Fisheries Off West Coast States and in the Western Pacific; Pacific Coast Groundfish Fishery; 1997 Management Measures for Nontrawl Sablefish

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 970520120-7198-02; I.D. 040297A]

RIN 0648-AJ19

Fisheries Off West Coast States and in the Western Pacific;

Pacific Coast Groundfish Fishery; 1997 Management Measures for Nontrawl

Sablefish

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

Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to implement management measures

for the 1997 limited entry, fixed gear

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sablefish fishery north of 36 deg. N. lat. This rule also implements

long-term changes to the management measures for this fishery and for

the limited entry, fixed gear sablefish fishery south of 36 deg. N.

lat. In addition to these regulatory measures, NMFS also announces a

1997 season start date of August 25 for the limited entry, fixed gear

regular sablefish season north of 36 deg. N. lat., a season length of 9

days, a season end date of September 3, and an equal cumulative landing

limit of 34,100 lbs. These actions are intended to provide qualified

fixed gear fishers the opportunity to harvest the 1997 fixed gear

allocation and to reduce the risk to human life and safety inherent in

the current ``derby'' fishery.

DATES: Effective August 21, 1997.

ADDRESSES: Copies of the Environmental Assessment (EA)/Regulatory

Impact Review (RIR)/Initial Regulatory Flexibility Analysis (IRFA), and

the Final Regulatory Flexibility Analysis (FRFA) for this action are

available from Lawrence D. Six, Executive Director, Pacific Fishery

Management Council, 2130 SW Fifth Avenue, Suite 224, Portland, OR

97201.

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

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

Council at 503-326-6352.

SUPPLEMENTARY INFORMATION: NMFS issues this final rule to implement a

recommendation from the Pacific Fishery Management Council (Council),

under the authority of the Pacific Coast Groundfish Fishery Management

Plan (FMP) and the Magnuson-Stevens Fishery Conservation and Management

Act (Magnuson-Stevens Act) to implement changes to the management

measures for the limited entry, fixed gear sablefish fishery. The

notice of proposed rulemaking for this action (62 FR 30305, June 3,

1997) fully described the background and rationale for the Council's

recommendations. NMFS requested public comments on this action through

July 3, 1997. NMFS received three letters during the comment period,

which are addressed later in the preamble to this final rule.

Recommendations made at the June 1997 Council meeting and the comments

received on the proposed rule resulted in the changes to the regulatory

text of the proposed rule that are explained below.

In summary, Council recommendations from the October 1996 and March

1997 meetings strengthened the separation of sablefish fishing effort

north and south of 36 deg. N. lat. New management schemes that will

improve safety to fishery participants were recommended for each area.

Changes From the Proposed Rule

NMFS either received Council recommendations on, or consulted with

the Council on the changes to the proposed rule described in this

section.

In March 1997, the total 1996 harvest for the limited entry, fixed

gear, daily trip limit fishery for sablefish was estimated at 374 mt

(825,000 lb). When the Council made its management recommendations for

the limited entry, fixed gear primary (regular plus mop-up) fishery,

the Council expressed an expectation that the 1997 daily trip limit

fishery might exceed the 1996 total harvest by as much as 11 mt (25,000

lb). NMFS mistakenly wrote this expectation into the codified rule as a

guideline for the total harvest for the daily trip limit fishery. As

described below in Comment 1, after receiving updated information, the

Council offered a correction to the proposed rule that the 385 mt

(850,000 lb) was not intended as a harvest target. NMFS changed the

regulatory text to eliminate the reference to the 385 mt (850,000 lb)

after receiving the Council's comment.

At the June Council meeting, public comment strongly supported and

the Council recommended a season start date of August 25 for the

limited entry, fixed gear equal cumulative limit (or regular) fishery.

The regulatory language from the proposed rule has been altered from

describing a framework for a season to setting a season to start on

August 25 for the 1997 fishery. However, as NMFS stated at that

meeting, administrative appeals to denials of sablefish endorsements

will not be completed before mid-September. Thus, some permit holders

may receive a sablefish endorsement too late to participate in the

fishery that begins August 25. To reconcile this conflict, the regular

season will still start on August 25 for endorsement holders; but, an

auxiliary regular season will also occur for successful appellants

whose appeals are resolved after August 25. The start date of the

auxiliary regular season will be announced in the Federal Register, and

is expected to occur in mid-September, preceding the mop-up portion of

the fishery.

This rule will be published very close to the start date of the

regular season, primarily because the Council was unable to make final

recommendations on this issue until its March 1997 meeting. Under this

time constraint, NMFS decided to save time, reduce publication

expenses, and limit public confusion by announcing the regular season

start date, duration and amount of the cumulative limit with this rule.

These announcements result in changes to the 1997 codified regulations

only. NMFS expects that the public would prefer the convenience of

having changes to management measures and the 1997 season structure in

one document, rather than in two separate documents published within

days of each other.

