Fisheries off West Coast States and in the Western Pacific; Pacific Coast Groundfish Fishery; Amendment 9

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 970311053-7139-02; I.D. 020397B]

RIN 0648-AJ23

Fisheries off West Coast States and in the Western Pacific;

Pacific Coast Groundfish Fishery; Amendment 9

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

Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NOAA issues this final rule to implement Amendment 9 to the

Fishery Management Plan for the Pacific Coast Groundfish Fishery (FMP).

Amendment 9 requires a sablefish endorsement on limited entry permits

for permit holders to participate in the regular and mop-up limited

entry fixed gear sablefish fishery north of 36 deg. N. lat. (the U.S.-

Vancouver, Columbia, Eureka, and Monterey management areas). The

intended effect of this sablefish endorsement is to promote safety,

stability, and economic viability of the sablefish fishery by limiting

or reducing harvesting capacity in the Pacific Coast sablefish fishery.

This rule also eliminates limited entry permit ``B'' endorsement

language that expired January 1, 1997. Elimination of ``B'' endorsement

language is a routine update of the Pacific Coast groundfish

regulations.

DATES: This rule will become effective July 28, 1997.

ADDRESSES: Copies of Amendment 9, the Environmental Assessment (EA) and

the Regulatory Impact Review (RIR) are available from Lawrence D. Six,

Executive Director, Pacific Fishery Management Council, 2130 SW Fifth

Avenue, Suite 224, Portland, OR 97201. Comments regarding the

collection-of-information requirements contained in this rule should be

sent to Mr. William Stelle, Administrator, Northwest Region, NMFS, 7600

Sand Point Way, NE, BIN C157000, Seattle, WA 98115-0070; or to Mr.

William Hogarth, Acting Administrator, Southwest Region, NMFS, 501 West

Ocean Boulevard, Suite 4200, Long Beach, CA 90802-4213, and to the

Office of Information and Regulatory Affairs, Office of Management and

Budget (OMB), Washington, D.C. 20503 (Attention: NOAA Desk Officer).

FOR FURTHER INFORMATION CONTACT: William L. Robinson at 206-526-6140,

Rodney McInnis at 562-980-4040, or the Pacific Fishery Management

Council at 503-326-6352.

SUPPLEMENTARY INFORMATION: NMFS issues this final rule to implement a

recommendation from the Pacific Fishery Management Council (Council),

under the authority of the FMP and the Magnuson-Stevens Fishery

Conservation and Management Act (Magnuson-Stevens Act). The background

and rationale for the Council's recommendation were fully described in

the notice of proposed rulemaking for this action (62 FR 13583, March

21, 1997). Public comments were requested through May 5, 1997. Twelve

letters were received and are addressed later in the preamble to this

final rule. The comments resulted in no change to the regulatory text

that was published as a proposed rule.

In summary, a sablefish endorsement will be required on a limited

entry permit of a vessel in order for that vessel to harvest sablefish

in the area north of 36 deg. N. lat. during the regular (derby or

cumulative limit) or mop-up limited entry sablefish fishery. A

sablefish endorsement will not be required for a vessel with a limited

entry permit to participate in the daily trip limit fishery that

operates outside of the time period of the regular or mop-up season.

NMFS has accepted the Council's recommendation for sablefish

endorsement qualifying criteria: at least 16,000 lb (7,257.5 kg) of

sablefish catch from the sablefish fishery, taken in any one calendar

year from 1984 through 1994.

Adoption of the above qualifying criteria is a compromise that

recognizes historical participation by including the early years of the

license limitation qualifying period, that acknowledges more recent

participants in the sablefish derby by including 2 years after the

Council adoption of the limited entry program, and that considers

dependence on the fishery by granting permit endorsements only to those

persons who landed quantities of sablefish large enough to constitute a

significant portion of their incomes. Maintaining a qualifying

requirement that includes years from the mid and late 1980s prevents

the disenfranchisement of vessels that were forced to choose between

Alaska and West Coast fisheries during the recent years in which the

Council set the West Coast opening to coincide with the Alaska opening.

