[Federal Register Volume 62, Number 55 (Friday, March 21, 1997)]
[Proposed Rules]
[Pages 13583-13588]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-7363]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 970311053-7053-01; I.D. 020397B]
RIN 0648-AJ23


Fisheries off West Coast States and in the Western Pacific; 
Pacific Coast Groundfish Fishery; Amendment 9

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

ACTION: Proposed rule.

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SUMMARY: NMFS issues this proposed rule to implement Amendment 9 to the 
Fishery Management Plan for the Pacific Coast Groundfish Fishery (FMP). 
Amendment 9 would require a sablefish endorsement on limited entry 
permits for permit holders to participate in the regular limited entry 
fixed gear sablefish fishery north of 36 deg.N. lat. (the U.S.-
Vancouver, Columbia, Eureka, and Monterey management areas). The 
intended effect of this proposed sablefish endorsement is to promote 
safety, stability, and economic viability of the sablefish fishery by 
limiting or reducing harvesting capacity in the Pacific Coast sablefish 
fishery. This rule also would eliminate limited entry permit ``B'' 
endorsement language that expired January 1, 1997. Elimination of ``B'' 
endorsement language is a routine update of the Pacific Coast 
groundfish regulations.

DATES: Comments on the proposed rule must be received on or before May 
5, 1997.

ADDRESSES: Comments on the proposed rule, Amendment 9, or supporting 
documents should be sent to Mr. William Stelle, Administrator, 
Northwest Region, NMFS, Sand Point Way NE., BIN C15700, Seattle, WA 
98115-0070; or to Mr. William Hogarth, Acting Administrator, Southwest 
Region, NMFS, 501 West Ocean Boulevard, Suite 4200, Long Beach, CA 
90802-4213.
    Copies of Amendment 9, the Environmental Assessment (EA) and the

[[Page 13584]]

Regulatory Impact Review (RIR)/Initial Regulatory Flexibility Analysis 
(IRFA) are available from Larry Six, Executive Director, Pacific 
Fishery Management Council, 2130 SW Fifth Ave., Suite 224, Portland, OR 
97201.
    Comments on the information collection requirements that would be 
imposed by this rule should be sent to Mr. William Stelle or to Mr. 
William Hogarth, at the addresses above, and to the Office of 
Information and Regulatory Affairs of the Office of Management and 
Budget, Washington DC, 20503.

FOR FURTHER INFORMATION CONTACT: William L. Robinson at 206-526-6140, 
Rodney McInnis at 310-980-4040, or the Pacific Fishery Management 
Council at 503-326-6352.

SUPPLEMENTARY INFORMATION: NMFS is proposing this rule based on a 
recommendation of the Pacific Fishery Management Council (Council), 
under the authority of the FMP and the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act). The background 
and rationale for the Council's recommendations are summarized below. 
More detail appears in the EA/RIR/IRFA that the Council prepared for 
this action.

