[Federal Register Volume 62, Number 55 (Friday, March 21, 1997)]
[Proposed Rules]
[Pages 13583-13588]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-7363]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 660
[Docket No. 970311053-7053-01; I.D. 020397B]
RIN 0648-AJ23
Fisheries off West Coast States and in the Western Pacific;
Pacific Coast Groundfish Fishery; Amendment 9
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule.
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SUMMARY: NMFS issues this proposed rule to implement Amendment 9 to the
Fishery Management Plan for the Pacific Coast Groundfish Fishery (FMP).
Amendment 9 would require a sablefish endorsement on limited entry
permits for permit holders to participate in the regular limited entry
fixed gear sablefish fishery north of 36 deg.N. lat. (the U.S.-
Vancouver, Columbia, Eureka, and Monterey management areas). The
intended effect of this proposed sablefish endorsement is to promote
safety, stability, and economic viability of the sablefish fishery by
limiting or reducing harvesting capacity in the Pacific Coast sablefish
fishery. This rule also would eliminate limited entry permit ``B''
endorsement language that expired January 1, 1997. Elimination of ``B''
endorsement language is a routine update of the Pacific Coast
groundfish regulations.
DATES: Comments on the proposed rule must be received on or before May
5, 1997.
ADDRESSES: Comments on the proposed rule, Amendment 9, or supporting
documents should be sent to Mr. William Stelle, Administrator,
Northwest Region, NMFS, Sand Point Way NE., BIN C15700, Seattle, WA
98115-0070; or to Mr. William Hogarth, Acting Administrator, Southwest
Region, NMFS, 501 West Ocean Boulevard, Suite 4200, Long Beach, CA
90802-4213.
Copies of Amendment 9, the Environmental Assessment (EA) and the
[[Page 13584]]
Regulatory Impact Review (RIR)/Initial Regulatory Flexibility Analysis
(IRFA) are available from Larry Six, Executive Director, Pacific
Fishery Management Council, 2130 SW Fifth Ave., Suite 224, Portland, OR
97201.
Comments on the information collection requirements that would be
imposed by this rule should be sent to Mr. William Stelle or to Mr.
William Hogarth, at the addresses above, and to the Office of
Information and Regulatory Affairs of the Office of Management and
Budget, Washington DC, 20503.
FOR FURTHER INFORMATION CONTACT: William L. Robinson at 206-526-6140,
Rodney McInnis at 310-980-4040, or the Pacific Fishery Management
Council at 503-326-6352.
SUPPLEMENTARY INFORMATION: NMFS is proposing this rule based on a
recommendation of the Pacific Fishery Management Council (Council),
under the authority of the FMP and the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens Act). The background
and rationale for the Council's recommendations are summarized below.
More detail appears in the EA/RIR/IRFA that the Council prepared for
this action.
Background
Sablefish (Anoplopoma fimbria) is one of the most valuable species
in the groundfish fishery off Washington, Oregon, and California (WOC).
Since 1987, the annual sablefish non-tribal harvest guideline has been
allocated between trawl gear and fixed gear fisheries. Historically,
the trawl fishery has been managed with trip or period landings limits,
which means the amount of fish that may be harvested during a fishing
trip or during a set time period. Trip or period landings limits are
mainly imposed to extend the fishery throughout most of the year. By
contrast, the limited entry, fixed gear fishery has taken most of its
allocation in an intense, open competition called the ``regular'' or
``derby'' season, which had no trip limits, except for limits on small
sablefish less than 22 inches (56 cm) in length. For 72 hours before
the regular season, it is illegal to take and retain, possess, or land
sablefish caught with fixed gear, although vessels using pot gear may
begin to set their gear 24 hours in advance of the start of the regular
season. In recent years, the nontrawl fleet has operated under
restrictive limits (250-500 lb (113-227 kg) per day) outside of the
regular season. The limited entry nontrawl fishery for sablefish
involves two operationally distinct gear types, pot (or trap) and
longline, that compete for the nontrawl harvest allocation.
Problems commonly attributed to the current derby fishery relate to
safety, inefficiency, resource wastage, and social conflict. There are
two main problems with the derby: (1) Excess harvesting capacity in the
fishery; and (2) difficulty controlling total harvest. These problems
will intensify if the derby is allowed to continue, particularly if the
length of the derby shortens each year.
