Magnuson Act Provisions; Foreign Fishing; Fisheries off West Coast States and in the Western Pacific; Pacific Coast Groundfish Fishery; Annual Specifications and Management Measures

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 600 and 660

[Docket No. 961227373-6373-01; I.D. 122096B]

RIN 0648-XX78

Magnuson Act Provisions; Foreign Fishing; Fisheries off West

Coast States and in the Western Pacific; Pacific Coast Groundfish

Fishery; Annual Specifications and Management Measures

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: 1997 groundfish fishery specifications and management measures;

tribal whiting allocation; announcement of exempted fishing permits;

request for comments.

-----------------------------------------------------------------------

SUMMARY: NMFS announces the 1997 fishery specifications and management

measures for groundfish taken in the U.S. exclusive economic zone (EEZ)

and state waters off the coasts of Washington, Oregon, and California,

as authorized by the Pacific Coast Groundfish Fishery Management Plan

(FMP). The specifications include the level of the acceptable

biological catch (ABC) and harvest guideline (HG), including the

distribution between domestic and foreign fishing operations. The HGs

are allocated between the limited entry and open access fisheries. The

management measures for 1997 are designed to keep landings within the

HGs, for those species for which there are HGs, and to achieve the

goals and objectives of the FMP and its implementing regulations. The

intended effect of these actions is to establish allowable harvest

levels of Pacific Coast groundfish and to implement management measures

designed to achieve but not exceed those harvest levels, while

extending fishing and processing opportunities as long as possible

during the year. This action also announces issuance of exempted

fishing permits (EFPs) in 1996 and applications for exempted fishing

permits in 1997.

DATES: Effective 0001 hours (local time) January 1, 1997, until the

1998 annual specifications and management measures are effective,

unless modified, superseded, or rescinded. The 1998 annual

specifications and management measures will be published in the Federal

Register. Comments on the 1997 annual specifications and management

measures will be accepted until February 5, 1997.

ADDRESSES: Comments on these specifications and management measures,

tribal whiting allocation, and EFPs should be sent to Mr. William

Stelle, Jr., Administrator, Northwest Region, National Marine Fisheries

Service, 7600 Sand Point Way N.E., BIN C15700, Bldg. 1, Seattle, WA

98115-0070; or Ms. Hilda Diaz-Soltero, Administrator, Southwest Region,

National Marine Fisheries Service, 501 West Ocean Blvd., Suite 4200,

Long Beach, CA 90802-4213. Information relevant to these specifications

and management measures, including the stock assessment and fishery

evaluation (SAFE) report, has been compiled in aggregate form and is

available for public review during business hours at the office of the

Administrator (formerly Director), Northwest Region, NMFS (Regional

Administrator), or may be obtained from the Pacific Fishery Management

Council (Council), by writing the Council at 2130 SW Fifth Avenue,

Suite 224, Portland, OR 97201.

FOR FURTHER INFORMATION CONTACT: William L. Robinson (Northwest Region,

NMFS) 206-526-6140; or Rodney R. McInnis (Southwest Region, NMFS) 310-

980-4040.

SUPPLEMENTARY INFORMATION: The FMP requires that fishery specifications

for groundfish be evaluated each calendar year, that HGs or quotas be

specified for species or species groups in need of additional

protection, and that management measures designed to achieve the HGs or

quotas be published in the Federal Register and made effective by

January 1, the beginning of the fishing year. This action announces and

makes effective the final 1997 fishery specifications and the

management measures designed to achieve them. These specifications and

measures were considered by the Council at two meetings and were

recommended to NMFS by the Council at its October 1996 meeting in San

Francisco, CA. NMFS received three public comments regarding the

allocation of Pacific whiting (whiting) to the Makah Indian tribe prior

to the publication of these specifications. These comments are

addressed in paragraph V. Regulatory citations have been changed

throughout this document to conform with the nationwide consolidation

of Pacific and Western Pacific fisheries regulations at 50 CFR part 600

and part 660.

I. Final Specifications

The fishery specifications include ABCs, the designation of HGs or

quotas for species that need individual management, the apportionment

of the HGs or quotas between domestic and foreign fisheries, and

allocation between the open access and limited entry segments of the

domestic fishery. As in the past, the specifications include fish

caught in state ocean waters (0-3 nautical miles (nm) offshore) as well

as fish caught in the EEZ (3-200 nm offshore). Only changes to the

specifications between 1996 and 1997 are discussed herein, otherwise

they are the same as announced in 1996 (61 FR 279, January 4, 1996).

BILLING CODE 3510-22-P

[[Page 701]]

[GRAPHIC] [TIFF OMITTED] TP06JA97.020

[[Page 702]]

[GRAPHIC] [TIFF OMITTED] TP06JA97.021

[[Page 703]]

[GRAPHIC] [TIFF OMITTED] TP06JA97.022

[[Page 704]]

[GRAPHIC] [TIFF OMITTED] TP06JA97.023

[[Page 705]]

[GRAPHIC] [TIFF OMITTED] TP06JA97.024

[[Page 706]]

[GRAPHIC] [TIFF OMITTED] TP06JA97.025

[[Page 707]]

[GRAPHIC] [TIFF OMITTED] TP06JA97.026

BILLION CODE 3910-22-C

[[Page 708]]

Changes to the ABCs and HGs

The ABCs, which are based on the best available scientific

information, represent the total catch, including amounts that are

discarded as well as retained. Stock assessment information considered

in determining the ABCs is available from the Council, and was made

available to the public, before the Council's October 1996 meeting, in

the Council's SAFE document (see ADDRESSES). The 1997 ABCs are changed

from 1996 for Pacific whiting, the Sebastes complex, bocaccio, canary

rockfish, and yellowtail rockfish. New ABCs were developed for

``remaining rockfish'' and for a new category of ``other rockfish.''

Changes that result only from rounding are not explained.

Those species or species groups managed with HGs in 1996 will

continue to be managed with HGs in 1997. The 1997 HGs differ from 1996

for Pacific whiting, shortspine thornyheads, the Sebastes complex,

yellowtail rockfish, bocaccio, and canary rockfish.

Stock assessments and inseason catch monitoring are designed to

account for all fishing mortality, including that resulting from fish

discarded at sea. Discards of rockfish and sablefish in the fishery for

whiting are well monitored and are accounted for inseason as they

occur. In the other fisheries, discards caused by trip limits have not

been monitored consistently, so discard estimates have been developed

to account for this extra catch. A discard level of about 16 percent of

the total catch, previously measured for widow rockfish in a scientific

study, is assumed to be appropriate for the commercial fisheries for

widow rockfish, yellowtail rockfish, canary rockfish, and Pacific ocean

perch (POP). A discard estimate of 8 percent is used for the deepwater

thornyhead fishery, 5 percent for Dover sole, and 20 percent for

sablefish.

In some cases (e.g., sablefish, widow rockfish, thornyheads, Dover

sole), an estimated amount of discards has been subtracted from the ABC

to determine the HG for the landed catch. In other cases (e.g.,

whiting, Sebastes complex), a HG representing total catch is more

appropriate. Discards in the whiting fishery have been well documented

and, therefore, the HG for whiting represents total catch and discards

are accounted for during the season. In 1996, the HG for the Sebastes

complex included only landings to be consistent with most of the other

groundfish HGs. However, using HGs based only on landed catch was too

rigid because it did not provide for inseason adjustments, a particular

problem when actual reports of discards during the season differed from

the amount assumed at the beginning of the year. Therefore, for greater

management flexibility during the season, HGs for the Sebastes complex

and its components in 1997 will include the total catch, and estimates

of discards will be added to the landings during the season.

The 1997 changes to the ABCs and HGs are summarized below. More

detailed information appears in the Council's SAFE document (September

1996), the ``Groundfish Management Team Final Acceptable Biological

Catch and Harvest Guideline Recommendations for 1997'' (GMT Report

C.4.) from the October 1996 Council meeting, and the Council's

newsletters for its August and October 1996 meetings.

Whiting

A new stock assessment for whiting indicated that the 1994 year

class was larger than previously expected. This, combined with

substantive changes in the stock assessment model, resulted in an ABC

of 290,000 mt for the U.S. and Canada combined, 25,000 mt higher than

in 1996. Nonetheless, this ABC may be somewhat conservative. Another

year of data is needed to verify whether the apparent high abundance of

the 1994 year class is due to an actual increase in fish, rather than a

shift in their distribution to more northern waters. Other factors

considered in setting the ABC were promoting stability in landings by

distributing the harvest of strong year classes over several years and

the need to suppress the bycatch of yellowtail rockfish at a time when

that fishery is facing a major reduction in its ABC. The U.S. HG

(232,000 mt) is set at 80 percent of the U.S.-Canadian ABC, as in

recent years. Allocation to the Makah treaty Indian tribe in 1997 is

discussed in paragraph V.

Pacific Ocean Perch (POP)

Since 1981, POP has been managed under a schedule intended to

rebuild POP to a level that would annually support removals of 1,000

mt. Landings were higher than this as recently as 1993. To achieve an

annual harvest of about 1,000 mt while maintaining a biologically sound

harvest rate, the current biomass would have to double. This would be a

slow process unless there is a fortuitous sequence of large

recruitments. The harvest guideline for POP is meant to accommodate

only small, incidental catches and, therefore, is not a target to be

achieved deliberately. Trip limits for POP will not be increased to

achieve the harvest guideline, and may be reduced if landings are too

high. The harvest guideline of 750 mt for POP is the same as last year.

Shortspine Thornyheads

The ABC for shortspine thornyheads is the same as in 1996, but the

HG is reduced from 1,500 mt to 1,380 mt to more accurately represent

the landed catch.

Sebastes Complex

The ABCs for the Sebastes complex are the sum of the ABCs of its

components. The HGs (for total catch) are the sum of the HGs for each

species or of the ABCs for those species without HGs. The 1997 HG for

the Sebastes complex in the Vancouver/Columbia area is reduced from

11,900 mt for landed catch in 1996 to 7,130 mt for total catch in 1997.

The 1997 HG for the Sebastes complex in the Eureka/Monterey/Conception

area is reduced from 13,200 mt for landed catch in 1996 to 9,664 mt for

total catch in 1997. The large declines are due primarily to large

reductions in the ABCs and HGs for bocaccio, yellowtail rockfish, and

also to new ABC estimates for the ``remaining rockfish'' and ``other

rockfish'' categories.

Bocaccio

The 1997 ABC for bocaccio in the Eureka/Monterey/Conception area is

265 mt, only 15 percent of the 1,700-mt ABC in 1996. (Landings were

projected at 454 mt for 1996, so the reduction in ABC, while severe, is

not as extreme as it appears.) The new stock assessment indicates it is

unlikely that the current stock size is greater than 17-20 percent of

the 1970 level but also suggests a high degree of uncertainty in

current stock size. Recruitment is highly variable for bocaccio.

