Proposed Rule2023-01333
Fisheries of the Exclusive Economic Zone Off Alaska; Amendment 122 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area; Pacific Cod Trawl Cooperative Program
Primary source
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Published
February 9, 2023
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS issues a proposed rule to implement Amendment 122 to the Fishery Management Plan (FMP) for Groundfish of the Bering Sea and Aleutian Islands Management Area (BSAI). Amendment 122 would establish the Pacific Cod Trawl Cooperative Program (PCTC Program or Program) to allocate Pacific cod harvest quota to qualifying groundfish License Limitation Program (LLP) license holders and qualifying processors. The PCTC Program would be a limited access privilege program (LAPP) for the harvest of Pacific cod in the BSAI trawl catcher vessel (CV) sector. This proposed action is necessary to increase the value of the fishery, minimize bycatch to the extent practicable, provide for the sustained participation of fishery-dependent communities, ensure the sustainability and viability of the resource, and promote safety and stability in the harvesting and processing sectors. This action is intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the BSAI FMP, and other applicable law.
Full Text
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[Federal Register Volume 88, Number 27 (Thursday, February 9, 2023)]
[Proposed Rules]
[Pages 8592-8633]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-01333]
[[Page 8591]]
Vol. 88
Thursday,
No. 27
February 9, 2023
Part III
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; Amendment 122 to
the Fishery Management Plan for Groundfish of the Bering Sea and
Aleutian Islands Management Area; Pacific Cod Trawl Cooperative
Program; Proposed Rule
Federal Register / Vol. 88 , No. 27 / Thursday, February 9, 2023 /
Proposed Rules
[[Page 8592]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[230118-0016]
RIN 0648-BL08
Fisheries of the Exclusive Economic Zone Off Alaska; Amendment
122 to the Fishery Management Plan for Groundfish of the Bering Sea and
Aleutian Islands Management Area; Pacific Cod Trawl Cooperative Program
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS issues a proposed rule to implement Amendment 122 to the
Fishery Management Plan (FMP) for Groundfish of the Bering Sea and
Aleutian Islands Management Area (BSAI). Amendment 122 would establish
the Pacific Cod Trawl Cooperative Program (PCTC Program or Program) to
allocate Pacific cod harvest quota to qualifying groundfish License
Limitation Program (LLP) license holders and qualifying processors. The
PCTC Program would be a limited access privilege program (LAPP) for the
harvest of Pacific cod in the BSAI trawl catcher vessel (CV) sector.
This proposed action is necessary to increase the value of the fishery,
minimize bycatch to the extent practicable, provide for the sustained
participation of fishery-dependent communities, ensure the
sustainability and viability of the resource, and promote safety and
stability in the harvesting and processing sectors. This action is
intended to promote the goals and objectives of the Magnuson-Stevens
Fishery Conservation and Management Act (Magnuson-Stevens Act), the
BSAI FMP, and other applicable law.
DATES: Submit comments on or before March 13, 2023.
ADDRESSES: You may submit comments, identified by NOAA-NMFS-2022-0072,
by any of the following methods:
<bullet> Electronic Submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and enter NOAA-NMFS-2022-0072 in the Search box.
Click on the ``Comment'' icon, complete the required fields, and enter
or attach your comments.
<bullet> Mail: Submit written comments to the Assistant Regional
Administrator, Sustainable Fisheries Division, Alaska Region NMFS. Mail
comments to P.O. Box 21668, Juneau, AK 99802-1668.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NMFS. All comments received are a part of the
public record and would generally be posted for public viewing on
<a href="http://www.regulations.gov">www.regulations.gov</a> without change. All personal identifying
information (e.g., name, address), confidential business information,
or otherwise sensitive information submitted voluntarily by the sender
would be publicly accessible. NMFS will accept anonymous comments
(enter ``N/A'' in the required fields if you wish to remain anonymous).
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
proposed rule may be submitted via mail to NMFS Alaska Region, P.O. Box
21668, Juneau, AK 99802-1668, Attn: Stephanie Warpinski; or online at
<a href="http://www.reginfo.gov/public/do/PRAMain">www.reginfo.gov/public/do/PRAMain</a>. Find the particular information
collections online by selecting ``Currently under 30-day Review--Open
for Public Comments'' or by using the search function.
