[Federal Register Volume 60, Number 40 (Wednesday, March 1, 1995)]
[Proposed Rules]
[Pages 11061-11065]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-5034]



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[[Page 11062]]

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 663

[Docket No. 950209046-5051-02; I.D. 011295D]
RIN 0648-AG82


Pacific Coast Groundfish Fishery; Modification of Nontrawl 
Sablefish Season

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS is publishing proposed regulations that would establish a 
new season structure for the nontrawl sablefish component of the 
Pacific Coast Groundfish limited entry fishery. The new regular season 
for the limited entry fishery would begin at noon August 6, each year, 
and both the limited entry and open-access fisheries would be required 
to remove all nontrawl gear from the water 72 hours prior to the start 
of the regular season. This rule is intended to promote the goals and 
objectives of the Pacific Coast Groundfish Fishery Management Plan 
(FMP) by providing an equitable opportunity for different types of 
nontrawl gear to harvest the limited entry nontrawl allocation for 
sablefish, to enhance vessel safety by avoiding a winter opening, to 
keep the fishery within the annual management target, and to minimize 
gear conflicts.

DATES: Comments must be submitted in writing by April 17, 1995.

ADDRESSES: Comments may be mailed to William Stelle, Jr., Director, 
Northwest Region, NMFS, 7600 Sand Point Way NE., BIN C15700, Seattle, 
WA 98115-0070; or Hilda Diaz-Soltero, Director, Southwest Region, NMFS, 
501 W. Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213. Information 
relevant to this proposed rule is available for public review during 
business hours at the Office of the Director, Northwest Region, NMFS, 
and at the Office of the Director, Southwest Region, NMFS. Copies of 
the Environmental Assessment/Regulatory Impact Review (EA/RIR) can be 
obtained from the Pacific Fishery Management Council (Council), 2000 SW 
First Avenue, Suite 420, Portland, OR 97201.

FOR FURTHER INFORMATION CONTACT: William L. Robinson at 206-526-6140, 
or Rodney R. McInnis at 310-980-4030.

