[Federal Register Volume 62, Number 166 (Wednesday, August 27, 1997)]
[Rules and Regulations]
[Pages 45350-45357]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-22709]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 970520120-7198-02; I.D. 040297A]
RIN 0648-AJ19


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

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to implement management measures 
for the 1997 limited entry, fixed gear

[[Page 45351]]

sablefish fishery north of 36 deg. N. lat. This rule also implements 
long-term changes to the management measures for this fishery and for 
the limited entry, fixed gear sablefish fishery south of 36 deg. N. 
lat. In addition to these regulatory measures, NMFS also announces a 
1997 season start date of August 25 for the limited entry, fixed gear 
regular sablefish season north of 36 deg. N. lat., a season length of 9 
days, a season end date of September 3, and an equal cumulative landing 
limit of 34,100 lbs. These actions are intended to provide qualified 
fixed gear fishers the opportunity to harvest the 1997 fixed gear 
allocation and to reduce the risk to human life and safety inherent in 
the current ``derby'' fishery.

DATES: Effective August 21, 1997.

ADDRESSES: Copies of the Environmental Assessment (EA)/Regulatory 
Impact Review (RIR)/Initial Regulatory Flexibility Analysis (IRFA), and 
the Final Regulatory Flexibility Analysis (FRFA) for this action are 
available from Lawrence D. Six, Executive Director, Pacific Fishery 
Management Council, 2130 SW Fifth Avenue, Suite 224, Portland, OR 
97201.

FOR FURTHER INFORMATION CONTACT: William L. Robinson at 206-526-6140, 
Rodney McInnis at 562-980-4040, or the Pacific Fishery Management 
Council at 503-326-6352.

SUPPLEMENTARY INFORMATION: NMFS issues this final rule to implement a 
recommendation from the Pacific Fishery Management Council (Council), 
under the authority of the Pacific Coast Groundfish Fishery Management 
Plan (FMP) and the Magnuson-Stevens Fishery Conservation and Management 
Act (Magnuson-Stevens Act) to implement changes to the management 
measures for the limited entry, fixed gear sablefish fishery. The 
notice of proposed rulemaking for this action (62 FR 30305, June 3, 
1997) fully described the background and rationale for the Council's 
recommendations. NMFS requested public comments on this action through 
July 3, 1997. NMFS received three letters during the comment period, 
which are addressed later in the preamble to this final rule. 
Recommendations made at the June 1997 Council meeting and the comments 
received on the proposed rule resulted in the changes to the regulatory 
text of the proposed rule that are explained below.
    In summary, Council recommendations from the October 1996 and March 
1997 meetings strengthened the separation of sablefish fishing effort 
north and south of 36 deg. N. lat. New management schemes that will 
improve safety to fishery participants were recommended for each area.

Changes From the Proposed Rule

    NMFS either received Council recommendations on, or consulted with 
the Council on the changes to the proposed rule described in this 
section.
    In March 1997, the total 1996 harvest for the limited entry, fixed 
gear, daily trip limit fishery for sablefish was estimated at 374 mt 
(825,000 lb). When the Council made its management recommendations for 
the limited entry, fixed gear primary (regular plus mop-up) fishery, 
the Council expressed an expectation that the 1997 daily trip limit 
fishery might exceed the 1996 total harvest by as much as 11 mt (25,000 
lb). NMFS mistakenly wrote this expectation into the codified rule as a 
guideline for the total harvest for the daily trip limit fishery. As 
described below in Comment 1, after receiving updated information, the 
Council offered a correction to the proposed rule that the 385 mt 
(850,000 lb) was not intended as a harvest target. NMFS changed the 
regulatory text to eliminate the reference to the 385 mt (850,000 lb) 
after receiving the Council's comment.
    At the June Council meeting, public comment strongly supported and 
the Council recommended a season start date of August 25 for the 
limited entry, fixed gear equal cumulative limit (or regular) fishery. 
The regulatory language from the proposed rule has been altered from 
describing a framework for a season to setting a season to start on 
August 25 for the 1997 fishery. However, as NMFS stated at that 
meeting, administrative appeals to denials of sablefish endorsements 
will not be completed before mid-September. Thus, some permit holders 
may receive a sablefish endorsement too late to participate in the 
fishery that begins August 25. To reconcile this conflict, the regular 
season will still start on August 25 for endorsement holders; but, an 
auxiliary regular season will also occur for successful appellants 
whose appeals are resolved after August 25. The start date of the 
auxiliary regular season will be announced in the Federal Register, and 
is expected to occur in mid-September, preceding the mop-up portion of 
the fishery.
    This rule will be published very close to the start date of the 
regular season, primarily because the Council was unable to make final 
recommendations on this issue until its March 1997 meeting. Under this 
time constraint, NMFS decided to save time, reduce publication 
expenses, and limit public confusion by announcing the regular season 
start date, duration and amount of the cumulative limit with this rule. 
These announcements result in changes to the 1997 codified regulations 
only. NMFS expects that the public would prefer the convenience of 
having changes to management measures and the 1997 season structure in 
one document, rather than in two separate documents published within 
days of each other.
    In March 1997, the Council recommended a season structure for the 
1997 limited entry, fixed gear regular sablefish fishery of a no more 
than 10-day fishery, with equal cumulative limits for all permit 
holders with sablefish endorsements. After consulting with the 
Council's Groundfish Management Team (GMT) at and subsequent to the 
June 1997 Council meeting to set the exact number of days in the 
fishery and the equal cumulative limit, NMFS has decided on a nine-day 
season starting at noon August 25, and ending at noon, September 3, 
1997, with an equal cumulative limit of 34,100 lbs.
    A final change from the proposed rule, as explained below in the 
response to Comment 2, is to allow each permit only one cumulative 
limit in the regular fishery and one in the mop-up fishery. By linking 
the cumulative limits to the permit as well as the vessel, multiple 
vessels will not be able to use the same permit during the cumulative 
limit periods to land multiple cumulative limits on that single permit. 
This problem will be dealt with in the long term through a rule that 
has been recommended by the Council, which has not been issued, that 
limits the timing and frequency of permit transfers.