Only persons holding current limited entry permits may qualify for

a sablefish endorsement. Permit catch history will be used to determine

whether a permit meets the qualifying criteria for a fixed gear

sablefish endorsement. Permit catch history includes the catch history

of the vessel(s) that initially qualified for the permit, and

subsequent catch histories accrued by vessel(s) associated with the

limited entry permit or permit rights. If the current permit is the

result of the combination of multiple permits, then for the combined

permit to qualify for an endorsement, at least one of the permits that

were combined must have had sufficient sablefish history to qualify for

an endorsement; or the permit must qualify based on catch occurring

after it was combined, but taken within the qualifying period. The

catch history of a permit also includes the catch of any interim permit

held by the current owner of the permit during the appeal of an initial

NMFS decision to deny the initial issuance of a limited entry permit,

but only if (1) the appeal

[[Page 34671]]

for which an interim permit was issued was lost by the appellant, and

(2) the owner's current permit was used by the owner in the 1995

limited entry sablefish fishery. The catch history of an interim permit

where the full ``A'' permit was ultimately granted will also be

considered part of the catch history of the ``A'' permit. Only

sablefish catch regulated by this part that was taken with longline or

fishpot (or trap) gear will be considered in calculating permit catch

histories. Harvest taken in tribal sablefish set asides will not be

included in calculating permit catch histories. The following

clarification, which was not in the proposed rule, has been added to

the final rule: Sablefish harvested illegally or landed illegally will

not be included in calculating permit catch histories. The qualifying

level was set to grant permits to those who substantially depended on

the fishery at some point between 1984 and 1994. It was not intended to

reward those who violated the laws intended to conserve the fishery.

A sablefish endorsement will be required for a fixed-gear, limited

entry vessel to take sablefish in the area north of 36 deg. N. lat.

(the Monterey, Eureka, Columbia and U.S.-Vancouver management areas)

during the regular and mop-up, limited entry, nontrawl sablefish

fishery, as specified in the regulations; this harvest will count

against the limited entry fixed gear allocation for the area north of

36 deg. N. lat. Catch taken in the area south of 36 deg. N. lat. counts

against a southern area (Conception Area) acceptable biological catch

(ABC). In a separate rulemaking action, NMFS is proposing to eliminate

the regular and mop-up season south of 36 deg. N. lat., which will

result in a year-round, daily trip limit fishery in that area, for

which a permit endorsement is not required (62 FR 30305, June 3, 1997).

Under the sablefish endorsement system, if permits are combined to

generate a single permit with a larger length endorsement, the

resulting permit will receive a sablefish endorsement only if each of

the combined permits has an individual sablefish endorsement. This

requirement is consistent with the current combination requirements for

limited entry permit gear endorsements.

Limited entry permit holders with sablefish endorsements may

participate in the regular, limited entry, nontrawl sablefish fishery,

under the limited entry regulations. Outside of the regular season,

they may catch sablefish with their endorsed gear under the small daily

trip limits, under the limited entry regulations. Limited entry permit

holders with sablefish endorsements may also catch sablefish with open

access gear other than their endorsed gear, under the open access

fishery regulations.

Vessels that do not qualify for an endorsement because of a failure

to meet the 16,000 lb (7,257.5 kg) landing requirement may continue to

harvest sablefish in the limited entry daily trip limit fishery when

the regular season is not open. Limited entry permit holders who do not

have sablefish endorsements will be allowed to either use their

endorsed gear and fish under the limited entry regulations, or use open

access gear and fish under the open access regulations. Limited entry

permit holders who do not have sablefish endorsements may not fish for

sablefish with either limited entry or open access gear during the

regular, and mop-up limited entry, non-trawl sablefish seasons.

Sablefish endorsements will be issued by NMFS, prior to the start

of the regular 1997 limited entry fixed gear sablefish season. NMFS

will use landings records from the Pacific States Marine Fisheries

Commission's Pacific Fisheries Information Network (PacFIN) to

determine which limited entry fixed gear permit holders meet the

qualifications of 16,000 lb (7,257.5 kg) of catch in any one year from

1984 through 1994.

The Fishery Management Division (FMD), NMFS Northwest Region, will

notify each limited entry fixed gear permit owner by letter whether

PacFIN records indicate that his or her permit qualifies for a

sablefish endorsement. Persons who qualify for sablefish endorsements

will be issued revised limited entry permits with endorsements, upon

payment of a one-time fee of $797 covering the estimated administrative

cost of researching PacFIN records and limited entry permit processing.

