[Federal Register Volume 71, Number 223 (Monday, November 20, 2006)]
[Rules and Regulations]
[Pages 67210-67273]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-9229]
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Part II
Department of Commerce
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National Oceanic and Atmospheric Administration
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15 CFR Part 902
50 CFR Part 679
Fisheries of the Exclusive Economic Zone Off Alaska; Allocating Gulf
of Alaska Fishery Resources; Final Rule
Federal Register / Vol. 71, No. 223 / Monday, November 20, 2006 /
Rules and Regulations
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 902
50 CFR Part 679
[Docket No. 060511126-6285-02; I.D. 050306E]
RIN 0648-AT71
Fisheries of the Exclusive Economic Zone Off Alaska; Allocating
Gulf of Alaska Fishery Resources
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues a final rule to implement Amendment 68 to the
Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP).
This action implements statutory provisions for the Central Gulf of
Alaska Rockfish Pilot Program (hereafter referred to as the Program).
This action is necessary to enhance resource conservation and improve
economic efficiency for harvesters and processors who participate in
the Central Gulf of Alaska (GOA) rockfish fishery. This action is
intended to promote the goals and objectives of the Magnuson-Stevens
Fishery Conservation and Management Act (Magnuson-Stevens Act), the
FMP, and other applicable law.
DATES: Effective on December 20, 2006.
ADDRESSES: Copies of Amendment 68; the final Environmental Assessment
(EA) and Regulatory Impact Review (RIR); Initial Regulatory Flexibility
Analysis (IRFA); and Final Regulatory Flexibility Analysis (FRFA) for
this action may be obtained from the NMFS Alaska Region, P.O. Box
21668, Juneau, AK 99802, Attn: Ellen Walsh, and on the NMFS Alaska
Region website at http://www.fakr.noaa.gov. The proposed rule to
implement Amendment 68 also may be accessed at this website.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
rule may be submitted to NMFS (at the above address, and by e-mail to
[email protected] or by fax to 202-395-7285.
FOR FURTHER INFORMATION CONTACT: Glenn Merrill, 907-586-7228 or
[email protected].
SUPPLEMENTARY INFORMATION: The groundfish fisheries in the GOA are
managed under the FMP. The North Pacific Fishery Management Council
(Council) prepared the FMP under the authority of the Magnuson-Stevens
Act, 16 U.S.C. 1801 et seq. Regulations implementing the FMP appear at
50 CFR part 679. General regulations governing U.S. fisheries also
appear at 50 CFR part 600.
Congress granted NMFS additional specific statutory authority to
manage rockfish fisheries under the FMP in Section 802 of the
Consolidated Appropriations Act of 2004 (Public Law 108-199; Section
802). In Section 802, Congress required the Secretary in consultation
with the Council to establish the Program with specific provisions. The
Program was developed and recommended by the Council to meet the
requirements of Section 802, which states:
SEC. 802. GULF OF ALASKA ROCKFISH DEMONSTRATION PROGRAM.
The Secretary of Commerce, in consultation with the North Pacific
Fishery Management Council, shall establish a pilot program that
recognizes the historic participation of fishing vessels (1996 to
2002, best 5 of 7 years) and historic participation of fish
processors (1996 to 2000, best 4 of 5 years) for Pacific ocean
perch, northern rockfish, and pelagic shelf rockfish harvested in
Central Gulf of Alaska. Such a pilot program shall (1) provide for a
set-aside of up to 5 percent for the total allowable catch of such
fisheries for catcher vessels not eligible to participate in the
pilot program, which shall be delivered to shore-based fish
processors not eligible to participate in the pilot program; (2)
establish catch limits for non-rockfish species and non-target
rockfish species currently harvested with Pacific ocean perch,
northern rockfish, and pelagic shelf rockfish, which shall be based
on historical harvesting of such bycatch species. The pilot program
will sunset when a Gulf of Alaska Groundfish comprehensive
rationalization plan is authorized by the Council and implemented by
the Secretary, or 2 years from date of implementation, whichever is
earlier.
The Council adopted the proposed Program on June 6, 2005. NMFS
published a notice of availability for Amendment 68 on May 15, 2006 (71
FR 27984). The public comment period on Amendment 68 ended on July 14,
2006. NMFS received one comment specific to Amendment 68. That comment
has been addressed in our Response to Comment section for this rule. On
June 7, 2006, NMFS published a proposed rule to implement the Program
(71 FR 33040). The public comment period ended on July 24, 2006. NMFS
received nine letters on the proposed rule, including the letter
submitted during the Amendment 68 comment period. These letters
contained a total of 120 unique comments. These comments are addressed
in the Response to Comment section of this rule below. The Secretary
approved Amendment 68 on August 11, 2006.
NOAA General Counsel reviewed Section 802 and in a February 3,
2005, legal opinion to the Council concluded that:
(1) Section 802 requires the Secretary of Commerce (Secretary) and
the Council to recognize the historic participation of fishing
vessels and fish processors for specific time periods, geographical
areas, and rockfish species when establishing the [Program]; and (2)
Section 802 does not authorize recognition of the historic
participation of fishing vessels or processors in years other than
those specified in Section 802. Further, Section 802 defines the
range of years, but does not specify that a processor must have
actually processed in each of those years in order to be eligible to
participate in the [Program].
The opinion by NOAA General Counsel noted further that:
Section 802 authorizes the Council and Secretary to develop a
program that would establish ``[American Fisheries Act(AFA)]-style''
cooperatives or a program that would establish limited entry
licenses for processors in the [Central GOA] rockfish fishery.
However, Section 802 does not authorize the establishment of
processor shares since they are prohibited under Section 802 of the
[Consolidated Appropriations Act of 2004]. The legislative history
supports the position that the Council is authorized to consider a
broad range of ``appropriate'' management schemes, including ``AFA-
style'' cooperatives, which are specifically mentioned in the
legislative history. . .
The Council considered the Congressional guidance in the
development of the Program, particularly in the selection of specific
years on which to base participation, and for the ``recognition'' of
processor participation. While NMFS does not have specific authority
under the Magnuson-Stevens Act to directly regulate on-shore groundfish
processing activities, Section 802 requires NMFS to regulate on-shore
processors under this Program.
Concurrent with the enactment of Public Law 108-199, Section 802,
in 2004, industry representatives for harvesters and processors
developed proposed management alternatives for the Program and
submitted them to the Council for consideration. The Council and NMFS
prepared an analytical document (EA/RIR/IRFA) for the Program that
reviewed alternative methods to improve the economic efficiency in the
Central GOA rockfish fisheries. These included (1) status quo
management under the License Limitation Program (LLP); (2) the
formation of harvester cooperatives each of which would receive an
exclusive annual harvest privilege, with no
[[Page 67211]]
required linkage between the cooperative and a specific processor, and
establishment of a limited number of eligible processors; and (3) the
preferred alternative, the formation of harvester cooperatives each of
which would receive an exclusive annual harvest privilege, with a
required linkage between the cooperative and a qualified processor.
Currently, rockfish fisheries, and many other groundfish fisheries,
are managed under the LLP. The LLP requires harvesters to possess an
LLP license to participate in GOA groundfish fisheries, but does not
provide specific exclusive harvest privileges to LLP holders.
Harvesters with LLP licenses compete with each other for the total
allowable catch (TAC) amounts annually specified for the fisheries.
This competition creates economic inefficiencies. Harvesters increase
the fishing capacity of their vessels to exceed that of other vessels
resulting in an accelerated rate of fishing as fishermen race to
harvest more fish than their competitors before TAC amounts or halibut
mortality limits are reached and the fisheries are closed. Similarly,
processors increase their processing capacity to outcompete other
processors. These incentives to increase harvesting and processing
capacity reduce the ability of harvesters and processors to extract
additional value from the fishery products because the TACs are
harvested and processed quickly. This rapid pace provides few
opportunities to focus on quality or produce product forms that require
additional time but yield greater value. Additionally, the rapid pace
of the fishery makes management difficult.
Central GOA Rockfish Pilot Program Overview
A detailed overview of the Program is provided in the preamble to
the proposed rule (71 FR 33040; June 6, 2006), and is not repeated
here. The proposed rule is available via the internet and from NMFS
(see ADDRESSES). The following section provides a brief overview of the
Program.
Program development was initiated by trawl industry
representatives, primarily from Kodiak, Alaska, in conjunction with
catcher/processor representatives. They sought to improve the economic
efficiency of the Central GOA rockfish fisheries by developing a
program that establishes cooperatives that receive exclusive harvest
privileges. These rockfish fisheries are almost exclusively harvested
by trawl vessels in Federal waters.
The Program is authorized for two years, from January 1, 2007,
until December 31, 2008. The Program provides exclusive harvesting and
processing privileges for a specific set of rockfish species and for
associated species harvested incidentally to those rockfish in the
Central GOA-an area from 147[deg] W. longitude to 159[deg] W.
longitude.
Exclusive harvesting and processing privileges are allocated under
the Program for the primary rockfish species. The primary rockfish
species are northern rockfish, Pacific ocean perch, and pelagic shelf
rockfish. Secondary species are those species incidentally harvested
during the harvest of primary rockfish species fisheries in the Central
GOA. The secondary species for which exclusive harvesting and
processing privileges are allocated include Pacific cod, rougheye
rockfish, shortraker rockfish, sablefish, and thornyhead rockfish.
The Program allocates a portion of the total GOA halibut mortality
limit annually specified under Sec. 679.21 to participants based on
historic halibut mortality rates in the primary rockfish species
fisheries. Halibut is incidentally caught and killed in a number of the
primary rockfish species and secondary species fisheries. Halibut
caught by trawl gear is considered prohibited species catch (PSC) and
may not be retained or sold commercially under regulations established
under the authority of the Northern Pacific Halibut Act of 1982, or
under regulations implementing the FMP at Sec. 679.21. However, the
Program provides participants a fixed amount of incidental halibut
mortality through an allocation of halibut bycatch, specifically an
allocation of the halibut mortality limit. To maintain consistency with
terms currently used by NMFS and the fishing industry, this halibut
mortality limit is called a halibut PSC limit.
The Program allocates harvest privileges to holders of LLP
groundfish licenses with a history of legal Central GOA rockfish
landings associated with those licenses. The allocation of legal
landings to an LLP license allows the holder of that LLP license to
participate in the Program and receive an exclusive harvest privilege
under certain conditions. Specifically, the Program will:
1. Assign rockfish quota share (QS) for primary rockfish species to
an LLP license with a trawl gear designation endorsed for the Central
GOA. Under the Program, NMFS assigns Rockfish QS to an LLP license
based on the legal landings of primary rockfish species associated with
that LLP license. A person holding an LLP license can receive Rockfish
QS if the LLP license had a history of primary rockfish species
landings during a specific time period associated with the license and
the person holding the LLP license meets other eligibility
requirements. Once Rockfish QS is assigned to a specific LLP license it
cannot be divided or transferred separately from that LLP license. On
an annual basis, a LLP holder assigns the LLP license and Rockfish QS
assigned to that LLP license for use in a rockfish cooperative, limited
access fishery, or opt-out fishery.
2. Establish eligibility criteria for processors to have an
exclusive privilege to receive and process primary rockfish species and
secondary species allocated to harvesters in this Program.
3. Allow a person holding a LLP license with Rockfish QS to form a
rockfish cooperative with other persons (i.e., harvesters) on an annual
basis. Each rockfish cooperative receives an annual cooperative quota
(CQ), which is an amount of primary rockfish species and secondary
species dedicated to that rockfish cooperative for harvest in a given
year. Each rockfish cooperative also receives an annual CQ that limits
the amount of halibut PSC the cooperative can use while harvesting its
primary rockfish species and secondary species CQ. The amount of CQ
assigned to a cooperative is a portion of the annual TAC based on the
sum of the Rockfish QS held by all the harvesters participating in the
rockfish cooperative. A rockfish cooperative can form only under
specific conditions. A person holding a LLP license that allows them to
catch and process their catch at sea (catcher/processor vessel LLP
license) can form a rockfish cooperative with other persons holding
catcher/processor LLP licenses. A person holding a LLP license that
allows them only to deliver their catch onshore (catcher vessel LLP
license) can only form a rockfish cooperative with other persons
holding catcher vessel LLP licenses and only in association with the
processor to whom those persons have historically delivered most of
their catch.
4. Allow rockfish cooperatives to transfer all or part of their CQ
to other rockfish cooperatives, with some restrictions.
5. Provide an opportunity for a person not in a rockfish
cooperative, but who holds an LLP license with Rockfish QS, to fish in
a limited access fishery. NMFS will not allocate a specific amount of
fish to a specific harvester in the limited access fishery. All
harvesters in the
[[Page 67212]]
limited access fishery compete with all other such harvesters to catch
the TAC assigned to the limited access fishery. The TAC assigned to the
limited access fishery represents the total amount of fish assigned to
all LLP licenses designated for the limited access fishery.
6. Establish a small entry level fishery for Central GOA rockfish
for harvesters and processors not eligible to receive Rockfish QS under
this Program.
7. Allow holders of catcher/processor LLP licenses to opt-out of
the Program, with certain limitations.
8. Limit the ability of processors to process catch outside the
communities in which they have traditionally processed primary rockfish
species and associated secondary species.
9. Establish catch limits, commonly called ``sideboards,'' to limit
the ability of participants eligible for this Program to harvest fish
in fisheries other than the Central GOA rockfish fisheries. The Program
provides certain economic advantages to harvesters. Harvesters could
use this economic advantage to increase their participation in other
fisheries, adversely affecting the participants in other fisheries.
Sideboards limit the total amount of catch in other groundfish
fisheries that can be taken by eligible harvesters to historic levels,
including harvests made in the State of Alaska parallel groundfish
fisheries. These are fisheries authorized by the State in its waters
concurrent with the Federal fishery for which harvest amounts are
deducted from the Federal TAC. Sideboards limit harvest in specific
rockfish fisheries and the amount of halibut bycatch that can be used
in certain flatfish fisheries. General sideboards apply to all vessels
and LLP licenses with associated legal landings that can be used to
generate Rockfish QS. Additionally, specific sideboards apply to
certain catcher/processor and catcher vessels and LLP licenses.
10. Establish monitoring and enforcement provisions to ensure that
harvesters maintain catches within annual allocations and do not exceed
sideboard limits.
The Program provides greater security to harvesters in rockfish
cooperatives by creating an exclusive harvest privilege. Although
individual participants in the limited access fishery, opt-out fishery,
and entry level fishery do not receive a guaranteed catch allocation,
most harvesters are likely to participate in a rockfish cooperative
that receives CQ. The Program is anticipated to result in a slower-
paced fishery and enable the harvester to choose when to fish and
therefore take advantage of market factors and avoid dangerous fishing
conditions. The Program likely will provide greater stability for
processors by spreading out production over a longer period. These
changes will increase product quality in all sectors.
Cost Recovery and Fee Collection Provisions
Section 304(d)(2)(A) of the Magnuson-Stevens Act requires the
Secretary to ``collect a fee to recover the actual costs directly
related to the management and enforcement of any...individual fishing
quota program [or] community development quota program.'' Any
individual fishing quota (IFQ) program must follow the statutory
provisions set forth by section 304(d)(2) of the Magnuson-Stevens Act
and other provisions of the Magnuson-Stevens Act related to cost
recovery and fee collection for IFQ programs. The Central GOA rockfish
Program does not issue IFQ under the same criteria as current IFQ
programs (i.e., the Halibut and Sablefish IFQ Program). Thus, the
establishment of a cost recovery Program is not included in the final
rule. However, NMFS and NOAA General Counsel are reviewing the
applicability of the Magnuson-Stevens Act provisions on cost recovery
and fee collection to fishery cooperative allocations and other more
general limited access privilege programs. If subsequent review of the
Magnuson-Stevens Act indicates that a fee collection provision is
required for cooperative allocation privilege programs, and the
Rockfish Program specifically, NMFS would implement any required
provision in a subsequent regulatory amendment to the Program.
Summary of Regulation Changes in Response to Public Comments
This section provides a summary of the major changes made to the
final rule in response to public comments on the proposed rule. All of
the specific changes, and the reasons for making these changes, are
contained under Response to Comments below. The changes are described
by regulatory section.
In Sec. 679.2, NMFS adopted a new term ``cooperative quota (CQ),''
to replace the term ``cooperative fishing quota (CQ)'' to reduce
confusion with an acronym used by the Council in the GOA
rationalization program under development. NMFS also clarified the
definitions of an ``Rockfish entry level harvester,'' ``Rockfish entry
level processor,'' ``Rockfish limited access fishery,'' and ``Ten
percent or greater direct or indirect ownership interest for purposes
of the Rockfish Program.'' Last, NMFS added the terms ``aggregate
forage fish,'' ``skates,'' and ``other rockfish'' to the group of
species defined under ``Non-allocated secondary species.''
In Sec. 679.4, NMFS clarified the circumstances under which a CQ
permit assigned to a rockfish cooperative is valid, and the effect on a
CQ permit once NMFS has approved a rockfish cooperative's termination
of fishing declaration.
In Sec. 679.5, NMFS made minor clarifications to the rockfish
cooperative catch report requirement, and deleted a reference to a
process for amending a CQ permit to select vessels that are eligible to
fish under the CQ permit. NMFS also established a more flexible
rockfish reporting system that allows a cooperative's designated
representative to determine how and when vessels will fish under a CQ
permit. Authorized cooperative representatives could ``check-in'' a
vessel when it is fishing under a CQ permit during the rockfish
cooperative fishing year, and ``check-out'' vessels no longer fishing
under its CQ permit. For administrative efficiency, NMFS will constrain
the number of times a vessel may check-in and check-out based on the
number of LLP licenses assigned to that cooperative.
In Sec. 679.7 NMFS made several modifications. NMFS clarified that
an eligible rockfish harvester cannot assign their LLP license to more
than one rockfish fishery in a year. NMFS also clarified that an
eligible rockfish harvester or processor is prohibited from
participating in the entry level fishery, detailed the prohibitions
that apply for monitoring provisions in the opt-out fishery, and
established provisions to complement a rockfish cooperative's
designated representative ability to submit vessel check-in and check-
out reports to designate fishing under a CQ permit. NMFS deleted the
prohibition requiring retention of groundfish harvested while fishing
under a sideboard limit. NMFS deleted prohibitions applicable to
rockfish observer coverage and the catch monitoring control plan (CMCP)
for rockfish entry level processors, and the prohibition on having
primary rockfish species harvested under a CQ permit and rockfish
incidentally retained in non-Program vessels aboard a catcher/processor
vessel at the same time.
In Sec. 679.21, NMFS inserted provisions to allow the
reapportionment of halibut PSC CQ that is unused by rockfish
cooperatives to the trawl sector after rockfish cooperatives have
completed fishing.
[[Page 67213]]
In Sec. 679.28, NMFS clarified that entry level processors are not
required to have a CMCP.
In Sec. 679.50, NMFS reduced observer coverage requirements for
catcher/processor vessels fishing in the opt-out fishery, and clarified
how observer coverage required under the Program affects processor
facility observer coverage requirements in other non-Program groundfish
fisheries.
In Sec. 679.80, NMFS clarified that an LLP license is eligible to
be assigned Rockfish QS only if a landing was made during the primary
rockfish species qualifying periods in which rockfish were targeted
(i.e., primary rockfish species were the predominant groundfish catch).
Similarly, secondary species and halibut PSC is assigned to the
catcher/processor or catcher vessel sector based on harvests or halibut
PSC use attributed to specific landings in which primary rockfish
species were targeted. Further, NMFS clarified that an onshore
processing facility must be closed before the processing history
associated with that facility may be transferred. NMFS made minor
clarifications in the formula for determining a legal rockfish landing.
In Sec. 679.81, NMFS made several modifications and changes in the
process and formulas for allocating Rockfish QS among fishery
participants, and the allocation of TAC for secondary species and
halibut PSC between the catcher vessel and catcher/processor sectors.
These changes clarified proposed regulatory text. NMFS extended the due
date for the application to join a rockfish cooperative, limited access
fishery, or opt-out fishery from December 1 of the year prior to
fishing to March 1 of the year in which fishing occurs. NMFS clarified
that CQ inter-cooperative transfers must be approved by the eligible
rockfish processor with whom that rockfish cooperative is associated.
NMFS made several clarifications on the process of forming a rockfish
cooperative, specifically to requirements establishing the amount of
Rockfish QS that must be assigned to a rockfish cooperative before it
can form. NMFS specified the associations that can form between
eligible rockfish harvesters and processors. NMFS deleted provisions
concerning the transfer of processor eligibility, requirements on
providing corporate ownership information on inter-cooperative CQ
transfer forms, and provisions requiring modification of the CQ permit
to add or delete the vessels fishing under that permit.
In Sec. 679.82, NMFS clarified the calculation of use caps
applicable to catcher vessel cooperatives and eligible rockfish
processors; how transfers of CQ are attributed to eligible rockfish
harvesters in a rockfish cooperative; and which fisheries are subject
to closure once a sideboard limit is reached. NMFS inserted the BSAI
Pacific cod sideboard limit that applies to the catcher vessel sector
in a table with other sideboard limited species and deleted redundant
text. NMFS established the halibut PSC sideboard limit as a use cap
applying to the entire GOA, not to specific management areas in the
GOA. Last, NMFS clarified the method for calculating the amount of
groundfish and halibut PSC sideboard limits that are attributed to
rockfish cooperatives, the rockfish limited access fishery, and
catcher/processor sector opt-out fishery.
In Sec. 679.84, NMFS made several modifications that designate the
specific catch monitoring requirements that apply to catcher/processor
vessels assigned to the opt-out fishery. Specifically, NMFS relieved
requirements for scales and an observer sampling station. NMFS also
clarified that groundfish harvested or halibut PSC used under a CQ
permit is not debited against groundfish or halibut PSC sideboard
limits in July.
In Table 28 to part 679, NMFS corrected the closure date for
primary rockfish species in 1999. In Table 30 to part 679, NMFS
corrected typographic errors in the maximum retainable amount (MRA)
percentages for other species, clarified the rockfish fisheries to
which the MRA percentages in this table apply, and added an MRA for
thornyhead rockfish in the rockfish limited access fishery.
Response to Comments
Comment 1: The use of the CFQ acronym for ``cooperative fishing
quota'' is likely to be very confusing to the public because several
Council actions under consideration refer to ``community fisheries
quota'' as ``CFQs.''
Response: NMFS agrees and has changed Cooperative Fishing Quota
(CFQ) to Cooperative Quota (CQ) to avoid confusion that may result from
the use of the same abbreviation as has been used to
describe``community fishing quotas.''
Comment 2: Modify the definition in Sec. 679.2 of ``Eligible
rockfish entry level harvester'' to limit eligibility to harvesters not
eligible to enter a rockfish cooperative.
Response: NMFS agrees and has modified the definition of an
eligible entry level rockfish harvester at Sec. 679.2 and in Sec.
679.80(b)(2) to explicitly exclude eligible rockfish harvesters.
Comment 3: Modify the definition in Sec. 679.2 of ``Eligible
rockfish entry level processor'' to limit eligibility to processors not
eligible to associate with a rockfish cooperative.
Response: NMFS agrees and has modified the definition of an
eligible entry level rockfish processor in Sec. 679.2 to explicitly
exclude eligible rockfish processors.
Comment 4: Include skates, aggregate forage fish, and other
rockfish in the definition in Sec. 679.2 of ``Non-allocated species.''
Response: NMFS agrees and has changed the definition of ``Rockfish
Program species'' to include these species. These species are not
specifically allocated under the Program and should be included in the
definition of non-allocated species.
Comment 5: The definition of ``Sideboard limit for purposes of the
Rockfish Program'' in Sec. 679.2 includes primary rockfish, Pacific
cod, and halibut. Is Pacific cod included because of the sideboard
limit for the catcher vessel sector in the BSAI in July?
Response: Yes. BSAI Pacific cod is included in the definition of
Sideboard limit for purposes of the Rockfish Program under Sec. 679.2
because it is subject to a sideboard limit in the catcher vessel
sector.
Comment 6: In the definition in Sec. 679.2 of ``Ten percent or
greater direct or indirect ownership interest for purposes of the
Rockfish Program,'' NMFS uses the term ``entity'' to define a
``person.'' This creates a circular definition in the rule. ``Person''
is currently defined in Sec. 679.2 as an individual, corporation, or
other entity. The new definition of ``entity'' includes ``persons.''
Response: NMFS agrees. Although the existing definition of an
``entity'' contained within the definition of ``Ten percent or greater
direct or indirect ownership interest for purposes of the Rockfish
Program'' effectively includes the definition of a ``person'' as that
term is currently defined in Sec. 679.2, it may reduce confusion to
use the term ``person'' rather than ``entity.'' NMFS notes that because
the current definition of ``person'' in Sec. 679.2 includes an
``entity,'' any of the descriptions of an ``entity'' provided in the
proposed rule, specifically an association, partnership, joint-stock
company, trust, or any other type of legal entity; any receiver,
trustee in bankruptcy or similar official or liquidating agent; or any
organized group of persons whether incorporated or not, is presumed to
be included in the existing definition of a ``person'' in Sec. 679.2.
[[Page 67214]]
Comment 7: It has always been the vision of the Kodiak rockfish
fishery participants that the linkages between eligible rockfish
harvesters and processors may need to be modified somewhat. Thus, the
rule needs to incorporate adequate flexibility to accommodate transfers
of LLPs between cooperatives during initial cooperative formation and
the time period afterwards, on the condition that the affiliated
processor and the harvester members of the cooperative agree.
Response: The linkages between the legal rockfish landings
attributed to an LLP license to a specific eligible rockfish processor
were specifically recommended by the Council. However, requiring a
vessel to deliver to a specific processor when fishing under a CQ
permit based on the LLP license used by that vessel may limit vessel
operators from coordinating with specific processors.
The Program does not modify current provisions for the transfer of
LLP licenses, nor were such provisions recommended by the Council. LLP
license holders may continue to transfer LLP licenses to a new LLP
holder under Sec. 679.4(k)(7). Rockfish cooperatives do not hold LLP
licenses, eligible rockfish harvesters do. LLP licenses are not
transferred among rockfish cooperatives and transfers are not subject
to approval by an eligible rockfish processor. However, the regulations
do not require an eligible rockfish harvester to assign a vessel to the
same rockfish cooperative as the LLP license.
For example, if an LLP license holder wished to assign the Rockfish
QS to a specific rockfish cooperative, that eligible rockfish harvester
would submit an application for CQ as described in Sec. 679.81(e)(4).
If that same eligible rockfish harvester wished to have his vessel
named on a different LLP license as one of the vessels eligible to
harvest fish under the CQ for another cooperative, that eligible
rockfish harvester could list the vessel under a CQ permit for another
cooperative and deliver catch harvested by that vessel to a different
eligible rockfish processor. The vessel would continue to be subject to
existing requirements to maintain a valid LLP license onboard the
vessel. This arrangement would allow eligible rockfish harvesters to
separate vessel operations from the rockfish cooperative to which an
LLP license is assigned. This provides considerable flexibility for
vessel operators.
Comment 8: Paragraph (n) of Sec. 679.4 suggests that quota is for
``primary or secondary species'' and ``halibut PSC'' and that the
permit is no longer valid if the primary or secondary species or PSC is
fully fished. Modify the section in two ways. First, if quota is issued
it will always be for ``primary species, secondary species, and halibut
PSC.'' Under no circumstances will quota be issued for one of these
without the other (modify (n)(1)(i)). And, second, the permit should
remain valid until all amounts of all species are fully fished. Quotas
are tradable and any amount should remain usable, if it is not fished
(modify (n)(1)(ii)(B) and (C)).
Response: NMFS agrees. The intent of this provision is to ensure
that a CQ permit is valid until the amounts of primary species,
secondary species, and halibut PSC have been fully used by the rockfish
cooperative holding that CQ permit. The regulations at Sec.
679.4(n)(1)(ii)(B) have been modified to more clearly state that a CQ
permit is valid until all amounts of all primary species, secondary
species, and halibut PSC CQ have been fully used. This modification
ensures that the CQ permit for all species is not invalidated because
the CQ amount for one species has been reached. This modification does
not relieve restrictions at Sec. 679.7(n)(7)(i) that prohibit a
rockfish cooperative from exceeding its CQ amount for any species.
Section 679.4(n)(1)(ii)(C) has been removed and the contents of Sec.
679.4(n)(1)(ii)(D) have been combined with Sec. 679.4(n)(1)(ii)(B).
Sections 679.4(n)(1)(ii)(D) through (G) have been renumbered
accordingly as Sec. 679.4(n)(1)(ii)(C) through (E).
Comment 9: Section 679.4(n)(2) allows a rockfish cooperative to
extinguish its CQ permit by submitting a declaration of termination of
fishing form to NMFS, which has to be reviewed and approved. How long
will this take and what happens in the meanwhile? If the CQ permit is
still active, do the sideboard restrictions and monitoring and
enforcement requirements still apply? Please expedite this process so
vessels are not stuck with unnecessary limits when they are done with
the cooperative fishery?
Response: NMFS intends to process all termination of fishing
declarations in a timely manner. Processing times for the declarations
will be short, several days at the most. Until the application is
approved, the vessel fishing under a CQ permit will continue to be
subject to the sideboards and necessary monitoring and enforcement
requirements. As is noted under the response to Comment 50, cooperative
representatives may choose to check a vessel out at the end of a
fishing trip. Once a vessel is checked out, if no other vessel is
checked in, vessels assigned to a rockfish cooperative would not be
subject to monitoring and enforcement requirements that apply while
fishing under a CQ permit. However, those vessels would still be
subject to monitoring and enforcement provisions applicable for
sideboard management in July. Cooperative managers may wish to ensure
that all vessels assigned to that rockfish cooperative are checked out
prior to submitting the termination of fishing declaration.
Comment 10: Section 679.4(n)(2)(v) notes that all CQ on the permit
is set to zero when the termination of fishing declaration is approved.
If this occurs before the residual CQ is transferred, does the rockfish
cooperative lose their CQ allocation?
Response: Yes. If a rockfish cooperative submits and NMFS approves
its declaration to terminate fishing prior to NMFS approving an inter-
cooperative transfer submitted by that rockfish cooperative, the CQ
amount remaining is extinguished. If a rockfish cooperative wishes to
transfer CQ, it should submit its transfer application prior to its
declaration to terminate fishing.
Comment 11: Section 679.5(r)(7)(i) incorrectly cites Sec.
679.4(m). This citation refers to the Aleutian Island pollock fishery.
Response: NMFS agrees and has corrected the citation in Sec.
679.5(r)(7)(i) from Sec. 679.4(m) to Sec. 679.4(n) to refer to the
Program.
Comment 12: Section 679.5(r)(7)(i) requires all vessel operators
under the Program to file rockfish cooperative catch reports. This
provision should apply only to vessels assigned to rockfish
cooperatives.
Response: NMFS agrees and has modified Sec. 679.5(r)(7)(i) to
clearly indicate that only vessel operators whose vessels are
designated to receive catch under a CQ permit are required to submit a
rockfish cooperative catch report.
Comment 13: Section 679.5(r)(8)(ii)(B) notes that annual rockfish
cooperative reports are due by December 15\th\. Is the time estimated
for completing the report consistent with AFA and Crab Rationalization
Program requirements?
Response: Yes, the time required to complete the annual rockfish
cooperative report is similar to that under the AFA and Crab
Rationalization Program. The information collected in the report is
similar to that required under the AFA and Crab Rationalization Program
annual cooperative report.
Comment 14: Section 679.7(n)(1)(iv) requires full retention of any
groundfish caught by a vessel that is subject to a sideboard limit as
described at Sec. 679.82(d) through (h), as applicable, if
[[Page 67215]]
directed fishing for that groundfish species in that area is
authorized. Does this require full retention of sideboarded species?
Why is this broad statement even in the rule?
Response: The intent of this provision was to ensure that
groundfish subject to a sideboard limit under Sec. 679.82(d) through
(h) are retained and counted against the sideboard limit. The
groundfish subject to a sideboard limit are listed in Sec.
679.82(d)(6) and include rockfish species in the Western GOA and West
Yakutat District, and Pacific cod in the BSAI for vessels in the
catcher vessel sector. Flatfish that are harvested in the GOA are not
subject to a groundfish limit; rather, the harvest of flatfish is
restricted by halibut PSC sideboard limits established under Sec.
679.82(d)(8). This provision does not require vessels to retain all
flatfish harvested during July.
This provision was intended to ensure that NMFS accurately accounts
for the total catch in a sideboard limited groundfish fishery. Full
retention would ensure that all catch is fully counted. However, NMFS
can obtain information from groundfish discard rates using observer
data. All vessels subject to sideboard limits in July will have
observer coverage. This observer coverage is sufficient to monitor any
amount of discards of groundfish and include discard estimates in the
total harvest of a groundfish species subject to a sideboard limit.
Thus, NMFS is not requiring the full retention of groundfish harvested
that are subject to a sideboard limit by deleting the prohibition in
Sec. 679.7(n)(1)(iv) and renumbering Sec. 679.7(n)(1)(v) through
Sec. 679.7(n)(1)(vii) as Sec. 679.7(n)(1)(iv) through Sec.
679.7(n)(1)(vi).
Comment 15: Section 679.7(n)(1)(iv) states that vessel operators
must retain any groundfish caught by a vessel that is subject to a
sideboard limit as described Sec. 679.81(d) through (h) if directed
fishing for that groundfish species in that area is authorized. It is
unclear in this provision whether retention is required only for GOA
rockfish species and BSAI Pacific cod which are catch side-boarded, or
if this provision also applies to flatfish species since they are side-
boarded via deep and shallow halibut sideboards caps.
Response: NMFS has addressed this comment in the response to
Comment 14.
Comment 16: Section 679.7(n)(1)(v) prohibits use of an LLP license
in ``any fishery'' other than the rockfish fishery to which it is
assigned. To the extent that this prevents a rockfish vessel from
fishing other species, this is inconsistent with the analysis. The
analysis suggests that trip-by-trip declarations are made to ensure
proper accounting of catch and adequate monitoring. Declared rockfish
trips would be subject to different accounting and monitoring.
Response: NMFS agrees in part. NMFS has modified this prohibition
to clearly state that an LLP license may not be used in ``any Rockfish
Program fishery'' other than the Rockfish Program fishery to which that
LLP license was originally assigned. The intent of this prohibition was
not to limit the ability of Program participants from engaging in non-
Program fisheries. This modification makes clear the intent of this
provision is to limit the ability of an eligible rockfish harvester to
use his LLP license to fish in more than one Rockfish Program fishery
in a calendar year (i.e., fishing under a CQ permit for a rockfish
cooperative, limited access fishery, opt-out fishery, entry level trawl
fishery, or entry level longline gear fishery). Fishing in more than
one of these fisheries would undermine the ability of NMFS to
effectively manage cooperatives and the limited access fishery because
Rockfish QS must be assigned to specific fisheries at the start of each
fishing season to properly allocate fishery catch limits.
The portion of the comment relating to catch accounting of vessels
on a trip-by-trip basis is addressed in response to Comment 50.
Comment 17: Section 679.7(n)(1)(v) appears to prevent a non-trawl
entry level vessel from fishing in fisheries other than the Rockfish
Program fishery from January 1 until the entry level fishery closes
(possibly in November). This provision will make the entry level
fishery impracticable for all non-trawl vessels. Managers should be
able to account catch against the non-trawl entry level TAC in a manner
similar to that currently used. Additionally, Sec. 679.7(n)(1)(v)
seems overly broad with respect to trawl entry level and trawl limited
access vessels. Those fisheries open in May and July respectively and
will likely close shortly after opening. This provision seems to limit
the ability of those vessels to participate in any other fishery during
the year. In addition, a vessel should be able to withdraw from these
fisheries at any time with notice to the agency.
Response: Under the clarification made in response to Comment 16,
NMFS will only require that if a vessel is directed fishing in a
specific Rockfish Program fishery as defined in Sec. 679.2 (e.g.,
entry level longline gear fishery), it cannot directed fish in another
Rockfish Program fishery (e.g., entry level trawl fishery) in the same
calendar year.
Comment 18: Paragraph (n) of Sec. 679.7 does not appear to be a
clear prohibition on eligible harvesters participating in the entry
level fishery, or eligible processors taking deliveries from the entry
level fishery. The provision in Sec. 679.7(n)(5) suggests that
eligible processors can take deliveries from the entry level fishery.
Only ineligible processors can take entry level deliveries. These
prohibitions could be included here.
Response: NMFS agrees. Although the definitions of an ``eligible
entry level rockfish harvester'' and ``eligible entry level rockfish
processor'' in Sec. 679.2 have been modified to more explicitly
exclude ``eligible rockfish harvesters'' and ``eligible rockfish
processors,'' respectively, from participating in the entry level
fishery as detailed in Sec. 679.83, a prohibition would further
clarify this issue. This prohibition would also be consistent with the
description of the eligibility to participate in the entry level
Rockfish Program fishery in the preamble to the proposed rule at 71 FR
33064, which states that ``the Program would establish an entry level
fishery for all persons who are not eligible rockfish harvesters or
processors.''
These new prohibitions are inserted in Sec. 679.7(n)(1)(vi) and
(vii) and state that it is prohibited to receive any primary rockfish
species harvested in the entry level rockfish fishery if that person is
an eligible rockfish processor, or harvest any primary rockfish species
in the entry level rockfish fishery if that person is an eligible
rockfish harvester.
Comment 19: Section 679.7(n)(2)(ii) requires a catcher/processor
vessel in the limited access fishery to meet the all monitoring and
enforcement requirements from July 1 until directed fishing for all
primary rockfish targets for the limited access fishery are closed.
Catcher/processor vessels with less than 5 percent of the aggregate
Pacific ocean perch Rockfish QS allocation can fish in the Bering Sea
or in other GOA fisheries. Those catcher/processor vessels should be
able to forego the monitoring and enforcement requirements if they are
not fishing in the Program.
Response: Nothing in the FMP or Council motion recommending this
action indicates that catcher/processor vessels using LLP licenses with
less than 5 percent of the Pacific ocean perch Rockfish QS in the
catcher/processor sector are relieved of the monitoring and enforcement
requirements that apply to other catcher/processor vessels. If a
catcher/processor vessel is fishing in the limited access fishery, or
fishing in July and
[[Page 67216]]
subject to a sideboard limit, that vessel is subject to the monitoring
and enforcement requirements established for that sector (See Sec.
679.82(d) through (h)).
Comment 20: Section 679.7(n)(7)(i) prohibits exceeding the amount
of CQ assigned to a rockfish cooperative. Can the CQ amount assigned to
a rockfish cooperative be amended by a documented transfer from another
rockfish cooperative?
Response: Yes. Rockfish cooperatives can increase or decrease the
amount of CQ held by engaging in inter-cooperative transfers. See Sec.
679.81(i)(4)(iii) for additional details.
Comment 21: Paragraphs (n)(7)(iv) and (vi) of Sec. 679.7 prohibit
fishing with a CQ permit if there are non-CQ fish on board. This means
a catcher/processor will have to offload prior to entering a Rockfish
Program fishery, and prior to completing fishing under a Rockfish
Program fishery and beginning fishing in a non-Program groundfish
fishery. If a vessel chooses to leave and enter a Rockfish Program
fishery multiple times it would be forced to offload repeatedly.
Offloads require several days away from the grounds and several
thousand dollars worth of fuel. The level of monitoring and enforcement
required is more than adequate to determine what fish was landed while
in the Program. Requiring the offload is expensive and unnecessary.
Response: NMFS agrees, Sec. 679.7(n)(7)(iv) is modified to apply
only to catcher vessels, and Sec. 679.7(n)(7)(vi) is removed. This
effectively authorizes a catcher/processor vessel to have species
harvested under a CQ permit and those not harvested under a CQ permit
onboard the vessel at the same time. Therefore, if a catcher/processor
vessel checked-out while at sea at the end of a week-ending date, it
would not need to offload prior to fishing in other non-Program
fisheries. This comment is more fully addressed in response to Comment
50.
Comment 22: There should be a mechanism to make halibut PSC CQ
unused by rockfish cooperatives available to other trawl target
fisheries. Halibut PSC could be released back to the open access trawl
fisheries either when the rockfish fishery closes on November 15, or
when the CQ permit is revoked through an approved rockfish cooperative
termination of fishing declaration. If the remaining halibut PSC were
made available to the other trawl target fisheries, it would offer an
incentive for the rockfish cooperatives to work toward minimizing
halibut PSC CQ use and bearing the additional cost that comes with
these bycatch reduction efforts.
Response: NMFS agrees. If a rockfish cooperative has not fully used
its allocation of halibut PSC CQ in a year, or if that rockfish
cooperative submits a termination of fishing declaration, that portion
of the halibut PSC not used in the Program could be reallocated for use
in other non-rockfish fisheries. This is consistent with the overall
goals of halibut PSC management to apportion halibut by gear type. To
facilitate the management of this ``roll-over'' NMFS will allow halibut
PSC remaining after November 15, or after a cooperative has submitted a
declaration to terminate fishing, to be reallocated to the final
seasonal apportionment of halibut PSC for use by trawl gear in the GOA.
Currently, the final season for halibut PSC apportionment begins on
October 1. NMFS will review termination of fishing declarations and
allow halibut PSC remaining to be redistributed for general use
beginning on October 1. After November 15, any remaining halibut PSC
allocated to rockfish cooperatives will be available for general use by
vessels using trawl gear. NMFS has modified regulations at Sec.
679.21(d)(5)(iii) to allow this reapportionment of unused halibut PSC,
and has modified regulations at Sec. 679.4(n)(2)(v) to clarify that
once a rockfish cooperative termination of fishing declaration has been
submitted, the halibut PSC that was allocated as CQ, is reapportioned
to the trawl sector according the provisions of the new Sec.
679.21(d)(5)(iii)(B).
Comment 23: The title of Sec. 679.50 states that the Groundfish
Observer Program is applicable through December 31, 2007. Is this the
current expiration date of the Observer Program?
Response: At its June, 2006 meeting, the Council recommended
removing the December 31, 2007, expiration date. NMFS currently is
drafting a proposed rule that would remove this expiration date. That
rulemaking will be part of a separate action.
Comment 24: There are several questions regarding the new
requirements for plant observers:
Comment 24-1: When are an observer's duties considered complete?
Response 24-1: Daily observer coverage begins when the first
rockfish delivery occurs and ends 12 hours later regardless of the
nature of the deliveries (i.e., Program or non-Program deliveries)
during that period. Program deliveries after that 12 hour time in the
calendar day will require a second observer. Other non-Program
deliveries may occur after this 12 hour period has lapsed and the
observer may decide to sample those non-Program deliveries. This
clarification does not modify the existing regulations.
Comment 24-2: Present regulations require specific coverage levels
based on processing volumes. For example, if a plant processes less
than 500 mt of groundfish in a month, then no observer coverage is
required. We are assuming that rockfish deliveries would not count
towards the processing volume level and therefore would not trigger
observer requirements for other groundfish deliveries. We also assume
that rockfish observer coverage would not count towards meeting the
observer requirements for other groundfish delivery requirements. Is
this the agency intent?
Response 24-2: The intent of the regulations is to ensure that non-
Program deliveries count for non-Program coverage, but deliveries of
Program groundfish would not be counted for purposes of meeting minimum
observer coverage requirements for non-Program groundfish. Any non-
Program deliveries that occur when the Program observer is present at
that processing facility during that calendar day will be counted
towards the non-Program observer coverage requirements for that month.
NMFS has clarified the provisions of Sec. 679.50(d)(7)(iv) to define
the accounting of observer coverage.
Comment 24-3: There may be times that a processor will not need a
rockfish observer for an entire 12 hour period. Can the processor use
this observer for other groundfish deliveries if the 12 hour limit has
not been reached?
Response 24-3: If a Program observer is not needed to observe
Program deliveries during an entire 12 hour period, that processor may
use this observer for other non-Program groundfish deliveries. During
periods when an observer is monitoring both Program and non-Program
deliveries, the observer coverage on non-Program catch may apply toward
their observer requirements.
Comment 24-4: Is it possible that the processor can use an observer
for monitoring Program deliveries and after 12 hours use that same
observer for other groundfish observer requirements?
Response 24-4: Yes. At the end of a 12 hour period during a
calendar day, a Program observer cannot observe any more Program
deliveries until the next calendar day. However, that observer could
monitor deliveries in other non-Program groundfish fisheries subject to
existing observer coverage requirements.
Comment 24-5: Is it the intent of the observer program to use
vessel observers to monitor the entire vessel offload?
[[Page 67217]]
Response 24-5: No. Program observers onboard vessels are limited to
collating their at-sea sample data and transmitting these data to NMFS
from shore.
Comment 25: While industry understands that monitoring and
enforcement of a quota share program is important for managers and
conservation, the 100 percent observer coverage requirement for the
vessels creates a large financial burden for them. The Program is
complicated because of the number of QS species required to accommodate
the mixed nature of the fishery. However, Program observer requirements
are the highest standard ever imposed on a small catcher vessel fleet
in the North Pacific and are more restrictive than the requirements for
the halibut IFQ fleet and the AFA pollock fleet. Both industry and
managers must develop creative solutions that meets monitoring and
enforcement requirements but that are affordable for industry
participants. The Program offers the appropriate environment to
experiment with creative solutions to find a way to reduce the
monitoring and enforcement costs for this and other quota programs.
Response: NMFS agrees that the continued investigation of
innovative solutions to the monitoring and enforcement issues
associated with a complex quota-based program and suite of species such
as rockfish is critical and we will continue to actively work with the
fishing industry to investigate new approaches. However, at this time
no feasible alternative to 100 percent observer coverage exists that
can ensure that all catch is accounted for against the quotas. NMFS
agrees that monitoring requirements, including observer coverage levels
proposed for the Program, are more stringent than those imposed on
either the halibut and sablefish IFQ fleets or the AFA pollock fleet.
However, NMFS notes that neither of these programs are multispecies
fisheries, nor is the ability to fully harvest quotas potentially
constrained by the availability of halibut PSC. This constraint
distinguishes the Program from all other quota-type programs developed
to date and results in the need for the more rigorous monitoring and
enforcement standards than have been imposed in previous programs.
Comment 26: The rockfish fishery is probably one of the most
complicated fisheries to observe for species identification and catch
monitoring. We believe that lead level-two observers should be required
for the shoreside vessels and processors, as is required for the
catcher processor fleet.
Response: NMFS disagrees. Level-two certified observers are trained
in at-sea sample station requirements, at-sea motion compensated scale
testing, and observer duties at-sea under the AFA and CDQ Program.
Training for level-two observers does not include new duties for
shoreside vessel and plant observers under the Program. Any shoreside
duties for level-two observers are specific to CDQ Program
requirements. Species identification and sampling methodologies for the
shoreside component are covered during the three week training course
that all certified observers receive.
Comment 27: The preamble to the proposed rule (71 FR 33044) on
pages 33065 and 33068, state that the observer coverage requirements
for shoreside processors apply to those processors taking rockfish
deliveries from all categories of harvesters, including those in the
entry level fishery. However, the proposed modifications to Sec.
679.50(c)(7)(ii) of the proposed rule listing the catcher vessel
categories subject to additional shoreside processor observer coverage
requirements does not include entry level harvesters. Entry level
processors taking deliveries from entry level harvesters, particularly
small longline gear vessels, should not be subject to these observer
requirements added by the implementation of a Program for which they
are not eligible.
