[Federal Register Volume 62, Number 124 (Friday, June 27, 1997)]
[Rules and Regulations]
[Pages 34670-34675]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-16954]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 970311053-7139-02; 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: Final rule.

-----------------------------------------------------------------------

SUMMARY: NOAA issues this final rule to implement Amendment 9 to the 
Fishery Management Plan for the Pacific Coast Groundfish Fishery (FMP). 
Amendment 9 requires a sablefish endorsement on limited entry permits 
for permit holders to participate in the regular and mop-up 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 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 eliminates 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: This rule will become effective July 28, 1997.

ADDRESSES: Copies of Amendment 9, the Environmental Assessment (EA) and 
the Regulatory Impact Review (RIR) are available from Lawrence D. Six, 
Executive Director, Pacific Fishery Management Council, 2130 SW Fifth 
Avenue, Suite 224, Portland, OR 97201. Comments regarding the 
collection-of-information requirements contained in this rule should be 
sent to Mr. William Stelle, Administrator, Northwest Region, NMFS, 7600 
Sand Point Way, NE, BIN C157000, 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, and to the 
Office of Information and Regulatory Affairs, Office of Management and 
Budget (OMB), Washington, D.C. 20503 (Attention: NOAA Desk Officer).

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

SUPPLEMENTARY INFORMATION: NMFS issues this final rule to implement a 
recommendation from the Pacific Fishery Management Council (Council), 
under the authority of the FMP and the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act). The background 
and rationale for the Council's recommendation were fully described in 
the notice of proposed rulemaking for this action (62 FR 13583, March 
21, 1997). Public comments were requested through May 5, 1997. Twelve 
letters were received and are addressed later in the preamble to this 
final rule. The comments resulted in no change to the regulatory text 
that was published as a proposed rule.
    In summary, a sablefish endorsement will be required on a limited 
entry permit of a vessel in order for that vessel to harvest sablefish 
in the area north of 36 deg. N. lat. during the regular (derby or 
cumulative limit) or mop-up limited entry sablefish fishery. A 
sablefish endorsement will not be required for a vessel with a limited 
entry permit to participate in the daily trip limit fishery that 
operates outside of the time period of the regular or mop-up season. 
NMFS has accepted the Council's recommendation for sablefish 
endorsement qualifying criteria: at least 16,000 lb (7,257.5 kg) of 
sablefish catch from the sablefish fishery, taken in any one calendar 
year from 1984 through 1994.
    Adoption of the above 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 considers 
dependence on the fishery by granting 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.
    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

[[Page 34671]]

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 in calculating permit catch 
histories. Harvest taken in tribal sablefish set asides will not be 
included in calculating permit catch histories. The following 
clarification, which was not in the proposed rule, has been added to 
the final rule: Sablefish harvested illegally or landed illegally will 
not be included in calculating permit catch histories. The qualifying 
level was set to grant permits to those who substantially depended on 
the fishery at some point between 1984 and 1994. It was not intended to 
reward those who violated the laws intended to conserve the fishery.
    A sablefish endorsement will 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 and mop-up, limited entry, nontrawl sablefish 
fishery, as specified in the regulations; this harvest will count 
against the limited entry fixed gear allocation for the area north of 
36 deg. N. lat. Catch taken in the area south of 36 deg. N. lat. counts 
against a southern area (Conception Area) acceptable biological catch 
(ABC). In a separate rulemaking action, NMFS is proposing to eliminate 
the regular and mop-up season south of 36 deg. N. lat., which will 
result in a year-round, daily trip limit fishery in that area, for 
which a permit endorsement is not required (62 FR 30305, June 3, 1997).
    Under the 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 is consistent with the current combination requirements for 
limited entry permit gear endorsements.
    Limited entry permit holders with sablefish endorsements may 
participate in the regular, limited entry, nontrawl sablefish fishery, 
under the limited entry regulations. Outside of the regular season, 
they may catch sablefish with their endorsed gear under the small daily 
trip limits, under the limited entry regulations. Limited entry permit 
holders with sablefish endorsements may also catch sablefish with open 
access gear other than their endorsed gear, under the open access 
fishery regulations.
    Vessels that do not qualify for an endorsement because of a failure 
to meet the 16,000 lb (7,257.5 kg) landing requirement may continue to 
harvest sablefish in the limited entry daily trip limit fishery when 
the regular season is not open. Limited entry permit holders who do not 
have sablefish endorsements will be allowed to either use their 
endorsed gear and fish under the limited entry regulations, or use open 
access gear and fish under the open access regulations. Limited entry 
permit holders who do not have sablefish endorsements may not fish for 
sablefish with either limited entry or open access gear during the 
regular, and mop-up limited entry, non-trawl sablefish seasons.
    Sablefish endorsements will be issued by NMFS, prior to the start 
of the regular 1997 limited entry fixed gear sablefish season. NMFS 
will 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 (FMD), NMFS Northwest Region, will 
notify each limited entry fixed gear permit owner by letter whether 
PacFIN records indicate that his or her permit qualifies for a 
sablefish endorsement. Persons who qualify for sablefish endorsements 
will be issued revised limited entry permits with endorsements, upon 
payment of a one-time fee of $797 covering the estimated administrative 
cost of researching PacFIN records and limited entry permit processing.
    If PacFIN records do not show that the permit qualifies for an 
endorsement, a permit owner who believes that the permit or interim 
permit qualifies for an endorsement may send supporting documentation, 
such as fish tickets to the FMD to demonstrate how the qualifying 
criteria have been met. An endorsement will be issued if the permit 
owner demonstrates that his or her permit meets the qualifying 
criteria. If the permit is denied by the FMD after review of 
documentation submitted by the owner, the owner may appeal the denial 
to the Regional Administrator, Northwest Region (Regional 
Administrator). 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

