[Federal Register Volume 62, Number 124 (Friday, June 27, 1997)]
[Rules and Regulations]
[Pages 34670-34675]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-16954]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 660
[Docket No. 970311053-7139-02; 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: Final rule.
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SUMMARY: NOAA issues this final rule to implement Amendment 9 to the
Fishery Management Plan for the Pacific Coast Groundfish Fishery (FMP).
Amendment 9 requires a sablefish endorsement on limited entry permits
for permit holders to participate in the regular and mop-up 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 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 eliminates 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: This rule will become effective July 28, 1997.
ADDRESSES: Copies of Amendment 9, the Environmental Assessment (EA) and
the Regulatory Impact Review (RIR) are available from Lawrence D. Six,
Executive Director, Pacific Fishery Management Council, 2130 SW Fifth
Avenue, Suite 224, Portland, OR 97201. Comments regarding the
collection-of-information requirements contained in this rule should be
sent to Mr. William Stelle, Administrator, Northwest Region, NMFS, 7600
Sand Point Way, NE, BIN C157000, 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, and to the
Office of Information and Regulatory Affairs, Office of Management and
Budget (OMB), Washington, D.C. 20503 (Attention: NOAA Desk Officer).
FOR FURTHER INFORMATION CONTACT: William L. Robinson at 206-526-6140,
Rodney McInnis at 562-980-4040, or the Pacific Fishery Management
Council at 503-326-6352.
SUPPLEMENTARY INFORMATION: NMFS issues this final rule to implement a
recommendation from 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 recommendation were fully described in
the notice of proposed rulemaking for this action (62 FR 13583, March
21, 1997). Public comments were requested through May 5, 1997. Twelve
letters were received and are addressed later in the preamble to this
final rule. The comments resulted in no change to the regulatory text
that was published as a proposed rule.
In summary, a sablefish endorsement will be required on a limited
entry permit of a vessel in order for that vessel to harvest sablefish
in the area north of 36 deg. N. lat. during the regular (derby or
cumulative limit) or mop-up limited entry sablefish fishery. A
sablefish endorsement will not be required for a vessel with a limited
entry permit to participate in the daily trip limit fishery that
operates outside of the time period of the regular or mop-up season.
NMFS has accepted the Council's recommendation for sablefish
endorsement qualifying criteria: at least 16,000 lb (7,257.5 kg) of
sablefish catch from the sablefish fishery, taken in any one calendar
year from 1984 through 1994.
Adoption of the above 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 considers
dependence on the fishery by granting 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.
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
[[Page 34671]]
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 in calculating permit catch
histories. Harvest taken in tribal sablefish set asides will not be
included in calculating permit catch histories. The following
clarification, which was not in the proposed rule, has been added to
the final rule: Sablefish harvested illegally or landed illegally will
not be included in calculating permit catch histories. The qualifying
level was set to grant permits to those who substantially depended on
the fishery at some point between 1984 and 1994. It was not intended to
reward those who violated the laws intended to conserve the fishery.
A sablefish endorsement will 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 and mop-up, limited entry, nontrawl sablefish
fishery, as specified in the regulations; this harvest will count
against the limited entry fixed gear allocation for the area north of
36 deg. N. lat. Catch taken in the area south of 36 deg. N. lat. counts
against a southern area (Conception Area) acceptable biological catch
(ABC). In a separate rulemaking action, NMFS is proposing to eliminate
the regular and mop-up season south of 36 deg. N. lat., which will
result in a year-round, daily trip limit fishery in that area, for
which a permit endorsement is not required (62 FR 30305, June 3, 1997).
Under the 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 is consistent with the current combination requirements for
limited entry permit gear endorsements.
Limited entry permit holders with sablefish endorsements may
participate in the regular, limited entry, nontrawl sablefish fishery,
under the limited entry regulations. Outside of the regular season,
they may catch sablefish with their endorsed gear under the small daily
trip limits, under the limited entry regulations. Limited entry permit
holders with sablefish endorsements may also catch sablefish with open
access gear other than their endorsed gear, under the open access
fishery regulations.
