45350 Federal Register / Vol. 62, No. 166 / Wednesday, August 27, 1997 / Rules and Regulations

Display the symbol, logo, slogan and

information signs in the appropriate

locations. To reduce wind drag when

bolting signs on pilings, it was found

helpful in the Northeast to make signs

taller than wider. Symbol or logo size

may vary. However, if you reduce or

enlarge the symbol, maintain the same

proportions.

6. Section 85.47 is revised to read as

follows:

§ 85.47 Program crediting.

(a) Crediting logo. As the source of

funding for Clean Vessel Act facilities,

the Sport Fish Restoration program

should get credit through use of the

Sport Fish Restoration logo. Grant

recipients may us the crediting logo

identified in 50 CFR 80.26 to identify

projects funded by the Clean Vessel Act.

The Sport Fish Restoration logo follows:

BILLING CODE 4310–55–M

BILLING CODE 4310–55–C

(b) Recipient logo display. Grant

recipients are authorized to display the

Sport Fish Restoration logo. Section

85.11 identifies recipients eligible to

display the appropriate logo according

to 50 CFR 80.26. Display includes on

pumpout and portable toilet dump

stations that grantees acquire, develop,

operate or maintain by these grants, or

on printed material or other visual

representations relating to project

accomplishments or education/

information. Display the logo in the

appropriate location, according to

§ 85.43(e). Symbol or logo size may

vary. However, if your reduce or enlarge

the symbol, maintain the same

proportions. Recipients may require

sub-recipients to display the logo.

(c) Other display of logo. Other

persons or organizations may use the

logo for purposes related to the Federal

Aid Clean Vessel Act program as

authorized in 50 CFR 80.26.

(d) Crediting language. Suggested

examples of language to use when

crediting the Clean Vessel Act follow:

(1) Example 1. The Sport Fish Restoration

Program funded this pumpout facility

through your purchase of fishing equipment

and motorboat fuels.

(2) Example 2. The Sport Fish Restoration

Program funded this construction through

your purchase of fishing equipment and

motorboat fuels.

(3) Example 3. The Sport Fish Restoration

Program funded the production of this

pamphlet through your purchase of fishing

equipment and motorboat fuels.

(e) Logo colors. Option 1 in paragraph

(e)(1) of this section describes the

preferred logo colors. Use Options 2 or

3 in paragraph (e)(2) or (e)(3) of this

section when necessary or to reduce

costs. Do not attempt to match these

Pantone Matching Systems (PMS) colors

with combinations of screened process

colors.

(1) Option 1. When printed 100

percent on a white background, use

PMS 348.

(2) Option 2. When using four-color

process printing, print the symbol in

100 percent black on a white

background.

(3) Option 3. When it is not possible

to follow the specifications of Options 1

or 2 in paragraph (e)(1) or (e)(2) of this

section, print the logo in any 100

percent solid dark color on a contrasting

light background.

Dated: July 29, 1997.

Donald J. Barry,

Acting Assistant Secretary for Fish and

Wildlife and Parks.

[FR Doc. 97–22010 Filed 8–26–97; 8:45 am]

BILLING CODE 4310–55–M

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.

SUMMARY: NMFS issues this final rule to

implement management measures for

the 1997 limited entry, fixed gear
Federal Register / Vol. 62, No. 166 / Wednesday, August 27, 1997 / Rules and Regulations 45351

sablefish fishery north of 36° 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° 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° 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° 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 mopup) 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° 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
45352 Federal Register / Vol. 62, No. 166 / Wednesday, August 27, 1997 / Rules and Regulations

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° 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° 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 mopup 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° 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° 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° 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° 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 postseason 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° 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° N. lat. have been

eliminated. The daily trip limit fishery

will continue in the southern area

during the time of the regular and mopup seasons, and associated closures

north of 36° 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° 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
Federal Register / Vol. 62, No. 166 / Wednesday, August 27, 1997 / Rules and Regulations 45353

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 § 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
45354 Federal Register / Vol. 62, No. 166 / Wednesday, August 27, 1997 / Rules and Regulations

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 shortterm 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 preand 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
Federal Register / Vol. 62, No. 166 / Wednesday, August 27, 1997 / Rules and Regulations 45355

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 slowerpaced 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°

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 oneweek 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:
45356 Federal Register / Vol. 62, No. 166 / Wednesday, August 27, 1997 / Rules and Regulations

§ 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° N. lat.,

except for paragraphs (a)(2) (ii) and (iv)

of this section, which also apply to the

open access fishery north of 36° N. lat.