SUPPLEMENTARY INFORMATION: NMFS is proposing this rule based on a 
recommendation of the Council, under the authority of the FMP and the 
Magnuson Fishery Conservation and Management Act (Magnuson Act). At its 
October 1994 meeting in San Francisco, CA, the Council recommended 
changes to the management of this fishery that are implemented by this 
rule. 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 is one of the most valuable species in the groundfish 
fishery off Washington, Oregon, and California (WOC). Since 1987, the 
annual sablefish harvest guideline has been allocated between the 
trawl-gear and nontrawl-gear fisheries. Historically, the trawl fishery 
has been managed with trip limits, which means the amount of fish that 
may be harvested during a fishing trip or set time period. Trip limits 
are imposed primarily in order to extend the fishery throughout most of 
the year. The nontrawl fishery, in contrast, has taken most of its 
allocation in an intense, open competition called the ``regular 
season,'' during which it operates without trip limits, except for 
limits on small sablefish (in 1995, trip limits are applicable to 
sablefish less than 22 inches (56 cm) total length). For 72 hours 
before and after the regular season, it is illegal to take and retain, 
possess or land groundfish caught with nontrawl gear. In recent years, 
the nontrawl fleet has operated under very restrictive trip limits 
(250-500 lb (113-227 kg) per day) outside of the ``regular season.'' 
The limited entry nontrawl fishery for sablefish involves two main gear 
types, pot (or trap) and longline, that compete for the nontrawl 
allocation. Although the pot and longline fisheries are operationally 
different, they do not have separate allocations.
    The first problem addressed by the Council was the increasing 
competition in the fishery. The sablefish resource is believed to be 
stable and close to the level that produces maximum sustainable yield 
(MSY), however, fishing effort, and thus competition, are increasing. 
The season length off WOC has declined from almost 5 months in 1990 to 
about 3 weeks in 1993 and 1994, and the industry is concerned about an 
even shorter season in 1995. Implementation of the limited entry 
program for groundfish off WOC in 1994 has not diminished the problem 
of increasing effort, because more vessels currently have limited entry 
permits than operated in the fishery in 1994. Also, in recent years 
fishermen have had to choose between concurrent fisheries off Alaska or 
off WOC. However, with the implementation of an Individual Fishing 
Quota (IFQ) system off Alaska in 1995, fishermen will be able to fish 
over a longer period in Alaska, and thus those with a limited entry 
permit for WOC will be able to operate in both the Alaska and WOC 
fisheries. Fishermen that operate more slowly than others, generally 
those with smaller vessels, or that do not also fish in Alaska, fear 
that they are losing opportunity during such short, intense seasons off 
WOC. In addition, in 1994, the nontrawl fishery exceeded its limited 
entry allocation by 28 percent, because of the difficulty of monitoring 
such an intense fishery during the season. If fishing effort increases 
as expected, it will be increasingly difficult to project landings 
accurately and keep them from exceeding the nontrawl allocation.
    A second problem is the starting date of the regular season. Under 
the current regulations (50 CFR 663.23(b)(2)(i)) (temporarily 
suspended, through September 1, 1995), the opening of the WOC season is 
linked to the first nontrawl sablefish season opening in the Gulf of 
Alaska under 50 CFR part 672, which occurs in May. Under the new IFQ 
program, governed by 50 CFR part 676, the Alaska season could start as 
early as March 1, 1995, which would cause the WOC fishery to open on 
February 26, 1995, preceded by a 72-hour closure on February 23. (50 
CFR part 672 is expected to be revised to clarify that the nontrawl 
sablefish opening date in the Gulf of Alaska is governed by part 676.) 
This early season is unacceptable to the industry for a number of 
reasons, particularly safety, but also because of price, quality of the 
fish, and alternative fishing opportunities. By separate rule, NMFS has 
temporarily amended 50 CFR 663.23(b)(2) to prevent the opening of the 
regular season in February, pending completion of this rulemaking to 
establish a new season structure.
    A third problem results from competition within the nontrawl 
fishery, between fishermen using pot and longline gear. Approximately 
21 pot vessels and 88 longline vessels operated in the limited entry 
sablefish fishery in 1994. The proportion of pot landings in the 
nontrawl sablefish fishery has varied widely in the last 12 years, from 
over 80 percent in 1983 to only 21 percent in 1992, and back up to 
about 40 percent in 1994. Increased production by the small pot fleet 
in recent years has been [[Page 11063]] caused at least in part by the 
way the current 72-hour closure before the regular season operates. The 
preseason closure affects the competing pot and longline operations in 
the following ways:
    1. Grounds preemption. The current regulation at 50 CFR 
663.23(b)(2)(ii) (temporarily suspended) prohibits taking and 
retaining, possessing, or landing sablefish during the 72-hour period 
before the start of the regular season, but does not prohibit leaving 
gear in the water. Most pot vessels cannot carry all their gear on 
board at one time without increasing safety risks. Consequently, pots 
often are stored unbaited in the water for long periods of time to 
avoid the cost and lost fishing time from making multiple trips to the 
fishing grounds to deploy gear. When the 72-hour closure was first 
recommended, the Council felt it was unreasonable to require pot 
fishermen to pull all their gear out of the water. However, this gave 
pot fishermen a distinct advantage, because longline gear cannot be set 
and left for several days without risking extreme tangling. This 
allowed pot fishermen to preempt the best grounds before longline gear 
could be deployed.
    2. ``Fair Start.'' A second issue is the different ability of the 
two gear types to start fishing before the beginning of the regular 
season. Baited pots can catch and hold live sablefish until the 72-hour 
closure has passed. This is legal under the current regulation as long 
as the pot has not been pulled and the fish retained. Hook-and-line 
gear, however, cannot be set much in advance of the regular season 
because sablefish caught with this gear are quickly attacked and 
destroyed by marine scavengers such as sand fleas. There is no simple 
solution without one gear type gaining an advantage over the other. 
According to the EA/RIR, pot vessels are slower in carrying and setting 
their gear, but thereafter have the potential to harvest more rapidly 
than most longline operations off WOC. If pot gear can be set and 
baited before the start of the regular season, however, the best 
grounds may be preempted and actual fishing started before longline 
gear can be deployed. If pot gear cannot be set before the start of the 
regular season, it may be preempted by longline gear that can be set 
more quickly.
    3. Enforceability. In the past, the Council felt there was no point 
in prohibiting baiting gear during the 72-hour closure because there 
was inadequate at-sea presence to enforce such a restriction. 
Enforcement of the closure was further complicated by implementation of 
the limited entry program in 1994, which exempted open-access nontrawl 
gear from the 72-hour closures. Limited entry vessels could circumvent 
the intent of the regulation by operating with nontrawl gear for which 
they had no limited entry endorsement (50 CFR 663.33(a)). Furthermore, 
enforcement agents could not easily discern by aerial surveillance 
which vessels and gear were open-access and which were limited entry.
    The above-described problems prompted the Council to rethink its 
approach to nontrawl sablefish management. The Council's 
recommendations to resolve these problems, and rationale to the 
solutions are summarized below.