The Council's first concern with the current limited entry,
nontrawl sablefish season management is that, if this fishery is
allowed to continue as a derby, the season will become even shorter and
the danger of fishing in the derby will rise. Before 1990, the fixed
gear sablefish fishery began on January 1 and usually lasted for the
greater part of the year. However, fishing effort increased and quotas
were reduced during the late 1980s and early 1990s, resulting in the
recent, short ``derby'' seasons. In 1995 and 1996, the derby seasons
were 7 and 5 days long, respectively. Seasons shorten from year to year
because each vessel owner has an incentive to invest in new and better
gear each year, hoping to increase the amount of fish he or she can
catch per hour or per day. With seasons measured in numbers of days,
the derby is not just dangerous because it gives fishers strong
incentives to stay out during bad weather but also because they work at
sea with heavy machinery, with little or no sleep throughout the derby.
Promoting the safety of human life at sea is an important new national
standard (National Standard 10) in the Magnuson-Stevens Act.
Beyond the very serious safety concerns with the derby fishery,
there are also economic and conservation problems with the current
management regime. Just as fishers cannot choose to fish during the
best weather, they also cannot choose to fish during periods of highest
sablefish market value. Fish caught under derby conditions often can
not be handled or processed into the highest value sablefish products.
In a derby for high-value fish like sablefish, lower-value bycatch may
be thrown overboard, dead and unused. Magnuson-Stevens Act National
Standard 9 supports efforts to minimize bycatch and bycatch mortality.
With shortening derby seasons, fishers may also be more likely to
abandon their gear at sea, leaving that gear to continue to ``ghost
fish'' after the derby has ended. Finally, as the length of the derby
decreases, it becomes more difficult for managers to accurately choose
a closing date that will prevent the harvest from exceeding the
allowable catch.
When the limited entry system was first designed by the Council,
that system was considered a first step in a long-term process to
reduce effort levels in the groundfish fishery. Fishers had used
landings of a wide range of species to qualify for limited entry
permits, which meant that the limited entry program had limited overall
effort in the groundfish fishery, but had not necessarily constrained
effort levels in single-species fisheries. The number of vessels
participating in the limited entry, fixed gear sablefish fishery has
grown in recent years, corresponding with rising sablefish prices and
decreasing availability of other fixed gear target stocks. Sablefish
endorsements will control some of this effort increase by limiting
sablefish fishery participation to those persons who have historically
participated in and depended upon the sablefish fishery.
Sablefish Endorsement
The Council has recommended to the Secretary that NMFS require a
sablefish endorsement on limited entry permits to limit the number of
participants in the regular, limited entry, nontrawl sablefish fishery.
The Council recommended the following sablefish endorsement qualifying
criteria: at least 16,000 lb (7,257.5 kg) of sablefish catch from the
sablefish fishery, in any one calendar year from 1984 through 1994.
Choosing appropriate qualifying criteria required careful Council
consideration of lessons learned about initial limited entry permit
distribution, historic characteristics of the fleet, and the dependence
of current permit holders on the sablefish derby. The qualifying
criteria is a compromise that recognizes historical participation by
including the early years of the license limitation qualifying period,
that acknowledges more recent participants in the sablefish derby by
including 2 years after the Council adoption of the limited entry
program, and that grants permit endorsements only to those persons who
landed quantities of sablefish large enough to constitute a significant
portion of their incomes. Maintaining a qualifying requirement that
includes years from the mid and late 1980s prevents the
disenfranchisement of vessels that were forced to choose between Alaska
and West Coast fisheries during the recent years in which the Council
set the West Coast opening to coincide with the Alaska opening.
Households with sablefish fishery incomes less than that represented by
the 16,000-lb (7,257.5-
[[Page 13585]]
kg) qualifying requirement are more likely to have greater reliance on
other sources of fishing or nonfishing income than those who meet the
16,000-lb (7,257.5-kg) requirement.
