[Federal Register Volume 62, Number 166 (Wednesday, August 27, 1997)]
[Rules and Regulations]
[Pages 45350-45357]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-22709]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 660
[Docket No. 970520120-7198-02; I.D. 040297A]
RIN 0648-AJ19
Fisheries Off West Coast States and in the Western Pacific;
Pacific Coast Groundfish Fishery; 1997 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
for the 1997 limited entry, fixed gear
[[Page 45351]]
sablefish fishery north of 36 deg. N. lat. This rule also implements
long-term changes to the management measures for this fishery and for
the limited entry, fixed gear sablefish fishery south of 36 deg. N.
lat. In addition to these regulatory measures, NMFS also announces a
1997 season start date of August 25 for the limited entry, fixed gear
regular sablefish season north of 36 deg. N. lat., a season length of 9
days, a season end date of September 3, and an equal cumulative landing
limit of 34,100 lbs. These actions are intended to provide qualified
fixed gear fishers the opportunity to harvest the 1997 fixed gear
allocation and to reduce the risk to human life and safety inherent in
the current ``derby'' fishery.
DATES: Effective August 21, 1997.
ADDRESSES: Copies of the Environmental Assessment (EA)/Regulatory
Impact Review (RIR)/Initial Regulatory Flexibility Analysis (IRFA), and
the Final Regulatory Flexibility Analysis (FRFA) for this action are
available from Lawrence D. Six, Executive Director, Pacific Fishery
Management Council, 2130 SW Fifth Avenue, Suite 224, Portland, OR
97201.
FOR FURTHER INFORMATION CONTACT: William L. Robinson at 206-526-6140,
Rodney McInnis at 562-980-4040, or the Pacific Fishery Management
Council at 503-326-6352.
SUPPLEMENTARY INFORMATION: NMFS issues this final rule to implement a
recommendation from the Pacific Fishery Management Council (Council),
under the authority of the 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 (62 FR 30305, June 3,
1997) fully described the background and rationale for the Council's
recommendations. NMFS requested public comments on this action through
July 3, 1997. NMFS received three letters during the comment period,
which are addressed later in the preamble to this final rule.
Recommendations made at the June 1997 Council meeting and the comments
received on the proposed rule resulted in the changes to the regulatory
text of the proposed rule that are explained below.
In summary, Council recommendations from the October 1996 and March
1997 meetings strengthened the separation of sablefish fishing effort
north and south of 36 deg. N. lat. New management schemes that will
improve safety to fishery participants were recommended for each area.
Changes From the Proposed Rule
NMFS either received Council recommendations on, or consulted with
the Council on the changes to the proposed rule described in this
section.
In March 1997, the total 1996 harvest for the limited entry, fixed
gear, daily trip limit fishery for sablefish was estimated at 374 mt
(825,000 lb). When the Council made its management recommendations for
the limited entry, fixed gear primary (regular plus mop-up) fishery,
the Council expressed an expectation that the 1997 daily trip limit
fishery might exceed the 1996 total harvest by as much as 11 mt (25,000
lb). NMFS mistakenly wrote this expectation into the codified rule as a
guideline for the total harvest for the daily trip limit fishery. As
described below in Comment 1, after receiving updated information, the
Council offered a correction to the proposed rule that the 385 mt
(850,000 lb) was not intended as a harvest target. NMFS changed the
regulatory text to eliminate the reference to the 385 mt (850,000 lb)
after receiving the Council's comment.
At the June Council meeting, public comment strongly supported and
the Council recommended a season start date of August 25 for the
limited entry, fixed gear equal cumulative limit (or regular) fishery.
The regulatory language from the proposed rule has been altered from
describing a framework for a season to setting a season to start on
August 25 for the 1997 fishery. However, as NMFS stated at that
meeting, administrative appeals to denials of sablefish endorsements
will not be completed before mid-September. Thus, some permit holders
may receive a sablefish endorsement too late to participate in the
fishery that begins August 25. To reconcile this conflict, the regular
season will still start on August 25 for endorsement holders; but, an
auxiliary regular season will also occur for successful appellants
whose appeals are resolved after August 25. The start date of the
auxiliary regular season will be announced in the Federal Register, and
is expected to occur in mid-September, preceding the mop-up portion of
the fishery.
This rule will be published very close to the start date of the
regular season, primarily because the Council was unable to make final
recommendations on this issue until its March 1997 meeting. Under this
time constraint, NMFS decided to save time, reduce publication
expenses, and limit public confusion by announcing the regular season
start date, duration and amount of the cumulative limit with this rule.