Background

    Sablefish (Anoplopoma fimbria) is one of the most valuable species 
in the groundfish fishery off Washington, Oregon, and California (WOC). 
Since 1987, the annual sablefish non-tribal harvest guideline has been 
allocated between trawl gear and fixed gear fisheries. Historically, 
the trawl fishery has been managed with trip or period landings limits, 
which means the amount of fish that may be harvested during a fishing 
trip or during a set time period. Trip or period landings limits are 
mainly imposed to extend the fishery throughout most of the year. By 
contrast, the limited entry, fixed gear fishery has taken most of its 
allocation in an intense, open competition called the ``regular'' or 
``derby'' season, which had no trip limits, except for limits on small 
sablefish less than 22 inches (56 cm) in length. For 72 hours before 
the regular season, it is illegal to take and retain, possess, or land 
sablefish caught with fixed gear, although vessels using pot gear may 
begin to set their gear 24 hours in advance of the start of the regular 
season. In recent years, the nontrawl fleet has operated under 
restrictive limits (250-500 lb (113-227 kg) per day) outside of the 
regular season. The limited entry nontrawl fishery for sablefish 
involves two operationally distinct gear types, pot (or trap) and 
longline, that compete for the nontrawl harvest allocation.
    Problems commonly attributed to the current derby fishery relate to 
safety, inefficiency, resource wastage, and social conflict. There are 
two main problems with the derby: (1) Excess harvesting capacity in the 
fishery; and (2) difficulty controlling total harvest. These problems 
will intensify if the derby is allowed to continue, particularly if the 
length of the derby shortens each year.
    The Council's first concern with the current limited entry, 
nontrawl sablefish season management is that, if this fishery is 
allowed to continue as a derby, the season will become even shorter and 
the danger of fishing in the derby will rise. Before 1990, the fixed 
gear sablefish fishery began on January 1 and usually lasted for the 
greater part of the year. However, fishing effort increased and quotas 
were reduced during the late 1980s and early 1990s, resulting in the 
recent, short ``derby'' seasons. In 1995 and 1996, the derby seasons 
were 7 and 5 days long, respectively. Seasons shorten from year to year 
because each vessel owner has an incentive to invest in new and better 
gear each year, hoping to increase the amount of fish he or she can 
catch per hour or per day. With seasons measured in numbers of days, 
the derby is not just dangerous because it gives fishers strong 
incentives to stay out during bad weather but also because they work at 
sea with heavy machinery, with little or no sleep throughout the derby. 
Promoting the safety of human life at sea is an important new national 
standard (National Standard 10) in the Magnuson-Stevens Act.
    Beyond the very serious safety concerns with the derby fishery, 
there are also economic and conservation problems with the current 
management regime. Just as fishers cannot choose to fish during the 
best weather, they also cannot choose to fish during periods of highest 
sablefish market value. Fish caught under derby conditions often can 
not be handled or processed into the highest value sablefish products. 
In a derby for high-value fish like sablefish, lower-value bycatch may 
be thrown overboard, dead and unused. Magnuson-Stevens Act National 
Standard 9 supports efforts to minimize bycatch and bycatch mortality. 
With shortening derby seasons, fishers may also be more likely to 
abandon their gear at sea, leaving that gear to continue to ``ghost 
fish'' after the derby has ended. Finally, as the length of the derby 
decreases, it becomes more difficult for managers to accurately choose 
a closing date that will prevent the harvest from exceeding the 
allowable catch.
    When the limited entry system was first designed by the Council, 
that system was considered a first step in a long-term process to 
reduce effort levels in the groundfish fishery. Fishers had used 
landings of a wide range of species to qualify for limited entry 
permits, which meant that the limited entry program had limited overall 
effort in the groundfish fishery, but had not necessarily constrained 
effort levels in single-species fisheries. The number of vessels 
participating in the limited entry, fixed gear sablefish fishery has 
grown in recent years, corresponding with rising sablefish prices and 
decreasing availability of other fixed gear target stocks. Sablefish 
endorsements will control some of this effort increase by limiting 
sablefish fishery participation to those persons who have historically 
participated in and depended upon the sablefish fishery.

Sablefish Endorsement

    The Council has recommended to the Secretary that NMFS require a 
sablefish endorsement on limited entry permits to limit the number of 
participants in the regular, limited entry, nontrawl sablefish fishery. 
The Council recommended the following sablefish endorsement qualifying 
criteria: at least 16,000 lb (7,257.5 kg) of sablefish catch from the 
sablefish fishery, in any one calendar year from 1984 through 1994.
    Choosing appropriate qualifying criteria required careful Council 
consideration of lessons learned about initial limited entry permit 
distribution, historic characteristics of the fleet, and the dependence 
of current permit holders on the sablefish derby. The qualifying 
criteria is a compromise that recognizes historical participation by 
including the early years of the license limitation qualifying period, 
that acknowledges more recent participants in the sablefish derby by 
including 2 years after the Council adoption of the limited entry 
program, and that grants permit endorsements only to those persons who 
landed quantities of sablefish large enough to constitute a significant 
portion of their incomes. Maintaining a qualifying requirement that 
includes years from the mid and late 1980s prevents the 
disenfranchisement of vessels that were forced to choose between Alaska 
and West Coast fisheries during the recent years in which the Council 
set the West Coast opening to coincide with the Alaska opening. 
Households with sablefish fishery incomes less than that represented by 
the 16,000-lb (7,257.5-