Response: NMFS agrees. Entry level processors are expected to only
take a few deliveries that result from a modest amount of catch, and
NMFS expects that current monitoring requirements will be sufficient to
meet data needs. The page of the proposed rule preamble referenced in
the comment (71 FR 33065) is inconsistent with the requirements of
Sec. 679.50(d)(7). Additionally, NMFS notes that without a dedicated
rockfish observer present to monitor the sorting and weighing at the
plant, a CMCP is not a functional monitoring tool. Therefore, NMFS
removed the provisions at Sec. 679.84(e) that require a CMCP for an
rockfish entry level processor. NMFS modified Sec. 679.7(n)(6) to
limit this provision to catcher vessels delivering catch under a CQ
permit, or in the rockfish limited access fishery. NMFS notes that
these changes do not relieve processing facilities receiving entry
level fishery catch from other monitoring and enforcement requirements
that may apply to those facilities while receiving or processing fish
in other fisheries.
Comment 28: Section 679.80(b)(1)(i)(B) of the proposed rule
provides that a landing of a primary species during a directed fishery
opening qualifies an LLP license for the Program. The provision should
provide that an LLP license is qualified to participate in the Program
and receive Rockfish QS only if it has a targeted legal rockfish
landing during a directed fishery, where a legal rockfish landing is
considered to be targeted only if the catch of the primary species was
the predominant catch in that trip.
Response: NMFS agrees. Clarifying that an LLP license is eligible
to participate in the Program and receive Rockfish QS only if primary
rockfish species were the predominant catch in at least one legal
rockfish landing will reduce any potential claims for assigning
Rockfish QS to LLP licenses based on legal rockfish landings that are
attributed to incidental harvest in other groundfish fisheries. This is
also consistent with the intent of the Council as described in Section
3.3.1.1 of the Council motion recommending this action. Section 3.3.1.1
indicates that targeted catch should be used to determine whether an
LLP license is eligible to be used to participate in the Program. NMFS
has modified Sec. 679.80(b)(1)(i)(B) to require that an LLP license is
eligible to qualify to receive Rockfish QS only if it is assigned a
legal rockfish landing of any primary rockfish species in which the sum
of the catch of all primary rockfish species for that legal rockfish
landing exceeded the catch of all other groundfish according to the
official rockfish record.
NMFS modified the criteria for establishing eligibility to
participate in the entry-level fishery under Sec. 679.80(b)(2)(iii) to
indicate that a person cannot participate in the entry level fishery if
that person holds an LLP license with landings attributed to it that
reflect a directed rockfish target fishery and that person is otherwise
eligible to receive Rockfish QS.
This comment also indirectly addresses the allocation of secondary
species and halibut PSC between the catcher/processor and catcher
vessel sector by noting that targeted catch is the basis for
determining eligibility to participate in the Program and receive
allocations. NMFS has modified Sec. 679.81(b)(2) and (b)(3) to
allocate an amount of secondary species to the catcher/processor and
catcher vessel sectors based on secondary species that were harvested
during the directed fishing seasons for primary rockfish species in
which the sum of the catch of all primary rockfish species for that
legal rockfish landing exceeded the catch of all other groundfish. This
modification is consistent with the Section 3.3.1.2 of the Council
motion
[[Page 67218]]
recommending this action which states that ``secondary species history
is allocated based on retained catch over retained catch while
targeting the primary rockfish species.'' This clarification also is
consistent with data presented in Table 27 in the final EA/RIR prepared
for this action.
Similarly, NMFS has modified Sec. 679.81(c)(2) and (c)(4) to
allocate an amount of halibut PSC to the catcher/processor and catcher
vessel sectors based on halibut PSC that was used during the directed
fishing seasons for primary rockfish species in which the sum of the
catch of all primary rockfish species for that legal rockfish landing
exceeded the catch of all other groundfish. This modification is
consistent with the Section 3.3.1.3 of the Council motion recommending
this action which states that halibut PSC allocations between the
catcher/processor and catcher vessel sector ``will be based on historic
average usage, calculated by dividing the total number of metric tons
of halibut mortality in the CGOA rockfish target fisheries.'' This
clarification also is consistent with data presented in Table 28 in the
final EA/RIR prepared for this action.
Comment 29: Paragraphs (b)(3) through (b)(5) of Sec. 679.80 should
note that the assignment of legal rockfish landings for secondary
species to the sector occurs only if the LLP license is eligible for
the Program.
Response: NMFS agrees. NMFS would only assign legal landings to an
LLP license if that LLP license was eligible to be used in the Program
under the criteria listed in Sec. 679.80(b)(1). These criteria prevent
NMFS from assigning a legal landing to an LLP license that is not held
by an eligible person. For clarity, NMFS notes that an LLP license must
be eligible to have legal landings attributed to it under Sec.
679.80(b)(3), (b)(4)(ii), and (b)(5)(ii). The allocation of secondary
species to the catcher/processor and catcher vessel sector is discussed
further in the response to Comment 28.
Comment 30: Paragraph (c) of Sec. 679.80 should more clearly note
that processing history transfers that are separate from the plant
ownership only apply if the facility has closed and the purchaser
remains in the same community. Paragraph (d)(4)(ii) of Sec. 679.80
should limit the transfer of processing history. In general, a
processing facility is eligible if it meets the processing criteria and
its processing history remains attached to its originating facility,
unless the facility is closed. If a facility is closed, the history can
only be transferred to a facility in the community.
Response: NMFS agrees. Section 5.4 of the Council motion notes that
``[i]f a processing facility has closed down and another processing
facility has acquired that processing history through purchase, the
history belongs to the facility that purchased that history.''
The Council's intent is best met by limiting transfers of
processing history to two cases: one in which the processing history
can only be transferred with the sale of the processing facility at
which that catch history was earned; and the other is to limit the
transfer of processing history separate from the sale of the processing
facility at which that history was earned only in the specific case in
which the eligible processing facility at which that processing history
was earned is closed. NMFS defines a ``closed'' facility as a facility
which has not been issued a Federal Processor Permit (FPP). An FPP is
required for any groundfish processing, and NMFS can easily ascertain
whether a facility was operating by reviewing its records. Other
definitions of a ``closed'' facility may be subject to greater
uncertainty and interpretation and could create additional
administrative burdens. NMFS clarifies that a facility remains closed
if it did not receive an FPP at the time that the processing history
had been transferred to another person through the express terms of a
written contract.
NMFS has modified Sec. 679.80(c)(2)(ii) to note that processing
history, and therefore eligibility to participate as an eligible
rockfish processor, must have been transferred by a clear and
unambiguous contract, and that the processor from which this history
was transferred must be closed. NMFS has modified Sec.
679.80(d)(4)(ii) to note that any transfer of processing history must
meet the requirements described at Sec. 679.80(c)(2)(ii). Once
transferred, any processing history, and resulting status as an
eligible rockfish processor, must be used to receive and process
groundfish under a CQ permit, or in the limited access fishery, in the
community where the processing history was originally earned (see
provisions at Sec. 679.7(n)(6)). That community is designated on the
application to participate in the Rockfish Program (see Sec.
679.80(e)(4)(ii)(C)).
Comment 31: For a processor to qualify for a processing permit they
must have processed at least 250 mt of primary rockfish species for at
least four years from 1996 through 2000. Additionally, a processor
would determine the four of five years from 1996 through 2000 used to
determine which LLP holders may form a rockfish cooperative in
association with that processor. The four qualifying years for the
permit could be different from the processing years chosen by the
processor to determine fleet associations. The Council intended to
provide processors the flexibility to use two different sets of years;
one set of years to qualify as an eligible rockfish processor, and one
set of years to determine which LLP licences may form rockfish
cooperatives in association with that processor.
Response: NMFS will compute whether a processor is an eligible
rockfish processor by determining whether the minimum processing
tonnage requirement is met in each of any four of five years from 1996
through 2000 as described under Sec. 679.80(c)(1). This decision is
not subject to the discretion of the eligible rockfish processor;
either the minimum processing requirements are met or they are not.
Once NMFS determines that a processor meets these requirements, the
eligible rockfish processor may select the four of five years from 1996
through 2000 to establish how that processor may associate with a
catcher vessel rockfish cooperative. These years may differ from those
used by NMFS to determine the processor's eligibility to participate in
the Program. The rule has not been modified.
Comment 32: In Sec. 679.80 paragraph (f)(3)(ii)(E) uses the phrase
``multiplying the Percentage of the Total of the Total'' which appears
to be a typographic error.
Response: NMFS agrees and has removed the second phrase ``of the
Total.'' This is a minor typographical error that does not
substantively affect this provision.
Comment 33: Paragraph (f)(3)(ii) of Sec. 679.80 refers to the
calculation of Rockfish QS based on ``a percentage of legal rockfish
landings' in that sector''. This section should state the ``Rockfish QS
for a sector'' is based on a percentage of legal rockfish landings in
that sector.
Response: NMFS agrees. NMFS has modified Sec. 679.80(f)(3)(ii) to
more clearly state that the amount of Rockfish QS issued for a sector
is based on the percentage of legal landings of eligible harvesters in
that sector. The provision that follows at Sec. 679.80(f)(3)(iii)
describes the process of deriving Rockfish QS from each eligible LLP
license and allocating Rockfish QS to that sector.
Comment 34: I do not understand the calculation in Sec.
679.80(f)(3)(iii)(F). Should the total amount of Rockfish QS assigned
to an LLP license in the catcher/processor sector be the sum of the
Rockfish QS units, by species,
[[Page 67219]]
calculated for catcher/processor LLPs under Sec. 679.80(f)(3)(iii)(E)?
Response: No, the calculation in Sec. 679.80(f)(3)(iii)(F)
multiplies the percentage of the total legal landings for a specific
LLP license in a specific primary rockfish species determined in Sec.
679.80(f)(3)(iii)(E) by the initial Rockfish QS pool established in
Table 29 to part 679. This calculation is necessary to derive the
number of Rockfish QS units that will be assigned to an LLP license. No
change to this provision has been made.
Comment 35: Paragraph (f)(3)(iii)(F) of Sec. 679.80 refers to the
``five qualifying years'' used to compute percentage of rockfish
landings attributable to the catcher/processor sector. The Council
motion states that a sector's allocation is based on the individual
vessel histories with the ``drop two years'' provision applied at the
vessel level. As a result, the sector allocation will consider more
than five years, since different LLP holders will drop different years.
For clarity, remove the word five, referencing instead qualified catch
or landings. Paragraph (f)(3)(iii)(G) of Sec. 679.80 makes the same
reference to five qualifying years for the catcher vessel sector
allocation. Drop the word ``five''.
Response: NMFS agrees and has removed the reference to ``five'' in
these provisions. Although only five years are used in the calculation
for the sum of harvests attributed to a specific LLP license in the
catcher/processor sector, more than five years may be considered before
that calculation is made.
Comment 36: Paragraph (a)(3) of Sec. 679.81 suggests that a
sector's allocation is its Rockfish QS divided by the Rockfish QS of
the sector--it should be all Rockfish QS in the pool (of both sectors).
The formula accompanying the text appears to be correct. Revise text to
say all Rockfish QS in the pool. Also, the result is not the ``amount''
of TAC, as written, but the ``percent'' of TAC.
Response: NMFS agrees and had modified the text in this section to
match the text provided in the algorithm that is part of this
provision. The text clearly indicates that the denominator for this
computation is the total Rockfish QS pool for a primary rockfish
species. In addition, NMFS changed the word amount to percent in Sec.
679.81(a)(3) to correctly note that the results of the calculations in
this section are each a ``percent'' of the total TAC for a primary
rockfish species, and not a specific amount.
Comment 37: In Sec. 679.81(a)(4)(ii), two issues arise from not
making allocations of halibut PSC to the limited access fisheries.
First, allowing the limited access fishery to use halibut PSC from the
overall trawl halibut PSC limit could allow the limited access fishery
to use far more halibut PSC than would be allocated as halibut PSC CQ
had limited access vessels joined cooperatives. Second, a specific
halibut PSC limit is not assigned to the limited access fishery.
Either, allocate a specific halibut PSC limit to the limited access
fishery to limit the amount of halibut PSC that may be used by those
vessels, or if a specific halibut PSC limit is not allocated to the
limited access fishery, then halibut PSC should be deducted from the
overall trawl halibut PSC limit.
Response: NMFS agrees in part. NMFS intends to deduct any halibut
PSC assigned to the rockfish cooperatives as CQ and any halibut PSC
used in the limited access fisheries from the third season halibut PSC
allocation to the deep water complex. Prior to the Program, halibut PSC
used in the rockfish fisheries and deep-water flatfish fisheries was
deducted from the deep-water halibut PSC complex. NMFS will maintain a
similar mechanism for the management of halibut PSC used for the
limited access fishery. After reducing the third season halibut PSC
allocation to the deep water complex to accommodate the CQ allocations,
any remaining halibut PSC used in the limited access fishery would be
deducted from the remaining third season allocation. This Program does
not provide a specific allocation to the limited access fishery; any
halibut PSC used by vessels not fishing under a CQ permit and in the
deep-water fishery complex fisheries, or the limited access fishery
would be deducted from this general halibut PSC account.
Comment 38: Paragraph (a)(5)(ii)(A) of Sec. 679.81 contains a
typographical error. The word ``cooperatives'' should be singular, not
plural.
Response: NMFS agrees and has modified Sec. 679.81(a)(5)(ii)(A) to
correct the typographical error.
Comment 39: In Sec. 679.81(b)(2), the allocation of secondary
species to the catcher/processor sector should be based on the catch of
secondary species by eligible catcher/processors while those vessels
were targeting rockfish (where targeting is defined as a landing in
which primary rockfish species are the dominant species). The
provision, as currently written, seems to include all catch of
secondary species by catcher/processors during the directed fishery,
regardless of whether a catcher/processor is targeting rockfish. In
Sec. 679.81(b)(3), the allocation of secondary species to the catcher
vessel sector should be based on the catch of secondary species by
eligible catcher vessels while those vessels were targeting rockfish.
Include a targeting requirement.
Response: NMFS agrees. To reduce inconsistency with the Council
intent, specifically Section 3.3.1.4 of the Council motion recommending
this action, NMFS has modified Sec. 679.81(b)(2) to note that
secondary species shall be allocated to the catcher/processor sector
based on catch of secondary species that was retained during the
directed rockfish species fisheries. Additionally, NMFS has modified
Sec. 679.81(b)(3) to note that secondary species shall be allocated to
the catcher vessel sector based on catch that was retained during the
directed primary rockfish species fisheries.
Comment 40: According to the draft EA/RIR/IRFA, the sablefish
allocation for catcher processors will be based on the cooperative's
aggregate primary species Rockfish QS holdings within the sector, and
the rougheye allocation will be 58.87 percent and the shortraker
allocation will be 30.03 percent of the TAC. Table 3 in the preamble to
the proposed rule title ``Secondary species allocated to rockfish
cooperatives in the Central GOA by fishery sector'' has the wrong
allocation scheme within the table and appears to have mismatched the
secondary species categories with their corresponding row text for the
catcher processor sector.
Response: NMFS agrees that the preamble text in the table is
inconsistent with the regulatory text in Sec. 679.81(b)(2)(v) and
(vi). The regulatory text is correct and the error in the preamble was
a formatting error.
Comment 41: Paragraphs (b)(2) and (3) of Sec. 679.81 contain
typographical errors. The phrase ``during the directed fishery for any
primary rockfish fishery,'' should read ``during the directed fishery
for any primary rockfish species.''
Response: NMFS agrees and has modified Sec. 679.81(b)(2) and (3)
to correct these typographical errors. NMFS has also made corrections
in other sections of the rule to replace the term ``primary rockfish
fishery,'' with the appropriate term ``primary rockfish species.''
These changes were made in Sec. 679.2 under the definition of a
``legal rockfish landing,'' and in Sec. 679.81(a)(3), and in the title
to Table 28 to part 679.
Comment 42: Revise paragraphs (b)(5)(i) and (c)(4)(i) of Sec.
679.81 to omit Rockfish QS assigned to the opt-out fishery from the
denominator. In Sec. 679.81(b)(5)(i) and Sec. 679.81(c)(4)(i), the
allocation of secondary species and halibut PSC, respectively, to
catcher/processor cooperatives is based on target rockfish histories of
cooperative members. The allocations use all
[[Page 67220]]
catcher/processor Rockfish QS in the denominator. This denominator
includes Rockfish QS attributed to vessels that opt-out of the Program.
The denominator should exclude ``opt-out QS,'' as was done for primary
species allocations in Sec. 679.81(a)(5)(ii)(A).
Response: NMFS agrees and has revised Sec. 679.81(b)(5)(i) and
Sec. 679.81(c)(4)(i) to make these changes. The same allocation
protocol for CQ that applies to primary rockfish species for the
catcher/processor sector should apply for secondary species and halibut
PSC. This would effectively reallocate secondary species and halibut
PSC to cooperative participants as envisaged in Section 9.1 of the
Council motion supporting this action that notes that ``the history of
[catcher/processor] vessels which opt-out will remain with the
sector.'' The algorithm for primary species allocations in Sec.
679.81(a)(5)(ii)(A) does not consider the allocations that would be
attributed to participants in the opt-out fishery as part of the
denominator for allocating the primary rockfish species. This approach
is also consistent with the approach described in the final EA/RIR
prepared for this action.
Comment 43: The provision in Sec. 679.81(c) references a use
limitation for halibut PSC in Sec. 679.82. No use limits in that
section apply to halibut PSC. Remove this incorrect reference.
Response: NMFS agrees and has removed the reference to use caps in
Sec. 679.81(c)(1). Use caps are intended to apply only to the use of
primary rockfish species and not to the use of halibut PSC that is
assigned to a cooperative. The FMP and Section 6.2 of the Council
motion recommending this action indicate that use caps should not apply
to halibut PSC used by cooperatives.
Comment 44: In Sec. 679.81(c)(1), both secondary species and
halibut PSC are allocated based on the LLP holder's rockfish history.
Therefore, use caps only apply to the Rockfish QS. This suggests
secondary species and halibut PSC are non-severable from the Rockfish
QS, and are allocated on an annual basis. Secondary and halibut PSC CQ
need to be fully transferable between cooperatives and also be
separable from the originating Rockfish QS for these transfers to be
effective. These species will most likely be the most restrictive for
participants, and therefore they need to be used by industry
efficiently.
Response: This comment has been addressed in response to Comment
43. In addition, NMFS notes that the regulations concerning the
transfer of CQ do not restrict the ability of a rockfish cooperative to
transfer its halibut PSC CQ or secondary species CQ separate from the
primary rockfish species CQ. NMFS has clarified the regulations at
Sec. 679.81(i)(4)(iii) to note that secondary species and halibut PSC
CQ are not assigned to specific members of a rockfish cooperative.
Additionally, NMFS has clarified regulations at Sec. 679.82(a)(1) to
note that use caps do not apply to secondary species and halibut PSC
CQ.
Comment 45: In paragraphs (c)(1) and (2) of Sec. 679.81, the
allocation of halibut PSC should be based on the use of halibut PSC by
eligible catcher processors while targeting rockfish.
Response: NMFS agrees. However, these comments address the proposed
rule at paragraphs (c)(2)(i) and (c)(3)(i) of Sec. 679.81 rather than
paragraphs (c)(1) and (c)(2) of that section as noted by the commenter.
The response to this comment is similar to that provided to Comment 39,
but is specific to the amount of halibut PSC attributed to the catcher/
processor and catcher vessel sectors. To reduce inconsistency with the
Council intent, NMFS modified Sec. 679.81(c)(2)(i) to note that
halibut PSC shall be allocated between the catcher/processor and
catcher vessel sectors based on the amount of halibut PSC that was
``used during the directed fishery for any targeted primary rockfish
species.''
Comment 46: In paragraphs (c)(2) and (3) of Sec. 679.81, the
division of halibut between the sectors should be based on the relative
aggregate qualified rockfish catch of the sectors. The proposed rule
incorrectly bases the allocation on halibut use. Revise to base the
division on sector rockfish history.
Response: NMFS agrees. The allocation of halibut PSC between the
catcher/processor and catcher vessel sectors is based on first
determining the total amount of halibut PSC attributed to LLP licenses
eligible for the Program. Second, the amount of halibut PSC used by
these LLP licenses is divided between the catcher/processor and catcher
vessel sectors based on the relative amount of primary species Rockfish
QS assigned to these sectors.
To improve consistency with Council intent in Section 4.5 of the
Council motion which notes that ``each LLP holder will receive an
allocation of halibut mortality equivalent to their proportion of the
sector rockfish history,'' and Amendment 68, NMFS modified Sec.
679.81(c)(2) so that the maximum amount of halibut PSC that may be used
by participants in the Program is based on the amount of halibut PSC
used by all eligible LLP licenses as a percentage of the total halibut
mortality used by all fishery participants during the seven year period
from 1996 until 2002. This percentage of halibut mortality is then
multiplied by the total GOA halibut mortality limit. This amount of
halibut mortality is further divided between the catcher/processor and
catcher vessel sectors based on the percentage of aggregate Rockfish QS
assigned to each sector, with modifications made to accommodate LLP
licenses assigned to the opt-out fishery in the catcher/processor
sector. By making these changes, the regulations applicable to the
catcher/processor and catcher vessel sectors have also been
consolidated. The regulations at Sec. 679.81(c)(2) include the
allocation mechanism applicable to the catcher/processor and catcher
vessel sectors and Sec. 679.81(c)(3) has been deleted because those
provisions are redundant with the revised Sec. 679.81(c)(2).
Accordingly, Sec. 679.81(c)(4) and (5) of the final rule have been
renumbered as Sec. 679.81(c)(3) and (4).
Comment 47: The Council motion notes that a vessel's operational
status determines how Rockfish QS should be assigned between the
catcher vessel and catcher/processor sectors. If a vessel with a
catcher/processor LLP licence was not used to process the rockfish
catch onboard the vessel, than the Rockfish QS derived from the
landings on that vessel is assigned to the catcher vessel sector. The
provisions in Sec. 679.81(d)(2)(ii) and (d)(4)(ii) seem to dictate
that Rockfish QS on a catcher/processor LLP license can only be
allocated to the catcher/processor sector. Additionally, this suggests
that a catcher/processor LLP license is only allowed to form
cooperatives with other holders of catcher/processor LLP licenses and
not with catcher vessel LLP license holders. The regulations need to
allow catcher/processor LLP license holders that did not process on
board to have that catch history assigned to the catcher vessel sector
and be able to join catcher vessel cooperatives.
Response: NMFS agrees. The commenter correctly notes that if a
vessel has an LLP license with a catcher/processor endorsement but that
vessel did not harvest and process primary rockfish species aboard that
vessel, the Rockfish QS derived from the legal rockfish landings
attributed to that LLP license would be assigned to the catcher vessel
sector. This is indicated in Sec. 679.80(b)(5)(i). However, the
proposed regulatory text at Sec. 679.81(d)(2)(ii) and (d)(4)(ii)
stated that an eligible rockfish harvester may assign Rockfish QS to a
rockfish cooperative in the catcher vessel sector if that Rockfish QS
is associated with an
[[Page 67221]]
LLP license with a catcher vessel designation that is endorsed for
trawl gear in the Central GOA trawl fishery. This proposed provision
was inconsistent with the provisions of Sec. 679.80(b)(5)(i), and
would seemingly limit the ability of an eligible rockfish harvester,
with a catcher/processor endorsed LLP license with Rockfish QS assigned
to the catcher vessel sector, from using that Rockfish QS in a catcher
vessel cooperative.
To correct this inconsistency, and allow the use of Rockfish QS
assigned to the catcher vessel sector regardless of the type of LLP
license on which that Rockfish QS is assigned, NMFS has made the
following modifications. In Sec. 679.81(b)(5), NMFS has modified Sec.
679.81(b)(5)(ii) and added a new Sec. 679.81(b)(5)(iii) to state that
a legal rockfish landings is attributed to the catcher vessel sector if
it is a legal rockfish landing but does not meet the criteria of being
a legal rockfish landing for the catcher/processor sector.
NMFS has also modified Sec. 679.81(d)(2)(ii) and (d)(2)(iii),
which address the use of Rockfish QS in a rockfish cooperative, and
Sec. 679.81(d)(4)(ii) and (d)(4)(iii), which address the use of
Rockfish QS in the limited access fishery. These modifications allow an
eligible rockfish harvester to assign Rockfish QS to a rockfish
cooperative or limited access fishery based on the sector to which
those Rockfish QS are assigned, not based on the designation of the LLP
license that gave rise to that Rockfish QS.
Comment 48: Modify the language in the preamble on page 33045 to
make it clear that Rockfish QS resulting from those legal landings made
aboard a vessel with an LLP licence endorsed for catcher/processor
activity but not processed onboard that vessel is assigned to the
catcher vessel sector. Further clarify that there is at least one
vessel which operated under the authority of a catcher/processor LLP
license with legal rockfish landings that did not process catch that
rockfish catch onboard.
Response: NMFS notes the error in the preamble (71 FR 33045) to the
proposed rule and has addressed the regulatory effects of this error in
the response to Comment 47.
Comment 49: In Sec. 679.81(d)(5), specify that only catcher/
processors can assign their Rockfish QS to the opt-out fishery.
Response: NMFS agrees and has modified Sec. 679.81(d)(5) to
clearly state that only an eligible rockfish harvester with Rockfish QS
assigned to the catcher/processor sector may choose to apply for the
opt-out fishery.
Comment 50: Revise Sec. 679.81(e)(4)(i)(B) and Sec. 679.81(e)(8)
to allow trip declarations for moving from rockfish targets to other
targets. In Sec. 679.81(e)(4)(i)(B), at least one vessel must be
designated to harvest the CQ assigned to a cooperative in the annual
application for CQ. This provision forces a rockfish cooperative to
devote one vessel exclusively to harvest under a CQ permit for that
rockfish cooperative at all times, contravening the trip-by-trip method
for accounting and monitoring rockfish activity as was discussed in
Section 3.4.1 of the draft EA/RIR/IRFA that was under review by the
Council at the time of final action. Rockfish cooperatives will require
flexibility in determining how the CQ permit should be used.
Additionally, in Sec. 679.81(e)(8), the requirement to amend an
application for CQ to remove a vessel from the rockfish target fishery
is inconsistent with the rockfish trip declaration contemplated by the
analysis. Paragraph (i)(3)(xxii) in Sec. 679.81 is also inconsistent
with the draft EA/RIR/IRFA. It effectively creates ``rockfish boats''
that cannot fish in any fishery other than the Rockfish Program fishery
after May 1 until the fishery is closed for the cooperative or the
cooperative refiles its application for CQ. These provisions are
completely unreasonable and remove most benefits from the Program. The
analysis contemplates a trip declaration for entering the rockfish
fishery to allow for adequate monitoring and accounting. This aspect of
the Program is critical to achieving its intended benefits.
Response: Neither Amendment 68 nor the Council motion recommending
Amendment 68 address specific fishing plans by vessels that are
assigned to a cooperative or the methods that NMFS should use to
determine how a vessel's catch would be deducted from a CQ permit.
Section 3.4.1 of the final EA/RIR prepared for the approval of
Amendment 68 did review potential mechanisms of accounting for catch by
vessels that are assigned to a rockfish cooperative. One of the
mechanisms specifically mentioned was for NMFS to monitor vessels that
were participating in the Program on a trip by trip basis in the
catcher vessel sector, or on a haul-by-haul basis in the catcher/
processor sector, with the assumption that this form of monitoring
could be effectively provided within NMFS' management and funding
constraints.
The final EA/RIR noted that ``given the complexity of the [Program]
and the limited time period for its effectiveness, NOAA Fisheries
intends to manage the fishery to minimize costs and the complexity of
quota management.'' NMFS has attempted to develop a monitoring and
enforcement program that is cost-effective, manageable, and effective.
The final EA/RIR also notes that:
Share-based management programs can increase the incentive of
participants to misreport and high grade catch, while at the same
time increasing the burden on managers to provide highly defensible
estimates of catch, especially when those estimates directly impact
quota holders. NOAA Fisheries has dealt with these issues by clearly
articulating goals for the management of share-based fisheries and
imposing new and more stringent monitoring and observer requirements
as these programs have been developed. All of these programs have
been unique in terms of the fleet and fisheries rationalized, and
interventions developed for the programs have varied as well. The
Central Gulf of Alaska rockfish pilot program is no different in
this regard and development of a suitable monitoring program will
involve the development of new tools to ensure defensible catch data
is collected to minimize unreported discard of allocated species
catch.
The monitoring and enforcement provisions in the proposed rule were
designed to meet the multiple objectives of NMFS' catch accounting and
reporting needs. Paragraph (e)(4)(i)(B) of Sec. 679.81 of the proposed
rule did create a condition in which rockfish cooperatives would need
to designate at least one vessel to fish the CQ permit for that
cooperative effective on May 1. Paragraph (e)(8) of Sec. 679.81 did
provide a mechanism for cooperatives to modify their CQ permit to
redesignate a specific vessel or vessel(s) to fish under a CQ permit.
This mechanism differs somewhat from a specific trip-by-trip
declaration of CQ permit and non-CQ permit fishing. However, providing
trip-by-trip accounting dramatically increases the administrative
burden to track each individual vessel, particularly if vessels
frequently transit between CQ and non-CQ fishing. Check-in/check-out
provisions quickly absorb staff resources to collect, monitor, and
verify check-in/check-out reports with fish ticket data when
discrepancies arise.
Vessels that check in and out of CQ permit fishing frequently could
create potential confusion for observers that may be switching
monitoring standards and protocols for each trip. A check-in/check-out
procedure is required in the halibut and sablefish individual fishing
quota (IFQ) program. However, under the halibut and sablefish IFQ
program, the costs of monitoring and administering a check-in/check-out
procedure are recoverable under Section 303(d)(2)(B) of the Magnuson-
Stevens
[[Page 67222]]
Act. Section 304(d)(2)(A) of the Magnuson-Stevens Act requires the
Secretary to ``collect a fee to recover the actual costs directly
related to the management and enforcement of any...individual fishing
quota program [or] community development quota program.'' Any IFQ
program, must follow the statutory provisions set forth by section
304(d)(2) of the Magnuson-Stevens Act and other provisions of the
Magnuson-Stevens Act related to cost recovery and fee collection for
IFQ programs. NMFS and NOAA General Counsel are reviewing the
applicability of the Magnuson-Stevens Act provisions on cost recovery
and fee collection to the Program. Should subsequent analysis indicate
that Section 303(d)(2)(B) of the Magnuson-Stevens Act applies to the
Program, and a cost recovery program is implemented, more elaborate
check-in/check-out procedures could become more affordable for NMFS and
would warrant additional review.
The commenter appears to be most concerned about providing
flexibility for cooperatives to designate specific vessels to fish
under the CQ permits in a timely fashion, and redesignate vessels as
necessary. NMFS has adopted several modifications to provide additional
flexibility to cooperative members, while meeting existing catch
accounting limitations and funding constraints.
First, NMFS has deleted provisions at Sec. 679.81(e)(4)(i)(B) that
required that if no vessels are designated to use the CQ issued to the
rockfish cooperative on the application, then all vessels using LLP
licenses assigned to the rockfish cooperative will be assumed to be
designated to use the CQ.
Second, NMFS has deleted regulations in Sec. 679.81(e)(8) that
provide the mechanism for amending the CQ permit to add or delete
vessels that are permitted to fish under a CQ permit for a cooperative.
NMFS has also deleted references to the CQ permit amendment in
paragraphs Sec. 679.5(r)(1)(ii), and Sec. 679.81(i)(3)(x).
Third, NMFS has provided a check-in procedure by inserting a new
Sec. 679.5(r)(10) that allows the designated representative of a
cooperative to designate when a vessel will fish under a CQ permit for
that rockfish cooperative. A vessel check-in must be submitted 48 hours
prior to the beginning of a fishing trip by that vessel. This advance
notice will provide NMFS time to adjust catch accounting procedures and
accurately monitor catch. The designated representative can not submit
more check-in reports in a calendar year than an amount equal to three
times the number of LLP licenses that are assigned to that rockfish
cooperative in that calendar year. This limit would reduce the number
of check-in reports and vessels that must be tracked and reduce the
chance that a specific vessel's catch is misapplied in NMFS' catch
accounting system.
Fourth, NMFS, would include in Sec. 679.5(r)(10) provisions that
allow the designated representative of a cooperative to designate when
a vessel will no longer fish under a CQ permit for that rockfish
cooperative. The designated representative could submit no more check-
out reports in a calendar year than an amount equal to three times the
number of LLP licenses that are assigned to that rockfish cooperative
in that calendar year. A vessel check-out is effective the earlier of:
The end of a complete offload if that vessel is fishing
under a CQ permit for a catcher vessel cooperative; or
The end of the week-ending date as reported in the weekly
production report if that vessel is fishing under a CQ permit for a
catcher/processor cooperative; or
The end of a complete offload if that vessel is fishing
under a CQ permit for a catcher/processor cooperative.
A vessel check-out must be submitted within 6 hours after its
effective date and time. This will ensure that catch is properly
debited against a CQ account and reduces the risk that a subsequent
trip would be misapplied to a CQ permit and have to be corrected.
Fifth, Sec. 679.7(n)(7)(iii) is modified so that the designated
representative of a rockfish cooperative would be responsible for
submitting timely check-in/check-out reports for fishing under a CQ
permit according to the provisions in Sec. 679.4(n)(10).
Sixth, Sec. 679.7(n)(7)(iv) is modified to apply only to catcher
vessels, and Sec. 679.7(n)(7)(vi) is removed. This effectively
authorizes a catcher/processor vessel to have species harvested under a
CQ permit and those not harvested under a CQ permit onboard the vessel
at the same time. Therefore, if a catcher/processor vessel checked-out
while at sea at the end of a week-ending date, it would not need to
offload prior to fishing in other non-Program fisheries.
These modifications do not allow trip-by-trip or haul-by-haul
designation of CQ and non-CQ harvests. That detailed level of catch
accounting would require significant changes to the existing catch
accounting system software, require additional resources to track a
potentially large number of changes in accounting methods, and add a
greater degree of complexity to an already complex Program that has a
two-year duration. These modifications accommodate the requirements and
limitations of NMFS and the desire for maximum flexibility proposed by
the commenter. These modifications adopted by NMFS do allow vessels to
be checked in to fish under a CQ permit when needed and without a
potentially lengthy approval process. Designated representatives for
cooperatives will need to coordinate fishing plans with their members
to ensure that once a vessel is checked in, it is used to effectively
harvest fish under the CQ permit and recognize that once a vessel is
checked out it can no longer be used to fish for that cooperative's CQ
unless checked in again. This will limit vessels to fishing under a CQ
permit for a specific time period, but cooperative managers should be
able to coordinate fishing schedules with their members to avoid
subjecting them to monitoring and enforcement requirements beyond those
required to effectively manage this complex multispecies quota Program.
Alternatively, if a cooperative is unable to effectively arrange
fishing schedules with their members, it may transfer its CQ to another
cooperative, thereby relieving its members of the requirements for
fishing under a CQ permit.
Comment 51: How long will it take NMFS to process the application
to amend vessels authorized to fish CQ under Sec. 679.81(e)(8)(i)?
Response With the changes made in the response to Comment 50, this
application no longer is required and the comment is no longer
applicable.
Comment 52: Although not explicit in the proposed rule, the
preamble states that a vessel could not be redesignated to fish
rockfish CQ, if any fish were onboard. This could be overly burdensome
on catcher processors that would be forced to offload all products
despite having adequately accommodated accounting and monitoring of
catch under the Program and under sideboards.
Response: Catcher/processors are not required to offload all
products harvested prior to being designated to fish under a CQ permit.
Likewise, a catcher/processor vessel would not be required to offload
all products harvested under a CQ permit prior to fishing in a non-
Program fishery. Changes to the provisions for designating vessels to
harvest CQ are addressed in the response to Comment 50.
Comment 53: Allow the rockfish cooperative vessels to declare, on a
tow by tow basis as with CDQ fishing, whether they are fishing under a
CQ permit or not. In May or June the vessel will declare a rockfish tow
or an open
[[Page 67223]]
access tow. Nothing accrues to the rockfish allocation in May and June
unless it's specifically rockfish harvested under a CQ permit. In July,
the vessel will declare a rockfish tow or a sideboard tow (nothing
accrues to open access in the month of July).
Response: Aspects of this comment addressing tow-by-tow
declarations of harvest to the Program have been addressed in the
response to Comment 50. In addition, during the month of July, it is
assumed that if a vessel is subject to a sideboard limit, than all
catch made by that vessel in July, unless fishing under a CQ permit, is
applied to the sideboard limit for that vessel. More generally, it
should be noted that rockfish fisheries in the Central GOA differ
substantially from CDQ rockfish fisheries in the BSAI and similar catch
accounting and monitoring principles are not applicable to the Program.
NMFS notes that the allocations of rockfish species to the CDQ Program
are much smaller than the allocations of primary rockfish species under
the Program, and those small allocations are rarely fully prosecuted.
As an example, in 2005, the Pacific ocean perch allocation to the CDQ
Program was approximately 950 mt for the BSAI. However, only
approximately 100 mt of Pacific ocean perch, equivalent to roughly one
day of harvest by a catcher/processor vessel, was taken in a directed
CDQ rockfish fishery. NMFS expects that rockfish allocations under the
Program will be fully prosecuted consistent with historic harvest
patterns. This difference means that NMFS is likely to be tracking a
much greater number of hauls in the Program than NMFS monitors
currently in the CDQ multispecies fisheries.
Additionally, designating specific hauls as CDQ or non-CDQ hauls is
largely limited to the pollock fisheries. Effectively, this means that
vessels do not target CDQ multispecies fisheries at the same time that
they are targeting non-CDQ multispecies fisheries. NMFS has limited
experience with monitoring CDQ and non-CDQ multispecies harvests on a
haul-by-haul basis. The primary advantage of haul-by-haul accounting in
the CDQ pollock fishery is that it allows vessels to assign specific
pollock hauls to either an AFA cooperative, or to the CDQ group's
allocation. This benefits the CDQ groups and the AFA cooperatives, by
allowing vessel operators to attribute hauls, the associated incidental
catch, and halibut PSC to either the AFA cooperative or the CDQ group,
maximizing the use of either the CDQ group or the AFA cooperative's
allocation. Information reviewed by NMFS indicates that halibut PSC use
in CDQ pollock fisheries differs from that in AFA directed pollock
fisheries even through these fisheries are prosecuted by the same
vessels simultaneously. This is likely due to the selective attribution
of catches with higher halibut PSC rates to the AFA Program, which
minimizes the use of halibut PSC quota allocated to CDQ groups.
Under the Program, attributing specific hauls to the Program or
non-Program fisheries could create an incentive for vessel operators to
attribute hauls with high incidental catch or halibut PSC to the non-
rockfish fisheries. This could cause halibut PSC use rates in the non-
Program fisheries to increase, and could constrain non-rockfish
fisheries in the Central GOA limited by halibut PSC use, such as deep-
water flatfish fisheries. As an example, a vessel operator could assess
the species composition of hauls by making several hauls and
designating hauls with lower quality rockfish or higher halibut PSC as
non-Program hauls. This process of selectively attributing tows to a CQ
permit or the rockfish limited access fishery could increase discarding
of rockfish that are harvested in non-Program hauls to ensure that the
rockfish harvested is below the MRA for the other species (e.g.,
flatfish) that are also harvested in these tows. Unlike pollock,
rockfish species have life histories that may make them less resilient
to fishing pressures. Given the TAC, allowable biological catch, and
overfishing level of the primary rockfish fisheries, NMFS is cautious
about potentially introducing additional incentives for high grading of
catch which can occur in quota-based fisheries.
Finally, NMFS notes that the Program is intended, in part, as a
two-year pilot project to provide additional information about quota
management of a multispecies fishery. As with other aspects of this
Program, changes in catch accounting can be initiated after NMFS and
the industry have additional experience with the Program.
Comment 54: Paragraphs (e)(5)(i)(E) and (e)(6)(i)(F) of Sec.
679.81 require detailed ownership information from persons assigning
their LLP license to the limited access or opt-out fisheries. These
fisheries do not receive an individual allocation of primary rockfish
species, so neither sector is subject to an ownership cap. The
information is unnecessary and should not be required.
Response: NMFS disagrees. The use caps that are established in
Sec. 679.82 are applicable to the amount of Rockfish QS that a person
may hold, and the amount of CQ that may be used by a rockfish
cooperative that is derived from an eligible rockfish harvester's
holdings of Rockfish QS. Although an eligible rockfish harvester who
assigns his LLP license and associated Rockfish QS to the limited
access fishery or the opt-out fishery may not receive CQ in a given
year, that person is still a holder of Rockfish QS. As such, NMFS must
have a means for determining whether that eligible rockfish harvester
exceeds the Rockfish QS use cap. Ownership data is collected on an
annual basis and because the application for the rockfish limited
access fishery and application to opt-out are due annually, these forms
provide a means for NMFS to gather timely ownership information. The
rule has not been modified.
Comment 55: The estimated time line between the final regulation
going into effect (November 1, 2006) and when a company must submit an
application to participate in the Program (December 1, 2006) is
unrealistic and simply not practical. The 30-day time period is
inadequate to assemble and make a complete application as set forth in
Sec. 679.81(e). This application, which will likely bring together
multiple companies to form a cooperative, is not a simple task. To form
an entirely new ``cooperative legal entity'' that meets the multitude
of administrative requirements in only 30 days is not practical.
Response: NMFS agrees and has modified the due date to apply to
participate in the Program in Sec. 679.80(e)(3) from December 1, 2006,
to January 2, 2007. NMFS also modified the due date for the application
for CQ, application for the rockfish limited access fishery,
application to opt-out, and Application for the entry level fishery in
Sec. 679.81(e)(3), from December 1 of the year prior to the year in
which a person wishes to participate, to March 1 of the year in which
that person wishes to participate. These changes will allow potentially
eligible harvesters and processors to apply to participate in the
Program and then have nearly 60 days to decide whether to participate
in a cooperative, limited access fishery, or opt-out. During this time
period, harvesters could coordinate with each other. This will also
provide additional time for eligible rockfish harvesters in the catcher
vessel sector who wish to form a rockfish cooperative to coordinate
with the eligible rockfish processor with whom they may associate.
Comment 56: In Sec. 679.81(f), remove the statement concerning
processor eligibility transfers because the Council motion makes no
provision for the
[[Page 67224]]
transfer of processor licenses. Additionally, the provisions in
paragraphs (f)(2) and (g)(1) of Sec. 679.81 are inconsistent with the
Council motion. Since the Program is short term, transfer of
eligibility once the Program is implemented is not necessary. The
Council motion makes no provision for the transfer of processor
eligibility.
Response: NMFS agrees. Although processor eligibility transfers are
likely to be necessary should Congress provide additional authority to
NMFS to extend this Program, the Council did not specifically recommend
provisions to allow processors to transfer their eligibility to another
processor. NMFS has deleted the provision concerning the transfer of
processor eligibility in Sec. 679.81(f) and (f)(2). In addition, NMFS
has modified Sec. 679.81(g)(1) to note that a person may not transfer
their eligibility as a rockfish processor to another person except in
the case when a person purchases a processing facility and the
processing history associated with that facility. In this case, that
person would be eligible to operate that facility and use the
processing history associated with that facility.
Comment 57: Paragraph (f)(1)(ii)(B) of Sec. 679.81 requires the
names of all persons with ownership interest in an LLP license upon the
transfer of CQ. If NMFS already has this information from the annual
application for CQ, it is not needed again when CQ is transferred.
Response: NMFS agrees and has deleted this requirement in Sec.
679.81(f)(1)(ii)(B). The requirement to collect ownership information
of rockfish cooperative members is addressed under the annual
application for CQ requirements in Sec. 679.81(e)(4)(i)(B)(2) and is
not required again.
Comment 58: In Sec. 679.81(f)(1), the permission of the affiliated
processor is required for any CQ transfer by a catcher vessel
cooperative.
Response: NMFS agrees. The regulations at Sec. 679.81(f)(1)(v) and
(vi) provide that any transfer must be signed by an designated
representative of the cooperative. NMFS had presumed that this
designated representative would have the authority of the eligible
rockfish processor with whom that rockfish cooperative is associated.
NMFS has modified Sec. 679.81(f)(1)(v) and (vi) to require that the
designated representative provide explicit authorization signed by the
applicant and the eligible rockfish processor with whom that rockfish
cooperative is associated with any application. This modification is
consistent with Section 5.4 of the Council motion recommending this
action which states that rockfish cooperatives ``may engage in inter-
cooperative transfers of annual allocations to other cooperatives with
agreement of the associated qualified processor.'' An application will
not be considered valid without this explicit authorization.
Comment 59: The provisions in Sec. 679.81(h) suggest that MRAs
apply when rockfish boats are participating in non-rockfish fisheries.
Since ``opting out'' has been defined as a fishery with applicable MRAs
defined, it suggests that all fishing by a rockfish boat is subject to
rockfish MRAs. Applying the Program MRAs to cooperatives fails to
distinguish between vessels assigned to a rockfish cooperative and
fishing under a CQ permit, and vessels assigned to a rockfish
cooperative but not fishing under a CQ permit. A sentence could be
added stating the fishing outside cooperatives and outside of the
limited access rockfish fishery is subject to Table 10 MRAs.
Response: NMFS agrees in part. The MRAs specific to the Program are
applicable only when vessels are fishing in the Central GOA for primary
rockfish species under a CQ permit, or in a limited access fishery.
Fishing by vessels that are not fishing under a CQ permit or in the
limited access fishery would continue to be subject to the MRAs
applicable for non-Program fisheries. NMFS does agree that additional
clarity is required in Sec. 679.81(h)(1) to note that a vessel
assigned to a rockfish cooperative and fishing under a CQ permit may
harvest groundfish species not allocated as CQ up to the MRA for that
species as established in Table 30 to this part. Any vessel assigned to
a cooperative not fishing under a CQ permit (i.e., engaged in non-
Program fisheries) will continue to be subject to MRA limits
established under Table 10 to part 679.
Comment 60: In Sec. 679.81(i)(1), persons who leave a rockfish
cooperative are bound by the allocation of CQ during the year. This
should also state that any sideboards applicable to a catcher/processor
rockfish cooperative continue to bind the person. Include a provision
stating that sideboards continue to bind a person that leaves a
cooperative.
Response: NMFS agrees. Although Sec. 679.82(f)(2) details those
vessels and LLP licenses that are subject to sideboard limits for a
catcher/processor sector, that section does not specifically state that
once a vessel or LLP license is assigned to a rockfish cooperative it
continues to be bound by the sideboard limits established for that
rockfish cooperative. NMFS has modified Sec. 679.82(f)(2), (f)(2)(i),
(f)(2)(ii), and (f)(2)(iii) so it clearly states that once an LLP
license of vessel has been assigned to a rockfish cooperative that LLP
license and vessel continues to be subject to the sideboard limits
established for that rockfish cooperative under Sec. 679.82(d) and
(f), for that calendar year.
Comment 61: Paragraph (i)(3)(vi) of Sec. 679.81 should note that
75 percent of the Rockfish QS eligible for the cooperative is necessary
for cooperative formation.