    All ``B'' endorsements expired at the end of 1996. This rule 
eliminates the current regulations that relate to ``B'' endorsements at 
50 CFR 660.336. As of January 1, 1997, these regulations had no 
relevance.

Comments and Responses

    The comments in 12 letters received during the public comment 
period ending May 5, 1997, are summarized below. All 12 letters opposed 
the proposed rule.
     Comment 1: The Council and NMFS should not alter the rights 
associated with limited entry permits. Only the permit holder should be 
able to sell or give up any or all of the rights granted by the 
issuance of a limited entry permit. This rule will reduce the value of 
existing limited entry, fixed gear permits that do not qualify for an 
endorsement.
    Response: When the limited entry program was first designed under 
Amendment 6 to the FMP, permits were viewed as conferring a privilege 
on a permit holder to operate the permitted vessel in the Pacific coast 
groundfish fishery, in conformance with the FMP and using the gear(s) 
for which the permit is endorsed. The Council and NMFS specifically 
retained the right to revise the FMP in the future, and to change or 
abolish the privileges associated with limited entry permits. The 
limited entry program specifically states this in the FMP at 14.1.4, 
``Nature of the Interest Created.''
    Comment 2: Amendment 9 would allocate sablefish catch away from 
smaller producers to larger producers.
    Response: A portion of the limited entry, fixed gear sablefish 
allocation will continue to be available to vessels that do not qualify 
for sablefish endorsements in the daily trip limit fishery. The trip 
limit fishery has been traditionally dominated by small producers with 
annual sablefish landings of less than the 16,000 pounds (7,257.5 kg) 
qualifying criteria. Small producers who did participate in the regular 
and mop-up fishery may have to increase their participation in the 
daily trip limit fishery to ensure that they maintain their past catch 
levels. It is clear that there will be a shift in harvest opportunity 
and probably in sablefish harvest from small producers to larger 
producers. The Council's rationale is to manage the fishery to support 
fishermen with more substantial dependence on the fishery.

[[Page 34672]]