Management Measures for 1997 Only

    For 1997 only, the limited entry, fixed gear sablefish fishery 
north of 36 deg. N. lat. will consist of a 9-day regular season with a 
single cumulative limit, equal for all vessels. A cumulative trip limit 
is the maximum amount of sablefish that may be taken and retained, 
possessed or landed per vessel in a specified period of time, with no 
limit on the number of landings or trips. In addition, only one regular 
season and one mop-up season cumulative limit may be landed on a 
permit, so that no one permit may be used by multiple vessels to the 
land multiple cumulative limits. The cumulative limit of 34,100 lbs and 
the 9-day duration of the fishery are based on the number of permits 
qualifying for the sablefish endorsement and on the harvest taken in 
the daily trip limit fishery.
    The 1997 limited entry, regular fixed gear season will begin at 
noon on

[[Page 45352]]

Monday, August 25, 1997. Only holders of limited entry permits with 
sablefish endorsements may participate in the fishery. If a limited 
entry, fixed gear permit holder's application for a sablefish 
endorsement is on appeal at the time of the season start date, that 
permit holder may not participate in the regular season. NMFS expects 
that the endorsement appeal process will be complete by mid-September. 
Following the completion of the endorsement appeal process, there will 
be an auxiliary regular season, which will give successful appellants 
the opportunity to fish towards the same cumulative limit and for the 
same number of days as those persons participating in the regular 
fishery. NMFS will announce the start date of the auxiliary regular 
season in the Federal Register before the start of that season.
    According to the Council's recommendation, as described in the 
March 1997 EA/RIR for this issue, the duration of the equal cumulative 
limit fishery was to be set as close to 10 days as possible, and with a 
harvest ``overhead'' of at least 25 percent using the best estimate of 
projected harvest, and with an overhead of at least 15 percent using a 
reasonable ``worst case'' scenario. ``Overhead'' is defined as the 
difference between the expected harvest level and the total harvest 
that would occur if each permitted vessel took its cumulative limit 
(maximum potential harvest). The total allowable harvest for the 
regular and auxiliary regular fishery will be the amount of the limited 
entry, fixed gear sablefish allocation in excess of the amount that is 
expected to be taken by the daily trip limit fishery. The Council is 
managing the daily trip limit fishery north of 36 deg. N. lat. so that 
its 1997 harvest does not substantially exceed its 1996 harvest of 415 
mt (915,000 lbs).
    Estimates of the likely total harvest in the regular and auxiliary 
regular fishery have been made conservatively in order to ensure that 
the fishery does not exceed its total allocation. Because of the 
provision of overhead and the conservative management described above, 
the regular and auxiliary regular fishery is not expected to harvest 
all of the limited entry, fixed gear allocation for north of 36 deg. N. 
lat. in excess of that required for the daily trip limit fishery. 
Following an estimation of the catch from the regular and auxiliary 
regular fishery, there will be a mop-up fishery to harvest this excess. 
The recommendation on the size of the mop-up cumulative limit will be 
made by the Council's Groundfish Management Team, after calculation of 
the actual landed catch from the initial and auxiliary cumulative limit 
fishery and the daily trip limit fishery. NMFS will announce the start 
date, duration, and cumulative limit amount for the mop-up portion of 
the fishery in the Federal Register before the start of the mop-up 
season.
    In 1997, there will be a 48-hour closure before the regular fishery 
north of 36 deg. N. lat., during which time no fixed gear vessel 
(limited entry and open access) may deploy gear used to take and retain 
groundfish, or take and retain sablefish north of 36 deg. N. lat. The 
1997 pre-season closure will begin at noon on August 23 and end at noon 
on August 25, at the start of the fishery. All fixed gear used to take 
groundfish must be out of the water during this period. For auxiliary 
regular fishery participants, there will also be a 48-hour closure 
before the start of that fishery, during which time the same rules that 
govern the pre-season closure for the regular fishery apply just to 
auxiliary regular fishery participants.
    There will be no opportunities for either pot or longline fishers 
to set their gear before the 1997 regular or auxiliary regular season 
start times.