Assuming that future recruitment will be similar to that in 1969-1996,

the level of fishing mortality that would produce spawning biomass at

35 percent of its unfished level (F35%) is 265 mt. The 1997 HG (for

total catch) is 387 mt, 122 mt higher than ABC, and at, but not above,

the overfishing threshold for bocaccio. The Council recommended that

the bocaccio HG be set above ABC in 1997 to allow a 1-year phase-down

to mitigate the economic impacts of a 60 percent reduction in catch in

1 year (from 664 mt to 265 mt). The consequences of the phase-down are

that the ABC and HG in 1998, and possibly subsequent years, most likely

will be lower than they would have been if 1997 catches did not exceed

ABC. The Council intends that the HG be set equal to ABC in 1998.

Bocaccio also are particularly difficult to manage, because of the

multiplicity of gear types involved, including trawl, set

[[Page 709]]

net and recreational fisheries. The 2-month cumulative trip limit in

the limited entry fishery is substantially reduced from 60,000 lb

(27,216 kg) in 1996 to 12,000 lb (5,443 kg) in 1997. Additional trip

limits specific to bocaccio have been placed on the open access fishery

in 1997. Bycatch of rockfish in the shrimp and prawn trawl fisheries is

being addressed by reducing the groundfish trip limits to 500 lb (227

kg) in 1997, one third of the 1996 shrimp trip limit and one half of

the 1996 prawn trip limit.

Canary Rockfish

The 1997 ABC for canary rockfish in the Vancouver/Columbia area is

1,220 mt, slightly higher than the 1,000-mt ABC in 1996. A new

assessment for canary rockfish used two models that estimate the 1995

spawning biomass is 18-33 percent of the 1967 value. Both models

predict yield and spawning biomass levels will decline during 1997-

1999. For both models combined, the average catch projection for the

next 3 years is 1,220 mt when average recruitment is assumed. The HG

for canary rockfish is increased from 850 mt for landed catch in 1996

to 1,000 mt for total catch in 1997 to account for estimated discards.

Yellowtail Rockfish

The 1997 ABC for yellowtail rockfish in the Vancouver/Columbia/

Eureka area is 1,773 mt, 4,667 mt lower than the 6,440-mt ABC in 1996.

(The stock assessment determined ABCs for different areas. The 1997 ABC

is prorated in Table 1 to apply north and south of the Columbia-Eureka

boundary for consistency with other species in the Sebastes complex.)

The results of the new assessment have caused a great deal of concern

because they conflict with the impressions of many who fish for

yellowtail rockfish. For the Eureka/south Columbia area (south of Cape

Falcon (45 deg.46' N. lat.)), addition of 1995-96 stock assessment data

resulted in substantial reductions in estimates of biomass and

recruitment of the 1984 year class in 1988 (to 20 percent of its former

level). For the north Columbia area (north of Cape Falcon), addition of

the 1995-96 data also reduced estimates of biomass and recruitment.

Major changes did not occur in the U.S. Vancouver area. Available

fishery age-composition data indicate that fish older than 25 years

have all but disappeared from the fishery. Additionally, there is no

evidence of any strong incoming year classes. Only half the population

is mature 3 or 4 years after recruiting to the fishery, so immature

fish have a relatively high likelihood of being caught before they have

had an opportunity to contribute to building future biomass. Given this

new information, it appears that yellowtail rockfish may have been

fished for the last several years above the overfishing threshold.

The recommended 1997 HG of 2,762 mt for yellowtail rockfish in the

Vancouver/Columbia area represents total catch, whereas the 3,590-mt HG

in 1996 was for landed catch (equivalent to 4,160 mt for total catch).

The Council recommended that the 1997 HG be set at, but not above, the

overfishing threshold. Fishing is allowed at, but not above, the

overfishing threshold of 2,762 mt in 1997 in order to mitigate the

sudden and severe economic impact to the fishing industry that would

occur if the HG were reduced from the 1996 ABC of 6,440 mt to the 1997

ABC of 1,773 mt in a single year. The Council recognized, however, the

need to adjust catches to the ABC level as soon as possible, and

consequently, announced its intent that this phase-down in harvest last

only a single year and that it intended to recommend a 1998 HG

equivalent to the 1998 ABC. Fishing at the overfishing threshold for

1997 is expected to result in a lower ABC and HG in 1998 than if the

1997 harvest did not exceed ABC, but the fishing industry will have had

a full year to adjust to reduced harvest levels.

The Council carefully considered the possible impacts of continuing

to harvest at a level greater than ABC for 1 more year in contrast to

making the full adjustment to the ABC level in a single year. The

Council concluded, based on risk analysis conducted by the stock

assessment scientists, that the 1-year phase-down will cause only a

small further decline in the stock level while it buffers the economic

impact of the harvest reductions. Lower stock levels means the

likelihood of continued lower ABCs and HGs for the next few years until

the stock recovers sufficiently to allow higher harvests. The Council

also recommended the phase-down to allow sufficient time for further

analysis of some of the components of the stock assessment in order to

refine estimates of the ABC for 1998. Considerable public testimony

pointed to some indicators, such as yellowtail bycatch rates in the

whiting and shrimp trawl fisheries, that were contradictory to the

stock assessment results. A work plan was developed to examine some of

these indicators and redo the stock assessment during the upcoming year

so that the results could be used to set the 1998 ABC.

Yellowtail rockfish is particularly difficult to manage because it

is encountered as bycatch in other fisheries. A substantial portion of

the yellowtail harvest guideline is taken as bycatch in the whiting and

shrimp fisheries. Catch data from the whiting fishery have been

examined, and regulatory changes to reduce bycatch are not obvious. The

whiting ABC may be somewhat conservative in 1997, in part to suppress

the bycatch of yellowtail rockfish. The at-sea processing sector of the

whiting fishery has agreed to monitor its bycatch more closely, using

daily satellite transmissions to alert them to areas of high bycatch of

yellowtail rockfish, as was done to monitor salmon bycatch in 1996.

Bycatch of rockfish in the shrimp and prawn trawl fisheries is being

addressed by reducing the groundfish trip limits to 500 lb (227 kg) in

1997, one third of the 1996 shrimp trip limit and one half of the 1996

prawn trip limit. The target fishery for yellowtail rockfish is

addressed by reducing the trip limit, from 6,000 lb (2,722 kg) per

month north of Cape Lookout OR (45 deg.20'15'' N. lat.) and 35,000 lb

per month between Cape Lookout and Cape Mendocino CA (40 deg.30' N.

lat.) to 6,000 lb (2,722 kg) per 2-month period in both areas.

Remaining Rockfish

New assessments were provided for a number of previously unassessed

rockfish species (listed in table 1). ``Remaining rockfish'' includes

canary, POP, and yellowtail rockfish in the Eureka/Monterey/Conception

area, and bocaccio in the Vancouver/Columbia area--areas not included

in the individual HGs for these species. The ABCs were based on either

the ABC from the assessment or recent catch, whichever is less.

Other Rockfish

Assessments were not conducted for a number of other rockfish

species (``other rockfish''). The combined ABC for these species is set

at the recent landed catch.

Setting HGs Greater Than ABC

In most cases, HGs are less than or equal to the ABCs. However, the

Council recommended HGs that exceed the ABCs for POP and shortspine

thornyheads (as in 1996), yellowtail rockfish, and bocaccio. The FMP

requires that the Council consider certain factors when setting a HG

above an ABC. These factors were analyzed by the Council's Groundfish

Management Team (GMT) and considered at the Council's October 1996

meeting before the Council recommended the 1997 HGs. These factors also

were considered when establishing the 20-year rebuilding schedule for

POP in the 1981

[[Page 710]]

FMP, in the most recent stock assessments for POP (in the September

1995 SAFE document) and shortspine thornyheads (in the October 1994

SAFE document), and in the GMT's recommendations for 1996 (GMT Report

C.1., October 1995) and for 1997 (GMT Report C.4., October 1996).

Overfishing

The FMP defines ``overfishing'' as a fishing mortality rate that

would, in the long term, reduce the spawning biomass per recruit below

20 percent of what it would have been if the stock had never been

exploited (unless the species is above the level that would produce

maximum sustainable yield (MSY)). The rate is defined in terms of the

percentage of the stock removed per year. Therefore, high catch rates

can cause overfishing at any stock abundance level. Conversely,

overfishing does not necessarily occur for stocks at low abundance

levels if the catch can be kept to a sufficiently small fraction of

that stock level. The target rate for exploitation of Pacific Coast

groundfish typically is the rate that would reduce spawning biomass per

recruit to 35 percent of its unfished level. This desired rate of

fishing will always be less than the overfishing rate, so there is a

buffer between the management target and the level that could harm the

stock's long-term potential productivity. If the overfishing threshold

is reached, the Guidelines for Fishery Management Plans at 50 CFR part

600 require the Council to identify actions to be undertaken to

alleviate overfishing. As discussed above, efforts have been taken to

avoid exceeding the overfishing thresholds for bocaccio and yellowtail

rockfish in 1997 by reducing their HGs to the F20% level and by

instituting more restrictive trip limit management in 1997, that will

make it less likely that HGs will be reached before the end of the

year. In addition, the Council has expressed its intent to reduce the

HGs to the F35% level in 1998.

Foreign and Joint Venture Fisheries

For those species needing individual management that will not be

fully utilized by domestic processors or harvesters, and that can be

caught without severely affecting species that are fully utilized by

domestic processors or harvesters, foreign or joint venture operations

may occur. A joint venture occurs when U.S. vessels deliver their catch

to foreign processing vessels in the EEZ. A portion of the HGs or

quotas for these species may be apportioned to domestic annual harvest

(DAH), which in turn may be apportioned between domestic annual

processing (DAP) and joint venture processing (JVP). The portion of a

HG or quota not apportioned to DAH may be set aside as the total

allowable level of foreign fishing (TALFF). In January 1997, no surplus

groundfish are available for joint venture or foreign fishing

operations. Consequently, all the HGs in 1997 are designated entirely

for DAH and DAP (which are the same in this case); JVP and TALFF are

set at zero.

In the unlikely event that fish are reallocated inseason and a

foreign or joint venture fishery should occur, the incidental catch

levels would be as follows, subject to change during the year: For a

whiting fishery, the same as announced at Table 2, footnote 1, of 58 FR

2990 (January 7, 1993); for a jack mackerel joint venture, initially

the same as those suggested in section 12.5.2 of the FMP.

II. The Limited Entry Program

The FMP established a limited entry program that, on January 1,

1994, divided the commercial groundfish fishery into two components:

The limited entry fishery and the open access fishery, each of which

has its own allocations and management measures. The limited entry and

open access allocations are calculated according to a formula specified

in the FMP, which takes into account the relative amounts of a species

taken by each component of the fishery during the 1984-88 limited entry

window period. At its October 1996 meeting, the Council recommended the

species and areas subject to open access and limited entry allocations

in 1997, and the Regional Administrator calculated the amounts of the

allocations that are presented in Table 1. Unless otherwise specified,

the limited entry and open access allocations are treated as HGs in

1997.

Open Access Allocations

The open access fishery is composed of vessels that operated under

the HGs, quotas, and other management measures governing the open

access fishery, using (1) exempt gear, or (2) longline or pot (trap)

gear fished from vessels that do not have permits endorsed for use of

that gear. Exempt gear means all types of legal groundfish fishing gear

except groundfish trawl, longline, and pots. (Exempt gear includes

trawls used to harvest pink shrimp or spot or ridgeback prawns (shrimp

trawls), and, south of Point Arena, CA (38 deg.57'30'' N. lat.),

California halibut or sea cucumbers.)

