[Federal Register Volume 63, Number 135 (Wednesday, July 15, 1998)]
[Rules and Regulations]
[Pages 38101-38115]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-18751]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 660
[Docket No. 980406085-8164-01; I.D. 031998C]
RIN 0648-AJ27
Fisheries off West Coast States and in the Western Pacific;
Pacific Coast Groundfish Fishery; Management Measures for Nontrawl
Sablefish
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues this final rule to implement management measures
recommended by the Pacific Fishery Management Council (Council) for the
limited entry, fixed gear sablefish fishery north of 36 deg. N. lat.
These measures provide a three-tiered management regime with three
different cumulative landings limits for permit holders participating
in the regular, limited entry, fixed gear sablefish fishery. The
cumulative landings limit available to a permit holder depends on the
tier to which the permit is assigned, with tier assignment based on
historical and more recent participation in the fixed gear sablefish
fishery. Both the limited entry and open access fixed gear sablefish
fisheries will be closed for 48 hours immediately before and for 30
hours immediately after the regular fishery, with different
restrictions applying during the two closed periods. Provisional 1997
regulatory language is updated by this final rule. These actions are
intended to recognize the historical and more recent participation and
investment in the fixed gear sablefish fishery while eliminating the
traditional ``derby'' style management system.
DATES: Effective July 10, 1998.
ADDRESSES: Copies of the Environmental Assessment/Regulatory Impact
Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) and the
Final Regulatory Flexibility Analysis (FRFA) for this action are
available from the 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 William Stelle, Administrator, Northwest Region, NMFS, 7600
Sand Point Way NE, BIN C15700, Seattle, WA 98115-0070 or to
[[Page 38102]]
William Hogarth, Administrator, Southwest Region, NMFS, 501 W. Ocean
Blvd., Suite 4200, Long Beach, CA 90802-4213, and to the Office of
Information and Regulatory Affairs, Office of Management and Budget,
(OMB) Washington, DC 20503 (ATTN: NOAA Desk Officer).
FOR FURTHER INFORMATION CONTACT: Yvonne deReynier at 206-526-6140, or
Wes Silverthorne at 562-980-4000.
SUPPLEMENTARY INFORMATION:
Background
NMFS issues this final rule to implement recommendations from the
Council, under the authority of the Pacific Coast Groundfish Fishery
Management Plan (FMP) and the Magnuson-Stevens Fishery Conservation and
Management Act (Magnuson-Stevens Act), to implement changes to the
management measures for the limited entry, fixed gear sablefish
fishery. The notice of proposed rulemaking for this action (63 FR
19878, April 22, 1998) fully described the background and rationale for
the Council's recommendations. NMFS requested public comments on this
action through May 22, 1998. NMFS received 26 letters during the
comment period, which are addressed later in the preamble to this final
rule.
In summary, limited entry permits with sablefish endorsements are
divided into three tiers, with placement based on the cumulative
sablefish catch associated with that permit from 1984 through 1994.
Each tier is allowed a different cumulative limit during the regular,
limited entry, fixed gear fishery. These measures apply only north of
36 deg. N. lat.
Three-Tier Program
NMFS has accepted the Council's recommendation for qualifying
criteria for the three different tiers. To qualify for the highest
tier, Tier 1, a permit must be associated with at least 898,000 lb
(407.33 mt) of cumulative sablefish landings made from 1984 through
1994. To qualify for the middle tier, Tier 2, a permit must be
associated with between 380,000 lb (172.36 mt) and 897,999 lb (407.33
mt) of cumulative sablefish landings made from 1984 through 1994.
Permits with sablefish endorsements that are associated with less than
380,000 lb (172.36 mt) of cumulative sablefish landings from 1984
through 1994 qualify for the lowest tier, Tier 3.
Analysts examined the distribution of sablefish cumulative catch
histories over the 1984 through 1994 period to determine whether there
were any large gaps between groupings of the cumulative catch histories
of limited entry permits with sablefish endorsements that might serve
as logical breakpoints between tiers. The Council wanted broad
divisions of permit catch history between permits assigned to different
tiers. Based on the analysis available at its meetings, the Council
determined that the above qualifying criteria for Tier 1 reflected the
largest break among a series of high catch history breakpoints, and
that the qualifying criteria for Tier 2 reflected the largest break
among a series of mid-range catch history breakpoints.
Permit catch history will be used to determine tier assignments for
limited entry permit holders with sablefish endorsements. Permit catch
history includes the catch history of the vessel(s) that initially
qualified for the permit, as well as subsequent catch history that was
accrued when the limited entry permit or permit rights were associated
with other vessels. Permit catch history also includes the catch
associated with any interim permit held 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. If the current permit is the result of the combination of
multiple permits, the combined catch histories of all of the permits
that were combined to create a new permit before March 12, 1998, will
be used in calculating the tier assignment for the resultant permit,
together with any catch history (during the qualifying period) of the
resultant permit. Only sablefish catch regulated by the FMP that was
legally taken with longline or fishpot gear will be considered for tier
placement. Harvest taken in tribal sablefish set-asides will not be
included in calculating permit catch histories.
Under the regulations that implemented Amendment 9 to the FMP,
which established the sablefish endorsement requirement, if two limited
entry, fixed gear permits are combined to generate a single permit with
a larger length endorsement, the resulting permit also will have a
sablefish endorsement only if all permits being combined have sablefish
endorsements. After tier assignments are issued by NMFS, if permits are
combined, the resulting permit will be assigned to the highest tier
held by either of the original permits before combination.
The three-tier program maintains a ratio between the cumulative
landings limits for the three tiers that approximates the 1991-1995
catch relationships between permits assigned to each tier on a group
average basis. Setting cumulative limits by ratios ensures that the
long-term relationships between the cumulative limits for each tier
will remain stable. With cumulative limits set by ratio, impacts from
changes in the numbers of permits distributed to each tier will be
shared by all vessels in the fleet. The cumulative landings limit ratio
for the tiers is 3.85 (Tier 1); 1.75 (Tier 2); and 1 (Tier 3). For
example, if Tier 3 had a cumulative limit of 10,000 lb (4,536 kg), Tier
2 would have a corresponding cumulative limit of 17,500 lb (7,938 kg),
and Tier 1 would have a corresponding cumulative limit of 38,500 lb
(17,463 kg).
Overhead guidelines will be used to set the cumulative limits for
each tier and for the overall expected catch for the fishery.
``Overhead'' is defined as the difference between the expected harvest
level and the total harvest that would occur if each permitted vessel
took its cumulative limit (maximum potential harvest). The concept of
overhead is based on the premise that not all participants in this
fishery will harvest the cumulative limit. NMFS considers a fishery
where all participants have the opportunity to catch a cumulative limit
and are all able to catch that limit to be an Individual Fishing Quota
(IFQ) program. The Magnuson-Stevens Act imposes a moratorium on
implementation of new IFQ programs until October 1, 2000.
Cumulative limits and season lengths for the limited entry, fixed
gear regular sablefish fishery will be set to achieve a projected
overhead, based on the most reasonable assumptions, of at least 25
percent and an overhead based on worst-case assumptions of at least 15
percent for the fleet as a whole. The overhead goal for any single tier
will be at least 15 percent, based on the most reasonable assumptions.
Tier assignments for limited entry permits with sablefish
endorsements will `be issued by NMFS, before the start of the regular
1998 limited entry, fixed gear sablefish season. NMFS has used landings
records from the Pacific States Marine Fisheries Commission's Pacific
Fisheries Information Network (PacFIN) database to preliminarily
determine which limited entry permits meet the Council-recommended
qualifications for each tier.
The Sustainable Fisheries Division (SFD), NMFS Northwest Region,
has
[[Page 38103]]
notified each limited entry permit owner with a sablefish endorsement
by letter whether PacFIN records indicate that his or her permit
qualifies for Tier 1, Tier 2, or Tier 3.
A permit owner who believes that his or her permit qualifies for a
different tier than the tier indicated by PacFIN records has 30 days to
send supporting documentation, such as fish tickets, to the SFD to
demonstrate how the qualifying criteria for a different tier have been
met. A new tier will be assigned if the permit owner demonstrates that
his or her permit meets the qualifying criteria. If the SFD, after
review of the information submitted by the permit owner, decides that
the permit does not qualify for the tier requested by the owner, the
owner will have 30 days to appeal the decision to the Regional
Administrator, NMFS Northwest Region. Unlike the initial limited entry
permitting process but similar to the sablefish endorsement issuance
process, there will be no industry appeals board to review appeals of
tier placement.
For the 1998 season only, permit owners with sablefish endorsements
will be issued certificates of tier assignment that will need to be
kept with, and considered part of, their limited entry permits. When
limited entry permit owners renew their permits for 1999, tier
assignments for those limited entry permit owners with sablefish
endorsements will be indicated directly on the limited entry permit.
Applications for sablefish endorsements, implemented in 1997 under
Amendment 9 to the FMP, will not be accepted after November 30, 1998,
which is the limited entry permit renewal deadline for the 1999 fishing
year.
Changes From the Proposed Rule
NMFS received Council recommendations on the two changes to the
proposed rule described in this section.
At the March 1998 Council meeting, the Council learned from its
analysts that the initial analysis presented before the 1997 Council
decision on the three-tier program had two mistakes directly related to
the Council's decision. The Council reconsidered the affected portions
of its recommendations. The first mistake was that the database used
for the initial analysis for the three-tier program had inadvertently
included some sablefish taken in waters off Alaska and later landed at
a Pacific Coast port. Tier qualification catch history includes only
sablefish landed from the Pacific Coast groundfish fishery. The catch
histories of some permits were inflated because of this inclusion of
Alaska-caught sablefish. Once the Alaska-caught sablefish was removed
from the permit catch history database, the tier qualification levels
had to be re-analyzed to determine whether the breaks between permit
catch histories (described above) were still large enough to draw clear
distinctions between permits above and below the breaks. The Council
particularly did not wish to set a qualification level that was within
a few thousand pounds of the next lowest permit catch history level.