Vessels that do not qualify for an endorsement because of failure
to meet the 16,000 lb (7,257.5-kg) landing requirement may continue to
harvest small amounts of sablefish in the limited entry daily trip
limit fishery when the regular season is not open. For example, vessels
making two trips per week over a 6-month period could land close to
16,000 lb (7,257.5 kg), and thereby suffer no reduction in gross
revenue. However, while some vessels are able to generate net positive
revenues from the daily trip limit fishery, larger vessels located at
greater distances from the fishing grounds may not find the daily trip
limit fishery profitable. The daily trip limit opportunity may also
conflict with other fishing opportunities for some vessels.
Only persons holding current limited entry permits may qualify for
a sablefish endorsement. Permit catch history will be used to determine
whether a permit meets the qualifying criteria for a fixed gear
sablefish endorsement. Permit catch history includes the catch history
of the vessel(s) that initially qualified for the permit, and
subsequent catch histories accrued by vessel(s) associated with the
limited entry permit or permit rights. 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. 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 (1) the appeal for which an interim permit was issued was
lost by the appellant, and (2) 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. Only sablefish catch regulated by this part that was taken with
longline or fishpot (or trap) gear will be considered for this
endorsement. Harvest taken in tribal sablefish set asides will not be
included in calculating permit catch histories.
A sablefish endorsement would be required for a fixed-gear, limited
entry vessel to take sablefish in the area north of 36 deg. N. lat.
(the Monterey, Eureka, Columbia and U.S.-Vancouver management areas)
during the regular, limited entry, nontrawl sablefish fishery, as
specified in the regulations; this harvest would count against the
limited entry fixed gear allocation for the area north of 36 deg. N.
lat. Catch taken in the southern area counts against a southern area
(Conception Area) acceptable biological catch (ABC). However, because
the annual ABC has never been reached by vessels operating in the
southern area, there is no established harvest guideline and no
allocation between-gear types for this area. Fishers from the southern
area have not historically focused on sablefish, and limited entry
qualifications from that area were largely made with groundfish other
than sablefish. Because of the under-exploitation of the available
harvest, and the relatively recent development of catch history by some
vessels in the southern area, the Council chose to exempt vessels
fishing in the area from being required to hold a sablefish endorsement
to participate in the limited entry fixed gear sablefish fishery.
Implementing sablefish endorsements for the entire coast would have had
a disproportionate impact on the southern area, primarily because
fishers who have only recently begun to target sablefish in that area
would have been eliminated from the regular limited entry season. It is
expected that the Council will manage the fishing in the Conception
Area differently from the northern fishery in order to avoid effort
shifts.
Under the proposed sablefish endorsement system, if permits are
combined to generate a single permit with a larger length endorsement,
the resulting permit will receive a sablefish endorsement only if each
of the combined permits has an individual sablefish endorsement. This
requirement would be consistent with the current combination
requirements for limited entry permit gear endorsements. Also, if the
fishery continues to be managed as a derby fishery, future combination
of non-endorsed permits with endorsed permits would allow more capacity
into the sablefish fishery and thereby exacerbate the pressures of the
derby.
The sablefish endorsement would be required for fixed gear, limited
entry vessels to take sablefish against the limited entry allocation in
the area north of 36 deg. N. lat. during periods of time specified in
the regulations (to be recommended by the Council). The general intent
is that an endorsement be required to take part in the major limited
entry, fixed gear sablefish harvest opportunities, but no endorsement
be required when management measures are intended to allow only small
or incidental sablefish harvests.
Under the proposed management system, limited entry permit holders
with sablefish endorsements could participate in the regular, limited
entry, nontrawl sablefish fishery, under the limited entry regulations.
Outside of the regular season, they would be allowed to catch sablefish
with their endorsed gear under the small daily trip limits, under the
limited entry regulations. Limited entry permit holders with sablefish
endorsements could also catch sablefish with open access gear other
than their endorsed gear, under the regulations of the open access
fishery. Limited entry permit holders who do not have sablefish
endorsements would still be allowed to fish for sablefish outside the
regular, limited entry, nontrawl sablefish season by either using their
endorsed gear and fishing under the limited entry regulations, or by
using open access gear and fishing under open access regulations.
Limited entry permit holders who do not have sablefish endorsements
would not be allowed to fish for sablefish with either limited entry or
open access gear during the regular, limited entry, non-trawl sablefish
season.
Biological Impacts
Marine biological background and biological impacts of the
sablefish 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 Assessment for Amendment 9 to the
Pacific Coast Groundfish FMP. These documents may be obtained from the
Pacific Fishery Management Council (See ADDRESSES above).
