[Federal Register: September 14, 2007 (Volume 72, Number 178)]
[Rules and Regulations]
[Page 52667-52743]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14se07-13]
[[Page 52667]]
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Part III
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 Bering
Sea/Aleutian Islands Fishery Resources; American Fisheries Act
Sideboards; Final Rule
[[Page 52668]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 902
50 CFR Part 679
[Docket No. 0612242886-7464-03; I.D. 041307D]
RIN 0648-AU68
Fisheries of the Exclusive Economic Zone Off Alaska; Allocating
Bering Sea/Aleutian Islands Fishery Resources; American Fisheries Act
Sideboards
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 80 to the
Fishery Management Plan for Groundfish of the Bering Sea and Aleutian
Islands Management Area (FMP). Amendment 80 (hereinafter the
``Program'') primarily allocates several Bering Sea and Aleutian
Islands (BSAI) non-pollock trawl groundfish fisheries among fishing
sectors, and facilitates the formation of harvesting cooperatives in
the non-American Fisheries Act (AFA) trawl catcher/processor sector.
The Program establishes a limited access privilege program (LAPP) for
the non-AFA trawl catcher/processor sector. This action is necessary to
increase resource conservation and improve economic efficiency for
harvesters who participate in the BSAI groundfish fisheries. This
action is intended to promote the goals and objectives of the Magnuson-
Stevens Fishery Conservation and Management Act (MSA), the FMP, and
other applicable law.
DATES: Effective on October 15, 2007, except amendments to Sec. 679.2,
the definition of ``non-AFA trawl catcher/processor,'' Sec.
679.20(a)(7)(ii)(A)(8), Sec. 679.20(a)(7)(iii)(B), Sec.
679.64(a)(1)(i)(A), Sec. 679.64(a)(1)(iii), Sec. 679.64(a)(1)(v),
Sec. 679.64(a)(1)(vi), Sec. 679.64(a)(2), and Sec. 679.64(a)(3) that
are effective on January 1, 2008; and amendments to Sec. 679.7(m),
Sec. 679.27(j), and Sec. 679.50(c)(6) that are effective on January
20, 2008.
ADDRESSES: Copies of Amendment 80, the final Environmental Assessment
(EA), Regulatory Impact Review (RIR), Initial Regulatory Flexibility
Analysis (IRFA), and Final Regulatory Flexibility Analysis (FRFA) for
this action may be obtained from NMFS Alaska Region, P.O. Box 21668,
Juneau, AK 99802, Attn: Ellen Sebastian, and on the NMFS Alaska Region
Web site at http://www.fakr.noaa.gov. The proposed rule to implement
Amendment 80 also may be accessed at this Web site.
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
David_Rostker@omb.eop.gov or by fax to 202-395-7285.
FOR FURTHER INFORMATION CONTACT: Glenn Merrill, 907-586-7228 or
glenn.merrill@noaa.gov.
SUPPLEMENTARY INFORMATION: The groundfish fisheries in the BSAI are
managed under the FMP. The North Pacific Fishery Management Council
(Council) prepared the FMP under the authority of the MSA, 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.
The Council took final action to recommend Amendment 80 on June 9,
2006. The Council submitted Amendment 80 for review by the Secretary of
Commerce (Secretary) in April 2007, and a notice of availability of the
FMP amendment was published in the Federal Register on April 30, 2007
(72 FR 21198), with comments on the FMP amendment invited through June
29, 2007. NMFS received one comment specific to Amendment 80. That
comment has been addressed in the Response to Comments section below.
On May 30, 2007, NMFS published a proposed rule to implement the
Program (72 FR 30052). The public comment period on the proposed rule
ended on July 29, 2006. NMFS received 25 letters commenting on the
proposed rule, including the letter submitted during the Amendment 80
comment period. These letters contained a total of 82 unique comments.
These comments are addressed in the Response to Comments section of
this rule below. The Secretary approved Amendment 80 on July 26, 2007.
The Program allocates several BSAI non-pollock trawl groundfish
species among trawl fishery sectors and facilitates the formation of
harvesting cooperatives in the non-AFA trawl catcher/processor sector.
The Program meets the broad goals of (1) improving retention and
utilization of fishery resources by the non-AFA trawl catcher/processor
fleet by extending the groundfish retention standard (GRS) to all non-
AFA trawl catcher/processor vessels; (2) allocating fishery resources
among BSAI trawl harvesters in consideration of historic and present
harvest patterns and future harvest needs; (3) establishing a LAPP for
the non-AFA trawl catcher/processors and authorizing the allocation of
groundfish species to harvesting cooperatives to encourage fishing
practices with lower discard rates and to improve the opportunity for
increasing the value of harvested species while lowering costs; and (4)
limiting the ability of non-AFA trawl catcher/processors to expand
their harvesting capacity into other fisheries not managed under a
LAPP.
I. Development of the Program
A. History of Bycatch and Discard Reduction Efforts in the BSAI
The Council has long recognized the need to reduce bycatch,
minimize waste, and improve utilization of fish resources to the extent
practicable in order to provide the maximum benefit to present and
future generations of fishermen, associated fishing industry sectors,
communities, and the Nation as a whole. The Council has recommended and
NMFS has approved and implemented numerous measures to reduce discards
and bycatch of groundfish species over the past several years.
The Council recommended and NMFS approved and implemented
management measures to establish retention and utilization standards
for pollock and Pacific cod under Amendment 49 to the FMP (62 FR 63880;
January 3, 1998). More recently, in June 2003, the Council recommended
Amendment 79 to the FMP to improve retention of groundfish species by
implementing the GRS. The Secretary approved Amendment 79 on August 31,
2005, and NMFS published regulations to implement the GRS on April 6,
2006 (71 FR 17362). The GRS will be effective on January 20, 2008.
Amendment 79 authorizes the GRS as a tool for further increasing
the retention and utilization of groundfish and responding to bycatch
reduction goals described in the MSA National Standards (16 U.S.C.
1851(a)). The GRS balanced the requirements for conservation and
management of the groundfish fisheries under the MSA with the
requirements to minimize bycatch under National Standard 9 and minimize
economic burdens under National Standard 7 to the extent practicable
(minimize costs and avoid unnecessary duplication). The GRS currently
applies to catcher/processor vessels using trawl gear that are greater
than or equal to 125 ft (38.1 m) length
[[Page 52669]]
overall (LOA) and not specifically defined as catcher/processors listed
as eligible to participate in the directed pollock fishery under
section 208(e) of the AFA. These catcher/processors are commonly
referred to as non-AFA trawl catcher/processors or head and gut
catcher/processors.
The Council's analysis of groundfish retention rates in the BSAI
groundfish fishery revealed that vessels in the non-AFA trawl catcher/
processor sector had the lowest retained catch rates of any groundfish
trawl fishery in the BSAI. This analysis also noted that non-AFA trawl
catcher/processors equal to or greater than 125 ft (38.1 m) LOA
contributed the majority of the harvest and discarded catch by the non-
AFA trawl catcher/processor fleet. Given the smaller, but still
considerable, proportion of overall bycatch and discard of groundfish
by non-AFA trawl catcher/processors less than 125 ft (38.1 m) LOA to
the overall bycatch and discard of groundfish by all non-AFA trawl
catcher/processors, and recognizing that compliance costs associated
with observers and scale monitoring requirements would be relatively
higher for vessels less than 125 ft (38.1 m) LOA, non-AFA trawl
catcher/processor vessels that are less than 125 ft (38.1 m) LOA were
excluded from the GRS. The GRS requires each non-AFA trawl catcher/
processor greater than or equal to 125 ft (38.1 m) LOA to retain
specific groundfish species at a specified annual minimum rate. The
annual minimum retention rate is lowest in 2008, the first year the GRS
is effective, and is gradually increased to a maximum retention rate
for 2011 and in all years thereafter. This graduated approach to
increasing the minimum GRS rate was designed to facilitate industry
compliance with the GRS by providing vessel operators several years to
modify and adapt fishing operations.
Amendment 80 and the implementing regulations continue initiatives
by the Council and NMFS to reduce bycatch and discard of fish species
in the BSAI non-pollock trawl groundfish fisheries. The Program (1)
extends the application of the GRS to non-AFA trawl catcher/processor
vessels of all sizes by including catcher/processor vessels less than
125 ft (38.1 m) LOA; and (2) reduces the amount of halibut and crab
bycatch, known as prohibited species catch (PSC), that may be taken
while non-AFA trawl catcher/processors are groundfish fishing in the
BSAI. These measures improve the utilization of fishery resources,
minimize costs, and further minimize bycatch to the extent practicable,
thereby meeting the objectives of the MSA National Standards 5, 7, and
9.
The Program facilitates this improved retention and utilization of
groundfish resources through specific economic incentives provided by a
LAPP. It is anticipated that the LAPP will improve retention and
utilization of fishery resources by allocating specific amounts of
certain non-pollock groundfish species, halibut PSC, and crab PSC to
non-AFA trawl catcher/processors; and facilitates the formation of
cooperatives that will receive exclusive harvest privileges for a
portion of these fishery resources. The ways in which the use of
exclusive harvest privileges will improve the retention and utilization
of fishery resources by non-AFA trawl catcher/processors are described
in Parts C and D of this section.
B. Legislation Affecting the Program
Congress granted NMFS additional specific statutory authority to
manage BSAI groundfish fisheries under the FMP. Eligibility to
participate in the Program and allocation of groundfish resources under
the Program are affected by several pieces of recent legislation.
Section 219 of the Consolidated Appropriations Act of 2005
(Pub. L. 108-447; December 8, 2004), referred to in this rule as the
Capacity Reduction Program (CRP), which defined the non-AFA trawl
catcher/processor sector [Amendment 80 sector] and implemented a
capacity reduction program for several catcher/processor sectors;
Section 416 of the Coast Guard and Maritime Transportation
Act of 2006 (Pub. L. 109-241; July 11, 2006), referred to in this rule
as the Coast Guard Act, which amended provisions of the Community
Development Quota (CDQ) Program in the MSA; and
The Magnuson-Stevens Fishery Conservation and Management
Reauthorization Act (Pub. L. 109-479, January 12, 2007), referred to in
this rule as the MSRA, which modified provisions related to the CDQ
Program and instituted other measures applicable to LAPPs.
These pieces of legislation directly dictate specific elements of
the Program. The preamble of the proposed rule details the effects of
the CRP, Coast Guard Act, and MSRA on the development of the Program
and this rule; therefore, that discussion is not repeated here (see 72
FR 30052; May 30, 2007).
C. The Non-Pollock Trawl Groundfish Fisheries
One of the primary reasons for the relatively high discard rates of
groundfish by non-AFA trawl catcher/processors is the nature of the
fisheries in which those vessels participate. The non-AFA trawl
catcher/processor sector primarily participates in non-pollock
groundfish fisheries. The non-pollock groundfish fisheries are
primarily comprised of groups of species that share similar habitat
(e.g., flatfish fisheries such as rock sole, flathead sole, and
yellowfin sole). Because these species occur together, they are
typically harvested together. When a non-AFA trawl catcher/processor
retrieves its net, very often multiple species of fish are present. If
a vessel operator is targeting only one species of fish, and other
species are retrieved along with the desired catch, the vessel operator
may have an incentive to discard the less valuable species and retain
only the higher value species. The multi-species nature of these
fisheries makes it difficult for vessel operators to target only one
species, and an economic incentive is created to discard less valuable
fish.
NMFS establishes a total allowable catch (TAC) for each of the non-
pollock groundfish fisheries based on the species' annual biomass with
the goal of providing a conservatively managed sustainable yield.
Harvesters compete for the TAC, resulting in a ``race for fish,''
wherein vessels attempt to maximize their harvest in as little time as
possible, in order to claim as large a share as possible of the
available TAC. This race for fish increases the economic incentive to
discard less valuable species in a multi-species harvest, and
accelerates the harvest rate for the more valuable species.
Because vessel operators are competing with each other for harvest
of a common TAC, a vessel operator has little economic incentive to
undertake actions to reduce unwanted incidental catch, such as
searching for fishing grounds with lower bycatch rates, or using gear
modifications that may reduce bycatch but have lower harvest rates, if
those actions would limit the ability of that vessel to effectively
compete with other vessels. Additionally, a vessel operator has little
incentive to process and store less valuable species if by doing so, he
loses an opportunity to use that processing or storage capacity for
more valuable catch. Therefore, an individual vessel operator has
strong incentives to harvest fish as quickly as possible, and discard
less valuable species before the TAC limit is
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reached because all vessel operators are competing for a limited TAC.
Additionally, non-pollock groundfish fisheries are constrained by
catch limits for non-target species, such as halibut, red king crab,
Tanner crab (Chionoecetes bairdi), and snow crab (C. opilio). Halibut
and crab are harvested in other fisheries and cannot be retained by
vessels using trawl gear. NMFS establishes PSC limits for halibut in
the entire BSAI, and red king crab, C. opilio crab, and C. bairdi crab
in specific areas of the BSAI to limit the adverse impact of harvesting
operations on the long-term productivity of those species. NMFS
monitors these PSC limits, and may close or otherwise restrict trawl
harvests if PSC limits are projected to be reached. Fishery closures
due to reaching PSC limits can limit harvest of the groundfish TAC and
reduce overall revenue to vessel operators and crew. As vessel
operators seek to maximize harvest of TAC, they may accelerate fishing
operations to maximize harvest before a crab or halibut PSC limit is
reached. A ``race for PSC'' further exacerbates competition and the
incentives to harvest rapidly, resulting in greater potential waste and
higher discard rates of less valuable groundfish species.
