19878 Federal Register / Vol. 63, No. 77 /Wednesday, April 22, 1998 / Proposed Rules

A duplicate copy of the docket is

available for inspection and copying at

U.S. EPA, Region 3, 841 Chestnut Street,

Philadelphia, PA, 19107–4431, during

normal business hours. Persons wishing

to view the duplicate docket at the

Philadelphia location are encouraged to

contact Mr. Tad Radzinski in advance,

by telephoning (215) 566–2394.

FOR FURTHER INFORMATION CONTACT: Mr.

Tad Radzinski, U.S. Environmental

Protection Agency, Region 3 (3WC11),

Waste Chemical Management Division,

841 Chestnut Street, Philadelphia, PA,

19107–4431, (215) 566–2394.

List of Subjects in 40 CFR Parts 264 and

265

Environmental protection, Air

pollution control, Control device,

Hazardous waste, Monitoring, Reporting

and recordkeeping requirements,

Surface impoundment, Treatment

storage and disposal facility, Waste

determination.

Dated: April 16, 1998.

Carol M. Browner,

Administrator.

[FR Doc. 98–10862 Filed 4–21–98; 8:45 am]

BILLING CODE 6560–50–M

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 660

[Docket No. 980406085–8086–00; I.D.

031198C]

RIN 0648–AJ27

Fisheries off West Coast States and in

the Western Pacific; Pacific Coast

Groundfish Fishery; Management

Measures for Nontrawl Sablefish

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Proposed rule; request for

comments.

SUMMARY: NMFS issues this proposed

rule to implement management

measures recommended by the Pacific

Fishery Management Council (Council)

for the limited entry, fixed gear sablefish

fishery north of 36° N. lat. These

measures would provide a three-tiered

management regime with three different

cumulative landings limits for permit

holders participating in the regular,

limited entry, fixed gear sablefish

fishery. The cumulative landings limit

available to a permit holder would

depend on the tier to which the permit

is assigned, and tier assignment would

be based on historical participation in

the fixed gear sablefish fishery. Both the

limited entry and open access fixed gear

sablefish fisheries would be closed for

48 hours immediately before and for 30

hours immediately after the regular

fishery. The preamble to this proposed

rule discusses how these

recommendations fit within long-term

changes to management of this fishery

that were made in 1997. Provisional

1997 regulatory language also would be

updated by this proposed rule. These

actions are intended to recognize the

historical and more recent participation

and investment in the fixed gear

sablefish fishery while eliminating the

traditional ‘‘derby’’ style management

system.

DATES: Comments must be received on

or before May 22, 1998.

ADDRESSES: Comments may be mailed to

William Stelle, Jr., Administrator,

Northwest Region, NMFS, 7600 Sand

Point Way NE, BIN C15700, Seattle, WA

98115–0070; or to William Hogarth,

Administrator, Southwest Region,

NMFS, 501 W. Ocean Blvd., Suite 4200,

Long Beach, CA 90802–4213. Copies of

the Environmental Assessment/

Regulatory Impact Review/Initial

Regulatory Flexibility Analysis (EA/

RIR/IRFA) may be obtained from the

Pacific Fishery Management Council,

2130 SW Fifth Avenue, Suite 224,

Portland, OR 97201. Send comments

regarding the burden estimate or any

other aspect of the collection-ofinformation requirement, including

suggestions for reducing the burden, to

one of the NMFS addresses above and

to the Office of Information and

Regulatory Affairs, Office of

Management and Budget (OMB),

Washington, D.C. 20503 (ATTN: NOAA

Desk Officer).

FOR FURTHER INFORMATION CONTACT:

William L. Robinson at

206–526–6140, or Svein Fougner at

562–980–4000.

SUPPLEMENTARY INFORMATION: NMFS is

proposing this rule based on

recommendations of the 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). The

background and rationale for the

Council’s recommendations are

summarized below. More detail appears

in the EA/RIR prepared by the Council

for this action.

Background

Sablefish (Anoplopoma fimbria), also

known as ‘‘black cod,’’ is one of the

most valuable species in the groundfish

fishery off Washington, Oregon, and

California. Because sablefish is an

important species in the Pacific Coast

groundfish complex, there have been

numerous allocation conflicts over

sablefish between different sectors of

the West Coast groundfish fleet. The

Council has made several major

decisions on dividing the available

harvest, to resolve allocation issues that

are inextricably linked to resource

conservation.

Since 1987, the annual sablefish nontribal harvest guideline has been

allocated between trawl gear and

nontrawl gear fisheries. In the nontrawl

sector there have been two operationally

distinct gear types, pot (or trap) and

longline, that have been the primary

gears competing for the nontrawl

sablefish harvest allocation, and which

now make up the fixed gear portion of

the limited entry fleet. Historically, the

trawl fishery has been managed with

trip or cumulative trip limits, which

means the amount of fish that may be

harvested during a fishing trip or during

a set time period. Trip or cumulative

trip limits are mainly imposed to extend

the fishery throughout most of the year

by slowing the rate of harvest. Trip

limits provide more stable employment

in the fishery, but over time, have the

effect of allocating the available

resource from larger to smaller

producers.

The advantage of trip limit

management is that participants know

exactly how much of a particular

species is available to them during a set

period, so there is no incentive for highpowered participants to upgrade their

vessel or gear beyond what is required

to catch the limit for that species.

Conversely, there is an incentive for

persons who initially participate in the

fishery at low levels of effort to upgrade

their gear and equipment until they are

able to catch the available limits. As

more fishery participants improve their

harvesting ability over time, or if the

available harvest declines, trip limits

must be lowered to keep the total

harvest within the annual harvest

guideline, and participants find

themselves with boats and gear that are

far too powerful for the available trip

limits.

For the health of the fish stocks, the

major disadvantage of trip limits is that

when fishers are able to easily attain

their trip limits, they may overshoot a

trip limit, and then must discard any

fish that exceed that limit. These

‘‘regulatory discards’’ are particularly

prevalent where fishers target on a

mixed group of fish species, because

trip limits must be set for each species
Federal Register / Vol. 63, No. 77 /Wednesday, April 22, 1998 / Proposed Rules 19879

and it is difficult to predict the changing

proportion of different fish stocks

within that mixed group. Discard

mortality is largely unmeasured, and

thus is a danger to the long-term health

of the fish stocks.

Following the 1987 sablefish

allocation between trawl and fixed gear,

the fixed gear fleet continued to take

most of its sablefish allocation in an

unrestricted fishery (a fishery without

landings limits). In the early years of

this unrestricted fishery, the price of

sablefish was relatively low, so there

were few incentives for many fishers to

target on sablefish with any intensity. In

1987, 1988, and 1989, the unrestricted

season was 9, 8, and 7.5 months long,

respectively. Most of the sablefish target

fishing occurred in the spring and

summer, so it was reasonable to expect

that the fishery would close at the end

of the summer. The Council managed

the fixed gear allocation so that there

was just enough sablefish available for

bycatch to other fisheries in the months

after the closure of the unrestricted,

primary fishery. This sablefish bycatch

was available as trip limits of 250–500

lb (113–227 kg).

By 1992, sablefish prices had risen to

more lucrative levels, and the Pacific

Northwest salmon harvest had been

greatly restricted. Fishers who had long

targeted salmon with hook-and-line gear

were turning to sablefish to make up

their loss of salmon income. Fishers

from other fisheries and new entrants

were attracted to sablefish as well. The

1992 unrestricted, regular sablefish

season was only 15 days long. By this

time, it was evident that effort

concentration in the fixed gear fleet had

separated the sablefish fishery into an

intense primary season coupled with a

small, year-round bycatch allowance for

the mixed species groundfish fishery.

