[Federal Register Volume 63, Number 77 (Wednesday, April 22, 1998)]
[Proposed Rules]
[Pages 19878-19887]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-10726]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 980406085-8086-00; I.D. 031198C]
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: Proposed rule; request for comments.

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SUMMARY: NMFS issues this proposed 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 would 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 would depend on the tier to which the permit is assigned, and 
tier assignment would be based on historical participation in the fixed 
gear sablefish fishery. Both the limited entry and open access fixed 
gear sablefish fisheries would be closed for 48 hours immediately 
before and for 30 hours immediately after the regular fishery. The 
preamble to this proposed rule discusses how these recommendations fit 
within long-term changes to management of this fishery that were made 
in 1997. Provisional 1997 regulatory language also would be updated by 
this proposed 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: Comments must be received on or before May 22, 1998.

ADDRESSES: Comments may be mailed to William Stelle, Jr., 
Administrator, Northwest Region, NMFS, 7600 Sand Point Way NE, BIN 
C15700, Seattle, WA 98115-0070; or to William Hogarth, Administrator, 
Southwest Region, NMFS, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA 
90802-4213. Copies of the Environmental Assessment/Regulatory Impact 
Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) may be 
obtained from the Pacific Fishery Management Council, 2130 SW Fifth 
Avenue, Suite 224, Portland, OR 97201. Send comments regarding the 
burden estimate or any other aspect of the collection-of-information 
requirement, including suggestions for reducing the burden, to one of 
the NMFS addresses above and to the Office of Information and 
Regulatory Affairs, Office of Management and Budget (OMB), Washington, 
D.C. 20503 (ATTN: NOAA Desk Officer).

FOR FURTHER INFORMATION CONTACT: William L. Robinson at
    206-526-6140, or Svein Fougner at 562-980-4000.

SUPPLEMENTARY INFORMATION: NMFS is proposing this rule based on 
recommendations of 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). The 
background and rationale for the Council's recommendations are 
summarized below. More detail appears in the EA/RIR prepared by the 
Council for this action.

Background

    Sablefish (Anoplopoma fimbria), also known as ``black cod,'' is one 
of the most valuable species in the groundfish fishery off Washington, 
Oregon, and California. Because sablefish is an important species in 
the Pacific Coast groundfish complex, there have been numerous 
allocation conflicts over sablefish between different sectors of the 
West Coast groundfish fleet. The Council has made several major 
decisions on dividing the available harvest, to resolve allocation 
issues that are inextricably linked to resource conservation.
    Since 1987, the annual sablefish non-tribal harvest guideline has 
been allocated between trawl gear and nontrawl gear fisheries. In the 
nontrawl sector there have been two operationally distinct gear types, 
pot (or trap) and longline, that have been the primary gears competing 
for the nontrawl sablefish harvest allocation, and which now make up 
the fixed gear portion of the limited entry fleet. Historically, the 
trawl fishery has been managed with trip or cumulative trip limits, 
which means the amount of fish that may be harvested during a fishing 
trip or during a set time period. Trip or cumulative trip limits are 
mainly imposed to extend the fishery throughout most of the year by 
slowing the rate of harvest. Trip limits provide more stable employment 
in the fishery, but over time, have the effect of allocating the 
available resource from larger to smaller producers.
    The advantage of trip limit management is that participants know 
exactly how much of a particular species is available to them during a 
set period, so there is no incentive for high-powered participants to 
upgrade their vessel or gear beyond what is required to catch the limit 
for that species. Conversely, there is an incentive for persons who 
initially participate in the fishery at low levels of effort to upgrade 
their gear and equipment until they are able to catch the available 
limits. As more fishery participants improve their harvesting ability 
over time, or if the available harvest declines, trip limits must be 
lowered to keep the total harvest within the annual harvest guideline, 
and participants find themselves with boats and gear that are far too 
powerful for the available trip limits.
    For the health of the fish stocks, the major disadvantage of trip 
limits is that when fishers are able to easily attain their trip 
limits, they may overshoot a trip limit, and then must discard any fish 
that exceed that limit. These ``regulatory discards'' are particularly 
prevalent where fishers target on a mixed group of fish species, 
because trip limits must be set for each species

[[Page 19879]]