If PacFIN records do not show that the permit qualifies for an

endorsement, a permit owner who believes that the permit or interim

permit qualifies for an endorsement may send supporting documentation,

such as fish tickets to the FMD to demonstrate how the qualifying

criteria have been met. An endorsement will be issued if the permit

owner demonstrates that his or her permit meets the qualifying

criteria. If the permit is denied by the FMD after review of

documentation submitted by the owner, the owner may appeal the denial

to the Regional Administrator, Northwest Region (Regional

Administrator). Unlike the initial limited entry permitting process,

there will be no industry appeal board to review appeals of endorsement

denials.

Limited Entry Permit ``B'' Endorsements

All ``B'' endorsements expired at the end of 1996. This rule

eliminates the current regulations that relate to ``B'' endorsements at

50 CFR 660.336. As of January 1, 1997, these regulations had no

relevance.

Comments and Responses

The comments in 12 letters received during the public comment

period ending May 5, 1997, are summarized below. All 12 letters opposed

the proposed rule.

Comment 1: The Council and NMFS should not alter the rights

associated with limited entry permits. Only the permit holder should be

able to sell or give up any or all of the rights granted by the

issuance of a limited entry permit. This rule will reduce the value of

existing limited entry, fixed gear permits that do not qualify for an

endorsement.

Response: When the limited entry program was first designed under

Amendment 6 to the FMP, permits were viewed as conferring a privilege

on a permit holder to operate the permitted vessel in the Pacific coast

groundfish fishery, in conformance with the FMP and using the gear(s)

for which the permit is endorsed. The Council and NMFS specifically

retained the right to revise the FMP in the future, and to change or

abolish the privileges associated with limited entry permits. The

limited entry program specifically states this in the FMP at 14.1.4,

``Nature of the Interest Created.''

Comment 2: Amendment 9 would allocate sablefish catch away from

smaller producers to larger producers.

Response: A portion of the limited entry, fixed gear sablefish

allocation will continue to be available to vessels that do not qualify

for sablefish endorsements in the daily trip limit fishery. The trip

limit fishery has been traditionally dominated by small producers with

annual sablefish landings of less than the 16,000 pounds (7,257.5 kg)

qualifying criteria. Small producers who did participate in the regular

and mop-up fishery may have to increase their participation in the

daily trip limit fishery to ensure that they maintain their past catch

levels. It is clear that there will be a shift in harvest opportunity

and probably in sablefish harvest from small producers to larger

producers. The Council's rationale is to manage the fishery to support

fishermen with more substantial dependence on the fishery.

[[Page 34672]]

Comment 3: The West Coast Limited Entry fixed gear groundfish

fishery is a multi-species fishery. Fishers rely on a variety of

species and may change their concentration on certain species from year

to year. To permanently exclude someone from the sablefish season

because he did not rely on that fishery as his main source of income is

unfair and shows a lack of understanding of how the groundfish

fisheries operate.

Response: The sablefish endorsement program does not permanently

exclude permit holders who do not qualify for endorsements from

participating in the limited entry, fixed gear sablefish fishery. While

the sablefish endorsement program does exclude unendorsed permit

holders from participating in the regular and mop-up fishery, it does

not permanently exclude unendorsed permit holders from participating in

the limited entry, fixed gear sablefish fishery. Permit holders without

sablefish endorsements who want to participate in the regular or mop-up

fishery may wish to purchase or lease an endorsed permit for that

purpose. NMFS and the Council realize that fishers vary their fishing

strategies throughout each year and over the long term for a variety of

reasons, such as changing market conditions or natural fluctuations in

fish stock availability. However, extensive Council and NMFS analysis

has shown that a certain portion of the limited entry, fixed gear fleet

is substantially dependent upon the sablefish resource. The sablefish

endorsement program limits participation in the regular sablefish

season to those persons who have been substantially dependent on the

sablefish resource, while the trip limit fishery ensures that persons

with a more varied fishing strategy may continue to include sablefish

in their annual catch.

Comment 4: The 16,000 lb (7,257.5 kg) qualifying criteria should be

changed to 3,000 lb (1,360.78 kg) to recognize the efforts of the small

boat fleet. The 16,000 lb (7,257.5 kg) qualifying criteria was set in

an arbitrary manner and the Council did not take into account the

economic and social impacts of setting that level of qualifying

criteria.