In March 1997, the Council recommended a season structure for the

1997 limited entry, fixed gear regular sablefish fishery of a no more

than 10-day fishery, with equal cumulative limits for all permit

holders with sablefish endorsements. After consulting with the

Council's Groundfish Management Team (GMT) at and subsequent to the

June 1997 Council meeting to set the exact number of days in the

fishery and the equal cumulative limit, NMFS has decided on a nine-day

season starting at noon August 25, and ending at noon, September 3,

1997, with an equal cumulative limit of 34,100 lbs.

A final change from the proposed rule, as explained below in the

response to Comment 2, is to allow each permit only one cumulative

limit in the regular fishery and one in the mop-up fishery. By linking

the cumulative limits to the permit as well as the vessel, multiple

vessels will not be able to use the same permit during the cumulative

limit periods to land multiple cumulative limits on that single permit.

This problem will be dealt with in the long term through a rule that

has been recommended by the Council, which has not been issued, that

limits the timing and frequency of permit transfers.

Management Measures for 1997 Only

For 1997 only, the limited entry, fixed gear sablefish fishery

north of 36 deg. N. lat. will consist of a 9-day regular season with a

single cumulative limit, equal for all vessels. A cumulative trip limit

is the maximum amount of sablefish that may be taken and retained,

possessed or landed per vessel in a specified period of time, with no

limit on the number of landings or trips. In addition, only one regular

season and one mop-up season cumulative limit may be landed on a

permit, so that no one permit may be used by multiple vessels to the

land multiple cumulative limits. The cumulative limit of 34,100 lbs and

the 9-day duration of the fishery are based on the number of permits

qualifying for the sablefish endorsement and on the harvest taken in

the daily trip limit fishery.

The 1997 limited entry, regular fixed gear season will begin at

noon on

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Monday, August 25, 1997. Only holders of limited entry permits with

sablefish endorsements may participate in the fishery. If a limited

entry, fixed gear permit holder's application for a sablefish

endorsement is on appeal at the time of the season start date, that

permit holder may not participate in the regular season. NMFS expects

that the endorsement appeal process will be complete by mid-September.

Following the completion of the endorsement appeal process, there will

be an auxiliary regular season, which will give successful appellants

the opportunity to fish towards the same cumulative limit and for the

same number of days as those persons participating in the regular

fishery. NMFS will announce the start date of the auxiliary regular

season in the Federal Register before the start of that season.

According to the Council's recommendation, as described in the

March 1997 EA/RIR for this issue, the duration of the equal cumulative

limit fishery was to be set as close to 10 days as possible, and with a

harvest ``overhead'' of at least 25 percent using the best estimate of

projected harvest, and with an overhead of at least 15 percent using a

reasonable ``worst case'' scenario. ``Overhead'' is defined as the

difference between the expected harvest level and the total harvest

that would occur if each permitted vessel took its cumulative limit

(maximum potential harvest). The total allowable harvest for the

regular and auxiliary regular fishery will be the amount of the limited

entry, fixed gear sablefish allocation in excess of the amount that is

expected to be taken by the daily trip limit fishery. The Council is

managing the daily trip limit fishery north of 36 deg. N. lat. so that

its 1997 harvest does not substantially exceed its 1996 harvest of 415

mt (915,000 lbs).

Estimates of the likely total harvest in the regular and auxiliary

regular fishery have been made conservatively in order to ensure that

the fishery does not exceed its total allocation. Because of the

provision of overhead and the conservative management described above,

the regular and auxiliary regular fishery is not expected to harvest

all of the limited entry, fixed gear allocation for north of 36 deg. N.

lat. in excess of that required for the daily trip limit fishery.

Following an estimation of the catch from the regular and auxiliary

regular fishery, there will be a mop-up fishery to harvest this excess.

The recommendation on the size of the mop-up cumulative limit will be

made by the Council's Groundfish Management Team, after calculation of

the actual landed catch from the initial and auxiliary cumulative limit

fishery and the daily trip limit fishery. NMFS will announce the start

date, duration, and cumulative limit amount for the mop-up portion of

the fishery in the Federal Register before the start of the mop-up

season.

In 1997, there will be a 48-hour closure before the regular fishery

north of 36 deg. N. lat., during which time no fixed gear vessel

(limited entry and open access) may deploy gear used to take and retain

groundfish, or take and retain sablefish north of 36 deg. N. lat. The

1997 pre-season closure will begin at noon on August 23 and end at noon

on August 25, at the start of the fishery. All fixed gear used to take

groundfish must be out of the water during this period. For auxiliary

regular fishery participants, there will also be a 48-hour closure

before the start of that fishery, during which time the same rules that

govern the pre-season closure for the regular fishery apply just to

auxiliary regular fishery participants.

There will be no opportunities for either pot or longline fishers

to set their gear before the 1997 regular or auxiliary regular season

start times.

