[Federal Register Volume 62, Number 3 (Monday, January 6, 1997)]
[Proposed Rules]
[Pages 700-720]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-33402]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 600 and 660
[Docket No. 961227373-6373-01; I.D. 122096B]
RIN 0648-XX78
Magnuson Act Provisions; Foreign Fishing; Fisheries off West
Coast States and in the Western Pacific; Pacific Coast Groundfish
Fishery; Annual Specifications and Management Measures
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: 1997 groundfish fishery specifications and management measures;
tribal whiting allocation; announcement of exempted fishing permits;
request for comments.
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SUMMARY: NMFS announces the 1997 fishery specifications and management
measures for groundfish taken in the U.S. exclusive economic zone (EEZ)
and state waters off the coasts of Washington, Oregon, and California,
as authorized by the Pacific Coast Groundfish Fishery Management Plan
(FMP). The specifications include the level of the acceptable
biological catch (ABC) and harvest guideline (HG), including the
distribution between domestic and foreign fishing operations. The HGs
are allocated between the limited entry and open access fisheries. The
management measures for 1997 are designed to keep landings within the
HGs, for those species for which there are HGs, and to achieve the
goals and objectives of the FMP and its implementing regulations. The
intended effect of these actions is to establish allowable harvest
levels of Pacific Coast groundfish and to implement management measures
designed to achieve but not exceed those harvest levels, while
extending fishing and processing opportunities as long as possible
during the year. This action also announces issuance of exempted
fishing permits (EFPs) in 1996 and applications for exempted fishing
permits in 1997.
DATES: Effective 0001 hours (local time) January 1, 1997, until the
1998 annual specifications and management measures are effective,
unless modified, superseded, or rescinded. The 1998 annual
specifications and management measures will be published in the Federal
Register. Comments on the 1997 annual specifications and management
measures will be accepted until February 5, 1997.
ADDRESSES: Comments on these specifications and management measures,
tribal whiting allocation, and EFPs should be sent to Mr. William
Stelle, Jr., Administrator, Northwest Region, National Marine Fisheries
Service, 7600 Sand Point Way N.E., BIN C15700, Bldg. 1, Seattle, WA
98115-0070; or Ms. Hilda Diaz-Soltero, Administrator, Southwest Region,
National Marine Fisheries Service, 501 West Ocean Blvd., Suite 4200,
Long Beach, CA 90802-4213. Information relevant to these specifications
and management measures, including the stock assessment and fishery
evaluation (SAFE) report, has been compiled in aggregate form and is
available for public review during business hours at the office of the
Administrator (formerly Director), Northwest Region, NMFS (Regional
Administrator), or may be obtained from the Pacific Fishery Management
Council (Council), by writing the Council at 2130 SW Fifth Avenue,
Suite 224, Portland, OR 97201.
FOR FURTHER INFORMATION CONTACT: William L. Robinson (Northwest Region,
NMFS) 206-526-6140; or Rodney R. McInnis (Southwest Region, NMFS) 310-
980-4040.
SUPPLEMENTARY INFORMATION: The FMP requires that fishery specifications
for groundfish be evaluated each calendar year, that HGs or quotas be
specified for species or species groups in need of additional
protection, and that management measures designed to achieve the HGs or
quotas be published in the Federal Register and made effective by
January 1, the beginning of the fishing year. This action announces and
makes effective the final 1997 fishery specifications and the
management measures designed to achieve them. These specifications and
measures were considered by the Council at two meetings and were
recommended to NMFS by the Council at its October 1996 meeting in San
Francisco, CA. NMFS received three public comments regarding the
allocation of Pacific whiting (whiting) to the Makah Indian tribe prior
to the publication of these specifications. These comments are
addressed in paragraph V. Regulatory citations have been changed
throughout this document to conform with the nationwide consolidation
of Pacific and Western Pacific fisheries regulations at 50 CFR part 600
and part 660.
I. Final Specifications
The fishery specifications include ABCs, the designation of HGs or
quotas for species that need individual management, the apportionment
of the HGs or quotas between domestic and foreign fisheries, and
allocation between the open access and limited entry segments of the
domestic fishery. As in the past, the specifications include fish
caught in state ocean waters (0-3 nautical miles (nm) offshore) as well
as fish caught in the EEZ (3-200 nm offshore). Only changes to the
specifications between 1996 and 1997 are discussed herein, otherwise
they are the same as announced in 1996 (61 FR 279, January 4, 1996).
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Changes to the ABCs and HGs
The ABCs, which are based on the best available scientific
information, represent the total catch, including amounts that are
discarded as well as retained. Stock assessment information considered
in determining the ABCs is available from the Council, and was made
available to the public, before the Council's October 1996 meeting, in
the Council's SAFE document (see ADDRESSES). The 1997 ABCs are changed
from 1996 for Pacific whiting, the Sebastes complex, bocaccio, canary
rockfish, and yellowtail rockfish. New ABCs were developed for
``remaining rockfish'' and for a new category of ``other rockfish.''
Changes that result only from rounding are not explained.
Those species or species groups managed with HGs in 1996 will
continue to be managed with HGs in 1997. The 1997 HGs differ from 1996
for Pacific whiting, shortspine thornyheads, the Sebastes complex,
yellowtail rockfish, bocaccio, and canary rockfish.
Stock assessments and inseason catch monitoring are designed to
account for all fishing mortality, including that resulting from fish
discarded at sea. Discards of rockfish and sablefish in the fishery for
whiting are well monitored and are accounted for inseason as they
occur. In the other fisheries, discards caused by trip limits have not
been monitored consistently, so discard estimates have been developed
to account for this extra catch. A discard level of about 16 percent of
the total catch, previously measured for widow rockfish in a scientific
study, is assumed to be appropriate for the commercial fisheries for
widow rockfish, yellowtail rockfish, canary rockfish, and Pacific ocean
perch (POP). A discard estimate of 8 percent is used for the deepwater
thornyhead fishery, 5 percent for Dover sole, and 20 percent for
sablefish.
In some cases (e.g., sablefish, widow rockfish, thornyheads, Dover
sole), an estimated amount of discards has been subtracted from the ABC
to determine the HG for the landed catch. In other cases (e.g.,
whiting, Sebastes complex), a HG representing total catch is more
appropriate. Discards in the whiting fishery have been well documented
and, therefore, the HG for whiting represents total catch and discards
are accounted for during the season. In 1996, the HG for the Sebastes
complex included only landings to be consistent with most of the other
groundfish HGs. However, using HGs based only on landed catch was too
rigid because it did not provide for inseason adjustments, a particular
problem when actual reports of discards during the season differed from
the amount assumed at the beginning of the year. Therefore, for greater
management flexibility during the season, HGs for the Sebastes complex
and its components in 1997 will include the total catch, and estimates
of discards will be added to the landings during the season.
The 1997 changes to the ABCs and HGs are summarized below. More
detailed information appears in the Council's SAFE document (September
1996), the ``Groundfish Management Team Final Acceptable Biological
Catch and Harvest Guideline Recommendations for 1997'' (GMT Report
C.4.) from the October 1996 Council meeting, and the Council's
newsletters for its August and October 1996 meetings.
Whiting
A new stock assessment for whiting indicated that the 1994 year
class was larger than previously expected. This, combined with
substantive changes in the stock assessment model, resulted in an ABC
of 290,000 mt for the U.S. and Canada combined, 25,000 mt higher than
in 1996. Nonetheless, this ABC may be somewhat conservative. Another
year of data is needed to verify whether the apparent high abundance of
the 1994 year class is due to an actual increase in fish, rather than a
shift in their distribution to more northern waters. Other factors
considered in setting the ABC were promoting stability in landings by
distributing the harvest of strong year classes over several years and
the need to suppress the bycatch of yellowtail rockfish at a time when
that fishery is facing a major reduction in its ABC. The U.S. HG
(232,000 mt) is set at 80 percent of the U.S.-Canadian ABC, as in
recent years. Allocation to the Makah treaty Indian tribe in 1997 is
discussed in paragraph V.
Pacific Ocean Perch (POP)
Since 1981, POP has been managed under a schedule intended to
rebuild POP to a level that would annually support removals of 1,000
mt. Landings were higher than this as recently as 1993. To achieve an
annual harvest of about 1,000 mt while maintaining a biologically sound
harvest rate, the current biomass would have to double. This would be a
slow process unless there is a fortuitous sequence of large
recruitments. The harvest guideline for POP is meant to accommodate
only small, incidental catches and, therefore, is not a target to be
achieved deliberately. Trip limits for POP will not be increased to
achieve the harvest guideline, and may be reduced if landings are too
high. The harvest guideline of 750 mt for POP is the same as last year.
Shortspine Thornyheads
The ABC for shortspine thornyheads is the same as in 1996, but the
HG is reduced from 1,500 mt to 1,380 mt to more accurately represent
the landed catch.
Sebastes Complex
The ABCs for the Sebastes complex are the sum of the ABCs of its
components. The HGs (for total catch) are the sum of the HGs for each
species or of the ABCs for those species without HGs. The 1997 HG for
the Sebastes complex in the Vancouver/Columbia area is reduced from
11,900 mt for landed catch in 1996 to 7,130 mt for total catch in 1997.
The 1997 HG for the Sebastes complex in the Eureka/Monterey/Conception
area is reduced from 13,200 mt for landed catch in 1996 to 9,664 mt for
total catch in 1997. The large declines are due primarily to large
reductions in the ABCs and HGs for bocaccio, yellowtail rockfish, and
also to new ABC estimates for the ``remaining rockfish'' and ``other
rockfish'' categories.
Bocaccio
The 1997 ABC for bocaccio in the Eureka/Monterey/Conception area is
265 mt, only 15 percent of the 1,700-mt ABC in 1996. (Landings were
projected at 454 mt for 1996, so the reduction in ABC, while severe, is
not as extreme as it appears.) The new stock assessment indicates it is
unlikely that the current stock size is greater than 17-20 percent of
the 1970 level but also suggests a high degree of uncertainty in
current stock size. Recruitment is highly variable for bocaccio.
Assuming that future recruitment will be similar to that in 1969-1996,
the level of fishing mortality that would produce spawning biomass at
35 percent of its unfished level (F35%) is 265 mt. The 1997 HG (for
total catch) is 387 mt, 122 mt higher than ABC, and at, but not above,
the overfishing threshold for bocaccio. The Council recommended that
the bocaccio HG be set above ABC in 1997 to allow a 1-year phase-down
to mitigate the economic impacts of a 60 percent reduction in catch in
1 year (from 664 mt to 265 mt). The consequences of the phase-down are
that the ABC and HG in 1998, and possibly subsequent years, most likely
will be lower than they would have been if 1997 catches did not exceed
ABC. The Council intends that the HG be set equal to ABC in 1998.