Removal of Alaska sablefish data did not significantly change the
breaks in cumulative catch histories identified by the Council at its
November 1997 meeting. The break for Tier 1, 898,000 lb (407.33 mt),
actually became larger, and so is a more effective fleet-division
indicator than it was when the Alaska data were included in the
cumulative catch histories. The qualifying amount that the Council had
originally recommended for Tier 2, 411,000 lb (186.43 mt), also occurs
at a large break in cumulative catch histories, but it is no longer the
lowest large breakpoint in its class. Analysis presented at the March
1998 meeting showed that 398,000 lb (180.53 mt) was the most
significant break in cumulative catch histories, and the lowest large
break among mid-range breakpoints. The Council commented on this issue,
stating that it preferred to use the lowest large breakpoint in the
mid-range area. In order to cushion any further possible data mistakes,
the Council recommended setting the Tier 2 qualifying poundage at
380,000 lb (172.37 mt). NMFS received no public comment on this issue,
and implements this change with this final rule.
The second mistake in the November 1997 analysis was made when the
Council considered whether permits that were the result of the
combination of two earlier permits would be assigned to a tier based on
the cumulative catch history of one of the earlier permits, or based on
the combined cumulative catch histories of both permits together. The
analysis presented to the Council in November indicated that no permit
holder would be denied qualification to a higher tier if the cumulative
catch history of the highest of two combined permits were used as the
qualifying catch history for that permit, rather than the summed
cumulative catch history of both permits that were used to create the
currently held permit. However, analysts later discovered a permit that
is a result of two previously combined permits with catch histories
that would each qualify for Tier 2, but that combined would qualify the
resultant permit for Tier 1. This mistake was presented to the Council
at its March 1998 meeting, after which the Council recommended changing
its initial decision so that permits that are the result of a
combination of multiple permits made before March 12, 1998, may combine
the cumulative catch histories of all of the permits that went into the
combination in order to determine the tier qualification status for the
resultant permit. The Council only allowed this change for pre-existing
combinations, but not for future combinations, so that permit holders
would not have an incentive to buy up latent effort in the fleet to
expand the capacity of their own operations. During the comment period,
NMFS received two letters expressing support for the new Council
recommendation. NMFS implements this change with this final rule.
Management Measures for 1998 and Beyond
To facilitate enforcement, there will be a 48-hour closure before
the start of the limited entry, fixed gear regular season, during which
time all fixed gear north of 36 deg. N. lat. must be out of the water,
and no sablefish may be landed by a fixed gear vessel. The 1998 pre-
season closure will begin at noon local time (l.t.) on Thursday, July
30, and end at noon l.t. on Saturday, August 1, at the start of the
fishery. There will be no opportunities for any fishers to set their
gear before the 1998 regular season start time.
The 1998 limited entry, fixed gear regular season will begin at
noon l.t. on Saturday, August 1, 1998. Only holders of limited entry
permits with sablefish endorsements and tier assignments may
participate in this fishery. The fishery will be 6 days long, ending at
noon l.t. on Friday, August 7, 1998. The cumulative landings limits for
participants in the limited entry, fixed gear sablefish fishery will be
52,000 lb (23,587 kg) for Tier 1; 23,500 lb (10,660 kg) for Tier 2, and
13,500 lb (6,124 kg) for Tier 3. During the regular and mop-up seasons,
there is a trip limit in effect for sablefish smaller than 22 inches
(56 cm) total length, which may comprise no more than 1,500 lb (680 kg)
or 3 percent of all legal sablefish 22 inches (56 cm) or larger,
whichever is greater.
To facilitate enforcement at the end of the regular season, there
will be a 30-hour post-season closure north of 36 deg. N. lat., during
which time no sablefish taken with fixed gear (limited entry or open
access) may be taken and retained
[[Page 38104]]
for the 30 hours immediately after the end of the regular season.
However, sablefish taken and retained during the regular season may be
possessed and landed during that 30-hour period. The post-season
closure has been changed from 48 hours in duration to 30 hours in
duration. This shorter post-season closure is a compromise between
vessel owners with pot gear who would prefer a short post-season
closure so that they may retrieve gear as soon after offloading as
possible, and vessels delivering sablefish to ports in Puget Sound that
are farther from the main fishing grounds than from direct ocean ports.
In 1998, this 30-hour post-season closure will begin at noon l.t. on
August 7 and end at 1800 hours l.t. on August 8. Gear may remain in the
water during the 30-hour post-season closure; however, gear used to
take and retain groundfish may not be set or retrieved during this
period.
Commencing at 1800 hours l.t., August 8, 1998, the daily trip
limits for fixed gear sablefish will resume at 300 lb (136 kg) per day
north of 36 deg. N. lat. (Daily trip limits apply to calendar days.
Therefore, on August 8, 1998, a daily trip limit may be landed between
1800 hours and 12 midnight l.t. Beginning at 0001 hours l.t. on August
9, 1998, daily trip limits will apply to the full 24 hours.) A vessel
participating in the regular fishery must begin landing its catch
before 1800 hours l.t., August 8, 1998, and complete the offloading
before returning to sea or continuing a trip at sea, or the daily trip
limit will apply to the fish remaining on board after 1800 hours l.t.
on August 8, 1998.
Estimates of the likely total harvest in the regular fishery have
been made conservatively in order to ensure that the fishery does not
exceed its total allocation. Because of this conservative management
and the need to provide harvest overhead in setting cumulative landings
limits for the three tiers, the regular fishery may not harvest all of
the limited entry, fixed gear allocation for north of 36 deg. N. lat.
in excess of that required for the daily trip limit fishery. Following
an estimation of the catch from the regular fishery, there will be a
mop-up fishery to harvest this excess. The recommendation on the size
of the mop-up cumulative limit will be made by the Council's Groundfish
Management Team, after calculation of the actual landed catch from the
regular fishery and the daily trip limit fishery. NMFS will announce
the start date, duration, and cumulative limit amount for the mop-up
portion of the fishery in the Federal Register before the start of the
mop-up season.
Comments and Responses
The comments in 26 letters received during the public comment
period ending on May 22, 1998, are summarized below. Comments 1 through
17 were received from 12 individuals in opposition to the three-tier
program. Comments 18 through 30 are comments were received from 13
individuals and from an attorney representing west Coast fixed gear
fishers. One letter in support of the rule included a suggestion that
permit owners be allowed to stack multiple permits to pursue multiple
cumulative limits during the regular fishery and a suggestion that the
regular fishery be managed with an option of two different start dates,
one in April and one in August. Neither of these suggestions was within
the scope of the proposed rule or the Council's considerations for the
three-tier program, so those comments have not been responded to below.
Comments Opposing the Rule
Comment 1: No justifiable need has been demonstrated for tiered
sablefish allocation. Tiered allocation does nothing to further the
stated purpose of the overall management program--to end derby fishing.
In fact, derby fishing would be perpetuated by this program. The three-
tier program does not address the safety-at-sea issue.
Response: For the past several years, the Council has expressed a
strong desire to end the status quo management regime of an open
competition derby while still maintaining historic trends in catch
distribution among participants. Each year, since 1987, the open
competition derby season has shortened in duration, yet the Council has
been unable to choose whether to support the management recommendations
of long-term fleet members who wanted to maintain their historic share
of sablefish landings, or the management recommendations of new
entrants to the fleet who wanted to increase their future shares of
sablefish landings. The history of the fixed gear sablefish management
regime is discussed in the preamble to the proposed rule. Finally, for
1998 and beyond, the Council recommended the three-tier program, a
compromise that recognizes historic and recent fishery participation
levels. The unrestricted competition derby will end with the
implementation of the three-tier program.
The amount of sablefish available to a three-tier regular fishery
provides a 6-day fishery in 1998. Without this rule, the regular
fishery would be an unrestricted derby of 2 to 3 days. With this rule,
approximately one-third of the expected participating vessels will be
able to slow their rate of fishing over the rate that they would have
fished under an unrestricted derby fishery, without reducing their
catch. The Council has several times deliberated on whether this
fishery would still be unsafe for vessels unable to catch the
cumulative limit within the time allotted for the fishery. Fishers who
knew that they would not be able to catch the cumulative limit within
the time available have testified before the Council that any increase
in the number of days in the fishery would allow them to slow the pace
of their fishing and improve their ability to operate in a safer
manner. The Council concluded that the three-tier program was an
appropriate compromise because it would substantially slow the fishery
without the adverse impacts of the alternatives that would have more
drastically redistributed the catch.
The regular fishery under the three-tier program will still be a
short, intense season. However, the only management option that has
been suggested to end such seasons entirely was to set equal, monthly
cumulative landings limits, an option with other offsetting drawbacks.
Equal monthly landings limits would drastically redistribute catch from
longer term participants to more recent and smaller capacity entrants.
Cumulative limits also give fishers incentive to aim for a limit, and
in aiming for that limit, they often exceed the limit and must discard
any fish exceeding the limit. Discard mortality is largely unmeasured,
and thus is a danger to the long-term health of the fish stocks. A
system of monthly limits risks the possibility that fishers will aim
for and exceed 12 small landings limits. The three-tier program has
just the large, regular fishery limit to aim for, plus an expected
second, smaller limit in the mop-up portion of the fishery.
Comment 2: The three-tier program is based solely on historic
catch. Historic catch is not mentioned in the Magnuson-Stevens Act. The
Magnuson-Stevens Act states that if the available resource must be
allocated to American fishers, historic participation shall be
required. All fishers with sablefish endorsements have shown historic
participation in the fishery.
Response: Under section 303 of the Magnuson-Stevens Act, a Council
may establish a limited access program if it takes into account, among
other things, ``historical fishing practices in, and dependence on, the
fishery.'' The three-tier program uses cumulative sablefish landings
from the 1984 through 1994
[[Page 38105]]
period to quantify the historical fishing practices and dependence of
participating fishers on the fixed gear sablefish fishery.