Management Measures for 1997 and Beyond

This rule introduces a framework that allows the start date of the

regular, north of 36 deg. N. lat., limited entry, fixed gear sablefish

season to be set for any day from August 1 through September 30. The

Administrator, Northwest Region, NMFS, will establish the season start

date after consulting with the Council, taking into account tidal

conditions, Council meeting dates, alternative fishing opportunities,

and industry comments.

To facilitate enforcement at the end of the regular season, there

will be a 48-hour post-season closure north of 36 deg. N. lat., during

which time no sablefish taken with fixed gear (limited entry or open

access) may be taken and retained for the 48 hours immediately after

the end of the regular season. However, sablefish taken and retained

during the regular season may be possessed and landed during that 48-

hour period. In 1997, this 48-hour post-season closure will begin at

noon on September 3 and end at noon on September 5. Gear may remain in

the water during the 48-hour post-season closure; however, gear used to

take and retain groundfish may not be set or retrieved during this

period. In 1997, there will also be a 48-hour post-season closure after

the auxiliary regular season, for auxiliary fishery participants,

during which time auxiliary fishery participants must comply with the

rules set for all fixed gear fishers for the post-season closure at the

end of the regular season.

Outside of the regular season (the initial cumulative limit

fishery), the mop-up fishery, and the associated 48-hour closures,

there is generally a daily trip limit fishery for all vessels with

limited entry permits for pot or longline gear. Vessels with limited

entry permits for pot or longline gear, but without sablefish

endorsements, may not participate in the regular season or the mop-up

season; they may only harvest sablefish when the daily trip limit

fishery is open for limited entry vessels. The daily trip limit fishery

will be open during the time between the end of the 48-hour closure

following the cumulative limit period and the beginning of the mop-up

fishery.

Commencing at 12 noon local time (l.t.), September 5, 1997, the

daily trip limits for nontrawl sablefish will resume at 300 lb (136 kg)

per day north of 36 deg. N. lat. (Daily trip limits apply to calendar

days. Therefore, on September 5, 1997, a daily trip limit may be landed

between 12 noon and 12 midnight l.t. Beginning at 0001 hours 1.t. on

September 6, 1997, daily trip limits will apply to the full 24 hours.)

A vessel participating in the regular fishery must begin landing its

catch before 12 noon l.t., September 5, 1997, and complete the

offloading before returning to sea or continuing a trip at sea, or the

daily trip limit will apply to the fish remaining on board after 12

noon l.t. on September 5, 1997. The regular season trip limit for

sablefish smaller than 22 inches (56 cm) still applies.

The regular and mop-up seasons in the area south of 36 deg. N. lat.

have been eliminated. The daily trip limit fishery will continue in the

southern area during the time of the regular and mop-up seasons, and

associated closures north of 36 deg. N. lat. Southern area fishers will

be managed with the intent of providing a year-round trip limit

fishery, and those without sablefish endorsements may not move north to

take part in the primary northern season. There is a separate

Acceptable Biological Catch (ABC) for the waters south of 36 deg. N.

lat.

Southern area fixed gear sablefish fishing will henceforth be

managed under routine management measures imposed under 50 CFR

660.323(b). ``Routine'' management measures for sablefish include all

changes to trip and landing frequency limits for all gears. Reasons for

routine management measures include: To extend the fishing season; to

minimize disruption of traditional fishing and marketing patterns; to

reduce discards; to discourage target fishing while allowing

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small incidental catches to be landed; to allow small fisheries to

operate outside the normal season; and, for the open access fishery

only, to maintain landings at the historical proportions during the

1984-88 window period. This rule does not amend Sec. 660.323(b) but

appropriately references it. Trip limits for sablefish in this area

will be established in the annual specifications, and may be adjusted

during the fishing year.

Comments and Responses

The comments in 3 letters received during the public comment period

ending July 3, 1997, are summarized below. Comment 1 is a comment from

the Council itself, whose staff sent a letter with a correction to the

proposed rule. Comments 2 through 9 are comments sent by an individual

in opposition to the 1997 management regime. This letter included an

attachment of 13 letters of comment opposing equal allocation, sent

from industry participants to the Council during its consideration of

this issue, plus an additional letter comment sent by this same

individual to NMFS prior to the publication of the proposed rule, with

a report on fishery safety by a university economist. Comments 10

through 14 are comments from a letter of support sent by two

associations representing West Coast fishing vessel owners and fishers.

This letter raised specific issues concerning the Magnuson-Stevens Act

National Standards for fisheries management, as they apply to this

fishery.

Comment of Correction

Comment 1: The draft regulations for the 1997 season contain a

reference to a target harvest of 385 mt (850,000 lbs) for the daily

trip limit portion of the limited entry, fixed gear sablefish fishery.

It was not intended that this target value be included as part of the

codified regulations. Furthermore, more recent information indicated

that the daily trip limit fishery took a higher amount in 1996 (415 mt

(915,000 lb)), and more would be needed for 1997. The Council also

recognizes that further adjustments to the duration of the fishery and

the size of the cumulative limit may need to be made based on the

number of vessels that ultimately qualify for sablefish endorsements.

