, 1997.

Gary C. Matlock,

Director, Office of Sustainable Fisheries,

National Marine Fisheries Service.

[FR Doc. 97–33643 Filed 12–22–97; 2:13 pm]

BILLING CODE 3510–22–F

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 660

[Docket No. 971208294–7294–01; I.D.

103097B]

RIN 0648–AJ20

Fisheries Off West Coast States and in

the Western Pacific; Pacific Coast

Groundfish Fishery; Restrictions on

Frequency of Limited Entry Permit

Transfers; Sorting Catch by Species;

Retention of Fish Tickets

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Proposed rule; request for

comments.

SUMMARY: NMFS issues this proposed

rule to implement management

measures recommended by the Pacific

Fishery Management Council (Council)

that restrict the frequency of limited

entry permit transfers to once every 12

months, with transfers taking effect on

the first day of a cumulative landings

limit period. This rule would also

require the sorting of all groundfish

species with trip limits, size limits,

quotas, or harvest guidelines at the

point of landing, and the retention of

landings receipts on board the vessel

that has made those landings. This

proposed rule is intended to constrain

the introduction of new fishing effort

into the Pacific Coast groundfish

fisheries, and to improve the

enforceability of Federal and state

fisheries regulations. This action would

be taken under the authority of the

Pacific Coast Groundfish Fishery

Management Plan (FMP), and the

Magnuson-Stevens Fishery

Conservation and Management Act

(Magnuson-Stevens Act).

DATES: Comments must be submitted in

writing by February 12, 1998.

ADDRESSES: Comments may be mailed to

William Stelle, Jr., Administrator,

Northwest Region, (Regional

Administrator) NMFS, 7600 Sand Point

Way NE, BIN C15700, Seattle, WA

98115–0070; or to William Hogarth,

Acting Administrator, Southwest

Region, NMFS, 501 W. Ocean Blvd.,

Suite 4200, Long Beach, CA 90802–

4213. Information relevant to this

proposed rule is available for public

review during business hours at the

Office of the Administrator, Northwest

Region, NMFS, and at the Office of the

Administrator, Southwest Region,

NMFS. Copies of the Environmental

Assessments/Regulatory Impact

Reviews (EA/RIRs) for these issues are

available from Lawrence D. Six,

Executive Director, Pacific Fishery

Management Council, 2130 SW Fifth

Avenue, Suite 224, Portland, OR 97201.

FOR FURTHER INFORMATION CONTACT:

William L. Robinson at 206–526–6140,

or Svein Fougner at 562–980–4034, or

the Pacific Fishery Management Council

at 503–326–6352.

SUPPLEMENTARY INFORMATION: NMFS is

proposing three separate regulatory

changes: (1) Restricting the frequency of

limited entry permit transfers to once

every 12 months, with transfers taking

effect only on the first day of a

cumulative landings limit period; (2)

providing Federal regulatory support for

existing state requirements that require

the sorting of all groundfish species

with trip limits, size limits, quotas, or

harvest guidelines; and (3) providing

consistent regulatory requirements on

the retention of landings receipts

throughout the management area. These

regulatory changes were recommended

by the Council at its October 1996 and

June 1995 meetings, respectively. The

background and rationale for this

proposed rule are summarized below.

More details appear in the EA/RIRs for

these actions.

Restrictions on Permit Transfer

Frequency

Background. A license limitation

program for the Pacific Coast groundfish
Federal Register / Vol. 62, No. 248 / Monday, December 29, 1997 / Proposed Rules 67611

fisheries went into effect at the

beginning of the 1994 fishing season.

The purpose of this program was to

control the size and harvesting capacity

of the Washington, Oregon, and

California fleet, which had expanded far

beyond the effort needed to catch the

available groundfish resource. This

license limitation program includes

restrictions on the number of

participants in a limited entry

groundfish fishery, as well as

restrictions on vessel length expansion

and on gear used by permitted vessels,

as measures to control total fleet

harvesting capacity. However, the initial

limited entry licensing formula was

fairly liberal, capping fishery

participation without reducing capacity,

and in fact leaving opportunity for an

increase in fishing effort.