and it is difficult to predict the changing proportion of different 
fish stocks within that mixed group. Discard mortality is largely 
unmeasured, and thus is a danger to the long-term health of the fish 
stocks.
    Following the 1987 sablefish allocation between trawl and fixed 
gear, the fixed gear fleet continued to take most of its sablefish 
allocation in an unrestricted fishery (a fishery without landings 
limits). In the early years of this unrestricted fishery, the price of 
sablefish was relatively low, so there were few incentives for many 
fishers to target on sablefish with any intensity. In 1987, 1988, and 
1989, the unrestricted season was 9, 8, and 7.5 months long, 
respectively. Most of the sablefish target fishing occurred in the 
spring and summer, so it was reasonable to expect that the fishery 
would close at the end of the summer. The Council managed the fixed 
gear allocation so that there was just enough sablefish available for 
bycatch to other fisheries in the months after the closure of the 
unrestricted, primary fishery. This sablefish bycatch was available as 
trip limits of 250-500 lb (113-227 kg).
    By 1992, sablefish prices had risen to more lucrative levels, and 
the Pacific Northwest salmon harvest had been greatly restricted. 
Fishers who had long targeted salmon with hook-and-line gear were 
turning to sablefish to make up their loss of salmon income. Fishers 
from other fisheries and new entrants were attracted to sablefish as 
well. The 1992 unrestricted, regular sablefish season was only 15 days 
long. By this time, it was evident that effort concentration in the 
fixed gear fleet had separated the sablefish fishery into an intense 
primary season coupled with a small, year-round bycatch allowance for 
the mixed species groundfish fishery.
    In 1994, the Pacific Coast groundfish limited entry plan went into 
effect and limited the number of potential participants in this primary 
fishery. Although the limited entry program limits the number of 
participants in the overall groundfish fishery, it did nothing 
specifically to address the problem of the increasingly frenetic 
primary sablefish fishery. In fact, many fishers who had qualified for 
limited entry permits based on landings of groundfish other than 
sablefish began to turn to sablefish to supplement and then support 
their incomes.
    The primary seasons of 1995 and 1996 were olympic derbies of 7 and 
5 days in duration, respectively. A ``derby'' fishery is a short, 
intense open competition with no trip or cumulative landings limits. 
The history of this fishery had followed the classic pattern of 
unrestricted fisheries, with intensifying effort by each participant 
and by the fleet as a whole, leading to a brief season when the fleet 
landed the bulk of the year's allocation in just a few days. The only 
trip limit during the open competition of the derby fishery was for 
small sablefish less than 22 inches (56 cm) in length. With seasons 
measured in days, the Council considered the derby to be hazardous, 
because it gave fishers strong incentives to stay on the ocean during 
bad weather, working at sea with heavy machinery and little or no sleep 
throughout the season.

Management Background

    In 1991, when the primary fixed gear sablefish season was 3 months 
long, the Council began to discuss development of an individual fishing 
quota (IFQ) program for this fishery. IFQ discussions lasted 3 years, 
until the Council developed a fixed gear IFQ amendment, Amendment 8 to 
the FMP (now tabled). These discussions were long and divisive, 
primarily because the Council could not get agreement from within the 
industry on how heavily catch history should be weighted in calculating 
initial quota shares. Disagreements between different sectors of the 
fleet lengthened the public discussion process. The Council postponed 
action on Amendment 8 partly because of the controversy of the program, 
and partly in response to a request from some members of Congress that 
the Council defer action while important policy decisions were being 
made at the national level. After that postponement, Congress 
prohibited NOAA from funding the development of new IFQ programs. When 
Congress reauthorized the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act) in October 1996, through passage 
of the Sustainable Fisheries Act, it included a moratorium on 
development of new IFQ programs until October 1, 2000. The Council's 
delay in adopting an IFQ program for the fixed gear fleet thus 
prevented it from using that management strategy to address the 
problems of a severely overcapitalized, short, and dangerous fishery.
    In addition to the problems of managing the primary fishery, 
increasing numbers of vessels were treating the small daily trip limit 
fishery as a target fishery. Rather than catching a few pounds of 
sablefish as bycatch in trips targeting other deepwater groundfish, 
many fishers specifically began targeting the daily trip limits for 
sablefish. Sablefish caught with fixed gear in the daily trip limit 
fishery then became subject to the problems of trip limit management, 
similar to those experienced by the trawl fishery. While nontrawl 
vessels targeting sablefish generally do not face trip limits on 
multiple species, discards due to highgrading for larger and more 
valuable fish remain a problem. As in the trawl fishery, these trip 
limit induced discards are unmonitored.
    The derbies of 1995 and 1996 were especially controversial with the 
fishing fleet because vessel owners feared that the short season 
duration would lead to more risk-taking behavior among fleet 
participants, possibly resulting in danger to human life and safety. In 
addition to general concern about the dangers of the derby, the Council 
faced an allocation conflict between the two different sectors of the 
limited entry, fixed gear fleet. Long-term primary fishery participants 
who had managed their boats and gears with the expectation that there 
would be a brief, annual season where most of the fixed gear sablefish 
allocation would be taken were asking the Council for a management 
regime that would continue the historical sablefish catch distribution 
between fishery participants. Others who were better equipped to 
participate in and profit from the daily trip limit fishery were asking 
the Council to restructure the management regime so that the fixed gear 
sablefish allocation could be taken in small, monthly cumulative 
limits, as in the trawl fishery.
    The Council began to address these problems by reducing effort in 
the fixed gear sablefish fishery in 1997 with Amendment 9 to the FMP, 
which requires limited entry permit owners to qualify for a sablefish 
endorsement in order to participate in the primary, fixed gear fishery. 
Sablefish endorsement qualifications were based on a single year of 
permit catch history in which the amount of Council-managed sablefish 
caught with longline or fishpot gear was at least 16,000 lb (7,257 kg) 
round weight, during the 1984 through 1994 qualifying period. The 
Council recognized that any program that would restrict access to the 
fishery would be controversial, yet saw a strong need both to reduce 
the number of potential participants in the primary fishery to 
constrain further capitalization, and to reduce the intensity of the 
competition for sablefish catch during the primary fishery to improve 
fishery safety.
    Of the 231 limited entry, fixed gear permit owners, 162 now hold 
sablefish endorsements. The Council expected that by adopting the 
16,000 lb (7,257 kg) qualification threshold that extended over an 11-
year period, permit owners

