[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]
[[Page 79691]]
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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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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:\\http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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 object