Most of the West Coast groundfish

catch is harvested by limited entry

vessels, which use trawl, longline, or

pot (or trap) gears. Vessels in the open

access fishery use a variety of gear

types, including pot and longline gears,

to take the remainder of the harvest.

In 1996, the Council introduced 2-

month cumulative landings limit

periods for all gears. This cumulative

landings approach allows each vessel to

catch up to a specific amount of

different groundfish species over a 2-

month period, with not more than 60

percent of the cumulative period total to

be taken in either month of the period.

Cumulative period catch limits are set

by comparing current or previous

landings rates with the year’s total

available catch. Landing limits have

been used to slow the pace of the fishery

and stretch the fishing season out over

as many months as possible, so that the

overall harvest target is not reached

until the end of the year.

Current Federal regulations place no

restrictions on the frequency or timing

of permit transfers, a situation that

allows expansion of new effort into the

fishery. In an open access fishery, the

participating vessels do not participate

constantly. For example, if there are 100

vessels in the fishery, they do not all

participate for 12 months of the year.

Most vessels are out of the fishery at

times for repairs, or to participate in

other fisheries. When the limited entry

program went into effect, the vessels

that received permits did not have a

history of fishing constantly in the

fishery. However, as the limited entry

program has progressed, permit owners

have realized that it is possible to use

a permit for 12 months of the year by

leasing the permit out to other vessels

during times when the original vessel is

not directly participating in the Pacific

Coast groundfish fishery. If a permit is

shared between two or more vessels in

a year, those multiple vessels will exert

more effort in the fishery than if just one

vessel had used the permit, with the

permit lying idle during that vessel’s

days away from the fishery. Historically,

individual vessels have not participated

in the Pacific groundfish fishery every

day of the year.

Permits may also be transferred at any

time during a cumulative limit period,

which means that two or more vessels

could use the same permit during the 2-

month cumulative limit period, with

each vessel fishing towards its own

cumulative limit. Transferring limited

entry permits between vessels or owners

to circumvent vessel landing limits is

inconsistent with specific language of

the FMP. Transfers of this nature also

increase effort in the fishery.

Council Action

At the October 1996 Council meeting,

the Council recommended constraining

groundfish fleet effort expansion by

restricting the frequency of limited entry

permit transfers to once every 12

months, with transfers taking effect only

on the first day of a major cumulative

limit period. These periods will be

announced each year in the Federal

Register with the annual specifications

and management measures, or with

routine management measures when the

cumulative limit periods are changed.

Cumulative limit periods that govern

just a portion of the groundfish

fisheries, such as the fixed gear regular

sablefish season, are not considered

‘‘major’’ cumulative limit periods. For

permit holders participating in the ‘‘B’’

delivery platoon, transfer effectiveness

dates would align with ‘‘B’’ platoon

cumulative limit period dates, and the

new recipient of the ‘‘B’’ platoon permit

would be required to participate in ‘‘B’’

platoon deliveries for the remainder of

the calendar year.

The Council expects that this

proposed action would constrain effort

expansion in two ways: (1) it would

prevent two or more vessels from

sharing a limited entry permit during a

single cumulative limit period and

thereby landing more than one limit on

that permit, and (2) it would discourage

increased fishing effort in the fishery by

preventing limited entry permit holders

from temporarily transferring their

permits during times when the vessel is

undergoing repairs, operating in other

fisheries, or otherwise idle.

Of the permit leases made in 1994 and

1995, 67 percent were shorter than 6

months in length, and 89 percent were

shorter than one year in length. The

Council’s recommendation to limit the

frequency of limited entry permit

transfers to one time in any 12 month

period would reduce most of the current

leasing activity on limited entry

permits. The average length of all

limited entry permit leases, for all gears

and for both years was 176 days, while

the median lease length for those same

conditions was 130 days, which means

that the majority of permit leases have

shorter than average durations.