Electronic copies of the Environmental Assessment, the Regulatory
Impact Review, and the Social Impact Analysis (collectively referred to
as the ``Analysis''), and the draft Finding of No Significant Impact
prepared for this proposed rule may be obtained from <a href="https://www.regulations.gov">https://www.regulations.gov</a> or from the NMFS Alaska Region website at <a href="https://www.fisheries.noaa.gov/region/alaska">https://www.fisheries.noaa.gov/region/alaska</a>.
FOR FURTHER INFORMATION CONTACT: Stephanie Warpinski, 907-586-7228 or
<a href="/cdn-cgi/l/email-protection#b6c5c2d3c6ded7d8dfd398c1d7c4c6dfd8c5dddff6d8d9d7d798d1d9c0"><span class="__cf_email__" data-cfemail="b6c5c2d3c6ded7d8dfd398c1d7c4c6dfd8c5dddff6d8d9d7d798d1d9c0">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Authority for Action
NMFS manages the groundfish fisheries in the exclusive economic
zone (Federal waters) of the BSAI under Federal regulations
implementing the BSAI FMP. The North Pacific Fishery Management Council
(Council) prepared the BSAI FMP under the authority of the Magnuson-
Stevens Act, 16 U.S.C. 1801 et seq. Regulations governing U.S.
fisheries and implementing the BSAI FMP appear at 50 CFR parts 600 and
679.
A notice of availability (NOA) for Amendment 122 was published in
the Federal Register on December 30, 2022 (87 FR 80519, December 30,
2022), with comments invited through February 28, 2023. All relevant
written comments received by the end of the comment period (See DATES),
whether specifically directed to the NOA or this proposed rule, will be
considered by NMFS in the approval/disapproval decision for Amendment
122. Commenters do not need to submit the same comments on both the NOA
and this proposed rule. Comments submitted on this proposed rule by the
end of the comment period (See DATES) will be considered by NMFS in our
decision to implement measures recommended by the Council and will be
addressed in the response to comments in the final rule.
I. Background of Pacific Cod Management in the BSAI
A. History of Pacific Cod Management in BSAI
Pacific cod (Gadus macrocephalus) is one of the most abundant and
valuable groundfish species harvested in the BSAI. Vessels harvest
Pacific cod using trawl and non-trawl gear. Non-trawl gear includes
hook-and-line, jig, and pot gear. Vessels harvesting BSAI Pacific cod
operate as catcher vessels (CVs) that harvest and deliver the fish for
processing or as catcher/processors (C/Ps) that harvest and process the
catch on board.
The BSAI FMP and implementing regulations require that, after
consultation with the Council, NMFS specify an overfishing level (OFL),
an acceptable biological catch (ABC), and a total allowable catch (TAC)
for each target species or species group of groundfish, including
Pacific cod, on an annual basis. The OFL is the level above which
overfishing is occurring for a species or species group. The ABC is the
level of a species' annual catch that accounts for the scientific
uncertainty in the estimate of OFL and any other scientific
uncertainty. Under the BSAI FMP, the ABC is set below the OFL. The TAC
is the annual catch target for a species or species group, derived from
the ABC by considering social and economic factors and management
uncertainty, and in the case of BSAI Pacific cod, after considering any
harvest allocations for guideline harvest level (GHL) fisheries managed
by the State of Alaska (State) and occurring only within state waters.
Under the BSAI FMP, the TAC must be set lower than or equal to the ABC.
The OFLs, ABCs, and TACs for BSAI groundfish are specified through
the annual harvest specification process. A detailed description of the
annual harvest specification process is
[[Page 8593]]
provided in the final 2022 and 2023 harvest specifications for
groundfish of the BSAI (87 FR 11626, March 2, 2022). The annual harvest
specification process for BSAI Pacific cod is briefly summarized here.