In 1994, the Pacific Coast groundfish

limited entry plan went into effect and

limited the number of potential

participants in this primary fishery.

Although the limited entry program

limits the number of participants in the

overall groundfish fishery, it did

nothing specifically to address the

problem of the increasingly frenetic

primary sablefish fishery. In fact, many

fishers who had qualified for limited

entry permits based on landings of

groundfish other than sablefish began to

turn to sablefish to supplement and then

support their incomes.

The primary seasons of 1995 and 1996

were olympic derbies of 7 and 5 days in

duration, respectively. A ‘‘derby’’

fishery is a short, intense open

competition with no trip or cumulative

landings limits. The history of this

fishery had followed the classic pattern

of unrestricted fisheries, with

intensifying effort by each participant

and by the fleet as a whole, leading to

a brief season when the fleet landed the

bulk of the year’s allocation in just a few

days. The only trip limit during the

open competition of the derby fishery

was for small sablefish less than 22

inches (56 cm) in length. With seasons

measured in days, the Council

considered the derby to be hazardous,

because it gave fishers strong incentives

to stay on the ocean during bad weather,

working at sea with heavy machinery

and little or no sleep throughout the

season.

Management Background

In 1991, when the primary fixed gear

sablefish season was 3 months long, the

Council began to discuss development

of an individual fishing quota (IFQ)

program for this fishery. IFQ

discussions lasted 3 years, until the

Council developed a fixed gear IFQ

amendment, Amendment 8 to the FMP

(now tabled). These discussions were

long and divisive, primarily because the

Council could not get agreement from

within the industry on how heavily

catch history should be weighted in

calculating initial quota shares.

Disagreements between different sectors

of the fleet lengthened the public

discussion process. The Council

postponed action on Amendment 8

partly because of the controversy of the

program, and partly in response to a

request from some members of Congress

that the Council defer action while

important policy decisions were being

made at the national level. After that

postponement, Congress prohibited

NOAA from funding the development of

new IFQ programs. When Congress

reauthorized the Magnuson-Stevens

Fishery Conservation and Management

Act (Magnuson-Stevens Act) in October

1996, through passage of the Sustainable

Fisheries Act, it included a moratorium

on development of new IFQ programs

until October 1, 2000. The Council’s

delay in adopting an IFQ program for

the fixed gear fleet thus prevented it

from using that management strategy to

address the problems of a severely

overcapitalized, short, and dangerous

fishery.

In addition to the problems of

managing the primary fishery,

increasing numbers of vessels were

treating the small daily trip limit fishery

as a target fishery. Rather than catching

a few pounds of sablefish as bycatch in

trips targeting other deepwater

groundfish, many fishers specifically

began targeting the daily trip limits for

sablefish. Sablefish caught with fixed

gear in the daily trip limit fishery then

became subject to the problems of trip

limit management, similar to those

experienced by the trawl fishery. While

nontrawl vessels targeting sablefish

generally do not face trip limits on

multiple species, discards due to

highgrading for larger and more

valuable fish remain a problem. As in

the trawl fishery, these trip limit

induced discards are unmonitored.

The derbies of 1995 and 1996 were

especially controversial with the fishing

fleet because vessel owners feared that

the short season duration would lead to

more risk-taking behavior among fleet

participants, possibly resulting in

danger to human life and safety. In

addition to general concern about the

dangers of the derby, the Council faced

an allocation conflict between the two

different sectors of the limited entry,

fixed gear fleet. Long-term primary

fishery participants who had managed

their boats and gears with the

expectation that there would be a brief,

annual season where most of the fixed

gear sablefish allocation would be taken

were asking the Council for a

management regime that would

continue the historical sablefish catch

distribution between fishery

participants. Others who were better

equipped to participate in and profit

from the daily trip limit fishery were

asking the Council to restructure the

management regime so that the fixed

gear sablefish allocation could be taken

in small, monthly cumulative limits, as

in the trawl fishery.

The Council began to address these

problems by reducing effort in the fixed

gear sablefish fishery in 1997 with

Amendment 9 to the FMP, which

requires limited entry permit owners to

qualify for a sablefish endorsement in

order to participate in the primary, fixed

gear fishery. Sablefish endorsement

qualifications were based on a single

year of permit catch history in which

the amount of Council-managed

sablefish caught with longline or fishpot

gear was at least 16,000 lb (7,257 kg)

round weight, during the 1984 through

1994 qualifying period. The Council

recognized that any program that would

restrict access to the fishery would be

controversial, yet saw a strong need

both to reduce the number of potential

participants in the primary fishery to

constrain further capitalization, and to

reduce the intensity of the competition

for sablefish catch during the primary

fishery to improve fishery safety.

Of the 231 limited entry, fixed gear

permit owners, 162 now hold sablefish

endorsements. The Council expected

that by adopting the 16,000 lb (7,257 kg)

qualification threshold that extended

over an 11-year period, permit owners
19880 Federal Register / Vol. 63, No. 77 /Wednesday, April 22, 1998 / Proposed Rules

with the greatest dependence on

sablefish landings, including more

recent landings, would receive

endorsements. Further, the Council

expected that persons who did not

qualify for sablefish endorsements

would be those who had more heavily

relied on other groundfish species for

their groundfish income, or on other

sources of income, rather than on the

primary sablefish fishery. During this

time, the Council also looked for other

ways to increase safety in the fishery by

moving the opening to a time of year

when weather conditions would likely

be safer and by implementing an at-sea

closure to end last minute, reckless

rushes for port.

1997 Primary Fishery

Following the adoption of the

sablefish endorsement program, the

Council had two other issues to deal

with for the 1997 limited entry, fixed

gear fishery. First, the Council had to

consider how to manage the 1997

primary fishery. While the number of

potential derby participants had

decreased, the Council was still

concerned that the endorsed fleet’s

catching ability was significant enough

to limit the season to another short

derby fishery. The second issue arose in

the spring of 1997, when it became

apparent that the catch of the daily trip

limit fishery was rapidly expanding.

Many of the limited entry permit

holders who were unsure of their past

sablefish catch history, or who knew

that they would not qualify for the

sablefish endorsement as recommended

by the Council, intensified their efforts

for sablefish in the 1997 limited entry,

daily trip limit fishery, pushing the

1997 catch rate far above historic catch

rates for that fishery.

Council discussions of 1997

management measures for the primary

fishery were prolonged and difficult.

Within the affected fleet, fishers with

different cumulative catch histories and

different current catch strategies could

not agree on a future management

scheme. The traditionally lower

producers, who make up the majority of

the fishery participants, but a minority

of the total sablefish catch, favored an

end to the derby and a system of equal

cumulative limits for all participants.

While the traditionally higher producers

did not necessarily wish to continue

with derby-style management, many

were dissatisfied with the available

management options, and saw open

competition as the best way to maintain

past trends in income distribution

between fishery participants.

Nevertheless, even under open

competition, the share caught by higher

producers had been declining over time.

For 1997 and beyond, the Council

decided to separate fishery management

actions at 36° N. lat. South of 36° N. lat.,

the Council recommended eliminating

the primary fishery structure so that

sablefish landed in that area by limited

entry, fixed gear sablefish fishers is

taken only in a daily trip limit fishery.