The open access allocation is derived by applying the open access

allocation percentage to the annual HG or quota after subtracting any

set-asides for recreational or tribal fishing. For those species in

which the open access share would have been less than 1 percent, no

open access allocation is specified unless significant open access

effort is expected.

Limited Entry Allocations

The limited entry fishery means the fishery composed of vessels

using limited entry gear fished pursuant to the HGs, quotas, and other

management measures governing the limited entry fishery. Limited entry

gear means longline, pot, or groundfish trawl gear used under the

authority of a valid limited entry permit issued under the FMP, affixed

with an endorsement for that gear. (Groundfish trawl gear excludes

shrimp trawls used to harvest pink shrimp, spot prawns, or ridgeback

prawns, and other trawls used to fish for California halibut or sea

cucumbers south of Point Arena, CA.)

The limited entry allocation is the allowable catch (HG or quota)

reduced by: (1) Set-asides, if any, for treaty Indian fisheries or

recreational fisheries; and (2) the open access allocation. In 1996, a

new definition was added for ``commercial harvest guideline'', (the

commercial harvest guidelines are set forth in Table 1). It is the HG

minus the amount set aside for tribal or recreational fishing and,

therefore, is the number that, when multiplied by the open access

allocation percentages, provides the open access and limited entry

allocations. Estimates of recreational harvest are subtracted for two

species in 1997, 55 mt for bocaccio (which also is reflected in the

allocations for the Sebastes complex in the Eureka, Monterey, and

Conception subareas), and 900 mt for lingcod. Allocations for

Washington coastal tribal fisheries are discussed in paragraph V.

III. 1997 Management Measures

Projections of landings in 1996 are based on the information

available to the Council at its October 1996 meeting (GMT Supplemental

Report C.4., October 1996).

A. Limited Entry Fishery

The following management measures apply to vessels operating in the

limited entry fishery starting January 1, 1997, and are designed to

keep landings within the HGs or limited entry allocations. Cumulative

trip limits continue to be used for most of the limited entry fishery,

which allows fishers to accumulate fish over a period of time without

limit on the number of landings. Two-month cumulative limits

[[Page 711]]

will continue to be used for most of the limited entry fishery in 1997.

As in 1996, no more than 60 percent of a 2-month limit may be taken in

either calendar month, resulting in a variable monthly trip limit

within the 2-month limit. This enables the limited entry fleet to

maintain its current monthly fishing pattern, target on 50 percent of

the 2-month cumulative limit in a month, and have the protection of a

buffer equivalent to 10 percent of the 2-month cumulative limit to

account for inaccuracies in weighing fish at sea or for small amounts

caught above the target level. Unless otherwise announced later in the

year, the 2-month periods are: January-February, March-April, May-June,

July-August, September-October, and November-December. One-month

periods may be used later in the year.

Platooning

An optional platooning system is added for 1997, that enables the

limited entry trawl fleet to provide a more consistent supply of fish

to processors. Whereas the cumulative limits normally apply by calendar

month (this would be considered the ``A'' platoon), a vessel in the

``B'' platoon would choose to operate under limits out of phase by 2

weeks, from the 16th to the 15th of the month. All limited entry trawl

vessels will automatically be in the ``A'' platoon, unless the permit

owner indicated in the annual permit renewal that the permitted vessel

will participate in the ``B'' platoon. Vessels operating in the ``B''

platoon will not be able to land any species of groundfish from January

1-15, 1997. The effective date of any inseason changes to the

cumulative trip limits also will be delayed for 2 weeks for the ``B''

platoon so that a vessel's ``B'' limit will not be changed during its

cumulative trip limit period. Special provisions will be made to

accommodate ``B'' vessels at the end of the year so that the amount of

fish made available to both ``A'' and ``B'' vessels is the same. A

vessel in the ``B'' platoon will have the same cumulative trip limit

for the final period as vessels in the ``A'' platoon, but the final

period may be 2 weeks shorter, so that both the ``A'' and ``B'' fishing

periods end on December 31, 1997. For example, if the last period is a

2-month cumulative trip limit for November-December, the vessel would

be able to take it in 6 weeks (November 16-December 31) without a 60-

percent monthly limit. The choice of platoon applies to the permit for

the entire calendar year, even if the permit is sold, leased, or

otherwise transferred. The platoon system is experimental and may not

be continued in 1998 if the Council decides the benefit does not

outweigh the administrative burden.

Widow Rockfish

In 1996, the 2-month cumulative limit of 70,000 lb (31,752 kg) was

in effect until September, at which time it was reduced to 50,000 lb

(27,680 kg). In November, a monthly cumulative limit of 25,000 lb

(11,340 kg) was applied until the end of the year. Landings were

projected to be 6,275 mt in 1996, within 1 percent of the HG. In 1997,

the year will start with the same cumulative limits as in 1996: 70,000

lb (31,752 kg) per 2-month period.

The Sebastes Complex (Including Yellowtail Rockfish, Canary Rockfish,

and Bocaccio)

Beginning in January 1996, the 2-month cumulative trip limits for

the Sebastes complex were: 70,000 lb (31,752 kg) north of Cape Lookout

(45 deg.20'15'' N. lat.), 100,000 lb (45,359 kg) between Cape Lookout

and Cape Mendocino (40 deg.30' N. lat.), and 200,000 lb (90,719 kg)

south of Cape Mendocino. Two-month cumulative limits also applied to

yellowtail rockfish, canary rockfish and bocaccio, which counted toward

the limits for the Sebastes complex. Beginning in January 1996, these

limits were: Yellowtail rockfish--32,000 lb (14,515 kg) north of Cape

Lookout or 70,000 lb (31,752 kg) between Cape Lookout and Cape

Mendocino; canary rockfish--18,000 lb (8,165 kg); bocaccio south of

Cape Mendocino--60,000 lb (27,216 kg). These limits remained in effect

until September 1996, at which time the 2-month cumulative limit for

yellowtail was reduced to 20,000 lb (9,072 kg) north of Cape Lookout.

In November, all the trip limits for the Sebastes complex north of Cape

Mendocino were converted to 1-month cumulative limits to provide more

management flexibility. The 1-month limits were set at half the

poundage of the 2-month cumulative limits, except for yellowtail

rockfish north of Cape Lookout, which was reduced to 6,000 lb (2,722

kg).

By the end of 1996, landings are projected to be as follows:

Sebastes complex in the Vancouver/Columbia area--8,583 mt (19 percent

below the HG); yellowtail rockfish north of Cape Lookout--3,144 mt (5

percent over the HG), but this projection was made before the

cumulative limit was reduced in November 1996; yellowtail rockfish

south of Cape Lookout--1,621 mt (33 percent below the HG); canary

rockfish--868 mt (2 percent below the HG); and bocaccio--654 mt,

including estimated recreational catch (56 percent below the HG).

In January 1997, the 2-month cumulative trip limits for the

Sebastes complex are 30,000 lb (13,608 kg) north of Cape Mendocino and

150,000 lb (68,039 kg) south of Cape Mendocino. Within these limits, no

more than 14,000 lb (6,350 kg) may be canary rockfish; 6,000 lb (2,722

kg) may be yellowtail rockfish north of Cape Mendocino; and 12,000 lb

(5,443 kg) may be bocaccio south of Cape Mendocino. The yellowtail and

bocaccio cumulative trip limits are substantially reduced because of

severe reductions in their HGs. As discussed above, both yellowtail and

bocaccio will be fished at their overfishing threshold in 1997, as a 1-

year step down to fishing at F35%. Both species are particularly

difficult to manage because of the multiplicity of gear types involved.

A substantial portion of the yellowtail HG is taken as bycatch in the

whiting and shrimp fisheries. Catch data from the whiting fishery have

been examined, and regulatory changes to reduce bycatch are not

obvious. The whiting ABC may be somewhat conservative in 1997, in part

to suppress the bycatch of yellowtail rockfish. The at-sea processing

sector of the whiting fishery has agreed to monitor its bycatch more

closely, using daily satellite transmissions to alert them to areas of

high bycatch, as was done to monitor salmon bycatch in 1996. Bycatch of

rockfish in the shrimp and prawn trawl fisheries is being addressed by

reducing the groundfish trip limits from 1,500 lb (680 kg) and 1,000 lb

(454 kg), respectively, to 500 lb (227 kg) of groundfish in 1997.

Management of bocaccio is further complicated by a significant

recreational harvest; bag limit reductions may be necessary in the

future.

The declaration procedures, instituted by the States of Oregon and

Washington for vessels operating on both sides of Cape Lookout, are no

longer in effect because the cumulative limits no longer differ north

and south of Cape Lookout.

POP

In 1996, the 2-month cumulative trip limit for POP of 10,000 lb

(4,536 kg) continued until July 1, when it was reduced to 8,000 lb

(3,629 kg). Landings were projected to be 771 mt in 1996, 4 percent

above the HG. With the 1997 HG the same as in 1996, the 2-month

cumulative limit will be set again at 8,000 lb (3,629 kg) beginning in

January 1997. POP is managed to achieve a rebuilding schedule, so trip

limits will not be increased to achieve the HG.

[[Page 712]]

Sablefish

The sablefish HG is subdivided among several fisheries. The tribal

fishery allocation is set aside prior to dividing the balance of the HG

between the commercial limited entry and open access fisheries. These

three fisheries are managed differently. The limited entry allocation

is further subdivided into trawl (58 percent) and nontrawl (42 percent)

allocations. Trawl-caught sablefish are managed together with Dover

sole and thornyheads as the DTS complex because they often are caught

together. A projection for landings of nontrawl sablefish is not yet

available because data from the October mop-up fishery have not been

confirmed.

DTS Complex (Dover Sole, Thornyheads, and Trawl-Caught Sablefish)

In 1996, the 2-month cumulative trip limits for the DTS complex

remained in effect throughout the year, as follows: 70,000 lb (31,752

kg) north of Cape Mendocino and 100,000 lb (45,359 kg) south of Cape

Mendocino. Within the cumulative limits for the DTS complex there were

limits for Dover sole, thornyheads, and trawl-caught sablefish. The

cumulative limits for thornyheads (20,000 lb (9,072 kg), of which no

more than 4,000 lb (1,814 kg) could be shortspine thornyheads) and for

trawl-caught sablefish (12,000 lb (5,443 kg)) remained in effect the

entire year, as did the 500-lb (227-kg) ``per trip'' limit on sablefish

smaller than 22 inches (56 cm) total length. Initially, the limit on

Dover sole was the amount of the DTS cumulative limit remaining after

subtracting sablefish and thornyheads. In July, this was changed north

of Cape Mendocino to a specific trip limit of 38,000 lb (17,236 kg) to

protect Dover sole in the Columbia area. Landings of sablefish (trawl-

caught), Dover sole (coastwide and in the Columbia area), and

shortspine thornyheads are expected to be within 10 percent of their

respective HGs in 1996. Landings of longspine thornyheads are projected

to be 33 percent below the HG in 1996. In 1997, the trip limits will

continue at the same levels that have been in effect since July 1996.