Bocaccio also are particularly difficult to manage, because of the
multiplicity of gear types involved, including trawl, set
[[Page 709]]
net and recreational fisheries. The 2-month cumulative trip limit in
the limited entry fishery is substantially reduced from 60,000 lb
(27,216 kg) in 1996 to 12,000 lb (5,443 kg) in 1997. Additional trip
limits specific to bocaccio have been placed on the open access fishery
in 1997. Bycatch of rockfish in the shrimp and prawn trawl fisheries is
being addressed by reducing the groundfish trip limits to 500 lb (227
kg) in 1997, one third of the 1996 shrimp trip limit and one half of
the 1996 prawn trip limit.
Canary Rockfish
The 1997 ABC for canary rockfish in the Vancouver/Columbia area is
1,220 mt, slightly higher than the 1,000-mt ABC in 1996. A new
assessment for canary rockfish used two models that estimate the 1995
spawning biomass is 18-33 percent of the 1967 value. Both models
predict yield and spawning biomass levels will decline during 1997-
1999. For both models combined, the average catch projection for the
next 3 years is 1,220 mt when average recruitment is assumed. The HG
for canary rockfish is increased from 850 mt for landed catch in 1996
to 1,000 mt for total catch in 1997 to account for estimated discards.
Yellowtail Rockfish
The 1997 ABC for yellowtail rockfish in the Vancouver/Columbia/
Eureka area is 1,773 mt, 4,667 mt lower than the 6,440-mt ABC in 1996.
(The stock assessment determined ABCs for different areas. The 1997 ABC
is prorated in Table 1 to apply north and south of the Columbia-Eureka
boundary for consistency with other species in the Sebastes complex.)
The results of the new assessment have caused a great deal of concern
because they conflict with the impressions of many who fish for
yellowtail rockfish. For the Eureka/south Columbia area (south of Cape
Falcon (45 deg.46' N. lat.)), addition of 1995-96 stock assessment data
resulted in substantial reductions in estimates of biomass and
recruitment of the 1984 year class in 1988 (to 20 percent of its former
level). For the north Columbia area (north of Cape Falcon), addition of
the 1995-96 data also reduced estimates of biomass and recruitment.
Major changes did not occur in the U.S. Vancouver area. Available
fishery age-composition data indicate that fish older than 25 years
have all but disappeared from the fishery. Additionally, there is no
evidence of any strong incoming year classes. Only half the population
is mature 3 or 4 years after recruiting to the fishery, so immature
fish have a relatively high likelihood of being caught before they have
had an opportunity to contribute to building future biomass. Given this
new information, it appears that yellowtail rockfish may have been
fished for the last several years above the overfishing threshold.
The recommended 1997 HG of 2,762 mt for yellowtail rockfish in the
Vancouver/Columbia area represents total catch, whereas the 3,590-mt HG
in 1996 was for landed catch (equivalent to 4,160 mt for total catch).
The Council recommended that the 1997 HG be set at, but not above, the
overfishing threshold. Fishing is allowed at, but not above, the
overfishing threshold of 2,762 mt in 1997 in order to mitigate the
sudden and severe economic impact to the fishing industry that would
occur if the HG were reduced from the 1996 ABC of 6,440 mt to the 1997
ABC of 1,773 mt in a single year. The Council recognized, however, the
need to adjust catches to the ABC level as soon as possible, and
consequently, announced its intent that this phase-down in harvest last
only a single year and that it intended to recommend a 1998 HG
equivalent to the 1998 ABC. Fishing at the overfishing threshold for
1997 is expected to result in a lower ABC and HG in 1998 than if the
1997 harvest did not exceed ABC, but the fishing industry will have had
a full year to adjust to reduced harvest levels.
The Council carefully considered the possible impacts of continuing
to harvest at a level greater than ABC for 1 more year in contrast to
making the full adjustment to the ABC level in a single year. The
Council concluded, based on risk analysis conducted by the stock
assessment scientists, that the 1-year phase-down will cause only a
small further decline in the stock level while it buffers the economic
impact of the harvest reductions. Lower stock levels means the
likelihood of continued lower ABCs and HGs for the next few years until
the stock recovers sufficiently to allow higher harvests. The Council
also recommended the phase-down to allow sufficient time for further
analysis of some of the components of the stock assessment in order to
refine estimates of the ABC for 1998. Considerable public testimony
pointed to some indicators, such as yellowtail bycatch rates in the
whiting and shrimp trawl fisheries, that were contradictory to the
stock assessment results. A work plan was developed to examine some of
these indicators and redo the stock assessment during the upcoming year
so that the results could be used to set the 1998 ABC.
Yellowtail rockfish is particularly difficult to manage because it
is encountered as bycatch in other fisheries. A substantial portion of
the yellowtail harvest guideline is taken as bycatch in the whiting and
shrimp fisheries. Catch data from the whiting fishery have been
examined, and regulatory changes to reduce bycatch are not obvious. The
whiting ABC may be somewhat conservative in 1997, in part to suppress
the bycatch of yellowtail rockfish. The at-sea processing sector of the
whiting fishery has agreed to monitor its bycatch more closely, using
daily satellite transmissions to alert them to areas of high bycatch of
yellowtail rockfish, as was done to monitor salmon bycatch in 1996.
Bycatch of rockfish in the shrimp and prawn trawl fisheries is being
addressed by reducing the groundfish trip limits to 500 lb (227 kg) in
1997, one third of the 1996 shrimp trip limit and one half of the 1996
prawn trip limit. The target fishery for yellowtail rockfish is
addressed by reducing the trip limit, from 6,000 lb (2,722 kg) per
month north of Cape Lookout OR (45 deg.20'15'' N. lat.) and 35,000 lb
per month between Cape Lookout and Cape Mendocino CA (40 deg.30' N.
lat.) to 6,000 lb (2,722 kg) per 2-month period in both areas.
Remaining Rockfish
New assessments were provided for a number of previously unassessed
rockfish species (listed in table 1). ``Remaining rockfish'' includes
canary, POP, and yellowtail rockfish in the Eureka/Monterey/Conception
area, and bocaccio in the Vancouver/Columbia area--areas not included
in the individual HGs for these species. The ABCs were based on either
the ABC from the assessment or recent catch, whichever is less.
Other Rockfish
Assessments were not conducted for a number of other rockfish
species (``other rockfish''). The combined ABC for these species is set
at the recent landed catch.
Setting HGs Greater Than ABC
In most cases, HGs are less than or equal to the ABCs. However, the
Council recommended HGs that exceed the ABCs for POP and shortspine
thornyheads (as in 1996), yellowtail rockfish, and bocaccio. The FMP
requires that the Council consider certain factors when setting a HG
above an ABC. These factors were analyzed by the Council's Groundfish
Management Team (GMT) and considered at the Council's October 1996
meeting before the Council recommended the 1997 HGs. These factors also
were considered when establishing the 20-year rebuilding schedule for
POP in the 1981
[[Page 710]]
FMP, in the most recent stock assessments for POP (in the September
1995 SAFE document) and shortspine thornyheads (in the October 1994
SAFE document), and in the GMT's recommendations for 1996 (GMT Report
C.1., October 1995) and for 1997 (GMT Report C.4., October 1996).
Overfishing
The FMP defines ``overfishing'' as a fishing mortality rate that
would, in the long term, reduce the spawning biomass per recruit below
20 percent of what it would have been if the stock had never been
exploited (unless the species is above the level that would produce
maximum sustainable yield (MSY)). The rate is defined in terms of the
percentage of the stock removed per year. Therefore, high catch rates
can cause overfishing at any stock abundance level. Conversely,
overfishing does not necessarily occur for stocks at low abundance
levels if the catch can be kept to a sufficiently small fraction of
that stock level. The target rate for exploitation of Pacific Coast
groundfish typically is the rate that would reduce spawning biomass per
recruit to 35 percent of its unfished level. This desired rate of
fishing will always be less than the overfishing rate, so there is a
buffer between the management target and the level that could harm the
stock's long-term potential productivity. If the overfishing threshold
is reached, the Guidelines for Fishery Management Plans at 50 CFR part
600 require the Council to identify actions to be undertaken to
alleviate overfishing. As discussed above, efforts have been taken to
avoid exceeding the overfishing thresholds for bocaccio and yellowtail
rockfish in 1997 by reducing their HGs to the F20% level and by
instituting more restrictive trip limit management in 1997, that will
make it less likely that HGs will be reached before the end of the
year. In addition, the Council has expressed its intent to reduce the
HGs to the F35% level in 1998.
Foreign and Joint Venture Fisheries
For those species needing individual management that will not be
fully utilized by domestic processors or harvesters, and that can be
caught without severely affecting species that are fully utilized by
domestic processors or harvesters, foreign or joint venture operations
may occur. A joint venture occurs when U.S. vessels deliver their catch
to foreign processing vessels in the EEZ. A portion of the HGs or
quotas for these species may be apportioned to domestic annual harvest
(DAH), which in turn may be apportioned between domestic annual
processing (DAP) and joint venture processing (JVP). The portion of a
HG or quota not apportioned to DAH may be set aside as the total
allowable level of foreign fishing (TALFF). In January 1997, no surplus
groundfish are available for joint venture or foreign fishing
operations. Consequently, all the HGs in 1997 are designated entirely
for DAH and DAP (which are the same in this case); JVP and TALFF are
set at zero.
In the unlikely event that fish are reallocated inseason and a
foreign or joint venture fishery should occur, the incidental catch
levels would be as follows, subject to change during the year: For a
whiting fishery, the same as announced at Table 2, footnote 1, of 58 FR
2990 (January 7, 1993); for a jack mackerel joint venture, initially
the same as those suggested in section 12.5.2 of the FMP.
II. The Limited Entry Program
The FMP established a limited entry program that, on January 1,
1994, divided the commercial groundfish fishery into two components:
The limited entry fishery and the open access fishery, each of which
has its own allocations and management measures. The limited entry and
open access allocations are calculated according to a formula specified
in the FMP, which takes into account the relative amounts of a species
taken by each component of the fishery during the 1984-88 limited entry
window period. At its October 1996 meeting, the Council recommended the
species and areas subject to open access and limited entry allocations
in 1997, and the Regional Administrator calculated the amounts of the
allocations that are presented in Table 1. Unless otherwise specified,
the limited entry and open access allocations are treated as HGs in
1997.
Open Access Allocations
The open access fishery is composed of vessels that operated under
the HGs, quotas, and other management measures governing the open
access fishery, using (1) exempt gear, or (2) longline or pot (trap)
gear fished from vessels that do not have permits endorsed for use of
that gear. Exempt gear means all types of legal groundfish fishing gear
except groundfish trawl, longline, and pots. (Exempt gear includes
trawls used to harvest pink shrimp or spot or ridgeback prawns (shrimp
trawls), and, south of Point Arena, CA (38 deg.57'30'' N. lat.),
California halibut or sea cucumbers.)
The open access allocation is derived by applying the open access
allocation percentage to the annual HG or quota after subtracting any
set-asides for recreational or tribal fishing. For those species in
which the open access share would have been less than 1 percent, no
open access allocation is specified unless significant open access
effort is expected.