    Comment 3: The West Coast Limited Entry fixed gear groundfish 
fishery is a multi-species fishery. Fishers rely on a variety of 
species and may change their concentration on certain species from year 
to year. To permanently exclude someone from the sablefish season 
because he did not rely on that fishery as his main source of income is 
unfair and shows a lack of understanding of how the groundfish 
fisheries operate.
    Response: The sablefish endorsement program does not permanently 
exclude permit holders who do not qualify for endorsements from 
participating in the limited entry, fixed gear sablefish fishery. While 
the sablefish endorsement program does exclude unendorsed permit 
holders from participating in the regular and mop-up fishery, it does 
not permanently exclude unendorsed permit holders from participating in 
the limited entry, fixed gear sablefish fishery. Permit holders without 
sablefish endorsements who want to participate in the regular or mop-up 
fishery may wish to purchase or lease an endorsed permit for that 
purpose. NMFS and the Council realize that fishers vary their fishing 
strategies throughout each year and over the long term for a variety of 
reasons, such as changing market conditions or natural fluctuations in 
fish stock availability. However, extensive Council and NMFS analysis 
has shown that a certain portion of the limited entry, fixed gear fleet 
is substantially dependent upon the sablefish resource. The sablefish 
endorsement program limits participation in the regular sablefish 
season to those persons who have been substantially dependent on the 
sablefish resource, while the trip limit fishery ensures that persons 
with a more varied fishing strategy may continue to include sablefish 
in their annual catch.
    Comment 4: The 16,000 lb (7,257.5 kg) qualifying criteria should be 
changed to 3,000 lb (1,360.78 kg) to recognize the efforts of the small 
boat fleet. The 16,000 lb (7,257.5 kg) qualifying criteria was set in 
an arbitrary manner and the Council did not take into account the 
economic and social impacts of setting that level of qualifying 
criteria.
    Response: The Council staff's June 1996 analysis considered 
endorsement qualifying criteria of either 3,000 lb (1,360.78 kg) per 
year or 25,500 lb (11,566.61 kg) per year, and the economic and social 
impacts that either of these qualifying criteria would have on limited 
entry, fixed gear permit holders. In order to genuinely constrain 
effort in the fleet, the Council had to choose between a small landing 
requirement for a qualifying period that included fewer years, or a 
high landing requirement that included more years to encompass early 
years and more recent years. Reflecting their desire to recognize 
historic and recent participation, the Council compromised and 
established qualifying criteria that both include recent participation, 
and acknowledge fishers whose incomes depend significantly on the 
sablefish resource. The Council's final analysis includes a discussion 
of the economic and social impacts of the 16,000 lb (7,257.5 kg) 
qualifying criteria.
    Comment 5: Amendment 9 would allocate sablefish available harvest 
away from fishers working in waters south of 36 deg. N. lat. to fishers 
working in the northern portion of the exclusive economic zone.
    Response: There is a separate Acceptable Biological Catch (ABC) for 
the Conception management area (waters south of 36 deg. N. 
lat.), so division of catch between the two geographic areas will not 
alter as a result of the sablefish endorsement program. Also, new 
regulations proposed for the Conception area in another rulemaking 
would eliminate the opportunity to fish in the primary season south of 
36 deg. N. lat. while providing continuing harvesting opportunity under 
a year-long daily trip limit. The purpose of this change is to 
discourage effort transfers to the Conception area and maintain catches 
at historical levels.
    Comment 6: Without an endorsement program for the waters south of 
36 deg. N. lat., boats from the northern fleet will move their effort 
to southern waters, competing with the local southern fleet.
    Response: Because annual sablefish landings from waters south of 
36 deg. N. lat. are relatively low, NMFS has adopted the Council 
recommendation to apply the endorsement requirement to fishing 
participation in the primary season, only north of 36 deg. N. lat. 
Fishers in the area south of 36 deg. N. lat. would not be required to 
hold an endorsement in the southern area sablefish fishery. NMFS in 
another rulemaking has proposed to eliminate the primary fishing 
opportunity south of 36 deg. N. lat., which would result in a trip 
limit only fishery for the southern area (62 FR 30305, June 3, 1997). 
Daily trip limits for the southern area are high enough to sustain 
historic fishing levels and patterns for that area, yet low enough to 
not provide an incentive for northern boats to shift their fishing 
efforts to the south.
    Comment 7: Sablefish landings from south of 36 deg. N. lat. have 
been relatively low because fishers in that area must work farther 
offshore on trips of 7-10 days to catch sablefish, yet are constrained 
by a daily trip limit that does not allow them to land all of the 
sablefish that they are able to catch during those distant trips.
     Response: Sablefish fishers, fishing south of 36 deg. N. lat., who 
wished to catch and land amounts greater than what has been allowed in 
the daily trip limit fishery also had the opportunity to fish in the 
primary sablefish season, which, during the qualifying period of 1984 
through 1994, started at about 10 months and diminished to 20 days. 
During the regular season, they were not constrained by the trip 
limits.
     Comment 8: The qualification period of 1984 through 1994 is 
arbitrary and does not account for recent participation, such as from 
the 1995 and 1996 seasons.
     Response: On February 5, 1992, NMFS published a Notice of Control 
Date (57 FR 4394), indicating that the Council was considering further 
access restrictions to the limited entry groundfish fisheries. At that 
time, the Council intended to consider individual quota (IQ) programs 
for West Coast halibut and sablefish fisheries. In the Notice of 
Control Date, NMFS stated, ``If IQ programs are adopted, the Council 
has expressed its intent to exclude from consideration fishing activity 
occurring after November 13, 1991, in establishing priorities for 
issuance and shares of individual quotas for these fisheries.'' 
Although the Council nearly completed an IQ program, since 1995, the 
Council has been unable to recommend an IQ program for the fixed gear 
sablefish fishery due to a series of Congressional actions, including a 
restriction in NOAA's appropriation prohibiting spending on development 
of IQ programs and the current Magnuson-Stevens Act moratorium on new 
IQ programs.
    On August 1, 1995, NMFS published another Notice of Control Date 
(60 FR 39144), this time stating that the Council was considering 
establishing a sablefish endorsement program for limited entry, fixed 
gear permit holders to control participation or effort in the regular 
sablefish season. The notice read ``If a limited entry program is 
established, the Council is considering June 29, 1995, as a possible 
control date. Consideration of a control date is intended to discourage 
new entry by nontrawl ``A'' permit holders into the sablefish fishery 
based on economic speculation during the Council's deliberation on the 
issues.'' A qualifying period ending on June 29, 1995, would not have 
included the 1995, regular season.
    Participation in the sablefish fishery has increased rapidly in 
recent years, and the regular season declined in