The multi-species nature of non-pollock groundfish fisheries
further limits the ability of a fisherman to specifically target
valuable groundfish species as they race with their competitors. Vessel
operators may discard considerable portions of their catch to maximize
harvests of more valuable species even though the discarded species may
still have considerable market value.
D. Limited Access Privilege Programs (LAPPs)
The primary method to offset the economic incentives that lead to a
race for fish and relatively high discard rates is to reduce the impact
of those incentives through a LAPP. LAPPs have been used extensively in
the North Pacific as a means to encourage economic efficiency and less
wasteful harvest methods, and to resolve allocation disputes among
harvesters by providing a group of harvesters with exclusive harvest
privileges that can be traded. North Pacific LAPPs include (1) the
Halibut and Sablefish individual fishing quota (IFQ) Program (58 FR
59375; November 9, 1993); (2) the AFA (67 FR 69692; December 30, 2002);
(3) the BSAI Crab Rationalization Program (70 FR 10174; March 2, 2005);
and (4) the Central Gulf of Alaska (GOA) Rockfish Program (71 FR 67210;
November 20, 2006). An extensive discussion of LAPPs can be found in
the EA/RIR/FRFA prepared for this action and in the National Research
Council's publication Sharing the Fish, which was consulted and
considered during the development of the Program.
A LAPP allows vessel operators to make operational choices to
reduce discards of fish because the strong incentives to maximize catch
in the minimum amount of time have been reduced. If a vessel operator
receives an exclusive portion of the TAC for non-pollock groundfish
species and the associated halibut and crab PSC, he knows that he need
not compete with other harvesters. That vessel operator can then choose
to fish in a slower and less wasteful fashion, use modified gear with a
lower harvest rate but which reduces bycatch, coordinate with other
vessel operators to avoid areas of high bycatch, process fish in ways
that yield increased value but which are possible only by slowing the
processing rate, or otherwise operate in ways that limit bycatch. The
examples cited in this paragraph have been used by vessel operators in
other LAPPs in the North Pacific, and NMFS anticipates non-AFA trawl
catcher/processors would use similar techniques to reduce bycatch and
improve the value of their product.
LAPPs can improve the profitability of fishing operators holding
the exclusive harvest privilege. In most cases, LAPPs provide
harvesters greater flexibility in tailoring their fishing operations to
specific fisheries which can reduce operational costs. Additionally,
vessel operators may reduce costs by avoiding costly improvements in
vessel size or fishing power designed to outcompete other harvesters.
Slower fishing rates can improve product handling and quality and
increase the exvessel price of product. Vessel operators can also
choose to consolidate less profitable fishing operations onto one
vessel. Other potential advantages to the holders of exclusive harvest
privileges have been analyzed during the development of past LAPPs.
LAPPs can increase the costs of entering the fishery substantially
because the permits acquire value and must be purchased prior to entry.
Consolidation can limit employment opportunities as well. Compliance
costs can also increase to ensure that NMFS can monitor the harvesting
and processing of fish. Administration of LAPPs typically requires
greater effort and cost than non-LAPP fisheries due to the greater
precision in catch accounting required to track the harvest of fish and
to ensure proper debiting of accounts. Participants in LAPPs may also
use their excess fishing capacity to expand operations into other
fisheries that are not managed by LAPPs and increase the race for fish
in those fisheries unless they are constrained. These effects and
others have been addressed in the design of previous LAPPs by limiting
the amount of consolidation in the LAPP fishery and by limiting the
harvest of species in non-LAPP fisheries. Entry costs for any LAPP are
likely to be higher than in other non-LAPP fisheries, and those costs
limit the ability of those operators lacking the financial wherewithal
to participate in these fisheries. A loan program for entry level
participants has been authorized and established in the Halibut and
Sablefish IFQ Program to assist entry into that LAPP, but fishery
participants in other LAPPs must rely on other sources of financing. A
loan program has not been authorized for the Program.
Based on extensive experience with past LAPPs, and after weighing
potential advantages and disadvantages, the Council adopted the Program
to create economic incentives that provide additional opportunities to
reduce bycatch while increasing the potential for greater economic
returns to those holding the harvest privileges. The Program provides
an incentive for non-AFA trawl catcher/processors to harvest certain
species of non-pollock groundfish in a less wasteful manner by granting
an exclusive harvest privilege to a limited number of harvesters. The
Program encourages participants to harvest more efficiently and less
wastefully by allowing them to join other harvesters to form harvesting
cooperatives that will receive an exclusive annual harvest privilege of
specific groundfish species. Those participants that do not join a
harvesting cooperative may fish in a limited access fishery. The
principal benefits from the Program would be realized by harvesters
that choose to join a cooperative.
E. LAPPs, GRS, and Reduced PSC
The Council also recognized that some of the compliance costs
associated with the GRS, particularly for non-AFA trawl catcher/
processors less than 125 ft (38.1 m) LOA could be reduced under LAPP
management. The Council recognized that if harvesters could apply the
GRS to a cooperative by aggregating the retention rate of all vessels
assigned to a cooperative, owners of non-AFA trawl catcher/processors
less than 125 ft (38.1 m) LOA could choose to join a cooperative,
assign their harvest privilege to the cooperative, and allow other
larger vessels to harvest the cooperative's exclusive allocation of
fish without
[[Page 52671]]
incurring the compliance costs associated with monitoring the GRS. Non-
AFA trawl catcher/processor vessels less than 125 ft (38.1 m) LOA would
still receive economic benefits from the cooperative's harvests but
would not need to refit their vessels to meet the additional monitoring
and enforcement (M&E) requirements and pay the additional costs to fish
in the BSAI. Those vessels could continue to participate in other
fisheries in the GOA. Furthermore, the catch associated with smaller
non-AFA trawl catcher/processor vessels that are used to fish in the
BSAI would be subject to the GRS, thereby further improving retention
of groundfish and reducing discards of fish.
Additionally, for those non-AFA trawl catcher/processor vessels
that do fish under a cooperative's exclusive harvest privilege, the
costs associated with retaining less valuable fish under the GRS may be
offset by increased profitability from those vessels because they are
no longer operating in a race for fish. The Council considered these
factors in recommending that the GRS be extended to all non-AFA trawl
catcher/processors under the Program.
The Council also recognized that LAPP management under a
cooperative allocation can encourage lower bycatch as described in Part
D of this section. Because vessel operators in cooperatives are better
able to target catch and can engage in voluntary agreements to avoid
areas with higher PSC, the Council recommended an overall reduction in
the amount of halibut and crab PSC that may be used by the non-AFA
trawl catcher/processor sector. The Program incorporates this
recommendation, furthering the Council's goals of reducing bycatch and
discards of fishery species.
F. Program Overview
As noted earlier, the Council adopted the Program to meet the broad
goals of (1) improving retention and utilization of fishery resources;
(2) allocating fishery resources among BSAI trawl harvesters; (3)
establishing a LAPP for the non-AFA trawl catcher/processors; and (4)
limiting the ability of non-AFA trawl catcher/processors to expand
their harvesting capacity into other fisheries not managed under a
LAPP.
As with all other LAPPs in the North Pacific, the extensive changes
to existing management of BSAI non-pollock trawl fisheries implemented
by the Program affects a wide range of fishing practices and
regulations. The Program affects management of the non-AFA trawl
catcher/processors, other BSAI trawl fishery participants, and other
harvesters in the North Pacific. As such, the Program implements a
complex suite of measures to ensure the goals of the Program are met
and to minimize potential adverse impacts on affected fishery
participants.
The rationale behind specific aspects of the Program are summarized
below and described in detail in the preamble to the proposed rule (72
FR 30052; May 30, 2007).
1. Community Development Quota (CDQ) Program
The Program incorporates statutory mandates in the MSA as amended
by Section 416 of the Coast Guard Act and the MSRA. The rule modifies
the percentage of TAC for directed fisheries that are allocated to the
CDQ Program, the percentage of halibut, crab, and non-Chinook salmon
PSC allocated to the CDQ Program as prohibited species quota (PSQ), and
includes other provisions necessary to bring Amendment 80 and the CDQ
Program into compliance with applicable law.
2. Amendment 80 Sector and Amendment 80 Vessels
Eligible Program participants are defined by applicable legislation
and the Program. Applicable legislation is summarized in Part B of this
section of this preamble. The Program incorporates statutory mandates
in section 219 of the CRP which defines who is eligible to harvest fish
in the non-AFA trawl catcher/processor sector for a defined list of
non-pollock groundfish species. The Program defines the ``Amendment 80
sector'' as non-AFA trawl catcher/processor harvesters eligible to fish
under this statutory mandate. The defined list of non-AFA trawl
catcher/processor vessels that may be used to fish in the Amendment 80
sector are ``Amendment 80 vessels.''
3. Amendment 80 Species
The Program allocates a specific portion of six non-pollock
groundfish species among trawl fishery sectors. These six species are
the ``Amendment 80 species'' and include Aleutian Islands (AI) Pacific
ocean perch (POP), BSAI Atka mackerel, BSAI flathead sole, BSAI Pacific
cod, BSAI rock sole, and BSAI yellowfin sole. These Amendment 80
species are allocated between the Amendment 80 sector and all other
BSAI trawl fishery participants not in the Amendment 80 sector. These
other trawl fishery participants include AFA catcher/processors, AFA
catcher vessels, and non-AFA catcher vessels. Collectively, this group
of trawl fishery participants comprises the ``BSAI trawl limited access
sector.''
Amendment 80 species are economically valuable and have
historically been targeted by non-AFA trawl catcher/processors, but
fisheries associated with these species have high rates of discard or
waste relative to other groundfish fisheries. Other species, such as
Alaska plaice, are occasionally harvested in the BSAI trawl fisheries,
but these other species are a minor component of the overall biomass
and value of non-pollock groundfish harvested, less subject to an
intense race for fish, and are not allocated under the Program.
4. Allocations of TAC and PSC in the BSAI Trawl Fisheries
Each year, the Program will allocate an amount of Amendment 80
species available for harvest, called the initial total allowable catch
(ITAC), and crab and halibut PSC to two defined groups of trawl fishery
participants: (1) The Amendment 80 sector; and (2) the BSAI trawl
limited access sector. Allocations made to one sector are not subject
to harvest by participants in the other fishery sector except under a
specific condition: fish that are allocated to the BSAI trawl limited
access sector and projected to be unharvested could be reallocated to
Amendment 80 cooperatives.
The ITAC represents the amount of TAC for each Amendment 80 species
that is available for harvest after allocations to the CDQ Program and
the incidental catch allowance (ICA) have been subtracted from the TAC.
The ICA is set aside for the incidental harvest of an Amendment 80
species while targeting other groundfish species in non-trawl fisheries
(e.g., yellowfin sole incidental harvests in the hook-and-line Pacific
cod fishery) and in the BSAI trawl limited access sector fisheries
(e.g., rock sole incidentally harvested by AFA trawl catcher vessels in
the Pacific cod fishery).
The Program will allocate crab and halibut PSC to the Amendment 80
and BSAI trawl limited access sectors to accommodate PSC use by these
sectors based on past PSC use with specific consideration given to
possible future requirements. As explained earlier, the Program further
addresses the Council's goals of reducing bycatch and discard of
groundfish species by reducing the total amount of crab and halibut PSC
assigned to the Amendment 80 sector.
5. BSAI Trawl Limited Access Sector
The Program provides a specific allocation of Amendment 80 species
and crab and halibut PSC to this sector. The Program modifies the
calculation of AFA sideboard limits for Amendment
[[Page 52672]]
80 species and crab and halibut PSC limits necessary to allow the
efficient operation of AFA vessels. The Program also adjusts the
maximum limit for red king crab bycatch in the Red King Crab Savings
Subarea.
6. Amendment 80 Quota Share
The Program assigns Amendment 80 quota share (QS) for Amendment 80
species based on catch by Amendment 80 vessels. The Amendment 80 QS
could be used to yield an exclusive harvest privilege for a portion of
the Amendment 80 sector ITAC. The Program establishes criteria for
harvesters in the Amendment 80 sector to apply for and receive QS,
initially allocate QS, and transfer QS.
The Program assigns Amendment 80 QS based on historic catch
patterns of an Amendment 80 vessel during 1998 through 2004 and on the
relative proportion of an Amendment 80 species harvested by an
Amendment 80 vessel compared to all other Amendment 80 vessels.
The Program will assign Amendment 80 QS only to persons who submit
a timely and complete application for Amendment 80 QS. In most cases,
the Program will assign the Amendment 80 QS to the Amendment 80 vessel
owner. In specific cases where an Amendment 80 vessel has been lost or
is otherwise permanently ineligible to fish in U.S. waters, the Program
will assign the Amendment 80 QS to the holder of the license limitation
program (LLP) license originally assigned to that Amendment 80 vessel.
Once Amendment 80 QS is assigned based on the historic catch patterns
of an Amendment 80 vessel, it cannot be divided or transferred
separately from that Amendment 80 vessel. If the Amendment 80 QS is
assigned to the LLP license originally issued for that Amendment 80
vessel, it cannot be transferred separately from that LLP license.
7. Amendment 80 Cooperatives
Persons that receive Amendment 80 QS can join a cooperative to
receive an exclusive harvest privilege for a portion of the ITAC.
Amendment 80 QS holders can form a cooperative with other Amendment 80
QS holders on an annual basis, provided they meet specific criteria.
Each Amendment 80 cooperative will receive an annual cooperative quota
(CQ), an amount of Amendment 80 species ITAC that will be for the
exclusive use by that cooperative for harvest in a given year. The
Program establishes requirements for forming an Amendment 80
cooperative with other Amendment 80 QS holders, the allocation of
annual CQ to a cooperative, and transfers of CQ among cooperatives.