Response: The Council staff's June 1996 analysis considered

endorsement qualifying criteria of either 3,000 lb (1,360.78 kg) per

year or 25,500 lb (11,566.61 kg) per year, and the economic and social

impacts that either of these qualifying criteria would have on limited

entry, fixed gear permit holders. In order to genuinely constrain

effort in the fleet, the Council had to choose between a small landing

requirement for a qualifying period that included fewer years, or a

high landing requirement that included more years to encompass early

years and more recent years. Reflecting their desire to recognize

historic and recent participation, the Council compromised and

established qualifying criteria that both include recent participation,

and acknowledge fishers whose incomes depend significantly on the

sablefish resource. The Council's final analysis includes a discussion

of the economic and social impacts of the 16,000 lb (7,257.5 kg)

qualifying criteria.

Comment 5: Amendment 9 would allocate sablefish available harvest

away from fishers working in waters south of 36 deg. N. lat. to fishers

working in the northern portion of the exclusive economic zone.

Response: There is a separate Acceptable Biological Catch (ABC) for

the Conception management area (waters south of 36 deg. N.

lat.), so division of catch between the two geographic areas will not

alter as a result of the sablefish endorsement program. Also, new

regulations proposed for the Conception area in another rulemaking

would eliminate the opportunity to fish in the primary season south of

36 deg. N. lat. while providing continuing harvesting opportunity under

a year-long daily trip limit. The purpose of this change is to

discourage effort transfers to the Conception area and maintain catches

at historical levels.

Comment 6: Without an endorsement program for the waters south of

36 deg. N. lat., boats from the northern fleet will move their effort

to southern waters, competing with the local southern fleet.

Response: Because annual sablefish landings from waters south of

36 deg. N. lat. are relatively low, NMFS has adopted the Council

recommendation to apply the endorsement requirement to fishing

participation in the primary season, only north of 36 deg. N. lat.

Fishers in the area south of 36 deg. N. lat. would not be required to

hold an endorsement in the southern area sablefish fishery. NMFS in

another rulemaking has proposed to eliminate the primary fishing

opportunity south of 36 deg. N. lat., which would result in a trip

limit only fishery for the southern area (62 FR 30305, June 3, 1997).

Daily trip limits for the southern area are high enough to sustain

historic fishing levels and patterns for that area, yet low enough to

not provide an incentive for northern boats to shift their fishing

efforts to the south.

Comment 7: Sablefish landings from south of 36 deg. N. lat. have

been relatively low because fishers in that area must work farther

offshore on trips of 7-10 days to catch sablefish, yet are constrained

by a daily trip limit that does not allow them to land all of the

sablefish that they are able to catch during those distant trips.

Response: Sablefish fishers, fishing south of 36 deg. N. lat., who

wished to catch and land amounts greater than what has been allowed in

the daily trip limit fishery also had the opportunity to fish in the

primary sablefish season, which, during the qualifying period of 1984

through 1994, started at about 10 months and diminished to 20 days.

During the regular season, they were not constrained by the trip

limits.

Comment 8: The qualification period of 1984 through 1994 is

arbitrary and does not account for recent participation, such as from

the 1995 and 1996 seasons.

Response: On February 5, 1992, NMFS published a Notice of Control

Date (57 FR 4394), indicating that the Council was considering further

access restrictions to the limited entry groundfish fisheries. At that

time, the Council intended to consider individual quota (IQ) programs

for West Coast halibut and sablefish fisheries. In the Notice of

Control Date, NMFS stated, ``If IQ programs are adopted, the Council

has expressed its intent to exclude from consideration fishing activity

occurring after November 13, 1991, in establishing priorities for

issuance and shares of individual quotas for these fisheries.''

Although the Council nearly completed an IQ program, since 1995, the

Council has been unable to recommend an IQ program for the fixed gear

sablefish fishery due to a series of Congressional actions, including a

restriction in NOAA's appropriation prohibiting spending on development

of IQ programs and the current Magnuson-Stevens Act moratorium on new

IQ programs.