[[Page 13585]]

 kg) qualifying requirement are more likely to have greater reliance on 
other sources of fishing or nonfishing income than those who meet the 
16,000-lb (7,257.5-kg) requirement.
    Vessels that do not qualify for an endorsement because of failure 
to meet the 16,000 lb (7,257.5-kg) landing requirement may continue to 
harvest small amounts of sablefish in the limited entry daily trip 
limit fishery when the regular season is not open. For example, vessels 
making two trips per week over a 6-month period could land close to 
16,000 lb (7,257.5 kg), and thereby suffer no reduction in gross 
revenue. However, while some vessels are able to generate net positive 
revenues from the daily trip limit fishery, larger vessels located at 
greater distances from the fishing grounds may not find the daily trip 
limit fishery profitable. The daily trip limit opportunity may also 
conflict with other fishing opportunities for some vessels.
    Only persons holding current limited entry permits may qualify for 
a sablefish endorsement. Permit catch history will be used to determine 
whether a permit meets the qualifying criteria for a fixed gear 
sablefish endorsement. Permit catch history includes the catch history 
of the vessel(s) that initially qualified for the permit, and 
subsequent catch histories accrued by vessel(s) associated with the 
limited entry permit or permit rights. If the current permit is the 
result of the combination of multiple permits, then for the combined 
permit to qualify for an endorsement, at least one of the permits that 
were combined must have had sufficient sablefish history to qualify for 
an endorsement; or the permit must qualify based on catch occurring 
after it was combined, but taken within the qualifying period. The 
catch history of a permit also includes the catch of any interim permit 
held by the current owner of the permit during the appeal of an initial 
NMFS decision to deny the initial issuance of a limited entry permit, 
but only if (1) the appeal for which an interim permit was issued was 
lost by the appellant, and (2) the owner's current permit was used by 
the owner in the 1995 limited entry sablefish fishery. The catch 
history of an interim permit where the full ``A'' permit was ultimately 
granted will also be considered part of the catch history of the ``A'' 
permit. Only sablefish catch regulated by this part that was taken with 
longline or fishpot (or trap) gear will be considered for this 
endorsement. Harvest taken in tribal sablefish set asides will not be 
included in calculating permit catch histories.
    A sablefish endorsement would be required for a fixed-gear, limited 
entry vessel to take sablefish in the area north of 36 deg. N. lat. 
(the Monterey, Eureka, Columbia and U.S.-Vancouver management areas) 
during the regular, limited entry, nontrawl sablefish fishery, as 
specified in the regulations; this harvest would count against the 
limited entry fixed gear allocation for the area north of 36 deg. N. 
lat. Catch taken in the southern area counts against a southern area 
(Conception Area) acceptable biological catch (ABC). However, because 
the annual ABC has never been reached by vessels operating in the 
southern area, there is no established harvest guideline and no 
allocation between-gear types for this area. Fishers from the southern 
area have not historically focused on sablefish, and limited entry 
qualifications from that area were largely made with groundfish other 
than sablefish. Because of the under-exploitation of the available 
harvest, and the relatively recent development of catch history by some 
vessels in the southern area, the Council chose to exempt vessels 
fishing in the area from being required to hold a sablefish endorsement 
to participate in the limited entry fixed gear sablefish fishery. 
Implementing sablefish endorsements for the entire coast would have had 
a disproportionate impact on the southern area, primarily because 
fishers who have only recently begun to target sablefish in that area 
would have been eliminated from the regular limited entry season. It is 
expected that the Council will manage the fishing in the Conception 
Area differently from the northern fishery in order to avoid effort 
shifts.
    Under the proposed sablefish endorsement system, if permits are 
combined to generate a single permit with a larger length endorsement, 
the resulting permit will receive a sablefish endorsement only if each 
of the combined permits has an individual sablefish endorsement. This 
requirement would be consistent with the current combination 
requirements for limited entry permit gear endorsements. Also, if the 
fishery continues to be managed as a derby fishery, future combination 
of non-endorsed permits with endorsed permits would allow more capacity 
into the sablefish fishery and thereby exacerbate the pressures of the 
derby.
    The sablefish endorsement would be required for fixed gear, limited 
entry vessels to take sablefish against the limited entry allocation in 
the area north of 36 deg. N. lat. during periods of time specified in 
the regulations (to be recommended by the Council). The general intent 
is that an endorsement be required to take part in the major limited 
entry, fixed gear sablefish harvest opportunities, but no endorsement 
be required when management measures are intended to allow only small 
or incidental sablefish harvests.
    Under the proposed management system, limited entry permit holders 
with sablefish endorsements could participate in the regular, limited 
entry, nontrawl sablefish fishery, under the limited entry regulations. 
Outside of the regular season, they would be allowed to catch sablefish 
with their endorsed gear under the small daily trip limits, under the 
limited entry regulations. Limited entry permit holders with sablefish 
endorsements could also catch sablefish with open access gear other 
than their endorsed gear, under the regulations of the open access 
fishery. Limited entry permit holders who do not have sablefish 
endorsements would still be allowed to fish for sablefish outside the 
regular, limited entry, nontrawl sablefish season by either using their 
endorsed gear and fishing under the limited entry regulations, or by 
using open access gear and fishing under open access regulations. 
Limited entry permit holders who do not have sablefish endorsements 
would not be allowed to fish for sablefish with either limited entry or 
open access gear during the regular, limited entry, non-trawl sablefish 
season.