A cooperative will receive an amount of CQ equivalent to the
proportion of QS held by all of the members of the cooperative relative
to the total QS held by all Amendment 80 QS holders. Each Amendment 80
cooperative will receive an annual CQ with an exclusive limit on the
amount of crab and halibut PSC the cooperative can use while harvesting
in the BSAI. This crab and halibut PSC CQ will be assigned to a
cooperative proportional to the amount of Amendment 80 QS held by the
members, and will not be based on the amount of crab or halibut PSC
historically used by the cooperative members. This provision does not
reward harvesters with high PSC rates with large amounts of PSC CQ.
Instead, PSC CQ will be issued in proportion to the amount of Amendment
80 species CQ that are assigned to a cooperative for harvest.
The Program provides opportunities for Amendment 80 sector
participants to trade harvest privileges among cooperatives to further
encourage economically efficient fishing operations. An Amendment 80
cooperative will not be able to transfer CQ to the Amendment 80 limited
access fishery or to the BSAI trawl limited access sector.
A cooperative structure may allow Amendment 80 vessel operators to
manage PSC rates more efficiently. By reducing PSC through more
efficient cooperative operations, such as through gear modifications,
or by coordinating fishing operations to fish in areas with lower PSC
use rates, Amendment 80 vessel operators also may increase the harvest
of valuable targeted groundfish species and improve revenues that would
otherwise be foregone if a fishery were closed due to reaching PSC
limits.
The Program allows Amendment 80 cooperatives to receive a rollover
of an additional amount of CQ, if a portion of the Amendment 80 species
or crab or halibut PSC allocated to the BSAI trawl limited access
sector is projected to go unharvested. This rollover to Amendment 80
cooperatives is at the discretion of NMFS with consideration given to
projected harvest rates in the BSAI trawl limited access sector and
other criteria. Each Amendment 80 cooperative will receive an
additional amount of CQ that is based on the proportion of the
Amendment 80 QS assigned to that Amendment 80 cooperative as compared
with the amount of Amendment 80 QS assigned to all other Amendment 80
cooperatives.
Fishery participants in a cooperative can consolidate fishing
operations on a specific Amendment 80 vessel or subset of Amendment 80
vessels, thereby reducing M&E and other operational costs. This will
allow cooperative members to harvest fish in a manner more likely to be
economically efficient and less wasteful.
8. Amendment 80 Limited Access Fishery
Amendment 80 QS holders that do not join an Amendment 80
cooperative can participate in the Amendment 80 limited access fishery.
The Program will assign to the Amendment 80 limited access fishery the
amount of the Amendment 80 sector's allocation of Amendment 80 species
ITAC and crab and halibut PSC that remains after allocation to all of
the Amendment 80 cooperatives. Participants fishing in the Amendment 80
limited access fishery will continue to compete with each other; will
not realize the same potential benefits from consolidation and
coordination; and will not receive an exclusive harvest privilege that
accrues to members of an Amendment 80 cooperative. NMFS will manage the
Amendment 80 limited access fishery similar to the way the fisheries
were managed prior to implementation of the Program.
9. Use Caps
The Council considered the effect of consolidation resulting from
the allocation of an excessive share of harvest privileges to Amendment
80 cooperatives. In response, the Program implements use caps to limit
the amount of Amendment 80 QS a person can hold, the amount of CQ they
can use, and the amount of ITAC an Amendment 80 vessel can harvest.
These use caps moderate some of the potentially adverse effects of
excessive consolidation of fishing operations on fishery participants,
such as lost employment opportunities for fishing crew, while
recognizing the desire to provide economic efficiencies to Amendment 80
QS holders.
10. GOA Sideboard Limits
GOA sideboard limits are catch limits that restrict the ability of
participants eligible for this Program to expand their harvest efforts
in the GOA. The Program is designed to provide certain economic
advantages to participants. Program participants could use this
economic advantage to increase their participation in other fisheries,
primarily in the GOA fisheries, adversely affecting the participants in
those fisheries. Therefore, the Program limits the total
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amount of catch in other groundfish fisheries that could be taken by
Amendment 80 vessels, including harvests made in State of Alaska
(State) waters that are open during Federal fishing seasons to allow
the harvest of fish assigned to the Federal TAC--commonly known as the
``parallel'' groundfish fisheries. GOA groundfish and halibut PSC
sideboards will limit the catch by Amendment 80 vessels to historic
levels in the GOA.
Sideboards limit harvest of Pacific cod, pollock, and rockfish
fisheries in the GOA, the eligibility of Amendment 80 vessels to
participate in GOA flatfish fisheries, and the amount of halibut PSC
that Amendment 80 vessels could catch when harvesting groundfish in the
GOA. Sideboards apply to all Amendment 80 vessels, with a limited
exemption for the F/V GOLDEN FLEECE.
11. M&E Provisions
M&E provisions are necessary for accurate catch accounting and
compliance with the Program to ensure that Amendment 80 QS holders
maintain catches within annual CQ and ITAC allocations in the BSAI and
do not exceed sideboard limits in the GOA. The M&E measures established
for the Program are similar to those currently required for compliance
with Amendment 79, and mirror those in place for catcher/processor
vessels participating in the Central GOA Rockfish Program (see
regulations in Sec. 679.84 for additional detail).
12. GRS Requirements
Under the Program, all non-AFA trawl catcher/processor vessels,
which includes all Amendment 80 vessels regardless of size, are
required to meet GRS requirements in the BSAI. For Amendment 80 vessels
harvesting in the BSAI under the authority of an Amendment 80
cooperative, GRS requirements apply collectively to all vessels
harvesting under the authority of the cooperative rather than on a
vessel-specific basis. In other words, an Amendment 80 cooperative is
required to meet the GRS on an aggregate basis for all vessels in the
Amendment 80 cooperative. The Program modifies some of the GRS
provisions scheduled for implementation on January 20, 2008 (71 FR
17362; April 6, 2006). Specifically, the Program modifies the GRS by
extending the GRS to all non-AFA trawl catcher/processor vessel sizes
and calculating the GRS for Amendment 80 vessels assigned to an
Amendment 80 cooperative on an aggregate basis.
13. Economic Data Report (EDR)
The Program implements an economic data collection program to
assess the impacts of Amendment 80 on various components of the
fishery, including skippers and crew. The Program establishes a process
for collecting and reviewing economic data generated under Amendment 80
by requiring the annual submission of an EDR from each Amendment 80 QS
holder.
II. 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 them, are described
under the Response to Comments section below. The changes are described
by their corresponding regulatory section. Additional changes to the
proposed regulatory text made by NMFS and not in response to public
comment are discussed under Section IV of the preamble.
Section 679.2
NMFS modified the definitions of an ``Amendment 80 LLP
license'' to remove a reference to a specific list of LLP licenses in
Column C of Table 31 to Part 679, include LLP licenses that designate
Amendment 80 vessels at any time after the effective date of the rule,
and include an LLP license to which an Amendment 80 QS permit has been
affixed (i.e., an Amendment 80 QS/LLP license).
NMFS redefined the term ``Amendment 80 LLP license
originally assigned to an Amendment 80 vessel'' as the term ``LLP
license originally assigned to an Amendment 80 vessel.''
Section 679.7
In Sec. 679.7(o)(1), (o)(4), and (o)(5), NMFS made
several modifications to (1) allow the receipt and processing of
unsorted catch from the BSAI trawl limited access fishery onboard
Amendment 80 vessels; (2) allow the use of Amendment 80 vessels to
catch and process fish allocated to the CDQ Program; (3) prohibit
Amendment 80 vessels assigned to one Amendment 80 cooperative from
receiving and processing unsorted catch from Amendment 80 vessels
assigned to another Amendment 80 cooperative or the Amendment 80
limited access fishery; and (4) prohibit Amendment 80 vessels assigned
to the Amendment 80 limited access fishery from receiving and
processing unsorted catch from Amendment 80 vessels assigned to any
Amendment 80 cooperative.
NMFS removed the prohibition at Sec. 679.7(o)(2), added a
prohibition at paragraph (o)(2)(i) to prohibit a person from
designating any vessel other than an Amendment 80 vessel on an
Amendment 80 LLP license, and added a prohibition at paragraph
(o)(2)(ii) to prohibit a person from failing to designate an Amendment
80 vessel on an Amendment 80 LLP license endorsed for groundfish in the
Bering Sea subarea or Aleutian Islands subarea with a catcher/processor
designation at all times during a calendar year unless that Amendment
80 vessel has suffered an actual total loss, constructive total loss,
or is permanently ineligible to receive a fishery endorsement under 46
U.S.C. 12108.
In Sec. 679.7(o)(3)(i), NMFS clarified that a person may
not hold Amendment 80 QS assigned to an Amendment 80 vessel unless that
person holds an Amendment 80 LLP license endorsed for groundfish in the
Bering Sea subarea or Aleutian Islands subarea with a catcher/processor
designation that designates that Amendment 80 vessel.
In Sec. 679.7(o)(3), NMFS added a new paragraph
(o)(3)(iii) to clarify that a person may not hold an Amendment 80 QS
permit assigned to an Amendment 80 vessel if that Amendment 80 vessel
has suffered an actual total loss, constructive total loss, or is
permanently ineligible to receive a fishery endorsement under 46 U.S.C.
12108, after October 15 in the calendar year following the date of that
vessel's loss or ineligibility.
In Sec. 679.7(o)(4), (o)(5), and (o)(6), NMFS clarified
that (1) a valid copy of a CQ or Amendment 80 limited access permit
must be maintained onboard an Amendment 80 vessel while fishing in the
BSAI; and (2) M&E provisions established in the Program for Amendment
80 vessels fishing in the BSAI and GOA do not apply when an Amendment
80 vessel is used to directed fish for scallops using dredge gear.
Section 679.50
In Sec. 679.50(a)(8) and (c)(6), NMFS clarified that
observer coverage requirements apply to any Amendment 80 vessel fishing
for groundfish in the BSAI. This clarification is necessary to meet the
clear intent of the Program to apply a specific standard of observer
coverage to all Amendment 80 vessels when they are fishing for
groundfish in the BSAI.
NMFS modified Sec. 679.50(c)(6) to clarify that observer
coverage in the BSAI and GOA required under the
[[Page 52674]]
Program would not apply to Amendment 80 vessels while they are used to
directed fish for scallops using dredge gear.
Section 679.91
In Sec. 679.91(a)(1), NMFS clarified that an Amendment 80
QS holder must designate each Amendment 80 QS permit, associated
Amendment 80 vessel, and Amendment 80 LLP license on a timely and
complete application for CQ. This relieves the requirement that all QS
permits, LLP licenses, and associated Amendment 80 vessels held by a
person had to be assigned to either one cooperative or the Amendment 80
limited access fishery, commonly referred to as the ``all-in''
provision.
In Sec. 679.91(a)(3), NMFS removed the restriction that a
person could not fish in the Amendment 80 sector if they failed to
submit a timely application by November 1 of the previous year. NMFS
also revised this paragraph so that NMFS will assign an Amendment 80 QS
permit, associated vessel, and LLP license to the Amendment 80 limited
access fishery if they are not designated on a timely and complete
application for CQ.
In Sec. 679.91(f)(2), NMFS revised this paragraph to
state that NMFS ``may'' rather than ``will'' consider a range of
factors before reallocating unharvested ITAC or unused PSC from the
BSAI trawl limited access sector. This modification allows NMFS to
manage these reallocations using the same flexible standards currently
used for managing fishery resource allocations during a fishing season.
In Sec. 679.91(h)(1), NMFS eliminated the requirement
that an Amendment 80 cooperative must accept any person wishing to join
it.
In Sec. 679.91(h)(3)(vii), NMFS rephrased regulations
that describe the fishing season applicable to cooperatives so that
they reference existing trawl closure regulations at Sec. 679.23.
In Sec. 679.91(h)(3)(xi) and (xii), NMFS rephrased
regulations to make it clear that a person holding multiple QS permits,
LLP licenses, and associated Amendment 80 vessels is not required to
assign all of those permits, licenses, or vessels to only one
cooperative or the Amendment 80 limited access fishery during a
calendar year. This revision removes the ``all in'' requirement.
Section 679.92
679.92(b), NMFS clarified that GOA sideboard limits do not
apply to Amendment 80 vessels while they are directed fishing for
scallops using dredge gear.
In Sec. 679.92(c), NMFS removed the requirement that
Amendment 80 vessels eligible to directed fish for flatfish in the GOA
must use a specific LLP license designated in Table 39 to part 679
while fishing in GOA flatfish fisheries.
Section 679.93
In Sec. 679.93(c), NMFS clarified that M&E requirements
in the BSAI established under the Program do not apply to Amendment 80
vessels that are directed fishing for scallops using dredge gear. A
similar change is made in Sec. 679.93(d) which applies to M&E
requirements applicable to Amendment 80 vessels in the GOA.
In Sec. 679.93(e)(1)(i)(ii), (e)(2)(ii) and (e)(2)(iii),
NMFS clarified that catch of Amendment 80 species or crab or halibut
PSC in the BSAI would not be debited from a CQ account or the ITAC for
the Amendment 80 limited access fishery if an Amendment 80 vessel was
directed fishing for scallops using dredge gear.
In Sec. 679.93(e)(3) and (4), NMFS clarified that catch
of groundfish or halibut PSC by Amendment 80 vessels fishing in the GOA
do not apply to groundfish or halibut PSC sideboard limits in the GOA
when an Amendment 80 vessel is directed fishing for scallops using
dredge gear.
Tables
In Table 31 to part 679, NMFS added a footnote noting the
LLP license that is originally assigned to the F/V ENTERPRISE.
In Table 39 to part 679, NMFS changed the title of the
table and deleted column C to remove references to a list of specific
LLP licenses that had to be used while directed fishing for flatfish in
the GOA.