Response: NMFS agrees. Section 5.4 of the Council motion
recommending this action notes that ``75 percent of historical shares''
(i.e., Rockfish QS) delivered to an eligible rockfish processor, must
be assigned to a rockfish cooperative in order for a rockfish
cooperative to form. NMFS has modified Sec. 679.81(i)(3)(vi) to note
that a rockfish cooperative can form only if it is assigned Rockfish QS
that represents at least 75 percent of all the legal rockfish landings
delivered to that eligible rockfish processor during the four years
selected by that processor. Legal rockfish landings that do not yield
Rockfish QS would not be considered in the calculation.
Comment 62: In Sec. 679.81(i)(3)(xii) the phrasing of the question
and answer should be edited because the intent of this provision is not
clear.
Response: NMFS agrees. Although the intent of this provision has
not been modified, NMFS rephrased Sec. 679.81(i)(3)(xii) to note that
sideboard limits assigned to a rockfish cooperative in the catcher/
processor sector are limits applicable to a specific rockfish
cooperative, and may not be transferred between rockfish cooperatives.
Comment 63: Paragraph (i)(3)(xv) in Sec. 679.81 is unclear and may
deviate from the Council's intent. Specifically, if a company owns two
qualified processing facilities, it could have two associated
cooperatives (one for each plant). The intent of the processing history
transfer provisions are two-fold. First, a processor can buy a facility
and its associated processing history and operate that facility. This
allows a processor to operate two plants with two distinct rockfish
cooperatives. Second, the processor could buy the processing history of
a closed facility. This processing history could be combined with the
processing history at another facility, and that combined processing
history would be used to form associations with a single plant (which
must be in the same community as the plant from which history was
purchased). In any case, the processor must stay under the use caps.
[[Page 67225]]
Response: NMFS agrees and has modified Sec. 679.81(i)(3)(xv) to
more clearly note that an eligible rockfish processor will be issued a
single eligible rockfish processor permit for the aggregate processing
history based on (1) the holdings of processing history at a specific
facility, and (2) acquired processing history from a shoreside
processor or stationary floating processor that is closed. A person may
only receive eligibility for processing history that is acquired
without the purchase of the processing facility associated with that
history if that person held that processing history prior to the end of
the application period to be included in the Program. The eligible
rockfish processor will select a single four year period applicable to
the aggregate processing history held by that eligible rockfish
processor for determining which eligible rockfish harvesters may form a
rockfish cooperative in association with that eligible rockfish
processor. Eligible rockfish harvesters are eligible for a rockfish
cooperative in association with that processor, based on the aggregated
processing history held by that processor. Once a rockfish cooperative
associates with that eligible rockfish processor, that processor may
receive rockfish delivered by that rockfish cooperative at a shoreside
processor or stationary floating processor owned by that eligible
rockfish processor, subject to any other restrictions that may apply.
NMFS has also modified Sec. 679.81(i)(3)(v) to note that an
eligible rockfish processor may select only one processor qualifying
period (i.e., the four of five year period) that is applicable to the
aggregated processing history held by that eligible rockfish processor.
If an eligible rockfish processor owns more than one processing
facility, and therefore more than one processing history, that eligible
rockfish processor would associate with one cooperative at one
facility, and associate with another cooperative at another facility.
As the commenter notes, any processing activity will continue to be
subject to processing use caps.
Comment 64: Paragraph (i)(4)(i) of Sec. 679.81 should be revised
to state that 75 percent of the eligible Rockfish QS that was initially
delivered to that processor is necessary for rockfish cooperative
formation.
Response: NMFS agrees and has modified Sec. 679.81(i)(4)(i) to
clarify that if an eligible rockfish harvester has not delivered to an
eligible rockfish processor, any Rockfish QS issued to that eligible
rockfish harvester may not be considered as contributing to the amount
of Rockfish QS necessary to meet a minimum of 75 percent of the legal
rockfish landings required to form a rockfish cooperative. This change
is consistent with the response to Comment 62.
Comment 65: In Sec. 679.81(i)(4)(ii) delete ``for'' from the
second line which reads ``a person fishing for CQ,'' so it reads ``a
person fishing CQ.''
Response: NMFS agrees and has corrected the typographic error in
Sec. 679.81(i)(4)(ii).
Comment 66: Paragraph (i)(4)(iii) of Sec. 679.81 should be revised
to note that catcher vessel sector inter-cooperative transfers are
required to be approved by the associated processor as is noted in
section 5.4 in the Council motion recommending this action.
Response: NMFS agrees. As noted in the response to Comment 58, NMFS
will require that any inter-cooperative transfer include explicit
authorization from the eligible rockfish processor with whom that
rockfish cooperative is associated as part of an inter-cooperative
transfer of CQ under Sec. 679.81(f)(1)(v) and (vi). With that change,
no modification is required in this section.
Comment 67: Paragraph (i)(4)(iii)(F) of Sec. 679.81 should
prohibit transfers from a rockfish cooperative once that cooperative
has submitted its termination of fishing declaration.
Response: NMFS disagrees. The intent of the termination of fishing
declaration is that after that date no transfers of CQ could be
received by a rockfish cooperative. Once NMFS has approved a
termination of fishing declaration submitted by a rockfish cooperative,
the total amount of CQ held by that rockfish cooperative is set to zero
(see Sec. 679.4(n)(2)(v)). Therefore, a rockfish cooperative would not
have any CQ available for transfer to another cooperative. These
requirements effectively prevent a rockfish cooperative from
transferring any CQ to or from another rockfish cooperative. No change
is required.
Comment 68: In Sec. 679.81(i)(5)(ii)(A), delete ``not'' in the
second to last line so that it reads, ``No member of a cooperative may
exceed. . .''
Response: NMFS agrees and has removed the word ``not'' from Sec.
679.81(i)(5)(ii)(A). This provision is intended to state that no member
of a rockfish cooperative may exceed the CQ use cap applicable to that
member. The word ``not'' negates that intent and is a typographical
error.
Comment 69: In paragraph (i)(5)(ii)(B) of Sec. 679.81, the total
CQ should be the amount assigned to the person from transfers and the
amount initially held from Rockfish QS.
Response: NMFS agrees and has clarified Sec. 679.81(i)(5)(ii)(B)
to provide that for purposes of CQ use cap calculation, the total
amount of CQ held (used) by a person is equal to all pounds of CQ
derived from the Rockfish QS held by that person and assigned to the
rockfish cooperative, and all pounds of CQ assigned to that person by
the rockfish cooperative from approved transfers. This change is
consistent with the FMP and the intent of this provision as described
on page 33054 of the preamble to the proposed rule (71 FR 33040).
Comment 70: Since a cooperative holds CQ directly only, the
application of the individual and collective rule for indirect holdings
in Sec. 679.82(a)(3) is unnecessary. Use of the individual and
collective rule could have some unintended consequences, particularly
if a person owns shares that are eligible for two different
cooperatives.
Response: NMFS agrees. A rockfish cooperative can only hold the CQ
derived from the members of this cooperative. A rockfish cooperative
cannot indirectly hold CQ and so the term ``individual and collective''
is not applicable and has been deleted from Sec. 679.82(a)(3).
Comment 71: Paragraphs (a)(3) and (a)(6) of Sec. 679.82 should be
revised to clearly note that a rockfish cooperative is precluded from
exceeding 30 percent of the CQ issued to the catcher vessel sector
unless that cooperative qualifies for a ``grandfather'' exemption. The
current structure of these paragraphs does not meet the intent of the
grandfather provisions. The exemption to the use cap should apply only
if the cooperative is eligible to receive in excess of 30 percent of
the initial allocation of catcher vessel Rockfish QS.
Response: NMFS agrees. As worded, the provisions in the proposed
rule at Sec. 679.82(a)(3) would limit the ability of a rockfish
cooperative to exceed 30 percent of the Rockfish QS pool allocated to
the catcher vessel sector. This could inhibit the ability of a rockfish
cooperative to form if the potentially eligible members of the rockfish
cooperative held more than 30 percent of the Rockfish QS in the catcher
vessel sector. To minimize the possibility of rockfish cooperatives
being so limited, NMFS modified Sec. 679.82(a)(3) to state that a
rockfish cooperative may not hold or use an amount of CQ that is
greater than the amount derived from 30.0 percent of the aggregate
Rockfish QS initially assigned to the catcher vessel sector, unless the
sum of the aggregate Rockfish QS held
[[Page 67226]]
by the eligible members of that rockfish cooperative is derived from
legal rockfish landings held by those eligible members prior to June 6,
2005, and this results in Rockfish QS that exceeds the use cap. The
rockfish cooperative will still be constrained by the sum of the use
caps that apply to each member of the rockfish cooperative. With this
change, modifications to Sec. 679.82(a)(6) are not required.
Comment 72: Paragraphs (a)(5) and (a)(6) of Sec. 679.82 are
intended to prevent a processor from exceeding 30 percent of the
catcher vessel sector allocation. The current exemption in (a)(6)
appears to allow a processor to exceed the use cap if any member of the
cooperative qualifies for an exemption from the use cap. It should
provide that a processor can exceed that cap only if it would be
associated with a cooperative comprised of members that receive in
excess of 30 percent of the initial allocation of Rockfish QS.
Response: NMFS agrees. The intent of this provision is to limit the
ability of a processor to receive more than 30 percent of the aggregate
rockfish TAC assigned to the catcher vessel sector with a specific
``grandfather'' provision if the harvesters eligible to deliver to that
eligible rockfish processor hold an amount of initially issued Rockfish
QS that yields CQ in excess of the 30 percent processor use cap. NMFS
has modified Sec. 679.82(a)(5) to limit eligible rockfish processors
to this grandfathered amount. With this change, modifications to Sec.
679.82(a)(6) are not required.
Comment 73: Paragraph (a)(4) of Sec. 679.82 should prevent a
catcher/processor vessel from harvesting any amount greater than the
amount of CQ attributable to the LLP license derived from that vessel.
As currently written, it suggests that if the LLP license used on that
vessel is allocated Rockfish QS in excess of the use cap, the use cap
does not apply at all.
Response: NMFS agrees and has modified this provision to note that
a catcher/processor vessel may not be used to harvest an amount greater
than the amount derived from the Rockfish QS assigned to an LLP license
that was used on that vessel prior to June 6, 2005. This change
clarifies the intent of this provision.
Comment 74: In Sec. 679.82(a)(6)(ii)(C), the reference to ``or
have any CQ received by a cooperative by transfer attributed to that
eligible rockfish harvester'' should restrict a rockfish cooperative
from assigning CQ to a harvester limited by the Rockfish QS use cap.
Response: NMFS agrees. The intent of Sec. 679.82(a)(6)(ii)(C) is
to restrict a rockfish cooperative from assigning CQ to a cooperative
member if that harvester is limited by the Rockfish QS use cap. This
intent is unclear as worded in the proposed rule. NMFS has modified
Sec. 679.82(a)(6)(ii)(C) so that an eligible rockfish harvester may
not receive any Rockfish QS by transfer or have any CQ attributed to
that eligible rockfish harvester unless that harvester's holding of
Rockfish QS are below the use cap.
Comment 75: Paragraph (a)(6)(ii)(C) of Sec. 679.82 states that a
person exceeding the ownership cap through the initial allocation of
Rockfish QS cannot ``have any CQ attributed to that eligible rockfish
harvester in a rockfish cooperative unless and until that person's
holdings of aggregate Rockfish QS in that sector are reduced to an
amount below the use cap.'' If the person is grandfathered for the
initial Rockfish QS allocation they should receive CQ for that amount,
but they cannot receive additional CQ. This seems to be indicated in
Sec. 679.82(a)(6)(iii), but this refers to a rockfish cooperative
using CQ in excess of the use cap. Rockfish cooperatives do not have
use caps, individuals do.
Response: NMFS has addressed the application of the CQ use cap in
the response to Comment 74. NMFS notes that CQ is held by a rockfish
cooperative and not by the members of the rockfish cooperative. The CQ
use cap limits the amount of CQ that a member of a rockfish cooperative
may attribute to that cooperative either by assigning his Rockfish QS
to that rockfish cooperative, or by having CQ attributed to that
cooperative member through an inter-cooperative transfer of CQ.
Comment 76: Paragraph (a)(6)(iii) of Sec. 679.82 should prevent a
cooperative from receiving CQ unless the CQ is held by an eligible
rockfish harvester who was eligible for that cooperative prior to June
6, 2005.
Response: NMFS agrees. NMFS has modified Sec. 679.82(a)(6)(iii) to
clarify this provision by providing that a rockfish cooperative may use
CQ in excess of the use cap only if that CQ is derived from the
Rockfish QS assigned to an LLP license that was held by an eligible
rockfish harvester prior to June 6, 2005, and who is eligible for that
rockfish cooperative.
Comment 77: Paragraph (b)(2)(ii) of Sec. 679.82 allows a person to
enter the limited access fishery if they do not opt-out or join a
cooperative. The quota should be allocated to the limited access
fishery under those circumstances, but the person does not get to fish
in the limited access fishery unless an application for the limited
access fishery is completed.
Response: NMFS disagrees. If an eligible rockfish harvester failed
to apply for a rockfish cooperative, limited access fishery, or the
opt-out fishery, then NMFS would assign the TAC derived from that
person's LLP license to the limited access fishery. These default
provisions provide a reasonable opportunity for persons in either
sector to continue to participate in the rockfish fishery if they
choose not to participate in a cooperative. The opt-out fishery is
applicable only to the catcher/processor sector. If NMFS allowed a
participant in the catcher/processor sector who failed to apply to fish
only in the opt-out fishery instead of the limited access fishery, NMFS
would be treating the failure to apply differently between the two
sectors. This would seem to foreclose harvest opportunities for only
one sector without a clear distinction or need. No change has been made
to the rule.
Comment 78: Paragraph (b)(5) of Sec. 679.82 appears to be
inconsistent with the Council motion that suggests that the use of
halibut PSC in the limited access fishery should be limited to an
amount which would have been allocated to vessels in the limited access
had they not joined cooperatives.
Response: NMFS disagrees. The Council motion notes that
``harvesters may elect not to join a co-op, and continue to fish in an
LLP/Open Access fishery. The LLP's share will be fished in a
competitive fishery open to rockfish qualified vessels who are not
members of a cooperative and must be delivered to one of the qualified
processors.'' It is clear that the limited access fishery is allocated
a portion of primary rockfish species, but allocations of secondary
species and halibut PSC to the limited access fishery is not explicit.
However, it is clear throughout the final EA/RIR and in the structure
of the Program that the limited access fishery is intended to provide
an opportunity for harvesters who do not wish to join a cooperative to
continue to fish in the rockfish fisheries, but that secondary species
would not be explicitly allocated (see Executive Summary of the final
EA/RIR).
Rockfish cooperatives are intended to provide exclusive harvest
privileges to specific groups of harvesters, and in the case of catcher
vessels, require an association with a specific processor. If the
limited access fisheries in the catcher/processor and catcher vessel
sectors were provided a distinct halibut PSC allocations, then the
potential exists for a small number of participants
[[Page 67227]]
in a limited access fishery to coordinate the harvest of their primary
rockfish species and apportion this halibut PSC allocation among their
members. In so doing, the limited access fishery could effectively
create a cooperative that would be able to manage an exclusive halibut
PSC allocation, receive many of the benefits of a rockfish cooperative,
but forego many of the requirements that the Council recommended as a
condition for operating as a rockfish cooperative (e.g., association
with a specific processor). This is contrary to Council recommendations
and the structure of this Program.
The limited access fishery does receive a halibut allocation in the
sense that the limited access fishery will receive a portion of the
halibut PSC that remains after allocation as CQ to the rockfish
cooperatives. Rockfish cooperatives are allocated a specific amount of
halibut PSC based on historic use by eligible rockfish harvesters.
Historically, halibut PSC use in the rockfish fisheries has been
debited from the third season halibut PSC apportionment to trawl gear
in the deep-water complex. NMFS will deduct the sum of the allocations
of halibut PSC CQ made to cooperatives from that third season
allocation. The apportionment of halibut PSC at other times of the year
to support other fisheries would not be affected by halibut PSC CQ
allocations made under the Program. This is consistent with the intent
of the Program to enhance rockfish harvest opportunities without
adversely affecting other fishery participants. Under this management
model, after deduction of halibut PSC for the rockfish cooperatives,
the third season halibut PSC limit remaining is available to the
limited access fisheries, the opt-out fishery, and non-Program
fisheries (i.e., flatfish fisheries). This mechanism of halibut PSC
management for the limited access fishery is similar to current
management practices in which the rockfish fisheries and flatfish
fisheries use the same third season halibut PSC apportionment to trawl
gear in the deep-water complex.
Comment 79: Paragraph (d)(4)(iii) of Sec. 679.82 limits the use of
halibut PSC in certain fisheries. The wording of this provision should
clarify that the halibut PSC sideboard actually limits directed fishing
in specific flatfish fisheries based on the use of halibut PSC.
Response: NMFS agrees and has modified Sec. 679.82(d)(4)(iii) to
more clearly indicate the intent of this provision that specific
flatfish fisheries in the GOA are subject to closure once a specific
halibut PSC sideboard limit has been reached.
Comment 80: In Sec. 679.82(d)(5)(ii)(C), the reference to
paragraph (d)(5) is circular. It would be clearer to reference
paragraph (d)(5)(ii)(B) of this section.
Response: NMFS agrees and has modified Sec. 679.82(d)(5)(ii)(C) to
include this reference to Sec. 679.82(d)(5)(ii)(B). This comment
clarifies that specific vessels would be subject to a sideboard limit
but does not alter the intent of this provision.
Comment 81: The table at Sec. 679.82(d)(6) should include the BSAI
Pacific cod sideboard amount for the catcher vessel sector (which is
0.0 percent) as that amount has been calculated in the final EA/RIR. In
Sec. 679.82(e)(4), the provision addressing the Pacific cod sideboard
amount for catcher vessels is unnecessary, if the sideboard amount is
included in the table at paragraph (d)(6) of this section. If this
provision is maintained, the algorithm for the sideboard should be
corrected. The sideboard limit for Pacific cod should be the catch of
the catcher vessel sector in July during the period from 1996 through
2002 divided by the catch of all trawl catcher vessels during the
entire year during the years 1996 through 2002. Either include the
sideboard percentage in the table in Sec. 679.82(d)(6) or correct the
method for calculating the sideboard percentage.
Response: NMFS agrees. NMFS has deleted catcher vessel specific
sideboards for BSAI Pacific cod in Sec. 679.82(e)(4) and placed the
catcher vessel BSAI Pacific cod sideboard limit in the table in Sec.
679.82(d)(6). NMFS has described the catcher vessel sideboard limit
applicable to catcher vessels directed fishing for Pacific cod in the
BSAI in a new Sec. 679.82(d)(4)(iv). This change benefits the reader
by providing a list of all sideboard limits in one section of the
regulations.
By moving these provisions to Sec. 679.82(d)(6), the provisions at
Sec. 679.82(e)(4) and (5) were made redundant and were deleted. The
regulatory text in Sec. 679.82(e)(5) was also redundant because NMFS
will not establish a sideboard limit for the catcher vessel sector for
BSAI Pacific cod because the sideboard limit is 0.0 percent. The
sideboard limit of 0.0 percent for directed Pacific cod fishing in the
BSAI for the catcher vessel sector was determined based on the final
EA/RIR prepared for this action (see Table 38 in Section 2.5.15 of the
final EA/RIR), and is not modified by this change. NMFS indicated on
page 33056 in the preamble of the proposed rule (71 FR 33040) that the
sideboard limits calculated in the EA/RIR/IRFA would be used to
establish the sideboard limits applicable to the catcher/processor and
catcher vessel sector. Table 9 in the preamble to the proposed rule
(page 33059) notes that the BSAI Pacific cod catcher vessel sideboard
is zero percent of the BSAI TAC.
Comment 82: Modify Sec. 679.82(d)(8) to strike the reference to
halibut PSC sideboard limits by each GOA management area and to provide
for halibut PSC limits to be established for the entire GOA for the
deep-water complex and shallow-water complex. The GOA sideboard limit
amount should be the sum of the three GOA management area sideboard
limits. When the sideboard limit is reached, the entire GOA would close
to directed fishing for flatfish in the deep-water or shallow-water
complex fisheries.
Response: NMFS agrees. At the time of final Council action on June
6, 2005, the Council recommended that halibut PSC sideboard limits
should be administered based on a percentage of the total GOA halibut
PSC sideboard limit rather than by specific limits for each GOA
management area (See Section 9.1(b) of the Council motion recommending
this action). This change in Council intent was not reflected in the
proposed regulations.
NMFS has modified the table in Sec. 679.82(d)(8) by summing the
halibut mortality limits in each GOA management area in the shallow
water complex for each sector to establish a shallow water halibut PSC
sideboard limit for the GOA that is applicable to that sector.
Similarly, in Sec. 679.82(d)(8), NMFS has summed the halibut
mortality limits in each GOA management area in the deep water halibut
PSC complex for each sector to establish a deep water halibut PSC
sideboard limit for the GOA that is applicable to that sector.
Comment 83: Paragraph (d)(8) of Sec. 679.82 should provide for the
division of halibut PSC sideboards among rockfish cooperatives in the
catcher/processor sector more clearly. The Council motion provides for
the division of halibut PSC sideboard limits based on historic use.
This is computed as the amount of halibut use of the vessels in the
cooperative divided by the halibut use of all vessels subject to the
sideboard multiplied by the GOA trawl halibut PSC sideboard limit.
Response: NMFS agrees. As written in the proposed rule, the
provision at Sec. 679.82(d)(8) did not clearly allocate a portion of
the catcher/processor deep-water or shallow-water halibut PSC limit to
a catcher/processor sector based on the historic halibut PSC use of the
members of a rockfish cooperative. Section 9.2 of the Council motion
notes that each rockfish cooperative in the
[[Page 67228]]
catcher/processor sector will be limited in the aggregate ``to the
historic average halibut mortality taken by cooperative members in the
target flatfish fisheries in the month of July by deep-water and
shallow-water complex.'' NMFS has revised Sec. 679.82(d)(8) to clarify
the allocation of halibut PSC sideboard limits among catcher/processor
rockfish cooperatives, the limited access fishery, and opt-out fishery.
Comment 84: In Sec. 679.82(d)(9)(i)(A) and (B), the reference to
(d)(1)(ii) is unclear. It seems to reference certain fisheries, but
section (d)(1)(ii) contains no list of fisheries.
Response: NMFS agrees. The references in Sec. 679.82(d)(9)(i)(A)
and (B) should be to the list of flatfish fisheries in Sec.
679.82(d)(4)(iii) which are subject to closure for directed fishing if
there is not a sufficient amount of halibut PSC sideboard limit. The
reference to Sec. 679.82(d)(1)(ii) is incorrect. NMFS has corrected
this citation to Sec. 679.82(d)(4)(iii).
Comment 85: In Sec. 679.82, halibut PSC use in the limited access
fishery should not be counted against the halibut PSC sideboard limit.
In Sec. 679.82(d)(9)(iii), the halibut catch from the Central GOA
rockfish fishery is not included in calculating the sideboard amount,
it should be excluded from the sideboard accounting. When determining
the halibut PSC sideboard limits, halibut PSC use in the Central GOA
rockfish fisheries was not used in the calculation. To administer the
sideboard, halibut PSC use in the limited access fishery should be
distinguished from halibut PSC use in other non-Program fisheries
(e.g., flatfish fisheries). The simplest way to make this distinction
may be to require limited access fishery vessels to declare their
target (i.e., either limited access fishery or other non-rockfish
fisheries) prior to fishing during the time period when the limited
access fishery is open. Such a declaration would simplify catch
accounting in general. NMFS should require a declaration of rockfish
participation from limited access participants to simplify
administration of halibut sideboards and accounting in the rockfish
fishery.
Response: NMFS agrees in part. Section 2.5.15 of the final EA/RIR
prepared for this action, and Section 9.2 of the Council motion
recommending this action indicate that the halibut mortality in the
Central GOA that is used in the limited access fishery would not be
used to determine the halibut PSC sideboard limits that apply to the
catcher/processor and catcher vessel sector. These sections of the
final EA/RIR also clarify that catch made under a CQ permit would not
apply against a sideboard limit annually specified for a rockfish
cooperative. NMFS has modified Sec. 679.82(d)(9)(iii) to note that
halibut PSC used while fishing under a CQ permit or in a limited access
fishery will not be debited against the sideboard limit established for
that sector. NMFS also modified Sec. 679.84(g)(3) and (4), which
contains a reference to catch accounting for groundfish and halibut
PSC, to not debit catch harvested while fishing under a CQ permit or in
the limited access fishery against the sideboard limit that is
established for that sector or rockfish cooperative.
NMFS disagrees that a declaration or check-in procedure is required
for the limited access fisheries. Based on expected TAC available to
the limited access fishery, NMFS anticipates that the limited access
fishery will have a limited duration. If a vessel has registered for
the limited access fishery its harvests of primary rockfish species
starting on July 1 will be deducted from the limited access fishery TAC
assigned to that sector. Once the limited access fishery TAC for all
primary rockfish species has been reached, or on the date it has been
forecasted to be reached, the limited access fishery will be closed. If
a vessel that had been fishing in the limited access fishery continues
to fish in the GOA in July, any of its groundfish subject to a
sideboard limit, and any halibut PSC use will be deducted from the
sideboard limits applicable to that sector.
Comment 86: Paragraph (f)(4)(ii) of Sec. 679.82 should provide
that for catcher/processor cooperatives that begin fishing on their CQ
permit prior to July 1, the stand down should last only until the
earlier of either when 90 percent of the cooperative allocation is
fished, or July 14.
Response: NMFS agrees. Section 9.2 of the Council motion
recommending this action does note that the stand down period
applicable to catcher/processor vessels named on an LLP license with
more than 5.0 percent of the Pacific ocean perch QS assigned to a
catcher/processor rockfish cooperative should begin on July 14 or when
the 90 percent of the CQ assigned to that rockfish cooperative has been
fished, whichever occurs earlier. NMFS has modified Sec. 679.82(f)(4)
and (f)(4)(i).
Comment 87: The proposed rule does not seem to clearly identify the
rules of participation in the entry level fishery. Entry level
processors do not seem to be required to apply for the entry level
fishery, although application/registration might simplify management as
well as clarify markets for entry level vessels. In addition, it should
be clear that if a processor tells an entry level harvester that he has
a market for his catch, it does not bind the harvester to deliver all
catch to the processor, nor the processor to accept all catch from that
harvester.
Response: Fish harvested from the entry level fishery may be
delivered to any processor that is not an eligible rockfish processor
as is noted in Sec. 679.83(a). Rather than requiring processors to
register, NMFS intends to provide maximum flexibility to entry level
harvesters to allow them to deliver to any eligible entry level
processor they choose. The annual application to participate in the
entry level fishery under Sec. 679.81(e)(7)(i)(D) only requires that
harvesters that wish to participate in an entry level fishery have a
statement from an eligible entry level processor that they have a
market for their product, but does not otherwise limit the entry level
harvester to deliver only to that processor. No change in the
regulations has been made.
Comment 88: As was pointed out during the Council development of
the Program, NMFS would like to maintain the authority to not open the
entry level fishery under certain circumstances, such as when more
harvesters sign-up to fish than NMFS deems reasonable for the size of
the TAC. However, this is not good news for the harvesters and
processors hoping to participate in the entry level fishery. A closed
entry level fishery is contrary to intent of the Council and the
enabling legislation requiring an entry level fishery. Several
solutions were suggested during the Council process, including a
lottery among potential harvesters, with the understanding that there
would be an attempt to arrive at a workable solution. The discussion
about this issue in the preamble of the proposed rule indicates that
NMFS has no solution to this potential problem. Develop a method to
open both the trawl and non-trawl entry level fisheries, no matter the
TAC size.
Response: As the Commenter notes, the entry level fishery receives
a small allocation of primary rockfish TAC. This allocation should be
sufficient to provide a limited fishery for entry level participants.
NMFS' ability to open an entry level fishery would only be curtailed if
large numbers of participants with sufficient harvest capacity register
to fish for the fishery. Under alternative methods of management (i.e.,
IFQ fishing), small allocations may be more manageable, however, the
entry level fishery was designed to provide an opportunity to persons
not otherwise eligible for the Program, and not to institute complex
quota-based management for a small
[[Page 67229]]
amount of TAC for a two-year Program. NMFS does not anticipate that
large numbers of participants will choose to participate in the entry
level fishery due to the small amount of TAC available for harvest.
Therefore, NMFS anticipates to be able to provide harvest opportunities
for the entry level fishery.
Comment 89: Clarify the likelihood of the unavailability of halibut
PSC closing the entry level fisheries.
Response: NMFS allocates halibut PSC on a seasonal basis for
various gear types to provide adequate fishing opportunities for
fisheries that use halibut PSC throughout the year. Although halibut
PSC use varies on an annual basis, and halibut PSC use may constrain
directed fisheries for specific gear types during certain times of the
year, it is unlikely that halibut PSC use would limit the entry level
fishery throughout the entire period when it may occur (May 1 through
November 15 for trawl gear, and January 1 through December 31 for
longline gear). Given the small amount of primary rockfish species TAC
allocated to the entry level fishery, NMFS anticipates limited halibut
PSC use in the entry level fishery, and a low likelihood that halibut
PSC use in other fisheries would foreclose the opportunity for an entry
level fishery.
Comment 90: The provisions in Sec. 679.84(c) requiring vessels
that opt-out of the Program to have observers and monitoring at the
same level as vessels targeting rockfish would impose huge economic and
compliance burdens on companies not electing to participate in the
Program. Requiring the expense of increased observers and costly
monitoring equipment, strictly for purposes of monitoring the sideboard
limit applicable to these vessels in July, seems extreme. Opt-out
vessels do not receive an individual allocation and fish off the
general sideboard limit for the catcher/processor sector (the largest
sideboard amount). Opt-out vessels do not need this level of monitoring
and many of them are unable to support it. The purpose of the opt-out
fishery is to allow vessels which qualified for the Program, but are
not dedicated rockfish boats to remain unaffected by the Program. Why
such onerous measures should apply to the opt-out sector is not at all
apparent. Consider reducing the monitoring burden to opt-out vessels.
Response: NMFS agrees in part. NMFS modified the regulations in
Sec. 679.7(n)(2)(iii) to clarify that catch monitoring requirements in
Sec. 679.84(c) through (e) during July do not apply to catcher/
processor vessels assigned to the opt-out fishery. Instead, NMFS has
inserted a new Sec. 679.7(n)(2)(iv) that establishes a prohibition if
a catcher/processor vessel assigned to the opt-out fishery fails to
follow catch monitoring requirements specific to the opt-out fishery in
a new paragraph Sec. 679.84(d). NMFS also clarified the application of
observer coverage levels in Sec. 679.50(c)(7)(i)(C) by removing its
applicability to catcher/processor vessels assigned to the opt-out
fishery and inserting a new Sec. 679.50(c)(7)(i)(F) that specifies
observer coverage levels for vessels in the opt-out fishery. Finally,
NMFS modified Sec. 679.84(c) to remove its applicability to catcher/
processor vessels in the opt-out fishery. NMFS inserted a new Sec.
679.84(d) with catch monitoring provisions specific to catcher/
processor vessels in the opt-out fishery, and renumbered Sec.
679.84(d) through (f) as Sec. 679.84(e) through (g).
As envisioned by the Council, vessels could choose to opt-out of
the Program (opt-out vessels). Opt-out vessels do not receive
allocations of primary rockfish species or secondary species but are
subject to sideboard limits under the Program. Sideboard fisheries will
occur in July and catch of target species will be monitored at the
fleet level. However, in these sideboard fisheries, halibut PSC will
likely be a limiting factor and thorough halibut PSC accounting is
needed to manage the July sideboards. If halibut bycatch mortality is
higher than the average mortality encountered during the qualifying
years, participants would not be able to fully harvest their sideboard
limits of the target species. Participants will have a strong incentive
to under report halibut bycatch. Catch composition data collected by an
observer onboard a vessel is the best source of information for NMFS'
accounting of PSC. For this reason, the monitoring tools appropriate to
ensure observers are able to obtain quality samples of halibut PSC are
warranted.
NMFS reviewed the monitoring and enforcement standards in the
proposed rule and made several modifications to meet its needs for
accurate catch accounting for the sideboard limits applicable to opt-
out vessels. These standards recognize the intent of the Council to
subject opt-out vessels to sideboard limits, while still providing
adequate opportunity for those vessels to continue to be used in other
non-central GOA rockfish fisheries. Monitoring standards that NMFS is
applying differ from those applied to sideboard management for catcher/
processor vessels participating in cooperatives because each
cooperative will receive a sideboard limit that will require more
intensive management. NMFS has modified the monitoring and enforcement
regulations applicable to opt-out vessels. Opt-out vessels must
maintain 100 percent observer coverage, are prohibited from mixing
hauls inside the bin, must maintain bin monitoring, and may not allow
fish on deck outside the codend. Justification for these specific
monitoring provisions is provided below.
NMFS currently bases its calculation of halibut PSC for catcher/
processor vessels on basket samples of approximately 300 kilograms
(approximately 660 pounds) or less, depending on the time and space
available to the observer. Catch composition data are extrapolated (the
term commonly used is ``expanded'') to determine halibut catch for the
entire haul. The sampled hauls are extrapolated to determine the
quantity of halibut for the unsampled hauls on a trip. NMFS then
calculates the halibut catch rate from the sampled hauls for each
directed fishery. These rates are then applied to all unobserved
vessels to determine total halibut mortality. The degree to which a
given quantity of halibut is expanded varies enormously depending on
the fraction of observed hauls and the fraction of sampled catch in the
observed hauls. In order to reduce this extrapolation and thereby
increase the reliability of halibut PSC rates, 100 percent observer
coverage is required aboard the opt-out vessels.
Because the distribution of organisms by size and species often
differs among hauls, an aggregation of hauls (i.e., mixing two or more
hauls) could create errors in the calculation of total groundfish
catch. For example, if a vessel mixes hauls from two different areas or
depths, species catch composition and size could be significantly
different between these hauls, and a composite sample may not be
representative of each individual haul. Any errors would be exacerbated
as the composite sample is expanded to represent the total weight of
the mixed hauls.
Adequate accounting of the quota species under the Program will
rely heavily on observer species composition samples. NMFS must have
confidence that the data collected are representative of actual catch
and that potential sources of bias have been minimized. Because the
mixing of hauls could create unacceptable data errors in quota
fisheries as described above, NMFS must prohibit the mixing of hauls.
Additionally, observers face many sampling difficulties when hauls
are not kept separate inside fish bins. When multiple hauls are mixed,
it is sometimes not possible for the observer to determine which catch
is from a
[[Page 67230]]
particular haul and the observer may not collect a discreet sample from
each of the mixed hauls. As noted above, bias introduced into the
sample by mixing of hauls is exacerbated when the sample is expanded to
the weight of the entire hauls. Observers have several sampling tools
available to them to determine the total catch of multiple mixed hauls.
However, all of these tools result in reduced accuracy and precision
for total catch determinations, especially when each of the mixed hauls
has significantly different actual catch compositions. For these
reasons, opt-out vessels subject to CGOA sideboard limits during the
month of July are prohibited from mixing hauls.
The prohibition of mixing hauls could be accommodated under this
Program in a number of ways that would not result in loss of fish
quality or maneuverability concerns. For example, under the Program,
vessels could slow fishing effort and the frequency with which gear is
deployed to minimize the amount of time the codend must be short-wired.
Also, vessels have the ability to join cooperatives under this Program
and be given a direct allocation of a quota species, thereby removing
the race for fish.
Recent enforcement actions concerning intentional presorting of
catch to bias observed catch rates of halibut document the practice of
biasing observer samples to optimize groundfish catch relative to
constraining PSC or other groundfish catch. However, NMFS expects that
opportunities to bias observer samples will be reduced under the
Program in comparison to the status quo because of the enhanced
monitoring provisions established under this rule.
The observer must be able to view all the activities of crew inside
the bin that occur before the observer collects unsorted catch. This
requirement would help the observer ensure his or her sample consists
of unsorted catch, and that no presorting activities are occurring. The
vessel is required to choose, and have approved by NMFS, one of three
options to meet this requirement.
These options are:
Limit tank access option. No crew would be allowed inside
the bin unless the flow of fish has been stopped between the tank and
the location where the observer collects unsorted catch, all catch has
been cleared from all locations between the tank and the location where
the observer collects unsorted catch, and the observer has been given
notice that vessel crew must enter the tank. Also, it would be required
that the observer is given the opportunity to observe activities of the
people in the tank. Industry representatives are concerned that a total
ban on crew entering the fish bin would prevent the flow of fish in
rockfish fisheries or in cases where mud prevents the natural flow of
fish from the bin. Therefore, when informed by the observer that all
sampling activities are completed for any haul, crew would be allowed
to enter the bin without meeting the requirement of stopping the flow
of fish and clearing catch between the tank and location where the
observer collects unsorted catch. These requirements would allow
observers to monitor activities within the bin or tank while
maintaining sample collection protocols.
Line of sight option. From the locations where the
observer sorts and weighs samples and collects unsorted catch, an
observer must be able to see all areas of the bin where crew could be
located. This requirement may be accomplished by creating a viewing
port inside the bin, and must be approved by NMFS.
Video option. A vessel may provide and maintain cameras, a
monitor, and a digital video recording system for all areas of the bin
where crew could be located. The video data must be maintained and made
available to NMFS upon request for no less than a 120 day period. NMFS
would approve the installation of viewing ports inside the bins.
If the line of sight option or the video option fail to meet the
standard of allowing the observer to view all the activities of crew in
the bin (for example, if a camera system becomes inoperable during any
fishing trip), then the vessel must revert to the limit tank access
option.
Unsorted catch may not remain on deck outside of the codend without
an observer present, except for fish accidentally spilled from the
codend during hauling and dumping. NMFS believes that fish that remain
in a codend do not present a large opportunity for presorting
activities. However, unsorted catch on deck outside of a codend could
easily be presorted.
Flow scales and observer sample stations assist observers to obtain
accurate haul-by-haul accounting of total catch. However, NMFS will
make fishery closure decisions at the sector level (i.e., the joint
opt-out and limited access sideboard limit) rather than for a specific
rockfish cooperative. As a result, flow scales and observer sample
stations are not required for the July sideboards for vessels that
chose to opt-out of the Program. Given the other catch monitoring
provisions described above, NMFS will be able to rely on observer
estimates of total catch for catch accounting. Inaccuracies associated
with observer estimates as well as any inaccuracies that result from
the observer not having a sample station, would be expanded to the
fleet wide level and averaged over the fishery. Because observer sample
stations are no longer required, opt-out vessels are not required to
provide space for at least 10 observer baskets.
Comment 91: If a vessel has opted out it is only fishing on
sideboards in the month of July. From the perspective of vessels whose
sideboards could be encroached upon, 100 percent coverage for sideboard
species in July should be adequate.
Response: NMFS agrees. This comment has been addressed in the
response to Comment 90.
Comment 92: The modifications to the factory of catcher/processors
to accommodate this two year pilot Program regulations would not allow
a catcher/processor factory to work efficiently in other non-rockfish
fisheries. The factory configured for the Program will not work
efficiently for other fisheries.
Response: NMFS' catch accounting needs remain the same whether for
a two year Program or for one that would be in place longer. Most of
the modifications to a catcher/processor factory required under the
Program are also required under Amendment 79 to the FMP for Groundfish
of the BSAI (71 FR 17362, April 6, 2006). Amendment 79 establishes a
groundfish retention standard (GRS) which requires a minimum percentage
of groundfish catch to be retained to reduce discarding. To be
effective, Amendment 79 required changes to monitoring and enforcement
provisions to accurately track discards. The final rule implementing
Amendment 79 will be effective on January 20, 2008. Amendment 80 to the
FMP for Groundfish of the BSAI, which was recommended by the Council in
June 2006 and is under development and review by NMFS, also would
implement similar monitoring and enforcement requirements. Amendment
80, if approved and implemented, would establish a quota-based
management program for several species in the BSAI and would require
measures adequate to accurately track species specific catch and
discards.
The majority of the vessels eligible for the Program are subject to
the requirements of Amendment 79 when fishing in the BSAI, and all of
the vessels eligible for the Program would be subject to similar
monitoring and
[[Page 67231]]
enforcement provisions when fishing under Amendment 80, if approved.
Therefore, factories configured for the Program will also meet factory
modification requirements for the majority of the other fisheries in
which the same vessels may participate beginning in 2008.
If vessel owners wished to forego the factory modifications
required by this Program, several viable options exist. Vessel owners
could join a cooperative and another vessel that meets the monitoring
requirements could harvest that cooperative's CQ. A vessel owner could
also join a cooperative which would then lease their CQ to another
cooperative. Additionally, vessel owners could choose to opt-out of the
Program and be subject to reduced monitoring requirements, as detailed
in the response to Comment 90.
The EA/RIR notes that ``given the complexity of the [Program] and
the limited time period for its effectiveness, NOAA Fisheries intends
to manage the fishery to reduce costs and the complexity of quota
management.'' NMFS has attempted to develop a monitoring and
enforcement program that is cost-effective, manageable, and effective.
The EA/RIR also notes that:
Share-based management programs can increase the incentive of
participants to misreport and high grade catch, while at the same
time increasing the burden on managers to provide highly defensible
estimates of catch, especially when those estimates directly impact
quota holders. NOAA Fisheries has dealt with these issues by clearly
articulating goals for the management of share-based fisheries and
imposing new and more stringent monitoring and observer requirements
as these programs have been developed. All of these programs have
been unique in terms of the fleet and fisheries rationalized, and
interventions developed for the programs have varied as well. The
Central Gulf of Alaska rockfish pilot program is no different in
this regard and development of a suitable monitoring program will
involve the development of new tools to ensure defensible catch data
is collected to minimize unreported discard of allocated species
catch.
The monitoring and enforcement provisions in this rule for vessels
in rockfish cooperatives and the limited access fishery were designed
to meet the multiple objectives of NMFS' catch accounting and reporting
needs. The rule has not been modified.
Comment 93: The provision in Sec. 679.84(c)(1) would prohibit
vessels from bringing onboard any additional catch of fish until the
prior net's fish had cleared the fish bin and passed over the scale. If
this rule is implemented as written we will likely be forced to fish
while processing and retain the full net off bottom and short-wired.
Fishing in this manner drastically reduces the quality of fish in the
net being towed. Rockfish are sensitive to losing color (i.e., value)
and flesh quality from being held for long periods of time in short-
wired nets, we feel it is a poor fishing practice. Second it could
create a safety problem related to maneuvering in close proximity to
other vessels.
Response: NMFS has justified the prohibition for mixing hauls in
the response to Comment 90. Specifically, if a vessel mixes hauls from
two different areas or depths, catch composition and size could vary
among hauls, and a composite sample may not be representative of each
individual haul. Any errors would be exacerbated as the composite
sample is expanded to the total weight of the mixed hauls.
Adequate accounting of the species under the Program will rely
heavily on observer species composition samples. NMFS must have
confidence that the data collected are representative of actual catch
and that potential sources of bias have been minimized to the greatest
extent practicable. Because the mixing of hauls could create
unacceptable data errors as described above, NMFS must prohibit the
mixing of hauls.
The prohibition of mixing of hauls under the Program could be
accommodated in a number of ways that would not result in loss of fish
quality or maneuverability concerns as detailed in the response to
Comment 90.
Comment 94: Catcher/processors should be allowed to install two
flow scales off existing conveyors, just forward of each fish bin. This
would allow the flow of fish to move over the scales and onto the
sorters on both sides of the bins. This would limit potential
constraints on production that one operational line may cause. The
observer could monitor the opposite side from where he/she was standing
through the installation of video monitoring equipment, giving the
observer 100 percent visual coverage of all fish prior to its entering
onto the scales. Observer random samples could be taken from either
conveyor.
Response: NMFS agrees that two flow scales are acceptable under
certain circumstances. Regulations under Sec. 679.84(c)(4) only
require that a vessel not have more than one operational line for the
passage of all unsorted catch between the scale used to weigh total
catch and the single location where the observer collects his samples.
The vessel may divide those lines both upstream and downstream of the
flow scale in order to increase processing capacity or flexibility.
This requirement will only result in a production-reducing constraint
in the event that the speed with which fish could pass over the scale
was a limiting factor.
NMFS notes that a reduction in throughput resulting from the use of
a single scale is highly unlikely in these fisheries and the vessel may
have multiple lines both upstream and downstream of the flow scale in
order to increase processing capacity or flexibility. This requirement
will only result in a production-reducing constraint in the event that
the speed with which fish could pass over the scale was a limiting
factor. Given that NMFS-approved flow scales are capable of weighing
catch at rates of 60-80 metric tons per hour, NMFS does not believe
that such a bottleneck would be created. NMFS also notes that all the
catcher/processors and motherships participating in the AFA pollock
fishery are able to effectively pass fish across a single point in
spite of the fact that factory throughput in these vessels is often
considerably greater than the throughput of any of the catcher/
processors regulated under the Program.
Regulations at Sec. 679.84(c)(4) do not limit the ability of a
vessel to use multiple scales simultaneously, provided that each scale
is used to weigh separate hauls and the live bin configuration keeps
each haul flowing over the scale separately. If two hauls were kept
separate and two scales were in use at the same time, by regulation, a
separate observer and sample station that met the requirements
described at Sec. 679.28(d) would be required. The commenter's
suggestion to allow a single observer to monitor both lines in
conjunction with video monitoring is not feasible because hauls are
stratified to an unknown extent inside the live bin, the samples taken
from different flow scales also would not be representative of the
catch for the entire haul, and the samples taken from the different
sides would thus not be representative of the total catch.
Comment 95: Because there is no regulatory justification for
applying the monitoring and enforcement requirements to the opt-out
fishery, the agency should reconsider its position on this matter and
restore the Council's original recommendation.
Response: NMFS disagrees that there is no regulatory justification
for applying monitoring and enforcement standards to catcher/processor
vessels that participate in the opt-out fishery. See the response to
Comment 90, which addresses modifications to the requirements
applicable to catcher/processor vessels in the opt-out fishery, and
responses to Comment 119 and the comment on the IRFA under the
[[Page 67232]]
classifications section, which address the regulatory justification for
these monitoring and enforcement provisions.
Comment 96: In Sec. 679.84, the change in observer coverage for
catcher vessels subject to an aggregate sideboard is inconsistent with
monitoring provisions for the AFA catcher vessel sideboards. The AFA
trawl fleet sideboard provisions are managed at the aggregate level.
This fleet has halibut mortality cap sideboards by season and by
fishery complex in the GOA and no additional observer coverage was
required for this fleet to manage these halibut caps. The rockfish
catcher vessel fleet should not be held to a higher standard than the
AFA fleet. To help the agency, the industry may be willing to provide
timely reporting for the flatfish catch and observer rates through a
self reporting system on a trip-by-trip basis to the inter-cooperative
manager, if the observer requirements stay at 30 percent. This system
would be much faster and time sensitive then present agency tools and
this self-reporting system would foster a joint industry and NMFS
management approach. Consider reducing monitoring burden to vessels
subject to the aggregate catcher vessel sideboards.