Vessels that do not qualify for an endorsement because of a failure
to meet the 16,000 lb (7,257.5 kg) landing requirement may continue to
harvest sablefish in the limited entry daily trip limit fishery when
the regular season is not open. Limited entry permit holders who do not
have sablefish endorsements will be allowed to either use their
endorsed gear and fish under the limited entry regulations, or use open
access gear and fish under the open access regulations. Limited entry
permit holders who do not have sablefish endorsements may not fish for
sablefish with either limited entry or open access gear during the
regular, and mop-up limited entry, non-trawl sablefish seasons.
Sablefish endorsements will be issued by NMFS, prior to the start
of the regular 1997 limited entry fixed gear sablefish season. NMFS
will 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 (FMD), NMFS Northwest Region, will
notify each limited entry fixed gear permit owner by letter whether
PacFIN records indicate that his or her permit qualifies for a
sablefish endorsement. Persons who qualify for sablefish endorsements
will be issued revised limited entry permits with endorsements, upon
payment of a one-time fee of $797 covering the estimated administrative
cost of researching PacFIN records and limited entry permit processing.
If PacFIN records do not show that the permit qualifies for an
endorsement, a permit owner who believes that the permit or interim
permit qualifies for an endorsement may send supporting documentation,
such as fish tickets to the FMD to demonstrate how the qualifying
criteria have been met. An endorsement will be issued if the permit
owner demonstrates that his or her permit meets the qualifying
criteria. If the permit is denied by the FMD after review of
documentation submitted by the owner, the owner may appeal the denial
to the Regional Administrator, Northwest Region (Regional
Administrator). 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
All ``B'' endorsements expired at the end of 1996. This rule
eliminates the current regulations that relate to ``B'' endorsements at
50 CFR 660.336. As of January 1, 1997, these regulations had no
relevance.
Comments and Responses
The comments in 12 letters received during the public comment
period ending May 5, 1997, are summarized below. All 12 letters opposed
the proposed rule.
Comment 1: The Council and NMFS should not alter the rights
associated with limited entry permits. Only the permit holder should be
able to sell or give up any or all of the rights granted by the
issuance of a limited entry permit. This rule will reduce the value of
existing limited entry, fixed gear permits that do not qualify for an
endorsement.
Response: When the limited entry program was first designed under
Amendment 6 to the FMP, permits were viewed as conferring a privilege
on a permit holder to operate the permitted vessel in the Pacific coast
groundfish fishery, in conformance with the FMP and using the gear(s)
for which the permit is endorsed. The Council and NMFS specifically
retained the right to revise the FMP in the future, and to change or
abolish the privileges associated with limited entry permits. The
limited entry program specifically states this in the FMP at 14.1.4,
``Nature of the Interest Created.''
Comment 2: Amendment 9 would allocate sablefish catch away from
smaller producers to larger producers.
Response: A portion of the limited entry, fixed gear sablefish
allocation will continue to be available to vessels that do not qualify
for sablefish endorsements in the daily trip limit fishery. The trip
limit fishery has been traditionally dominated by small producers with
annual sablefish landings of less than the 16,000 pounds (7,257.5 kg)
qualifying criteria. Small producers who did participate in the regular
and mop-up fishery may have to increase their participation in the
daily trip limit fishery to ensure that they maintain their past catch
levels. It is clear that there will be a shift in harvest opportunity
and probably in sablefish harvest from small producers to larger
producers. The Council's rationale is to manage the fishery to support
fishermen with more substantial dependence on the fishery.
[[Page 34672]]
Comment 3: The West Coast Limited Entry fixed gear groundfish
fishery is a multi-species fishery. Fishers rely on a variety of
species and may change their concentration on certain species from year
to year. To permanently exclude someone from the sablefish season
because he did not rely on that fishery as his main source of income is
unfair and shows a lack of understanding of how the groundfish
fisheries operate.