Nontrawl Sablefish

Small daily trip limits were applied to the nontrawl fishery again

in 1996 before and after the September 1-5, 1996 ``regular'' and

October 1-14, 1996 ``mop-up'' seasons. A 300-lb (136-kg) daily trip

limit was applied only north of the Conception subarea (36 deg.00' N.

lat.), the same area covered by the HG. In the Conception area, where

there is no HG and landings had been below the 425-mt ABC in 1996, the

daily trip limit was set at 350 lb (159 kg) to accommodate most

landings without encouraging excessive effort shifts into that area.

The trip limit for sablefish smaller than 22 inches (56 cm) of 1,500 lb

(680 kg) or 3 percent of all legal sablefish on board, whichever is

greater, remained in effect during the regular and mop-up seasons.

In 1996, as in 1995, the regular (derby) season was preceded by a

72-hour closure for all limited entry and open access fixed gear used

to take and retain groundfish, with one exception. Pot gear could be

set 24 hours before the regular season because this gear takes longer

to deploy.

In 1997, the same daily trip limits for the limited entry fishery

will apply outside the regular and mop-up seasons and any closure. The

``per trip'' limit for nontrawl sablefish smaller than 22 inches (56

cm) will remain in effect during the regular and mop-up fisheries. The

Council recommended a number of management changes for 1997 that have

not yet been approved by NMFS. These recommendations are summarized in

paragraph IV.E.(3)(c). The Council also is considering different

management strategies for 1998 and beyond, but has not yet submitted a

recommendation to NMFS.

Whiting

Approximately 212,900 mt of whiting was harvested in 1996, 85,125

mt by the shore-based fleet, 112,776 mt by the at-sea processing sector

(which includes deliveries to motherships), and about 15,000 mt by the

Makah tribal fishery. The 10,000-lb (4,536-kg) trip limit for whiting

taken before and after the regular whiting season and inside the 100-

fathom (183-m) contour in the Eureka subarea (40 deg.30'-43 deg.00' N.

lat.) continues in effect in 1997. Additional regulations, including

the allocation of whiting among non-tribal sectors, are found at 50 CFR

660.323(a)(4). The Council has recommended a number of changes that are

summarized in paragraph IV.F. These changes have not yet been approved

by NMFS.

Lingcod

The 2-month cumulative trip limit for lingcod is the same in 1997

as throughout 1996, 40,000 lb (18,144 kg) per 2-month period. As in

1996, lingcod smaller than 22 inches (56 cm) may not be landed in the

commercial or recreational fisheries except for 100-lb (45-kg) per trip

for trawl-caught lingcod. Landings of lingcod are projected at 2,708 mt

in 1996, including estimated recreational catch, 8 percent below the

HG.

Black Rockfish

Black rockfish off the State of Washington continue to be managed

under the regulations at 50 CFR 660.323(a)(1) for non-tribal fisheries.

The State of Oregon implements trip limits for black rockfish off the

Oregon coast.

B. Open Access Fishery

The trip limits for the open access fishery are designed to keep

landings within the open access allocation, while allowing the

fisheries to operate for as long as possible during the year. The

overall open access limits for rockfish, sablefish, and ``all

groundfish'' in 1997 are the same as in 1996 with several exceptions:

(1) The thornyhead open access allocation of only 3 mt is expected to

be taken entirely as incidental catch in open access fisheries for

other species. Consequently, north of Pt. Conception thornyheads may

not be taken and retained, possessed, or landed, as has been the case

since May 1996; (2) the monthly cumulative trip limit for rockfish is

applied coastwide in 1997, whereas in 1996, it differed north and south

of Cape Lookout; (3) additional limits are established for bocaccio:

For setnets or trammel nets, no more than 4,000 lb (1,814 kg) of

bocaccio cumulative per month south of Cape Mendocino; and, for hook-

and-line or pot gear, no more than 2,000 lb (907 kg) of bocaccio

cumulative per month south of Cape Mendocino, of which no more than 300

lb (136 kg) may be taken per trip; (4) language is changed to clarify

that open access nontrawl gear may not exceed limits that apply to

limited entry nontrawl gear; (5) daily trip limits for sablefish will

apply to all open access gear in 1997, not only to nontrawl gear as was

the case in 1996; and (6) trip limits for groundfish are reduced from

1,500 lb (680 kg) in the shrimp trawl fishery and 1,000 lb (454 kg) in

the prawn trawl fishery to 500 lb (227 kg), including the 300-lb (136-

kg) daily trip limit for sablefish. The reduction in the groundfish

limit is primarily to discourage bycatch of yellowtail and other

rockfish.

C. Operating in Both Limited Entry and Open Access Fisheries

Vessels using open access gear are subject to the management

measures for the open access fishery, regardless of whether the vessel

has a valid limited entry permit endorsed for any other gear. In

addition, a vessel operating in the open access fishery must not exceed

any trip limit, frequency limit, and/or

[[Page 713]]

size limit (for the same area) in the limited entry fishery.

A vessel that operates in both the open access and limited entry

fisheries is not entitled to two separate trip limits for the same

species. Fish caught with open access gear will also be counted toward

the limited entry trip limit. For example: In January, a trawl vessel

catches 7,000 lb (3,175 kg) of sablefish in the limited entry fishery,

and in the same month catches 1,000 lb (454 kg) of sablefish with

shrimp trawl (open access) gear, for a total of 8,000 lb (3,629 kg) of

sablefish. Because the open access landings are counted toward the

limited entry limit, the vessel would have exceeded its limited entry,

cumulative limit of 7,200 lb (3,266 kg) (60 percent of the 12,000-lb

(5,443-kg) 2-month cumulative limit for the limited entry fishery).

D. Operating in Areas With Different Trip Limits

Trip limits may differ for a species or species complex at

different locations on the coast. Unless otherwise stated (as for black

rockfish or for species with daily trip limits), the cross-over

provisions at paragraph IV.A.(12) apply. In general, a vessel fishing

for groundfish in a more restricive area is subject to the more

restrictive limit for the duration of that trip limit period. In 1997,

these provisions are relaxed to apply only to vessels taking and

retaining groundfish rather than any species. Since trip limits for the

Sebastes complex and yellowtail rockfish will be the same in Washington

and Oregon in 1997, Washington and Oregon State declaration procedures

that enabled a vessel to operate on both sides of the line and harvest

the larger limit no longer are in effect.

E. Changes to Trip Limits; Closures

Unless otherwise stated, a vessel must have initiated offloading

its catch before the fishery is closed or before a more restrictive

trip limit becomes effective. As in the past, all fish on board the

vessel when offloading begins are counted toward the landing limits

(See 50 CFR 660.302, formerly 50 CFR 663.2, for the definition of

``landing'').

F. Designated Species B Permits

Designated species B permits may be issued if the limited entry

fleet will not fully utilize the HG for Pacific whiting, shortbelly

rockfish, or jack mackerel north of 39 deg. North latitude. The limited

entry fleet has requested the full use of shortbelly rockfish and

Pacific whiting, but less than half of the HG for jack mackerel in

1997. Since no applications were received before the November 1

deadline, NMFS does not expect to issue Designated Species B permits in

1997.

G. Recreational Fishing

Bag limits in the 1997 recreational fishery remain the same as in

1996 with one exception. The bag limit for rockfish in Washington State

is reduced to 10 fish throughout the State to be consistent with State

laws protecting black rockfish.

IV. NMFS Actions

For the reasons stated above, the Assistant Administrator for

Fisheries, NOAA (Assistant Administrator), concurs with the Council's

recommendations and announces the following management actions for

1997, including those that are the same as in 1996.

A. General Definitions and Provisions

The following definitions and provisions apply to the 1997

management measures, unless otherwise specified in a subsequent notice:

(1) Trip limits. Trip limits are used in the commercial fishery to

specify the amount of fish that may legally be taken and retained,

possessed, or landed, per vessel, per fishing trip, or cumulatively per

unit of time, or the number of landings that may be made from a vessel

in a given period of time, as explained below.

(a) A trip limit is the total allowable amount of a groundfish

species or species complex, by weight, or by percentage of weight of

legal fish on board, that may be taken and retained, possessed, or

landed per vessel from a single fishing trip.

(b) A daily trip limit is the maximum amount that may be taken and

retained, possessed, or landed per vessel in 24 consecutive hours,

starting at 0001 hours local time. Only one landing of groundfish may

be made in that 24-hour period. Daily trip limits may not be

accumulated during multiple day trips.

(c) A cumulative trip limit is the maximum amount that may be taken

and retained, possessed, or landed per vessel in a specified period of

time, without a limit on the number of landings or trips.

(i) Limited entry fishery. Unless otherwise specified, cumulative

trip limits in the limited entry fishery apply to 2-month periods. No

more than 60 percent of the applicable 2-month cumulative limit may be

taken and retained, possessed or landed in either month of a 2-month

period; this is called the ``60-percent monthly limit.'' The 2-month

periods are: January-February, March-April, May-June, July-August,

September-October, and November-December. Different cumulative periods

may be announced later in the year.

(ii) Open access fishery. Unless otherwise specified, cumulative

trip limits apply to 1-month periods in the open access fishery. Within

these limits, in any calendar month, no more than 50 percent of the

applicable 2-month cumulative limit for the limited entry fishery may

be taken and retained, possessed, or landed from a vessel in the open

access fishery; this is called the ``50-percent monthly limit.''

(iii) Platooning--limited entry trawl vessels. Limited entry trawl

vessels are automatically in the ``A'' platoon, which means a vessel's

cumulative trip limit periods begin and end on the beginning and end of

a calendar month as in the past. If a limited entry trawl permit is

authorized for the ``B'' platoon (which, in 1997, will require a

separate letter from NMFS to be attached to the limited entry permit),

then cumulative trip limit periods will begin 2 weeks later than for

the ``A'' platoon.

(A) For a vessel in the ``B'' platoon, cumulative trip limit

periods begin on the 16th of the month and end on the 15th of the

month. Therefore, the management measures announced herein that are

effective on January 1, 1997, for the ``A'' platoon will be effective

on January 16, 1997, for the ``B'' platoon. The effective date of any

inseason changes to the cumulative trip limits also will be delayed for

2 weeks for the ``B'' platoon.

(B) A vessel authorized to operate in the ``B'' platoon may take

and retain, but may not land, groundfish from January 1, 1997, through

January 15, 1997.

(C) Special provisions will be made for ``B'' platoon vessels later

in the year so that the amount of fish made available in 1997 to both

``A'' and ``B'' vessels is the same. For example, a vessel in the ``B''

platoon will have the same cumulative trip limit for the final period

as a vessel in the ``A'' platoon, but the final period may be 2 weeks

shorter so that both fishing periods end on the same date.

(2) Unless the fishery is closed, a vessel that has landed its

cumulative or daily limit may continue to fish on the limit for the

next legal period, so long as no fish (including, but not limited to,

groundfish with no trip limits, shrimp, prawns, or other nongroundfish

species or shellfish) are landed (offloaded) until the next legal

period. As stated in the regulations at 50 CFR 660.302 (formerly 50 CFR

663.2, the definition of ``landing''), once offloading of any species

begins, all fish aboard the vessel are counted as part of the landing.

[[Page 714]]

(3) All weights are round weights or round-weight equivalents.