Response: NMFS disagrees. Observer coverage for the AFA fleet was
developed for a different fishery, and a different group of vessels
with different expected behaviors than catcher vessels participating in
the Central GOA flatfish fishery in July. Specifically, NMFS
anticipates that the vessels that are subject to sideboards in the
Program will fully harvest their sideboard limits. This has not been
the case historically for the AFA sideboard fisheries. In particular,
several of the vessels subject to the Program sideboard limits are
expected to fish in the shallow-water complex and fully utilize the
shallow-water halibut PSC limit assigned to the catcher vessel sector.
Because the flatfish fisheries are constrained by the halibut PSC
sideboard limit, halibut are required to be discarded, and halibut PSC
estimates must be derived from observer coverage. NMFS must obtain
timely observer data to ensure that the halibut PSC sideboard limits
are not exceeded.
The purpose of sideboard management is to protect those not
receiving the benefits of the Program and other members of the Program
from being adversely affected. Vessel monitoring system (VMS)
information gathered from catcher vessels in the Central GOA rockfish
fisheries suggests that fishing behaviors differ when an observer is
not onboard a vessel. One hundred percent observer coverage is needed
to ensure all different types of fishing activities and associated
catch are observed.
Additionally, vessels may engage in activities that do not
represent their fishing activities when an observer is present. As an
example, vessels may set and immediately retrieve a net before midnight
and then again after midnight to obtain observer coverage for two days.
Further, because it is likely that vessels will cooperate, it is
reasonable to assume that vessels may also cooperate when fishing under
a sideboard limit. This may induce vessels to select specific vessels
to carry observers and fish in areas with halibut PSC rates that are
lower than those that would be encountered in other areas, which would
effectively lower halibut PSC rates below those that would be observed
if more complete observer coverage were available. This technique would
effectively prolong fishing activities because the halibut PSC rate is
low and the sideboard limit would be reached later.
Further, vessels with limited observer coverage requirements could
adjust the timing of their observer to maintain favorable, but
inaccurate halibut PSC rates. For example, if limited observer coverage
and data are available from the Central GOA flatfish fisheries in the
beginning of July, information on halibut PSC use rates must be derived
from other sources. The proxies for the halibut PSC use rate in the
flatfish fishery may differ significantly from the actual rates that
would be observed. This is particularly true in cases where NMFS is
using data from other target fisheries, or from other regions of the
GOA. Since the limiting factor for the July sideboard fisheries is
available halibut PSC, timely and accurate PSC information at the
vessel-specific level is needed to manage the fishery.
Observer data collected from a subset of vessels under these
conditions are not reflective of conditions that are likely on
unobserved vessels and have limited value to the management of the
fishery under the Program. Without a mechanism in place to evenly
distribute observer coverage throughout a season among vessels and
areas, and to ensure observer samples collectively represent true
fishing behaviors for the fleet, no other option currently exists than
100 percent observer coverage. The rule has not been modified.
Comment 97: Paragraph (c)(9)(i)(E) in Sec. 679.84 is inconsistent
with paragraphs (c)(9)(i)(A) through (D). This paragraph should be
revised to require that a catcher/processor meet the requirements of
paragraphs (c)(9)(i)(A), (B), (C), and (D) or (E).
Response: NMFS agrees that, in the proposed rule, Sec.
679.84(c)(9)(i)(E) is inconsistent with Sec. 679.84(c)(9)(i)(D). NMFS
has modified the catch monitoring provisions applicable to monitoring
fish bins onboard catcher/processor vessels so that an observer should
either observe operations in the bin as required by Sec.
679.84(c)(9)(i)(D), or notify the vessel operator that all sampling has
been completed and bin monitoring is no longer required, as required by
Sec. 679.84(c)(9)(i)(E). NMFS has also modified Sec. 679.84(c)(9)(i)
to note that the vessel operator must comply with the conditions of
Sec. 679.84(c)(9)(i)(A) through (D), or Sec. 679.84(c)(9)(i)(A)
through (C) and (E).
Comment 98: Paragraph (c) of Sec. 679.84 states that monitoring
and enforcement requirements apply at all times that a catcher/
processor has fish on board that were harvested under a CQ permit or in
the limited access fishery or while subject to sideboards (as in the
opt-out fishery in July). This requirement would mandate either that
the vessel offload after completing the rockfish fishery, or carry the
additional monitoring and enforcement coverage into its next fishery.
Either requirement is excessive and unnecessary. Offloads are extremely
expensive in terms of fuel to and from the offload point, lost fishing
time, etc. Once the vessel has completed the rockfish fishery it should
no longer be subject to those monitoring and enforcement requirements.
The coverage during the fishery is more than adequate to monitor how
much fish was caught during that time.
Response: NMFS disagrees. Full offload will not be required after
completing fishing in a Program fishery and, as the commenter notes, a
vessel owner may choose between the cost of continued compliance with
the monitoring and enforcement requirements or the cost of a premature
offload. NMFS also notes that many of the monitoring and enforcement
costs (continued weighing of all catch, continued availability of an
observer sampling station) will not increase significantly if extended
for the remainder of a trip. Continued high level observer coverage for
non-rockfish portions of the trip may impose significant costs on the
vessel. However, given that the vessel will be required to return to
port in order to drop off extra observers in any event, the additional
fuel costs associated with an early offload should be minimal. Further,
the potential loss of fishing time can be mitigated by the increased
flexibility in scheduling fishing activities afforded by the Program.
[[Page 67233]]
The Program will implement harvest restrictions for multiple
species while fishing in the GOA. Vessels subject to the Program also
could simultaneously harvest fish in the GOA under several other
different management programs. Without adequate monitoring and
enforcement provisions it would be difficult to account for fish under
each possible scenario. For example, a vessel may choose to target fish
subject to open access management, and then target fish subject to the
Program during the same trip. Each of these species groups could be
subject to differing harvest limitations, including MRAs. This
necessitates separate accounting of catch for each specific program and
purpose. NMFS must be able to ensure compliance with regulations
governing each fishery and there must be an authoritative record of the
amount of fish harvested under the Program.
The monitoring objectives and management structure are different
between quota fisheries and non-quota fisheries, and switching
monitoring programs mid-trip would create significant enforcement
challenges. For example, if primary rockfish species or sablefish
harvested under Program and non-Program fisheries were combined in an
offload without the continued monitoring provisions, it would be
impossible to verify non-Program catch from Program catch.
Consequently, monitoring standards would need to remain in place for a
vessel subject to the Program until the vessel offloaded all the
Program catch.
Comment 99: Paragraphs (c)(9)(iii)(A) through (D) of Sec. 679.84
requires storage of all video data from an entire trip for no less than
120 days after the start of the trip. If it is sufficient to have an
observer watch activities in the tank (under the other two options) and
the observer has a video monitor at their work station (section G), why
is it necessary to record and store the video? There are concerns about
the confidentiality of video data, particularly since this would be a
``voluntary'' collection. If an observer's statement of what they
observed is sufficient in the other options, it should be sufficient
with the video option. There should be no requirement to store or
retain the video data.
Response: NMFS disagrees. Observers will be required to complete
other duties and will not be able to monitor the video output at all
times. If the video is recorded, they will be able to review the video
at a later time to ensure no presorting occurred during their sampling.
Also, observers may not be aware of all potential violations that may
have occurred on the vessel and may only become aware of them during
the debriefing process. The video data will be used as a tool to verify
the information the observer provides during their debriefing. One of
the goals of this Program is to determine the feasibility of a large
scale GOA rationalization project. NMFS needs to evaluate how the video
system functions aboard each of the vessels.
See response to Comment 100 for confidentiality of video data
concerns. This collection would not fit under ``voluntary'' collection.
If NMFS requests the video data it must be submitted.
Comment 100: The costs of installation and maintenance of a video
monitoring system for a two year program, based on unfounded
assumptions, are excessive. If we install a video monitoring effort as
prescribed by the regulations, how will NMFS exercise custody and
control of the video. Will the video belong to our company even after
we provide it to NMFS? Can the video be used in a court of law against
our company?
Response: NMFS believes a substantial enforcement need exists to
monitor crew activities within fish bins. A video monitoring system is
one of three options designed to meet this need (see response to
Comment 90). Recent enforcement actions concerning intentional
presorting of catch to bias observed catch rates of halibut highlights
behavior that biases observer samples to optimize groundfish catch
relative to constraining PSC or other groundfish catch. Given the
nature of this quota fishery, additional incentives may exist to sort
limiting PSC or target species, particularly halibut, prior to an
observer collecting a species composition sample. This potential was
described in the preamble to the proposed rule (71 FR 33068). NMFS
expects that opportunities to bias observer samples will be reduced
under the Program in comparison to the status quo because of the
enhanced monitoring provisions established under this rule. The EA/RIR/
IRFA prepared for this action described the anticipated costs of a
video monitoring system, if the vessel owner chooses the video option
to meet the bin monitoring requirements. NMFS considers these costs
reasonable compared with the expected reductions in bias introduced
into observers' samples.
Video data collected as a requirement of regulations belong to the
vessel owner and, according to regulations at Sec.
679.84(c)(9)(iii)(D), must be retained onboard the vessel for 120 days.
These video data must be submitted to NMFS when requested. When NMFS
takes possession of these data, NMFS will maintain them for analytical
or enforcement purposes within the confidentiality processes required
by law.
NMFS agrees that there are confidentiality issues associated with
the video surveillance requirements. Were a surveillance video
requested by the public, NMFS would apply certain laws controlling the
release of information it possesses. These laws include the Freedom of
Information Act, the Trade Secrets Act, and the Magnuson-Stevens Act.
According to Magnuson-Stevens Act Section 402(b), information that is
submitted to NMFS pursuant to a requirement under the Act is considered
confidential. Additionally, the Freedom of Information Act and Trade
Secrets Act may prevent release of certain commercial information,
which may include video data. In addition to the statutory protections,
NMFS complies with regulatory guidelines at 50 CFR 600.415 et seq.,
which control collection, handling, and disclosure of confidential
fisheries information. Although confidential fisheries data are not
publicly disclosed, legal guidelines do permit data release in
aggregate form that does not reveal the identity of the person
submitting the information or result in competitive harm. The commenter
should consult their attorney for cases involving video data requested
as part of a lawsuit against the company.
Comment 101: Paragraph (c)(9)(iv) of Sec. 679.84 gives an observer
the authority to insist on having no person in the tank if the observer
``determines that a monitoring option selected by a vessel. . .fails to
provide adequate monitoring of all areas of the bin where crew could be
located.'' An observer could abuse this discretion by insisting that
every inch of the tank be visible from the observer station, which is
clearly not necessary or possible. The observer should be able to
challenge the viability of the monitoring plan and document their
concerns without forcing the vessel to operate without a person in the
tank.
Response: NMFS will certify a bin monitoring method that meets all
regulatory requirements during the annual observer sample station
inspection required under Sec. 679.28(d). Vessels that choose to opt-
out of the Program are not required to have an observer sampling
station, but must contact NMFS to arrange to certify their bin
monitoring method as required under Sec. 679.84(c)(4)(v).
Documentation relating to this certification is required to remain
aboard the vessel while the vessel is engaged in fishing activities.
[[Page 67234]]
NMFS will use photographs and diagrams to provide the views of the bin
for the line of sight option or the video option. Any portions of the
bin that do not need to be monitored will be noted on the
certification. If at any time the observer has doubts about the
applicability of bin monitoring requirements, they must consult the
sample station or bin monitoring certification and verify that the bin
monitoring differs from the certification. Any decision made by the
observer will be made in consultation with their NMFS inseason advisor.
The rule has not been modified.
Comment 102: The provision in Sec. 679.84(c)(2) that requires a
large new and costly observer sampling station to be installed as a
part of a two year rockfish demonstration program is not warranted or
practical. The costs associated with the installation and major
modifications to the existing vessel's factory are not justified nor
could cost be amortized over a two year program.
Response: NMFS disagrees. Although this Program is intended to be a
pilot project for the development of future GOA rationalization
initiatives, the interim status of the Program does not obviate the
need for adequate monitoring and enforcement. Because this Program is
intended to test numerous aspects of multispecies quota management in
the GOA, adequate monitoring and enforcement standards are essential
for a comprehensive review. Further, vessels subject to this Program
are subject to the same sample station requirements as in Amendments
79. This was done in part to reduce costs incurred by catcher/
processors that also participate in the BSAI. For additional
discussion, see the response to Comment 90.
Observer sample stations facilitate the collection of quality
unbiased species composition samples. Each catcher/processor vessel
choosing to fish for a rockfish cooperative or in the limited access
fishery will be required to provide a location for observers to collect
samples. Under the Program, observer samples will be used for catch
accounting of quota species.
The proposed rule and the final EA/RIR, discuss the need for haul-
by-haul catch monitoring standards to monitor and support this Program.
NMFS' ability to adequately account for quota catch would be severely
compromised or impossible under current regulations because these
regulations do not provide the information needed to determine the
haul-by-haul accounting of quota catch. NMFS has determined that the
observer sampling station requirements are necessary to adequately
account for quota catch under this Program and are necessary and
justified.
Comment 103: The proposed rule appears to limit a vessel to a
single operational line and scale. Until publication of the proposed
rule, we had the understanding that vessel owners could install two
operational lines with flow scales so as not to impede the flow of fish
out of the fish bin or through the factory. The rule limiting a vessel
to one operational line results in a significant reduction in
productivity and financial impact that was never analyzed during the
Council process.
Response: NMFS has addressed operational aspects of this comment in
the response to Comment 94. As noted there, NMFS does not anticipate
that the number of flow scales will limit production capacity.
The EA/RIR/IRFA prepared for this action described the costs
associated with the required monitoring provisions. These costs
included the costs associated with flow scales and sampling station
installations for one scale. While the EA/RIR/IRFA did not describe the
costs associated with two observers available to sample at all times
(necessitating a total of four observers per vessel), two flow scales,
and two sample stations, these costs could be doubled to provide an
estimate of total costs.
Comment 104: The effect of the regulation at Sec. 679.84(c)(5)
will be to significantly slow down fishing operations, because the
vessel will no longer be able to use the deck area to hold fish while
it resets the net. This standard industry operating practice of holding
fish on deck has been allowed for the past 15 years and if prohibited
will again increase the unit cost of production.
Response: A vessel operator may still use deck area for storage but
all fish must be contained inside the codend. If vessel operators leave
fish on deck outside a codend, incentives exist to sort fish without an
observer present. Recent enforcement actions concerning intentional
presorting of catch to bias observed catch rates of Pacific halibut
highlight this practice of biasing observer samples to optimize
groundfish catch by minimizing the potential constraints of properly
observed halibut PSC or other groundfish catch. Fish on deck that are
stored inside a codend are less likely to provide presorting
opportunities.
Vessels have the ability to join cooperatives under this Program
and receive a direct allocation of a quota species, thereby removing
the race for fish. Vessels will have the option to slow fishing and
therefore reduce the need to store fish on deck outside the codend. The
rule has not been modified.
Comment 105: In Sec. 679.84(c)(8), turning control of the belt
operations over to the observer is questionable. This not only has the
effect of slowing down the production, but now puts the observer in
direct control of factory operations. Does the observer assume any
liability for the consequences of the stopping of the belt operation if
it causes an injury?
Response: Regulations at Sec. 679.84(c)(8) do not require
observers to have physical control of belt operations. Rather,
regulations require vessel operators to ensure crew members provide
reasonable assistance to observers during the course of their sampling
activities. For observers to collect random and discreet samples, they
will need to request the crew to stop and start belts in the factory.
Additionally, this will allow observers to help ensure no one is in the
bin while they collect their sample. An observers' ability to request
that belts be cleared or slowed down will not change current
requirements. Furthermore, observers are advised during training not to
perform duties of the crew aboard the vessels. Because observers will
not have direct, physical control of the belts and will not be making
the decision to stop or start a belt if a safety situation exists, the
observer will not assume the liability. The rule has not been modified.
Comment 106: As an active participant in the development of the two
year demonstration Program, our company never envisioned the far
reaching, invasive, and costly regulation requirements being proposed
in these regulations. Industry envisioned the two year experimental
Program to be a program that would allow companies to catch and process
fish without imposing significant costly catch or processing
restrictions. Abandon these regulations and conduct a series of
meetings with the industry involved to develop more reasonable and
workable monitoring and enforcement provisions. The presumptions made
by the agency of the accuracy and level of monitoring required to
implement this Program are not in line with industry expectations. The
proposed rule far exceeds what a reasonable person would look for to
ensure the integrity of the Program. The participants within the
Program should judge what accuracy is required for the accounting of
catch within the cooperative.
[[Page 67235]]
Response: NMFS disagrees. Although the costs and extent of the
monitoring and enforcement provisions required by this rule may be
greater than desired by the commenter, NMFS and the Council provided
extensive public opportunity for discussion and analysis of these
provisions throughout the development of the Program. Additionally, in
response to public comments on the proposed rule, NMFS has modified the
final rule to reduce the burden of the monitoring and enforcement
standards on the fleet while maintaining NMFS' ability to meet the
monitoring and enforcement objectives of the Program (see the responses
to Comments 50 and 90).
In developing the Program, NMFS and the Council analyzed and
discussed the management, monitoring, and enforcement of the Program.
NMFS and the Council clearly articulated the need for high quality
monitoring and enforcement for this quota-based Program in the EA/RIR/
IRFA prepared for the proposed rule and the final EA/RIR. The need for
and nature of these monitoring and enforcement provisions are contained
throughout these documents, and were addressed at Council meetings in
2004 and 2005 during which the Program was developed (see the Council
website for additional information: http://www.fakr.noaa.gov/npfmc).
A series of public meetings were held with industry to develop
workable monitoring and enforcement provisions. In addition to work
done in conjunction with the Council process, NMFS held two public
meetings on June 27, 2005, and December 16, 2005, (see 70 FR 72791 and
70 FR 36555), to gather industry input for the development of the
monitoring and enforcement requirements for the Program. The two public
meetings were held in Seattle, Washington, and addressed monitoring and
enforcement requirements that would apply to the fishery participants,
including the catcher/processor sector, under Amendment 80 and the
Program. These meetings were well attended by numerous representatives
from the affected public. Comments received at these meetings were
considered and incorporated into the monitoring and enforcement
provisions contained in this rule. After the publication of the
proposed rule on June 7, 2006, NMFS held two public meetings to further
explain the nature of the Program, and monitoring and enforcement
requirements (see 71 FR 35859).
Comment 107: Reconsider approval and implementation of this rule or
delay implementing the regulations until at least 2008, when we will
know if Amendment 80 is approved and implemented. These regulations
will result in exorbitant costs and duplicate regulations that have
been promulgated under Amendment 79 and will again be promulgated under
Amendment 80 of the FMP.
Response: NMFS does not intend to delay the effective date of the
Program. As the Commenter indicates, regulations already published
under Amendment 79 to the BSAI groundfish FMP (April 6, 2006, 71 FR
17362) contain the same monitoring requirements as those implementing
the Program, with limited modifications (e.g., bin monitoring
requirements under Sec. 679.84(c)(9)). Additionally, the draft EA/RIR/
IRFA reviewed by the Council during the development of Amendment 80
analyzes many of the requirements of Amendment 79 and this Program.
These monitoring provisions are necessary for monitoring, enforcement,
and biological and management data collections. Where practicable, NMFS
has intentionally promulgated or intends to promulgate regulations that
are similar or the same among multiple management programs. NMFS'
intent in creating similar monitoring provisions is to allow vessels
that participate in multiple management programs to comply with each
program's monitoring and enforcement provisions simultaneously and as
efficiently as possible. Participants may meet many of the monitoring
requirements of Amendment 79 and Amendment 80, if approved and
implemented, by making the catcher/processor factory modifications
required for this Program, and effectively offset the costs associated
with vessel modifications and down time (see response to Comment 93).
Under the Program, options exist for the vessels that do not wish
to make these modifications in the first year of the Program. A vessel
operator could choose to opt-out of the fishery and have the reduced
monitoring requirements and observer coverage apply; join a cooperative
and arrange to have other vessels that meet the monitoring requirements
fish the CQ for the cooperative; or create a cooperative and lease the
resulting CQ to another cooperative. All of these options forego the
need to modify the vessel, provided that vessel is not used to fish in
the GOA during July. The rule has not been modified.
Comment 108: If vessels are fishing under a rockfish cooperative CQ
permit in May or June, they can target rockfish using the CQ permit, or
vessels assigned to a rockfish cooperative could target flatfish
fisheries when not fishing under the CQ permit. Prior to July, vessels
would not be subject to sideboard limits. If the vessels are fishing in
July, they can target on rockfish a using their CQ permit, or target
other fisheries, but would be subject to July sideboard limits.
Response: NMFS agrees. Vessels that are participating in a rockfish
cooperative can begin fishing under a CQ permit on May 1. Harvests made
by vessels in a rockfish cooperative that are not fishing under a CQ
permit will be subject to current regulations regarding target species,
halibut PSC accounting, and MRAs in May and June. From July 1 through
July 31, vessels in a rockfish cooperative may fish under the CQ
permit, and fish harvested under that CQ permit will not be debited
from the sideboard limit that is applicable to that vessel. However, if
that vessel is not fishing under a CQ permit, catch by that vessel will
be debited from the sideboard limit that is applicable to that vessel.
After July 31, sideboard limits are not applicable to that vessel.
Comment 109: As participants in the CGOA rockfish fishery, we do
not want to see our allocation eroded by our own participation in
second season GOA fisheries or our sideboard fisheries prosecuted prior
to prosecution of our allocation.
Response: Sideboard limits are applicable only during July. If an
eligible rockfish harvester chooses to operate in non-Program fisheries
prior to July, existing regulations would apply.
Comment 110: According to the draft EA/RIR/IRFA, the 1999 rockfish
opening date was July 4. Table 28 in part 679 indicates that the
opening date for all three primary rockfish fisheries was July 1. The
correct opening date is July 4. The regulations should be changed.
Response: NMFS agrees and has corrected Table 28 to part 679. Table
1 of the final EA/RIR prepared for this action as well as records
maintained by NMFS note that the opening date for all three primary
rockfish fisheries in 1999 was July 4, not July 1.
Comment 111: According to the EA/RIR/IRFA, Pacific cod will be
managed as a hard cap for the catcher vessel sector and managed for the
catcher/processor sector using an MRA. The following text in the
preamble to the proposed rule is inconsistent with these management
measures:``The Council recommended managing Pacific cod in the catcher
vessel sector using an MRA that would reflect historic harvest rates
but provide more flexibility for the fleet than a fixed hard cap''
allocation of CQ might provide.''
[[Page 67236]]
Response: NMFS agrees that the preamble text is inconsistent with
the regulatory text in Sec. 679.20(e) and in Table 30 to part 679. The
regulatory text is correct and the error in the preamble is
typographic.
Comment 112: Table 30 to part 679 lists the wrong MRA percentage
for Skates and Other Species at 2.0 percent. These values should be 20
percent, which is consistent with what is presently in the regulations
in Table 10 to part 679. The Council recommended changing the MRA
percentage for only certain species. The Council did not recommend
changing the MRA percentages for Skates and Other Species.
Response: NMFS agrees and has changed the MRA for ``Skates'' and
``Other Species'' to 20.0 percent. The text in Table 30 to part 679 of
the proposed rule listing an MRA of 2.0 percent was a typographic
error. This change is consistent with the MRAs established for other
non-allocated secondary species.
Comment 113: The Council motion allocates a percentage of the
overall halibut mortality cap to Program participants, either as
cooperative allocations or as allocations to the limited access
fishery. During the development of the sideboard provisions, industry
participants have always assumed that the halibut mortality from the
third season allocation was being modified by Council action for the
Program. This means that the halibut apportionment for trawl gear for
the third season (July 1) should be the only halibut apportionment that
should be modified for the year, rather than modifying the annual GOA
deep complex halibut mortality limit of 2000 mt.
Currently, the third season trawl halibut mortality apportionment
is 400 mt for deep-water complex species, and 200 mt for shallow-water
complex species. Allocation to the Program for halibut PSC CQ should be
taken off this 400 mt apportionment instead of off of the entire 2000
mt limit. This will make the third season halibut sideboard cap
functional for the industry where the catcher vessel Program
participants are sideboarded at 101 mt in the deep-water complex, and
at 137 mt in the shallow-water complex. If the halibut apportionments
are not taken from the third season, then the July sideboard caps would
not be indexed correctly. It is inappropriate to take the Program's
halibut PSC allotment from the total yearly halibut cap, because there
are many other fisheries that depend on that halibut PSC allotment.
Additionally, the shallow complex apportionment for the third season
should remain unchanged at 200 mt for the sideboard cap to have any
meaning.
Response: NMFS agrees that the use of halibut mortality in the
Program should be debited from the trawl apportionments of halibut PSC
currently made for fishing in the third season (July 1 through
September 30). The mechanism that the Commenter describes for
accounting for halibut PSC use in the Program is consistent with NMFS'
intent to manage halibut PSC without modifying apportionment of halibut
PSC available to the non-Program participants in other seasonal
apportionments. No modification to the rule has been made.
Comment 114: Paragraph (h)(1) of Sec. 679.81 states that rockfish
cooperatives may harvest non-allocated species up to the MRA limits
established in Table 30 to part 679. The regulation should specify that
other non-allocated species may be harvested up to the MRA in Table 10
of GOA specifications. The same clarification should be made in Sec.
679.81(h)(2) and (3).
Response: Table 30 to part 679 does note the MRA percentages that
are applicable to non-allocated species and describes the amount that
vessels participating in fishing under a CQ permit may harvest. Vessels
not fishing under a CQ permit, but assigned to a rockfish cooperative,
are subject to the MRA percentages established in Table 10 to part 679.
Table 30 to part 679 has been modified to clarify this intent.
Comment 115: Table 30 to part 679 should be modified because the
MRA for thornyhead rockfish for the limited access fishery seems to be
missing.
Response: NMFS agrees. NMFS has modified Table 30 to part 679 to
include a row for the MRA for thornyhead rockfish that would be 4.0
percent of the basis species for vessels fishing in the limited access
fishery. This amount is consistent with the MRA percentages established
for other rockfish species (e.g., northern rockfish) that may be
incidentally harvested in the limited access fishery, except shortraker
and rougheye rockfish for which the Council recommended a lower MRA
percentage. This MRA percentage is also consistent with the intent to
lower MRA percentages for secondary species. As noted on page 22048 of
the preamble to the proposed rule (71 FR 33040), ``the secondary
species MRA in the limited access fishery would be reduced from current
MRA levels. This approach would reduce the incentive for eligible
harvesters to participate in a limited access fishery and ``top off,''
or selectively target high value, secondary species.''
Comment 116: Modify Sec. 679.84(f)(3) and Table 10 to part 679 to
clarify that rockfish cooperative MRAs apply to vessels fishing CQ
only, and that the MRAs for northern rockfish, pelagic shelf rockfish,
and Pacific ocean perch in the limited access fishery apply when
directed fishing for those species is closed. Add an MRA amount for
thornyhead rockfish in the limited access fishery for catcher vessels
and catcher/processors.
Response: NMFS agrees. However, the comments are applicable to
Table 30 to part 679, not to Sec. 679.84(f)(3). Specifically, NMFS has
modified Table 30 to note that the MRAs that are applicable to
``Rockfish Cooperatives'' apply only to vessels that are assigned to
fish the CQ for a rockfish cooperative, but are not applicable to
vessels that are assigned to a rockfish cooperative but fishing in
other fisheries. Those vessels would continue to be subject to MRA
restrictions applicable to the specific non-Program fishery in which
they are engaged under Table 10. This provides additional clarification
lacking in the original text of the table.
MRA percentages are applicable only when a directed fishery for a
species is closed and that species is an incidental catch species as
described under Sec. 679.20(e)(1). No change is necessary to indicate
when the MRA percentages apply to northern rockfish, pelagic shelf
rockfish, and Pacific ocean perch in the limited access fishery.
An MRA percentage for thornyhead rockfish has been applied under
the response to Comment 115.
Comment 117: Ban all trawling completely. It decimates the bottom
for forty years before regrowth can take place. It is extremely anti-
environmental. Cut all quotas by 50 percent this year. It is clear that
the marine life in this area is starving when so many metric tons are
taken by these greedy commercial fish industry profiteers, who are
willing to decimate every single species. It is time to put a hold on
the enormity of this depredation by these profiteers.
Response: This action is not intended to ban specific gear types.
Amendment 68 is intended to provide an opportunity to implement the
Program as directed by Congress and developed in coordination with the
Council. The Final EA/RIR developed for Amendment 68 did review the
impacts of this action and concluded that it would not result in a
significant impact on the human environment. Each year, NMFS and the
Council review the status of stocks through a public scientific
[[Page 67237]]
review process to ensure conservation of the resource before allocating
TAC or quota. Banning trawling or reducing harvests are not the goals
of this action and would need to be addressed in a separate regulatory
action developed through the Council process.
Comment 118: NMFS' apparent purpose for sweeping all vessels with
any legal rockfish harvests during the statutory qualification period
into the Program is to avoid a situation in which owners of multiple
vessels consolidate the history of one of more vessels under a
cooperative, and use the other or others to increase capacity in non-
rockfish fisheries. This is not a concern with vessels that have not
participated in the rockfish fisheries at more than a minor level
because they have nothing of value to transfer. Develop a reasonable
threshold that excludes such vessels from the Program to remove the
complexities attendant to the opt-out fishery.
Response: The Council and NMFS jointly developed the Program. The
Council chose to use criteria that included vessels with limited
historical harvests. This choice was made in consideration of the
guidance provided in Section 802, the Magnuson-Stevens Act, and through
the Council's public process. NMFS does not disagree that alternative
sideboard provisions could have been developed for the vessels that
choose to participate in the opt-out fishery. However, the decision to
require those vessels to comply with sideboard limits was deliberated
through the Council's public process, and the regulations developed by
NMFS are consistent with the Council's motion recommending this action
and Amendment 68. The rule has not been modified.
Comment 119: The Program stands on an unusual footing given that
Congress directed the ``Secretary'' to establish the Program. Once the
agency turned responsibility for the Program development over to the
Council, it is not clear that NMFS can, without explanation, ignore the
Council's recommendations with respect to the opt-out fishery. In so
doing, NMFS has arbitrarily and capriciously failed ``to consider an
important aspect of the problem'' that the Council has identified and
resolved.
Response: NMFS has not ignored the recommendations of the Council
with respect to the opt-out portion of the Program nor has it acted in
an arbitrary and capricious manner. Section 9.2 of the Council motion
recommending this action clearly states that a vessel that chooses to
participate in the opt-out fishery is subject to sideboard limits
during July. NMFS merely placed into regulations the Council's intent.
See also the response to Comment 90.
Comment 120: The Magnuson-Stevens Act imposes a substantive
standard on NMFS and requires it to assess the benefits and burdens of
its management measures and monitoring programs, in particular under
National Standards 7 and 8. These regulations violate National Standard
7 of the Magnuson-Stevens Act. Failure to overlook such an important
issue also raises questions of reasoned decision-making.
Response: National Standard 7 states that, ``conservation and
management measures shall, where practicable, minimize costs and avoid
unnecessary duplication.'' National Standard 8 states that
``conservation and management measures shall, consistent with the
conservation requirements of this Act (including prevention of
overfishing and rebuilding of overfished stocks), take into account the
importance of fishery resources to fishing communities in order to (A)
provide for the sustained participation of such communities, and (B) to
the extent practicable, minimize adverse economic impacts on such
communities.''
NMFS has determined that this final rule meets the Magnuson-Stevens
Act national standards. NMFS reviewed the requirements of all national
standards, including National Standards 7 and 8, and explicitly address
how the Program meets those standards in Section 4.1 of the final EA/
RIR prepared for this action. Additionally, the final EA/RIR addresses
issues related to the national standards. The final EA/RIR addresses
the monitoring and enforcement costs of the Program and potential
effects of the allocations on fishery dependent communities. Monitoring
and enforcement needs and costs are also addressed in the
classification section of the preamble to the proposed rule and this
final rule.
Additional Changes from the Proposed Rule
NMFS made the following changes from the proposed rule to the final
rule to clarify regulatory language or correct mistakes in the proposed
rule.
In Sec. 679.2, NMFS modified the definition of ``Rockfish Program
fishery'' to specifically describe the fisheries that are managed under
the Program, specifically, rockfish cooperatives, rockfish limited
access fisheries, opt-out fishery, and the entry level fisheries. The
terms ``Rockfish fishery'' and ``Rockfish Program Fishery'' are used in
several places in the regulatory text, and NMFS has replaced the term
``Rockfish Fishery'' throughout the regulatory text with the term
``Rockfish Program fishery'' to ensure greater consistency and clarity.
In Sec. 679.7, NMFS made several modifications to prevent vessel
operators from circumventing monitoring and enforcement provisions
established for rockfish cooperatives, rockfish limited access
fisheries, and the opt-out fishery by using an LLP license that is not
assigned Rockfish QS. By removing the NMFS approval process for adding
and removing specific vessels eligible to fish for a rockfish
cooperative through a CQ permit modification in response to Comment 50,
NMFS changed the method used to ensure that the activities of specific
vessels is monitored adequately and catch are properly deducted. These
changes are consistent with the intent of the monitoring and
enforcement provisions in the proposed rule to adequately monitor all
catch by vessels under the Program.
First, NMFS modified the prohibitions in Sec. 679.7(n)(1)(i)
through (iii), (n)(2)(i), (n)(2)(ii), (n)(3)(i), (n)(3)(ii), and
(n)(3)(iv) to apply vessel monitoring and enforcement standards to
vessels that are assigned to a rockfish cooperative, limited access
fishery or opt-out fishery, even if those vessels are not named on an
LLP license with Rockfish QS. This ensures that all vessels in the
Program are properly monitored regardless of the specific LLP license
used by that vessel.
Second, NMFS inserted a new prohibition in Sec. 679.7(n)(1)(v)
that prohibits a vessel from being used in more than one Program
fishery in a calendar year. This change mirrors existing requirements
in Sec. 679.7(n)(1)(iv) that apply to LLP licenses. This change is
necessary to ensure that all vessels fishing in the Program are
properly assigned to only one Program fishery. Otherwise, vessels could
be assigned to more than one cooperative, or to the limited access
fishery and a cooperative, limiting the ability for NMFS to adequately
monitor and track harvests and creating the potential for a small
number of vessels to be assigned to multiple cooperatives.
Third, NMFS added text in Sec. 679.81(i)(3)(ix) to clarify that a
vessel may only be assigned to fish for one rockfish cooperative in a
calendar year.
In Sec. 679.28(b)(2)(v) and (d)(8)(ii), NMFS added provisions to
allow observer sampling station and scale inspections in Kodiak,
Alaska, in addition to Dutch Harbor, Alaska, and in the Puget Sound
area of Washington State. NMFS made this change to accommodate the
catcher/processor fleet that will be active in the waters of
[[Page 67238]]
the Central GOA near Kodiak. This change is also consistent with the
locations where bin monitoring inspections can occur for catcher/
processor vessels assigned to the opt-out fishery.
In Sec. 679.80(f)(6), NMFS revised the regulatory text concerning
the use of VMS to incorporate changes made to the VMS regulations that
were made to this section after the proposed rule for the Program on
June 6, 2006 (71 FR 33040). On June 22, 2006 (71 FR 36694), NMFS
published a final rule to modify VMS requirements to incorporate
necessary changes. NMFS is incorporating those changes in this rule.
In addition, NMFS is correcting a typographic error in the
regulations that were published in the EFH final rule (71 FR 36694,
June 28, 2006). The EFH final rule incorrectly revised Sec.
679.28(f)(6)(i) to limit the VMS operation to when the vessel is ``in''
a fishery requiring VMS. That error unintentionally changed the
provisions for VMS operation from the original intent. The VMS
requirement for the pollock, Pacific cod, and Atka mackerel fisheries
required the use of VMS whenever the endorsed fishery is open,
regardless of whether the vessel is currently participating in the open
fishery. This rule would remove the word ``in'' preceding ``any
fishery'' to ensure this provision is interpreted consistent with its
original intent.
In Sec. 679.80(e)(3), NMFS changed the deadline for submitting the
application to participate in the Program from December 1, 2006, until
January 2, 2007. This change will provide potential participants
additional time to prepare their applications after the effective date
of this rule.
In Sec. 679.80(e)(4) and Sec. 679.81(e)(3), NMFS added a
requirement that the applicant provide Tax Identification Numbers
(TINs), either Social Security Numbers for individuals or Employer
Identification Numbers for corporations, on fishery permit
applications. NOAA has the authority to require applicants for federal
fishery permits to provide TINs pursuant to the Debt Collection Act. In
addition NMFS will collect information on the date of birth of an
individual or the date of incorporation of a corporation. These changes
affect the application to participate in the Program, and the annual
applications for CQ, the rockfish limited access fishery, and the opt-
out fishery.
In Sec. 679.82(f)(2)(iii), (g)(2)(iii), and (h)(2)(iii) NMFS
clarified regulatory language stating that catcher/processor vessels
that are designated for a rockfish cooperative, rockfish limited access
fishery, or opt-out fishery in the annual application to participate in
those rockfish fisheries are subject to the sideboard limits that apply
to those fisheries. The regulatory text was unclear and has been
corrected to better reflect Council intent and reduce confusion for the
reader.
In Sec. 679.84(c)(5), NMFS added a sentence which clarifies that
fish accidentally spilled from the codend must be moved to the fish
bin. This clarification ensures that an observer is provided an
opportunity to sample all catch that is aboard a vessel.
In Sec. 679.84(c)(9) and (c)(9)(v), NMFS added text to clarify
that catcher/processor vessels assigned to the opt-out fishery must
arrange for inspection of their bin monitoring option. Each option must
be inspected and approved by NMFS annually and prior to its use for the
first time. NMFS had intended to approve bin monitoring options during
the annual observer sampling station inspection. Because NMFS removed
the requirement for an observer sampling station on these vessels, NMFS
must certify bin monitoring options through an alternative approval
process. These changes do not increase the requirements that applies to
these vessels, but merely clarifies the approval process.
In Table 29 to part 679, NMFS changed the date that is used to
establish the amount of the initial Rockfish QS pool assigned to the
catcher/processor and catcher vessel from December 31, 2006, to January
31, 2007. This change accommodates the change in the date of the
application to participate in the Program and provides NMFS with time
to review any claims for Rockfish QS prior to fixing the initial
Rockfish QS pool used to calculate use caps.
NMFS also made several editorial corrections to the regulatory text
for improved readability and accuracy. These changes clarify or correct
errors in the phrasing of particular provisions. Changes from the
proposed to final rule that may have a substantive effect are indicated
in the following table:
------------------------------------------------------------------------
Correction Section modified
------------------------------------------------------------------------
Changed the term ``poundage'' to Throughout the regulatory
``tonnage'' throughout the regulatory text
text referring to TAC issuance of
halibut PSC use because NMFS issues TAC
and halibut PSC in metric tons, not
pounds.
------------------------------------------------------------------------
Replaced the term referring to the Throughout the regulatory
fisheries opened by the State of Alaska text
``for which it adopts a Federal fishing
season'' with the term ``for which it
adopts the applicable Federal fishing
season for that species'' to provide
clarity when referring to multiple
groundfish fisheries opened in State
waters.
------------------------------------------------------------------------
Replaced the term ``until'' with Throughout the regulatory
``through'' when referring to actions text
that are effective up to and including a
specific date and time.
------------------------------------------------------------------------
Replaced the term ``authorized Throughout the regulatory
representative'' with ``designated text
representative'' when referring to the
individual acting on behalf of a
rockfish cooperative to avoid confusion
with individuals who may be authorized
representatives of the corporation.
------------------------------------------------------------------------
Modified the definition of an rockfish Sec. 679.2, Under the
entry level harvesters to be consistent definition of Rockfish entry
with Sec. 679.80(b)(2) level harvester
------------------------------------------------------------------------
Modified the definition of an eligible Sec. 679.2, Under the
rockfish entry level processor to be definition of Rockfish entry
consistent with Sec. 679.80(c)(3) level processor
------------------------------------------------------------------------
Added the term ``trawl and non trawl Sec. 679.2, Under the
fisheries'' to the definition of definition of Rockfish entry
``Rockfish entry level fishery'' to level fishery
clarify that there are two gear types
that may be used in the entry level
rockfish fishery.
------------------------------------------------------------------------
[[Page 67239]]
Added the terms ``BSAI'' and ``catcher Sec. 679.2, Under the
vessel'' to clarify that Pacific cod definition of Sideboard
sideboard limits apply only to catcher limit for purposes of the
vessels in the BSAI. Rockfish Program
------------------------------------------------------------------------
Deleted the term ``eligible'' in the Sec. 679.2, Under the
definitions of a ``rockfish entry level definition of Rockfish entry
harvester,'' and ``Rockfish entry level level harvester and Rockfish
processor.'' The term ``eligible'' is entry level processor and
redundant. throughout the regulatory
text
------------------------------------------------------------------------
Changed the term ``entry level fixed Sec. 679.2, Under the
gear'' to ``entry level longline gear.'' definition of Rockfish entry
The term longline is defined in Sec. level harvester and
679.2, but the term fixed gear is not. throughout the regulatory
Longline gear includes hook and line text
gear, jig gear, and troll gear. These
gear types are commonly referred to as
fixed gear.
------------------------------------------------------------------------
Corrected the citation of provisions Sec. 679.4(b)(10)
related to FFP issuance in Sec.
679.4(b)(10) to Sec. 679.4(b)(6)(iii).
------------------------------------------------------------------------
Reordered the table in Sec. Sec. 679.4(a)(1)(xii)
679.4(a)(1)(xii) so that the citations
are referenced in the order in which
they occur in the regulations.
------------------------------------------------------------------------
Replaced the word ``revoked'' with Sec. 679.4(n)(1)(ii)(D)
``voided.'' The term revoked has a
specific meaning that refers to an
enforcement action and is not applicable
in this provision.
------------------------------------------------------------------------
Added mailing as an option for submitting Sec. 679.4(n)(2)(iii)(C)
a termination of fishing declaration
------------------------------------------------------------------------
Corrected the citation in this section Sec. 679.4(n)(3)(ii)(A)
from (f) to (g).
------------------------------------------------------------------------
Replaced the term ``permitted'' with the Primarily in Sec. 679.5 and
term ``authorized'' in the regulatory in other sections throughout
text when referring to actions that NMFS the regulatory text
authorizes (e.g., entry level rockfish
fishery) but for which NMFS does not
issue a specific permit.
------------------------------------------------------------------------
Added the requirement to include a NMFS Sec. 679.5(n)(2)(iii)(C)
person ID in the Rockfish cooperative
termination of fishing declaration.
------------------------------------------------------------------------
Clarified that a rockfish cooperative Sec. 679.5(n)(2)(v)
termination of fishing declaration is
effective from the date of approval to
the end of the calendar year.
------------------------------------------------------------------------
Corrected the citation to apply to Sec. Sec. 679.5(n)(3)(ii)(A)
679.81(g)
------------------------------------------------------------------------
Clarified that the prohibition on Sec. 679.7(n)(1)(i)
retaining primary rockfish species when
fishing under a CQ permit applies only
to primary rockfish species harvested in
the Central GOA
------------------------------------------------------------------------
Inserted a prohibition which clarifies Sec. 679.7(n)(1)(viii)
that it is prohibited to harvest primary
rockfish species, secondary species, or
use halibut PSC assigned to a rockfish
cooperative without a valid CQ permit.
------------------------------------------------------------------------
Corrected the citation to apply to Sec. Sec. 679.7(n)(2)(iii)
679.82(d) through (h).
------------------------------------------------------------------------
Changed the use of the work ``that'' to Sec. 679.7(n)(7)(i) and
``any'' to clarify that the prohibition (ii)
applies to exceeding the CQ limit for
all primary rockfish species
------------------------------------------------------------------------
Clarified language to indicate that Sec.
halibut PSC may be reapportioned to the 679.21(d)(5)(iii)(B)(2) and
trawl fishery after the effective date throughout the regulatory
of a rockfish cooperative termination of text
fishing declaration. NMFS has replaced
references to the approval of the
rockfish cooperative termination of
fishing declaration to refer to the
effective date of the declaration for
additional clarity in other sections.
The declaration is effective upon
approval.
------------------------------------------------------------------------
Clarified that observer coverage is Sec. 679.50(c)(7)(i)(A)
effective through the earlier of
November 15 or the effective date and
time of an approved rockfish cooperative
termination of fishing declaration.
------------------------------------------------------------------------
Clarified that observer coverage is Sec. 679.50(c)(7)(i)(B)
effective through the earlier of
November 15 or the date and time NMFS
closes all directed fishing for all
primary rockfish species.
------------------------------------------------------------------------
Clarified that the allocation of Rockfish Sec. 679.80(f)(3)(ii)
QS as ``the'' percentage of legal
rockfish landings by an eligible
rockfish harvester ``in that sector''
for which they are applying.
------------------------------------------------------------------------
Corrected text describing the allocation Sec. 679.81(b)(5)(i)
of secondary species CQ to a rockfish
cooperative in the catcher/processor
sector to match the text used in the
algorithm.
------------------------------------------------------------------------
Removed the reference to Central GOA and Sec. 679.81(c)(2)(ii)
replace it with ``GOA'' to ensure that
all halibut PSC used in the GOA is the
denominator for determining the maximum
amount of halibut PSC that may be
allocated to the catcher/processor
sector
------------------------------------------------------------------------
Corrected text describing the allocation Sec. 679.81(c)(4)(i)
of halibut PSC CQ to a rockfish
cooperative in the catcher/processor
sector to match the text used in the
algorithm.
------------------------------------------------------------------------
[[Page 67240]]
Corrected the date from ``on June 6, Sec. 679.82(a)(3)
2006'' to ``prior to June 6, 2005''
consistent with Council intent and with
the date of final Council action on
Amendment 68 as established in other
portions of the regulations.
------------------------------------------------------------------------
Rephrased the wording to remove redundant Sec. 679.82(a)(4)
text establishing the criteria for
establishing the use cap applicable to
vessels in the catcher/processor sector
------------------------------------------------------------------------
Clarified that a use cap exemption Sec. 679.82(a)(6)(i)
applies only if that rockfish QS is
assigned to LLP license(s) held by that
eligible rockfish harvester at the time
of application to participate in the
Rockfish Program and prior to June 6,
2005.
------------------------------------------------------------------------
Clarified the regulatory language Sec. 679.82(a)(6)(ii)(B)
applying a use cap to an eligible
rockfish harvester who received an
initial allocation of rockfish QS in
excess of the use cap if that person
transfers rockfish QS to another person,
but the amount of rockfish QS remaining
after the transfer is above the use cap.
------------------------------------------------------------------------
Deleted the reference which indicated Sec. 679.82(b)(5)
that halibut PSC used in the rockfish
limited access fishery would be deducted
from the seasonal apportionment ``for
that sector.'' Seasonal apportionments
of halibut are not made by sector
------------------------------------------------------------------------
Changed the term ``halibut mortality Sec. 679.82(d)(5)(ii)
sideboard limit'' to ``halibut PSC
sideboard limit'' to ensure consistency
with regulations.
------------------------------------------------------------------------
Clarified that a catcher/processor Sec. 679.82(d)(6)(iii) and
sideboard limit is calculated based on Sec. 679.82(d)(8)(iii)(A)
the catch history of the LLP licenses and (B)
assigned to that rockfish cooperative.