Biological Impacts

    Marine biological background and biological impacts of the 
sablefish fishery are analyzed in ``Status of the Pacific Coast 
Groundfish Fishery Through 1996 and Recommended Acceptable Biological 
Catches for 1997: Stock Assessment and Fishery Evaluation'' (SAFE 
Document), and in the Environmental Assessment for Amendment 9 to the 
Pacific Coast Groundfish FMP. These documents may be obtained from the 
Pacific Fishery Management Council (See ADDRESSES above).
    NMFS expects that the biological impacts of requiring a sablefish 
endorsement would be negligible. The sablefish ABC and harvest 
guideline would not be affected by this action. The biological impacts 
from altering the number of vessels participating in the fishery would 
not be significant.

Socio-Economic Impacts

    Most limited entry fixed gear fishers from central and southern 
California qualified for their initial limited entry permits with 
landings of groundfish species other than sablefish. Consequently the 
proposed sablefish

[[Page 13586]]

endorsement qualifying requirements, which are based on significant 
historic or recent economic dependence on sablefish, would result in 
greater proportional reductions to the number of southern area vessels 
qualified to participate in the regular fixed gear sablefish fishery. 
However, as explained above, vessels landing sablefish from waters 
south of 36 deg. N. lat. (southern California) would not be required to 
hold sablefish endorsements, and the fishing in that area would be 
managed differently from the northern area. Conversely, if the 
historical landing requirements had included more recent years and had 
eliminated early years, this would result in more endorsements being 
issued in southern areas at the expense of vessels that have not 
participated in several recent years.
    The number of longline vessels participating in the limited entry 
nontrawl regular sablefish fishery would decrease under the proposed 
qualifying criteria. The percent of longline vessels participating in 
the fishery from Puget Sound and the Washington coast would increase 
from 34 to 46 percent, while the percent of participants from central 
and southern California combined would decline from 28 percent to only 
13 percent of the longline fleet. However vessels would be exempt from 
the sablefish endorsement requirement, if they are fishing south of 
36 deg. N. lat.
    All pot permits would qualify for an endorsement under the proposed 
qualifying requirements. A review of the distribution of the pot fleet 
shows that 75 percent of the pot vessels were distributed in the Oregon 
and northern California areas (Astoria to Crescent City), 9 percent 
were located primarily in the central California area (Monterey to 
Avila Beach), 6 percent along coastal Washington, with the remainder 
not assigned to a geographic area because of lack of recent landings.
    Most vessels are multifishery vessels. Based on 1995 landings and 
revenue, vessels with permits that do not qualify for a sablefish 
endorsement would need make up about $750,000 of lost sablefish revenue 
in other fisheries. Because most vessels are underemployed, it is 
unlikely that the vessels gaining additional sablefish fishing 
opportunity from the displaced vessels would release similar amounts of 
opportunity in other fisheries, which would then be available for the 
vessels displaced from the limited entry nontrawl regular sablefish 
fishery. Vessels with more reliance on sablefish will have a chance for 
a safer, more stable fishery, and those with less reliance will lose 
sablefish fishing opportunity.