On August 1, 1995, NMFS published another Notice of Control Date

(60 FR 39144), this time stating that the Council was considering

establishing a sablefish endorsement program for limited entry, fixed

gear permit holders to control participation or effort in the regular

sablefish season. The notice read ``If a limited entry program is

established, the Council is considering June 29, 1995, as a possible

control date. Consideration of a control date is intended to discourage

new entry by nontrawl ``A'' permit holders into the sablefish fishery

based on economic speculation during the Council's deliberation on the

issues.'' A qualifying period ending on June 29, 1995, would not have

included the 1995, regular season.

Participation in the sablefish fishery has increased rapidly in

recent years, and the regular season declined in

[[Page 34673]]

duration to 7 and 5 day fisheries in 1995 and 1996, respectively. The

Council could not recommend an IQ program, yet recognized a significant

need to constrain the overcapitalization in the fixed gear sablefish

fleet. The sablefish endorsement program was designed to limit

participation in the limited entry, fixed gear, regular sablefish

season. Qualifying criteria for the endorsement include the years 1984

through 1994, a period that recognizes fishing during the limited entry

permit qualifying period of 1984 through 1988, as well as recent

participation. The decision recognized that in order to work toward

rationalization of the fishery, participation had to be limited. The

Council and NMFS have considered historic and current participation and

have determined the new system is equitable. It includes historic

participants with substantial participation in the fishery, but

excludes the most recent entrants who came in after the warnings

regarding effort limitation.

Comment 9: Permit holders who have recently purchased a permit

with the expectation of fishing for sablefish or who did not invest in

sablefish gear until 1995 or 1996, and who may have had 1995 and 1996

landings of greater than 16,000 lb (7,257.5 kg) will be unfairly denied

sablefish endorsements because the permits that they purchased are not

associated with sufficient sablefish landings from the time of the

qualifying period for the permit to qualify for the endorsement.

Response: As noted in the response to Comment 8, above, persons

owning limited entry permits and persons who purchased limited entry

permits in order to participate in the limited entry fishery had ample

notice of the Council's intent to restrict participation in the

sablefish fishery. In addition to Federal Register notification

regarding control dates, the Council, when discussing the limited entry

program, acknowledged the need to further limit participation in the

fixed gear sablefish fishery. There have also been numerous public

announcements, hearings, Council newsletters and analyses discussing

the Council's intent to recommend limiting access to the fixed gear

sablefish fishery. Limited entry permit holders and persons wishing to

purchase a limited entry permit to participate in the West Coast

groundfish fishery had abundant opportunity to learn that the Council

intended to limit access to the sablefish fishery and would qualify

participants based on permit catch history. In fact, several persons

who have purchased limited entry permits in order to participate in the

West Coast groundfish fishery specifically purchased permits with high

sablefish catch history in order to ensure their own future

participation in the limited entry, fixed gear, regular sablefish

season.

Comment 10: If the Council had not set an IQ control date for

1991, fishers would have accumulated sablefish landings in order to

ensure that they would qualify for any later introduction of a limited

access program, such as the sablefish endorsement program.

Response: The Council's intent in publishing the control date was

to prevent fishers from increasing their landings of certain species on

speculation that those species might be included in an IQ program. It

would have been irresponsible for the Council to encourage fishers to

overcapitalize and increase their rates of landings by announcing an

intention to implement an IQ program without announcing a control date.

Comment 11: Limited entry permit holders who are denied sablefish

endorsements will shift their effort to other groundfish stocks,

increasing fishing pressure on those stocks.

Response: The sablefish endorsement qualifying criteria were

specifically designed to recognize a significant annual income

dependence on sablefish over a broad range of years. Permit holders who

do not meet the qualifying criteria will be those fishers who have not

had a significant historic dependence on the regular season for the

limited entry, fixed gear sablefish fishery. Limited entry permit

holders who are denied sablefish endorsements will still have the

opportunity to participate in the daily trip limit fishery. Therefore,

it is expected that those persons who are denied sablefish endorsements

will not cause a significant increase in fishing pressure on other

groundfish stocks.

Comment 12: There should be an appeals process for denial of

sablefish endorsements that allows for waiver of denial in cases of

hardship.