Fixed gear permits are most

frequently transferred as leases. Most

fixed gear permits have longline gear

endorsements. Because there are many

open access vessels that fish with

longline gear, there are always several

open access fishers who are ready to

transfer into the limited entry fisheries

as longliners leasing limited entry

permits. This easy transfer of additional

effort from the open access fishery

increases the number of potential

participants in an already overcapitalized fleet. Council

recommendations to restrict the

frequency of limited entry permit

transfer would eliminate the annual

influx of short-term fixed gear

participants into the large but brief,

limited entry, fixed gear regular

sablefish season.

Permit transfer trends for limited

entry trawl vessels are more linked to

sales activity than to lease transfers.

Trawl permits had relatively low lease

activity in 1994 and 1995, but a

significant number of permits changed

ownership more than once in those

years. There were 105 permits that

changed ownership more than once

during the 1994–1995 period, 79 of

which changed ownership twice during

those years. The proposed Council

action to limit the frequency of limited

entry permit transfers to once every 12

months would eliminate documented

permit activity of three, four, or five

ownership changes in a 2-year period.

Members of the West Coast fishing

industry commented on the crafting of

this Council recommendation, and the

Council’s action on this issue was

generally well received by the limited

entry fleet. However, members of the atsea component of the whiting fishery

opposed the action, because

motherships would no longer be able to

lease Pacific coast permits for use by

their high-power, Alaska-based catcher

boats, which do not participate in the

non-whiting portion of the groundfish

fishery. Representatives from this sector

of the fishery argued at the Council

meeting that high-power catcher boats

are necessary to fish farther offshore for

whiting, where chances of yellowtail

rockfish and salmon bycatch are lower.

Certain fishing corporations that own

Pacific Coast groundfish limited entry
67612 Federal Register / Vol. 62, No. 248 / Monday, December 29, 1997 / Proposed Rules

permits have also been in the practice

of leasing out their catcher boat permits

during times outside of the at-sea

component of the whiting fishery, and

restrictions on lease transfers would

eliminate that permit leasing income for

those corporations. Analysis of the atsea sector of the groundfish fleet has

shown that in 1994 and 1995, out of 49

permits with at-sea deliveries, 13

permits had been transferred for periods

less than 12 months in duration. The

Council determined that the benefits to

the fishery overall that could be gained

from restricting the entrance of new

effort into the fishery as a whole

outweighed the concerns of the at-sea

whiting sector.

Hardship Exemptions

In its October 1996 recommendation,

the Council supported waiving the

restriction on transferring permits once

every 12 months in cases of hardship.

Hardship exemptions could not be used

to waive the requirement that transfers

take effect only on the first day of a

cumulative limit period. Hardship

exemptions were defined for this issue

as either death of the permit holder, or

loss of the permitted vessel. In previous

meetings, the Council and its advisory

bodies had also considered exemptions

in cases of serious illness of the permit

holder, but then decided to define

‘‘hardship’’ narrowly, to limit the

discretion in using the exemption. This

narrow definition covers the cases most

likely to require a transfer, but restricts

the possibility of abuse of the process.

If a limited entry permit holder

applies to transfer his or her permit

within 12 months of the last transfer,

the permit holder will be required to

submit documents demonstrating that

the transfer meets the exceptions of

death of the permit holder or loss of the

vessel. Loss of vessel is defined in the

Pacific Coast groundfish regulations at

§ 660.302, ‘‘Totally lost means the vessel

being replaced no longer exists in

specie, or is absolutely and irretrievably

sunk or otherwise beyond the possible

control of the owner, or the costs of

repair (including recovery) would

exceed the repaired value of the vessel.’’

Death of a permit holder would be

documented by a copy of the death

certificate of the permit holder.

If the permit is owned by a

partnership or a corporation, a transfer

within 12 months of the last transfer

would be allowed if a person or persons

owning 50 percent or more of the

ownership interest in the partnership or

corporation has died. NMFS

understands the Council’s

recommendation for allowance of a

hardship exemption in cases of death to

mean that a transfer should be allowed

in cases where the primary owner of the

permit has died. NMFS is also aware

that many of the limited entry permits

are owned by partnerships or

corporations, entities that do not ‘‘die’’

in the same sense that a human person

would die. However, the Pacific Coast

groundfish fishery does include several

permit-owning partnerships and

corporations whose only shareholders

are limited to one of the following: an

individual, a husband and wife, or a

parent and child.