Specific examples of Pacific cod OFLs, ABCs, TACs, and other
apportionments of Pacific cod used in this preamble are based on the
2022 specifications from the final 2022 and 2023 harvest specifications
for groundfish of the BSAI, unless otherwise noted.
For Pacific cod, the harvest specifications establish separate
OFLs, ABCs, and TACs for the Bering Sea (BS) subarea and the Aleutian
Islands (AI) subarea of the BSAI. As noted above, before the Pacific
cod TACs are established, the Council and NMFS consider social and
economic factors and management uncertainty, as well as two factors
that are particularly relevant to BSAI Pacific cod: the Pacific cod
state waters GHL fisheries and an overall limit on the maximum amount
of TAC that can be specified for all BSAI groundfish species combined.
Once the groundfish TACs are established, regulations at 50 CFR
679.20(a)(7)(i) allocate 10.7 percent of the BS Pacific cod TAC and
10.7 percent of the AI Pacific cod TAC to the Community Development
Quota (CDQ) Program for the exclusive harvest by Western Alaska CDQ
groups. Section 305(i) of the Magnuson-Stevens Act authorizes six
nonprofit corporations called CDQ groups representing 65 communities to
receive exclusive harvest privileges of groundfish, including Pacific
cod, and specifies the methods for allocating these harvest privileges.
After subtraction of the CDQ allocation from each TAC, NMFS
combines the remaining BS and AI TACs into one BSAI non-CDQ Pacific cod
TAC, which is available for harvest by nine non-CDQ fishery sectors.
BSAI Pacific cod have been fully allocated to these sectors since 2008
with the implementation of Amendment 85 to the BSAI groundfish FMP (72
FR 50787, September 4, 2007). Regulations at Sec. 679.20(a)(7)(ii)(A)
define the nine Pacific cod non-CDQ fishery sectors in the BSAI and
specify the percentage allocated to each. The non-CDQ fishery sectors
are defined by a combination of gear type (e.g., trawl, hook-and-line),
operation type (i.e., CV or CP), and vessel size categories (e.g.,
vessels greater than or equal to 60 ft in length overall). Through the
annual harvest specifications process, NMFS allocates an amount of the
combined BSAI non-CDQ TAC to each of these nine non-CDQ fishery
sectors. The non-CDQ fishery sectors and the percentage of the BSAI
non-CDQ Pacific cod TAC allocated to each sector are shown in Table 1
below.
Table 1--Allocations of the BSAI Non-CDQ Pacific Cod TAC to the Non-CDQ
Fishery Sectors
------------------------------------------------------------------------
Percentage
allocation of
Non-CDQ fishery sector the BSAI non-
CDQ TAC
------------------------------------------------------------------------
Hook-and-line CVs greater than or equal to 60 ft length 0.2
overall (LOA)..........................................
Jig gear................................................ 1.4
Pot C/Ps................................................ 1.5
Hook-and-line and pot CVs less than 60 ft LOA........... 2.0
American Fisheries Act (AFA) trawl C/Ps................. 2.3
Pot CVs greater than or equal to 60 ft LOA.............. 8.4
Non-AFA trawl C/Ps (Amendment 80 C/Ps).................. 13.4
Trawl CVs............................................... 22.1
Hook-and-line C/Ps...................................... 48.7
------------------------------------------------------------------------
Allocations of Pacific cod to the CDQ Program and to the non-CDQ
fishery sectors are further apportioned by seasons. Season dates for
the CDQ and non-CDQ fishery sectors are established at Sec.
679.23(e)(5). In general, regulations apportion trawl gear allocations
among three seasons that correspond to January 20-April 1 (A season),
April 1-June 10 (B season), and June 10-November 1 (C season) of the
year. The specific season dates also are provided in the annual harvest
specifications for groundfish of the BSAI. Depending on the specific
CDQ Program or non-CDQ fishery sector allocation, between 40 and 70
percent of the Pacific cod allocation is apportioned to the A season,
which is historically the most lucrative fishing season due to the
presence of valuable roe in the fish and the good quality of the flesh
during that time of year.