Limited Entry Allocations
The limited entry fishery means the fishery composed of vessels
using limited entry gear fished pursuant to the HGs, quotas, and other
management measures governing the limited entry fishery. Limited entry
gear means longline, pot, or groundfish trawl gear used under the
authority of a valid limited entry permit issued under the FMP, affixed
with an endorsement for that gear. (Groundfish trawl gear excludes
shrimp trawls used to harvest pink shrimp, spot prawns, or ridgeback
prawns, and other trawls used to fish for California halibut or sea
cucumbers south of Point Arena, CA.)
The limited entry allocation is the allowable catch (HG or quota)
reduced by: (1) Set-asides, if any, for treaty Indian fisheries or
recreational fisheries; and (2) the open access allocation. In 1996, a
new definition was added for ``commercial harvest guideline'', (the
commercial harvest guidelines are set forth in Table 1). It is the HG
minus the amount set aside for tribal or recreational fishing and,
therefore, is the number that, when multiplied by the open access
allocation percentages, provides the open access and limited entry
allocations. Estimates of recreational harvest are subtracted for two
species in 1997, 55 mt for bocaccio (which also is reflected in the
allocations for the Sebastes complex in the Eureka, Monterey, and
Conception subareas), and 900 mt for lingcod. Allocations for
Washington coastal tribal fisheries are discussed in paragraph V.
III. 1997 Management Measures
Projections of landings in 1996 are based on the information
available to the Council at its October 1996 meeting (GMT Supplemental
Report C.4., October 1996).
A. Limited Entry Fishery
The following management measures apply to vessels operating in the
limited entry fishery starting January 1, 1997, and are designed to
keep landings within the HGs or limited entry allocations. Cumulative
trip limits continue to be used for most of the limited entry fishery,
which allows fishers to accumulate fish over a period of time without
limit on the number of landings. Two-month cumulative limits
[[Page 711]]
will continue to be used for most of the limited entry fishery in 1997.
As in 1996, no more than 60 percent of a 2-month limit may be taken in
either calendar month, resulting in a variable monthly trip limit
within the 2-month limit. This enables the limited entry fleet to
maintain its current monthly fishing pattern, target on 50 percent of
the 2-month cumulative limit in a month, and have the protection of a
buffer equivalent to 10 percent of the 2-month cumulative limit to
account for inaccuracies in weighing fish at sea or for small amounts
caught above the target level. Unless otherwise announced later in the
year, the 2-month periods are: January-February, March-April, May-June,
July-August, September-October, and November-December. One-month
periods may be used later in the year.
Platooning
An optional platooning system is added for 1997, that enables the
limited entry trawl fleet to provide a more consistent supply of fish
to processors. Whereas the cumulative limits normally apply by calendar
month (this would be considered the ``A'' platoon), a vessel in the
``B'' platoon would choose to operate under limits out of phase by 2
weeks, from the 16th to the 15th of the month. All limited entry trawl
vessels will automatically be in the ``A'' platoon, unless the permit
owner indicated in the annual permit renewal that the permitted vessel
will participate in the ``B'' platoon. Vessels operating in the ``B''
platoon will not be able to land any species of groundfish from January
1-15, 1997. The effective date of any inseason changes to the
cumulative trip limits also will be delayed for 2 weeks for the ``B''
platoon so that a vessel's ``B'' limit will not be changed during its
cumulative trip limit period. Special provisions will be made to
accommodate ``B'' vessels at the end of the year so that the amount of
fish made available to both ``A'' and ``B'' vessels is the same. A
vessel in the ``B'' platoon will have the same cumulative trip limit
for the final period as vessels in the ``A'' platoon, but the final
period may be 2 weeks shorter, so that both the ``A'' and ``B'' fishing
periods end on December 31, 1997. For example, if the last period is a
2-month cumulative trip limit for November-December, the vessel would
be able to take it in 6 weeks (November 16-December 31) without a 60-
percent monthly limit. The choice of platoon applies to the permit for
the entire calendar year, even if the permit is sold, leased, or
otherwise transferred. The platoon system is experimental and may not
be continued in 1998 if the Council decides the benefit does not
outweigh the administrative burden.
Widow Rockfish
In 1996, the 2-month cumulative limit of 70,000 lb (31,752 kg) was
in effect until September, at which time it was reduced to 50,000 lb
(27,680 kg). In November, a monthly cumulative limit of 25,000 lb
(11,340 kg) was applied until the end of the year. Landings were
projected to be 6,275 mt in 1996, within 1 percent of the HG. In 1997,
the year will start with the same cumulative limits as in 1996: 70,000
lb (31,752 kg) per 2-month period.
The Sebastes Complex (Including Yellowtail Rockfish, Canary Rockfish,
and Bocaccio)
Beginning in January 1996, the 2-month cumulative trip limits for
the Sebastes complex were: 70,000 lb (31,752 kg) north of Cape Lookout
(45 deg.20'15'' N. lat.), 100,000 lb (45,359 kg) between Cape Lookout
and Cape Mendocino (40 deg.30' N. lat.), and 200,000 lb (90,719 kg)
south of Cape Mendocino. Two-month cumulative limits also applied to
yellowtail rockfish, canary rockfish and bocaccio, which counted toward
the limits for the Sebastes complex. Beginning in January 1996, these
limits were: Yellowtail rockfish--32,000 lb (14,515 kg) north of Cape
Lookout or 70,000 lb (31,752 kg) between Cape Lookout and Cape
Mendocino; canary rockfish--18,000 lb (8,165 kg); bocaccio south of
Cape Mendocino--60,000 lb (27,216 kg). These limits remained in effect
until September 1996, at which time the 2-month cumulative limit for
yellowtail was reduced to 20,000 lb (9,072 kg) north of Cape Lookout.
In November, all the trip limits for the Sebastes complex north of Cape
Mendocino were converted to 1-month cumulative limits to provide more
management flexibility. The 1-month limits were set at half the
poundage of the 2-month cumulative limits, except for yellowtail
rockfish north of Cape Lookout, which was reduced to 6,000 lb (2,722
kg).
By the end of 1996, landings are projected to be as follows:
Sebastes complex in the Vancouver/Columbia area--8,583 mt (19 percent
below the HG); yellowtail rockfish north of Cape Lookout--3,144 mt (5
percent over the HG), but this projection was made before the
cumulative limit was reduced in November 1996; yellowtail rockfish
south of Cape Lookout--1,621 mt (33 percent below the HG); canary
rockfish--868 mt (2 percent below the HG); and bocaccio--654 mt,
including estimated recreational catch (56 percent below the HG).
In January 1997, the 2-month cumulative trip limits for the
Sebastes complex are 30,000 lb (13,608 kg) north of Cape Mendocino and
150,000 lb (68,039 kg) south of Cape Mendocino. Within these limits, no
more than 14,000 lb (6,350 kg) may be canary rockfish; 6,000 lb (2,722
kg) may be yellowtail rockfish north of Cape Mendocino; and 12,000 lb
(5,443 kg) may be bocaccio south of Cape Mendocino. The yellowtail and
bocaccio cumulative trip limits are substantially reduced because of
severe reductions in their HGs. As discussed above, both yellowtail and
bocaccio will be fished at their overfishing threshold in 1997, as a 1-
year step down to fishing at F35%. Both species are particularly
difficult to manage because of the multiplicity of gear types involved.
A substantial portion of the yellowtail HG is taken as bycatch in the
whiting and shrimp fisheries. Catch data from the whiting fishery have
been examined, and regulatory changes to reduce bycatch are not
obvious. The whiting ABC may be somewhat conservative in 1997, in part
to suppress the bycatch of yellowtail rockfish. The at-sea processing
sector of the whiting fishery has agreed to monitor its bycatch more
closely, using daily satellite transmissions to alert them to areas of
high bycatch, as was done to monitor salmon bycatch in 1996. Bycatch of
rockfish in the shrimp and prawn trawl fisheries is being addressed by
reducing the groundfish trip limits from 1,500 lb (680 kg) and 1,000 lb
(454 kg), respectively, to 500 lb (227 kg) of groundfish in 1997.
Management of bocaccio is further complicated by a significant
recreational harvest; bag limit reductions may be necessary in the
future.
The declaration procedures, instituted by the States of Oregon and
Washington for vessels operating on both sides of Cape Lookout, are no
longer in effect because the cumulative limits no longer differ north
and south of Cape Lookout.
POP
In 1996, the 2-month cumulative trip limit for POP of 10,000 lb
(4,536 kg) continued until July 1, when it was reduced to 8,000 lb
(3,629 kg). Landings were projected to be 771 mt in 1996, 4 percent
above the HG. With the 1997 HG the same as in 1996, the 2-month
cumulative limit will be set again at 8,000 lb (3,629 kg) beginning in
January 1997. POP is managed to achieve a rebuilding schedule, so trip
limits will not be increased to achieve the HG.
[[Page 712]]
Sablefish
The sablefish HG is subdivided among several fisheries. The tribal
fishery allocation is set aside prior to dividing the balance of the HG
between the commercial limited entry and open access fisheries. These
three fisheries are managed differently. The limited entry allocation
is further subdivided into trawl (58 percent) and nontrawl (42 percent)
allocations. Trawl-caught sablefish are managed together with Dover
sole and thornyheads as the DTS complex because they often are caught
together. A projection for landings of nontrawl sablefish is not yet
available because data from the October mop-up fishery have not been
confirmed.
DTS Complex (Dover Sole, Thornyheads, and Trawl-Caught Sablefish)
In 1996, the 2-month cumulative trip limits for the DTS complex
remained in effect throughout the year, as follows: 70,000 lb (31,752
kg) north of Cape Mendocino and 100,000 lb (45,359 kg) south of Cape
Mendocino. Within the cumulative limits for the DTS complex there were
limits for Dover sole, thornyheads, and trawl-caught sablefish. The
cumulative limits for thornyheads (20,000 lb (9,072 kg), of which no
more than 4,000 lb (1,814 kg) could be shortspine thornyheads) and for
trawl-caught sablefish (12,000 lb (5,443 kg)) remained in effect the
entire year, as did the 500-lb (227-kg) ``per trip'' limit on sablefish
smaller than 22 inches (56 cm) total length. Initially, the limit on
Dover sole was the amount of the DTS cumulative limit remaining after
subtracting sablefish and thornyheads. In July, this was changed north
of Cape Mendocino to a specific trip limit of 38,000 lb (17,236 kg) to
protect Dover sole in the Columbia area. Landings of sablefish (trawl-
caught), Dover sole (coastwide and in the Columbia area), and
shortspine thornyheads are expected to be within 10 percent of their
respective HGs in 1996. Landings of longspine thornyheads are projected
to be 33 percent below the HG in 1996. In 1997, the trip limits will
continue at the same levels that have been in effect since July 1996.
Nontrawl Sablefish
Small daily trip limits were applied to the nontrawl fishery again
in 1996 before and after the September 1-5, 1996 ``regular'' and
October 1-14, 1996 ``mop-up'' seasons. A 300-lb (136-kg) daily trip
limit was applied only north of the Conception subarea (36 deg.00' N.
lat.), the same area covered by the HG. In the Conception area, where
there is no HG and landings had been below the 425-mt ABC in 1996, the
daily trip limit was set at 350 lb (159 kg) to accommodate most
landings without encouraging excessive effort shifts into that area.