NMFS includes the provision that the

hardship exemption may be applied in

cases of the death of a person who

owned 50 percent or greater interest in

the permit so that individuals and small

businesses will not be denied use of the

hardship exemption in cases where the

businesses have been incorporated, but

the primary owner of the business has

died. In these situations, the business is

more likely to be significantly affected

by the death of the owner. For a larger

corporation or partnership, the death of

one stockholder or partner is much less

likely to severely affect the operation of

the business. NMFS selected the 50

percent ownership limit to have a clear,

easy to implement standard that still

accommodates those most likely to be

adversely affected by death of an owner.

NMFS particularly seeks comment on

this provision.

If a request for transfer is denied, the

Fisheries Management Division (FMD),

NMFS Northwest Region, will explain

in writing why the transfer request has

been denied. Further, if the transfer is

denied, the permit owner may appeal

that decision within 30 days to the

Regional Administrator, explaining the

basis for the appeal. The Regional

Administrator will decide upon the

appeal within 45 days in a final agency

action.

Sorting of Groundfish Catch by Species

Under current regulations at

§ 660.306, fishers landing groundfish at

West Coast ports must sort, before the

first weighing after offloading, those

groundfish species or species groups for

which there is a trip limit, if the weight

of the total delivery exceeds 1,361 kg

(3,000 lb) round weight. NMFS

introduced this regulation in 1990,

when a 1,361 kg (3,000 lb) landing was

thought to be almost insignificant.

When the Council decided to revisit this

issue in 1995, however, the Council’s

analysis found that landings of less than

1,361 kg (3,000 lb) may comprise a

significant portion of the catch,

especially among landings to California

ports. According to the July 1996 EA/

RIR for this issue, in the 1993 California

rockfish fishery, 96 percent of the hookand-line trips (53 percent by weight)

and 75 percent of the trawl trips (14

percent by weight) landed less than

1,361 kg (3,000 lb).

The Council has a policy of

maintaining a year round groundfish

fishery through adjustable 2-month

cumulative limits. Capitalization of the

fleet continues to rise, which means that

individual vessels are more able to catch

the available cumulative limits faster

than in the past. To keep this

overcapitalized fleet from exceeding

harvest guidelines on the groundfish

stocks that it manages, the Council has

had to periodically decrease the 2-

month cumulative limits. As these

limits are decreased, small trips make

up a greater portion of the overall catch.

In order to improve enforcement efforts

and prevent loss of data in a fishery

with shrinking landings limits, the

Council has proposed requiring the

sorting of all species managed by trip

limits, size limits, quotas, or harvest

guidelines. This measure is consistent

with regulations that Washington and

Oregon already have in place; although

Washington does not require sorting of

species with harvest guidelines but with

no trip limits. This regulation

introduces a new requirement for

California fishers landing less than

3,000 lb (1,361 kg) per trip, but most

fishers, already sort their catch by

species prior to offloading as part of the

marketing transaction between fisher

and fish processor. California commonly

models its fisheries management regime

on Federal regulations and is likely to

change its state regulations to match the

Federal sorting regulations if such

regulations become final. Fishers

landing shortbelly rockfish or jack

mackerel in Washington would also be

affected by this requirement, but these

species are underutilized and neither

species has been landed in Washington

in any great quantity to date. Requiring

the sorting of species with harvest

guidelines but with no trip limits could

have a future impact if the Council

decides to implement new harvest

guidelines for species not yet managed

by harvest guidelines without also

implementing trip limits for those

species. This requirement would

facilitate enforcement because agents

would not have to examine unsorted

catches. Compliance could be enhanced

if fishers sorted at sea because fishers

would be more aware of the harvest

amount of individual species.

Retaining Fish Tickets On Board the

Vessel

Groundfish trip limits are now

specified as a cumulative amount that
Federal Register / Vol. 62, No. 248 / Monday, December 29, 1997 / Proposed Rules 67613

may be retained in any calendar month

or 2-month period. Most vessels make

multiple trips during a month or twomonth period, and enforcement

personnel at the dock would have

difficulty determining whether a vessel

has exceeded its limits if all the vessel’s

landings receipts were not readily

accessible. Current Federal regulations

at § 660.303 require that fishers comply

with state law on retaining and filing all

reports of groundfish landings. Each

state has requirements for retaining fish

tickets on board vessels for enforcement

purposes; however, the regulations are

inconsistent from state to state and there

are no unifying Federal regulations on

this subject.