NMFS expects that the biological impacts of requiring a sablefish
endorsement would be negligible. The sablefish ABC and harvest
guideline would not be affected by this action. The biological impacts
from altering the number of vessels participating in the fishery would
not be significant.
Socio-Economic Impacts
Most limited entry fixed gear fishers from central and southern
California qualified for their initial limited entry permits with
landings of groundfish species other than sablefish. Consequently the
proposed sablefish
[[Page 13586]]
endorsement qualifying requirements, which are based on significant
historic or recent economic dependence on sablefish, would result in
greater proportional reductions to the number of southern area vessels
qualified to participate in the regular fixed gear sablefish fishery.
However, as explained above, vessels landing sablefish from waters
south of 36 deg. N. lat. (southern California) would not be required to
hold sablefish endorsements, and the fishing in that area would be
managed differently from the northern area. Conversely, if the
historical landing requirements had included more recent years and had
eliminated early years, this would result in more endorsements being
issued in southern areas at the expense of vessels that have not
participated in several recent years.
The number of longline vessels participating in the limited entry
nontrawl regular sablefish fishery would decrease under the proposed
qualifying criteria. The percent of longline vessels participating in
the fishery from Puget Sound and the Washington coast would increase
from 34 to 46 percent, while the percent of participants from central
and southern California combined would decline from 28 percent to only
13 percent of the longline fleet. However vessels would be exempt from
the sablefish endorsement requirement, if they are fishing south of
36 deg. N. lat.
All pot permits would qualify for an endorsement under the proposed
qualifying requirements. A review of the distribution of the pot fleet
shows that 75 percent of the pot vessels were distributed in the Oregon
and northern California areas (Astoria to Crescent City), 9 percent
were located primarily in the central California area (Monterey to
Avila Beach), 6 percent along coastal Washington, with the remainder
not assigned to a geographic area because of lack of recent landings.
Most vessels are multifishery vessels. Based on 1995 landings and
revenue, vessels with permits that do not qualify for a sablefish
endorsement would need make up about $750,000 of lost sablefish revenue
in other fisheries. Because most vessels are underemployed, it is
unlikely that the vessels gaining additional sablefish fishing
opportunity from the displaced vessels would release similar amounts of
opportunity in other fisheries, which would then be available for the
vessels displaced from the limited entry nontrawl regular sablefish
fishery. Vessels with more reliance on sablefish will have a chance for
a safer, more stable fishery, and those with less reliance will lose
sablefish fishing opportunity.
Sablefish Endorsement Issuance
Sablefish endorsements would be issued by NMFS, prior to the start
of the regular 1997 limited entry fixed gear sablefish season. NMFS
would use landings records from the Pacific States Marine Fisheries
Commission's Pacific Fisheries Information Network (PacFIN) to
determine which limited entry fixed gear permit holders meet the
qualifications of 16,000 lb (7,257.5 kg) of catch in any one year from
1984 through 1994.
The Fishery Management Division, NMFS Northwest Region, would
notify each limited entry fixed gear permit owner by letter whether
PacFIN records indicate that his permit qualifies for a sablefish
endorsement. Persons who do qualify for sablefish endorsements would be
issued revised limited entry permits with endorsements, upon payment of
a one-time fee to cover the administrative cost of PacFIN research and
limited entry permit processing. Initial calculations of the agency
cost of processing the sablefish endorsement system place the per-
participant processing fee at about $800.
Persons who are initially denied sablefish endorsements, but who
believe that their permit or interim permit qualifies for an
endorsement, may send supporting documentation, such as fish tickets,
to demonstrate how the qualifying criteria have been met. An
endorsement would be issued if the permit owner demonstrates that his
permit met the qualifying criteria. Unlike the initial limited entry
permitting process, there will be no industry appeal board to review
appeals of endorsement denials.
Limited Entry Permit ``B'' Endorsements
The Pacific Groundfish limited entry program went into effect
January 1, 1994. Because this program was a radical change from the
previous fishery, which was entirely open access, the Council designed
a temporary alternative to the primary ``A'' permit endorsement, to
assist fishers with a historically low level of participation who did
not qualify for an ``A'' permit. These temporary permits were to be
phased out of the fishery over time.