These announcements result in changes to the 1997 codified regulations
only. NMFS expects that the public would prefer the convenience of
having changes to management measures and the 1997 season structure in
one document, rather than in two separate documents published within
days of each other.
In March 1997, the Council recommended a season structure for the
1997 limited entry, fixed gear regular sablefish fishery of a no more
than 10-day fishery, with equal cumulative limits for all permit
holders with sablefish endorsements. After consulting with the
Council's Groundfish Management Team (GMT) at and subsequent to the
June 1997 Council meeting to set the exact number of days in the
fishery and the equal cumulative limit, NMFS has decided on a nine-day
season starting at noon August 25, and ending at noon, September 3,
1997, with an equal cumulative limit of 34,100 lbs.
A final change from the proposed rule, as explained below in the
response to Comment 2, is to allow each permit only one cumulative
limit in the regular fishery and one in the mop-up fishery. By linking
the cumulative limits to the permit as well as the vessel, multiple
vessels will not be able to use the same permit during the cumulative
limit periods to land multiple cumulative limits on that single permit.
This problem will be dealt with in the long term through a rule that
has been recommended by the Council, which has not been issued, that
limits the timing and frequency of permit transfers.
Management Measures for 1997 Only
For 1997 only, the limited entry, fixed gear sablefish fishery
north of 36 deg. N. lat. will consist of a 9-day regular season with a
single cumulative limit, equal for all vessels. 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. In addition, only one regular
season and one mop-up season cumulative limit may be landed on a
permit, so that no one permit may be used by multiple vessels to the
land multiple cumulative limits. The cumulative limit of 34,100 lbs and
the 9-day duration of the fishery are based on the number of permits
qualifying for the sablefish endorsement and on the harvest taken in
the daily trip limit fishery.
The 1997 limited entry, regular fixed gear season will begin at
noon on
[[Page 45352]]
Monday, August 25, 1997. Only holders of limited entry permits with
sablefish endorsements may participate in the fishery. If a limited
entry, fixed gear permit holder's application for a sablefish
endorsement is on appeal at the time of the season start date, that
permit holder may not participate in the regular season. NMFS expects
that the endorsement appeal process will be complete by mid-September.
Following the completion of the endorsement appeal process, there will
be an auxiliary regular season, which will give successful appellants
the opportunity to fish towards the same cumulative limit and for the
same number of days as those persons participating in the regular
fishery. NMFS will announce the start date of the auxiliary regular
season in the Federal Register before the start of that season.
According to the Council's recommendation, as described in the
March 1997 EA/RIR for this issue, the duration of the equal cumulative
limit fishery was to be set as close to 10 days as possible, and with a
harvest ``overhead'' of at least 25 percent using the best estimate of
projected harvest, and with an overhead of at least 15 percent using a
reasonable ``worst case'' scenario. ``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 total allowable harvest for the
regular and auxiliary regular fishery will be the amount of the limited
entry, fixed gear sablefish allocation in excess of the amount that is
expected to be taken by the daily trip limit fishery. The Council is
managing the daily trip limit fishery north of 36 deg. N. lat. so that
its 1997 harvest does not substantially exceed its 1996 harvest of 415
mt (915,000 lbs).
Estimates of the likely total harvest in the regular and auxiliary
regular fishery have been made conservatively in order to ensure that
the fishery does not exceed its total allocation. Because of the
provision of overhead and the conservative management described above,
the regular and auxiliary regular fishery is not expected to 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 and auxiliary
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 initial and auxiliary cumulative limit
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.
In 1997, there will be a 48-hour closure before the regular fishery
north of 36 deg. N. lat., during which time no fixed gear vessel
(limited entry and open access) may deploy gear used to take and retain
groundfish, or take and retain sablefish north of 36 deg. N. lat. The
1997 pre-season closure will begin at noon on August 23 and end at noon
on August 25, at the start of the fishery. All fixed gear used to take
groundfish must be out of the water during this period. For auxiliary
regular fishery participants, there will also be a 48-hour closure
before the start of that fishery, during which time the same rules that
govern the pre-season closure for the regular fishery apply just to
auxiliary regular fishery participants.
There will be no opportunities for either pot or longline fishers
to set their gear before the 1997 regular or auxiliary regular season
start times.