Fishers landing groundfish in

Washington and Oregon are required to

keep their landings receipts on board for

90 days. In California, fish tickets must

be kept throughout the cumulative trip

limit period of the landings and for 15

days thereafter. When the Council

addressed this issue at its June 1995

meeting, they recommended a change to

Federal regulations that would both

standardize the record retention

requirements coastwide, and set

regulatory language that would

accommodate the different cumulative

limit periods of the different sectors of

the fishery. Consistency along the coast

under Federal regulations is needed to

ensure that enforcement agents have

consistent access to on board landings

records.

The Council forwarded a

recommendation to NMFS on this issue

because they saw a need to improve

enforceability of landings restrictions

across the three states with Federal

regulatory language that recognizes a

flexible management system with

potentially changing cumulative limit

period durations. This Proposed Rule

would require that all West Coast

groundfish fishers retain landings

receipts on board their vessels

throughout the cumulative trip limit

period of the landings and for 15 days

thereafter. The proposed rule also

clarifies that the fish tickets must be

provided to an authorized officer upon

request. This is a minor regulatory

change that is expected to eliminate

confusion among fishers as to which

state’s landings receipts should be kept

on board for what length of time.

Biological Impacts

Marine biological background and

biological impacts of the groundfish

fishery are analyzed in ‘‘Status of the

Pacific Coast Groundfish Fishery

Through 1996 and Recommended

Acceptable Biological Catches for 1997:

Stock Assessment and Fishery

Evaluation’’ (SAFE Document), and in

the Environmental Assessments for

these actions. These documents may be

obtained from the Pacific Fishery

Management Council. (See ADDRESSES

above).

Restricting the frequency of limited

entry permit transfers is not expected to

have a direct biological impact on the

West Coast groundfish fishery, although

it may trigger positive secondary

impacts following the reduction of

fishery effort. By reducing effort in the

limited entry groundfish fishery,

harvesting pressure on the targeted

stocks will also decline, and annual

harvest guidelines for the groundfish

stocks will be achieved at a slower rate

than under a system of unrestricted

permit transfers.

Requiring fishers to sort their

groundfish landings under 3,000 lb

(1,361 kg) would also have minor,

positive biological impacts. To the

extent that more and better data on

species composition become available,

harvest monitoring would be improved.

Complete sorting information is already

required under Washington and Oregon

State regulations, so the primary benefit

would result from improved data on

California groundfish landings from

small vessels. In addition, enforcement

would be facilitated, allowing for

expanded enforcement coverage for the

same amount of agent effort. No

biological impacts, positive or negative,

are expected to result from

standardizing the required period of fish

ticket retention.

Biological impacts from these actions

are not significant, and where they

occur, will likely be positive. The

acceptable biological catches and

harvest guidelines of West Coast

groundfish stocks would not be affected

by these actions.

Socio-Economic Impacts

Permit holders would be unable to

lease their permits for short periods of

time under the proposed action, as they

might wish to do when pursuing

another fishery, or when the permitted

vessel is under repair. Thus, permit

holders will lose the possibility of the

dual revenues that might be made by

both leasing out their own permit and

simultaneously pursuing a fishery

outside of the groundfish limited entry

fishery.

This proposed measure would slow

the rate of permit transfers, as it would

reduce incentives for temporary permit

transfers. If the benefits of temporarily

transferring permits are reduced, the

value of the permits will decrease.

However, by reducing the benefits of

temporary permit transfers, permit

holders with minimal interest in the

fishery may be more likely to sell their

permits. As more permanent permit

transfers are made, the permit prices

should rise to compensate for the initial

drop that may follow restrictions on

permit transfer frequency. This

proposed action may also lead to more

fleet stability, as it will discourage the

permit speculators who might lease out

permits to several different boats

throughout the year. Similarly, persons

who have been temporarily transferring

into the fishery will have a greater

incentive to make long-term

commitments to the fishery by buying a

permit. The benefit of this restriction is

that due to the reduction of effort, the

value of the groundfish resource would

be increased for permitted fisheries. The

levels of trip limits should be higher

than it would be without this

restriction.