Delaying the Regular Season to August 6

    The August 6 date was selected for reasons of safety, price of 
fish, and alternative fishing opportunities. It was selected primarily 
for the best weather along the coast (see the EA/RIR). Rough weather in 
late February makes fishing unsafe along much of the coast. The best 
time of year varies by location. According to the EA/RIR, late summer 
is the least windy period coastwide, and perhaps provides the safest 
fishing conditions. Initially the Council recommended August 15, and 
then shifted it 1 week earlier to avoid the August 1995 Council 
meeting. The Council did not select the first of the month in order to 
avoid gear conflicts with the deepwater trawl fishery (for sablefish, 
Dover sole, and thornyheads), because trawl effort may be greater at 
the beginning of that fishery's cumulative monthly period. This delay 
in the regular season would not reduce effort by vessels able to 
operate in both the Alaska and WOC fisheries. In fact, an August date 
may increase effort, because vessels previously discouraged by bad 
winter weather may be able to operate in the summer. Also, in August 
larger sablefish would be available to the fishery; larger sablefish 
generally yield a higher price and therefore are more desirable to the 
fleet. Neither a late February opening of the regular season during the 
winter spawning period, nor an opening at any other time of year, would 
have more than a negligible impact on recruitment of sablefish.
    August is also the preferred month from the standpoint of 
maximizing various fishing opportunities off WOC. Sablefish pot vessels 
may also participate in the Dungeness crab fishery, which usually 
occurs from December into March, and the shrimp fishery, which 
generally begins in April off WOC, and continues at a high level 
through June or July. Hook-and-line vessels also may participate in 
salmon fisheries. Salmon fisheries traditionally start in May and peak 
in June and July; the status of these fisheries in 1995 is not yet 
known. Albacore fishing, also conducted by hook-and-line vessels, peaks 
in summer as well, and may coincide with the August regular season. The 
Pacific halibut fishery, also conducted by hook-and-line vessels, 
occurs in June/July.

New Season Structure with a ``Mop-up'' Fishery

    Because projecting landings accurately during the regular season 
will be extremely difficult, particularly if effort increases 
substantially as expected, the Council recommended that the regular 
season end when approximately 70 percent of the nontrawl gear 
allocation has been harvested. The remaining 30 percent would be set 
aside as a buffer to keep landings from exceeding the nontrawl 
allocation and the sablefish harvest guideline.
    The Council also recommended that about 3 weeks after the end of 
the regular season, when the amount of the landed catch has been 
confirmed, the remainder of the nontrawl allocation be released for 
harvest in a ``mop-up'' fishery of 1 month or less, with all limited 
entry vessels subject to the same cumulative trip limit. By applying a 
cumulative limit, each vessel would have the opportunity to take the 
same amount and the mop-up fishery would occur at a more orderly and 
manageable pace. This would make it more likely that the nontrawl 
allocation would not be exceeded. It also would accommodate those 
fishermen who prefer to operate at a slower pace without the rush of 
the ``first come, first serve'' competition that defines the regular 
season. Establishing a mop-up fishery is particularly supported by 
those fishermen who prefer receiving a guaranteed equal share rather 
than the open competition of the regular season. The reserve could be 
less than 30 percent of the nontrawl allocation, or the mop-up fishery 
may not occur at all, if landings during the regular season are higher 
than expected. Sablefish landings before and after both the regular 
season and mop-up fishery would be expected to be negligible under the 
small trip limits recommended by the Council (300 lb or 136 kg per day 
north of 36 deg.00' N. lat. and 350 lb or 159 kg per day south of 
36 deg.00' N. lat.) in 1995 (60 FR 2331, January 9, 1995).
    The actual level of the cumulative trip limit during the mop-up 
fishery would be determined in-season by NMFS, in consultation with the 
Council's [[Page 11064]] Groundfish Management Team, primarily by 
dividing the remainder of the nontrawl allocation by the number of 
vessels expected to participate. The trip limit and season dates would 
be announced in the Federal Register.