For 1997 only, north of 36° N. lat., the

Council recommended implementing a

regular season of no more than 21 days,

with each permit holder allowed to fish

towards an equal cumulative landing

limit. The Council’s intent was to

provide a safe period of time during

which vessels would be able to harvest

their limits. Council members expressed

their preference for a system of tiered

cumulative limits for 1997; however,

there was insufficient time to develop

and implement such a proposal prior to

the 1997 season.

NMFS rejected the Council’s initial

recommendations finding that most

vessels would likely be able to take the

full cumulative limit, thus making the

combination of the limited entry permit

and sablefish cumulative limit function

effectively as an IFQ program. As

previously discussed, the MagnusonStevens Act placed a moratorium on

implementing IFQ programs until

October 1, 2000. Following the NMFS

rejection, the Council reconsidered

whether to allow the fishery to continue

as a derby in 1997 or to shorten the

regular season so that a sufficient

number of vessels would not be able to

take their cumulative limits in the

allotted time in order to avoid a

determination that the fishery was an

IFQ. The Council recognized that, while

the safety benefits of such a change

would be somewhat reduced,

cumulative limits would still provide

some control over fishing rates and

safety hazards. Therefore, the Council

recommended a season of no more than

10 days, with each permit holder

allowed to fish towards an equal

cumulative landing limit. This

recommendation significantly

redistributed 1997 catch away from

historically strong producers. Because

the Council did not want to support an

equal limits regime for long-term, fixed

gear sablefish management, it

recommended this regime for 1 year

only and announced that it would

consider a tiered cumulative limits

system for 1998 and beyond. The 1997

limited entry, fixed gear regular fishery

began on August 25, lasted for 9 days

and gave each participant the

opportunity to catch up to a cumulative

limit of 34,100 lb (15,468 kg).

Members of the Council were forced

to weigh the long-voiced anger over the

continuing danger of the derby against

the severe redistributive results of a

management option to set equal

cumulative limits for all of the eligible

participating vessels. The MagnusonStevens Act’s national standards

recognize the importance of both these

issues. National standard 10 recognizes

the importance of the safety of human

life at sea, yet national standard 4

requires that if allocation of fishing

privileges among U.S. fishermen is

necessary, then that allocation be fair

and equitable. In the case of the Pacific

Coast fixed gear sablefish fishery, the

Council concluded that a long-term,

equal allocation scheme that

disregarded historical participation and

dependence on the fishery would not be

‘‘fair and equitable.’’

1997 Daily Trip Limit Fishery

In the months before and after the

primary fishery, many limited entry

fishers caught sablefish in the daily trip

limit fishery. As previously mentioned,

although the daily trip limit fishery was

originally conceived primarily as a

bycatch fishery, the recent and heavy

influx of small operations focusing on

sablefish has changed the character of

the daily trip limit fishery into a target

fishery. At the beginning of 1997, this

fishery was under landing limits of 300

lb (136 kg) per day, with no limit on the

amount of fish that could be landed in

a month. Landings receipts from the

early part of the year showed that a

number of permit holders were landing

the 300 lb (136 kg) limit almost every

day of each month.

At its March 1997 meeting, the

Council discussed the daily trip limit

fishery and expressed concern that the

amount of catch taken in the daily trip

limit fishery had continued to increase

from year to year. To slow the rate of

catch in that fishery, the Council

recommended, and NMFS

implemented, a monthly cap of 5,100 lb

(2,313 kg), effective May 1, 1997. The

Council decided to establish a policy of

maintaining a 1997 daily trip limit

fishery catch similar to that fishery’s

catch in 1996. The Council announced

that it would try to manage the 1997

daily trip limit fishery so that it would

also take a total of 850,000 lb (385 mt)

over the entire year.

Catch estimates from the daily trip

limit fishery for sablefish presented at

the June 1997 Council meeting showed

that by the end of June, an expected

780,000–800,000 lb (354–363 mt) of

sablefish would be landed in the daily

trip limit fishery. Updated 1996

landings information showed that
Federal Register / Vol. 63, No. 77 /Wednesday, April 22, 1998 / Proposed Rules 19881

sablefish landings from the entire daily

trip limit fishery in 1996 were 915,000

lb (415 mt). Consequently, the Council

revised its management target for the

1997 daily trip limit fishery to 915,000

lb (415 mt). To try to constrain the daily

trip limit fishery to the 1996 catch level,

the Council had to make drastic changes

in the monthly cap for this fishery.

Effective July 1, 1997, NMFS

implemented the Council’s

recommendation to drop the monthly

cap in the daily trip limit fishery to 600

lb (272 kg). The Council expected that

even this low cap could only constrain

daily trip limit landings enough so that

the 1997 fishery total would be about 15

percent higher (about 1,100,000 lb (499

mt)) than the 1996 total.

There is an open access sablefish

daily trip limit fishery in addition to the

limited entry fishery. The open access

fishery has a specific sablefish

allocation, and trip limits are set with

the aim of maintaining a year-round

fishing opportunity. Open access

sablefish daily trip limits at the

beginning of 1997 were 300 lb (136 kg)

per day and 1,500 lb (680 kg) per month.

Like the limited entry fishery, 1997

open access sablefish harvest in the

daily trip limit fishery was proceeding

at an accelerated rate over previous

years. When the Council recommended

restricting the limited entry monthly

cap for fixed gear sablefish to 600 lb

(272 kg), it also recommended lowering

the open access monthly cap to 600 lb

(272 kg). The Council was concerned

that, if it recommended a more

restrictive monthly cap in the limited

entry daily trip limit fishery as

compared to the open access daily trip

limit fishery, limited entry vessels

would then flood the open access

fishery and force an early closure of that

daily trip limit fishery.

The 600 lb (272 kg) caps restrained

the two daily trip limit fisheries to

moving at a pace slow enough to keep

the fisheries within the harvest

guidelines. However, at the September

1997 Council meeting, the Council saw

data showing that the 600 lb (272 kg)

cap had constrained the open access

fishery to a degree that the fishery

would not likely meet the open access

allocation for the year. Data from the

limited entry daily trip limit fishery

showed that even with the 600 lb (272

kg) cap, the fishery would likely exceed

the 915,000 lb (415 mt) target for 1997.

Analysis for these fisheries suggested

that, if the Council were to raise the

monthly cap for both daily trip limit

fisheries to 1,500 lb (680 kg) from

October through December, the

combined totals taken from the open

access and limited entry daily trip limit

fisheries would likely meet the

combined target amounts for the open

access allocation and the limited entry

daily trip limit fisheries. On October 1,

1997, NMFS implemented the Council’s

recommendation of a 1,500 lb (680 kg)

monthly cap for the open access and

limited entry daily trip limit fisheries,

which remained in place for the rest of

the year.

Three-Tier Cumulative Limit

Management

At its June 1997 meeting, the Council

adopted a recommendation for limited

entry, fixed gear sablefish management

measures for 1998 and beyond that is

intended to maintain the basic structure

of the fishery. The target amount of the

fixed-gear allocation would be taken

during the ‘‘regular’’ fishery, with a

smaller amount taken in a mop-up

fishery a few weeks later. A sablefish

endorsement is required for

participation in the regular and mop-up

fisheries, which together constitute the

‘‘primary’’ fishery. The new proposal

would divide limited entry permits with

sablefish endorsements into three tiers.