This replaces the term ``vessel'' that
is vague and could have applied to
vessels that are hired to fish for the
cooperative but are not otherwise
eligible for the Program.
------------------------------------------------------------------------
Edited text to clarify the amount of the Sec. 679.82(d)(8)(iii)(C)
sideboard limit that will apply to
catcher/processor participants that are
not in a rockfish cooperative as an
aggregate of the sideboard limit
remaining after allocation to catcher/
processor cooperatives.
------------------------------------------------------------------------
Edited text to clarify the how NMFS will Sec. 679.82(d)(9)(i) and
close specific flatfish fisheries to (d)(9)(ii)(B)
directed fishing when a halibut PSC
sideboard limit is reached.
------------------------------------------------------------------------
Rephrased the description of halibut PSC Sec. 679.82(d)(9)(iii)
sideboard management for improved
clarity.
------------------------------------------------------------------------
Clarified that any catcher/processor LLP Sec. 679.82(f)(1) and (2)
license that has been used to qualify
for purposes of a rockfish cooperative
allocation or a vessel that has been
assigned to a rockfish cooperative
remains subject to sideboard limits
applicable to that rockfish cooperative
for that calendar year.
------------------------------------------------------------------------
Clarified that vessels fishing in a Sec. 679.82(f)(4) and
rockfish limited access or under a CQ (g)(3)(i)
permit are not subject to prohibitions
on directed groundfish fishing for
species harvested during a rockfish
limited access fishery or under a CQ
permit during July.
------------------------------------------------------------------------
Corrected citation toSec. 679.82(d) Sec. 679.84(c)
through (g)
------------------------------------------------------------------------
Added text to clarify that the observer Sec. 679.84(c)(7)
must be present at the pre-cruise
meeting. Otherwise, a vessel owner or
operator could schedule a pre-cruise
meeting prior to the observer even
showing up at the boat. While it is
helpful to have NMFS staff meet with
vessel personnel, the goal of the pre-
cruise meeting is to establish a working
relationship between the vessel
personnel and the observer.
------------------------------------------------------------------------
Corrected this provision to require that Sec. 679.84(e)
the owner or operator of a catcher
vessel ensures the vessel operator
complies with the observer coverage
requirements. Previous wording had
required the owner and operator to be
responsible. Only one party is required.
This change is consistent with the
requirements for catcher/processor
vessels.
------------------------------------------------------------------------
Other editorial changes were made throughout the rule that NMFS
determined had no substantive effect.
Classification
This final rule has been determined not to be significant for the
purposes of Executive Order 12866.
NMFS has determined that Amendment 68 and the provisions in this
rule that implement Amendment 68 are consistent with the national
standards of the Magnuson-Stevens Act and other applicable laws. NMFS
made the determination that this rule is consistent after taking into
account the data, views, and comments received during the comment
period.
A draft EA/RIR/IRFA was prepared for Amendment 68 and the proposed
rule. A final EA/RIR was prepared for this rule. The EA analyzes the
impacts of the proposed action and its alternatives on the human
environment. The RIR assesses all costs and benefits of available
regulatory alternatives. Copies of the final EA/RIR for this action are
available from NMFS (see ADDRESSES). A final regulatory flexibility
analysis (FRFA) has been prepared for this rule. Copies of the FRFA are
available from NMFS (see ADDRESSES).
The RIR presents an analysis of the extensive and elaborate series
of alternatives, options, and suboptions the Council developed as it
designed and evaluated the potential for rationalization of the Central
GOA rockfish fisheries. The RIR considers all quantitative and
qualitative measures. The Program was chosen based on those measures
that maximize net benefits to affected participants in the Central GOA
rockfish fisheries.
[[Page 67241]]
The EA presents an analysis of the three alternative programs for
management of the Central GOA rockfish fisheries for catcher vessels:
Status Quo/No Action (Alternative 1); rockfish cooperative management
with a limited license program for processors (Alternative 2); and
rockfish cooperative management with linkages between rockfish
cooperatives and processors (Alternative 3). Three alternatives for
catcher/processors also were considered: Status Quo/No Action
(Alternative 1); rockfish cooperative management (Alternative 2); and a
sector allocation (Alternative 3). Alternative 3 for catcher vessels
and Alternative 2 for catcher/processors were combined to form the
Council's preferred alternative(the rockfish cooperative alternative.
Final Regulatory Flexibility Analysis
NMFS prepared a Final Regulatory Flexibility Analysis (FRFA). The
FRFA incorporates the IRFA, response to public comments received on the
IRFA, and a summary of the analyses completed to support the action. A
copy of this analysis is available from NMFS (see ADDRESSES). The FRFA
did not reveal any Federal rules that duplicate, overlap, or conflict
with the action. The following summarizes the FRFA.
The FRFA evaluates the impacts of the Program for groundfish
fisheries in the GOA on small entities. The FRFA addresses the
statutory requirements of the Regulatory Flexibility Act (RFA) of 1980,
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996 (5 U.S.C. 601-612). It specifically addresses the
requirements at section 604(a).
Issues raised by public comments on the IRFA. The proposed rule for
the Program was published in the Federal Register on June 7, 2006 (71
FR 33040). An IRFA was prepared for the proposed rule, and described in
the classification section of the preamble to the rule. The public
comment period ended on July 24, 2006. NMFS received nine letters of
public comment on the proposed rule. NMFS summarized these letters into
120 separate comments. Of these, one comment was directly on the IRFA
and is presented below. No changes were made to the final rule from the
proposed rule in response to the comment on the IRFA. Several comments
directly or indirectly dealt with economic impacts to small entities
resulting from the management measures presented in the proposed rule.
These comments and responses are under Response to Comments in this
preamble.
Comment: The EA/RIR/IRFA prepared for the Program contains no
analysis of the economic impacts of applying the monitoring and
enforcement requirements to the catcher/processor vessels in the opt-
out fleet. The RFA requires the agency to determine the impacts of a
proposed rule on small entities. It then requires the agency to
identify and develop alternatives to ameliorate the economic and
compliance impacts on small entities if the proposed rule has a
significant impact on a substantial number of small entities.
Response: As discussed in the IRFA, the RFA requirements do not
apply to catcher/processor vessels participating under this Program. As
noted in Section 5.4 of the IRFA, no processors or catcher processors
eligible for the Program and regulated by this action are small
entities, as defined by the RFA.
Nevertheless, throughout the final EA/RIR and the draft EA/RIR/
IRFA, NMFS provides information on the anticipated costs to directly
regulated entities of meeting monitoring and enforcement standards that
are applicable under this Program. Section 5.5 of the IRFA notes that
``catcher/processors are also likely to be required to add flow scales
and observer stations on their vessels. These observer requirements and
their costs are fully described in Sections 2.5.1 and 2.5.9.'' Section
2.5.1 of the EA/RIR notes that ``monitoring will need to be modified so
that these allocations are monitored at the individual or cooperative
level. In addition, observer requirements will also need to be modified
to suit the new system of allocations.'' Section 3.4.1 of the EA/RIR
includes a review of the potential costs and updated information on the
specific monitoring and enforcement requirements applicable to catcher/
processor vessels in the opt-out fishery.
Section 2.5.1 of the final EA/RIR also notes in the discussion of
the preferred alternative selected by the Council (i.e., ``Catcher/
processor allocation with cooperatives'') that:
In addition to managing aspects of the rockfish target fishery, NOAA
Fisheries would need to approve and monitor and manage sideboards.
Any participant who intends to, or does, participate in any of the
fisheries governed by the sideboards during the July sideboard
period must have adequate observer coverage onboard the vessel so
that all catch taken under sideboards will be assessed against the
overall sector harvest limit. Observer coverage would be the same as
that required during a cooperative fishery to adequately manage
rockfish harvests.
This statement strongly states that, under the Program, NMFS would
thoroughly monitor and manage the sideboard limits applicable to this
sector.
The final rule has not been modified to address this comment,
however, NMFS refers the commenter to the response to comment 90, which
addresses modifications made to the monitoring and enforcement
provisions applicable to catcher/processor vessels under this rule.
Need for and objectives of this action. The FRFA describes in
detail the reasons why this action is being implemented, describes the
objectives and legal basis for the final rule, and discusses both small
and non-small regulated entities to adequately characterize the fishery
participants. Section 802 of the Consolidated Appropriations Act of
2004 and the Magnuson-Stevens Act provide the legal basis for the rule,
namely to achieve the objective of reducing excessive fishing capacity
and ending the race for fish under the current management strategy for
commercial fishing vessels operating in the Central GOA rockfish
fisheries. By ending the race for fish, NMFS expects this action to
increase resource conservation, improve economic efficiency, and
address social concerns.
Number of small entities to which the proposed rule will apply. The
FRFA contains a description and estimate of the number of small
entities affected by the rule. The FRFA estimates that as many as 63
entities, that own approximately 48 catcher vessels and 15 catcher/
processor vessels, are eligible to receive Rockfish QS under the
Program. The FRFA estimates that approximately 171 trawl vessels and
900 non-trawl vessels could participate in the entry level fishery. The
number of vessels that will choose to participate in the entry level
fishery component of the Program is not known; therefore, there is no
estimate of the number of entities in the entry level fishery that are
directly regulated under this Program.
In addition, six entities that process rockfish are estimated to be
eligible rockfish processors and are regulated under this Program. None
of these eligible rockfish processors are estimated to be small
entities based on the number of persons employed by these processors.
Additionally, some of these eligible rockfish processors are estimated
to be involved in both the harvesting and processing of seafood
products and exceed the $4.0 million in revenues as a fish harvesting
operation. Some processors that are not eligible rockfish processors
may choose to compete for landings from the entry level fishery and are
regulated by this Program. Some of these processors may be small
entities. The extent of participation by small entities in the
[[Page 67242]]
processing segment of the entry level fishery cannot be predicted.
Of the estimated 63 entities owning vessels eligible for fishing
under the Program (other than the entry level fishery), 45 are
estimated to be small entities because they generated $4.0 million or
less in gross revenue based on participation in 1996 through 2002. All
15 of the entities owning eligible catcher/processor vessels are non-
small entities as defined by the RFA. No catcher vessel individually
exceeds the small entity threshold of $4.0 million in gross revenues.
At least three catcher vessels are believed to be owned by entities
whose operations exceed the small entity threshold, leaving as many as
45 small catcher vessel entities that are directly regulated by this
action. The ability to estimate the number of small entities that
operate catcher vessels regulated by this action is limited due to
incomplete information concerning vessel ownership.
It is likely that a substantial portion of the catcher vessel
participants in the entry level fishery will be small entities.
Approximately 171 LLP licenses are qualified to fish in the Central GOA
entry level trawl fishery and 900 LLP licenses are qualified to fish in
the entry level longline gear fishery. However, it is not possible to
determine how many persons may hold these LLP licenses and chose to
participate in the entry level fishery prior to the time of application
to participate in the fishery. The number of persons holding LLP
licenses is likely to be less than the total number of LLP licenses
because a person may hold more than one LLP license at a time.
Six entities made at least one rockfish landing from 1996 to 2002
and do not appear to qualify as an eligible rockfish harvesters. Five
of these entities are not small entities and one entity qualifies as
``small'' by Small Business Administration (SBA) standards. The non-
small entities owned five catcher/processors. The one small entity owns
a catcher vessel. Entities that do not qualify for the Program either
left the fishery, currently fish under interim LLP licenses, or do not
hold a qualified LLP license. Moreover, the vessels the FRFA considers
``non-qualified'' cannot continue fishing for these species under the
current LLP. The impacts to the small entities that are prohibited from
fishing by the LLP were analyzed in the RIR/IRFA and FRFA prepared for
the LLP. Therefore, the non-qualified vessels are not considered
impacted by the proposed rule and are not discussed in this FRFA.
The community of Kodiak, Alaska, could be directly impacted by the
Program. All of the eligible rockfish processors are located in Kodiak.
The specific impacts on Kodiak cannot be determined until NMFS issues
Rockfish QS and eligible rockfish harvesters begin fishing under the
Program. Other supporting businesses may also be indirectly affected by
this action if it leads to fewer vessels participating in the fishery.
These impacts are analyzed in the EA/RIR prepared for this action (see
ADDRESSES).
Recordkeeping and reporting requirements. Implementation of the
Program changes the overall reporting structure and recordkeeping
requirements of the participants in the Central GOA rockfish fisheries.
All participants are required to provide additional reports. Each
harvester is required to track harvests to avoid exceeding his or her
allocation. As in other North Pacific rationalized fisheries,
processors will provide catch recording data to managers to monitor
harvest of allocations. Processors will be required to record
deliveries and processing activities to aid in the Program
administration.
NMFS developed new databases to monitor harvesting and processing
allocations. These changes require the existing reporting systems.
To participate in the Program, persons are required to complete
application forms, transfer forms, reporting requirements, and other
collections-of-information. These forms are either required under
existing regulations or are required for the administration of the
Program. These forms impose costs on small entities in gathering the
required information and completing the forms. With the exception of
specific equipment tests, which are performed by NMFS employees or
other professionals, basic word processing skills are the only skills
needed for the preparation of these reports or records.
NMFS has estimated the costs of complying with the reporting
requirements based on the burden hours per response, number of
responses per year, and a standard estimate of $25 per burden hour.
Persons are required to complete most of the forms at the start of the
Program, such as the application to participate in the Program. Persons
are required to complete some forms every year, such as the application
to fish in a rockfish cooperative, limited access fishery, opt-out
fishery, or entry level fishery. Additionally, reporting for purposes
of catch accounting, such as checking-in or checking-out vessels to
fish under a CQ permit, or transfer of CQ among rockfish cooperatives,
is completed more frequently.
It will cost participants in the Program an estimated $56 to
complete applications to participate in the Program, $55 for the
application for CQ, application for the rockfish limited access
fishery, or application to opt-out, and $61 to complete an inter-
cooperative transfer of CQ.
It will cost participants in the Program an estimated $106 for
annual rockfish cooperative report; $15 for rockfish cooperative catch
report; $15 for a rockfish cooperative termination of fishing
declaration; and $15 for each check-in/check-out for vessels authorized
to fish under a CQ permit.
Description of significant alternatives and description of steps taken
to minimize the significant economic impacts on small entities.
The FRFA presents an analysis of the three alternative programs for
management of the Central GOA rockfish fisheries for catcher vessels:
Status Quo/No Action (Alternative 1); rockfish cooperative management
with a limited license program for processors (Alternative 2); and
rockfish cooperative management with linkages between rockfish
cooperatives and processors (Alternative 3). Three alternatives for
catcher/processors also were considered: Status Quo/No Action
(Alternative 1); rockfish cooperative management (Alternative 2); and a
sector allocation (Alternative 3). Alternative 3 for catcher vessels
and Alternative 2 for catcher/processors were combined to form the
Council's preferred alternative(the rockfish cooperative alternative.
These alternatives constitute the suite of ``significant alternatives''
for the purposes of the RFA. The following is a summary of the FRFA,
focusing on the aspects that pertain to small entities.
Under the status quo, the Central GOA rockfish fisheries have
followed the well known pattern associated with managed open access.
Central GOA rockfish fisheries have been characterized by a ``race-for-
fish'' capital stuffing behavior, excessive risk taking, and a
dissipation of potential rents. Participants in these fisheries are
confronted by significant surplus capacity (in both the harvesting and
processing sectors), and widespread economic instability, all
contributing to resource conservation and management difficulties.
In response to desires to improve economic, social, and structural
conditions in many of the rockfish fisheries, the Council found that
the status quo management structure was causing significant adverse
impacts to the participants in these fisheries. Many
[[Page 67243]]
small entities, as defined under RFA, are negatively impacted under
current open access regulations. The management tools in the existing
FMP (e.g., time/area restriction and LLP licenses) do not provide
managers with the ability to effectively solve these problems, thereby
making Magnuson-Stevens Act goals difficult to achieve and forcing
reevaluation of the existing FMP.
In an effort to alleviate the problems caused by excess capacity
and the race for fish, the Council determined that the institution of
some form of rationalization program was needed to improve fisheries
management in accordance with the Magnuson-Stevens Act. After an
exhaustive public process spanning several years, the Council concluded
that the Program best accomplishes the stated objectives articulated in
the problem statement and applicable statutes, and minimizes to the
extent practicable adverse economic impacts on the universe of directly
regulated small entities. The preferred rockfish cooperative
alternative appears to minimize negative economic impacts on small
entities to a greater extent than an alternative that allocates limited
processing licenses (Alternative 2 for catcher vessels), or that
defines a smaller portion of the TAC for competition among a fixed
number of vessels (Alternative 3 for catcher/processors).
The Program allocates annual harvesting privileges of rockfish and
secondary species TAC to harvester rockfish cooperatives, creating a
transferable access privilege as a share of the TAC, thus removing the
``common property'' attributes of the status quo on qualifying
harvesters. The rationalization of the Central GOA fisheries will
likely benefit the approximately 45 businesses that own harvest vessels
and are considered small entities. In recent years these entities have
competed in the race for fish against larger businesses. The rockfish
cooperative alternative allows these operators to slow their rate of
fishing and give more attention to efficiency and product quality.
The participants are permitted to form rockfish cooperatives that
can lease or sell their allocations, and can obtain some return from
their allocations. Differences in efficiency implications of
rationalization by business size cannot be predicted. Some participants
believe that smaller vessels can be more efficient than larger vessels
in a rationalized fishery because a vessel only needs to be large
enough to harvest the cooperative's CQ. Conversely, under open access,
a vessel has to be large enough to outcompete the other fishermen and,
hence, contributes to the overcapacity problems under the race for
fish.
In addition, the Program provides efficiency gains to both small
entity harvesters and the processors. Data on cost and operating
structure within each sector are unavailable, so a quantitative
evaluation of the size and distribution of these gains accruing to
harvesters and processors under this management regime cannot be
provided. Nonetheless, it appears that the rockfish cooperative
alternative offers improvements over the status quo through the
institution of a ``rights-based management'' structure. The rockfish
cooperative alternative also includes provisions for fishery
participants the Council expressly sought to include--specifically,
rockfish processors and the community in which those processors have
historically been active.
However, NMFS considered multiple alternatives to effectively
implement specific provisions within the Program through regulation. In
each instance, NMFS attempted to impose the least burden on the public,
including the small entities subject to the Program.
The groundfish landing report (internet version and optional fax
version) will be used to debit CQ. All retained catch must be weighed,
reported, and debited from the appropriate account under which the
catch was harvested. Under recordkeeping and reporting, NMFS considered
the options of a paper-based reporting system or an electronic
reporting system. NMFS chose to implement an electronic reporting
system as a more convenient, accurate, and timely method. Additionally,
the electronic reporting system will provide continuous access to
accounts. These provisions will make recordkeeping and reporting
requirements less burdensome on participants by allowing participants
to more efficiently monitor their accounts and fishing activities. NMFS
believes that the added benefits of the electronic reporting system
outweigh any benefits of the paper-based system. However, NMFS will
also provide an optional backup using existing telecommunication and
paper-based methods, which will reduce the burden on small entities in
more remote areas possessing less electronic infrastructure.
Under this rule, catcher/processors will be required to purchase
and install motion-compensated scales to weigh all fish at-sea if
participating as a vessel that is harvesting fish under a CQ permit, in
the limited access fishery, or in the GOA during July. Such scales are
estimated to cost on a one-time basis, approximately $69,000 per
vessel. Currently, a flow scale costs $60,000, an observer platform
scale $8,500, and test weights $500. Additional one-time costs
associated with the installation of the scales are estimated to be
between $10,000 and $40,000, depending on the extent to which the
vessel must be reconfigured to install the scale. Scale monitoring
requirements are estimated to cost approximately $6,235 per year. Based
on discussions with equipment vendors, NMFS estimates that six catcher/
processors will choose to fish under the Program and will be required
to have scales. Based on public comments received on the proposed rule,
NMFS modified this rule so that catcher/processor vessels that
participate in the opt-out fishery are not required to purchase and
install scales. This modification significantly reduces costs for
vessels that are subject to sideboard limits, but are not harvesting
rockfish in the Central GOA.
NMFS will increase observer coverage for Program participants in
most cases. In similar NMFS-managed quota fisheries, NMFS requires that
all fishing activity be observed. NMFS must maintain timely and
accurate records of harvests in fisheries with small allocations that
are harvested by a fleet with a potentially high harvest rate.
Additionally, halibut PSC and halibut mortality rates must be
monitored. Such monitoring can only be accomplished through the use of
onboard observers. Although this imposes additional costs, participants
in the fishery can form rockfish cooperatives, which will limit the
number of vessels required to harvest a cooperative's CQ, and organize
fishing operations to limit the amount of time when additional observer
coverage is required to offset additional costs. The exact overall
additional observer costs per vessel cannot be predicted because costs
will vary with the specific fishing operations of that vessel. NMFS
estimates that a requirement for increased observer coverage will cost
approximately $400 per day. Additional costs may be associated with
catcher/processors that reconfigure their vessels to ensure that
adequate space is available for the additional observer. These costs
cannot be predicted and will vary from vessel to vessel depending on
specific conditions on that vessel. Based on public comments received
on the proposed rule, NMFS modified this rule to reduce observer costs
applicable to catcher/processor vessels in the opt-out fishery from a
200 percent observer coverage level (i.e., two observers onboard the
vessel) to 100
[[Page 67244]]
percent observer coverage level (i.e., one observer onboard the
vessel). This change will substantially reduce the costs that this
portion of the fishery will incur, but a precise cost estimate is not
available at this time.
For monitoring of processing activity, it will cost shore-based
processors approximately $416 to complete the catch monitoring plan and
an additional $2,800 annually to complete all landing reports.
NMFS determined that a VMS program is essential to the proper
enforcement of the Program. Therefore, all vessels, except for non-
trawl entry level vessels, participating in the Program are required to
participate in a VMS program. Depending on which brand of VMS a vessel
chooses to purchase, NMFS estimates that this requirement will impose a
cost of $2,000 per vessel for equipment purchase, $780 for installation
and maintenance, and $5 per day for data transmission costs. NMFS does
not estimate that all vessels participating in the Program would incur
all of these costs because trawl vessels that may participate in the
Program are already subject to VMS requirements under existing
regulations and installed and operate VMS units to meet those
requirements.
NMFS has determined that special catch handling requirements for
catcher/processors may subject vessel owners and operators to
additional costs depending on the monitoring option chosen. The costs
for providing line of sight for observer monitoring are highly variable
depending on bin modifications the vessel may make, the location of the
observer sample station, and the type of viewing port installed. These
costs cannot be estimated with existing information.
Because NMFS has chosen to implement the video option using
performance standards, the costs for a vessel to implement this option
can be quite variable, depending on the nature of the system chosen. In
most cases, the system is expected to consist of one digital video
recorder (DVR)/computer system and between two and five cameras. DVR
systems range in price from $1,500 to $10,000, and cameras cost from
$75 to $300 each. Data storage costs will vary depending on the frame
rate, color density, amount of compression, image size, and need for
redundant storage capacity. NMFS estimates data storage will cost
between $400 and $3,000 per vessel.
Installation costs will be a function of where the DVR/computer can
be located in relation to an available power source, cameras, and the
observer sampling station. NMFS estimates that a fairly simple
installation will cost approximately $2,000, and a complex installation
will cost approximately $10,000, per vessel. However, these costs can
be considerably lower if the vessel owner chooses to install the
equipment while upgrading other wiring. Thus, total system costs,
including DVR/computer equipment, cameras, data storage, and
installation is expected to range between $4,050 per vessel for a very
simple inexpensive system with low installation costs, and $24,500 per
vessel for a complex, sophisticated system with high installation
costs. Based on public comments received on the proposed rule, NMFS has
modified the rule to remove the requirement for an observer sampling
station for catcher/processor vessels participating in the opt-out
fishery. This change will reduce costs of total system costs for the
catch handling provisions, but the amount of the reduced costs cannot
be predicted and will vary depending on the specific configuration of
the vessel.
Annual system maintenance costs are difficult to estimate because
much of this technology has not been extensively used at-sea in the
United States. However, we estimate an annual cost of $680 to $4,100
per year based on a hard disk failure rate of 20 percent per year, and
a DVR/computer lifespan of three years.
Additionally, NMFS made a number of changes as a result of public
comments to the Program's compliance requirements to mitigate impacts
on small entities. Changes in the monitoring and enforcement
requirements applicable to catcher/processor vessels participating in
the opt-out fishery are addressed in the previous paragraphs addressing
motion compensated scales, observer coverage, and special catch
handling requirements for catcher/processor vessels. NMFS has also
relieved the requirement for a dedicated Program observer at entry
level processing facilities, and the requirement that those facilities
maintain a CMCP. These changes reduce costs to these entities, but do
not undermine the overall monitoring goals of this Program given the
small allocations available to the entry level fishery.
In response to the public comment requesting additional time to
prepare and submit the annual applications for CQ, the rockfish limited
access fishery, and opt-out fishery, NMFS changed the submittal date
from December 1 of the year prior to fishing to March 1 of the year in
which the person intends to fish. This deadline change provides both
the time to gather records and coordinate with other participants in
the fishery. NMFS has also improved the flexibility of rockfish
cooperatives to designate specific vessels to fish under the CQ permit
through a vessel check-in and check-out procedure. This change provides
greater flexibility than the more lengthy proposed requirement to
modify the CQ permit. The specific details of this vessel check-in/
check-out procedure are detailed in the response to comment section of
the preamble.
Collection-of-information
This rule contains collection-of-information requirements subject
to the Paperwork Reduction Act (PRA) and that have been approved by the
OMB under the control numbers listed below. Public reporting burdens
per response for these requirements are listed by OMB control number.
OMB Control No. 0648-0545
Four (4) hours for annual rockfish cooperative report; 6 minutes
for rockfish cooperative catch report; 4 hours for a letter of appeal,
if denied a permit; and 15 minutes for a rockfish cooperative
termination of fishing declaration, 2 hours for the application to
participate in the Program; 2 hours for the application for CQ; 2 hours
for the application for the limited access fishery; 2 hours for the
application to opt-out; 2 hours for the application for inter-
cooperative transfer; and 15 minutes for cooperative check-in/check-out
for vessels authorized to fish CQ.
OMB Control No. 0648-0515
Fifteen (15) minutes for application for eLandings user ID; 35
minutes to electronically submit landing report and print receipts from
eLandings.
OMB Control No. 0648-0445
Twelve (12) minutes for VMS check-in form; 6 hours for VMS
installation; 4 hours for VMS annual maintenance; and 6 seconds for
each VMS transmission.
OMB Control No. 0648-0401
35 minutes to electronically submit SPELR information (superceded
by eLandings, 0515).
OMB Control No. 0648-0330
Forty (40) hours for catch monitoring requirements for catcher/
processors; 40 hours for a CMCP; 10 minutes for observer sampling
station inspection request; 1 hour for video monitoring system.
OMB Control No. 0648-0213
Fourteen (14) minutes for Vessel Activity Report; 20 minutes for
product
[[Page 67245]]
transfer report; 28 minutes for catcher vessel longline and pot gear
daily fishing logbook; and 41 minutes for catcher/processor longline
and pot gear daily cumulative production logbook.
Response times include the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collection of information.
Send comments regarding this burden estimate, or any other aspect
of this data collection, including suggestions for reducing the burden,
to NMFS (see ADDRESSES) and by e-mail to [email protected], or
fax to 202- 395-7285.
Small Entity Compliance Guide
Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 states that, for each rule, or group of related rules for
which an agency is required to prepare a FRFA, the agency shall publish
one or more guides to assist small entities in complying with the rule
and shall designate such publications as ``small entity compliance
guides.'' The agency shall explain the actions a small entity is
required to take to comply with a rule or group of rules. As part of
this rulemaking process, NMFS Alaska Region has developed a Web site
that provides easy access to details of this final rule, including
links to the final rule, and frequently asked questions regarding
Program.
The relevant information available on the Web site is the Small
Entity Compliance Guide. The Web site address is http://www.fakr.noaa.gov. Copies of this final rule are available upon request
from the NMFS, Alaska Regional Office (see ADDRESSES).
List of Subjects
15 CFR Part 902
Reporting and recordkeeping requirements.
50 CFR Part 679
Alaska, Fisheries, Reporting and recordkeeping requirements.
Dated: November 7, 2006.
Samuel D. Rauch III
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
0
For the reasons set out in the preamble, 15 CFR chapter IX, and 50 CFR
chapter VI are amended as follows:
15 CFR CHAPTER IX --NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION,
DEPARTMENT OF COMMERCE
PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE
PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS
0
1. The authority citation for part 902 continues to read as follows:
Authority: 44 U.S.C. 3501 et seq.
0
2. In Sec. 902.1, the table in paragraph (b) under the entry ``50
CFR'' is amended by:
0
a. Revising entries ``679.4(g) and (k)''; and
0
b. Adding new entries ``679.4(n)'', ``679.5(r)'', and ``679.80''
through ``679.84'' in numerical order.
The additions and revisions read as follows:
Sec. 902.1 OMB control numbers assigned pursuant to the Paperwork
Reduction Act.
* * * * *
(b) * * *
------------------------------------------------------------------------
Current OMB control
CFR part or section where the information number (all numbers
collection requirement is located begin with 0648-)
------------------------------------------------------------------------
* * * * * * * ........................
------------------------------------------------------------------------
50 CFR ........................
------------------------------------------------------------------------
* * * * * * * ........................
------------------------------------------------------------------------
679.4(g) and (k) -0334 and -0545
------------------------------------------------------------------------
* * * * * * * ........................
------------------------------------------------------------------------
679.4(n) -0545
------------------------------------------------------------------------
* * * * * * * ........................
------------------------------------------------------------------------
679.5(r) -0213, -0401, -0445, and
-0545
------------------------------------------------------------------------
* * * * * * * ........................
------------------------------------------------------------------------
679.80 -0545
------------------------------------------------------------------------
679.81 -0545
------------------------------------------------------------------------
679.82 -0545
------------------------------------------------------------------------
679.83 -0545
------------------------------------------------------------------------
679.84 -0213, -0330, and -0545
------------------------------------------------------------------------
* * * * * * * ........................
------------------------------------------------------------------------
50 CFR Chapter VI--Fishery Conservation and Management, National
Oceanic and Atmospheric Administration, Department of Commerce
PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
0
3. The authority citation for part 679 is revised to read as follows:
Authority: 16 U.S.C. 773 et seq., 1801 et seq., 3631 et seq.;
and Pub. L. 108-199, 118 Stat. 110.
0
4. In Sec. 679.2, add the definitions of ``Cooperative quota (CQ)'',
``Eligible rockfish harvester'', ``Eligible rockfish processor'',
``Halibut PSC sideboard limit'', ``Initial rockfish QS pool'', ``Legal
rockfish landing for purposes of qualifying for the Rockfish Program'',
``Non-allocated secondary species'', ``Official Rockfish Program
record'', ``Opt-out fishery'', ``Primary rockfish species'', ``Rockfish
cooperative'', ``Rockfish entry level fishery'', ``Rockfish entry level
harvester'', ``Rockfish entry level processor'', ``Rockfish halibut
PSC'', ``Rockfish limited access fishery'', ``Rockfish Program'',
``Rockfish Program fisheries'', ``Rockfish Program species'',
``Rockfish Quota Share (QS)'', ``Rockfish QS pool'', ``Rockfish QS
unit'', ``Rockfish sideboard fisheries'', ``Secondary species'',
``Sector for purposes of the Rockfish Program'', ``Sideboard limit for
purposes of the Rockfish Program'', ``Sideboard ratio for purposes of
the Rockfish Program'', and ``Ten percent or greater direct or indirect
ownership interest for purposes of the Rockfish Program'' in
alphabetical order to read as follows:
Sec. 679.2. Definitions.
* * * * *
Cooperative quota (CQ) means:
(1) The annual catch limit of a primary rockfish species or
secondary species that may be harvested by a rockfish cooperative that
may lawfully harvest an amount of the TAC for a primary rockfish
species or secondary species while participating in the Rockfish
Program;
(2) The amount of annual halibut PSC that may be used by a rockfish
cooperative in the Central GOA while participating in the Rockfish
Program (see rockfish halibut PSC in this section).
* * * * *
Eligible rockfish harvester means a person who is permitted by NMFS
to hold rockfish QS.
Eligible rockfish processor means a person who is authorized by
NMFS to receive and process primary rockfish
[[Page 67246]]
species and secondary rockfish species harvested by a rockfish
cooperative or in a rockfish limited access fishery.
* * * * *
Halibut PSC sideboard limit means the maximum amount of halibut PSC
that may be used from July 1 through July 31 by eligible rockfish
harvesters or rockfish cooperatives in the West Yakutat District,
Central GOA, and Western GOA as established under Sec. 679.82(d), as
applicable.
* * * * *
Initial rockfish QS pool means the sum of rockfish QS units
established for a Rockfish Program fishery based on the official
Rockfish Program record and used for the initial allocation of rockfish
QS units and use cap calculations as described in Sec. 679.82(a).
* * * * *
Legal rockfish landing for purposes of qualifying for the Rockfish
Program means groundfish caught and retained in compliance with state
and Federal regulations in effect at that time unless harvested and
then processed as meal, and
(1) For catcher vessels: (i) The harvest of groundfish from the
Central GOA regulatory area that is offloaded and recorded on a State
of Alaska fish ticket during the directed fishing season for that
primary rockfish species as established in Table 28 to this part; and
(ii) An amount of halibut PSC attributed to that sector during the
directed fishing season for the primary rockfish species as established
in Table 28 to this part.
(2) For catcher/processors: (i) The harvest of groundfish from the
Central GOA regulatory area that is recorded on a Weekly Production
Report based on harvests during the directed fishing season for that
primary rockfish species as established in Table 28 to this part; and
(ii) An amount of halibut PSC attributed that sector during the
directed fishing season for the primary rockfish species as established
in Table 28 to this part.
* * * * *
Non-allocated secondary species (see Rockfish Program species in
this section).
* * * * *
Official Rockfish Program record means information used by NMFS
necessary to determine eligibility to participate in the Rockfish
Program and assign specific harvest or processing privileges to
Rockfish Program participants.
* * * * *
Opt-out fishery means the fishery conducted by persons who are
eligible rockfish harvesters holding an LLP license endorsed for
catcher/processor activity and who are not participating in a rockfish
cooperative or the rockfish limited access fishery in the catcher/
processor sector.
* * * * *
Primary rockfish species (see Rockfish Program species in this
section).
* * * * *
Rockfish cooperative means a group of eligible rockfish harvesters
who have chosen to form a rockfish cooperative under the requirements
of Sec. 679.81(i) in order to combine and harvest fish collectively
under a CQ permit issued by NMFS.
Rockfish entry level fishery means the trawl and longline gear
fisheries conducted under the Rockfish Program by rockfish entry level
harvesters and rockfish entry level processors.
Rockfish entry level harvester means a person who is authorized by
NMFS to harvest fish in the rockfish entry level fishery and who is not
an eligible rockfish harvester.
Rockfish entry level processor means a person who is authorized by
NMFS to receive and process fish harvested under the rockfish entry
level fishery and who is not an eligible rockfish processor.
Rockfish halibut PSC means the amount of halibut PSC that may be
used by a rockfish cooperative in the Central GOA as assigned on a CQ
permit.
Rockfish limited access fishery means the fishery for primary
rockfish species conducted by persons who are eligible rockfish
harvesters or eligible rockfish processors and who are not
participating in a rockfish cooperative or opt-out fishery for that
applicable sector.
Rockfish Program means the program authorized under the authority
of Section 802 of the Consolidated Appropriations Act of 2004 (Public
Law 108-199) and implemented under subpart G of this part to manage
Rockfish Program fisheries.
Rockfish Program fisheries means one of following fisheries under
the Rockfish Program:
(1) A rockfish cooperative in the catcher/processor sector;
(2) A rockfish cooperative in the catcher vessel sector;
(3) The limited access fishery in the catcher/processor sector;
(4) The limited access fishery in the catcher vessel sector;
(5) The opt-out fishery;
(6) The entry level trawl fishery; and
(7) The entry level longline gear fishery.
Rockfish Program species means the following species in the Central
GOA regulatory area that are managed under the authority of the
Rockfish Program:
(1) Primary rockfish species means northern rockfish, Pacific ocean
perch, and pelagic shelf rockfish.
(2) Secondary species means the following species:
(i) Sablefish not allocated to the IFQ Program;
(ii) Thornyhead rockfish;
(iii) Pacific cod for the catcher vessel sector;
(iv) Rougheye rockfish for the catcher/processor sector; and
(v) Shortraker rockfish for the catcher/processor sector.
(3) Non-allocated secondary species means the following species:
(i) Aggregate forage fish, Atka mackerel, arrowtooth flounder, deep
water flatfish, flathead sole, other rockfish, ``other species,''
pollock, rex sole, shallow water flatfish, and skates;
(ii) Pacific cod for the catcher/processor sector; and
(iii) Rougheye rockfish and shortraker rockfish for the catcher
vessel sector.
Rockfish Quota Share (QS) means a permit the amount of which is
based on legal rockfish landings for purposes of qualifying for the
Rockfish Program and that are assigned to an LLP license.
Rockfish QS pool means the sum of rockfish QS units established for
the Rockfish Program fishery based on the official Rockfish Program
record.
Rockfish QS unit means a measure of QS based on legal rockfish
landings.
Rockfish sideboard fisheries means fisheries that are assigned a
sideboard limit that may be harvested by participants in the Rockfish
Program.
* * * * *
Secondary species (see Rockfish Program species in this section).
Sector for purposes of the Rockfish Program means:
(1) Catcher/processor sector: those eligible rockfish harvesters
who hold an LLP license with a catcher/processor designation and who
are eligible to receive rockfish QS that may result in CQ that may be
harvested and processed at sea.
(2) Catcher vessel sector: those eligible rockfish harvesters who
hold an LLP license who are eligible to receive rockfish QS that may
result in CQ that may not be harvested and processed at sea.
* * * * *
Sideboard limit for purposes of the Rockfish Program means:
(1) The maximum amount of northern rockfish, Pacific ocean perch,
and
[[Page 67247]]
pelagic shelf rockfish that may be harvested by all vessels in the
Rockfish Program in all areas as specified under Sec. 679.82(d)
through (h), as applicable;
(2) The maximum amount of BSAI Pacific cod that may be harvested by
catcher vessels in all areas as specified under Sec. 679.82(d) through
(h), as applicable; or
(3) The maximum amount of halibut PSC that may be used by all
vessels in all areas as specified under Sec. 679.82(d) through (h), as
applicable.
Sideboard ratio for purposes of the Rockfish Program means a
portion of a sideboard limit for a groundfish fishery that is assigned
to the catcher vessel sector or catcher/processor sector based on the
catch history of vessels in that sector.
* * * * *
Ten percent or greater direct or indirect ownership interest for
purposes of the Rockfish Program means a relationship between two or
more persons in which one directly or indirectly owns or controls a 10
percent or greater interest in, or otherwise controls, another person;
or a third person which directly or indirectly owns or controls, or
otherwise controls a 10 percent or greater interest in both. For the
purpose of this definition, the following terms are further defined:
(1) Person. A person is a person as defined in this section.
(2) Indirect interest. An indirect interest is one that passes
through one or more intermediate persons. A person's percentage of
indirect interest in a second person is equal to the person's
percentage of direct interest in an intermediate person multiplied by
the intermediate person's direct or indirect interest in the second
person.
(3) Controls a 10 percent or greater interest. A person controls a
10 percent or greater interest in a second person if the first person:
(i) Controls a 10 percent ownership share of the second person; or
(ii) Controls 10 percent or more of the voting or controlling stock
of the second person.
(4) Otherwise controls. A person otherwise controls another person,
if it has:
(i) The right to direct, or does direct, the business of the other
person;
(ii) The right in the ordinary course of business to limit the
actions of, or replace, or does limit or replace, the chief executive
officer, a majority of the board of directors, any general partner, or
any person serving in a management capacity of the other person;
(iii) The right to direct, or does direct, the Rockfish Program
fishery processing activities of that other person;
(iv) The right to restrict, or does restrict, the day-to-day
business activities and management policies of the other person through
loan covenants;
(v) The right to derive, or does derive, either directly, or
through a minority shareholder or partner, and in favor of the other
person, a significantly disproportionate amount of the economic benefit
from the processing of fish by that other person;
(vi) The right to control, or does control, the management of, or
to be a controlling factor in, the other person;
(vii) The right to cause, or does cause, the purchase or sale of
fish processed by that person;
(viii) Absorbs all of the costs and normal business risks
associated with ownership and operation of the other person; or
(ix) Has the ability through any other means whatsoever to control
the other person.
* * * * *
0
5. In Sec. 679.4, paragraphs (a)(1)(xii), (b)(6)(iii), (k)(11), and
(n) are added to read as follows:
Sec. 679.4 Permits.
(a) * * *
(1) * * *
------------------------------------------------------------------------
Permit is in
effect from issue For more
If program permit or card type is: date through end information,
of: see. . .
------------------------------------------------------------------------
* * * * * * * ................. ................
(xii) Rockfish Program ................. ................
(A) CQ Specified fishing Sec.
year 679.81(e)(4)
(B) Rockfish Limited Access Fishery Specified fishing Sec.
year 679.81(e)(5)
(C) Opt[dash]out Fishery Specified fishing Sec.
year 679.81(e)(6)
(D) Rockfish Entry Level Fishery Specified fishing Sec.
year 679.81(e)(7)
------------------------------------------------------------------------
* * * * *
(b) * * *
(6) * * *
(iii) NMFS will reissue a Federal fisheries permit to any person
who holds a Federal fisheries permit issued for a vessel if that vessel
was used to make any legal rockfish landings and is subject to a
sideboard limit as described under Sec. 679.82(d) through (h).
* * * * *
(k) * * *
(11) Rockfish QS--(i) General. In addition to other requirements of
this part, a license holder must have rockfish QS on his or her
groundfish LLP license to conduct directed fishing for Rockfish Program
fisheries with trawl gear.
(ii) Eligibility requirements for rockfish QS. The eligibility
requirements to receive rockfish QS are established in Sec. 679.80(b).
* * * * *
(n) Rockfish Program--(1) Cooperative quota (CQ). (i) A CQ permit
is issued annually to a rockfish cooperative if the members of that
rockfish cooperative have submitted a complete and timely application
for CQ as described at Sec. 679.81(e)(4) that is subsequently approved
by the Regional Administrator. A CQ permit authorizes a rockfish
cooperative to participate in the Rockfish Program. The CQ permit will
indicate the amount of primary rockfish species and secondary species
that may be harvested by the rockfish cooperative, and the amount of
rockfish halibut PSC that may be used by the rockfish cooperative. The
CQ permit will list the members of the rockfish cooperative, the
vessels that are authorized to fish under the CQ permit for that
rockfish cooperative, and the eligible rockfish processor with whom
that rockfish cooperative is associated, if applicable.
(ii) A CQ permit is valid under the following circumstances:
(A) Until the end of the year for which the CQ permit is issued;
(B) Until the amount harvested is equal to the amount specified on
the CQ permit for all primary rockfish species, secondary species, and
rockfish halibut PSC;
(C) Until the permit is modified by transfers under Sec.
679.81(f);
(D) Until the permit is voided through an approved rockfish
cooperative termination of fishing declaration; or
(E) Until the permit is revoked, suspended, or modified pursuant to
Sec. 679.43 or under 15 CFR part 904.
(iii) A legible copy of the CQ permit must be carried on board the
vessel(s) used by the rockfish cooperative.
(2) Rockfish cooperative termination of fishing declaration. (i) A
rockfish
[[Page 67248]]
cooperative may choose to extinguish its CQ permit through a
declaration submitted to NMFS.
(ii) This declaration may only be submitted to NMFS using the
following methods:
(A) Fax: 907-586-7354;
(B) Hand Delivery or Carrier. NMFS, Room 713, 709 4\th\ Street,
Juneau, AK 99801; or
(C) By mail: Restricted Access Management Program, NMFS, P.O. Box
21668, Juneau, AK 99802-1668
(iii) A Rockfish cooperative termination of fishing declaration
must include the following information:
(A) CQ permit number;
(B) The date the declaration is submitted; and
(C) The rockfish cooperative's legal name, NMFS Person ID, the
permanent business address, telephone number, fax number, and e-mail
address (if available) of the rockfish cooperative or its designated
representative, and the printed name and signature of the designated
representative of the rockfish cooperative.
(iv) NMFS will review the declaration and notify the rockfish
cooperative's designated representative once the declaration has been
approved.
(v) Upon approval of a declaration, the CQ for all primary rockfish
species and secondary species will be set to zero, rockfish halibut PSC
assigned to that rockfish cooperative will be reapportioned under the
provisions described at Sec. 679.21(d)(5)(iii)(B) and that rockfish
cooperative may not receive any CQ for any primary rockfish species,
secondary species, and rockfish halibut PSC by transfer for the
remainder of that calendar year.
(3) Eligible rockfish processor. (i) The Regional Administrator
will issue an eligible rockfish processor permit to persons who have
submitted a complete application described at Sec. 679.81(d), that is
subsequently approved by the Regional Administrator. An eligible
rockfish processor permit authorizes a shoreside processor or
stationary floating processor to receive fish harvested under the
Rockfish Program, except for fish harvested under the rockfish entry
level fishery.
(ii) A permit is valid under the following circumstances:
(A) Until the permit is modified by transfers under Sec.
679.81(g); or
(B) Until the permit is revoked, suspended, or modified pursuant to
Sec. 679.43 or 15 CFR part 904.
(iii) A legible copy of the eligible rockfish processor permit must
be available at the facility at which Rockfish Program fish are
received.
0
6. Section 679.5 is amended by:
0
A. Removing and reserving paragraph (a)(4).
0
B. Redesignating paragraphs (e)(3) through (e)(7) as paragraphs (e)(4)
through (e)(8), respectively.
0
C. Adding paragraphs (e)(3) and (r).
0
D. Revising the introductory text of paragraph (e) and paragraphs
(e)(1) and (e)(2).
0
E. In newly redesignated paragraph (e)(4), remove the phrase
``paragraphs (e)(1) and (2)'' and add in its place the phrase
``paragraphs (e)(1), (e)(2), and (e)(3)''.
0
F. In newly redesignated paragraph (e)(5)(ii), remove the phrase
``paragraph (e)(6)'' and add in its place the phrase ``paragraph
(e)(7)''.
0
G. In newly redesignated paragraph (e)(5)(iii), remove the phrase
``paragraph (e)(4)(iv)'' and add in its place the phrase ``paragraph
(e)(5)(iv)''.
The additions and revisions read as follows:
Sec. 679.5 Recordkeeping and reporting (R&R).
* * * * *
(e) Shoreside processor electronic logbook report (SPELR). The
owner or manager of a shoreside processor or stationary floating
processor:
(1) That receives groundfish from AFA catcher vessels or receives
pollock harvested in a directed pollock fishery from catcher vessels:
(i) Must use SPELR or NMFS-approved software to report every
delivery of harvests made during the fishing year, including but not
limited to groundfish from AFA catcher vessels and pollock from a
directed pollock fishery participant; and
(ii) Must maintain the SPELR and printed reports as described in
paragraphs (e) and (f) of this section.
