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. 970311053-7053-01; 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: Proposed rule.

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SUMMARY: NMFS issues this proposed rule to implement Amendment 9 to the

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

Amendment 9 would require a sablefish endorsement on limited entry

permits for permit holders to participate in the regular 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 proposed 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 would eliminate 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: Comments on the proposed rule must be received on or before May

5, 1997.

ADDRESSES: Comments on the proposed rule, Amendment 9, or supporting

documents should be sent to Mr. William Stelle, Administrator,

Northwest Region, NMFS, Sand Point Way NE., BIN C15700, 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.

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

[[Page 13584]]

Regulatory Impact Review (RIR)/Initial Regulatory Flexibility Analysis

(IRFA) are available from Larry Six, Executive Director, Pacific

Fishery Management Council, 2130 SW Fifth Ave., Suite 224, Portland, OR

97201.

Comments on the information collection requirements that would be

imposed by this rule should be sent to Mr. William Stelle or to Mr.

William Hogarth, at the addresses above, and to the Office of

Information and Regulatory Affairs of the Office of Management and

Budget, Washington DC, 20503.

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

Rodney McInnis at 310-980-4040, or the Pacific Fishery Management

Council at 503-326-6352.

SUPPLEMENTARY INFORMATION: NMFS is proposing this rule based on a

recommendation of 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 recommendations are summarized below.

More detail appears in the EA/RIR/IRFA that the Council prepared for

this action.

Background

Sablefish (Anoplopoma fimbria) is one of the most valuable species

in the groundfish fishery off Washington, Oregon, and California (WOC).

Since 1987, the annual sablefish non-tribal harvest guideline has been

allocated between trawl gear and fixed gear fisheries. Historically,

the trawl fishery has been managed with trip or period landings limits,

which means the amount of fish that may be harvested during a fishing

trip or during a set time period. Trip or period landings limits are

mainly imposed to extend the fishery throughout most of the year. By

contrast, the limited entry, fixed gear fishery has taken most of its

allocation in an intense, open competition called the ``regular'' or

``derby'' season, which had no trip limits, except for limits on small

sablefish less than 22 inches (56 cm) in length. For 72 hours before

the regular season, it is illegal to take and retain, possess, or land

sablefish caught with fixed gear, although vessels using pot gear may

begin to set their gear 24 hours in advance of the start of the regular

season. In recent years, the nontrawl fleet has operated under

restrictive limits (250-500 lb (113-227 kg) per day) outside of the

regular season. The limited entry nontrawl fishery for sablefish

involves two operationally distinct gear types, pot (or trap) and

longline, that compete for the nontrawl harvest allocation.

Problems commonly attributed to the current derby fishery relate to

safety, inefficiency, resource wastage, and social conflict. There are

two main problems with the derby: (1) Excess harvesting capacity in the

fishery; and (2) difficulty controlling total harvest. These problems

will intensify if the derby is allowed to continue, particularly if the

length of the derby shortens each year.

The Council's first concern with the current limited entry,

nontrawl sablefish season management is that, if this fishery is

allowed to continue as a derby, the season will become even shorter and

the danger of fishing in the derby will rise. Before 1990, the fixed

gear sablefish fishery began on January 1 and usually lasted for the

greater part of the year. However, fishing effort increased and quotas

were reduced during the late 1980s and early 1990s, resulting in the

recent, short ``derby'' seasons. In 1995 and 1996, the derby seasons

were 7 and 5 days long, respectively. Seasons shorten from year to year

because each vessel owner has an incentive to invest in new and better

gear each year, hoping to increase the amount of fish he or she can

catch per hour or per day. With seasons measured in numbers of days,

the derby is not just dangerous because it gives fishers strong

incentives to stay out during bad weather but also because they work at

sea with heavy machinery, with little or no sleep throughout the derby.

Promoting the safety of human life at sea is an important new national

standard (National Standard 10) in the Magnuson-Stevens Act.

Beyond the very serious safety concerns with the derby fishery,

there are also economic and conservation problems with the current

management regime. Just as fishers cannot choose to fish during the

best weather, they also cannot choose to fish during periods of highest

sablefish market value. Fish caught under derby conditions often can

not be handled or processed into the highest value sablefish products.

In a derby for high-value fish like sablefish, lower-value bycatch may

be thrown overboard, dead and unused. Magnuson-Stevens Act National

Standard 9 supports efforts to minimize bycatch and bycatch mortality.

With shortening derby seasons, fishers may also be more likely to

abandon their gear at sea, leaving that gear to continue to ``ghost

fish'' after the derby has ended. Finally, as the length of the derby

decreases, it becomes more difficult for managers to accurately choose

a closing date that will prevent the harvest from exceeding the

allowable catch.