Requiring the sorting of groundfish

species with trip limits, size limits,

quotas, or harvest guidelines would not

impose an additional burden on

Washington and Oregon fishers, as those

two states already have similar state

regulations in place for landings sorting.

Washington fishers are not required to

sort harvest guideline species, but the

only species for which there are harvest

guidelines but no trip limits are

shortbelly rockfish and jack mackerel,

both of which are underutilized and

infrequently caught. The additional

burden of sorting would fall on fishers

landing less than 3,000 lb (1,361 kg) per

trip in California. However, many of the

species landed in this sector of the

fishery are already sorted during the

sales transaction between fisher and

processor into marketing categories that

are the same as species sorting

categories. This requirement would not

affect the amount of fish that are

harvested,

The measure to standardize fish ticket

retention requirements may lead to

some initial confusion among fishers

from the three different states, but that

should be resolved by the fact that state

and Federal requirements will be

consistent with each other. The sorting

requirement, and the clear directive to

make fish tickets available to authorized

officers would facilitate enforcement.

Classification

The Assistant Administrator for

Fisheries, NOAA, has initially

determined that this action is consistent

with the FMP and the national

standards and other provisions of the

Magnuson-Stevens Act.

This proposed rule has been

determined to be not significant for the

purposes of E.O. 12866.
67614 Federal Register / Vol. 62, No. 248 / Monday, December 29, 1997 / Proposed Rules

The Assistant General Counsel for

Legislation and Regulation of the

Department of Commerce certified to

the Chief Counsel for Advocacy of the

Small Business Administration that this

proposed rule, if adopted, would not

have a significant economic impact on

a substantial number of small entities.

Most of the permit holders and vessels

in the Pacific Coast fleet are considered

small entities. NMFS considers an

impact to be ‘‘significant’’ if it results in

a reduction in annual gross revenues by

more than 5 percent, an increase in

annual compliance costs of greater than

5 percent, compliance costs at least 10

percent higher for small entities than for

large entities, compliance costs that

require significant capital expenditures,

or the likelihood that 2 percent of the

small entities would be forced out of

business. NMFS considers a

‘‘substantial number’’ of small entities

to be more than 20 percent of those

small entities affected by the regulation

engaged in the fishery.

The provision of the rule limiting the

frequency of limited entry permit

transfers would prevent permit holders

from leasing their permits for periods

shorter than 12 months. There may be

economic losses resulting from this

provision for permit holders who

generate more income from short-term

permit leases than they would from

fishing those permits.

NMFS analyzed the transfer actions

for each permit that existed in 1996. If

a permit was transferred in 1996, 1995

and 1997 records would show whether

that transfer had occurred within 12

months of a previous or subsequent

transfer. At the time that the EA/RIR

was written for this action, only 1994

and 1995 permit data were available,

which made a full analysis of 1995

permit transfers impossible. In 1996,

approximately 539 vessels were

licensed to participate in the Pacific

Coast limited entry groundfish fishery.

Of those 539 permits, 75 permits

(approximately 14 percent of permits

held in 1996) were sold or leased for a

duration of shorter than 12 months,

with some of those permits being sold

or leased more than once in 1996.

Because 14 percent is below the 20

percent ‘‘substantial number’’ threshold,

this provision would not impact a

substantial number of small entities.

NMFS cannot quantify the level of

economic impact to the 14 percent of

the fleet that would be expected to

transfer their permits more often than

once every twelve months. The fishing

strategies, permit lengths, gear

endorsements, and reasons for

transferring permits differ for each

affected fisher. Permit holders who lease

out their permits and permit lessees

may both suffer economic losses from

reduced opportunities to enter into

short-term leases. It is not known how

these individuals would change their

fishing strategies if they cannot make

leases for shorter than twelve months.