[[Page 19880]]

with the greatest dependence on sablefish landings, including more 
recent landings, would receive endorsements. Further, the Council 
expected that persons who did not qualify for sablefish endorsements 
would be those who had more heavily relied on other groundfish species 
for their groundfish income, or on other sources of income, rather than 
on the primary sablefish fishery. During this time, the Council also 
looked for other ways to increase safety in the fishery by moving the 
opening to a time of year when weather conditions would likely be safer 
and by implementing an at-sea closure to end last minute, reckless 
rushes for port.

1997 Primary Fishery

    Following the adoption of the sablefish endorsement program, the 
Council had two other issues to deal with for the 1997 limited entry, 
fixed gear fishery. First, the Council had to consider how to manage 
the 1997 primary fishery. While the number of potential derby 
participants had decreased, the Council was still concerned that the 
endorsed fleet's catching ability was significant enough to limit the 
season to another short derby fishery. The second issue arose in the 
spring of 1997, when it became apparent that the catch of the daily 
trip limit fishery was rapidly expanding. Many of the limited entry 
permit holders who were unsure of their past sablefish catch history, 
or who knew that they would not qualify for the sablefish endorsement 
as recommended by the Council, intensified their efforts for sablefish 
in the 1997 limited entry, daily trip limit fishery, pushing the 1997 
catch rate far above historic catch rates for that fishery.
    Council discussions of 1997 management measures for the primary 
fishery were prolonged and difficult. Within the affected fleet, 
fishers with different cumulative catch histories and different current 
catch strategies could not agree on a future management scheme. The 
traditionally lower producers, who make up the majority of the fishery 
participants, but a minority of the total sablefish catch, favored an 
end to the derby and a system of equal cumulative limits for all 
participants. While the traditionally higher producers did not 
necessarily wish to continue with derby-style management, many were 
dissatisfied with the available management options, and saw open 
competition as the best way to maintain past trends in income 
distribution between fishery participants. Nevertheless, even under 
open competition, the share caught by higher producers had been 
declining over time.
    For 1997 and beyond, the Council decided to separate fishery 
management actions at 36 deg. N. lat. South of 36 deg. N. lat., the 
Council recommended eliminating the primary fishery structure so that 
sablefish landed in that area by limited entry, fixed gear sablefish 
fishers is taken only in a daily trip limit fishery. For 1997 only, 
north of 36 deg. N. lat., the Council recommended implementing a 
regular season of no more than 21 days, with each permit holder allowed 
to fish towards an equal cumulative landing limit. The Council's intent 
was to provide a safe period of time during which vessels would be able 
to harvest their limits. Council members expressed their preference for 
a system of tiered cumulative limits for 1997; however, there was 
insufficient time to develop and implement such a proposal prior to the 
1997 season.
    NMFS rejected the Council's initial recommendations finding that 
most vessels would likely be able to take the full cumulative limit, 
thus making the combination of the limited entry permit and sablefish 
cumulative limit function effectively as an IFQ program. As previously 
discussed, the Magnuson-Stevens Act placed a moratorium on implementing 
IFQ programs until October 1, 2000. Following the NMFS rejection, the 
Council reconsidered whether to allow the fishery to continue as a 
derby in 1997 or to shorten the regular season so that a sufficient 
number of vessels would not be able to take their cumulative limits in 
the allotted time in order to avoid a determination that the fishery 
was an IFQ. The Council recognized that, while the safety benefits of 
such a change would be somewhat reduced, cumulative limits would still 
provide some control over fishing rates and safety hazards. Therefore, 
the Council recommended a season of no more than 10 days, with each 
permit holder allowed to fish towards an equal cumulative landing 
limit. This recommendation significantly redistributed 1997 catch away 
from historically strong producers. Because the Council did not want to 
support an equal limits regime for long-term, fixed gear sablefish 
management, it recommended this regime for 1 year only and announced 
that it would consider a tiered cumulative limits system for 1998 and 
beyond. The 1997 limited entry, fixed gear regular fishery began on 
August 25, lasted for 9 days and gave each participant the opportunity 
to catch up to a cumulative limit of 34,100 lb (15,468 kg).
    Members of the Council were forced to weigh the long-voiced anger 
over the continuing danger of the derby against the severe 
redistributive results of a management option to set equal cumulative 
limits for all of the eligible participating vessels. The Magnuson-
Stevens Act's national standards recognize the importance of both these 
issues. National standard 10 recognizes the importance of the safety of 
human life at sea, yet national standard 4 requires that if allocation 
of fishing privileges among U.S. fishermen is necessary, then that 
allocation be fair and equitable. In the case of the Pacific Coast 
fixed gear sablefish fishery, the Council concluded that a long-term, 
equal allocation scheme that disregarded historical participation and 
dependence on the fishery would not be ``fair and equitable.''