When the limited entry system was first designed by the Council,

that system was considered a first step in a long-term process to

reduce effort levels in the groundfish fishery. Fishers had used

landings of a wide range of species to qualify for limited entry

permits, which meant that the limited entry program had limited overall

effort in the groundfish fishery, but had not necessarily constrained

effort levels in single-species fisheries. The number of vessels

participating in the limited entry, fixed gear sablefish fishery has

grown in recent years, corresponding with rising sablefish prices and

decreasing availability of other fixed gear target stocks. Sablefish

endorsements will control some of this effort increase by limiting

sablefish fishery participation to those persons who have historically

participated in and depended upon the sablefish fishery.

Sablefish Endorsement

The Council has recommended to the Secretary that NMFS require a

sablefish endorsement on limited entry permits to limit the number of

participants in the regular, limited entry, nontrawl sablefish fishery.

The Council recommended the following sablefish endorsement qualifying

criteria: at least 16,000 lb (7,257.5 kg) of sablefish catch from the

sablefish fishery, in any one calendar year from 1984 through 1994.

Choosing appropriate qualifying criteria required careful Council

consideration of lessons learned about initial limited entry permit

distribution, historic characteristics of the fleet, and the dependence

of current permit holders on the sablefish derby. The 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 grants 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.

Households with sablefish fishery incomes less than that represented by

the 16,000-lb (7,257.5-

[[Page 13585]]

kg) qualifying requirement are more likely to have greater reliance on

other sources of fishing or nonfishing income than those who meet the

16,000-lb (7,257.5-kg) requirement.

Vessels that do not qualify for an endorsement because of failure

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

harvest small amounts of sablefish in the limited entry daily trip

limit fishery when the regular season is not open. For example, vessels

making two trips per week over a 6-month period could land close to

16,000 lb (7,257.5 kg), and thereby suffer no reduction in gross

revenue. However, while some vessels are able to generate net positive

revenues from the daily trip limit fishery, larger vessels located at

greater distances from the fishing grounds may not find the daily trip

limit fishery profitable. The daily trip limit opportunity may also

conflict with other fishing opportunities for some vessels.

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 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 for this

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

included in calculating permit catch histories.

A sablefish endorsement would 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, limited entry, nontrawl sablefish fishery, as

specified in the regulations; this harvest would count against the

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

lat. Catch taken in the southern area counts against a southern area

(Conception Area) acceptable biological catch (ABC). However, because

the annual ABC has never been reached by vessels operating in the

southern area, there is no established harvest guideline and no

allocation between-gear types for this area. Fishers from the southern

area have not historically focused on sablefish, and limited entry

qualifications from that area were largely made with groundfish other

than sablefish. Because of the under-exploitation of the available

harvest, and the relatively recent development of catch history by some

vessels in the southern area, the Council chose to exempt vessels

fishing in the area from being required to hold a sablefish endorsement

to participate in the limited entry fixed gear sablefish fishery.

Implementing sablefish endorsements for the entire coast would have had

a disproportionate impact on the southern area, primarily because

fishers who have only recently begun to target sablefish in that area

would have been eliminated from the regular limited entry season. It is

expected that the Council will manage the fishing in the Conception

Area differently from the northern fishery in order to avoid effort

shifts.

Under the proposed 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 would be consistent with the current combination

requirements for limited entry permit gear endorsements. Also, if the

fishery continues to be managed as a derby fishery, future combination

of non-endorsed permits with endorsed permits would allow more capacity

into the sablefish fishery and thereby exacerbate the pressures of the

derby.

The sablefish endorsement would be required for fixed gear, limited

entry vessels to take sablefish against the limited entry allocation in

the area north of 36 deg. N. lat. during periods of time specified in

the regulations (to be recommended by the Council). The general intent

is that an endorsement be required to take part in the major limited

entry, fixed gear sablefish harvest opportunities, but no endorsement

be required when management measures are intended to allow only small

or incidental sablefish harvests.

Under the proposed management system, limited entry permit holders

with sablefish endorsements could participate in the regular, limited

entry, nontrawl sablefish fishery, under the limited entry regulations.

Outside of the regular season, they would be allowed to catch sablefish

with their endorsed gear under the small daily trip limits, under the

limited entry regulations. Limited entry permit holders with sablefish

endorsements could also catch sablefish with open access gear other

than their endorsed gear, under the regulations of the open access

fishery. Limited entry permit holders who do not have sablefish

endorsements would still be allowed to fish for sablefish outside the

regular, limited entry, nontrawl sablefish season by either using their

endorsed gear and fishing under the limited entry regulations, or by

using open access gear and fishing under open access regulations.