(4) Percentages are based on round weights, and, unless otherwise

specified, apply only to legal fish on board.

(5) ``Legal fish'' means fish legally taken and retained,

possessed, or landed in accordance with the provisions of 50 CFR part

660 (previously 50 CFR part 663), the Magnuson-Stevens Fishery

Conservation and Management Act (Magnuson-Stevens Act), any notice

issued under part 660 (previously subpart B of 50 CFR part 663), and

any other regulation promulgated or permit issued under the Magnuson-

Stevens Act.

(6) Size limits and length measurement. Unless otherwise specified,

size limits in the commercial and recreational groundfish fisheries

apply to the longest measurement of the fish without mutilation of the

fish or the use of force to extend the length of the fish. No fish with

a size limit may be retained if it is in such condition that its length

has been extended or cannot be determined by these methods.

(a) For a whole fish, total length will be measured from the tip of

the snout (mouth closed) to the tip of the tail in a natural, relaxed

position.

(b) For a fish with the head removed (``headed''), the length will

be measured from the origin of the first dorsal fin (where the front

dorsal fin meets the dorsal surface of the body closest to the head) to

the tip of the upper lobe of the tail; the dorsal fin and tail must be

left intact.

(7) ``Closure,'' when referring to closure of a fishery, means that

taking and retaining, possessing, or landing the particular species or

species group is prohibited. (See the regulations at 50 CFR 660.302

(previously 50 CFR 663.2).) Unless otherwise announced in the Federal

Register, offloading must begin before the time the fishery closes.

(Note: The Council recommended requiring fixed gear to be out of

the water at the end of the regular season for sablefish rather than

requiring offloading to have begun. This recommendation has not yet

been approved.)

(8) The fishery management area for these species is the EEZ off

the coasts of Washington, Oregon, and California between 3 and 200 nm

offshore, bounded on the north by the Provisional International

Boundary between the United States and Canada, and bounded on the south

by the International Boundary between the United States and Mexico. All

groundfish possessed between 0-200 nm offshore, or landed in,

Washington, Oregon, or California are presumed to have been taken and

retained from the EEZ, unless otherwise demonstrated by the person in

possession of those fish.

(9) Inseason changes to trip limits are announced in the Federal

Register. Most trip and bag limits in the groundfish fishery have been

designated ``routine,'' which means they may be changed rapidly after a

single Council meeting. Information concerning changes to trip limits

is available from the NMFS Northwest and Southwest Regional Offices

(see ADDRESSES). Changes to trip limits are effective at the times

stated in the Federal Register. Once a change is effective, it is

illegal to take and retain, possess, or land more fish than allowed

under the new trip limit. This means, unless otherwise announced in the

Federal Register, offloading must begin before the time a fishery

closes or a more restrictive trip limit takes effect.

(10) It is unlawful for any person to take and retain, possess, or

land groundfish in excess of the landing limit for the open access

fishery without having a valid limited entry permit for the vessel

affixed with a gear endorsement for the gear used to catch the fish (50

CFR 660.306(p), formerly 50 CFR 663.7(t)).

(11) Operating in both limited entry and open access fisheries. The

open access trip limit applies to any fishing conducted with open

access gear, even if the vessel has a valid limited entry permit with

an endorsement for another type of gear. A vessel that operates in both

the open access and limited entry fisheries is not entitled to two

separate trip limits for the same species. Fish caught with open access

gear will also be counted toward the limited entry trip limit.

(12) Operating in areas with different trip limits. Trip limits for

a species or species complex may differ in different geographic areas

along the coast. The following ``crossover'' provisions apply to

vessels operating in different geographical areas that have different

cumulative or ``per trip'' trip limits for the same species or species

complex. They do not apply to species that are only subject to daily

trip limits, or to the trip limits for black rockfish off the State of

Washington (see 50 CFR 660.323(a)(1), previously 50 CFR 663.23(b)). In

1997, the trip limit period for cumulative trip limits is 2 months for

the limited entry fishery and 1 month for the open access fishery,

unless otherwise specified.

(a) Going From A More Restrictive To A More Liberal Area: If a

vessel takes and retains any species of groundfish in an area where a

more restrictive trip limit applies, before fishing in an area where a

more liberal trip limit (or no trip limit) applies, then that vessel is

subject to the more restrictive trip limit for the entire period to

which that trip limit applies, no matter where the fish are taken and

retained, possessed, or landed.

(b) Going From A More Liberal To A More Restrictive Area: If a

vessel takes and retains a species (or species complex) in an area

where a higher trip limit (or no trip limit) applies, and possesses or

lands that species (or species complex) in an area where a more

restrictive trip limit applies, then that vessel is subject to the more

restrictive trip limit for that trip limit period.

(13) Sorting. Regulations at 50 CFR 660.306(h) (formerly 50 CFR

663.7(l)) make it unlawful for any person to ``fail to sort, prior to

the first weighing after off loading, those groundfish species or

species groups for which there is a trip limit, if the weight of the

total delivery exceeds 3,000 lb (1,361 kg) (round weight or round

weight equivalent).'' This provision applies to both the limited entry

and open access fisheries.

(Note: The Council has recommended that this regulation be

changed to require all species or species groups with a trip limit,

HG, or quota to be sorted. There would be no exception for landings

under 3,000 lb (1,361 kg). The States of Washington and Oregon

already have the same or similar requirements. If approved, the

regulation is expected to be implemented in 1997, after publication

in the Federal Register.)

(14) Exempted fisheries. U.S. vessels operating under an exempted

(formerly experimental) fishing permit issued under 50 CFR part 600

(formerly 50 CFR 663.10) also are subject to these restrictions, unless

otherwise provided in the permit.

(15) Paragraphs IV.B. through IV.I. pertain to the commercial

groundfish fishery, but not to Washington coastal tribal fisheries

which are described in paragraph V. The provisions in paragraphs IV.B.

through IV.I. that are not covered under the headings ``limited entry''

or ``open access'' apply to all vessels in the commercial fishery that

take and retain groundfish, unless otherwise stated. Paragraph IV.J.

pertains to the recreational fishery.

(16) Commonly used geographical coordinates.

(a) Cape Falcon, OR--45 deg.46' N. lat.

(b) Cape Lookout, OR--45 deg.20'15'' N. lat.

(c) Cape Mendocino, CA--40 deg.30' N. lat.

(d) Point Conception, CA--34 deg.27' N. lat.

[[Page 715]]

(e) International North Pacific Fisheries Commission (INPFC)

subareas (for more precise coordinates for the Canadian and Mexican

boundaries, see 50 CFR 660.304 (formerly 663.5):

(i) Vancouver--U.S.-Canada border to 47 deg.30' N. lat.

(ii) Columbia--47 deg.30' to 43 deg.00' N. lat.

(iii) Eureka--43 deg.00' to 40 deg.30' N. lat.

(iv) Monterey--40 deg.30' to 36 deg.00' N. lat.

(v) Conception--36 deg.00' N. lat. to the U.S.-Mexico border.

B. Widow Rockfish (Commonly Called Brownies)

(1) Limited entry fishery. The cumulative trip limit for widow

rockfish is 70,000 lb (31,752 kg) per vessel per 2-month period. The

60-percent monthly limit is 42,000 lb (19,051 kg).

(2) Open access fishery. Within the limits at paragraph IV.I. for

the open access fishery, the 50-percent monthly limit for widow

rockfish is 35,000 lb (15,876 kg).

C. Sebastes Complex (including Bocaccio, Yellowtail, and Canary

Rockfish)

(1) General. Sebastes complex means all rockfish managed by the FMP

except Pacific ocean perch (Sebastes alutus), widow rockfish (S.

entomelas), shortbelly rockfish (S. jordani), and Sebastolobus spp.

(also called thornyheads, idiots, or channel rockfish). Yellowtail

rockfish (S. flavidus) are commonly called greenies. Bocaccio (S.

paucispinis) are commonly called rock salmon. Canary rockfish (S.

pinniger) are commonly called orange rockfish.

(2) Limited entry fishery. (a) Cumulative trip limits. (i) North of

Cape Mendocino. The cumulative trip limit for the Sebastes complex

taken and retained north of Cape Mendocino is 30,000 lb (13,608 kg) per

vessel per 2-month period. Within this cumulative trip limit for the

Sebastes complex, no more than 6,000 lb (2,722 kg) may be yellowtail

rockfish taken and retained north of Cape Mendocino, and no more than

14,000 lb (6,350 kg) may be canary rockfish.

(ii) South of Cape Mendocino. The cumulative trip limit for the

Sebastes complex taken and retained south of Cape Mendocino is 150,000

lb (68,039 kg) per vessel per 2-month period. Within this cumulative

trip limit for the Sebastes complex, no more than 12,000 lb (5,443 kg)

may be bocaccio taken and retained south of Cape Mendocino, and no more

than 14,000 lb (6,350 kg) may be canary rockfish.

(iii) The 60-percent monthly limits are: For the Sebastes complex,

18,000 lb (8,165 kg) north of Cape Mendocino, and 90,000 lb (40,823 kg)

south of Cape Mendocino; for yellowtail rockfish, 3,600 lb (1,633 kg)

north of Cape Mendocino; for bocaccio south of Cape Mendocino, 7,200 lb

(3,266 kg); and for canary rockfish coastwide, 8,400 lb (3,810 kg).

(b) For operating in areas with different trip limits for the same

species, see paragraph IV.A.(12) above.

(3) Open access fishery. If smaller than the limits at paragraph

IV.I., the following cumulative monthly trip limits apply (within the

limits at paragraph IV.I.): For the Sebastes complex, 15,000 lb (6,804

kg) north of Cape Mendocino, and 75,000 lb (34,019 kg) south of Cape

Mendocino; for yellowtail rockfish, 3,000 lb (1,361 kg) north of Cape

Mendocino; for bocaccio, 6,000 lb (2,722 kg) south of Cape Mendocino;

and, for canary rockfish, 7,000 lb (3,175 kg) coastwide.

D. POP

(1) Limited entry fishery. The cumulative trip limit for POP is

8,000 lb (3,629 kg) per vessel per 2-month period. The 60-percent

monthly limit is 4,800 lb (2,177 kg).

(2) Open access fishery. Within the limits at paragraph IV.I.

below, the 50-percent monthly limit for POP is 4,000 lb (1,814 kg).

E. Sablefish and the DTS Complex (Dover Sole, Thornyheads, and Trawl-

Caught Sablefish

(1) 1997 Management goal. The sablefish fishery will be managed to

achieve the 7,800-mt HG in 1997.

(2) Limited entry fishery. (a) Gear allocations. After subtracting

the tribal-imposed catch limit and the open access allocation from the

HG for sablefish, the remainder is allocated 58 percent to the trawl

fishery and 42 percent to the nontrawl fishery.

(Note: The 1997 HG for sablefish north of 36 deg. N. lat. is

7,800 mt. The 780-mt tribal allocation is subtracted, and the

limited entry and open access allocations are based on the remaining

7,020 mt. The limited entry allocation of 6,557 mt for 1996 is

allocated 3,803 mt (58 percent) to the trawl fishery and 2,754 mt

(42 percent) to the nontrawl fishery. The trawl and nontrawl gear

allocations are HGs in 1997, which means the fishery will be managed

not to exceed the HGs, but will not necessarily be closed if the HGs

are reached.)