National standard 4 of the Magnuson-Stevens Act states that,
``Conservation and management measures shall not discriminate between
residents of different States. If it becomes necessary to allocate or
assign fishing privileges among various United States fishermen, such
allocation shall be (A) fair and equitable to all such fishermen; (B)
reasonably calculated to promote conservation; and (C) carried out in
such a manner that no particular individual, corporation, or other
entity acquires an excessive share of such privileges.'' The three-tier
program is fair and equitable to participants in the program because it
recognizes historic and recent participation and dependence on the
fishery, and because it divides fishing privileges in a manner designed
to minimize economic impact on those participants, within the
constraints of the Magnuson-Stevens Act prohibition on implementing new
IFQ programs.
Derbies, three-tier programs, and series of monthly cumulative
limits, were three of the major alternatives considered in this action.
Each provides a different means of controlling harvest in this fishery,
each with different social, economic, and conservation implications
that would change over time and with conditions in the fishery. The
implementation of any of these alternatives would promote resource
conservation. Deteriorating social and economic conditions resulting
from derby fishery management led to the consideration of alternative
conservation measures.
Finally, if the fishery could be managed in a way that would allow
each of the permits to harvest the entire cumulative limit associated
with the tiers, each of the permits in the top tier would be receiving
just 1.4 percent of the total catch available to that fishery. A small
number of fleet participants own more than one permit, so it is
extremely unlikely that any one individual, corporation, or any other
entity will acquire an excessive share of the privileges associated
with this fishery through the three-tier program.
Comment 3: The Magnuson-Stevens Act states that economic gain
shall not be used to allocate fish resources.
Response: National standard 5 of the Magnuson-Stevens Act states
that, ``Conservation and management measures shall, where practicable,
consider efficiency in the utilization of fishery resources; except
that no such measure shall have economic allocation as its sole
purpose.'' The purpose of the three-tier program is to move away from
the unrestricted derby fishery with a management program that allows
sablefish catch distribution to reflect historic and recent
participation levels in the fishery. A management measure that would
improve the efficiency of the use of a fishery resource would, among
other things, remove or discourage redundant capacity in the fleet
targeting that resource. Derby management encourages each fishery
participant to increase the capacity of his or her vessel, to maximize
the amount of fish that a vessel can catch during the time of the
fishery. If the catching capacity of each vessel in a fleet is
increased to improve its competitive advantage over other vessels, the
total catching capacity in the fleet becomes so great that the duration
of the derby must be shortened to prevent these vessels from exceeding
the harvest guideline for the target species. The Pacific Coast fixed
gear sablefish fishery has had a classic case history of a derby
fishery that rushed into the vicious spiral of ever-increasing
redundant capacity and ever-decreasing fishery duration. The three-tier
program is intended to decrease the intensity of this spiral by
matching permits to the tiers that most closely reflect their historic
landings shares of the fishery. Fishers within each tier will be
allowed to pursue cumulative limits that match more closely their
current vessel capacities, and will thus as a group have less incentive
to continue to increase those vessel capacities. There will still be
incentive for vessels that are unable to catch their cumulative limit
in the allotted time to increase their capacity (about two-thirds of
the fleet), but the degree of incentive will be reduced. The three-tier
program is a compromise program resulting from constraints created by
the Magnuson-Stevens Act moratorium on the creation of new IFQ programs
and the major reallocative effects of other alternative management
strategies (e.g., a year-round series of monthly cumulative limits).
Economic allocation is not the sole purpose of this regulation. As
discussed in response to comments 1 and 2, the rule also has social and
conservation purposes.
Comment 4: The tier system rewards overcapitalization by large
producers by giving them an unreasonably larger allocation of sablefish
in comparison to the rest, and majority, of the fleet.
Response: Fleet overcapitalization is primarily the result of two
factors: individual fishers improving and supplementing their gear and
vessel catching capabilities, and increasing numbers of new entrants to
the fleet. Both of these factors contributed to overcapitalization in
the fixed gear sablefish fishery. It is incorrect to say that, during
any given period, a vessel that added gear contributed more to the
overcapacity problem than a fisher bringing in a similar amount of
capacity as a new entrant, or to say that this program rewards
overcapitalization by recognizing historic and recent fishery
participation. The three-tier program is designed to reflect, in part,
dependence on the fishery.
The ratio that describes this distribution of cumulative catch
limits between tiers approximates the 1991 through 1995 catch
relationships between permits assigned to each tier on a group average
basis. Setting cumulative limits by ratios ensures that the long-term
relationships between the cumulative limits for each tier will remain
stable. With cumulative limits set by ratio, impacts from changes in
the numbers of permits distributed to each tier will be shared by all
vessels in the fleet. The cumulative limits ratio for the tiers will be
3.85 (Tier 1); 1.75 (Tier 2); and 1 (Tier 3). The ratio between the
average permit catch histories for permits in the three different tiers
over the 1984 through 1994 period is 10.9 (permits in Tier 1) to 3.9
(permits in Tier 2) to 1 (permits in Tier 3). Tier 1 fishers will not
have an unreasonably larger allocation of sablefish as compared with
the rest of the fleet, particularly given the difference between the
historic cumulative catch ratio and the cumulative limits ratio
implemented by the three-tier program.
Comment 5: The tier program criteria are arbitrary and
inappropriately inflexible. The criteria do not adequately allow for
the changing circumstances and contingencies common in the industry,
such as boat and gear loss, weather, price fluctuations, etc.
Response: NMFS disagrees. The three-tier program qualifying
criteria include the initial 1984 through 1988 window period used to
qualify vessels for limited entry permits, plus the 1989 through 1994
period that was added to the limited entry window period for sablefish
endorsement qualification. In considering this question, it is
important to remember that NMFS considers the relevant history to be
the history of the groundfish fishing firm as represented by the
groundfish permit. Within the 11-year window period, NMFS expects that
most fishers had some period of relatively low fishing activity due to
any number of possible problems they might have had with their boats,
gear and weather, with personal health and family needs or with basic
changes in market
[[Page 38106]]
conditions. The long (11 years) qualifying period reduces the impact of
any particular problem that might have affected a fisher's
participation in this fishery. For vessels that may have entered the
fishery in the latter part of the qualifying period, such as those
qualifying for a limited entry permit based on construction provisions,
notice was given as early as the November 1991 Council meeting
(announced at 57 FR 4394, February 5, 1992), that additional actions
might be taken to further restrict access to the fishery, and that the
Council was reserving the option to not consider subsequent investment
and dependence on the fishery in determining future allocation
questions with regard to this fishery. The qualifying requirement
represents a balance that considers both the duration of involvement in
the fishery and the size of the harvest operation. A fisher who entered
the fishery as a large producer in the later part of the qualification
window would have an opportunity to qualify for one of the higher
tiers, as would a fisher who participated at a lower, but consistent,
level over a longer period.
Comment 6: The catch requirements for tier placement would
unfairly favor large vessels and handicap smaller vessels. Recent derby
management has artificially widened the catch gap between larger and
smaller vessels, because small boats are more vulnerable to adverse
weather and must spend a greater percent of time in transit, loading,
and offloading. Thus, the catch rate of these smaller vessels has been
constrained during the extremely short seasons.
Response: NMFS agrees that there is some correlation between
vessel size and vessel catch history. However, there are also several
examples of small-sized vessels in the Tier 1 that have had high and
consistent sablefish landings over the entire 11-year qualifying
period. Conversely, there are very large vessels in Tier 3 with
relatively low cumulative catch histories. Many factors contribute to
whether a vessel has a relatively large or small sablefish catch
history. In addition to basic vessel length, cumulative catch history
might be related to sablefish abundance near the home port of the
vessel, the fishing skills of the captain and crew, the type and
condition of the gear used, the condition of the vessel, choices of the
vessel owner to participate in the West Coast sablefish fishery or in
other simultaneous fisheries, the number of years in this fishery, and
many other possible factors. During the 1984 through 1994 window
period, only the last three seasons could be classified as short in
duration, being 15 days in 1992, 21 days in 1993, and 20 days in 1994.
These short periods necessarily constrained the catch rates of all
participating vessels to ensure that the fishery did not exceed the
available harvest guideline. NMFS does not agree that smaller sized
vessels necessarily spend more time in transit, or in loading and
offloading than larger vessels.
Comment 7: High-producing pot fishers had an advantage of high
harvest levels during the window period because they, unlike
longliners, were allowed to set their gear before the start of the
season. This was supposedly justified by safety concerns that boats
carrying too many pots would be unstable.
Response: In 1993 and 1994, fixed gear vessels were prohibited
from taking and retaining, possessing, or landing sablefish for the 72
hours before the start of the regular sablefish fishery (58 FR 16629,
March 30, 1993). For those 2 years, all fixed gear fishers could deploy
their gear during the 72-hour pre-season closure, but no sablefish
could be taken from the water until the season start. In 1995,
longliners were prohibited from deploying their gear until the start of
the season, while pot fishers were allowed to deploy and bait their
gear in advance of the start of the regular season (60 FR 34473, July
3, 1995). Because tier qualification status is based on landings made
from 1984 through 1994, the pot pre-set allowance in 1995 and 1996 did
not affect harvest during the three-tier qualification period.
Comment 8: The three-tier program does not consider the impact on
the small fishing ports along the coast, as directed by the Magnuson-
Stevens Act.
Response: National standard 8 of the Magnuson-Stevens Act requires
that, ``Conservation and management measures shall, consistent with the
conservation requirements of this Act (including the prevention of
overfishing and rebuilding of overfished stocks), take into account the
importance of fishery resources to fishing communities in order to (A)
provide for the sustained participation of such communities, and (B) to
the extent practicable, minimize adverse economic impact on such
communities.'' NMFS notes that, according to the Council's decisional
analysis, the three-tier program is expected to cause little change in
the inter-port distribution of harvest over past years' harvest
distributions. Moreover, other alternatives to unrestricted derby
management, such as providing a single period equal cumulative limit
fishery for all vessels or a series of equal monthly cumulative limits,
would have imposed greater changes to inter-port harvest distribution
than the three-tier program implemented by this rule. The program
implemented by this rule meets the requirements of national standard 8.
