[Federal Register: December 30, 2002 (Volume 67, Number 250)]
[Rules and Regulations]
[Page 79691-79739]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30de02-9]
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Part II
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 679
Fisheries of the Exclusive Economic Zone Off Alaska; Amendments 61/61/
13/8 to Implement Major Provisions of the American Fisheries Act; Final
Rule
[[Page 79692]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 011128283-2291-02; I.D. 111401B]
RIN 0648-AN55
Fisheries of the Exclusive Economic Zone Off Alaska; Amendments
61/61/13/8 to Implement Major Provisions of the American Fisheries Act
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues final regulations to implement the following
American Fisheries Act (AFA)-related amendments: Amendment 61 to the
Fishery Management Plan for the Groundfish Fishery of the Bering Sea
and Aleutian Islands Area, Amendment 61 to the Fishery Management Plan
for Groundfish of the Gulf of Alaska, Amendment 13 to the Fishery
Management Plan for Bering Sea and Aleutian Islands King and Tanner
Crab, and Amendment 8 to the Fishery Management Plan for the Scallop
Fishery off Alaska. These four amendments incorporate the provisions of
the AFA into the fishery management plans (FMPs) and their implementing
regulations. The management measures include: measures that allocate
the Bering Sea and Aleutian Islands Management Area (BSAI) pollock
among the sectors of the pollock processing industry and restrict who
may fish for and process pollock within each industry sector; measures
that govern the formation and operation of fishery cooperatives in the
BSAI pollock fishery; harvesting and processing limits known as
sideboards to protect the participants in other fisheries from
spillover effects resulting from the rationalization of the BSAI
pollock fishery; measures that establish catch weighing and monitoring
requirements for vessels and processors that participate in the BSAI
pollock fishery; and extension of the inshore/offshore regime for
pollock and Pacific cod in the Gulf of Alaska (GOA) through December
31, 2004. These amendments and management measures are necessary to
implement the AFA and are intended to do so in a manner consistent with
the environmental and socioeconomic objectives of AFA, the Magnuson-
Stevens Fishery Management and Conservation Act (Magnuson-Stevens Act),
and other applicable laws.
DATES: This regulation becomes effective on January 29, 2003 through
December 31, 2007, except for amendments to Sec. Sec. 679.28(c)(3),
679.28(c)(4)(iii), 679.28(g), 679.61(b), 679.61(d)(1)(iv),
679.61(d)(1)(v), 679.61(d)(2), 679.61(e)(2)(v), and 679.63(c)(2), which
will become effective after Paperwork Reduction Act (PRA) approval and
issuance of control numbers have been received from the Office of
Management and Budget (OMB) and a Federal Register document has been
published to make them effective.
ADDRESSES: The Final Environmental Impact Statement/Regulatory Impact
Review/Final Regulatory Flexibility Analysis (FEIS/RIR/FRFA) prepared
for Amendments 61/61/13/8 is available in the NEPA section of the NMFS
Alaska Region home page at http://www.fakr.noaa.gov. Paper copies of
the FEIS/RIR/FRFA prepared for Amendments 61/61/13/8 may be requested
from Lori Gravel, NMFS, Alaska Region, P.O. Box 21668, Juneau, AK
99802, phone: 907-586-7247, email: lori.gravel@noaa.gov. Send comments
on information collection requests to NMFS and to OMB, Office of
Information and Regulatory Affairs, Office of Management and Budget,
Washington, DC 20503 (Attn: NOAA Desk Officer).
FOR FURTHER INFORMATION CONTACT: Kent Lind, 907-586-7228 or email:
kent.lind@noaa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
NMFS manages the groundfish fisheries in the exclusive economic
zone (EEZ) of the BSAI and Gulf of Alaska (GOA) under the FMPs for
groundfish in the respective areas. With Federal oversight, the State
of Alaska (State) manages the commercial king crab and Tanner crab
fisheries in the BSAI and the commercial scallop fishery off Alaska
under the FMPs for those fisheries. The North Pacific Fishery
Management Council (Council) prepared, and NMFS approved, the FMPs
under the authority of the Magnuson-Stevens Act (16 U.S.C. 1801 et
seq.). Regulations implementing the FMPs appear at 50 CFR part 679.
General regulations governing U.S. fisheries also appear at 50 CFR part
600.
Subtitle II of the AFA (Div. C, Title II, Pub. L. 105-277, 112
Stat. 2681 (1998)) mandated sweeping changes to existing management
program for the BSAI pollock fishery and, to a lesser extent, affected
the management of the other groundfish, crab, and scallop fisheries off
Alaska. In response, the Council developed Amendments 61/61/13/8 and
the regulatory program set out in this final rule to give effect to the
required and discretionary provisions of the AFA.
Amendments 61/61/13/8 were developed through a 3-year public
process that included 12 Council meetings and numerous other public
meetings held by NMFS and the Council during that period. While
Amendments 61/61/13/8 were under development, the deadlines and
statutory requirements of the AFA were met on an interim basis through
several emergency interim rules. The final EIS for Amendments 61/61/13/
8 contains a summary of the extensive public process involved in the
development of the amendments and describes the AFA-related rulemaking
completed to date.
The proposed rule for Amendments 61/61/13/8 was published on
December 17, 2001 (66 FR 65028), with comments invited through January
31, 2002. NMFS received 12 letters of comment by the end of the comment
period on the proposed rule, many of which contained extensive comments
on various sections of the proposed rule. A notice of availability of
Amendments 61/61/13/8 was published on November 27, 2001 (66 FR 59225),
with comments on the Amendments invited through January 28, 2002. NMFS
received one comment letter on the amendments that supported approval
and no comments that recommended disapproval. These comments are
summarized and responded to in the Response to Comments section below.
On February 27, 2002, NMFS partially approved Amendments 61/61/13/
8. NMFS disapproved the December 31, 2004, sunset dates contained in
the amendments because the sunset dates were inconsistent with new
legislation making the AFA permanent. The remaining text in Amendments
61/61/13/8 was approved. Section 213 of the AFA as passed by Congress
contained a December 31, 2004, sunset date and authorized the Council
to review and extend the AFA management program in 2004. As submitted
by the Council, Amendments 61/61/13/8 contained this December 31, 2004,
sunset date. However, after the amendments were submitted for
Secretarial review, Congress passed H.R. 2500, the ``Department of
Commerce and Related Agencies Act, 2002,'' which contained a provision
that removed the December 31, 2004, sunset date from the AFA. As a
result, NMFS found it necessary to reconcile the sunset dates contained
in the FMP amendments and proposed
[[Page 79693]]
rule with the newly-amended AFA which contained no such sunset date.
II. Final Rule as Adopted
The following is a summary of the major elements of the final rule.
Because this final rule has been reorganized and contains various
modifications from the proposed rule, we are including here a full
discussion of the changes between the proposed and final rule.
A. Definitions
This final rule adds the following definitions to Sec. 679.2 to
describe vessels and processors eligible to participate in the BSAI
pollock fishery under the AFA: ``AFA catcher/processor,'' ``AFA catcher
vessel,'' ``AFA crab processing facility,'' ``AFA entity,'' ``AFA
inshore processor,'' ``AFA mothership,'' ``Designated primary
processor,'' ``Listed AFA catcher/processor,'' ``Official AFA record,''
``Restricted AFA inshore processor,'' ``Stationary floating
processor,'' ``Unlisted AFA catcher/processor,'' and ``Unrestricted AFA
inshore processor.''
The definitions of ``AFA entity'' and ``Affiliation'' have been
restructured to improve clarity by moving the substantive elements of
the definitions of AFA entity and affiliation to a new section entitled
Sec. 679.66 Excessive shares. In addition, the criteria for 10-percent
or greater ownership has been modified from the proposed rule by
eliminating the criteria of ``shared assets and liabilities.'' This
change was made in response to comment from industry that identified
potential unintended effects of the definition.
A definition for ``Official AFA record'' is added to describe the
relevant catch histories of all potentially qualifying vessels in the
BSAI pollock fisheries. A definition of ``Stationary floating
processor'' is added to define a vessel of the United States operating
solely as a mothership in Alaska State waters that remains anchored or
otherwise remains stationary while processing groundfish harvested in
the GOA or BSAI.
Finally, this final rule revises the definition of ``Inshore
component in the GOA'' and removes the definitions of ``Inshore
component in the BSAI'' and ``Offshore component in the BSAI'' because
the previous inshore/offshore regime for pollock in the BSAI has been
superseded by the AFA.
B. AFA Permit Requirements for Vessels, Processors, and Inshore
Cooperatives
This final rule establishes permit requirements for AFA catcher/
processors, AFA catcher vessels, AFA motherships, AFA inshore
processors, and AFA inshore cooperatives in a new Sec. 679.4(l). Any
vessel used to engage in directed fishing for a non-community
development quota (CDQ) allocation of pollock in the BSAI and any
processor that receives pollock harvested in a non-CDQ directed pollock
fishery in the BSAI is required to maintain a valid AFA permit onboard
the vessel or at the processor location at all times that non-CDQ
pollock is being harvested or processed. The AFA does not limit who may
participate in the CDQ pollock fishery. Therefore, vessels or
processors participating in the pollock CDQ fishery are not required to
have AFA permits. In addition, any vessel owner that participates in a
BSAI pollock cooperative must have a valid AFA permit for every vessel
that participates in a cooperative regardless of whether or not the
vessel actually engages in directed fishing for pollock in the BSAI.
Finally, these new AFA permits do not exempt a vessel operator, vessel
owner, or pollock processor from any other applicable permit or
licensing requirements required by State or Federal regulations.
AFA vessel and processor permits may not be used on or transferred
to another vessel or processor, except under the replacement vessel
provisions outlined below. However, AFA permits may be amended to
reflect any change in the ownership of the vessel or processor. The
owner or owners of an AFA vessel or AFA processor are required to
notify NMFS of any changes in ownership within 60 days of the change in
ownership of the AFA vessel or processor.
The final rule contains the following substantive changes to the
general AFA permit requirements contained in the proposed rule:
1. AFA permit application deadline eliminated. The proposed rule
contained a 60-day application deadline for all AFA vessel and
processor permits. Several letters of comment noted that the proposed
application deadline could pose difficulties for fishermen, especially
if the application period occurred during a fishing season when vessel
owners may be working at sea and out of contact. Therefore, we have
eliminated the application deadline from the final rule.
2. AFA catcher vessel and catcher/processor permits will be renewed
automatically. Under the proposed rule, all interim AFA permits would
have expired 60 days after the effective date of the final rule and
vessel owners would have been required to reapply for their permanent
AFA permits. NMFS has reconsidered the need to collect additional
information from the owners of catcher vessels and catcher processors
and has decided to renew existing interim permits automatically.
However, under this final rule, the owners of AFA motherships and AFA
inshore processors must still reapply for permanent AFA permits. NMFS
is requiring the owners of AFA motherships and AFA inshore processors
to reapply for their AFA permits in order to collect data
confidentiality waivers that are necessary for the administration of
crab processing sideboard limits. All interim AFA mothership and AFA
inshore processor permits will expire on December 31, 2002.
3. Final AFA vessel and processor permits have no expiration date.
All AFA vessel and processor permits will have no expiration date and
will remain valid indefinitely unless revoked by NMFS. The proposed
rule contained a December 31, 2004 expiration date which was consistent
with section 213 of the AFA when the proposed rule was published.
However, as noted above, Congress has subsequently removed the sunset
date from section 213 of the AFA.
AFA Permit Application and Administrative Appeals Process
Application forms for all AFA permits may be downloaded from the
NMFS Alaska Region home page at http://www.fakr.noaa.gov. Paper copies
of the permit applications also are available from the NMFS Alaska
Region (see ADDRESSES).
AFA Catcher/processor Permits
Subsection 208(e) of the AFA, which took effect on January 1, 1999,
lists by name catcher/processors that are eligible to harvest the
catcher/processor sector BSAI pollock directed fishing allowance. Under
this final rule, two categories of AFA catcher/processor permits will
be issued. Vessels listed by name in paragraphs 208(e)(1) through (20)
of the AFA will be issued ``listed AFA catcher/processor permits.''
Vessels qualifying for AFA catcher/processor permits under paragraph
208(e)(21) will be issued ``unlisted AFA catcher/processor permits,''
which will restrict such vessels, in the aggregate, to a harvest of no
more than 0.5 percent of the catcher/processor sector pollock TAC
allocation. In addition, a catcher/processor will not need an AFA
catcher/processor permit to participate in the CDQ sector of the BSAI
pollock fishery because the AFA does not limit participation in the CDQ
pollock fishery. The owners of AFA catcher/processors are not required
to reapply
[[Page 79694]]
for their AFA permits. NMFS will mail new permits to the owners of
record of all existing AFA catcher/processors prior to the start of the
2003 fishery.
AFA Catcher Vessel Permits
Under the AFA, a catcher vessel is qualified to engage in directed
fishing for BSAI pollock if it is listed by name in subsections 208(b),
208(c), or 211(e) of the AFA, or if its history of participation in the
BSAI pollock fishery meets certain criteria set out in subsections
208(a), 208(b), or 208(c) of the AFA. Under this final rule, AFA
catcher vessel permits will be endorsed to authorize directed fishing
for pollock for delivery to one or more of the three processing
sectors: Catcher/processors, inshore processors, and motherships. Under
the AFA, a catcher vessel may be authorized to engage in directed
fishing for pollock for delivery to both AFA inshore processors and AFA
motherships, depending on its qualifying catch history. However, a
vessel that is eligible to deliver to catcher/processors is ineligible
for an endorsement to deliver to inshore processors or motherships. In
addition, a catcher vessel will not need an AFA catcher vessel permit
to participate in the CDQ sector of the BSAI pollock fishery because
the AFA does not limit participation in the CDQ pollock fishery.
The owners of AFA catcher vessels are not required to reapply for
their AFA permits. NMFS will mail new permits to the owners of record
of all existing AFA catcher vessels prior to the start of the 2003
fishery.
Crab Sideboard Endorsements. Under subparagraph 211(c)(1)(A) of the
AFA, the Council is required to recommend measures to limit the
participation of AFA catcher vessels in BSAI crab fisheries.
Subparagraph 211(c)(2)(C) of the AFA also prohibits section 208(b)
catcher vessels (i.e., AFA catcher vessels eligible to deliver to
catcher/processors) ``from participating in a directed fishery for any
species of crab in the Bering Sea and Aleutian Islands Management Area
unless the catcher vessel harvested crab in the directed fishery for
that species of crab in such Area during 1997.'' At its June 1999 and
June 2000 meetings, the Council developed final recommendations under
Amendments 61/61/13/8 for limits on the participation of AFA catcher
vessels in BSAI crab fisheries in order to comply with these two
provisions of the AFA. These recommendations apply to all AFA catcher
vessels and supersede the crab sideboards set out in subparagraph
211(c)(2)(C) of the AFA that apply to section 208(b) vessels only.
Under this final rule, NMFS will implement these catcher vessel
crab sideboard limits through crab sideboard endorsements on AFA
catcher vessel permits. The owner or operator of a catcher vessel who
wishes to participate in a BSAI king or Tanner crab fishery is required
to have a sideboard endorsement for that crab species on the vessel's
AFA catcher vessel permit. An AFA catcher vessel permit will be
endorsed for the Bristol Bay Red King Crab (BBRKC), St. Matthew Island
blue king crab, Pribilof Island red or blue king crab, Aleutian Islands
brown king crab, Aleutian Islands red king crab, Opilio Tanner crab,
and Bairdi Tanner crab fisheries based on the vessel's history of
participation in such crab fisheries. The specific qualifying criteria
for each fishery are set out in Sec. 679.4(l)(3)(ii)(D) of this final
rule.
The Council based some of its crab sideboard recommendations on
whether a particular vessel is ``License Limitation Program (LLP)
qualified'' for a particular crab fishery. To implement this
recommendation, the AFA catcher vessel permit application includes
questions related to vessel catch history using the same qualifying
years as the LLP program. This final rule requires an applicant for an
AFA catcher vessel permit to indicate on the permit application which
AFA crab sideboard endorsements the vessel qualifies for based on the
qualifying criteria set out in this rule. NMFS will verify all claims
of qualification.
Finally, the Council recommended exempting from all crab harvesting
sideboards, any AFA catcher vessel that made a legal landing of crab in
every BBRKC, Opilio Tanner crab, and Bairdi Tanner crab fishery opening
from 1991-1997. A vessel qualifying for this exemption will receive an
AFA catcher vessel permit with an endorsement indicating that the
vessel is exempt from all crab harvesting sideboards. The Council
recommended the exemption to mitigate the adverse effect of crab
sideboards on vessels that are almost exclusively crab vessels but, due
to a small amount of pollock landings, fell within the criteria for AFA
eligibility. The exemption will mitigate the adverse effect of the crab
sideboard restrictions on such vessels.
An owner of a catcher vessel should be aware that qualification for
a crab sideboard endorsement does not, in and of itself, provide
sufficient authorization to participate in a BSAI crab fishery. To
participate in a BSAI crab fishery, the operator of an AFA catcher
vessel must have a valid LLP license for that crab fishery as well as
an AFA catcher vessel permit naming that vessel and containing an
endorsement for that crab fishery.
Groundfish sideboard exemptions. Catcher vessel groundfish harvest
sideboard limits apply to all AFA catcher vessels in the aggregate
regardless of sector and regardless of participation in a cooperative.
However, the Council recommended that certain smaller AFA catcher
vessels be exempt from these sideboards if they have relatively low
pollock fishing history and show a dependence on BSAI Pacific cod and/
or GOA groundfish. Based on the Council's recommended criteria for
these exemptions, AFA catcher vessels less than 125 ft (38.1 m) whose
annual BSAI pollock landings averaged less than 1,700 mt from 1995-1997
are exempt from BSAI Pacific cod sideboards if they made 30 or more
legal landings of BSAI Pacific cod in the BSAI directed fishery for
Pacific cod during that 3-year period. In addition, AFA catcher vessels
that meet the same vessel length and BSAI pollock landing criteria and
that made 40 or more legal landings of GOA groundfish during the 1995-
1997 time period are exempt from groundfish sideboards in the GOA.
In recommending these exemptions, the Council noted that many of
the AFA catcher vessels with relatively low catch histories of BSAI
pollock have traditionally targeted BSAI Pacific cod and GOA groundfish
during much of the year and may be only minor participants in the BSAI
pollock fishery. The Council believed that imposing aggregate
sideboards on such vessels in the BSAI Pacific cod fishery and GOA
groundfish fisheries could severely harm the owners of such vessels
given their historic high levels of participation in non-pollock
fisheries, and the fact that their historic dedication to groundfish
fisheries other than the BSAI pollock fishery fisheries may account for
their lower catch histories of BSAI pollock during the AFA qualifying
years. The owners of vessels who believe their vessel may be eligible
for one or both of these exemptions must apply for the sideboard
exemption on their AFA catcher vessel permit application form.
AFA Mothership Permits
Under subsection 208(d) of the AFA, three named vessels are
eligible for AFA permits that authorize them to process pollock
harvested in the BSAI directed pollock fishery for delivery to
motherships. Under this final rule, NMFS will issue to the owner of a
mothership an AFA mothership permit if the mothership is listed by name
in paragraphs 208(d)(1) through (3) of the AFA and the owner applies
for such
[[Page 79695]]
permit. However, the owner of a mothership wishing to process pollock
harvested by a fishery cooperative also must apply for and receive a
cooperative processing endorsement on its AFA mothership permit. This
requirement is necessary because NMFS must identify and issue crab
processing restrictions to any AFA entity that owns or controls an AFA
mothership or an AFA inshore processor that receives pollock harvested
by a cooperative.
Subparagraph 211(c)(2)(A) of the AFA imposes crab processing
restrictions on the owners of AFA mothership and AFA inshore processors
that receive pollock from a fishery cooperative. Under the AFA, these
processing limits extend not only to the AFA processing facility
itself, but also to any entity that directly or indirectly owns or
controls a 10-percent or greater interest in the AFA mothership or in
the AFA inshore processor. To implement the crab processing
restrictions contained in subparagraph 211(c)(2)(A) of the AFA, NMFS
requires that applicants for AFA mothership and AFA inshore processor
permits disclose on their permit applications all entities directly or
indirectly owning or controlling a 10-percent or greater interest in
the AFA mothership or AFA inshore processor and the names of BSAI crab
processors in which such entities directly or indirectly own or control
a 10-percent or greater interest. An applicant for an AFA mothership or
an AFA inshore processor permit who did not disclose this crab
processor ownership information could still receive an AFA mothership
permit or an AFA inshore processor permit but will be denied an
endorsement authorizing the processor to receive and process pollock
harvested by a fishery cooperative.
AFA Inshore Processor Permits
Under the AFA, shoreside processors and stationary floating
processors (collectively known as inshore processors) may be authorized
to receive and process BSAI pollock harvested in the directed fishery,
based on their levels of processing in both 1996 and 1997. An inshore
processor is eligible for an unrestricted AFA inshore processing permit
if the facility annually processed more than 2,000 mt round weight of
pollock harvested in the BSAI inshore directed pollock fishery in both
1996 and 1997. An inshore processor is eligible for a restricted AFA
inshore processor permit if the facility processed pollock harvested in
the inshore directed pollock fishery during 1996 or 1997, but did not
process annually more than 2,000 mt round weight of pollock in both
1996 and 1997. A restricted AFA inshore processor permit prohibits the
inshore processing facility from processing more than 2,000 mt round
weight of BSAI pollock harvested in the directed fishery in any one
calendar year.
The owner of an AFA inshore processor wishing to process pollock
harvested by a fishery cooperative must have a cooperative processing
endorsement on the AFA inshore processing permit. The requirements for
an AFA inshore processor cooperative processing endorsement are the
same as those listed for AFA motherships above.
Finally, AFA inshore processors are restricted to processing BSAI
pollock in a single geographic location in state waters during a
fishing year. The purpose of this restriction is to implement
subparagraph 208(f)(1)(A) of the AFA, which includes in the category of
AFA inshore processors, vessels that operate in a single geographic
location in state waters. Under the final rule, shoreside (land-based)
processors are restricted to operating in the physical location in
which the facility first processed pollock during a fishing year.
Stationary floating processors are restricted to receiving and
processing BSAI pollock in a location within Alaska state waters that
is within 5 nautical miles (nm) of the position in which the stationary
floating processor first processed BSAI pollock during a fishing year.
NMFS believes that 5 nm is an appropriate distance for this requirement
because it allows the operator of a floating processor some flexibility
in choosing an appropriate anchorage, but it still requires that the
processor be located in the same body of water for the duration of a
fishing year while receiving and processing BSAI pollock.
Approval of Additional AFA Inshore Processors
Paragraph 208(f)(2) of the AFA provides that:
Upon recommendation by the North Pacific Council, the Secretary
may approve measures to allow catcher vessels eligible under
subsection (a) to deliver pollock harvested from the directed
fishing allowance under section 206(b)(1) to shoreside processors
not eligible under paragraph (1) if the total allowable catch for
pollock in the Bering Sea and Aleutian Islands Management Area
increases by more than 10 percent above the total allowable catch in
such fishery in 1997, or in the event of the actual total loss or
constructive total loss of a shoreside processor eligible under
paragraph (1)(A).
To implement this provision of the AFA, the final rule provides a
mechanism for the Council to recommend that NMFS issue AFA inshore
processor permits to inshore processors that are otherwise ineligible
under the AFA. In the event that the BSAI pollock TAC exceeds 1,274,900
mt (10 percent above the 1997 combined BSAI TAC of 1,159,000 mt), or in
the event of the actual total loss or constructive loss of an AFA
inshore processor, the Council may recommend that an additional inshore
processor (or processors) be issued AFA inshore processing permits. The
Council's recommendation to NMFS must identify (1) the processor (or
processors) that would be issued AFA inshore processing permits, (2)
the type of AFA inshore processing permit(s) to be issued (restricted
or unrestricted), and the duration of any such permit(s). The Council
may recommend any length of duration for permits issued under this
provision, from a single fishing season to the duration of the AFA. Or
the Council may recommend that any such permits remain valid as long as
the criteria that led to their issuance remain in effect (i.e., TAC
remains above 1,274,900 mt).
Replacement Vessels
This final rule provides that, in the event of the actual total
loss or constructive total loss of an AFA catcher vessel, AFA
mothership, or AFA catcher/processor, the owner of such vessel may
designate a replacement vessel that will be eligible in the same manner
as the original vessel after submission of an application for an AFA
replacement vessel that is subsequently approved by NMFS. The AFA
contains specific restrictions on replacement vessels that are set out
in detail in the final rule regulatory text at Sec. 679.4(l)(7).
Paragraph 208(g)(5) of the AFA states that a vessel may be used as a
replacement vessel if:
the eligible vessel is less than 165 feet in registered length,
of fewer than 750 gross registered tons, and has engines incapable
of producing less than 3,000 shaft horsepower, the replacement
vessel is less than each of such thresholds and does not exceed by
more than 10 percent the registered length, gross registered tons or
shaft horsepower of the eligible vessel;
NMFS believes that Congress intended this clause to apply to
eligible vessels with engines incapable of producing more than 3,000
shaft horsepower rather than engines incapable of producing less than
3,000 shaft horsepower. No catcher vessel operating in Alaska has
engines incapable of producing less than 3,000 shaft horsepower, and
construing this clause literally would make this provision a nullity.
Any vessel engine regardless of size is capable of
[[Page 79696]]
producing less than 3,000 shaft horsepower at less than full throttle
or at idle. Therefore, NMFS is using the phrase ``incapable of
producing more than 3,000 shaft horsepower'' to implement paragraph
208(g)(5) of the AFA.
In the event of the loss of an approved AFA replacement vessel, the
owners of the replacement vessel may designate a subsequent replacement
vessel provided that the original replacement vessel is lost under
conditions that meet the criteria set out in the AFA for lost vessels.
In the event of multiple vessel replacements, the length, horsepower,
and tonnage limits for any subsequent replacement vessels are based on
the length, horsepower, and tonnage of the originally qualifying AFA
vessel.
Under the final rule, any vessel that meets the replacement vessel
criteria may be designated as a replacement for a lost vessel including
an existing AFA vessel. In the event that an existing AFA catcher
vessel is designated as a replacement for a lost AFA catcher vessel,
the catch histories of the two vessels will be merged for the purpose
of making inshore cooperative allocations, crab sideboard endorsements,
and groundfish sideboard exemptions. However, the catch histories of
two vessels will not be merged until NMFS receives and approves an
application for a replacement vessel from the owner(s) of the affected
vessels.
Official AFA Record and Appeals
In order to issue AFA permits, NMFS has compiled available
information about vessels and processors that were used to participate
in the BSAI pollock fisheries during the qualifying periods.
Information in the official AFA record includes vessel ownership
information, documented harvests made from vessels during AFA
qualifying periods, vessel characteristics, and documented amounts of
pollock processed by pollock processors during AFA qualifying periods.
Under this final rule, the official AFA record is presumed to be
correct for the purpose of determining eligibility for AFA permits. An
applicant for an AFA permit has the burden of proving correct any
information submitted in an application that is inconsistent with the
AFA official record.
This final rule also establishes an appeals process under which the
owners of vessels and processors may appeal NMFS determinations about
either AFA eligibility or inshore cooperative allocations. The appeals
process for AFA permits and inshore cooperative allocations is based on
the existing appeals process in place for the individual fishing quota
and LLP programs.
Restrictions on Transfer of LLP Licenses
This final rule contains a revision to the LLP program for
groundfish and crab that prevents LLP licenses earned on AFA vessels
from being used on non-AFA vessels. The purpose of this restriction is
to prevent the owners of retired AFA vessels from re-deploying the LLP
license in the groundfish and/or crab fisheries off Alaska on a new
vessel that is not subject to the same sideboard restrictions as the
retired AFA vessel. Without this restriction, owners of AFA vessels
would be able to evade the harvesting sideboard restrictions contained
in this rule by using the LLP licenses from their AFA vessels to deploy
new vessels into the groundfish and crab fisheries that are not subject
to AFA sideboards.
Under this restriction, no person may use an LLP license that was
derived in whole or in part from the qualifying fishing history of an
AFA catcher vessel or a listed AFA catcher/processor to fish for
groundfish or crab on a non-AFA catcher vessel or non-AFA catcher/
processor. NMFS will identify all such licenses affected by this
restriction and inform the holders of such licenses of this restriction
through a letter to the permit holder and/or an endorsement printed on
the face of the license. Persons will be able to file an administrative
appeal of NMFS' determination under Sec. 679.4(l)(8).
C. Procedures and Formulas for Allocating the BSAI Pollock TAC
Under this final rule, the procedures for allocating pollock TAC
among industry sectors and apportioning each sector's TAC between
seasons and/or areas are revised to incorporate the changes required by
the AFA. No changes from the proposed rule were made to the procedures
and formulas for allocating the BSAI pollock TAC.
Under this final rule, 10 percent of the pollock TAC specified for
the Bering Sea (BS) subarea and the Aleutian Islands (AI) subarea will
be allocated to the CDQ program. The remaining TAC for each subarea,
after establishment of an incidental catch allowance for pollock
harvested as incidental catch in other groundfish fisheries, will be
allocated 50 percent to AFA catcher vessels harvesting pollock for
processing by AFA inshore processors; 40 percent to AFA catcher/
processors and AFA catcher vessels harvesting pollock for processing by
AFA catcher/processors, with not less than 8.5 percent of this
allocation made available to AFA catcher vessels delivering to catcher/
processors; and 10 percent to AFA catcher vessels harvesting pollock
for processing by AFA motherships. The inshore pollock TAC will be
further divided into two allocations: one allocation to vessels
participating in inshore fishery cooperatives, and one allocation to
vessels not participating in a fishery cooperative. The annual
allocation to inshore cooperatives will be equal to the aggregate
annual allocations made to each inshore cooperative. The annual
allocation to the inshore open access fishery, which is composed of the
remaining AFA inshore catcher vessels that are not in a cooperative,
will be equal to the remaining inshore allocation after subtraction of
the allocation to fishery cooperatives.
Management of the 8.5 Percent Allocation for AFA Catcher Vessels
Delivering to Catcher/Processors
Under subsection 210(c) of the AFA ``not less than 8.5 percent of
the [catcher/processor sector] directed fishing allowance . . . shall
be available for harvest only by the catcher vessels eligible under
section 208(b).'' Subsection 210(c) further provides that ``The owners
of such catcher vessels may participate in a fishery cooperative with
the owners of the catcher/processors eligible under paragraphs (1)
through (20) of section 208(e).'' NMFS intends to implement these two
related provisions by establishing two different procedures based on
whether such catcher vessels are members of a cooperative with AFA
catcher/processors during a given fishing year.
Allocation procedure with cooperatives. If the owners of all such
AFA catcher vessels enter into a cooperative agreement, and the owners
of such vessels also have entered into a cooperative agreement or
inter-cooperative agreement with the owners of the listed AFA catcher/
processors, and such agreement provides for at least 8.5 percent of the
cooperative harvest shares for such catcher vessels, then NMFS will
assume that the 8.5 percent catcher vessel allocation has been provided
for within the cooperative or inter-cooperative agreement. In such
event, NMFS will make a single allocation of pollock to the catcher/
processor sector that is not subdivided between catcher vessels and
catcher/processors. Owners of catcher/processors are then able to enter
into cooperative agreements that allow them to harvest some or all of
the 8.5 percent of the TAC reserved for catcher vessels, or catcher
vessels could harvest some or
[[Page 79697]]
all of 91.5 percent catcher/processor limit.
Allocation procedure without cooperatives. If the AFA catcher
vessels eligible to deliver to catcher/processors do not form a
cooperative and do not enter into a cooperative or inter-cooperative
agreement with the listed AFA catcher/processor fleet, then NMFS will
limit AFA catcher/processors to harvesting no more than 91.5 percent of
the catcher/processor sector allocation to guarantee that not less than
8.5 percent of the catcher/processor sector allocation is made
available for harvest by AFA catcher vessels. In other words, AFA
catcher/processors will be limited to harvesting no more than 91.5
percent of the catcher/processor allocation and only eligible catcher
vessels will be able to harvest the remaining 8.5 percent of the
catcher/processor sector allocation for delivery to catcher/processors.
This 91.5 percent catcher/processor harvest limit will be published in
the annual harvest specifications and will be applied to each fishing
season.
Management of the 0.5 Percent Cap for Unlisted AFA Catcher/processors
Under paragraph 208(e)(21) of the AFA, unlisted catcher/processors
are ``prohibited from harvesting in the aggregate a total of more than
one-half (0.5) of a percent of the pollock apportioned to the [AFA
catcher/processor sector].'' Under the final rule, this 0.5 percent
limit will be apportioned seasonally using whatever seasonal
apportionment formula is in effect for the overall catcher/processor
sector. This is to prevent unlisted catcher/processors from taking
their entire 0.5 percent limit during the roe season when pollock have
higher value. However, NMFS will allow for the rollover of any uncaught
amount of this 0.5 percent limit from the roe to the non-roe season so
that unlisted catcher/processors could take their entire annual limit
during the non-roe season if they so choose. This 0.5 percent limit is
not a separate allocation to unlisted AFA catcher/processors but rather
a cap on their harvest activity within the overall catcher/processor
sector allocation. Consequently, if unlisted AFA catcher/processors
choose not to fish, this opportunity will be foregone in favor of other
AFA catcher/processors and AFA catcher vessels delivering to catcher/
processors.
Inshore Cooperative Allocations
Paragraph 210(b)(1)(B) of the AFA sets out a specific formula for
determining the allocation of pollock to each inshore cooperative.
Under this paragraph:
The Secretary shall allow only such catcher vessels . . . to
harvest the aggregate percentage of the directed fishing allowance
under section 206(b)(1) in the year in which the fishery cooperative
will be in effect that is equivalent to the aggregate total amount
of pollock harvested by such catcher vessels . . . in the directed
pollock fishery for processing by the inshore component during 1995,
1996, and 1997 relative to the aggregate total amount of pollock
harvested in the directed pollock fishery for processing by the
inshore component during such years and shall prevent such catcher
vessels . . . from harvesting in aggregate in excess of such
percentage of such directed fishing allowance.
In other words, under the AFA, each inshore cooperative's
allocation percentage is generated by dividing the aggregate inshore
landings by all member vessels in the cooperative from 1995-1997 by the
total inshore landings during that same period.
However, paragraph 213(c)(3) of the AFA provides the Council with
the authority to recommend an alternative allocation formula:
The North Pacific Council may recommend and the Secretary may
approve conservation and management measures in accordance with the
Magnuson-Stevens Act . . . that supersede the criteria required in
paragraph (1) of section 210(b) to be used by the Secretary to set
the percentage allowed to be harvested by catcher vessels pursuant
to a fishery cooperative under such paragraph.
Using the authority provided in paragraph 213(c)(3) of the AFA, the
Council has recommended three changes that supersede the inshore
cooperative allocation formula set out in the AFA. These changes are
contained in the final rule and described below.
Offshore compensation. The first change recommended by the Council
at its June 1999 meeting allows inshore catcher vessels to receive
inshore catch history credit for landings made to catcher/processors if
the vessel made cumulative landings to catcher/processors of more than
499 mt of BSAI pollock during the 1995 through 1997 qualifying period.