(b) Limited entry trip and size limits for the DTS complex. ``DTS

complex'' means Dover sole (Microstomus pacificus), thornyheads

(Sebastolobus spp.), and trawl-caught sablefish (Anoplopoma fimbria).

Sablefish are also called blackcod. Thornyheads, also called idiots,

channel rockfish, or hardheads, include two species: Shortspine

thornyheads (S. alascanus) and longspine thornyheads (S. altivelis).

These provisions apply to Dover sole and thornyheads caught with any

limited entry gear and to sablefish caught with limited entry trawl

gear.

(i) North of Cape Mendocino. The cumulative trip limit for the DTS

complex taken and retained north of Cape Mendocino is 70,000 lb (31,752

kg) per vessel per 2-month period. Within this cumulative trip limit,

no more than 12,000 lb (5,443 kg) may be sablefish, no more than 38,000

lb (17,236 kg) may be Dover sole, and no more than 20,000 lb (9,072 kg)

may be thornyheads. No more than 4,000 lb (1,814 kg) of the thornyheads

may be shortspine thornyheads.

(ii) South of Cape Mendocino. The cumulative trip limit for the DTS

complex taken and retained south of Cape Mendocino is 100,000 lb

(45,359 kg) per vessel per 2-month period. Within this cumulative trip

limit, no more than 12,000 lb (5,443 kg) may be sablefish, and no more

than 20,000 lb (9,072 kg) may be thornyheads. No more than 4,000 lb

(1,814 kg) of the thornyheads may be shortspine thornyheads.

(iii) The 60-percent monthly limits are: For the DTS complex,

42,000 lb (19,051 kg) north of Cape Mendocino, and 60,000 lb (27,216

kg) south of Cape Mendocino; for trawl-caught sablefish, 7,200 lb

(3,266 kg); for Dover sole north of Cape Mendocino, 22,800 lb (10,342

kg); for both species of thornyheads combined, 12,000 lb (5,443 kg);

and for shortspine thornyheads, 2,400 lb (1,089 kg).

(iv) In any trip, no more than 500 lb (227 kg) may be trawl-caught

sablefish smaller than 22 inches (56 cm) total length. (See paragraph

IV.A.(6) regarding length measurement.)

(v) For operating in areas with different trip limits for the same

species, see paragraph IV.A.(12) above.

(c) Nontrawl trip and size limits. (i) Daily trip limit. The daily

trip limit for sablefish taken and retained with nontrawl gear north of

36 deg. N. lat. is 300 lb (136 kg) and south of 36 deg. N. lat. is 350

lb (159 kg). The daily trip limit, which applies to sablefish of any

size, is in effect until the closed periods before or after the regular

season (as specified at 50 CFR 660.323(a)(2)(i) (formerly 50 CFR

663.23(b)(2)), between the end of the regular season and the beginning

of the mop-up season, and after the mop-up season.

(ii) Limit on small fish. During the ``regular'' or ``mop-up''

seasons, the only trip limit in effect applies to sablefish smaller

than 22 inches (56 cm) total

[[Page 716]]

length, which may comprise no more than 1,500 lb (680 kg) or 3 percent

of all legal sablefish 22 inches (56 cm) (total length) or larger,

whichever is greater. (See paragraph IV.A.(6) regarding length

measurement.)

(d) For headed and gutted sablefish:

(i) The minimum size limit for headed sablefish, which corresponds

to 22 inches (56 cm) total length for whole fish, is 15.5 inches (39

cm).

(ii) The conversion factor established by the state where the fish

is or will be landed will be used to convert the processed weight to

round weight for purposes of applying the trip limit. (The conversion

factor currently is 1.6 in Washington, Oregon, and California. However,

the state conversion factors may differ; fishermen should contact

fishery enforcement officials in the state where the fish will be

landed to determine that state's official conversion factor.)

(Note: The Council has recommended a number of changes to the

regulations for the fixed gear sablefish fishery in 1997. Before

these changes can be made effective, they must be approved by NMFS

and then implemented by a regulation published in the Federal

Register. The recommended changes are summarized below:

(1) A vessel must have an endorsement on its limited entry

permit in order to participate in the regular or mop-up season north

of 36 deg. N. lat.; (2) the regular and mop-up seasons would apply

only north of 36 deg. N. lat., whereas in 1996, they applied

coastwide; (3) for 48 hours prior to the regular season, all fixed

gear used to take and retain groundfish would be removed from the

water--no advance setting of pot gear would be allowed; (4) a 48-

hour closed period would be added at the end of the regular season,

and all fixed gear used to take and retain groundfish, including

open access gear, would be removed from the water during this

period; (5) a framework season would be established (from August 1-

September 30), with the date being selected each year according to

certain criteria. The starting date, which has not yet been

recommended for 1997, remains at noon September 1 until the new

regulation becomes effective.)

(3) Open access fishery. Within the limits in paragraph IV.I.

below, a vessel in the open access fishery is subject to the 50-percent

monthly limits, which are as follows: For the DTS complex, 35,000 lb

(15,876 kg) north of Cape Mendocino, and 50,000 lb (22,680 kg) south of

Cape Mendocino; for Dover sole north of Cape Mendocino, 19,000 lb

(8,618 kg); south of Pt. Conception, for both species of thornyheads

combined, 10,000 lb (4,536 kg) of which no more than 2,000 lb (907 kg)

may be shortspine thornyheads. (The open access fishery for thornyheads

is closed north of Pt. Conception.) Daily trip limits for sablefish and

for thornyheads south of Pt. Conception are announced at paragraph

IV.I.

F. Whiting

(1) Limited entry fishery. Additional regulations that apply to the

whiting fishery are found at 50 CFR 660.306 (formerly 50 CFR 663.7) and

50 CFR 660.323(a)(3) and (4)(formerly 50 CFR 663.23(b)(3) and (4)).

(a) No more than 10,000 lb (4,536 kg) of whiting may be taken and

retained, possessed, or landed, per vessel per fishing trip before and

after the regular season for whiting, as specified at 50 CFR

660.323(a)(3) and (4) (formerly 50 CFR 663.23(b)(3) and (4)). This trip

limit includes any whiting caught shoreward of 100 fathoms (183 m) in

the Eureka subarea (see paragraph IV.F.(1)(b)).

(b) No more than 10,000 lb (4,536 kg) of whiting may be taken and

retained, possessed, or landed by a vessel that, at any time during a

fishing trip, fished in the fishery management area shoreward of the

100-fathom (183-m) contour (as shown on NOAA Charts 18580, 18600, and

18620) in the Eureka subarea.

(Note: The Council recommended a number of changes to the

Pacific whiting fishery that are not yet in effect, particularly

separate allocations for catcher/processor, mothership, and shore-

based sectors. The Council also recommended separate opening dates

for catcher/processors and mothership operations (but both sectors

prefer the current opening date of May 15 in 1997), and for vessels

delivering shoreside (June 15 north of 42 deg. N. lat. and April 15

south of 42 deg. N. lat.). The dates at 50 CFR 660.323(a)(3) remain

in effect until otherwise announced in the Federal Register.)

(2) Open access fishery. See paragraph IV.I. below.

G. Lingcod

(1) Limited entry fishery. The cumulative trip limit for lingcod is

40,000 lb (18,144 kg) per vessel per 2-month period. The 60-percent

monthly limit is 24,000 lb (10,886 kg). No lingcod may be smaller than

22 inches (56 cm) total length, except for a 100-lb (45-kg) trip limit

for trawl-caught lingcod smaller than 22 inches (56 cm). Length

measurement is explained at paragraph IV.A.(6).

(2) Open access fishery. Within the limits in paragraph IV.I.

below, the 50-percent monthly limit for lingcod is 20,000 lb (9,072

kg).

(3) Conversions. (a) Size conversion. For lingcod with the head

removed, the minimum size limit, which corresponds to 22 inches (56 cm)

total length for whole fish, is 18 inches (46 cm).

(b) Weight conversion. The conversion factor established by the

state where the fish is or will be landed will be used to convert the

processed weight to round weight for purposes of applying the trip

limit. (The states' conversion factors may differ and fishers should

contact fishery enforcement officials in the state where the fish will

be landed to determine that state's official conversion factor.) If a

state does not have a conversion factor for lingcod that is headed and

gutted, or only gutted, the following conversion factors will be used.

To determine the round weight, multiply the processed weight times the

conversion factor.

(i) Headed and gutted. The conversion factor for headed and gutted

lingcod is 1.5. (The State of Washington currently uses a conversion

factor of 1.5.)

(ii) Gutted, with the head on. The conversion factor for lingcod

that has only been eviscerated is 1.1.

H. Black Rockfish

The regulations at 50 CFR 660.323(a)(1) (formerly 50 CFR

663.23(b)(1)(iii)) state: ``The trip limit for black rockfish (Sebastes

melanops) for commercial fishing vessels using hook-and-line gear

between the U.S.-Canada border and Cape Alava (48 deg.09'30'' N. lat.),

and between Destruction Island (47 deg.40'00'' N. lat.) and Leadbetter

Point (46 deg.38'10'' N. lat.), is 100 lb (45 kg) or 30 percent, by

weight of all fish on board, whichever is greater, per vessel per

fishing trip.'' The provisions at paragraphs IV.A.(12) do not apply.

I. Trip Limits in the Open Access Fishery

Open access gear is gear used to take and retain groundfish from a

vessel that does not have a valid limited entry permit for the Pacific

coast groundfish fishery with an endorsement for the gear used to

harvest the groundfish. This includes longline, trap, pot, hook-and-

line (fixed or mobile), set net (south of 38 deg. N. lat. only), and

trawls used to target non-groundfish species (pink shrimp or prawns,

and, south of Pt. Arena, CA (38 deg.57'30'' N. lat.), California

halibut or sea cucumbers). A vessel operating in the open access

fishery must not exceed any trip limit, frequency limit, and/or size

limit for the open access fishery; or for the same area in the limited

entry fishery; or, in any calendar month, 50 percent of any 2-month

cumulative trip limit for the same area in the limited entry fishery,

[[Page 717]]

called the ``50-percent monthly limit.'' For purposes of this

paragraph, exempted trawl gear (that is used to harvest shrimp, prawns,

California halibut or sea cucumbers as provided in this paragraph I.)

may not exceed any limit for the limited entry trawl fishery, or 50

percent of any 2-month cumulative limit that applies to limited entry

trawl gear. The cross-over provisions at paragraph IV.A.(12) that apply

to the limited entry fishery apply to the open access fishery as well.

(1) Rockfish. Rockfish means all rockfish as defined at 50 CFR

660.302 (formerly 50 CFR 663.2), which includes the Sebastes complex

(including yellowtail rockfish, bocaccio, and canary rockfish),

shortbelly rockfish, widow rockfish, POP, and thornyheads.

(a) All open access gear. (i) North of Pt. Conception, thornyheads

(shortspine or longspine) may not be taken and retained, possessed, or

landed.

(ii) South of Pt. Conception, the daily trip limit for thornyheads

is 50 lb (23 kg).