The trip limit for sablefish smaller than 22 inches (56 cm) of 1,500 lb
(680 kg) or 3 percent of all legal sablefish on board, whichever is
greater, remained in effect during the regular and mop-up seasons.
In 1996, as in 1995, the regular (derby) season was preceded by a
72-hour closure for all limited entry and open access fixed gear used
to take and retain groundfish, with one exception. Pot gear could be
set 24 hours before the regular season because this gear takes longer
to deploy.
In 1997, the same daily trip limits for the limited entry fishery
will apply outside the regular and mop-up seasons and any closure. The
``per trip'' limit for nontrawl sablefish smaller than 22 inches (56
cm) will remain in effect during the regular and mop-up fisheries. The
Council recommended a number of management changes for 1997 that have
not yet been approved by NMFS. These recommendations are summarized in
paragraph IV.E.(3)(c). The Council also is considering different
management strategies for 1998 and beyond, but has not yet submitted a
recommendation to NMFS.
Whiting
Approximately 212,900 mt of whiting was harvested in 1996, 85,125
mt by the shore-based fleet, 112,776 mt by the at-sea processing sector
(which includes deliveries to motherships), and about 15,000 mt by the
Makah tribal fishery. The 10,000-lb (4,536-kg) trip limit for whiting
taken before and after the regular whiting season and inside the 100-
fathom (183-m) contour in the Eureka subarea (40 deg.30'-43 deg.00' N.
lat.) continues in effect in 1997. Additional regulations, including
the allocation of whiting among non-tribal sectors, are found at 50 CFR
660.323(a)(4). The Council has recommended a number of changes that are
summarized in paragraph IV.F. These changes have not yet been approved
by NMFS.
Lingcod
The 2-month cumulative trip limit for lingcod is the same in 1997
as throughout 1996, 40,000 lb (18,144 kg) per 2-month period. As in
1996, lingcod smaller than 22 inches (56 cm) may not be landed in the
commercial or recreational fisheries except for 100-lb (45-kg) per trip
for trawl-caught lingcod. Landings of lingcod are projected at 2,708 mt
in 1996, including estimated recreational catch, 8 percent below the
HG.
Black Rockfish
Black rockfish off the State of Washington continue to be managed
under the regulations at 50 CFR 660.323(a)(1) for non-tribal fisheries.
The State of Oregon implements trip limits for black rockfish off the
Oregon coast.
B. Open Access Fishery
The trip limits for the open access fishery are designed to keep
landings within the open access allocation, while allowing the
fisheries to operate for as long as possible during the year. The
overall open access limits for rockfish, sablefish, and ``all
groundfish'' in 1997 are the same as in 1996 with several exceptions:
(1) The thornyhead open access allocation of only 3 mt is expected to
be taken entirely as incidental catch in open access fisheries for
other species. Consequently, north of Pt. Conception thornyheads may
not be taken and retained, possessed, or landed, as has been the case
since May 1996; (2) the monthly cumulative trip limit for rockfish is
applied coastwide in 1997, whereas in 1996, it differed north and south
of Cape Lookout; (3) additional limits are established for bocaccio:
For setnets or trammel nets, no more than 4,000 lb (1,814 kg) of
bocaccio cumulative per month south of Cape Mendocino; and, for hook-
and-line or pot gear, no more than 2,000 lb (907 kg) of bocaccio
cumulative per month south of Cape Mendocino, of which no more than 300
lb (136 kg) may be taken per trip; (4) language is changed to clarify
that open access nontrawl gear may not exceed limits that apply to
limited entry nontrawl gear; (5) daily trip limits for sablefish will
apply to all open access gear in 1997, not only to nontrawl gear as was
the case in 1996; and (6) trip limits for groundfish are reduced from
1,500 lb (680 kg) in the shrimp trawl fishery and 1,000 lb (454 kg) in
the prawn trawl fishery to 500 lb (227 kg), including the 300-lb (136-
kg) daily trip limit for sablefish. The reduction in the groundfish
limit is primarily to discourage bycatch of yellowtail and other
rockfish.
C. Operating in Both Limited Entry and Open Access Fisheries
Vessels using open access gear are subject to the management
measures for the open access fishery, regardless of whether the vessel
has a valid limited entry permit endorsed for any other gear. In
addition, a vessel operating in the open access fishery must not exceed
any trip limit, frequency limit, and/or
[[Page 713]]
size limit (for the same area) in the limited entry fishery.
A vessel that operates in both the open access and limited entry
fisheries is not entitled to two separate trip limits for the same
species. Fish caught with open access gear will also be counted toward
the limited entry trip limit. For example: In January, a trawl vessel
catches 7,000 lb (3,175 kg) of sablefish in the limited entry fishery,
and in the same month catches 1,000 lb (454 kg) of sablefish with
shrimp trawl (open access) gear, for a total of 8,000 lb (3,629 kg) of
sablefish. Because the open access landings are counted toward the
limited entry limit, the vessel would have exceeded its limited entry,
cumulative limit of 7,200 lb (3,266 kg) (60 percent of the 12,000-lb
(5,443-kg) 2-month cumulative limit for the limited entry fishery).
D. Operating in Areas With Different Trip Limits
Trip limits may differ for a species or species complex at
different locations on the coast. Unless otherwise stated (as for black
rockfish or for species with daily trip limits), the cross-over
provisions at paragraph IV.A.(12) apply. In general, a vessel fishing
for groundfish in a more restricive area is subject to the more
restrictive limit for the duration of that trip limit period. In 1997,
these provisions are relaxed to apply only to vessels taking and
retaining groundfish rather than any species. Since trip limits for the
Sebastes complex and yellowtail rockfish will be the same in Washington
and Oregon in 1997, Washington and Oregon State declaration procedures
that enabled a vessel to operate on both sides of the line and harvest
the larger limit no longer are in effect.
E. Changes to Trip Limits; Closures
Unless otherwise stated, a vessel must have initiated offloading
its catch before the fishery is closed or before a more restrictive
trip limit becomes effective. As in the past, all fish on board the
vessel when offloading begins are counted toward the landing limits
(See 50 CFR 660.302, formerly 50 CFR 663.2, for the definition of
``landing'').
F. Designated Species B Permits
Designated species B permits may be issued if the limited entry
fleet will not fully utilize the HG for Pacific whiting, shortbelly
rockfish, or jack mackerel north of 39 deg. North latitude. The limited
entry fleet has requested the full use of shortbelly rockfish and
Pacific whiting, but less than half of the HG for jack mackerel in
1997. Since no applications were received before the November 1
deadline, NMFS does not expect to issue Designated Species B permits in
1997.
G. Recreational Fishing
Bag limits in the 1997 recreational fishery remain the same as in
1996 with one exception. The bag limit for rockfish in Washington State
is reduced to 10 fish throughout the State to be consistent with State
laws protecting black rockfish.
IV. NMFS Actions
For the reasons stated above, the Assistant Administrator for
Fisheries, NOAA (Assistant Administrator), concurs with the Council's
recommendations and announces the following management actions for
1997, including those that are the same as in 1996.
A. General Definitions and Provisions
The following definitions and provisions apply to the 1997
management measures, unless otherwise specified in a subsequent notice:
(1) Trip limits. Trip limits are used in the commercial fishery to
specify the amount of fish that may legally be taken and retained,
possessed, or landed, per vessel, per fishing trip, or cumulatively per
unit of time, or the number of landings that may be made from a vessel
in a given period of time, as explained below.
(a) A trip limit is the total allowable amount of a groundfish
species or species complex, by weight, or by percentage of weight of
legal fish on board, that may be taken and retained, possessed, or
landed per vessel from a single fishing trip.
(b) A daily trip limit is the maximum amount that may be taken and
retained, possessed, or landed per vessel in 24 consecutive hours,
starting at 0001 hours local time. Only one landing of groundfish may
be made in that 24-hour period. Daily trip limits may not be
accumulated during multiple day trips.
(c) A cumulative trip limit is the maximum amount that may be taken
and retained, possessed, or landed per vessel in a specified period of
time, without a limit on the number of landings or trips.
(i) Limited entry fishery. Unless otherwise specified, cumulative
trip limits in the limited entry fishery apply to 2-month periods. No
more than 60 percent of the applicable 2-month cumulative limit may be
taken and retained, possessed or landed in either month of a 2-month
period; this is called the ``60-percent monthly limit.'' The 2-month
periods are: January-February, March-April, May-June, July-August,
September-October, and November-December. Different cumulative periods
may be announced later in the year.
(ii) Open access fishery. Unless otherwise specified, cumulative
trip limits apply to 1-month periods in the open access fishery. Within
these limits, in any calendar month, no more than 50 percent of the
applicable 2-month cumulative limit for the limited entry fishery may
be taken and retained, possessed, or landed from a vessel in the open
access fishery; this is called the ``50-percent monthly limit.''
(iii) Platooning--limited entry trawl vessels. Limited entry trawl
vessels are automatically in the ``A'' platoon, which means a vessel's
cumulative trip limit periods begin and end on the beginning and end of
a calendar month as in the past. If a limited entry trawl permit is
authorized for the ``B'' platoon (which, in 1997, will require a
separate letter from NMFS to be attached to the limited entry permit),
then cumulative trip limit periods will begin 2 weeks later than for
the ``A'' platoon.
(A) For a vessel in the ``B'' platoon, cumulative trip limit
periods begin on the 16th of the month and end on the 15th of the
month. Therefore, the management measures announced herein that are
effective on January 1, 1997, for the ``A'' platoon will be effective
on January 16, 1997, for the ``B'' platoon. The effective date of any
inseason changes to the cumulative trip limits also will be delayed for
2 weeks for the ``B'' platoon.
(B) A vessel authorized to operate in the ``B'' platoon may take
and retain, but may not land, groundfish from January 1, 1997, through
January 15, 1997.
(C) Special provisions will be made for ``B'' platoon vessels later
in the year so that the amount of fish made available in 1997 to both
``A'' and ``B'' vessels is the same. For example, a vessel in the ``B''
platoon will have the same cumulative trip limit for the final period
as a vessel in the ``A'' platoon, but the final period may be 2 weeks
shorter so that both fishing periods end on the same date.
(2) Unless the fishery is closed, a vessel that has landed its
cumulative or daily limit may continue to fish on the limit for the
next legal period, so long as no fish (including, but not limited to,
groundfish with no trip limits, shrimp, prawns, or other nongroundfish
species or shellfish) are landed (offloaded) until the next legal
period. As stated in the regulations at 50 CFR 660.302 (formerly 50 CFR
663.2, the definition of ``landing''), once offloading of any species
begins, all fish aboard the vessel are counted as part of the landing.
[[Page 714]]
(3) All weights are round weights or round-weight equivalents.
(4) Percentages are based on round weights, and, unless otherwise
specified, apply only to legal fish on board.
(5) ``Legal fish'' means fish legally taken and retained,
possessed, or landed in accordance with the provisions of 50 CFR part
660 (previously 50 CFR part 663), the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens Act), any notice
issued under part 660 (previously subpart B of 50 CFR part 663), and
any other regulation promulgated or permit issued under the Magnuson-
Stevens Act.