[[Page 34673]]

duration to 7 and 5 day fisheries in 1995 and 1996, respectively. The 
Council could not recommend an IQ program, yet recognized a significant 
need to constrain the overcapitalization in the fixed gear sablefish 
fleet. The sablefish endorsement program was designed to limit 
participation in the limited entry, fixed gear, regular sablefish 
season. Qualifying criteria for the endorsement include the years 1984 
through 1994, a period that recognizes fishing during the limited entry 
permit qualifying period of 1984 through 1988, as well as recent 
participation. The decision recognized that in order to work toward 
rationalization of the fishery, participation had to be limited. The 
Council and NMFS have considered historic and current participation and 
have determined the new system is equitable. It includes historic 
participants with substantial participation in the fishery, but 
excludes the most recent entrants who came in after the warnings 
regarding effort limitation.
     Comment 9: Permit holders who have recently purchased a permit 
with the expectation of fishing for sablefish or who did not invest in 
sablefish gear until 1995 or 1996, and who may have had 1995 and 1996 
landings of greater than 16,000 lb (7,257.5 kg) will be unfairly denied 
sablefish endorsements because the permits that they purchased are not 
associated with sufficient sablefish landings from the time of the 
qualifying period for the permit to qualify for the endorsement.
     Response: As noted in the response to Comment 8, above, persons 
owning limited entry permits and persons who purchased limited entry 
permits in order to participate in the limited entry fishery had ample 
notice of the Council's intent to restrict participation in the 
sablefish fishery. In addition to Federal Register notification 
regarding control dates, the Council, when discussing the limited entry 
program, acknowledged the need to further limit participation in the 
fixed gear sablefish fishery. There have also been numerous public 
announcements, hearings, Council newsletters and analyses discussing 
the Council's intent to recommend limiting access to the fixed gear 
sablefish fishery. Limited entry permit holders and persons wishing to 
purchase a limited entry permit to participate in the West Coast 
groundfish fishery had abundant opportunity to learn that the Council 
intended to limit access to the sablefish fishery and would qualify 
participants based on permit catch history. In fact, several persons 
who have purchased limited entry permits in order to participate in the 
West Coast groundfish fishery specifically purchased permits with high 
sablefish catch history in order to ensure their own future 
participation in the limited entry, fixed gear, regular sablefish 
season.
     Comment 10: If the Council had not set an IQ control date for 
1991, fishers would have accumulated sablefish landings in order to 
ensure that they would qualify for any later introduction of a limited 
access program, such as the sablefish endorsement program.
     Response: The Council's intent in publishing the control date was 
to prevent fishers from increasing their landings of certain species on 
speculation that those species might be included in an IQ program. It 
would have been irresponsible for the Council to encourage fishers to 
overcapitalize and increase their rates of landings by announcing an 
intention to implement an IQ program without announcing a control date.
     Comment 11: Limited entry permit holders who are denied sablefish 
endorsements will shift their effort to other groundfish stocks, 
increasing fishing pressure on those stocks.
     Response: The sablefish endorsement qualifying criteria were 
specifically designed to recognize a significant annual income 
dependence on sablefish over a broad range of years. Permit holders who 
do not meet the qualifying criteria will be those fishers who have not 
had a significant historic dependence on the regular season for the 
limited entry, fixed gear sablefish fishery. Limited entry permit 
holders who are denied sablefish endorsements will still have the 
opportunity to participate in the daily trip limit fishery. Therefore, 
it is expected that those persons who are denied sablefish endorsements 
will not cause a significant increase in fishing pressure on other 
groundfish stocks.
    Comment 12: There should be an appeals process for denial of 
sablefish endorsements that allows for waiver of denial in cases of 
hardship.
    Response: Unlike the limited entry program's qualifying period of 
1984 through 1988, the sablefish endorsement program has a long 
qualifying period that encompasses the limited entry window period plus 
more recent years. It is unlikely that a fisher who suffered a hardship 
over an 11 year period that prevented him or her from qualifying for 
endorsement could be said to have a significant dependence on sablefish 
income. Endorsement qualifying criteria consider catch history 
associated with the permit. If a permit holder purchased a limited 
permit in recent years but was unable to fish for sablefish with the 
permit due to accident or illness, it is expected that the permit 
holder would have leased his or her permit to another fisher if the 
permit holder's annual income were significantly dependent on 
sablefish.