Management Measures for 1997 and Beyond
This rule introduces a framework that allows the start date of the
regular, north of 36 deg. N. lat., limited entry, fixed gear sablefish
season to be set for any day from August 1 through September 30. The
Administrator, Northwest Region, NMFS, will establish the season start
date after consulting with the Council, taking into account tidal
conditions, Council meeting dates, alternative fishing opportunities,
and industry comments.
To facilitate enforcement at the end of the regular season, there
will be a 48-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 for the 48 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 48-
hour period. In 1997, this 48-hour post-season closure will begin at
noon on September 3 and end at noon on September 5. Gear may remain in
the water during the 48-hour post-season closure; however, gear used to
take and retain groundfish may not be set or retrieved during this
period. In 1997, there will also be a 48-hour post-season closure after
the auxiliary regular season, for auxiliary fishery participants,
during which time auxiliary fishery participants must comply with the
rules set for all fixed gear fishers for the post-season closure at the
end of the regular season.
Outside of the regular season (the initial cumulative limit
fishery), the mop-up fishery, and the associated 48-hour closures,
there is generally a daily trip limit fishery for all vessels with
limited entry permits for pot or longline gear. Vessels with limited
entry permits for pot or longline gear, but without sablefish
endorsements, may not participate in the regular season or the mop-up
season; they may only harvest sablefish when the daily trip limit
fishery is open for limited entry vessels. The daily trip limit fishery
will be open during the time between the end of the 48-hour closure
following the cumulative limit period and the beginning of the mop-up
fishery.
Commencing at 12 noon local time (l.t.), September 5, 1997, the
daily trip limits for nontrawl 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 September 5, 1997, a daily trip limit may be landed
between 12 noon and 12 midnight l.t. Beginning at 0001 hours 1.t. on
September 6, 1997, daily trip limits will apply to the full 24 hours.)
A vessel participating in the regular fishery must begin landing its
catch before 12 noon l.t., September 5, 1997, 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 12
noon l.t. on September 5, 1997. The regular season trip limit for
sablefish smaller than 22 inches (56 cm) still applies.
The regular and mop-up seasons in the area south of 36 deg. N. lat.
have been eliminated. The daily trip limit fishery will continue in the
southern area during the time of the regular and mop-up seasons, and
associated closures north of 36 deg. N. lat. Southern area fishers will
be managed with the intent of providing a year-round trip limit
fishery, and those without sablefish endorsements may not move north to
take part in the primary northern season. There is a separate
Acceptable Biological Catch (ABC) for the waters south of 36 deg. N.
lat.
Southern area fixed gear sablefish fishing will henceforth be
managed under routine management measures imposed under 50 CFR
660.323(b). ``Routine'' management measures for sablefish include all
changes to trip and landing frequency limits for all gears. Reasons for
routine management measures include: To extend the fishing season; to
minimize disruption of traditional fishing and marketing patterns; to
reduce discards; to discourage target fishing while allowing
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small incidental catches to be landed; to allow small fisheries to
operate outside the normal season; and, for the open access fishery
only, to maintain landings at the historical proportions during the
1984-88 window period. This rule does not amend Sec. 660.323(b) but
appropriately references it. Trip limits for sablefish in this area
will be established in the annual specifications, and may be adjusted
during the fishing year.
Comments and Responses
The comments in 3 letters received during the public comment period
ending July 3, 1997, are summarized below. Comment 1 is a comment from
the Council itself, whose staff sent a letter with a correction to the
proposed rule. Comments 2 through 9 are comments sent by an individual
in opposition to the 1997 management regime. This letter included an
attachment of 13 letters of comment opposing equal allocation, sent
from industry participants to the Council during its consideration of
this issue, plus an additional letter comment sent by this same
individual to NMFS prior to the publication of the proposed rule, with
a report on fishery safety by a university economist. Comments 10
through 14 are comments from a letter of support sent by two
associations representing West Coast fishing vessel owners and fishers.
This letter raised specific issues concerning the Magnuson-Stevens Act
National Standards for fisheries management, as they apply to this
fishery.
Comment of Correction
Comment 1: The draft regulations for the 1997 season contain a
reference to a target harvest of 385 mt (850,000 lbs) for the daily
trip limit portion of the limited entry, fixed gear sablefish fishery.