Comment 9: The three-tier plan is only a disguised IFQ program,
which is not allowed under the Magnuson-Stevens Act. The ``overhead''
allowance does not remedy this being an IFQ program. Additionally, the
season has been artificially shortened in order to maintain this
``overhead'' fiction, increasing the fishery's hazardousness for all
participants.
Response: The October 11, 1996, Sustainable Fisheries Act
significantly revised and renamed the Magnuson-Stevens Act. The new
changes to the Magnuson-Stevens Act included a moratorium on the
implementation of new IFQ programs until October 1, 2000. An IFQ is
defined in the Magnuson-Stevens Act as, ``a Federal permit under a
limited access system to harvest a quantity of fish, expressed by a
unit or units representing a percentage of the total allowable catch of
a fishery that may be received or held for exclusive use by a person.''
Management measures for the limited entry, fixed gear sablefish
fishery have been carefully designed not to violate this IFQ
prohibition. As with the 1997 equal cumulative limit fishery, the
Council recommended using overhead guidelines in setting the cumulative
limits for each tier and for the overall expected catch for the total
fishery. ``Overhead'' is defined as the difference between the expected
harvest level and the total harvest that would occur if each permitted
vessel took its full cumulative limit (maximum potential harvest). The
concept of overhead is based on the premise that not all participants
in this fishery will be able to harvest the cumulative limit. Because
not all participants will be able to harvest the cumulative limits, and
the remaining fish will be made available to others in the fleet, the
cumulative limits are not held for ``exclusive use by a person.'' These
limits are merely caps on what the most productive members of each tier
may harvest during the regular season. NMFS considers a fishery where
all participants have the opportunity to catch a cumulative limit and
they are all able to catch that limit to be an IFQ program. The Council
recommended setting cumulative limits and season lengths in 1998 and
beyond to achieve a projected overhead, based on the most reasonable
assumptions, of at least 25 percent and an overhead, based on worst-
case assumptions, of at least 15 percent for the fleet as a whole. The
goal overhead for any single tier
[[Page 38107]]
would be at least 15 percent, based on the most reasonable assumptions.
Overhead provisions ensure that fishery participants do not have
exclusive use of the cumulative limits. Any fish that is not harvested
in the cumulative limit fishery will be redistributed in another catch
opportunity during the mop-up fishery. NMFS is satisfied that a
management program based on these conservative overhead guidelines will
not result in all participating fishers being able to catch their full
cumulative limits and that such a program will, therefore, not be an
IFQ program. NMFS agrees that a longer season would be more desirable
for its safety benefits. However, a longer season is not possible under
the current IFQ moratorium, and would not achieve the Council's goal of
ending the unrestricted derby with a management program that recognizes
historic and recent participation.
Comment 10: Adequate consideration has not been given to
alternative means of achieving the program's objectives. Alternatives
to the three-tier program include management by equal allocation of
sablefish for all limited entry permit holders, as in 1997.
Response: NMFS disagrees that adequate consideration has not been
given to alternative means of achieving the program's objectives. The
history of Council deliberation regarding this management system was
described in the preamble to the proposed rule. The Council
specifically considered, analyzed, and rejected options that provide
equal allocation of sablefish for all permit holders as having too
great a redistributive effect on the fishery. Because an option was not
adopted does not mean that it was not considered.
The 1997 management scheme for the limited entry, fixed gear
sablefish fishery set equal cumulative limits for all limited entry
permit holders with sablefish endorsements. This scheme was
specifically adopted for 1 year only because a long-term equal limits
policy would have had significant adverse social and economic effects.
This option, in addition to an option to set monthly equal cumulative
limits, was included in the Council's decisional analysis for the
management of this fishery in 1998 and beyond. In addition to these
options, the Council considered a status quo derby option, three
different three-tier options, and one four-tier option. The Council
thoroughly analyzed and considered all seven management options before
choosing the three-tier program implemented by this rule.
Comment 11: One commenter opposed to the rule supported the single
period equal cumulative limit with mop-up option. The commenter noted
that the Council's analysis for this issue showed that only 18 percent
of fishery participants would experience a greater than 5-percent
decrease in their incomes, making this less than NMFS's standard
``significant impact'' criteria of 20 percent.
Response: This comment appears to refer to NMFS criteria for
determining whether an action will have a significant economic impact
on a substantial number of small entities, a determination NMFS makes
pursuant to the Regulatory Flexibility Act (RFA). 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 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 that are engaged in the
fishery. This determination is discussed in the Classification section
of this rule, and analyzed in the EA/RIR/IRFA/FRFA for this action.
The Council set an equal cumulative limit regime in 1997 forall
sablefish endorsement holders with the understanding that such a
division of fishing opportunities within a fleet with vastly differing
historical fishery participation rates and dependence levels would be
an unfair allocation as a long-term policy. In the final rule
implementing the 1997 regime, NMFS stated that, while the equal
cumulative limit regime was preferable to a derby, the agency would
support a 1998 management system that better reflected historic and
more recent levels of fishery participation. NMFS does not agree that
an equal allocation for all sablefish endorsement holders is an
appropriate management option for this fishery. Although the single
period equal cumulative limit option would have resulted in fewer
businesses with economic loss, the degree of impact on those businesses
would have been much greater. Those businesses that would have lost
economically under this option would have lost revenue to a greater
degree than those businesses losing revenue under any of the tier
options. Comparisons of revenue losses and gains under the different
management options considered by the Council are analyzed in the EA/
RIR/IRFA and FRFA for this action. There is a higher likelihood that
applying the NMFS RFA criteria to a management measure to implement a
long-term policy of equal cumulative limits would have resulted in a
finding of significant economic impacts to fleet participants on the
basis of the standard that more than 2 of participating small
businesses could have been forced to cease operations. Thus, while the
three-tier program results in a greater number of businesses
experiencing losses, those losses are smaller, and the impacts of the
new management regime are spread more evenly through the fleet.
Comment 12: Equal opportunity to access the fisheries is the fair
and long-established approach to fishery management. There is no
justification for managing this one fishery differently from other West
Coast fisheries. Monthly trip limits have worked for trawlers, why
can't they be used for the longline and pot sablefish fishery?
Response: Management of the trawl and longline fishery for
sablefish diverged in 1987, when the Council established constraining
trip limits for the trawl fishery, but did not set trip limits for the
non-trawl fishery. Since then, the fisheries have developed in
different manners. A sudden shift to monthly trip limits for the non-
trawl fishery would have drastic reallocative impacts on the fishery,
which the Council specifically wanted to avoid. While equal trip limits
could be imposed on the fixed gear fleet, the effect would be, and was
in 1997, very different than for trawl vessels because of the different
management paths these two gear groups have taken. The trawl fishery
reached its current trip limit levels over a period of many years, with
some downward adjustments made each year. The sudden imposition of
today's limits on a trawl fleet previously constrained only by season
length would be extremely reallocative and disruptive. When the size of
harvests is changed dramatically and suddenly, rather than over time,
greater dislocations result, both in terms of labor and business, as
well as personal capital. The monthly trip limit for trawlers is not
without problems. An overcapitalized fleet fishing on relatively low
trip limits in a multi-species fishery may have high discard rates,
with reduced economic viability for many of the fishery participants.
Any management scheme has drawbacks, and the Council must balance all
competing factors in choosing a management regime for any fishery.
Comment 13: If a permit received an endorsement, the Council
should allow permit holders who did not qualify for limited entry
permits to use their vessel
[[Page 38108]]
catch history, rather than just the permit catch history, to qualify
that permit for tier placement.
Response: 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. This comment suggests that a permit
holder who purchased a permit after the limited entry program went into
effect should be able to add his or her personal vessel's pre-1994
catch history to the pre-1994 catch history of the vessel that
initially qualified for the purchased permit.
It has been the Council's policy to allow permit catch history to
include a vessel's catch only from a time when that vessel was
associated with the permit. Permit catch history includes the catch
history of the vessel that initially qualified for the permit (before
1994), plus any catch history accumulated by vessels using that permit
after issuance (1994 - present). It would be inconsistent with historic
Council and NMFS policy to change these parameters for vessel and
permit catch history for the three-tier program. To the degree
possible, it is important to maintain consistent policy so that people
can move in and out of the fishery and plan their fishery investments.
Changing a policy that has been consistently followed since 1989 would
create uncertainty about future policies for current participants and
new entrants, and would require substantial justification.
A different set of qualifying histories would require redesign of
the entire program, with the result being a different set of permit
owners benefitting and losing under the new qualifying histories. If
the proposal in this comment were adopted, either the qualifying
requirements for the tiers would have to be raised to maintain a
similar number of permits in each tier, or the cumulative limits for
all vessels would have to be reduced in order to accommodate a greater
number of permits in higher tiers. The net effect in the former case is
that some permits would be moved down so that others could move up, or
that everyone would experience a decrease in his or her harvest so that
more permits could move up.
Comment 14: In 1992, the Council established a window period for
future sablefish access limitation programs with a 1991 cutoff date. A
commenter noted that fishing business decisions were based on this
cutoff date and that, for this reason, his West Coast landings after
1991 are not as high as they would have been if he had known that there
would be a later cutoff date.
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.'' The
notice also explained that IQ programs were only a potential future
management program, and that setting a control date was intended to
``discourage speculative entry into these fisheries (sablefish and
halibut) while discussions on access control continues.'' Just as the
Council prepared to take final action on whether to implement an IQ
program, it received a letter from the West Coast congressional
delegation requesting that it defer action until national policy
guidance could be developed. The Council delayed action in response to
this letter and the industry controversy surrounding the issue.