Sablefish Endorsement Issuance

    Sablefish endorsements would be issued by NMFS, prior to the start 
of the regular 1997 limited entry fixed gear sablefish season. NMFS 
would use landings records from the Pacific States Marine Fisheries 
Commission's Pacific Fisheries Information Network (PacFIN) to 
determine which limited entry fixed gear permit holders meet the 
qualifications of 16,000 lb (7,257.5 kg) of catch in any one year from 
1984 through 1994.
    The Fishery Management Division, NMFS Northwest Region, would 
notify each limited entry fixed gear permit owner by letter whether 
PacFIN records indicate that his permit qualifies for a sablefish 
endorsement. Persons who do qualify for sablefish endorsements would be 
issued revised limited entry permits with endorsements, upon payment of 
a one-time fee to cover the administrative cost of PacFIN research and 
limited entry permit processing. Initial calculations of the agency 
cost of processing the sablefish endorsement system place the per-
participant processing fee at about $800.
    Persons who are initially denied sablefish endorsements, but who 
believe that their permit or interim permit qualifies for an 
endorsement, may send supporting documentation, such as fish tickets, 
to demonstrate how the qualifying criteria have been met. An 
endorsement would be issued if the permit owner demonstrates that his 
permit met the qualifying criteria. Unlike the initial limited entry 
permitting process, there will be no industry appeal board to review 
appeals of endorsement denials.

Limited Entry Permit ``B'' Endorsements

    The Pacific Groundfish limited entry program went into effect 
January 1, 1994. Because this program was a radical change from the 
previous fishery, which was entirely open access, the Council designed 
a temporary alternative to the primary ``A'' permit endorsement, to 
assist fishers with a historically low level of participation who did 
not qualify for an ``A'' permit. These temporary permits were to be 
phased out of the fishery over time.
    ``B'' endorsements were initially intended to allow owners of 
vessels that may have participated in the fishery at a low level during 
the window period, or at higher levels prior to the window period, to 
continue in the fishery for an adjustment period before they would be 
required to have a permit with an ``A'' endorsement. The ``B'' 
endorsements were developed so that there would be at least 7 years 
between the announcement of the cutoff date to qualify for an ``A'' 
endorsement and the expiration of the endorsements. All ``B'' 
endorsements expired at the end of 1996. Seven years was reported as 
the minimum tax depreciation period for fishing vessels, and the period 
commonly chosen by vessel owners. Thus, the adjustment years ensured 
that a large number of the vessel owners receiving ``B'' endorsements 
had the opportunity to completely depreciate their vessels before 
making their adjustments to other fisheries, or investing in permits 
with ``A'' endorsements.
    This proposed rule would eliminate the current regulations that 
relate to ``B'' endorsements at 50 CFR 660.336. As of December 31, 
1996, these regulations had no relevance.

Classification

    At this time, NMFS has not determined that the FMP amendment that 
this rule would implement is consistent with the national standards of 
the Magnuson-Stevens Act and other applicable laws. NMFS, in making 
that determination, will take into account the data, views, and 
comments received during the comment period.
    This proposed rule has been determined to be not significant for 
the purposes of E.O. 12866.
    Notwithstanding any other provision of law, no person is required 
to respond to, nor shall a person be subject to, penalty for failure 
to, comply with a collection-of-information subject to the requirements 
of the Paperwork Reduction Act (PRA) unless the collection-of-
information displays a currently valid Office of Management and Budget 
(OMB) control number. This proposed rule contains a collection of 
information burden only for those persons who are initially denied 
sablefish endorsements, but who wish to provide documentation to prove 
that they have in fact met the endorsement qualifications. It is 
expected that the burden will be 2 hours to make an appeal. NMFS has 
requested OMB approval for this collection of information. This is a 
one-time only collection of information, and contains no annual 
reporting and recordkeeping burden. Public comment is sought regarding: 
Whether this proposed collection of information is necessary for the 
proper performance of the functions of the agency, including whether 
the information has practical utility; the accuracy of the burden 
estimate; ways to enhance the quality, utility, and clarity of the 
information to be collected; and ways to minimize the burden of the 
collection of information,