Management Measures for 1997 and Beyond

    This rule introduces a framework that allows the start date of the 
regular, north of 36 deg. N. lat., limited entry, fixed gear sablefish 
season to be set for any day from August 1 through September 30. The 
Administrator, Northwest Region, NMFS, will establish the season start 
date after consulting with the Council, taking into account tidal 
conditions, Council meeting dates, alternative fishing opportunities, 
and industry comments.
    To facilitate enforcement at the end of the regular season, there 
will be a 48-hour post-season closure north of 36 deg. N. lat., during 
which time no sablefish taken with fixed gear (limited entry or open 
access) may be taken and retained for the 48 hours immediately after 
the end of the regular season. However, sablefish taken and retained 
during the regular season may be possessed and landed during that 48-
hour period. In 1997, this 48-hour post-season closure will begin at 
noon on September 3 and end at noon on September 5. Gear may remain in 
the water during the 48-hour post-season closure; however, gear used to 
take and retain groundfish may not be set or retrieved during this 
period. In 1997, there will also be a 48-hour post-season closure after 
the auxiliary regular season, for auxiliary fishery participants, 
during which time auxiliary fishery participants must comply with the 
rules set for all fixed gear fishers for the post-season closure at the 
end of the regular season.
    Outside of the regular season (the initial cumulative limit 
fishery), the mop-up fishery, and the associated 48-hour closures, 
there is generally a daily trip limit fishery for all vessels with 
limited entry permits for pot or longline gear. Vessels with limited 
entry permits for pot or longline gear, but without sablefish 
endorsements, may not participate in the regular season or the mop-up 
season; they may only harvest sablefish when the daily trip limit 
fishery is open for limited entry vessels. The daily trip limit fishery 
will be open during the time between the end of the 48-hour closure 
following the cumulative limit period and the beginning of the mop-up 
fishery.
    Commencing at 12 noon local time (l.t.), September 5, 1997, the 
daily trip limits for nontrawl sablefish will resume at 300 lb (136 kg) 
per day north of 36 deg. N. lat. (Daily trip limits apply to calendar 
days. Therefore, on September 5, 1997, a daily trip limit may be landed 
between 12 noon and 12 midnight l.t. Beginning at 0001 hours 1.t. on 
September 6, 1997, daily trip limits will apply to the full 24 hours.) 
A vessel participating in the regular fishery must begin landing its 
catch before 12 noon l.t., September 5, 1997, and complete the 
offloading before returning to sea or continuing a trip at sea, or the 
daily trip limit will apply to the fish remaining on board after 12 
noon l.t. on September 5, 1997. The regular season trip limit for 
sablefish smaller than 22 inches (56 cm) still applies.
    The regular and mop-up seasons in the area south of 36 deg. N. lat. 
have been eliminated. The daily trip limit fishery will continue in the 
southern area during the time of the regular and mop-up seasons, and 
associated closures north of 36 deg. N. lat. Southern area fishers will 
be managed with the intent of providing a year-round trip limit 
fishery, and those without sablefish endorsements may not move north to 
take part in the primary northern season. There is a separate 
Acceptable Biological Catch (ABC) for the waters south of 36 deg. N. 
lat.
    Southern area fixed gear sablefish fishing will henceforth be 
managed under routine management measures imposed under 50 CFR 
660.323(b). ``Routine'' management measures for sablefish include all 
changes to trip and landing frequency limits for all gears. Reasons for 
routine management measures include: To extend the fishing season; to 
minimize disruption of traditional fishing and marketing patterns; to 
reduce discards; to discourage target fishing while allowing

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small incidental catches to be landed; to allow small fisheries to 
operate outside the normal season; and, for the open access fishery 
only, to maintain landings at the historical proportions during the 
1984-88 window period. This rule does not amend Sec. 660.323(b) but 
appropriately references it. Trip limits for sablefish in this area 
will be established in the annual specifications, and may be adjusted 
during the fishing year.

Comments and Responses

    The comments in 3 letters received during the public comment period 
ending July 3, 1997, are summarized below. Comment 1 is a comment from 
the Council itself, whose staff sent a letter with a correction to the 
proposed rule. Comments 2 through 9 are comments sent by an individual 
in opposition to the 1997 management regime. This letter included an 
attachment of 13 letters of comment opposing equal allocation, sent 
from industry participants to the Council during its consideration of 
this issue, plus an additional letter comment sent by this same 
individual to NMFS prior to the publication of the proposed rule, with 
a report on fishery safety by a university economist. Comments 10 
through 14 are comments from a letter of support sent by two 
associations representing West Coast fishing vessel owners and fishers. 
This letter raised specific issues concerning the Magnuson-Stevens Act 
National Standards for fisheries management, as they apply to this 
fishery.