It was not intended that this target value be included as part of the
codified regulations. Furthermore, more recent information indicated
that the daily trip limit fishery took a higher amount in 1996 (415 mt
(915,000 lb)), and more would be needed for 1997. The Council also
recognizes that further adjustments to the duration of the fishery and
the size of the cumulative limit may need to be made based on the
number of vessels that ultimately qualify for sablefish endorsements.
Response: The codified text from the proposed rule has been altered
to eliminate the reference. During its March 1997 meeting, the Council
recommended setting a target harvest for the primary fishery that would
leave about 385 mt (850,000 lb) for the daily trip limit fishery. The
goal of this recommendation was to allow some expansion in the daily
trip limit fishery over what it had harvested in 1996. The Council
expected that the total 1997 catch in the daily trip limit fishery
would expand slightly over the total 1996 catch. At that time, it was
estimated that the daily trip limit fishery had taken approximately 374
mt (825,000 lbs) in 1996, and might take as much as 385 mt (850,000
lbs) in 1997. By the June 1997 Council meeting, calculations of the
total 1996 sablefish harvest in the limited entry, daily trip limit
fishery were finalized at a total of 415 mt (915,000 lbs). If a cap of
385 mt (850,000 lbs) for the daily trip limit fishery were to remain in
the codified text, the daily trip limit fishery would be constrained
contrary to the logic of the Council's original recommendations.
Comments Opposing Rule
Comment 2: There are no restrictions on permit transfers. Permit
holders who are able to take either the cumulative limit before the end
of the cumulative limit period, or the mop-up limit before the end of
the mop-up period would be allowed to transfer their permits, which may
permit multiple boats to catch the limits during the times set for both
the cumulative limit and mop-up periods of the fishery.
Response: NMFS agrees. Therefore, the proposed rule has been
modified so that the cumulative limit is a period limit for the permit
as well as for the vessel. By linking the cumulative limits to both the
vessel and the permit, multiple vessels will not be able to make
multiple cumulative limit landings on the same permit during the
cumulative limit periods. This change is consistent with the intent of
the Council's recommendations for management of the 1997 limited entry,
fixed gear sablefish regular fishery. This problem will be dealt with
in the long term through a rule that has been recommended by the
Council, but not yet implemented, that would limit the timing and
frequency of permit transfers for all gear types.
Comment 3: For vessels unable to catch the cumulative limit within
the cumulative limit period, the fishery will still be an unsafe derby.
A report by a university economist argues that because the 1997 fishery
will increase the amount of time that lower-level harvesters will be in
a derby-like setting, the 1997 season is less safe than a derby.
Response: The Council debated at its October 1996 and March 1997
meetings whether the equal cumulative limit 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 allotted time testified at the
Council meeting 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 more safe manner. The U.S. Coast Guard also
testified on the safety hazards of derby fisheries and stated that the
longer the season, the safer the fishery. For vessels that are able to
catch the cumulative limit within the cumulative limit period, the
safety of the fishery will increase.
Comment 4: The equal cumulative limit system disregards historic
fishery participation levels and redistributes fish and income away
from high producers to low procedures and away from the pot sector to
the longline sector.
Response: As discussed in the preamble to the proposed rule, the
Council determined that the safety benefits that could be gained from
replacing the derby fishery with a slower-paced equal cumulative limit
fishery would outweigh the one-time negative impact that such a regime
would have on the highest producers in the fleet. The Council has
considered historic participation as demonstrated in the documents
produced for this action, Amendment 9, and the 1998 3-tier proposal.
Nonetheless, the Council chose to recommend the equal cumulative limit
for 1997 as the best short-term solution. At the June 1997 council
meeting, the Council recommended that NMFS implement a three-tiered
cumulative limit regime for managing the fishery in 1998 and beyond,
which should provide fishers with fishing opportunities more closely
aligned to past catch distribution.
Comment 5: Information at the March 1997 Council meeting indicated
that the 1996 daily trip limit fishery took 385 mt (850,000 lb).
Information on the 1997 daily trip limit fishery indicates that the
fishery has exceeded the 1996 catch. If the daily trip limit fishery
catch is higher than what was expected at the March 1997 Council
meeting, NMFS will be unable to implement a catch limit for the
cumulative limit fishery that will maintain the required overhead.
Response: As mentioned above, ``overhead'' is the amount by which
the harvest would exceed the expected catch if every eligible vessel
participates in the fishery and fully harvests its legal limit. The
concept of overhead is based on the premise that not all participants
in this fishery will harvest the cumulative limit. A fishery where all
participants have the opportunity to
[[Page 45354]]
catch a cumulative limit and they are all able to catch that limit
would be considered an individual fishing quota (IFQ). The Sustainable
Fisheries Act of 1996 put a moratorium on the implementation of new IFQ
programs until October 1, 2000.