III. Response to Comments
Comments have been summarized and edited for consistency, clarity,
and to avoid duplication.
Section 679.2
Comment 1: Amendment 80 is a vessel-based program. Catch history is
assigned to Amendment 80 eligible vessels for the purposes of
determining QS. The LLP license originally assigned to the eligible
vessel becomes the LLP to which QS is assigned, if the vessel is sunk
or otherwise becomes permanently ineligible. However, an LLP license
originally assigned to an Amendment 80 vessel should not become an
Amendment 80 LLP until vessel owner assigns it to an Amendment 80
vessel as part of an Amendment 80 QS application or until QS is
assigned to that LLP license when the vessel is lost. Once QS is
assigned to an Amendment 80 LLP license it should no longer be used
outside the Amendment 80 sector. Clarify that, at the time of Amendment
80 QS application, each Amendment 80 vessel owner chooses the LLP
license(s) which will be assigned to each Amendment 80 vessel by making
the following four changes in the regulations:
1. Revise the definition of ``Amendment 80 LLP license'' under
Sec. 679.2 to remove the reference to the list of LLP licenses
provided in Table 31 to part 679.
2. Revise the definition of ``Amendment 80 LLP license originally
assigned to an Amendment 80 vessel'' under Sec. 679.2 to ``LLP license
originally assigned to an Amendment 80 vessel.''
3. Replace the phrase ``Amendment 80 LLP license originally
assigned to an Amendment 80 vessel'' with ``LLP license originally
assigned to an Amendment 80 vessel'' in Sec. 679.4 paragraphs
(o)(1)(ii), and (iv); and Sec. 679.90 paragraphs (a)(2)(ii)(A),
(a)(2)(ii)(C), (b)(4)(i)(E), (b)(4)(i)(H), (d)(2)(ii), (e)(4),
(f)(3)(i)(B)(2), and (f)(3)(i)(E).
4. Revise the title of Column C in Table 31 to part 679 to read
``List of Amendment 80 Vessels and LLP Licenses Originally Assigned.''
The Council's motion, which serves as the basis of Amendment 80 to
the FMP, clearly identified the Program as ``vessel-based'' and only
referred to the ``first license assigned to'' an eligible vessel in
terms of clarifying which LLP license QS could be affixed to in case of
a total loss or permanent ineligibility of the vessel to participate in
the fishery. At no time did the Council require any specific LLP be
declared an Amendment 80 LLP until such time that (1) the owner of an
Amendment 80 vessel decided to assign a specific LLP to a vessel as
part of an Amendment 80 application, or (2) the owner of an inoperable
vessel (e.g., a vessel with a total constructive loss) assigned the QS
derived from that inoperable vessel assigned to the LLP license
originally assigned to that vessel and had completed an application for
Amendment 80 QS.
This interpretation of Council intent is supported by a review of
the CRP. The CRP prohibited participation in the non-AFA trawl catcher/
processor subsector (i.e., Amendment 80 sector) by vessels and owners
that did not meet the requirements of the CRP, but in no way compels
participation by eligible participants in that fishery or prohibits
eligible participants from operating in other sectors or fisheries. The
Council similarly defines the parameters of the
[[Page 52675]]
Amendment 80 sector, but does not compel the use of an LLP license in
the sector and does not explicitly restrict the use of an LLP license
that is eligible for use in the Amendment 80 sector outside of that
sector if that license is not actually used in the Amendment 80 sector.
At this time, at least one LLP originally assigned to an Amendment
80 vessel is being used on a non-Amendment 80 vessel. The Amendment 80
vessel originally issued that LLP license is currently using a
different LLP license to prosecute its non-AFA catcher/processor
fisheries. In developing a vessel-based Program, it was not the
Council's intent to disrupt the use of these (or any other) LLP
licenses but rather to ensure that when an application for Amendment 80
QS is submitted, that it is accompanied by at least one LLP that is
endorsed for use in fishing for groundfish in the Bering Sea and/or
Aleutian Islands for that Amendment QS permit.
Response: NMFS agrees in part. NMFS modified the final rule as
recommended by the commenter in points 1, 3, and 4. The Council motion,
which serves as the basis of Amendment 80, describes how an LLP license
can be used in the Program. After reviewing the draft EA/RIR/IRFA
prepared for the proposed rule (see Section 1.11.6), the final EA/RIR
(see ADDRESSES), and records of the Council action supporting the
Program, NMFS concludes the following which support the recommended
changes in points 1, 3, and 4 above:
Amendment 80 and the Program clearly define the LLP
license to which QS should be assigned in the event an Amendment 80
vessel suffers an actual total loss, constructive total loss, or
permanent ineligibility to fish.
In order to participate in the non-pollock groundfish
fisheries using a trawl catcher/processor, as defined in the CRP, a
person must own an Amendment 80 vessel and hold an LLP license endorsed
for trawl gear with a catcher/processor designation in the BS or AI.
The Council did not recommend that in all cases an LLP
license originally issued to an Amendment 80 vessel must be defined as
an Amendment 80 LLP license, or that an LLP license originally issued
to an Amendment 80 vessel must be used within the Amendment 80 sector.
Once an Amendment 80 LLP license is assigned for use in
the Amendment 80 sector, it is not intended to be used to designate a
non-Amendment 80 vessel and be used outside of the Amendment 80 sector.
The Council's action supports the commenter's
recommendation that a person must assign an LLP license endorsed for
trawl catcher/processor activity to an Amendment 80 vessel.
The Council did express concern about ``double-dipping,''
which is the process of using an LLP license endorsed for trawl
catcher/processor gear and which originally designates an Amendment 80
vessel from being used onboard a non-Amendment 80 vessel in other
groundfish fisheries, specifically those in the GOA. By allowing LLP
licenses issued to an Amendment 80 vessel to be used outside of the
Amendment 80 sector, there is the potential that the additional harvest
opportunities offered by the use of that LLP license could lead to an
increase in fishing effort in other non-LAPP fisheries.
In regards to point 2 of the comment, NMFS determined that a
modification was needed, but not exactly as the commenter suggests.
NMFS found that defining an LLP license as an ``Amendment 80 LLP
license'' only if it is noted on an application for Amendment 80 QS
would not address two situations. First, if an LLP license designates
an Amendment 80 vessel after the application period for Amendment 80 QS
has ended, it would not be considered an Amendment 80 LLP license under
the commenter's proposal. Second, if an Amendment 80 QS permit is
assigned to an LLP license originally issued to an Amendment 80 vessel,
then that LLP license becomes an Amendment 80 QS/LLP permit. However,
unless that Amendment 80 QS/LLP license designates an Amendment 80
vessel, it would not be considered an Amendment 80 LLP under the
commenter's proposal. Allowing an LLP license meeting either of these
criteria not to be defined as an Amendment 80 LLP license contravenes
the clear intent of the Program. This intent is to ensure that once an
LLP license is used in the Amendment 80 sector either to support
fishing onboard an Amendment 80 vessel or has an Amendment 80 QS permit
affixed to it, then that LLP license becomes an Amendment 80 LLP
license and cannot be used to designate a non-Amendment 80 vessel.
Therefore, NMFS modified the definition of an ``Amendment 80 LLP
license'' to include (1) LLP licenses designated on an application for
Amendment 80 QS; (2) LLP licenses that designate an Amendment 80 vessel
at any point after the effective date of this rule; and (3) any
Amendment 80 QS/LLP permit.
With these changes in the definition of an Amendment 80 LLP
license, NMFS is deleting the prohibition at Sec. 679.7(o)(2) which
limits a person from designating ``an Amendment 80 vessel on any LLP
license other than an Amendment 80 LLP license.'' With the changes in
the definition of an Amendment 80 LLP license, any time an LLP license
designates an Amendment 80 LLP license it is defined as an Amendment 80
LLP license. This prohibition is no longer necessary with the removal
of a defined list of Amendment 80 LLP licenses.
NMFS is adding two new paragraphs at Sec. 679.7(o)(2)(i) and
(o)(2)(ii) in response to the comment. The new paragraph at Sec.
679.7(o)(2)(i) clarifies that persons are prohibited from designating
any vessel other than an Amendment 80 vessel on an Amendment 80 LLP
license. This change is consistent with the commenter's recommendation,
the final EA/RIR/FRFA, and Amendment 80.
The new paragraph at Sec. 679.7(o)(2)(ii) adds a requirement that
a person who holds Amendment 80 QS and who owns an Amendment 80 vessel
also must hold an Amendment 80 LLP license endorsed for trawl catcher/
processor activity in the Bering Sea subarea or Aleutian Islands
subarea that designates that Amendment 80 vessel at all times during a
calendar year unless that Amendment 80 vessel has suffered an actual
total loss, constructive total loss, or is permanently ineligible to
receive a fishery endorsement under 46 U.S.C. 12108. This provision
ensures that a person holding multiple trawl catcher/processor endorsed
LLP licenses in the BS or AI maintains one LLP license on each vessel,
so that each Amendment 80 vessel is designated on an LLP license even
if that vessel is not fishing. This provision is necessary to meet the
clear intent of the CRP, which requires that in order to participate in
the Amendment 80 sector, a person must hold an LLP license that is
endorsed for groundfish in the Bering Sea subarea or Aleutian Islands
subarea with a catcher/processor designation. However, this paragraph
does not require that a person designate an Amendment 80 vessel on an
Amendment 80 LLP license in the event that vessel has been lost or is
no longer able to fish. If a vessel is no longer able to be used in the
fishery, then it is not necessary to assign an LLP license to that
vessel. Instead, a person who holds an LLP license that designated a
lost or permanently ineligible vessel could designate that LLP license
for use on another Amendment 80 vessel.
With these changes, several key components of the Program will be
[[Page 52676]]
improved. First, LLP licenses that were originally issued to an
Amendment 80 vessel but are currently used outside of the Amendment 80
sector would not be defined as Amendment 80 LLP licenses until such
time as they designate an Amendment 80 vessel, or the QS permit for an
Amendment 80 vessel is affixed to that LLP license. This would allow
existing business operations using these LLP licenses to continue
without being adversely affected by the Program. Second, by requiring
that each Amendment 80 LLP license designate an Amendment 80 vessel,
NMFS ensures that the clear requirements for participation in the
Amendment 80 sector are met, and reduces the potential that LLP
licenses originally issued to Amendment 80 vessels will be used outside
of the Amendment 80 sector in a manner that will increase fishing
effort in other non-Amendment 80 sector fisheries.
NMFS had proposed listing Amendment 80 LLP licenses as a means of
addressing two issues. First, it is clear that the Council intended
that in the event an Amendment 80 vessel is lost or is permanently
ineligible to fish, the QS assigned to that vessel may be assigned to
the LLP license originally assigned to that vessel. Second, it is clear
that in order to participate in the Amendment 80 sector, one must hold
an LLP license endorsed for trawl catcher/processor activity in the BS
or AI. In an effort to clarify the list of LLP licenses that would meet
both of those requirements, NMFS had created a list of LLP licenses.
However, in doing so, NMFS failed to account for those vessel operators
that were using LLP licenses originally assigned to an Amendment 80
vessel on non-Amendment 80 vessels that are ineligible to participate
in the Amendment 80 sector, or the fact that LLP licenses that were not
issued to an Amendment 80 vessel are used by Amendment 80 vessels. This
change corrects that oversight and is consistent with the Council's
intent.
Comment 2: Section 679.2 defines the terms ``Amendment 80
fishery,'' ``Amendment 80 limited access fishery,'' ``Amendment 80
sector,'' and ``BSAI trawl limited access sector.'' These terms make
the regulations difficult to understand. Improve the terminology to
provide the reader a clearer and better understanding of these groups
and sectors and how each is treated under the rule.
Response: As noted in the preamble to the proposed rule, NMFS used
terminology that is consistent with the terms used by the Council in
the development of this Program to reduce confusion. NMFS also provided
additional explanation of the terms identified by the commenter in the
preambles to the proposed and final rules. NMFS determined that
sufficient explanation of the terms used has been provided and a change
in terminology at this point would create significant confusion. NMFS
did not modify the regulations based on this comment.
Section 679.4
Comment 3: Comment supports the Amendment 80 QS permit application
requirements in the proposed rule and urges NMFS to retain those
restrictions in the final regulations.
Response: NMFS notes the comment and that the proposed requirements
have been retained in this final rule.
Comment 4: Sections 679.4(o)(1)(ii) and (iii) state that Amendment
80 QS permits may be issued to the owner of the Amendment 80 vessel or
to the holder of an LLP license originally assigned to an Amendment 80
vessel. Under these provisions, an Amendment 80 vessel owner could
transfer the LLP license originally issued for an Amendment 80 vessel,
but retain the Amendment 80 vessel. As such, the owner of an Amendment
80 vessel would be issued QS.
Clarify what would happen to the disposition of QS that was
originally issued to the vessel owner if the Amendment 80 vessel sinks
and is a total loss. Will the QS automatically be reassigned to the
holder of the LLP license originally issued for that vessel? This
scenario is especially troubling if the QS permit derived from a sunken
vessel is one of the nine QS permits required to form a cooperative. Is
the cooperative still valid, even if an Amendment 80 vessel sinks and
the associated QS permit is issued to a new owner outside the
cooperative?
Response: NMFS modified the regulations at Sec. 679.7(o)(3) based
on this comment. The proposed regulations allowed an Amendment 80 QS
permit to be assigned to the holder of the LLP license originally
issued for an Amendment 80 vessel during the initial allocation of
Amendment 80 QS (see Sec. 679.90(d)(2)(ii)), or after the initial
allocation of QS through a transfer process (see Sec. 679.90(e)(4)) if
that vessel suffers an actual total loss, constructive total loss, or
is permanently ineligible to receive a fishery endorsement under 46
U.S.C. 12108. The proposed regulations also prohibited a person from
holding Amendment 80 QS assigned to a vessel unless that person is
``designated as the owner of that Amendment 80 vessel by an abstract of
title or USCG [United States Coast Guard] documentation (see Sec.