Limited entry permit holders who do not have sablefish endorsements

would not be allowed to fish for sablefish with either limited entry or

open access gear during the regular, limited entry, non-trawl sablefish

season.

Biological Impacts

Marine biological background and biological impacts of the

sablefish fishery are analyzed in ``Status of the Pacific Coast

Groundfish Fishery Through 1996 and Recommended Acceptable Biological

Catches for 1997: Stock Assessment and Fishery Evaluation'' (SAFE

Document), and in the Environmental Assessment for Amendment 9 to the

Pacific Coast Groundfish FMP. These documents may be obtained from the

Pacific Fishery Management Council (See ADDRESSES above).

NMFS expects that the biological impacts of requiring a sablefish

endorsement would be negligible. The sablefish ABC and harvest

guideline would not be affected by this action. The biological impacts

from altering the number of vessels participating in the fishery would

not be significant.

Socio-Economic Impacts

Most limited entry fixed gear fishers from central and southern

California qualified for their initial limited entry permits with

landings of groundfish species other than sablefish. Consequently the

proposed sablefish

[[Page 13586]]

endorsement qualifying requirements, which are based on significant

historic or recent economic dependence on sablefish, would result in

greater proportional reductions to the number of southern area vessels

qualified to participate in the regular fixed gear sablefish fishery.

However, as explained above, vessels landing sablefish from waters

south of 36 deg. N. lat. (southern California) would not be required to

hold sablefish endorsements, and the fishing in that area would be

managed differently from the northern area. Conversely, if the

historical landing requirements had included more recent years and had

eliminated early years, this would result in more endorsements being

issued in southern areas at the expense of vessels that have not

participated in several recent years.

The number of longline vessels participating in the limited entry

nontrawl regular sablefish fishery would decrease under the proposed

qualifying criteria. The percent of longline vessels participating in

the fishery from Puget Sound and the Washington coast would increase

from 34 to 46 percent, while the percent of participants from central

and southern California combined would decline from 28 percent to only

13 percent of the longline fleet. However vessels would be exempt from

the sablefish endorsement requirement, if they are fishing south of

36 deg. N. lat.

All pot permits would qualify for an endorsement under the proposed

qualifying requirements. A review of the distribution of the pot fleet

shows that 75 percent of the pot vessels were distributed in the Oregon

and northern California areas (Astoria to Crescent City), 9 percent

were located primarily in the central California area (Monterey to

Avila Beach), 6 percent along coastal Washington, with the remainder

not assigned to a geographic area because of lack of recent landings.

Most vessels are multifishery vessels. Based on 1995 landings and

revenue, vessels with permits that do not qualify for a sablefish

endorsement would need make up about $750,000 of lost sablefish revenue

in other fisheries. Because most vessels are underemployed, it is

unlikely that the vessels gaining additional sablefish fishing

opportunity from the displaced vessels would release similar amounts of

opportunity in other fisheries, which would then be available for the

vessels displaced from the limited entry nontrawl regular sablefish

fishery. Vessels with more reliance on sablefish will have a chance for

a safer, more stable fishery, and those with less reliance will lose

sablefish fishing opportunity.

Sablefish Endorsement Issuance

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

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

would use landings records from the Pacific States Marine Fisheries

Commission's Pacific Fisheries Information Network (PacFIN) to

determine which limited entry 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, NMFS Northwest Region, would

notify each limited entry fixed gear permit owner by letter whether

PacFIN records indicate that his permit qualifies for a sablefish

endorsement. Persons who do qualify for sablefish endorsements would be

issued revised limited entry permits with endorsements, upon payment of

a one-time fee to cover the administrative cost of PacFIN research and

limited entry permit processing. Initial calculations of the agency

cost of processing the sablefish endorsement system place the per-

participant processing fee at about $800.

Persons who are initially denied sablefish endorsements, but who

believe that their permit or interim permit qualifies for an

endorsement, may send supporting documentation, such as fish tickets,

to demonstrate how the qualifying criteria have been met. An

endorsement would be issued if the permit owner demonstrates that his

permit met the qualifying criteria. 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

The Pacific Groundfish limited entry program went into effect

January 1, 1994. Because this program was a radical change from the

previous fishery, which was entirely open access, the Council designed

a temporary alternative to the primary ``A'' permit endorsement, to

assist fishers with a historically low level of participation who did

not qualify for an ``A'' permit. These temporary permits were to be

phased out of the fishery over time.