As noted in Table 1, the trawl CV sector is apportioned 22.1
percent of the BSAI Pacific cod non-CDQ TAC, which is further divided
into seasonal allowances between the A, B, and C seasons. A season is
issued 74 percent of the trawl CV sector's total apportionment, B
season is issued 11 percent, and C season is issued 15 percent. The
trawl CV sector impacted by the implementation of the PCTC Program
would include all trawl CVs that are assigned to an LLP license with a
trawl gear endorsement for the BS and/or AI.
After NMFS deducts estimated incidental catch from the trawl CV
sector apportionment, each seasonal allowance is assigned to the trawl
CV sector as a BSAI directed fishing allowance (DFA). The DFA for the A
and B seasons is the amount that would be available for harvest by the
PCTC program cooperatives under the proposed LAPP. The DFA for the C
season would remain available for harvest as a limited access fishery
open to all CVs with the required trawl gear and area endorsements on
the LLP license assigned to the vessel. Because the non-CDQ sector
allocations continue to be defined BSAI-wide, sectors remain free to
redeploy between the two areas. However, if the non-CDQ portion of the
TAC in either sub-area (BS or AI) is reached NMFS will close directed
fishing for Pacific cod in that subarea.
B. Groundfish License Limitation Program (LLP) Licenses
The Groundfish License Limitation Program (LLP) was implemented in
1998 (63 FR 52642, Oct. 1, 1998) and issued a limited number of LLP
licenses to qualifying participants based on historical participation
in the Federal groundfish fisheries off Alaska. The Council and NMFS
have long sought to control the amount of fishing effort in the BSAI
groundfish fisheries to ensure that the fisheries are sustainably
managed and do not exceed established biological thresholds. One of the
measures used by the Council and NMFS to control fishing effort,
including in the BSAI Pacific cod
[[Page 8594]]
fishery, is the LLP. A groundfish LLP license authorizes a vessel to
participate in a directed fishery for groundfish in the BSAI in
accordance with specific area and species endorsements, vessel and gear
designations, and the maximum length overall (MLOA), or any exemption
from the MLOA, specified on the license. With some limited exceptions,
the LLP requires that each vessel that participates in federally
managed groundfish fisheries off Alaska be designated on a groundfish
LLP license. In other words, an LLP license is generally required to
participate in the BSAI groundfish fisheries. The LLP is authorized in
Federal regulations at 50 CFR 679.4(k), definitions relevant to the
program are at Sec. 679.2, and prohibitions are at Sec. 679.7.
All Federal Pacific cod harvesting activity in the BSAI requires an
LLP license and the correct endorsements. The Council elected to have
LLP license holders and eligible processors receive PCTC Program Quota
Share (QS) instead of vessel owners.
C. Transferable AI Endorsements
Amendment 92 to the BSAI FMP (74 FR 41080, August 14, 2009) issued
new AI area endorsements for trawl CV LLP licenses if minimum recent
landing requirements in the AI were met. Under this action, NMFS issued
AI trawl endorsements to (1) non-AFA catcher vessels less than 60 ft
LOA, if those vessels made at least 500 metric tons (mt) of landings of
Pacific cod in State of Alaska (State) waters adjacent to the Aleutian
Islands Subarea during 2000 through 2006 (i.e. in the parallel
fishery); and (2) non-AFA catcher vessels equal to or greater than 60
feet LOA if those vessels made at least one landing in State waters
during the Federal groundfish season in the Aleutian Islands Subarea
and made at least 1,000 mt of Pacific cod landings in the BSAI during
2000 through 2006. Amendment 92 intended to recognize the recent
participation by CVs in the AI by allowing those vessels to extend
their fishing operations to Federal waters using trawl endorsed LLP
licenses.
The AI endorsements issued under Amendment 92 were intended to
facilitate shoreside deliveries of Pacific cod to AI communities and
provide additional harvest opportunities for non-AFA trawl vessels who
had demonstrated a dependence on AI groundfish resources. The AI
endorsements issued to LLP licenses used by non-AFA trawl CVs less than
60 ft are severable from the LLP license they were initially issued and
transferable to another LLP licenses with a MLOA under 60 ft. The
transferability provision was intended to allow smaller vessels
operational flexibility and avoid stranding an AI endorsement on an LLP
license being used by a vessel that no longer fished in the AI. No
other area endorsement in the LLP can be transferred separately from an
LLP license.