A permit’s placement in a tier would be

based on the cumulative sablefish catch

associated with that permit from 1984

through 1994. Each tier would be

associated with a different cumulative

limit during the regular, limited entry,

fixed gear fishery. These measures

would apply only north of 36° N. lat.

The Council recommendation

specifies qualifying criteria for assigning

limited entry permits to one of the three

tiers. To qualify for the highest tier, Tier

1, a permit would need to be associated

with at least 898,000 lb (407.33 mt) of

cumulative sablefish landings made

from 1984 through 1994. To qualify for

the middle tier, Tier 2, a permit would

need to be associated with between

411,000 lb (186.43 mt) and 897,999 lb

(407.33 mt) of cumulative sablefish

landings made from 1984 through 1994.

Permits with sablefish endorsements

that are associated with less than

411,000 lb (186.43 mt) of cumulative

sablefish landings from 1984 through

1994 would qualify for the lowest tier,

Tier 3.

Analysts examined the distribution of

sablefish cumulative catch histories

over the 1984 through 1994 period to

determine whether there were any large

gaps between the cumulative catch

histories of limited entry permits with

sablefish endorsements that might serve

as logical breakpoints between tiers.

Such breakpoints did exist, and the

Council selected a qualifying amount of

898,000 lb (407.33 mt) for Tier 1, which

was the lowest large breakpoint in

cumulative catch histories among a

series of high breakpoints. Below

898,000 lb (407.33 mt), there were no

significant breaks in cumulative catch

histories for many thousands of pounds.

Similarly, a cumulative catch amount of

411,000 lb (186.43 mt) was selected as

the qualifying level for Tier 2 because it

was the lowest large breakpoint among

a series of mid-range breaks in

cumulative catch histories. Because all

permit owners who will be in the tier

system have qualified for sablefish

endorsements, those permits in the

lowest tier are known to have had at

least one year with landings greater than

16,000 lb (7.26 mt) during the 1984

through 1994 period, but a cumulative

catch history of less than 411,000 lb

(186.43 mt) from 1984 through 1994. In

the package sent out for public review,

the Council included a four-tier option

as well as options that allowed

qualification based either on cumulative

landings from 1984 through 1994 or on

cumulative landings from 1994 and

1995. After reviewing the analysis and

testimony of the public and its advisors,

the Council chose the option associated

with the qualifications described above.

The catch histories for tier

qualification include only sablefish

landed from the Pacific Coast fishery.

However, the database used for the

analysis described above inadvertently

included some sablefish taken in waters

off Alaska and later landed at a Pacific

Coast port. Analysts discovered this

mistake after the November 1997

Council meeting. Removal of Alaska

sablefish data does not significantly

change the breaks in cumulative catch

histories already identified by the

Council. The break for Tier 1, 898,000

lb (407.33 mt), actually became larger,

and so is a more effective fleet-division

indicator than it was when the Alaska

data were included in the cumulative

catch histories. The qualifying amount

for Tier 2, 411,000 lb (186.43 mt), also

occurs at a large break in cumulative

catch histories, but it is no longer the

lowest large breakpoint in its class.

Once the Alaska data are removed,

398,000 lb (180.53 mt) becomes the

lowest large breakpoint among midrange breaks, and is also a larger break

in cumulative catch histories than the

break at 411,000 lb (186.43 mt). At the

March 1998 meeting, the Council

commented on this issue, stating that it

prefers to retain its original logic and to

use the lowest large breakpoint in the

mid-range area. In order to cushion any

further possible data mistakes, the

Council recommended setting the Tier 2

qualifying poundage at 380,000 lb

(172.37 mt). Qualifying poundage for

Tier 3 would be less than 380,000 lb
19882 Federal Register / Vol. 63, No. 77 /Wednesday, April 22, 1998 / Proposed Rules

(172.37 mt). If NMFS adopts this

proposed rule as a final rule, the public

comments and the Council

recommendations on this issue would

be considered in the final rule.

Permit catch history includes the

catch history of the vessel(s) that

initially qualified for the permit, and

subsequent catch histories accrued

when the limited entry permit or permit

rights were associated with other

vessels. Permit catch history also

includes the catch associated with any

interim permit held during the appeal of

an initial NMFS decision to deny the

initial issuance of a limited entry

permit, but only if (1) the appeal for

which an interim permit was issued was

lost by the appellant, and (2) the

owner’s current permit was used by the

owner in the 1995 limited entry

sablefish fishery. The catch history of an

interim permit where the full ‘‘A’’

permit was ultimately granted will also

be considered part of the catch history

of the ‘‘A’’ permit. Only sablefish catch

regulated by the FMP that was legally

taken with longline or fishpot gear will

be considered for tier placement.

Harvest taken in tribal sablefish setasides will not be included in

calculating permit catch histories.

If the current permit is the result of

the combination of two or more permits,

then the permit with the highest

cumulative catch history will be used in

tier placement for that permit. The

Council specifically decided not to

allow permit owners who had combined

two permits to use the combined catch

histories of both permits when

determining tier placement. This is

consistent with the endorsement

program (Amendment 9), where the

endorsement qualification was based

only on the catch history of one of the

combined permits, not on the total catch

history of all combined permits. In

addition, the analysis presented to the

Council at the time it made a decision

on this issue indicated that, based on

the available data, no permit owner

would be denied qualification to a

higher tier if the cumulative catch

history of the higher of two combined

permits was used as the qualifying catch

history for that permit, rather than the

summed cumulative catch history of

both permits that were used to create

the currently held permit. However,

upon a more detailed review of the

database, analysts discovered that this

statement was wrong and that a permit

owner would be assigned to a higher tier

if allowed to sum the cumulative catch

histories of the permits that had been

combined to create the current permit.

At the March 1998 meeting, the Council

recommended allowing owners of

permits that were combined prior to

March 12, 1998, to aggregate their

cumulative catch histories in qualifying

for tier placement. If NMFS adopts this

proposed rule as a final rule, public

comments and the Council

recommendations on this issue would

be considered in the final rule.

In accordance with Amendment 9 to

the FMP, if two limited entry, fixed gear

permits are combined to generate a

single permit with a larger length

endorsement, the resulting permit will

also have a sablefish endorsement only

if all permits being combined have

sablefish endorsements. After tier

assignments are issued by NMFS, if

permits are combined, the resulting

permit will be assigned to the highest

tier held by either of the original

permits prior to combination. The

Council concluded that because harvest

would be restricted by the cumulative

limits and that one permit’s cumulative

limit would be eliminated through the

combination of permits, this approach

was preferable. Other alternatives would

have allowed persons combining

permits to expand harvest, imposed an

unfair restriction on the amount that

could be harvested by combined

permits, or would have functioned too

much like an IFQ system.

The management option that the

Council chose maintains a ratio that

approximates the 1991–1995 catch

relationships between permits assigned

to each tier on a group average basis.

Setting cumulative limits by ratios

ensures that the long-term relationships

between the cumulative limits for each

tier will remain stable. With cumulative

limits set by ratio, impacts from changes

in the numbers of permits distributed to

each tier will be shared by all vessels in

the fleet. The cumulative limits ratio for

the tiers would be 3.85 (Tier 1); 1.75

(Tier 2); and 1 (Tier 3). For example, if

Tier 3 had a cumulative limit of 10,000

lb (4,536 kg), Tier 2 would have a

corresponding cumulative limit of

17,500 lb (7,938 kg), and Tier 1 would

have a corresponding cumulative limit

of 38,500 lb (17,463 kg).