The Council recommended this change to assist the cooperatives in
meeting the intent of paragraph 210(b)(4) of the AFA, which requires
that:
Any contract implementing a fishery cooperative under paragraph
(1) which has been entered into by the owner of a qualified catcher
vessel eligible under section 208(a) that harvested pollock for
processing by catcher/processors or motherships in the directed
pollock fishery during 1995, 1996, and 1997 shall, to the extent
practicable, provide fair and equitable terms and conditions for the
owner of such qualified catcher vessel.
The Council believed that catcher vessels with sustained
participation delivering to catcher/processors, but excluded from
delivering to catcher/processors under subsection 208(b) of the AFA,
should not be disadvantaged by the new management regime. The Council
chose 499 mt as the threshold based on information presented in the
FEIS/RIR/IRFA, which indicated that 499 mt provided a good ``break
point'' between vessels with significant history of delivering to
catcher/processors and vessels that only had incidental deliveries to
catcher/processors during the 1995 through 1997 qualifying period. The
Council recommended that only deliveries to catcher/processors be
considered for such ``compensation'' and not deliveries made to the
three motherships listed in subsection 208(d) of the AFA, because any
vessel with more than 250 mt of pollock deliveries to one of the three
AFA motherships during the qualifying period will earn an endorsement
to deliver pollock to AFA motherships under the AFA and, therefore, has
not ``lost'' any fishing privileges as a result of the AFA.
Using the best 2 of 3 years from 1995-1997. The second change
recommended by the Council at its June 1999 meeting, modifies the
allocation formula so that the share of the BSAI pollock TAC that each
catcher vessel brings into a cooperative is based on average annual
pollock landings in its best 2 out of 3 years from 1995 through 1997.
This change, along with the offshore compensation formula, was
unanimously endorsed by industry representatives during public
testimony at the June 1999 Council meeting. These changes were viewed
as a more equitable method of allocating pollock catch because some
vessels may have missed all or part of the inshore fishery in a given
year due to unavoidable circumstances such as vessel breakdowns or lack
of markets.
Revised open access formula. Finally, the Council recommended a
third change to the allocation formula at its June 2000 meeting. This
change reduces the denominator in the formula from ``the aggregate
total amount of pollock harvested in the directed pollock fishery for
processing by the inshore component'' to ``the aggregate total amount
of pollock harvested by AFA catcher vessels with inshore sector
endorsements.'' The effect of this change is to eliminate from the
formula all 1995 through 1997 catch history made by vessels that are
not AFA catcher vessels with inshore sector endorsements. One
consequence of the formula set out in the AFA is that all inshore catch
history made by non-AFA vessels, and AFA catcher vessels without
inshore endorsements, defaults to the open access sector. The Council
[[Page 79698]]
believed that this resulted in an inshore open access allocation that
was unfairly inflated to the detriment of vessels in cooperatives. The
Council believed that inflating the open access quota in such a manner
will provide incentives for vessels to leave cooperatives, which could
disrupt the objective of rationalizing the BSAI pollock fishery. Under
this change, the cooperative and the open access sectors will be
treated equally and allocations to both cooperatives and the open
access sector would be based only on the fishing histories of the
vessels in each group. All three of these changes have been
incorporated into Amendments 61/61/13/8 as management measures that
supersede the AFA.
Separate allocations for Bering Sea and Aleutian Islands Subareas.
Under the final rule, NMFS will use the allocation formula recommended
by the Council to make annual allocations of pollock to each inshore
cooperative for each subarea of the BSAI; the Bering Sea subarea and
the Aleutian Islands subarea. These two subareas are treated as
separate pollock stocks under the FMP and receive separate TACs during
the annual specification process. The Aleutian Islands subarea is
currently closed to directed fishing for pollock as a protection
measure for Steller sea lions. Consequently, under this final rule, as
long as Aleutian Islands subarea is closed for this or any other
reason, NMFS will not make separate cooperative allocations of pollock
for the Aleutian Islands subarea. Each cooperative will receive an
annual allocation of Bering Sea subarea pollock only.
Each sector's annual Bering Sea Subarea allocation of pollock is
further apportioned among fishing seasons. In a separate action, NMFS
is implementing management measures to temporally and spatially
disperse the BSAI pollock fishery to protect endangered Steller sea
lions. These temporal and spatial dispersion measures will be applied
to each sector's BSAI pollock allocations.
Treatment of the F/V HAZEL LORRAINE AND F/V PROVIDIAN pursuant to
Public Law 106-562. In December 2000, the President signed Public Law
106-562 into law. This law, among other things, contains a provision
that includes the F/V HAZEL LORRAINE and F/V PROVIDIAN as AFA inshore
catcher vessels. The relevant section reads as follows:
SEC 501. TREATMENT OF VESSEL AS AN ELIGIBLE
VESSEL.Notwithstanding paragraphs (1) through (3) of sections 208(a)
of the American Fisheries Act . . . the catcher vessel HAZEL
LORRAINE . . . and catcher vessel PROVIDIAN . . . shall be
considered to be vessels that are eligible to harvest the directed
fishing allowance under section 206(b)(1) of that Act pursuant to a
Federal fishing permit in the same manner as, and subject to the
same requirements and limitations on that harvesting as apply to,
catcher vessels that are eligible to harvest that directed fishing
allowance under section 208(a) of that Act.
After reviewing the legislative history of this statute including a
statement by Senator Snow in the Congressional Record (S. 11894,
December 15, 2000), NMFS has determined that Public Law 106-562 directs
NMFS to include both the F/V HAZEL LORRAINE and F/V PROVIDIAN as
eligible vessels and directs NMFS to use the 1992 through 1994 pollock
catch history of the F/V OCEAN SPRAY instead of 1995 through 1997 catch
history of the F/V PROVIDIAN for the purpose of determining inshore
cooperative quota allocations. Consequently, the final regulations
provide that the 1992 through 1994 catch history of the F/V OCEAN SPRAY
would be used to determine inshore cooperative allocations for any
cooperative for which the F/V PROVIDIAN is a member.
Excessive Shares Harvesting and Processing Limits
Harvesting limits. Paragraph 210(e)(1) of the AFA establishes an
excessive harvesting share cap of 17.5 percent of the directed pollock
fishery as follows:
HARVESTING.--No particular individual, corporation, or other
entity may harvest, through a fishery cooperative or otherwise, a
total of more than 17.5 percent of the pollock available to be
harvested in the directed pollock fishery.
To implement this provision of the AFA, NMFS will publish in the
annual harvest specifications, the tonnage amount that equates to 17.5
percent of the pollock available to be harvested in the directed
pollock fishery excluding CDQ. The final rule also contains a
definition of ``AFA entity'' to identify which entities are affected by
this 17.5 percent excessive harvesting share limit. The definition of
AFA entity is discussed in detail in the definitions section.
Processing limits. Paragraph 210(e)(2) of the AFA states that:
Under the authority of section 301(a)(4) of the Magnuson-Stevens
Act (16 U.S.C. 1851(a)(4)), the North Pacific Council is directed to
recommend for approval by the Secretary conservation and management
measures to prevent any particular individual or entity from
processing an excessive share of the pollock available to be
harvested in the directed pollock fishery. In the event the North
Pacific Council recommends and the Secretary approves an excessive
processing share that is lower than 17.5 percent, any individual or
entity that previously processed a percentage greater than such
share shall be allowed to continue to process such percentage,
except that their percentage may not exceed 17.5 percent (excluding
pollock processed by catcher/processors that was harvested in the
directed pollock fishery by catcher vessels eligible under 208(b))
and shall be reduced if their percentage decreases, until their
percentage is below such share. In recommending the excessive
processing share, the North Pacific Council shall consider the need
of catcher vessels in the directed pollock fishery to have
competitive buyers for the pollock harvested by such vessels.
At its October 2000 meeting, the Council considered various options
for processing excessive share limits for the BSAI pollock fishery and
adopted a BSAI pollock excessive processing share limit of 30 percent
of the non-CDQ directed fishing allowance. The Council also recommended
that the same 10 percent entity rules established for excessive
harvesting shares be used for excessive processing shares as well.
Under this final rule, NMFS will publish in the annual harvest
specifications, the excessive processing share limit in tons that
equates to 30 percent of the pollock available to be harvested in the
non-CDQ directed pollock fishery. An AFA entity is prohibited from
processing BSAI pollock from the BSAI directed pollock fishery in
excess of this excessive processing share limit.
D. Regulations Governing the Formation and Operation of Fishery
Cooperatives
This final rule contains regulations that govern the formation and
operation of fishery cooperatives. The first set of regulations are
filing deadlines and annual reporting requirements that apply to all
cooperatives operating in the BSAI pollock fishery regardless of
sector. The second set of regulations are required provisions of
cooperative contracts that must be included in all catcher vessel
cooperatives operating in the BSAI pollock fishery that are intended to
govern the harvest of sideboard species by catcher vessel cooperatives.
The third set of regulations are specific requirements and restrictions
on inshore catcher vessel cooperatives that are applying for an inshore
cooperative fishing permit to receive an annual allocation of the
inshore sector BSAI pollock TAC.
Regulations that Apply to all Cooperatives
The following regulations apply to all fishery cooperatives formed
for the purpose of managing directed fishing for pollock within any
sector of the BSAI pollock fishery.
[[Page 79699]]
Filing deadlines. Each fishery cooperative must file with NMFS and
the Council, a signed copy of its cooperative contract, and any
material modifications to any such contract, together with a copy of a
letter from a party to the contract requesting a business review letter
on the fishery cooperative from the Department of Justice and any
response to such request. The Council and NMFS will make this
information available to the public upon request. The filing deadline
for cooperatives operating in the catcher/processor and mothership
sectors is 30 days prior to the start of any fishing activity conducted
under the terms of the contract. The filing deadline for cooperatives
operating in the AFA inshore sector is December 1 of the year prior to
the year in which fishing under the contract will occur. The December 1
deadline for inshore sector cooperatives is necessary because inshore
sector cooperative allocations must be included in the BSAI interim
harvest specifications that are usually published prior to January 1 of
each year. Under this final rule, NMFS will not make sub-allocations of
pollock to catcher/processor and mothership cooperatives. Such
cooperatives operate at the sector level. Consequently, catcher/
processor and mothership sector cooperative information does not need
to be included in the BSAI interim harvest specifications.
Designated representative. Each cooperative is required to appoint
a designated representative. The designated representative is the
primary contact person for NMFS on issues related to the operation of
the cooperative and is responsible for fulfilling regulatory
requirements on behalf of the cooperative including, but not limited
to, filing of cooperative contracts, filing of annual reports, and in
the case of inshore sector catcher vessel cooperatives, signing
cooperative fishing permit applications and completing and submitting
inshore catcher vessel pollock cooperative catch reports. The owners of
the member vessels are jointly and severally responsible for compliance
and ensuring that the designated representative complies with the
requirements contained in this final rule.
Agent for service of process. Each cooperative is required to
appoint an agent who is authorized to receive and respond to any legal
process issued in the United States with respect to all owners and
operators of vessels that are members of the cooperative. The agent for
service of process may be the same individual as the cooperative's
designated representative, or may be a different individual. Service on
or notice to the cooperative's appointed agent constitutes service on
or notice to all members of the cooperative. NMFS may, at its option,
attempt to serve every member of the cooperative individually in
addition to service on the cooperative's appointed agent. However,
failure to achieve service on the individual member does affect the
validity of notice if service is accomplished on the cooperative's
appointed agent for service of process. The agent for service of
process must be capable of accepting service on behalf of the
cooperative until December 31 of the year 5 years after the calendar
year for which the fishery cooperative has filed its intent to operate.
If the agent is unable to complete this obligation, the cooperative is
required to appoint a replacement agent who could complete the term of
service.
Required contract elements for all fishery cooperatives. Under the
final rule, all cooperative contracts formed for the purpose of
managing directed fishing for pollock in the BSAI must: (1) list
parties to the contract, (2) list all vessels and processors that will
harvest and process pollock harvested under the cooperative, (3)
specify the amount or percentage of pollock allocated to each party to
the contract, and (4) pursuant to subsection 210(f) of the AFA, include
a contract clause under which the parties to the contract agree to make
payments to the State for any pollock harvested in the directed pollock
fishery which is not landed in the State, in amounts which otherwise
would accrue had the pollock been landed in the State subject to any
landing taxes established under Alaska law. Failure to include such a
contract clause or for such amounts to be paid will result in a
revocation of the authority to form fishery cooperatives under section
1 of the Act of June 25, 1934 (15 U.S.C. 521 et seq.).
Annual reporting requirements for all cooperatives. Under this
final rule all cooperatives are required to submit preliminary and
final annual written reports on fishing activity to the Council. The
Council will make copies of each report available to the public upon
request. The preliminary report covering activities through November 1
must be submitted by December 1 of each year. The final report covering
activities for an entire calendar year must be submitted by February 1
the following year.
The preliminary and final written reports must contain, at a
minimum: (1) The cooperative's allocated catch of pollock and sideboard
species, and any sub-allocations of pollock and sideboard species made
by the cooperative to individual vessels on a vessel-by-vessel basis;
(2) the cooperative's actual retained and discarded catch of pollock,
sideboard species, and prohibited species catch (PSC) on an area-by-
area and vessel-by-vessel basis; (3) a description of the method used
by the cooperative to monitor fisheries in which cooperative vessels
participated; and (4) a description of any actions taken by the
cooperative to penalize vessels that exceed their allowed catch and
bycatch in pollock and all sideboard fisheries.
The purpose of this annual report requirement is to assist the
Council and NMFS in meeting the requirements of paragraph 210(a)(1) of
the AFA, which requires that NMFS make such information available to
the public in a manner that NMFS and the Council decide is appropriate.
Section 210(a) requires the release of this information, despite the
confidentiality provisions of the Magnuson-Stevens Act or any other
law. It requires that the Secretary and Council take into account the
interest of parties to any cooperative contract in protecting the
confidentiality of proprietary information. The Secretary and the
Council have no discretion in whether to release this information,
despite the possibility that it might be confidential commercial or
financial information.
After analyzing various methods of providing this information to
the public, the Council determined that the most appropriate method for
disseminating information about each cooperative is to require an
annual report from each cooperative that could be reviewed by the
Council and distributed to the public. The information that will be
released is based on observer data and, except for the exception in
section 210(a), such information may have been protected from public
disclosure under the Freedom of Information Act.
During the development of this reporting requirement, pollock
industry representatives did not present to NMFS or to the Council
concerns about these reporting requirements, and have not indicated
that disclosure of such information could reasonably be expected to
cause substantial competitive harm. In addition, the annual report does
not require the release of observer data on specific hauls (e.g., haul
location, fishing depth, and catch composition) that might disclose
confidential information on specific fishing operations. The
requirement that each cooperative report the actual retained and
discarded catch of pollock, sideboard species, and
[[Page 79700]]
PSC on an area-by-area and vessel-by-vessel basis will not disclose
when and where individual vessels fished and what they caught at those
locations which could have disclosed to competitors the identity of
fishing grounds. Therefore, NMFS believes the disclosure of catch and
bycatch information on an annual basis and by large management areas
will not identify any vessel's specific fishing grounds and what was
harvested at those specific locations.
For these reasons, NMFS has concluded that the annual reporting
requirements as proposed by the Council are an appropriate way to
comply with the public disclosure requirements of paragraph 210(a)(1)
of the AFA.
Regulations for Cooperatives that Contain AFA Catcher Vessels
In addition to the general regulations described above that apply
to all fishery cooperatives operating in the BSAI directed pollock
fishery, this final rule imposes additional contract requirements for
all cooperatives that contain AFA catcher vessels. These regulations
apply to catcher vessel cooperatives operating in all sectors of the
BSAI pollock fishery. The purpose of these regulations is to hold
catcher vessel cooperatives responsible for managing the harvest of
groundfish sideboard species and prevent an all out race for sideboard
species by AFA catcher vessels.
Under the final rule, a cooperative contract that includes AFA
catcher vessels must include adequate provisions to prevent each non-
exempt member catcher vessel from exceeding an individual vessel
sideboard limit for each BSAI or GOA sideboard species or species group
that is issued to the vessel by the cooperative in accordance with the
following criteria: (1) The aggregate individual vessel sideboard
limits issued to all member vessels in a cooperative must not exceed
the aggregate contributions of each member vessel towards the overall
groundfish sideboard amount as announced by NMFS, or (2) in the case of
two or more cooperatives that have entered into an inter-cooperative
agreement, the aggregate individual vessel sideboard limits issued to
all member vessels subject to the inter-cooperative agreement must not
exceed the aggregate contributions of each member vessel towards the
overall groundfish sideboard amount as announced by NMFS.
This requirement that catcher vessel cooperatives address the issue
of sideboard management in their cooperative contracts was recommended
by the Council at its December 1999 meeting as a means to prevent
increased competition for sideboard species. To comply with this
requirement, each cooperative contract must have penalty provisions on
individual vessels that will be payable to owners of vessels outside
the cooperative. The amount and type of such penalties are left to the
discretion of the cooperatives. However, NMFS may disapprove an inshore
cooperative fishing permit application if the Regional Administrator,
Alaska Region, NMFS (Regional Administrator) determines that such
penalties are inadequate.
Regulations for Inshore Catcher Vessel Cooperatives
Under the AFA, a fundamental difference exists between the fishery
cooperatives authorized to operate in the AFA catcher/processor and AFA
mothership sectors, and the fishery cooperatives authorized to operate
in the inshore sector. AFA catcher/processor and AFA mothership
cooperatives operate at the sector level and NMFS does not make sub-
allocations of each sector's BSAI pollock TAC to individual
cooperatives. Inseason management of the AFA catcher/processor and AFA
mothership sectors will continue to occur at the sector level
regardless of the presence or absence of fishery cooperatives.
However, the inshore catcher vessel cooperatives authorized by the
AFA require an entirely different management structure. Subsection
210(b) of the AFA requires that NMFS make separate TAC allocations to
inshore catcher vessel cooperatives that form around an AFA inshore
processor and that meet certain restrictions. For this reason, inshore
cooperatives require substantially greater regulatory and management
infrastructure than AFA catcher/processor and AFA mothership sector
cooperatives. This final rule implements the following inshore
cooperative management measures as required by subsection 210(b) of the
AFA.
Application for inshore cooperative fishing permits. Under this
final rule, inshore catcher vessel cooperatives wishing to receive an
allocation of the BSAI inshore pollock TAC are required to submit an
application for an inshore cooperative fishing permit on an annual
basis by December 1 of the year prior to the year in which the
cooperative fishing permit will be in effect. Applications for an
inshore cooperative fishing permit must be accompanied by a copy of the
cooperative contract itself and by a copy of a letter from a party to
the contract requesting a business review letter on the fishery
cooperative from the U.S. Department of Justice and any response to
such request unless the cooperative has already filed such information
with NMFS and the Council. Inshore cooperative fishing permit
applications that are not received by NMFS by December 1 may be
disapproved.
As part of the application for an inshore cooperative fishing
permit, the cooperative's designated representative, who is signing the
permit application on behalf of the various members, must certify that:
(1) Each catcher vessel in the cooperative is a ``qualified catcher
vessel'' according to the definition of qualified catcher vessel
described below, (2) the cooperative contract was signed by the owners
of at least 80 percent of the qualified catcher vessels that delivered
pollock harvested in the BSAI directed pollock fishery to the
cooperative's designated AFA inshore processor during the year prior to
the year in which the cooperative fishing permit will be in effect, (3)
the cooperative contract requires that the cooperative deliver at least
90 percent of its BSAI pollock catch to its designated AFA processor,
and (4) each member vessel has no permit sanctions or other type of
sanctions against it that prevent it from fishing for groundfish in the
BSAI. A catcher vessel that cannot legally harvest BSAI pollock due to
enforcement action, permit sanctions, lack of a valid AFA catcher
vessel permit, or lack of other required permit, is barred from
membership in an inshore cooperative that receives an inshore
cooperative fishing permit.
To add or subtract a qualified catcher vessel (other than a
designated replacement for a lost vessel), the cooperative is required
to submit a new application prior to the December 1 deadline, and the
new application must be subsequently approved by the Regional
Administrator.
Definition of qualified catcher vessel. At its June 2000 meeting,
the Council voted to recommend a definition of ``qualified catcher
vessel'' that supersedes the definition contained in the AFA. Paragraph
210(b)(3) of the AFA defines ``qualified catcher vessel'' as follows:
QUALIFIED CATCHER VESSEL.--For the purposes of this subsection,
a catcher vessel shall be considered a ``qualified catcher vessel''
if, during the year prior to the year in which the fishery
cooperative will be in effect, it delivered more pollock to the
shoreside processor to which it will deliver pollock under the
fishery cooperative in paragraph (1) than to any other shoreside
processor.
The effect of this definition was to prevent the retirement of
catcher vessels
[[Page 79701]]
that are no longer needed to harvest a cooperative's annual allocation
of pollock because each vessel was required to make a qualifying
landing every year to remain in the cooperative in each subsequent
year. At its June 2000 meeting, the Council recommended that this
definition be replaced with a new definition under which an inactive
vessel remains qualified to join the cooperative that is associated
with the processor where it delivered more pollock to than any other
inshore processor in the last year in which the vessel participated in
the inshore sector of the BSAI directed pollock fishery. The Council's
recommended change does not affect vessels that were active in the BSAI
pollock fishery during the year prior to the year in which the
cooperative fishing permit will be in effect.
The Council derives its authority to recommend an alternative
definition of ``qualified catcher vessel'' from paragraph 213(c)(1) of
the AFA, which provides the Council with the authority to recommend
measures to supersede certain provisions of the AFA. Paragraph
213(c)(1) provides that:
CHANGES TO FISHERY COOPERATIVE LIMITATIONS AND POLLOCK CDQ
ALLOCATION.--The North Pacific Council may recommend and the
Secretary may approve conservation and management measures in
accordance with the Magnuson-Stevens Act-
(1) that supersede the provisions of this title, except for
sections 206 and 208, for conservation purposes or to mitigate
adverse effects in fisheries or on owners of fewer than three
vessels in the directed pollock fishery caused by this title or
fishery cooperatives in the directed pollock fishery, provided such
measures take into account all factors affecting the fisheries and
are imposed fairly and equitably to the extent practicable among and
within the sectors in the directed pollock fishery;
In making the recommendation under Amendments 61/61/13/8 to
supersede the AFA definition of ``qualified catcher vessel'' the
Council determined that this change will mitigate adverse effects on
some owners of fewer than three catcher vessels. Some independently
owned AFA catcher vessels are relatively small vessels that may be less
safe to operate at great distances from shore under the new Steller sea
lion protection measures which have closed many nearshore areas to
pollock fishing. A requirement that all such vessels fish each year to
remain qualified to join a cooperative each following year would impose
unnecessary risks that could be mitigated with a revision to the
definition of qualified catcher vessel. In addition, some catcher
vessels that are eligible to fish for pollock under the AFA have since
been lost or may no longer be safe to operate without major rebuilding.
Under this change, the owners of such vessels could remain in
cooperatives without the need to rebuild or deploy new vessels into the
BSAI pollock fishery. In making this recommendation, the Council also
noted that a primary objective of the AFA is to reduce excess capacity
in the BSAI pollock fishery and that changing the definition of
``qualified catcher vessel'' will further that objective.
This final rule also makes an additional clarification to the
definition of ``qualified catcher vessel.'' Under the final rule, only
pollock harvested in the BSAI directed pollock fishery is used to
determine vessel qualification. Pollock that is landed as incidental
catch in other fisheries is not used to determine which cooperative a
catcher vessel is qualified to join, and a catcher vessel cannot
qualify to join a cooperative based on incidental catch of pollock in
other fisheries. This clarification is necessary to prevent a vessel's
incidental catch of pollock in other fisheries from inadvertently
affecting its cooperative qualification. Counting incidental pollock
catch could create the unintended effect of restricting the ability of
catcher vessels to deliver non-pollock groundfish to other markets.
Because pollock is commonly encountered as incidental catch in the
Pacific cod fishery and other groundfish fisheries, AFA catcher vessels
fishing for Pacific cod may land significant amounts of pollock that
would be counted against the pollock incidental catch allowance and not
the vessel's cooperative quota. The AFA makes no restrictions on either
the delivery or processing of non-pollock groundfish species in the
BSAI. Consequently, AFA catcher vessels fishing for Pacific cod are
free to deliver their Pacific cod and associated incidental catch of
pollock to any processor, not just to one of the eight AFA processors
that are authorized to receive pollock harvested in the BSAI directed
pollock fishery.
If an AFA vessel's cooperative qualification were based on all
catch of pollock and not just pollock harvested in the directed
fishery, then an AFA catcher vessel fishing for Pacific cod and
delivering to a processor other than its AFA pollock processor could
inadvertently disqualify itself from its cooperative of choice due to
incidental pollock harvests in other fisheries. In fact, because
Pacific cod processors other than the eight AFA inshore pollock
processors also operate in the BSAI, an active AFA catcher vessel
delivering Pacific cod to a non-AFA processor could inadvertently find
itself ineligible to join any inshore cooperative because the processor
to which it delivered more pollock than any other processor may be a
non-AFA processor.
Additional contract requirements. Inshore cooperatives wishing to
receive an allocation of pollock have several additional contract
requirements. An inshore cooperative contract eligible for a pollock
allocation must be signed by the owners of at least 80 percent of the
qualified catcher vessels. In addition, inshore cooperative contracts
must specify that the cooperative will deliver at least 90 percent of
the pollock harvested in the directed pollock fishery to its designated
inshore processor during the year in which the fishery cooperative will
be in effect and that its designated inshore processor has agreed to
process such pollock. Finally, a catcher vessel is barred from
membership in an inshore cooperative if the vessel does not have all
necessary permits to engage in directed fishing for pollock in the
BSAI, or if the vessel is subject to any permit sanction that prevents
it from engaging in directed fishing for pollock in the BSAI. The
purpose of this restriction is to prevent the granting of a limited
access fishing quota to any catcher vessel that cannot legally fish for
pollock in the BSAI. If an inshore cooperative fishing permit
application does not meet all of these requirements, the permit
application may be denied by NMFS if after the cooperative is provided
the opportunity to submit a revised contract and permit application the
application remains insufficient.
Inshore cooperative fishing restrictions. This final rule imposes a
variety of requirements and management standards on inshore fishery
cooperatives. First, only catcher vessels listed on the cooperative's
AFA inshore cooperative fishing permit are permitted to harvest the
cooperative's annual cooperative allocation. This first restriction
could be modified, however, under Amendment 69 to the BSAI groundfish
FMP, which was submitted to the Secretary for review on June 24, 2002.
Amendment 69, if approved, would allow a cooperative to contract with
non-member vessels to harvest a portion of the cooperative's annual
pollock allocation. Second, all BSAI inshore pollock harvested by a
member vessel while engaging in directed fishing for inshore pollock
accrues against the cooperative's annual pollock allocation regardless
of whether the pollock was retained or discarded and regardless of
where the pollock was delivered. Third, each inshore pollock
cooperative is responsible for reporting to NMFS its BSAI pollock
harvest on a
[[Page 79702]]
weekly basis according to recordkeeping and reporting requirements
published as part of the annual revisions to recordkeeping and
reporting requirements for the groundfish fisheries of the BSAI and
GOA. Fourth, each inshore pollock cooperative is prohibited from
exceeding its annual allocation of BSAI pollock, and the owners and
operators of all vessels listed on the cooperative fishing permit are
jointly and severally liable for overages of the cooperative's annual
allocation.
Inseason management of inshore cooperatives. Under this final rule,
NMFS will manage the inshore cooperative sector and inshore open access
sector as two separate inshore pollock fisheries. The various inshore
cooperatives will be managed as a single aggregate allocation for the
purpose of making season and area TAC apportionments and for the
purpose of issuing directed fishing closures. When NMFS determines that
the cooperative sector has reached a season or area apportionment of
BSAI pollock, NMFS will close inshore cooperative fishing for that
season or area. Under this system, each inshore cooperative will be
given the opportunity to harvest its entire annual allocation of BSAI
pollock, but will receive no harvest guarantee for each season and
area. NMFS will manage the cooperative pollock quota and various
sideboard quotas in the aggregate. It may be advantageous for the
various cooperatives to work together to develop a cooperative
management program to govern activities by individual cooperatives and
individual vessels. Cooperation between cooperatives could prevent the
activities of one cooperative from affecting the plans of another
cooperative.
E. Harvesting and Processing Sideboard Restrictions
The AFA requires that harvesting and processing limits be placed on
AFA vessels and processors in other groundfish, crab, and scallop
fisheries to protect the participants in other fisheries from spillover
effects resulting from the rationalization of the BSAI pollock fishery
and the formation of fishery cooperatives in the BSAI pollock fishery.
Potential spillover effects could take many forms. Most obviously,
excess harvesting and processing capacity from the rationalization of
the BSAI pollock fishery could flood into other fisheries as a result
of the AFA to the detriment of current participants in other fisheries.
In addition, fishery cooperatives provide vessels with greater
flexibility to schedule their fishing activity because they are no
longer racing for pollock at the start of every season. As a result,
vessels in cooperatives will have the ability to enter other fisheries
that might previously have been conducted concurrent with the BSAI
pollock fishery. Finally, companies involved in the AFA pollock fishery
are expected to benefit financially from the formation of fishery
cooperatives and non-AFA companies fear that such profits may be used
to expand into other groundfish and crab fisheries.
To address these potential negative effects of the AFA on the
participants in other groundfish, crab, and scallop fisheries, the AFA
sets out a complex set of harvest and processing restrictions, which
have become known as ``sideboards''. These sideboard measures have been
further refined by the Council's recommendations for catcher/processor
and catcher vessel sideboards under Amendments 61/61/13/8. The
Council's recommendations have been incorporated into this final rule
and are summarized below.
Catcher/processor Harvesting Sideboards
The AFA establishes harvest restrictions or ``sideboards,'' that
restrict the participation of listed AFA catcher/processors in other
BSAI groundfish fisheries and completely prohibit listed AFA catcher/
processors from fishing in the GOA. These sideboards apply only to AFA
catcher/processors listed in paragraphs 208(e)(1) through (20) of the
AFA and are not extended to unlisted AFA catcher/processors that
qualify to fish for pollock under paragraph 208(e)(21) of the AFA. The
language establishing catcher/processor harvest caps is set out in
paragraphs 211(b)(1) and (2) of the AFA as follows:
(b) CATCHER/PROCESSOR RESTRICTIONS.--
(1) GENERAL.--The restrictions in this sub-section shall take
effect on January 1, 1999, and shall remain in effect thereafter
except that they may be superceded (with the exception of paragraph
(4)) by conservation and management measures recommended after the
date of the enactment of this Act by the North Pacific Council and
approved by the Secretary in accordance with the Magnuson-Stevens
Act.
(2) BERING SEA FISHING. The catcher/processors eligible under
paragraphs (1) through (20) of section 208(e) are hereby prohibited
from, in the aggregate
(A) exceeding the percentage of the harvest available in the
offshore component of any Bering Sea and Aleutian Islands groundfish
fishery (other than the pollock fishery) that is equivalent to the
total harvest by such catcher/processors and the catcher/processors
listed in section 209 in the fishery in 1995, 1996, and 1997
relative to the total amount available to be harvested by the
offshore component in the fishery in 1995, 1996, and 1997;
(B) exceeding the percentage of the prohibited species available
in the offshore component of any Bering Sea and Aleutian Islands
groundfish fishery (other than the pollock fishery) that is
equivalent to the total of the prohibited species harvested by such
catcher/processors and the catcher/processors listed in section 209
in the fishery in 1995, 1996, and 1997 relative to the total amount
of prohibited species available to be harvested by the offshore
component in the fishery in 1995, 1996, and 1997; and
(C) fishing for Atka mackerel in the eastern area of the Bering
Sea and Aleutian Islands and from exceeding the following
percentages of the directed harvest available in the Bering Sea and
Aleutian Islands Atka mackerel fishery--
(i) 11.5 percent in the central area; and
(ii) 20 percent in the western area.
For the 1999 fishing year, NMFS implemented these provisions by
publishing the harvest limits in the 1999 BSAI harvest specifications
and prohibiting listed AFA catcher/processors from engaging in directed
fishing for a groundfish species or species group when NMFS determined
that the sideboard limit was likely to be met or exceeded. For the 2000
through 2002 fishing years these limits were set out by emergency
interim rules. For the 2000 fishing year, 65 FR 4520, January 28, 2000;
extended at 65 FR 39107, June 23, 2000. For the 2001 fishing year, 66
FR 7276, January 22, 2001; extended at 66 FR 35911, July 10, 2001. And
for the 2002 fishing year, 67 FR 956, January 8, 2002; extended at 67
FR 34860, May 16, 2002.
At its June 1999 meeting, the Council recommended that catcher/
processor harvest limits for BSAI groundfish other than Atka mackerel
be based on the 1995 through 1997 retained catch of such groundfish
species by the 20 listed AFA catcher/processors listed in paragraphs
208(e)(1) through (20) of the AFA and the nine ineligible catcher/
processors listed in section 209 of the AFA, except for Pacific cod
which will be based on 1997 retained catch only. The Council made a
distinction between retained and total catch for the purpose of
calculating sideboards and felt that AFA vessels should not receive
sideboard credit for groundfish that was discarded and not utilized.
Given NMFS' and the Council's longstanding emphasis on reduction of
discards and waste in the groundfish fisheries off Alaska, the Council
believed it was reasonable not to allow the members of a sector of the
groundfish fleet to claim fishing privileges based on catch that they
discarded and did not utilize, especially given that such discards may
have resulted in foregone catch and loss
[[Page 79703]]
of fishing opportunities for other sectors of the industry.
In addition, the Council recommended several other relatively minor
changes to the catcher/processor sideboard formula set out in the AFA.
The Council recommended that only 1997 catch history be used to
determine Pacific cod harvest limits, because 1997 was the first year
in which the BSAI Pacific cod trawl gear allocation was split between
catcher/processors and catcher vessels. Prior to 1997 the BSAI Pacific
cod TAC was not allocated between catcher/processors and catcher
vessels, meaning that pre-1997 Pacific cod TACs and harvest percentages
by AFA catcher/processors are not directly comparable to present day
Pacific cod allocations. The Council also recommended that only the
years 1996 and 1997 be used to calculate Pacific ocean perch (POP)
sideboard amounts because 1996 was the first year in which the POP TAC
was divided between the Bering Sea and Aleutian Islands subareas.
The Atka mackerel catcher/processor sideboard percentages set out
in subparagraph 211(b)(1)(C) of the AFA will be implemented unchanged.
The AFA catcher/processor sideboard limit for Atka mackerel will be
zero percent of the Bering Sea subarea and Eastern Aleutians annual
TAC, 11.5 percent of the Central Aleutians annual TAC, and 20 percent
of the Western Aleutians annual TAC. These Atka mackerel sideboard
amounts will be divided by area and season and will be limited inside
critical habitat in the same manner as the overall Atka mackerel TAC
for each area.
The Council did not recommend any changes to the formula for
establishing prohibited species catch (PSC) bycatch limits set out in
subparagraph 211(b)(2)(B) of the AFA. However, the Council recommended
that NMFS not implement catcher/processor sideboards for salmon and
herring because extensive management measures are already in place to
limit bycatch of those PSC species in the BSAI pollock fishery and
incidental bycatch of salmon or herring is primarily a concern in the
pollock fishery and not in the directed fisheries for other groundfish
species.