NMFS modified the LLP license transfer regulations to clarify the
process for transferring an AI endorsement independent of the LLP
license. As part of that application process, the person would need to
specify the LLP license to which the transferred AI area endorsement
would be assigned.
D. Limited Access Privilege Programs
Section 303A of the Magnuson-Stevens Act authorizes the
establishment of Limited Access Privilege Programs (LAPPs) that
allocate limited access privileges, such as fishing quota, to a closed
class of participants. The Council has recommended and NMFS has
implemented LAPPs to address a wide range of fishery management
objectives, including providing stability in fishery harvests,
resolving allocative disputes, increasing the value of the fishery,
minimizing bycatch to the extent practicable, providing for the
sustained participation of fishery-dependent communities, and promoting
safety. Another example of a North Pacific LAPP is the Central Gulf of
Alaska (GOA) Rockfish Program. An extensive discussion of LAPPs can be
found in sections 2.5 and 2.9.8 of the Analysis (see ADDRESSES).
By allocating quota shares and issuing exclusive harvest privileges
to fishing cooperatives, a LAPP allows vessel operators to make
operational choices to improve safety, reduce bycatch, and reduce
discard of fish because the strong incentive to maximize catch in the
minimum amount of time has been reduced. Vessel operators can choose to
fish in a slower, less wasteful fashion, use modified gear with a lower
harvest rate but which reduces bycatch, coordinate with other vessel
operators to avoid areas of high bycatch, or otherwise operate in ways
that limit bycatch and increase efficiency.
LAPPs can also improve the profitability of participating fishing
operations. In most cases, LAPPs provide harvesters greater flexibility
in tailoring their fishing operations to specific fisheries, which can
reduce operational costs. Additionally, vessel operators may avoid
costly improvements in vessel size or fishing power designed to
outcompete other harvesters in a race for fish. Slower fishing rates
can improve product handling and quality and increase the ex-vessel
price of the fish delivered to the processor. Vessel operators can also
choose to consolidate less profitable fishing operations onto fewer
vessels through a cooperative system.
LAPPs can increase the costs of entering the fishery substantially
because the expected long-term profits from the QS assigned to the
permits increase their value, and, in most circumstances, permits must
be purchased prior to entry. Increased cost of entry may limit the
ability of persons without the financial wherewithal to purchase the
permits or QS necessary to participate in these fisheries.
Consolidation can limit employment opportunities as well, if fewer
vessels are used to harvest the quota. Compliance costs can also
increase to ensure that NMFS can monitor the harvesting and processing
of fish. Administration of LAPPs typically requires greater effort and
cost than non-LAPP fisheries due to the greater precision in catch
accounting required to track the harvest of fish and proper debiting of
accounts. Participants in LAPPs may also use their excess fishing
capacity to expand operations into other fisheries that are not managed
by LAPPs and increase the race for fish in those fisheries unless they
are constrained. These and other effects have been addressed in the
design of previous LAPPs by limiting the amount of consolidation in the
fishery through caps on the ownership and use of QS.
E. PCTC Program Overview
Based on experience with past LAPPs, and after weighing the
potential advantages and disadvantages, the Council unanimously
recommended the PCTC Program at its October 2021 meeting to reduce
bycatch and improve the safety of fishery participants while increasing
the potential for greater economic returns to those holding the harvest
privileges.
The Council had previously adopted a statement of purpose and need
for this action, emphasizing that conditions in the fishery had
resulted in a race for fish with a number of negative consequences.