679.7(o)(3)(ii)).''
Based on the intent expressed by the Council in developing the
Program, which is supported in the draft EA/RIR/IRFA prepared for the
proposed rule and described in the preamble of the proposed rule, NMFS
added a new prohibition in this final rule at Sec. 679.7(o)(3)(ii) to
clearly prohibit a person from holding an Amendment 80 QS permit
assigned to an Amendment 80 vessel if that Amendment 80 vessel has
suffered an actual total loss, constructive total loss, or is
permanently ineligible to receive a fishery endorsement under 46 U.S.C.
12108 after October 15 in the calendar year following the date of that
actual total loss, constructive total loss, or permanent ineligibility
to receive a fishery endorsement under 46 U.S.C. 12108.
By requiring divestiture of Amendment 80 QS by October 15 the first
year after the loss, the vessel owner would have adequate time to
initiate transfer before the application for CQ or application for an
Amendment 80 limited access fishery is due for the following year. This
deadline provides a vessel owner a minimum of nine and a half months,
assuming a vessel is lost or becomes permanently ineligible on December
31 of the preceding year, to transfer the QS to the holder of the LLP
license originally assigned to that Amendment 80 vessel under the
provisions of Sec. 679.90(e)(4). Therefore, if a vessel is lost or
becomes ineligible in the middle of a year, the vessel owner could
continue to hold the Amendment 80 QS for the following year. This
reduces the potential disruptions that mid-year divestiture could cause
to existing business arrangements. The October 15 deadline was chosen
by NMFS because it is the same as the deadline to apply for QS. In
addition, requiring divestiture by October 15 should provide any person
who may receive the QS by transfer to the LLP license originally issued
to the Amendment 80 vessel that has been lost or is now permanently
ineligible 15 days to determine whether the resulting Amendment 80 QS/
LLP license would be assigned to an Amendment 80 cooperative or limited
access fishery.
If the owner of a lost or permanently ineligible vessel sought to
retain Amendment 80 QS assigned to that vessel after October 15 in the
calendar year following the loss or permanent ineligibility of the
vessel, that person would be in violation of the prohibition and NMFS
could begin proceedings to revoke the Amendment 80 QS permit. NMFS
notes that this prohibition does not require NMFS to automatically
reissue the Amendment 80 QS permit to
[[Page 52677]]
the holder of the LLP license originally issued to the Amendment 80
vessel. NMFS assumes that should an Amendment 80 vessel be lost or
become permanently ineligible, and the LLP license originally assigned
to that Amendment 80 vessel was held by someone other than the vessel
owner, the two parties would reach a mutually beneficial arrangement
and the QS would be transferred under the transfer provisions at Sec.
679.90(f) and affixed to that LLP license.
With these changes, NMFS has addressed the questions raised by the
commenter. First, the prohibition at Sec. 679.7(o)(3)(ii) makes clear
that a vessel owner cannot continue to hold Amendment 80 QS assigned to
a vessel in the event of a vessel's loss or permanent ineligibility
after a specific deadline. Second, if an Amendment 80 QS permit
assigned to an Amendment 80 vessel can no longer be held by the owner
of a lost or permanently ineligible vessel after a specific date, that
person is in violation of the regulations, is no longer a valid
Amendment 80 QS holder, and cannot use that Amendment 80 vessel-related
QS permit in an Amendment 80 cooperative or Amendment 80 limited access
fishery after that date. Therefore that person and the Amendment 80 QS
permit that used to be held by that person will not be considered as
one of the Amendment 80 QS permit holders for purposes of meeting the
minimum number of Amendment 80 QS permits necessary to form an
Amendment 80 cooperative under the regulations at Sec.
679.91(h)(3)(ii). The Amendment 80 QS permit could be transferred to
the LLP license originally assigned to that Amendment 80 vessel under
the regulations at Sec. 679.90(f). Once the Amendment 80 QS permit is
transferred to the LLP license originally issued to that Amendment 80
vessel, the person holding that Amendment 80 QS/LLP license will be
eligible to be a member of an Amendment 80 cooperative.
This regulation is necessary to be consistent with the intent of
the Program. Regulations at Sec. 679.90(a)(2)(i)(A) clarify that a
person is eligible to receive QS as the owner of an Amendment 80 vessel
if that person, among other criteria, can demonstrate that they own an
Amendment 80 vessel through an abstract of title or USCG documentation.
This raises the question of whether a person can continue to
demonstrate ownership of an Amendment 80 vessel that suffers an actual
total loss, constructive total loss, or is permanently ineligible to
receive a fishery endorsement under 46 U.S.C. 12108 through an abstract
of title or USCG documentation, and therefore hold QS as a vessel
owner?
Regulations pertaining to vessel documentation at 46 CFR 67.7
require that any vessel of five net tons or more used in fishing
activities on navigable waters of the United States or in the Exclusive
Economic Zone (EEZ), or used in coastwise trade must be documented
through the USCG unless the vessel is exempt from documentation. All
Amendment 80 vessels are greater than five net tons, are used in
fishing activities in the EEZ, and do not meet the criteria for an
exemption for USCG documentation. Therefore, all Amendment 80 vessels
must have USCG documentation.
However, regulations pertaining to vessel documentation at 46 CFR
part 67 do not prohibit a vessel that has suffered an actual total loss
or constructive total loss from being documented. Additionally, even if
an Amendment 80 vessel is permanently ineligible to receive a fishery
endorsement under 46 U.S.C. 12108, a vessel could be documented with an
endorsement for use in a non-fishery related trade.
Additionally, even though all Amendment 80 vessels must be
documented under 46 CFR part 67, there do not appear to be any
regulations that prohibit a person from also holding a title of
abstract to a vessel that has suffered an actual total loss,
constructive total loss, or is permanently ineligible to receive a
fishery endorsement under 46 U.S.C. 12108.
The construction of the proposed rule and vessel documentation
regulations at 46 CFR part 67 create the potential that a person could
demonstrate ownership of an Amendment 80 vessel through a title of
abstract or USCG documentation even if that vessel has suffered an
actual total loss, constructive total loss, or is permanently
ineligible to receive a fishery endorsement under 46 U.S.C. 12108. In
such a case, a person could still be considered the owner of an
Amendment 80 vessel and not violate the prohibition in the proposed
rule under Sec. 679.7(o)(3)(ii).
The potential for a person to continue to hold Amendment 80 QS
assigned to an Amendment 80 vessel if that vessel has suffered an
actual total loss, constructive total loss, or is permanently
ineligible to fish contravenes the clear intent of the Council when
designing the Program. The Council did not recommend that owners of
vessels that have suffered an actual total loss, constructive total
loss, or are permanently ineligible to be used in a fishery should be
able to continue to hold QS that is assigned to that Amendment 80
vessel.
The Council contemplated that Amendment 80 QS would transfer to the
LLP license originally issued for that Amendment 80 vessel. Section
1.11.6 of the final EA/RIR/FRFA prepared for the final rule
specifically contemplates that ``catch history,'' a term synonymous
with Amendment 80 QS, could be transferred should a vessel suffer an
actual total loss, constructive total loss, or become permanently
ineligible to be used in a fishery. ``The [CRP] legislation is ``steel
based'' (i.e., linked to the hull), allowing the catch history of sunk
or lost vessel to be transferred to the originating license. This would
allow the catch history to stay in the fishery and be used on another
eligible vessel, rather than being extinguished.'' Furthermore, Section
1.11.13.5 of the final EA/RIR/FRFA prepared for the final rule notes
that catch history is affixed to the LLP license originally issued for
an Amendment 80 vessel in the event of its loss. It reads, ``In the
event of a total actual loss or constructive loss of a vessel, or
permanent inability of a vessel to be used in the Program, the catch
history will [emphasis added] be attached to the license that arose
from that vessel.''
The preamble to the proposed rule contemplates that Amendment 80 QS
would need to be transferred in the event an Amendment 80 vessel is
lost. The preamble to the proposed rule (72 FR 30077) states that
``[t]he Program would ensure that an Amendment 80 QS permit resulting
from the legal landings of an Amendment 80 vessel could be used even if
an Amendment 80 vessel were lost or became permanently ineligible to
fish in U.S. waters. Under certain conditions, NMFS would issue an
Amendment 80 QS permit to the holder of the Amendment 80 LLP license
originally assigned to an Amendment 80 vessel rather than the Amendment
80 vessel owner.'' The preamble to the proposed rule also states that
``[t]his provision is intended to allow a person to continue
participation in the Amendment 80 sector if otherwise qualified. During
the development of the Program, this provision was considered as a
means for meeting the overall intent of the Program to allow a person
to use QS under specific conditions without contravening the intent of
the CRP.''
The preamble to the proposed rule also envisioned that a QS permit
could be revoked by NMFS if a vessel is lost or becomes permanently
ineligible to fish. Specifically, the preamble to the proposed rule
detailed this situation when describing the definition of the
[[Page 52678]]
LLP license originally assigned to the F/V ENTERPRISE. Although the
example provided in the preamble describes the potential of QS being
extinguished in the event that the F/V ENTERPRISE suffered an actual
total loss, constructive total loss, or became permanently ineligible,
the example is relevant to all other Amendment 80 vessels. It reads,
``Because the F/V ENTERPRISE did not give rise to an LLP license, if
NMFS were to permit a QS permit to be transferred only to the LLP
license originally issued to an Amendment 80 vessel, the QS permit
issued to the owner of the F/V ENTERPRISE could not be assigned to any
LLP license. If the F/V ENTERPRISE was lost or became permanently
ineligible to fish in U.S. waters, the QS issued to the owner of the F/
V ENTERPRISE could be extinguished'' (72 FR 30078).
The changes made in Sec. 679.7(o)(3)(iii) meet the clear intent of
the Program and are consistent with the proposed rule. The regulations
at Sec. 679.4(o)(1)(ii) and (iii) do not need to be modified. The
regulations at Sec. 679.4(o)(1)(ii) and (iii) refer to permitting
requirements and do not address limitations on holding QS.
Comment 5: Remove the prohibition at Sec. 679.7(o)(1)(ii),
(o)(4)(i), and (o)(5)(i) limiting the receiving and processing
Amendment 80 species from the BSAI trawl limited access fishery or the
Amendment 80 limited access fishery. The following are the primary
concerns with the prohibition:
The prohibition on the processing or receiving of
Amendment 80 species from the BSAI trawl limited access sector or the
Amendment 80 limited access sector was not recommended by the industry
and was not part of the Council's recommendation to NMFS.
These prohibitions are contrary to the FMP and the overall
goals of the Program to promote bycatch reduction and improved
utilization. NMFS cannot add regulations that contravene the FMP unless
the Secretary of Commerce disapproves the action.
The prohibition was not analyzed in the EA/RIR/IRFA, nor
by the Council and therefore should be removed. Specifically, this
prohibition could adversely affect small entities as defined under the
Regulatory Flexibility Act.
The prohibition violates National Standard 9 and Executive
Order 12866.
NMFS has sufficient observation, recordkeeping and
reporting requirements, and auditing systems in place to independently
account for cooperative catch and deliveries from the BSAI limited
access sector or Amendment 80 limited access sector.
NMFS also has the tools necessary to monitor the GRS
without limiting vessel activity during a weekly reporting period.
Neither the preamble nor the regulations should suggest or
add a prohibition that would limit an Amendment 80 vessel to operating
as either a mothership, stationary floating processor, or as a fishing
vessel on a week-by-week basis (see, for example, 72 FR 30073).
Amendment 80 vessels have historically received and processed
Amendment 80 species caught by catcher vessels in the BSAI and they
have done so in conjunction with their own fishing during the same
weekly reporting period. Prohibiting this activity will not only impact
the Amendment 80 sector, but it will severely limit catcher vessels
within the BSAI limited access sector from harvesting certain Amendment
80 species. For species such as Pacific cod, catcher vessels have
existing shoreside business relationships that will continue, but for
the remaining Amendment 80 species, such as yellowfin sole, there is
limited or no shoreside capacity for processing. The proposed
prohibition is inconsistent with the goal of improving the accuracy of
the catch accounting system and reducing discards as catcher vessels
will be forced to deliver Amendment 80 species to facilities with less
than 200 percent observer coverage and no GRS requirements.
The distance of Amendment 80 species fisheries in relation to
shoreside processors may limit catcher vessels' ability to deliver a
quality product. Amendment 80 cooperative vessels have the flexibility
to act as motherships and travel to locations where the fisheries
occur. Amendment 80 vessels also have existing markets and capacity for
producing high quality products from Amendment 80 species. The proposed
prohibition against delivering BSAI limited access and Amendment 80
limited access fish to Amendment 80 vessels in cooperatives has
significant impacts on small business entities, AFA and non-AFA catcher
vessels, and Amendment 80 vessels that may choose to act as catcher
vessels in the future.
Each Amendment 80 vessel will carry two NMFS-certified observers
who will sample 100 percent of the hauls and deliveries made to the
vessel. In addition, each haul and delivery will be independently
weighed on a certified flow scale. Recordkeeping and reporting
regulations require that hauls made by a vessel be recorded separately
from deliveries made to the vessel in the Daily Cumulative Production
Logbook (DCPL) and in the Weekly Production Report (WPR) submitted to
NMFS. The proposed regulations actually provide monitoring and
enforcement requirements for vessels that receive ``unsorted catch''
(See Sec. 679.27(j)(7)).
Corroborating the vessel logbook information should not be
difficult. Two observers will be onboard and there will always be one
observer on shift to independently witness a catcher vessel delivery.