(6) Size limits and length measurement. Unless otherwise specified,
size limits in the commercial and recreational groundfish fisheries
apply to the longest measurement of the fish without mutilation of the
fish or the use of force to extend the length of the fish. No fish with
a size limit may be retained if it is in such condition that its length
has been extended or cannot be determined by these methods.
(a) For a whole fish, total length will be measured from the tip of
the snout (mouth closed) to the tip of the tail in a natural, relaxed
position.
(b) For a fish with the head removed (``headed''), the length will
be measured from the origin of the first dorsal fin (where the front
dorsal fin meets the dorsal surface of the body closest to the head) to
the tip of the upper lobe of the tail; the dorsal fin and tail must be
left intact.
(7) ``Closure,'' when referring to closure of a fishery, means that
taking and retaining, possessing, or landing the particular species or
species group is prohibited. (See the regulations at 50 CFR 660.302
(previously 50 CFR 663.2).) Unless otherwise announced in the Federal
Register, offloading must begin before the time the fishery closes.
(Note: The Council recommended requiring fixed gear to be out of
the water at the end of the regular season for sablefish rather than
requiring offloading to have begun. This recommendation has not yet
been approved.)
(8) The fishery management area for these species is the EEZ off
the coasts of Washington, Oregon, and California between 3 and 200 nm
offshore, bounded on the north by the Provisional International
Boundary between the United States and Canada, and bounded on the south
by the International Boundary between the United States and Mexico. All
groundfish possessed between 0-200 nm offshore, or landed in,
Washington, Oregon, or California are presumed to have been taken and
retained from the EEZ, unless otherwise demonstrated by the person in
possession of those fish.
(9) Inseason changes to trip limits are announced in the Federal
Register. Most trip and bag limits in the groundfish fishery have been
designated ``routine,'' which means they may be changed rapidly after a
single Council meeting. Information concerning changes to trip limits
is available from the NMFS Northwest and Southwest Regional Offices
(see ADDRESSES). Changes to trip limits are effective at the times
stated in the Federal Register. Once a change is effective, it is
illegal to take and retain, possess, or land more fish than allowed
under the new trip limit. This means, unless otherwise announced in the
Federal Register, offloading must begin before the time a fishery
closes or a more restrictive trip limit takes effect.
(10) It is unlawful for any person to take and retain, possess, or
land groundfish in excess of the landing limit for the open access
fishery without having a valid limited entry permit for the vessel
affixed with a gear endorsement for the gear used to catch the fish (50
CFR 660.306(p), formerly 50 CFR 663.7(t)).
(11) Operating in both limited entry and open access fisheries. The
open access trip limit applies to any fishing conducted with open
access gear, even if the vessel has a valid limited entry permit with
an endorsement for another type of gear. A vessel that operates in both
the open access and limited entry fisheries is not entitled to two
separate trip limits for the same species. Fish caught with open access
gear will also be counted toward the limited entry trip limit.
(12) Operating in areas with different trip limits. Trip limits for
a species or species complex may differ in different geographic areas
along the coast. The following ``crossover'' provisions apply to
vessels operating in different geographical areas that have different
cumulative or ``per trip'' trip limits for the same species or species
complex. They do not apply to species that are only subject to daily
trip limits, or to the trip limits for black rockfish off the State of
Washington (see 50 CFR 660.323(a)(1), previously 50 CFR 663.23(b)). In
1997, the trip limit period for cumulative trip limits is 2 months for
the limited entry fishery and 1 month for the open access fishery,
unless otherwise specified.
(a) Going From A More Restrictive To A More Liberal Area: If a
vessel takes and retains any species of groundfish in an area where a
more restrictive trip limit applies, before fishing in an area where a
more liberal trip limit (or no trip limit) applies, then that vessel is
subject to the more restrictive trip limit for the entire period to
which that trip limit applies, no matter where the fish are taken and
retained, possessed, or landed.
(b) Going From A More Liberal To A More Restrictive Area: If a
vessel takes and retains a species (or species complex) in an area
where a higher trip limit (or no trip limit) applies, and possesses or
lands that species (or species complex) in an area where a more
restrictive trip limit applies, then that vessel is subject to the more
restrictive trip limit for that trip limit period.
(13) Sorting. Regulations at 50 CFR 660.306(h) (formerly 50 CFR
663.7(l)) make it unlawful for any person to ``fail to sort, prior to
the first weighing after off loading, those groundfish species or
species groups for which there is a trip limit, if the weight of the
total delivery exceeds 3,000 lb (1,361 kg) (round weight or round
weight equivalent).'' This provision applies to both the limited entry
and open access fisheries.
(Note: The Council has recommended that this regulation be
changed to require all species or species groups with a trip limit,
HG, or quota to be sorted. There would be no exception for landings
under 3,000 lb (1,361 kg). The States of Washington and Oregon
already have the same or similar requirements. If approved, the
regulation is expected to be implemented in 1997, after publication
in the Federal Register.)
(14) Exempted fisheries. U.S. vessels operating under an exempted
(formerly experimental) fishing permit issued under 50 CFR part 600
(formerly 50 CFR 663.10) also are subject to these restrictions, unless
otherwise provided in the permit.
(15) Paragraphs IV.B. through IV.I. pertain to the commercial
groundfish fishery, but not to Washington coastal tribal fisheries
which are described in paragraph V. The provisions in paragraphs IV.B.
through IV.I. that are not covered under the headings ``limited entry''
or ``open access'' apply to all vessels in the commercial fishery that
take and retain groundfish, unless otherwise stated. Paragraph IV.J.
pertains to the recreational fishery.
(16) Commonly used geographical coordinates.
(a) Cape Falcon, OR--45 deg.46' N. lat.
(b) Cape Lookout, OR--45 deg.20'15'' N. lat.
(c) Cape Mendocino, CA--40 deg.30' N. lat.
(d) Point Conception, CA--34 deg.27' N. lat.
[[Page 715]]
(e) International North Pacific Fisheries Commission (INPFC)
subareas (for more precise coordinates for the Canadian and Mexican
boundaries, see 50 CFR 660.304 (formerly 663.5):
(i) Vancouver--U.S.-Canada border to 47 deg.30' N. lat.
(ii) Columbia--47 deg.30' to 43 deg.00' N. lat.
(iii) Eureka--43 deg.00' to 40 deg.30' N. lat.
(iv) Monterey--40 deg.30' to 36 deg.00' N. lat.
(v) Conception--36 deg.00' N. lat. to the U.S.-Mexico border.
B. Widow Rockfish (Commonly Called Brownies)
(1) Limited entry fishery. The cumulative trip limit for widow
rockfish is 70,000 lb (31,752 kg) per vessel per 2-month period. The
60-percent monthly limit is 42,000 lb (19,051 kg).
(2) Open access fishery. Within the limits at paragraph IV.I. for
the open access fishery, the 50-percent monthly limit for widow
rockfish is 35,000 lb (15,876 kg).
C. Sebastes Complex (including Bocaccio, Yellowtail, and Canary
Rockfish)
(1) General. Sebastes complex means all rockfish managed by the FMP
except Pacific ocean perch (Sebastes alutus), widow rockfish (S.
entomelas), shortbelly rockfish (S. jordani), and Sebastolobus spp.
(also called thornyheads, idiots, or channel rockfish). Yellowtail
rockfish (S. flavidus) are commonly called greenies. Bocaccio (S.
paucispinis) are commonly called rock salmon. Canary rockfish (S.
pinniger) are commonly called orange rockfish.
(2) Limited entry fishery. (a) Cumulative trip limits. (i) North of
Cape Mendocino. The cumulative trip limit for the Sebastes complex
taken and retained north of Cape Mendocino is 30,000 lb (13,608 kg) per
vessel per 2-month period. Within this cumulative trip limit for the
Sebastes complex, no more than 6,000 lb (2,722 kg) may be yellowtail
rockfish taken and retained north of Cape Mendocino, and no more than
14,000 lb (6,350 kg) may be canary rockfish.
(ii) South of Cape Mendocino. The cumulative trip limit for the
Sebastes complex taken and retained south of Cape Mendocino is 150,000
lb (68,039 kg) per vessel per 2-month period. Within this cumulative
trip limit for the Sebastes complex, no more than 12,000 lb (5,443 kg)
may be bocaccio taken and retained south of Cape Mendocino, and no more
than 14,000 lb (6,350 kg) may be canary rockfish.
(iii) The 60-percent monthly limits are: For the Sebastes complex,
18,000 lb (8,165 kg) north of Cape Mendocino, and 90,000 lb (40,823 kg)
south of Cape Mendocino; for yellowtail rockfish, 3,600 lb (1,633 kg)
north of Cape Mendocino; for bocaccio south of Cape Mendocino, 7,200 lb
(3,266 kg); and for canary rockfish coastwide, 8,400 lb (3,810 kg).
(b) For operating in areas with different trip limits for the same
species, see paragraph IV.A.(12) above.
(3) Open access fishery. If smaller than the limits at paragraph
IV.I., the following cumulative monthly trip limits apply (within the
limits at paragraph IV.I.): For the Sebastes complex, 15,000 lb (6,804
kg) north of Cape Mendocino, and 75,000 lb (34,019 kg) south of Cape
Mendocino; for yellowtail rockfish, 3,000 lb (1,361 kg) north of Cape
Mendocino; for bocaccio, 6,000 lb (2,722 kg) south of Cape Mendocino;
and, for canary rockfish, 7,000 lb (3,175 kg) coastwide.
D. POP
(1) Limited entry fishery. The cumulative trip limit for POP is
8,000 lb (3,629 kg) per vessel per 2-month period. The 60-percent
monthly limit is 4,800 lb (2,177 kg).
(2) Open access fishery. Within the limits at paragraph IV.I.
below, the 50-percent monthly limit for POP is 4,000 lb (1,814 kg).
E. Sablefish and the DTS Complex (Dover Sole, Thornyheads, and Trawl-
Caught Sablefish
(1) 1997 Management goal. The sablefish fishery will be managed to
achieve the 7,800-mt HG in 1997.
(2) Limited entry fishery. (a) Gear allocations. After subtracting
the tribal-imposed catch limit and the open access allocation from the
HG for sablefish, the remainder is allocated 58 percent to the trawl
fishery and 42 percent to the nontrawl fishery.
(Note: The 1997 HG for sablefish north of 36 deg. N. lat. is
7,800 mt. The 780-mt tribal allocation is subtracted, and the
limited entry and open access allocations are based on the remaining
7,020 mt. The limited entry allocation of 6,557 mt for 1996 is
allocated 3,803 mt (58 percent) to the trawl fishery and 2,754 mt
(42 percent) to the nontrawl fishery. The trawl and nontrawl gear
allocations are HGs in 1997, which means the fishery will be managed
not to exceed the HGs, but will not necessarily be closed if the HGs
are reached.)
(b) Limited entry trip and size limits for the DTS complex. ``DTS
complex'' means Dover sole (Microstomus pacificus), thornyheads
(Sebastolobus spp.), and trawl-caught sablefish (Anoplopoma fimbria).