Response: The sablefish endorsement program does not permanently
exclude permit holders who do not qualify for endorsements from
participating in the limited entry, fixed gear sablefish fishery. While
the sablefish endorsement program does exclude unendorsed permit
holders from participating in the regular and mop-up fishery, it does
not permanently exclude unendorsed permit holders from participating in
the limited entry, fixed gear sablefish fishery. Permit holders without
sablefish endorsements who want to participate in the regular or mop-up
fishery may wish to purchase or lease an endorsed permit for that
purpose. NMFS and the Council realize that fishers vary their fishing
strategies throughout each year and over the long term for a variety of
reasons, such as changing market conditions or natural fluctuations in
fish stock availability. However, extensive Council and NMFS analysis
has shown that a certain portion of the limited entry, fixed gear fleet
is substantially dependent upon the sablefish resource. The sablefish
endorsement program limits participation in the regular sablefish
season to those persons who have been substantially dependent on the
sablefish resource, while the trip limit fishery ensures that persons
with a more varied fishing strategy may continue to include sablefish
in their annual catch.
Comment 4: The 16,000 lb (7,257.5 kg) qualifying criteria should be
changed to 3,000 lb (1,360.78 kg) to recognize the efforts of the small
boat fleet. The 16,000 lb (7,257.5 kg) qualifying criteria was set in
an arbitrary manner and the Council did not take into account the
economic and social impacts of setting that level of qualifying
criteria.
Response: The Council staff's June 1996 analysis considered
endorsement qualifying criteria of either 3,000 lb (1,360.78 kg) per
year or 25,500 lb (11,566.61 kg) per year, and the economic and social
impacts that either of these qualifying criteria would have on limited
entry, fixed gear permit holders. In order to genuinely constrain
effort in the fleet, the Council had to choose between a small landing
requirement for a qualifying period that included fewer years, or a
high landing requirement that included more years to encompass early
years and more recent years. Reflecting their desire to recognize
historic and recent participation, the Council compromised and
established qualifying criteria that both include recent participation,
and acknowledge fishers whose incomes depend significantly on the
sablefish resource. The Council's final analysis includes a discussion
of the economic and social impacts of the 16,000 lb (7,257.5 kg)
qualifying criteria.
Comment 5: Amendment 9 would allocate sablefish available harvest
away from fishers working in waters south of 36 deg. N. lat. to fishers
working in the northern portion of the exclusive economic zone.
Response: There is a separate Acceptable Biological Catch (ABC) for
the Conception management area (waters south of 36 deg. N.
lat.), so division of catch between the two geographic areas will not
alter as a result of the sablefish endorsement program. Also, new
regulations proposed for the Conception area in another rulemaking
would eliminate the opportunity to fish in the primary season south of
36 deg. N. lat. while providing continuing harvesting opportunity under
a year-long daily trip limit. The purpose of this change is to
discourage effort transfers to the Conception area and maintain catches
at historical levels.
Comment 6: Without an endorsement program for the waters south of
36 deg. N. lat., boats from the northern fleet will move their effort
to southern waters, competing with the local southern fleet.
Response: Because annual sablefish landings from waters south of
36 deg. N. lat. are relatively low, NMFS has adopted the Council
recommendation to apply the endorsement requirement to fishing
participation in the primary season, only north of 36 deg. N. lat.
Fishers in the area south of 36 deg. N. lat. would not be required to
hold an endorsement in the southern area sablefish fishery. NMFS in
another rulemaking has proposed to eliminate the primary fishing
opportunity south of 36 deg. N. lat., which would result in a trip
limit only fishery for the southern area (62 FR 30305, June 3, 1997).
Daily trip limits for the southern area are high enough to sustain
historic fishing levels and patterns for that area, yet low enough to
not provide an incentive for northern boats to shift their fishing
efforts to the south.
Comment 7: Sablefish landings from south of 36 deg. N. lat. have
been relatively low because fishers in that area must work farther
offshore on trips of 7-10 days to catch sablefish, yet are constrained
by a daily trip limit that does not allow them to land all of the
sablefish that they are able to catch during those distant trips.
Response: Sablefish fishers, fishing south of 36 deg. N. lat., who
wished to catch and land amounts greater than what has been allowed in
the daily trip limit fishery also had the opportunity to fish in the
primary sablefish season, which, during the qualifying period of 1984
through 1994, started at about 10 months and diminished to 20 days.
During the regular season, they were not constrained by the trip
limits.
Comment 8: The qualification period of 1984 through 1994 is
arbitrary and does not account for recent participation, such as from
the 1995 and 1996 seasons.