``B'' endorsements were initially intended to allow owners of

vessels that may have participated in the fishery at a low level during

the window period, or at higher levels prior to the window period, to

continue in the fishery for an adjustment period before they would be

required to have a permit with an ``A'' endorsement. The ``B''

endorsements were developed so that there would be at least 7 years

between the announcement of the cutoff date to qualify for an ``A''

endorsement and the expiration of the endorsements. All ``B''

endorsements expired at the end of 1996. Seven years was reported as

the minimum tax depreciation period for fishing vessels, and the period

commonly chosen by vessel owners. Thus, the adjustment years ensured

that a large number of the vessel owners receiving ``B'' endorsements

had the opportunity to completely depreciate their vessels before

making their adjustments to other fisheries, or investing in permits

with ``A'' endorsements.

This proposed rule would eliminate the current regulations that

relate to ``B'' endorsements at 50 CFR 660.336. As of December 31,

1996, these regulations had no relevance.

Classification

At this time, NMFS has not determined that the FMP amendment that

this rule would implement is consistent with the national standards of

the Magnuson-Stevens Act and other applicable laws. NMFS, in making

that determination, will take into account the data, views, and

comments received during the comment period.

This proposed rule has been determined to be not significant for

the purposes of E.O. 12866.

Notwithstanding any other provision of law, no person is required

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

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

of the Paperwork Reduction Act (PRA) unless the collection-of-

information displays a currently valid Office of Management and Budget

(OMB) control number. This proposed rule contains a collection of

information burden 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 burden will be 2 hours to make an appeal. NMFS has

requested OMB approval for this collection of information. This is a

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

reporting and recordkeeping burden. Public comment is sought regarding:

Whether this proposed collection of information is necessary for the

proper performance of the functions of the agency, including whether

the information has practical utility; the accuracy of the burden

estimate; ways to enhance the quality, utility, and clarity of the

information to be collected; and ways to minimize the burden of the

collection of information,

[[Page 13587]]

including through the use of automated collection techniques or other

forms of information technology. Comments on the collection of

information burden or any other aspect of the information collection

may be sent to OMB, listed in the ADDRESSES section above.

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 proposed rule, if

adopted, would not have a significant economic impact on a substantial

number of small entities, as follows:

The proposed rule would limit participation in the limited entry

fixed gear ``primary'' or ``regular'' sablefish season north of

36 deg. N. latitude to those persons meeting the following

qualifications for a sablefish endorsement to their limited entry

permits: at least 16,000 pounds of sablefish catch in any one year

from 1984 to 1994.

Of the 237 vessel owners that currently hold fixed gear limited

entry permits, 62 (26 percent) will not receive sablefish

endorsements, which is a substantial number of small entities as a

portion of the limited entry, fixed gear sablefish fleet. However,

only 23 vessel owners (less than 10 percent) that derived more than

5 percent of their 1995 income from the sablefish fishery will not

receive sablefish endorsements; thus the number of small entities

that will incur a significant impact from these regulations is not

substantial. Sablefish endorsement recipients will be assessed a

one-time endorsement processing fee that has been initially

estimated at $800. Costs of production and compliance costs would

only increase for those permit holders who choose to purchase new

permits with attached sablefish endorsements--an unlikely course of

action for those persons with less than 5 percent of their gross

annual revenues resulting from the sablefish fishery. There are no

capital costs associated with this action, and no small businesses

will be forced to cease operations through this proposed action.

This amendment is intended to promote improved safety,

stability, and economic viability of the sablefish fishery by

limiting or reducing harvesting capacity in the Pacific Coast

sablefish fishery.

The socio-economic impacts are discussed above and contained in the

EA/RIR/IRFA.

List of Subjects in 50 CFR Part 660

Fisheries, Fishing, Reporting and recordkeeping requirements.

Dated: March 19, 1997.

Charles Karnella,

Acting Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons set out in the preamble, 50 CFR 660 is proposed to

be 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

and paragraphs (a)(2)(i) through (a)(2)(v) are redesignated as

(a)(2)(ii) through (a)(2)(vi) respectively and paragraph (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)(i) 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, paragraphs (a), the first sentence of (c)(1),

(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 to submit evidence that 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 to submit evidence to prove that

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:

[[Page 13588]]

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 with a longline or trap (or pot) endorsement and a

sablefish endorsement, and that the permit has been registered for use

with that vessel. 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, 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 for this endorsement.

(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 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) Within 30 days of the issuance of the letter by the FMD

indicating that PacFIN records do not show that the permit qualifies

for a sablefish endorsement, a permit owner may submit information to

the FMD to demonstrate that the permit qualifies for a sablefish

endorsement. 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 a 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 in writing if his permit

does not qualify for a sablefish endorsement.

(5) Within 30 days of the issuance of a letter under

Sec. 660.336(c)(4) that a permit(or interim permit) does not qualify

for a sablefish endorsement, an appeal may be filed with the Regional

Administrator. 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. 97-7363 Filed 3-20-97; 8:45 am]

BILLING CODE 3510-22-F