Sablefish are also called blackcod. Thornyheads, also called idiots,
channel rockfish, or hardheads, include two species: Shortspine
thornyheads (S. alascanus) and longspine thornyheads (S. altivelis).
These provisions apply to Dover sole and thornyheads caught with any
limited entry gear and to sablefish caught with limited entry trawl
gear.
(i) North of Cape Mendocino. The cumulative trip limit for the DTS
complex taken and retained north of Cape Mendocino is 70,000 lb (31,752
kg) per vessel per 2-month period. Within this cumulative trip limit,
no more than 12,000 lb (5,443 kg) may be sablefish, no more than 38,000
lb (17,236 kg) may be Dover sole, and no more than 20,000 lb (9,072 kg)
may be thornyheads. No more than 4,000 lb (1,814 kg) of the thornyheads
may be shortspine thornyheads.
(ii) South of Cape Mendocino. The cumulative trip limit for the DTS
complex taken and retained south of Cape Mendocino is 100,000 lb
(45,359 kg) per vessel per 2-month period. Within this cumulative trip
limit, no more than 12,000 lb (5,443 kg) may be sablefish, and no more
than 20,000 lb (9,072 kg) may be thornyheads. No more than 4,000 lb
(1,814 kg) of the thornyheads may be shortspine thornyheads.
(iii) The 60-percent monthly limits are: For the DTS complex,
42,000 lb (19,051 kg) north of Cape Mendocino, and 60,000 lb (27,216
kg) south of Cape Mendocino; for trawl-caught sablefish, 7,200 lb
(3,266 kg); for Dover sole north of Cape Mendocino, 22,800 lb (10,342
kg); for both species of thornyheads combined, 12,000 lb (5,443 kg);
and for shortspine thornyheads, 2,400 lb (1,089 kg).
(iv) In any trip, no more than 500 lb (227 kg) may be trawl-caught
sablefish smaller than 22 inches (56 cm) total length. (See paragraph
IV.A.(6) regarding length measurement.)
(v) For operating in areas with different trip limits for the same
species, see paragraph IV.A.(12) above.
(c) Nontrawl trip and size limits. (i) Daily trip limit. The daily
trip limit for sablefish taken and retained with nontrawl gear north of
36 deg. N. lat. is 300 lb (136 kg) and south of 36 deg. N. lat. is 350
lb (159 kg). The daily trip limit, which applies to sablefish of any
size, is in effect until the closed periods before or after the regular
season (as specified at 50 CFR 660.323(a)(2)(i) (formerly 50 CFR
663.23(b)(2)), between the end of the regular season and the beginning
of the mop-up season, and after the mop-up season.
(ii) Limit on small fish. During the ``regular'' or ``mop-up''
seasons, the only trip limit in effect applies to sablefish smaller
than 22 inches (56 cm) total
[[Page 716]]
length, which may comprise no more than 1,500 lb (680 kg) or 3 percent
of all legal sablefish 22 inches (56 cm) (total length) or larger,
whichever is greater. (See paragraph IV.A.(6) regarding length
measurement.)
(d) For headed and gutted sablefish:
(i) The minimum size limit for headed sablefish, which corresponds
to 22 inches (56 cm) total length for whole fish, is 15.5 inches (39
cm).
(ii) The conversion factor established by the state where the fish
is or will be landed will be used to convert the processed weight to
round weight for purposes of applying the trip limit. (The conversion
factor currently is 1.6 in Washington, Oregon, and California. However,
the state conversion factors may differ; fishermen should contact
fishery enforcement officials in the state where the fish will be
landed to determine that state's official conversion factor.)
(Note: The Council has recommended a number of changes to the
regulations for the fixed gear sablefish fishery in 1997. Before
these changes can be made effective, they must be approved by NMFS
and then implemented by a regulation published in the Federal
Register. The recommended changes are summarized below:
(1) A vessel must have an endorsement on its limited entry
permit in order to participate in the regular or mop-up season north
of 36 deg. N. lat.; (2) the regular and mop-up seasons would apply
only north of 36 deg. N. lat., whereas in 1996, they applied
coastwide; (3) for 48 hours prior to the regular season, all fixed
gear used to take and retain groundfish would be removed from the
water--no advance setting of pot gear would be allowed; (4) a 48-
hour closed period would be added at the end of the regular season,
and all fixed gear used to take and retain groundfish, including
open access gear, would be removed from the water during this
period; (5) a framework season would be established (from August 1-
September 30), with the date being selected each year according to
certain criteria. The starting date, which has not yet been
recommended for 1997, remains at noon September 1 until the new
regulation becomes effective.)
(3) Open access fishery. Within the limits in paragraph IV.I.
below, a vessel in the open access fishery is subject to the 50-percent
monthly limits, which are as follows: For the DTS complex, 35,000 lb
(15,876 kg) north of Cape Mendocino, and 50,000 lb (22,680 kg) south of
Cape Mendocino; for Dover sole north of Cape Mendocino, 19,000 lb
(8,618 kg); south of Pt. Conception, for both species of thornyheads
combined, 10,000 lb (4,536 kg) of which no more than 2,000 lb (907 kg)
may be shortspine thornyheads. (The open access fishery for thornyheads
is closed north of Pt. Conception.) Daily trip limits for sablefish and
for thornyheads south of Pt. Conception are announced at paragraph
IV.I.
F. Whiting
(1) Limited entry fishery. Additional regulations that apply to the
whiting fishery are found at 50 CFR 660.306 (formerly 50 CFR 663.7) and
50 CFR 660.323(a)(3) and (4)(formerly 50 CFR 663.23(b)(3) and (4)).
(a) No more than 10,000 lb (4,536 kg) of whiting may be taken and
retained, possessed, or landed, per vessel per fishing trip before and
after the regular season for whiting, as specified at 50 CFR
660.323(a)(3) and (4) (formerly 50 CFR 663.23(b)(3) and (4)). This trip
limit includes any whiting caught shoreward of 100 fathoms (183 m) in
the Eureka subarea (see paragraph IV.F.(1)(b)).
(b) No more than 10,000 lb (4,536 kg) of whiting may be taken and
retained, possessed, or landed by a vessel that, at any time during a
fishing trip, fished in the fishery management area shoreward of the
100-fathom (183-m) contour (as shown on NOAA Charts 18580, 18600, and
18620) in the Eureka subarea.
(Note: The Council recommended a number of changes to the
Pacific whiting fishery that are not yet in effect, particularly
separate allocations for catcher/processor, mothership, and shore-
based sectors. The Council also recommended separate opening dates
for catcher/processors and mothership operations (but both sectors
prefer the current opening date of May 15 in 1997), and for vessels
delivering shoreside (June 15 north of 42 deg. N. lat. and April 15
south of 42 deg. N. lat.). The dates at 50 CFR 660.323(a)(3) remain
in effect until otherwise announced in the Federal Register.)
(2) Open access fishery. See paragraph IV.I. below.
G. Lingcod
(1) Limited entry fishery. The cumulative trip limit for lingcod is
40,000 lb (18,144 kg) per vessel per 2-month period. The 60-percent
monthly limit is 24,000 lb (10,886 kg). No lingcod may be smaller than
22 inches (56 cm) total length, except for a 100-lb (45-kg) trip limit
for trawl-caught lingcod smaller than 22 inches (56 cm). Length
measurement is explained at paragraph IV.A.(6).
(2) Open access fishery. Within the limits in paragraph IV.I.
below, the 50-percent monthly limit for lingcod is 20,000 lb (9,072
kg).
(3) Conversions. (a) Size conversion. For lingcod with the head
removed, the minimum size limit, which corresponds to 22 inches (56 cm)
total length for whole fish, is 18 inches (46 cm).
(b) Weight conversion. The conversion factor established by the
state where the fish is or will be landed will be used to convert the
processed weight to round weight for purposes of applying the trip
limit. (The states' conversion factors may differ and fishers should
contact fishery enforcement officials in the state where the fish will
be landed to determine that state's official conversion factor.) If a
state does not have a conversion factor for lingcod that is headed and
gutted, or only gutted, the following conversion factors will be used.
To determine the round weight, multiply the processed weight times the
conversion factor.
(i) Headed and gutted. The conversion factor for headed and gutted
lingcod is 1.5. (The State of Washington currently uses a conversion
factor of 1.5.)
(ii) Gutted, with the head on. The conversion factor for lingcod
that has only been eviscerated is 1.1.
H. Black Rockfish
The regulations at 50 CFR 660.323(a)(1) (formerly 50 CFR
663.23(b)(1)(iii)) state: ``The trip limit for black rockfish (Sebastes
melanops) for commercial fishing vessels using hook-and-line gear
between the U.S.-Canada border and Cape Alava (48 deg.09'30'' N. lat.),
and between Destruction Island (47 deg.40'00'' N. lat.) and Leadbetter
Point (46 deg.38'10'' N. lat.), is 100 lb (45 kg) or 30 percent, by
weight of all fish on board, whichever is greater, per vessel per
fishing trip.'' The provisions at paragraphs IV.A.(12) do not apply.
I. Trip Limits in the Open Access Fishery
Open access gear is gear used to take and retain groundfish from a
vessel that does not have a valid limited entry permit for the Pacific
coast groundfish fishery with an endorsement for the gear used to
harvest the groundfish. This includes longline, trap, pot, hook-and-
line (fixed or mobile), set net (south of 38 deg. N. lat. only), and
trawls used to target non-groundfish species (pink shrimp or prawns,
and, south of Pt. Arena, CA (38 deg.57'30'' N. lat.), California
halibut or sea cucumbers). A vessel operating in the open access
fishery must not exceed any trip limit, frequency limit, and/or size
limit for the open access fishery; or for the same area in the limited
entry fishery; or, in any calendar month, 50 percent of any 2-month
cumulative trip limit for the same area in the limited entry fishery,
[[Page 717]]
called the ``50-percent monthly limit.'' For purposes of this
paragraph, exempted trawl gear (that is used to harvest shrimp, prawns,
California halibut or sea cucumbers as provided in this paragraph I.)
may not exceed any limit for the limited entry trawl fishery, or 50
percent of any 2-month cumulative limit that applies to limited entry
trawl gear. The cross-over provisions at paragraph IV.A.(12) that apply
to the limited entry fishery apply to the open access fishery as well.
(1) Rockfish. Rockfish means all rockfish as defined at 50 CFR
660.302 (formerly 50 CFR 663.2), which includes the Sebastes complex
(including yellowtail rockfish, bocaccio, and canary rockfish),
shortbelly rockfish, widow rockfish, POP, and thornyheads.
(a) All open access gear. (i) North of Pt. Conception, thornyheads
(shortspine or longspine) may not be taken and retained, possessed, or
landed.
(ii) South of Pt. Conception, the daily trip limit for thornyheads
is 50 lb (23 kg).