Response: On February 5, 1992, NMFS published a Notice of Control
Date (57 FR 4394), indicating that the Council was considering further
access restrictions to the limited entry groundfish fisheries. At that
time, the Council intended to consider individual quota (IQ) programs
for West Coast halibut and sablefish fisheries. In the Notice of
Control Date, NMFS stated, ``If IQ programs are adopted, the Council
has expressed its intent to exclude from consideration fishing activity
occurring after November 13, 1991, in establishing priorities for
issuance and shares of individual quotas for these fisheries.''
Although the Council nearly completed an IQ program, since 1995, the
Council has been unable to recommend an IQ program for the fixed gear
sablefish fishery due to a series of Congressional actions, including a
restriction in NOAA's appropriation prohibiting spending on development
of IQ programs and the current Magnuson-Stevens Act moratorium on new
IQ programs.
On August 1, 1995, NMFS published another Notice of Control Date
(60 FR 39144), this time stating that the Council was considering
establishing a sablefish endorsement program for limited entry, fixed
gear permit holders to control participation or effort in the regular
sablefish season. The notice read ``If a limited entry program is
established, the Council is considering June 29, 1995, as a possible
control date. Consideration of a control date is intended to discourage
new entry by nontrawl ``A'' permit holders into the sablefish fishery
based on economic speculation during the Council's deliberation on the
issues.'' A qualifying period ending on June 29, 1995, would not have
included the 1995, regular season.
Participation in the sablefish fishery has increased rapidly in
recent years, and the regular season declined in
[[Page 34673]]
duration to 7 and 5 day fisheries in 1995 and 1996, respectively. The
Council could not recommend an IQ program, yet recognized a significant
need to constrain the overcapitalization in the fixed gear sablefish
fleet. The sablefish endorsement program was designed to limit
participation in the limited entry, fixed gear, regular sablefish
season. Qualifying criteria for the endorsement include the years 1984
through 1994, a period that recognizes fishing during the limited entry
permit qualifying period of 1984 through 1988, as well as recent
participation. The decision recognized that in order to work toward
rationalization of the fishery, participation had to be limited. The
Council and NMFS have considered historic and current participation and
have determined the new system is equitable. It includes historic
participants with substantial participation in the fishery, but
excludes the most recent entrants who came in after the warnings
regarding effort limitation.
Comment 9: Permit holders who have recently purchased a permit
with the expectation of fishing for sablefish or who did not invest in
sablefish gear until 1995 or 1996, and who may have had 1995 and 1996
landings of greater than 16,000 lb (7,257.5 kg) will be unfairly denied
sablefish endorsements because the permits that they purchased are not
associated with sufficient sablefish landings from the time of the
qualifying period for the permit to qualify for the endorsement.
Response: As noted in the response to Comment 8, above, persons
owning limited entry permits and persons who purchased limited entry
permits in order to participate in the limited entry fishery had ample
notice of the Council's intent to restrict participation in the
sablefish fishery. In addition to Federal Register notification
regarding control dates, the Council, when discussing the limited entry
program, acknowledged the need to further limit participation in the
fixed gear sablefish fishery. There have also been numerous public
announcements, hearings, Council newsletters and analyses discussing
the Council's intent to recommend limiting access to the fixed gear
sablefish fishery. Limited entry permit holders and persons wishing to
purchase a limited entry permit to participate in the West Coast
groundfish fishery had abundant opportunity to learn that the Council
intended to limit access to the sablefish fishery and would qualify
participants based on permit catch history. In fact, several persons
who have purchased limited entry permits in order to participate in the
West Coast groundfish fishery specifically purchased permits with high
sablefish catch history in order to ensure their own future
participation in the limited entry, fixed gear, regular sablefish
season.
Comment 10: If the Council had not set an IQ control date for
1991, fishers would have accumulated sablefish landings in order to
ensure that they would qualify for any later introduction of a limited
access program, such as the sablefish endorsement program.
Response: The Council's intent in publishing the control date was
to prevent fishers from increasing their landings of certain species on
speculation that those species might be included in an IQ program. It
would have been irresponsible for the Council to encourage fishers to
overcapitalize and increase their rates of landings by announcing an
intention to implement an IQ program without announcing a control date.
Comment 11: Limited entry permit holders who are denied sablefish
endorsements will shift their effort to other groundfish stocks,
increasing fishing pressure on those stocks.