1997 Daily Trip Limit Fishery

    In the months before and after the primary fishery, many limited 
entry fishers caught sablefish in the daily trip limit fishery. As 
previously mentioned, although the daily trip limit fishery was 
originally conceived primarily as a bycatch fishery, the recent and 
heavy influx of small operations focusing on sablefish has changed the 
character of the daily trip limit fishery into a target fishery. At the 
beginning of 1997, this fishery was under landing limits of 300 lb (136 
kg) per day, with no limit on the amount of fish that could be landed 
in a month. Landings receipts from the early part of the year showed 
that a number of permit holders were landing the 300 lb (136 kg) limit 
almost every day of each month.
    At its March 1997 meeting, the Council discussed the daily trip 
limit fishery and expressed concern that the amount of catch taken in 
the daily trip limit fishery had continued to increase from year to 
year. To slow the rate of catch in that fishery, the Council 
recommended, and NMFS implemented, a monthly cap of 5,100 lb (2,313 
kg), effective May 1, 1997. The Council decided to establish a policy 
of maintaining a 1997 daily trip limit fishery catch similar to that 
fishery's catch in 1996. The Council announced that it would try to 
manage the 1997 daily trip limit fishery so that it would also take a 
total of 850,000 lb (385 mt) over the entire year.
    Catch estimates from the daily trip limit fishery for sablefish 
presented at the June 1997 Council meeting showed that by the end of 
June, an expected 780,000-800,000 lb (354-363 mt) of sablefish would be 
landed in the daily trip limit fishery. Updated 1996 landings 
information showed that

[[Page 19881]]

sablefish landings from the entire daily trip limit fishery in 1996 
were 915,000 lb (415 mt). Consequently, the Council revised its 
management target for the 1997 daily trip limit fishery to 915,000 lb 
(415 mt). To try to constrain the daily trip limit fishery to the 1996 
catch level, the Council had to make drastic changes in the monthly cap 
for this fishery. Effective July 1, 1997, NMFS implemented the 
Council's recommendation to drop the monthly cap in the daily trip 
limit fishery to 600 lb (272 kg). The Council expected that even this 
low cap could only constrain daily trip limit landings enough so that 
the 1997 fishery total would be about 15 percent higher (about 
1,100,000 lb (499 mt)) than the 1996 total.
    There is an open access sablefish daily trip limit fishery in 
addition to the limited entry fishery. The open access fishery has a 
specific sablefish allocation, and trip limits are set with the aim of 
maintaining a year-round fishing opportunity. Open access sablefish 
daily trip limits at the beginning of 1997 were 300 lb (136 kg) per day 
and 1,500 lb (680 kg) per month. Like the limited entry fishery, 1997 
open access sablefish harvest in the daily trip limit fishery was 
proceeding at an accelerated rate over previous years. When the Council 
recommended restricting the limited entry monthly cap for fixed gear 
sablefish to 600 lb (272 kg), it also recommended lowering the open 
access monthly cap to 600 lb (272 kg). The Council was concerned that, 
if it recommended a more restrictive monthly cap in the limited entry 
daily trip limit fishery as compared to the open access daily trip 
limit fishery, limited entry vessels would then flood the open access 
fishery and force an early closure of that daily trip limit fishery.
    The 600 lb (272 kg) caps restrained the two daily trip limit 
fisheries to moving at a pace slow enough to keep the fisheries within 
the harvest guidelines. However, at the September 1997 Council meeting, 
the Council saw data showing that the 600 lb (272 kg) cap had 
constrained the open access fishery to a degree that the fishery would 
not likely meet the open access allocation for the year. Data from the 
limited entry daily trip limit fishery showed that even with the 600 lb 
(272 kg) cap, the fishery would likely exceed the 915,000 lb (415 mt) 
target for 1997. Analysis for these fisheries suggested that, if the 
Council were to raise the monthly cap for both daily trip limit 
fisheries to 1,500 lb (680 kg) from October through December, the 
combined totals taken from the open access and limited entry daily trip 
limit fisheries would likely meet the combined target amounts for the 
open access allocation and the limited entry daily trip limit 
fisheries. On October 1, 1997, NMFS implemented the Council's 
recommendation of a 1,500 lb (680 kg) monthly cap for the open access 
and limited entry daily trip limit fisheries, which remained in place 
for the rest of the year.