Response: Unlike the limited entry program's qualifying period of

1984 through 1988, the sablefish endorsement program has a long

qualifying period that encompasses the limited entry window period plus

more recent years. It is unlikely that a fisher who suffered a hardship

over an 11 year period that prevented him or her from qualifying for

endorsement could be said to have a significant dependence on sablefish

income. Endorsement qualifying criteria consider catch history

associated with the permit. If a permit holder purchased a limited

permit in recent years but was unable to fish for sablefish with the

permit due to accident or illness, it is expected that the permit

holder would have leased his or her permit to another fisher if the

permit holder's annual income were significantly dependent on

sablefish.

Classification

The Regional Administrator determined that Amendment 9 to the FMP

is necessary for the conservation and management of the sablefish

fishery and is consistent with the Magnuson-Stevens Act and other

applicable laws.

This final rule has been determined to be not significant for the

purposes of E.O. 12866.

The Assistant General Counsel for Legislation and Regulation of the

Department of Commerce certified to the Chief Counsel for Advocacy of

the Small Business Administration (SBA) that this rule would not have a

significant economic impact on a substantial number of small entities.

No comments were received regarding this certification. As a result, a

regulatory flexibility analysis was not prepared.

This rule contains a collection-of-information requirement subject

to the Paperwork Reduction Act (PRA) that has been approved by OMB.

Notwithstanding any other provision of law, no person is required to

respond to nor shall a person be subject to a penalty for failure to

comply with a collection-of-information subject to the requirements of

the PRA unless that collection-of-information displays a currently

valid OMB control number. This rule's collection-of-information burden

is only for those persons who are initially denied sablefish

endorsements, but who wish to provide documentation to prove that they

have in fact met the endorsement qualifications. It is expected that

the public reporting burden will be 2 hours to make an appeal. This is

a one-time only collection-of-information, and contains no annual

reporting and recordkeeping burden. This collection-of-information was

approved by OMB under OMB Control Number 0648-0203. Send comments

regarding the collection-of-information burden or any other aspect of

the information collection to NMFS and OMB (see ADDRESSES).

List of Subjects in 50 CFR Part 660

Administrative practice and procedure, American Samoa, Fisheries,

Fishing, Guam, Hawaiian Natives, Indians, Northern Marianas Islands,

Reporting and recordkeeping requirements.

[[Page 34674]]

Dated: June 24, 1997.

Charles Karnella,

Acting Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons set out in the preamble, 50 CFR 660 is amended as

follows:

PART 660--FISHERIES OFF WEST COAST STATES AND IN THE WESTERN

PACIFIC

1. The authority citation for part 660 continues to read as

follows:

Authority: 16 U.S.C. 1801 et seq.

2. In Sec. 660.306, new paragraphs (s) and (t) are added to read as

follows:

Sec. 660.306 Prohibitions.

* * * * *

(s) During the ``regular'' or ``mop-up'' season described in

Sec. 660.323(a)(2)(iii) and (iv), take and retain, possess or land

sablefish taken and retained north of 36 deg. N. lat., with longline or

trap (or pot) gear, by a vessel with a limited entry permit registered

for use with that vessel and endorsed for longline or trap (or pot)

gear, that does not have a sablefish endorsement.

(t) During the ``regular'' or ``mop-up'' season described in

Sec. 660.323(a)(2)(iii) and (iv), take and retain, possess or land

sablefish taken and retained north of 36 deg. N. lat., with open access

gear, by a vessel with a limited entry permit registered for use with

that vessel and endorsed for longline or trap (or pot) gear, that does

not have a sablefish endorsement.

3. In Sec. 660.323, paragraph (a)(2) introductory text is revised,

paragraphs (a)(2)(i) through (a)(2)(v) are renumbered as (a)(2)(ii)

through (a)(2)(vi) respectively, and new (a)(2)(i) is added to read as

follows:

Sec. 660.323 Catch restrictions.

(a) * * *

(2) Nontrawl sablefish. This paragraph (a)(2) applies to the

regular and mop-up season for the nontrawl limited entry sablefish

fishery, except for paragraphs (a)(2)(ii) and (vi) of this section,

which also apply to the open-access fishery.

(i) Sablefish endorsement. In order to lawfully participate in the

regular season or mop-up season for the nontrawl limited entry fishery,

the owner of a vessel must hold (by ownership or otherwise) a limited

entry permit for that vessel, affixed with both a gear endorsement for

longline or trap (or pot) gear, and a sablefish endorsement.