``B'' endorsements were initially intended to allow owners of
vessels that may have participated in the fishery at a low level during
the window period, or at higher levels prior to the window period, to
continue in the fishery for an adjustment period before they would be
required to have a permit with an ``A'' endorsement. The ``B''
endorsements were developed so that there would be at least 7 years
between the announcement of the cutoff date to qualify for an ``A''
endorsement and the expiration of the endorsements. All ``B''
endorsements expired at the end of 1996. Seven years was reported as
the minimum tax depreciation period for fishing vessels, and the period
commonly chosen by vessel owners. Thus, the adjustment years ensured
that a large number of the vessel owners receiving ``B'' endorsements
had the opportunity to completely depreciate their vessels before
making their adjustments to other fisheries, or investing in permits
with ``A'' endorsements.
This proposed rule would eliminate the current regulations that
relate to ``B'' endorsements at 50 CFR 660.336. As of December 31,
1996, these regulations had no relevance.
Classification
At this time, NMFS has not determined that the FMP amendment that
this rule would implement is consistent with the national standards of
the Magnuson-Stevens Act and other applicable laws. 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 E.O. 12866.
Notwithstanding any other provision of law, no person is required
to respond to, nor shall a person be subject to, penalty for failure
to, comply with a collection-of-information subject to the requirements
of the Paperwork Reduction Act (PRA) unless the collection-of-
information displays a currently valid Office of Management and Budget
(OMB) control number. This proposed rule contains a collection of
information burden only for those persons who are initially denied
sablefish endorsements, but who wish to provide documentation to prove
that they have in fact met the endorsement qualifications. It is
expected that the burden will be 2 hours to make an appeal. NMFS has
requested OMB approval for this collection of information. This is a
one-time only collection of information, and contains no annual
reporting and recordkeeping burden. Public comment is sought regarding:
Whether this proposed collection of information is necessary for the
proper performance of the functions of the agency, including whether
the information has practical utility; the accuracy of the burden
estimate; ways to enhance the quality, utility, and clarity of the
information to be collected; and ways to minimize the burden of the
collection of information,
[[Page 13587]]
including through the use of automated collection techniques or other
forms of information technology. Comments on the collection of
information burden or any other aspect of the information collection
may be sent to OMB, listed in the ADDRESSES section above.
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 (SBA) that this proposed rule, if
adopted, would not have a significant economic impact on a substantial
number of small entities, as follows:
The proposed rule would limit participation in the limited entry
fixed gear ``primary'' or ``regular'' sablefish season north of
36 deg. N. latitude to those persons meeting the following
qualifications for a sablefish endorsement to their limited entry
permits: at least 16,000 pounds of sablefish catch in any one year
from 1984 to 1994.
Of the 237 vessel owners that currently hold fixed gear limited
entry permits, 62 (26 percent) will not receive sablefish
endorsements, which is a substantial number of small entities as a
portion of the limited entry, fixed gear sablefish fleet. However,
only 23 vessel owners (less than 10 percent) that derived more than
5 percent of their 1995 income from the sablefish fishery will not
receive sablefish endorsements; thus the number of small entities
that will incur a significant impact from these regulations is not
substantial. Sablefish endorsement recipients will be assessed a
one-time endorsement processing fee that has been initially
estimated at $800. Costs of production and compliance costs would
only increase for those permit holders who choose to purchase new
permits with attached sablefish endorsements--an unlikely course of
action for those persons with less than 5 percent of their gross
annual revenues resulting from the sablefish fishery. There are no
capital costs associated with this action, and no small businesses
will be forced to cease operations through this proposed action.
This amendment is intended to promote improved safety,
stability, and economic viability of the sablefish fishery by
limiting or reducing harvesting capacity in the Pacific Coast
sablefish fishery.
The socio-economic impacts are discussed above and contained in the
EA/RIR/IRFA.
List of Subjects in 50 CFR Part 660
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: March 19, 1997.
Charles Karnella,
Acting Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out 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 Sec. 660.306, new paragraphs (s) and (t) are added to read as
follows:
Sec. 660.306 Prohibitions.