Comment of Correction

    Comment 1: The draft regulations for the 1997 season contain a 
reference to a target harvest of 385 mt (850,000 lbs) for the daily 
trip limit portion of the limited entry, fixed gear sablefish fishery. 
It was not intended that this target value be included as part of the 
codified regulations. Furthermore, more recent information indicated 
that the daily trip limit fishery took a higher amount in 1996 (415 mt 
(915,000 lb)), and more would be needed for 1997. The Council also 
recognizes that further adjustments to the duration of the fishery and 
the size of the cumulative limit may need to be made based on the 
number of vessels that ultimately qualify for sablefish endorsements.
    Response: The codified text from the proposed rule has been altered 
to eliminate the reference. During its March 1997 meeting, the Council 
recommended setting a target harvest for the primary fishery that would 
leave about 385 mt (850,000 lb) for the daily trip limit fishery. The 
goal of this recommendation was to allow some expansion in the daily 
trip limit fishery over what it had harvested in 1996. The Council 
expected that the total 1997 catch in the daily trip limit fishery 
would expand slightly over the total 1996 catch. At that time, it was 
estimated that the daily trip limit fishery had taken approximately 374 
mt (825,000 lbs) in 1996, and might take as much as 385 mt (850,000 
lbs) in 1997. By the June 1997 Council meeting, calculations of the 
total 1996 sablefish harvest in the limited entry, daily trip limit 
fishery were finalized at a total of 415 mt (915,000 lbs). If a cap of 
385 mt (850,000 lbs) for the daily trip limit fishery were to remain in 
the codified text, the daily trip limit fishery would be constrained 
contrary to the logic of the Council's original recommendations.

Comments Opposing Rule

    Comment 2: There are no restrictions on permit transfers. Permit 
holders who are able to take either the cumulative limit before the end 
of the cumulative limit period, or the mop-up limit before the end of 
the mop-up period would be allowed to transfer their permits, which may 
permit multiple boats to catch the limits during the times set for both 
the cumulative limit and mop-up periods of the fishery.
    Response: NMFS agrees. Therefore, the proposed rule has been 
modified so that the cumulative limit is a period limit for the permit 
as well as for the vessel. By linking the cumulative limits to both the 
vessel and the permit, multiple vessels will not be able to make 
multiple cumulative limit landings on the same permit during the 
cumulative limit periods. This change is consistent with the intent of 
the Council's recommendations for management of the 1997 limited entry, 
fixed gear sablefish regular fishery. This problem will be dealt with 
in the long term through a rule that has been recommended by the 
Council, but not yet implemented, that would limit the timing and 
frequency of permit transfers for all gear types.
    Comment 3: For vessels unable to catch the cumulative limit within 
the cumulative limit period, the fishery will still be an unsafe derby. 
A report by a university economist argues that because the 1997 fishery 
will increase the amount of time that lower-level harvesters will be in 
a derby-like setting, the 1997 season is less safe than a derby.
    Response: The Council debated at its October 1996 and March 1997 
meetings whether the equal cumulative limit fishery would still be 
unsafe for vessels unable to catch the cumulative limit within the time 
allotted for the fishery. Fishers who knew that they would not be able 
to catch the cumulative limit within the allotted time testified at the 
Council meeting that any increase in the number of days in the fishery 
would allow them to slow the pace of their fishing and improve their 
ability to operate in a more safe manner. The U.S. Coast Guard also 
testified on the safety hazards of derby fisheries and stated that the 
longer the season, the safer the fishery. For vessels that are able to 
catch the cumulative limit within the cumulative limit period, the 
safety of the fishery will increase.
    Comment 4: The equal cumulative limit system disregards historic 
fishery participation levels and redistributes fish and income away 
from high producers to low procedures and away from the pot sector to 
the longline sector.
    Response: As discussed in the preamble to the proposed rule, the 
Council determined that the safety benefits that could be gained from 
replacing the derby fishery with a slower-paced equal cumulative limit 
fishery would outweigh the one-time negative impact that such a regime 
would have on the highest producers in the fleet. The Council has 
considered historic participation as demonstrated in the documents 
produced for this action, Amendment 9, and the 1998 3-tier proposal. 
Nonetheless, the Council chose to recommend the equal cumulative limit 
for 1997 as the best short-term solution. At the June 1997 council 
meeting, the Council recommended that NMFS implement a three-tiered 
cumulative limit regime for managing the fishery in 1998 and beyond, 
which should provide fishers with fishing opportunities more closely 
aligned to past catch distribution.
    Comment 5: Information at the March 1997 Council meeting indicated 
that the 1996 daily trip limit fishery took 385 mt (850,000 lb). 
Information on the 1997 daily trip limit fishery indicates that the 
fishery has exceeded the 1996 catch. If the daily trip limit fishery 
catch is higher than what was expected at the March 1997 Council 
meeting, NMFS will be unable to implement a catch limit for the 
cumulative limit fishery that will maintain the required overhead.
    Response: As mentioned above, ``overhead'' is the amount by which 
the harvest would exceed the expected catch if every eligible vessel 
participates in the fishery and fully harvests its legal limit. The 
concept of overhead is based on the premise that not all participants 
in this fishery will harvest the cumulative limit. A fishery where all 
participants have the opportunity to