Response: The codified text from the proposed rule has been altered

to eliminate the reference. During its March 1997 meeting, the Council

recommended setting a target harvest for the primary fishery that would

leave about 385 mt (850,000 lb) for the daily trip limit fishery. The

goal of this recommendation was to allow some expansion in the daily

trip limit fishery over what it had harvested in 1996. The Council

expected that the total 1997 catch in the daily trip limit fishery

would expand slightly over the total 1996 catch. At that time, it was

estimated that the daily trip limit fishery had taken approximately 374

mt (825,000 lbs) in 1996, and might take as much as 385 mt (850,000

lbs) in 1997. By the June 1997 Council meeting, calculations of the

total 1996 sablefish harvest in the limited entry, daily trip limit

fishery were finalized at a total of 415 mt (915,000 lbs). If a cap of

385 mt (850,000 lbs) for the daily trip limit fishery were to remain in

the codified text, the daily trip limit fishery would be constrained

contrary to the logic of the Council's original recommendations.

Comments Opposing Rule

Comment 2: There are no restrictions on permit transfers. Permit

holders who are able to take either the cumulative limit before the end

of the cumulative limit period, or the mop-up limit before the end of

the mop-up period would be allowed to transfer their permits, which may

permit multiple boats to catch the limits during the times set for both

the cumulative limit and mop-up periods of the fishery.

Response: NMFS agrees. Therefore, the proposed rule has been

modified so that the cumulative limit is a period limit for the permit

as well as for the vessel. By linking the cumulative limits to both the

vessel and the permit, multiple vessels will not be able to make

multiple cumulative limit landings on the same permit during the

cumulative limit periods. This change is consistent with the intent of

the Council's recommendations for management of the 1997 limited entry,

fixed gear sablefish regular fishery. This problem will be dealt with

in the long term through a rule that has been recommended by the

Council, but not yet implemented, that would limit the timing and

frequency of permit transfers for all gear types.

Comment 3: For vessels unable to catch the cumulative limit within

the cumulative limit period, the fishery will still be an unsafe derby.

A report by a university economist argues that because the 1997 fishery

will increase the amount of time that lower-level harvesters will be in

a derby-like setting, the 1997 season is less safe than a derby.

Response: The Council debated at its October 1996 and March 1997

meetings whether the equal cumulative limit fishery would still be

unsafe for vessels unable to catch the cumulative limit within the time

allotted for the fishery. Fishers who knew that they would not be able

to catch the cumulative limit within the allotted time testified at the

Council meeting that any increase in the number of days in the fishery

would allow them to slow the pace of their fishing and improve their

ability to operate in a more safe manner. The U.S. Coast Guard also

testified on the safety hazards of derby fisheries and stated that the

longer the season, the safer the fishery. For vessels that are able to

catch the cumulative limit within the cumulative limit period, the

safety of the fishery will increase.

Comment 4: The equal cumulative limit system disregards historic

fishery participation levels and redistributes fish and income away

from high producers to low procedures and away from the pot sector to

the longline sector.

Response: As discussed in the preamble to the proposed rule, the

Council determined that the safety benefits that could be gained from

replacing the derby fishery with a slower-paced equal cumulative limit

fishery would outweigh the one-time negative impact that such a regime

would have on the highest producers in the fleet. The Council has

considered historic participation as demonstrated in the documents

produced for this action, Amendment 9, and the 1998 3-tier proposal.

Nonetheless, the Council chose to recommend the equal cumulative limit

for 1997 as the best short-term solution. At the June 1997 council

meeting, the Council recommended that NMFS implement a three-tiered

cumulative limit regime for managing the fishery in 1998 and beyond,

which should provide fishers with fishing opportunities more closely

aligned to past catch distribution.

Comment 5: Information at the March 1997 Council meeting indicated

that the 1996 daily trip limit fishery took 385 mt (850,000 lb).

Information on the 1997 daily trip limit fishery indicates that the

fishery has exceeded the 1996 catch. If the daily trip limit fishery

catch is higher than what was expected at the March 1997 Council

meeting, NMFS will be unable to implement a catch limit for the

cumulative limit fishery that will maintain the required overhead.

Response: As mentioned above, ``overhead'' is the amount by which

the harvest would exceed the expected catch if every eligible vessel

participates in the fishery and fully harvests its legal limit. The

concept of overhead is based on the premise that not all participants

in this fishery will harvest the cumulative limit. A fishery where all

participants have the opportunity to

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catch a cumulative limit and they are all able to catch that limit

would be considered an individual fishing quota (IFQ). The Sustainable

Fisheries Act of 1996 put a moratorium on the implementation of new IFQ

programs until October 1, 2000.

Management measures for the limited entry, fixed gear sablefish

fishery have been carefully crafted to not violate the IFQ prohibition.