Three-Tier Cumulative Limit Management

    At its June 1997 meeting, the Council adopted a recommendation for 
limited entry, fixed gear sablefish management measures for 1998 and 
beyond that is intended to maintain the basic structure of the fishery. 
The target amount of the fixed-gear allocation would be taken during 
the ``regular'' fishery, with a smaller amount taken in a mop-up 
fishery a few weeks later. A sablefish endorsement is required for 
participation in the regular and mop-up fisheries, which together 
constitute the ``primary'' fishery. The new proposal would divide 
limited entry permits with sablefish endorsements into three tiers. A 
permit's placement in a tier would be based on the cumulative sablefish 
catch associated with that permit from 1984 through 1994. Each tier 
would be associated with a different cumulative limit during the 
regular, limited entry, fixed gear fishery. These measures would apply 
only north of 36 deg. N. lat.
    The Council recommendation specifies qualifying criteria for 
assigning limited entry permits to one of the three tiers. To qualify 
for the highest tier, Tier 1, a permit would need to 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 would need to be associated with between 411,000 lb (186.43 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 411,000 lb (186.43 mt) of cumulative 
sablefish landings from 1984 through 1994 would 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 the cumulative catch histories of limited 
entry permits with sablefish endorsements that might serve as logical 
breakpoints between tiers. Such breakpoints did exist, and the Council 
selected a qualifying amount of 898,000 lb (407.33 mt) for Tier 1, 
which was the lowest large breakpoint in cumulative catch histories 
among a series of high breakpoints. Below 898,000 lb (407.33 mt), there 
were no significant breaks in cumulative catch histories for many 
thousands of pounds. Similarly, a cumulative catch amount of 411,000 lb 
(186.43 mt) was selected as the qualifying level for Tier 2 because it 
was the lowest large breakpoint among a series of mid-range breaks in 
cumulative catch histories. Because all permit owners who will be in 
the tier system have qualified for sablefish endorsements, those 
permits in the lowest tier are known to have had at least one year with 
landings greater than 16,000 lb (7.26 mt) during the 1984 through 1994 
period, but a cumulative catch history of less than 411,000 lb (186.43 
mt) from 1984 through 1994. In the package sent out for public review, 
the Council included a four-tier option as well as options that allowed 
qualification based either on cumulative landings from 1984 through 
1994 or on cumulative landings from 1994 and 1995. After reviewing the 
analysis and testimony of the public and its advisors, the Council 
chose the option associated with the qualifications described above.
    The catch histories for tier qualification include only sablefish 
landed from the Pacific Coast fishery. However, the database used for 
the analysis described above inadvertently included some sablefish 
taken in waters off Alaska and later landed at a Pacific Coast port. 
Analysts discovered this mistake after the November 1997 Council 
meeting. Removal of Alaska sablefish data does not significantly change 
the breaks in cumulative catch histories already identified by the 
Council. 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 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. Once the Alaska data are removed, 
398,000 lb (180.53 mt) becomes the lowest large breakpoint among mid-
range breaks, and is also a larger break in cumulative catch histories 
than the break at 411,000 lb (186.43 mt). At the March 1998 meeting, 
the Council commented on this issue, stating that it prefers to retain 
its original logic and 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). Qualifying poundage for Tier 3 would be less than 
380,000 lb

[[Page 19882]]

(172.37 mt). If NMFS adopts this proposed rule as a final rule, the 
public comments and the Council recommendations on this issue would be 
considered in the final rule.
    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. 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. 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.
    If the current permit is the result of the combination of two or 
more permits, then the permit with the highest cumulative catch history 
will be used in tier placement for that permit. The Council 
specifically decided not to allow permit owners who had combined two 
permits to use the combined catch histories of both permits when 
determining tier placement. This is consistent with the endorsement 
program (Amendment 9), where the endorsement qualification was based 
only on the catch history of one of the combined permits, not on the 
total catch history of all combined permits. In addition, the analysis 
presented to the Council at the time it made a decision on this issue 
indicated that, based on the available data, no permit owner would be 
denied qualification to a higher tier if the cumulative catch history 
of the higher of two combined permits was 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, upon a more detailed review of the database, analysts 
discovered that this statement was wrong and that a permit owner would 
be assigned to a higher tier if allowed to sum the cumulative catch 
histories of the permits that had been combined to create the current 
permit. At the March 1998 meeting, the Council recommended allowing 
owners of permits that were combined prior to March 12, 1998, to 
aggregate their cumulative catch histories in qualifying for tier 
placement. If NMFS adopts this proposed rule as a final rule, public 
comments and the Council recommendations on this issue would be 
considered in the final rule.
    In accordance with Amendment 9 to the FMP, if two limited entry, 
fixed gear permits are combined to generate a single permit with a 
larger length endorsement, the resulting permit will also 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 prior to combination. The 
Council concluded that because harvest would be restricted by the 
cumulative limits and that one permit's cumulative limit would be 
eliminated through the combination of permits, this approach was 
preferable. Other alternatives would have allowed persons combining 
permits to expand harvest, imposed an unfair restriction on the amount 
that could be harvested by combined permits, or would have functioned 
too much like an IFQ system.
    The management option that the Council chose maintains a ratio 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 
limits ratio for the tiers would be 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).
    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 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 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 would be at least 15 
percent, based on the most reasonable assumptions. This recommendation 
is consistent with the 1997 fishery structure, where the equal 
cumulative limit and season length were set within parameters of 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. The resulting season structure of a 9-
day fishery with a cumulative limit of 34,100 lb (15,468 kg) was 
successful in both keeping the harvest within the allocation and in 
maintaining adequate overhead. In 1997, the regular fishery achieved an 
overhead of 61 percent, and the amount taken in that fishery was about 
70 percent of the total available harvest for the primary fishery. Of 
the 163 potential participants in the 1997 limited entry, fixed gear 
regular fishery, about 60 vessels had landings within 90 percent of the 
full cumulative limit of 34,100 lb (15,468 kg).