Subsequently, Congress enacted a moratorium on new IFQ 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.'' This notice also explained that the Council might choose a
different control date or might choose a management regime thatdid not
make use of a control date. The purpose of a published notice of
control date was to prevent fishers from rushing into the fishery in
the hopes of accumulating catch history for possible future management
schemes.
The sablefish endorsement program and the Council's recommendation
for a three-tier management program have the same 11-year qualification
period of 1984 through 1994. This qualification period incorporates
catch over a long period and includes both historic and recent
participation. It also accounts for the fact that some fishers may
depend on different fisheries in different years or may have some years
of relatively low catch for reasons outside their control.
The use of control dates is a difficult issue. Control dates are
necessary for the protection of the resources and the fishers that are
dependent on the fishery. However, when a policy is not developed
fairly soon after the issuance of the control date, so many changes
occur in the fishery that adherence to old control dates lead to
perceived inequities. The need to maintain the control date is
difficult to balance with the need to account for changes in the
fishery. One way to resolve this balance is to recognize that one of
the purposes of the qualification criteria is to establish degree of
dependence on the fishery. If the Council had not set the 1991 control
date, the commenter may have made investments and fished at a level
that established a degree of dependence entitling his or her permit to
qualify for a higher tier. However, during the intervening years, such
investment was not made, and a greater degree of dependence on future
income from sablefish was not established. There is a greater
probability that the commenter's fishing enterprise will be able to
withstand a harvest reduction associated with assignment to a lower
tier, or the need to purchase a permit for a higher tier, than an
enterprise that has harvested at a higher rate. It is also possible,
depending on his or her catch history, that, even in the lowest tier,
the commenter will experience an increase relative to recent harvests.
Comment 15: A commenter suggested that the qualifying amount for
Tier 1 should be lower than it is, because some long-time participants
in the fishery may be placed in Tier 2.
Response: As discussed in this document and in the preamble to the
proposed rule for the three-tier program, the tier qualification
amounts are based on the largest breaks between a ranking of the
cumulative catch histories of all of the limited entry permits with
sablefish endorsements. A permit's tier placement reflects the catch
history associated with that permit, as compared with the catch
histories associated with all of the other permits with sablefish
endorsements. These 163 permits are associated with a wide range of
cumulative catch histories, from under 40,000 lb (18.14 mt) cumulative
catch history from 1984 through 1994 to over 3,000,000 lb (1,360.78 mt)
cumulative catch history during that same period. The breakpoints in
this three-tier program fall at levels where
[[Page 38109]]
there were large and obvious divisions between groupings of permit
catch histories.
Qualification requirements have to do not only with being a fisher
and a boat owner, but also with the level of participation in the fixed
gear sablefish fishery. A long-term owner in the fishery and steady
participant should end up in a tier somewhat reflective of his or her
general harvest levels. Because the program cannot provide individual
allocations due to the Magnuson-Stevens Act's moratorium on IQ
programs, there will inevitably be some reallocation from historic
catch shares; some fishers will receive more than their demonstrated
production levels and others will receive less. To those who sold a
vessel or permit with catch history or who recently invested in a
vessel with little catch history, many notices have been given since
the close of the 1988 limited entry window period that access rules for
the fishery might change overtime.
Comment 16: If there is to be a tiered system, the regulations
should have an appeal procedure under which hardship circumstances
adversely affecting an individual boat owner's tier placement can be
heard and placement upgraded if adequately justified.
Response: A permit holder eligible for participation in the three-
tier program has the opportunity to appeal his or her permit's tier
placement if that permit holder believes that the permit has been
placed in the wrong tier based on incorrect information about the catch
history associated with that permit. Like the sablefish endorsement
program, the three-tier program does not include a hardship provision
for tier placement. The three-tier program has a long qualifying period
(1984 through 1994) that encompasses the limited entry window period
plus more recent years.
Tier assignments are based on catch history of the permit, which
includes the catch history of the vessel that initially qualified for
the permit during the time before the permit was issued, plus any
subsequent catch made by vessels operating under the permit. The
qualifying window period for limited entry permits was July 11, 1984,
through August 1, 1988. Most vessels that qualified for an initial
limited entry permit based on personal hardship had to have been
fishing before the end of the limited entry qualifying period. Every
permit should have a long permit history, except for those that
qualified under vessel construction or conversion criteria.
The vessel construction/conversion criteria required that
construction on the vessel must have been started before 1988 and
completed by September 1990. Vessels qualifying under this provision
had at least 4 years of fishing opportunity during the three-tier
window period, except where unexpected circumstances may have prevented
construction completion before September 1990. A construction history
running from before August 1, 1988 through September 1990 or later
demonstrates some degree of ability to survive financially without
substantial fishing income.
Vessels entering the fishery for the first time in 1991, or later,
arrived in the fishery when there were only short derby fishing
opportunities and after the Council had provided notice of impending
changes to fishery access rules. A vessel that was a high producer
during the last four derbies in the three-tier qualification period
(1991 through 1994) may have established a high enough permit history
to qualify that permit for Tier 2. Conversely, low-producing vessels
that participated only in the 1991 through 1994 derbies have shown a
relatively low level of dependence on the fishery. Vessels that entered
the fishery at a later date had less of an opportunity to qualify for a
higher tier assignment than vessels with a long history of fishery
participation.
Comment 17: A commenter suggested that, if the tier system is
approved, upon death of a permit holder or sale of any permit, the
permit's associated cumulative limit should be forfeited into the total
amount available to all sablefish endorsement holders, to be divided
between active permits.
Response: NMFS is uncertain exactly how this proposal would work.
It appears that the proposal is to make sablefish harvesting a non-
transferable privilege, as opposed to the other fishing privileges
conferred by permit ownership. Similar provisions have been considered
in the past, but rejected because of complications having to do with
methods by which ``sales'' can be circumvented, and defining deaths
where partnerships or corporations are involved in the ownership. The
three-tier program is a program to allocate the fixed gear portion of
the limited entry sablefish allocation between participants in the
regular fishery; it is not a capacity reduction program. However, the
Council has expressed an interest in capacity reduction programs, and
this idea might be considered during future Council efforts to develop
capacity reduction programs.
Comments Supporting the Rule
Comment 18: The three-tier plan is equitable because it recognizes
historic dependence on and investment in the fishery as a rational
method of fishery management. The 11-year window period of 1984 through
1994 for the three-tier program is inclusive of both historical
participation and (at the time of program development) current
dependence upon the fishery. Using catch history to allocate fish is
the best method of distributing reductions in fishing opportunity
through an overcapitalized fleet. The time has come to implement a
management regime that will maintain a semblance of economic stability
and continued participation in a long-established fishery.
This three-tier program is also a compromise that gives low level
participants a higher harvest catch level than they have historically
enjoyed, while greatly reducing the poundage of the high level
producers. Vessels in Tier 1 will lose about 3.2 percent of their total
catch, while vessels in Tiers 2 and 3 are expected to gain 1.0 percent
and 0.7 percent respectively. Reallocation of proportional catch share
within and between permit holders in each tier is relatively modest.
The length of the qualifying period and the lack of an exception
for personal hardship represents a balance in the consideration of the
dependence of long-term producers and more recent entrants. For owners
of permits with a long catch history, the lack of a hardship provision
is another way of weighing the degree of dependence established in the
fishery. For the three-tier program, the question is not whether a
vessel will qualify for a tier assignment, but which tier assignment
the associated permit will receive. Owners of permits not qualifying
for a higher tier may move to a higher tier by purchasing a higher tier
permit, just as people who have not yet entered the fishery will have
to do to enter even the lowest tier.
Response: This comment refers in part to analysis in the EA/RIR/
IRFA for this issue that shows how the distribution of catch shares
between vessels in the fishery would change upon implementation of the
three-tier program. NMFS agrees that the three-tier program takes both
historic and recent participation into account in setting qualification
levels for the three tiers. NMFS also agrees that the three-tier
program has been carefully designed to spread the burden of more
rational management among fleet members. NMFS notes that many of the
comments in favor of the three-tier program were received from persons
who would have been negatively affected (as compared with status quo
derby management) by either the equal cumulative limits program or the
three-tier program, but
[[Page 38110]]
who prefer the three-tier program for its recognition of differing
fishery participation levels. However, NMFS also notes that, despite
this effort to reduce the reallocative effects of this program, the
degree of reallocation of proportional catch shares within the tiers is
still substantial, with some vessels experiencing increases and others
decreases.
Comment 19: The proposed rule would provide an effective mechanism
for the prevention of overfishing and the achievement of optimum yield
by providing close control over harvesting conducted by an over-
capitalized fleet. The proposed rule would enhance conservation of the
fishery by making the fishery easier to manage, increasing the
likelihood that harvests will remain within the harvest guideline, thus
improving the sustainability of the fishery. For these reasons, the
three-tier program complies with national standard 1.
Response: NMFS disagrees that the fishery is necessarily easier to
manage under the three-tier system than it would be under the derby.
The sum of the cumulative limits for all vessels in the fishery
substantially exceeds the total amount of available fish. Cumulative
limit management with overhead allows a longer fishery than
unrestricted derby management, at a similar degree of risk and
conservativeness. Additionally, there are enforcement and monitoring
problems with cumulative limits that must be recognized. Under derby
management, no incentive exists for vessels to under-report landings.
Under cumulative limit management, vessels able to take their
cumulative limits in the available time might under-report their
landing in order to land more sablefish than the limits allow. All of
these factors were taken into account when the Council and NMFS
balanced conservation, safety, allocation, and other management
objectives in selecting what they determined to be the best management
option.
Comment 20: The three-tier program complies with national standard
2, which states that ``Conservation and management measures shall be
based on the best scientific information available.'' Not only did the
Council use the most current data and analyses in shaping the three-
tier program, but also, when analysts discovered errors in the database
of permit catch histories, those mistakes were properly and timely
disclosed, and the Council reviewed and reconsidered its decisions
based on the new data.