(2) That receives groundfish from catcher vessels that are
authorized as harvesters in the Rockfish Program:
(i) Must use SPELR or NMFS-approved software to report every
delivery of harvests made during the fishing year, including but not
limited to groundfish from catcher vessels authorized as harvesters in
the Rockfish Program; and
(ii) Must maintain the SPELR and printed reports as described in
paragraphs (e) and (f) of this section.
(3) That receives groundfish and that is not required to use SPELR
under paragraph (e)(1) or (e)(2) of this section:
(i) May use, upon approval by the Regional Administrator, SPELR or
NMFS-approved software in lieu of the shoreside processor DCPL and
shoreside processor WPR.
(ii) If using SPELR, must maintain the SPELR and printed reports as
described in paragraphs (e) and (f) of this section.
* * * * *
(r) Rockfish Program--(1) General. The owners and operators of
catcher vessels, catcher/processors, shoreside processors, and
stationary floating processors authorized as participants in the
Rockfish Program must comply with the applicable recordkeeping and
reporting requirements of this section and must assign all catch to a
rockfish cooperative, rockfish limited access fishery, sideboard
fishery, opt-out fishery, or rockfish entry level fishery as applicable
at the time of catch or receipt of groundfish. All owners of catcher
vessels, catcher/processors, shoreside processors, and stationary
floating processors authorized as participants in the Rockfish Program
must ensure that their designated representatives or employees comply
with all applicable recordkeeping and reporting requirements.
(2) Logbook--(i) DFL. Operators of catcher vessels equal to or
greater than 60 ft (18.3 m) LOA participating in a Rockfish Program
fishery must maintain a daily fishing logbook for trawl gear as
described in paragraphs (a) and (c) of this section.
(ii) DCPL. Operators of catcher/processors permitted in the
Rockfish Program must use a daily cumulative production logbook for
trawl gear as described in paragraph (a) of this section to record
Rockfish Program landings and production.
(3) SPELR. Managers of shoreside processors or SFPs that are
authorized as processors in the Rockfish Program must use SPELR or
NMFS-approved software as described in paragraphs (e) and (f) of this
section, instead of a logbook and WPR, to record Rockfish Program
landings and production.
(4) Check-in/check-out report, processors. Operators or managers of
a catcher/processor, mothership, stationary processor, or stationary
floating processor that are authorized as processors in the Rockfish
Program must submit check-in/check-out reports as described in
paragraph (h) of this section.
(5) Weekly production report (WPR). Operators of catcher/processors
that are authorized as processors in the Rockfish Program and that use
a DCPL must submit a WPR as described in paragraph (i) of this section.
(6) Product transfer report (PTR), processors. Operators of
catcher/processors and managers of shoreside
[[Page 67249]]
processors or SFPs that are authorized as processors in the Rockfish
Program must submit a PTR as described in paragraph (g) of this
section.
(7) Rockfish cooperative catch report--(i) Applicability. Operators
of catcher/processors and managers of shoreside processors or SFPs that
are authorized to receive fish harvested under a CQ permit in the
Rockfish Program (see Sec. 679.4(n)) must submit to the Regional
Administrator a rockfish cooperative catch report detailing each
cooperative's delivery and discard of fish, as described in paragraph
(r)(7) of this section.
(ii) Time limits and submittal. (A) The rockfish cooperative catch
report must be submitted by one of the following methods:
(1) An electronic data file in a format approved by NMFS mailed to:
Sustainable Fisheries, P.O. Box 21668, Juneau, AK 99802-1668; or
(2) By fax: 907-586-7131.
(B) The rockfish cooperative catch report must be received by the
Regional Administrator by 1200 hours, A.l.t. one week after the date of
completion of a delivery.
(iii) Information required. The rockfish cooperative catch report
must contain the following information:
(A) CQ permit number;
(B) ADF&G vessel registration number(s) of vessel(s) delivering
catch;
(C) Federal processor permit number of processor receiving catch;
(D) Date the delivery was completed;
(E) Amount of fish (in lb) delivered, plus weight of at-sea
discards;
(F) ADF&G fish ticket number(s) issued to catcher vessel(s).
(8) Annual rockfish cooperative report--(i) Applicability. A
rockfish cooperative permitted in the Rockfish Program (see Sec.
679.4(m)(1)) annually must submit to the Regional Administrator an
annual rockfish cooperative report detailing the use of the
cooperative's CQ.
(ii) Time limits and submittal. (A) The annual rockfish cooperative
report must be submitted to the Regional Administrator by an electronic
data file in a NMFS-approved format by fax: 907-586-7557; or by mail to
the Regional Administrator, NMFS Alaska Region, P.O. Box 21668, Juneau,
AK 99802-1668; and
(B) The annual rockfish cooperative report must be received by the
Regional Administrator by December 15\th\ of each year.
(iii) Information required. The annual rockfish cooperative report
must include at a minimum:
(A) The cooperative's CQ, sideboard limit (if applicable), and any
rockfish sideboard fishery harvests made by the rockfish cooperative
vessels on a vessel-by-vessel basis;
(B) The cooperative's actual retained and discarded catch of CQ,
and sideboard limit (if applicable) by statistical area and vessel-by-
vessel basis;
(C) A description of the method used by the cooperative to monitor
fisheries in which cooperative vessels participated; and
(D) A description of any actions taken by the cooperative in
response to any members that exceeded their catch as allowed under the
rockfish cooperative agreement.
(9) Vessel monitoring system (VMS) requirements (see Sec.
679.28(f)).
(10) Rockfish cooperative vessel check-in and check-out report--(i)
Applicability--(A) Vessel check-in. The designated representative of a
rockfish cooperative must designate any vessel that is fishing under
the rockfish cooperative's CQ permit before that vessel may fish under
that CQ permit through a check-in procedure. The designated
representative for a rockfish cooperative must submit this designation
for a vessel:
(1) At least 48 hours prior to the time the vessel begins a fishing
trip to fish under a CQ permit; and
(2) A check-in report is effective at the beginning of the first
fishing trip after the designation has been submitted.
(B) Vessel check-out. The designated representative of a rockfish
cooperative must designate any vessel that is no longer fishing under a
CQ permit for that rockfish cooperative through a check-out procedure.
This check-out report must be submitted within 6 hours after the
effective date and time the rockfish cooperative wishes to end the
vessel's authority to fish under the CQ permit. This designation is
effective at:
(1) The end of a complete offload if that vessel is fishing under a
CQ permit for a catcher vessel cooperative or the earlier of;
(2) The end of the weekending date as reported in a WPR if that
vessel is fishing under a CQ permit for a catcher/processor
cooperative; or
(3) The end of a complete offload if that vessel is fishing under a
CQ permit for a catcher/processor cooperative.
(ii) Submittal. The designated representative of the rockfish
cooperative must submit a vessel check-in or check-out report by one of
the following methods:
(A) By mail: Sustainable Fisheries, P.O. Box 21668, Juneau, AK
99802-1668; or
(B) By fax: 907-586-7131.
(iii) Information required. The vessel check-in or check-out report
must contain the following information:
(A) CQ permit number;
(B) ADF&G vessel registration number(s) of vessel(s) designated to
fish under the CQ permit;
(C) USCG designation number(s) of vessel(s) designated to fish
under the CQ permit; and
(D) Date and time when check-in or check-out begins.
(iv) Limitations on vessel check-in and check-out. (A) A rockfish
cooperative may submit no more check-in reports in a calendar year than
an amount equal to three times the number of LLP licenses that are
assigned to that rockfish cooperative in that calendar year.
(B) A rockfish cooperative may submit no more check-out reports in
a calendar year than an amount equal to three times the number of LLP
licenses that are assigned to that rockfish cooperative in that
calendar year.
0
7. In Sec. 679.7, paragraph (n) is added to read as follows:
Sec. 679.7 Prohibitions.
* * * * *
(n) Rockfish Program--(1) General. (i) Fail to retain any primary
rockfish species caught by a vessel that is assigned to a rockfish
cooperative when that vessel is fishing under a CQ permit.
(ii) Fail to retain any primary rockfish species in the Central GOA
caught by a vessel assigned to a rockfish limited access fishery, or to
a rockfish entry level fishery, when that fishery is open.
(iii) Fail to retain any secondary species caught by a vessel
assigned to a rockfish cooperative when that vessel is fishing under a
CQ permit.
(iv) Use an LLP license assigned to a Rockfish Program fishery in
any other Rockfish Program fishery other than the Rockfish Program
fishery to which that LLP license was initially assigned for that
fishing year.
(v) Operate a vessel assigned to a Rockfish Program Fishery in any
other Rockfish Program fishery other than the Rockfish Program fishery
to which that vessel was initially assigned for that fishing year.
(vi) Receive any primary rockfish species harvested in the entry
level rockfish fishery if that person is an eligible rockfish
processor.
(vii) Harvest any primary rockfish species in the entry level
rockfish fishery if that person is an eligible rockfish harvester.
(viii) Harvest primary rockfish species, secondary species, or use
halibut PSC assigned to a rockfish cooperative without a valid CQ
permit.
[[Page 67250]]
(2) Vessels operators participating in the Rockfish Program. (i)
Operate a vessel that is assigned to a rockfish cooperative and fishing
under a CQ permit and fail to follow the catch monitoring requirements
detailed at Sec. 679.84(c) through (e) from May 1:
(A) Until November 15; or
(B) Until that rockfish cooperative has submitted a rockfish
cooperative termination of fishing declaration that has been approved
by NMFS.
(ii) Operate a vessel that is assigned to a rockfish limited access
fishery and fail to follow the catch monitoring requirements detailed
at Sec. 679.84(c) through (e) from July 1:
(A) Until November 15; or
(B) Until NMFS closes all directed fishing for all primary rockfish
species for that rockfish limited access fishery for that sector.
(iii) Operate a vessel, other than a catcher/processor vessel
assigned to the opt-out fishery, that is subject to a sideboard limit
detailed at Sec. 679.82(d) through (h), as applicable, and fail to
follow the catch monitoring requirements detailed at Sec. 679.84(c)
through (e) from July 1 until July 31, if that vessel is harvesting
fish in the West Yakutat District, Central GOA, or Western GOA
management areas.
(iv) Operate a catcher/processor vessel assigned to the opt-out
fishery, that is subject to a sideboard limit detailed at Sec.
679.82(d) through (h), as applicable, and fail to follow the catch
monitoring requirements detailed at Sec. 679.84(d) from July 1 until
July 31, if that vessel is harvesting fish in the West Yakutat
District, Central GOA, or Western GOA management areas.
(3) VMS. (i) Operate a vessel that is assigned to a rockfish
cooperative and fail to use functioning VMS equipment as described at
Sec. 679.28(f) at all times when operating in a reporting area off
Alaska from May 1:
(A) Until November 15; or
(B) Until that rockfish cooperative has submitted a rockfish
cooperative termination of fishing declaration that has been approved
by NMFS.
(ii) Operate a vessel that is assigned to a rockfish limited access
fishery and fail to use functioning VMS equipment as described at Sec.
679.28(f) at all times when operating in a reporting area off Alaska
from July 1:
(A) Until November 15; or
(B) Until NMFS closes all directed fishing for all primary rockfish
species for that rockfish limited access fishery for that sector.
(iii) Operate a vessel that is subject to a sideboard limit
detailed at Sec. 679.82(d) through (h), as applicable, and fail to use
functioning VMS equipment as described at Sec. 679.28(f) at all times
when operating in a reporting area off Alaska from July 1 until July
31.
(iv) Operate a vessel assigned to the rockfish entry level fishery
for trawl gear and fail to use functioning VMS equipment as described
at Sec. 679.28(f) at all times when operating in a reporting area off
Alaska from July 1:
(A) Until November 15; or
(B) Until NMFS closes all directed fishing for all primary rockfish
species for the rockfish entry level fishery for trawl gear.
(4) Catcher/processor vessels participating in the opt-out fishery.
Operate a vessel that is assigned to the opt-out fishery to directed
fish for northern rockfish, Pacific ocean perch, or pelagic shelf
rockfish in the Central GOA.
(5) Shoreside and stationary floating processors eligible for the
Rockfish Program--(i) Catch weighing. Process any groundfish delivered
by a vessel assigned to a Rockfish Program fishery, or subject to a
sideboard limit not weighed on a scale approved by the State of Alaska.
The scale must meet the requirements specified in Sec. 679.28(c).
(ii) Catch monitoring and control plan (CMCP). Take deliveries of,
or process, groundfish caught by a vessel in a rockfish cooperative or
the rockfish limited access fishery as detailed under this subpart
without following an approved CMCP as described at Sec. 679.28(g). A
copy of the CMCP must be maintained at the facility and made available
to authorized officers or NMFS-authorized personnel upon request.
(iii) Delivery location limitations. Receive or process outside of
the geographic boundaries of the community that is designated on the
permit issued by NMFS to the eligible rockfish processor any groundfish
caught by a vessel while that vessel is harvesting groundfish under a
CQ permit or in a rockfish limited access fishery.
(6) Catcher vessels participating in the Rockfish Program. Deliver
groundfish harvested by a catcher vessel fishing under a CQ permit or
in a rockfish limited access fishery to a shoreside or stationary
floating processor that is not operating under an approved CMCP
pursuant to Sec. 679.28(g).
(7) Rockfish cooperatives. (i) Exceed the CQ permit amount assigned
to that rockfish cooperative for any Rockfish Program species.
(ii) Exceed any sideboard limit assigned to a rockfish cooperative
in the catcher/processor sector.
(iii) Operate a vessel assigned to a rockfish cooperative to fish
under a CQ permit unless the rockfish cooperative has notified NMFS
that the vessel is fishing under a CQ permit as described under Sec.
679.5(r)(10).
(iv) Operate a vessel fishing under the authority of a CQ permit in
the catcher vessel sector and to have any Pacific ocean perch, pelagic
shelf rockfish, northern rockfish, sablefish, thornyhead rockfish,
aboard the vessel unless those fish were harvested under the authority
of a CQ permit.
(v) Operate a vessel fishing under the authority of a CQ permit in
the catcher vessel sector and to have any Pacific cod aboard the vessel
unless those fish were harvested under the authority of a CQ permit.
(8) Use caps. Exceed the use caps that apply under Sec. 679.82(a).
0
8. In Sec. 679.20, paragraphs (e)(1), (e)(2)(ii), and (f)(2) are
revised to read as follows:
Sec. 679.20 General Limitations.
* * * * *
(e) * * *
(1) Proportion of basis species. The maximum retainable amount of
an incidental catch species is calculated as a proportion of the basis
species retained on board the vessel using:
(i) The retainable percentages in Table 10 to this part for the GOA
species categories (except the Rockfish Program fisheries, which are
described in Table 30 to this part for the Rockfish Program fisheries);
and
(ii) Table 11 to this part for the BSAI species categories.
(2) * * *
(ii) To obtain these individual retainable amounts, multiply the
appropriate retainable percentage for the incidental catch species/
basis species combination, set forth in Table 10 to this part for the
GOA species categories (except the Rockfish Program fisheries, which
are described in Table 30 to this part for the Rockfish Program
fisheries), and Table 11 to this part for the BSAI species categories,
by the amount of that basis species, in round-weight equivalents.
* * * * *
(f) * * *
(2) Retainable amounts. Except as provided in Table 10 to this
part, arrowtooth flounder, or any groundfish species for which directed
fishing is closed, may not be used to calculate retainable amounts of
other groundfish species. Only fish harvested under the CDQ Program may
be used to calculate retainable amounts of other CDQ
[[Page 67251]]
species. Only primary rockfish species harvested under the Rockfish
Program may be used to calculate retainable amounts of other species,
as provided in Table 30 to this part.
* * * * *
0
9. In Sec. 679.21, paragraph (d)(5)(iii) is revised to read as
follows:
Sec. 679.21 Prohibited species bycatch management.
* * * * *
(d) * * *
(5) * * *
(iii) Unused seasonal apportionments. (A) Unused seasonal
apportionments of halibut PSC limits specified for trawl, hook-and-
line, or pot gear will be added to the respective seasonal
apportionment for the next season during a current fishing year; and
(B) Unused halibut PSC that had been allocated as CQ that has not
been used by a rockfish cooperative will be added to the last seasonal
apportionment for trawl gear during the current fishing year:
(1) After November 15; or
(2) After the effective date of a declaration to terminate fishing.
* * * * *
0
10. In Sec. 679.28, paragraphs (b)(2)(v), (d)(8)(ii), (f)(6), (g)
introductory text, (g)(1) and (g)(2) are revised to read as follows:
Sec. 679.28 Equipment and operational requirements.
* * * * *
(b) * * *
(2) * * *
(v) Where will scale inspections be conducted? Scales inspections
by inspectors paid by NMFS will be conducted on vessels tied up at
docks in Kodiak, Alaska, Dutch Harbor, Alaska, and in the Puget Sound
area of Washington State.
* ** * *
(d) * * *
(8) * * *
(ii) Where will observer sample station inspections be conducted?
Inspections will be conducted on vessels tied up at docks in Kodiak,
Alaska, Dutch Harbor, Alaska, and in the Puget Sound area of Washington
State.
* * * * *
(f) * * *
(6) When must the VMS transmitter be transmitting? Your vessel's
transmitter must be transmitting if:
(i) You operate a vessel in any reporting area (see definitions at
Sec. 679.2) off Alaska while any fishery requiring VMS, for which the
vessel has a species and gear endorsement on its Federal Fisheries
Permit under Sec. 679.4(b)(5)(vi), is open.
(ii) You operate a federally permitted vessel in the Aleutian
Islands subarea;
(iii) You operate a federally permitted vessel in the GOA and have
mobile bottom contact gear on board; or
(iv) When that vessel is required to use functioning VMS equipment
in the Rockfish Program as described in Sec. 679.7(n)(3).
(g) Catch monitoring and control plan requirements (CMCP)--(1) What
is a CMCP? A CMCP is a plan submitted by the owner and manager of a
processing plant, and approved by NMFS, detailing how the processing
plant will meet the catch monitoring and control standards detailed in
paragraph (g)(7) of this section.
(2) Who is required to prepare and submit a CMCP for approval? The
owner and manager of shoreside or stationary floating processors
receiving fish harvested in the following fisheries must prepare,
submit, and have approved a CMCP prior to the receipt of fish harvested
in these fisheries:
(i) AFA pollock,
(ii) AI directed pollock,
(iii) Rockfish Program, unless those fish are harvested under the
entry level rockfish fishery as described under Sec. 679.83.
* * * * *
0
11. In Sec. 679.50, paragraphs (g)(1)(iii)(B) introductory text, and
(g)(1)(iii)(B)(1) are revised and (c)(2)(vii), (c)(7), and (d)(7) are
added to read as follows:
Sec. 679.50 Groundfish Observer Program applicable through December
31, 2007.
* * * * *
(c) * * *
(2) * * *
(vii) Rockfish Program. In retained catch from Rockfish Program
fisheries.
* * * * *
(7) Rockfish Program--(i) Catcher/processor vessel--(A) Rockfish
cooperative. A catcher/processor vessel that is named on an LLP license
that is assigned to a rockfish cooperative and is fishing under a CQ
permit must have onboard at least two NMFS-certified observers for each
day that the vessel is used to harvest or process in the Central GOA
from May 1 through the earlier of:
(1) November 15; or
(2) The effective date and time of an approved rockfish cooperative
termination of fishing declaration.
(B) Rockfish limited access fishery. A catcher/processor vessel
harvesting fish allocated to the rockfish limited access fishery for
the catcher/processor sector must have onboard at least two NMFS-
certified observers for each day that the vessel is used to harvest or
process in the Central GOA from July 1 through the earlier of:
(1) November 15; or
(2) The date and time NMFS closes all directed fishing for all
primary rockfish species in the rockfish limited access fishery for the
catcher/processor sector.
(C) Sideboard fishery. A catcher/processor vessel, other than a
catcher/processor vessel assigned to the opt-out fishery, that is
subject to a sideboard limit as described under Sec. 679.82(d) through
(h), as applicable, must have onboard at least two NMFS-certified
observers for each day that the vessel is used to harvest or process
from July 1 through July 31 while harvesting fish in the West Yakutat
District, Central GOA, or Western GOA management areas.
(D) Observer lead level 2 requirements. At least one of these
observers must be endorsed as a lead level 2 observer. More than two
observers are required if the observer workload restriction at
paragraph (c)(7)(i)(E) of this section would otherwise preclude
sampling as required.
(E) Observer workload. The time required for the observer to
complete sampling, data recording, and data communication duties may
not exceed 12 consecutive hours in each 24-hour period.
(F) Sideboard fishery for catcher/processor vessels in the opt-out
fishery. (i) A catcher/processor vessel assigned to the opt-out
fishery, that is subject to a sideboard limit as described under Sec.
679.82(d) through (h), as applicable, must have onboard at least one
NMFS-certified observer for each day that the vessel is used to harvest
or process from July 1 through July 31 while harvesting fish in the
West Yakutat District, Central GOA, or Western GOA management areas.
(ii) Catcher vessels--(A) Rockfish cooperative. A catcher vessel
that is named on an LLP license that is assigned to a rockfish
cooperative and fishing under a CQ permit must have onboard a NMFS-
certified observer at all times the vessel is used to harvest fish in
the Central GOA from May 1 through the earlier of:
(1) November 15; or
(2) The effective date and time of an approved rockfish cooperative
termination of fishing declaration.
[[Page 67252]]
(B) Rockfish limited access fishery. A catcher vessel harvesting
fish allocated to the rockfish limited access fishery for the catcher
vessel sector must have onboard a NMFS-certified observer onboard at
all times the vessel is used to harvest in the Central GOA from July 1
through the earlier of:
(1) November 15; or
(2) The date and time NMFS closes all directed fishing for all
primary rockfish species in the rockfish limited access fishery for the
catcher vessel sector.
(C) Sideboard fishery. A catcher vessel that is subject to a
sideboard limit as described under Sec. 679.82(d) through (h), as
applicable, must have onboard a NMFS-certified observer at all times
the vessel is used to harvest from July 1 through July 31 while
harvesting fish in the West Yakutat District, Central GOA, or Western
GOA management areas.
(d) * * *
(7) Rockfish Program--(i) Coverage level. A shoreside or stationary
floating processor must have a NMFS-certified observer for each 12
consecutive hour period in each calendar day during which it receives
deliveries from a catcher vessel described at paragraph (c)(7)(ii) of
this section. A shoreside or stationary floating processor that
receives deliveries or processes catch from a catcher vessel described
at paragraph (c)(7)(ii) of this section for more than 12 consecutive
hours in a calendar day is required to have two NMFS-certified
observers each of these days.
(ii) Multiple processors. An observer deployed to a shoreside or
stationary floating processor that receives deliveries from a catcher
vessel described at paragraph (c)(7)(ii) of this section that were
harvested under the Rockfish Program fisheries may not be assigned to
cover more than one processor during a calendar day.
(iii) Observers transferring between vessels and processors. An
observer transferring from a catcher vessel delivering to a shoreside
or stationary floating processor that receives deliveries from a
catcher vessel described at paragraph (c)(7)(ii) of this section may
not be assigned to cover the shoreside or stationary floating processor
until at least 12 hours after offload and sampling of the catcher
vessel's delivery is complete.
(iv) Observer coverage limitations. Observer coverage requirements
at paragraph (d)(7) of this section are in addition to observer
coverage requirements in other fisheries. Observer coverage of
deliveries of groundfish harvested by catcher vessels described at
paragraph (c)(7)(ii) of this section are not counted for purposes of
meeting minimum delivery standards applicable to groundfish at a
shoreside processor or stationary floating processor. Any observer
coverage of deliveries by catcher vessels not described at paragraph
(c)(7)(ii) of this section that occur when the Program observer is
present at that shoreside processor or stationary floating processor
during that calendar day will be counted towards the coverage
requirements for that month.
* * * * *
(g) * * *
(1) * * *
(iii) * * *
(B) Communication equipment requirements. In the case of an
operator of a catcher/processor or mothership that is required to carry
one or more observers, or a catcher vessel required to carry an
observer as specified in paragraph (c)(1)(iv) or (c)(7)(ii) of this
section:
(1) Hardware and software. Make available for use by the observer a
personal computer in working condition that contains: a full Pentium
120Mhz or greater capacity processing chip, at least 256 megabytes of
RAM, at least 75 megabytes of free hard disk storage, a Windows 98 (or
more recent) compatible operating system, an operating mouse, a 3.5-
inch (8.9 cm) floppy disk drive, and a readable CD ROM disk drive. The
associated computer monitor must have a viewable screen size of at
least 14.1 inches (35.8 cm) and minimum display settings of 600 x 800
pixels. Except for a catcher vessel described at paragraph (c)(7)(ii)
of this section, the computer equipment specified in paragraph
(g)(1)(iii)(B) of this section must be connected to a communication
device that provides a point-to-point modem connection to the NMFS host
computer and supports one or more of the following protocols: ITU V.22,
ITU V.22bis, ITU V.32, ITU V.32bis, or ITU V.34. Personal computers
utilizing a modem must have at least a 28.8 kbs Hayes-compatible modem.
* * * * *
0
12. Subpart G, consisting of Sec. Sec. 679.80 through 679.84, is added
to read as follows:
Subpart G--Rockfish Program
Sec.
679.80 Initial allocation of rockfish QS.
679.81 Rockfish Program annual harvester and processor privileges.
679.82 Rockfish Program use caps and sideboard limits.
679.83 Rockfish Program entry level fishery.
679.84 Rockfish Program recordkeeping, permits, monitoring, and
catch accounting.
Subpart G--Rockfish Program
Sec. 679.80 Initial allocation of rockfish QS.
Regulations under this subpart were developed by National Marine
Fisheries Service to implement Section 802 of the Consolidated
Appropriations Act of 2004 (Public Law 108-199). Additional regulations
that implement specific portions of the Rockfish Program are set out
at: Sec. 679.2 Definitions, Sec. 679.4 Permits, Sec. 679.5
Recordkeeping and reporting, Sec. 679.7 Prohibitions, Sec. 679.20
General limitations, Sec. 679.21 Prohibited species bycatch
management, Sec. 679.28 Equipment and operational requirements, and
Sec. 679.50 Groundfish Observer Program.
(a) Applicable areas and duration--(1) Applicable areas. The
Rockfish Program applies to Rockfish Program fisheries in the Central
GOA Regulatory Area and rockfish sideboard fisheries in the GOA and
BSAI.
(2) Duration. The Rockfish Program authorized under this part
expires on December 31, 2008.
(3) Seasons. The following fishing seasons apply to fishing under
this subpart subject to other provisions of this part:
(i) Rockfish entry level fishery--longline gear vessels. Fishing by
vessels participating in the longline gear portion of the rockfish
entry level fishery is authorized from 0001 hours, A.l.t., January 1
through 1200 hours, A.l.t., November 15.
(ii) Rockfish entry level fishery--trawl vessels. Fishing by
vessels participating in the trawl gear portion of the rockfish entry
level fishery is authorized from 1200 hours, A.l.t., May 1 through 1200
hours, A.l.t., November 15.
(iii) Rockfish cooperative. Fishing by vessels participating in a
rockfish cooperative is authorized from 1200 hours, A.l.t., May 1
through 1200 hours, A.l.t., November 15.
(iv) Rockfish fishery--rockfish limited access fishery. Fishing by
vessels participating in the rockfish limited access fishery is
authorized from 1200 hours, A.l.t., July 1 through 1200 hours, A.l.t.,
November 15.
(b) Eligibility for harvesters to participate in the Rockfish
Program--(1) Eligible rockfish harvester. A person is eligible to
participate in the Rockfish Program as an eligible rockfish harvester
if that person:
(i) Holds a permanent fully transferrable LLP license at the time
of application to participate in the Rockfish Program that:
[[Page 67253]]
(A) Is endorsed for Central GOA groundfish with a trawl gear
designation; and
(B) Has a legal rockfish landing of any primary rockfish species in
which the sum of the catch of all primary rockfish species for that
legal rockfish landing exceeded the catch of all other groundfish; and
(ii) Submits a timely application to participate in the Rockfish
Program that is approved by NMFS.
(2) Rockfish entry level fishery harvester. A person is eligible to
participate in the Rockfish Program as a rockfish entry level fishery
harvester if that person:
(i) Holds a valid LLP license endorsed for Central GOA groundfish
at the time of application for the entry level fishery;
(ii) Submits a timely application for the entry level fishery that
is approved by NMFS; and
(iii) That person does not hold a permanent fully transferrable LLP
license that is endorsed for Central GOA groundfish with a trawl
designation and has a legal rockfish landing of any primary rockfish
species in which the sum of the catch of all primary rockfish species
for that legal rockfish landing exceeded the catch of all other
groundfish.
(3) Assigning a legal rockfish landing to an LLP license. A legal
rockfish landing is assigned to an eligible LLP license endorsed for
the Central GOA management area with a trawl gear designation if that
legal rockfish landing was made onboard a vessel that gave rise to that
LLP license prior to the issuance of that LLP license, or that legal
rockfish landing was made on a vessel using trawl gear operating under
the authority of that LLP license.
(4) Legal rockfish landings assigned to the catcher/processor
sector. A legal rockfish landing for a primary rockfish species is
assigned to the catcher/processor sector if:
(i) The legal rockfish landing of that primary rockfish species was
harvested and processed onboard a vessel during the season dates for
that primary rockfish species as established in Table 28 to this part;
and
(ii) The legal rockfish landings that were derived from that vessel
resulted in, or were made under the authority of, an eligible LLP
license that is endorsed for Central GOA groundfish fisheries with
trawl gear with a catcher/processor designation.
(5) Legal rockfish landings assigned to the catcher vessel sector.
A legal rockfish landing for a primary rockfish species is assigned to
the catcher vessel sector if:
(i) The legal rockfish landing of that primary rockfish species was
harvested and not processed onboard a vessel during the season dates
for that primary rockfish species as established under Table 28 to this
part; and
(ii) The legal rockfish landings that were derived from that vessel
resulted in, or were made under the authority of, an eligible LLP
license that is endorsed for Central GOA groundfish fisheries with
trawl gear; and
(iii) Those legal rockfish landings do not meet the criteria for
being a legal rockfish landing assigned to the catcher/processor sector
as defined in paragraph (b)(4) of this section.
(c) Eligibility for processors to participate in the Rockfish
Program--(1) Eligible rockfish processor. A person is eligible to
participate in the Rockfish Program as an eligible rockfish processor
if that person:
(i) Holds the processing history of a shoreside processor or
stationary floating processor that received not less than 250 metric
tons in round weight equivalents of aggregate legal rockfish landings
of primary rockfish species each calendar year in any four of the five
calendar years from 1996 through 2000 during the season dates for that
primary rockfish species as established in Table 28 to this part;
(ii) Submits a timely application to participate in the Rockfish
Program that is approved by NMFS; and
(iii) That person or successor-in-interest exists at the time of
application to participate in the Rockfish Program.
(2) Holder of processing history. A person holds the processing
history of a shoreside processor or stationary floating processor if
that person:
(i) Owns the shoreside processor or stationary floating processor
at which the legal rockfish landings were received at the time of
application to participate in the Rockfish Program, unless that
processing history has been transferred to another person by the
express terms of a written contract that clearly and unambiguously
provides that such processing history has been transferred; or
(ii) (A) Holds the processing history of a shoreside processor or
stationary floating processor at which the legal rockfish landings were
received and obtained that processing history by the express terms of a
written contract that clearly and unambiguously provides that such
processing history is held by that person at the time of application to
participate in the Rockfish Program; and
(B) The shoreside processor or stationary floating processor from
which that processing history is derived did not have a valid Federal
Processor Permit at the time that the processing history had been
transferred by the express terms of a written contract.
(3) Eligible entry level fishery processor. A person is eligible to
participate in the Rockfish Program as an eligible entry level fishery
processor if that person is not an eligible rockfish processor.
(d) Official Rockfish Program record--(1) Use of the official
Rockfish Program record. The official Rockfish Program record will
contain information used by the Regional Administrator to determine:
(i) The amount of legal rockfish landings and resulting processing
history assigned to a shoreside processor or stationary floating
processor;
(ii) The amount of legal rockfish landings assigned to an LLP
license;
(iii) The amount of rockfish QS resulting from legal rockfish
landings assigned to an LLP license held by an eligible rockfish
harvester;
(iv) Sideboard ratios assigned to eligible rockfish harvesters;
(v) The amount of legal rockfish landings assigned to an eligible
rockfish processor for purposes of establishing a rockfish cooperative
with eligible rockfish harvesters; and includes:
(vi) All other information used by NMFS that is necessary to
determine eligibility to participate in the Rockfish Program and assign
specific harvest or processing privileges to Rockfish Program
participants.
(2) Presumption of correctness. The official Rockfish Program
record is presumed to be correct. An applicant to participate in the
Rockfish Program has the burden to prove otherwise. For the purposes of
creating the official Rockfish Program record, the Regional
Administrator will presume the following:
(i) An LLP license is presumed to have been used onboard the same
vessel from which that LLP license was derived during the calendar
years 2000 and 2001, unless written documentation is provided that
establishes otherwise.
(ii) If more than one person is claiming the same legal rockfish
landing, then each LLP license for which the legal rockfish landing is
being claimed will receive an equal share of any resulting rockfish QS
unless the applicants can provide written documentation that
establishes an alternative means for distributing the catch history to
the LLP licenses.
(3) Documentation. (i) Only legal rockfish landings, as defined in
Sec. 679.2,
[[Page 67254]]
shall be used to establish an allocation of rockfish QS or a sideboard
ratio.
(ii) Evidence of legal rockfish landings used to establish
processing history for an eligible rockfish processor is limited to
State of Alaska fish tickets.
(4) Non-severability of legal rockfish landings. Legal rockfish
landings are non-severable:
(i) From the LLP license to which those legal rockfish landings are
assigned according to the official Rockfish Program record; or
(ii) From the shoreside processor or stationary floating processor
at which the legal rockfish landings were received unless the
processing history assigned to that shoreside processor or stationary
floating processor is transferred, in its entirety, to another person
under the provisions in paragraph (c)(2)(ii) of this section.
(e) Application to participate in the Rockfish Program--(1)
Submission of application to participate in the Rockfish Program. A
person who wishes to participate in the Rockfish Program as an eligible
rockfish harvester or eligible rockfish processor must submit a timely
and complete application to participate in the Rockfish Program. This
application may only be submitted to NMFS using the following methods:
(i) Mail: Regional Administrator, c/o Restricted Access Management
Program, NMFS, P.O. Box 21668, Juneau, AK 99802-1668;
(ii) Fax: 907-586-7354; or
(iii) Hand Delivery or Carrier: NMFS, Room 713, 709 West 9th
Street, Juneau, AK 99801.
(2) Forms. Forms are available through the internet on the NMFS
Alaska Region website at http://www.fakr.noaa.gov, or by contacting
NMFS at 800-304-4846, Option 2.
(3) Deadline. A completed application to participate in the
Rockfish Program must be received by NMFS no later than 1700 hours
A.l.t. on January 2, 2007, or if sent by U.S. mail, postmarked by that
time.
(4) Contents of application. A completed application must contain
the following information:
(i) Applicant identification. (A) The applicant's name, NMFS person
ID (if applicable), tax ID or social security number, permanent
business mailing address, business telephone number, and business fax
number, and e-mail (if available);
(B) Indicate (YES or NO) if the applicant is a U.S. citizen; if
YES, enter his or her date of birth;
(C) Indicate (YES or NO) if the applicant is a U.S. corporation,
partnership, association, or other business entity; if YES, enter the
date of incorporation;
(D) Indicate (YES or NO) if the applicant is a successor-in-
interest to a deceased individual or to a non-individual no longer in
existence, if YES attach evidence of death or dissolution;
(E) For an applicant claiming legal rockfish landings associated
with an LLP license, enter the following information for each LLP
license: LLP license number, name of the original qualifying vessel(s)
(OQV(s)) that gave rise to the LLP license, ADF&G vessel registration
number of the OQV, and names, ADF&G vessel registration numbers, and
USCG documentation numbers of all other vessels used under the
authority of this LLP license, including dates when landings were made
under the authority of an LLP license for 2000 and 2001;
(F) For an applicant claiming legal rockfish landings in the
catcher/processor sector, enter the following information: LLP license
numbers, vessel names, ADF&G vessel registration numbers, and USCG
documentation numbers of vessels on which legal rockfish landings were
caught and processed.
(ii) Processor eligibility. (A) Indicate (YES or NO) if the
applicant received at least 250 metric tons in round weight equivalent
of aggregate legal rockfish landings of primary rockfish species each
calendar year in any four of the five calendar years from 1996 through
2000 during the season dates for that primary rockfish species as
established in Table 28 to this part;
(B) If the answer to paragraph (e)(4)(ii)(A) of this section is
YES, enter the facility name and ADF&G processor code(s) for each
processing facility where legal rockfish landings were received and the
qualifying years or seasons for which applicant is claiming
eligibility.
(C) Enter the name of the community in which the primary rockfish
species were received. The community is either:
(1) The city, if the community is incorporated as a city within the
State of Alaska;
(2) The borough, if the community is not a city incorporated within
the State of Alaska, but the community is in a borough incorporated
within the State of Alaska.
(D) Enter the four calendar years from 1996 through 2000 that NMFS
will use to determine the percentage of legal rockfish landings
received by that eligible rockfish processor for purposes of forming an
association with a rockfish cooperative.
(E) Submit a copy of the contract that demonstrates that the legal
processing history and rights to apply for and receive processor
eligibility based on that legal processing history have been
transferred or retained (if applicable); and
(F) Any other information deemed necessary by the Regional
Administrator.
(iii) Applicant signature and certification. The applicant must
sign and date the application certifying that all information is true,
correct, and complete to the best of his/her knowledge and belief. If
the application is completed by a designated representative, then
explicit authorization signed by the applicant must accompany the
application.
(5) Application evaluation. The Regional Administrator will
evaluate applications received as specified in paragraph (e)(3) of this
section and compare all claims in an application with the information
in the official Rockfish Program record. Application claims that are
consistent with information in the official Rockfish Program record
will be approved by the Regional Administrator. Application claims that
are inconsistent with official Rockfish Program record, unless verified
by documentation, will not be approved. An applicant who submits
inconsistent claims, or an applicant who fails to submit the
information specified in paragraph (e)(4) of this section, will be
provided a single 30-day evidentiary period to submit the specified
information, submit evidence to verify his or her inconsistent claims,
or submit a revised application with claims consistent with information
in the official Rockfish Program record. An applicant who submits
claims that are inconsistent with information in the official Rockfish
Program record has the burden of proving that the submitted claims are
correct. Any claims that remain inconsistent or that are not accepted
after the 30-day evidentiary period will be denied, and the applicant
will be notified by an initial administrative determination (IAD) of
his or her appeal rights under Sec. 679.43.
(6) Appeals. If an applicant is notified by an IAD that claims made
by the applicant have been denied, that applicant may appeal that IAD
under the provisions at Sec. 679.43.
(f) Rockfish QS allocation--(1) General. An eligible rockfish
harvester who holds an LLP license at the time of application to
participate in the Rockfish Pilot Program will receive rockfish QS
assigned to that LLP license
[[Page 67255]]
based on the legal rockfish landings assigned to that LLP license
according to the official Rockfish Program record.
(2) Non-severability of rockfish QS from an LLP license. Rockfish
QS assigned to an LLP license is non-severable from that LLP license.
(3) Calculation of rockfish QS. (i) Based on the official Rockfish
Program record, the Regional Administrator shall determine the total
amount of legal rockfish landings of each primary rockfish species in
each year during the fishery seasons established in Table 28 to this
part.
(ii) For each sector, Rockfish QS for each primary rockfish species
shall be based on the percentage of the legal rockfish landings of each
primary rockfish species in that sector associated with each fully
transferrable LLP licenses held by eligible rockfish harvesters in that
sector.
(iii) The Regional Administrator shall calculate rockfish QS for
each sector for each primary rockfish species ``s'' based on each fully
transferable LLP license ``l'' held by all eligible rockfish harvesters
by the following procedure:
(A) Sum the legal rockfish landings for each year during the
fishery seasons established in Table 28 to this part.
(B) Select the five years that yield the highest tonnage of that
primary rockfish species, including zero pounds if necessary.
(C) Sum the tonnage of the highest five years, for that species for
that LLP license as selected under paragraph (f)(3)(iii)(B) of this
section. This yields the Highest Five Years.
(D) Divide the Highest Five Years in paragraph (f)(3)(iii)(C) of
this section for an LLP license and species by the sum of all Highest
Five Years based on the official Rockfish Program record for that
species as presented in the following equation:
Highest Five Yearsls / [sum] All Highest Five
Yearss = Percentage of the Totalls
The result (quotient) of this equation is the Percentage of the
Totalls.
(E) Multiply the Percentage of the Totalls by the
Initial Rockfish QS Pool for each relevant species as established in
Table 29 to this part. This yields the number of rockfish QS units for
that LLP license for that primary rockfish species in rockfish QS
units.
(F) Determine the percentage of legal rockfish landings from the
official Rockfish Program record in the qualifying years used to
calculate the rockfish QS assigned to the catcher/processor sector and
multiply the rockfish QS units calculated in paragraph (f)(3)(iii)(E)
of this section by this percentage. This yields the rockfish QS units
to be assigned to the catcher/processor sector for that LLP license and
species. For each primary rockfish species, the total amount of
rockfish QS units assigned to the catcher/processor sector are the sum
of all catch history allocation units assigned to all eligible rockfish
harvesters in the catcher/processor sector.
(G) Determine the percentage of legal rockfish landings from the
official Rockfish Program record in the qualifying years used to
calculate rockfish QS assigned to the catcher vessel sector and
multiply the Rockfish QS units calculated in paragraph (f)(3)(iii)(E)
of this section by this percentage. This yields the rockfish QS units
to be assigned to the catcher vessel sector for that LLP license and
species. For each primary rockfish species, the total amount of
rockfish QS units assigned to the catcher vessel sector is equal to the
sum of all rockfish QS units assigned to all eligible rockfish
harvesters in the catcher vessel sector.
Sec. 679.81 Rockfish Program annual harvester and processor
privileges.
(a) Sector and LLP license allocations of primary rockfish
species--(1) General. Each calendar year, the Regional Administrator
will determine the tonnage of primary rockfish species that will be
assigned to the Rockfish Program. For participants in a rockfish
cooperative, rockfish limited access fishery, or opt-out fishery,
amounts will be allocated to the appropriate sector, either the
catcher/processor sector or the catcher vessel sector. The tonnage of
fish assigned to a sector will be further assigned to rockfish
cooperative(s) or the rockfish limited access fishery within that
sector.
(2) Calculation. The amount of primary rockfish species allocated
to the Rockfish Program is calculated by deducting the incidental catch
allowance (ICA) the Regional Administrator determines is required on an
annual basis in other non-target fisheries from the TAC. Ninety-five
(95) percent of the remaining TAC for that primary rockfish species
(TACs) is assigned for use by rockfish cooperatives and the
rockfish limited access fishery in the catcher vessel and catcher/
processor sectors. Five (5) percent of the remaining TAC is allocated
for use in the rockfish entry level fishery. The formulae are as
follows in paragraphs (g)(2)(i) and (ii) of this section:
(i) (TAC - ICA) x 0.95 = TACs.
(ii) (TAC - ICA) x 0.05 = TAC for the Rockfish Entry Level Fishery.
(3) Primary rockfish species TACs assigned to the catcher/processor
and catcher vessel sector. TACs assigned for a primary
rockfish species will be divided between the catcher/processor sector
and the catcher vessel sector. Each sector will receive a percentage of
TACs for each primary rockfish species equal to the sum of
the rockfish QS units assigned to all LLP licenses that receive
rockfish QS in that sector divided by the rockfish QS pool for that
primary rockfish species. Expressed algebraically for each primary
rockfish species ``s'' in paragraphs (g)(3)(i) and (ii) of this
section:
(i) Catcher/Processor Sector TACs = [(TACs) x
(Rockfish QS Units in the Catcher/Processor Sectors/Rockfish
QS Pools)].
(ii) Catcher Vessel Sector TACs = [(TACs) x
(Rockfish QS Units in the Catcher Vessel Sectors/Rockfish QS
Pools)].
(4) Use of primary rockfish species by an eligible rockfish
harvester. Once a TACs is assigned to a sector, the use of
that TACs by eligible rockfish harvesters in that sector is
governed by regulations applicable to the rockfish cooperative, limited
access fishery, or opt-out fishery in which those eligible rockfish
harvesters are participating. The TACs is assigned as
follows:
(i) Any TACs assigned to a rockfish cooperative is
issued as CQ and may be harvested only by the members of the rockfish
cooperative that has been assigned that CQ and only on vessels that are
authorized to fish under that CQ permit. Once issued, CQ may be
transferred between rockfish cooperatives according to the provisions
in paragraph (f) of this section.
(ii) Any TACs assigned to the rockfish limited access
fishery in the catcher vessel sector may be harvested by any eligible
rockfish harvester who has assigned an LLP license with rockfish QS for
use in the rockfish limited access fishery in the catcher vessel
sector.
(iii) Any TACs assigned to the rockfish limited access
fishery in the catcher/processor sector may be harvested by any
eligible rockfish harvester who has assigned an LLP license with
rockfish QS for use in the rockfish limited access fishery in the
catcher/processor sector.
(iv) TACs is not assigned to an opt-out fishery. Any
TACs that would have been derived from rockfish QS assigned
to the opt-out fishery is reassigned to rockfish cooperatives and the
rockfish limited access fishery in the catcher/processor sector as
established in paragraph (a)(5)(ii) of this section.
[[Page 67256]]
(5) Determining the TACs of primary rockfish species. TACs
is assigned to each rockfish cooperative or limited access fishery
based on the rockfish QS assigned to that fishery in each sector
according to the following procedures:
(i) Catcher vessel sector. The assignment of TACs to a
rockfish cooperative or limited access fishery is governed by the
Rockfish Program fishery to which an LLP license is assigned under this
paragraph (a).
(A) Rockfish cooperative. The amount of TACs for each
primary rockfish species assigned to a rockfish cooperative is equal to
the amount of rockfish QS units assigned to that rockfish cooperative
divided by the total rockfish QS pool in the catcher vessel sector
multiplied by the catcher vessel TACs. Once TACs
for a primary rockfish species is assigned to a rockfish cooperative,
it is issued as CQ specific to that rockfish cooperative. The amount of
CQ for each primary rockfish species that is assigned to a rockfish
cooperative is expressed algebraically as follows:
CQ = [(Catcher Vessel Sector TACs) x (Rockfish QS
assigned to that Cooperative/Rockfish QS Units in the Catcher Vessel
Sectors)].
(B) Rockfish limited access fishery. The amount of TACs
for each primary rockfish species assigned to the rockfish limited
access fishery is equal to the catcher vessel sector TACs
subtracting all CQ issued to rockfish cooperatives in the catcher
vessel sector for that primary rockfish species. Expressed
algebraically in the following equation:
Catcher Vessel Sector Rockfish Limited Access Fishery TACs
= Catcher Vessel Sector TACs - ([sum] CQ issued to
Rockfish Cooperatives in the Catcher Vessel Sector).
(ii) Catcher/processor sector. The assignment of TACs to
a rockfish cooperative or limited access fishery is determined by the
Rockfish Program fishery to which an LLP license is assigned under this
paragraph (a).