Management of Catcher/Processor Harvest Sideboards
Under this final rule, catcher/processor sideboards will be managed
through directed fishing closures. NMFS will evaluate each groundfish
harvest limit specified according to the formula outlined previously
and will authorize directed fishing by listed AFA catcher/processors
only for those BSAI groundfish species for which the harvest limit is
large enough to support a directed fishery by listed AFA catcher/
processors. Groundfish species for which the catcher/processor harvest
limit is too small to support a directed fishery will be closed to
directed fishing by listed AFA catcher/processors at the beginning of
the fishing year. The sideboard amounts for these species will then be
specified as the incidental catch amounts harvested in other directed
groundfish fisheries.
In some instances where catcher/processors have a history of
harvesting a particular species as bycatch in the pollock fishery and
have not traditionally retained that species, the retained catch
formula for setting sideboard amounts will result in a sideboard amount
for that species that likely will be far below its intrinsic bycatch
rate in the BSAI pollock fishery. Squid and POP fall into this
category. An expected consequence of basing sideboard amounts on
retained catch rather than total catch is that actual harvests of some
species as bycatch in the directed pollock fishery will exceed the
published sideboard amount. As a result, NMFS established a management
approach that will allow for continued incidental catch of species
under sideboard provisions that acknowledge historical bycatch needs,
while ensuring that listed AFA catcher/processors will not participate
in directed fisheries for other BSAI groundfish species at levels that
exceed their level of participation in such fisheries from 1995 through
1997. NMFS believes that this approach is consistent with the language
and intent of the AFA.
Catcher Vessel Sideboards
This final rule will establish catcher vessel harvest limits for
BSAI crab, BSAI and GOA groundfish, and the Alaska scallop fishery.
These measure are required under subparagraph 211(c)(1)(A) of the AFA
which states:
By not later than July 1, 1999, the North Pacific Council shall
recommend for approval by the Secretary conservation and management
measures to . . . prevent the catcher vessels eligible under
subsections (a), (b), and (c) of section 208 from exceeding in the
aggregate the traditional harvest levels of such vessels in other
fisheries under the authority of the North Pacific Council as a
result of fishery cooperatives in the directed pollock fishery.
The Council met this requirement by adopting a comprehensive suite
of catcher vessel sideboard measures at its June 1999 meeting as part
of Amendments 61/61/13/8.
Because the BSAI king and Tanner crab fisheries and the Alaska
scallop fishery are managed by the State of Alaska under Federal
oversight, the Council recommended that crab and scallop catcher vessel
sideboards be implemented jointly through state and Federal actions.
Amendment 4 to the scallop FMP was approved by NMFS on June 8, 2000,
and authorized an LLP for the Alaska scallop fishery under which only
one AFA catcher vessel is eligible to receive a scallop license. NMFS
and the Council have determined that the scallop LLP program
effectively prevents additional effort in the scallop fishery by other
AFA catcher vessels and that additional restrictions on entry by AFA
catcher vessels are unnecessary. As a further measure under Amendments
61/61/13/8, the Council also has recommended that the state implement
an AFA catcher vessel scallop sideboard limit equal to the percentage
of the scallop guideline harvest level that was harvested by the AFA
catcher vessel in 1997. This sideboard harvest restriction is
implemented under State regulations. Therefore, scallop sideboard
measures are not included in this final rule.
Under Amendments 61/61/13/8, the Council has recommended that NMFS
limit participation in BSAI crab fisheries through crab sideboard
endorsements on AFA catcher vessel permits. The Council has recommended
that only AFA catcher vessels with a demonstrated history in a
particular crab fishery may continue participating in that fishery. A
catcher vessel that lacks the appropriate crab sideboard endorsements
on its AFA permit is prohibited from retaining BSAI king and Tanner
crab even if that vessel was authorized to do so under an LLP for that
crab fishery. These sideboard endorsements are described above in the
discussion of AFA catcher vessel permits.
In addition to permit restrictions, the Council also recommended
that the state implement AFA catcher vessel harvest limits for the
Bristol Bay red king crab and Bairdi Tanner crab fisheries to keep the
AFA vessels from harvesting more such crab than they had traditionally
harvested. With respect to the Bristol Bay red king crab fishery, the
Council recommended an AFA catcher vessel sideboard limit equal to the
percentage of Bristol Bay red king crab harvested by AFA catcher
vessels from 1991 through 1997, excluding 1994 and 1995 when the
fishery was closed. For the Bairdi Tanner crab fishery, the Council
recommended that AFA catcher vessels be excluded from the fishery until
the Council's Bairdi rebuilding goal is reached, and then be limited to
their historic catch percentage from
[[Page 79704]]
1995-1996. The Alaska Board of Fisheries has developed a management
program to implement these restrictions which has been in effect since
the 2000 Bristol Bay red king crab fishery.
For the BSAI and GOA groundfish fisheries, the Council recommended
that AFA catcher vessel sideboards be established based on landed catch
and be managed through directed fishing closures in the same manner as
AFA catcher/processor sideboards. However, a significant difference
between catcher/processor and catcher vessel groundfish sideboards is
that the Council recommended that certain AFA catcher vessels be exempt
from some BSAI and GOA groundfish sideboards while no exemptions were
recommended for listed AFA catcher/processors. These sideboard
exemptions were described previously under the section on AFA catcher
vessel permits. This final rule contains the Council's recommended BSAI
and GOA groundfish and PSC sideboards for AFA catcher vessels, which
are summarized below.
Catcher Vessel Groundfish Sideboards in the BSAI
Catcher vessel groundfish sideboards will be established for all
BSAI groundfish species using a formula based on the retained catch of
all non-exempt AFA catcher vessels of each sideboard species from 1995
through 1997 (1997 only for BSAI Pacific cod) divided by the available
TAC for that species over the same period. AFA catcher vessel
sideboards apply to all non-exempt AFA catcher vessels regardless of
sector and regardless of participation in a cooperative. The criteria
for catcher vessel sideboard exemptions were outlined in the AFA
catcher vessel permit section.
In addition, AFA catcher vessels with mothership endorsements are
exempt from Pacific cod sideboard closures after March 1 of each year.
Catcher vessel PSC sideboards for BSAI groundfish fisheries would
be managed in the same manner as catcher/processor PSC sideboards;
however, the sideboard amounts are calculated differently. Because
individual vessel PSC catch histories are not available for AFA catcher
vessels, PSC sideboard amounts are pro-rated based on percentage of
groundfish catch in each BSAI groundfish fishery.
Catcher Vessel Groundfish Sideboards in the GOA
Catcher vessel sideboards for GOA groundfish fisheries will be
established and managed in the same manner as the catcher vessel
sideboards in the BSAI groundfish fisheries except that catcher vessels
less than 125 ft (38.1 m) LOA whose annual BSAI pollock landings
averaged less than 1,700 mt from 1995 through 1997 (i.e., landed less
than 5,100 mt of pollock over the 3-year period) and that made 40 or
more GOA groundfish landings over the same period will be exempt from
sideboard closures for GOA groundfish fisheries. The catch histories of
the exempt vessels will not be counted towards the sideboard amounts
for non-exempt vessels. As with the BSAI Pacific cod fishery, the
Council noted that many AFA catcher vessels with relatively low catch
histories in BSAI pollock have traditionally participated in GOA
groundfish fisheries. Indeed, many of these vessels are based in Kodiak
and other GOA ports and have historically concentrated their fishing
effort in GOA fisheries. The Council believed that it is inequitable to
limit such vessels from participating in GOA fisheries when they have
historically fished in the GOA and may have relatively low pollock
catch histories in the BSAI during the AFA qualifying years due to
their history of fishing primarily in the GOA.
The Council specifically limited both the BSAI Pacific cod and GOA
groundfish sideboard exemptions to vessels with a significant history
of participation in those fisheries and indicated that it believed such
exemptions were consistent with the catcher vessel sideboard provisions
at paragraph 211(c)(1) of the AFA, which require that:
By not later than July 1, 1999, the North Pacific Council shall
recommend for approval by the Secretary conservation and management
measures to--
(A) prevent the catcher vessels eligible under subsections (a),
(b), and (c) of section 208 from exceeding in the aggregate the
traditional harvest levels of such vessels in other fisheries under
the authority of the North Pacific Council as a result of fishery
cooperatives in the directed pollock fishery . . . .
NMFS estimates that 12 catcher vessels will be exempt from BSAI
Pacific cod sideboards in the BSAI and 12 catcher vessels will be
exempt from groundfish sideboards in the GOA. The Council noted that
because these exempt vessels traditionally have participated at high
levels in the BSAI Pacific cod and GOA groundfish fisheries, such
exemptions were not likely to cause the aggregate harvest levels of all
AFA catcher vessels to exceed traditional levels in these fisheries.
However, the Council noted that, even if fishing in the BSAI Pacific
cod and GOA groundfish fisheries by exempt vessels does cause the
aggregate harvest of all AFA catcher vessels to exceed historic levels
in other groundfish fisheries, the exemptions are warranted and within
the authority of the Council to recommend under paragraph 213(c)(1) of
the AFA, which states:
The North Pacific Council may recommend and the Secretary may
approve conservation and management measures in accordance with the
Magnuson-Stevens Act--
(1) that supersede the provisions of this title, except for
sections 206 and 208, for conservation purposes or to mitigate
adverse effects in fisheries or on owners of fewer than three
vessels in the directed pollock fishery caused by this title or
fishery cooperatives in the directed pollock fishery, provided such
measures take into account all factors affecting the fisheries and
are imposed fairly and equitably to the extent practicable among and
within the sectors in the directed pollock fishery.
The Council believed that these two exemptions are warranted to
mitigate adverse economic effects as described above on owners of fewer
than three vessels in the directed pollock fishery given that the
exempt vessels are primarily owned by independent fishermen who own
fewer than three vessels in the directed pollock fishery.
Crab Processing Sideboards
Subparagraph 211(c)(2)(A) of the AFA establishes limits on crab
processing by AFA inshore processors and AFA motherships that receive
pollock harvested by a fishery cooperative:
Effective January 1, 2000, the owners of the motherships
eligible under section 208(d) and the shoreside processors eligible
under section 208(f) that receive pollock from the directed pollock
fishery under a fishery cooperative are hereby prohibited from
processing, in the aggregate for each calendar year, more than the
percentage of the total catch of each species of crab in directed
fisheries under the jurisdiction of the North Pacific Council than
facilities operated by such owners processed of each such species in
the aggregate, on average, in 1995, 1996, 1997. For the purposes of
this subparagraph, the term ``facilities'' means any processing
plant, catcher/ processor, mothership, floating processor, or any
other operation that processes fish. Any entity in which 10 percent
or more of the interest is owned or controlled by another individual
or entity shall be considered to be the same entity as the other
individual or entity for the purposes of this subparagraph.
These crab processing limits were implemented by NMFS in the
emergency interim rule published January 28, 2000 (65 FR 4520, extended
at 65 FR 39107, June 23, 2000). However, at its September 2000 meeting,
the Council recommended that the 1995-1997 years used to calculate crab
processing sideboard amounts be revised by adding 1998 and giving it
double-weight. Some crab fishermen and AFA processors expressed concern
that too many non-AFA processors have
[[Page 79705]]
left the crab fisheries since 1997 and that the 1995-1997 years do not
accurately reflect the composition of the crab processing industry at
the time of passage of the AFA. Some crab fishermen were concerned that
AFA crab processing caps were restricting markets for crab fishermen
and having a negative effect on exvessel prices. By adding 1998 and
giving it double-weight relative to 1995-1997, the Council believed
that the crab processing caps will more accurately reflect the status
of the crab processing industry at the time of passage of the AFA and
that such a change to supersede this provision of the AFA was warranted
to mitigate adverse effects on markets for crab fishermen.
Entity-based processing caps. NMFS has developed a definition of
``AFA entity'' for the purpose of implementing these crab processing
limits and for the purpose of implementing the 17.5 percent excessive
harvesting share limit discussed above. This definition is explained
below in the section on definitions. To implement these crab processing
limits, NMFS will require that the owners of an AFA mothership or AFA
inshore processor intending to process pollock harvested by a
cooperative identify on their permit applications all individuals,
corporations, or other entities that directly or indirectly own or
control a 10-percent or greater interest in the AFA mothership and/or
inshore processor (collectively the AFA inshore or mothership entity),
and any other crab processors in which such entities have a 10-percent
or greater interest (the associated AFA crab facilities). For each BSAI
king and Tanner crab fishery, NMFS will calculate the average
percentage of the total crab harvest processed by the associated AFA
crab facilities and issue entity-wide crab processing caps for each
crab fishery to each AFA inshore or mothership entity on its AFA
mothership or AFA inshore processor permit. Each individual,
corporation, or other concern comprising an AFA inshore or mothership
entity is responsible for ensuring that the AFA crab processing
facilities associated with the AFA inshore or mothership entity do not
exceed the entity's caps. The individuals, corporations and other
concerns comprising the AFA inshore or mothership entity are jointly
and severally liable for any overage.
Determining crab processing percentages. Upon receipt of an
application for a cooperative processing endorsement from the owners of
an AFA mothership or AFA inshore processor, the Regional Administrator
will calculate a crab processing cap percentage for the associated AFA
inshore or mothership entity. The crab processing cap percentage for
each BSAI king or Tanner crab species will be equal to the percentage
of the total catch of each BSAI king or Tanner crab species that the
AFA crab facilities associated with the AFA inshore or mothership
entity processed in the aggregate, on average, in 1995, 1996, 1997, and
1998 with 1998 given double-weight (counted twice).
Each AFA inshore or mothership entity's crab processing cap
percentage for each BSAI king or Tanner crab species will be listed on
the AFA mothership or AFA inshore processor permit that contains a
cooperative pollock processing endorsement.
Conversion of crab processing sideboard percentages to poundage
caps. Prior to the start of each BSAI king or Tanner crab fishery, NMFS
will convert each AFA inshore or mothership entity's crab processing
sideboard percentage to a poundage cap by multiplying the crab
processing sideboard percentage by the pre-season guideline harvest
level established for that crab fishery by the Alaska Department of
Fish and Game. Each entity and the public will be notified of the crab
processing poundage caps through notification in the Federal Register
and/or through information bulletins published on the NMFS-Alaska
Region world wide web home page (http:\\www.fakr.noaa.gov).
CDQ crab harvest. Under the final rule, processing of CDQ crab will
not accrue against an entity's crab processing cap. Only crab harvested
in the non-CDQ directed crab fisheries will accrue against an entity's
crab processing cap.
Custom processing. These crab processing caps apply to all crab
processed by the associated AFA crab processing facilities including
any ``custom processing'' activity. Custom processing refers to a
contractual relationship in which one processing facility processes
crab on behalf of another processor. Custom processing of crab is not
prohibited, but any custom processing of crab done under contract with
an AFA crab processor will be counted against the associated AFA
inshore or mothership entity's crab processing cap.
F. Excessive Share Limits for Harvesting and Processing
This final rule establishes excessive share limits for harvesting
and processing of BSAI pollock. The excessive harvesting share limit is
17.5 percent of the BSAI pollock directed fishing allowance and the
excessive processing share limits is 30 percent of the BSAI pollock
directed fishing allowance. The excessive harvesting and processing
share limits apply to all AFA entities which are in subsection 210(e)
of the AFA as those individuals, corporations, or other entities that
share 10-percent or greater ownership or control.
The final rule establishes a definition for ``AFA entity'' that
will be used to determine compliance with the 17.5 percent pollock
excessive harvesting share limit and the 30 percent pollock excessive
processing limit, and will be used for establishing crab processing
sideboard limits. An ``AFA entity'' is defined as a group of affiliated
individuals, corporations, or other business concerns that harvest or
process pollock in the BSAI directed pollock fishery.
Definition of ``Affiliation''
The concept of ``affiliation'' is central to the definition of
``AFA entity.'' Simply stated, ``affiliation'' means a relationship
between two or more individuals, corporations, or other business
concerns in which one concern directly or indirectly owns a 10 percent
or greater interest in the other, exerts 10 percent or greater control
over the other, or has the power to exert 10 percent or greater control
over the other; or a third individual, corporation, or other business
concern directly or indirectly owns a 10-percent or greater interest in
both, exerts 10 percent or greater control over both, or has the power
to exert 10 percent or greater control over both. Ownership and control
are two overlapping concepts that may arise through a wide variety of
relationships between two or more individuals, corporations, or other
concerns. The following forms of affiliation are included in this final
rule.
Affiliation through ownership. Affiliation arises between two or
more individuals, corporations, or other concerns if one individual,
corporation, or other concern holds a 10 percent or greater direct or
indirect interest in another, or a third party holds a 10-percent or
greater direct or indirect interest in both. An indirect interest is
one that passes through one or more intermediate entities. NMFS is
implementing a multiplicative rule to measure levels of indirect
interest. Under this multiplicative rule, an entity's percentage of
indirect interest in a second entity is equal to the entity's
percentage of direct interest in an intermediate entity multiplied by
the intermediate entity's direct or indirect interest in the second
entity.
[[Page 79706]]
Affiliation through stock ownership. Affiliation arises if an
individual, corporation, or other business concern directly or
indirectly owns or controls, or has the power to control, 10 percent or
more of the voting stock of a second corporation or other business
concern.
Affiliation through management control. Affiliation arises if an
individual, corporation, or other business concern has the right to
direct the business of a second corporation or business concern; or
limit the actions of or replace the chief executive officer, a majority
of the board of directors, any general partner, or any person serving
in a management capacity of a second corporation or business concern.
Affiliation through cooperative agreements. Affiliation arises if
an individual, corporation, or other business concern (1) has the power
to control a fishery cooperative through 10 percent ownership or
control over a majority of the voting rights of the cooperative, (2)
has the power to appoint, remove, or limit the actions of or replace
the chief executive officer of the cooperative, or (3) has the power to
appoint, remove, or limit the actions of a majority of the board of
directors of the cooperative. In such instances the individual,
corporation, or other entity in question is deemed to have 10 percent
or greater control over all member vessels of the cooperative.
Affiliation through control over operations and manning.
Affiliation arises if an individual, corporation, or other business
concern has the power to direct the operation or manning of a vessel or
processor. In such instances, the individual, corporation, or other
business concern in question is deemed to have 10 percent or greater
control over the vessel or processor.
Potential for multiple affiliations. Under this definition of
affiliation, an individual or corporation could be affiliated with more
than one AFA entity. This could occur, for example, if two different
AFA entities have partial ownership in a single fishing vessel or
processor. In such instances, any fishing or processing activity by a
vessel or processor that is affiliated with more than one AFA entity
will count simultaneously against the excessive harvesting or
processing share limits of both AFA entities. However, the two parent
entities would not necessarily be considered to be affiliated and,
therefore, part of a single entity unless they are directly affiliated
with each other.
Cooperatives are not AFA entities. Cooperatives are, by definition,
not considered AFA entities. If AFA cooperatives were considered AFA
entities then any cooperative that controlled the harvest of 17.5
percent or more of the BSAI pollock directed fishing allowance would be
in violation of the excessive harvesting share cap. NMFS believes that
such a result would be inconsistent with the purpose and intent of the
AFA which authorizes AFA catcher/processors to form a single
cooperative that controls 40 percent of the directed fishing allowance.
However, even though a cooperative itself is not considered an AFA
entity, the member vessels of a cooperative could still be considered
affiliated if a single person, corporation, or other entity has the
power to control the cooperative. In other words, a cooperative itself
is not considered an AFA entity, but a cooperative could be included in
an AFA entity for the purpose of monitoring excessive harvesting shares
if the cooperative is under the control of the entity in question.
G. Observer Coverage Requirements for AFA Vessels and Processors
This final rule establishes new observer coverage requirements for
AFA catcher/processors, AFA motherships, and AFA inshore processors.
However, the final rule does not change observer coverage requirements
for AFA catcher vessels. These new observer coverage requirements are
described below.
Listed AFA Catcher/Processors and AFA Motherships
Two observer requirement. Paragraph 211(b)(6)(A) of the AFA
requires that unrestricted AFA catcher/processors have two observers on
board at any time the vessel is fishing for groundfish in the BSAI.
This final rule establishes this requirement and extends the
requirement to AFA motherships. NMFS believes it is appropriate to
extend this requirement to AFA motherships because AFA motherships
operate in a similar manner to AFA catcher/processors in that they
receive unsorted codends from catcher vessels. In a mothership
operation, all weighing and sorting of catch occurs on the mothership
rather than the catcher vessel. The only practical difference between
catcher/processor and mothership operations is that motherships do not
actually engage in trawling. Under this final rule, a listed AFA
catcher/processor or AFA mothership is required to have aboard two NMFS
certified observers for each day that the vessel is used to harvest,
process, or take deliveries of groundfish. In addition, at least one
observer on board each AFA catcher/processor and AFA mothership must be
a lead level 2 observer at all times that the vessel is fishing for
groundfish or processing groundfish harvested in the BSAI or GOA.
Observer workload requirement. This final rule also extends the CDQ
program observer workload limits to AFA catcher/processor and AFA
motherships. These workload limits are necessary to ensure that all
groundfish harvested and processed by AFA catcher/processors and
motherships can be sampled by a NMFS observer. Consequently, more than
two observers might be required to allow each haul brought on board the
vessel to be sampled by an observer. This situation may occur for some
AFA motherships, depending on how many deliveries they receive from
catcher vessels in a day.
Lead level 2 observer requirement. Under this final rule, at least
one observer on board each AFA catcher/processor and AFA mothership
must be a lead level 2 observer (formerly known as a lead CDQ
observer). The second observer position may be filled by any NMFS
certified observer. Observers are an increasingly important element of
NMFS' monitoring program for AFA catcher/processor and AFA mothership
sector pollock harvests. Prior to the AFA, NMFS monitored offshore
pollock harvests using a blend of observer data and processor weekly
production reports. However, under the AFA with its statutory
requirement that AFA catcher/processors carry two observers at all
times and weigh their catch using NMFS-approved scales, NMFS is now
relying only on observers and scale weights to provide inseason harvest
data for the AFA catcher/processor sector and is no longer using vessel
production data for quota management purposes. In addition, NMFS relies
on observers to monitor catcher/processor groundfish sideboards as well
as catcher vessel sideboards for catcher vessels delivering to catcher/
processors and AFA motherships. Given this increased reliance on
observers and scales, NMFS believes that the lead level 2 observer
requirement is necessary to ensure that at least one of the observers
aboard each AFA catcher/processor and AFA mothership has prior
experience sampling on a trawl catcher/processor or mothership, is
trained and experienced in the use of on-board scales, and is available
to monitor the use and calibration of such scales. In addition, NMFS
believes that the requirement for at least one lead level 2 observer is
necessary to ensure that the compliance monitoring role of the
observers aboard AFA catcher/processors can be successfully
accomplished.
[[Page 79707]]
In order to monitor and enforce the newly imposed harvest
limitations for unrestricted AFA catcher/processors and AFA
motherships, observers with more experience and training must be
aboard. NMFS-certified lead level 2 observers have that experience and
training. Level 2 observers receive special training in sampling for
species composition in situations where bycatch may be limiting, in
working with vessel personnel to resolve access to catch and other
sampling problems, and in using flow scales for catch weight
measurements. Monitoring by level 2 observers is essential for accurate
catch accounting, given the fact that a fishery cooperative has been
established and that the potential exists for fishing to be curtailed
when either groundfish or prohibited species harvest limitations
specified for unrestricted AFA catcher/processors have been reached.
Consolidation of CDQ and AFA observer requirements. Under the
emergency interim rules governing the AFA pollock fishery in 1999 and
2000, AFA catcher/processors and motherships were required to have one
lead level 2 observer at all times but the second observer requirement
could be filled by any NMFS-certified observer. However, the CDQ
program imposed a higher requirement of one lead level 2 observer and a
second level 2 observer for catcher/processor and motherships
participating in the CDQ pollock fishery. Under this final rule, the
observer requirements for catcher/processors and motherships in the AFA
and CDQ pollock fisheries is consolidated into a single standard that
requires at least one lead level 2 observer on board at all times but
allows the second observer position to be filled by any NMFS certified
observer.
Data quality needs for the AFA fishery take into account the
vessel-specific nature of the fishery and the operational environment
under which observers collect the data. This vessel-specific nature of
the AFA has increased the responsibility of the observer to generate
data of a quality equivalent to a ``final post-debrief'' level prior to
the structured NMFS debriefing process. This raises the standard for
experience and advanced training requirements. Since implementation of
the AFA, the quality of data collected by observers at-sea has been
assessed by the rigorous post-cruise debriefing process and has overall
been found to meet expectations of high quality data at the point of
collection.
The catcher/processors and motherships involved in this fishery
provide the most straightforward sampling situations for observers in
the groundfish fleet due to typically minimal bycatch, as well as
excellent working conditions for the observer. Multiple opportunities
for oversight of the work performed by the second, potentially less
experienced, observer has been shown to successfully ensure all data
collected from each AFA catcher/processor or mothership meets high data
quality standards. Oversight of data collection and recording by the
second observer is performed by the lead observer who has extensive
observer experience on trawl catcher/processors. Additionally, in-
season advising and supervision for observers at sea is provided on an
on-going basis by NMFS Observer Program staff through communication via
the ATLAS at-sea reporting system required on all catcher/processors
and motherships. The NMFS Observer Program has also substantially
increased field support for observers. Finally, catcher/processors
operating in the BSAI pollock fishery have been considered the best
assignments for new trainees, preparing them for further development as
an observer. The need to keep open this opportunity to develop observer
experience is essential to ensure the continued existence of a pool of
qualified level 2 lead observers.
Consistency in observer requirements between the AFA program and
the directed pollock fishery in the Multi-species Community Development
Quota (MS CDQ) program is essential. The data quality needs for MS CDQ
and AFA pollock catch accounting are virtually identical. Further,
vessels often fish for MS CDQ and AFA-allocated pollock during the same
fishing trip. Uniform observer requirements will simplify observer
deployment logistics for such vessels. Therefore, NMFS is changing the
current observer requirements under the MS CDQ program for only those
catcher/processors and motherships participating in directed fishing
and/or processing of MS CDQ-allocated pollock to be consistent with the
AFA observer requirements for those vessel classes.
Requirements for unlisted AFA catcher/processors. Under this final
rule, vessels receiving unlisted AFA catcher/processor permits under
paragraph 208(e)(21) of the AFA are required to meet the same observer
coverage, scale, and sampling station requirements as for listed AFA
catcher/processors during any fishing trip in which the vessel engages
in directed fishing for BSAI pollock or receives deliveries of pollock
from AFA catcher vessels engaged in directed fishing for BSAI pollock.
This requirement is necessary because NMFS must monitor the 0.5-
percent pollock harvest limit on unlisted AFA catcher/processors and
cannot adequately do so without scales and an observer on duty at all
times. However, because the AFA catcher/processor sideboard limits in
other groundfish fisheries do not apply to unlisted AFA catcher/
processors, NMFS is not changing the observer coverage requirements for
unlisted AFA catcher/processors when such vessels are engaged in
directed fishing for groundfish other than pollock. Unlisted AFA
catcher/processors participating in non-pollock fisheries are required
to meet whatever observer coverage requirements are in place for the
fishery in question.
AFA inshore processors. Under this final rule, an AFA inshore
processor is required to have a NMFS-certified observer for each
consecutive 12-hour period in which the processor takes delivery of, or
processes, groundfish harvested by a vessel engaged in directed fishing
for BSAI pollock. An AFA inshore processor that takes delivery of or
processes pollock during more than 12 consecutive hours in any calendar
day is required to have two NMFS-certified observers available during
that calendar day. At least one observer assigned to work at each AFA
inshore processor must be a level 2 observer during each calendar day
that the processor receives or processes pollock harvested in the BSAI
directed pollock fishery. Furthermore, under this final rule, observers
working at AFA inshore processors may not be assigned to cover more
than one processing plant during a calendar day.
NMFS is implementing these new observer coverage requirements for
AFA inshore processors so that NMFS can adequately monitor cooperative
pollock allocations at each AFA inshore processor. Prior to the AFA,
the inshore pollock fishery was managed in the aggregate across the
entire sector with NMFS issuing a single closure for the entire inshore
sector upon the attainment of a seasonal allocation of pollock TAC.
Under the inshore cooperative system set out in this final rule, each
inshore processor and its affiliated cooperative is operating on its
own proprietary pollock allocation. Because NMFS would no longer manage
the inshore sector in the aggregate, increased monitoring is required
at each individual processor to ensure that cooperative allocations are
not exceeded.
AFA Catcher Vessels
Catcher vessels fishing for pollock may deliver an unsorted codend
directly to a mothership or inshore processor, in which case sorting or
weighing the
[[Page 79708]]
catch prior to delivery is not feasible. Alternatively, they may bring
the codend onto the deck and put the catch into tanks for delivery to a
mothership or inshore processor. Depending on the size of the trawl
alley, sorting and discarding prohibited species at sea also may not be
possible. For these reasons, complete at-sea sorting and weighing of
catch is rarely possible. Because of these constraints, much of the
data concerning catch weight and composition are gathered when the
catch is delivered to a mothership or inshore processor. Thus, NMFS
does not believe it is necessary for AFA catcher vessels to provide the
same level of observer coverage or equipment that is required for AFA
processors.
For this reason, the final rule does not make any changes to
existing observer coverage levels for AFA catcher vessels. Under the
management program set out in this final rule, the primary location for
pollock and sideboard catch accounting is at the processor and NMFS is
increasing monitoring at all AFA processors to accommodate these
increased monitoring needs. AFA catcher vessels are required to meet
the existing observer coverage requirements for catcher vessels set out
at 50 CFR 679.50(c).
H. Scales and Catch-weighing Requirements
The AFA authorizes eligible vessels and processors to form
cooperatives in all sectors of the BSAI pollock fishery. Inshore
cooperatives that meet the criteria set out in this final rule are
eligible to receive an inshore cooperative fishing permit authorizing
the member vessels in the cooperative to harvest a specific allocation
of the BSAI pollock TAC. The members of the cooperative may decide
among themselves how to share the allocation made to that cooperative.
While not an individual fishing quota (IFQ) program per se, the inshore
cooperative quota program established by the AFA does share many
characteristics with traditional IFQ programs in terms of how the
program operates. In effect, fishery cooperatives are privately
operated IFQ programs under which the cooperative, rather than NMFS,
makes individual allocations to member vessels.
Fishing patterns and behaviors under the inshore cooperative
program are expected to be similar to those that would be seen under a
traditional IFQ program and the management demands are much the same.
Just as with IFQ programs, individual cooperative members and the
cooperative as a whole, have a strong incentive to maximize the amount
of pollock harvested and processed in any given year within the
constraints of a fixed quota of pollock granted to the cooperative.
While catcher/processor and mothership sector cooperatives do not
receive individual allocations of pollock from NMFS, they function in
the same manner as inshore cooperatives because NMFS makes allocations
of pollock to each sector and the cooperatives include all eligible
participants in each sector.
To manage the AFA pollock fishery properly, NMFS must have data
that will provide reliable independent estimates of the total catch by
species and area for each cooperative. Because pollock cooperatives are
operating under their own individual quotas, they have a vested
interest in ensuring that catch data do not overestimate the pollock
harvest by that cooperative. Based on experience gained under the CDQ
program, NMFS anticipates that observer or NMFS estimates of catch will
be routinely questioned by industry. Under a system of fishery
cooperatives, a processor stands to benefit directly if catch is
underweighed because that processor is operating under an individual
allocation. For this reason, NMFS is implementing a catch-weighing
system for AFA pollock that is more rigorous than that required in open
access groundfish fisheries.
In the final EIS prepared for Amendments 61/61/13/8, NMFS
identified two primary objectives for monitoring catch in the AFA
fisheries. First, NMFS must be able to ensure that the total weight,
species composition, and catch location for each delivery are reported
accurately. An acceptable catch-monitoring system based on this
objective must allow for independent verification of catch weight,
species composition and haul location data; ensure that all catch is
weighed accurately; and provide a record of the weight of each delivery
that may be audited by NMFS. Second, the quality and level of catch
monitoring should be functionally equivalent between sectors. This
objective recognizes that a catch-monitoring approach that is
appropriate for one sector of the industry may not be appropriate for
all sectors while, at the same time, acknowledging that the overall
quality of catch data should be equivalent, and no sector should be
given a competitive advantage because of differences in catch
monitoring standards. Based on these objectives, NMFS has developed the
following catch monitoring regulations for each sector.
Scale and Catch-weighing Requirements for AFA Catcher/processors
Subparagraph 211(b)(6)(B) of the AFA requires that all listed AFA
catcher/processors ``weigh [their] catch on a scale onboard approved by
the National Marine Fisheries Service while harvesting groundfish in
fisheries under the authority of the North Pacific Council.'' To
implement this requirement of the AFA, NMFS is extending the existing
catch weighing and observer sampling station requirements for catcher/
processors participating in the CDQ fisheries, found at 50 CFR 679.28,
to AFA catcher/processors. These catch-weighing requirements include
the following:
1. Scales must meet the performance and technical requirements
specified in appendix A to 50 CFR part 679. At this time, Marel hf and
Skanvaegt International A/S produce scales that have been approved by
NMFS for weighing total catch. Marel hf, Skanvaegt International A/S
and Pols hf manufacture scales that have been approved for use in
observer sampling stations.
2. Each scale must be inspected and approved annually by a NMFS-
approved scale inspector.
3. Each observer sampling station scale must be accurate within 0.5
percent when its use is required.
4. The observer sampling station scale must be accompanied by
accurate test weights sufficient to test the scale at 10, 25 and 50 kg.
5. Each scale used to weigh total catch must be tested daily by
weighing at least 400 kg of fish or test material on the total catch
weighing scale and then weighing it again on an approved observer-
sampling station scale.
6. When tested, the total catch weighing scale and the observer
sampling station scale must agree within 3 percent.
Observer sampling stations provide a location where observers can
work safely and effectively. On June 4, 1998, NMFS published a final
rule that established requirements for observer sampling stations and
required their use on specified vessels participating in CDQ fisheries
(63 FR 30381). Further information on, and the rationale for, observer
sampling stations may be found in that rule. Observer sampling stations
must meet specifications for size and location and be equipped with an
observer sampling station scale, a table, adequate lighting and running
water. Each observer sampling station must be inspected and approved by
NMFS annually.
[[Page 79709]]
AFA listed catcher/processors must comply with the regulations for
additional observer coverage, scales, and observer sampling stations
when participating in any groundfish fishery off Alaska. Unless other
regulations require them to do so, unlisted AFA catcher/processors must
comply only with these regulations when engaged in directed fishing for
BSAI pollock or when processing pollock harvested in the BSAI directed
pollock fishery. Because unlisted AFA catcher/processors are not bound
by sideboard limits when participating in other groundfish fisheries,
NMFS does not believe that imposing this more rigorous catch-weighing
and monitoring regime on such vessels is necessary when they are not
fishing for pollock. Such unlisted AFA catcher/processors continue to
be bound by all catch-weighing and monitoring requirements that are in
effect for any non-pollock fishery in which they participate.
Scale and Catch-weighing Requirements for AFA Motherships
The AFA does not require that motherships weigh all catch or
specify additional observer coverage for motherships. However, because
motherships receive and process groundfish in a manner similar to
catcher/processors, NMFS is extending the AFA catcher/processor scale
and observer requirements to AFA motherships. Requirements for catch
weighing, observer sampling stations and observer coverage are
identical to those described above for AFA listed catcher/processors
and apply at all times that the AFA mothership is receiving or
processing groundfish harvested in the BSAI or GOA.