1998 Fishery Season Structure

    When the Council adopted its recommendation for a tiered access 
program, it retained most of the basic season structure requirements 
that were in place for 1997, as described below.
    There would be a 48-hour closure before the start of the 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 existing regulation contains a 72-hour closure, with an 
allowance for pots to be set 24 hours before the start of the season.
    At its November 1997 meeting, the Council recommended a 1998 season 
start date of August 1. The limited entry, fixed gear sablefish 
regulations contain a framework to allow NMFS to announce annually, in 
consultation with the Council, a season start on any day between August 
1 and September 30.
    Preliminary estimates at the November 1997 Council meeting showed 
that the 1998 limited entry, fixed gear regular sablefish season would 
be at least 5 days long. The Council recommended setting the season 
length as long as possible, while

[[Page 19883]]

maintaining a 25-percent overhead for the entire fleet and a 15-percent 
overhead for each tier within the fleet.
    There would be a 30-hour closure after the end of the regular 
season, during which time no sablefish may be taken and retained with 
fixed gear north of 36 deg. N. lat. During that 30-hour period, 
sablefish taken and retained during the regular season could be 
possessed and landed, and gear could remain in the water. However, 
fishers may not set or pull their gear from the water during this 
period. The existing regulation contains a 48-hour closure.
    Once the landings from the regular season have been calculated, 
there would be a mop-up season to catch any sablefish left from the 
primary fishery (regular + mop-up seasons) that is not needed for the 
planned daily trip limit fishery. NMFS and the three states generally 
require 3 weeks from the end of the regular season to calculate the 
amount of sablefish, if any, available to the mop-up fishery.
    At its November 1997 meeting, the Council recommended a 1998 
commercial harvest guideline of 4,212 mt for all sablefish landed north 
of 36 deg. N. lat., a significant reduction from recent years. The 1997 
commercial harvest guideline for sablefish landed north of 36 deg. N. 
lat. was 7,020 mt. At its September 1997 meeting, the Council 
recommended a policy for 1998 of maintaining recent-year sablefish 
catch ratios between different commercial sectors. Under this policy, 
the limited entry, fixed gear trip limit fishery will be managed with 
daily and monthly limits that keep the overall catch of the fishery to 
approximately 15 percent of the total sablefish available to the 
limited entry, fixed gear fleet in 1998. While the exact division 
between the primary fishery and the daily trip limit fishery is not 
specified in the current regulations governing this fishery or in 
Amendment 9, maintaining the recent ratio between these two fisheries 
is consistent with management practices in recent years.
    NMFS and Council staff estimate that under a total harvest 
guideline of 4,212 mt for all gears and sectors, the 1998 limited 
entry, fixed gear, regular sablefish season would be 6 days in 
duration. At the March 1998 Council meeting, the Council recommended a 
method for setting the season length and the cumulative limits for each 
of the three tiers if the three-tier program is adopted as a final 
rule. At the April 1998 Council meeting, NMFS reported to the Council 
that under the Council's preferred method for setting season length and 
cumulative limits, and within the parameters for the three-tier program 
described above, the 1998 season of 6 days in duration would have 
cumulative limits of 52,000 lb for Tier 1, 23,500 lb for Tier 2, and 
13,500 lb for Tier 3. Overheads would be expected to be 30% overall, 16 
percent overall under a worst-case scenario, 46 percent for Tier 1, 25 
percent for Tier 2, and 21 percent
    for Tier 3. All of these overheads exceed the Council's 
conservative overhead recommendations for the three-tier regime, as 
described above.

Biological Impacts

    Marine biological background and biological impacts of the 
sablefish fishery are analyzed in ``Status of the Pacific Coast 
Groundfish Fishery Through 1997 and Recommended Acceptable Biological 
Catches for 1998: Stock Assessment and Fishery Evaluation'' (SAFE 
Document) and in the EA for the ``Proposal to Change the Management of 
the Limited Entry Fixed Gear Sablefish Segment of the Groundfish 
Fishery for 1998 and Beyond.'' These documents may be obtained from the 
Council. (See ADDRESSES).
    NMFS expects that the biological impacts of implementing a three-
tier cumulative limit system would be negligible. The sablefish 
acceptable biological catch and harvest guideline would not be affected 
by this action.