(A) Rockfish cooperative. The amount of TACs for each
primary rockfish species assigned to a rockfish cooperative is equal to
the amount of rockfish QS units assigned to that rockfish cooperative
divided by the sum of the rockfish QS units assigned to rockfish
cooperatives and the limited access fishery in the catcher/processor
sector multiplied by the catcher/processor TACs. Once
TACs for a primary rockfish species is assigned to a
rockfish cooperative it is issued as CQ specific to that rockfish
cooperative. The amount of CQ for each primary rockfish species that is
assigned to a rockfish cooperative is expressed algebraically as
follows:
CQ = [(Catcher/Processor Sector TACs) x (Rockfish QS
Units assigned to that Cooperative / [sum] Rockfish QS Units
assigned to all rockfish cooperatives and the Limited Access Fishery
in the Catcher/Processor Sector).
(B) Rockfish limited access fishery. The amount of TACs
for each primary rockfish species assigned to the limited access
fishery is equal to the catcher/processor TACs subtracting
all CQ issued to rockfish cooperatives in the catcher/processor sector
for that primary rockfish species. Expressed algebraically in the
following equation:
Catcher/Processor Sector Rockfish Limited Access Fishery
TACs = [(Catcher/Processor Sector TACs) -
([sum] CQ issued to rockfish cooperatives in the Catcher/Processor
Sector).
(b) Sector and LLP license allocations of secondary species--(1)
General. Each calendar year, the Regional Administrator will determine
the tonnage of secondary species that may be assigned to the Rockfish
Program. This amount will be assigned to the catcher/processor sector
and the catcher vessel sector. The tonnage of fish assigned to a sector
will be assigned only to rockfish cooperatives within that sector. CQ
of secondary species is subject to the use limitations established in
paragraph (b)(4) of this section.
(2) Maximum amount of secondary species tonnage that may be
assigned to the catcher/processor sector. (i) Sum the amount of each
secondary species retained by all vessels that gave rise to an LLP
license with a catcher/processor designation or that fished under an
LLP license with a catcher/processor designation during the directed
fishery for any primary rockfish species in which the sum of the catch
of all primary rockfish species for that legal rockfish landing
exceeded the catch of all other groundfish during all qualifying season
dates established in Table 28 to this part. This is the rockfish
catcher/processor sector harvest for that secondary species.
(ii) Sum the amount of each secondary species retained by all
vessels in the Central GOA regulatory Area and adjacent waters open by
the State of Alaska for which it adopted a Federal fishing season from
January 1, 1996, until December 31, 2002. This is the total secondary
species harvest.
(iii) For each secondary species, divide the rockfish catcher/
processor sector harvest by the total secondary species harvest and
multiply by 100. This is the percentage of secondary species that may
be assigned to the catcher/processor sector in the Rockfish Program
fishery.
(iv) Multiply the percentage of each secondary species assigned to
the catcher/processor sector in the Rockfish Program fishery by the TAC
for that secondary species. This is the maximum amount of that
secondary species that may be allocated to the catcher/processor sector
in the Rockfish Program.
(v) The maximum amount of rougheye rockfish that may be allocated
to the catcher/processor sector is equal to 58.87 percent of the TAC
for the Central GOA.
(vi) The maximum amount of shortraker rockfish that may be
allocated to the catcher/processor sector is equal to 30.03 percent of
the TAC for the Central GOA.
(3) Maximum amount of secondary species tonnage that may be
assigned to the catcher vessel sector. (i) Sum the amount of each
secondary species retained by all vessels that gave rise to an LLP
license with a catcher vessel designation or that fished under an LLP
license with a catcher vessel designation during the directed fishery
for any primary rockfish species in which the sum of the catch of all
primary rockfish species for that legal rockfish landing exceeded the
catch of all other groundfish during all qualifying season dates
established in Table 28 to this part. This is the rockfish catcher
vessel sector harvest for that secondary species.
(ii) Sum the amount of each secondary species retained by all
vessels in the Central GOA regulatory Area and adjacent waters open by
the State of Alaska for which it adopted a Federal fishing season from
January 1, 1996, until December 31, 2002. This is the total secondary
species harvest.
(iii) For each secondary species, divide the rockfish catcher
vessel sector harvest by the total secondary species harvest and
multiply by 100. This is the percentage of each secondary species that
may be assigned to the catcher vessel sector in the Rockfish Program
fishery.
(iv) Multiply the percentage of each secondary species assigned to
the catcher vessel sector in the Rockfish Program fishery by the TAC
for that secondary species. This is the maximum amount of that
secondary species that may be allocated to the catcher vessel sector in
the Rockfish Program.
(4) Use of a secondary species by an eligible rockfish harvester.
Once the maximum amount of secondary species that may be assigned to a
sector has been determined, the use of that specific amount that is
assigned to that sector is governed by regulations applicable to the
specific Rockfish Program fishery in which eligible rockfish harvesters
are
[[Page 67257]]
participating. The specific amount of each secondary species that may
be used by eligible rockfish harvesters is determined by the following
procedure:
(i) Secondary species may only be assigned to a rockfish
cooperative. Once a secondary species is assigned to a rockfish
cooperative it is issued as CQ, which may only be used by the rockfish
cooperative to which it is assigned.
(ii) Secondary species are not assigned to a rockfish limited
access fishery or the opt-out fishery and there is not a dedicated
harvestable allocation for any specific participant in these rockfish
fisheries.
(5) Determining the amount of secondary species CQ assigned to a
rockfish cooperative. The amount of CQ for each secondary species that
is assigned to each rockfish cooperative is determined according to the
following procedures:
(i) CQ assigned to rockfish cooperatives in the catcher/processor
sector. The CQ for a secondary species that is assigned to a rockfish
cooperative is equal to the maximum amount of that secondary species
that may be allocated to the catcher/processor sector in the Rockfish
Program multiplied by the sum of the rockfish QS units for all primary
rockfish species assigned to that rockfish cooperative divided by the
sum of the rockfish QS units assigned to rockfish cooperatives and the
limited access fishery for all primary rockfish species in the catcher/
processor sector. Expressed algebraically in the following equation:
CQ for that Secondary Species = maximum amount of that Secondary
Species that may be allocated to the Catcher/Processor Sector in the
Rockfish Program x ([sum] Rockfish QS Units assigned to that
Rockfish cooperative / [sum] Rockfish QS Units assigned to all
rockfish cooperatives and the Limited Access Fishery in the Catcher/
Processor Sector).
(ii) CQ assigned to rockfish cooperatives in the catcher vessel
sector. The CQ for a secondary species that is assigned to a specific
rockfish cooperative is equal to the maximum amount of that secondary
species that may be allocated to the catcher vessel sector in the
Rockfish Program multiplied by the sum of the rockfish QS units for all
primary rockfish species assigned to that rockfish cooperative divided
by the rockfish QS pool for all primary rockfish species in the catcher
vessel sector. Expressed algebraically in the following equation:
CQ for that Secondary Species = maximum amount of that Secondary
Species that may be allocated to the Catcher Vessel Sector in the
Rockfish Program x ([sum] Rockfish QS Units assigned to that
Rockfish Cooperative / Rockfish QS Pool in the Catcher Vessel
Sector).
(c) Sector and LLP license allocations of rockfish halibut PSC--(1)
General. Each calendar year, the Regional Administrator will determine
the tonnage of rockfish halibut PSC that will be assigned to the
Rockfish Program. This amount will be allocated to the appropriate
sector, either the catcher/processor sector or the catcher vessel
sector. The tonnage of rockfish halibut PSC assigned to a sector will
be further assigned as CQ only to rockfish cooperative(s) within that
sector.
(2) Maximum amount of rockfish halibut PSC that may be assigned to
the catcher/processor and catcher vessel sectors. (i) Sum the amount of
halibut PSC used by all vessels that gave rise to an LLP license or
that fished under an LLP license used during the directed fishery for
any primary rockfish species in which the sum of the catch of all
primary rockfish species for that legal rockfish landing exceeded the
catch of all other groundfish during all qualifying season dates
established in Table 28 to this part. This is the rockfish halibut PSC
amount.
(ii) Sum the amount of halibut PSC by all vessels in the GOA
Regulatory Area and adjacent waters open by the State of Alaska for
which it adopted a Federal fishing season from January 1, 1996, until
December 31, 2002. This is the Total Halibut PSC.
(iii) Divide the rockfish halibut PSC amount by the total halibut
PSC and multiply by 100. This is the percentage of rockfish halibut PSC
assigned to the Rockfish Program fishery.
(iv) Multiply the percentage of rockfish halibut PSC assigned to
the Rockfish Program fishery by the GOA halibut PSC limit. This is the
maximum amount of rockfish halibut PSC that may be allocated to the
Rockfish Program fishery.
(v) Multiply the maximum amount of rockfish halibut PSC that may be
allocated to the Rockfish Program fishery by the percentage of the
aggregate Rockfish QS assigned to the catcher/processor sector. This is
the maximum amount of rockfish halibut PSC that may be allocated to the
catcher/processor sector.
(vi) Multiply the maximum amount of rockfish halibut PSC that may
be allocated to the Rockfish Program fishery by the percentage of the
aggregate Rockfish QS assigned to the catcher vessel sector. This is
the maximum amount of rockfish halibut PSC that may be allocated to the
catcher vessel sector.
(3) Use of rockfish halibut PSC by an eligible rockfish harvester.
Once the maximum amount of rockfish halibut PSC that may be assigned to
a sector has been determined, the use of that specific amount that is
assigned to that sector is governed by the specific Rockfish Program
fishery in which eligible rockfish harvesters are participating.
(i) Rockfish halibut PSC is assigned only to a rockfish
cooperative. Once rockfish halibut PSC is assigned to a rockfish
cooperative, it is issued as CQ, which may only be used by the members
of the rockfish cooperative to which it is assigned.
(ii) Rockfish halibut PSC is not assigned to a rockfish limited
access fishery or the opt-out fishery and there is not a dedicated
allocation for any specific participant in these rockfish fisheries.
(4) Determining the amount of rockfish halibut PSC CQ assigned to a
rockfish cooperative. The amount of CQ of rockfish halibut PSC that is
assigned to each rockfish cooperative is determined according to the
following procedures:
(i) CQ assigned to rockfish cooperatives in the catcher/processor
sector. The CQ for rockfish halibut PSC that is assigned to a specific
rockfish cooperative is equal to the maximum amount of rockfish halibut
PSC that may be allocated to the catcher/processor sector multiplied by
the sum of the rockfish QS units for all primary rockfish species
assigned to that rockfish cooperative divided by the sum of the
rockfish QS units assigned to rockfish cooperatives and the limited
access fishery for all primary rockfish species in the catcher/
processor sector. This is expressed algebraically in the following
equation:
CQ for Rockfish Halibut PSC to a specific rockfish cooperative =
maximum amount of Rockfish Halibut PSC that may be allocated to the
Catcher/Processor Sector x ([sum] Rockfish QS Units assigned to that
Rockfish Cooperative / [sum] Rockfish QS Units assigned to all
rockfish cooperatives and the Limited Access Fishery in the Catcher/
Processor Sector).
(ii) CQ assigned to rockfish cooperatives in the catcher vessel
sector. The CQ for rockfish halibut PSC that is assigned to a specific
rockfish cooperative is equal to the maximum amount of rockfish halibut
PSC that may be allocated to the catcher vessel sector multiplied by
the sum of the rockfish QS units for all primary rockfish species
assigned to that rockfish cooperative divided by the rockfish QS pool
for all primary rockfish species in the catcher
[[Page 67258]]
vessel sector. This is expressed algebraically in the following
equation:
CQ for Rockfish Halibut PSC to a specific rockfish cooperative =
maximum amount of Rockfish Halibut PSC that may be allocated to the
Catcher Vessel Sector x ([sum] Rockfish QS Units assigned to that
Rockfish Cooperative/Rockfish QS Pool in the Catcher Vessel Sector).
(d) Assigning rockfish QS to a Rockfish Program fishery--(1)
General. Each calendar year, a person that is participating in the
Rockfish Program must assign any LLP license and any rockfish QS
assigned to that LLP license to a Rockfish Program fishery by the
process specified in paragraph (e) of this section. A person may assign
an LLP license and any rockfish QS assigned to that LLP license to only
one Rockfish Program fishery in a fishing year. Any rockfish QS
assigned to a person's LLP license after NMFS has issued CQ or the TAC
for that calendar year will not result in any additional CQ or TAC
being issued for that rockfish QS for that calendar year.
(2) Rockfish cooperatives in the catcher vessel sector. An eligible
rockfish harvester may assign rockfish QS to a rockfish cooperative in
the catcher vessel sector if:
(i) That eligible rockfish harvester assigns the rockfish QS
associated with that LLP license to a rockfish cooperative on a
complete application for CQ that is approved by the Regional
Administrator and that meets the requirements of paragraph (i) of this
section; and
(ii) That rockfish QS is derived from legal rockfish landings
assigned to the catcher vessel sector.
(3) Rockfish cooperative in the catcher/processor sector. An
eligible rockfish harvester may assign rockfish QS to a rockfish
cooperative in the catcher/processor sector if:
(i) That eligible rockfish harvester assigns the rockfish QS
associated with that LLP license to a rockfish cooperative on a
complete application for CQ that is approved by the Regional
Administrator and that meets the requirements of paragraph (i) of this
section; and
(ii) That rockfish QS is derived from legal rockfish landings
assigned to the catcher/processor sector.
(4) Rockfish limited access fishery. (i) An eligible rockfish
harvester may assign rockfish QS to a rockfish limited access fishery
if that eligible rockfish harvester:
(A) Assigns the rockfish QS associated with that LLP license to a
limited access fishery on a complete application for the rockfish
limited access fishery that is approved by the Regional Administrator;
or
(B) Does not submit a complete application for CQ, or an
application for the opt-out fishery that is approved.
(ii) The rockfish QS is assigned to the rockfish limited access
fishery in the catcher vessel sector if that rockfish QS is assigned to
the catcher vessel sector.
(iii) The rockfish QS is assigned to the rockfish limited access
fishery in the catcher/processor sector if that rockfish QS is assigned
to the catcher/processor sector.
(5) Opt-out fishery. An eligible rockfish harvester may assign
rockfish QS assigned to the catcher/processor sector to the opt-out
fishery if that eligible rockfish harvester assigns the rockfish QS
associated with that LLP license to the opt-out fishery on a complete
application for the opt-out fishery that is approved by the Regional
Administrator.
(6) Rockfish entry level fishery. (i) A rockfish entry level
harvester may assign an LLP license to the rockfish entry level fishery
if that rockfish entry level harvester assigns that LLP license to the
rockfish entry level fishery on a complete application for the entry
level fishery that is approved by the Regional Administrator.
(ii) A rockfish entry level processor may participate in the
rockfish entry level fishery if that rockfish entry level processor
submits a complete application for the entry level fishery that is
approved by the Regional Administrator.
(e) Applications for a Rockfish Program fishery--(1) General.
Applications to participate in a Rockfish Program fishery are required
to be submitted each year. A person who wishes to participate in a
particular Rockfish Program fishery must submit a timely and complete
application that is appropriate to that Rockfish Program fishery. These
applications may only be submitted to NMFS using the following methods:
(i) Mail: Regional Administrator, c/o Restricted Access Management
Program, NMFS, P.O. Box 21668, Juneau, AK 99802-1668;
(ii) Fax: 907-586-7354; or
(iii) Hand Delivery or Carrier: NMFS, Room 713, 709 West 9th
Street, Juneau, AK 99801.
(2) Forms. Forms are available through the internet on the NMFS
Alaska Region website at http://www.fakr.noaa.gov, or by contacting
NMFS at: 800-304-4846, Option 2.
(3) Deadline. A completed application must be received by NMFS no
later than 1700 hours A.l.t. on March1 of the year for which the
applicant wishes to participate in a Rockfish Program fishery, or if
sent by U.S. mail, the application must be postmarked by that time.
(4) Application for CQ. A rockfish cooperative that submits a
complete application that is approved by NMFS will receive a CQ permit
that establishes an annual amount of primary rockfish species,
secondary species, and rockfish halibut PSC that is based on the
collective rockfish QS of the LLP licenses assigned to the rockfish
cooperative by its members. A CQ permit will list the amount of CQ, by
fishery, held by the rockfish cooperative, the members of the rockfish
cooperative and LLP licenses assigned to that rockfish cooperative, and
the vessels which are authorized to harvest fish under that CQ permit.
(i) Contents of an application for CQ. A completed application must
contain the following information:
(A) Rockfish cooperative identification. The rockfish cooperative's
legal name; the type of business entity under which the rockfish
cooperative is organized; the state in which the rockfish cooperative
is legally registered as a business entity; Tax ID number, date of
incorporation, the printed name of the rockfish cooperative's
designated representative; the permanent business address, telephone
number, fax number, and e-mail address (if available) of the rockfish
cooperative or its designated representative; and the signature of the
rockfish cooperative's designated representative and date signed.
(B) Members of the rockfish cooperative--(1) Harvester
identification. Full name, NMFS Person ID, LLP license number(s), Tax
ID or SSN, name of the vessel(s), ADF&G vessel registration number, and
USCG documentation number of vessel(s) on which the CQ issued to the
rockfish cooperative will be used.
(2) LLP holdership documentation. Provide the names of all persons,
to the individual level, holding an ownership interest in the LLP
license(s) assigned to the rockfish cooperative and the percentage
ownership each person and individual holds in the LLP license(s).
(C) Processor associates of the rockfish cooperative--(1)
Identification. Full name, NMFS Person ID, Tax ID, facility name, ADF&G
processor code, SFP vessel name, ADF&G vessel registration number, and
USCG documentation number of vessel (if a vessel), and Federal
Processor Permit for each processing facility or vessel.
(2) Processor ownership documentation. Provide the names of all
[[Page 67259]]
persons, to the individual person level, holding an ownership interest
in the processor and the percentage ownership each person and
individual holds in the processor.
(D) Additional documentation. For the cooperative application to be
considered complete, the following documents must be attached to the
application:
(1) A copy of the business license issued by the state in which the
rockfish cooperative is registered as a business entity;
(2) A copy of the articles of incorporation or partnership
agreement of the rockfish cooperative;
(3) A copy of the rockfish cooperative agreement signed by the
members of the rockfish cooperative (if different from the articles of
incorporation or partnership agreement of the rockfish cooperative)
that includes terms that specify that:
(i) Eligible rockfish processor affiliated harvesters cannot
participate in price setting negotiations except as permitted by
general antitrust law; and
(ii) The rockfish cooperative must establish a monitoring program
sufficient to ensure compliance with the Rockfish Program; and
(E) Applicant signature and certification. The applicant must sign
and date the application certifying that all information is true,
correct, and complete to the best of his/her knowledge and belief. If
the application is completed by an designated representative, then
explicit authorization signed by the applicant must accompany the
application.
(ii) Issuance of CQ. Issuance by NMFS of a CQ permit is not a
determination that the rockfish cooperative is formed or is operating
in compliance with antitrust law.
(5) Application for the rockfish limited access fishery. An
eligible rockfish harvester who wishes to participate in the rockfish
limited access fishery for a calendar year must submit an application
for the rockfish limited access fishery.
(i) Contents of application for the rockfish limited access
fishery. A completed application must contain the following
information:
(A) Applicant identification. The applicant's name, NMFS person ID
(if applicable), tax ID or social security number, date of birth or
date of incorporation, permanent business mailing address, business
telephone number, fax number, and e-mail (if available);
(B) Indicate (YES or NO) whether the applicant is an eligible
rockfish harvester;
(C) Indicate (YES or NO) whether the applicant is participating in
the rockfish limited access fishery;
(D) Vessel identification. The name of the vessel, ADF&G vessel
registration number, USCG documentation number, and LLP license
number(s) held by the applicant and used on that vessel in this
rockfish limited access fishery;
(E) LLP holdership documentation. Provide the names of all persons,
to the individual person level, holding an ownership interest in the
LLP license assigned to the rockfish limited access fishery and the
percentage ownership each person and individual holds in the LLP
license; and
(F) Signature and certification. The applicant must sign and date
the application certifying that all information is true, correct, and
complete to the best of his/her knowledge and belief. If the
application is completed by an designated representative, then explicit
authorization signed by the applicant must accompany the application.
(ii) [Reserved]
(6) Application to opt-out. An eligible rockfish harvester who
wishes to opt-out of the Rockfish Program for a calendar year with an
LLP license assigned rockfish QS in the catcher/processor sector must
submit an application to opt-out.
(i) Contents of application to opt-out. A completed application
must contain the following information:
(A) Applicant identification. The applicant's name, NMFS person ID
(if applicable), tax ID or social security number, date of birth or
date of incorporation, permanent business mailing address, business
telephone number, fax number, and e-mail (if available);
(B) Indicate (YES or NO) whether the applicant is an eligible
rockfish harvester;
(C) Indicate (YES or NO) whether the applicant is opting-out of the
Rockfish Program;
(D) Indicate (YES or NO) whether the applicant holds an LLP license
with rockfish QS assigned to the catcher/processor sector;
(E) Vessel identification. The name of the vessel, ADF&G vessel
registration number, USCG documentation number, and LLP license
number(s) held by the applicant and used on that vessel;
(F) LLP holdership documentation. Provide the names of all persons,
to the individual level, holding an ownership interest in the LLP
license and the percentage ownership each person and individual holds
in the LLP license; and
(G) Signature and certification. The applicant must sign and date
the application certifying that all information is true, correct, and
complete to the best of his/her knowledge and belief. If the
application is completed by an designated representative, then explicit
authorization signed by the applicant must accompany the application.
(ii) [Reserved]
(7) Application for the rockifsh entry level fishery. A rockfish
entry level harvester who wishes to participate in the rockfish entry
level fishery must submit an application for the rockifsh entry level
fishery.
(i) Contents of application for the entry level fishery. A
completed application must contain the following information:
(A) The applicant's name, NMFS person ID (if applicable), tax ID or
social security number (required), permanent business mailing address,
and business telephone number, fax number, and e-mail address (if
available);
(B) Indicate (YES or NO) whether applicant is a U.S. citizen, U.S.
corporation, partnership; association, or other business entity; if
YES, enter the date of birth or date of incorporation;
(C) For harvesters who are applying to participate in the entry
level fishery, enter the name, ADF&G vessel registration number, and
USCG documentation number of the vessel to be used in the entry level
fishery, and LLP license number(s) held by the applicant and used on
that vessel in the rockfish entry level fishery;
(D) Harvesters who are applying to participate in the entry level
fishery must attach a statement from an eligible entry level processor
that affirms that the harvester has a market for any rockfish delivered
by that harvester in the entry level fishery; and
(E) The applicant must sign and date the application certifying
that all information is true, correct, and complete to the best of his/
her knowledge and belief. If the application is completed by an
designated representative, then explicit authorization signed by the
applicant must accompany the application.
(ii) [Reserved]
(f) Transfer applications. A rockfish cooperative may transfer all
or part of its CQ to another rockfish cooperative. This transfer
requires the submission of an application for inter-cooperative
transfer to NMFS.
[[Page 67260]]
(1) Application for inter-cooperative transfer. NMFS will notify
the transferor and transferee once the application has been received
and approved. A transfer of CQ is not effective until approved by NMFS.
A completed transfer of CQ issued to a rockfish cooperative requires
that the following information be provided to NMFS in the application
for inter-cooperative transfer:
(i) Identification of transferor. Enter the name of the rockfish
cooperative; NMFS Person ID; name of the rockfish cooperative's
designated representative; permanent business mailing address; and
business telephone number, fax number, and e-mail address (if
available) of the rockfish cooperative designated representative. A
temporary mailing address for each transaction may also be provided.
(ii) Identification of transferee. Enter the name of the rockfish
cooperative; NMFS Person ID(s); name of rockfish cooperative's
designated representative; permanent business mailing address; and
business telephone number, fax number, and e-mail address (if
available) of the rockfish cooperative designated representative. A
temporary mailing address for each transaction may also be provided.
(iii) Identification of rockfish cooperative member. Enter the name
and NMFS Person ID of the member(s) to whose use cap the rockfish
cooperative CQ will be applied, and the amount of CQ applied to each
member for purposes of applying use caps established under the Rockfish
Program under Sec. 679.82(a).
(iv) CQ to be transferred. Identify the type and amount of Primary
species, secondary species, or rockfish halibut PSC CQ to be
transferred.
(v) Certification of transferor. The rockfish cooperative
transferor's designated representative and the eligible rockfish
processor with whom that rockfish cooperative in the catcher vessel
sector is associated must sign and date the application certifying that
all information is true, correct, and complete to the best of his or
her knowledge and belief. Also enter the printed name of the rockfish
cooperative transferor's designated representative. Explicit
authorization for the designated representative to act on behalf of the
rockfish cooperatives must accompany the application.
(vi) Certification of transferee. The rockfish cooperative
transferee's designated representative and the eligible rockfish
processor with whom that rockfish cooperative in the catcher vessel
sector is associated must sign and date the application certifying that
all information is true, correct, and complete to the best of his or
her knowledge and belief. Also enter the printed name of the rockfish
cooperative transferee's designated representative. Explicit
authorization for the designated representative to act on behalf of the
rockfish cooperatives must accompany the application.
(2) [Reserved]
(g) Transfer of processor eligibility. A person may not transfer
eligibility to receive and process under the Rockfish Program to
another person except:
(1) As provided for under Sec. 679.80(c)(2)(ii); or
(2) If an eligible rockfish processor transfers complete ownership
of a stationary floating processor or shoreside processing facility and
all processing history associated with that stationary floating
processor or shoreside processing facility to another person.
(3) Limitation on use of processor eligibility. Any person becoming
an eligible rockfish processor by transfer may not receive fish
harvested under the Rockfish Program outside of the community listed by
the original recipient of the processor eligibility in the application
to participate in the Rockfish Program under Sec. 679.80(e)(4)(ii)(C).
(4) Non-severability of processor eligibility. An eligible rockfish
processor permit may not be divided or suballocated.
(h) Maximum retainable amount (MRA) limits--(1) Rockfish
cooperative. A vessel assigned to a rockfish cooperative and fishing
under a CQ permit may harvest groundfish species not allocated as CQ up
to the amounts of the MRAs for those species as established in Table 30
to this part.
(2) Catcher/processor sector rockfish limited access fishery. An
eligible rockfish harvester in the catcher/processor rockfish limited
access fishery may harvest groundfish species other than primary
rockfish species up to the amounts of the MRAs for those species as
established in Table 30 to this part.
(3) Catcher vessel sector rockfish limited access fishery. An
eligible rockfish harvester in the catcher vessel rockfish limited
access fishery may harvest groundfish species other than primary
rockfish species up to the amounts of the MRAs for those species as
established in Table 30 to this part.
(4) Opt-out fishery. An eligible rockfish harvester in the opt-out
fishery may harvest groundfish species other than primary rockfish
species up to the amounts of the MRAs for those species as established
in Table 10 to this part.
(5) Rockfish entry level fishery. An rockfish entry level harvester
in the rockfish entry level fishery may harvest groundfish species
other than primary rockfish species up to amounts of the MRAs for those
species as established in Table 10 to this part.
(6) Maximum retainable amounts (MRA). (i) The MRA for an incidental
catch species for vessels participating in a rockfish cooperative, or a
rockfish limited access fishery, is calculated as a proportion of the
total allocated primary rockfish species on board the vessel in round
weight equivalents using the retainable percentage in Table 30 to this
part; except that:
(ii) In the catcher vessel sector, shortraker and rougheye rockfish
are incidental catch species and are limited to an aggregate MRA of 2.0
percent of the retained weight of all primary rockfish species during
that fishing trip.
(iii) Once the amount of shortraker rockfish harvested in the
catcher vessel sector is equal to 9.72 percent of the shortraker
rockfish TAC in the Central GOA regulatory area, then shortraker
rockfish may not be retained by any participant in the catcher vessel
sector.
(iv) In the rockfish limited access fishery for the catcher/
processor sector, shortraker and rougheye rockfish are incidental catch
species and are limited to an aggregate MRA of 2.0 percent of the
retained weight of all primary rockfish species during that fishing
trip.
(v) Once the amount of shortraker rockfish harvested in the
catcher/processor sector is equal to 30.03 percent of the shortraker
rockfish TAC in the Central GOA regulatory area, then shortraker
rockfish may not be retained in the rockfish limited access fishery in
the catcher/processor sector.
(vi) Once the amount of rougheye rockfish harvested in the catcher/
processor sector is equal to 58.87 percent of the rougheye rockfish TAC
in the Central GOA regulatory area, then rougheye rockfish may not be
retained in the rockfish limited access fishery in the catcher/
processor sector.
(i) Rockfish cooperative--(1) General. This section governs the
formation and operation of rockfish cooperatives. The regulations in
this section apply only to rockfish cooperatives that have formed for
the purpose of applying for and fishing with CQ issued annually by
NMFS. Members of rockfish cooperatives should consult legal counsel
before commencing any activity if the members are uncertain about the
legality under the antitrust laws of the rockfish cooperative's
proposed conduct. Membership in a rockfish cooperative is voluntary. No
person may be required to join a rockfish
[[Page 67261]]
cooperative. Upon receipt of written notification that a person is
eligible and wants to join a rockfish cooperative, that rockfish
cooperative must allow that person to join subject to the terms and
agreements that apply to the members of the cooperative as established
in the contract governing the conduct of the rockfish cooperative.
Members may leave a rockfish cooperative, but any CQ contributed by the
rockfish QS held by that member remains assigned to that rockfish
cooperative for the remainder of the calendar year. An LLP license or
vessel that has been assigned to a rockfish cooperative in the catcher/
processor sector that leaves a rockfish cooperative continues to be
subject to the sideboard limits established for that rockfish
cooperative under Sec. 679.82(d) and (f), for that calendar year. If a
person becomes the holder of an LLP license that has been assigned to a
rockfish cooperative, then that person may join that rockfish
cooperative upon receipt of that LLP license.
(2) Legal and organizational requirements. A rockfish cooperative
must meet the following legal and organizational requirements before it
is eligible to receive CQ:
(i) Each rockfish cooperative must be formed as a partnership,
corporation, or other legal business entity that is registered under
the laws of one of the 50 states or the District of Columbia;
(ii) Each rockfish cooperative must appoint an individual as
designated representative to act on the rockfish cooperative's behalf
and serve as contact point for NMFS for questions regarding the
operation of the rockfish cooperative. The designated representative
must be an individual, and may be a member of the rockfish cooperative,
or some other individual designated by the rockfish cooperative;
(iii) Each rockfish cooperative must submit a complete and timely
application for CQ;
(iv) Each rockfish cooperative must meet the mandatory requirements
established in paragraphs (i)(3) and (4) of this section applicable to
that rockfish cooperative.
(3) Mandatory requirements. The following table describes the
requirements to form a rockfish cooperative in the catcher vessel or
catcher/processor sector.
------------------------------------------------------------------------
Catcher Vessel Catcher/Processor
Requirement Sector Vessel Sector
------------------------------------------------------------------------
(i) Who may join a rockfish Only persons who are eligible rockfish
cooperative? harvesters may join a rockfish
cooperative. Persons who are not
eligible rockfish harvesters may be
employed by, or serve as the
designated representative of a
rockfish cooperative, but are not
members of the rockfish cooperative.
------------------------------------------------------------------------
(ii) What is the minimum number No minimum 2 LLP licenses
of LLP licenses that must be requirement. assigned rockfish
assigned to form a rockfish QS in the catcher/
cooperative? processor sector.
These licenses
can be held by
one or more
persons.
------------------------------------------------------------------------
(iii) Is an association with an Yes. An eligible No
eligible rockfish processor rockfish harvester
required? may only be a
member of a
rockfish
cooperative formed
in association
with an eligible
rockfish processor
to which the
harvester made the
plurality of legal
rockfish landings
assigned to the
LLP license(s)
during the
applicable
processor
qualifying period
chosen by an
eligible rockfish
processor in the
application to
participate in the
Rockfish Program.
------------------------------------------------------------------------
(iv) What if an eligible That eligible N/A
rockfish harvester did not rockfish harvester
deliver any legal rockfish can assign that
landings assigned to an LLP LLP license to any
license to an eligible rockfish
rockfish processor during a cooperative.
processor qualifying period?
------------------------------------------------------------------------
(v) What is the processor The processor N/A
qualifying period? qualifying period
is the four of
five years from
1996 through 2000
that are used to
establish the
legal rockfish
landings that are
considered for
purposes of
establishing an
association with
an eligible
rockfish
processor. Each
eligible rockfish
processor will
select a processor
qualifying period
in the application
to participate in
the Rockfish
Program. An
eligible rockfish
harvester that has
acquired the
processing history
of a shoreside
processor or
stationary
floating processor
under the
provisions of Sec.
679.80(c)(2)(ii)
must select only
one processor
qualifying period
that is applicable
to the aggregated
processing history
held by that
eligible rockfish
processor. The
processor
qualifying period
may not be changed
once selected for
that eligible
rockfish
processor,
including upon
transfer of
processor
eligibility. The
same processor
qualifying period
will be used for
all LLP licenses
to determine the
legal rockfish
landings that are
considered for
purposes of
eligible rockfish
harvesters
establishing an
association with
an eligible
rockfish
processor.
------------------------------------------------------------------------
[[Page 67262]]
(vi) Is there a minimum amount Yes. A rockfish No
of rockfish QS that must be cooperative must
assigned to a rockfish be assigned
cooperative for it to be rockfish QS that
allowed to form? represents at
least 75 percent
of all the legal
rockfish landings
that yields
Rockfish QS of
primary rockfish
species delivered
to that eligible
rockfish processor
during the four
years selected by
that processor.
------------------------------------------------------------------------
(vii) What is allocated to the CQ for primary rockfish species,
rockfish cooperative? secondary species, and rockfish
halibut PSC, based on the rockfish QS
assigned to all of the LLP licenses
that are assigned to the cooperative.
------------------------------------------------------------------------
(viii) Is this CQ an exclusive Yes, the members of the rockfish
harvest privilege? cooperative have an exclusive harvest
privilege to collectively catch this
CQ, or a cooperative can transfer all
or a portion of this CQ to another
rockfish cooperative.
------------------------------------------------------------------------
(ix) Is there a season during Yes, any vessel designated to catch CQ
which designated vessels must for a rockfish cooperative is limited
catch CQ? to catching CQ during the season
beginning on 1200 hours, A.l.t. on May
1 through 1200 hours A.l.t. on
November 15.
------------------------------------------------------------------------
(x) Can any vessel catch a No, only vessels that are named on the
rockfish cooperative's CQ? application for CQ for that rockfish
cooperative can catch the CQ assigned
to that rockfish cooperative. A vessel
may be assigned to only one rockfish
cooperative in a calendar year.
------------------------------------------------------------------------
(xi) Can the member of a No, only the rockfish cooperative's
rockfish cooperative transfer designated representative, and not
CQ individually without the individual members, may transfer its
approval of the other members CQ to another rockfish cooperative,
of the rockfish cooperative? but only if that transfer is approved
by NMFS as established under paragraph
(i) of this section.
------------------------------------------------------------------------
(xii) Can a rockfish N/A No, sideboard
cooperative in the catcher/ limits assigned
processor sector transfer its to a rockfish
sideboard limit? cooperative in
the catcher/
processor sector
is a limit
applicable to a
specific rockfish
cooperative, and
may not be
transferred
between rockfish
cooperatives.
------------------------------------------------------------------------
(xiii) Is there a hired master No, there is no N/A
requirement? hired master
requirement.
------------------------------------------------------------------------
(xiv) Can an LLP license be No. An LLP license can only be assigned
assigned to more than one to one rockfish cooperative in a
rockfish cooperative in a calendar year. An eligible rockfish
calendar year? harvester holding multiple LLP
licenses may assign different LLP
licenses to different rockfish
cooperatives subject to any other
restrictions that may apply.
------------------------------------------------------------------------
(xv) Can an eligible rockfish An eligible N/A
processor be associated with rockfish processor
more than one rockfish can only associate
cooperative? with one rockfish
cooperative per
year at each
shoreside
processor or
stationary
floating processor
owned by that
eligible rockfish
processor. An
eligible rockfish
processor who
holds more than
one processing
history based on a
transfer of
processing history
under the
provisions of Sec.
679.80(c)(2)(ii)
would be issued a
single eligible
rockfish processor
permit that
aggregates the
processing history
held by that
eligible rockfish
processor. That
eligible rockfish
processor may form
an association
with a rockfish
cooperative with
the eligible
rockfish
harvesters
eligible to form a
rockfish
cooperative based
on the aggregated
processing history
of that eligible
rockfish processor
and may receive
rockfish delivered
by that rockfish
cooperative at a
shoreside
processor or
stationary
floating processor
owned by that
eligible rockfish
processor subject
to any other
restrictions that
may apply.
------------------------------------------------------------------------
(xvi) Can an LLP license be No. Once an LLP license is assigned to
assigned to a rockfish a rockfish cooperative, any rockfish
cooperative and the rockfish QS assigned to that LLP license yields
limited access fishery or opt- CQ for that rockfish cooperative for
out fishery? the calendar year. An LLP license may
only be assigned to one Rockfish
Program fishery in a calendar year.
------------------------------------------------------------------------
(xvii) Which members may That is determined by the rockfish
harvest the rockfish cooperative contract signed by its
cooperative's CQ? members. Any violations of this
contract by one cooperative member may
be subject to civil claims by other
members of the rockfish cooperative.
------------------------------------------------------------------------
(xviii) Does a rockfish Yes, a rockfish cooperative must have a
cooperative need a contract? membership agreement or contract that
specifies how the rockfish cooperative
intends to harvest its CQ. A copy of
this agreement or contract must be
submitted with the application for CQ.
------------------------------------------------------------------------
[[Page 67263]]
(xix) What happens if the A rockfish cooperative is not
rockfish cooperative exceeds authorized to catch fish in excess of
its CQ amount? its CQ. Exceeding a CQ is a violation
of the regulations. Each member of the
rockfish cooperative is jointly and
severally liable for any violations of
the Rockfish Program regulations while
fishing under authority of a CQ
permit. This liability extends to any
persons who are hired to catch or
receive CQ assigned to a rockfish
cooperative. Each member of a rockfish
cooperative is responsible for
ensuring that all members of the
rockfish cooperative comply with all
regulations applicable to fishing
under the Rockfish Program.
------------------------------------------------------------------------
(xx) Is there a limit on how Yes, generally, a No, but a catcher/
much CQ a rockfish cooperative rockfish processor vessel
may hold or use? cooperative may is still subject
not hold or use to any vessel use
more than 30 caps that may
percent of the apply. See Sec.
aggregate primary 679.82(a) for the
rockfish species use cap
CQ assigned to the provisions that
catcher vessel apply.
sector for that
calendar year. See
Sec. 679.82(a)
for the provisions
that apply.
------------------------------------------------------------------------
(xxi) Is there a limit on how No. However, a Yes, generally, no
much CQ a vessel may harvest? vessel may not vessel may
catch more CQ than harvest more than
the CQ assigned to 60 percent of the
that rockfish aggregate primary
cooperative for rockfish species
which it is TAC assigned to
authorized to the catcher/
fish. processor sector
for that calendar
year, unless
exempt from this
restriction. See
Sec. 679.82(a)
for the
provisions that
apply.
------------------------------------------------------------------------
(xxii) If my vessel is fishing (A) Any vessel authorized to harvest
in a directed flatfish fishery the CQ assigned to a rockfish
in the Central GOA and I catch cooperative must count any catch of
groundfish and halibut PSC, primary rockfish species, secondary
does that count against the species, or rockfish halibut PSC
rockfish cooperative's CQ? against that rockfish cooperative's CQ
from May 1 until November 15, or until
the effective date of a rockfish
cooperative termination of fishing
declaration that has been approved by
NMFS.
(B) Groundfish harvests would not be
debited against the rockfish
cooperative's CQ if the vessel is not
authorized to harvest CQ. In this
case, any catch of halibut would be
attributed to the halibut PSC limit
for that directed target fishery and
gear type.
------------------------------------------------------------------------
(xxiii) Can my rockfish The rockfish cooperatives formed under
cooperative negotiate prices the Rockfish Program are intended to
for me? conduct and coordinate harvest
activities for their members. Rockfish
cooperatives formed under the Rockfish
Program are subject to existing
antitrust laws. Collective price
negotiation by a rockfish cooperative
must be conducted in accordance with
existing antitrust laws.
------------------------------------------------------------------------
(xxiv) Are there any special Yes, each year a rockfish cooperative
reporting requirements? must submit an annual rockfish
cooperative report to NMFS by December
15 of each year. The annual rockfish
cooperative report may be made
available to NMFS by mailing a copy to
NMFS: Regional Administrator, P.O. Box
21668, Juneau, AK, 99802.
------------------------------------------------------------------------
(xxv) What is required in the The annual rockfish cooperative report
annual rockfish cooperative must include at a minimum:
report?
(A) The rockfish cooperative's CQ,
sideboard limit (if applicable), and
any rockfish sideboard fishery
harvests made by the vessels in the
rockfish cooperative on a vessel-by-
vessel basis;
(B) The rockfish cooperative's actual
retained and discarded catch of CQ,
and sideboard limit on an area-by-area
and vessel-by-vessel basis;
(C) A description of the method used by
the rockfish cooperative to monitor
fisheries in which rockfish
cooperative vessels participated;
(D) A description of any civil actions
taken by the rockfish cooperative in
response to any members that exceeded
their allowed catch.
------------------------------------------------------------------------
(4) Additional mandatory requirements--(i) Calculation of minimum
legal rockfish landings for forming a rockfish cooperative. If an
eligible rockfish harvester holds an LLP license with rockfish QS for
the catcher vessel sector that does not have any legal rockfish
landings associated with an eligible rockfish processor from January 1,
1996, through December 31, 2000, during the fishery seasons established
in Table 28 to this part, that eligible rockfish harvester may join any
rockfish cooperative with that LLP license. Any such eligible rockfish
harvester that joins a rockfish cooperative may not be considered as
contributing an amount of Rockfish QS necessary to meet a minimum of 75
percent of the legal rockfish landings that yielded Rockfish QS
delivered to that eligible rockfish processor during the four calendar
years selected by that eligible rockfish processor for the purposes of
establishing the rockfish cooperative.
(ii) Restrictions on fishing CQ assigned to a rockfish cooperative.
A person fishing CQ assigned to a rockfish cooperative must maintain a
copy of the CQ permit onboard any vessel that is being used to harvest
any primary rockfish species, or secondary species, or that uses any
rockfish halibut PSC.
(iii) Transfer of CQ between rockfish cooperatives. Rockfish
cooperatives may transfer CQ during a calendar year with the following
restrictions:
(A) A rockfish cooperative may only transfer CQ to another rockfish
cooperative;
(B) A rockfish cooperative may only receive CQ from another
rockfish cooperative;
(C) A rockfish cooperative in the catcher vessel sector may not
transfer any CQ to a rockfish cooperative in the catcher/processor
sector;
(D) A rockfish cooperative receiving primary rockfish species CQ by
transfer must assign that primary rockfish species CQ to a member(s) of
the rockfish cooperative for the purposes of applying the use caps
established under Sec. 679.82(a). Secondary species or halibut PSC CQ
is not assigned to a specific member of a rockfish cooperative;
[[Page 67264]]
(E) A rockfish cooperative may not transfer any sideboard limit
assigned to it; and
(F) A rockfish cooperative may not receive any CQ by transfer after
NMFS has approved a rockfish cooperative termination of fishing
declaration that was submitted by that rockfish cooperative.
(5) Use of CQ. (i) A rockfish cooperative in the catcher vessel
sector may not use a primary rockfish species CQ in excess of the
amounts specified in Sec. 679.82(a).
(ii) Rockfish cooperative primary rockfish species CQ transferred
to another rockfish cooperative will apply to the use caps of a named
member(s) of the rockfish cooperative receiving the CQ, as specified in
the transfer application.
(A) Each pound of CQ must be assigned to a member of the rockfish
cooperative receiving the CQ for purposes of use cap calculations. No
member of a rockfish cooperative may exceed the CQ use cap applicable
to that member.
(B) For purposes of CQ use cap calculation, the total amount of CQ
held or used by a person is equal to all tons of CQ derived from the
Rockfish QS held by that person and assigned to the rockfish
cooperative and all tons of CQ assigned to that person by the rockfish
cooperative from approved transfers.
(C) The amount of rockfish QS held by a person, and CQ derived from
that rockfish QS is calculated using the individual and collective use
cap rule established in Sec. 679.82(a).
(6) Successors-in-interest. If a member of a rockfish cooperative
dies (in the case of an individual) or dissolves (in the case of a
business entity), the LLP license(s) and associated rockfish QS held by
that person will be transferred to the legal successor-in-interest
under the procedures described at Sec. 679.4(k)(6)(iv)(A). However,
the CQ derived from that rockfish QS and assigned to the rockfish
cooperative for that year from that person remains under the control of
the rockfish cooperative for the duration of that calendar year. Each
rockfish cooperative is free to establish its own internal procedures
for admitting a successor-in-interest during the fishing season to
reflect the transfer of an LLP license and associated rockfish QS, or
the transfer of the processor eligibility due to the death or
dissolution of a rockfish cooperative member or associated eligible
rockfish processor.
Sec. 679.82 Rockfish Program use caps and sideboard limits.
(a) Use caps--(1) General. Use caps limit the amount of rockfish QS
and CQ of primary rockfish species that may be held or used by an
eligible rockfish harvester, and the amount of primary rockfish species
TAC that may be received, by an eligible rockfish processor. Use caps
do not apply to secondary species or halibut PSC CQ. Use caps may not
be exceeded unless the entity subject to the use cap is specifically
allowed to exceed a cap according to the criteria established under
this paragraph (a) or by an operation of law. There are three types of
use caps: person use caps; vessel use caps; and processor use caps.
Person use caps limit the maximum amount of aggregate rockfish QS a
person may hold and the maximum amount of aggregate primary rockfish
species CQ that a person may hold or use. Person use caps apply to
eligible rockfish harvesters and rockfish cooperatives. Vessel use caps
limit the maximum amount of aggregate primary rockfish species CQ that
a vessel operating as a catcher/processor may harvest. Processor use
caps limit the maximum amount of aggregate primary rockfish species
that may be received or processed by an eligible rockfish processor.
All rockfish QS use caps are based on the aggregate primary rockfish
species initial rockfish QS pool established by NMFS.
(2) Eligible rockfish harvester use cap. An eligible rockfish
harvester may not individually or collectively hold or use more than:
(i) Five (5.0) percent of the aggregate rockfish QS initially
assigned to the catcher vessel sector and resulting CQ unless that
eligible rockfish harvester qualifies for an exemption to this use cap
under paragraph (a)(6) of this section;
(ii) Twenty (20.0) percent of the aggregate rockfish QS initially
assigned to the catcher/processor sector and resulting CQ unless that
eligible rockfish harvester qualifies for an exemption to this use cap
under paragraph (a)(6) of this section.
(3) CQ use cap for rockfish cooperatives in the catcher vessel
sector. A rockfish cooperative may not hold or use an amount of CQ that
is greater than the amount derived from 30.0 percent of the aggregate
rockfish QS initially assigned to the catcher vessel sector unless the
sum of the aggregate rockfish QS held by the eligible members of that
rockfish cooperative prior to June 6, 2005 exceeds this use cap.