Scale and Catch-weighing Requirements for AFA Inshore Processors
This final rule establishes a new catch monitoring system for
inshore processors. The catch management goals established by NMFS for
the AFA pollock fishery are the same for the inshore and offshore
sectors. However, NMFS does not believe that the regulations developed
for catcher/processors and motherships are appropriate for inshore
processors for two reasons. First, inshore processors vary more in
size, facilities and layout than do catcher/processors or motherships.
Second, the State is responsible for approving scales used for trade by
inshore processors and has developed an effective program for their
inspection and approval.
Catch monitoring and control plans. The catch weighing and
monitoring system developed by NMFS for catcher/processors and
motherships is based on the vessel meeting a series of design criteria.
Because of the wide variations in factory layout, NMFS believes that a
performance based catch monitoring system is more appropriate for
inshore processors. Under this system, each plant must submit a Catch
Monitoring and Control Plan (CMCP) to NMFS for approval. In this final
rule, the effective date for the CMCP requirement has been delayed
until June 1, 2003, to provide inshore processors with adequate time to
develop their CMCPs and have them approved by NMFS. The CMCP details
how the plant will meet the following requirements:
1. All catch delivered to the plant must be sorted and weighed by
species. The CMCP must detail the amount and location of space for
sorting catch, the number of staff devoted to catch sorting and the
maximum rate that catch will flow through the sorting area.
2. Each processor must designate an ``observation area.'' The
observation area is the location designated in the CMCP where an
individual may monitor the flow of fish during a delivery. From the
observation area, an individual must be able to monitor the entire flow
of fish and ensure that no removals of catch have occurred between the
delivery point and a location where all sorting has taken place and
each species has been weighed.
3. Each processor must designate a ``delivery point.'' The delivery
point is the first location where fish removed from a delivering
catcher vessel can be sorted or diverted to more than one location. The
delivery point is most likely the location where the pump first
discharges the catch. If catch is removed from a vessel by brailing,
this is most likely the bin or belt where the brailer discharges the
catch.
4. The observation area must be located near the observer work
station.
5. The observer workstation must be located where the observer has
access to unsorted catch.
6. An observer work station, for the exclusive use of the observer,
must provide: a platform scale of at least 50 kg capacity; an indoor
working area of at least 4.5 square meters, a table, and a secure and
lockable cabinet.
7. Designation of a plant liaison, who is responsible for orienting
new observers to the plant, ensuring that the CMCP is implemented, and
assisting in the resolution of observer concerns.
The plant will be inspected by NMFS to ensure that the plant layout
conforms to the elements of the plan. A CMCP that meets all of the
performance standards will be approved by NMFS for 1 year, unless
during the year changes are made in plant operations or layout that do
not conform to the CMCP. After 1 year, NMFS will review the CMCP with
plant management to ensure that the CMCP has been implemented and that
the performance standards continue to be met.
A single individual cannot effectively monitor the flow of fish
from the delivery point to where they have been completely sorted and
weighed at any of the existing AFA inshore processors. Therefore, none
of the current AFA inshore processors will meet the performance
standards without modifying the layout of the plant or developing
alternative methods of monitoring catch flow. As a consequence, the
process of developing the CMCP may be fairly complex. NMFS anticipates
that plant management will wish to work closely with NMFS staff before
making any modifications to the plant layout or purchasing equipment.
NMFS staff will review draft CMCPs and will pre-inspect inshore
processors as requested by plant management.
Scale requirements for AFA inshore processors. Catch weighing for
catcher/processors and motherships is based on the use of scales
approved by NMFS. Because NMFS and the state use different standards
when approving scales, most NMFS-approved scales are not legal for
trade in Alaska and most state-approved scales do not meet NMFS
criteria for inseason testing and auditing. NMFS believes that the
state should be the primary authority responsible for approving and
testing scales in shoreplants and that weighing all catch on scales
approved by NMFS is unnecessary. Under State regulations, inshore
processors are required to weigh all catch that is being bought or sold
on state-approved scales. These scales must be inspected annually by
inspectors authorized by the Division of Measurement Standards and
Commercial Vehicle Enforcement.
However, State regulations do not provide for inseason testing of
scales nor do they require that scales produce a printed record of each
delivery. NMFS believes that these are essential features of an
acceptable catch weighing system. Therefore, in cooperation with the
State, NMFS has developed a catch-weighing system that implements these
additional features within the existing framework of State scale
inspection and approval. The development of this system involved
consultation with the Alaska State Division of Measurement Standards in
acknowledgment of the State's role to ensure that scales used for trade
in the State are accurate. Personnel from the Alaska Division of
[[Page 79710]]
Measurement Standards are responsible for inspecting and approving
those scales. Scales that are not used in a trade related transaction,
or scales that are used outside of State waters are generally not
required to be inspected and approved.
This final rule implements two sets of catch weighing requirements.
The first, is that catcher/processors and motherships are required to
weigh all catch on scales approved by NMFS. These vessels weigh their
catch outside of State waters and the approval and inspection of those
scales does not in any way interfere with existing State programs.
The second set of conditions requires that AFA inshore processors
weigh all of their catch on scales approved by the State and further
requires that those scales meet additional requirements for printouts
and inseason testing. In order to prevent redundant regulations or
involve itself in an existing State function, NMFS has worked closely
with the Alaska Division of Measurement Standards to develop these
requirements. NMFS staff met with the Director of the Division and his
staff twice during 2000 to discuss these requirements, and draft
versions of the proposed regulations were provided to Division
personnel for review and comment. In October 2000, the Administrator,
Alaska Region, sent a letter to the Director of the Division of
Measurement Standards expressing his acknowledgment and appreciation
for the work that the State had put into assisting NMFS in developing
the catch weighing regulations.
Thus, this final rule reflects cooperative State and Federal
development of catch weighing requirements for AFA inshore processors
and includes the following provisions:
1. Each scale used to weigh catch and its intended use must be
identified by serial number in the CMCP. Each scale must be inspected
and approved by the State annually.
2. As part of the CMCP, each plant must submit a scale testing plan
that gives the procedure the plant will use to test each scale
identified in the CMCP. The testing plan must list: the test weights
and equipment required to test the scale, where the test weights and
equipment are stored, and the plant personnel responsible for testing
the scale. Test amounts for various scale types are set out at Sec.
679.28(c)(4) of this final rule.
3. Test weights must be certified at least biannually by a
metrology laboratory approved by the National Institute of Standards
and Technology.
4. Authorized officers or NMFS-authorized personnel could request
that any scale be tested in accordance with the testing plan, provided
that the scale had not been tested and found accurate within the past
24 hours.
5. Each scale must be accurate within the limits specified at Sec.
679.28(c)(4) of this final rule (maximum permissible errors and test
weight amounts) when tested by the plant staff.
6. Each scale used to weigh catch must be equipped with a printer,
and a printout or printouts showing the total weight of each delivery
must be generated after each delivery has been weighed. The printouts
must be retained by the plant and made available to NMFS-authorized
personnel including observers.
I. Vessel Monitoring System (VMS) Requirements
In the proposed rule to implement Amendments 61/61/13/8 NMFS
proposed new VMS requirements for all AFA catcher vessels and catcher/
processors. However, VMS requirements are not included in this final
rule because VMS requirements for the BSAI pollock fishery are being
implemented as Steller sea lion protection measures.
J. Extension of Inshore/Offshore Regime in the GOA
Amendment 61 to the FMP for groundfish of the GOA also extends the
expiration date for inshore/offshore allocations of GOA pollock and
Pacific cod until December 31, 2004. During the development of
Amendments 61/61/13/8, the Council voted to extend the GOA inshore/
offshore sunset date until December 31, 2004, so that BSAI inshore/
offshore allocations under the AFA and GOA inshore/offshore allocations
would expire on the same date and could be reevaluated at the same
time. At its June 2002 meeting, in light of recent legislation
discussed above that removes the sunset date from the AFA, the Council
voted to adopt Amendment 62 to the GOA groundfish FMP, which also
removes the sunset date from the GOA inshore/offshore allocations.
Therefore, if Amendment 62 is subsequently approved by NMFS, the
December 31, 2004, sunset date contained in this final rule would be
removed. Extensive background information on GOA inshore/offshore
allocations is contained in the EA/RIR/FRFA prepared for Amendment 51/
51, the most recent inshore/offshore amendments for the BSAI and GOA.
Both EA/RIR/FRFA documents are available from the Council (see
ADDRESSES).
III. Response to Comments
The proposed rule to implement Amendments 61/61/13/8 was published
on December 17, 2001 (66 FR 65028), with comments invited through
January 31, 2002. NMFS received 12 comment letters on the proposed
rule, many of which contained extensive and detailed comments
addressing specific aspects of the proposed rule. These comments were
summarized and organized under five subject headings: (1) Comments on
sector allocations and permit requirements, (2) comments on cooperative
regulations, (3) comments on sideboards, (4) comments on catch weighing
and monitoring requirements, and (5) comments on inshore/offshore
allocations in the GOA.
Comments on Permit Requirements and Sector Allocations
Comment 1: The AFA and the proposed rule to implement the AFA
violates national standards 4, 6, and 8 of the Magnuson-Stevens Act.
National standard 4 states that if it becomes necessary to allocate
fishing privileges among various United States fishermen, such
allocations ``shall be fair and equitable to all such fishermen.''
National standard 6 states that ``conservation and management measures
shall take into account and allow for variations among, and
contingencies in, fisheries, fishery resources, and catches.'' Finally,
national standard 8 states that conservation and management measures
shall ``take into account the importance of fishery resources to
fishing communities.
The AFA excluded some catcher/processors that have a history in the
directed pollock fishery during typical AFA qualifying years. In
addition, the landings criteria for qualification as an unlisted AFA
catcher/processor are not representative of the operating range of the
variety of headed and gutted (H&G) catcher/processors that had
participated in the directed pollock fishery. Instead, the criteria,
which require that the vessel must have harvested at least 2,000 mt of
pollock in the BSAI directed pollock fishery in 1997 is skewed towards
only one vessel that had landings that are significantly higher than
are representative for the H&G catcher/processor fleet. The AFA
qualification criteria for catcher vessels and inshore processors are
substantially broader and more representative of the capacities of the
participants in these sectors. No Council action on any other limited
entry, license limitation, recency criteria, or species endorsement
regime has ever included such a
[[Page 79711]]
onerous and unrepresentative requirement as the qualification
requirement for unlisted catcher/processors in paragraph 208(e)(21) of
the AFA.
Response: The Council and NMFS do not have the authority to
supersede any aspect of vessel and processor qualification criteria set
out in section 208 of the AFA. Because the qualification criteria are
established in statute and are non-discretionary, the Council did not
consider any alternative vessel qualification criteria during the
development of Amendments 61/61/13/8 and has not attempted to evaluate
the extent to which any vessels with a history of participation in the
BSAI directed pollock fishery were excluded under the AFA. Because NMFS
was not involved in the development of the unlisted catcher/processor
qualification requirement set out in paragraph 208(e)(21) of the AFA,
we are unable to comment on the extent to which national standard
considerations were involved in the development of the AFA.
Furthermore, any modifications to these provisions would have to result
from Congressional action because neither NMFS nor the Council have the
authority to supersede section 208 of the AFA.
Comment 2: The preamble to the proposed rule inaccurately describes
the 25-percent foreign ownership and control limit as applying only to
vessels over 100 ft (30.9 m) LOA. Under the AFA this limit applies to
all vessels holding a U.S. fisheries endorsement. For vessels 100 ft
(30.9 m) LOA and over, this requirement is administered by MARAD. For
vessels under 100 ft (30.9 m) LOA this requirement is administered by
the Coast Guard.
Response: NMFS agrees and has corrected the references to the AFA's
vessel ownership requirements.
Comment 3: In the proposed rule, paragraph 679.4(k)(9) Restrictions
on licenses earned on AFA catcher vessels and listed AFA catcher/
processors provides that no person may use an LLP license that was
derived in whole or in part from the qualifying history of an AFA
catcher vessel or a listed AFA catcher/processor to fish for groundfish
or crab on a non-AFA catcher vessel or a non-AFA catcher/processor.
This provision should not prevent the transfer of the LLP license from
an AFA vessel that is lost to a vessel that is not AFA qualified for
purposes of replacing the lost AFA vessel.
Response: NMFS agrees. This restriction on the use of LLP licenses
is intended to prevent vessel owners from evading sideboard
restrictions by retiring surplus AFA vessels and re-deploying the LLP
permits associated with those vessels on non-AFA vessels that would not
be covered by AFA sideboard restrictions. However, this restriction
would not prevent the use of such LLP licenses on AFA replacement
vessels because the replacement vessel is considered an AFA vessel.
Comment 4: In the proposed rule, paragraph 679.4(l)(1)(ii) AFA
permit duration provides that, unless suspended or revoked, AFA vessel
and processor permits are valid until December 31, 2004. Congress has
repealed the 2004 sunset provision of the AFA. AFA vessel and processor
permits therefore should not expire as of December 31, 2004.
Response: NMFS agrees. The final rule has been revised to remove
the December 31, 2004, expiration date from all provisions to which it
was applied in the proposed rule, except for the duration of the
inshore/offshore allocations of pollock and Pacific cod in the GOA,
which were not addressed by the legislation making the AFA permanent.
Comment 5: In the proposed rule, paragraph 679.4(l)(1)(v) AFA
permit application deadline provides that all AFA vessel and processor
permit applications must be received by the Regional Administrator by
no later than 60 days after the effective date of the final rule. This
deadline should be extended because it will likely fall during the
fishing season. The preamble to the proposed rule suggests that interim
permits will become invalid on that date. However, it is unlikely that
permanent permits will have been issued by that date, as that is merely
the closing date of an already abbreviated application period which
would be followed by application processing, requests for additional
information, etc. This process is likely to be fairly complicated and
difficult for both applicants and the agency, as it will be the first
pass at implementing the complex and somewhat subjective ownership and
affiliation standards related to harvesting caps, processing caps and
crab processing sideboards. The net result will almost certainly be an
application processing period of fairly extended duration for many, if
not all, of the qualified applicants. If during this period interim
permits become invalid, and if that invalidity occurs during a fishing
season, the result could be huge losses to the Nation, not to mention
the pollock fleet.
The agency should also take into account how difficult it can be
for vessel owners and processors to deal with matters of this type
during the season. In light of these practical considerations, we
suggest that permit applications should be due within some reasonable
time (60 to 90 days) from the date that the RAM Division provides an
AFA interim permit holder with notice that an application for a final
permit must be submitted. We also suggest that interim permits remain
valid through 2002 or the duration of the application and processing
period, whichever is later.
Response: NMFS agrees. The final rule has been revised to eliminate
the application deadline for AFA permits and has extended the duration
of all interim AFA permits until December 31, 2002. Under the final
rule, all interim AFA permits will continue to be valid for the
duration of 2002.
Comment 6: The proposed rule states that applications received
after the 60-day deadline will not be accepted by the Regional
Administrator, and such vessels and processors will be permanently
ineligible to receive the requested AFA permit. This is an egregiously
excessive penalty. The interim permit holders are owners of vessels and
plants whose AFA eligibility has been determined through interim permit
applications. It is not necessary to deny eligibility in the re-
application process in order to close an otherwise open class of
potentially qualified participants.
Response: NMFS agrees. The final rule has no application deadline
for permanent AFA permits but does require that all participants in the
BSAI pollock fishery and all members of a fishery cooperative hold a
valid AFA permit. In effect, this requirement means that vessels,
processors, and fishery cooperatives that wish to operate during the
2003 fishing year will need to hold permanent AFA permits before
beginning operations in 2003. Because the permit application deadline
has been removed, no vessel will become permanently ineligible for an
AFA permit due to failure to submit a timely application. We believe
that these revisions in the final rule will provide industry with
adequate time to apply for and receive permanent AFA permits, and will
avoid any fishing interruptions during 2002.
Comment 7: In the proposed rule, paragraph 679.4(l)(7) Replacement
vessels provides that the fishery endorsement of a replacement vessel
must be issued within 36 months of the end of the last year in which
the lost vessel harvested or processed pollock. This requirement
reflects the provisions of section 208(g) of the AFA. However, the 36-
month deadline is potentially problematic with respect to inactive
vessels.
[[Page 79712]]
It is well recognized that one of the primary goals of the AFA was
to decapitalize the Bering Sea pollock fishery. The Council has
recognized that impediments to retiring or removing excess harvesting
capacity may frustrate achievement of that goal, and has taken action
accordingly. For example, the Council has superseded the AFA definition
of ``qualified catcher vessel'' to permit vessels that are inactive to
retain their eligibility to join a cooperative.
We are concerned that the 36-month time limit in the vessel
replacement provisions may create a disincentive to retire excess
harvesting capacity. Our concern is related to a scenario under which
the retired vessel is lost or becomes a total constructive loss. If
that should happen more than three years after the last year during
which the vessel harvested or processed pollock in the directed pollock
fishery, it would be ineligible for replacement. The vessel's
ineligibility for replacement may not be significant as long as it
remains an inactive member of the cooperative to which it belonged
before it was lost. However, if the owner later desires to replace the
vessel, in the interest of qualifying it for a different cooperative or
for any other reason, the owner's ability to do so would appear to be
barred by the 36-month replacement period. In order to preserve that
option, the owner would have to re-employ the vessel every 3 years.
This inappropriate incentive to re-employ excess capacity simply to
preserve its eligibility under the AFA is comparable to the
inappropriate incentive created by the original qualified vessel annual
landing requirement.
To address this issue, we request that NMFS initiate an amendment
to the replacement vessel provision of the proposed rule that would
exempt vessels that were inactive members of a BSAI pollock fishery
cooperative from the 36-month replacement deadline.
Response: The 36-month replacement deadline is set out in paragraph
208(g)(3) of the AFA which states:
(g) REPLACEMENT VESSELS.--In the event of the actual total loss
or constructive total loss of a vessel eligible under subsections
(a), (b), (c), (d), or (e), the owner of such vessel may replace
such vessel with a vessel which shall be eligible in the same manner
under that subsection as the eligible vessel, provided that . . .
(3) the fishery endorsement for the replacement vessel is issued
within 36 months of the end of the last year in which the eligible
vessel harvested or processed pollock in the directed pollock
fishery.
NMFS is interpreting this 36-month deadline in the AFA as applying
only to the issuance of fishery endorsements of newly-constructed
vessels that did not exist at the time the AFA vessel was last engaged
in directed fishing for pollock, or converted vessels that did not hold
fishery endorsements at the time that the AFA vessel last engaged in
directed fishing for pollock. The AFA does not establish any deadline
for replacing a lost AFA vessel if the replacement vessel was issued a
fishery endorsement before the 36-month deadline. Therefore, the 36-
month deadline in the final rule applies only to the issuance of the
fishery endorsement for the replacement vessel and not to the
application to NMFS for a replacement vessel.
Under the final rule, the owner of a lost vessel may wait
indefinitely to designate a replacement vessel. The only restriction is
that the fishery endorsement for the replacement vessel must have been
issued no later than 36 months from the end of the year in which the
vessel last engaged in directed fishing for pollock. Once the 36-month
deadline expires, the owner of the lost vessel does lose the option of
constructing a new replacement vessel, but permanently retains the
right to replace the lost vessel with any existing fishing vessel for
which a fishery endorsement was issued before the 36-month deadline. To
eliminate confusion on this point, NMFS has revised the final rule to
clarify that the 36-month deadline applies only to newly-constructed or
newly-converted vessels that did not hold fishery endorsements at the
time that the AFA vessel last engaged in directed fishing for pollock
in the BSAI.
Comment 8: In the proposed rule, paragraph 679.4(l)(7)(i)(A)
Replacement vessels provides that a vessel owner may replace an AFA
vessel only in the event of the total or constructive loss of the
vessel. While this derives from the statute, it must be noted that this
eventually will become a serious safety issue. While the statute was
drafted with a sunset date of December 31, 2004, this issue may have
seemed hypothetical. However, now that the sunset date has been
removed, when a vessel becomes un-seaworthy through age, it should be
possible to declare it a ``constructive total loss'' prior to its
sinking and the potential loss of life.
Response: The term ``constructive total loss'' has a very specific
meaning in the context of maritime insurance. Simply stated, a vessel
is considered a constructive total loss when it is damaged to such an
extent that the estimated cost of repairs exceeds salvaged value of the
vessel. A declaration of constructive total loss is typically made as
part of an insurance claim. To establish a claim for constructive total
loss, the vessel owner generally must abandon what remains of the
vessel to the underwriters. Because NMFS is not in a position to
independently evaluate whether the constructive total loss of a vessel
has occurred, we must rely on U.S. Coast Guard or insurance
documentation to verify that a vessel has been declared a constructive
total loss. The application for an AFA replacement vessel allows for
any vessel that is declared a constructive total loss to be replaced
provided that the vessel owner submits a copy of a U.S. Coast Guard
Form 2692--Report of Marine Accident, Injury or Death, or insurance
documentation showing that the vessel has been declared a constructive
total loss and that the remains of the vessel have been abandoned to
the underwriter. No provision is made for a vessel owner to make a
claim of ``constructive total loss'' to NMFS that is unsupported by
U.S. Coast Guard or insurance documentation.
Comment 9: In the proposed rule, paragraph 679.20(a)(5)(i)(6)
Excessive harvesting shares provides that the excessive harvesting
share cap is equal to 17.5 percent of the directed fishing allowance.
Section 210(e)(1) of the AFA provides that the harvesting cap is 17.5
percent of the pollock available to be harvested in the directed
pollock fishery. We note that some portion of the bycatch allowance
that is deducted from the overall pollock TAC in calculating the
directed fishing allowance for pollock is often released back into the
pollock directed fishing allowance before the end of the year. The
17.5- percent harvesting cap should be calculated with respect to all
pollock available for directed harvest, including any bycatch allowance
amounts that are released for directed harvest.
Response: NMFS agrees. When unharvested amounts of the ICA are
reapportioned to the directed pollock fishery, the effect is an
amendment to the directed fishing allowance. The final rule has been
revised to clarify that the published excessive harvesting share and
excessive processing share limits are subject to revision if
unharvested amounts of the ICA are reallocated to the directed pollock
fishery, or vice versa.
Comment 10: In the proposed rule, paragraph 679.4(l)(3)(ii)(F)
requires notary certification of permit applications. Is this also a
requirement of the non-AFA Federal fisheries permit applications?
Combined with an application deadline of 60 days, this could be
burdensome.
[[Page 79713]]
Response: NMFS has reconsidered the requirement that each signature
be notarized and has eliminated the notary requirement from AFA vessel
and processor application forms.
Comment 11: In the lengthy discussions on the 10-percent
affiliation concept at the beginning of implementation of the AFA, a
consensus developed that the affiliation should involve ownership and/
or control of one company over another. This approach avoids the
unintended consequence of extending an affiliation through an
intermediate entity to include an entity that has no true ownership or
control over an AFA company. The clear intent in the proposed
regulations is to cut off the affiliation relationship when it turns
upstream to another entity that has no ownership or control of the AFA
company. The proposed entity definitions adopt this approach in all
instances except for the criteria of ``shared assets and liabilities.''
For example, under the proposed rule, if Company A (an AFA processor)
and Company B (a non-AFA processor) each owns 50 percent of Company C,
the language could be interpreted to make A and B affiliates even
though neither has any ownership or control over the other. Company A
and Company C are certainly affiliated for the purposes of the AFA, but
the relationship should not flow upstream to Company B.
Response: NMFS agrees. The final rule has been revised to eliminate
``shared assets and liabilities'' from the criteria for affiliation.
Comments on Requirements for Fishery Cooperatives
Comment 12: In the proposed rule, paragraph 679.4(l)(6)(iii)
provides that inshore cooperative fishing permits are valid for 1 year.
We suggest that inshore cooperative permits remain valid as long as
there are no changes in cooperative membership or the continuing
eligibility of the member vessels to participate in the cooperative. We
suggest that in cases where there are changes in membership or member
eligibility, the cooperative members be required to file a new
application by an annual deadline. Maintaining inshore cooperative
permits on this basis would still condition their validity on
satisfaction of the conditions to inshore cooperative formation set
forth in the AFA and the implementing regulations, while substantially
reducing the administrative workload and cost to the agency and the
inshore fleet.
If NMFS does determine that inshore cooperative permits should have
only 1 year duration, there are several changes we suggest be made in
connection with the annual application process. We suggest that Sec.
679.4(l)(6)(ii)(C) be amended to require that a copy of the cooperative
contract be submitted with the annual application only if it has been
amended since last being submitted. We suggest that Sec.
679.4(l)(6)(ii)(E) be amended accordingly, to require that a copy of
the business review request submitted to the Department of Justice and
the response to the same, if any, be submitted with the annual
application only if amended since last being submitted. If NMFS is
concerned about being able to determine whether there have been
changes, we suggest that the cooperative representative be given the
alternative of certifying there have been none, rather than
resubmitting the documents.
Most cooperative contracts have remained the same since they were
originally executed. We know of no cooperative contract, business
review request, or resulting enforcement intention letter from the
Department of Justice that has not yet been submitted to the Council
and to NMFS.
We suggest that once a conforming application for the year has been
submitted, a cooperative representative be able to add or subtract
vessels without filing a completely new application, but rather by
providing written notice of the change, together with a certification
concerning vessel eligibility (in cases where a vessel is being added),
and a re-certification that the conditions to inshore cooperative
formation will continue to be met after the change is given effect.
Changes of this type often take place late in the year. It is unduly
burdensome to require a cooperative representative to complete and file
an entirely new application in connection with each vessel change.
Response: Because inshore cooperative permits authorize member
vessels to harvest, in the aggregate, a certain tonnage of pollock
during a specific fishing year, cooperative fishing permits will
continue to be issued annually. Under the final rule, the cooperative's
annual allocation of pollock is issued through the issuance of the
cooperative fishing permit. Multi-year cooperative fishing permits are
not possible because both co-op membership and TAC allocation amounts
for future years would be unknown.
However, NMFS agrees in part with the recommendations to reduce
paperwork burdens for inshore cooperatives. NMFS has adopted the
recommendations to reduce the burden of the annual filing process for
cooperatives. Under the final rule, cooperatives would be required to
submit a current list of their member vessels and submit any
cooperative contract revisions. Business review letters, once submitted
to NMFS would not need to be resubmitted on an annual basis. NMFS also
intends to provide application forms in Adobe Acrobat format that may
be completed electronically. This will reduce duplication of work for
co-op representatives.
Comment 13: In the proposed rule, paragraph 679.4(l)(6)(v), which
establishes a December 1 deadline for inshore cooperative fishing
permit applications, is inconsistent with the AFA. Paragraph 210(b)(2)
of the AFA specifically provides that ``any contract implementing a
fishery cooperative . . . must allow the owners of other qualified
catcher vessels to enter into such contract after it is filed and
before the calendar year in which fishing will begin . . . `` Paragraph
679.4(l)(6)(v) of the proposed rule requires that all inshore
cooperative contract amendments that add or subtract vessels be
received by the Regional Administrator by December 1 prior to the year
in which the inshore cooperative fishing permit will be in effect. This
proposed rule provision abbreviates the AFA opt-in period by 30 days.
There is no record of which we are aware that supports NMFS' attempt to
override this specific provision of the AFA.
Nor is it necessary to do so. We have discussed the reason for the
December 1 ``drop dead'' date with NMFS staff. NMFS staff has informed
us that the deadline was set to give the agency adequate time to
finalize cooperative allocations prior to the start of the next fishing
year. However, NMFS staff has also conceded that changes to cooperative
allocations could be made in connection with additions or subtractions
of vessels between the December 1 filing deadline and the beginning of
the next calendar year; the issue in connection with such ``gap
period'' changes is whether the allocation change could be made in time
to be effective for the pollock roe season, or whether it would be
necessary to delay the effective date of the change to the opening of
the non-roe season.
This issue will arise only in cases where a vessel has changed the
cooperative for which it is eligible by delivering the predominance of
its BSAI directed pollock catch in the prior year to a different
processor. In these cases, a vessel owner may not be able to consummate
negotiations with the
[[Page 79714]]
cooperative and processor for which it is now qualified until after
December 1. If the vessel owner does so after December 1, but prior to
the beginning of the next calendar year, it has a right under the AFA
to opt into the new cooperative. If the owner opts in, and it is too
late to change the roe season allocation of its new cooperative
accordingly, the vessel's allocation could be left in the inshore open
access fishery pool for the roe season, and then allocated to the
vessel's new cooperative for the non-roe season. This resolution is a
reasonable balancing of NMFS' need to make timely cooperative
allocations against the specific opt-in provisions of the AFA. The
proposed rule should be amended accordingly.
Response: NMFS proposed a December 1 deadline for amendments to
inshore co-op applications so that cooperative allocations could be
issued through the publication of the BSAI interim harvest
specifications, which are published prior to January 1 of each year.
The current process for publishing harvest specifications is unable to
accommodate allocation changes in late December due to the filing
deadlines established by the Office of the Federal Register. The
suggestion that late entrants into inshore cooperatives be allowed to
start the fishing year in the open access fishery during the roe season
and switch to cooperatives during the non-roe season would be
inconsistent with paragraph 210(b)(5) of the AFA which prohibits
vessels from participating in both the open access fishery and a
fishery cooperative during the same fishing year.
NMFS intends to resolve this timing issue as part of proposed
Amendments 48/48 which are still under development by the Council.
Amendments 48/48 are intended to modify the TAC setting process to
address several administrative issues, and would allow for a greater
period of time between the publication of final TACs and the start of
each year's fisheries. Under Amendments 48/48, NMFS expects to be able
to accommodate changes in cooperative membership as late as December 31
of each year.
Comment 14: In the proposed rule, the definition of affiliation at
paragraph 679.2 includes 10 percent or greater control of a fishery
cooperative as a form of affiliation. We do not believe it is
appropriate to include fishery cooperatives in this definition of
affiliation. The intent of the 10-percent rule in the AFA is to apply
ownership and control provisions to entities that own harvesting
vessels. Harvesting cooperative entities do not in any way have
ownership of any of the vessels in a cooperative. As such, the
cooperative has no control over the operations of the harvesting
vessels or the vessel owners who are not members of the cooperative.
The definition of AFA entity and affiliation should not contain any
reference to affiliation through cooperatives.
Response: NMFS has revised the definition of AFA entity to clarify
the relationship of cooperatives to an AFA entity. Under the final
rule, a cooperative on its own is not considered an AFA entity.
Therefore, members of a cooperative are not automatically considered to
be affiliates of each other for the purpose of defining an AFA entity.
However, if one particular individual or corporation has the ability to
control a fishery cooperative, and the cooperative controls the fishing
activity of its member vessels, then all of the members of the
cooperative would be considered to be affiliated with the entity that
controls the cooperative. In other words, affiliation through
cooperative agreements only arises if a particular individual or
corporation has the power to control an entire cooperative and the
cooperative has the power to control the fishing activity of its member
vessels.
Comment 15: In the proposed rule, the prohibition at paragraph
Sec. 679.7(k)(6) uses the phrase ``through a fishery cooperative or
otherwise'' which implies that the 17.5-percent excessive harvesting
share limit should apply to harvest shares of the cooperative as a
whole. Again, this is wholly inappropriate to the intent of the
excessive harvesting share limit and any reference to affiliation
through a cooperative in this section should be eliminated.
Response: See response to comment 14. The phrase ``through a
fishery cooperative or otherwise'' is taken directly from paragraph
210(e)(1) of the AFA which states:
No particular individual, corporation, or other entity may
harvest, through a fishery cooperative or otherwise, a total of more
than 17.5 percent of the pollock available to be harvested in the
directed pollock fishery.
In revising the definition of AFA entity in this final rule, NMFS
has clarified that a cooperative on its own is not considered to be an
AFA entity. However, if a cooperative is controlled by a single
individual or corporation and the cooperative has the power to control
the fishing activity of its member vessels, then all member vessels are
considered to be affiliated with the AFA entity and all of their
harvests would be included under the excessive harvesting share
prohibition.
Comment 16: The cooperative affiliation standard in the proposed
rule is somewhat confusing, but suggests that any member who exercises
10 percent or greater control over a cooperative is ``affiliated'' with
all of its members. Under that standard, a cooperative with one member
that has 10 percent or more voting control would be an AFA entity under
the proposed rule. Of course, under Sec. 679.7(k)(6), no AFA entity
may exceed the 17.5- percent harvesting share limit.
If our interpretation of the proposed rule's standards is correct,
every member of a cooperative that had nine or fewer members with equal
voting power would trigger the affiliation standard. Because the
members would be affiliates of each other, the cooperative itself would
be subject to the 17.5-percent cap. Under these circumstances, even if
each member had the right to harvest only 2 percent of the TAC, and
none of them had any ownership or control whatsoever relative to the
harvest of any more than that percentage of the TAC or relative to any
other AFA entity or vessel, they would all be in violation. We
respectfully submit that this effectively makes the harvest limit an
AFA cooperative allocation limit, and in the process violates the
spirit and the letter of the AFA.
Response: See response to comment 14. The 10-percent standard
applies only to measurements of ownership and not to other forms of
control that do not involve ownership. Affiliation through cooperative
agreements would arise only if a particular individual, corporation, or
other entity has the power to control a fishery cooperative and the
fishery cooperative controls the fishing activities of its member
vessels. Affiliation would not automatically arise in the example of a
cooperative with less than 10 members. It would only arise if a single
individual, corporation or entity has the power to control the entire
cooperative.
Comment 17: In the proposed rule, paragraph 679.7(k)(5)(ii) Inshore
fishery cooperative liability provides that the owners and operators of
all vessels listed on the cooperative fishing permit are responsible
for ensuring that all cooperative members comply with all applicable
regulations contained in part 679. In addition, the proposed rule
provides that owners and operators will be held jointly and severally
liable for overages of an annual cooperative allocation, and for any
other violations of these regulations committed by a member vessel of a
cooperative.
We do not object to requiring owners and operators of vessels
listed on an
[[Page 79715]]
inshore cooperative fishing permit to be responsible for ensuring all
cooperative members comply with the cooperative's directed fishery,
sideboard and PSC allocations. We understand that doing so may be
necessary for NMFS to have adequate assurances that the inshore sector
pollock TAC will not be exceeded, and that the inshore cooperatives
will comply with the general sideboard restrictions of section 211(c)
of the AFA. Further, we understand that because NMFS does not grant or
enforce vessel level allocations of pollock, sideboard species or PSC
under the AFA's cooperative management structure, it may be necessary
for NMFS to have the authority to impose joint and several liability on
cooperative members in the case of a violation, to have adequate
assurances that any overages will be penalized.
However, we see absolutely no basis in the AFA or in the policy
considerations related to successfully implementing the AFA for NMFS to
impose responsibility on each cooperative member for ensuring every
other member is operating in compliance with all other applicable
provisions of part 679, and absolutely no basis to impose joint and
several liability on cooperative members if one of their number fails
to do so. We think the provisions to that effect are grossly
overreaching on the agency's part, and may stem from the same
fundamental misunderstanding of the structure and function of AFA
fishery cooperatives that impelled NMFS to include cooperative
membership as an indicator of affiliation for purposes of harvest and
processing cap compliance.