Observers record unsorted codend deliveries differently than catch the
vessel made itself. Observers record a delivering vessel's name and
ADF&G number that NMFS can use to verify a delivery was made from the
BSAI limited access sector or Amendment 80 limited access sector.
Observer data are reported daily to the Observer Program and the
Regional Office and, in conjunction with vessel logbook information,
this should be sufficient for determining on a haul by haul basis
whether catch should be debited against a cooperative's CQ, the BSAI
limited access sector, or the Amendment 80 limited access sector.
For vessels in a cooperative, the GRS will be monitored at the
cooperative level and it does not need to be met until the end of the
year, therefore in-season audits of product would serve little value
for enforcement with respect to monitoring the GRS. Observer data and
vessel logbook data are adequate for GRS monitoring and enforcement and
there is no reason to separate product in the hold or to limit a
vessel's activity by weekly reporting period.
Response: NMFS agrees in part and has modified the regulations at
679.7(o) to allow Amendment 80 vessels to receive unsorted catch in
limited circumstances. This revision will allow the one entity that
NMFS has identified as currently receiving unsorted catch from a
catcher vessel in the BSAI trawl limited access fishery to continue to
do so. This revision will accommodate potential future growth in the
use of Amendment 80 vessels as mothership vessels for vessels in the
BSAI trawl limited access fishery.
NMFS made the following modifications:
Modified Sec. 679.7(o)(1)(i) to prohibit the use of any
vessel other than an Amendment 80 vessel to catch any amount of
Amendment 80 species, crab PSC, or halibut PSC assigned to the
Amendment 80 sector. This removed the reference to processing and
receiving catch.
Modified Sec. 679.7(o)(1)(ii) to prohibit the use an
Amendment 80 vessel to catch any amount of Amendment 80 species, crab
PSC, or halibut PSC assigned to the BSAI trawl limited
[[Page 52679]]
access sector. This removed the proposed references to processing and
receiving catch.
Deleted the prohibition at Sec. 679.7(o)(1)(iii). This
removes limitations on using an Amendment 80 vessel to catch, process,
or receive catch of Amendment 80 species assigned to other fisheries.
Modified Sec. 679.7(o)(4)(i) to prohibit the use an
Amendment 80 vessel, Amendment 80 LLP license, or Amendment 80 QS
permit not assigned to an Amendment 80 cooperative for a calendar year
to catch any Amendment 80 species, crab PSC, or halibut PSC assigned to
that Amendment 80 cooperative during that calendar year. This
rephrasing removes proposed references to receiving and processing
catch and makes it clear that only vessels assigned to a cooperative
can be used to catch CQ assigned to that cooperative.
Add a new prohibition at Sec. 679.7(o)(4)(ii) to prohibit
the use of an Amendment 80 vessel assigned to an Amendment 80
cooperative for a calendar year to receive or process catch from any
Amendment 80 vessel not assigned to that Amendment 80 cooperative for
that calendar year. This provision prohibits an Amendment 80 vessel
from receiving or processing catch from Amendment 80 vessels in other
Amendment 80 cooperatives or in the Amendment 80 limited access
fishery, but it does not limit the ability of Amendment 80 vessels to
receive and process catch from other fisheries, such as the BSAI trawl
limited access fishery.
Renumber Sec. 679.7 paragraphs (o)(4)(ii), (iii), and
(iv) as Sec. 679.7(o)(4)(iii), (iv), and (v) respectively.
Modify Sec. 679.7(o)(5)(i) to prohibit the use of an
Amendment 80 vessel, Amendment 80 LLP license, or Amendment 80 QS
permit not assigned to the Amendment 80 limited access fishery for a
calendar year to catch any Amendment 80 species, crab PSC, or halibut
PSC assigned to the Amendment 80 limited access sector during that
calendar year. This rephrasing removes proposed references to receiving
and processing catch and makes it clear that only vessels assigned to
the Amendment 80 limited access fishery can be used to catch Amendment
80 species ITAC assigned to the Amendment 80 limited access fishery.
Add a new prohibition at Sec. 679.7(o)(5)(ii) to prohibit
the use of an Amendment 80 vessel assigned to the Amendment 80 limited
access fishery for a calendar year to receive or process catch from any
Amendment 80 vessel not assigned to the Amendment 80 limited access
fishery for that calendar year. This provision prohibits an Amendment
80 vessel assigned to the Amendment 80 limited access fishery from
receiving or processing catch from Amendment 80 vessels in Amendment 80
cooperatives, but it does not limit the ability of such vessels to
receive and process catch from other fisheries, such as the BSAI trawl
limited access fishery.
Renumber Sec. 679.7 paragraphs (o)(5)(ii) and (iii) as
Sec. 679.7(o)(5)(iii) and (iv) respectively.
These modifications narrow the focus of these prohibitions so that
limitations on the harvesting activities of Amendment 80 vessels are
distinct from the limitations on receiving and processing catch. A
direct result of these restructured prohibitions is that NMFS is no
longer indirectly prohibiting an Amendment 80 vessel from catching,
processing, or receiving fish allocated to the CDQ Program (see
response to comment 6 for additional detail). These more narrowly
defined prohibitions will permit the delivery of catch from the BSAI
trawl limited access fishery to the Amendment 80 sector, accommodate
existing delivery and processing patterns, and ensure adequate catch
accounting. The following table summarizes the limitations on the
delivery of unsorted catch that the suite of revised prohibitions will
impose on Amendment 80 vessels.
----------------------------------------------------------------------------------------------------------------
be received and processed by an
Can unsorted catch (codends) from . . . Amendment 80 vessel assigned to . . . Yes No
----------------------------------------------------------------------------------------------------------------
An Amendment 80 vessel in a cooperative........ Another Amendment 80 cooperative....... .......... X
An Amendment 80 vessel in a cooperative........ The same Amendment 80 cooperative...... X ..........
An Amendment 80 vessel in the Amendment 80 An Amendment 80 cooperative............ .......... X
limited access fishery.
An Amendment 80 vessel in the Amendment 80 The Amendment 80 limited access fishery X ..........
limited access fishery.
The BSAI trawl limited access sector........... An Amendment 80 cooperative or the X ..........
Amendment 80 limited access fishery.
Non-Amendment 80 non-trawl fisheries (e.g., An Amendment 80 cooperative or the X ..........
longline Pacific cod). Amendment 80 limited access fishery.
----------------------------------------------------------------------------------------------------------------
The preamble to the proposed rule stated the following reasons for
the proposed prohibitions on receiving and processing unsorted catch
from the BSAI trawl limited access sector onboard an Amendment 80
vessel: (1) Uncertainty over whether the Council intended to allow
unrestricted delivery of unsorted catch; (2) concern over the
unintended consequences of allowing Amendment 80 vessels to receive
catch from non-Amendment 80 vessels; (3) concern for GRS compliance;
and (4) concern over ensuring proper catch accounting.
In light of comment 5, NMFS reviewed the rationale for the proposed
prohibitions, examined the administrative record, and developed
additional analysis on the economic impacts of these proposed
prohibitions. NMFS has included that analysis in the FRFA, and the RIR
incorporates by reference the information and analyses contained in the
FRFA.
NMFS analyzed observer data from 2003 through 2006, a time frame
chosen for analysis because it represents recent processing patterns.
During each year of the 2003 through 2006 time period, only one
Amendment 80 vessel received catch from a non-Amendment 80 vessel. The
Amendment 80 vessel received unsorted catch from the same non-Amendment
80 catcher vessel in each year. The specific amounts of unsorted catch
delivered cannot be provided due to limitations on the release of
confidential data. Based on information available to NMFS, including
information provided by a public comment, it appears that the non-
Amendment 80 vessel and the Amendment 80 vessel are owned by the same
entity.
The entity that is engaged in delivering and processing unsorted
catch onboard an Amendment 80 vessel would not be defined as a small
entity under Small Business Administration (SBA) standards based on the
information available to NMFS concerning the predicted annual ex-vessel
revenue from this entity, and the
[[Page 52680]]
definition of a small entity in the harvesting sector used by NMFS. It
does appear that the proposed prohibitions would have limited the
ability of this one non-small entity to continue to deliver and process
unsorted catch from its non-Amendment 80 catcher vessel onboard its
Amendment 80 vessel.
This analysis indicates that the practice of delivering unsorted
catch from non-Amendment 80 vessels to Amendment 80 vessels is not as
widespread as suggested by some commenters. Although industry
participants may wish to engage in such practices in the future, the
proposed prohibitions do not appear to adversely affect any known small
entities as that term is currently defined under SBA standards.
Although the specific amount of catch being delivered from catcher
vessels to Amendment 80 vessels cannot be released, that catch
represents a small proportion of the overall catch in the BSAI. Based
on the above, previous concerns that permitting this practice would
create a significant shift in processing patterns away from existing
shore-based processors do not appear to be supported, particularly if
current rates of delivery of unsorted catch from the BSAI trawl limited
access sector to the Amendment 80 sector continue.
NMFS also re-examined its ability to track catch for purposes of
GRS compliance if unsorted catch from numerous sources were delivered
to Amendment 80 vessels. The preamble to the proposed rule specifically
requested public comment to assist NMFS in determining if there were
measures that could provide adequate catch accounting and permit this
practice. Subsequent review of the GRS program in consultation with the
NOAA Office of Law Enforcement (OLE) and industry participants
indicates that current monitoring and enforcement practices for GRS
compliance are not adversely affected by the receipt and processing of
unsorted catch from multiple vessels aboard the same vessel, provided
the weight of each codend (i.e., delivery of unsorted catch) is
adequately reported when delivered and vessel operators comply with
DCPL and WPR requirements. NMFS anticipates that GRS compliance will be
monitored by reviewing annual groundfish catch and retention for each
Amendment 80 cooperative or for each Amendment 80 vessel that is
assigned to the Amendment 80 limited access fishery. Therefore,
combining unsorted catch from multiple sources onboard a single
Amendment 80 vessel would not undermine GRS M&E requirements.
Finally, NMFS determined that, although Council intent is not clear
regarding the regulation of catch assigned to one group of fishery
participants to be received and processed by another group of fishery
participants, the Council did not expressly indicate its intent to
limit the delivery of unsorted catch. NMFS indicated that Council
intent was not clear in the preamble to the proposed rule (72 FR 30052;
May 30, 2007), and again at two public workshops on May 23, 2007 (72 FR
27798), and on June 18, 2007 (72 FR 31548), both of which were attended
by numerous participants in the Amendment 80 and BSAI trawl limited
access sectors, and a member of the Council. Further, NMFS provided a
review of the proposed rule to the Council at its June 2007 meeting,
specifically highlighting this issue and requesting that the Council
provide comments if the proposed rule contravened Council intent. At
the June 2007 Council meeting, the Council did not indicate that it
either intended or did not intend to allow catch from the BSAI trawl
limited access sector to be delivered to the Amendment 80 sector. The
Council did not provide any comments during the public comment period
for either the proposed rule or Amendment 80 to indicate that
limitations on the receipt and processing of unsorted catch contained
in the proposed rule contravened Council intent.
Based on the additional analysis NMFS conducted as a result of this
comment and the lack of Council intent to the contrary as explained
above, NMFS determined that most of the proposed prohibitions on the
delivery of catch from the BSAI trawl limited access fishery to the
Amendment 80 sector should not be included in this final rule.
Therefore, NMFS modified the regulations at 679.7(o) to allow Amendment
80 vessels to receive unsorted catch in limited circumstances.
However, NMFS did not change the proposed rule to allow Amendment
80 vessels to deliver to other Amendment 80 vessels in specific
circumstances described below because it would significantly complicate
M&E of the Program and the analysis indicates that this prohibition
will not affect any current fishing practices. As explained above, NMFS
determined that maintaining this prohibition in the final rule is not
contrary to Council intent. This prohibition is consistent with the
language of Amendment 80, and the Council provided no indication that
any of the proposed prohibitions were inconsistent with their intent.
NMFS also determined that this prohibition is necessary to
adequately monitor and enforce the Program and meet the agency's
obligations under the MSA. Properly accounting for and tracking catch
may be complicated if: (1) Catch from a vessel assigned to an Amendment
80 cooperative is processed on an Amendment 80 vessel not assigned to
that cooperative; or (2) catch from a vessel assigned to the Amendment
80 limited access fishery is processed on an Amendment 80 vessel not
assigned to the Amendment 80 limited access fishery. Although NMFS will
require two observers aboard each Amendment 80 vessel while fishing in
the BSAI, as well as other M&E reporting standards, NMFS currently has
limited mechanisms to review observer reports of catch weight and
sample composition received and processed onboard an Amendment 80
vessel and the assignment of that catch to a specific cooperative or
the Amendment 80 limited access fishery while an observer is at sea.
Observer debriefing can resolve most questions and concerns that may
arise, but observer debriefings typically take place several weeks
after an observer has disembarked from a given vessel. Such corrections
would occur well after catch has been attributed to a specific source,
and would not be timely.
As an example, observer reports corrected after observer
debriefings could indicate that unsorted catch from an Amendment 80
cooperative was incorrectly attributed to a specific cooperative and CQ
was incorrectly debited from a CQ account. Not only does this affect
the total CQ account balances, but if an amount of CQ has been
transferred to another cooperative between the time of a given delivery
of an unsorted catch and the receipt of a corrected observer report,
NMFS would have limited means to correct the CQ account. This could
result in debiting the CQ account of a third party that received the CQ
that was transferred. Without significant and potentially costly
programming changes to the catch accounting system used to track and
assign catch and changes to observer reporting protocols, NMFS remains
concerned about its ability to ensure that catch from various Amendment
80 allocations (i.e., CQ accounts for each Amendment 80 cooperative,
and the ITAC of the Amendment 80 limited access fishery) received
onboard an Amendment 80 vessel can be tracked with the degree of
accuracy necessary to ensure that catch is properly debited in a timely
and correct manner without potentially adversely affecting other
Amendment 80 sector participants.