(4) CQ use cap for a vessel in the catcher/processor sector. (i) A
vessel harvesting CQ in the catcher/processor sector may not harvest an
amount of CQ that is greater than the amount derived from 60.0 percent
of the aggregate rockfish QS initially assigned to the catcher/
processor sector; unless:
(ii) the CQ harvested by a vessel is not greater than the amount of
CQ derived from the rockfish QS assigned to the LLP licence(s) that was
used on that vessel prior to June 6, 2005; and
(iii) This amount is greater than the CQ use cap for a vessel in
the catcher/processor sector.
(5) Primary rockfish species use cap for eligible rockfish
processors. (i) An eligible rockfish processor may not receive or
process in excess of 30.0 percent of the aggregate primary rockfish
species TAC, including CQ, assigned to the catcher vessel sector unless
that eligible rockfish processor is receiving or processing an amount
of aggregate primary rockfish species TAC that is not greater than the
sum of the aggregate rockfish CQ derived from the amount of Rockfish QS
initially assigned to those eligible rockfish harvesters eligible to
form a rockfish cooperative in association with that eligible rockfish
processor.
(ii) The amount of aggregate primary rockfish species TAC that is
received by an eligible rockfish processor is calculated based on the
sum of all aggregate primary rockfish species TAC, including CQ,
received or processed by that eligible rockfish processor and the
aggregate primary rockfish species TAC received or processed by any
person in which that eligible rockfish processor has a ``Ten percent or
greater direct or indirect ownership interest for purposes of the
Rockfish Program'' as that term is defined in Sec. 679.2.
(6) Use cap exemptions--(i) Rockfish QS. An eligible rockfish
harvester may receive an initial allocation of aggregate rockfish QS in
excess of the use cap in that sector only if that rockfish QS is
assigned to LLP license(s) held by that eligible rockfish harvester
prior to June 6, 2005, and at the time of application to participate in
the Rockfish Program.
(ii) Transfer limitations. (A) An eligible rockfish harvester that
receives an initial allocation of aggregate rockfish QS that exceeds
the use cap listed in paragraph (a)(2) of this section shall not
receive any rockfish QS by transfer unless and until that person's
holdings of aggregate rockfish QS in that sector are reduced to an
amount below the use cap specified in paragraph (a)(2) of this section.
(B) If an eligible rockfish harvester receives an initial
allocation of aggregate rockfish QS that exceeds the use cap listed in
paragraph (a)(2) of this section,
[[Page 67265]]
and that eligible rockfish harvester transfers rockfish QS to another
person, and the amount of aggregate rockfish QS held by that eligible
rockfish harvester after the transfer is greater than the use cap
established in paragraph (a)(2) of this section, that eligible rockfish
harvester may not hold more than the amount of aggregate rockfish QS
remaining after the transfer.
(C) An eligible rockfish harvester that receives an initial
allocation of aggregate rockfish QS that exceeds the use cap listed in
paragraph (a)(2) of this section may not receive any rockfish QS by
transfer or have any CQ attributed to that eligible rockfish harvester
by a rockfish cooperative unless and until that person's holdings of
aggregate rockfish QS in that sector are reduced to an amount below the
use cap specified in paragraph (a)(2) of this section.
(iii) CQ. A rockfish cooperative may use CQ in excess of the use
cap in that sector only if that CQ is derived from the rockfish QS
assigned to an LLP license that was held by an eligible rockfish
harvester prior to June 6, 2005 and that eligible rockfish harvester is
eligible to join that cooperative.
(b) Rockfish limited access fishery--(1) General. (i) An eligible
rockfish harvester may use an LLP license and assigned rockfish QS in
the appropriate rockfish limited access fishery only if:
(A) That person submitted a complete and timely application for the
rockfish limited access fishery that is approved by NMFS; or
(B) That LLP is not assigned to a rockfish cooperative for that
calendar year, and that person has not submitted a complete and timely
application to opt-out of the Rockfish Program that is approved by
NMFS.
(ii) [Reserved]
(2) Limited access fishery sectors. (i) If an LLP license with
rockfish QS in the catcher vessel sector is assigned to a limited
access fishery, it is assigned to the catcher vessel rockfish limited
access fishery.
(ii) If an LLP license with a rockfish QS in the catcher/processor
sector is assigned a limited access fishery, it is assigned to the
catcher/processor rockfish limited access fishery.
(3) Primary rockfish species harvest limit. All vessels that are
participating in a rockfish limited access fishery may harvest an
amount of primary rockfish species not greater than the TAC assigned to
that primary rockfish species for the rockfish limited access fishery
in that sector.
(4) Secondary species allocations. Secondary species shall be
managed based on an MRA as established under Table 30 to this part.
(5) Rockfish halibut PSC allocations. Halibut caught by vessels in
the rockfish limited access fishery shall be accounted against the
halibut PSC allocation to the deep water species fishery complex for
trawl gear for that seasonal apportionment. If the halibut PSC limit in
the deep water fishery complex has been reached or exceeded for that
seasonal apportionment, the rockfish limited access fishery will be
closed until deep water species fishery complex halibut PSC is
available for that sector.
(6) Opening of the rockfish limited access fishery. The Regional
Administrator maintains the authority to not open a rockfish limited
access fishery if he deems it appropriate for conservation or other
management measures. Factors such as the total allocation, anticipated
harvest rates, and number of participants will be considered in making
any such decision.
(c) Opt-out fishery. An eligible rockfish harvester who holds an
LLP license and who submits an application to opt-out with that LLP
licence that is subsequently approved by NMFS may not fish for that
fishing year in any directed fishery for any primary rockfish species
in the Central GOA and adjacent waters open by the State of Alaska for
which it adopts the applicable Federal fishing season for that species
with any vessel named on that LLP license.
(d) Sideboard limitations--General. The regulations in this section
restrict the holders of LLP licenses eligible to receive rockfish QS
from using the increased flexibility provided by the Rockfish Program
to expand their level of participation in other groundfish fisheries.
These limitations are commonly known as ``sideboards.''
(1) Notification of affected vessel owners and LLP license holders.
After NMFS determines which vessels and LLP licenses meet the criteria
described in paragraphs (d) through (h) of this section, NMFS will
inform each vessel owner and LLP license holder in writing of the type
of sideboard limitation and issue a revised Federal Fisheries Permit
and/or LLP license that displays the limitation on the face of the
permit or LLP license.
(2) Appeals. A vessel owner or LLP license holder who believes that
NMFS has incorrectly identified his or her vessel or LLP license as
meeting the criteria for a sideboard limitation may make a contrary
claim and provide evidence to NMFS. All claims must be submitted in
writing to the RAM Program, Alaska Region, NMFS, P.O. Box 21668,
Juneau, AK 99802-1668, together with any documentation or evidence
supporting the request within 30 days of being notified by NMFS of the
sideboard limitation. If NMFS finds the claim is unsupported, the claim
will be denied in an Initial Administrative Determination (IAD). The
affected persons may appeal this IAD using the procedures described at
Sec. 679.43.
(3) Classes of sideboard restrictions. There are several types of
sideboard restrictions that apply under the Rockfish Program:
(i) General sideboard restrictions as described under this
paragraph (d);
(ii) Catcher vessel sideboard restrictions as described under
paragraph (e) of this section;
(iii) Catcher/processor rockfish cooperative sideboard restrictions
as described under paragraph (f) of this section;
(iv) Catcher/processor limited access sideboard restrictions as
described under paragraph (g) of this section; and
(v) Catcher/processor opt-out sideboard restrictions as described
under paragraph (h) of this section.
(4) General sideboard restrictions. General sideboard restrictions
apply to fishing activities during July 1 through July 31 of each year
in each fishery as follows:
(i) Directed fishing for Pacific ocean perch, pelagic shelf
rockfish, and northern rockfish in the regulatory area of the Western
GOA and adjacent waters open by the State of Alaska for which it adopts
a Federal fishing season;
(ii) Directed fishing for Pacific ocean perch, pelagic shelf
rockfish, and northern rockfish in the Western Yakutat District and
adjacent waters open by the State of Alaska for which it adopts a
Federal fishing season;
(iii) Directed fishing for the following species in the West
Yakutat District, Central GOA, and Western GOA and adjacent waters open
by the State of Alaska for which it adopts the applicable Federal
fishing season for that species based on the use of halibut PSC:
(A) Rex sole;
(B) Deep water flatfish;
(C) Arrowtooth flounder;
(D) Shallow water flatfish;
(E) Flathead sole; and
(iv) Directed fishing by a vessel in the catcher vessel sector for
Pacific cod in the BSAI and adjacent waters open by the State of Alaska
for which it adopts a Federal fishing season.
(5) Vessels and LLP licenses subject to general and halibut PSC
sideboard limitations. (i) The sideboard fishing limitations described
in paragraph (d) of this section apply both to the fishing
[[Page 67266]]
vessel itself and to any LLP license derived in whole or in part from
the history of that vessel. The sideboard limitations apply to any
vessel named on that LLP license. These sideboard restrictions apply
even if an LLP license holder did not submit an application to
participate in the Rockfish Program but that LLP license is otherwise
eligible to receive rockfish QS under the Rockfish Program based on
legal rockfish landings.
(ii) Except as described in paragraph (d)(5)(iii) of this section,
the owner of any vessel that NMFS has determined meets one of the
following criteria is subject to groundfish directed fishing sideboard
limits and halibut PSC sideboard limits issued under this paragraph
(d):
(A) Any vessel whose legal rockfish landings could generate
rockfish QS;
(B) Any LLP license under whose authority legal rockfish landings
were made;
(C) Any vessel named on an LLP license that was generated in whole
or in part by the legal rockfish landings of a vessel meeting the
criteria in paragraph (d)(5)(ii)(B) of this section.
(iii) Any AFA vessel that is not exempt from GOA groundfish
sideboards under the AFA as specified under Sec. 679.63(b)(1)(i)(B) is
exempt from the sideboard limits in this paragraph (d).
(6) Determination of general sideboard ratios. (i) Separate
sideboard ratios for each rockfish sideboard fishery are established
for the catcher vessel and the catcher/processor sectors. The general
sideboard ratio for each fishery is determined according to the
following table:
------------------------------------------------------------------------
The Sideboard
For the Limit for the The Sideboard
Management Area In the directed Catcher/ Limit for the
of the... fishery for... Processor Sector Catcher Vessel
is... Sector is...
------------------------------------------------------------------------
West Yakutat Pelagic Shelf 72.4 percent of 1.7 percent of
District Rockfish the TAC the TAC
------------------------------------------------------
Pacific ocean 76.0 percent of 2.9 percent of
perch the TAC the TAC
------------------------------------------------------------------------
Western GOA Pelagic Shelf 63.3 percent of 0.0 percent of
Rockfish the TAC the TAC
------------------------------------------------------
Pacific ocean 61.1 percent of (Not released
perch the TAC due to
confidentiality
requirements on
fish ticket
data
established by
the State of
Alaska).
------------------------------------------------------
Northern Rockfish 78.9 percent fo 0.0 percent of
the TAC the TAC
------------------------------------------------------------------------
BSAI Pacific cod N/A 0.0 percent of
the TAC
------------------------------------------------------------------------
(ii) Each rockfish cooperative in the catcher/processor sector will
be assigned a sideboard limit for that rockfish cooperative as a
percentage of the general sideboard ratio for that fishery.
(iii) The sideboard ratios that are applicable for each general
sideboarded fishery for a rockfish cooperative in the catcher/processor
sector are calculated by dividing the aggregate retained catch of that
fishery, from July 1 through July 31 in each year from 1996 through
2002, caught by LLP licenses assigned to that rockfish cooperative that
are subject to directed fishing closures under this paragraph (d), by
the total retained catch from July 1 through July 31 in each year from
1996 through 2002 caught by all groundfish vessels in that sector.
(7) Management of annual sideboard limits--(i) Sideboard directed
fishing allowance. (A) If the Regional Administrator determines that an
annual sideboard limit for a general rockfish sideboard fishery has
been or will be reached, the Regional Administrator may establish a
directed fishing allowance for the species or species group applicable
only to the group of vessels to which the general sideboard limit
applies. A directed fishing allowance that is established for a
rockfish cooperative in the catcher/processor sector may be fished only
by that rockfish cooperative to which it is assigned.
(B) If the Regional Administrator determines that a sideboard limit
is insufficient to support a directed fishing allowance for that
species or species group, then the Regional Administrator may set the
directed fishing allowance to zero for that species or species group
for that sector or rockfish cooperative, as applicable.
(ii) Directed fishing closures. Upon attainment of a general
directed fishing sideboard limit, the Regional Administrator will
publish notification in the Federal Register prohibiting directed
fishing for the species or species group in the specified sector,
regulatory area, or district.
(8) Determination of halibut PSC sideboard ratios. (i) Sideboards
for halibut PSC are established for the catcher vessel and the catcher/
processor sectors separately. Sideboard limits for halibut PSC are
calculated for each rockfish cooperative in the catcher/processor
sector separately. The halibut PSC sideboard limit for each sector is
established according to the following table:
------------------------------------------------------------------------
the annual Deep-water the annual Shallow-
For the following complex halibut PSC water complex halibut
Sector... Sideboard Limit in the PSC Sideboard Limit in
GOA is... the GOA is...
------------------------------------------------------------------------
Catcher/Processor 3.99 percent of the GOA 0.54 percent of the
Sector annual halibut GOA annual halibut
mortality limit mortality limit
------------------------------------------------------------------------
Catcher Vessel Sector 1.08 percent of the GOA 6.32 percent of the
annual halibut GOA annual halibut
mortality limit mortality limit
------------------------------------------------------------------------
------------------------------------------------------------------------
(ii) Each rockfish cooperative in the catcher/processor sector will
be assigned a percentage of each halibut PSC sideboard limit
established under paragraph (d)(8) of this section based on the
following calculation:
(A) The aggregate halibut PSC used in the deep-water complex from
July 1 through July 31 in each year from 1996 through 2002 by LLP
licenses assigned to that rockfish cooperative that are subject to
directed fishing closures under this paragraph (d), except primary
rockfish fisheries in the Central GOA,
[[Page 67267]]
divided by 3.99 percent of the GOA annual halibut mortality limit; and
(B) The aggregate halibut PSC used in the shallow-water complex
from July 1 through July 31 in each year from 1996 through 2002 by LLP
licenses assigned to that rockfish cooperative that are subject to
directed fishing closures under this paragraph (d), divided by 0.54
percent fo the GOA annual halibut mortality limit.
(C) Catcher/processor sector participants that are not in a
rockfish cooperative will receive the aggregate portion of the deep
water halibut PSC sideboard limit and shallow-water halibut PSC
sideboard limit not assigned to rockfish cooperatives.
(9) Management of halibut PSC sideboard limits--(i) Halibut PSC
sideboard limits. The resulting halibut PSC sideboard limits
established under this paragraph (d) will be published in the annual
GOA groundfish harvest specification notice and expressed in metric
tons.
(A) If the Regional Administrator determines that a halibut PSC
sideboard limit is sufficient to support a directed fishery for
groundfish specified under paragraph (d)(4)(iii) of this section for a
particular sector, then the Regional Administrator may establish a
halibut PSC sideboard limit for the species complex applicable only to
the group of vessels in that sector to which the halibut PSC sideboard
limit applies. A halibut PSC sideboard limit that is established for a
rockfish cooperative in the catcher/processor sector may be fished only
by that rockfish cooperative in the catcher/processor sector to which
it is assigned.
(B) If the Regional Administrator determines that a halibut PSC
sideboard limit is insufficient to support a directed fishery for a
groundfish fishery specified under paragraph (d)(4)(iii) of this
section for a particular sector then the Regional Administrator may
close directed fishing by that sector or rockfish cooperative in the
catcher/processor sector.
(ii) Directed fishing closures. Upon determining that a halibut PSC
sideboard limit is or will be reached, the Regional Administrator will
publish notification in the Federal Register prohibiting directed
fishing for the species or species complex in the specified sector,
rockfish cooperative in the catcher/processor sector, regulatory area,
or district. The following specific directed fishing closures will be
implemented if a halibut PSC sideboard limit is reached:
(A) If the shallow-water halibut PSC sideboard limit for a sector
or rockfish cooperative in the catcher/processor sector is reached,
then NMFS will close directed fishing in that management area for:
(1) Flathead sole; and
(2) Shallow water flatfish.
(B) If the deep-water halibut PSC sideboard limit is reached for a
sector or rockfish cooperative in the catcher/processor sector, then
NMFS will close directed fishing in that management area for:
(1) Rex sole;
(2) Deep water flatfish; and
(3) Arrowtooth flounder.
(iii) Halibut PSC accounting. Any halibut mortality occurring under
a CQ permit or in a rockfish limited access fishery will not apply
against the halibut PSC sideboard limits established paragraph (d)(8)
of this sector.
(e) Sideboard provisions for catcher vessels--(1) General. In
addition to the sideboard provisions that apply under paragraph (d) of
this section, except as described in paragraph (d)(5)(iii) of this
section, the following additional sideboards apply to catcher vessels.
(2) Catcher vessels subject to catcher vessel sideboard limits. Any
catcher vessel that NMFS has determined meets any of the following
criteria is subject to the provisions under this paragraph (e):
(i) Any catcher vessel whose legal rockfish landings could be used
to generate rockfish QS for the catcher vessel sector in the Rockfish
Program;
(ii) Any catcher vessel named on an LLP license under which catch
history could be used to qualify that LLP license for eligibility in
the Rockfish Program; or
(iii) Any catcher vessel named on an LLP license that was generated
in whole or in part by the legal rockfish landings of a catcher vessel.
(3) Prohibition for directed fishing in BSAI groundfish fisheries
during July. Vessels subject to the provisions of this paragraph (e)
may not participate in directed fishing in the BSAI and adjacent waters
open by the State of Alaska for which it adopts the applicable Federal
fishing season for that species from July 1 through July 31 in any of
the following directed fisheries:
(i) Alaska plaice;
(ii) Arrowtooth flounder;
(iii) Flathead sole;
(iv) Other flatfish;
(v) Pacific ocean perch;
(vi) Rock sole; and
(vii) Yellowfin sole.
(f) Sideboard provision--catcher/processor rockfish cooperative
provisions--(1) General. In addition to the sideboard provisions that
apply under paragraph (d) of this section, the following additional
sideboard limits under this paragraph (f) apply to catcher/processor
vessels and LLP licenses that are assigned to a rockfish cooperative in
the catcher/processor sector during a calendar year.
(2) Vessels subject to rockfish cooperative sideboard provisions.
Any vessel that NMFS has determined meets any of the following criteria
is subject to groundfish sideboard directed fishing closures issued
under this paragraph (f):
(i) Any catcher/processor vessel whose legal rockfish landings has
been used to qualify for the Rockfish Program and the vessel named on
that LLP license is assigned to a rockfish cooperative;
(ii) Any catcher/processor vessel named on an LLP license under
which catch history has been used to qualify that LLP license for the
Rockfish Program and that LLP license is used in a rockfish
cooperative; or
(iii) Any catcher/processor vessel that has been designated in an
application for CQ.
(3) Prohibition from fishing in BSAI groundfish fisheries. A vessel
subject to a rockfish cooperative sideboard provision under this
paragraph (f) may not participate in directed groundfish fisheries in
the BSAI and adjacent waters open by the State of Alaska for which it
adopts the applicable Federal fishing season for that species between
July 1 and July 14 except for sablefish harvested under the IFQ Program
and pollock.
(4) Prohibitions for fishing in GOA groundfish fisheries. A vessel
subject to a rockfish cooperative sideboard provision under this
paragraph (f) may not participate in any directed groundfish fishery
the GOA and adjacent waters open by the State of Alaska for which it
adopts the applicable Federal fishing season for that species except
sablefish harvested under the IFQ Program and groundfish harvested
under a CQ permit in the GOA, until the earlier of:
(i) From July 1 through July 14 if:
(A) Any vessel in the rockfish cooperative does not meet monitoring
standards established under paragraph (f)(4)(iii) of this section; and
(B) The rockfish cooperative has harvested any CQ prior to July 1;
or
(ii) From July 1 until 90 percent of the rockfish cooperative's
primary rockfish species CQ has been harvested if:
(A) Any vessel in the rockfish cooperative does not meet monitoring
standards established under paragraph (f)(4)(iii) of this section; and
[[Page 67268]]
(B) The rockfish cooperative has not harvested any CQ prior to July
1.
(iii) The prohibition on fishing in any directed groundfish fishery
in the GOA and adjacent waters open by the State of Alaska for which it
adopts the applicable Federal fishing season for that species, except
sablefish harvested under the IFQ Program, does not apply if all
vessels in the rockfish cooperative maintain an adequate monitoring
plan during all fishing for any CQ or any directed sideboard fishery as
required under Sec. 679.84(c) through (e).
(g) Sideboard provisions--catcher/processor limited access
provisions--(1) General. In addition to the sideboard provisions that
apply under paragraph (d) of this section, the following sideboard
limits under this paragraph (g) apply to any catcher/processor vessels
and LLP licenses that are used in the rockfish limited access fishery
for the catcher/processor sector.
(2) Vessels subject to rockfish limited access fishery sideboard
provisions. Any vessel that NMFS has determined meets any of the
following criteria is subject to groundfish sideboard directed fishing
closures issued under this paragraph (g):
(i) Any catcher/processor vessel named on an LLP license whose
legal rockfish landings were used to qualify for the Rockfish Program
and the vessel named on that LLP license is assigned to a catcher/
processor rockfish limited access fishery;
(ii) Any catcher/processor vessel named on an LLP license under
which catch history was used to qualify that LLP license for the
Rockfish Program and that LLP license is used in the catcher/processor
rockfish limited access fishery;
(iii) Any catcher/processor vessel designated in an application for
the rockfish limited access fishery for the catcher/processor sector;
or
(iv) Any vessel named on an LLP license with legal rockfish
landings in the catcher/processor sector if that LLP license is not
specified in an application for CQ or an application to opt-out.
(3) Prohibition from directed fishing in GOA and BSAI groundfish
fisheries. If a vessel named on an LLP license used in the rockfish
limited access fishery has been assigned rockfish QS greater than an
amount equal to 5 percent of the Pacific ocean perch rockfish QS
allocated to the catcher/processor sector, then that vessel may not
participate in any:
(i) GOA groundfish fishery and adjacent waters open by the State of
Alaska for which it adopts the applicable Federal fishing season for
that species other than the rockfish limited access fishery and
sablefish harvested under the IFQ Program; or
(ii) BSAI groundfish fishery and adjacent waters open by the State
of Alaska for which it adopts the applicable Federal fishing season for
that species other than sablefish harvested under the IFQ Program or
pollock, from July 1 until 90 percent of the Central GOA Pacific ocean
perch that is allocated to the rockfish limited access fishery for the
catcher/processor sector has been harvested.
(h) Sideboard provisions--catcher/processor opt-out provisions--(1)
General. In addition to the sideboard provisions that apply under
paragraph (d) of this section, the following sideboards under this
paragraph (h) apply to any catcher/processor vessels and LLP license
designated in an application to opt-out that is subsequently approved
by NMFS.
(2) Vessels subject to opt-out sideboard provisions. (i) Any
catcher/processor vessel whose legal rockfish landings were used to
qualify for the Rockfish Program and for which the vessel named on that
LLP license is assigned to the opt-out fishery;
(ii) Any catcher/processor vessel named on an LLP license under
which catch history was used to qualify that LLP license for the
Rockfish Program and that LLP license is used in the opt-out fishery;
or
(iii) Any catcher/processor vessel designated in an application to
opt-out.
(3) Prohibitions on Central GOA rockfish directed harvest by opt-
out vessels. Any vessel that is subject to the opt-out sideboard
restriction under this paragraph (h) is prohibited from directed
fishing for the following species in the following management areas:
(i) Central GOA northern rockfish and adjacent waters open by the
State of Alaska for which it adopts a Federal fishing season;
(ii) Central GOA Pacific ocean perch and adjacent waters open by
the State of Alaska for which it adopts a Federal fishing season; and
(iii) Central GOA pelagic shelf rockfish and adjacent waters open
by the State of Alaska for which it adopts a Federal fishing season.
(4) Prohibitions on directed fishing in GOA groundfish fisheries
without previous participation. (i) Any vessel that is subject to the
opt-out sideboard restriction under paragraph (c) of this section is
prohibited from directed fishing in any groundfish fishery in the GOA
and adjacent waters open by the State of Alaska for which it adopts the
applicable Federal fishing season for that species (except sablefish
harvested under the IFQ Program) from July 1 through July 14 of each
year if that vessel has not participated in that directed groundfish
fishery in any two years from 1996 through 2002 during the following
time periods:
(A) June 30, 1996 through July 6, 1996;
(B) June 29, 1997 through July 5, 1997;
(C) June 28, 1998 through July 4, 1998;
(D) July 4, 1999 through July 10, 1999;
(E) July 8, 2000 through July 15, 2000;
(F) July 1, 2001 through July 7, 2001; and
(G) June 30, 2002 through July 6, 2002.
(ii) For purposes of this paragraph (h), participation in a fishery
in Statistical Area 650 during a time period specified in paragraph
(h)(4)(i) of this section shall be considered as participation in that
same fishery in Statistical Area 640 during that time period.
Sec. 679.83 Rockfish Program entry level fishery.
(a) Rockfish entry level fishery--(1) General. A rockfish entry
level harvester and rockfish entry level processor may participate in
the rockfish entry level fishery as follows:
(i) Trawl catcher vessels. Trawl catcher vessels participating in
the rockfish entry level fishery may collectively harvest, prior to
September 1, an amount not greater than 50 percent of the total
allocation to the rockfish entry level fishery as calculated under
Sec. 679.81(ab)(2). Allocations to trawl catcher vessels shall be made
first from the allocation of Pacific ocean perch available to the
rockfish entry level fishery. If the amount of Pacific ocean perch
available for allocation is less than the total allocation allowable
for trawl catcher vessels in the rockfish entry level fishery, then
northern rockfish and pelagic shelf rockfish shall be allocated to
trawl catcher vessels.
(ii) Longline gear vessels. Longline gear vessels participating in
the rockfish entry level fishery may collectively harvest, prior to
September 1, an amount not greater than 50 percent of the total
allocation to the rockfish entry level fishery as calculated under
Sec. 679.81(a)(2). Allocations of Pacific ocean perch, northern
rockfish, and pelagic shelf rockfish to longline gear vessels shall be
made after the allocation to trawl catcher vessels.
(iii) Secondary species allocations. Secondary species shall not be
allocated
[[Page 67269]]
to the rockfish entry level fishery. Secondary species shall be managed
based on a MRA for the target species as described in Table 10 to this
part.
(iv) Halibut PSC allocations--trawl vessels. Halibut PSC from trawl
vessels in the rockfish entry level fishery shall be accounted against
the allocation to the deep water species fishery complex for that
seasonal apportionment. If the Halibut PSC allocation in the deep water
fishery complex has been achieved or exceeded for that seasonal
apportionment, the rockfish entry level fishery for trawl vessels will
be closed until deep water species fishery complex halibut PSC is
available.
(v) Halibut PSC allocations--longline gear vessels. Halibut PSC
from longline gear vessels in the rockfish entry level fishery shall be
accounted against the allocation to the other non-trawl fishery
category for that seasonal apportionment. If the Halibut PSC allocation
in the other non-trawl fishery category has been reached or exceeded
for that seasonal apportionment, the rockfish entry level fishery for
longline gear vessels will be closed until deep water species fishery
complex halibut PSC is available.
(2) Reallocation among trawl and longline gear vessels. Any
allocation of Pacific ocean perch, northen rockfish, or pelagic shelf
rockfish that has not been harvested by 1200 hours, A.l.t. on September
1, may be harvested by either trawl or longline gear vessels in the
rockfish entry level fishery.
(3) Opening of the rockfish entry level fishery. The Regional
Administrator maintains the authority to not open the rockfish entry
level fishery if he deems it appropriate for conservation or other
management measures. Factors such as the total allocation, anticipated
harvest rates, and number of participants will be considered in making
any such decision.
(b) [Reserved]
Sec. 679.84 Rockfish Program recordkeeping, permits, monitoring, and
catch accounting.
(a) Recordkeeping and reporting. See Sec. 679.5(r).
(b) Permits. See Sec. 679.4(m).
(c) Catch monitoring requirements for catcher/processors assigned
to a rockfish cooperative or rockfish limited access fishery. The
requirements under paragraphs (c)(1) through (9) of this section apply
to any catcher/processor vessel participating in a rockfish cooperative
or the rockfish limited access fishery, and that is subject to a
sideboard limit as described in this section. At all times when a
vessel has groundfish onboard that were harvested under a CQ permit
that were harvested during a rockfish limited access fishery, or that
were harvested by a vessel subject to a sideboard limit as described
under Sec. 679.82(d) through (g), as applicable, the vessel owner or
operator must ensure that:
(1) Catch weighing. All groundfish are weighed on a NMFS-approved
scale in compliance with the scale requirements at Sec. 679.28(b).
Each haul must be weighed separately and all catch must be made
available for sampling by a NMFS-certified observer.
(2) Observer sampling station. An observer sampling station meeting
the requirements at Sec. 679.28(d) is available at all times.
(3) Observer coverage requirements. The vessel is in compliance
with the observer coverage requirements described at Sec.
679.50(c)(7)(i).
(4) Operational line. The vessel has no more than one operational
line or other conveyance for the mechanized movement of catch between
the scale used to weigh total catch and the location where the observer
collects species composition samples.
(5) Fish on deck. No fish are allowed to remain on deck unless an
observer is present, except for fish inside the codend and fish
accidentally spilled from the codend during hauling and dumping. Fish
accidentally spilled from the codend must be moved to the fish bin.
(6) Sample storage. The vessel owner or operator provides
sufficient space to accommodate a minimum of 10 observer sampling
baskets. This space must be within or adjacent to the observer sample
station.
(7) Pre-cruise meeting. The Observer Program Office is notified by
phone at 1-907-271-1702 at least 24 hours prior to departure when the
vessel will be carrying an observer who had not previously been
deployed on that vessel. Subsequent to the vessel's departure
notification, but prior to departure, NMFS may contact the vessel to
arrange for a pre-cruise meeting. The pre-cruise meeting must minimally
include the vessel operator or manager and the observer assigned to
that vessel.
(8) Belt and flow operations. The vessel operator stops the flow of
fish and clear all belts between the bin doors and the area where the
observer collects samples of unsorted catch when requested to do so by
the observer.
(9) Vessel crew in tanks or bins. The vessel owner complies with
the requirements specified in paragraph (c)(9)(i) of this section
unless the vessel owner has elected, and has had approved by NMFS at
the time of the annual observer sampling station inspection or as
described at paragraph (c)(9)(v) of this section, one of the three
monitoring options described at paragraph (c)(9)(ii) or (iii) of this
section.
(i) Option 1--No crew in bin or tank. No crew may enter any bin or
tank preceding the point where the observer samples unsorted catch,
unless:
(A) The flow of fish has been stopped between the tank and the
location where the observer samples unsorted catch;
(B) All catch has been cleared from all locations between the tank
and the location where the observer samples unsorted catch;
(C) The observer has been given notice that the vessel crew must
enter the tank; and
(D) The observer is given the opportunity to observe the activities
of the person(s) in the tank; or,
(E) The observer informs the vessel operator, or his designee that
all sampling has been completed for a given haul, in which case crew
may enter a tank containing fish from that haul without stopping the
flow of fish or clearing catch between the tank and the observer
sampling station.
(ii) Option 2--Line of sight option. From the observer sampling
station, the location where the observer sorts and weighs samples, and
the location from which the observer collects unsorted catch, an
observer of average height (between 64 and 74 inches (140 and 160 cm))
must be able to see all areas of the bin or tank where crew could be
located preceding the point where the observer samples catch. If clear
panels are used to comply with this requirement, those panels must be
maintained with sufficient clarity to allow an individual with normal
vision to read text located two feet inside of the bin or tank. The
text must be written in 87 point type (corresponding to line four on a
standard Snellen eye chart) and the text must be readable from the
observer sampling station, the location where the observer sorts and
weighs samples, and the location from which the observer collects
unsorted catch. The observer must be able to view the activities of
crew in the bin from these locations.
(iii) Option 3--Video option. A vessel must provide and maintain
cameras, a monitor, and a digital video recording system for all areas
of the bin or tank where crew could be located preceding the point
where the observer collects catch. The vessel owner or operator must
ensure that:
(A) The system has sufficient data storage capacity to store all
video data from an entire trip. Each frame of stored video data must
record a time/date
[[Page 67270]]
stamp. At a minimum, all periods of time when fish are inside the bin
must be recorded and stored;
(B) The system includes at least one external USB (1.1 or 2.0) hard
drive and use commercially available software;
(C) Color cameras have at a minimum 420 TV lines of resolution, a
lux rating of 0.1, and auto-iris capabilities;
(D) The video data is maintained and made available to NMFS staff,
or any individual authorized by NMFS, upon request. These data must be
retained onboard the vessel for no less than 120 days after the
beginning of a trip, unless NMFS has notified the vessel operator that
the video data may be retained for less than this 120 day period;
(E) The system provides sufficient resolution and field of view to
see and read a text sample written in 130 point type (corresponding to
line two of a standard Snellen eye chart) from any location within the
tank where crew could be located;
(F) The system is recording at a speed of no less than 5 frames per
second at all times when fish are inside the tank;
(G) A 16-bit or better color monitor, for viewing activities within
the tank in real time, is provided within the observer sampling station
(or location where the observer sorts and weighs samples, if
applicable) and has the capacity to display all cameras simultaneously.
That monitor must be operating at all times when fish are in the tank.
The monitor must be placed at or near eye level and provide the same
resolution as specified in paragraph (c)(9)(iii)(E) of this section;
(H) The observer is able to view any earlier footage from any point
in the trip and is assisted by crew knowledgeable in the operation of
the system in doing so;
(I) The vessel owner has, in writing, provided the Regional
Administrator with the specifications of the system. At a minimum, this
must include:
(1) The length and width (in pixels) of each image;
(2) The file type in which the data are recorded;
(3) The type and extent of compression;
(4) The frame rate at which the data will be recorded;
(5) The brand and model number of the cameras used;
(6) The brand, model, and specifications of the lenses used;
(7) A scale drawing of the location of each camera and its coverage
area;
(8) The size and type of storage device;
(9) The type, speed, and operating system of any computer that is
part of the system;
(10) The individual or company responsible for installing and
maintaining the system;
(11) The individual onboard the vessel responsible for maintaining
the system and working with the observer on its use; and
(12) Any additional information requested by the Regional
Administrator.
(J) Any change to the video system that would affect the system's
functionality is submitted to, and approved by the Regional
Administrator in writing before that change is made.
(iv) Failure of line of sight or video option. If the observer
determines that a monitoring option selected by a vessel owner or
operator specified in paragraph (c)(9)(ii) or (c)(9)(iii) of this
section fails to provide adequate monitoring of all areas of the bin
where crew could be located, then the vessel shall use the monitoring
option specified in paragraph (c)(9)(i) of this section until the
observer determines that adequate monitoring of all areas of the bin
where crew could be located is provided by the monitoring option
selected by the vessel owner or operator.
(v) Bin or tank monitoring for opt-out vessels. Vessel owners or
operators choosing to participate in the opt-out fishery must arrange
for inspection of their bin monitoring option. Each option must be
inspected and approved by NMFS annually and prior to its use for the
first time. If the bin monitoring option is changed or altered once
approved, it is invalid and the owner or operator must arrange for
another inspection.
(A) How does a vessel owner arrange for a bin monitoring option
inspection? The time and place of the inspection may be arranged by
submitting to NMFS a written request for an inspection. Inspections
will be scheduled no later than 10 working days after NMFS receives a
complete application for an inspection, including the following
information:
(1) Name and signature of the person submitting the application,
and the date of the application.
(2) Street address, business address, telephone number, and fax
number of the person submitting the application.
(3) Whether the vessel has received a bin monitoring option
inspection before and, if so, the date of the most recent inspection
report.
(4) Vessel name.
(5) Federal fishery permit number.
(6) Location of vessel where the inspection is requested to occur,
including street address and city.
(7) A diagram drawn to scale showing the locations where all catch
will be weighed and sorted by the observer, the location where unsorted
catch will be collected, and the location of any video equipment or
viewing panels or ports.
(B) Where will bin monitoring option inspections be conducted?
Inspections will be conducted on vessels tied to docks at Dutch Harbor,
Alaska, Kodiak, Alaska, and in the Puget Sound area of Washington
State.
(C) Bin monitoring option inspection report. A bin monitoring
option inspection report, valid for 12 months from the date it is
signed by NMFS, will be issued to the vessel owner if the bin
monitoring option meets the requirements of paragraph (c)(9)(v). The
vessel owner must maintain a current bin option inspection report on
board the vessel at all times the vessel is required to provide an
approved bin monitoring option under this paragraph (c)(9)(v)(C). The
bin monitoring option inspection report must be made available to the
observer, NMFS personnel, or to an authorized officer upon request.
(d) Catch monitoring requirements for catcher/processors assigned
to the opt-out fishery. At all times any catcher/processor vessel
assigned to the opt-out fishery has groundfish onboard that vessel that
were harvested subject to a sideboard limit as described under Sec.
679.82(d) through (h), as applicable, the vessel owner or operator must
ensure that the requirements in paragraphs (c)(3), (5), (8), and (9) of
this section are met.
(e) Catch monitoring requirements for catcher vessels. The owner or
operator of a catcher vessel must ensure the vessel complies with the
observer coverage requirements described at Sec. 679.50(c)(7)(ii) at
all times the vessel is participating in a rockfish cooperative,
rockfish limited access fishery, or rockfish sideboard fishery
described in this section.
(f) Catch monitoring requirements for shoreside and stationary
floating processors--(1) Catch monitoring and control plan (CMCP). The
owner or operator of a shoreside or stationary floating processor
receiving deliveries from a catcher vessel described at Sec.
679.50(c)(7)(ii) must ensure the shoreside or stationary floating
processor complies with the CMCP requirements described at Sec.
679.28(g).
(2) Catch weighing. All groundfish landed by catcher vessels
described at Sec. 679.50(c)(7)(ii) must be sorted,
[[Page 67271]]
weighed on a scale approved by the State of Alaska as described at
Sec. 679.28(c), and be made available for sampling by a NMFS-certified
observer. The observer must be allowed to test any scale used to weigh
groundfish to determine its accuracy.
(3) Notification requirements. The plant manager or plant liaison
must notify the observer of the offloading schedule for each delivery
of groundfish harvested in a Rockfish Program fishery at least 1 hour
prior to offloading. An observer must be available to monitor each
delivery of groundfish harvested in a Rockfish Program fishery. The
observer must be available the entire time the delivery is being
weighed or sorted.
(g) Catch accounting--(1) Primary rockfish species and secondary
species. All primary rockfish species and secondary species harvested
by a vessel, including harvests in adjacent waters open by the State of
Alaska for which it adopts a Federal fishing season, that is named on
an LLP license that is assigned to a rockfish cooperative and fishing
under a CQ permit will be debited against the CQ for that rockfish
cooperative from May 1:
(i) Until November 15; or
(ii) Until that rockfish cooperative has submitted a rockfish
cooperative termination of fishing declaration that has been approved
by NMFS.
(2) Rockfish halibut PSC. All rockfish halibut PSC used by a
vessel, including halibut PSC used in the adjacent waters open by the
State of Alaska for which it adopts a Federal fishing season, that is
named on an LLP license that is assigned to a rockfish cooperative and
fishing under a CQ permit will be debited against the CQ for that
rockfish cooperative from May 1:
(i) Until November 15; or
(ii) Until the designated representative of that rockfish
cooperative has submitted a rockfish cooperative termination of fishing
declaration that has been approved by NMFS.
(3) Groundfish sideboard limits. All groundfish harvested by a
vessel, except groundfish harvested by a vessel fishing under a CQ
permit in the Central GOA including groundfish harvested in the
adjacent waters open by the State of Alaska for which it adopts a
Federal fishing season, that is subject to a sideboard limit for that
groundfish species as described under Sec. 679.82(d) through (h), as
applicable, from July 1 until July 31 will be debited against the
sideboard limit established for that sector or rockfish cooperative, as
applicable.
(4) Halibut sideboard limits. All halibut PSC used by a vessel,
except halibut PSC used by a vessel fishing under a CQ permit, or in a
rockfish limited access fishery including halibut PSC used in the
adjacent waters open by the State of Alaska for which it adopts a
Federal fishing season, that is subject to a sideboard limit as
described under Sec. 679.82(d) through (h), as applicable, from July 1
until July 31 will be debited against the sideboard limit established
for that sector or rockfish cooperative, as applicable.
0
13. In part 679, Tables 28, 29, and 30 are added to read as follows:
Table 28 to Part 679--Qualifying Season Dates in the Central GOA Primary Rockfish Species
----------------------------------------------------------------------------------------------------------------
Year
A Legal Rockfish Landing -------------------------------------------------------------------------------
includes 1996 1997 1998 1999 2000 2001 2002
----------------------------------------------------------------------------------------------------------------
Northern rockfish that were July 1 July 1 July 1 July 1 July 4 July 1 June 30
harvested between... [dash] [dash] [dash] [dash] [dash] [dash] [dash]
July 20 July 10 July 14 19 and 26 23 and July 21
Aug. 6 Oct. 1
[dash] [dash]
10 21
----------------------------------------------------------------------------------------------------------------
and landed by ... July 27 July 17 July 21 July 26 August 2 July 30 July 28
and Aug. and Oct.
17, 28,
respecti respecti
vely vely
----------------------------------------------------------------------------------------------------------------
Pelagic shelf rockfish that were July 1 July 1 July 1 July 4 July 4 July 1 June 30
harvested between... [dash] [dash] [dash] [dash] [dash] [dash] [dash]
Aug. 7 July 20 July 19 Sept. 3 26 23 and July 21
and Oct. Oct.
1 [dash] 1[dash]
Dec. 2 21
----------------------------------------------------------------------------------------------------------------
and landed by ... Aug. 14 July 27 July 26 Sept. 10 Aug. 2 July 30 July 28
and Dec. and Oct.
9, 28,
respectiv respecti
ely vely
----------------------------------------------------------------------------------------------------------------
Pacific ocean perch that were July 1 July 1 July 1 July 4 July 4 July 1 June 30
harvested between ... [dash] [dash] [dash] [dash] [dash] [dash] [dash]
July 11 July 7 July 6 11 and 15 12 July 8
and July Aug. 6
12 [dash] [dash] 8
14
----------------------------------------------------------------------------------------------------------------
and landed by ... July 18 July 14 July 13 July 18 July 22 July 19 July 15
and July and Aug.
21, 15,
respectiv respecti
ely vely
----------------------------------------------------------------------------------------------------------------
Table 29 to Part 679--Initial Rockfish QS Pools
------------------------------------------------------------------------
Aggregate
Primary
Northern Pelagic Pacific Species
Initial Rockfish QS Pool Rockfish Shelf ocean Initial
Rockfish perch Rockfish
QS Pool
------------------------------------------------------------------------
Initial Rockfish QS Pool 9,193,183 7,672,008 18,121,8 34,987,00
units units 12 2 units
units
------------------------------------------------------------------------
Initial Rockfish QS Pool for Based on the Official Rockfish Program
the Catcher/Process or Record on January 31, 2007.
Sector
------------------------------------------------------------------------
[[Page 67272]]
Initial Rockfish QS Pool for Based on the Official Rockfish Program
the Catcher Vessel Sector Record on January 31, 2007.
------------------------------------------------------------------------
Table 30 to Part 679--Rockfish Program Retainable Percentages (in round
wt. equivalent)
------------------------------------------------------------------------
MRA as a
percentage of
Fishery Incidental Catch Sector total retained
Species primary rockfish
species
------------------------------------------------------------------------
Rockfish Pacific Cod Catcher/ 4.0 percent
Cooperative Processor
Fishery for
vessels fishing
under a CQ
permit.
------------------------------------------------------
Shortraker/ Catcher Vessel 2.0 percent
Rougheye
aggregate catch
------------------------------------------------------
See Non[dash]Allocated Secondary species for ``other
species''
------------------------------------------------------------------------
Rockfish Limited Pacific Cod Catcher Vessel 8.0 percent
Access Fishery.
------------------------------------------------------
Pacific Cod Catcher/ 4.0 percent
Processor
------------------------------------------------------
Sablefish (trawl Catcher/ 3.0 percent
gear) Processor and
Catcher Vessel
------------------------------------------------------
Shortraker/ Catcher/ 2.0 percent
Rougheye Processor and
aggregate catch Catcher Vessel
------------------------------------------------------
Northern Rockfish Catcher/ 4.0 percent
Processor and
Catcher Vessel
------------------------------------------------------
Pelagic Shelf Catcher/ 4.0 percent
Rockfish Processor and
Catcher Vessel
------------------------------------------------------
Pacific ocean Catcher/ 4.0 percent
perch, Processor and
Catcher Vessel
------------------------------------------------------------------------
Thornyhead Catcher/ 4.0 percent
rockfish Processor and
Catcher Vessel
------------------------------------------------------
See Non[dash]Allocated Secondary species for other
species
------------------------------------------------------------------------
Non-Allocated Pollock Catcher/ 20.0 percent
Secondary Processor and
Species for Catcher Vessel
vessels fishing
under a CQ
permit in
Rockfish
Cooperatives and
Rockfish Limited
Access
Fisheries.
------------------------------------------------------
Deep[dash]Water Catcher/ 20.0 percent
flatfish Processor and
Catcher Vessel
------------------------------------------------------
Rex Sole Catcher/ 20.0 percent
Processor and
Catcher Vessel
------------------------------------------------------
Flathead Sole Catcher/ 20.0 percent
Processor and
Catcher Vessel
------------------------------------------------------
Shallow[dash]wate Catcher/ 20.0 percent
r flatfish Processor and
Catcher Vessel
------------------------------------------------------
Arrowtooth Catcher/ 35.0 percent
Processor and
Catcher Vessel
------------------------------------------------------
Other Rockfish Catcher/ 15.0 percent
Processor and
Catcher Vessel
------------------------------------------------------
Atka Mackerel Catcher/ 20.0 percent
Processor and
Catcher Vessel
------------------------------------------------------
[[Page 67273]]
Aggregated forage Catcher/ 2.0 percent
fish Processor and
Catcher Vessel
------------------------------------------------------
Skates Catcher/ 20.0 percent
Processor and
Catcher Vessel
------------------------------------------------------
Other Species Catcher/ 20.0 percent
Processor and
Catcher Vessel
------------------------------------------------------------------------
Longline gear See Table 10 to this part.
Rockfish Entry
Level Fishery.
------------------------------------------------------------------------
Trawl Rockfish See Table 10 to this part.
Entry Level
Fishery.
------------------------------------------------------------------------
Opt[dash]out See Table 10 to this part.
Fishery.
------------------------------------------------------------------------
Rockfish See Table 10 to this part.
Cooperative
Vessels not
fishing under a
CQ permit
------------------------------------------------------------------------
[FR Doc. 06-9229 Filed 11-13-06; 3:41 pm]
BILLING CODE 3510-22-S