Closed Periods Before and After the Regular Season

    The Council and its subcommittees considered a wide range of 
options (described in the EA/RIR) before recommending the following 
changes to the closed period before the regular season. In recognition 
of pot gear's ability to hold live sablefish for the 72-hour period, 
and the difficulty of enforcing a closure if the open-access fishery 
deploys its gear during this period, the Council recommended that all 
groundfish nontrawl gear, limited entry and open-access, be out of the 
water 72 hours before the start of the regular season. Acknowledging 
the difficulty and cost of transporting and setting pot gear, the 
Council also recommended that pot gear could legally be deployed, and 
baited, 24 hours before the regular season. However, as in past years, 
no sablefish could be retained, possessed, or landed during the 72-hour 
closure.
    The 1995 annual groundfish management measures establish trip 
limits for groundfish that are incidentally caught in the open-access 
fishery by vessels using trawl or pot gear to fish for pink shrimp, or 
spot and ridgeback prawns. These limits are 1,500 pounds (680 kg) of 
groundfish per day while fishing for pink shrimp (multiplied by the 
total number of days in the fishing trip), and 1,000 pounds (454 kg) of 
groundfish per trip while fishing for spot and ridgeback prawns. The 
proposed rule would prohibit setting nontrawl gear (sablefish pot gear) 
that is used to take and retain groundfish during a closed period 
preceding the beginning of the regular sablefish season. As applied to 
the pink shrimp and spot and ridgeback prawn fisheries, it would permit 
pot vessels to set their gear provided that no groundfish is retained 
or landed during the 72-hour period.
    Under the new structure the States of Oregon and Washington are 
expected to continue the practice of inspecting vessel holds prior to 
the start of the regular season to prevent stockpiling of fish. The 
State of California would rely on shore inspections and at-sea 
boardings to accomplish the same, but would not require a hold 
inspection of all vessels before the regular season in 1995.
    The Council also decided that a closed period is no longer needed 
at the end of the regular season. Initially, it was thought that a 72-
hour closure at the end of the season would be needed to tally catch 
data and to facilitate enforcement. However, experience has shown that 
catch data cannot be verified in only 72 hours, and the closure has not 
helped enforcement. Therefore, the end of the regular season would be 
marked by reimposition of small trip limits. The Council confirmed 
that, as in other groundfish fisheries, a vessel would have to initiate 
offloading its catch before the effective time of any closure or 
reduced trip limit.
    The Council also recommended that the regular season end at noon 
rather than midnight, so that enforcement agents can more easily 
observe vessel activity and so that processing plants need not be open 
through the night. The Council was silent as to the starting times of 
the regular and mop-up fisheries, and the ending time of the mop-up 
fishery. NMFS has decided to propose noon as the effective time for all 
these events as well, for the same reasons.
    Closed periods are probably not needed before the mop-up fishery, 
because there would be no particular disadvantage to the fleet if a 
vessel deployed gear before the fishery began. No vessel could land 
more than the small daily trip limit until the mop-up fishery started, 
and the amount that could be taken by each vessel during the mop-up 
fishery would be controlled by the cumulative trip limit. Grounds 
preemption by pot gear in the mop-up fishery would not be expected to 
any great extent, because much less gear would be deployed by high-
capacity vessels under a cumulative trip limit. In addition, the 
grounds would become available as vessels complete their limit. The 
rush to the grounds should be less intense, because each vessel would 
have about a month to take its equal share.