The Council has constrained the monthly limits in the daily trip limit

fishery to ensure that the total 1997 catch does not greatly exceed the

total 1996 daily trip limit fishery catch. With these constraints in

place, NMFS has structured the fishery to meet the Council's parameters

by adjusting the season length and trip limit level.

Comment 6: If NMFS reserves a portion of the catch available to the

cumulative limit fishery for successful appellants to the sablefish

endorsement application process to take during the time of the mop-up

fishery, there would be a redistribution of catch amounts between the

regular and mop-up portions of the fishery, which is not allowed under

the current regulations.

Response: The auxiliary regular fishery is part of the regular

fishery; it is not part of the mop-up fishery. The mop-up season will

be held after the auxiliary regular season. A reasonable estimate of

the amount needed for both regular seasons under the less conservative

scenario described in the EA/RIR for this issue has been made. This

estimate determined the duration and cumulative limit for the regular

seasons. The amount available to the mop-up portion of the fishery

will, as in the past, depend on the accuracy of the catch projections

and on the amount of harvest needed to accommodate the daily trip limit

fishery for the remainder of the year. As in years past, the NMFS

Regional Administrator may determine that too little of the fixed gear

allocation remains to conduct an orderly or manageable fishery, in

which case there would be no mop-up season. This division of catch and

establishment of an auxiliary season is not being implemented through

pre-existing regulations, but through this final regulation.

Comment 7: The mop-up season has a fairly small cumulative limit

for each participant and it is likely that every participant in the

mop-up fishery will be able to take that cumulative limit during the

mop-up cumulative limit during the mop-up period, there will be no

overhead and the fishery will be an IQ.

Response: The mop-up fishery does not exist independently of the

regular fishery and, in fact, may not even occur if all of the

sablefish available to the regular season is taken during the regular

season. Conservative management of the regular fishery to prevent the

total regular fishery catch from exceeding the amount available to that

fishery creates the probability that not all of the sablefish available

to the regular fishery will be taken during the regular fishery. The

regulations finalized by this rule allow for the possibility of a mop-

up in the event that not all of the sablefish available to the regular

fishery is taken during the regular fishery. NMFS expects that overhead

within the entire primary fishery, which is the regular fishery in

combination with the mop-up fishery, will be within the Council's

parameters of 15-25 percent. The structure of the mop-up fishery is

similar to the mop-up fishery under past derbies and under the proposed

three-tier system for 1998 and beyond.

Comment 8: Before actions taken at the June 1997 Council meeting,

the overhead suggested for the cumulative limit fishery was 15 percent

to 25 percent of the total estimated catch. Reserving a portion of the

catch for successful endorsement application appellants, allowing

transfers of permits during the fisheries, the higher than expected

daily trip limit fishery catch, and altering the division of catch

between the regular and mop-up portions of the fishery will absorb the

available overhead and allow each participant to catch his or her

cumulative limit, which would be an individual quota fishery.

Response: NMFS disagrees. As noted in the response to Comment 5

above, the cumulative limit and the overhead are calculated based on

the total amount of sablefish available to the fishery and the

projected harvest in the fishery. In addition, NMFS has eliminated the

potential problem that could result from permit transfers (see Comment

2). Altering the amount of fish available to the fishery, or the

projected total harvest does not necessarily eliminate the overhead, it

simply requires a recalculation of the cumulative limit and cumulative

limit period duration.

Comment 9: The Council recommended equal allocation for 1997

because NMFS did not have time to implement a 3-tiered cumulative limit

system in time for the 1997 season.

Response: The 1997 management regime of equal cumulative limit

fishery was recommended by the Council at its October 1996 meeting and

refined during its March 1997 meeting. During the discussions of this

issue at the October 1996 meeting, some industry members commented that

they would like to have the fishery managed as a tiered cumulative

limit regime. The Council agreed to set up an industry advisory

committee to discuss such an option for 1998.

The tiered management option had not been discussed or analyzed

prior to October 1996. The Council adopted the current management

regime for 1997 because it was the best available short-term

alternative to the derby. The Council did not adopt a tiered cumulative

limit option for 1997, because Council members and staff wished to have

sufficient time to consult with the public, design parameters for such

an option, and analyze the potential impacts of a tiered cumulative

limit program through at least two Council meetings, as required by the

FMP. NMFS implementation of a tiered cumulative limit program would

also require considerable time to initiate and complete the rulemaking

process, and to sort and analyze fisheries landings data so that

endorsed permit holders could be assigned to the correct tiers.

There was not enough time between November 1996 and July 1997 for

the two-meeting process, full Council pre- and post-decisional

analyses, the federal rule publication process, and tier implementation

by NMFS.

Comments Supporting Rule

Comment 10: Under the proposed rule, there would be a greater

opportunity to harvest more selectively for the higher valued

sablefish, resulting in fewer discards of lower value bycatch. The

proposed rule would slow the pace of the affected fisheries, and thus

reduce the abandonment of gear and the consequent mortality due to

``ghostfishing.'' Notably, a slower fishery than that described in the

proposed rule might result in an increased number of discards.