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catch a cumulative limit and they are all able to catch that limit 
would be considered an individual fishing quota (IFQ). The Sustainable 
Fisheries Act of 1996 put a moratorium on the implementation of new IFQ 
programs until October 1, 2000.
    Management measures for the limited entry, fixed gear sablefish 
fishery have been carefully crafted to not violate the IFQ prohibition. 
The Council has constrained the monthly limits in the daily trip limit 
fishery to ensure that the total 1997 catch does not greatly exceed the 
total 1996 daily trip limit fishery catch. With these constraints in 
place, NMFS has structured the fishery to meet the Council's parameters 
by adjusting the season length and trip limit level.
    Comment 6: If NMFS reserves a portion of the catch available to the 
cumulative limit fishery for successful appellants to the sablefish 
endorsement application process to take during the time of the mop-up 
fishery, there would be a redistribution of catch amounts between the 
regular and mop-up portions of the fishery, which is not allowed under 
the current regulations.
    Response: The auxiliary regular fishery is part of the regular 
fishery; it is not part of the mop-up fishery. The mop-up season will 
be held after the auxiliary regular season. A reasonable estimate of 
the amount needed for both regular seasons under the less conservative 
scenario described in the EA/RIR for this issue has been made. This 
estimate determined the duration and cumulative limit for the regular 
seasons. The amount available to the mop-up portion of the fishery 
will, as in the past, depend on the accuracy of the catch projections 
and on the amount of harvest needed to accommodate the daily trip limit 
fishery for the remainder of the year. As in years past, the NMFS 
Regional Administrator may determine that too little of the fixed gear 
allocation remains to conduct an orderly or manageable fishery, in 
which case there would be no mop-up season. This division of catch and 
establishment of an auxiliary season is not being implemented through 
pre-existing regulations, but through this final regulation.
    Comment 7: The mop-up season has a fairly small cumulative limit 
for each participant and it is likely that every participant in the 
mop-up fishery will be able to take that cumulative limit during the 
mop-up cumulative limit during the mop-up period, there will be no 
overhead and the fishery will be an IQ.
    Response: The mop-up fishery does not exist independently of the 
regular fishery and, in fact, may not even occur if all of the 
sablefish available to the regular season is taken during the regular 
season. Conservative management of the regular fishery to prevent the 
total regular fishery catch from exceeding the amount available to that 
fishery creates the probability that not all of the sablefish available 
to the regular fishery will be taken during the regular fishery. The 
regulations finalized by this rule allow for the possibility of a mop-
up in the event that not all of the sablefish available to the regular 
fishery is taken during the regular fishery. NMFS expects that overhead 
within the entire primary fishery, which is the regular fishery in 
combination with the mop-up fishery, will be within the Council's 
parameters of 15-25 percent. The structure of the mop-up fishery is 
similar to the mop-up fishery under past derbies and under the proposed 
three-tier system for 1998 and beyond.
    Comment 8: Before actions taken at the June 1997 Council meeting, 
the overhead suggested for the cumulative limit fishery was 15 percent 
to 25 percent of the total estimated catch. Reserving a portion of the 
catch for successful endorsement application appellants, allowing 
transfers of permits during the fisheries, the higher than expected 
daily trip limit fishery catch, and altering the division of catch 
between the regular and mop-up portions of the fishery will absorb the 
available overhead and allow each participant to catch his or her 
cumulative limit, which would be an individual quota fishery.
    Response: NMFS disagrees. As noted in the response to Comment 5 
above, the cumulative limit and the overhead are calculated based on 
the total amount of sablefish available to the fishery and the 
projected harvest in the fishery. In addition, NMFS has eliminated the 
potential problem that could result from permit transfers (see Comment 
2). Altering the amount of fish available to the fishery, or the 
projected total harvest does not necessarily eliminate the overhead, it 
simply requires a recalculation of the cumulative limit and cumulative 
limit period duration.
    Comment 9: The Council recommended equal allocation for 1997 
because NMFS did not have time to implement a 3-tiered cumulative limit 
system in time for the 1997 season.
    Response: The 1997 management regime of equal cumulative limit 
fishery was recommended by the Council at its October 1996 meeting and 
refined during its March 1997 meeting. During the discussions of this 
issue at the October 1996 meeting, some industry members commented that 
they would like to have the fishery managed as a tiered cumulative 
limit regime. The Council agreed to set up an industry advisory 
committee to discuss such an option for 1998.
    The tiered management option had not been discussed or analyzed 
prior to October 1996. The Council adopted the current management 
regime for 1997 because it was the best available short-term 
alternative to the derby. The Council did not adopt a tiered cumulative 
limit option for 1997, because Council members and staff wished to have 
sufficient time to consult with the public, design parameters for such 
an option, and analyze the potential impacts of a tiered cumulative 
limit program through at least two Council meetings, as required by the 
FMP. NMFS implementation of a tiered cumulative limit program would 
also require considerable time to initiate and complete the rulemaking 
process, and to sort and analyze fisheries landings data so that 
endorsed permit holders could be assigned to the correct tiers.
    There was not enough time between November 1996 and July 1997 for 
the two-meeting process, full Council pre- and post-decisional 
analyses, the federal rule publication process, and tier implementation 
by NMFS.