Socio-economic Impacts

    As previously mentioned, the primary fishery would be managed to 
maintain a 25-percent catch overhead, which would mean that some fleet 
participants would be expected to catch the entire cumulative limit 
within the time allotted for the fishery, but many would not be able to 
do this. If the fishery is managed to maintain a 25-percent overhead, 
it is expected that about one-third of the fleet participants (the 
larger sablefish producers) would be able to slow their rate of harvest 
over the rate at which they would have fished in a derby. For that one-
third of the fleet, there would be increased safety benefits from 
implementing the three-tiered access system. An open competition derby 
fishery would be several days shorter than the three-tiered cumulative 
limit fishery. Individuals in the two-thirds of the fleet that would 
not be expected to slow their rates of harvest to achieve their 
cumulative limits would garner safety benefits from the three-tiered 
access system if they choose to fish at a slower rate because they 
would have more time available to them than in a derby fishery to catch 
a comparable amount of sablefish. However, it is reasonable to expect 
that most fishery participants would fish at the fastest rate possible 
if they have any doubts about whether they will be able to catch their 
available cumulative limits. Smaller sablefish producers would be able 
to expand their harvest, while harvest by larger producers will likely 
be restricted.
    The Council recommended keeping the 1997 management measures for 
the limited entry, fixed gear, regular sablefish fishery in place for 1 
year only, and stated that a prolonged equal cumulative limit fishery 
would be too redistributive of sablefish catch and income. Analysts 
expected that the equal limit regime would result in 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 - 3.0 million. In designing the three-tiered access system, 
the Council intended to recommend management measures that would allow 
fleet participants to harvest sablefish at levels more closely aligned 
to their historical annual harvests than was possible under equal 
allocation.
    The three-tiered regime still has redistributive effects as 
compared to the open competition derby, the management regime that the 
fishery would revert to if no action were taken for 1998. If the 
Council's recommended option is implemented, permit owners with 
sablefish endorsements would have their sablefish harvest limited by 
their tier assignments. Many of the larger producers would still see a 
reduction in their gross revenues, as compared to the revenues that 
they might have expected under a continued derby fishery, but a less 
significant revenue reduction than would have occurred under an equal 
limits regime. Fishery participants with strong harvest levels in 1995 
and 1996, but with little cumulative catch prior to 1995 may also face 
a drop in harvest if their 1984 through 1994 cumulative harvest places 
them in Tier 2 or 3.
    Under the three-tiered option that the Council recommended for 
1998, 52 fishery participants can expect to catch less sablefish than 
they would have under a continued derby option, and 106 fishery 
participants can expect to catch more sablefish than they would have 
under a continued derby option. About 24 percent of the harvest would 
be redistributed away from the fishers who would be losing harvest 
shares under the three-tiered option recommended by the Council.
    As a group, vessels in Tier 1 would be expected to take shares of 
harvest that are below their long-term and recent averages. As a group, 
vessels in

[[Page 19884]]

Tier 3 would be expected to take shares of harvest that are above their 
long-term averages and close to their recent averages. Estimates of 
changes in harvest shares are based on a comparison between what 
vessels are expected to catch under the different management options 
that could have been chosen by the Council for recommendation to NMFS. 
The potential impact of implementing the three-tiered access system 
would be separate from the impact of the decreased harvest guideline 
for 1998. The amount of sablefish that each vessel catches in 1998 is 
likely to be lower than the amounts they have caught in years past 
because the overall sablefish harvest guideline is lower than it has 
been in past years.

Tier Assignment

    Tier assignments for limited entry permits with sablefish 
endorsements would be issued by NMFS, prior to the start of the regular 
1998 limited entry, fixed gear sablefish season. NMFS would use 
landings records from the Pacific States Marine Fisheries Commission's 
Pacific Fisheries Information Network (PacFIN) to determine which 
limited entry permits meet the Council-recommended qualifications for 
each tier.
    The Sustainable Fisheries Division (SFD), NMFS Northwest Region, 
would notify 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.
    Permit owners who believe that their permit qualifies for a 
different tier than the tier indicated by PacFIN records would have 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 assignment would be issued if the permit owner 
demonstrates that his or her permit met 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 would 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 would be no industry appeals board 
to review appeals of tier placement.
    For the 1998 season only, permit owners with sablefish endorsements 
would be issued certificates of tier assignment that would 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 would be indicated directly on the limited entry permit.