(b) All open access gear except shrimp, prawn, or sea cucumber
trawl. The cumulative monthly trip limit for rockfish is 40,000 lb
(18,144 kg) per vessel per month, and includes the daily trip limit for
thornyheads. The following trip limits also apply, which count toward
the cumulative monthly limit:
(i) Hook-and-line or pot gear: 10,000 lb (4,536 kg) of rockfish per
vessel per fishing trip, of which no more than 300 lb (136 kg) per
trip, not to exceed 2,000 lb (907 kg) cumulative per month, may be
bocaccio taken and retained south of Cape Mendocino.
(ii) Setnet or trammel net gear (which are legal only south of
38 deg. N. lat.): 4,000 lb (1,814 kg) cumulative of bocaccio taken and
retained south of Cape Mendocino.
(c) For operating in areas with different trip limits for the same
species, see paragraph IV.A.(12) above.
(2) Sablefish. (a) North of 36 deg.00' N. lat. The cumulative trip
limit for sablefish taken and retained north of 36 deg.00' N. lat. is
1,500 lb (680 kg) per month. The daily trip limit for sablefish taken
and retained north of 36 deg.00' N. lat., which counts toward the
cumulative limit, is 300 lb (136 kg).
(b) South of 36 deg.00' N. lat.. The daily trip limit for sablefish
taken and retained south of 36 deg.00' N. lat. is 350 lb (159 kg).
(3) Groundfish taken by shrimp or prawn trawl. The daily trip
limits are: Sablefish, 300 lb (136 kg) coastwide; and thornyheads south
of Pt. Conception, 50 lb (23 kg).
(a) Pink shrimp. The trip limit for a vessel engaged in fishing for
pink shrimp is 500 lb (227 kg) of groundfish, multiplied by the number
of days of the fishing trip, and includes the daily trip limits for
sablefish and thornyheads, which may not be multiplied by the number of
days of the fishing trip.
(b) Spot and ridgeback prawns. The trip limit for a vessel engaged
in fishing for spot or ridgeback prawns is 500 lb (227 kg) of
groundfish species per fishing trip, and includes the daily trip limits
for sablefish and thornyheads.
(c) This rule is not intended to supersede any more restrictive
state law relating to the retention of groundfish taken in shrimp or
prawn pots or traps.
(4) Groundfish taken by California halibut or sea cucumber trawl.
The trip limit for a vessel participating in the California halibut
fishery or in the sea cucumber fishery south of Point Arena, CA
(38 deg.57'30'' N. lat.) is 500 lb (227 kg) of groundfish per vessel
per fishing trip, which includes a daily trip limit for sablefish of
300 lb (136 kg), and a daily trip limit for thornyheads south of Pt.
Conception of 50 lb (23 kg).
(a) A trawl vessel will be considered participating in the
California halibut fishery if:
(i) It is not fishing under a valid limited entry permit issued
under 50 CFR part 660.333 (formerly 50 CFR part 663) for trawl gear;
(ii) All fishing on the trip takes place south of Point Arena; and
(iii) The landing includes California halibut of a size required by
California Fish and Game Code section 8392(a), which states: ``No
California halibut may be taken, possessed or sold which measures less
than 22 inches in total length, unless it weighs four pounds or more in
the round, three and one-half pounds or more dressed with the head on,
or three pounds or more dressed with the head off. Total length means
the shortest distance between the tip of the jaw or snout, whichever
extends farthest while the mouth is closed, and the tip of the longest
lobe of the tail, measured while the halibut is lying flat in natural
repose, without resort to any force other than the swinging or fanning
of the tail.''
(b) A trawl vessel will be considered participating in the sea
cucumber fishery if:
(i) It is not fishing under a valid limited entry permit issued
under 50 CFR part 660.333 (formerly 50 CFR 663) for trawl gear;
(ii) All fishing on the trip takes place south of Point Arena; and
(iii) The landing includes sea cucumbers taken in accordance with
California Fish and Game Code section 8396, which requires a permit
issued by the State of California.
J. Recreational Fishery
(1) California. The bag limits for each person engaged in
recreational fishing seaward of the State of California are: 5 lingcod
per day, which may be no smaller than 22 inches (56 cm) total length;
and 15 rockfish per day. Multi-day limits are authorized by a valid
permit issued by the State of California and must not exceed the daily
limit multiplied by the number of days in the fishing trip.
(2) Oregon. The bag limits for each person engaged in recreational
fishing seaward of the State of Oregon are: 3 lingcod per day, which
may be no smaller than 22 inches (56 cm) total length; and 15 rockfish
per day, of which no more than 10 may be black rockfish (Sebastes
melanops).
(3) Washington. The bag limits for each person engaged in
recreational fishing seaward of the State of Washington are: Three
lingcod per day no smaller than 22 inches (56 cm) total length, and 10
rockfish per day.
V. Washington Coastal Tribal Fisheries
From 1991 through 1994, the Washington coastal treaty tribes
conducted a tribal sablefish fishery of 300 mt that was accommodated in
the annual management measures. In late 1994, the U.S. government
formally recognized the treaty right to fish for groundfish of the four
Washington Coastal Treaty tribes (the Makah, Hoh, Quileute, and
Quinault), and concluded that in general terms the quantification of
the right is 50 percent of the harvestable surplus of groundfish
available in the tribes' usual and accustomed fishing areas (defined at
50 CFR 660.304).
A tribal allocation is subtracted from the species HG before
limited entry and open access allocations are derived. The treaty
Indian fisheries for sablefish, black rockfish, and whiting allocations
are separate fisheries, not governed by the limited entry or open
access regulations or allocations. The tribes regulate their fisheries
so as not to exceed their allocations. Tribal fishing for rockfish with
fixed gear will operate under the same rules as the open access
fishery. The tribal trawl fishery for rockfish will operate under the
limited entry rules (50 CFR 660.324(j)). Makah tribal members may use
midwater trawl gear to take and retain groundfish for which there is no
tribal allocation and will be subject to the trip landing and frequency
and size limits applicable to the limited entry fishery (50 CFR
660.324(k)).
[[Page 718]]
The tribal allocations for sablefish and black rockfish are the
same as in 1996 and for the same reasons. The tribal allocation for
whiting in 1997 differs from the 1-year allocation agreement with the
Makah for 1996, as discussed below.
The Council recommended that no whiting be allocated to the Makah
Tribe in 1997. The Council's recommendation of no allocation is not
acceptable because Federal district court Judge Rafeedie held that
tribes have a right to all fish in their usual and accustomed fishing
areas, with no species limitation. Some fishermen have argued that this
ruling should not apply to whiting. A subproceeding is pending in U.S.
v. Washington that addresses the issue of a treaty right to whiting. In
that whiting subproceeding, on November 4, 1996, the court ruled that
``Judge Rafeedie's ruling in Subproceeding 89-3 should remain the
binding law of the case until the Ninth Circuit decides the appeal of
the decision now pending before it.''
NMFS acknowledges that many difficult questions have been raised
and that there is much uncertainty regarding what is a complex and
difficult technical and legal issue. The Tribe's proposed allocation
methodology would result in an allocation of 25 percent of the U.S. HG;
NMFS's proposed allocation methodology would result in an allocation of
6.5 percent of the U.S. HG. The tribal compromise falls between these
two positions. NMFS finds the tribal proposal of 25,000 mt (10.8
percent) in 1997 to be an acceptable compromise given all of the
uncertainties. This compromise gives NMFS time to work with the tribes,
the States, and other Federal agencies to develop an agreed-upon
allocation. This is a short-term compromise and is not intended to set
a precedent regarding either quantification of the Makah treaty right
or future allocations. If an appropriate methodology or allocation
cannot be developed through negotiations, the allocation will
ultimately be resolved in the pending subproceeding in U.S. v.
Washington. In the absence of a resolution of the appropriate
allocation in 1998, NMFS may again provide the tribes 10.8 percent of
the U.S. HG. NMFS expects the quantification issue to be resolved
before the 1999 season. NMFS Actions
For the reasons stated above, the Assistant Administrator announces
the following tribal allocations for 1997, including those that are the
same as in 1996:
Sablefish: 780 mt, 10 percent of the HG.
Rockfish: For the commercial harvest of black rockfish off
Washington State a HG of: 20,000 lb (9,072 kg) north of Cape Alava
(48 deg.09'30'' N. lat.) and 10,000 lb (4,536 kg) between Destruction
Island (47 deg.40'00'' N. lat.) and Leadbetter Point (46 deg.38'10'' N.
lat.).
Whiting: 25,000 mt in 1997, 10.8 percent of the HG.
Response to Public Comments
NMFS received two written comments from the nontreaty whiting
industry and one from the Makah Tribe on the proposed tribal whiting
allocation. One commenter argued the Secretary of Commerce does not
have the authority to make this allocation because such an allocation
requires an amendment of the FMP. This is not so much a comment on the
allocation for 1997, as on the rule implementing the framework for
treaty tribe harvest of Pacific groundfish (tribal groundfish rule)
that was adopted on May 31, 1996; the response to this comment is found
in the preamble to the final tribal groundfish rule published at 61 FR
28786 (June 6, 1996), specifically on pages 28789 and 28790 under the
heading ``Magnuson Act''.
The two commenters also objected to the process used this year to
make the allocation because it does not provide a ``formal public
comment period.'' NMFS followed its regulation by considering the
tribal request, the Council recommendation, and public comments, before
announcing the allocation with the final groundfish specifications. As
explained in the preamble to the tribal groundfish rule (specifically
on page 28787), NMFS is using the Council's annual groundfish
management process, as much as possible, for developing and
implementing the tribal allocation request. This is the best way to
provide information to all of the interested parties, since they are
involved in the annual process, either through attending the meetings
or through receiving the Council newsletters which are sent to all
persons who request to be on the Council mailing list. The tribal
whiting request for 1997 was announced at the August 1996 Council
meeting when the initial proposals for the 1997 management measures and
specifications were discussed and adopted by the Council. The Council
adopted a preliminary range for a 1997 whiting set-aside of zero to
35,000 mt. This was announced in the Council's August newsletter, along
with the other 1997 management recommendations. At the October Council
meeting, the tribe modified its 1997 whiting proposal to be 25,000 mt.
The Council recommended an allocation of zero for 1997. The NMFS
representative announced NMFS would take additional comments on the
tribal allocation for another 3 weeks. The Council's October newsletter
announced the tribal request for 25,000 mt, the Council's proposed
tribal whiting allocation of zero, and that NMFS would ``accept
comments on the Council's recommendations until November 15, 1996 with
special attention to yellowtail rockfish and the tribal whiting
allocation decisions.'' This process conforms to the requirements of
the tribal groundfish rule and provides the widest opportunity for the
interested public to participate and provide comments, since it uses
the same timeframe and public participation process as is used for the
rest of the annual groundfish management decisions.
One commenter asserted the allocation violates many national
standards of the Magnuson-Stevens Act, found at 16 U.S.C. 1851(a). Most
of the arguments had been made last year and were responded to in the
preamble to the tribal rule under the heading of ``Magnuson Act.'' The
commenter argued the allocation is not fair and equitable, does not
promote conservation, and allows a particular entity to acquire an
excessive share of fishing privileges in violation of national standard
4, 16 U.S.C. 1851(a)(4). This allocation is different from other
discretionary allocations that the Council and NMFS might make. It is
required by the treaties with the Northwest tribes as explained above,
which are other applicable law with which management measures must be
consistent. It promotes conservation as much as any allocation does in
that the allocation is within the total allowable catch authorized for
1997. It does not provide an excessive share of fish to the tribe; it
is implementing a treaty right, that is the supreme law of the land.