(b) All open access gear except shrimp, prawn, or sea cucumber

trawl. The cumulative monthly trip limit for rockfish is 40,000 lb

(18,144 kg) per vessel per month, and includes the daily trip limit for

thornyheads. The following trip limits also apply, which count toward

the cumulative monthly limit:

(i) Hook-and-line or pot gear: 10,000 lb (4,536 kg) of rockfish per

vessel per fishing trip, of which no more than 300 lb (136 kg) per

trip, not to exceed 2,000 lb (907 kg) cumulative per month, may be

bocaccio taken and retained south of Cape Mendocino.

(ii) Setnet or trammel net gear (which are legal only south of

38 deg. N. lat.): 4,000 lb (1,814 kg) cumulative of bocaccio taken and

retained south of Cape Mendocino.

(c) For operating in areas with different trip limits for the same

species, see paragraph IV.A.(12) above.

(2) Sablefish. (a) North of 36 deg.00' N. lat. The cumulative trip

limit for sablefish taken and retained north of 36 deg.00' N. lat. is

1,500 lb (680 kg) per month. The daily trip limit for sablefish taken

and retained north of 36 deg.00' N. lat., which counts toward the

cumulative limit, is 300 lb (136 kg).

(b) South of 36 deg.00' N. lat.. The daily trip limit for sablefish

taken and retained south of 36 deg.00' N. lat. is 350 lb (159 kg).

(3) Groundfish taken by shrimp or prawn trawl. The daily trip

limits are: Sablefish, 300 lb (136 kg) coastwide; and thornyheads south

of Pt. Conception, 50 lb (23 kg).

(a) Pink shrimp. The trip limit for a vessel engaged in fishing for

pink shrimp is 500 lb (227 kg) of groundfish, multiplied by the number

of days of the fishing trip, and includes the daily trip limits for

sablefish and thornyheads, which may not be multiplied by the number of

days of the fishing trip.

(b) Spot and ridgeback prawns. The trip limit for a vessel engaged

in fishing for spot or ridgeback prawns is 500 lb (227 kg) of

groundfish species per fishing trip, and includes the daily trip limits

for sablefish and thornyheads.

(c) This rule is not intended to supersede any more restrictive

state law relating to the retention of groundfish taken in shrimp or

prawn pots or traps.

(4) Groundfish taken by California halibut or sea cucumber trawl.

The trip limit for a vessel participating in the California halibut

fishery or in the sea cucumber fishery south of Point Arena, CA

(38 deg.57'30'' N. lat.) is 500 lb (227 kg) of groundfish per vessel

per fishing trip, which includes a daily trip limit for sablefish of

300 lb (136 kg), and a daily trip limit for thornyheads south of Pt.

Conception of 50 lb (23 kg).

(a) A trawl vessel will be considered participating in the

California halibut fishery if:

(i) It is not fishing under a valid limited entry permit issued

under 50 CFR part 660.333 (formerly 50 CFR part 663) for trawl gear;

(ii) All fishing on the trip takes place south of Point Arena; and

(iii) The landing includes California halibut of a size required by

California Fish and Game Code section 8392(a), which states: ``No

California halibut may be taken, possessed or sold which measures less

than 22 inches in total length, unless it weighs four pounds or more in

the round, three and one-half pounds or more dressed with the head on,

or three pounds or more dressed with the head off. Total length means

the shortest distance between the tip of the jaw or snout, whichever

extends farthest while the mouth is closed, and the tip of the longest

lobe of the tail, measured while the halibut is lying flat in natural

repose, without resort to any force other than the swinging or fanning

of the tail.''

(b) A trawl vessel will be considered participating in the sea

cucumber fishery if:

(i) It is not fishing under a valid limited entry permit issued

under 50 CFR part 660.333 (formerly 50 CFR 663) for trawl gear;

(ii) All fishing on the trip takes place south of Point Arena; and

(iii) The landing includes sea cucumbers taken in accordance with

California Fish and Game Code section 8396, which requires a permit

issued by the State of California.

J. Recreational Fishery

(1) California. The bag limits for each person engaged in

recreational fishing seaward of the State of California are: 5 lingcod

per day, which may be no smaller than 22 inches (56 cm) total length;

and 15 rockfish per day. Multi-day limits are authorized by a valid

permit issued by the State of California and must not exceed the daily

limit multiplied by the number of days in the fishing trip.

(2) Oregon. The bag limits for each person engaged in recreational

fishing seaward of the State of Oregon are: 3 lingcod per day, which

may be no smaller than 22 inches (56 cm) total length; and 15 rockfish

per day, of which no more than 10 may be black rockfish (Sebastes

melanops).

(3) Washington. The bag limits for each person engaged in

recreational fishing seaward of the State of Washington are: Three

lingcod per day no smaller than 22 inches (56 cm) total length, and 10

rockfish per day.

V. Washington Coastal Tribal Fisheries

From 1991 through 1994, the Washington coastal treaty tribes

conducted a tribal sablefish fishery of 300 mt that was accommodated in

the annual management measures. In late 1994, the U.S. government

formally recognized the treaty right to fish for groundfish of the four

Washington Coastal Treaty tribes (the Makah, Hoh, Quileute, and

Quinault), and concluded that in general terms the quantification of

the right is 50 percent of the harvestable surplus of groundfish

available in the tribes' usual and accustomed fishing areas (defined at

50 CFR 660.304).

A tribal allocation is subtracted from the species HG before

limited entry and open access allocations are derived. The treaty

Indian fisheries for sablefish, black rockfish, and whiting allocations

are separate fisheries, not governed by the limited entry or open

access regulations or allocations. The tribes regulate their fisheries

so as not to exceed their allocations. Tribal fishing for rockfish with

fixed gear will operate under the same rules as the open access

fishery. The tribal trawl fishery for rockfish will operate under the

limited entry rules (50 CFR 660.324(j)). Makah tribal members may use

midwater trawl gear to take and retain groundfish for which there is no

tribal allocation and will be subject to the trip landing and frequency

and size limits applicable to the limited entry fishery (50 CFR

660.324(k)).

[[Page 718]]

The tribal allocations for sablefish and black rockfish are the

same as in 1996 and for the same reasons. The tribal allocation for

whiting in 1997 differs from the 1-year allocation agreement with the

Makah for 1996, as discussed below.

The Council recommended that no whiting be allocated to the Makah

Tribe in 1997. The Council's recommendation of no allocation is not

acceptable because Federal district court Judge Rafeedie held that

tribes have a right to all fish in their usual and accustomed fishing

areas, with no species limitation. Some fishermen have argued that this

ruling should not apply to whiting. A subproceeding is pending in U.S.

v. Washington that addresses the issue of a treaty right to whiting. In

that whiting subproceeding, on November 4, 1996, the court ruled that

``Judge Rafeedie's ruling in Subproceeding 89-3 should remain the

binding law of the case until the Ninth Circuit decides the appeal of

the decision now pending before it.''

NMFS acknowledges that many difficult questions have been raised

and that there is much uncertainty regarding what is a complex and

difficult technical and legal issue. The Tribe's proposed allocation

methodology would result in an allocation of 25 percent of the U.S. HG;

NMFS's proposed allocation methodology would result in an allocation of

6.5 percent of the U.S. HG. The tribal compromise falls between these

two positions. NMFS finds the tribal proposal of 25,000 mt (10.8

percent) in 1997 to be an acceptable compromise given all of the

uncertainties. This compromise gives NMFS time to work with the tribes,

the States, and other Federal agencies to develop an agreed-upon

allocation. This is a short-term compromise and is not intended to set

a precedent regarding either quantification of the Makah treaty right

or future allocations. If an appropriate methodology or allocation

cannot be developed through negotiations, the allocation will

ultimately be resolved in the pending subproceeding in U.S. v.

Washington. In the absence of a resolution of the appropriate

allocation in 1998, NMFS may again provide the tribes 10.8 percent of

the U.S. HG. NMFS expects the quantification issue to be resolved

before the 1999 season. NMFS Actions

For the reasons stated above, the Assistant Administrator announces

the following tribal allocations for 1997, including those that are the

same as in 1996:

Sablefish: 780 mt, 10 percent of the HG.

Rockfish: For the commercial harvest of black rockfish off

Washington State a HG of: 20,000 lb (9,072 kg) north of Cape Alava

(48 deg.09'30'' N. lat.) and 10,000 lb (4,536 kg) between Destruction

Island (47 deg.40'00'' N. lat.) and Leadbetter Point (46 deg.38'10'' N.

lat.).

Whiting: 25,000 mt in 1997, 10.8 percent of the HG.

Response to Public Comments

NMFS received two written comments from the nontreaty whiting

industry and one from the Makah Tribe on the proposed tribal whiting

allocation. One commenter argued the Secretary of Commerce does not

have the authority to make this allocation because such an allocation

requires an amendment of the FMP. This is not so much a comment on the

allocation for 1997, as on the rule implementing the framework for

treaty tribe harvest of Pacific groundfish (tribal groundfish rule)

that was adopted on May 31, 1996; the response to this comment is found

in the preamble to the final tribal groundfish rule published at 61 FR

28786 (June 6, 1996), specifically on pages 28789 and 28790 under the

heading ``Magnuson Act''.

The two commenters also objected to the process used this year to

make the allocation because it does not provide a ``formal public

comment period.'' NMFS followed its regulation by considering the

tribal request, the Council recommendation, and public comments, before

announcing the allocation with the final groundfish specifications. As

explained in the preamble to the tribal groundfish rule (specifically

on page 28787), NMFS is using the Council's annual groundfish

management process, as much as possible, for developing and

implementing the tribal allocation request. This is the best way to

provide information to all of the interested parties, since they are

involved in the annual process, either through attending the meetings

or through receiving the Council newsletters which are sent to all

persons who request to be on the Council mailing list. The tribal

whiting request for 1997 was announced at the August 1996 Council

meeting when the initial proposals for the 1997 management measures and

specifications were discussed and adopted by the Council. The Council

adopted a preliminary range for a 1997 whiting set-aside of zero to

35,000 mt. This was announced in the Council's August newsletter, along

with the other 1997 management recommendations. At the October Council

meeting, the tribe modified its 1997 whiting proposal to be 25,000 mt.

The Council recommended an allocation of zero for 1997. The NMFS

representative announced NMFS would take additional comments on the

tribal allocation for another 3 weeks. The Council's October newsletter

announced the tribal request for 25,000 mt, the Council's proposed

tribal whiting allocation of zero, and that NMFS would ``accept

comments on the Council's recommendations until November 15, 1996 with

special attention to yellowtail rockfish and the tribal whiting

allocation decisions.'' This process conforms to the requirements of

the tribal groundfish rule and provides the widest opportunity for the

interested public to participate and provide comments, since it uses

the same timeframe and public participation process as is used for the

rest of the annual groundfish management decisions.