Response: Bycatch can occur for many reasons. In a derby fishery,

where all fishers are participating at their highest possible rates of

fishing, fishers may not have the time to fish in a selective manner.

Fish would be hauled on board as quickly as possible without regard to

species or size, and then a portion would be discarded according to

market or regulatory constraints on what catch should and may be

retained. Conversely, in a fishery where all participants have ample

time to sort through their catch and fish until their vessels are

filled with the highest-value fish, many lower-value fish may be

discarded in the process. It is difficult to determine the optimal

point between these two scenarios for minimizing fishery discards. The

1997 management

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regime certainly allows fishers to slow their rates of fishing over the

rates of previous years and improve the selectively of their fishing

methods. Selectivity in fishing, however, is a matter of personal

ethics and fishing skill. NMFS does agree that a slower-paced fishery

should have the much desired result of reducing gear abandonment and

ghostfishing by lost gear.

Comment 11: By assuring a slower pace of harvesting in the affected

fisheries, the adoption of the proposed rule would result in improved

safety of life at sea. The proposed limited entry measures would allow

fishermen to time their harvesting activities so as to avoid dangerous

weather conditions. In addition, fishermen would be better able to

avoid fatigue and the attendant risk of accidental injury and death.

Response: NMFS agrees. If there had been a derby in 1997, it would

have been 3-4 days in duration. The management regime implemented by

this rule significantly improves safety in the fishery over a 3-4 day

derby.

Comment 12: The adoption of the proposed rule would ensure a

balance of the interests of all affected communities. While some

redistribution of landings would likely occur, sustained participation

would be assured for all communities, consistent with conservation

requirements of the Act. Any adverse effects would be minimized, to the

extent practicable, for all affected communities, by providing fair and

reasonable access to the fisheries for all participants.

Response: NMFS agrees. Access by all affected communities is still

maintained with this action. However, NMFS recognizes that, for 1997,

resources within the fishery will be reallocated between participants

in a manner inconsistent with historic participation levels.

Comment 13: The proposed rule is designed to ensure that

overfishing is prevented and that the optimum yield is achieved on a

continuing basis. The system of landing limits and time and area

closures, including the device of a mop-up fishery, allows close

control of the fishery to achieve optimum yield.

Response: NMFS agrees.

Comment 14: Several times the Federal court has held that the

Magnuson-Stevens Act provides the authority for the Secretary to

sacrifice the interests of some groups of fishermen, for the benefit,

as the Secretary sees it, of the fishery as a whole.

Response: NMFS agrees and has determined that the 1997 measures are

reasonable for the overall fishery this year. NMFS does, however,

support a 1998 management regime for this fishery that both achieves

both increased safety over prior year derbies and takes into account

historic fishing levels.

Classification

Under 5 U.S.C. 553(d)(3), the Assistant Administrator finds good

cause to waive the 30-day delay in effectiveness for this rule. August

25 was chosen as a season opening date in order to promote safety and

to allow fishermen to participant in order fisheries aside from this

directed sablefish fishery. In order for the limited entry fixed gear

sablefish fishery to fully benefit from the increased vessel safety

produced by a longer season and not have the fishery delayed until

later in the year when safety could be compromised by worsening weather

conditions, this rule must be made effective to allow a regular season

for endorsed permit holders to begin August 25. To this extent, to

delay the effectiveness of this rule would be contrary to the public

interest.

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

purposes of E.O. 12866.

The Final Regulatory Flexibility Analysis consists of the IRFA (as

submitted by the Council and supplemented by the preamble to the

proposed rule (62 FR 30305, June 4, 1997)), and a NMFS addendum

prepared for this final rule. All of the 164 vessels that are expected

to qualify for sablefish endorsements north of 36 deg. N. lat. and

participate in the 1997 limited entry, fixed gear sablefish fishery are

small entities. Approximately 38 operators (23 percent of expected

endorsed participants) are expected to suffer a loss of greater than 5

percent of their total gross fishing revenues, a ``substantial'' number

for the purposes of the RFA. There will likely be a 29 percent

redistribution of the harvest from traditionally high producers to

traditionally low producers, a redistribution of ex-vessel revenue of

about $2.5 to $3.0 million. Individuals in the top third of the fleet

in terms of production levels will experience reductions in sablefish

incomes, which will be funneled into distributed gains for the lower

producing two-thirds of the fleet. Thus, when looking at the fleet as a

whole, the impact on high producers would be mitigated by the benefit

to the low producers, which are also small businesses. The Council

initially reviewed five options for management in this fishery: N1--the

status quo; N2--a three week cumulative limit with a mop-up fishery;