The AFA cooperatives are allocation structures. As such, they do
not grant their members the authority to govern any of the day-to-day
operations of other members' vessels, such as when and where they fish,
etc. Neither the AFA cooperatives nor its members have the authority to
require or ensure that any single member will comply with the
provisions of part 679, other than with respect to the matters directly
addressed in the AFA cooperative Membership Agreements, such as pollock
allocations and sideboard and PSC limits. That being the case, it is
fundamentally unfair and inappropriate to assign them that
responsibility under the proposed rule, and commensurately unfair and
inappropriate to impose joint and several liability for any member
violation other than overharvest of a pollock directed fishing
allocation or a sideboard or PSC limit. We request that Sec.
679.7(k)(5)(ii) be amended to eliminate cooperative member joint
responsibility and cooperative member joint and several liability for
any violation other than cooperative allocation overharvests.
Response: NMFS agrees that the language in the proposed rule could
be interpreted as overreaching. The final rule has been amended to
provide that the owners and operators of vessels that are members of a
fishery cooperative are responsible for ensuring that the fishery
cooperative complies with the directed fishing, sideboard closures, PSC
limits and other allocation restrictions that are applicable to fishery
cooperatives.
Comment 18: In the proposed rule, paragraph Sec. 679.7(k)(6)
Excessive harvesting shares provides that it is unlawful for an AFA
entity to harvest, through a fishery cooperative or otherwise, an
amount of BSAI pollock that exceeds the 17.5- percent excessive share
limit. Under the proposed rule, the owners and operators of individual
vessels comprising the AFA entity that harvests BSAI pollock will be
held jointly and severally liable for exceeding the excessive
harvesting share limit.
We are deeply concerned by the imposition of joint and several
liability, especially as it may apply to fishery cooperatives. We
concede that a vessel owner who is not otherwise in violation of the
harvesting limit could violate it through acquisition and exercise of
AFA cooperative pollock harvesting shares. However, we fail to see why
such action should result in unconditional joint and several liability
among all cooperative members. Any such violation should be the sole
responsibility of the person or persons who actually own and control
the vessel(s) used to exceed the harvesting limit.
Response: See response to comments 14 and 17. In the final rule,
NMFS has revised the definition of AFA entity to clarify that a fishery
cooperative is not considered to be an AFA entity per se. However, if a
fishery cooperative is controlled by a single individual or
corporation, and the fishery cooperative controls or has the power to
control the fishing activity of the member vessels, then all members of
the cooperative are considered affiliated. With respect to the issue of
liability for violating an excessive harvesting share cap, NMFS
believes it is appropriate to hold all affiliates of an AFA entity
liable for exceeding an excessive harvesting share cap because the
harvesting activity of all affiliates contributed to the entity
exceeding the harvesting cap. NMFS does not monitor excessive share
harvesting caps on an inseason basis or inform each AFA entity when it
is approaching or exceeding the excessive harvesting share cap. Rather,
it is the responsibility of each AFA entity to monitor the harvesting
activities of its affiliates and ensure that the harvesting cap is not
exceeded.
Comment 19: In the proposed rule, paragraph 679.20(a)(5)(i), which
addresses cooperatives in the catcher/processor sector provides that if
by December 1st, NMFS receives cooperative contracts and/or an inter-
cooperative agreement entered into by listed AFA catcher/processors and
all AFA catcher vessels with catcher/processor sector endorsements, and
the Regional Administrator determines that such contracts provide for
distribution of the harvest between catcher/processors and catcher
vessels in a manner agreed to by all members of the catcher/processor
sector cooperative(s), then NMFS will not subdivide the catcher/
processor sector allocation between catcher vessels and catcher/
processors. On the other hand, if such contract is not filed with NMFS
by December 1 in any given year, NMFS will allocate 91.5 percent of the
catcher/processor sector allocation to the AFA catcher/processors
engaged in directed fishing for pollock, and 8.5 percent of the
catcher/processor sector allocation to catcher vessels delivering to
catcher processors.
Our comments with respect to this provision are similar in nature
to those we made with respect to inshore cooperative permit
applications. Specifically, we submit that once copies of the
cooperative contracts or of an inter-cooperative agreement that meet
the requirements of this section have been submitted, the filing
requirement should be suspended unless and until there has been an
amendment or termination of the relevant contract(s) or agreement. Any
concern NMFS may have regarding the continuing validity and integrity
of the contract(s) or agreement could be addressed through a
requirement that the designated representatives for all of the catcher/
processor sector cooperatives annually certify that the contract(s) or
agreement remain in effect and have not been amended.
Response: NMFS agrees that for the purpose of allocating 8.5
percent of the catcher/processor sector TAC to AFA catcher vessels, it
is unnecessary to require annual filing of cooperative contracts and
inter-cooperative agreements. Consequently, the final rule has been
revised to state that if NMFS determines that such cooperatives and
inter-cooperative agreements exist and are valid for the fishing year
in which the specifications will be valid, then NMFS will make a single
allocation to the catcher/processor sector. The annual
[[Page 79716]]
specification process provides for the publication of proposed and
final harvest specifications. If industry believes that NMFS has made
an incorrect determination about the status of cooperatives in the
catcher/processor sector in the proposed specifications, then industry
will have the opportunity to provide comment to NMFS and NMFS will make
any necessary corrections in the final specifications.
Comment 20: In the proposed rule, paragraph 679.61(b) states that
all cooperatives are required to appoint a designated representative
and an agent for service of process. However, the definitions of those
terms in Sec. 679.2 suggest that the terms apply only to inshore
catcher vessel cooperatives. NMFS should clarify whether these terms
apply only to inshore catcher vessel cooperatives or to all AFA
cooperatives.
Response: The final rule has been revised to clarify that all AFA
cooperatives are required to appoint a designated representative and
agent for service of process. NMFS has revised the definitions in Sec.
679.2 to include all AFA cooperatives.
Comment 21: In the proposed rule, paragraph 679.61(g)(5) requires
that each cooperative contract contain a contract clause dealing with
payment of surrogate landing tax to the State of Alaska. It appears to
say that failure to include the clause, and also failure to pay the
surrogate tax will result in revocation of the authority to form a
fishery cooperative. The inclusion of a contract clause is a clear
standard, and failure to comply would have its own remedies within the
contract. However, there is no clear specification for what constitutes
the due date of payment in regulation, nor is it clear when revocation
would take effect. Would all members of a cooperative be expected to
instantly stop fishing if one member were found to be in arrears by 10
percent on the payment to the State?
Response: The landing tax requirement language in the proposed and
final rules was taken verbatim from subsection 210(f) of the AFA.
However, NMFS agrees that a deadline is appropriate. Therefore, the
final rule has been revised to impose an April 1 deadline for payment
of landing taxes to the State of Alaska. This is the same deadline
imposed on all processors operating within the State of Alaska. Under
the final rule, if a member of a cooperative fails to pay all landing
tax owed to the State before April 1 of the year following the calendar
year in which the fishing activity took place, then the cooperative is
prohibited from operating in the BSAI pollock fishery until the landing
tax is paid.
In addition, State law provides that the State Department of
Revenue may extend the landing tax payment deadline if standardized
prices are not available by April 1. This final rule also provides that
in the event that the State of Alaska has extended the landing tax
payment deadline for processors operating in the State of Alaska, then
the deadline for AFA cooperatives is also automatically extended for
the same duration. The annual cooperative report requirement also has
been revised to require that cooperatives identify in their final
annual reports the total landings that occurred outside the State of
Alaska and whether or not the landing tax was paid to the State for
such landings.
Comment 22: In the proposed rule, paragraph 679.61(l) dictates the
format for submission of reports to the Council and requires single
sided 8.5-inch by 11-inch paper. The agency should allow for the
electronic submission of reports in Adobe Acrobat format.
Response: NMFS proposed the format requirements after consultation
with Council staff to ensure that reports would be received in a format
most easily duplicated for public distribution. However, NMFS agrees
that some electronic formats such as Adobe Acrobat may be equally easy
to duplicate. Therefore, the final rule has been revised to accommodate
the submission of reports in alternate formats if the cooperative
obtains the prior approval of the Council.
Comment 23: In paragraph 679.4(l) of the proposed rule, the F/V
PROVIDIAN AND F/V HAZEL LORRAINE are listed as eligible vessels in
accordance with Public Law 106-562, which made both vessels eligible
``in the same manner and subject to the same requirements and
limitations'' as other vessels eligible under the AFA. However, the
inshore co-op allocation formula set out in paragraph 679.62(b)(2)
grants the F/V PROVIDIAN the 1992-1994 catch history from an entirely
different vessel, the F/V OCEAN SPRAY based on a single ambiguous
statement by Senator Olympia Snow in the Congressional Record. We
strongly object to this interpretation by NMFS. Public Law 106-562
itself provides no basis for this action and to give the F/V PROVIDIAN
the 1992-1994 catch history from a different vessel is counter to the
intent of Pub. L. 106-562 as well as the other provisions of the AFA.
Response: The issue of catch history for the F/V PROVIDIAN was the
subject of an Initial Administrative Determination by the Restricted
Access Management Division of the NMFS Alaska Region, a subsequent
appeal to the NMFS Office of Administrative Appeals, and a request for
reconsideration by Regional Administrator under the appeals process
established by the emergency interim rules to implement the AFA. After
reviewing the legislative history, including a statement by Senator
Olympia Snow in the Congressional Record (S. 11894, December 15, 2000),
NMFS determined that Public Law 106-562 directed NMFS to include the F/
V PROVIDIAN as an eligible vessel using the formula set out in
paragraph 679.62(b)(2). The basis for this determination is complex and
space considerations do not permit us to repeat the entire legal
justification in this final rule. However, the full texts of the
appeals decisions related to the F/V PROVIDIAN are available to the
public on the NMFS Alaska Region home page at http://www.fakr.noaa.gov/appeals
.
Comments on Sideboard Protections for Other Fisheries
Comment 24: The formula for calculating catcher/processor
groundfish harvesting sideboard provisions set out in paragraph
679.64(a) of the proposed rule is inconsistent with the Council's June
1999 motion which recommended that catcher/processor groundfish
sideboard amounts be based on the retained catch of AFA vessels in all
target fisheries. The formula contained in the proposed rule would base
catcher/processor groundfish sideboards on the retained catch by AFA
vessels in non-pollock target fisheries, which is inconsistent with the
Council's recommendation. No justification for this change is found
within the proposed rule.
Response: The sideboard formula set out in the proposed rule was
the result of a drafting error. NMFS did not intend to modify the
sideboard recommendations made by the Council. The final rule has been
corrected to reflect the Council's recommended catcher/processor
sideboard formula.
Comment 25: We support the proposed rule's plan for managing the
AFA catcher/processor harvesting sideboards through the use of directed
fishing closures on the target fisheries for non-pollock groundfish. We
also agree that incidental catch amounts of sideboard species should be
set aside prior to the authorization of directed fisheries for such
species; and that the Secretary of Commerce should not authorize
directed fisheries for sideboard species where the sideboard amount is
too small to support a
[[Page 79717]]
directed fishery. This will reduce the chance of sideboard caps being
exceeded. Under no circumstances, however, do we support the use of
hard caps on sideboard species that would shut down or otherwise
curtail the pollock fishery itself.
The use of hard caps to shut down the pollock fishery--which is
perhaps the cleanest fishery in the world insofar as incidental catch
of non-target species is concerned--would be punitive in nature, have
devastating economic consequences and accomplish no legitimate
conservation or other management objective. It is essential to remember
that the purpose of the sideboards is to protect non-AFA fishermen from
adverse effects caused by AFA co-op vessels ``spilling over'' into the
other non-target fisheries. This is adequately accomplished through the
use of directed fishing closures on those non-pollock species with
large enough sideboards to support a target fishery (cod and yellowfin
sole, for example). The sideboards were not intended to be a bycatch
reduction measure or to penalize fishermen for incidental catch levels
that have no biological consequences.
Response: NMFS agrees. The FEIS prepared for Amendments 61/61/13/8
drew similar conclusions about the costs and benefits of managing
sideboards through directed fishing closures or hard caps.
Comment 26: We believe that the Council exceeded its authority when
it adopted a catcher/processor sideboard option that based sideboard
amounts on the retained catch of AFA-listed vessels from 1995-1997. We
are opposed to any changes in the way that catcher/processor sideboards
are calculated. The AFA authorizes the Council to make changes that
supersede provisions of the Act only when they are necessary ``for
conservation purposes or to mitigate adverse effects'' caused by the
AFA or fishery cooperatives. Nowhere in the draft EIS nor in any of the
other documents that have been prepared to date in connection with the
AFA amendment package has NMFS ever identified an ``adverse effect''
that needs to be mitigated or a ``conservation'' rationale for the
proposed change in the AFA's C/P sideboard provisions.
Response: While NMFS agrees that the Council has the authority to
supersede the provisions of paragraph 211(b)(2) of the AFA, NMFS
disagrees with the premise that the Council superseded the AFA when it
developed its recommended approach for catcher/processor groundfish
harvesting sideboards. NMFS considers the Council's recommended
approach to be a reasonable interpretation of the statutory prohibition
in the AFA. Therefore, the final rule interprets but does not supersede
the catcher/processor sideboard prohibitions set out in the AFA.
Subparagraph 211(b)(2)(B) of the AFA states:
``The catcher/processors eligible under paragraphs (1) through
(20) of section 208(e) are hereby prohibited from, in the
aggregate--
(A) exceeding the percentage of the harvest available in the
offshore component of any Bering Sea and Aleutian Islands groundfish
fishery (other than the pollock fishery) that is equivalent to the
total harvest by such catcher/processors and the catcher/processors
listed in section 209 in the fishery in 1995, 1996, and 1997
relative to the total amount available to be harvested by the
offshore component in the fishery in 1995, 1996, and 1997;''
As retained catch, by definition, is a subset of total catch, it
must be less than total catch. The AFA only prohibits exceeding ``the
percentage of ...total harvest...'' thus, setting a limit below that
total harvest threshold specifically complies with the statutory
requirements.
The sideboard management approach set out in the final rule is
based on the premise that the terms ``fishery'' and ``other than the
pollock fishery'' refer to specific non-pollock target fisheries of
interest to other fishermen. Under the final rule, sideboards would
limit directed fishing by AFA catcher/processors in each BSAI
groundfish fishery for which a sideboard amount was specified. If a
particular sideboard amount is insufficient to support directed fishing
for that species, NMFS will prohibit AFA catcher/processors from
engaging in directed fishing for that sideboard species. Sideboard
management becomes a matter of regulating the directed fishing
activities of AFA catcher/processors in groundfish fisheries other than
the BSAI pollock fishery.
Under this approach, determining the sideboard amount for a
groundfish species according to the formula set out in the AFA is a
matter of estimating how much of each groundfish species AFA catcher/
processors harvested during 1995-1997 when they were engaged in
directed fishing for that species. Basing sideboard amounts on retained
catch as recommended by the Council provides a reasonable approximation
of directed fishing activity by the AFA fleet in non-pollock target
fisheries from 1995-1997. This is because vessels not engaged in
directed fishing for a particular groundfish species generally did not
retain any of that species, especially prior to 1998 which was the
first year that full retention requirements for Pacific cod were
implemented.
Comment 27: We urge NMFS to maintain the Council's retained catch
formula for catcher vessel and catcher/processor groundfish sideboards.
AFA catcher/processor companies have made various attempts to establish
their sideboard limits at total catch levels rather than retained catch
levels. In rejecting their effort to overreach, the Council in 1999
determined as a matter of policy that the AFA vessels should not be
rewarded for past bycatch and discard history. This determination was
based on longstanding efforts by the Council and NMFS to reduce bycatch
and discards, a position in accordance with national standard 9.
Indeed, it is hypocritical of AFA companies to suggest that their
historic discards and the historic discards of the nine scrapped
vessels should govern their access into non-pollock groundfish
fisheries when retained pollock catch history is the standard used to
govern access into the BSAI pollock fishery. If historic discards are a
valid basis for access into a given fishery then many more vessels
should be eligible to participate in the AFA pollock fishery based on
their historic discards of pollock. Obviously however, the AFA does not
grant vessels access to the BSAI pollock fishery based on their
historic discards of pollock. Likewise, NMFS should set AFA catcher
vessel and catcher/processor sideboards at retained catch levels and
reject any suggestion from AFA companies to establish them at total
catch levels.
Response: Comment noted. The final rule uses retained catch as the
basis for establishing both catcher vessel and catcher/processor
sideboards for the reasons described in the response to comment 26.
Comment 28: The proposed rule preamble discussion of AFA catcher
vessel crab sideboard endorsements presents a requirement that ``an
applicant for an AFA catcher vessel permit to indicate on the permit
application which AFA crab sideboard endorsements the vessel qualifies
for based on the qualifying criteria set out in this rule.'' Because
there is overlap in the LLP terminology (endorsement) and in the use of
LLP catch history years, it should be made explicit that failing to
qualify for a ``sideboard endorsement'' has no effect on the LLP
endorsement for a crab species. One continues to retain the LLP
endorsement even though it can't be used under these regulations. If a
vessel surrenders its AFA permit, its crab LLP endorsements should
still be valid.
[[Page 79718]]
Response: Crab fishery endorsements on a vessel's AFA permit are
independent of crab fishery endorsements on an LLP permit. The operator
of an AFA vessel who wishes to fish for king or Tanner crab in the BSAI
must have the appropriate endorsement on both the AFA and LLP permit in
order to legally fish for crab. The comment also raises the issue of
surrender of AFA permits. The final rule has no provision for the
surrender of an AFA permit. The issuance of an AFA permit involves a
determination by NMFS that the vessel is eligible to fish under the
AFA. Under the final rule, no provision exists for a vessel owner to
surrender an AFA permit or voluntarily give up AFA eligibility. Once
NMFS has made a determination that a vessel is eligible under the AFA,
that determination is permanent. Allowing the surrender of AFA permits
would allow vessel owners to evade sideboard restrictions that the AFA
intended to apply to all eligible vessels regardless of whether or not
they were actively engaged in directed fishing for pollock.
Comment 29: The proposed rule preamble discussion of catcher vessel
groundfish sideboards in the BSAI includes background on the exemptions
to AFA catcher vessel Pacific cod sideboards. This section
misrepresents the basis for providing exemptions. It states in part,
that ``in most years the BSAI cod fishery is mostly concluded by March
1st.'' This is factually incorrect. The offshore pollock fishery prior
to AFA was generally concluded in late February (both for mothership
catcher vessels and catcher vessels delivering to catcher/processors).
The codfishery is in full swing in March. There has not been a shortage
of vessels in March, though most have been AFA vessels.
It also states that mothership sector vessels ``received a
relatively smaller pollock quota under the AFA.'' This is not accurate.
There are 20 mothership catcher vessels dividing 10 percent of the
directed pollock TAC (0.50 percent/vessel), there are 7 catcher vessels
in the catcher/processor sector dividing 3.4 percent of the directed
pollock TAC (0.49 percent/vessel), additionally mothership vessels
retained their inshore pollock catch history. To the extent that non-
AFA catcher vessels are impacted in their ability to catch their
'traditional' share of the catcher vessel trawl cod allocation, it will
not be because non-exempt AFA vessels have exceeded their history, but
because of exemptions. To the extent there is an appropriate basis for
not restricting mothership catcher vessels (or other catcher vessels)
during March it is because they were not limited by a conflicting
pollock fishery during that time period prior to the AFA.
Response: We appreciate this clarification of the Council's
rationale.
Comment 30: The proposed formula for calculating catcher vessel
groundfish sideboards uses a numerator of retained catch over a
denominator of ``TAC available.'' There are various elements of
asymmetry in this method of determining the numerator and denominator
that should be resolved: First, the sideboard formula should be catch
divided by catch rather than catch divided by TAC. The catcher/
processor sideboard is calculated as retained catch divided by total
catch, not retained catch divided by TAC. At a minimum, there should be
consistency in how the two sectors' sideboards are calculated. Second,
sideboards should either be retained catch divided by total retained
catch, or total catch divided by total catch. There should be
consistency between the numerator and denominator.
Response: First, the formulae for catcher vessel and catcher/
processor sideboards were developed by the Council after analysis of an
extensive suite of alternatives. In choosing to use a formula of catch
divided by available TAC, the Council was following the approach set
out in the AFA which based catcher/processor sideboards on catch
divided by available TAC. The Council also recognized that basing
sideboards on catch divided by catch would greatly inflate sideboard
amounts in fisheries that were not fully exploited during the basis
years because the resulting sideboard could greatly exceed historic
catch. Second, the final rule uses the same formula of retained catch
divided by available TAC to calculate both catcher vessel and catcher/
processor sideboards. The catcher/processor sector is treated more
generously than the catcher vessel sector because the entire retained
catch history of the nine ineligible vessels is included into the
sideboard formula for the catcher/processor sector while the catcher
vessel sector is given credit only for the actual catch history of the
AFA catcher vessel fleet. However, aside from this one distinction, the
catcher vessel and catcher/processor groundfish harvesting sideboards
are calculated and managed in the same manner.
Comment 31: An element that potentially impacts the catcher vessel
Pacific cod sideboard arises from using TAC 'available.' In 1997 there
was a year-end reallocation of the Pacific cod TAC from catcher/
processors to catcher vessels that inflated the catcher vessel TAC at a
point in time where it was too late to catch the fish. If this
reallocated TAC is counted as part of the denominator, then it further
waters down the proportionate size of our numerator. NMFS may have all
ready recognized that the appropriate ``TAC available'' was the
starting TAC, so this element may be moot.
Response: Comment noted. The formula NMFS uses for establishing
both catcher vessel and catcher/processor sideboards is based on the
published TACs and does not include year-end reallocations.
Comments on Catch Weighing and Monitoring Requirements
The following comments address catch weighing and monitoring
requirements.
Comment 32: The VMS requirement should be revised to address
instances where the VMS unit is not operational. AFA catcher/processors
are already required to carry two observers at all times. If for some
reason a VMS unit is not operational, through no fault of the vessel
crew or owner, and as long as two observers are onboard, the vessel
should be allowed to continue fishing until the next port of call when
the VMS unit can be diagnosed and repaired or replaced.
Response: The proposed VMS requirement specific to AFA vessels has
been removed from the final rule because such a requirement would be
redundant with existing VMS requirements that were established for
Steller sea lion protection. In January 2002, NMFS established a VMS
requirement for all vessels fishing for Atka mackerel, pollock, and
Pacific cod in the BSAI and GOA with gear other than jig gear as part
of emergency regulations to protect Steller sea lions (67 FR 956,
January 8, 2002). NMFS anticipates that this VMS requirement will be
included in permanent rulemaking to protect Steller sea lions which
makes a separate VMS requirement for AFA vessels redundant and
unnecessary. Comments related to VMS requirements for AFA catcher/
processors will be addressed in the upcoming final rule to implement
Steller sea lion protection measures.
Comment 33: The scale requirement for AFA catcher/processors and
AFA motherships should be relaxed in the event of a scale breakdown
when fish is on board. We endorse the use of onboard scales to weigh
all groundfish taken in the pollock, cod and Atka mackerel fisheries.
All AFA catcher/processors are equipped with such scales. From time to
time, however, the scales break or malfunction. This can be
particularly problematic when fish has already been taken on board the
vessel
[[Page 79719]]
but has not yet been processed. In such circumstances, and where the
scale breakdown may be protracted, we would propose that a catcher/
processor should be allowed to process the fish it has on board as long
as a back-up estimate of the total catch has been or could be made by
the observer. This would avoid the unnecessary wastage of valuable
fish. Furthermore, observed vessels fishing in one of the non-pollock
groundfish fisheries should be allowed to complete the fishing trip as
long as the observer is capable of estimating catch levels in
accordance with the normal procedures prescribed by the NMFS' observer
program. The vessel would then be required to repair the scale at the
end of the trip and would not be allowed to begin another trip until
the necessary repairs have been made and the scale is in working order.
Response: Paragraph 211(b)(6) of the AFA requires that all
groundfish harvested by AFA catcher/processors be weighed on NMFS-
approved scales. The AFA makes no provisions for other methods of catch
estimation. Like many pieces of equipment, scales can fail and it is
critical that vessel crew have the expertise and parts to undertake
repairs at-sea. However, at-sea scales have been in use off Alaska for
more than 3 years. During this time, scale vendors and vessel crew have
learned what spare parts must be carried and what training is necessary
to ensure minimal down time. NMFS believes that allowing fishing to
continue following a scale breakdown would act as a disincentive to an
aggressive program of scale maintenance and repair on the part of
fishing vessels. NMFS acknowledges, however, that under certain
circumstances a scale breakdown could occur and prevent those fish
already on board from being weighed. Failure to process those fish
could cause a violation of increased retention/increased utilization
regulations. Thus, as a matter of policy, NMFS will allow fish already
on board to be processed without being weighed in cases where their
discard would otherwise be necessary.
NMFS acknowledges the suggestion that a catch-weighing program be
extended to the cod and Atka mackerel fisheries. The use of at-sea
scales in these, and other, fisheries has been discussed by the Council
but no recommendations have been made to date.
Comments on Inshore/Offshore Requirements
The following comments relate to the extension of inshore/offshore
regulations in the BSAI and GOA.
Comment 34: We disagree with the inclusion of BSAI Pacific cod as
part of the definition of ``inshore component in the BSAI.'' Pacific
cod has never been allocated between the inshore and offshore
components of the BSAI and the Council in developing its inshore/
offshore amendments never intended to regulate the processing of BSAI
Pacific cod. It appears that NMFS has included BSAI Pacific cod in the
definition of ``inshore component in the BSAI'' in response to section
205(6) of the AFA which defines the inshore component in the BSAI as:
'' the following categories that process groundfish harvested in
the Bering Sea and Aleutian Islands Management Area: (A) shoreside
processors, including those eligible under section 208(f); and (B)
vessels less than 125 feet in length overall that process less than
126 metric tons per week in round-weight equivalents of an aggregate
amount of pollock and Pacific cod.
However, this definition is limited to the context of the AFA and
should never have been used to modify the Council's inshore/offshore
program. Including BSAI Pacific cod in this definition means that
catcher/processors under 125 ft (38.1 m) that process more than 126 mt
of Pacific cod in the BSAI become categorized as part of the offshore
component in the BSAI. This has the effect of prohibiting such vessels
from participating in the inshore component Pacific cod fishery in the
GOA because of the NMFS prohibition on operating in the inshore
component in the GOA and the offshore component in the BSAI during the
same fishing year.
Response: NMFS agrees. To address the unintended conflict between
AFA and inshore/offshore regulations, the final rule has been revised
to remove all definitions and prohibitions relating to inshore/offshore
in the BSAI because the AFA has superseded the inshore/offshore regime
in the BSAI. The regulations governing the inshore/offshore regime in
the GOA also have been revised to eliminate reference to inshore/
offshore in the BSAI. The inshore/offshore prohibitions have been
revised to reflect the actual restrictions on GOA inshore processors
that were in effect prior to the passage of the AFA. Consequently,
vessels designated as inshore processors in the GOA will have no
restrictions on the processing of BSAI Pacific cod.
Classification
The Administrator, Alaska Region, NMFS, determined that Amendments
61/61/13/8 are necessary for the conservation and management of the
groundfish, crab, and scallop fisheries off Alaska and that they are
consistent with the Magnuson-Stevens Act and other applicable laws.
NMFS prepared a final environmental impact statement for Amendments
61/61/13/8; a notice of availability was published on March 1, 2002 (67
FR 9448). The FEIS examined the projected changes to fishing and
processing patterns that are expected to result from implementation of
Amendments 61/61/13/8 and how these expected changes will affect the
physical and biological resources of the BSAI and GOA. The FEIS
concluded that Amendments 61/61/13/8 are expected to have conditionally
positive effects on Steller sea lions as a result of the expected
temporal and spatial dispersion of fishing effort and the expectation
that fishery cooperatives will provide increased ability to micro-
manage fishing activity at the individual vessel level. This increase
in management capacity is expected to facilitate the implementation of
Steller sea lion protection measures. For all other components of the
environment analyzed, the effects of Amendments 61/61/13/8 was found to
be either insignificant or unknown.
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
NMFS prepared a FRFA as part of the final EIS that describes the
impact this action will have on small entities. The FRFA describes the
objectives and legal basis for the final rule. With regard to
commercial fishing vessels operating in the directed pollock fishery in
the BSAI, the AFA provides the legal basis for taking actions to
achieve the objective of reducing excessive fishing capacity and
establishes regulatory conditions that could foster operational
efficiencies in this fishery (Division C, Title II of Public Law 105-
277), including cooperative formation and development of sideboard
measures. Mitigation of potential adverse impacts to non-AFA fishermen
and processors is mandated by the AFA.
The FRFA contains a description of and an estimate of the number of
small entities to which the final rule would apply. The FRFA concluded
that none of the catcher/processors, motherships and inshore processors
affected by this action are small entities. All of the inshore and
mothership processors participating in the BSAI pollock fishery are
subsidiaries or close affiliates of corporations with more than 500
employees worldwide, and exceed the criterion for small entities. In
addition, all 21 AFA catcher/processors have estimated annual gross
revenues in excess of the $3-million small entity criterion for fish
harvesting operations.
[[Page 79720]]
Therefore, none of the catcher/processors, motherships, or inshore
processors in the BSAI pollock fishery appear to meet the Regulatory
Flexibility Act (RFA) criteria for small entities.
With respect to the catcher vessel fleet, NMFS expects that
approximately 120 catcher boats will be eligible to harvest BSAI
pollock under this final rule (7 in the offshore delivery sector, 92 in
the inshore sector, 7 in the mothership sector, and 14 which are
eligible in both the inshore and mothership sectors). Ownership
information presented in the FRFA indicates that, of the 92 catcher
boats that operated exclusively or partly in the inshore sector, the
available ownership data identify 26 vessels owned, in whole or in
part, by inshore processors. These 26 vessels may be considered to be
affiliated with their respective inshore processor owners and cannot be
considered small entities because none of the inshore processors in the
BSAI pollock fishery, themselves, are small entities for RFA purposes.
An additional 5 catcher boats have been identified as closely
affiliated with an inshore floating processor. These 5 catcher boats,
taken together with their affiliated processor, exceed the $3-million
criterion for fish harvesting operations and are, therefore, not
believed to be small entities.
Furthermore, an additional 20 catcher boats have ownership
affiliations with other catcher boats or catcher processors. The gross
annual receipts of each of these groups of affiliated catcher boats is
believed to exceed the $3-million criterion for small entities, when
all their fisheries earnings are taken as a whole. The remaining 40
catcher boats operating exclusively or partly in the inshore sector are
believed to be small entities.
Twenty-eight catcher boats operated in the offshore sector
exclusively (e.g., delivering to catcher/processors and motherships),
while 22 operated in both inshore and offshore sectors for a total of
50 offshore catcher boats. Of the combined offshore catcher boat
sector, 13 have ownership affiliations with large inshore or offshore
processors and, therefore, do not meet the $3-million criterion for
small entities. An additional 13 catcher boats have ownership
affiliations with other vessels or operations that, taken together with
their affiliated entities, are believed to exceed the $3-million gross
receipts criterion for small entities. The remaining 24 catcher boats
operating exclusively or partly in the offshore sector are believed to
qualify as ``small entities'' (and are among the same 120 total vessels
described earlier).
The FRFA further concluded that the formation of inshore fishery
cooperatives among predetermined groups of catcher vessels and a
corresponding inshore processor will create distinct sets of entities,
large and small, and their potential for inter-related economic effects
resulting from such affiliation. In the context of an RFA analysis, a
fish harvesting concern is a small entity if it has annual receipts not
in excess of $3 million or it is not dominant in its field (defined in
13 CFR part 121, Standard Industrial Code categorizations). An
independent catcher vessel operating in the ``open access'' or non-
cooperative directed pollock fishery would typically meet that
criteria. However, under Small Business Administration regulations for
determining entity size, businesses that are affiliated with each other
through joint-venture or cooperative arrangements are not considered
``independent'' and the affiliated businesses must be taken as a whole
when determining entity size. In the case of AFA inshore cooperatives,
the $3-million criterion will be exceeded for every inshore cooperative
meaning that once independent catcher vessels join a cooperative, they
can no longer be considered a small business concern for RFA purposes.
Despite the fact that catcher vessels will lose their small entity
size status upon entry into cooperatives, the FRFA nonetheless examined
the economic consequences of cooperative formation on independent
catcher vessels. Approximately 43 small entities, including 40
independent catcher vessels delivering to inshore processors and three
neighboring communities, would be expected to be directly impacted by
the establishment of AFA cooperatives. The significance of these
impacts on small independent catcher vessel businesses will depend
primarily on the contractual relationship between such vessels, and
their delivery processor as moderated by their collective cooperative
agreement and cooperative by-laws. The FRFA concluded that if
conventional cooperative motives exist between processor and catcher
vessel business members as to foster a mutually beneficial economic
relationship, this cooperative action would not be expected to
significantly impact a substantial number of these small entities.
Indeed, the action would be a net gain for cooperative members and
their neighboring communities. Conversely, if the processor associated
with the cooperative decides to exploit its position as the sole
purchaser of pollock from cooperative co-members that operate as
catcher vessels, then it would be highly probable that a substantial
number of small entities would be significantly impacted by this action
implementing such fishery cooperatives as authorized under AFA. Until
empirical data become available, likely after cooperatives have been in
operation for 2 or more years, these questions cannot be definitively
addressed.
At its June 2000 meeting in Portland, OR, the Council considered
and postponed action on a proposal from independent fishermen, known as
the ``Dooley-Hall'' proposal, that would have allowed catcher vessel
owners to switch cooperatives from year-to-year without needing to
spend a year in the open access fishery to qualify for the new
cooperative. This proposal is identified as Alternative 5 in the FRFA.
Independent fishermen made this proposal to reduce negative economic
impacts of this action on their sector of small entities. The FRFA
concluded that the economic implications of the Dooley-Hall alternative
on independent catcher vessels would be positive. It would also allow
them to both retain the exclusive harvesting privilege associated with
their cooperative's collective pollock allocation as well as provide
for their ability to accept the highest exvessel price for such pollock
landings as offered by an eligible inshore processor.
After giving close consideration to Alternative 5, the Council
decided to postpone any decision to supersede the AFA by implementing
Alternative 5, and selected Alternative 3 as its preferred alternative.
Adopting Alternative 5 would have required the Council to supersede the
provisions of the AFA that set out the operational criteria for inshore
catcher vessel cooperatives. Such action would have required that the
Council determine that sufficient harm to independent catcher vessels
was likely to occur under Alternative 3. After review of its analysis,
and extensive public testimony, the Council determined that it did not
have sufficient grounds (i.e. evidence of harm to independent catcher
vessel owners) to supersede the AFA and implement Alternative 5. This
determination was also supported by written comments on the Initial
Regulatory Flexibility Act analysis from the original proponents of
Alternative 5. These comments noted that independent catcher vessel
owners have not been adversely affected by implementation of the AFA to
date and further stated that original proponents
[[Page 79721]]
of Alternative 5 now support implementation of Council's preferred
alternative as set forth in this final rule.