Permit holder strategies may include

increased personal participation in the

groundfish fishery, hiring skippers to

fish their groundfish permits, year-long

leases for their permits, or sale of their

permits. Persons who have taken shortterm leases on permits in the past may

change their fishing strategies to

concentrate on non-groundfish species,

fish for groundfish in the open access

fishery, take year-long leases on limited

entry permits, or buy limited entry

permits. Therefore, the degree of

economic loss that these two types of

people would suffer will depend upon

individual ability to alter fishing and

business strategies. It is reasonable to

expect that some small businesses may

suffer significant economic losses if this

rule is implemented. However, NMFS is

not able to determine how many small

businesses in the Pacific Coast

groundfish fleet would have a reduction

in annual gross revenues by more than

5 percent, for more than 20 percent of

the participants; an increase in total

costs of production of more than 5

percent as a result of an increase in

compliance costs, for 20 percent or more

of the affected small entities;

compliance costs as a percent of sales

for small entities that are at least 10

percent higher than compliance costs as

a percent of sales for large entities, for

20 percent or more of the affected small

entities; capital costs of compliance that

represent a significant portion of capital

available to small entities, considering

internal cash flow and external

financing capabilities; or two percent of

the small business entities affected

being forced to cease business

operations.

The provision to require sorting of

groundfish species with trip limits, size

limits, quotas, or harvest guidelines is

expected to have a minimal impact, if

any, on small entities. Oregon and

Washington already have species sorting

requirements similar to those proposed

by this rule; although Washington does

not require the sorting of species with

harvest guidelines but with no trip

limits. The only species for which there

are harvest guidelines but no trip limits

are shortbelly rockfish and jack

mackerel, both of which are

underutilized and infrequently caught.

California has similar species sorting

requirements for groundfish landings

greater than 3,000 pounds. Thus, only

persons making landings of less than

3,000 pounds of groundfish in

California will be affected by this rule.

Because many of these persons already

sort their catch by species during the

sale of the fish to processors, this sorting

requirement is expected to impose very

little economic or other burdens on

small entities. Furthermore, the time

and effort that would be necessary to

comply with this proposed sorting

requirement would be minimal and

would not be expected to result in a

reduction in annual gross revenues by

more than 5 percent, an increase in

annual compliance costs of greater than

5 percent, compliance costs at least 10

percent higher for small entities than for

large entities, compliance costs that

require significant capital expenditures,

or the likelihood that 2 percent of the

small entities would be forced out of

business.

The provision to require retention of

landings receipts on board the vessel

that has made the landing is expected to

have no economic impact on small

entities. All three Pacific Coast states

already require the retention of landings

receipts on board the vessel that has

made the landing. Because Federal

requirements for landings receipt

retention would standardize the

requirements across the three states,

these requirements are expected to

eliminate the regulatory burden of

following different rules when landing

in different states.

This rule, if adopted, would not

change the amount of fish caught or

retained by limited entry permit holders

or the number of vessels licensed in the

limited entry fleet. None of the

requirements of this proposed rule

would have a significant economic

impact on a substantial number of small

entities. As a result, a regulatory

flexibility analysis was not prepared.

NMFS issued Biological Opinions

under the ESA on August 10, 1990,

November 26, 1991, August 28, 1992,

September 27, 1993, and May 14, 1996

pertaining to the impacts of the

groundfish fishery on Snake River

spring/summer chinook, Snake River

fall chinook, and Sacramento River

winter chinook. The opinions

concluded that implementation of the

FMP for the Pacific Coast Groundfish

Fishery is not expected to jeopardize the

continued existence of any endangered

or threatened species under the

jurisdiction of NMFS, or result in the

destruction or adverse modification of

critical habitat. This proposed rule is

within the scope of these consultations.

Because the impacts of this action fall

within the scope of the impacts

considered in these Biological Opinions,
Federal Register / Vol. 62, No. 248 / Monday, December 29, 1997 / Proposed Rules 67615

NMFS has determined that additional

consultations are not required for this

action. In addition, coho salmon south

of Cape Blanco, OR, recently have been

listed as threatened (northern CA/

southern OR) and endangered (central

CA) under the ESA. This action will not

affect coho salmon.

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: December 19, 1997.