Response: NMFS agrees. Changes from the proposed rule to the final
rule result from decisions made at the Council's March 1998 meeting,
and are described above.
Comment 21: According to one commenter, opponents of the three-
tier program argue that catch history should not be used to allocate
the sablefish resource and that equal allocation is the most fair
allocation. That same commenter noted that ``fairness of allocation
(national standard 4) is in the eye of the receiver.'' This commenter
pointed out that the 1997 equal limits management allowed permits that
had caught only 16,000 pounds in a single year to fish toward a limit
of 34,000 pounds, also allocating 34,000 pounds to permits with
historical annual catches of 300,000 pounds. Additionally, several
commenters noted that, in the three-tier program, fishers in Tiers 1
and 2 will lose catch opportunity, and fishers in Tier 3 will gain
catch opportunity, commenting that this program is a well compromised
allocation.
Response: As indicated in the response to Comment 11, NMFS agrees
that the three-tier program, which spreads the burden of catch
reductions more evenly through the fleet, is a fairer allocation than a
long-term equal cumulative limit allocation.
Comment 22: The three-tier program is an initial step toward
capacity reduction. Before capacity can be reduced, it must be
prevented from increasing. By assigning each permit an allocation,
fleet harvest capacity cannot increase because the incentive to catch
more fish disappears. In this way, the program complies with national
standard 5, which states that ``conservation and management measures
shall, where practicable, consider efficiency in the utilization of
fishery resources; except that no such measure shall have economic
allocation as its sole purpose.''
Response: NMFS partially agrees. As stated in the responses to
Comment 3, derby-style fishery management encourages each individual in
a given fleet to expand his or her vessel's catching capacity to better
compete with all of the other vessels in the fleet. Even if a limited
entry program restricts the number of vessels in the derby, individual
fishers have incentives to improve the competitive abilities of their
vessels. Derby management inevitably leads to the cumulative catching
ability of the fleet exceeding the actual capacity needed to harvest
the available resource. The three-tier program reduces but does not end
this derby-style management, and attempts to match permits to tiers
based on the cumulative catch associated with those permits. During the
fishery, a portion of vessels in each of the tiers will closely match
the catching ability associated with the available cumulative limit and
the time available, while some vessels will have more than enough
catching ability, and some vessels will have less catching ability than
needed for taking that cumulative limit within the available time.
Comment 23: One commenter stated that he appreciated the stability
this program will bring to a fishery that has a history of management
difficulties. The commenter noted that the stability of this program
will allow him to assure his crew members that otherwise lean years can
be filled out by catch in the sablefish season, and anticipated that
this stability would ensure loyalty from his experienced crew members
throughout the year.
The commenter further noted that the three-tier program will also
allow flexibility to participate in multiple fisheries. The three-tier
program, with a fixed fishery period and a mop-up following shortly
afterwards, allows fishers to get their gear on and off their boats and
to pursue the multiple fisheries necessary to make a year round living.
The commenter also was pleased that the three-tier program accounts for
the different fishing strategies of the many fleet participants, the
three-tier program follows national standard 6, which states that
``Conservation and management measures shall take into account and
allow for variations among, and contingencies in, fisheries, fishery
resources, and catches.''
Response: In developing the three-tier program, one of the
Council's goals was to begin to bring stability and rational management
to a frenetic and unstable fishery. The Council and NMFS recognize that
fixed gear fishers participate in a variety of fisheries throughout the
year, and season start dates for this fishery are set to accommodate as
many alternative fishery schedules as possible.
Comment 24: The fixed gear sablefish fleet is diverse and divided
into opposing categories: long term participants and new entrants,
large catch histories and small catch histories, large boat and small
boats. This program causes some losses and gains for some coastal
communities because we all deliver to and support coastal communities,
not because of a disregard for coastal communities. The three-tier
program complies with national standard 8, which states that the
interests of fishing communities be taken into account when
implementing conservation and management measures.
[[Page 38111]]
Response: NMFS agrees. As stated in the response to Comment 8, the
three-tier program is expected to cause little change in the inter-port
distribution of fixed gear sablefish landings, and less variation in
inter-port distribution than would have occurred under a long-term
system of equal cumulative limits. All of the vessels involved in this
fishery are considered small businesses, and all of the boats in the
fishery deliver their fish to coastal communities. National standard 8,
which addresses the dependence of fishing communities on fishery
resources, does not constitute a basis for allocating resources to
specific fishing communities.
Comment 25: One commenter stated that a longer fishery, even if it
is longer only by several days, allows him to keep and handle his
bycatch. Open derbies lead to people setting out more gear than they
can haul in a given time, resulting in a waste of gear and hooked fish.
At the other end of the scale, a monthly trip limit fishery would
unquestionably lead to high-grading and increased bycatch on a regular
basis. The commenter noted that this longer fishery will also allow him
to handle his gear more carefully, making him less likely to lose gear.
By minimizing bycatch, the three-tier program complies with national
standard 9.
Response: Bycatch can occur for many reasons. In a derby fishery,
where all vessels are participating at their highest possible rates of
fishing, fishers may not have the time to fish in a selective manner.
Fish would be hauled on board as quickly as possible without regard to
species or size, and then a portion would be discarded according to
market or regulatory constraints on what catch should and may be
retained. Conversely, in a fishery where all participants have ample
time to sort through their catch and fish until their vessels are
filled with the highest value fish, many lower value fish may be
discarded in the process. The three-tier program will allow some
fishers to slow their rates of fishing and to improve the selectivity
of their fishing methods. To some extent, however, selectivity in
fishing is a matter of personal ethics and fishing skill. NMFS does
agree that a slower paced fishery should have the much-desired result
of reducing gear abandonment and ghostfishing by lost gear.
Comment 26: The three-tier program provides increased safety with
respect to the status quo derby because fishers will know how much fish
they are allowed to catch and the season can be tailored to more
favorable weather patterns. The three-tier program allows 6 days
fishing while an unrestricted derby would probably allow 2. Several
commenters noted that any increase in the number of days in the
fishery, even if it is from 2 days to 6 days, is a safety improvement.
These commenters concluded that, for these reasons, the three-tier
program complies with national standard 10, which states that
``Conservation and management measures shall, to the extent
practicable, promote the safety of human life at sea.'' Finally, one
commenter noted with irony that if the Council had been able to
implement an IFQ program, the fishery could be several months long,
rather than several days long.
Response: NMFS agrees that a 6-day fishery provides greater safety
than a 2-day fishery. It is unfortunate that overcapitalization and the
reduced 1998 sablefish harvest guideline level have severely shortened
the fishery duration. NMFS expects that the primary safety benefit of a
6-day fishery over a 2-day fishery will occur for the approximately
one-third of the fleet easily able to take the allotted cumulative
limit during the time allowed. For the other two-thirds of the fleet
still operating in the derby mode, the effect of this action on safety
is uncertain. Income will increase as the length of the fishery
increases, and it is possible that risk-taking behavior will decline as
the amount of potential income increases. However, the Council decision
documents show that these are not conclusive findings.
NMFS also agrees that IFQ management for this fishery nwould allow
fishers adequate time to catch sablefish poundage associated with their
tiers. If this fishery were managed with an IFQ program (an option
currently prohibited under the Magnuson-Stevens Act), regardless of how
the available catch were allocated between permits, each permit owner
would likely be able to catch his or her entire allocation at any time
during the year, and likely without landings limits.
Comment 27: The three-tier program complies with section 303(b)(6)
of the Magnuson-Stevens Act, which states that, ``Any fishery
management plan which is prepared by any Council, or by the Secretary,
with respect to any fishery, may -- (6) establish a limited access
system for the fishery in order to achieve optimum yield if, in
developing such system, the Council and the Secretary take into
account--(A) present participation in the fishery, (B) historical
fishing practices in, and dependence on, the fishery, (C) the economics
of the fishery, (D) the capability of fishing vessels used in the
fishery to engage in other fisheries, (E) the cultural and social
framework relevant to the fishery and any affected fishing communities,
and (F) any other relevant considerations.'' In making its
recommendations for this program, the Council considered all of the
factors required under this section and, has therefore, met the
requirements of this section.
Response: NMFS agrees, see also response to Comment 2.
Comment 28: As stated in the proposed rule for the three-tier
program, the Council initially decided not to allow permit owners with
permits that were the result of a combination of multiple permits to
determine their tier placement based on the combined catch histories of
those original permits. This decision was based on a study that showed
that no individuals currently operating in the fishery would be
affected by that restriction. After further study, however, analysts
showed that this first assumption was incorrect and that this decision
would negatively affect a few individuals who had combined their
permits long before discussions of the three-tier program. We the
commenters who would have been harmed by this action, supported the
Council's March 1998 recommendation to allow permits that were a result
of a combination made before March 12, 1998, to combine their
cumulative catch histories for tier qualification status.
Response: NMFS agrees. The Council's initial recommendation on
this issue was based on an incorrect analysis. After receiving more
complete information, the Council revised that recommendation to allow
permits that were the result of a combination of multiple permits to
receive tier placement based on the combined cumulative catch histories
of the permits that went into the combination. Regulatory language
detailed in the proposed rule has been changed to reflect public and
Council comments on this issue.
Comment 29: One commenter supports the three-tier program, but
would like to be allowed to set his pots for 24 hours before the
opening of the regular fishery, since it takes at least 48 hours for
him to set all of his pots.
Response: As stated in the response to Comment 7, in 1995 and
1996, pot fishers were allowed to set their gear before the start of
the regular fishery. Longliners were opposed to this practice because
it gave pot fishers the chance to choose and then monopolize premium
fishing ground positions before the start of the derby. Because of
these concerns and because the 1997 10-day fishery period was expected
to provide all pot gear participants with sufficient time to set and
tend their gear, this pot pre-set
[[Page 38112]]
option was not allowed in the 1997 regular fishery. The Council
reconsidered a pot pre-set allowance for the three-tier system, but
concluded that the tiered cumulative limits would constrain pot fisher
catch levels enough so that they would not need to fish at a speed that
would require a pre-set allowance.