[[Page 13587]]

including through the use of automated collection techniques or other 
forms of information technology. Comments on the collection of 
information burden or any other aspect of the information collection 
may be sent to OMB, listed in the ADDRESSES section above.
    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce certified to the Chief Counsel for Advocacy of 
the Small Business Administration (SBA) that this proposed rule, if 
adopted, would not have a significant economic impact on a substantial 
number of small entities, as follows:

    The proposed rule would limit participation in the limited entry 
fixed gear ``primary'' or ``regular'' sablefish season north of 
36 deg. N. latitude to those persons meeting the following 
qualifications for a sablefish endorsement to their limited entry 
permits: at least 16,000 pounds of sablefish catch in any one year 
from 1984 to 1994.
    Of the 237 vessel owners that currently hold fixed gear limited 
entry permits, 62 (26 percent) will not receive sablefish 
endorsements, which is a substantial number of small entities as a 
portion of the limited entry, fixed gear sablefish fleet. However, 
only 23 vessel owners (less than 10 percent) that derived more than 
5 percent of their 1995 income from the sablefish fishery will not 
receive sablefish endorsements; thus the number of small entities 
that will incur a significant impact from these regulations is not 
substantial. Sablefish endorsement recipients will be assessed a 
one-time endorsement processing fee that has been initially 
estimated at $800. Costs of production and compliance costs would 
only increase for those permit holders who choose to purchase new 
permits with attached sablefish endorsements--an unlikely course of 
action for those persons with less than 5 percent of their gross 
annual revenues resulting from the sablefish fishery. There are no 
capital costs associated with this action, and no small businesses 
will be forced to cease operations through this proposed action.
    This amendment is intended to promote improved safety, 
stability, and economic viability of the sablefish fishery by 
limiting or reducing harvesting capacity in the Pacific Coast 
sablefish fishery.

    The socio-economic impacts are discussed above and contained in the 
EA/RIR/IRFA.

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: March 19, 1997.
Charles Karnella,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR 660 is proposed to 
be amended as follows:

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

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

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

    2. In Sec. 660.306, new paragraphs (s) and (t) are added to read as 
follows:


Sec. 660.306  Prohibitions.

* * * * *
    (s) During the ``regular'' or ``mop-up'' season described in 
Sec. 660.323(a)(2)(iii) and (iv), take and retain, possess or land 
sablefish taken and retained north of 36 deg. N. lat., with longline or 
trap (or pot) gear, by a vessel with a limited entry permit registered 
for use with that vessel and endorsed for longline or trap (or pot) 
gear, that does not have a sablefish endorsement.
    (t) During the ``regular'' or ``mop-up'' season described in 
Sec. 660.323(a)(2)(iii) and (iv), take and retain, possess or land 
sablefish taken and retained north of 36 deg. N. lat., with open access 
gear, by a vessel with a limited entry permit registered for use with 
that vessel and endorsed for longline or trap (or pot) gear, that does 
not have a sablefish endorsement.
    3. In Sec. 660.323, paragraph (a)(2) introductory text is revised 
and paragraphs (a)(2)(i) through (a)(2)(v) are redesignated as 
(a)(2)(ii) through (a)(2)(vi) respectively and paragraph (a)(2)(i) is 
added to read as follows:


Sec. 660.323  Catch Restrictions.

    (a) * * *
    (2) Nontrawl Sablefish. This paragraph (a)(2) applies to the 
regular and mop-up season for the nontrawl limited entry sablefish 
fishery, except for paragraphs (a)(2)(i) and (vi) of this section, 
which also apply to the open-access fishery.
    (i) Sablefish endorsement. In order to lawfully participate in the 
regular season or mop-up season for the nontrawl limited entry fishery, 
the owner of a vessel must hold (by ownership or otherwise) a limited 
entry permit for that vessel, affixed with both a gear endorsement for 
longline or trap (or pot) gear, and a sablefish endorsement.
* * * * *
    4. In Sec. 660.333, paragraphs (a), the first sentence of (c)(1), 
(d), and (h)(2)(iii) are revised to read as follows:


Sec. 660.333  Limited entry fishery - general.