Biological Impacts

    Biological impacts would be expected to be negligible. The 
sablefish acceptable biological catch (ABC) and harvest guideline would 
not be affected by this action, except to the extent that catch 
overages are avoided. Also, a delay of the fishery until August would 
result in fewer fish being taken to attain the quota, and therefore an 
increased biomass over time.

Socio-Economic Impacts

    The distribution of catch would be expected to shift somewhat from 
pot to longline landings, because the pot fishermen would get less of a 
head start on the fishery. Although most of the pot fishery originates 
in Oregon, Oregon would not necessarily be hurt by this rule because 
longline fishermen along the coast, including Oregon, would be expected 
to benefit from the fair start. NMFS has considered costs to the 
limited entry and open-access fleets and believes that, while the cost 
is expected to be greatest for pot vessels, overall costs to the 
longline and pot fleets would be minimal.

Classification

    The Assistant Administrator for Fisheries, NOAA, (AA) has initially 
determined that this action is consistent with the FMP and the national 
standards and other provisions of the Magnuson Act.
    This proposed rule has been determined to be not significant for 
the purposes of E.O. 12866.
    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce certified to the Chief Counsel for Advocacy of 
the Small Business Administration that this proposed rule, if adopted, 
would not have a significant economic impact on a substantial number of 
small entities. The socio-economic impacts are discussed above and 
contained in the EA/RIR. In summary, NMFS has considered costs to the 
limited entry and open-access fleets and believes that, while the costs 
are expected to be somewhat greater for pot vessels, overall costs to 
the longline and pot fleets would be minimal. As a result, a regulatory 
flexibility analysis was not prepared.

List of Subjects in 50 CFR Part 663

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: February 23, 1995.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 663 is 
proposed to be amended as follows:

PART 663--PACIFIC COAST GROUNDFISH FISHERY

    l. The authority citation for part 663 continues to read as 
follows:

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

    2. In Sec. 663.23 paragraph (b)(2) is revised to read as follows:


Sec. 663.23  Catch restrictions.

* * * * *
    (b) * * *
    (2) Nontrawl sablefish. This paragraph (b)(2) applies to vessels 
using nontrawl gear in the limited entry fishery, except for paragraphs 
(b)(2)(i) and (v), which [[Page 11065]] also apply to vessels in the 
open-access fishery. All times are local times.
    (i) Pre-season closure--Open-access and limited entry fisheries.
    (A) Sablefish taken with nontrawl gear in the limited entry or open 
access fishery in the EEZ may not be retained or landed from noon 
August 3 through noon August 6.
    (B) All nontrawl gear used to take and retain groundfish must be 
out of EEZ waters from noon August 3 through noon August 6, except that 
pot gear used to take and retain groundfish may be deployed and baited 
in the EEZ after noon on August 5.
    (ii) Regular season--Limited entry fishery. The regular season for 
the limited entry nontrawl sablefish fishery begins at 1201 hours on 
August 6. 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.
    (iii) Mop-up season--Limited entry fishery. A mop-up season to take 
the remainder of the limited entry nontrawl allocation will begin about 
3 weeks after the end of the regular season, or as soon as practicable 
thereafter. During the mop-up fishery, cumulative trip limits will be 
imposed. The length of the mop-up season and amount of the cumulative 
trip limit, including the time period to which it applies, will be 
determined by the Regional Director in consultation with the Council or 
its Groundfish Management Team, and will be based primarily on the 
amount of fish remaining in the allocation and the number of 
participants anticipated. The Regional Director 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.
    (iv) The dates that the regular season ends (and trip limits on 
sablefish of all sizes are resumed) and 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.
    (v) 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 (c) 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 (c) of this 
section. Trip limits may be imposed in the open-access fishery at any 
time under paragraph (c) of this section.
[FR Doc. 95-5034 Filed 2-28-95; 8:45 am]
BILLING CODE 3510-22-F