Classification

    The Regional Administrator determined that Amendment 9 to the FMP 
is necessary for the conservation and management of the sablefish 
fishery and is consistent with the Magnuson-Stevens Act and other 
applicable laws.
    This final rule has been determined to be not significant for the 
purposes of E.O. 12866.
    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce certified to the Chief Counsel for Advocacy of 
the Small Business Administration (SBA) that this rule would not have a 
significant economic impact on a substantial number of small entities. 
No comments were received regarding this certification. As a result, a 
regulatory flexibility analysis was not prepared.
    This rule contains a collection-of-information requirement subject 
to the Paperwork Reduction Act (PRA) that has been approved by OMB. 
Notwithstanding any other provision of law, no person is required to 
respond to nor shall a person be subject to a penalty for failure to 
comply with a collection-of-information subject to the requirements of 
the PRA unless that collection-of-information displays a currently 
valid OMB control number. This rule's collection-of-information burden 
is 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 public reporting burden will be 2 hours to make an appeal. This is 
a one-time only collection-of-information, and contains no annual 
reporting and recordkeeping burden. This collection-of-information was 
approved by OMB under OMB Control Number 0648-0203. Send comments 
regarding the collection-of-information burden or any other aspect of 
the information collection to NMFS and OMB (see ADDRESSES).

List of Subjects in 50 CFR Part 660

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


[[Page 34674]]


    Dated: June 24, 1997.
Charles Karnella,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR 660 is amended as 
follows:

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

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

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

    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, 
paragraphs (a)(2)(i) through (a)(2)(v) are renumbered as (a)(2)(ii) 
through (a)(2)(vi) respectively, and new (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)(ii) 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, paragraph (a), the first sentence of paragraph 
(c)(1), and paragraphs (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 of submitting evidence that the 
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 of submitting evidence that the 
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:


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, registered for use with that vessel, with a longline or 
trap (or pot) endorsement and a sablefish endorsement. 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,

[[Page 34675]]

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 in calculating permit catch 
histories. Sablefish harvested illegally or landed illegally will not 
be considered.
    (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 of qualification status 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) If the permit owner receives a letter of qualification status 
from the FMD indicating that PacFIN records do not show that his or her 
permit qualifies for a sablefish endorsement and if the permit owner 
believes that there is sufficient evidence to show that his or her 
permit does qualify for an endorsement, that permit holder must submit 
information to the FMD to demonstrate that the permit does qualify for 
a sablefish endorsement within 30 days of the issuance of the FMD's 
letter of qualification status. 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 the one-time 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 of his determination that 
the permit does not qualify for a sablefish endorsement.
    (5) If permit holder wishes to file an appeal of the determination 
under Sec. 660.336(c)(4), the appeal must be filed with the Regional 
Administrator within 30 days of the issuance of the letter (at 
Sec. 660.336(c)(4)). 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. 97-16954 Filed 6-26-97; 8:45 am]
BILLING CODE 3510-22-F