* * * * *

4. In Sec. 660.333, paragraph (a), the first sentence of paragraph

(c)(1), and paragraphs (d) and (h)(2)(iii) are revised to read as

follows:

Sec. 660.333 Limited entry fishery--general.

(a) General. Participation in the limited entry fishery requires

that the owner of a vessel hold (by ownership or otherwise) a limited

entry permit affixed with a gear endorsement registered for use with

that vessel for the gear being fished. A sablefish endorsement is also

required for a vessel to participate in the regular and/or mop-up

seasons for the nontrawl, limited entry sablefish fishery, north of

36 deg. N. lat. There are three types of gear endorsements: ``A,''

``Provisional A,'' and ``Designated species B.'' More than one type of

gear endorsement may be affixed to a limited entry permit. While the

limited entry fishery is open, vessels fishing under limited entry

permits may also fish with open access gear; except that during a

period when the limited entry fixed gear sablefish fishery is limited

to those vessels with sablefish endorsements, a longline or pot (or

trap) limited entry permit holder without a sablefish endorsement may

not fish for sablefish with open access gear.

* * * * *

(c) Transfer and registration of limited entry permits and gear

endorsements. (1) Upon transfer of a limited entry permit, the FMD will

reissue the permit in the name of the new permit holder with such gear

and, if applicable, species endorsements as are eligible for transfer

with the permit. * * *

* * * * *

(d) Evidence and burden of proof. A vessel owner (or person holding

limited entry rights under the express terms of a written contract)

applying for issuance, renewal, transfer, or registration of a limited

entry permit has the burden of submitting evidence that the

qualification requirements are met. The owner of a permit endorsed for

longline or trap (or pot) gear applying for a sablefish endorsement

under Sec. 660.336(c)(2) has the burden of submitting evidence that the

qualification requirements for a sablefish endorsement are met. The

following evidentiary standards apply:

* * * * *

(h) * * *

(2) * * *

(iii) Two or more limited entry permits with ``A'' gear

endorsements for the same type of limited entry gear may be combined

and reissued as a single permit with a larger size endorsement. With

respect to permits endorsed for nontrawl limited entry gear, a

sablefish endorsement will be issued for the new permit only if all of

the permits being combined have sablefish endorsements. The vessel

harvest capacity rating for each of the permits being combined is that

indicated in Table 2 of this part for the LOA (in feet) endorsed on the

respective limited entry permit.

* * * * *

5. In Sec. 660.334, paragraph (a) is revised to read as follows:

Sec. 660.334 Limited entry permits--``A'' endorsement.

(a) A limited entry permit with an ``A'' endorsement entitles the

holder to participate in the limited entry fishery for all groundfish

species with the type(s) of limited entry gear specified in the

endorsement, except for sablefish harvested north of 36 deg. N. lat.

during times and with gears for which a sablefish endorsement is

required. See Sec. 660.336 for provisions regarding sablefish

endorsement requirements.

* * * * *

6. In Sec. 660.335, paragraph (a) is revised to read as follows:

Sec. 660.335 Limited entry permits--``Provisional A'' endorsement.

(a) A ``provisional A'' endorsement entitles the holder to

participate in the limited entry fishery for all groundfish species

with the type(s) of limited entry gear specified in the endorsement,

except for sablefish harvested north of 36 deg. N. lat. during times

and with gears for which a fixed gear sablefish endorsement is

required. See Sec. 660.336 for provisions regarding sablefish

endorsement requirements.

* * * * *

7. Sec. 660.336 is revised to read as follows:

Sec. 660.336 Limited entry permits--sablefish endorsement.

(a) General. Participation in the limited entry fixed gear

sablefish fishery during the ``regular'' or ``mop-up'' season described

in Sec. 660.323 (a)(2)(iii) and (iv) north of 36 deg. N. lat., requires

that an owner of a vessel hold (by ownership or otherwise) a limited

entry permit, registered for use with that vessel, with a longline or

trap (or pot) endorsement and a sablefish endorsement. During a period

when the limited entry sablefish fishery is restricted to those limited

entry vessels with sablefish endorsements, a vessel with a longline or

pot limited entry permit but without a sablefish endorsement cannot be

used to harvest sablefish in the open access fishery, even with open

access gear.