Limited entry and open access fixed

gear sablefish fishing south of 36° 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° 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° 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°

N. lat. Beginning January 1, 1998, all

fixed gear used to take and retain

groundfish must be out of EEZ waters

north of 36° 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° 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° 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 postseason 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 postseason closure. At the end of the postseason 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° N. lat. about 3 weeks after the end

of the regular season, or as soon as

practicable thereafter. During the mopup 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 mopup 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° 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
Federal Register / Vol. 62, No. 166 / Wednesday, August 27, 1997 / Rules and Regulations 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 mopup 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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 660

[Docket No. 961227373–6373–01; I.D.

082097C]

Fisheries Off West Coast States and in

the Western Pacific; Pacific Coast

Groundfish Fishery; End of the

Primary Season and Resumption of

Trip Limits for the Shore-based

Whiting Sector

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Fishing restrictions; request for

comments.

SUMMARY: NMFS announces the end of

the 1997 regular season for the shorebased fishery for Pacific whiting

(whiting), and resumption of a 10,000 lb

(4,534 kg) trip limit, at 12 noon local

time (l.t.), Friday, August 22, 1997,

because the allocation for the shorebased sector will be reached by that

time. This action is intended to keep the

harvest of whiting at levels announced

by NMFS on January 6, 1997, and May

20, 1997.

DATES: Effective from 12 noon l.t,

August 22, 1997, until the effective date

of the 1998 annual specifications and

management measures for the Pacific

Coast groundfish fishery, which will be

published in the Federal Register,

unless modified, superseded, or

rescinded. Comments will be accepted

through September 11, 1997.

ADDRESSES: Submit comments to

William Stelle, Jr., Administrator,

Northwest Region (Regional

Administrator), National Marine

Fisheries Service, 7600 Sand Point Way

NE., Seattle, WA 98115–0070; or

William Hogarth, Acting Regional

Administrator, Southwest Region,

National Marine Fisheries Service, 501

West Ocean Blvd., Suite 4200, Long

Beach, CA 90802–4213.

FOR FURTHER INFORMATION CONTACT:

William L. Robinson at 206–526–6140

or Rodney McInnis at 562–980–4040.

SUPPLEMENTARY INFORMATION: This

action is authorized by regulations

implementing the Pacific Coast

Groundfish Fishery Management Plan

(FMP), which governs the groundfish

fishery off Washington, Oregon, and

California. On January 6, 1997 (62 FR

700), regulations were published

announcing the annual management

measures for Pacific coast whiting. The

regulations at 50 CFR 660.23(a)(4) (62

FR 27519, May 20, 1997) established

separate allocations for the catcher/

processor, mothership, and shore-based

(also called ‘‘shoreside’’) sectors of the

whiting fishery. Each allocation is a

harvest guideline, which when reached,

results in the end of the primary season

for that sector. The catcher/processor

sector is composed of catcher/

processors, which are vessels that

harvest and process whiting. The

mothership sector is composed of

motherships and catcher vessels that

harvest whiting for delivery to

motherships. Motherships are vessels

that process, but do not harvest,

whiting. The shoreside sector is

composed of vessels that harvest

whiting for delivery to shore-based

processors. The allocations, which are

based on the 1997 commercial harvest

guideline for whiting of 207,000 mt, are:

70,400 mt (34 percent) for the catcher/

processor sector; 49,700 mt (24 percent)

for the mothership sector; and 86,900 mt

(42 percent) for the shoreside sector.

The best available information on

August 19, 1997, indicated that 80,792

mt of whiting had been taken by the

shore-based sector through August 16,

1997, and that the 86,900–mt shorebased allocation would be reached by 12

noon l.t., August 22, 1997. Accordingly,

the primary season for the shore-based

sector ends at 12 noon l.t., August 22,

1997, at which time no more than

10,000 lb (4,534 kg) of whiting may be

taken and retained, possessed or landed

by a catcher boat in the shore-based

sector per fishing trip. The regulations

at 50 CFR 600.323(a)(3)(i) describe the

primary season for the shore-based

sector as the period(s) when the largescale target fishery is conducted (when

routine trip limits accommodating small

fresh fish and bait fisheries and bycatch

in other fisheries under § 600.323(b) are

neither needed nor in effect). The

10,000 lb (4,534 kg) trip limit, which

also had been in effect before the

primary season, is intended to

accommodate small bait and fresh fish

markets, and bycatch in other fisheries.

NMFS Action

For the reasons stated above, and in

accordance with the regulations at 50

CFR 660.323(a)(4)(iii)(C) NMFS herein

announces:

Effective 12 noon l.t., August 22,

1997—No more than 10,000 lb (4,534

kg) of whiting may be taken and

retained, possessed, or landed by a

catcher vessel participating in the

shoreside sector per fishing trip.

Classification

This action is authorized by the

regulations implementing the FMP. The