Management measures for the limited entry, fixed gear sablefish
fishery have been carefully crafted to not violate the IFQ prohibition.
The Council has constrained the monthly limits in the daily trip limit
fishery to ensure that the total 1997 catch does not greatly exceed the
total 1996 daily trip limit fishery catch. With these constraints in
place, NMFS has structured the fishery to meet the Council's parameters
by adjusting the season length and trip limit level.
Comment 6: If NMFS reserves a portion of the catch available to the
cumulative limit fishery for successful appellants to the sablefish
endorsement application process to take during the time of the mop-up
fishery, there would be a redistribution of catch amounts between the
regular and mop-up portions of the fishery, which is not allowed under
the current regulations.
Response: The auxiliary regular fishery is part of the regular
fishery; it is not part of the mop-up fishery. The mop-up season will
be held after the auxiliary regular season. A reasonable estimate of
the amount needed for both regular seasons under the less conservative
scenario described in the EA/RIR for this issue has been made. This
estimate determined the duration and cumulative limit for the regular
seasons. The amount available to the mop-up portion of the fishery
will, as in the past, depend on the accuracy of the catch projections
and on the amount of harvest needed to accommodate the daily trip limit
fishery for the remainder of the year. As in years past, the NMFS
Regional Administrator may determine that too little of the fixed gear
allocation remains to conduct an orderly or manageable fishery, in
which case there would be no mop-up season. This division of catch and
establishment of an auxiliary season is not being implemented through
pre-existing regulations, but through this final regulation.
Comment 7: The mop-up season has a fairly small cumulative limit
for each participant and it is likely that every participant in the
mop-up fishery will be able to take that cumulative limit during the
mop-up cumulative limit during the mop-up period, there will be no
overhead and the fishery will be an IQ.
Response: The mop-up fishery does not exist independently of the
regular fishery and, in fact, may not even occur if all of the
sablefish available to the regular season is taken during the regular
season. Conservative management of the regular fishery to prevent the
total regular fishery catch from exceeding the amount available to that
fishery creates the probability that not all of the sablefish available
to the regular fishery will be taken during the regular fishery. The
regulations finalized by this rule allow for the possibility of a mop-
up in the event that not all of the sablefish available to the regular
fishery is taken during the regular fishery. NMFS expects that overhead
within the entire primary fishery, which is the regular fishery in
combination with the mop-up fishery, will be within the Council's
parameters of 15-25 percent. The structure of the mop-up fishery is
similar to the mop-up fishery under past derbies and under the proposed
three-tier system for 1998 and beyond.
Comment 8: Before actions taken at the June 1997 Council meeting,
the overhead suggested for the cumulative limit fishery was 15 percent
to 25 percent of the total estimated catch. Reserving a portion of the
catch for successful endorsement application appellants, allowing
transfers of permits during the fisheries, the higher than expected
daily trip limit fishery catch, and altering the division of catch
between the regular and mop-up portions of the fishery will absorb the
available overhead and allow each participant to catch his or her
cumulative limit, which would be an individual quota fishery.
Response: NMFS disagrees. As noted in the response to Comment 5
above, the cumulative limit and the overhead are calculated based on
the total amount of sablefish available to the fishery and the
projected harvest in the fishery. In addition, NMFS has eliminated the
potential problem that could result from permit transfers (see Comment
2). Altering the amount of fish available to the fishery, or the
projected total harvest does not necessarily eliminate the overhead, it
simply requires a recalculation of the cumulative limit and cumulative
limit period duration.
Comment 9: The Council recommended equal allocation for 1997
because NMFS did not have time to implement a 3-tiered cumulative limit
system in time for the 1997 season.
Response: The 1997 management regime of equal cumulative limit
fishery was recommended by the Council at its October 1996 meeting and
refined during its March 1997 meeting. During the discussions of this
issue at the October 1996 meeting, some industry members commented that
they would like to have the fishery managed as a tiered cumulative
limit regime. The Council agreed to set up an industry advisory
committee to discuss such an option for 1998.