N3--a three week cumulative limit with different limits for longline

and pot vessel; N4--trip size/frequency limits using three one-week

periods, with no mop-up fishery; and N5--three months of monthly trip

limits. The initial option chosen, N2, was determined by NMFS to

constitute an IFQ system, which is prohibited by the Magnuson-Stevens

Act until October 1, 2000. Without substantial changes, options N3-N5

would constitute IFQ's as well. To avoid the derby fishery the Council

chose to modify option N2, because it was the most feasible to be

implemented before the 1997 fishery. The option had already been

approved by the Council and was acceptable to the majority of

participants in the fishery. As modified the option would provide

sufficient ``overhead'' in uncaught fish so that it would not be

considered an IFQ. (See responses to comments 5 and 9 for a discussion

of overhead). There was insufficient time to modify previously rejected

options due to the considerable time required to initiate and execute a

more complex program and follow all requirements of the FMP. The

management alternative that would have had the least significant

economic impact to the fleet would have been the status quo derby, N1.

However, the Council decided to reduce the danger that the derby poses

to human life and safety and chose an available management alternative

that could be implemented in time for an August-September 1997 fishery.

List of Subjects in 50 CFR Part 660

Administrative practice and procedure, American Samoa, Fisheries,

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

Reporting and recordkeeping requirements.

Dated: August 21, 1997.

David L. Evans,

Deputy Assistant Administrator for Fisheries, National Marine Fisheries

Service.

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

as follows:

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

PACIFIC

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

follows:

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

Subpart G--West Coast Groundfish Fisheries

2. Section 660.323 is amended by revising paragraph (a)(2) to read

as follows:

[[Page 45356]]

Sec. 660.323 Catch restrictions.

(a) * * *

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

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

fishery north of 36 deg. N. lat., except for paragraphs (a)(2) (ii) and

(iv) of this section, which also apply to the open access fishery north

of 36 deg. N. lat. Limited entry and open access fixed gear sablefish

fishing south of 36 deg. N. lat. is governed by routine management

measures imposed under paragraph (b) of this section.

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

regular, auxiliary regular, or mop-up season for the nontrawl limited

entry fishery, the owner of a vessel must hold (by ownership or

otherwise) a limited entry permit for that vessel, affixed with both a

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

endorsement.

(ii) Pre-season closure--open access and limited entry fisheries.

(A) From 1200 local time (l.t.), August 23, 1997, until 1200 l.t.,

August 25, 1997, sablefish taken with fixed gear in the limited entry

or open access fishery in the EEZ north of 36 deg. N. lat. may not be

retained or landed. Beginning January 1, 1998, sablefish taken with

fixed gear in the limited entry or open access fishery in the EEZ north

of 36 deg. N. lat. may not be retained or landed during the 72 hours

immediately before the start of the regular season for the nontrawl

limited entry sablefish fishery.

(B) From 1200 l.t., August 23, 1997, until 1200 l.t., August 25,

1997, all fixed gear used to take and retain groundfish must be out of

EEZ waters north of 36 deg. N. lat. Beginning January 1, 1998, all

fixed gear used to take and retain groundfish must be out of EEZ waters

north of 36 deg. N. lat. during the 72 hours immediately before the

opening of the regular season for the nontrawl limited entry sablefish

fishery, except that pot gear used to take and retain groundfish may be

deployed and baited in the EEZ up to 24 hours immediately before the

start of the regular season.

(C) From August 21, 1997 through December 31, 1997, during the 48

hours immediately before the opening of the auxiliary regular season

for the nontrawl limited entry sablefish fishery, participants in the

auxiliary regular season may not retain or land sablefish, and must

have all fixed gear used to take and certain groundfish out of EEZ

waters.

(iii) Regular season--nontrawl limited entry sablefish fishery;

starting in 1998. The NMFS Regional Administrator will announce a

season for waters north of 36 deg. N. lat. to start on any day from

August 1 through September 30, based on consultations with the Council,

taking into account tidal conditions, Council meeting dates,

alternative fishing opportunities, and industry comments. During the

regular season, the limited entry nontrawl sablefish fishery may be

subject to trip limits to protect juvenile sablefish. The regular

season will end when 70 percent of the limited entry nontrawl

allocation has been or is projected to be taken. The end of the regular

season may be announced in the Federal Register either before or during

the regular season.

(iv) Post-season closure--limited entry and open access. (A) No

sablefish taken with fixed gear north of 36 deg. N. lat. may be taken

and retained from 1200 l.t., September 3, 1997, until 1200 l.t.,

September 5, 1997. Sablefish taken and retained during the regular

season may be possessed and landed during this 48-hour period. Gear may

remain in water during this 48-hour post-season closure. Fishers may

not set or pull from the water fixed gear used to take and retain

groundfish during the 48-hour post-season closure. At 1200 l.t. on

September 5, 1997, the daily trip limit regime will resume.

(B) From August 21, 1997, through December 31, 1997, for

participants in the auxiliary regular season, no sablefish may be taken

with fixed gear and retained during the 48 hours immediately after the

end of the auxiliary regular season of the nontrawl limited entry

sablefish fishery. Sablefish taken and retained during the auxiliary

regular season may be possessed and landed during that 48-hour period.