    (a) General. Participation in the limited entry fishery requires 
that the owner of a vessel hold (by ownership or otherwise) a limited 
entry permit affixed with a gear endorsement registered for use with 
that vessel for the gear being fished. A sablefish endorsement is also 
required for a vessel to participate in the regular and/or mop-up 
seasons for the nontrawl, limited entry sablefish fishery, north of 
36 deg. N. lat. There are three types of gear endorsements: ``A,'' 
``Provisional A,'' and ``Designated species B.'' More than one type of 
gear endorsement may be affixed to a limited entry permit. While the 
limited entry fishery is open, vessels fishing under limited entry 
permits may also fish with open access gear; except that during a 
period when the limited entry fixed gear sablefish fishery is limited 
to those vessels with sablefish endorsements, a longline or pot (or 
trap) limited entry permit holder without a sablefish endorsement may 
not fish for sablefish with open access gear.
* * * * *
    (c) Transfer and registration of limited entry permits and gear 
endorsements.
    (1) Upon transfer of a limited entry permit, the FMD will reissue 
the permit in the name of the new permit holder with such gear and, if 
applicable, species endorsements as are eligible for transfer with the 
permit. * * *
* * * * *
    (d) Evidence and burden of proof. A vessel owner (or person holding 
limited entry rights under the express terms of a written contract) 
applying for issuance, renewal, transfer, or registration of a limited 
entry permit has the burden to submit evidence that qualification 
requirements are met. The owner of a permit endorsed for longline or 
trap (or pot) gear applying for a sablefish endorsement under 
Sec. 660.336(c)(2) has the burden to submit evidence to prove that 
qualification requirements for a sablefish endorsement are met. The 
following evidentiary standards apply:
* * * * *
    (h) * * *
    (2) * * *
    (iii) Two or more limited entry permits with ``A'' gear 
endorsements for the same type of limited entry gear may be combined 
and reissued as a single permit with a larger size endorsement. With 
respect to permits endorsed for nontrawl limited entry gear, a 
sablefish endorsement will be issued for the new permit only if all of 
the permits being combined have sablefish endorsements. The vessel 
harvest capacity rating for each of the permits being combined is that 
indicated in Table 2 of this part for the LOA (in feet) endorsed on the 
respective limited entry permit.
* * * * *
    5. In Sec. 660.334, paragraph (a) is revised to read as follows:

[[Page 13588]]

Sec. 660.334  Limited entry permits--``A'' endorsement.

    (a) A limited entry permit with an ``A'' endorsement entitles the 
holder to participate in the limited entry fishery for all groundfish 
species with the type(s) of limited entry gear specified in the 
endorsement, except for sablefish harvested north of 36 deg. N. lat. 
during times and with gears for which a sablefish endorsement is 
required. See Sec. 660.336 for provisions regarding sablefish 
endorsement requirements.
* * * * *
    6. In Sec. 660.335, paragraph (a) is revised to read as follows:


Sec. 660.335  Limited entry permits--`` Provisional A'' endorsement.

    (a) A ``provisional A'' endorsement entitles the holder to 
participate in the limited entry fishery for all groundfish species 
with the type(s) of limited entry gear specified in the endorsement, 
except for sablefish harvested north of 36 deg. N. lat. during times 
and with gears for which a fixed gear sablefish endorsement is 
required. See Sec. 660.336 for provisions regarding sablefish 
endorsement requirements.
* * * * *
    7. Sec. 660.336 is revised to read as follows:


Sec. 660.336  Limited entry permits--sablefish endorsement.