[[Page 52681]]
Changes in the catch accounting system and observer protocols could
not be quickly and easily undertaken to allow catch from one Amendment
80 cooperative or the Amendment 80 limited access fishery to be
received and processed by vessels assigned to another Amendment 80
cooperative. Further, NMFS is not required to adopt management measures
that impose additional costs on the agency without adequate budgetary
provisions. NMFS does not have funds currently available for
substantial changes in catch accounting software and observer protocols
for this specific purpose.
The Council and NMFS produced an extensive RIR in accordance with
E.O. 12866 that examines a range of allocations and harvesting patterns
and that has been appropriately supplemented with available additional
information on this issue. The available data do not suggest that the
delivery of unsorted catch between Amendment 80 vessels is currently
occurring. Therefore, NMFS determined that maintaining this limitation
would not adversely affect existing fishing operations, would not
contravene the intent of the Program reduce discards and improve
efficiency, or violate National Standard 9.
NMFS notes that the need to transfer unsorted catch between
Amendment 80 vessels could be accommodated by Amendment 80 cooperatives
choosing to transfer the underlying CQ, rather than the catch itself.
Furthermore, NMFS notes that the prohibitions in Sec. 679.7(o) do not
restrict the ability of an Amendment 80 vessel assigned to a
cooperative to deliver catch to another Amendment 80 vessel assigned to
the same cooperative. Finally, the prohibitions in Sec. 679.7(o) do
not restrict the ability of Amendment 80 vessels assigned to the
Amendment 80 limited access fishery to deliver catch to other Amendment
80 vessels participating in the Amendment 80 limited access fishery.
Comment 6: As written, it is not clear that Amendment 80 vessels
can catch and process allocations made to the CDQ Program. Add an
exception under Sec. 679.7 paragraphs (o)(4)(i), (o)(4)(iv), and
(o)(5)(i) to make it clear that Amendment 80 vessels are authorized to
catch, process, or receive fish allocated to the CDQ Program provided
they comply with regulations applicable to the CDQ Program. Prohibiting
Amendment 80 vessels from participating in the CDQ fisheries was not
discussed by the Council nor considered as part of this action. No
analysis of the impacts of such an action was included in the EA/RIR.
Prohibiting any Amendment 80 vessel from harvesting those species
on behalf of CDQ partners would be very disruptive to the CDQ Program
and its beneficiaries. Certain Amendment 80 vessels have long-term
relationships with their CDQ partners. Not only do these harvests
contribute significantly to the revenues of these vessels, these
relationships enable western Alaska communities to benefit from the
harvest of Amendment 80 species.
Response: NMFS agrees. The prohibitions proposed in Sec. 679.7
paragraphs (o)(4)(i), (o)(4)(iv), and (o)(5)(i) had the unintentional
effect of prohibiting Amendment 80 vessels from catching, processing,
and receiving catch allocated to the CDQ Program. As the commenter
notes, Amendment 80 vessels have frequently contracted with various CDQ
groups to harvest their allocations. NMFS did not intend to
specifically exclude Amendment 80 vessels from continuing existing
business practices. As noted in the response to comment 5, NMFS will be
able to properly track and account for catch made by an Amendment 80
vessel that is catching fish allocated to the CDQ Program if that
vessel is also used to catch fish assigned to the Amendment 80 sector.
Therefore, it is not necessary to restrict an Amendment 80 vessel from
also catching, processing, or receiving catch allocated to the CDQ
Program. The changes made to the final rule as described in response to
comment 5 would relieve the prohibition on an Amendment 80 vessel
catching fish allocated to the CDQ Program at the same time that vessel
is fishing for an Amendment 80 cooperative or in the Amendment 80
limited access fishery.
Comment 7: The commenter supports regulations at Sec. 679.7(o)
that prohibit an Amendment 80 vessel from taking deliveries of unsorted
catch from the BSAI trawl limited access fishery. Allowing Amendment 80
vessels to receive catch from the BSAI trawl limited access sector
would put them at a competitive advantage over existing processors.
Response: As explained in the response to comment 5, NMFS proposed
the prohibitions in Sec. 679.7(o) limiting the receipt and processing
of Amendment 80 species in an effort to meet what was believed to be
Council intent, and to ensure adequate accounting of catch. Other
commenters have noted that nothing in the Program specifically
prohibits the receipt and processing of catch by Amendment 80 vessels,
and the Council did not explicitly intend to limit Amendment 80 vessels
as NMFS had proposed. In addition, after a subsequent review of M&E
measures described in the response to comment 5, NMFS has determined
that NMFS can adequately track catch of fish from the BSAI trawl
limited access fishery and ensure compliance with GRS requirements and
catch accounting protocols. NMFS has revised Sec. 679.7(o) to allow
Amendment 80 vessels to receive and process catch from the BSAI trawl
limited access sector.
NMFS notes that currently, at least one Amendment 80 vessel
processes unsorted catch from catcher vessels although the amount of
fish processed in this manner is relatively small compared to total
BSAI processing activities. NMFS cannot predict the extent to which
this practice might increase in the future, or whether this practice
would have any adverse economic impact on existing processing
operations. Numerous commenters from both the Amendment 80 and BSAI
trawl limited access sectors noted that currently there are limited
shore-based markets for Amendment 80 species and Amendment 80 vessels
may provide the best processing market. NMFS does not intend to limit
processing operations of Amendment 80 vessels at this time except as
necessary to ensure adequate compliance with catch monitoring and
enforcement standards. A review of processing operations by shore-based
processors and Amendment 80 vessels could provide the basis for a
future regulatory amendment should the Council identify and recommend
additional changes to the Program to address potential conflicts that
may arise.
Comment 8: Modify regulations to allow the F/V ALLIANCE to replace
a vessel in the Alaska weathervane scallop fishery. Make the following
changes to the regulatory text to permit the use of the F/V ALLIANCE in
the scallop fishery without the M&E requirements and catch accounting
standards generally applicable to Amendment 80 vessels:
Modify Sec. 679.7(o)(1)(iii) to prohibit the use of an
Amendment 80 vessel in a directed groundfish fishery to catch, process,
or receive any amount of Amendment 80 species, crab PSC, or halibut PSC
in the BSAI for a calendar year if that Amendment 80 vessel is not
assigned to an Amendment 80 cooperative or the Amendment 80 limited
access fishery.
Modify Sec. 679.7(o)(6)(i) to prohibit the use of an
Amendment 80 vessel or a catcher/processor not listed in Sec.
679.4(l)(2)(i) and using trawl gear, to catch, process, or receive
groundfish in the BSAI or adjacent waters opened by
[[Page 52682]]
the State of Alaska for which it adopts a Federal fishing season and
fail to follow the catch monitoring requirements detailed at Sec.
679.93(a), (b), and (c).
Modify Sec. 679.92(b)(1) to clarify that Amendment 80
vessels may not be used to catch more than the sideboard amounts of
groundfish in the management areas specified in Table 37 to part 679
from January 1 through December 31 of each year; except that groundfish
catches of Amendment 80 vessels using non-trawl gear in a non-
groundfish fishery shall not be applied to the Amendment 80 sideboard
limitations.
Modify Sec. 679.92(b)(2) to clarify that an Amendment 80
vessel fishing in a non-trawl non-groundfish fishery is not subject to
the groundfish or halibut PSC sideboard limits in Tables 37 and 38 to
part 679.
Modify Sec. 679.93(c) and (d) to clarify that catch
monitoring standards for Amendment 80 vessels in the BSAI and GOA apply
only when an Amendment 80 vessel is fishing in a ``directed groundfish
fishery.''
Modify Sec. 679.93(e) to clarify that only the catch by
Amendment 80 vessels fishing in a directed groundfish fishery should
apply to CQ accounts, the Amendment 80 limited access fishery, or
Amendment 80 GOA sideboard limits for purposes of accounting for
Amendment 80 species, crab PSC, or halibut PSC.
The proposed regulations at Sec. 679.50(c)(6) relating to observer
coverage requirements for Amendment 80 vessels fishing in the BSAI and
GOA would not apply to the F/V ALLIANCE if and when that vessel is used
as a scallop vessel. The proposed observer coverage regulations in the
BSAI at Sec. 679.50(c)(6)(i) apply only to vessels using trawl gear
and only for each day that the vessel is used to harvest, receive, or
process groundfish in the BSAI or adjacent waters open by the State of
Alaska for which it adopts a Federal fishing season. The observer
coverage regulations at Sec. 679.50(c)(6)(ii) applicable to Amendment
80 vessels fishing in the GOA require that such vessels must have
onboard at least one NMFS certified observer for each day that the
vessel is used to harvest, receive, or process groundfish in the GOA
management areas or adjacent waters open by the State of Alaska for
which it adopts a Federal fishing season. These paragraphs provide
examples showing the clear intent to apply M&E requirements only to
Amendment 80 vessels operating in the groundfish fisheries.
Further, although NMFS may be concerned about the possibility that
Amendment 80 vessels could use non-trawl gear, such as longline gear to
target Pacific cod, and possibly avoid certain M&E requirements such as
observer coverage in the BSAI, NMFS should not apply M&E requirements
applicable for monitoring the Program to non-groundfish fisheries
generally. The objectives of the M&E requirements, which are described
in Section 3.3.7 of the Amendment 80 EA, specify objectives necessary
for monitoring groundfish catch to ensure compliance with regulations
governing the groundfish fishery and provide an authoritative, timely,
and unambiguous record of quota harvested. These concerns do not extend
to the use of an Amendment 80 vessel while fishing under the authority
of a non-groundfish fishery management plan, such as the scallop
fishery, with its own M&E requirements.
Incidental catch of Amendment 80 species and PSC by the F/V
ALLIANCE while fishing in the scallop fishery should not be debited
against allocations to an Amendment 80 cooperative or the Amendment 80
limited access fishery to which the F/V ALLIANCE may be assigned while
fishing in the BSAI. Likewise, additional catch by the F/V ALLIANCE of
species subject to sideboard limits while fishing for scallops in the
GOA should not be debited against GOA sideboard limits applicable to
Amendment 80 vessels generally.
Response: NMFS agrees in part and has modified the final rule to
relieve specific M&E and catch accounting regulations when an Amendment
80 vessel is using dredge gear while directed fishing for scallops.
This change is not inconsistent with the Council's intent or the FMP.
NMFS notes that the suite of M&E measures, catch accounting provisions,
and sideboard measures described in the final EA/RIR/FRFA were
specifically developed to ensure catch accounting by Amendment 80
vessels operating in groundfish fisheries. There is no indication that
non-groundfish fisheries were intended to be subject to M&E and catch
accounting measures developed under the Program.
The commenter provides a well-reasoned rationale for not applying
specific M&E and catch accounting standards to a vessel that is engaged
in a specific non-groundfish fishery. The commenter identifies one
fishery, the scallop fishery, where one Amendment 80 vessel, the F/V
ALLLIANCE, could be used. The number of potential entrants into the
scallop fishery is limited by the Scallop LLP, substantial controls on
gear use exist, and the scallop fishery is carefully monitored by the
State of Alaska. Furthermore, most participants in the scallop fishery
have established an industry-based private contractual agreement to
coordinate fishing operations. It is reasonable to assume that fishing
effort would not increase should the F/V ALLIANCE replace a vessel
currently operating in the scallop fishery. Additionally, other non-
Amendment 80 vessels could be used to replace vessels in the scallop
fishery, therefore the specific use of the F/V ALLIANCE in the scallop
fishery should not have any effect on the scallop fishery that would
differ from the use of any other replacement vessel. It is reasonable
to assume that relieving an Amendment 80 vessel of specific M&E and
catch accounting provisions applicable under the Program when that
vessel is used for scallop fishing would not have any effect on either
the scallop fishery or the Amendment 80 fishery which is not already
considered and analyzed.
However, the commenter also proposes relieving M&E and catch
accounting standards on an Amendment 80 vessel when it is not
``directed groundfish fishing.'' By using this term, the commenter
seems to suggest that M&E and catch accounting requirements should be
relieved for any Amendment 80 vessel participating in any non-
groundfish fishery such as the BSAI crab fishery, the halibut IFQ
fishery, or while fishing for non-groundfish species such as
grenadiers. NMFS determined that providing a general exemption from
M&E, catch accounting, and sideboard limitations applicable under the
Program for Amendment 80 vessels when not engaged in directed
groundfish fishing could create the potential for Amendment 80 vessels
to be used in non-groundfish fisheries in ways that cannot be easily
anticipated. Furthermore, the commenter has specifically identified
only one vessel and one fishery for which relief from Amendment 80 M&E
and catch accounting regulations is specifically sought.
Based on these factors, and the lack of any other comments from any
other Amendment 80 vessel owners supporting a broad relief from M&E and
catch accounting standards for other non-groundfish fisheries, NMFS
relieved these restrictions only when an Amendment 80 vessel is using
dredge gear while directed fishing for scallops. Because dredge gear is
the authorized gear for scallop fishing, and is not used in other non-
groundfish fisheries, this regulatory construction narrows the
[[Page 52683]]
applicability of this M&E and catch accounting exemption. In the
future, if other Amendment 80 vessel owners identify specific non-
groundfish fisheries in which they wish to use their vessels, the
Council can review and consider such requests through the Council
process.
NMFS made the following changes to the regulatory text:
Revised Sec. 679.7(o)(4)(iii) as renumbered based on the
response to comment 5 to clarify that an Amendment 80 vessel assigned
to a cooperative must maintain a CQ permit onboard unless that
Amendment 80 vessel is using dredge gear while directed fishing for
scallops.