As with the 1997 equal cumulative

limit fishery, the Council recommended

using overhead guidelines in setting the

cumulative limits for each tier and for

the overall expected catch for the total

fishery. ‘‘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 concept of overhead is

based on the premise that not all

participants in this fishery will harvest

the cumulative limit. NMFS considers a

fishery where all participants have the

opportunity to catch a cumulative limit

and they are all able to catch that limit

to be an IFQ program.

The Council recommended setting

cumulative limits and season lengths in

1998 and beyond to achieve a projected

overhead, based on the most reasonable

assumptions, of at least 25 percent and

an overhead based on worst-case

assumptions of at least 15 percent for

the fleet as a whole. The goal overhead

for any single tier would be at least 15

percent, based on the most reasonable

assumptions. This recommendation is

consistent with the 1997 fishery

structure, where the equal cumulative

limit and season length were set within

parameters of 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. The

resulting season structure of a 9-day

fishery with a cumulative limit of

34,100 lb (15,468 kg) was successful in

both keeping the harvest within the

allocation and in maintaining adequate

overhead. In 1997, the regular fishery

achieved an overhead of 61 percent, and

the amount taken in that fishery was

about 70 percent of the total available

harvest for the primary fishery. Of the

163 potential participants in the 1997

limited entry, fixed gear regular fishery,

about 60 vessels had landings within 90

percent of the full cumulative limit of

34,100 lb (15,468 kg).

1998 Fishery Season Structure

When the Council adopted its

recommendation for a tiered access

program, it retained most of the basic

season structure requirements that were

in place for 1997, as described below.

There would be a 48–hour closure

before the start of the regular season,

during which time all fixed gear north

of 36° N. lat. must be out of the water

and no sablefish may be landed by a

fixed gear vessel. The existing

regulation contains a 72–hour closure,

with an allowance for pots to be set 24

hours before the start of the season.

At its November 1997 meeting, the

Council recommended a 1998 season

start date of August 1. The limited entry,

fixed gear sablefish regulations contain

a framework to allow NMFS to

announce annually, in consultation

with the Council, a season start on any

day between August 1 and September

30.

Preliminary estimates at the

November 1997 Council meeting

showed that the 1998 limited entry,

fixed gear regular sablefish season

would be at least 5 days long. The

Council recommended setting the

season length as long as possible, while
Federal Register / Vol. 63, No. 77 /Wednesday, April 22, 1998 / Proposed Rules 19883

maintaining a 25–percent overhead for

the entire fleet and a 15–percent

overhead for each tier within the fleet.

There would be a 30–hour closure

after the end of the regular season,

during which time no sablefish may be

taken and retained with fixed gear north

of 36° N. lat. During that 30–hour

period, sablefish taken and retained

during the regular season could be

possessed and landed, and gear could

remain in the water. However, fishers

may not set or pull their gear from the

water during this period. The existing

regulation contains a 48–hour closure.

Once the landings from the regular

season have been calculated, there

would be a mop-up season to catch any

sablefish left from the primary fishery

(regular + mop-up seasons) that is not

needed for the planned daily trip limit

fishery. NMFS and the three states

generally require 3 weeks from the end

of the regular season to calculate the

amount of sablefish, if any, available to

the mop-up fishery.

At its November 1997 meeting, the

Council recommended a 1998

commercial harvest guideline of 4,212

mt for all sablefish landed north of 36°

N. lat., a significant reduction from

recent years. The 1997 commercial

harvest guideline for sablefish landed

north of 36° N. lat. was 7,020 mt. At its

September 1997 meeting, the Council

recommended a policy for 1998 of

maintaining recent-year sablefish catch

ratios between different commercial

sectors. Under this policy, the limited

entry, fixed gear trip limit fishery will

be managed with daily and monthly

limits that keep the overall catch of the

fishery to approximately 15 percent of

the total sablefish available to the

limited entry, fixed gear fleet in 1998.

While the exact division between the

primary fishery and the daily trip limit

fishery is not specified in the current

regulations governing this fishery or in

Amendment 9, maintaining the recent

ratio between these two fisheries is

consistent with management practices

in recent years.

NMFS and Council staff estimate that

under a total harvest guideline of 4,212

mt for all gears and sectors, the 1998

limited entry, fixed gear, regular

sablefish season would be 6 days in

duration. At the March 1998 Council

meeting, the Council recommended a

method for setting the season length and

the cumulative limits for each of the

three tiers if the three-tier program is

adopted as a final rule. At the April

1998 Council meeting, NMFS reported

to the Council that under the Council’s

preferred method for setting season

length and cumulative limits, and

within the parameters for the three-tier

program described above, the 1998

season of 6 days in duration would have

cumulative limits of 52,000 lb for Tier

1, 23,500 lb for Tier 2, and 13,500 lb for

Tier 3. Overheads would be expected to

be 30% overall, 16 percent overall

under a worst-case scenario, 46 percent

for Tier 1, 25 percent for Tier 2, and 21

percent

for Tier 3. All of these overheads

exceed the Council’s conservative

overhead recommendations for the

three-tier regime, as described above.

Biological Impacts

Marine biological background and

biological impacts of the sablefish

fishery are analyzed in ‘‘Status of the

Pacific Coast Groundfish Fishery

Through 1997 and Recommended

Acceptable Biological Catches for 1998:

Stock Assessment and Fishery

Evaluation’’ (SAFE Document) and in

the EA for the ‘‘Proposal to Change the

Management of the Limited Entry Fixed

Gear Sablefish Segment of the

Groundfish Fishery for 1998 and

Beyond.’’ These documents may be

obtained from the Council. (See

ADDRESSES).

NMFS expects that the biological

impacts of implementing a three-tier

cumulative limit system would be

negligible. The sablefish acceptable

biological catch and harvest guideline

would not be affected by this action.

Socio-economic Impacts

As previously mentioned, the primary

fishery would be managed to maintain

a 25–percent catch overhead, which

would mean that some fleet participants

would be expected to catch the entire

cumulative limit within the time

allotted for the fishery, but many would

not be able to do this. If the fishery is

managed to maintain a 25–percent

overhead, it is expected that about onethird of the fleet participants (the larger

sablefish producers) would be able to

slow their rate of harvest over the rate

at which they would have fished in a

derby. For that one-third of the fleet,

there would be increased safety benefits

from implementing the three-tiered

access system. An open competition

derby fishery would be several days

shorter than the three-tiered cumulative

limit fishery. Individuals in the twothirds of the fleet that would not be

expected to slow their rates of harvest

to achieve their cumulative limits

would garner safety benefits from the

three-tiered access system if they choose

to fish at a slower rate because they

would have more time available to them

than in a derby fishery to catch a

comparable amount of sablefish.

However, it is reasonable to expect that

most fishery participants would fish at

the fastest rate possible if they have any

doubts about whether they will be able

to catch their available cumulative

limits. Smaller sablefish producers

would be able to expand their harvest,

while harvest by larger producers will

likely be restricted.

The Council recommended keeping

the 1997 management measures for the

limited entry, fixed gear, regular

sablefish fishery in place for 1 year only,

and stated that a prolonged equal

cumulative limit fishery would be too

redistributive of sablefish catch and

income. Analysts expected that the

equal limit regime would result in 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 - 3.0 million. In designing the

three-tiered access system, the Council

intended to recommend management

measures that would allow fleet

participants to harvest sablefish at levels

more closely aligned to their historical

annual harvests than was possible under

equal allocation.