Gear may remain in water during the 48-hour post-season closure.

Auxiliary regular season participants may not set or pull from the

water fixed gear used to take and retain groundfish during the 48-hour

post-season closure. At the end of the post season closure, the daily

trip limit regime will resume.

(C) Beginning January 1, 1998, no sablefish taken with fixed gear

may be taken and retained during the 48 hours immediately after the end

of the regular season for the nontrawl limited entry sablefish fishery.

Sablefish taken and retained during the regular season may be possessed

and landed during that 48-hour period. Gear may remain in water during

the 48-hour post-season closure. Fishers may not set or pull from the

water fixed gear used to take and retain groundfish during the 48-hour

post-season closure. At the end of the post-season closure, the daily

trip limit regime will resume.

(v) Mop-up season--limited entry fishery. (A) A mop-up season to

take the remainder of the limited entry nontrawl allocation will begin

in waters north of 36 deg. N. lat. about 3 weeks after the end of the

regular season, or as soon as practicable thereafter. During the mop-up

fishery, a cumulative trip limit will be imposed. A cumulative trip

limit is the maximum amount of sablefish that may be taken and

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

time, with no limit on the number of landings or trips. No vessel may

land more than one cumulative limit. The length of the mop-up season

and the amount of the cumulative trip limit, including the time period

to which it applies, will be determined by the Regional Administrator

in consultation with the Council or its designees, and will be based

primarily on the amount of fish remaining in the allocation, the amount

of sablefish needed for the remainder of the daily trip limit fishery,

and the number of mop-up participants anticipated. The Regional

Administrator may determine that too little of the nontrawl allocation

remains to conduct an orderly or manageable fishery, in which case

there will not be a mop-up season. There will be no daily trip limit

fishery during the mop-up season. At the end of the mop-up season, the

daily trip limit fishery will resume.

(B) From August 21, 1997 through December 31, 1997: No more than

one mop-up cumulative limit may be landed on each limited entry permit

with a sablefish endorsement.

(vi) Other announcements; starting in 1998. The dates and times

that the regular season starts and ends (and trip limits on sablefish

of all sizes are resumed), the dates and times for the 48-hour post-

season closure, the dates and times that the mop-up season begins and

ends, and the size of the trip limit for the mop-up fishery will be

announced in the Federal Register and may be modified. Unless otherwise

announced, these seasons will begin and end at 12 noon on the specified

date.

(vii) Regular season and auxiliary regular season; from August 21,

1997 through December 31, 1997--limited entry fishery. (A) The regular

season for the nontrawl limited entry sablefish fishery north of

36 deg. N. lat. will start at 1200 noon, l.t. on August 25, 1997, and

end at 1200 noon l.t. on September 3, 1997. During this period, each

vessel with a sablefish endorsement on its permit will have a

cumulative trip limit of 34,100 lb. A cumulative trip limit is the

maximum amount of sablefish that may be taken and retained, possessed,

or landed per vessel in a specified period of time, with no limit on

the number of landings or trips. No more

[[Page 45357]]

than one regular season cumulative limit may be landed on each limited

entry permit with a sablefish endorsement. No vessel may land more than

one cumulative limit. Each vessel is subject to the following per-trip

limit for small sablefish: Sablefish smaller than 56 cm (22 in) total

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

legal sablefish 56 cm (22 in) (total length) or larger, whichever is

greater. There will be no daily trip limit fishery during the regular

season.

(B) Permit holders whose applications for sablefish endorsements

are under administrative appeal at the time the regular season begins

will not be allowed to participate in the regular season. There will be

a 9-day auxiliary regular season for permit holders whose sablefish

endorsements are granted after August 25. The season will be held

following the end of the appeal process. The auxiliary regular season

start date will be announced by the NMFS Regional Administrator and

published in the Federal Register. Each vessel participating in this

season will have a cumulative trip limit of 34,100 lb. No more than one

regular season cumulative limit may be landed on each limited entry

permit with a sablefish endorsement. No vessel may land more than one

cumulative limit. Each vessel is subject to the following per-trip

limit for small sablefish: Sablefish smaller than 56 cm (22 in) total

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

legal sablefish 56 cm (22 in) (total length) or larger, whichever is

greater.

(viii) Other announcements; from August 21, 1997 through December

31, 1997. The number of days in the mop-up season, dates and times that

the auxiliary regular, and mop-up seasons start and end (and trip

limits on sablefish of all sizes are resumed), dates of the pre- and

post-season closures for the auxiliary regular season, and the size of

the trip limit for the mop-up season will be announced in the Federal

Register and may be modified. Unless otherwise announced, these seasons

will begin and end at 1200 l.t. on the specified date.

* * * * *

[FR Doc. 97-22709 Filed 8-21-97; 5:04 am]

BILLING CODE 3510-22-M