* * * * *
(s) During the ``regular'' or ``mop-up'' season described in
Sec. 660.323(a)(2)(iii) and (iv), take and retain, possess or land
sablefish taken and retained north of 36 deg. N. lat., with longline or
trap (or pot) gear, by a vessel with a limited entry permit registered
for use with that vessel and endorsed for longline or trap (or pot)
gear, that does not have a sablefish endorsement.
(t) During the ``regular'' or ``mop-up'' season described in
Sec. 660.323(a)(2)(iii) and (iv), take and retain, possess or land
sablefish taken and retained north of 36 deg. N. lat., with open access
gear, by a vessel with a limited entry permit registered for use with
that vessel and endorsed for longline or trap (or pot) gear, that does
not have a sablefish endorsement.
3. In Sec. 660.323, paragraph (a)(2) introductory text is revised
and paragraphs (a)(2)(i) through (a)(2)(v) are redesignated as
(a)(2)(ii) through (a)(2)(vi) respectively and paragraph (a)(2)(i) is
added to read as follows:
Sec. 660.323 Catch Restrictions.
(a) * * *
(2) Nontrawl Sablefish. This paragraph (a)(2) applies to the
regular and mop-up season for the nontrawl limited entry sablefish
fishery, except for paragraphs (a)(2)(i) and (vi) of this section,
which also apply to the open-access fishery.
(i) Sablefish endorsement. In order to lawfully participate in the
regular season or mop-up season for the nontrawl limited entry fishery,
the owner of a vessel must hold (by ownership or otherwise) a limited
entry permit for that vessel, affixed with both a gear endorsement for
longline or trap (or pot) gear, and a sablefish endorsement.
* * * * *
4. In Sec. 660.333, paragraphs (a), the first sentence of (c)(1),
(d), and (h)(2)(iii) are revised to read as follows:
Sec. 660.333 Limited entry fishery - general.
(a) General. Participation in the limited entry fishery requires
that the owner of a vessel hold (by ownership or otherwise) a limited
entry permit affixed with a gear endorsement registered for use with
that vessel for the gear being fished. A sablefish endorsement is also
required for a vessel to participate in the regular and/or mop-up
seasons for the nontrawl, limited entry sablefish fishery, north of
36 deg. N. lat. There are three types of gear endorsements: ``A,''
``Provisional A,'' and ``Designated species B.'' More than one type of
gear endorsement may be affixed to a limited entry permit. While the
limited entry fishery is open, vessels fishing under limited entry
permits may also fish with open access gear; except that during a
period when the limited entry fixed gear sablefish fishery is limited
to those vessels with sablefish endorsements, a longline or pot (or
trap) limited entry permit holder without a sablefish endorsement may
not fish for sablefish with open access gear.
* * * * *
(c) Transfer and registration of limited entry permits and gear
endorsements.
(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 and, if
applicable, species endorsements as are eligible for transfer with the
permit. * * *
* * * * *
(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, transfer, or registration of a limited
entry permit has the burden to submit evidence that qualification
requirements are met. The owner of a permit endorsed for longline or
trap (or pot) gear applying for a sablefish endorsement under
Sec. 660.336(c)(2) has the burden to submit evidence to prove that
qualification requirements for a sablefish endorsement are met. The
following evidentiary standards apply:
* * * * *
(h) * * *
(2) * * *
(iii) Two or more limited entry permits with ``A'' gear
endorsements for the same type of limited entry gear may be combined
and reissued as a single permit with a larger size endorsement. With
respect to permits endorsed for nontrawl limited entry gear, a
sablefish endorsement will be issued for the new permit only if all of
the permits being combined have sablefish endorsements. The vessel
harvest capacity rating for each of the permits being combined is that
indicated in Table 2 of this part for the LOA (in feet) endorsed on the
respective limited entry permit.
* * * * *
5. In Sec. 660.334, paragraph (a) is revised to read as follows:
[[Page 13588]]
Sec. 660.334 Limited entry permits--``A'' endorsement.
(a) A limited entry permit with an ``A'' endorsement entitles the
holder to participate in the limited entry fishery for all groundfish
species with the type(s) of limited entry gear specified in the
endorsement, except for sablefish harvested north of 36 deg. N. lat.
during times and with gears for which a sablefish endorsement is
required. See Sec. 660.336 for provisions regarding sablefish
endorsement requirements.
* * * * *
6. In Sec. 660.335, paragraph (a) is revised to read as follows:
Sec. 660.335 Limited entry permits--`` Provisional A'' endorsement.