The three-tiered regime still has

redistributive effects as compared to the

open competition derby, the

management regime that the fishery

would revert to if no action were taken

for 1998. If the Council’s recommended

option is implemented, permit owners

with sablefish endorsements would

have their sablefish harvest limited by

their tier assignments. Many of the

larger producers would still see a

reduction in their gross revenues, as

compared to the revenues that they

might have expected under a continued

derby fishery, but a less significant

revenue reduction than would have

occurred under an equal limits regime.

Fishery participants with strong harvest

levels in 1995 and 1996, but with little

cumulative catch prior to 1995 may also

face a drop in harvest if their 1984

through 1994 cumulative harvest places

them in Tier 2 or 3.

Under the three-tiered option that the

Council recommended for 1998, 52

fishery participants can expect to catch

less sablefish than they would have

under a continued derby option, and

106 fishery participants can expect to

catch more sablefish than they would

have under a continued derby option.

About 24 percent of the harvest would

be redistributed away from the fishers

who would be losing harvest shares

under the three-tiered option

recommended by the Council.

As a group, vessels in Tier 1 would

be expected to take shares of harvest

that are below their long-term and

recent averages. As a group, vessels in
19884 Federal Register / Vol. 63, No. 77 /Wednesday, April 22, 1998 / Proposed Rules

Tier 3 would be expected to take shares

of harvest that are above their long-term

averages and close to their recent

averages. Estimates of changes in

harvest shares are based on a

comparison between what vessels are

expected to catch under the different

management options that could have

been chosen by the Council for

recommendation to NMFS. The

potential impact of implementing the

three-tiered access system would be

separate from the impact of the

decreased harvest guideline for 1998.

The amount of sablefish that each vessel

catches in 1998 is likely to be lower

than the amounts they have caught in

years past because the overall sablefish

harvest guideline is lower than it has

been in past years.

Tier Assignment

Tier assignments for limited entry

permits with sablefish endorsements

would be issued by NMFS, prior to the

start of the regular 1998 limited entry,

fixed gear sablefish season. NMFS

would use landings records from the

Pacific States Marine Fisheries

Commission’s Pacific Fisheries

Information Network (PacFIN) to

determine which limited entry permits

meet the Council-recommended

qualifications for each tier.

The Sustainable Fisheries Division

(SFD), NMFS Northwest Region, would

notify each limited entry permit owner

with a sablefish endorsement by letter

whether PacFIN records indicate that

his or her permit qualifies for Tier 1,

Tier 2, or Tier 3.

Permit owners who believe that their

permit qualifies for a different tier than

the tier indicated by PacFIN records

would have 30 days to send supporting

documentation, such as fish tickets, to

the SFD to demonstrate how the

qualifying criteria for a different tier

have been met. A new tier assignment

would be issued if the permit owner

demonstrates that his or her permit met

the qualifying criteria. If the SFD, after

review of the information submitted by

the permit owner, decides that the

permit does not qualify for the tier

requested by the owner, the owner

would have 30 days to appeal the

decision to the Regional Administrator,

NMFS Northwest Region. Unlike the

initial limited entry permitting process

but similar to the sablefish endorsement

issuance process, there would be no

industry appeals board to review

appeals of tier placement.

For the 1998 season only, permit

owners with sablefish endorsements

would be issued certificates of tier

assignment that would need to be kept

with, and considered part of, their

limited entry permits. When limited

entry permit owners renew their permits

for 1999, tier assignments for those

limited entry permit owners with

sablefish endorsements would be

indicated directly on the limited entry

permit.

Sablefish Endorsement Application

Deadline

Amendment 9 to the FMP

recommended at section 14.5: ‘‘NMFS

will establish a reasonable application

period for the fixed gear sablefish

endorsement. Untimely applications

will be rejected and no sablefish

endorsement will be issued thereon

* * *.’’ When NMFS implemented the

sablefish endorsement program, the

agency sent letters of qualification status

to each limited entry permit owner that

told the permit owner whether PacFIN

records indicated that his or her permit

was associated with enough sablefish

catch to qualify that permit for a

sablefish endorsement. Where PacFIN

records indicated that a permit did not

qualify for an endorsement, that permit

owner could apply for an endorsement

by providing additional information on

his or her sablefish landings for the

qualifying years. Permit owners whose

permits did qualify for sablefish

endorsements according to PacFIN

records were given no deadline to apply

for sablefish endorsements. If NMFS

finalizes this rule and implements a

three-tier system for 1998, the agency

will need to know how many limited

entry permit owners meet the tier

system qualification of having a

sablefish endorsement. To implement

section 14.5 of Amendment 9 and to

facilitate possible implementation of the

three tier system, NMFS is proposing a

sablefish endorsement application

deadline for those persons who were

initially told that their permits qualified

for sablefish endorsements based on

PacFIN landing records. Sablefish

endorsement applications will not be

accepted after November 30, 1998,

which is the limited entry permit

renewal deadline for the 1999 fishing

year.

Classification

This proposed rule has been

determined to be not significant for the

purposes of E.O. 12866.

The Council prepared an IRFA that

describes the impact that this proposed

rule, if adopted, would have on small

entities. A copy of this analysis is

available from the Council (see

ADDRESSES). All of the permit owners

and vessels in the Pacific Coast, limited

entry, fixed gear fleet are considered

small entities. NMFS considers an

impact to be ‘‘significant’’ if it results in

a reduction in annual gross revenues by

more than 5 percent, an increase in

annual compliance costs of greater than

5 percent, compliance costs at least 10

percent higher for small entities than for

large entities, compliance costs that

require significant capital expenditures,

or the likelihood that 2 percent of the

small entities would be forced out of

business. NMFS considers a

‘‘substantial number’’ of small entities

to be more than 20 percent of those

small entities affected by the regulation

engaged in the fishery.

As indicated in the EA/RIR/IRFA for

this action, there are 162 limited entry,

fixed gear permit owners holding

sablefish endorsements. All are small

entities. Of these, 42 (26 percent) would

suffer a greater than 5 percent loss in

total gross annual revenue over what

they would have been expected to earn

if the open competition derby

management had been continued in

1998.

The analysis of whether this action

would reduce annual gross revenues of

limited entry permit owners with

sablefish endorsements was based on

comparing estimates of each permit

owners’ sablefish-derived income to his

or her total fishing income. There are

members of this fleet who have nonfishing income sources that contribute

to their annual gross revenues.

However, NMFS and Council analysts

have no access to information about the

non-fishing revenues of these

businesses. Thus, the following

discussion on the number of businesses

that would be expected to have

reductions in annual gross revenues is

based on information about the fishing

revenues of these permit owners. As a

result, the conclusions of this analysis

are a ‘‘worst-case’’ scenario; those

permit owners with non-fishing revenue

sources may not be as severely impacted

as indicated by this analysis.

There are 162 limited entry, fixed gear

permit owners with sablefish

endorsements. As indicated in the EA/

RIR/IRFA for this action, 42 permit

holders with sablefish endorsements (26

percent) would suffer a greater than 5

percent loss in total gross fishing

income over what they would have been

expected to earn if the open competition

derby management had been continued

for 1998.