Comments Supporting Rule

    Comment 10: Under the proposed rule, there would be a greater 
opportunity to harvest more selectively for the higher valued 
sablefish, resulting in fewer discards of lower value bycatch. The 
proposed rule would slow the pace of the affected fisheries, and thus 
reduce the abandonment of gear and the consequent mortality due to 
``ghostfishing.'' Notably, a slower fishery than that described in the 
proposed rule might result in an increased number of discards.
    Response: Bycatch can occur for many reasons. In a derby fishery, 
where all fishers are participating at their highest possible rates of 
fishing, fishers may not have the time to fish in a selective manner. 
Fish would be hauled on board as quickly as possible without regard to 
species or size, and then a portion would be discarded according to 
market or regulatory constraints on what catch should and may be 
retained. Conversely, in a fishery where all participants have ample 
time to sort through their catch and fish until their vessels are 
filled with the highest-value fish, many lower-value fish may be 
discarded in the process. It is difficult to determine the optimal 
point between these two scenarios for minimizing fishery discards. The 
1997 management

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regime certainly allows fishers to slow their rates of fishing over the 
rates of previous years and improve the selectively of their fishing 
methods. Selectivity in fishing, however, is a matter of personal 
ethics and fishing skill. NMFS does agree that a slower-paced fishery 
should have the much desired result of reducing gear abandonment and 
ghostfishing by lost gear.
    Comment 11: By assuring a slower pace of harvesting in the affected 
fisheries, the adoption of the proposed rule would result in improved 
safety of life at sea. The proposed limited entry measures would allow 
fishermen to time their harvesting activities so as to avoid dangerous 
weather conditions. In addition, fishermen would be better able to 
avoid fatigue and the attendant risk of accidental injury and death.
    Response: NMFS agrees. If there had been a derby in 1997, it would 
have been 3-4 days in duration. The management regime implemented by 
this rule significantly improves safety in the fishery over a 3-4 day 
derby.
    Comment 12: The adoption of the proposed rule would ensure a 
balance of the interests of all affected communities. While some 
redistribution of landings would likely occur, sustained participation 
would be assured for all communities, consistent with conservation 
requirements of the Act. Any adverse effects would be minimized, to the 
extent practicable, for all affected communities, by providing fair and 
reasonable access to the fisheries for all participants.
    Response: NMFS agrees. Access by all affected communities is still 
maintained with this action. However, NMFS recognizes that, for 1997, 
resources within the fishery will be reallocated between participants 
in a manner inconsistent with historic participation levels.
    Comment 13: The proposed rule is designed to ensure that 
overfishing is prevented and that the optimum yield is achieved on a 
continuing basis. The system of landing limits and time and area 
closures, including the device of a mop-up fishery, allows close 
control of the fishery to achieve optimum yield.
    Response: NMFS agrees.
    Comment 14: Several times the Federal court has held that the 
Magnuson-Stevens Act provides the authority for the Secretary to 
sacrifice the interests of some groups of fishermen, for the benefit, 
as the Secretary sees it, of the fishery as a whole.
    Response: NMFS agrees and has determined that the 1997 measures are 
reasonable for the overall fishery this year. NMFS does, however, 
support a 1998 management regime for this fishery that both achieves 
both increased safety over prior year derbies and takes into account 
historic fishing levels.

Classification

    Under 5 U.S.C. 553(d)(3), the Assistant Administrator finds good 
cause to waive the 30-day delay in effectiveness for this rule. August 
25 was chosen as a season opening date in order to promote safety and 
to allow fishermen to participant in order fisheries aside from this 
directed sablefish fishery. In order for the limited entry fixed gear 
sablefish fishery to fully benefit from the increased vessel safety 
produced by a longer season and not have the fishery delayed until 
later in the year when safety could be compromised by worsening weather 
conditions, this rule must be made effective to allow a regular season 
for endorsed permit holders to begin August 25. To this extent, to 
delay the effectiveness of this rule would be contrary to the public 
interest.
    This final rule has been determined to be not significant for the 
purposes of E.O. 12866.
    The Final Regulatory Flexibility Analysis consists of the IRFA (as 
submitted by the Council and supplemented by the preamble to the 
proposed rule (62 FR 30305, June 4, 1997)), and a NMFS addendum 
prepared for this final rule. All of the 164 vessels that are expected 
to qualify for sablefish endorsements north of 36 deg. N. lat. and 
participate in the 1997 limited entry, fixed gear sablefish fishery are 
small entities. Approximately 38 operators (23 percent of expected 
endorsed participants) are expected to suffer a loss of greater than 5 
percent of their total gross fishing revenues, a ``substantial'' number 
for the purposes of the RFA. There will likely be a 29 percent 
redistribution of the harvest from traditionally high producers to 
traditionally low producers, a redistribution of ex-vessel revenue of 
about $2.5 to $3.0 million. Individuals in the top third of the fleet 
in terms of production levels will experience reductions in sablefish 
incomes, which will be funneled into distributed gains for the lower 
producing two-thirds of the fleet. Thus, when looking at the fleet as a 
whole, the impact on high producers would be mitigated by the benefit 
to the low producers, which are also small businesses. The Council 
initially reviewed five options for management in this fishery: N1--the 
status quo; N2--a three week cumulative limit with a mop-up fishery; 
N3--a three week cumulative limit with different limits for longline 
and pot vessel; N4--trip size/frequency limits using three one-week 
periods, with no mop-up fishery; and N5--three months of monthly trip 
limits. The initial option chosen, N2, was determined by NMFS to 
constitute an IFQ system, which is prohibited by the Magnuson-Stevens 
Act until October 1, 2000. Without substantial changes, options N3-N5 
would constitute IFQ's as well. To avoid the derby fishery the Council 
chose to modify option N2, because it was the most feasible to be 
implemented before the 1997 fishery. The option had already been 
approved by the Council and was acceptable to the majority of 
participants in the fishery. As modified the option would provide 
sufficient ``overhead'' in uncaught fish so that it would not be 
considered an IFQ. (See responses to comments 5 and 9 for a discussion 
of overhead). There was insufficient time to modify previously rejected 
options due to the considerable time required to initiate and execute a 
more complex program and follow all requirements of the FMP. The 
management alternative that would have had the least significant 
economic impact to the fleet would have been the status quo derby, N1. 
However, the Council decided to reduce the danger that the derby poses 
to human life and safety and chose an available management alternative 
that could be implemented in time for an August-September 1997 fishery.