Alternative 3 as reflected in this final rule is a compromise that
was developed in legislative and Council processes. It incorporates
compromises among interest groups that were essential to bringing the
AFA and the implementing regulations into existence. In particular, the
difference between Alternatives 3 and 5 reflects a decision about the
allocation of AFA benefits between inshore processors and inshore
catcher vessels. In postponing action on the independent catcher
vessel's proposal reflected in Alternative 5, the Council chose not to
change the terms of this agreement after it had been reached, but
indicated that it could take the issue up again at any point if
evidence suggested that independent catcher vessels were harmed as a
result of the co-op structure contained in the AFA. Thus Alternative 3
is the preferred alternative, although it may not absolutely maximize
net benefits as interpreted in benefit-cost analysis.
Finally, the FRFA examined the impacts of catcher vessel sideboard
measures on small entities, and examined the effects of this final rule
on small vessels excluded from the pollock fishery under the AFA. With
respect to the effects of catcher vessel sideboards on AFA catcher
vessels, the FRFA examined a range of alternatives that would mitigate
adverse effects on small entities, especially small catcher vessels
that may have little pollock catch history in the BSAI and would,
therefore, receive little benefit under the AFA. The Council
recommended, and this final rule contains, an exemption from BSAI
Pacific cod and GOA groundfish sideboards for catcher vessels that have
less than 1,700 mt average annual pollock harvests in the BSAI from
1995-1997. The intent of this alternative is to eliminate the impact of
sideboards on AFA catcher vessels that have not traditionally focused
the bulk of their effort in BSAI pollock, and that are more dependent
on GOA groundfish fisheries.
This final rule contains collection of information requirements
subject to the PRA and which have been approved by OMB under Control
Numbers 0648-0393 and 0648-0401. Public reporting burden for these
collections are listed by OMB control number.
OMB No. 0648-0393: 2 hours to complete the AFA catcher vessel
permit application; 2 hours to complete the AFA mothership and inshore
processor permit application; 2 hours to complete the AFA inshore
cooperative permit application; and 30 minutes to complete the AFA
permit application for a replacement vessel.
OMB No. 0648-0401: 5 minutes to submit a copy of the cooperative
contract; 5 minutes to complete the catcher vessel cooperative pollock
catch report; 8 hours to complete the Cooperative preliminary report;
and 8 hours to complete the annual written Cooperative final report.
This final rule also contains proposed collection-of-information
requirements that have been submitted to OMB for approval. These
requirements, and their associated estimated response times, are: 40
hours for submission of a catch monitoring and control plan; 5 minutes
for arranging for an inspection of a catch monitoring and control plan
and 2 hours for the inspection itself; 1 minute for printing scale
weights; 2 hours to test scales; 40 hours for a cooperative contract,
including the time to specify a designated representative or agent for
a fishery cooperative, the time for a contract clause in a cooperative
contract concerning the making of payments to the State of Alaska, and
the time for a contract provision to prevent exceeding sideboard
limits; 8 hours to report (in a preliminary or final report) on a
vessel-by-vessel basis the total weight of pollock landed outside the
State of Alaska; and 5 minutes for a plant manager to notify an
observer of each delivery of BSAI pollock from an AFA catcher vessel.
Public comment is sought regarding: whether this proposed
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information shall
have practical utility; the accuracy of the burden estimate; ways to
enhance the quality, utility, and clarity of the information to be
collected; and ways to minimize the burden of the collection of
information, including through the use of automated collection
techniques or other forms of information technology. Send comments on
these or any other aspects of the collection of information to NMFS
(see ADDRESSES above) and to OMB at the Office of Information and
Regulatory Affairs, Office of Management and Budget, Washington, DC
20503 (Attention: NOAA Desk Officer).
Notwithstanding any other provision of law, no person is required
to respond to, nor shall a person be subject to a penalty for failure
to comply with a collection of information subject to the requirements
of the PRA unless that collection of information displays a currently
valid OMB Control Number.
A formal section 7 consultation under the Endangered Species Act
was initiated for Amendments 61/61/13/8. In a biological opinion dated
October 19, 2001, the AA determined that fishing activities conducted
under Amendments 61/61/13/8 and its implementing regulations are not
likely to jeopardize the continued existence of any endangered or
threatened species under the jurisdiction of NMFS or result in the
destruction or adverse modification of critical habitat.
List of Subjects in 50 CFR Part 679
Alaska, Fisheries, Recordkeeping and reporting requirements.
Dated: December 6, 2002.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set forth in the preamble, 50 CFR part 679 is
amended as follows:
PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
1. The authority citation for 50 CFR part 679 is revised to read as
follows:
Authority: 16 U.S.C. 773 et seq., 1801 et seq., and 3631 et
seq.; Title II of Division C, Pub. L. 105-277; Sec. 3027, Pub. L.
106-31, 113 Stat. 57.
2. In Sec. 679.1, paragraph (k) is revised to read as follows:
Sec. 679.1 Purpose and scope.
* * * * *
(k) American Fisheries Act measures. Regulations in this part were
developed by NMFS and the Council under the Magnuson-Stevens Act and
American Fisheries Act (AFA) to govern commercial fishing for BSAI
pollock according to the requirements of the AFA. This part also
governs payment and collection of the loan, under the AFA, the
Magnuson-Stevens Act, and Title XI of the Merchant Marine Act, 1936,
made to all those persons who harvest pollock from the directed fishing
allowance allocated to the inshore component under section 206(b)(1) of
the AFA.
3. In Sec. 679.2, the definitions of ``Inshore component in the
BSAI (applicable through December 31, 2004),'' ``Inshore component in
the GOA (applicable through December 31, 2002),'' ``Offshore component
in the BSAI (applicable through December 31, 2004),'' and ``Offshore
component in the GOA (applicable through December 31, 2002),'' are
removed; ``ADF&G processor code,'' ``AFA catcher/processor,'' ``AFA
catcher vessel,'' ``AFA crab processing facility,'' ``AFA entity,''
``AFA inshore processor,'' ``AFA mothership,''
[[Page 79722]]
``Affiliation,'' ``Appointed agent for service of process,''
``Designated cooperative representative,'' ``Designated primary
processor,'' ``Fishery cooperative or cooperative,'' ``Inshore
component in the GOA,'' ``Listed AFA catcher/processor,'' ``Official
AFA record,'' ``Offshore component in the GOA,'' ``Restricted AFA
inshore processor,'' ``Stationary floating processor,'' ``Unlisted AFA
catcher/processor,'' and ``Unrestricted AFA inshore processor'' are
added in alphabetical order, and under the definition of ``Directed
fishing,'' paragraph (4) is added to read as follows:
Sec. 679.2 Definitions.
* * * * *
ADF&G processor code means State of Alaska Department of Fish &
Game (ADF&G) Intent to operate processor license number (example:
F12345).
AFA catcher/processor means a catcher/processor permitted to
harvest BSAI pollock under Sec. 679.4(l)(2).
AFA catcher vessel means a catcher vessel permitted to harvest BSAI
pollock under Sec. 679.4(l)(3).
AFA crab processing facility means a processing plant, catcher/
processor, mothership, floating processor or any other operation that
processes any FMP species of BSAI crab, and that is affiliated with an
AFA entity that processes pollock harvested by a catcher vessel
cooperative operating in the inshore or mothership sectors of the BSAI
pollock fishery.
AFA entity means a group of affiliated individuals, corporations,
or other business concerns that harvest or process pollock in the BSAI
directed pollock fishery.
AFA inshore processor means a shoreside processor or stationary
floating processor permitted to process BSAI pollock under Sec.
679.4(l)(5).
AFA mothership means a mothership permitted to process BSAI pollock
under Sec. 679.4(l)(5).
* * * * *
Affiliation for the purpose of defining AFA entities means a
relationship between two or more individuals, corporations, or other
business concerns in which one concern directly or indirectly owns a
10-percent or greater interest in another, exerts control over another,
or has the power to exert control over another; or a third individual,
corporation, or other business concern directly or indirectly owns a 10
percent or greater interest in both, exerts control over both, or has
the power to exert control over both.
(1) What is 10-percent or greater ownership? For the purpose of
determining affiliation, 10-percent or greater ownership is deemed to
exist if an individual, corporation, or other business concern directly
or indirectly owns 10 percent or greater interest in a second
corporation or other business concern.
(2) What is an indirect interest? An indirect interest is one that
passes through one or more intermediate entities. An entity's
percentage of indirect interest in a second entity is equal to the
entity's percentage of direct interest in an intermediate entity
multiplied by the intermediate entity's direct or indirect interest in
the second entity.
(3) What is control? For the purpose of determining affiliation,
control is deemed to exist if an individual, corporation, or other
business concern has any of the following relationships or forms of
control over another individual, corporation, or other business
concern:
(i) Controls 10 percent or more of the voting stock of another
corporation or business concern;
(ii) Has the authority to direct the business of the entity which
owns the fishing vessel or processor. The authority to ``direct the
business of the entity'' does not include the right to simply
participate in the direction of the business activities of an entity
which owns a fishing vessel or processor;
(iii) Has the authority in the ordinary course of business to limit
the actions of or to replace the chief executive officer, a majority of
the board of directors, any general partner or any person serving in a
management capacity of an entity that holds 10 percent or greater
interest in a fishing vessel or processor. Standard rights of minority
shareholders to restrict the actions of the entity are not included in
this definition of control provided they are unrelated to day-to-day
business activities. These rights include provisions to require the
consent of the minority shareholder to sell all or substantially all
the assets, to enter into a different business, to contract with the
major investors or their affiliates or to guarantee the obligations of
majority investors or their affiliates;
(iv) Has the authority to direct the transfer, operation or manning
of a fishing vessel or processor. The authority to ``direct the
transfer, operation, or manning'' of a vessel or processor does not
include the right to simply participate in such activities;
(v) Has the authority to control the management of or to be a
controlling factor in the entity that holds 10 percent or greater
interest in a fishing vessel or processor;
(vi) Absorbs all the costs and normal business risks associated
with ownership and operation of a fishing vessel or processor;
(vii) Has the responsibility to procure insurance on the fishing
vessel or processor, or assumes any liability in excess of insurance
coverage;
(viii) Has the authority to control a fishery cooperative through
10-percent or greater ownership or control over a majority of the
vessels in the cooperative, has the authority to appoint, remove, or
limit the actions of or replace the chief executive officer of the
cooperative, or has the authority to appoint, remove, or limit the
actions of a majority of the board of directors of the cooperative. In
such instance, all members of the cooperative are considered affiliates
of the individual, corporation, or other business concern that exerts
control over the cooperative; and
(ix) Has the ability through any other means whatsoever to control
the entity that holds 10 percent or greater interest in a fishing
vessel or processor.
* * * * *
Appointed agent for service of process means an agent appointed by
the members of a fishery cooperative to serve on behalf of the
cooperative. The appointed agent for service of process may be the
owner of a vessel listed as a member of the cooperative or a registered
agent.
* * * * *
Designated cooperative representative means an individual who is
designated by the members of a fishery cooperative to fulfill
requirements on behalf of the cooperative including, but not limited
to, the signing of cooperative fishing permit applications; submitting
catcher vessel pollock cooperative catch reports, and submitting annual
cooperative fishing reports.
Designated primary processor means an AFA inshore processor that is
designated by an inshore pollock cooperative as the AFA inshore
processor to which the cooperative will deliver at least 90 percent of
its BSAI pollock allocation during the year in which the AFA inshore
cooperative fishing permit is in effect.
* * * * *
Directed fishing means:
* * * * *
(4) With respect to the harvest of groundfish by AFA catcher/
processors and AFA catcher vessels, any fishing activity that results
in the retention of an amount of a species or species group on board a
vessel that is greater than the maximum retainable percentage for that
[[Page 79723]]
species or species group as calculated under Sec. 679.20.
* * * * *
Fishery cooperative or cooperative means any entity cooperatively
managing directed fishing for BSAI pollock and formed under section 1
of the Fisherman's Collective Marketing Act of 1934 (15 U.S.C. 521). In
and of itself, a cooperative is not an AFA entity subject to excessive
harvest share limitations, unless a single person, corporation or other
business entity controls the cooperative and the cooperative has the
power to control the fishing activity of its member vessels.
* * * * *
Inshore component in the GOA means the following three categories
of the U.S. groundfish fishery that process groundfish harvested in the
GOA:
(1) Shoreside processors
(2) Vessels less than 125 ft (38.1 m) LOA that hold an inshore
processing endorsement on their Federal fisheries permit, and that
process no more than 126 mt per week in round-weight equivalents of an
aggregate amount of pollock and GOA Pacific cod.
(3) Stationary floating processors that hold an inshore processing
endorsement on their Federal processor permit, and that process pollock
and/or Pacific cod harvested in a directed fishery for those species at
a single geographic location in Alaska state waters during a fishing
year.
* * * * *
Listed AFA catcher/processor means an AFA catcher/processor
permitted to harvest BSAI pollock under Sec. 679.4(l)(2)(i).
* * * * *
Official AFA record means the information prepared by the Regional
Administrator about vessels and processors that were used to
participate in the BSAI pollock fisheries during the qualifying periods
specified in Sec. 679.4(l). Information in the official AFA record
includes vessel ownership information, documented harvests made from
vessels during AFA qualifying periods, vessel characteristics, and
documented amounts of pollock processed by pollock processors during
AFA qualifying periods. The official AFA record is presumed to be
correct for the purpose of determining eligibility for AFA permits. An
applicant for an AFA permit will have the burden of proving correct any
information submitted in an application that is inconsistent with the
official record.
* * * * *
Offshore component in the GOA means all vessels not included in the
definition of ``inshore component in the GOA'' that process groundfish
harvested in the GOA.
* * * * *
Restricted AFA inshore processor means an AFA inshore processor
permitted to harvest pollock under Sec. 679.4(l)(5)(i)(B).
* * * * *
Stationary floating processor means a vessel of the United States
operating as a processor in Alaska State waters that remains anchored
or otherwise remains stationary in a single geographic location while
receiving or processing groundfish harvested in the GOA or BSAI.
* * * * *
Unlisted AFA catcher/processor means an AFA catcher/processor
permitted to harvest BSAI pollock under Sec. 679.4(l)(2)(ii).
Unrestricted AFA inshore processor means an AFA inshore processor
permitted to harvest pollock under Sec. 679.4(l)(5)(i)(A).
* * * * *
4. In Sec. 679.4, paragraph (a)(1)(iii) is revised and paragraphs
(k)(10) and paragraph (l) are added to read as follows:
Sec. 679.4 Permits.
* * * * *
(a) * * *
(1) * * *
------------------------------------------------------------------------
Permit is
If program permit or card type effective from For more
is: issue date through information see. .
the end of: .
------------------------------------------------------------------------
* * * * *
..................
(iii) AFA .................. ..................
(A) Catcher/processor Indefinite........ Paragraph (l) of
this section
(B) Catcher vessel Indefinite........ Paragraph (l) of
this section
(C)Mothership Indefinite........ Paragraph (l) of
this section
(D) Inshore processor Indefinite........ Paragraph (l) of
this section
(E) Inshore cooperative Calendar year..... Paragraph (l) of
this section
(F) Replacement vessel Indefinite........ Paragraph (l) of
this section
------------------------------------------------------------------------
* * * * *
(k) * * *
(10) Restrictions on licenses earned on AFA catcher vessels and
listed AFA catcher/processors. No person may use an LLP license that
was derived in whole or in part from the qualifying fishing history of
an AFA catcher vessel or a listed AFA catcher/processor to fish for
groundfish or crab on a non-AFA catcher vessel or non-AFA catcher/
processor. NMFS will identify all such licenses affected by this
restriction and inform the holders of such licenses of this restriction
through a restriction printed on the face of the license.
(l) AFA permits--(1) General--(i) Applicability. In addition to any
other permit and licensing requirements set out in this part, any
vessel used to engage in directed fishing for a non-CDQ allocation of
pollock in the BSAI and any shoreside processor, stationary floating
processor, or mothership that receives pollock harvested in a non-CDQ
directed pollock fishery in the BSAI must have a valid AFA permit
onboard the vessel or at the facility location at all times while non-
CDQ pollock is being harvested or processed. In addition, the owner of
any vessel that is a member of a pollock cooperative in the BSAI must
also have a valid AFA permit for every vessel that is a member of the
cooperative, regardless of whether or not the vessel actually engages
in directed fishing for pollock in the BSAI. Finally, an AFA permit
does not exempt a vessel operator, vessel, or processor from any other
applicable permit or licensing requirement required under this part or
in other state or Federal regulations.
(ii) Duration--(A) Expiration of interim AFA permits. All interim
AFA vessel and processor permits issued prior to January 1, 2002, will
expire on December 31, 2002, unless extended or re-issued by NMFS.
(B) Duration of final AFA permits. Except as provided in paragraphs
(l)(5)(v)(B)(3) and (l)(6)(iii) of this section, AFA vessel and
processor permits issued under this paragraph (l) will have no
expiration date, and are valid indefinitely unless suspended or
revoked.
(iii) Application for permit. NMFS will issue AFA vessel and
processor permits to the current owner(s) of a qualifying vessel or
processor if the owner(s) submits to the Regional Administrator a
completed AFA permit application that is subsequently approved.
(iv) Amended permits. AFA vessel and processor permits may not be
used on or transferred to any vessel or processor that is not listed on
the permit. However, AFA permits may be amended to reflect any change
in the ownership of the vessel or processor. An application to amend an
AFA permit must include the following:
(A) The original AFA permit to be amended, and
[[Page 79724]]
(B) A completed AFA permit application signed by the new vessel or
processor owner.
(2) AFA catcher/processor permits--(i) Listed AFA catcher/
processors. NMFS will issue to an owner of a catcher/processor a listed
AFA catcher/processor permit if the catcher/processor is one of the
following (as listed in AFA paragraphs 208(e)(1) through (20)):
(A) AMERICAN DYNASTY (USCG documentation number 951307);
(B) KATIE ANN (USCG documentation number 518441);
(C) AMERICAN TRIUMPH (USCG documentation number 646737);
(D) NORTHERN EAGLE (USCG documentation number 506694);
(E) NORTHERN HAWK (USCG documentation number 643771);
(F) NORTHERN JAEGER (USCG documentation number 521069);
(G) OCEAN ROVER (USCG documentation number 552100);
(H) ALASKA OCEAN (USCG documentation number 637856);
(I) ENDURANCE (USCG documentation number 592206);
(J) AMERICAN ENTERPRISE (USCG documentation number 594803);
(K) ISLAND ENTERPRISE (USCG documentation number 610290);
(L) KODIAK ENTERPRISE (USCG documentation number 579450);
(M) SEATTLE ENTERPRISE (USCG documentation number 904767);
(N) US ENTERPRISE (USCG documentation number 921112);
(O) ARCTIC STORM (USCG documentation number 903511);
(P) ARCTIC FJORD (USCG documentation number 940866);
(Q) NORTHERN GLACIER (USCG documentation number 663457);
(R) PACIFIC GLACIER (USCG documentation number 933627);
(S) HIGHLAND LIGHT (USCG documentation number 577044);
(T) STARBOUND (USCG documentation number 944658).
(ii) Unlisted AFA catcher/processors. NMFS will issue to an owner
of a catcher/processor an unlisted AFA catcher/processor permit if the
catcher/processor is not listed in Sec. 679.4(l)(2)(i) and is
determined by the Regional Administrator to have harvested more than
2,000 mt of pollock in the 1997 BSAI directed pollock fishery.
(iii) Application for AFA catcher/processor permit. A completed
application for an AFA catcher/processor permit must contain:
(A) Vessel information. The vessel name, ADF&G registration number,
USCG documentation number, vessel telephone number (if any), gross
tons, shaft horsepower, and registered length (in feet);
(B) Ownership information. The managing owner name(s), tax ID
number(s), signature(s), business mailing address(es), business
telephone number(s), business fax number(s), business e-mail
address(es), and managing company (if any);
(3) AFA catcher vessel permits. NMFS will issue to an owner of a
catcher vessel an AFA catcher vessel permit containing sector
endorsements and sideboard restrictions upon receipt and approval of a
completed application for an AFA catcher vessel permit.
(i) Qualifying criteria--(A) Catcher vessels delivering to catcher/
processors. NMFS will endorse an AFA catcher vessel permit to authorize
directed fishing for pollock for delivery to a catcher/processor if the
catcher vessel:
(1) Is one of the following (as listed in paragraphs 208(b)(1)
through (7) of the AFA):
AMERICAN CHALLENGER (USCG documentation number 633219);
FORUM STAR (USCG documentation number 925863);
MUIR MILACH (USCG documentation number 611524);
NEAHKAHNIE (USCG documentation number 599534);
OCEAN HARVESTER (USCG documentation number 549892);
SEA STORM (USCG documentation number 628959);
TRACY ANNE (USCG documentation number 904859); or
(2) Is not listed in Sec. 679.4(l)(3)(i)(A)(1) and is determined
by the Regional Administrator to have delivered at least 250 mt and at
least 75 percent of the pollock it harvested in the directed BSAI
pollock fishery in 1997 to catcher/processors for processing by the
offshore component.
(B) Catcher vessels delivering to AFA motherships. NMFS will
endorse an AFA catcher vessel permit to authorize directed fishing for
pollock for delivery to an AFA mothership if the catcher vessel:
(1) Is one of the following (as listed in paragraphs 208(c)(1)
through (20) and in subsection 211(e) of the AFA):
(i) ALEUTIAN CHALLENGER (USCG documentation number 603820);
(ii) ALYESKA (USCG documentation number 560237);
(iii) AMBER DAWN (USCG documentation number 529425);
(iv) AMERICAN BEAUTY (USCG documentation number 613847);
(v) CALIFORNIA HORIZON (USCG documentation number 590758);
(vi) MAR-GUN (USCG documentation number 525608);
(vii) MARGARET LYN (USCG documentation number 615563);
(viii) MARK I (USCG documentation number 509552);
(ix) MISTY DAWN (USCG documentation number 926647);
(x) NORDIC FURY (USCG documentation number 542651);
(xi) OCEAN LEADER (USCG documentation number 561518);
(xii) OCEANIC (USCG documentation number 602279);
(xiii) PACIFIC ALLIANCE (USCG documentation number 612084);
(xiv) PACIFIC CHALLENGER (USCG documentation number 518937);
(xv) PACIFIC FURY (USCG documentation number 561934);
(xvi) PAPADO II (USCG documentation number 536161);
(xvii) TRAVELER (USCG documentation number 929356);
(xviii) VESTERAALEN (USCG documentation number 611642);
(xix) WESTERN DAWN (USCG documentation number 524423);
(xx) LISA MARIE (USCG documentation number 1038717); or
(2) Is not listed in Sec. 679.4(l)(3)(i)(B)(1) and is determined
by the Regional Administrator to have delivered at least 250 mt of
pollock for processing by motherships in the offshore component of the
BSAI directed pollock fishery in any one of the years 1996 or 1997, or
between January 1, 1998, and September 1, 1998, and is not eligible for
an endorsement to deliver pollock to catcher/processors under Sec.
679.4(l)(3)(i)(A).
(C) Catcher vessels delivering to AFA inshore processors. NMFS will
endorse an AFA catcher vessel permit to authorize directed fishing for
pollock for delivery to an AFA inshore processor if the catcher vessel
is:
(1) One of the following vessels authorized by statute to engage in
directed fishing for inshore sector pollock:
HAZEL LORRAINE (USCG documentation number 592211),
LISA MARIE (USCG documentation number 1038717),
PROVIDIAN (USCG documentation number 1062183); or
(2) Is not listed in Sec. 679.4(l)(3)(i)(A), and:
(i) Is determined by the Regional Administrator to have delivered
at least 250 mt of pollock harvested in the directed BSAI pollock
fishery for processing by the inshore component in any one of the years
1996 or 1997, or between January 1, 1998, and September 1, 1998; or
(ii) Is less than 60 ft (18.1 meters) LOA and is determined by the
Regional Administrator to have delivered at least 40 mt of pollock
harvested in the directed BSAI pollock fishery for processing by the
inshore component in any one of the years 1996 or 1997, or
[[Page 79725]]
between January 1, 1998, and September 1, 1998.
(ii) Application for AFA catcher vessel permit. A completed
application for an AFA catcher vessel permit must contain:
(A) Vessel information. The vessel name, ADF&G registration number,
USCG documentation number, vessel telephone number (if any), gross
tons, shaft horsepower, and registered length (in feet);
(B) Ownership information. The managing owner name(s), tax ID
number(s), signature(s), business mailing address(es), business
telephone number(s), business fax number(s), business e-mail
address(es), and managing company (if any);
(C) Vessel AFA qualification information. The AFA catcher vessel
permit sector endorsement(s) requested.
(D) Vessel crab activity information required for crab sideboard
endorsements. The owner of an AFA catcher vessel wishing to participate
in any BSAI king or Tanner crab fishery must apply for a crab sideboard
endorsement authorizing the catcher vessel to retain that crab species.
An AFA catcher vessel permit may be endorsed for a crab species if the
owner requests a crab sideboard endorsement and if the Regional
Administrator verifies the legal landing(s) according to the following
criteria:
(1) Bristol Bay Red King Crab (BBRKC). A legal landing of any BSAI
king or Tanner crab species in 1996, 1997, or on or before February 7,
1998. A BBRKC sideboard endorsement also authorizes a vessel to retain
Bairdi Tanner crab harvested during the duration of a BBRKC opening if
the vessel is otherwise authorized to retain Bairdi Tanner crab while
fishing for BBRKC under state and Federal regulations.
(2) St. Matthew Island blue king crab. A legal landing of St.
Matthew Island blue king crab in that fishery in 1995, 1996, or 1997.
(3) Pribilof Island red and blue king crab. A legal landing of
Pribilof Island blue or red king crab in that fishery in 1995, 1996, or
1997.
(4) Aleutian Islands (Adak) brown king crab. A legal landing of
Aleutian Islands brown king crab in each of the 1997/1998 and 1998/1999
fishing seasons.
(5) Aleutian Islands (Adak) red king crab. A legal landing of
Aleutian Islands red king crab in each of the 1995/1996 and 1998/1999
fishing seasons.
(6) Opilio Tanner crab. A legal landing of Chionoecetes (C.) opilio
Tanner crab in each of 4 or more years from 1988 to 1997.
(7) Bairdi Tanner crab. A legal landing of C. bairdi Tanner crab in
1995 or 1996.
(8) Exemption to crab harvesting sideboards. An AFA catcher vessel
permit may be endorsed with an exemption from all crab harvesting
sideboards if the owner requests such exemption and provides supporting
documentation that the catcher vessel made a legal landing of crab in
every BBRKC, Opilio Tanner crab, and Bairdi Tanner crab fishery opening
from 1991 to 1997 and if the Regional Administrator verifies the legal
landings.
(E) Vessel exemptions from AFA catcher vessel groundfish sideboard
directed fishing closures. An AFA catcher vessel permit may contain
exemptions from certain groundfish sideboard directed fishing closures.
If a vessel owner is requesting such an exemption, the application must
provide supporting documentation that the catcher vessel qualifies for
the exemption based on the following criteria. The Regional
Administrator will review the vessel's catch history according to the
following criteria:
(1) BSAI Pacific cod. For a catcher vessel to qualify for an
exemption from AFA catcher vessel sideboards in the BSAI Pacific cod
fishery, the catcher vessel must: Be less than 125 ft (38.1 m) LOA,
have landed a combined total of less than 5,100 mt of BSAI pollock in
the BSAI directed pollock fishery from 1995 through 1997, and have made
30 or more legal landings of Pacific cod in the BSAI directed fishery
for Pacific cod from 1995 through 1997.
(2) GOA groundfish species. For a catcher vessel to qualify for an
exemption from AFA catcher vessel sideboards in the GOA groundfish
fisheries, the catcher vessel must: Be less than 125 ft (38.1 m) LOA,
have landed a combined total of less than 5,100 mt of BSAI pollock in
the BSAI directed pollock fishery from 1995 through 1997, and made 40
or more legal landings of GOA groundfish in a directed fishery for GOA
groundfish from 1995 through 1997.
(4) AFA mothership permits. NMFS will issue to an owner of a
mothership an AFA mothership permit if the mothership is one of the
following (as listed in paragraphs 208(d)(1) through (3) of the AFA):
EXCELLENCE (USCG documentation number 967502);
GOLDEN ALASKA (USCG documentation number 651041); and
OCEAN PHOENIX (USCG documentation number 296779).
(i) Cooperative processing endorsement. The owner of an AFA
mothership who wishes to process pollock harvested by a fishery
cooperative formed under Sec. 679.61 must apply for and receive a
cooperative processing endorsement on the vessel's AFA mothership
permit.
(ii) Application for AFA mothership permit. A completed application
for an AFA mothership permit must contain:
(A) Type of permit requested. Type of processor and whether
requesting an AFA cooperative endorsement.
(B) Vessel information. The mothership name, ADF&G processor code,
USCG documentation number, Federal fisheries permit number, gross tons,
shaft horsepower, and registered length (in feet).
(C) Ownership information. The managing owner name(s), tax ID
number(s), signature(s), business mailing address(es), business
telephone number(s), business fax number(s), business e-mail
address(es), and managing company (if any);
(D) AFA crab facility ownership information. If the applicant is
applying for a cooperative pollock processing endorsement, the AFA
mothership application must list the name, type of facility, ADF&G
processor code, and percentage of ownership or control of each AFA crab
facility that is affiliated with the AFA entity that owns or controls
the AFA mothership;
(E) Data confidentiality waiver. If the applicant is applying for a
cooperative pollock processing endorsement, the AFA mothership
application must contain a valid signed data confidentiality waiver for
each crab processing facility listed on the permit application that
authorizes public release of the 1995-1998 total processing history of
each BSAI king and Tanner crab species.
(5) AFA inshore processor permits. NMFS will issue to an owner of a
shoreside processor or stationary floating processor an AFA inshore
processor permit upon receipt and approval of a completed application.
(i) Qualifying criteria--(A) Unrestricted processors. NMFS will
issue an unrestricted AFA inshore processor permit to a shoreside
processor or stationary floating processor if the Regional
Administrator determines that the processor facility processed annually
more than 2,000 mt round-weight of pollock harvested in the inshore
component of the directed BSAI pollock fishery during each of 1996 and
1997.
(B) Restricted processors. NMFS will issue a restricted AFA inshore
processor permit to a shoreside processor or stationary floating
processor if the Regional Administrator determines that
[[Page 79726]]
the facility processed pollock harvested in the inshore component of
the directed BSAI pollock fishery during 1996 or 1997, but did not
process annually more than 2,000 mt round-weight of BSAI pollock during
each of 1996 and 1997.
(ii) Cooperative processing endorsement. The owner of an AFA
inshore processor who wishes to process pollock harvested by a fishery
cooperative formed under Sec. 679.62 must apply for and receive a
cooperative processing endorsement on the AFA inshore processor permit.
(iii) Single geographic location requirement. An AFA inshore
processor permit authorizes the processing of pollock harvested in the
BSAI directed pollock fishery only in a single geographic location
during a fishing year. For the purpose of this paragraph, single
geographic location means:
(A) Shoreside processors. The physical location at which the land-
based shoreside processor first processed BSAI pollock harvested in the
BSAI directed pollock fishery during a fishing year;
(B) Stationary floating processors. A location within Alaska state
waters that is within 5 nm of the position in which the stationary
floating processor first processed BSAI pollock harvested in the BSAI
directed pollock fishery during a fishing year.
(iv) Application for permit. A completed application for an AFA
inshore processor permit must contain:
(A) Type of permit requested. Type of processor, whether requesting
an AFA cooperative endorsement, and amount of BSAI pollock processed in
1996 and 1997;
(B) Stationary floating processor information. The vessel name,
ADF&G processor code, USCG documentation number, Federal processor
permit number, gross tons, shaft horsepower, registered length (in
feet), and business telephone number, business FAX number, and business
e-mail address used on board the vessel.
(C) Shoreside processor information. The processor name, Federal
processor permit number, ADF&G processor code, business street address;
business telephone and FAX numbers, and business e-mail address.
(D) Ownership information. The managing owner name(s), tax ID
number(s), signature(s), business mailing address(es), business
telephone number(s), business fax number(s), business e-mail
address(es), and managing company (if any);
(E) AFA crab facility ownership information. If the applicant is
applying for a cooperative pollock processing endorsement, the AFA
inshore processor application must list the name, type of facility,
ADF&G processor code, and list the percentage of ownership or control
and describe the nature of the interest in each AFA crab facility that
is affiliated with the AFA entity that owns or controls the AFA inshore
processor;
(F) Data confidentiality waiver. If the applicant is applying for a
cooperative pollock processing endorsement, the AFA mothership
application must contain a valid signed data confidentiality waiver for
each crab processing facility listed on the permit application that
authorizes public release of the 1995-1998 total processing history of
each BSAI king and Tanner crab species by that facility.
(v) Authorization of new AFA inshore processors. If the Council
recommends and NMFS approves a combined BSAI pollock TAC that exceeds
1,274,900 mt for any fishing year, or in the event of the actual total
loss or constructive loss of an existing AFA inshore processor, the
Council may recommend that an additional inshore processor (or
processors) be issued AFA inshore processing permits.
(A) Timing of Council action. At any time prior to or during a
fishing year in which the combined BSAI pollock TAC exceeds 1,274,900
mt, or at any time after the actual total loss or constructive total
loss of an existing AFA inshore processor, the Council may, after
opportunity for public comment, recommend that an additional inshore
processor (or processors) be issued AFA inshore processor permits.
(B) Required elements in Council recommendation. Any recommendation
from the Council to add an additional inshore processor (or processors)
must include the following information:
(1) Identification of inshore processor(s). The Council
recommendation must identify by name the inshore processor(s) to which
AFA inshore processor permits would be issued;
(2) Type of AFA inshore processor permit(s). The Council
recommendation must specify whether the identified inshore processor(s)
should be issued a restricted or unrestricted AFA inshore processor
permit.
(3) Duration of permit. The Council recommendation must specify the
recommended duration of the permit. Permit duration may be for any
duration from a single fishing season to the duration of section 208 of
the AFA. Alternatively, the Council may recommend that the permit be
valid as long as the conditions that led to the permit remain in
effect. For example, the Council could recommend that a permit issued
under this paragraph remain valid as long as the combined annual BSAI
pollock TAC remains above 1,274,900 mt. or a lost AFA inshore processor
is not reconstructed.
(4) Council procedures. The Council may establish additional
procedures for the review and approval of requests to authorize
additional AFA inshore processors. However, such procedures must be
consistent with the Magnuson-Stevens Act, the national standards, and
other applicable law.
(5) Action by NMFS. Upon receipt of a recommendation from the
Council to authorize additional AFA inshore processors, NMFS may issue
an AFA inshore processor permit to the identified inshore processor(s)
of the type and duration recommended by the Council, provided the
Council has met the requirements identified in paragraphs
(l)(5)(v)(B)(1) through (4) of this section, and the owner(s) of the
identified inshore processor has submitted a completed application for
an AFA inshore processor permit that is subsequently approved.
(6) Inshore cooperative fishing permits--(i) General. NMFS will
issue to an inshore catcher vessel cooperative formed pursuant to 15
U.S.C. 521 for the purpose of cooperatively managing directed fishing
for pollock for processing by an AFA inshore processor an AFA inshore
cooperative fishing permit upon receipt and approval of a completed
application.