(a) A ``provisional A'' endorsement entitles the holder to
participate in the limited entry fishery for all groundfish species
with the type(s) of limited entry gear specified in the endorsement,
except for sablefish harvested north of 36 deg. N. lat. during times
and with gears for which a fixed gear sablefish endorsement is
required. See Sec. 660.336 for provisions regarding sablefish
endorsement requirements.
* * * * *
7. Sec. 660.336 is revised to read as follows:
Sec. 660.336 Limited entry permits--sablefish endorsement.
(a) General. Participation in the limited entry fixed gear
sablefish fishery during the ``regular'' or ``mop-up'' season described
in Sec. 660.323 (a)(2)(iii) and (iv) north of 36 deg. N. lat., requires
that an owner of a vessel hold (by ownership or otherwise) a limited
entry permit with a longline or trap (or pot) endorsement and a
sablefish endorsement, and that the permit has been registered for use
with that vessel. During a period when the limited entry sablefish
fishery is restricted to those limited entry vessels with sablefish
endorsements, a vessel with a longline or pot limited entry permit but
without a sablefish endorsement cannot be used to harvest sablefish in
the open access fishery, even with open access gear.
(1) A sablefish endorsement will be affixed to the permit and will
remain valid when the permit is transferred.
(2) A sablefish endorsement is not separable from the limited entry
permit, and therefore may not be transferred separately from the
limited entry permit.
(b) Endorsement qualifying criteria. A sablefish endorsement will
be affixed to any limited entry permit that meets the sablefish
endorsement qualifying criteria.
(1) Permit catch history will be used to determine whether a permit
meets the qualifying criteria for a fixed gear sablefish endorsement.
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. 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. 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. Only
sablefish catch regulated by this part that was taken with longline or
fish trap (or pot) gear will be considered for this endorsement.
(2) The sablefish endorsement qualifying criteria are: at least
16,000 lb (7,257.5 kg) round weight of sablefish caught with longline
or trap (or pot) gear in one calendar year from 1984 through 1994. All
catch must be sablefish managed under this part. Sablefish taken in
tribal set aside fisheries does not qualify.
(c) Issuance process. (1) The FMD will notify each limited entry,
fixed gear permit owner by letter whether Pacific States Marine
Fisheries Commission's Pacific Fisheries Information Network (PacFIN)
records indicate that his permit qualifies for a sablefish endorsement.
A person whose permit qualifies based on PacFIN information will be
issued a revised limited entry permit with a sablefish endorsement,
upon payment of a one-time processing fee.
(2) Within 30 days of the issuance of the letter by the FMD
indicating that PacFIN records do not show that the permit qualifies
for a sablefish endorsement, a permit owner may submit information to
the FMD to demonstrate that the permit qualifies for a sablefish
endorsement. Section 660.333(d) sets out the relevant evidentiary
standards and burden of proof.
(3) After review of the evidence submitted under
Sec. 660.336(c)(2), and any additional information the FMD finds to be
relevant, the FMD will notify a permit owner if the permit qualifies
for a sablefish endorsement. A person whose permit qualifies will be
issued a revised limited entry permit with a sablefish endorsement upon
payment of a processing fee.
(4) After review of the evidence submitted under
Sec. 660.336(c)(2), and any additional information the FMD finds to be
relevant, the FMD will notify a permit owner in writing if his permit
does not qualify for a sablefish endorsement.
(5) Within 30 days of the issuance of a letter under
Sec. 660.336(c)(4) that a permit(or interim permit) does not qualify
for a sablefish endorsement, an appeal may be filed with the Regional
Administrator. The appeal must be in writing and must allege facts or
circumstances, and include credible evidence, demonstrating why the
permit (or interim permit) qualifies for the sablefish endorsement. The
appeal of a denial of a sablefish endorsement will not be referred to
the Council for a recommendation under Sec. 660.340(e).
(6) Absent good cause for further delay, the Regional Administrator
will issue a written decision on the appeal within 45 days of receipt
of the appeal. The Regional Administrator's decision is the final
administrative decision of the Department of Commerce as of the date of
the decision.
[FR Doc. 97-7363 Filed 3-20-97; 8:45 am]
BILLING CODE 3510-22-F