Comment 30: Several commenters who have participated in and/or
have studied the Alaska halibut and sablefish IFQ program support
future consideration of an IFQ program in the fixed gear sablefish
fishery once the Magnuson-Stevens Act moratorium is lifted.
Response: A Council may not submit and the Secretary may not
approve or implement an IFQ program before October 1, 2000. However, a
Council may begin development of an IFQ program before that date.
Comment 31: The proposed rule would not implement an IFQ system.
Under the Magnuson-Stevens Act and NMFS interpretation, for a program
to be an IFQ program, it must grant permits that give recipients a
privilege to harvest a specified percentage of the total annual catch
(TAC). Unless sold or otherwise disposed of, that permit holder has an
annual, guaranteed privilege to harvest that same percentage of the
TAC. With the three-tier program, no person is guaranteed a percent of
the harvest, fishers are merely separated into three different tiers
with three different cumulative limits that they can then try to
achieve in the given season. The ``overhead'' system embedded in the
rule ensures that this program is not an IFQ system. The proposed rule
would ensure that there is no guaranteed right to a specific amount of
fish--the antithesis of an IFQ system.
Response: NMFS agrees that the three-tier program is not an IFQ
program. See response to Comment 9.
Classification
Under 5 U.S.C. 553(d)(3), the Assistant Administrator finds good
cause to waive the 30-day delay in effectiveness for this rule. August
1 was chosen as a season opening date to promote safety and to allow
fishers to participate in other fisheries aside from this directed
sablefish fishery. In order to avoid a 2 to 3 day derby fishery this
year and to allow the limited entry fixed gear sablefish fishery to
fully benefit from the increased vessel safety of holding the regular
and consequent mop-up seasons before the most difficult autumn weather,
this rule must be made effective to allow implementation of the three-
tier program before the August 1, 1998, start date of the regular
season. To this extent, to delay the effectiveness of this rule would
be contrary to the public interest.
This final rule has been determined to be not significant for the
purposes of E.O. 12866.
The Final Regulatory Flexibility Analysis (FRFA) consists of the
FRFA supplemental analysis prepared by NMFS, the IRFA (as submitted by
the Council and supplemented by the preamble to the proposed rule (63
FR 19878, April 22, 1998)), and the preamble to this final rule. 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 that are engaged in the fishery.
There are 163 limited entry, fixed gear permit owners with
sablefish endorsements. All of the permit owners and vessels in the
Pacific Coast, limited entry, fixed gear fleet are considered small
entities. As indicated in the FRFA for this action, 42 permit holders
with sablefish endorsements (26 percent) would suffer a greater than 5
percent loss in total gross fishing revenue over what they would have
been expected to earn if the open competition derby management had been
continued for 1998.
The Council initially reviewed six different management options
aside from status quo, open competition derby management. Of those six
options, two options would have resulted in fewer than 26 percent of
endorsement holders suffering a greater than 5 percent loss in gross
annual revenue. The Council considered continuing the status quo derby
undesirable, expecting that a future policy of unrestricted derby
fishing would cause significant negative social and economic impacts to
fishery participants, with potentially grave safety consequences. An
option to continue the 1997 style fishery management of a single period
equal cumulative limit regime would have resulted in 18 percent of
endorsement holders suffering a greater than 5 percent loss in total
gross annual revenue. Although this option would have resulted in fewer
businesses with significant economic loss, those businesses that would
have lost economically under this option would have lost revenue to a
greater degree than those businesses losing revenue under any of the
tier options. This option would have also resulted in a greater
proportion of the harvest being reallocated amongst fleet members than
the proportion of harvest reallocation under the three-tier management
program implemented by this rule. There is a higher likelihood that a
management measure to implement a long-term policy of equal cumulative
limits would have been found to have significant economic impacts to
fleet participants on the basis of the standard that questions whether
more than 2 percent of participating small businesses would have been
forced to cease operations. Thus, while the option chosen by the
Council results in a greater number of businesses with significant
economic losses, the impacts of that option are spread more evenly
through the fleet. The Council also specifically decided when it
recommended a single period equal cumulative limit for 1997 that it
would not recommend continuing such an option for 1998 because of the
severe reallocative impacts.
The other option that would have resulted in fewer than 26 percent
of permit owners suffering a greater than 5 percent loss in gross
annual revenue was a four-tiered access system. This option was
projected as leading to greater than a 5 percent loss in gross annual
revenue for 22 percent of permit holders with sablefish endorsements.
One major impediment to Council recommendation of a four-tiered option
was that maintaining an overhead to prevent designation as an IFQ
system would have been more difficult under a four-tiered option. The
greater the number of tiers in a tiered access system, the more likely
it is that fishers will be able to achieve their tier limits, and the
greater the likelihood that the agency would find the program to
function as an IFQ. In an IFQ fishery, all fishers would be allowed to
use as much time as necessary to catch whatever cumulative limits are
available for the year. The Council chose the option that would have
the least impact on fishers' revenues while still maintaining enough
overhead to avoid the NMFS IFQ classification criteria and eliminating
derby management.
In addition to the single-period equal cumulative limit fishery,
the three-tier options, the four-tier option and the status quo derby,
the Council considered setting a year-round series of equal, monthly
cumulative limits as an
[[Page 38113]]
option that could offer greater safety benefits than the three-tier
program. However, a year-round fishery would have resulted in the
greatest reallocation of catch among participants, and would have had
significant, negative economic consequences for the greatest number of
fleet participants. The Council was also concerned that this option
would increase discard of sablefish. Finally, the Council expected that
the effects of year-round cumulative trip limits in this fishery would
be contrary to Magnuson-Stevens Act national standards on fairness and
equity, and on providing for sustained participation and minimizing
adverse effects on fishing communities.
This action is not expected to result in 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 will be forced out of
business.
In summary, all of the affected entities are small entities.
Therefore, there are no special provisions that can be inserted to
affect small entities differently than large entities. The losses from
one small entity turn to gains for another small entity. In order to
eliminate the traditional, unrestricted derby fishery, some small
entities will suffer negative economic impacts. The Council selected
the legally-available option that would eliminate the traditional
unrestricted derby, while minimizing the reallocation of catch.
This rule contains a collection-of-information requirement subject
to the Paperwork Reduction Act (PRA) that has been approved by the OMB
under OMB Control Number 0648-0203. Notwithstanding any other provision
of the law, no person is required to respond to, nor shall any 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 applies only to
those permit owners who disagree with the initial NMFS tier assignment,
and who wish to provide documentation to prove that they have in fact
met the tier qualifications for the tier that they wish to have
assigned to their permits. It is expected that the public reporting
burden will be 2 hours to make an initial application and possible
appeal. This is a one-time only collection-of-information, and this
rule imposes no annual reporting and recordkeeping burden. 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 Mariana Islands,
Reporting and recordkeeping requirements.
Dated: July 9, 1998.
David L. Evans,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 660 is amended
as follows:
PART 660--FISHERIES OFF WEST COAST STATES AND IN THE WESTERN
PACIFIC
l. The authority citation for part 660 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. Section 660.323 is amended by revising paragraph (a)(2) to read
as follows:
Sec. 660.323 Catch restrictions.
(a) * * *
(2) Nontrawl sablefish. This paragraph (a)(2) applies to the
regular and mop-up seasons for the nontrawl limited entry sablefish
fishery north of 36 deg. N. lat., except for paragraphs (a)(2)(ii),
(iv), and (vii) of this section, which also apply to the open access
fishery north of 36 deg. N. lat. Limited entry and open access fixed
gear sablefish fishing south of 36 deg. N. lat. is governed by routine
management measures imposed under paragraph (b) of this section.
(i) Sablefish endorsement. A vessel may not participate in the
regular or mop-up season for the nontrawl limited entry fishery, unless
the vessel's owner holds (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.
(ii) Pre-season closure--open access and limited entry fisheries.
(A) Sablefish taken with fixed gear in the limited entry or open access
fishery in the EEZ may not be retained or landed during the 48 hours
immediately before the start of the regular season for the nontrawl
limited entry sablefish fishery.
(B) All fixed gear used to take and retain groundfish must be out
of EEZ waters during the 48 hours immediately before the opening of the
regular season for the nontrawl limited entry sablefish fishery.
(iii) Regular season--nontrawl limited entry sablefish fishery. (A)
The Regional Administrator will announce a season for waters north of
36 deg. N. lat. to start on any day from August 1 through September 30,
based on consultations with the Council, taking into account tidal
conditions, Council meeting dates, alternative fishing opportunities,
and industry comments.
(B) During the regular season, each vessel with a limited entry
permit with a sablefish endorsement that is registered for use with
that vessel may land up to the cumulative trip limit announced for the
tier to which the permit is assigned. Each permit will be assigned to
one of three tiers. A cumulative trip limit is the maximum amount of
sablefish that may be taken and retained, possessed, or landed per
vessel in a specified period of time, with no limit on the number of
landings or trips.
(C) The Regional Administrator will annually calculate the length
of the regular season and the size of the cumulative trip limit for
each tier in accordance with the process specified in chapter 1 of the
EA/RIR/IRFA for ``Fixed Gear Sablefish Tiered Cumulative Limits,''
dated February 1998, which is available from the Council. The season
length and the size of the cumulative trip limits will vary depending
on the amount of sablefish available for the regular and mop-up
fisheries and the projected harvest for the fishery. The season will be
set to be as long as possible, under the constraints described in
chapter 1 of the EA/RIR/IRFA, up to a maximum season length of 10 days.
(D) During the regular and mop-up season, limited entry nontrawl
sablefish fishers may also be subject to trip limits to protect
juvenile sablefish.
(E) There will be no limited entry, daily trip limit fishery during
the regular season.