The Council considered six different

management options aside from status

quo, open competition derby

management. Of those six options, two

options would have resulted in fewer

than 26 percent of endorsement holders

suffering a greater than 5 percent loss in

gross annual revenue. An option to
Federal Register / Vol. 63, No. 77 /Wednesday, April 22, 1998 / Proposed Rules 19885

continue the 1997 style fishery

management of a single period equal

cumulative limit regime would have

resulted in 18 percent of endorsement

holders suffering a greater than 5

percent loss in total gross annual

revenue. Although this option would

have resulted in fewer businesses with

economic loss, those businesses that

would have lost economically under

this option would have lost revenue to

a greater degree than those businesses

losing revenue under any of the tier

options. Thus, while the option chosen

by the Council results in a greater

number of businesses with losses, the

impacts of that option are spread more

evenly through the fleet. The Council

also specifically decided when it

recommended a single period equal

cumulative limit for 1997 that it would

not recommend continuing such an

option for 1998.

The other option that would have

resulted in fewer than 26 percent of

permit owners suffering a greater than 5

percent loss in gross annual revenue

was a four-tiered access system. This

option was projected as leading to

greater than a 5 percent loss in gross

annual revenue for 22 percent of permit

holders with sablefish endorsements.

One major impediment to Council

recommendation of a four-tiered option

was that maintaining an overhead to

prevent designation as an IFQ system

would have been more difficult under a

four-tiered option. The greater the

number of tiers in a tiered access

system, the more likely it is that fishers

will be able to achieve a harvest share

close to their historical harvest share. In

an IFQ fishery, all fishers would be

allowed to use as much time as

necessary to catch whatever cumulative

limits are available. The Council chose

the option that would have the least

impact on fishers’ revenues while still

maintaining enough overhead to avoid

the NMFS IFQ classification criteria and

eliminating derby management.

The IRFA indicates that this proposed

action would not be expected to result

in an increase in annual compliance

costs of greater than 5 percent,

compliance costs at least 10 percent

higher for small entities than for large

entities, compliance costs that require

significant capital expenditures, or the

likelihood that 2 percent of the small

entities would be forced out of business.

This rule contains and refers to

collection-of-information requirements

subject to the Paperwork Reduction Act

(PRA). These collections have been

approved by OMB under OMB Control

Number 0648–0203. Public reporting

burden for appeals of permit

determinations is estimated at 2 hours

per response; reporting burden for the

renewal or transfer of limited entry

permits is estimated at 20 minutes per

response. These estimates include the

time for reviewing instructions,

searching existing data sources,

gathering and maintaining the data

needed, and completing and reviewing

the collection of information. Public

comment is invited regarding: Whether

this proposed collection of information

is necessary for the proper performance

of the functions of the agency, including

whether the information has practical

utility; the accuracy of the burden

estimate; ways to enhance the quality,

utility, and clarity of the information to

be collected; and ways to minimize the

burden of the collection of information,

including through the use of automated

collection techniques or other forms of

information technology.

Notwithstanding any other provision of

the law, no person is required to

respond to, nor shall any person be

subject to a penalty for failure to comply

with, a collection of information subject

to the requirements of the PRA, unless

that collection of information displays a

currently valid OMB Control Number.

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: April 17, 1998.

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 proposed

to be amended as follows:

PART 660—FISHERIES OFF WEST

COAST STATES AND IN THE

WESTERN PACIFIC

l. The authority citation for part 660

continues to read as follows:

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

2. Section 660.323 is amended by

revising paragraph (a)(2) to read as

follows:

§ 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), (iv), and

(vii) 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

participate lawfully in the 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) Sablefish

taken with fixed gear in the limited

entry or open access fishery in the EEZ

may not be retained or landed during

the 48 hours immediately before the

start of the regular season for the

nontrawl limited entry sablefish fishery.

(B) All fixed gear used to take and

retain groundfish must be out of EEZ

waters during the 48 hours immediately

before the opening of the regular season

for the nontrawl limited entry sablefish

fishery.

(iii) Regular season—nontrawl limited

entry sablefish fishery. (A) The 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.

(B) During the regular season, each

vessel registered for use with a limited

entry permit with a sablefish

endorsement will be able to land up to

the cumulative trip limit announced for

the tier to which the permit is assigned.

Each permit will be assigned to one of

three tiers. 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.

(C) The Regional Administrator will

annually calculate the length of the

regular season and the size of the

cumulative trip limit for each tier in

accordance with the process specified in

chapter 1 of the EA/RIR/IRFA for ‘‘Fixed

Gear Sablefish Tiered Cumulative

Limits,’’ dated February 1998, which is

available from the Council. The season

length and the size of the cumulative

trip limits will vary depending on the

amount of sablefish available for the

regular and mop-up fisheries and the

projected harvest for the fishery. The

season will be set to be as long as

possible, under the constraints

described in chapter 1 of the EA/RIR/

IRFA, up to a maximum season length

of 10 days.
19886 Federal Register / Vol. 63, No. 77 /Wednesday, April 22, 1998 / Proposed Rules

(D) During the regular and mop-up

season, limited entry nontrawl sablefish

fishers may also be subject to trip limits

to protect juvenile sablefish.

(E) There will be no limited entry,

daily trip limit fishery during the

regular season.

(iv) Post-season closure—limited

entry and open access. No sablefish

taken with fixed gear north of 36° N. lat.

may be taken and retained during the 30

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 30–hour period. Gear may remain

in water during the 30–hour post-season

closure. Fishers may not set or pull from

the water fixed gear used to take and

retain groundfish during the 30–hour

post-season closure.

(v) Mop-up season—limited entry

fishery. 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, or as soon as

practicable, after the end of the regular

season. 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. The length of the mop-up season

and the amount of the cumulative trip

limit, 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 limited entry

nontrawl 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 limited entry

daily trip limit fishery during the mopup season.

(vi) Other announcements. The dates

and times that the regular season starts

and ends (and trip limits on sablefish of

all sizes are resumed), the size of the

cumulative trip limits for the three tiers

in the regular fishery, the dates and

times for the 30–hour post-season

closure, the dates and times that the

mop-up season begins and ends, and the

size of the cumulative 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) Trip limits. Trip and/or

frequency limits may be imposed in the

limited entry fishery before and after the

regular season, and after the mop-up

season, under paragraph (b) of this

section. Trip and/or size limits to

protect juvenile sablefish in the limited

entry or open-access fisheries also may

be imposed at any time under paragraph

(b) of this section.

* * * * *

3. In § 660.333, the first sentence of

paragraph (c)(1), paragraphs (d)

introductory text, (f)(2), and (h)(2)(iii)

are revised to read as follows:

§ 660.333 Limited entry fishery—general.

* * * * *

(c) Transfer and registration of limited

entry permits and gear endorsements.

(1) Upon transfer of a limited entry

permit, the SFD will reissue the permit

in the name of the new permit holder

with such gear and, if applicable,

species endorsements and tier

assignments as are eligible for transfer

with the permit. * * *

* * * * *

(d) Evidence and burden of proof. A

vessel owner (or person holding limited

entry rights under the express terms of

a written contract) applying for

issuance, renewal, transfer, or

registration of a limited entry permit has

the burden to prove evidence that

qualification requirements are met. The

owner of a permit endorsed for longline

or trap (or pot) gear applying for a

sablefish endorsement or a tier

assignment under § 660.336(c) or (d) has

the burden to submit evidence to prove

that qualification requirements are met.

The following evidentiary standards

apply:

* * * * *

(f) * * *

(2) Gear endorsements, sablefish

endorsements, and sablefish tier

assignments may not be transferred

separately from the limited entry

permit.