Response: The sablefish endorsement qualifying criteria were
specifically designed to recognize a significant annual income
dependence on sablefish over a broad range of years. Permit holders who
do not meet the qualifying criteria will be those fishers who have not
had a significant historic dependence on the regular season for the
limited entry, fixed gear sablefish fishery. Limited entry permit
holders who are denied sablefish endorsements will still have the
opportunity to participate in the daily trip limit fishery. Therefore,
it is expected that those persons who are denied sablefish endorsements
will not cause a significant increase in fishing pressure on other
groundfish stocks.
Comment 12: There should be an appeals process for denial of
sablefish endorsements that allows for waiver of denial in cases of
hardship.
Response: Unlike the limited entry program's qualifying period of
1984 through 1988, the sablefish endorsement program has a long
qualifying period that encompasses the limited entry window period plus
more recent years. It is unlikely that a fisher who suffered a hardship
over an 11 year period that prevented him or her from qualifying for
endorsement could be said to have a significant dependence on sablefish
income. Endorsement qualifying criteria consider catch history
associated with the permit. If a permit holder purchased a limited
permit in recent years but was unable to fish for sablefish with the
permit due to accident or illness, it is expected that the permit
holder would have leased his or her permit to another fisher if the
permit holder's annual income were significantly dependent on
sablefish.
Classification
The Regional Administrator determined that Amendment 9 to the FMP
is necessary for the conservation and management of the sablefish
fishery and is consistent with the Magnuson-Stevens Act and other
applicable laws.
This final rule has been determined to be not significant for the
purposes of E.O. 12866.
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 rule would not have a
significant economic impact on a substantial number of small entities.
No comments were received regarding this certification. As a result, a
regulatory flexibility analysis was not prepared.
This rule contains a collection-of-information requirement subject
to the Paperwork Reduction Act (PRA) that has been approved by OMB.
Notwithstanding any other provision of 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. This rule's collection-of-information burden
is 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 public reporting burden will be 2 hours to make an appeal. This is
a one-time only collection-of-information, and contains no annual
reporting and recordkeeping burden. This collection-of-information was
approved by OMB under OMB Control Number 0648-0203. Send comments
regarding the collection-of-information burden or any other aspect of
the information collection to NMFS and OMB (see ADDRESSES).
List of Subjects in 50 CFR Part 660
Administrative practice and procedure, American Samoa, Fisheries,
Fishing, Guam, Hawaiian Natives, Indians, Northern Marianas Islands,
Reporting and recordkeeping requirements.
[[Page 34674]]
Dated: June 24, 1997.
Charles Karnella,
Acting Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR 660 is amended as
follows:
PART 660--FISHERIES OFF WEST COAST STATES AND IN THE WESTERN
PACIFIC
1. The authority citation for part 660 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 660.306, 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,
paragraphs (a)(2)(i) through (a)(2)(v) are renumbered as (a)(2)(ii)
through (a)(2)(vi) respectively, and new (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)(ii) 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, paragraph (a), the first sentence of paragraph
(c)(1), and paragraphs (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 of submitting evidence that the
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 of submitting evidence that the
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:
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, registered for use with that vessel, with a longline or
trap (or pot) endorsement and a sablefish endorsement. 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,
[[Page 34675]]
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 in calculating permit catch
histories. Sablefish harvested illegally or landed illegally will not
be considered.
(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 of qualification status 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) If the permit owner receives a letter of qualification status
from the FMD indicating that PacFIN records do not show that his or her
permit qualifies for a sablefish endorsement and if the permit owner
believes that there is sufficient evidence to show that his or her
permit does qualify for an endorsement, that permit holder must submit
information to the FMD to demonstrate that the permit does qualify for
a sablefish endorsement within 30 days of the issuance of the FMD's
letter of qualification status. 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 the one-time 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 of his determination that
the permit does not qualify for a sablefish endorsement.
(5) If permit holder wishes to file an appeal of the determination
under Sec. 660.336(c)(4), the appeal must be filed with the Regional
Administrator within 30 days of the issuance of the letter (at
Sec. 660.336(c)(4)). 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. 97-16954 Filed 6-26-97; 8:45 am]
BILLING CODE 3510-22-F