Sablefish Endorsement Application Deadline

    Amendment 9 to the FMP recommended at section 14.5: ``NMFS will 
establish a reasonable application period for the fixed gear sablefish 
endorsement. Untimely applications will be rejected and no sablefish 
endorsement will be issued thereon * * *.'' When NMFS implemented the 
sablefish endorsement program, the agency sent letters of qualification 
status to each limited entry permit owner that told the permit owner 
whether PacFIN records indicated that his or her permit was associated 
with enough sablefish catch to qualify that permit for a sablefish 
endorsement. Where PacFIN records indicated that a permit did not 
qualify for an endorsement, that permit owner could apply for an 
endorsement by providing additional information on his or her sablefish 
landings for the qualifying years. Permit owners whose permits did 
qualify for sablefish endorsements according to PacFIN records were 
given no deadline to apply for sablefish endorsements. If NMFS 
finalizes this rule and implements a three-tier system for 1998, the 
agency will need to know how many limited entry permit owners meet the 
tier system qualification of having a sablefish endorsement. To 
implement section 14.5 of Amendment 9 and to facilitate possible 
implementation of the three tier system, NMFS is proposing a sablefish 
endorsement application deadline for those persons who were initially 
told that their permits qualified for sablefish endorsements based on 
PacFIN landing records. Sablefish endorsement applications will not be 
accepted after November 30, 1998, which is the limited entry permit 
renewal deadline for the 1999 fishing year.

Classification

    This proposed rule has been determined to be not significant for 
the purposes of E.O. 12866.
    The Council prepared an IRFA that describes the impact that this 
proposed rule, if adopted, would have on small entities. A copy of this 
analysis is available from the Council (see ADDRESSES). All of the 
permit owners and vessels in the Pacific Coast, limited entry, fixed 
gear fleet are considered small entities. NMFS considers an impact to 
be ``significant'' if it results in a reduction in annual gross 
revenues by more than 5 percent, an increase in annual compliance costs 
of greater than 5 percent, compliance costs at least 10 percent higher 
for small entities than for large entities, compliance costs that 
require significant capital expenditures, or the likelihood that 2 
percent of the small entities would be forced out of business. NMFS 
considers a ``substantial number'' of small entities to be more than 20 
percent of those small entities affected by the regulation engaged in 
the fishery.
    As indicated in the EA/RIR/IRFA for this action, there are 162 
limited entry, fixed gear permit owners holding sablefish endorsements. 
All are small entities. Of these, 42 (26 percent) would suffer a 
greater than 5 percent loss in total gross annual revenue over what 
they would have been expected to earn if the open competition derby 
management had been continued in 1998.
    The analysis of whether this action would reduce annual gross 
revenues of limited entry permit owners with sablefish endorsements was 
based on comparing estimates of each permit owners' sablefish-derived 
income to his or her total fishing income. There are members of this 
fleet who have non-fishing income sources that contribute to their 
annual gross revenues. However, NMFS and Council analysts have no 
access to information about the non-fishing revenues of these 
businesses. Thus, the following discussion on the number of businesses 
that would be expected to have reductions in annual gross revenues is 
based on information about the fishing revenues of these permit owners. 
As a result, the conclusions of this analysis are a ``worst-case'' 
scenario; those permit owners with non-fishing revenue sources may not 
be as severely impacted as indicated by this analysis.
    There are 162 limited entry, fixed gear permit owners with 
sablefish endorsements. As indicated in the EA/RIR/IRFA for this 
action, 42 permit holders with sablefish endorsements (26 percent) 
would suffer a greater than 5 percent loss in total gross fishing 
income over what they would have been expected to earn if the open 
competition derby management had been continued for 1998.
    The Council considered 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. An option to

[[Page 19885]]

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 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. Thus, while the option chosen by the Council results in a 
greater number of businesses with 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.
    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 a harvest share close to 
their historical harvest share. In an IFQ fishery, all fishers would be 
allowed to use as much time as necessary to catch whatever cumulative 
limits are available. 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.
    The IRFA indicates that this proposed action would not be 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 would be forced out of business.
    This rule contains and refers to collection-of-information 
requirements subject to the Paperwork Reduction Act (PRA). These 
collections have been approved by OMB under OMB Control Number 0648-
0203. Public reporting burden for appeals of permit determinations is 
estimated at 2 hours per response; reporting burden for the renewal or 
transfer of limited entry permits is estimated at 20 minutes per 
response. These estimates include the time for reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed, and completing and reviewing the collection of information. 
Public comment is invited regarding: Whether this proposed collection 
of information is necessary for the proper performance of the functions 
of the agency, including whether the information has practical utility; 
the accuracy of the burden estimate; ways to enhance the quality, 
utility, and clarity of the information to be collected; and ways to 
minimize the burden of the collection of information, including through 
the use of automated collection techniques or other forms of 
information technology. 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.

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: April 17, 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 
proposed to be 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. In order to participate lawfully in the 
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) 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 registered for use with 
a limited entry permit with a sablefish endorsement will be able to 
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.

[[Page 19886]]

    (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. may be taken 
and retained during the 30 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 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 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.
* * * * *
    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) Upon transfer of 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 prove 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

[[Page 19887]]

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 catch history to be used in calculating the tier assignment is the 
catch history of the permit with the largest catch history of those 
being combined, together with any catch history (during the qualifying 
period) of the combined 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 411,000 lb (186,183 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 411,000 lb (186,183 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 notify a permit owner 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 (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. 98-10726 Filed 4-21-98; 8:45 am]
BILLING CODE 3510-22-F