    (a) General. Participation in the limited entry fixed gear 
sablefish fishery during the ``regular'' or ``mop-up'' season described 
in Sec. 660.323 (a)(2)(iii) and (iv) north of 36 deg. N. lat., requires 
that an owner of a vessel hold (by ownership or otherwise) a limited 
entry permit with a longline or trap (or pot) endorsement and a 
sablefish endorsement, and that the permit has been registered for use 
with that vessel. During a period when the limited entry sablefish 
fishery is restricted to those limited entry vessels with sablefish 
endorsements, a vessel with a longline or pot limited entry permit but 
without a sablefish endorsement cannot be used to harvest sablefish in 
the open access fishery, even with open access gear.
    (1) A sablefish endorsement will be affixed to the permit and will 
remain valid when the permit is transferred.
    (2) A sablefish endorsement is not separable from the limited entry 
permit, and therefore may not be transferred separately from the 
limited entry permit.
    (b) Endorsement qualifying criteria. A sablefish endorsement will 
be affixed to any limited entry permit that meets the sablefish 
endorsement qualifying criteria.
    (1) Permit catch history will be used to determine whether a permit 
meets the qualifying criteria for a fixed gear sablefish endorsement. 
Permit catch history includes the catch history of the vessel(s) that 
initially qualified for the permit, and subsequent catch histories 
accrued when the limited entry permit or permit rights were associated 
with other vessels. If the current permit is the result of the 
combination of multiple permits, then for the combined permit to 
qualify for an endorsement, at least one of the permits that were 
combined must have had sufficient sablefish history to qualify for an 
endorsement; or the permit must qualify based on catch occurring after 
it was combined, but taken within the qualifying period. The catch 
history of a permit also includes the catch of any interim permit held 
by the current owner of the permit during the appeal of an initial NMFS 
decision to deny the initial issuance of a limited entry permit, but 
only if the appeal for which an interim permit was issued was lost by 
the appellant, and the owner's current permit was used by the owner in 
the 1995 limited entry sablefish fishery. The catch history of an 
interim permit where the full ``A'' permit was ultimately granted will 
also be considered part of the catch history of the ``A'' permit. Only 
sablefish catch regulated by this part that was taken with longline or 
fish trap (or pot) gear will be considered for this endorsement.
    (2) The sablefish endorsement qualifying criteria are: at least 
16,000 lb (7,257.5 kg) round weight of sablefish caught with longline 
or trap (or pot) gear in one calendar year from 1984 through 1994. All 
catch must be sablefish managed under this part. Sablefish taken in 
tribal set aside fisheries does not qualify.
    (c) Issuance process. (1) The FMD will notify each limited entry, 
fixed gear permit owner by letter whether Pacific States Marine 
Fisheries Commission's Pacific Fisheries Information Network (PacFIN) 
records indicate that his permit qualifies for a sablefish endorsement. 
A person whose permit qualifies based on PacFIN information will be 
issued a revised limited entry permit with a sablefish endorsement, 
upon payment of a one-time processing fee.
    (2) Within 30 days of the issuance of the letter by the FMD 
indicating that PacFIN records do not show that the permit qualifies 
for a sablefish endorsement, a permit owner may submit information to 
the FMD to demonstrate that the permit qualifies for a sablefish 
endorsement. Section 660.333(d) sets out the relevant evidentiary 
standards and burden of proof.
    (3) After review of the evidence submitted under 
Sec. 660.336(c)(2), and any additional information the FMD finds to be 
relevant, the FMD will notify a permit owner if the permit qualifies 
for a sablefish endorsement. A person whose permit qualifies will be 
issued a revised limited entry permit with a sablefish endorsement upon 
payment of a processing fee.
    (4) After review of the evidence submitted under 
Sec. 660.336(c)(2), and any additional information the FMD finds to be 
relevant, the FMD will notify a permit owner in writing if his permit 
does not qualify for a sablefish endorsement.
    (5) Within 30 days of the issuance of a letter under 
Sec. 660.336(c)(4) that a permit(or interim permit) does not qualify 
for a sablefish endorsement, an appeal may be filed with the Regional 
Administrator. The appeal must be in writing and must allege facts or 
circumstances, and include credible evidence, demonstrating why the 
permit (or interim permit) qualifies for the sablefish endorsement. The 
appeal of a denial of a sablefish endorsement will not be referred to 
the Council for a recommendation under Sec. 660.340(e).
    (6) Absent good cause for further delay, the Regional Administrator 
will issue a written decision on the appeal within 45 days of receipt 
of the appeal. The Regional Administrator's decision is the final 
administrative decision of the Department of Commerce as of the date of 
the decision.
[FR Doc. 97-7363 Filed 3-20-97; 8:45 am]
BILLING CODE 3510-22-F