Revised Sec. 679.7(o)(5)(iii) as renumbered based on the
response to comment 5 to clarify that an Amendment 80 vessel assigned
to the Amendment 80 limited access fishery must maintain an Amendment
80 limited access fishery permit onboard unless that Amendment 80
vessel is using dredge gear while directed fishing for scallops.
Modified Sec. 679.7(o)(6)(i) to clarify that an Amendment
80 vessel is prohibited from failing to follow catch monitoring
standards in the BSAI under Sec. 679.93(a), (b), and (c) if the
Amendment 80 vessels is using any gear but dredge gear while directed
fishing for scallops.
Modified Sec. 679.7(o)(6)(ii) to clarify that an
Amendment 80 vessel subject to a GOA sideboard limit under Sec.
679.92(b) and (c) is prohibited from failing to follow catch monitoring
standards in the GOA under Sec. 679.93(a), (b), and (d) if the
Amendment 80 vessel is using any gear but dredge gear while directed
fishing for scallops.
Modified Sec. 679.92(b)(1) to clarify that GOA groundfish
sideboard limits specified in Table 37 to this part do not apply when
an Amendment 80 vessel is using dredge gear while directed fishing for
scallops in the GOA.
Modified Sec. 679.92(b)(2) by renumbering part of (b)(2)
as (b)(2)(i) and inserting a new paragraph, (b)(2)(ii), to clarify that
halibut PSC sideboard limits in Table 38 to this part do not apply when
an Amendment 80 vessel is using dredge gear while directed fishing for
scallops in the GOA.
Modified the introductory text to Sec. 679.93(c) to note
that catch monitoring requirements for Amendment 80 vessels in the BSAI
apply to all Amendment 80 vessels except Amendment 80 vessels using
dredge gear while directed fishing for scallops.
Modified the introductory text to Sec. 679.93(d) to note
that catch monitoring requirements for Amendment 80 vessels in the GOA
apply to all Amendment 80 vessels except Amendment 80 vessels using
dredge gear while directed fishing for scallops.
Modified Sec. 679.93(e)(1)(i) to note that catch of
Amendment 80 species by an Amendment 80 vessel assigned to an Amendment
80 cooperative is debited from that cooperative's CQ permit unless that
Amendment 80 vessels is using dredge gear while directed fishing for
scallops.
Modified Sec. 679.93(e)(1)(ii) to note that catch of
Amendment 80 species by an Amendment 80 vessel assigned to the
Amendment 80 limited access fishery is debited from that ITAC for the
Amendment 80 limited access fishery unless that Amendment 80 vessels is
using dredge gear while directed fishing for scallops.
Modified Sec. 679.93(e)(2)(i) to note that use of crab
and halibut PSC by an Amendment 80 vessel assigned to an Amendment 80
cooperative is debited from that cooperative's CQ permit unless that
Amendment 80 vessels is using dredge gear while directed fishing for
scallops.
Modified Sec. 679.93(e)(2)(ii) to note that use of crab
and halibut PSC by an Amendment 80 vessel assigned to the Amendment 80
limited access fishery is debited from the crab and halibut PSC limit
for the Amendment 80 limited access fishery unless that Amendment 80
vessels is using dredge gear while directed fishing for scallops.
Modified Sec. 679.93(e)(3) to note that catch of
Amendment 80 GOA sideboard species by an Amendment 80 vessel in the GOA
is debited from the Amendment 80 sideboard limit except Amendment 80
sideboard species caught by Amendment 80 vessels using dredge gear
while directed fishing for scallops.
Modified Sec. 679.93(e)(4)(iii) to note that use of
halibut PSC by an Amendment 80 vessel in the GOA is debited from the
Amendment 80 sideboard limit except halibut PSC used by Amendment 80
vessels using dredge gear while directed fishing for scallops.
Additionally, NMFS modified the observer coverage regulations based
on the comments concerning the potential for an Amendment 80 vessel to
use non-trawl gear in the BSAI and thereby avoid observer coverage
requirements that are intended to ensure adequate catch accounting.
NMFS did not anticipate, or intend, that an Amendment 80 vessel could
avoid required observer coverage by choosing not to use trawl gear in
the BSAI. NMFS had assumed that Amendment 80 vessels would continue to
use trawl gear in the BSAI, and therefore applied observer coverage
based on the use of that gear type. The commenter is correct in noting
that nothing in the regulations would require an Amendment 80 vessel to
use trawl gear to catch fish in the BSAI. NMFS notes that the commenter
does not advocate relieving observer coverage requirements applicable
to Amendment 80 vessels that may choose to use non-trawl gear, other
than specifically for Amendment 80 vessels fishing in the scallop
fishery.
Section 1.10.6 of the final EA/RIR/FRFA prepared for this action
notes that NMFS must be able to ensure adequate catch accounting,
particularly when monitoring at-sea discards and use of PSC, and notes
the particular advantages offered by expanding observer coverage to
ensure that all catch is properly observed. NMFS has modified section
1.10.6 of the final EA/RIR/FRFA to clarify that observer coverage
requirements are applicable to Amendment 80 vessels regardless of the
specific gear type used, with the specific exemption made for an
Amendment 80 vessel using dredge gear while directed fishing for
scallops.
Based on these factors, NMFS made several modifications in observer
coverage regulations at Sec. 679.50 to apply observer coverage
standards to Amendment 80 vessels as necessary for adequate catch
accounting, and clarify that specific observer coverage does not apply
to Amendment 80 vessels that may be fishing in the scallop fishery.
Specifically, NMFS made the following changes:
Modified Sec. 679.50(a)(8) to specify that observer
regulations applicable to Amendment 80 vessels are found in Sec.
679.50(c)(6).
Modified Sec. 679.50(c)(6)(i) to clarify that the
observer standards in the BSAI apply to all Amendment 80 vessels using
any gear but dredge gear while directed fishing for scallops and to
catcher/processors not listed in Sec. 679.4(l)(2)(i) and using trawl
gear. This modification extends observer coverage to Amendment 80
vessels using any gear, such as longline gear in the Pacific cod
fishery.
Modified Sec. 679.50(c)(6)(ii) to clarify that the
observer standards in the GOA apply to all Amendment 80 vessels using
any gear but dredge gear while directed fishing for scallops, except
for the F/V GOLDEN FLEECE.
Section 679.21
Comment 9: Section 679.21 of the proposed rule establishes halibut
PSQ for the CDQ sector. No rationale exists in either the draft EA/RIR/
IRFA or the proposed rule that justifies increasing CDQ halibut PSQ
under the Program
[[Page 52684]]
while at the same time decreasing the halibut PSQ over time for the
Amendment 80 sector. It is not clear why the CDQ Program should be
granted this additional benefit of increased halibut PSQ. If the goal
of the Program is, as stated, to reduce bycatch, then reducing halibut
bycatch for the CDQ Program and the Amendment 80 sector is the only
alternative consistent with that goal. There is no biological or
practical rationale for this double standard. Failure to treat the two
sectors equally without a sound scientific basis potentially violates
MSA National Standards 2 and 9.
Response: The preamble to the proposed rule specifically addresses
the rationale for increasing the allocation of halibut PSQ (72 FR
30062), and this rationale is further described in section 1.10.3 of
the draft EA/RIR/IRFA prepared for the proposed rule. Generally, less
than half of the halibut PSQ allocation to the CDQ Program has been
used in any fishing year. However, CDQ groups have not traditionally
harvested their full allocations of species such as rock sole,
yellowfin sole, or other Amendment 80 species with higher halibut PSQ
use rates. With the implementation of the Program, Amendment 80 vessels
may have more flexibility to contract with CDQ groups to fully harvest
the CDQ Program groundfish allocations, which may result in higher
halibut bycatch.
The biological rationale for the increase in the halibut PSQ is to
accommodate anticipated increased harvest of Amendment 80 species by
the CDQ Program and the attendant increase in halibut PSC use. The
adjustment to the halibut PSQ allocation does not increase the total
amount of halibut PSC that is used in the BSAI, it merely reapportions
the amount of halibut PSC that is available to accommodate anticipated
halibut PSC use by the CDQ Program. The commenter's assertion that this
reapportionment of halibut PSC somehow increases the overall bycatch of
halibut is incorrect.
NMFS is not applying a ``double standard'' to halibut PSC use
between the Amendment 80 sector and the CDQ Program. The Council
considered that by increasing the allocation of Amendment 80 species to
CDQ groups, it became increasingly likely that CDQ groups would have a
greater economic incentive to harvest a greater proportion of their
Amendment 80 species CDQ allocations. NMFS notes that the increase of
halibut PSQ to the CDQ Program is roughly proportional to the increase
in the allocation of groundfish species TACs to the CDQ Program
overall. The amount of certain groundfish TACs allocated to the CDQ
Program has increased from 7.5 percent to 10.7 percent excluding fixed
gear sablefish, pollock, and other species not subject to allocation.
Overall, the total amount of groundfish allocated to the CDQ Program
has increased.
NMFS notes that halibut PSC is assigned to the CDQ Program for use
in fixed gear fisheries and trawl fisheries. As described in the
preamble to the proposed rule, the amount of halibut PSQ assigned to
the CDQ Program that is derived from the allocation to trawl gear under
the Program would increase from 276 mt to 326 mt. The Program does not
increase the allocation of halibut PSQ that is derived from the
allocation to fixed gear. This is consistent with the fact that the
increase in groundfish allocations to the CDQ Program are likely to be
harvested using trawl gear, and any PSC needed to harvest the increased
allocations should be derived from the overall amount of PSC available
for use by trawl gear. Overall, the amount of the total trawl PSC limit
assigned to the CDQ Program will increase from 7.5 percent to 8.9
percent under the Program. This increase is relative, but not directly
proportional to the increase in the amount of the groundfish
allocations made to the CDQ Program.
As noted in the preamble to the proposed rule, NMFS anticipates
that with the improved efficiencies that cooperative management could
provide the Amendment 80 sector, it is likely that CDQ groups could
more effectively partner with participants in the Amendment 80 sector
to harvest the CDQ allocations. The increase in halibut PSQ is
anticipated to provide adequate amounts of PSC for the CDQ Program
without adversely affecting existing fishery participants.
Specifically, section 1.11.5 provides a detailed description of current
and historic PSC use and the use of PSC that would be anticipated as
necessary to fully harvest allocations provided to the Amendment 80 and
BSAI trawl limited access sectors given the allocation of PSC to the
CDQ Program. These data do not indicate that PSC allocations are likely
to constrain Amendment 80 or BSAI trawl limited access sector
participants. Further, the Council recommended phasing in the increase
in halibut PSQ in recognition of the fact that the CDQ groups may
require several years before they develop harvesting capacity and
markets necessary to fully harvest their increased allocation of
Amendment 80 species, and therefore would not require an increased
allocation of halibut PSQ immediately.
The allocations of halibut PSC to the Amendment 80 sector were
reviewed in detail by the Council and are proportionate to the
allocations of groundfish species, and were determined to be sufficient
to allow the Amendment 80 sector to fully harvest its allocation of
groundfish species. Furthermore, NMFS anticipates that vessel operators
will be able to tailor their fishing operations to reduce the use of
halibut PSC under cooperative management.
The commenter's assertion that increasing halibut PSQ violates MSA
National Standard 2 ``Conservation and management measures shall be
based upon the best available information'' (16 U.S.C. 1851(a)(2)), or
National Standard 9 ``Conservation and management measures shall, to
the extent practicable, (A) minimize bycatch and (B) to the extent
bycatch cannot be avoided, minimize the mortality of such bycatch'' (16
U.S.C. 1851(a)(9)), is not valid. The increased allocation of halibut
PSC to the CDQ Program as halibut PSQ is based on a review of projected
use of halibut PSQ by CDQ groups using the best available information
on past and potential future harvest patterns and bycatch rates. As
noted earlier, increasing the amount of halibut PSQ assigned to the CDQ
Program does not increase the total amount of halibut bycatch used in
the BSAI. However, overall the Program does minimize bycatch of
halibut. NMFS did not modify the regulations based on this comment.
Comment 10: Under the Council's recommendation for Amendment 85 to
the FMP, it was understood that the catcher vessel trawl sector would
be assigned a specific amount of halibut PSC distinct from the AFA
trawl catcher/processor or Amendment 80 sectors. Under the proposed PSC
allocations in Amendment 80, it appears that the AFA catcher vessel,
non-AFA catcher vessel, and the AFA catcher/processor sectors will
operate on the same halibut and crab PSC limits. Given the restrictions
applicable to AFA catcher/processors this may not result in
difficulties. However, during the annual specification process, the
Council may find it difficult to apportion halibut and crab PSC among
the participants within the BSAI trawl limited access sector. It is not
yet clear how the annual specifications process will be altered to
accommodate PSC apportionment in the BSAI trawl limited access sector.
Response: The final rule implementing Amendment 85, published
September 4, 2007, did not change how PSC is allocated among trawl
sectors; the Council's
[[Page 52685]]
recommended modifications to PSC allocations were not approved by NMFS.
The preamble to the proposed rule for Amendment 80 notes that the
allocation of PSC under Amendment 80 would supersede the allocation of
PSC established by the final rule for under Amendment 85 (see 72 FR
30068). This final rule continues the use of the harvest specification
process as the mechanism for apportioning halibut and crab PSC among
the BSAI trawl limited access sector participants. NMFS notes that the
Council did not envision or recommend that the Program retain any
aspect of the apportionment of halibut and crab PSC recommended under
Amendment 85 as the basis for apportioning PSC among participants in
the BSAI trawl limited access sector. NMFS did not m