(ii) Application for permit. A completed application for an inshore
cooperative fishing permit must contain the following information:
(A) Cooperative contact information. Name of cooperative; name of
cooperative representative; and business mailing address, business
telephone number, business fax number, and business e-mail address of
the cooperative;
(B) Designated cooperative processor. The name and physical
location of AFA Inshore Processor who is designated in the cooperative
contract as the processor to whom the cooperative has agreed to deliver
at least 90 percent of its BSAI pollock catch;
(C) Cooperative contract information. A copy of the cooperative
contract and a written certification that:
(1) The contract was signed by the owners of at least 80 percent of
the qualified catcher vessels;
(2) The cooperative contract requires that the cooperative deliver
at least 90 percent of its BSAI pollock catch to its designated AFA
processor; and
(3) Each catcher vessel in the cooperative is a qualified catcher
vessel
[[Page 79727]]
and is otherwise eligible to fish for groundfish in the BSAI, has an
AFA catcher vessel permit with an inshore endorsement, and has no
permit sanctions or other type of sanctions against it that would
prevent it from fishing for groundfish in the BSAI;
(D) Qualified catcher vessels. For the purpose of this paragraph, a
catcher vessel is a qualified catcher vessel if it meets the following
permit and landing requirements:
(1) Permit requirements--(i) AFA permit. The vessel must have a
valid AFA catcher vessel permit with an inshore endorsement;
(ii) LLP permit. The vessel must be named on a valid LLP permit
authorizing the vessel to engage in trawling for pollock in the Bering
Sea subarea and in the Aleutian Islands subarea if the vessel's
Aleutian Islands subarea fishing history is used to generate a
cooperative allocation for the Aleutian Islands subarea; and
(iii) Permit sanctions. The vessel has no permit sanctions that
otherwise make it ineligible to engage in fishing for pollock in the
BSAI.
(2) Landing requirements--(i) Active vessels. The vessel delivered
more pollock harvested in the BSAI inshore directed pollock fishery to
the AFA inshore processor designated under paragraph (l)(6)(ii)(B) of
this section than to any other shoreside processor or stationary
floating processor during the year prior to the year in which the
cooperative fishing permit will be in effect; or
(ii) Inactive vessels. The vessel delivered more pollock harvested
in the BSAI inshore directed pollock fishery to the AFA inshore
processor designated under paragraph (l)(6)(ii)(B) of this section than
to any other shoreside processor or stationary floating processor
during the last year in which the vessel delivered BSAI pollock
harvested in the BSAI directed pollock fishery to an AFA inshore
processor.
(E) Business review letter. A copy of a letter from a party to the
contract requesting a business review letter on the fishery cooperative
from the Department of Justice and of any response to such request;
(F) Vessel information. For each cooperative catcher vessel member:
Vessel name, ADF&G registration number, USCG documentation number, AFA
permit number; and
(G) Certification of notary and applicant. Signature and printed
name of cooperative representative, date of signature, and notary stamp
or seal, signature and date commission expires of a notary public.
(iii) Duration of cooperative fishing permits. Inshore cooperative
fishing permits are valid for 1 calendar year.
(iv) Addition or subtraction of vessels. The cooperative
representative must submit a new application to add or subtract a
catcher vessel to or from an inshore cooperative fishing permit to the
Regional Administrator prior to the application deadline. Upon approval
by the Regional Administrator, NMFS will issue an amended cooperative
fishing permit.
(v) Application deadline. An inshore cooperative fishing permit
application and any subsequent contract amendments that add or subtract
vessels must be received by the Regional Administrator by December 1
prior to the year in which the inshore cooperative fishing permit will
be in effect. Inshore cooperative fishing permit applications or
amendments to inshore fishing cooperative permits received after
December 1 will not be accepted by the Regional Administrator for the
subsequent fishing year.
(7) Replacement vessels. (i) In the event of the actual total loss
or constructive total loss of an AFA catcher vessel, AFA mothership, or
AFA catcher/processor, the owner of such vessel may replace such vessel
with a replacement vessel. The replacement vessel will be eligible in
the same manner as the original vessel after submission and approval of
an application for an AFA replacement vessel, provided that:
(A) Such loss was caused by an act of God, an act of war, a
collision, an act or omission of a party other than the owner or agent
of the vessel, or any other event not caused by the willful misconduct
of the owner or agent;
(B) The replacement vessel was built in the United States and, if
ever rebuilt, rebuilt in the United States;
(C) The USCG certificate of documentation with fishery endorsement
for the replacement vessel is issued within 36 months of the end of the
last year in which the eligible vessel harvested or processed pollock
in the directed pollock fishery;
(D) If the eligible vessel is greater than 165 ft (50.3 meters (m))
in registered length, or more than 750 gross registered tons, or has
engines capable of producing more than 3,000 shaft horsepower, the
replacement vessel is of the same or lesser registered length, gross
registered tons, and shaft horsepower;
(E) If the eligible vessel is less than 165 ft (50.3 m) in
registered length, fewer than 750 gross registered tons, and has
engines incapable of producing more than 3,000 shaft horsepower, the
replacement vessel is less than each of such thresholds and does not
exceed by more than 10 percent the registered length, gross registered
tons, or shaft horsepower of the eligible vessel; and
(F) If the replacement vessel is already an AFA catcher vessel, the
inshore cooperative catch history of both vessels may be merged in the
replacement vessel for the purpose of determining inshore cooperative
allocations except that a catcher vessel with an endorsement to deliver
pollock to AFA catcher/processors may not be simultaneously endorsed to
deliver pollock to AFA motherships or AFA inshore processors.
(G) Replacement of replacement vessels. In the event that a
permitted replacement vessel is lost under the circumstances described
in paragraph (l)(7)(i)(A) of this section, the replacement vessel may
be replaced according to the provisions of this paragraph (l)(7).
However, the maximum length, tonnage, and horsepower of any subsequent
replacement vessels are determined by the length, tonnage, and
horsepower of the originally qualifying AFA vessel and not by those of
any subsequent replacement vessels.
(ii) Application for permit. A completed application for an AFA
permit for a replacement vessel must contain:
(A) Identification of lost AFA eligible vessel.
(1) Name, ADF&G vessel registration number, USCG documentation
number, AFA permit number, gross tons, shaft horsepower, and registered
length from USCG documentation of the vessel;
(2) Name(s), tax ID number(s), business mailing address(es),
telephone number(s), FAX number(s), and e-mail address(es) of owner(s);
(3) The last year in which the vessel harvested or processed
pollock in a BSAI directed pollock fishery; and
(4) Description of how the vessel was lost or destroyed. Attach a
USCG Form 2692 or insurance papers to verify the claim.
(B) Identification of replacement vessel.
(1) Name, ADF&G vessel registration number, USCG documentation
number, gross tons, shaft horsepower, registered length, net tons from
USCG documentation, length overall (in feet), and Federal Fisheries
Permit number of the vessel;
(2) Name(s), tax ID number(s), business mailing address(es),
business telephone number(s), business FAX number(s), and business e-
mail address(es) of the owner(s);
[[Page 79728]]
(3) YES or NO indication of whether the vessel was built in the
United States; and
(4) YES or NO indication of whether the vessel has ever been
rebuilt, and if so whether it was rebuilt in the United States.
(C) Certification of applicant and notary. Signature(s) and printed
name(s) of owner(s) and date of signature; signature, notary stamp or
seal of notary public, and date notary commission expires.
(8) Application evaluations and appeals--(i) Initial evaluation.
The Regional Administrator will evaluate an application for an AFA
fishing or processing permit submitted in accordance with paragraph (1)
of this section and compare all claims in the application with the
information in the official AFA record. Claims in the application that
are consistent with information in the official AFA record will be
accepted by the Regional Administrator. Inconsistent claims in the
application, unless supported by evidence, will not be accepted. An
applicant who submits claims based on inconsistent information or fails
to submit the information specified in the application for an AFA
permit will be provided a single 60-day evidentiary period to submit
the specified information, submit evidence to verify the applicant's
inconsistent claims, or submit a revised application with claims
consistent with information in the official AFA record. An applicant
who submits claims that are inconsistent with information in the
official AFA record has the burden of proving that the submitted claims
are correct.
(ii) Additional information and evidence. The Regional
Administrator will evaluate the additional information or evidence to
support an applicant's claims submitted within the 60-day evidentiary
period. If the Regional Administrator determines that the additional
information or evidence meets the applicant's burden of proving that
the inconsistent claims in his or her application are correct, the
official AFA record will be amended and the information will be used in
determining whether the applicant is eligible for an AFA permit.
However, if the Regional Administrator determines that the additional
information or evidence does not meet the applicant's burden of proving
that the inconsistent claims in his or her application is correct, the
applicant will be notified by an initial administrative determination
that the applicant did not meet the burden of proof to change
information in the official AFA record.
(iii) Sixty-day evidentiary period. The Regional Administrator will
specify by letter a 60-day evidentiary period during which an applicant
may provide additional information or evidence to support the claims
made in his or her application, or to submit a revised application with
claims consistent with information in the official AFA record, if the
Regional Administrator determines that the applicant did not meet the
burden of proving that the information on the application is correct
through evidence provided with the application. Also, an applicant who
fails to submit required information will have 60 days to provide that
information. An applicant will be limited to one 60-day evidentiary
period. Additional information or evidence, or a revised application
received after the 60-day evidentiary period specified in the letter
has expired will not be considered for the purposes of the initial
administrative determination.
(iv) Initial administrative determinations (IAD). The Regional
Administrator will prepare and send an IAD to the applicant following
the expiration of the 60-day evidentiary period if the Regional
Administrator determines that the information or evidence provided by
the applicant fails to support the applicant's claims and is
insufficient to rebut the presumption that the official AFA record is
correct or if the additional information, evidence, or revised
application is not provided within the time period specified in the
letter that notifies the applicant of his or her 60-day evidentiary
period. The IAD will indicate the deficiencies in the application,
including any deficiencies with the information, the evidence submitted
in support of the information, or the revised application. The IAD will
also indicate which claims cannot be approved based on the available
information or evidence. An applicant who receives an IAD may appeal
under the appeals procedures set out at Sec. 679.43. An applicant who
avails himself or herself of the opportunity to appeal an IAD will
receive an interim AFA permit that authorizes a person to participate
in an AFA pollock fishery and will have the specific endorsements and
designations based on the claims in his or her application. An interim
AFA permit based on claims contrary to the Official Record will expire
upon final agency action.
(v) Effect of cooperative allocation appeals. An AFA inshore
cooperative may appeal the pollock quota share issued to the
cooperative under Sec. 679.62; however, final agency action on the
appeal must occur prior to December 1 for the results of the appeal to
take effect during the subsequent fishing year.
5. In Sec. 679.7, paragraphs (a)(7) and (k) are revised to read as
follows:
Sec. 679.7 Prohibitions.
(a) * * *
(7) Inshore/offshore--(i) Operate a vessel in the ``inshore
component in the GOA'' as defined in Sec. 679.2 without a valid
inshore processing endorsement on the vessel's Federal fisheries or
Federal processor permit.
(ii) Operate a vessel as a ``stationary floating processor'' in the
``inshore component in the GOA'' as defined in Sec. 679.2, and as a
catcher/processor in the BSAI during the same fishing year.
(iii) Operate a vessel as a ``stationary floating processor'' in
the ``inshore component in the GOA'' as defined in Sec. 679.2, and as
an AFA mothership in the BSAI during the same fishing year.
(iv) Operate any vessel in the GOA in more than one of the three
categories included in the definition of ``inshore component in the
GOA,'' in Sec. Sec. 679.2, during any fishing year.
(v) Operate any vessel in the GOA under both the ``inshore
component in the GOA'' and the ``offshore component in the GOA''
definitions in Sec. Sec. 679.2 during the same fishing year.
(vi) Use a stationary floating processor with an GOA inshore
processing endorsement to process pollock or GOA Pacific cod harvested
in a directed fishery for those species in more than one single
geographic location during a fishing year.
* * * * *
(k) Prohibitions specific to the AFA. It is unlawful for any person
to do any of the following:
(1) Catcher/processors--(i) Permit requirement. Use a catcher/
processor to engage in directed fishing for non-CDQ BSAI pollock
without a valid AFA catcher/processor permit on board the vessel.
(ii) Fishing in the GOA. Use a listed AFA catcher/processor to
harvest any species of fish in the GOA.
(iii) Processing BSAI crab. Use a listed AFA catcher/processor to
process any species of crab harvested in the BSAI.
(iv) Processing GOA groundfish. Use a listed AFA catcher/processor
to process any pollock harvested in a directed pollock fishery in the
GOA and any groundfish harvested in Statistical Area 630 of the GOA.
(v) Directed fishing after a sideboard closure. Use a listed AFA
catcher/processor to engage in directed fishing for a groundfish
species or species group in the BSAI after the Regional
[[Page 79729]]
Administrator has issued an AFA catcher/processor sideboard directed
fishing closure for that groundfish species or species group under
Sec. 679.20(d)(1)(iv) or Sec. 679.21(e)(3)(v).
(vi) Catch weighing--(A) Listed AFA catcher/processors. Process any
groundfish that was not weighed on a NMFS-approved scale that complies
with the requirements of Sec. 679.28(b). Catch may not be sorted
before it is weighed and each haul must be sampled by an observer for
species composition.
(B) Unlisted AFA catcher/processors. Process groundfish harvested
in the BSAI pollock fishery that was not weighed on a NMFS-approved
scale that complies with the requirements of Sec. 679.28(b). Catch may
not be sorted before it is weighed and each haul must be sampled by an
observer for species composition.
(vii) Observer sampling station--(A) Listed AFA catcher/processors.
Process any groundfish without an observer sampling station as
described at Sec. 679.28(d). A valid observer sampling station
inspection report must be on board at all times when an observer
sampling station is required.
(B) Unlisted AFA catcher/processors. Process groundfish harvested
in the BSAI pollock fishery without an observer sampling station as
described at Sec. 679.28(d). A valid observer sampling station
inspection report must be on board at all times when an observer
sampling station is required.
(2) Motherships--(i) Permit requirement. Use a mothership to
process pollock harvested in a non-CDQ directed fishery for pollock in
the BSAI without a valid AFA permit on board the mothership.
(ii) Cooperative processing endorsement. Use an AFA mothership to
process groundfish harvested by a fishery cooperative formed under
Sec. 679.61 unless the AFA mothership permit contains a valid
cooperative pollock processing endorsement.
(iii) Catch weighing. Process any groundfish that was not weighed
on a NMFS-approved scale that complies with the requirements of Sec.
679.28(b). Catch may not be sorted before it is weighed and each
delivery must be sampled by an observer for species composition.
(iv) Observer sampling station. Process any groundfish without an
observer sampling station as described at Sec. 679.28(d). A valid
observer sampling station inspection report must be on board at all
times when an observer sampling station is required.
(3) AFA inshore processors--(i) Permit requirement. Use a shoreside
processor or stationary floating processor to process pollock harvested
in a non-CDQ directed fishery for pollock in the BSAI without a valid
AFA inshore processor permit at the facility or on board vessel.
(ii) Cooperative processing endorsement. Use a shoreside processor
or stationary floating processor required to have an AFA inshore
processor permit to process groundfish harvested by a fishery
cooperative formed under Sec. 679.62 unless the AFA inshore processor
permit contains a valid cooperative pollock processing endorsement.
(iii) Restricted AFA inshore processors. Use an AFA inshore
processor with a restricted AFA inshore processor permit to process
more than 2,000 mt round weight of non-CDQ pollock harvested in the
BSAI directed pollock fishery in any one calendar year.
(iv) Single geographic location requirement. Use an AFA inshore
processor to process pollock harvested in the BSAI directed pollock
fishery at a location other than the single geographic location defined
as follows:
(A) Shoreside processors. The physical location at which the land-
based shoreside processor first processed BSAI pollock harvested in the
BSAI directed pollock fishery during a fishing year.
(B) Stationary floating processors. A location within Alaska State
waters that is within 5 nm of the position in which the stationary
floating processor first processed BSAI pollock harvested in the BSAI
directed pollock fishery during a fishing year.
(v) Catch weighing. Process any groundfish that was not weighed on
a scale approved by the State of Alaska and meeting the requirements
specified in Sec. 679.28(c).
(vi) Catch monitoring and control plan (CMCP). Take deliveries or
process groundfish delivered by a vessel engaged in directed fishing
for BSAI pollock without following an approved CMCP as described at
Sec. 679.28(g). A copy of the CMCP must be maintained on the premises
and made available to authorized officers or NMFS-authorized personnel
upon request.
(4) Catcher vessels--(i) Permit requirement. Use a catcher vessel
to engage in directed fishing for non-CDQ BSAI pollock for delivery to
any AFA processing sector (catcher/processor, mothership, or inshore)
unless the vessel has a valid AFA catcher vessel permit on board that
contains an endorsement for the sector of the BSAI pollock fishery in
which the vessel is participating.
(ii) Crab sideboard endorsement. Use an AFA catcher vessel to
retain any BSAI crab species unless the catcher vessel's AFA permit
contains a crab sideboard endorsement for that crab species.
(iii) Groundfish sideboard closures. Use an AFA catcher vessel to
engage in directed fishing for a groundfish species or species group in
the BSAI or GOA after the Regional Administrator has issued an AFA
catcher vessel sideboard directed fishing closure for that groundfish
species or species group under Sec. 679.20(d)(1)(iv), Sec.
679.21(d)(8) or Sec. 679.21(e)(3)(iv), if the vessel's AFA permit does
not contain a sideboard exemption for that groundfish species or
species group.
(5) AFA inshore fishery cooperatives--(i) Overages by vessel. Use
an AFA catcher vessel listed on an AFA inshore fishery cooperative
fishing permit to harvest non-CDQ BSAI pollock in excess of the fishery
cooperative's annual allocation of pollock specified under Sec.
679.62.
(ii) Overages by fishery cooperative. An inshore pollock fishery
cooperative is prohibited from exceeding its annual allocation of BSAI
pollock TAC.
(6) Excessive harvesting shares. It is unlawful for an AFA entity
to harvest, through a fishery cooperative or otherwise, an amount of
BSAI pollock that exceeds the 17.5-percent excessive share limit
specified under Sec. 679.20(a)(5)(i)(A)(6). The owners and operators
of the individual vessels comprising the AFA entity that harvests BSAI
pollock will be held jointly and severally liable for exceeding the
excessive harvesting share limit.
(7) Excessive processing shares. It is unlawful for an AFA entity
to process an amount of BSAI pollock that exceeds the 30- percent
excessive share limit specified under Sec. 679.20(a)(5)(i)(A)(7). The
owners and operators of the individual processors comprising the AFA
entity that processes BSAI pollock will be held jointly and severally
liable for exceeding the excessive processing share limit.
(8) Crab processing limits. It is unlawful for an AFA entity that
processes pollock harvested in the BSAI directed pollock fishery by an
AFA inshore or AFA mothership catcher vessel cooperative to use an AFA
crab facility to process crab in excess of the crab processing
sideboard cap established for that AFA inshore or mothership entity
under Sec. 679.66. The owners and operators of the individual entities
comprising the AFA inshore or mothership entity will be held jointly
and severally liable for any overages of
[[Page 79730]]
the AFA inshore or mothership entity's crab processing sideboard cap.
6. In Sec. 679.20, paragraph (a)(5)(ii) is redesignated as
paragraph (a)(5)(iii), new paragraphs (a)(5)(ii) and (d)(1)(iv) are
added, and paragraphs (a)(5)(i)(A), (a)(6), (b)(1)(i), and (c)(4) are
revised to read as follows:
Sec. 679.20 General limitations.
* * * * *
(a) * * *
(5) * * *
(i) Bering Sea Subarea--(A) AFA allocations. The pollock TAC
apportioned to the Bering Sea Subarea, after subtraction of the 10
percent CDQ reserve under Sec. 679.31(a), will be allocated as
follows:
(1) Incidental catch allowance. The Regional Administrator will
establish an incidental catch allowance to account for projected
incidental catch of pollock by vessels engaged in directed fishing for
groundfish other than pollock and by vessels harvesting non-pollock
CDQ. If during a fishing year, the Regional Administrator determines
that the incidental catch allowance has been set too high or too low,
he/she may issue inseason notification in the Federal Register that
reallocates incidental catch allowance to the directed fishing
allowance, or vice versa, according to the proportions established
under paragraph (a)(5)(i)(A) of this section.
(2) Directed fishing allowance. The remaining pollock TAC
apportioned to the Bering Sea subarea is established as a directed
fishing allowance.
(3) Inshore sector allocation. Fifty percent of the directed
fishing allowance will be allocated to AFA catcher vessels harvesting
pollock for processing by AFA inshore processors. The inshore
allocation will be further divided into separate allocations for
cooperative and open access fishing.
(i) Inshore cooperatives. The inshore cooperative allocation will
be equal to the aggregate annual allocations of all AFA inshore catcher
vessel cooperatives that receive pollock allocations under Sec.
679.62(e).
(ii) Inshore open access. The inshore open access allocation will
equal that portion of the inshore sector allocation that is not
allocated to inshore cooperatives.
(4) Catcher/processor sector allocation. Forty percent of the
directed fishing allowance will be allocated to AFA catcher/processors
and AFA catcher vessels delivering to catcher processors.
(i) Catcher/processor and catcher vessel cooperatives. If by
December 1 of the year prior to the year when fishing under the
cooperative agreement will begin, NMFS receives filing of cooperative
contracts and/or an inter-cooperative agreement entered into by listed
AFA catcher/processors and all AFA catcher vessels with catcher/
processor sector endorsements, and the Regional Administrator
determines that such contracts provide for the distribution of harvest
between catcher/processors and catcher vessels in a manner agreed to by
all members of the catcher/processor sector cooperative(s), then NMFS
will not subdivide the catcher/processor sector allocation between
catcher vessels and catcher/processors.
(ii) Catcher vessel allocation. If such contract is not filed with
NMFS by December 1 of the preceding year, then NMFS will allocate 91.5
percent of the catcher/processor sector allocation to AFA catcher/
processors engaged in directed fishing for pollock and 8.5 percent of
the catcher/processor sector allocation to AFA catcher vessels
delivering to catcher/processors.
(iii) Unlisted AFA catcher processors. Unlisted AFA catcher/
processors will be limited to harvesting not more than 0.5 percent of
catcher/processor sector allocation.
(5) Mothership sector allocation. Ten percent of the directed
fishing allowance will be allocated to AFA catcher vessels harvesting
pollock for processing by AFA motherships.
(6) Excessive harvesting share. NMFS will establish an excessive
harvesting share limit equal to 17.5 percent of the sum of the directed
fishing allowances established under paragraphs (a)(5)(i) and
(a)(5)(ii) of this section. The excessive harvesting share limit will
be published in the annual harvest specifications and is subject to
revision on an inseason basis if NMFS reallocates unharvested amounts
of the incidental catch allowance to the directed fishing allowance, or
vice versa.
(7) Excessive processing share. NMFS will establish an excessive
processing share limit equal to 30.0 percent of the sum of the directed
fishing allowances established under paragraphs (a)(5)(i) and
(a)(5)(ii) of this section. The excessive processing share limit will
be published in the annual harvest specifications and is subject to
revision on an inseason basis if NMFS reallocates unharvested amounts
of the incidental catch allowance to the directed fishing allowance, or
vice versa.
* * * * *
(ii) Aleutian Islands Subarea and Bogoslof District. If the
Aleutian Islands subarea and/or Bogoslof District is open to directed
fishing for pollock by regulation, then the pollock TAC for those areas
will be allocated according to the same procedure established for the
Bering Sea subarea at paragraph (a)(5)(i) of this section. If the
Aleutian Islands subarea and/or Bogoslof District is closed to directed
fishing for pollock by regulation then the entire TAC for those areas
will be allocated as an incidental catch allowance.
* * * * *
(6) GOA inshore/offshore allocations--(i) GOA pollock. The
apportionment of pollock in all GOA regulatory areas and for each
seasonal allowance described in paragraph (a)(5)(iii) of this section
will be allocated entirely to vessels harvesting pollock for processing
by the inshore component in the GOA after subtraction of an amount that
is projected by the Regional
Administrator to be caught by, or delivered to, the offshore
component in the GOA incidental to directed fishing for other
groundfish species.
(ii) GOA Pacific cod. The apportionment of Pacific cod in all GOA
regulatory areas will be allocated 90 percent to vessels harvesting
Pacific cod for processing by the inshore component in the GOA and 10
percent to vessels harvesting Pacific cod for processing by the
offshore component in the GOA.
* * * * *
(b) Reserves--(1) BSAI--(i) General. Fifteen percent of the BSAI
TAC for each target species and the ``other species'' category, except
pollock and the hook-and-line and pot gear allocation for sablefish, is
automatically placed in a reserve, and the remaining 85 percent of the
TAC is apportioned for each target species and the ``other species''
category, except pollock and the hook-and-line and pot gear allocation
for sablefish.
* * * * *
(c) * * *
(4) AFA and inshore/offshore allocations--(i) BSAI pollock. The
annual harvest specifications will specify the allocation of pollock
for processing by each AFA industry component in the BSAI, and any
seasonal allowances thereof, as authorized under paragraph (a)(5) of
this section.
(ii) GOA pollock and Pacific cod. The annual harvest specifications
will specify the allocation of GOA pollock and GOA Pacific cod for
processing by the inshore component in the GOA and the offshore
component in the GOA, and any seasonal allowances thereof, as
[[Page 79731]]
authorized under paragraphs (a)(5) and (a)(6) of this section.
* * * * *
(d) * * *
(1) * * *
(iv) AFA sideboard limitations--(A) If the Regional Administrator
determines that any sideboard harvest limit for a group of AFA vessels
established under Sec. 679.64 has been or will be reached, the
Regional Administrator may establish a sideboard directed fishing
allowance for the species or species group applicable only to the
identified group of AFA vessels.
(B) In establishing a directed fishing allowance under paragraph
(d)(1)(iv)(A) of this section, the Regional Administrator will consider
the amount of the sideboard limit established for a group of AFA
vessels under Sec. 679.64 that will be taken as incidental catch by
those vessels in directed fishing for other species.
(C) If the Regional Administrator determines that a sideboard
amount is insufficient to support a directed fishery for that species
then the Regional Administrator may set the sideboard directed fishing
allowance at zero for that species or species group.
* * * * *
7. In Sec. 679.21, paragraphs (d)(8) and (e)(3)(v) are added to
read as follows:
Sec. 679.21 Prohibited species bycatch management.
* * * * *
(d) * * *
(8) AFA halibut bycatch limitations. Halibut bycatch limits for AFA
catcher vessels will be established according to the procedure and
formula set out in Sec. 679.64(b) and managed through directed fishing
closures for AFA catcher vessels in the groundfish fisheries to which
the halibut bycatch limit applies.
(e) * * *
(3) * * *
(v) AFA prohibited species catch limitations. Halibut and crab PSC
limits for AFA catcher/processors and AFA catcher vessels will be
established according to the procedures and formulas set out in Sec.
679.64(a) and (b) and managed through directed fishing closures for AFA
catcher/processors and AFA catcher vessels in the groundfish fisheries
for which the PSC limit applies.
* * * * *
8. In Sec. 679.28, paragraph (c) is revised, and a new paragraph
(g) is added to read as follows:
Sec. 679.28 Equipment and operational requirements.
* * * * *
(c) Scales approved by the State of Alaska. Scale requirements in
this paragraph are in addition to those requirements set forth by the
State of Alaska, and nothing in this paragraph may be construed to
reduce or supersede the authority of the State to regulate, test, or
approve scales within the State of Alaska or its territorial sea.
Scales used to weigh groundfish catch that are also required to be
approved by the State of Alaska under Alaska Statute 45.75 must meet
the following requirements:
(1) Verification of approval. The scale must display a valid State
of Alaska sticker indicating that the scale was inspected and approved
within the previous 12 months.
(2) Visibility. The owner and manager of the processor must ensure
that the scale and scale display are visible simultaneously to the
observer. Observers, NMFS personnel, or an authorized officer must be
allowed to observe the weighing of fish on the scale and be allowed to
read the scale display at all times.
(3) Printed scale weights. (i) The owner and manager of the
processor must ensure that printouts of the scale weight of each haul,
set, or delivery are made available to observers, NMFS personnel, or an
authorized officer at the time printouts are generated and thereafter
upon request for the duration of the fishing year. The owner and
manager must retain scale printouts as records as specified in Sec.
679.5(a)(13).
(ii) A scale identified in a CMCP (see paragraph (g) of this
section) must produce a printed record for each delivery, or portion of
a delivery, weighed on that scale. If approved by NMFS as part of the
CMCP, scales not designed for automatic bulk weighing may be exempted
from part or all of the printed record requirements. The printed record
must include:
(A) The processor name;
(B) The weight of each load in the weighing cycle;
(C) The total weight of fish in each delivery, or portion of the
delivery that was weighed on that scale;
(D) The total cumulative weight of all fish or other material
weighed on the scale since the last annual inspection;
(E) The date and time the information is printed;
(F) The name and ADF&G number of the vessel making the delivery.
This information may be written on the scale printout in pen by the
scale operator at the time of delivery.
(4) Inseason scale testing. Scales identified in an approved CMCP
(see paragraph (g) of this section) must be tested by plant personnel
in accordance with the CMCP when testing is requested by NMFS-staff or
NMFS-authorized personnel. Plant personnel must be given no less than
20 minutes notice that a scale is to be tested and no testing may be
requested if a scale test has been requested and the scale has been
found to be accurate within the last 24 hours.
(i) How does a scale pass an inseason test? To pass an inseason
test, NMFS staff or NMFS-authorized personnel will verify that the
scale display and printed information are clear and easily read under
all conditions of normal operation, weight values are visible on the
display until the value is printed, and the scale does not exceed the
maximum permissible errors specified below:
------------------------------------------------------------------------
Maximum Error in Scale
Test Load in Scale Divisions Divisions
------------------------------------------------------------------------
(A) 0-500 1
(B) 501-2,000 2
(C) 2,001-4,000 3
(D) 4,000 5
------------------------------------------------------------------------
(ii) How much weight is required to do an inseason scale test?
Scales must be tested with the amount and type of weight specified for
each scale type in the following tables:
(A) Automatic hopper 0 to 150 kg (0 to 300 lb) capacity.
------------------------------------------------------------------------
Certified Test Weights Other test material
------------------------------------------------------------------------
(1) Minimum weighment or 10 kg (20 lb), Minimum
whichever is greater
(2) Maximum Maximum
------------------------------------------------------------------------
(B) Automatic hopper 150 kg (300 lb) capacity.
------------------------------------------------------------------------
Certified Test Weights Other test material
------------------------------------------------------------------------
(1) Minimum weighment or 10 kg (20 lb), Minimum
whichever is greater
(2) 25 percent of maximum or 150 kg (300 Maximum
lb), whichever is greater.
------------------------------------------------------------------------
(C) Platform or flatbed 0 to 150 kg (0 to 300 lb) capacity.
------------------------------------------------------------------------
Certified Test Weights Other test material
------------------------------------------------------------------------
(1) 10 kg (20 lb) Not Acceptable
(2) Midpoint Not Acceptable
(3) Maximum Not Acceptable
------------------------------------------------------------------------
[[Page 79732]]
(D) Platform or flatbead 150 kg (300 lb) capacity.
------------------------------------------------------------------------
Certified Test Weights Other test material
------------------------------------------------------------------------
(1) 10 kg (20 lb) Not Acceptable
(2) 12.5 percent of maximum or 75 kg (150 50 percent of maximum or 75
lb), whichever is greater kg (150 lb), whichever is
greater
(3) 25 percent of maximum or 150 kg (300 75 percent of maximum or 150
lb), whichever is greater kg (300 lb), whichever is
greater
------------------------------------------------------------------------
(E) Observer sampling scale 50 kg capacity.
------------------------------------------------------------------------
Certified Test Weights Other test material
------------------------------------------------------------------------
(1) 10 kg Not Acceptable
(2) 25 kg Not Acceptable
(3) 50 kg Not Acceptable
------------------------------------------------------------------------
(iii) Certified test weights. Each test weight used for inseason
scale testing must have its weight stamped on or otherwise permanently
affixed to it. The weight of each test weight must be certified by a
National Institute of Standards and Technology approved metrology
laboratory every 2 years. An observer platform scale must be provided
with sufficient test weights to test the scale at 10 kg, 25 kg, and 50
kg. All other scales identified in an approved CMCP must be provided
with sufficient test weights to test the scale as described in this
paragraph (c)(4) of this section. Test weights for observer platform
scales must be denominated in kilograms. Test weights for other scales
may be denominated in pounds.
(iv) Other test material. When permitted in paragraph (c)(4)(ii) of
this section, a scale may be tested with test material other than
certified test weights. This material must be weighed on an accurate
observer platform scale at the time of each use.
(v) Observer sampling scales. Platform scales used as observer
sampling scales must:
(A) Have a capacity of no less than 50 kg;
(B) Have a division size of no less than 5 g;
(C) Indicate weight in kilograms and decimal subdivisions; and
(D) Be accurate within plus or minus 0.5 percent when tested at 10
kg, 25 kg, and 50 kg by NMFS staff or a NMFS-certified observer.
* * * * *
(g) Catch monitoring and control plan requirements (CMCP)
(Effective June 1, 2003)--(1) What is a CMCP? A CMCP is a plan
submitted by the owner and manager of a processing plant, and approved
by NMFS, detailing how the processing plant will meet the catch
monitoring and control standards detailed in paragraph (g)(6) of this
section.
(2) Who is required to prepare and submit a CMCP for approval? The
owner and manager of an AFA inshore processor is required to prepare
and submit a CMCP which must be approved by NMFS prior to the receipt
of pollock harvested in the BSAI directed pollock fishery.
(3) How is a CMCP approved by NMFS? NMFS will approve a CMCP if it
meets all the performance standards specified in paragraph (g)(6) of
this section. The processor must be inspected by NMFS prior to approval
of the CMCP to ensure that the processor conforms to the elements
addressed in the CMCP. NMFS will complete its review of the CMCP within
14 working days of receiving a complete CMCP and conducting a CMCP
inspection. If NMFS disapproves a CMCP, the plant owner or manager may
resubmit a revised CMCP or file an administrative appeal as set forth
under the administrative appeals procedures described at Sec. 679.43.
(4) How is a CMCP inspection arranged? The time and place of a CMCP
inspection may be arranged by submitting a written request for an
inspection to NMFS, Alaska Region. NMFS will schedule an inspection
within 10 working days after NMFS receives a complete application for
an inspection. The inspection request must include:
(i) Name and signature of the person submitting the application and
the date of the application;
(ii) Address, telephone number, fax number, and email address (if
available) of the person submitting the application;
(iii) A proposed CMCP detailing how the processor will meet each of
the performance standards in paragraph (g)(6) of this section.
(5) For how long is a CMCP approved? NMFS will approve a CMCP for 1
year if it meets the performance standards specified in paragraph
(e)(2) of this section. An owner or manager must notify NMFS in writing
if changes are made in plant operations or layout that do not conform
to the CMCP.
(6) How do I make changes to my CMCP? An owner and manager may
change an approved CMCP by submitting a CMCP addendum to NMFS. NMFS
will approve the modified CMCP if it continues to meet the performance
standards specified in paragraph (e)(2) of this section. Depending on
the nature and magnitude of the change requested, NMFS may require a
CMCP inspection as described in paragraph (g)(3) of this section. A
CMCP addendum must contain:
(i) Name and signature of the person submitting the addendum;
(ii) Address, telephone number, fax number and email address (if
available) of the person submitting the addendum;
(iii) A complete description of the proposed CMCP change.