(1) A sablefish endorsement will be affixed to the permit and will

remain valid when the permit is transferred.

(2) A sablefish endorsement is not separable from the limited entry

permit,

[[Page 34675]]

and therefore may not be transferred separately from the limited entry

permit.

(b) Endorsement qualifying criteria. A sablefish endorsement will

be affixed to any limited entry permit that meets the sablefish

endorsement qualifying criteria.

(1) Permit catch history will be used to determine whether a permit

meets the qualifying criteria for a fixed gear sablefish endorsement.

Permit catch history includes the catch history of the vessel(s) that

initially qualified for the permit, and subsequent catch histories

accrued when the limited entry permit or permit rights were associated

with other vessels. If the current permit is the result of the

combination of multiple permits, then for the combined permit to

qualify for an endorsement, at least one of the permits that were

combined must have had sufficient sablefish history to qualify for an

endorsement; or the permit must qualify based on catch occurring after

it was combined, but taken within the qualifying period. The catch

history of a permit also includes the catch of any interim permit held

by the current owner of the permit during the appeal of an initial NMFS

decision to deny the initial issuance of a limited entry permit, but

only if the appeal for which an interim permit was issued was lost by

the appellant, and the owner's current permit was used by the owner in

the 1995 limited entry sablefish fishery. The catch history of an

interim permit where the full ``A'' permit was ultimately granted will

also be considered part of the catch history of the ``A'' permit. Only

sablefish catch regulated by this part that was taken with longline or

fish trap (or pot) gear will be considered in calculating permit catch

histories. Sablefish harvested illegally or landed illegally will not

be considered.

(2) The sablefish endorsement qualifying criteria are: At least

16,000 lb (7,257.5 kg) round weight of sablefish caught with longline

or trap (or pot) gear in one calendar year from 1984 through 1994. All

catch must be sablefish managed under this part. Sablefish taken in

tribal set-aside fisheries does not qualify.

(c) Issuance process. (1) The FMD will notify each limited entry,

fixed gear permit owner by letter of qualification status whether

Pacific States Marine Fisheries Commission's Pacific Fisheries

Information Network (PacFIN) records indicate that his permit qualifies

for a sablefish endorsement. A person whose permit qualifies based on

PacFIN information will be issued a revised limited entry permit with a

sablefish endorsement, upon payment of a one-time processing fee.

(2) If the permit owner receives a letter of qualification status

from the FMD indicating that PacFIN records do not show that his or her

permit qualifies for a sablefish endorsement and if the permit owner

believes that there is sufficient evidence to show that his or her

permit does qualify for an endorsement, that permit holder must submit

information to the FMD to demonstrate that the permit does qualify for

a sablefish endorsement within 30 days of the issuance of the FMD's

letter of qualification status. Section 660.333(d) sets out the

relevant evidentiary standards and burden of proof.

(3) After review of the evidence submitted under

Sec. 660.336(c)(2), and any additional information the FMD finds to be

relevant, the FMD will notify a permit owner if the permit qualifies

for a sablefish endorsement. A person whose permit qualifies will be

issued a revised limited entry permit with a sablefish endorsement upon

payment of the one-time processing fee.

(4) After review of the evidence submitted under

Sec. 660.336(c)(2), and any additional information the FMD finds to be

relevant, the FMD will notify a permit owner of his determination that

the permit does not qualify for a sablefish endorsement.

(5) If permit holder wishes to file an appeal of the determination

under Sec. 660.336(c)(4), the appeal must be filed with the Regional

Administrator within 30 days of the issuance of the letter (at

Sec. 660.336(c)(4)). The appeal must be in writing and must allege

facts or circumstances, and include credible evidence, demonstrating

why the permit (or interim permit) qualifies for the sablefish

endorsement. The appeal of a denial of a sablefish endorsement will not

be referred to the Council for a recommendation under Sec. 660.340(e).

(6) Absent good cause for further delay, the Regional Administrator

will issue a written decision on the appeal within 45 days of receipt

of the appeal. The Regional Administrator's decision is the final

administrative decision of the Department of Commerce as of the date of

the decision.

[FR Doc. 97-16954 Filed 6-26-97; 8:45 am]

BILLING CODE 3510-22-F