The tiered management option had not been discussed or analyzed
prior to October 1996. The Council adopted the current management
regime for 1997 because it was the best available short-term
alternative to the derby. The Council did not adopt a tiered cumulative
limit option for 1997, because Council members and staff wished to have
sufficient time to consult with the public, design parameters for such
an option, and analyze the potential impacts of a tiered cumulative
limit program through at least two Council meetings, as required by the
FMP. NMFS implementation of a tiered cumulative limit program would
also require considerable time to initiate and complete the rulemaking
process, and to sort and analyze fisheries landings data so that
endorsed permit holders could be assigned to the correct tiers.
There was not enough time between November 1996 and July 1997 for
the two-meeting process, full Council pre- and post-decisional
analyses, the federal rule publication process, and tier implementation
by NMFS.
Comments Supporting Rule
Comment 10: Under the proposed rule, there would be a greater
opportunity to harvest more selectively for the higher valued
sablefish, resulting in fewer discards of lower value bycatch. The
proposed rule would slow the pace of the affected fisheries, and thus
reduce the abandonment of gear and the consequent mortality due to
``ghostfishing.'' Notably, a slower fishery than that described in the
proposed rule might result in an increased number of discards.
Response: Bycatch can occur for many reasons. In a derby fishery,
where all fishers 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. It is difficult to determine the optimal
point between these two scenarios for minimizing fishery discards. The
1997 management
[[Page 45355]]
regime certainly allows fishers to slow their rates of fishing over the
rates of previous years and improve the selectively of their fishing
methods. Selectivity in fishing, however, 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 11: By assuring a slower pace of harvesting in the affected
fisheries, the adoption of the proposed rule would result in improved
safety of life at sea. The proposed limited entry measures would allow
fishermen to time their harvesting activities so as to avoid dangerous
weather conditions. In addition, fishermen would be better able to
avoid fatigue and the attendant risk of accidental injury and death.
Response: NMFS agrees. If there had been a derby in 1997, it would
have been 3-4 days in duration. The management regime implemented by
this rule significantly improves safety in the fishery over a 3-4 day
derby.
Comment 12: The adoption of the proposed rule would ensure a
balance of the interests of all affected communities. While some
redistribution of landings would likely occur, sustained participation
would be assured for all communities, consistent with conservation
requirements of the Act. Any adverse effects would be minimized, to the
extent practicable, for all affected communities, by providing fair and
reasonable access to the fisheries for all participants.
Response: NMFS agrees. Access by all affected communities is still
maintained with this action. However, NMFS recognizes that, for 1997,
resources within the fishery will be reallocated between participants
in a manner inconsistent with historic participation levels.
Comment 13: The proposed rule is designed to ensure that
overfishing is prevented and that the optimum yield is achieved on a
continuing basis. The system of landing limits and time and area
closures, including the device of a mop-up fishery, allows close
control of the fishery to achieve optimum yield.
Response: NMFS agrees.
Comment 14: Several times the Federal court has held that the
Magnuson-Stevens Act provides the authority for the Secretary to
sacrifice the interests of some groups of fishermen, for the benefit,
as the Secretary sees it, of the fishery as a whole.
Response: NMFS agrees and has determined that the 1997 measures are
reasonable for the overall fishery this year. NMFS does, however,
support a 1998 management regime for this fishery that both achieves
both increased safety over prior year derbies and takes into account
historic fishing levels.