List of Subjects in 50 CFR Part 660

    Administrative practice and procedure, American Samoa, Fisheries, 
Fishing, Guam, Hawaiian Natives, Indians, Northern Mariana Islands, 
Reporting and recordkeeping requirements.

    Dated: August 21, 1997.
David L. Evans,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

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

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

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

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

Subpart G--West Coast Groundfish Fisheries

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

[[Page 45356]]

Sec. 660.323  Catch restrictions.

    (a) * * *
    (2) Nontrawl sablefish. This paragraph (a)(2) applies to the 
regular and mop-up seasons for the nontrawl limited entry sablefish 
fishery north of 36 deg. N. lat., except for paragraphs (a)(2) (ii) and 
(iv) of this section, which also apply to the open access fishery north 
of 36 deg. N. lat. Limited entry and open access fixed gear sablefish 
fishing south of 36 deg. N. lat. is governed by routine management 
measures imposed under paragraph (b) of this section.
    (i) Sablefish endorsement. In order to lawfully participate in the 
regular, auxiliary regular, or mop-up season for the nontrawl limited 
entry fishery, the owner of a vessel must hold (by ownership or 
otherwise) a limited entry permit for that vessel, affixed with both a 
gear endorsement for longline or trap (or pot) gear, and a sablefish 
endorsement.
    (ii) Pre-season closure--open access and limited entry fisheries. 
(A) From 1200 local time (l.t.), August 23, 1997, until 1200 l.t., 
August 25, 1997, sablefish taken with fixed gear in the limited entry 
or open access fishery in the EEZ north of 36 deg. N. lat. may not be 
retained or landed. Beginning January 1, 1998, sablefish taken with 
fixed gear in the limited entry or open access fishery in the EEZ north 
of 36 deg. N. lat. may not be retained or landed during the 72 hours 
immediately before the start of the regular season for the nontrawl 
limited entry sablefish fishery.
    (B) From 1200 l.t., August 23, 1997, until 1200 l.t., August 25, 
1997, all fixed gear used to take and retain groundfish must be out of 
EEZ waters north of 36 deg. N. lat. Beginning January 1, 1998, all 
fixed gear used to take and retain groundfish must be out of EEZ waters 
north of 36 deg. N. lat. during the 72 hours immediately before the 
opening of the regular season for the nontrawl limited entry sablefish 
fishery, except that pot gear used to take and retain groundfish may be 
deployed and baited in the EEZ up to 24 hours immediately before the 
start of the regular season.
    (C) From August 21, 1997 through December 31, 1997, during the 48 
hours immediately before the opening of the auxiliary regular season 
for the nontrawl limited entry sablefish fishery, participants in the 
auxiliary regular season may not retain or land sablefish, and must 
have all fixed gear used to take and certain groundfish out of EEZ 
waters.
    (iii) Regular season--nontrawl limited entry sablefish fishery; 
starting in 1998. The NMFS Regional Administrator will announce a 
season for waters north of 36 deg. N. lat. to start on any day from 
August 1 through September 30, based on consultations with the Council, 
taking into account tidal conditions, Council meeting dates, 
alternative fishing opportunities, and industry comments. During the 
regular season, the limited entry nontrawl sablefish fishery may be 
subject to trip limits to protect juvenile sablefish. The regular 
season will end when 70 percent of the limited entry nontrawl 
allocation has been or is projected to be taken. The end of the regular 
season may be announced in the Federal Register either before or during 
the regular season.
    (iv) Post-season closure--limited entry and open access. (A) No 
sablefish taken with fixed gear north of 36 deg. N. lat. may be taken 
and retained from 1200 l.t., September 3, 1997, until 1200 l.t., 
September 5, 1997. Sablefish taken and retained during the regular 
season may be possessed and landed during this 48-hour period. Gear may 
remain in water during this 48-hour post-season closure. Fishers may 
not set or pull from the water fixed gear used to take and retain 
groundfish during the 48-hour post-season closure. At 1200 l.t. on 
September 5, 1997, the daily trip limit regime will resume.
    (B) From August 21, 1997, through December 31, 1997, for 
participants in the auxiliary regular season, no sablefish may be taken 
with fixed gear and retained during the 48 hours immediately after the 
end of the auxiliary regular season of the nontrawl limited entry 
sablefish fishery. Sablefish taken and retained during the auxiliary 
regular season may be possessed and landed during that 48-hour period. 
Gear may remain in water during the 48-hour post-season closure. 
Auxiliary regular season participants may not set or pull from the 
water fixed gear used to take and retain groundfish during the 48-hour 
post-season closure. At the end of the post season closure, the daily 
trip limit regime will resume.
    (C) Beginning January 1, 1998, no sablefish taken with fixed gear 
may be taken and retained during the 48 hours immediately after the end 
of the regular season for the nontrawl limited entry sablefish fishery. 
Sablefish taken and retained during the regular season may be possessed 
and landed during that 48-hour period. Gear may remain in water during 
the 48-hour post-season closure. Fishers may not set or pull from the 
water fixed gear used to take and retain groundfish during the 48-hour 
post-season closure. At the end of the post-season closure, the daily 
trip limit regime will resume.
    (v) Mop-up season--limited entry fishery. (A) A mop-up season to 
take the remainder of the limited entry nontrawl allocation will begin 
in waters north of 36 deg. N. lat. about 3 weeks after the end of the 
regular season, or as soon as practicable thereafter. During the mop-up 
fishery, a cumulative trip limit will be imposed. A cumulative trip 
limit is the maximum amount of sablefish that may be taken and 
retained, possessed, or landed per vessel in a specified period of 
time, with no limit on the number of landings or trips. No vessel may 
land more than one cumulative limit. The length of the mop-up season 
and the amount of the cumulative trip limit, including the time period 
to which it applies, will be determined by the Regional Administrator 
in consultation with the Council or its designees, and will be based 
primarily on the amount of fish remaining in the allocation, the amount 
of sablefish needed for the remainder of the daily trip limit fishery, 
and the number of mop-up participants anticipated. The Regional 
Administrator may determine that too little of the nontrawl allocation 
remains to conduct an orderly or manageable fishery, in which case 
there will not be a mop-up season. There will be no daily trip limit 
fishery during the mop-up season. At the end of the mop-up season, the 
daily trip limit fishery will resume.
    (B) From August 21, 1997 through December 31, 1997: No more than 
one mop-up cumulative limit may be landed on each limited entry permit 
with a sablefish endorsement.
    (vi) Other announcements; starting in 1998. The dates and times 
that the regular season starts and ends (and trip limits on sablefish 
of all sizes are resumed), the dates and times for the 48-hour post-
season closure, the dates and times that the mop-up season begins and 
ends, and the size of the trip limit for the mop-up fishery will be 
announced in the Federal Register and may be modified. Unless otherwise 
announced, these seasons will begin and end at 12 noon on the specified 
date.
    (vii) Regular season and auxiliary regular season; from August 21, 
1997 through December 31, 1997--limited entry fishery. (A) The regular 
season for the nontrawl limited entry sablefish fishery north of 
36 deg. N. lat. will start at 1200 noon, l.t. on August 25, 1997, and 
end at 1200 noon l.t. on September 3, 1997. During this period, each 
vessel with a sablefish endorsement on its permit will have a 
cumulative trip limit of 34,100 lb. A cumulative trip limit is the 
maximum amount of sablefish that may be taken and retained, possessed, 
or landed per vessel in a specified period of time, with no limit on 
the number of landings or trips. No more