Rolland A. Schmitten,

Assistant Administrator for Fisheries,

National Marine Fisheries Services.

For the reasons set forth in the

preamble, 50 CFR 660 is proposed to be

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 § 660.303, paragraph (c) is added

to read as follows:

§ 660.303 Reporting and recordkeeping.

* * * * *

(c) Any person landing groundfish

must retain on board the vessel from

which groundfish is landed, and

provide to an authorized officer upon

request, copies of any and all reports of

groundfish landings, containing all data,

and in the exact manner, required by the

applicable state law throughout the

cumulative limit period during which a

landing occurred and for 15 days

thereafter.

3. In § 660.306, paragraph (h) is

revised and paragraph (x) is added to

read as follows:

§ 660.306 Prohibitions.

* * * * *

(h) Fail to sort, prior to the first

weighing after offloading, those

groundfish species or species groups for

which there is a trip limit, size limit,

quota, or harvest guideline, if the vessel

fished or landed in an area during a

time when such trip limit, size limit,

harvest guideline or quota applied.

* * * * *

(x) Fail to retain on board a vessel

from which groundfish is landed, and

provide to an authorized officer upon

request, copies of any and all reports of

groundfish landings, or receipts

containing all data, and made in the

exact manner required by the applicable

state law throughout the cumulative

limit period during which such landings

occurred and for 15 days thereafter.

4. In § 660.333, paragraphs (c)(1) and

(c)(2) are revised; paragraphs (c)(3) and

(c)(4) are redesignated as (c)(4) and

(c)(5) and a new (c)(3) is added;

paragraph (d) introductory text is

revised; paragraphs (f)(2) and (f)(3) are

redesignated as (f)(3) and (f)(4) and a

new (f)(2) is added to read as follows:

§ 660.333 Limited entry fishery - general.

* * * * *

(c) * * *

(1) Upon transfer of a limited entry

permit, the FMD will reissue the permit

in the name of the new permit holder,

with such gear endorsements, and, if

applicable, species endorsements as are

eligible for transfer with the permit.

Permit transfers will take effect on the

first day of the next major limited entry

cumulative limit period following the

date of the transfer. Transfers of permits

designated as participating in the ‘‘B’’

platoon will become effective on the

first day of the next ‘‘B’’ platoon major

limited entry cumulative limit period

following the date of the transfer. No

transfer is effective until the limited

entry permit has been reissued and is in

the possession of the new permit holder.

(2) A limited entry permit may not be

used with a vessel unless it is registered

for use with that vessel. Limited entry

permits will normally be registered for

use with a particular vessel at the time

the permit is issued, renewed,

transferred, or replaced. A permit not

registered for use with a particular

vessel may not be used. If the permit

will be used with a vessel other than the

one registered on the permit, a

registration for use with the new vessel

must be obtained from the FMD and

placed aboard the vessel before it is

used under the permit. Registration of a

permit to be used with a new vessel will

take effect on the first day of the next

major limited entry cumulative limit

period following the date of the transfer.

(3) The major limited entry

cumulative limit periods will be

announced in the Federal Register each

year with the annual specifications and

management measures, or with routine

management measures when the

cumulative limit periods are changed.

* * * * *

(d) Evidence and burden of proof. A

vessel owner (or person holding limited

entry rights under the express terms of

a written contract) applying for

issuance, renewal, replacement,

transfer, or registration of a limited

entry permit has the burden to submit

evidence to prove that qualification

requirements are met. A permit holder

applying to register a limited entry

permit has the burden to submit

evidence to prove that registration

requirements are met. The following

evidentiary standards apply:

* * * * *

(f) * * *

(1)

(2) Limited entry permits may not be

transferred to a different holder or

registered for use with a different vessel

more than once every 12 months, except

in cases of death of the permit holder or

if the permitted vessel is totally lost, as

defined at § 660.302, The exception for

death of a permit holder applies for a

permit held by a partnership or a

corporation if the person or persons

holding at least 50 percent of the

ownership interest in the entity dies.

* * * * *

[FR Doc. 97–33641 Filed 12–24–97; 8:45 am]

BILLING CODE 3510–22–F