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
25 was chosen as a season opening date in order to promote safety and
to allow fishermen to participant in order fisheries aside from this
directed sablefish fishery. In order for the limited entry fixed gear
sablefish fishery to fully benefit from the increased vessel safety
produced by a longer season and not have the fishery delayed until
later in the year when safety could be compromised by worsening weather
conditions, this rule must be made effective to allow a regular season
for endorsed permit holders to begin August 25. 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 consists of the IRFA (as
submitted by the Council and supplemented by the preamble to the
proposed rule (62 FR 30305, June 4, 1997)), and a NMFS addendum
prepared for this final rule. All of the 164 vessels that are expected
to qualify for sablefish endorsements north of 36 deg. N. lat. and
participate in the 1997 limited entry, fixed gear sablefish fishery are
small entities. Approximately 38 operators (23 percent of expected
endorsed participants) are expected to suffer a loss of greater than 5
percent of their total gross fishing revenues, a ``substantial'' number
for the purposes of the RFA. There will likely be a 29 percent
redistribution of the harvest from traditionally high producers to
traditionally low producers, a redistribution of ex-vessel revenue of
about $2.5 to $3.0 million. Individuals in the top third of the fleet
in terms of production levels will experience reductions in sablefish
incomes, which will be funneled into distributed gains for the lower
producing two-thirds of the fleet. Thus, when looking at the fleet as a
whole, the impact on high producers would be mitigated by the benefit
to the low producers, which are also small businesses. The Council
initially reviewed five options for management in this fishery: N1--the
status quo; N2--a three week cumulative limit with a mop-up fishery;
N3--a three week cumulative limit with different limits for longline
and pot vessel; N4--trip size/frequency limits using three one-week
periods, with no mop-up fishery; and N5--three months of monthly trip
limits. The initial option chosen, N2, was determined by NMFS to
constitute an IFQ system, which is prohibited by the Magnuson-Stevens
Act until October 1, 2000. Without substantial changes, options N3-N5
would constitute IFQ's as well. To avoid the derby fishery the Council
chose to modify option N2, because it was the most feasible to be
implemented before the 1997 fishery. The option had already been
approved by the Council and was acceptable to the majority of
participants in the fishery. As modified the option would provide
sufficient ``overhead'' in uncaught fish so that it would not be
considered an IFQ. (See responses to comments 5 and 9 for a discussion
of overhead). There was insufficient time to modify previously rejected
options due to the considerable time required to initiate and execute a
more complex program and follow all requirements of the FMP. The
management alternative that would have had the least significant
economic impact to the fleet would have been the status quo derby, N1.
However, the Council decided to reduce the danger that the derby poses
to human life and safety and chose an available management alternative
that could be implemented in time for an August-September 1997 fishery.
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: August 21, 1997.
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
1. The authority citation for part 660 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
Subpart G--West Coast Groundfish Fisheries
2. Section 660.323 is amended by revising paragraph (a)(2) to read
as follows:
[[Page 45356]]
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) and
(iv) 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. In order to lawfully participate in the
regular, auxiliary regular, or mop-up season for the nontrawl limited
entry fishery, the owner of a vessel must hold (by ownership or
otherwise) a limited entry permit for that vessel, affixed with both a
gear endorsement for longline or trap (or pot) gear, and a sablefish
endorsement.
(ii) Pre-season closure--open access and limited entry fisheries.
(A) From 1200 local time (l.t.), August 23, 1997, until 1200 l.t.,
August 25, 1997, sablefish taken with fixed gear in the limited entry
or open access fishery in the EEZ north of 36 deg. N. lat. may not be
retained or landed. Beginning January 1, 1998, sablefish taken with
fixed gear in the limited entry or open access fishery in the EEZ north
of 36 deg. N. lat. may not be retained or landed during the 72 hours
immediately before the start of the regular season for the nontrawl
limited entry sablefish fishery.
(B) From 1200 l.t., August 23, 1997, until 1200 l.t., August 25,
1997, all fixed gear used to take and retain groundfish must be out of
EEZ waters north of 36 deg. N. lat. Beginning January 1, 1998, all
fixed gear used to take and retain groundfish must be out of EEZ waters
north of 36 deg. N. lat. during the 72 hours immediately before the
opening of the regular season for the nontrawl limited entry sablefish
fishery, except that pot gear used to take and retain groundfish may be
deployed and baited in the EEZ up to 24 hours immediately before the
start of the regular season.
(C) From August 21, 1997 through December 31, 1997, during the 48
hours immediately before the opening of the auxiliary regular season
for the nontrawl limited entry sablefish fishery, participants in the
auxiliary regular season may not retain or land sablefish, and must
have all fixed gear used to take and certain groundfish out of EEZ
waters.
(iii) Regular season--nontrawl limited entry sablefish fishery;
starting in 1998. The NMFS 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. During the
regular season, the limited entry nontrawl sablefish fishery may be
subject to trip limits to protect juvenile sablefish. The regular
season will end when 70 percent of the limited entry nontrawl
allocation has been or is projected to be taken. The end of the regular
season may be announced in the Federal Register either before or during
the regular season.
(iv) Post-season closure--limited entry and open access. (A) No
sablefish taken with fixed gear north of 36 deg. N. lat. may be taken
and retained from 1200 l.t., September 3, 1997, until 1200 l.t.,
September 5, 1997. Sablefish taken and retained during the regular
season may be possessed and landed during this 48-hour period. Gear may
remain in water during this 48-hour post-season closure. Fishers may
not set or pull from the water fixed gear used to take and retain
groundfish during the 48-hour post-season closure. At 1200 l.t. on
September 5, 1997, the daily trip limit regime will resume.