(iv) Post-season closure--limited entry and open access. No
sablefish taken with fixed gear north of 36 deg. N. lat. during the 30
hours immediately after the end of the regular season for the nontrawl
limited entry sablefish fishery, may be retained. Sablefish taken and
retained during the regular season may be possessed and landed during
the 30-hour period. Gear may remain in water during the 30-hour post-
season closure. Fishers may not set or pull from the water fixed gear
used to take and retain groundfish during the 30-hour post-season
closure.
(v) Mop-up season--limited entry fishery. A mop-up season to take
the remainder of the limited entry nontrawl allocation will begin in
waters north of
[[Page 38114]]
36 deg. N. lat. about 3 weeks, or as soon as practicable, after the end
of the regular season. During the mop-up fishery, a cumulative trip
limit will be imposed. A cumulative trip limit is the maximum amount of
sablefish that may be taken and retained, possessed, or landed per
vessel in a specified period of time, with no limit on the number of
landings or trips. The length of the mop-up season and the amount of
the cumulative trip limit, will be determined by the Regional
Administrator in consultation with the Council or its designees, and
will be based primarily on the amount of fish remaining in the limited
entry nontrawl allocation, the amount of sablefish needed for the
remainder of the daily trip limit fishery, and the number of mop-up
participants anticipated. The Regional Administrator may determine that
too little of the nontrawl allocation remains to conduct an orderly or
manageable fishery, in which case there will not be a mop-up season.
There will be no limited entry daily trip limit fishery during the mop-
up season.
(vi) Other announcements. The dates and times that the regular
season starts and ends (and trip limits on sablefish of all sizes are
resumed), the size of the cumulative trip limits for the three tiers in
the regular fishery, the dates and times for the 30-hour post-season
closure, the dates and times that the mop-up season begins and ends,
and the size of the cumulative trip limit for the mop-up fishery will
be announced in the Federal Register, and may be modified. Unless
otherwise announced, these seasons will begin and end at 12 noon on the
specified date.
(vii) Trip limits. Trip and/or frequency limits may be imposed in
the limited entry fishery before and after the regular season, and
after the mop-up season, under paragraph (b) of this section. Trip and/
or size limits to protect juvenile sablefish in the limited entry or
open-access fisheries also may be imposed at any time under paragraph
(b) of this section. Trip limits may be imposed in the open-access
fishery at any time under paragraph (b) of this section.
* * * * *
3. In Sec. 660.333, the first sentence of paragraph (c)(1),
paragraphs (d) introductory text, (f)(2), and (h)(2)(iii) are revised
to read as follows:
Sec. 660.333 Limited entry fishery--general.
* * * * *
(c) Transfer and registration of limited entry permits and gear
endorsements. (1) When the SFD transfers a limited entry permit, the
SFD will reissue the permit in the name of the new permit holder with
such gear and, if applicable, species endorsements and tier assignments
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 provide evidence that qualification
requirements are met. The owner of a permit endorsed for longline or
trap (or pot) gear applying for a sablefish endorsement or a tier
assignment under Sec. 660.336(c) or (d) has the burden to submit
evidence to prove that qualification requirements are met. The
following evidentiary standards apply:
* * * * *
(f) * * *
(2) Gear endorsements, sablefish endorsements, and sablefish tier
assignments may not be transferred separately from the limited entry
permit.
* * * * *
(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. If two or more
permits with sablefish endorsements are combined, the new permit will
receive the same tier assignment as the tier with the largest
cumulative landing limit of the permits being combined. 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. Harvest capacity ratings for fractions
of a foot in vessel length will be determined by multiplying the
fraction of a foot in vessel length by the difference in the two
ratings assigned to the nearest integers of vessel length. The length
rating for the combined permit is that indicated for the sum of the
vessel harvest capacity ratings for each permit being combined. If that
sum falls between the sums for two adjacent lengths on Table 2 of this
part, the length rating shall be the higher length.
* * * * *
4. In Sec. 660.336, the section heading paragraphs (a)(1), (a)(2),
(b) introductory text, (b)(1), (c) heading, and paragraph (c)(1), are
revised; and paragraphs (b)(3), (d), and (e) are added to read as
follows:
Sec. 660.336 Limited entry permits--sablefish endorsement and tier
assignment.
(a) * * *
(1) A sablefish endorsement with a tier assignment will be affixed
to the permit and will remain valid when the permit is transferred.
(2) A sablefish endorsement and its associated tier assignment are
not separable from the limited entry permit, and therefore may not be
transferred separately from the limited entry permit.
(b) Endorsement and tier assignment qualifying criteria. A
sablefish endorsement will be affixed to any limited entry permit that
meets the sablefish endorsement qualifying criteria and for which the
owner submits a timely application. Limited entry permits with
sablefish endorsements will be assigned to one of three different
cumulative trip limit tiers, based on the qualifying catch history of
the permit.
(1) Permit catch history will be used to determine whether a permit
meets the qualifying criteria for a fixed gear sablefish endorsement
and to determine the appropriate tier assignment for endorsed permits.
Permit catch history includes the catch history of the vessel(s) that
initially qualified for the permit, and subsequent catch histories
accrued when the limited entry permit or permit rights were associated
with other vessels. The catch history of a permit also includes the
catch of any interim permit held by the current owner of the permit
during the appeal of an initial NMFS decision to deny the initial
issuance of a limited entry permit, but only if the appeal for which an
interim permit was issued was lost by the appellant, and the owner's
current permit was used by the owner in the 1995 limited entry
sablefish fishery. The catch history of an interim permit where the
full ``A'' permit was ultimately granted will also be considered part
of the catch history of the ``A'' permit. If the current permit is the
result of the combination of multiple permits, then for the combined
permit to qualify for an endorsement, at least one of the permits that
were combined must have had sufficient sablefish history to qualify for
an endorsement; or the permit must qualify based on catch occurring
after it was combined, but taken within the qualifying period. If the
current permit is the result of the combination of multiple permits,
the combined catch histories of all of the permits that were combined
to create a new permit before March 12, 1998, will
[[Page 38115]]
be used in calculating the tier assignment for the resultant permit,
together with any catch history (during the qualifying period) of the
resultant permit. Only sablefish catch regulated by this part that was
taken with longline or fish trap (or pot) gear will be considered for
this endorsement. Sablefish harvested illegally or landed illegally
will not be considered for this endorsement.
* * * * *
(3) Only limited entry, fixed gear permits with sablefish
endorsements will receive cumulative trip limit tier assignments. The
qualifying criteria for Tier 1 are: At least 898,000 lb (406,794 kg)
cumulative round weight of sablefish caught with longline or trap (or
pot) gear over the years 1984 through 1994. The qualifying criteria for
Tier 2 are: At least 380,000 lb (172,365 kg), but no more than 897,999
lb (406,793 kg) cumulative round weight of sablefish caught with
longline or trap (or pot) gear over the years 1984 through 1994. Fixed
gear permits with less than 380,000 lb (172,365 kg) cumulative round
weight of sablefish caught with longline or trap (or pot) gear over the
years 1984 through 1994 qualify for Tier 3. All catch must be sablefish
managed under this part. Sablefish taken in tribal set aside fisheries
does not qualify.
(c) Issuance process for sablefish endorsements. (1) The SFD has
notified each limited entry, fixed gear permit holder, by letter of
qualification status, whether Pacific States Marine Fisheries
Commission's Pacific Fisheries Information Network (PacFIN) records
indicate that his or her permit qualifies for a sablefish endorsement.
A person who has been notified by the SFD, by letter of qualification
status, that his or her permit qualifies for a sablefish endorsement
will be issued a revised limited entry permit with a sablefish
endorsement if, by November 30, 1998, that person returns to the SFD
the endorsement application and pays the one-time processing fee. No
new applications for sablefish endorsements will be accepted after
November 30, 1998.
* * * * *
(d) Issuance process for tier assignments. (1) The SFD will notify
each owner of a limited entry permit with a sablefish endorsement, by
letter of qualification status, of the tier assignment for which his or
her permit qualifies, as indicated by PacFIN records. The SFD will also
send to the permit owner a tier assignment certificate.
(2) If a permit owner believes there is sufficient evidence to show
that his or her permit qualifies for a different tier than that listed
in the letter of qualification status, that permit owner must, within
30 days of the issuance of the SFD's letter of qualification status,
submit information to the SFD to demonstrate that the permit qualifies
for a different tier. Section 660.333(d) sets out the relevant
evidentiary standards and burden of proof.
(3) After review of the evidence submitted under paragraph (d)(2)
of this section, and any additional information the SFD finds to be
relevant, the SFD will issue a letter of determination notifying a
permit owner of whether the evidence submitted is sufficient to alter
the initial tier assignment. If the SFD determines the permit qualifies
for a different tier, the permit owner will be issued a revised tier
assignment certificate once the initial certificate is returned to the
SFD for processing.
(4) If a permit owner chooses to file an appeal of the
determination under paragraph (d)(3) of this section, the appeal must
be filed with the Regional Administrator within 30 days of the issuance
of the letter of determination (at paragraph (d)(3) of this section).
The appeal must be in writing and must allege facts or circumstances,
and include credible evidence demonstrating why the permit qualifies
for a different tier assignment. The appeal of a denial of an
application for a different tier assignment will not be referred to the
Council for a recommendation under Sec. 660.340(e).
(5) Absent good cause for further delay, the Regional Administrator
will issue a written decision on the appeal within 30 days of receipt
of the appeal. The Regional Administrator's decision is the final
administrative decision of the Department of Commerce as of the date of
the decision.
(e) Tier assignment certificates. For the 1998 season only, permit
holders with sablefish endorsements will be issued certificates of tier
assignment that are to be kept with and are considered part of their
limited entry permits. When limited entry permit holders renew their
permits for 1999, tier assignments for those limited entry permit
holders with sablefish endorsements will be indicated directly on the
limited entry permit.
[FR Doc. 98-18751 Filed 7-10-98; 9:51 am]
BILLING CODE 3510-22-F
