Federal Register: December 30, 2002 (Volume 67, Number 250)
DOCID: FR Doc 02-31700
DEPARTMENT OF COMMERCE
Treasury Department
CFR Citation: 50 CFR Part 679
Docket ID: [Docket No. 011128283-2291-02; I.D. 111401B]
RIN ID: RIN 0648-AN55
NOTICE: Part II
DOCUMENT ACTION: Final rule.
SUBJECT CATEGORY:
Fisheries of the Exclusive Economic Zone Off Alaska; Amendments 61/61/13/8 to Implement Major Provisions of the American Fisheries Act
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.
DOCUMENT 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 (MagnusonStevens Act), and other applicable laws.
SUMMARY:
Commerce Department, National Oceanic and Atmospheric Administration,
SUPPLEMENTAL 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 MagnusonStevens 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. 105277, 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 3year 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 AFArelated 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
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rule with the newlyamended 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 10percent 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 noncommunity development quota (CDQ) allocation of pollock in the BSAI and any processor that receives pollock harvested in a nonCDQ 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 nonCDQ 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 60day application deadline for all AFA vessel and processor permits. Several letters of comment noted that the proposed application deadline could pose difficulties for fishermen, especially if the application period occurred during a fishing season when vessel owners may be working at sea and out of contact. Therefore, we have eliminated the application deadline from the final rule.
2. AFA catcher vessel and catcher/processor permits will be renewed
automatically. Under the proposed rule, all interim AFA permits would
have expired 60 days after the effective date of the final rule and
vessel owners would have been required to reapply for their permanent
AFA permits. NMFS has reconsidered the need to collect additional
information from the owners of catcher vessels and catcher processors
and has decided to renew existing interim permits automatically.
However, under this final rule, the owners of AFA motherships and AFA
inshore processors must still reapply for permanent AFA permits. NMFS
is requiring the owners of AFA motherships and AFA inshore processors to reapply for their AFA permits in order to collect data
confidentiality waivers that are necessary for the administration of
crab processing sideboard limits. All interim AFA mothership and AFA
inshore processor permits will expire on December 31, 2002.
3. Final AFA vessel and processor permits have no expiration date. All AFA vessel and processor permits will have no expiration date and will remain valid indefinitely unless revoked by NMFS. The proposed rule contained a December 31, 2004 expiration date which was consistent with section 213 of the AFA when the proposed rule was published. However, as noted above, Congress has subsequently removed the sunset date from section 213 of the AFA.
AFA Permit Application and Administrative Appeals Process
Application forms for all AFA permits may be downloaded from the NMFS Alaska Region home page at http://www.fakr.noaa.gov. Paper copies of the permit applications also are available from the NMFS Alaska Region (see ADDRESSES).
AFA Catcher/processor Permits
Subsection 208(e) of the AFA, which took effect on January 1, 1999,
lists by name catcher/processors that are eligible to harvest the
catcher/processor sector BSAI pollock directed fishing allowance. Under
this final rule, two categories of AFA catcher/processor permits will
be issued. Vessels listed by name in paragraphs 208(e)(1) through (20)
of the AFA will be issued ``listed AFA catcher/processor permits.''
Vessels qualifying for AFA catcher/processor permits under paragraph
208(e)(21) will be issued ``unlisted AFA catcher/processor permits,''
which will restrict such vessels, in the aggregate, to a harvest of no
more than 0.5 percent of the catcher/processor sector pollock TAC
allocation. In addition, a catcher/processor will not need an AFA
catcher/processor permit to participate in the CDQ sector of the BSAI
pollock fishery because the AFA does not limit participation in the CDQ
pollock fishery. The owners of AFA catcher/processors are not required to reapply
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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 19911997. 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 19951997 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 3year 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 nonpollock 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
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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 10percent 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 10percent 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 10percent 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 (landbased)
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
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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 nonAFA vessels. The purpose of this restriction is to prevent the owners of retired AFA vessels from redeploying 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 nonAFA catcher vessel or nonAFA 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
intercooperative 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 intercooperative 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
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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 intercooperative
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 onehalf (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 nonroe season so that unlisted catcher/processors could take their entire annual limit during the nonroe 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 19951997 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 MagnusonStevens 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 19951997. 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 nonAFA 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 106562. In December 2000, the President signed Public Law
106562 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 106562 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 MagnusonStevens 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 nonCDQ 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
nonCDQ 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 suballocations 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 suballocations of pollock and sideboard species made by the cooperative to individual vessels on a vesselbyvessel basis; (2) the cooperative's actual retained and discarded catch of pollock, sideboard species, and prohibited species catch (PSC) on an areaby area and vesselbyvessel 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 MagnusonStevens 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 areabyarea and vesselbyvessel 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 intercooperative agreement, the aggregate individual vessel sideboard limits issued to all member vessels subject to the intercooperative 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.
FOR FURTHER INFORMATION CONTACT
Kent Lind, 907-586-7228 or email: kent.lind@noaa.gov.