* * * * *

(h) * * *

(2) * * *

(iii) Two or more limited entry

permits with ‘‘A’’ gear endorsements for

the same type of limited entry gear may

be combined and reissued as a single

permit with a larger size endorsement.

With respect to permits endorsed for

nontrawl limited entry gear, a sablefish

endorsement will be issued for the new

permit only if all of the permits being

combined have sablefish endorsements.

If two or more permits with sablefish

endorsements are combined, the new

permit will receive the same tier

assignment as the tier with the largest

cumulative landing limit of the permits

being combined. The vessel harvest

capacity rating for each of the permits

being combined is that indicated in

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

endorsed on the respective limited entry

permit. Harvest capacity ratings for

fractions of a foot in vessel length will

be determined by multiplying the

fraction of a foot in vessel length by the

difference in the two ratings assigned to

the nearest integers of vessel length. The

length rating for the combined permit is

that indicated for the sum of the vessel

harvest capacity ratings for each permit

being combined. If that sum falls

between the sums for two adjacent

lengths on Table 2 of this part, the

length rating shall be the higher length.

* * * * *

4. In § 660.336, the section heading,

paragraphs (a)(1), (a)(2), (b) introductory

text, (b)(1), (c) heading, and paragraph

(c)(1), are revised; and paragraphs (b)(3),

(d), and (e) are added to read as follows:

§ 660.336 Limited entry permits—sablefish

endorsement and tier assignment.

(a) * * *

(1) A sablefish endorsement with a

tier assignment will be affixed to the

permit and will remain valid when the

permit is transferred.

(2) A sablefish endorsement and its

associated tier assignment are not

separable from the limited entry permit,

and therefore may not be transferred

separately from the limited entry

permit.

(b) Endorsement and tier assignment

qualifying criteria. A sablefish

endorsement will be affixed to any

limited entry permit that meets the

sablefish endorsement qualifying

criteria and for which the owner

submits a timely application. Limited

entry permits with sablefish

endorsements will be assigned to one of

three different cumulative trip limit

tiers, based on the qualifying catch

history of the permit.

(1) Permit catch history will be used

to determine whether a permit meets the

qualifying criteria for a fixed gear

sablefish endorsement and to determine

the appropriate tier assignment for

endorsed permits. Permit catch history

includes the catch history of the

vessel(s) that initially qualified for the

permit, and subsequent catch histories

accrued when the limited entry permit

or permit rights were associated with

other vessels. The catch history of a

permit also includes the catch of any

interim permit held by the current

owner of the permit during the appeal

of an initial NMFS decision to deny the

initial issuance of a limited entry

permit, but only if the appeal for which
Federal Register / Vol. 63, No. 77 /Wednesday, April 22, 1998 / Proposed Rules 19887

an interim permit was issued was lost

by the appellant, and the owner’s

current permit was used by the owner

in the 1995 limited entry sablefish

fishery. The catch history of an interim

permit where the full ‘‘A’’ permit was

ultimately granted will also be

considered part of the catch history of

the ‘‘A’’ permit. If the current permit is

the result of the combination of multiple

permits, then for the combined permit

to qualify for an endorsement, at least

one of the permits that were combined

must have had sufficient sablefish

history to qualify for an endorsement; or

the permit must qualify based on catch

occurring after it was combined, but

taken within the qualifying period. If

the current permit is the result of the

combination of multiple permits, the

catch history to be used in calculating

the tier assignment is the catch history

of the permit with the largest catch

history of those being combined,

together with any catch history (during

the qualifying period) of the combined

permit. Only sablefish catch regulated

by this part that was taken with longline

or fish trap (or pot) gear will be

considered for this endorsement.

Sablefish harvested illegally or landed

illegally will not be considered for this

endorsement.

* * * * *

(3) Only limited entry, fixed gear

permits with sablefish endorsements

will receive cumulative trip limit tier

assignments. The qualifying criteria for

Tier 1 are: At least 898,000 lb (406,794

kg) cumulative round weight of

sablefish caught with longline or trap

(or pot) gear over the years 1984 through

1994. The qualifying criteria for Tier 2

are: At least 411,000 lb (186,183 kg), but

no more than 897,999 lb (406,793 kg)

cumulative round weight of sablefish

caught with longline or trap (or pot) gear

over the years 1984 through 1994. Fixed

gear permits with less than 411,000 lb

(186,183 kg) cumulative round weight of

sablefish caught with longline or trap

(or pot) gear over the years 1984 through

1994 qualify for Tier 3. All catch must

be sablefish managed under this part.

Sablefish taken in tribal set aside

fisheries does not qualify.

(c) Issuance process for sablefish

endorsements. (1) The SFD has notified

each limited entry, fixed gear permit

holder by letter of qualification status

whether Pacific States Marine Fisheries

Commission’s Pacific Fisheries

Information Network (PacFIN) records

indicate that his or her permit qualifies

for a sablefish endorsement. A person

who has been notified by the SFD by

letter of qualification status that his or

her permit qualifies for a sablefish

endorsement will be issued a revised

limited entry permit with a sablefish

endorsement if, by November 30, 1998,

that person returns to the SFD the

endorsement application and pays the

one-time processing fee. No new

applications for sablefish endorsements

will be accepted after November 30,

1998.

* * * * *

(d) Issuance process for tier

assignments. (1) The SFD will notify

each owner of a limited entry permit

with a sablefish endorsement, by letter

of qualification status, of the tier

assignment for which his or her permit

qualifies, as indicated by PacFIN

records. The SFD will also send to the

permit owner a tier assignment

certificate.

(2) If a permit owner believes there is

sufficient evidence to show that his or

her permit qualifies for a different tier

than that listed in the letter of

qualification status, that permit owner

must, within 30 days of the issuance of

the SFD’s letter of qualification status,

submit information to the SFD to

demonstrate that the permit qualifies for

a different tier. Section 660.333(d) sets

out the relevant evidentiary standards

and burden of proof.

(3) After review of the evidence

submitted under paragraph (d)(2) of this

section, and any additional information

the SFD finds to be relevant, the SFD

will notify a permit owner whether the

evidence submitted is sufficient to alter

the initial tier assignment. If the SFD

determines the permit qualifies for a

different tier, the permit owner will be

issued a revised tier assignment

certificate once the initial certificate is

returned to the SFD for processing.

(4) If a permit owner chooses to file

an appeal of the determination under

paragraph (d)(3) of this section, the

appeal must be filed with the Regional

Administrator within 30 days of the

issuance of the letter (at paragraph (d)(3)

of this section). The appeal must be in

writing and must allege facts or

circumstances, and include credible

evidence demonstrating why the permit

qualifies for a different tier assignment.

The appeal of a denial of an application

for a different tier assignment will not

be referred to the Council for a

recommendation under § 660.340(e).

(5) Absent good cause for further

delay, the Regional Administrator will

issue a written decision on the appeal

within 30 days of receipt of the appeal.

The Regional Administrator’s decision

is the final administrative decision of

the Department of Commerce as of the

date of the decision.

(e) Tier assignment certificates. For

the 1998 season only, permit holders

with sablefish endorsements will be

issued certificates of tier assignment

that are to be kept with and are

considered part of their limited entry

permits. When limited entry permit

holders renew their permits for 1999,

tier assignments for those limited entry

permit holders with sablefish

endorsements will be indicated directly

on the limited entry permit.

[FR Doc. 98–10726 Filed 4–21–98; 8:45 am]

BILLING CODE 3510–22–F