(B) From August 21, 1997, through December 31, 1997, for
participants in the auxiliary regular season, no sablefish may be taken
with fixed gear and retained during the 48 hours immediately after the
end of the auxiliary regular season of the nontrawl limited entry
sablefish fishery. Sablefish taken and retained during the auxiliary
regular season may be possessed and landed during that 48-hour period.
Gear may remain in water during the 48-hour post-season closure.
Auxiliary regular season participants may not set or pull from the
water fixed gear used to take and retain groundfish during the 48-hour
post-season closure. At the end of the post season closure, the daily
trip limit regime will resume.
(C) Beginning January 1, 1998, no sablefish taken with fixed gear
may be taken and retained during the 48 hours immediately after the end
of the regular season for the nontrawl limited entry sablefish fishery.
Sablefish taken and retained during the regular season may be possessed
and landed during that 48-hour period. Gear may remain in water during
the 48-hour post-season closure. Fishers may not set or pull from the
water fixed gear used to take and retain groundfish during the 48-hour
post-season closure. At the end of the post-season closure, the daily
trip limit regime will resume.
(v) Mop-up season--limited entry fishery. (A) A mop-up season to
take the remainder of the limited entry nontrawl allocation will begin
in waters north of 36 deg. N. lat. about 3 weeks after the end of the
regular season, or as soon as practicable thereafter. 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. No vessel may
land more than one cumulative limit. The length of the mop-up season
and the amount of the cumulative trip limit, including the time period
to which it applies, 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 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 daily trip limit
fishery during the mop-up season. At the end of the mop-up season, the
daily trip limit fishery will resume.
(B) From August 21, 1997 through December 31, 1997: No more than
one mop-up cumulative limit may be landed on each limited entry permit
with a sablefish endorsement.
(vi) Other announcements; starting in 1998. The dates and times
that the regular season starts and ends (and trip limits on sablefish
of all sizes are resumed), the dates and times for the 48-hour post-
season closure, the dates and times that the mop-up season begins and
ends, and the size of the 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) Regular season and auxiliary regular season; from August 21,
1997 through December 31, 1997--limited entry fishery. (A) The regular
season for the nontrawl limited entry sablefish fishery north of
36 deg. N. lat. will start at 1200 noon, l.t. on August 25, 1997, and
end at 1200 noon l.t. on September 3, 1997. During this period, each
vessel with a sablefish endorsement on its permit will have a
cumulative trip limit of 34,100 lb. 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. No more
[[Page 45357]]
than one regular season cumulative limit may be landed on each limited
entry permit with a sablefish endorsement. No vessel may land more than
one cumulative limit. Each vessel is subject to the following per-trip
limit for small sablefish: Sablefish smaller than 56 cm (22 in) total
length may comprise no more than 1,500 lb (680 kg) or 3 percent of all
legal sablefish 56 cm (22 in) (total length) or larger, whichever is
greater. There will be no daily trip limit fishery during the regular
season.
(B) Permit holders whose applications for sablefish endorsements
are under administrative appeal at the time the regular season begins
will not be allowed to participate in the regular season. There will be
a 9-day auxiliary regular season for permit holders whose sablefish
endorsements are granted after August 25. The season will be held
following the end of the appeal process. The auxiliary regular season
start date will be announced by the NMFS Regional Administrator and
published in the Federal Register. Each vessel participating in this
season will have a cumulative trip limit of 34,100 lb. No more than one
regular season cumulative limit may be landed on each limited entry
permit with a sablefish endorsement. No vessel may land more than one
cumulative limit. Each vessel is subject to the following per-trip
limit for small sablefish: Sablefish smaller than 56 cm (22 in) total
length may comprise no more than 1,500 lb (680 kg) or 3 percent of all
legal sablefish 56 cm (22 in) (total length) or larger, whichever is
greater.
(viii) Other announcements; from August 21, 1997 through December
31, 1997. The number of days in the mop-up season, dates and times that
the auxiliary regular, and mop-up seasons start and end (and trip
limits on sablefish of all sizes are resumed), dates of the pre- and
post-season closures for the auxiliary regular season, and the size of
the trip limit for the mop-up season will be announced in the Federal
Register and may be modified. Unless otherwise announced, these seasons
will begin and end at 1200 l.t. on the specified date.
* * * * *
[FR Doc. 97-22709 Filed 8-21-97; 5:04 am]
BILLING CODE 3510-22-M