The commenter alleged the allocation does not promote efficiency, in
violation of national standard 5, 16 U.S.C. 1851(a)(5); and does not
minimize costs or avoid unnecessary duplication in violation of
national standard 7, 16 U.S.C. 1851(a)(7). National standard 5 (as
revised by Public Law 104-297) requires that efficiency be
``considered''; national standard 7 requires that measures shall, where
practicable, minimize costs and avoid unnecessary duplication. The
commenter has provided no specifics on why these standards have been
violated or suggestions on how the treaty right can be accommodated in
a way that would be more efficient, minimize costs, or avoid
unnecessary duplication.
The two commenters argued that there should be a zero allocation to
the tribe in 1997 because there is no
[[Page 719]]
adjudicated treaty right to whiting, and they refer to their comments
on the tribal groundfish rule and the 1996 allocations. NMFS addressed
their arguments in the preamble to the tribal groundfish rule under the
heading of ``Treaty Entitlement.'' NMFS had determined there is a
treaty right to whiting, in part, because in a subproceeding of U.S. v.
Washington regarding tribal rights to shellfish, Federal district court
Judge Rafeedie held that tribes have a right to all fish in their usual
and accustomed fishing areas, with no species limitation. This ruling
is currently on appeal in front of the Ninth Circuit Court of Appeals.
The commenters argued this ruling should not apply to whiting. A
subproceeding is pending in U.S. v. Washington that addresses the issue
of a treaty right to whiting. In that whiting subproceeding, on
November 4, 1996, the court ruled that ``Judge Rafeedie's ruling in
Subproceeding 89-3 should remain the binding law of the case until the
Ninth Circuit decides the appeal of the decision now pending before
it.''
One commenter asserted the Makah tribe already has achieved a
moderate living and, therefore, the treaty right has been satisfied
without providing whiting to the Makah. The commenter provided no new
information to support this assertion. This assertion was answered in
the preamble to the tribal groundfish rule under the heading ``Moderate
Living''.
One commenter asserted that since the harvest in the Vancouver
statistical area (an area larger than, but including, the usual and
accustomed fishing area) was 9.9 percent of the total harvest from 1981
to 1995, if the tribes were entitled to a 50 percent share of the
whiting, they should at most be allocated 4.95 percent of the amount
available to the U.S. He further asserted that since the whiting spend
a small portion of the year in the Makah area and do not spawn there,
the allocation should be even smaller than 4.95 percent. These comments
were responded to in the preamble to the tribal groundfish rule.
One commenter alleges the allocation violates the ESA because it
has not been subject to a formal consultation under the ESA. However, a
biological opinion issued on May 14, 1996, found that ``(t)he timing,
method, and location of the tribal fishery are comparable with how the
whiting fishery has operated in recent years. As a result, there is no
reason to expect that the bycatch of salmon or the effect of the
fishery to other listed species including marine mammals will be
different from what has be(en) reported for the existing fishery.'' The
tribal fishery authorized for 1997 is still within the scope of what
was analyzed in previous biological opinions, and thus reinitiation of
consultation is not required. The other commenter argued that the
tribal salmon bycatch appeared to exceed the level of concern in the
fishery, which requires a new biological opinion. The current
biological opinion considers salmon bycatch in the fishery as a whole,
but does require consultation if the number of chinook salmon per
metric ton of whiting exceeds 0.05 in either the shoreside, catcher/
processor or the mothership components of the fishery (Biological
Opinion, May 14, 1996). For purposes of the biological opinion, the
tribal whiting fishery was considered as part of the mothership fleet.
Therefore, salmon bycatch in the tribal fishery, by itself, does not
necessarily trigger a requirement for reinitiation unless it results in
the salmon bycatch for the mothership sector to exceed the reinitiation
criteria. All three sectors were within the 0.05 rate in 1996.
VI. Issuance of EFPs in 1996
In 1995, applications were received and approved for three
different types of EFPs (formerly called ``experimental fishing
permits'') for the 1996 fishing year: (1) The first was from the State
of Oregon (representing Washington and California as well) for the
purpose of renewing the 1995 EFP to monitor the bycatch of salmon in
the shore-based whiting fishery. Under this permit, 40 vessels were
issued EFPs that required all salmon caught incidentally in the whiting
fishery to be landed shoreside. A variation of the whiting EFP also was
requested by the State of California so that a small number of fishers
could be allowed to fish for whiting inside of the 100-fathom (183-m)
contour in the Eureka Management Area, which currently is prohibited.
The purpose was to see if the bycatch rate of salmon could be kept at
acceptable levels by this small, shore-based sector of the fleet
delivering to Eureka and Crescent City, CA. At-sea observers would be
aboard all whiting trips. Even though this variation to the whiting EFP
was approved, the industry declined to participate.
(2) The second EFP was for a new, enhanced data collection program
that applied to the other groundfish fisheries. The application was
submitted by the State of Oregon, but could include involvement by the
States of Washington and California as well. This is a multi-year
cooperative data collection program with the industry and state and
Federal governments. Twenty vessels participated in 1996. The purpose
of the experiment was to monitor trip-limit-induced discards and the
bycatch of salmon and non-target species in the groundfish trawl
fishery. All participating vessels were required to land salmon caught
incidentally in groundfish trawl gear and to keep enhanced logbooks
required by the States. Some vessels were required to carry at-sea
observers to monitor trip-limit induced discards, and some vessels
could have been required to bring virtually their entire catch to shore
for additional monitoring although this did not occur in 1996.
(3) The third EFP application was to collect reproductive samples
for sablefish to test assumptions in the stock assessment for that
species. An EFP was needed because the vessel would be authorized to
land 500 lb (227 kg) in excess of the cumulative trip limit for trawl-
caught sablefish (for a total of 5 mt in 1996), and could sell the
scientific samples. A state or Federal scientist would be aboard every
trip to gather the biological data. Although this permit was approved
and issued, it had not been used at the time this notice was prepared
in late 1996; sampling normally occurs late in the year.
VII. Renewal of EFPs in 1997
Renewal of all three EFPs was requested for 1997, some with slight
modifications. First, the whiting EFPs described in paragraph VI.(1)
would be continued, pending development and implementation of an FMP
amendment that would authorize salmon to be retained and landed.
Fishers also are concerned that their practice of dumping codends
directly in the hold would make monitoring of trip limits difficult, if
not impossible, and would like the EFP continued because overages are
forfeited but no penalty results. The scope of the experiment and level
of participation would be the same as in 1996.
Second, continuation of the enhanced data collection program
described in paragraph VI.(2) also was requested, with some
modifications. The major change would enable data to be obtained on a
vessel throughout its fishing activities in a month, even if not
fishing for groundfish. This would provide information on groundfish
bycatch in other fisheries (particularly shrimp fisheries) and on a
fisher's choice to pursue alternative fisheries or fishing strategies.
The program also could be expanded to include whiting fisheries when
the whiting EFP no longer is in effect.
The third is renewal of the EFP to gather biological information on
sablefish, as described in paragraph VI.(3) to confirm or improve data
used
[[Page 720]]
in the stock assessment. This experiment would allow one vessel to
retain 25 fish in excess of the trawl trip limit for sablefish and is
not expected to exceed 10 mt per year. It differs from the 1996 permit
in that a state or Federal scientist would not need to be aboard every
trip, but would be required to be present when the vessel offloads to
gather the scientific samples. Also, the scientific samples would not
necessarily be sold; they also could be distributed to a food bank or
otherwise disposed of consistent with state and Federal law.
Requests for these renewals were presented at the Council's October
1996 meeting. The Council recommended renewal of all three in 1997.
Comments on the three EFP programs for 1997 were invited at the October
1996 Council meeting. If approved, the whiting EFPs could be issued as
early as March 1 for vessels delivering in the State of California, and
mid-April for vessels delivering in Washington and Oregon; and the EFP
for sablefish could be issued early in 1997. The decision on whether to
issue EFPs and determinations on appropriate permit conditions will be
based on a number of considerations, including the Council's
recommendations and comments received from the public.
Classification
The final specifications and management measures for 1997 are
issued under the authority of, and are in accordance with, the
Magnuson-Stevens Act and 50 CFR parts 600 and 660 subpart G (the
regulations implementing the FMP).
Much of the data necessary for these specifications and management
measures came from the current fishing year. Because of the timing of
the receipt, development, review, and analysis of the fishery
information necessary for setting the initial specifications and
management measures, and the need to have these specifications and
management measures in effect at the beginning of the 1997 fishing
year, there is good cause under 5 U.S.C. 553(b)(B) to waive prior
notice and opportunity for public comment for the specifications and
management measures. Amendment 4 to the FMP, implemented on January 1,
1991, recognized these timeliness considerations and set up a system by
which the interested public is notified, through Federal Register
publication and Council mailings, of meetings and of the development of
these measures and is provided the opportunity to comment during the
Council process. The public participated in GMT, Groundfish Advisory
Subpanel, Scientific and Statistical Committee, and Council meetings in
August and October 1996 where these recommendations were formulated.
Additional public comments on the specifications and management
measures will be accepted for 30 days after publication of this
document in the Federal Register. The Assistant Administrator (AA) will
consider all comments made during the public comment period and may
make modifications as appropriate.
An Environmental Assessment (EA) was prepared for the tribal
groundfish rule that supported the AA's determination that the proposed
1996 Makah allocation would have no significant impact on the human
environment. NMFS has updated the 1996 EA and has concluded that the
1997 Makah allocation will have no significant impact on the human
environment.
The Administrative Procedure Act requires that publication of an
action be made not less than 30 days before its effective date unless
the AA finds, and publishes with the rule, good cause for an earlier
effective date (5 U.S.C. 553(d)(3)). These specifications announce the
harvest goals and the management measures designed to achieve those
harvest goals in 1997. A delay in implementation could compromise the
management strategies that are based on the projected landings from
these trip limits. Therefore, a delay in effectiveness is contrary to
the public interest and these actions are effective on January 1, 1997.
The tribal whiting allocation is developed following, as much as
possible, the annual process for developing fishery specifications and
management measures. This is because the information developed in this
process (such as the ABC and HG for whiting) is important in the
allocation process. In addition, the annual groundfish process provides
the best opportunity to the interested public to receive notification
of the proposed allocation and to provide comments. As described above
in the response to public comments, the public received notice through
the August and October Council meetings and Council newsletters. It is
important to announce the tribal allocation with the other
specifications and management measures so the affected industry will
know the amount of whiting available to the various sectors and will be
able to plan accordingly.
Dated: December 30, 1996.
Gary C. Matlock,
Acting Assistant Administrator for Fisheries, National Marine Fisheries
Service.
[FR Doc. 96-33402 Filed 12-31-96; 2:35 pm]
BILLING CODE 3510-22-W