(7) Catch monitoring and control standards--(i) Catch sorting and
weighing requirements. All groundfish delivered to the plant must be
sorted and weighed by species. The CMCP must detail the amount and
location of space for sorting catch, the number of staff assigned to
catch sorting and the maximum rate that catch will flow through the
sorting area.
(ii) Scales used for weighing groundfish. The CMCP must identify by
serial number each scale used to weigh groundfish and describe the
rational for its use.
(iii) Scale testing procedures. Scales identified in the CMCP must
be accurate within the limits specified in paragraph (c)(4)(i) of this
section. For each scale identified in the CMCP a testing plan must be
developed that:
(A) Describes the procedure the plant will use to test the scale;
(B) Lists the test weights and equipment required to test the
scale;
(C) Lists where the test weights and equipment will be stored; and
(D) Lists the plant personnel responsible for conducting the scale
testing.
(iv) Printed record. The owner and manager must ensure that the
scale produces a complete and accurate printed record of the weight of
each species in a delivery. All of the groundfish in a delivery must be
weighed on a scale capable of producing a complete printed record as
described in paragraph (c)(3) of this section. However, NMFS may exempt
scales not designed for automatic bulk weighing from some or all of the
printed record requirements if the CMCP identifies any scale that
cannot produce a complete printed record, states how the processor will
use the scale, and states how the plant intends to produce a complete
record of the total weight of each delivery.
(v) Delivery point. Each CMCP must identify a single delivery
point. The delivery point is the first location where fish removed from
a delivering catcher vessel can be sorted or diverted to more than one
location. If the catch is pumped from the hold of a catcher vessel or a
codend, the delivery point normally will be the location where the pump
first discharges the catch. If catch
[[Page 79733]]
is removed from a vessel by brailing, the delivery point normally will
be the bin or belt where the brailer discharges the catch.
(vi) Observation area. Each CMCP must designate an observation
area. The observation area is a location designated on the CMCP where
an individual may monitor the flow of fish during a delivery. The owner
and manager must ensure that the observation area meets the following
standards:
(A) Access to the observation area. The observation area must be
freely accessible to NMFS staff or NMFS-authorized personnel at any
time a valid CMCP is required.
(B) Monitoring the flow of fish. From the observation area, an
individual must have an unobstructed view or otherwise be able to
monitor the entire flow of fish between the delivery point and a
location where all sorting has taken place and each species has been
weighed.
(vii) Observer work station. Each CMCP must identify and include an
observer work station for the exclusive use of NMFS-certified
observers. Unless otherwise approved by NMFS, the work station must
meet the following criteria:
(A) Location of observer work station. The observer work station
must be located in an area protected from the weather where the
observer has access to unsorted catch.
(B) Platform scale. The observer work station must include a
platform scale as described in paragraph (c)(4) of this section;
(C) Proximity to observer work station. The observer area must be
located near the observer work station. The plant liaison must be able
to walk between the work station and the observation area in less than
20 seconds without encountering safety hazards.
(D) Workspace. The observer work station must include: A working
area of at least 4.5 square meters, a table as specified in paragraph
(d)(4) of this section, and meet the other requirements as specified in
paragraph (d)(6) of this section.
(E) Lockable cabinet. The observer work station must include a
secure and lockable cabinet or locker of at least 0.5 cubic meters.
(viii) Communication with observer. The CMCP must describe what
communication equipment such as radios, pagers or cellular phones, is
used to facilitate communications within the plant. The plant owner
must ensure that the plant manager provides the NMFS-certified observer
with the same communications equipment used by plant staff.
(ix) Plant liaison. The CMCP must designate a plant liaison. The
plant liaison is responsible for:
(A) Orienting new observers to the plant;
(B) Assisting in the resolution of observer concerns; and
(C) Informing NMFS if changes must be made to the CMCP.
(x) Scale drawing of plant. The CMCP must be accompanied by a scale
drawing of the plant showing:
(A) The delivery point;
(B) The observation area;
(C) The observer work station;
(D) The location of each scale used to weigh catch; and
(E) Each location where catch is sorted.
9. In Sec. 679.31, paragraph (a) is revised to read as follows:
Sec. 679.31 CDQ reserves.
* * * * *
(a) Pollock CDQ reserve--(1) Bering Sea. In the annual harvest
specifications required by Sec. 679.20(c), 10 percent of the Bering
Sea subarea pollock TAC will be allocated to a CDQ reserve.
(2) Aleutian Islands Subarea and Bogoslof District. In the annual
harvest specifications required by Sec. 679.20(c), 10 percent of the
Aleutian Islands subarea and Bogoslof District pollock TAC will be
allocated to a CDQ reserve unless the Aleutian Islands subarea and/or
Bogoslof District is closed to directed fishing for pollock by
regulation. If the Aleutian Islands subarea and/or Bogoslof District is
closed to directed fishing for pollock by regulation, then no pollock
CDQ reserve will be established for those areas and incidental harvest
of pollock by CDQ groups will accrue against the incidental catch
allowance for pollock established under Sec. 679.20(a)(5)(i)(A)(1).
* * * * *
10. In Sec. 679.32, a new paragraph (c)(3)(vi) is added to read as
follows:
Sec. 679.32 Groundfish and halibut CDQ catch monitoring.
* * * * *
(c) * * *
(3) * * *
(vi) AFA inshore processors. Take deliveries from a vessel engaged
in directed fishing for pollock CDQ without following an approved CMCP
as described at Sec. 679.28(g).
* * * * *
11. In Sec. 679.50, the section heading, and paragraph (c)(4)(i)
are revised, paragraph (c)(6) is removed, and paragraphs (c)(5) and
(d)(5) are added to read as follows:
Sec. 679.50 Groundfish Observer Program applicable through December
31, 2007.
* * * * *
(c) * * *
(4) * * *
(i) Motherships or catcher/processors using trawl gear--(A) Multi-
species CDQ fishery. A mothership or catcher/processor using trawl gear
to participate in the multi-species CDQ fishery must have at least two
level 2 observers as described at paragraphs (j)(1)(v)(D) and (E) of
this section aboard the vessel, at least one of whom must be certified
as a lead level 2 observer.
(B) Pollock CDQ fishery. A mothership or catcher/processor using
trawl gear to participate in a directed fishery for pollock CDQ must
have at least two NMFS-certified observers aboard the vessel, at least
one of whom must be certified as a lead level 2 observer.
* * * * *
(5) AFA catcher/processors and motherships--(i) Coverage
requirement--(A) Listed AFA catcher/processors and AFA motherships. The
owner or operator of a listed AFA catcher/processor or AFA mothership
must provide at least two NMFS-certified observers, at least one of
which must be certified as a lead level 2 observer, for each day that
the vessel is used to harvest, process, or take deliveries of
groundfish. More than two observers are required if the observer
workload restriction at paragraph (c)(5)(iii) of this section would
otherwise preclude sampling as required under Sec. 679.63(a)(1).
(B) Unlisted AFA catcher/processors. The owner or operator of an
unlisted AFA catcher/processor must provide at least two NMFS-certified
observers for each day that the vessel is used to engage in directed
fishing for pollock in the BSAI, or takes deliveries of pollock
harvested in the BSAI. At least one observer must be certified as a
lead level 2 observer. When an unlisted AFA catcher/processor is not
engaged in directed fishing for BSAI pollock and is not receiving
deliveries of pollock harvested in the BSAI, the observer coverage
requirements at paragraph (c)(1)(iv) of this section apply.
(ii) Observer work load. The time required for the observer to
complete sampling, data recording, and data communication duties may
not exceed 12 consecutive hours in each 24-hour period, and, the
observer may not sample more than 9 hours in each 24-hour period.
(d) * * *
(5) AFA inshore processors--(i) Coverage level. An AFA inshore
[[Page 79734]]
processor is required to provide a NMFS certified observer for each 12
consecutive hour period of each calendar day during which the processor
takes delivery of, or processes, groundfish harvested by a vessel
engaged in a directed pollock fishery in the BSAI. An AFA inshore
processor that takes delivery of or processes pollock harvested in the
BSAI directed pollock fishery for more than 12 consecutive hours in a
calendar day is required to provide two NMFS-certified observers for
each such day.
(ii) Multiple processors. An observer deployed to an AFA inshore
processor may not be assigned to cover more than one processor during a
calendar day in which the processor receives or processes pollock
harvested in the BSAI directed pollock fishery.
(iii) Observers transferring between vessels and processors. An
observer transferring from an AFA catcher vessel to an AFA inshore
processor may not be assigned to cover the AFA inshore processor until
at least 12 hours after offload and sampling of the catcher vessel's
delivery is completed.
* * * * *
12. In 50 CFR part 679, Subpart F--American Fisheries Act
Management Measures is added to read as follows:
Subpart F--American Fisheries Act Management Measures
Sec.
679.60 Authority and related regulations.
679.61 Formation and operation of fishery cooperatives.
679.62 Inshore sector cooperative allocation program.
679.63 Catch weighing requirements for vessels and processors.
679.64 Harvesting sideboard limits in other fisheries.
679.65 Crab processing sideboard limits.
Subpart F--American Fisheries Act Management Measures
Sec. 679.60 Authority and related regulations.
Regulations under this subpart were developed by the National
Marine Fisheries Service and the North Pacific Fishery Management
Council to implement the American Fisheries Act (AFA) [Div. C, Title
II, Subtitle II, Public Law 105-277, 112 Stat. 2681 (1998)]. Additional
regulations in this part that implement specific provisions of the AFA
are set out at Sec. Sec. 679.2 Definitions, 679.4 Permits, 679.5
Recordkeeping and reporting, 679.7 Prohibitions, 679.20 General
limitations, 679.21 Prohibited species bycatch management, 679.28
Equipment and operational requirements for Catch Weight Measurement,
679.31 CDQ reserves, and 679.50 Groundfish observer program.
Regulations developed by the Department of Transportation to implement
provisions of the AFA are found at 50 CFR part 356.
Sec. 679.61 Formation and operation of fishery cooperatives.
(a) Who is liable for violations by a fishery cooperative and
cooperative members? A fishery cooperative must comply with the
provisions of this section. The owners and operators of vessels that
are members of a fishery cooperative are responsible for ensuring that
the fishery cooperative complies with the directed fishing, sideboard
closures, PSC limits and other allocations and restrictions that are
applicable to the fishery cooperative. The owners and operators of
vessels that are members of a fishery cooperative are responsible for
ensuring that all fishery cooperative members comply with the directed
fishing, sideboard closures, PSC limits and other allocations and
restrictions that are applicable to the fishery cooperative.
(b) Who must comply this section? Any fishery cooperative formed
under section 1 of the Fisherman's Collective Marketing Act 1934 (15
U.S.C. 521) for the purpose of cooperatively managing directed fishing
for BSAI pollock must comply with the provisions of this section. The
owners and operators of all the member vessels that are signatories to
a fishery cooperative are jointly and severally responsible for
compliance with the requirements of this section.
(c) Designated representative and agent for service of process.
Each cooperative must appoint a designated representative and agent for
service of process and must ensure that the cooperative's designated
representative and agent for service of process comply with the
regulations in this part.
(1) What is a designated representative? Any cooperative formed
under this section must appoint a designated representative to fulfill
regulatory requirements on behalf of the cooperative including, but not
limited to, filing of cooperative contracts, filing of annual reports,
and in the case of inshore sector catcher vessel cooperatives, signing
cooperative fishing permit applications and completing and submitting
inshore catcher vessel pollock cooperative catch reports. The
designated representative is the primary contact person for NMFS on
issues relating to the operation of the cooperative.
(2) What is an agent for service of process? Any cooperative formed
under this section must appoint an agent who is authorized to receive
and respond to any legal process issued in the United States with
respect to all owners and operators of vessels that are members of the
cooperative. The cooperative must provide the Regional Administrator
with the name, address and telephone number of the appointed agent.
Service on or notice to the cooperative's appointed agent constitutes
service on or notice to all members of the cooperative.
(3) What is the term of service and process for replacing the agent
for service of process? The agent for service of process must be
capable of accepting service on behalf of the cooperative until
December 31 of the year 5 years after the calendar year for which the
fishery cooperative has filed its intent to operate. The owners and
operators of all member vessels of a cooperative are responsible for
ensuring that a substitute agent is designated and the Agency is
notified of the name, address and telephone number of the substitute
agent in the event the previously designated agent is no longer capable
of accepting service on behalf of the cooperative or the cooperative
members within that 5-year period.
(d) Annual filing requirements. You must file on an annual basis,
with the Council and NMFS, a signed copy of your fishery cooperative
contract, and any material modifications to any such contract, together
with a copy of a letter from a party to the contract requesting a
business review letter on the fishery cooperative from the Department
of Justice and any response to such request. The Council and NMFS will
make this information available to the public upon request.
(1) Must multi-year contracts be re-filed annually? If your
cooperative contract was previously filed with NMFS and the Council
under paragraph (c) of this section, then you may submit a renewal
letter to NMFS and the Council by the filing deadline in lieu of the
cooperative contract and business review letter. The renewal letter
must provide notice that the previously filed cooperative contract will
remain in effect for the subsequent fishing year. The renewal letter
also must detail any material modifications to the cooperative contract
that have been made since the last filing including, but not limited
to, any changes in cooperative membership.
(2) Where must contracts or renewal letters be filed? You must send
a signed copy of your cooperative contract or renewal letter and the
required supporting materials to the North Pacific Fishery Management
Council, 605 West 4th Ave, Suite 306, Anchorage, AK 99501; and to the
NMFS
[[Page 79735]]
Alaska Region. The mailing address for the NMFS Alaska Region is P.O.
Box 21668, Juneau, AK 99802. The street address for delivery by private
courier is 709 West 9th St., Suite 401, Juneau, AK 99801.
(3) What is the deadline for filing? The contract or renewal letter
and supporting materials must be received by NMFS and by the Council at
least 30 days prior to the start of any fishing activity conducted
under the terms of the contract. In addition, an inshore cooperative
that is also applying for an allocation of BSAI pollock under Sec.
679.62 must file its contract, any amendments hereto, and supporting
materials no later than December 1 of the year prior to the year in
which fishing under the contract will occur.
(e) What are the required elements in a cooperative contract? (1)
Requirements for all fishery cooperatives. Any cooperative contract
filed under paragraph (c) of this section must:
(i) List parties to the contract.
(ii) List all vessels and processors that will harvest and process
pollock harvested under the cooperative.
(iii) Specify the amount or percentage of pollock allocated to each
party to the contract.
(iv) Specify a designated representative and agent for service of
process.
(v) Include a contract clause under which the parties to the
contract agree to make payments to the State of Alaska for any pollock
harvested in the directed pollock fishery that are not landed in the
State of Alaska, in amounts which would otherwise accrue had the
pollock been landed in the State of Alaska subject to any landing taxes
established under Alaska law. Failure to include such a contract clause
or for such amounts to be paid will result in a revocation of the
authority to form fishery cooperatives under section 1 of the Act of
June 25, 1934 (15 U.S.C. 521 et seq.).
(2) Additional required elements in all fishery cooperatives that
include AFA catcher vessels. A cooperative contract that includes
catcher vessels must include adequate provisions to prevent each non-
exempt member catcher vessel from exceeding an individual vessel
sideboard limit for each BSAI or GOA sideboard species or species group
that is issued to the vessel by the cooperative in accordance with the
following formula:
(i) The aggregate individual vessel sideboard limits issued to all
member vessels in a cooperative must not exceed the aggregate
contributions of each member vessel towards the overall groundfish
sideboard amount as calculated by NMFS under Sec. 679.64(b) and as
announced to the cooperative by the Regional Administrator, or
(ii) In the case of two or more cooperatives that have entered into
an inter-cooperative agreement, the aggregate individual vessel
sideboard limits issued to all member vessels subject to the inter-
cooperative agreement must not exceed the aggregate contributions of
each member vessel towards the overall groundfish sideboard amount as
calculated by NMFS under Sec. 679.64(b) and as announced by the
Regional Administrator.
(f) Annual reporting requirement. Any fishery cooperative governed
by this section must submit preliminary and final annual written
reports on fishing activity to the North Pacific Fishery Management
Council, 605 West 4th Ave, Suite 306, Anchorage, AK 99501. The Council
will make copies of each report available to the public upon request.
(1) What are the submission deadlines? You must submit the
preliminary report by December 1 of each year. You must submit the
final report by February 1 of the following year. Annual reports must
be postmarked by the submission deadline or received by a private
courier service by the submission deadline.
(2) What information must be included? The preliminary and final
written reports must contain, at a minimum:
(i) The cooperative's allocated catch of pollock and sideboard
species, and any sub-allocations of pollock and sideboard species made
by the cooperative to individual vessels on a vessel-by-vessel basis;
(ii) The cooperative's actual retained and discarded catch of
pollock, sideboard species, and PSC on an area-by-area and vessel-by-
vessel basis;
(iii) A description of the method used by the cooperative to
monitor fisheries in which cooperative vessels participated;
(iv) A description of any actions taken by the cooperative in
response to any vessels that exceed their allowed catch and bycatch in
pollock and all sideboard fisheries; and
(v) The total weight of pollock landed outside the State of Alaska
on a vessel-by-vessel basis.
(3) What is the required format? You must submit at least one copy
of each annual report ready for duplication on unbound single-sided
8.5- by 11-inch paper, or in an alternative format approved in advance
by the Council.
(g) Landing tax payment deadline. You must pay any landing tax owed
to the State of Alaska under subsection 210(f) of the AFA and paragraph
(d)(1)(v) of this section before April 1 of the following year, or the
last day of the month following the date of publication of statewide
average prices by the Alaska State Department of Revenue, whichever is
later. All members of the cooperative are prohibited from harvesting
pollock in the BSAI directed pollock fishery after the payment deadline
if any member vessel has failed to pay all required landing taxes from
any landings made outside the State of Alaska by the landing deadline.
Members of the cooperative may resume directed fishing for pollock once
all overdue landing taxes are paid.
Sec. 679.62 Inshore sector cooperative allocation program.
(a) How will inshore sector cooperative allocations be made? An
inshore catcher vessel cooperative that applies for and receives an AFA
inshore cooperative fishing permit under Sec. 679.4(l)(6) will receive
a sub-allocation of the annual Bering Sea subarea inshore sector
directed fishing allowance. If the Aleutian Islands Subarea is open to
directed fishing for pollock then the cooperative also will receive a
sub-allocation of the annual Aleutian Islands Subarea inshore sector
directed fishing allowance. Each inshore cooperative's annual
allocation amount(s) will be determined using the following procedure:
(1) Determination of individual vessel catch histories. The
Regional Administrator will calculate an official AFA inshore
cooperative catch history for every inshore-sector endorsed AFA catcher
vessel according to the following steps:
(i) Determination of annual landings. For each year from 1995
through 1997 the Regional Administrator will determine each vessel's
total non-CDQ inshore pollock landings from the Bering Sea Subarea and
Aleutian Islands Subarea separately, except for the F/V PROVIDIAN (USCG
documentation number 1062183).
(ii) Determination of annual landings for the F/V PROVIDIAN. For
the F/V PROVIDIAN, pursuant to Public Law 106-562, the Regional
Administrator will substitute the 1992 through 1994 total Bering Sea
subarea and Aleutian Islands subarea pollock non-CDQ inshore landings
made by the F/V OCEAN SPRAY (USCG documentation number 517100 for the
purpose of determining annual cooperative quota share percentage.
[[Page 79736]]
(iii) Offshore compensation. If a catcher vessel made a total of
500 or more mt of landings of non-CDQ Bering Sea Subarea pollock or
Aleutian Islands Subarea pollock to catcher/processors or offshore
motherships other than the EXCELLENCE (USCG documentation number
967502); GOLDEN ALASKA (USCG documentation number 651041); or OCEAN
PHOENIX (USCG documentation number 296779) over the 3-year period from
1995 through 1997, then all non-CDQ offshore pollock landings made by
that vessel during from 1995 through 1997 will be added to the vessel's
inshore catch history by year and subarea.
(iv) Best two out of three years. After steps (a)(1)(i) and (ii) of
this section are completed, the 2 years with the highest landings will
be selected for each subarea and added together to generate the
vessel's official AFA inshore cooperative catch history for each
subarea. A vessel's best 2 years may be different for the Bering Sea
subarea and the Aleutian Islands Subarea.
(2) Conversion of individual vessel catch histories to annual
cooperative quota share percentages. Each inshore pollock cooperative
that applies for and receives an AFA inshore pollock cooperative
fishing permit will receive an annual quota share percentage of pollock
for each subarea of the BSAI that is equal to the sum of each member
vessel's official AFA inshore cooperative catch history for that
subarea divided by the sum of the official AFA inshore cooperative
catch histories of all inshore-sector endorsed AFA catcher vessels. The
cooperative's quota share percentage will be listed on the
cooperative's AFA pollock cooperative permit.
(3) Conversion of quota share percentage to TAC allocations. Each
inshore pollock cooperative that receives a quota share percentage for
a fishing year will receive an annual allocation of Bering Sea and/or
Aleutian Islands pollock that is equal to the cooperative's quota share
percentage for that subarea multiplied by the annual inshore pollock
allocation for that subarea. Each cooperative's annual pollock TAC
allocation may be published in the interim, and final BSAI TAC
specifications notices.
(b) What are the restrictions on fishing under an inshore
cooperative fishing permit? Any cooperative that receives a cooperative
fishing permit under Sec. 679.4(l)(6) must comply with the following
fishing restrictions. The owners and operators of all the member
vessels that are named on an inshore cooperative fishing permit are
jointly and severally responsible for compliance.
(1) What vessels are eligible to fish under an inshore cooperative
fishing permit? Only catcher vessels listed on a cooperative's AFA
inshore cooperative fishing permit are permitted to harvest any portion
of an inshore cooperative's annual pollock allocation.
(2) What harvests accrue against the cooperative allocation? All
BSAI inshore pollock harvested by a member vessel while engaging in
directed fishing for inshore pollock in the BSAI during the fishing
year for which the annual cooperative allocation is in effect will
accrue against the cooperative's annual pollock allocation regardless
of whether the pollock was retained or discarded.
(3) How must cooperative harvests be reported? Each inshore pollock
cooperative must report its BSAI pollock harvest to NMFS on a weekly
basis according to the recordkeeping and reporting requirements set out
at Sec. 679.5(o).
Sec. 679.63 Catch weighing requirements for vessels and processors.
(a) What are the requirements for listed AFA catcher/processors and
AFA motherships? (1) Catch weighing. All groundfish landed by listed
AFA catcher/processors or received by AFA motherships must be weighed
on a NMFS-certified scale and made available for sampling by a NMFS
certified observer. The owner and operator of a listed AFA catcher/
processor or an AFA mothership must ensure that the vessel is in
compliance with the scale requirements described at Sec. 679.28(b),
that each groundfish haul is weighed separately, and that no sorting of
catch takes place prior to weighing.
(2) Observer sampling station. The owner and operator of a listed
AFA catcher/processor or AFA mothership must provide an observer
sampling station as described at Sec. 679.28(d) and must ensure that
the vessel operator complies with the observer sampling station
requirements described at Sec. 679.28(d) at all times that the vessel
harvests groundfish or receives deliveries of groundfish harvested in
the BSAI or GOA.
(b) What are the requirements for unlisted AFA catcher/processors?
The owner or operator of an unlisted AFA catcher/processor must comply
with the catch weighing and observer sampling station requirements set
out in paragraph (a) of this section at all times the vessel is engaged
in directed fishing for pollock in the BSAI.
(c) What are the requirements for AFA inshore processors? (1) Catch
weighing. All groundfish landed by AFA catcher vessels engaged in
directed fishing for pollock in the BSAI must be sorted and weighed on
a scale approved by the State of Alaska as described in Sec.
679.28(c), and be made available for sampling by a NMFS certified
observer. The observer must be allowed to test any scale used to weigh
groundfish in order to determine its accuracy.
(2) The plant manager or plant liaison must notify the observer of
the offloading schedule for each delivery of BSAI pollock by an AFA
catcher vessel at least 1 hour prior to offloading. An observer must
monitor each delivery of BSAI pollock from an AFA catcher vessel and be
on site the entire time the delivery is being weighed or sorted.
Sec. 679.64 Harvesting sideboards limits in other fisheries.
(a) Harvesting sideboards for listed AFA catcher/processors. The
Regional Administrator will restrict the ability of listed AFA catcher/
processors to engage in directed fishing for non-pollock groundfish
species to protect participants in other groundfish fisheries from
adverse effects resulting from the AFA and from fishery cooperatives in
the directed pollock fishery.
(1) How will groundfish sideboard limits for AFA listed catcher/
processors be calculated? (i) For each groundfish species or species
group in which a TAC is specified for an area or subarea of the BSAI,
the Regional Administrator will establish annual AFA catcher/processor
harvest limits as follows:
(ii) Pacific cod. The Pacific cod harvest limit will be equal to
the 1997 aggregate retained catch of Pacific cod by catcher/processors
listed in paragraphs 208(e)(1) through (20) and 209 of the AFA in non-
pollock target fisheries divided by the amount of Pacific cod caught by
trawl catcher/processors in 1997 multiplied by the Pacific cod TAC
available for harvest by trawl catcher/processors in the year in which
the harvest limit will be in effect.
(2) Aleutian Islands Pacific ocean perch. (i) The Aleutian Islands
Pacific ocean perch harvest limit will be equal to the 1996 through
1997 aggregate retained catch of Aleutian Islands Pacific ocean perch
by catcher/processors listed in paragraphs 208(e)(1) through (20) and
209 of the AFA in non-pollock target fisheries divided by the sum of
the Aleutian Islands Pacific ocean perch catch in 1996 and 1997
multiplied by the Aleutian Islands Pacific ocean perch TAC available
for harvest in the year in which the harvest limit will be in effect.
[[Page 79737]]
(ii) If the amount of Pacific ocean perch calculated under
paragraph (a)(1)(ii)(A) of this section is determined by the Regional
Administrator to be insufficient to meet bycatch needs of AFA catcher/
processors in other directed fisheries for groundfish, the Regional
Administrator will prohibit directed fishing for Aleutian Islands
Pacific ocean perch by AFA catcher processors and establish the
sideboard amount equal to the amount of Aleutian Islands Pacific ocean
perch caught by AFA catcher processors incidental to directed fishing
for other groundfish species.
(3) Atka mackerel. The Atka mackerel harvest limit for each area
and season will be equal to:
(i) Bering Sea subarea and Eastern Aleutian Islands, zero;
(ii) Central Aleutian Islands, 11.5 percent of the annual TAC
specified for Atka mackerel; and
(iii) Western Aleutian Islands, 20 percent of the annual TAC
specified for Atka mackerel.
(4) Remaining groundfish species. (i) Except as provided for in
paragraphs (a)(1)(i) through (a)(1)(iii) of this section, the harvest
limit for each BSAI groundfish species or species group will be equal
to the 1995 through 1997 aggregate retained catch of that species by
catcher/processors listed in paragraphs 208(e)(1) through (20) and
section 209 of the AFA in non-pollock target fisheries divided by the
sum of the catch of that species in 1995 through 1997 multiplied by the
TAC of that species available for harvest by catcher/processors in the
year in which the harvest limit will be in effect.
(ii) If the amount of a species calculated under paragraph
(a)(1)(iv) of this section is determined by the Regional Administrator
to be insufficient to meet bycatch needs for AFA catcher/processors in
other directed fisheries for groundfish, the Regional Administrator
will prohibit directed fishing for that species by AFA catcher
processors and establish the sideboard amount equal to the amount of
that species caught by AFA catcher processors incidental to directed
fishing for other groundfish species.
(5) How will halibut and crab PSC sideboard limits be calculated?
For each halibut or crab PSC limit specified for catcher/processors in
the BSAI, the Regional Administrator will establish an annual listed
AFA catcher/processor PSC limit equal to the estimated aggregate 1995
through 1997 PSC bycatch of that species by catcher/processors listed
in paragraphs 208(e)(1) through (20) and 209 of the AFA while engaged
in directed fishing for species other than pollock divided by the
aggregate PSC bycatch limit of that species for catcher/processors from
1995 through 1997 multiplied by the PSC limit of that species available
to catcher/processors in the year in which the harvest limit will be in
effect.
(6) How will AFA catcher/processor sideboard limits be managed? The
Regional Administrator will manage groundfish harvest limits and PSC
bycatch limits for AFA catcher/processors through directed fishing
closures in non-pollock groundfish fisheries in accordance with the
procedures set out in Sec. Sec. 679.20(d)(1)(iv), and 679.21(e)(3)(v).
(b) Harvesting sideboards for AFA catcher vessels. The Regional
Administrator will restrict the ability of AFA catcher vessels to
engage in directed fishing for other groundfish species to protect
participants in other groundfish fisheries from adverse effects
resulting from the AFA and from fishery cooperatives in the directed
pollock fishery.
(1) To whom do the catcher vessel sideboard limits apply? Catcher
vessel harvest limits and PSC bycatch limits apply to all AFA catcher
vessels participating in all GOA groundfish fisheries and all non-
pollock groundfish fisheries in the BSAI except vessels qualifying for
sideboard exemptions in the specific fisheries identified in paragraph
(b)(2) of this section.
(2) Who is exempt from catcher vessel sideboards? (i) BSAI Pacific
cod sideboard exemptions--(A) AFA catcher vessels less than 125 ft
(38.1 m) LOA that are determined by the Regional Administrator to have
harvested a combined total of less than 5,100 mt of BSAI pollock, and
to have made 30 or more legal landings of Pacific cod in the BSAI
directed fishery for Pacific cod from 1995 through 1997 are exempt from
sideboard closures for BSAI Pacific cod.
(B) AFA catcher vessels with mothership endorsements are exempt
from BSAI Pacific cod catcher vessel sideboard directed fishing
closures after March 1 of each fishing year.
(ii) GOA groundfish sideboard exemptions. AFA catcher vessels less
than 125 ft (38.1 m) LOA that are determined by the Regional
Administrator to have harvested less than 5,100 mt of BSAI pollock and
to have made 40 or more landings of GOA groundfish from 1995 through
1997 are exempt from GOA groundfish catcher vessel sideboard directed
fishing closures.
(3) How will groundfish sideboard limits be calculated? For each
groundfish species or species group in which a TAC is specified for an
area or subarea of the GOA and BSAI; the Regional Administrator will
establish annual AFA catcher vessel groundfish harvest limits as
follows:
(i) BSAI groundfish other than Pacific cod. The AFA catcher vessel
groundfish harvest limit for each BSAI groundfish species or species
group other than BSAI Pacific cod will be equal to the aggregate
retained catch of that groundfish species or species group from 1995
through 1997 by all AFA catcher vessels; divided by the sum of the TACs
available to catcher vessels for that species or species group from
1995 through 1997; multiplied by the TAC available to catcher vessels
in the year or season in which the harvest limit will be in effect.
(ii) BSAI Pacific cod. The AFA catcher vessel groundfish harvest
limit for BSAI Pacific cod will be equal to the retained catch of BSAI
Pacific cod in 1997 by AFA catcher vessels not exempted under paragraph
(b)(2)(i)(A) of this section divided by the BSAI Pacific cod TAC
available to catcher vessels in 1997; multiplied by the BSAI Pacific
cod TAC available to catcher vessels in the year or season in which the
harvest limit will be in effect.
(iii) GOA groundfish. The AFA catcher vessel groundfish harvest
limit for each GOA groundfish species or species group will be equal to
the aggregate retained catch of that groundfish species or species
group from 1995 through 1997 by AFA catcher vessels not exempted under
paragraph (b)(2)(ii) of this section; divided by the sum of the TACs of
that species or species group available to catcher vessels from 1995
through 1997; multiplied by the TAC available to catcher vessels in the
year or season in which the harvest limit will be in effect.
(4) How will PSC bycatch limits be calculated? The AFA catcher
vessel PSC bycatch limit for halibut in the BSAI and GOA, and each crab
species in the BSAI for which a trawl bycatch limit has been
established will be a portion of the PSC limit equal to the ratio of
aggregate retained groundfish catch by AFA catcher vessels in each PSC
target category from 1995 through 1997 relative to the retained catch
of all vessels in that fishery from 1995 through 1997.
(5) How will catcher vessel sideboard limits be managed? The
Regional Administrator will manage groundfish harvest limits and PSC
bycatch limits for AFA catcher vessels using directed fishing closures
according to the procedures set out at Sec. Sec. 679.20(d)(1)(iv) and
679.21(d)(8) and (e)(3)(v).
[[Page 79738]]
Sec. 679.65 Crab processing sideboard limits.
(a) What is the purpose of crab processing limits? The purpose of
crab processing sideboard limits is to protect processors not eligible
to participate in the directed pollock fishery from adverse effects as
a result of the AFA and the formation of fishery cooperatives in the
directed pollock fishery.
(b) To whom do the crab processing sideboard limits apply? The crab
processing sideboard limits in this section apply to any AFA inshore or
mothership entity that receives pollock harvested in the BSAI directed
pollock fishery by a fishery cooperative established under Sec. 679.61
or Sec. 679.62
(c) How are crab processing sideboard percentages calculated? Upon
receipt of an application for a cooperative processing endorsement from
the owners of an AFA mothership or AFA inshore processor, the Regional
Administrator will calculate a crab processing cap percentage for the
associated AFA inshore or mothership entity. The crab processing cap
percentage for each BSAI king or Tanner crab species will be equal to
the percentage of the total catch of each BSAI king or Tanner crab
species that the AFA crab facilities associated with the AFA inshore or
mothership entity processed in the aggregate, on average, in 1995,
1996, 1997, and 1998 with 1998 given double-weight (counted twice).
(d) How will AFA entities be notified of their crab processing
sideboard percentages? An AFA inshore or mothership entity's crab
processing cap percentage for each BSAI king or Tanner crab species
will be listed on each AFA mothership or AFA inshore processor permit
that contains a cooperative pollock processing endorsement.
(e) How are crab processing sideboard percentages converted to
poundage caps? Prior to the start of each BSAI king or Tanner crab
fishery, NMFS will convert each AFA inshore or mothership entity's crab
processing sideboard percentage to a poundage cap by multiplying the
crab processing sideboard percentage by the pre-season guideline
harvest level established for that crab fishery by ADF&G.
(f) How will crab processing sideboard poundage caps be announced?
The Regional Administrator will notify each AFA inshore or mothership
entity of its crab processing sideboard poundage cap through a letter
to the owner of the AFA mothership or AFA inshore processor. The public
will be notified of each entity's crab processing sideboard poundage
cap through information bulletins published on the NMFS-Alaska Region
world wide web home page ((http://www.fakr.noaa.gov)
Sec. Sec. 679.7, 679.30, 679.32 and 679.50 [Amended]
13. In Sec. Sec. 679.7, 679.30, 679.32 and 679.50, at each of the
paragraphs shown in the first column, remove the phrase indicated,
respectively, second column, CHANGE FROM and replace it with the phrase
indicated, respectively, in the third column, CHANGE TO, to read as
follows:
BILLING CODE 3510-22-S
[[Page 79739]]
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[FR Doc. 02-31700 Filed 12-27-02; 8:45 am]
BILLING CODE 3510-22-C