[[Page 45357]]

than one regular season cumulative limit may be landed on each limited 
entry permit with a sablefish endorsement. No vessel may land more than 
one cumulative limit. Each vessel is subject to the following per-trip 
limit for small sablefish: Sablefish smaller than 56 cm (22 in) total 
length may comprise no more than 1,500 lb (680 kg) or 3 percent of all 
legal sablefish 56 cm (22 in) (total length) or larger, whichever is 
greater. There will be no daily trip limit fishery during the regular 
season.
    (B) Permit holders whose applications for sablefish endorsements 
are under administrative appeal at the time the regular season begins 
will not be allowed to participate in the regular season. There will be 
a 9-day auxiliary regular season for permit holders whose sablefish 
endorsements are granted after August 25. The season will be held 
following the end of the appeal process. The auxiliary regular season 
start date will be announced by the NMFS Regional Administrator and 
published in the Federal Register. Each vessel participating in this 
season will have a cumulative trip limit of 34,100 lb. No more than one 
regular season cumulative limit may be landed on each limited entry 
permit with a sablefish endorsement. No vessel may land more than one 
cumulative limit. Each vessel is subject to the following per-trip 
limit for small sablefish: Sablefish smaller than 56 cm (22 in) total 
length may comprise no more than 1,500 lb (680 kg) or 3 percent of all 
legal sablefish 56 cm (22 in) (total length) or larger, whichever is 
greater.
    (viii) Other announcements; from August 21, 1997 through December 
31, 1997. The number of days in the mop-up season, dates and times that 
the auxiliary regular, and mop-up seasons start and end (and trip 
limits on sablefish of all sizes are resumed), dates of the pre- and 
post-season closures for the auxiliary regular season, and the size of 
the trip limit for the mop-up season will be announced in the Federal 
Register and may be modified. Unless otherwise announced, these seasons 
will begin and end at 1200 l.t. on the specified date.
* * * * *
[FR Doc. 97-22709 Filed 8-21-97; 5:04 am]
BILLING CODE 3510-22-M