One commenter asserted the allocation violates many national

standards of the Magnuson-Stevens Act, found at 16 U.S.C. 1851(a). Most

of the arguments had been made last year and were responded to in the

preamble to the tribal rule under the heading of ``Magnuson Act.'' The

commenter argued the allocation is not fair and equitable, does not

promote conservation, and allows a particular entity to acquire an

excessive share of fishing privileges in violation of national standard

4, 16 U.S.C. 1851(a)(4). This allocation is different from other

discretionary allocations that the Council and NMFS might make. It is

required by the treaties with the Northwest tribes as explained above,

which are other applicable law with which management measures must be

consistent. It promotes conservation as much as any allocation does in

that the allocation is within the total allowable catch authorized for

1997. It does not provide an excessive share of fish to the tribe; it

is implementing a treaty right, that is the supreme law of the land.

The commenter alleged the allocation does not promote efficiency, in

violation of national standard 5, 16 U.S.C. 1851(a)(5); and does not

minimize costs or avoid unnecessary duplication in violation of

national standard 7, 16 U.S.C. 1851(a)(7). National standard 5 (as

revised by Public Law 104-297) requires that efficiency be

``considered''; national standard 7 requires that measures shall, where

practicable, minimize costs and avoid unnecessary duplication. The

commenter has provided no specifics on why these standards have been

violated or suggestions on how the treaty right can be accommodated in

a way that would be more efficient, minimize costs, or avoid

unnecessary duplication.

The two commenters argued that there should be a zero allocation to

the tribe in 1997 because there is no

[[Page 719]]

adjudicated treaty right to whiting, and they refer to their comments

on the tribal groundfish rule and the 1996 allocations. NMFS addressed

their arguments in the preamble to the tribal groundfish rule under the

heading of ``Treaty Entitlement.'' NMFS had determined there is a

treaty right to whiting, in part, because in a subproceeding of U.S. v.

Washington regarding tribal rights to shellfish, Federal district court

Judge Rafeedie held that tribes have a right to all fish in their usual

and accustomed fishing areas, with no species limitation. This ruling

is currently on appeal in front of the Ninth Circuit Court of Appeals.

The commenters argued this ruling should not apply to whiting. A

subproceeding is pending in U.S. v. Washington that addresses the issue

of a treaty right to whiting. In that whiting subproceeding, on

November 4, 1996, the court ruled that ``Judge Rafeedie's ruling in

Subproceeding 89-3 should remain the binding law of the case until the

Ninth Circuit decides the appeal of the decision now pending before

it.''

One commenter asserted the Makah tribe already has achieved a

moderate living and, therefore, the treaty right has been satisfied

without providing whiting to the Makah. The commenter provided no new

information to support this assertion. This assertion was answered in

the preamble to the tribal groundfish rule under the heading ``Moderate

Living''.

One commenter asserted that since the harvest in the Vancouver

statistical area (an area larger than, but including, the usual and

accustomed fishing area) was 9.9 percent of the total harvest from 1981

to 1995, if the tribes were entitled to a 50 percent share of the

whiting, they should at most be allocated 4.95 percent of the amount

available to the U.S. He further asserted that since the whiting spend

a small portion of the year in the Makah area and do not spawn there,

the allocation should be even smaller than 4.95 percent. These comments

were responded to in the preamble to the tribal groundfish rule.

One commenter alleges the allocation violates the ESA because it

has not been subject to a formal consultation under the ESA. However, a

biological opinion issued on May 14, 1996, found that ``(t)he timing,

method, and location of the tribal fishery are comparable with how the

whiting fishery has operated in recent years. As a result, there is no

reason to expect that the bycatch of salmon or the effect of the

fishery to other listed species including marine mammals will be

different from what has be(en) reported for the existing fishery.'' The

tribal fishery authorized for 1997 is still within the scope of what

was analyzed in previous biological opinions, and thus reinitiation of

consultation is not required. The other commenter argued that the

tribal salmon bycatch appeared to exceed the level of concern in the

fishery, which requires a new biological opinion. The current

biological opinion considers salmon bycatch in the fishery as a whole,

but does require consultation if the number of chinook salmon per

metric ton of whiting exceeds 0.05 in either the shoreside, catcher/

processor or the mothership components of the fishery (Biological

Opinion, May 14, 1996). For purposes of the biological opinion, the

tribal whiting fishery was considered as part of the mothership fleet.

Therefore, salmon bycatch in the tribal fishery, by itself, does not

necessarily trigger a requirement for reinitiation unless it results in

the salmon bycatch for the mothership sector to exceed the reinitiation

criteria. All three sectors were within the 0.05 rate in 1996.

VI. Issuance of EFPs in 1996

In 1995, applications were received and approved for three

different types of EFPs (formerly called ``experimental fishing

permits'') for the 1996 fishing year: (1) The first was from the State

of Oregon (representing Washington and California as well) for the

purpose of renewing the 1995 EFP to monitor the bycatch of salmon in

the shore-based whiting fishery. Under this permit, 40 vessels were

issued EFPs that required all salmon caught incidentally in the whiting

fishery to be landed shoreside. A variation of the whiting EFP also was

requested by the State of California so that a small number of fishers

could be allowed to fish for whiting inside of the 100-fathom (183-m)

contour in the Eureka Management Area, which currently is prohibited.

The purpose was to see if the bycatch rate of salmon could be kept at

acceptable levels by this small, shore-based sector of the fleet

delivering to Eureka and Crescent City, CA. At-sea observers would be

aboard all whiting trips. Even though this variation to the whiting EFP

was approved, the industry declined to participate.

(2) The second EFP was for a new, enhanced data collection program

that applied to the other groundfish fisheries. The application was

submitted by the State of Oregon, but could include involvement by the

States of Washington and California as well. This is a multi-year

cooperative data collection program with the industry and state and

Federal governments. Twenty vessels participated in 1996. The purpose

of the experiment was to monitor trip-limit-induced discards and the

bycatch of salmon and non-target species in the groundfish trawl

fishery. All participating vessels were required to land salmon caught

incidentally in groundfish trawl gear and to keep enhanced logbooks

required by the States. Some vessels were required to carry at-sea

observers to monitor trip-limit induced discards, and some vessels

could have been required to bring virtually their entire catch to shore

for additional monitoring although this did not occur in 1996.

(3) The third EFP application was to collect reproductive samples

for sablefish to test assumptions in the stock assessment for that

species. An EFP was needed because the vessel would be authorized to

land 500 lb (227 kg) in excess of the cumulative trip limit for trawl-

caught sablefish (for a total of 5 mt in 1996), and could sell the

scientific samples. A state or Federal scientist would be aboard every

trip to gather the biological data. Although this permit was approved

and issued, it had not been used at the time this notice was prepared

in late 1996; sampling normally occurs late in the year.

VII. Renewal of EFPs in 1997

Renewal of all three EFPs was requested for 1997, some with slight

modifications. First, the whiting EFPs described in paragraph VI.(1)

would be continued, pending development and implementation of an FMP

amendment that would authorize salmon to be retained and landed.

Fishers also are concerned that their practice of dumping codends

directly in the hold would make monitoring of trip limits difficult, if

not impossible, and would like the EFP continued because overages are

forfeited but no penalty results. The scope of the experiment and level

of participation would be the same as in 1996.

Second, continuation of the enhanced data collection program

described in paragraph VI.(2) also was requested, with some

modifications. The major change would enable data to be obtained on a

vessel throughout its fishing activities in a month, even if not

fishing for groundfish. This would provide information on groundfish

bycatch in other fisheries (particularly shrimp fisheries) and on a

fisher's choice to pursue alternative fisheries or fishing strategies.

The program also could be expanded to include whiting fisheries when

the whiting EFP no longer is in effect.

The third is renewal of the EFP to gather biological information on

sablefish, as described in paragraph VI.(3) to confirm or improve data

used

[[Page 720]]

in the stock assessment. This experiment would allow one vessel to

retain 25 fish in excess of the trawl trip limit for sablefish and is

not expected to exceed 10 mt per year. It differs from the 1996 permit

in that a state or Federal scientist would not need to be aboard every

trip, but would be required to be present when the vessel offloads to

gather the scientific samples. Also, the scientific samples would not

necessarily be sold; they also could be distributed to a food bank or

otherwise disposed of consistent with state and Federal law.

Requests for these renewals were presented at the Council's October

1996 meeting. The Council recommended renewal of all three in 1997.

Comments on the three EFP programs for 1997 were invited at the October

1996 Council meeting. If approved, the whiting EFPs could be issued as

early as March 1 for vessels delivering in the State of California, and

mid-April for vessels delivering in Washington and Oregon; and the EFP

for sablefish could be issued early in 1997. The decision on whether to

issue EFPs and determinations on appropriate permit conditions will be

based on a number of considerations, including the Council's

recommendations and comments received from the public.

Classification

The final specifications and management measures for 1997 are

issued under the authority of, and are in accordance with, the

Magnuson-Stevens Act and 50 CFR parts 600 and 660 subpart G (the

regulations implementing the FMP).

Much of the data necessary for these specifications and management

measures came from the current fishing year. Because of the timing of

the receipt, development, review, and analysis of the fishery

information necessary for setting the initial specifications and

management measures, and the need to have these specifications and

management measures in effect at the beginning of the 1997 fishing

year, there is good cause under 5 U.S.C. 553(b)(B) to waive prior

notice and opportunity for public comment for the specifications and

management measures. Amendment 4 to the FMP, implemented on January 1,

1991, recognized these timeliness considerations and set up a system by

which the interested public is notified, through Federal Register

publication and Council mailings, of meetings and of the development of

these measures and is provided the opportunity to comment during the

Council process. The public participated in GMT, Groundfish Advisory

Subpanel, Scientific and Statistical Committee, and Council meetings in

August and October 1996 where these recommendations were formulated.

Additional public comments on the specifications and management

measures will be accepted for 30 days after publication of this

document in the Federal Register. The Assistant Administrator (AA) will

consider all comments made during the public comment period and may

make modifications as appropriate.

An Environmental Assessment (EA) was prepared for the tribal

groundfish rule that supported the AA's determination that the proposed

1996 Makah allocation would have no significant impact on the human

environment. NMFS has updated the 1996 EA and has concluded that the

1997 Makah allocation will have no significant impact on the human

environment.

The Administrative Procedure Act requires that publication of an

action be made not less than 30 days before its effective date unless

the AA finds, and publishes with the rule, good cause for an earlier

effective date (5 U.S.C. 553(d)(3)). These specifications announce the

harvest goals and the management measures designed to achieve those

harvest goals in 1997. A delay in implementation could compromise the

management strategies that are based on the projected landings from

these trip limits. Therefore, a delay in effectiveness is contrary to

the public interest and these actions are effective on January 1, 1997.

The tribal whiting allocation is developed following, as much as

possible, the annual process for developing fishery specifications and

management measures. This is because the information developed in this

process (such as the ABC and HG for whiting) is important in the

allocation process. In addition, the annual groundfish process provides

the best opportunity to the interested public to receive notification

of the proposed allocation and to provide comments. As described above

in the response to public comments, the public received notice through

the August and October Council meetings and Council newsletters. It is

important to announce the tribal allocation with the other

specifications and management measures so the affected industry will

know the amount of whiting available to the various sectors and will be

able to plan accordingly.

Dated: December 30, 1996.

Gary C. Matlock,

Acting Assistant Administrator for Fisheries, National Marine Fisheries

Service.

[FR Doc. 96-33402 Filed 12-31-96; 2:35 pm]

BILLING CODE 3510-22-W