This proposed Program would be responsive to that statement of purpose
and need by slowing the race for fish. This Program would provide
incentives to increase the length of the directed fishing season and
allow deliveries to be distributed over a longer timeframe, which would
benefit both harvesters and processors. The current fishery management
system, in which harvesters compete with each other for a portion of
the Pacific cod TAC,
[[Page 8595]]
incentivizes harvesters to fish in weather conditions that could be
unsafe, and this incentive would be reduced or avoided under the
proposed LAPP. Several conditions warranted this proposed change in
management, including a decline in Pacific cod TAC, an increase in the
number of LLP licenses (and associated vessels) participating in this
sector and the risk of additional entrants, the compressed length of
the fishery in recent years, the decreased product quality caused by a
race for fish in recent years, need to minimize bycatch, and safety
concerns.
In response, the Council recommended, and NMFS proposes the PCTC
Program with the overarching objectives of increasing the value of the
fishery, minimizing bycatch to the extent practicable, providing for
the sustained participation of fishery-dependent communities, and
promoting safety in the harvesting and processing sectors. The PCTC
Program proposes a complex suite of measures to ensure the goals of the
Program are met and improve fishery conditions for all participants.
The Program would require participants holding QS to form harvesting
cooperatives in association with an eligible processor to harvest the
annual harvest privilege of Pacific cod. This Program would also
require cooperatives to set-aside a portion of their allocation for
delivery to an Aleutian Island shoreplant. A shoreplant is a land-based
processing plant and is a subset of the term ``shoreside processor''
which is defined in Sec. 679.2 to include processing vessels that are
moored or otherwise fixed in a location (i.e., stationary floating
processors), but not necessarily located on land.
The following section provides an overview of the complex suite of
measures included in the proposed Program. Each Program element will be
addressed in additional detail in subsequent sections of this preamble.
1. Pacific Cod Allocations and Prohibited Species Catch (PSC) Limits
The PCTC Program would allocate QS to qualifying LLP license
holders and processors based on their qualifying catch and processing
history during the BSAI trawl CV sector A and B season for the Pacific
cod fishery. The Pacific cod QS allocations would be based on
qualifying catch or processing history as recommended by the Council.
In addition, aggregate PSC limits for halibut and crab would be
established through the annual harvest specification process for
participants in the PCTC Program. Allocations of Pacific cod and PSC
limits are discussed in further detail in section II of the preamble.
2. PCTC Program Quota Share
The PCTC Program would issue QS to qualified LLP licenses that had
qualifying catch history of BSAI Pacific cod during the qualifying
years, and to processors based on their processing history during the
qualifying years. The Council selected 2009 to 2019 as the qualifying
years for processors and most LLP licenses, with the additional years
of 2004 through 2009 for LLP licenses with transferable AI
endorsements. In making initial allocations of QS, NMFS would look at
targeted landings of BSAI Pacific cod from a Federal fishery during the
qualifying years, and then determine what proportion of those landings
were authorized by each participating LLP license, and which proportion
was delivered to each participating processor. Targeted species are
those species retained in an amount greater than any other species for
which a TAC is specified pursuant to Sec. 679.20(a)(2). To use their
QS, LLP license holders would be required to join a PCTC Program
cooperative and processors would be required to associate with a
cooperative. Trawl CVs eligible to participate in the proposed Program
include all trawl CVs that are named on an LLP license with a trawl
gear endorsement and BS and/or AI area endorsement. Section II in the
preamble further discusses QS and participants.
3. Trawl CV Sector
The PCTC Program allocations would be harvested by trawl CVs that
join a PCTC Program cooperative. The trawl CV sector that would be
eligible to participate in the proposed Program includes all trawl CVs
designated on an LLP license with BS and/or AI area endorsements,
including both American Fisheries Act (AFA) and non-AFA trawl CVs.
Most AFA CVs rely heavily on pollock harvested in the BS, but
Pacific cod is the second most important species in terms of volume for
these vessels in aggregate. While nearly all the groundfish harvested
by the larger AFA vessels is delivered to shoreside processors, many of
the smaller AFA vessels deliver their catch to a mothership. AFA
vessels are categorized as either exempt or non-exempt; AFA exempt
means that they are not limited based on their catch history by
sideboards, and AFA non-exempt means that they are limited by
sideboards based on their catch history. The harvest of BSAI Pacific
cod by AFA trawl CVs is currently managed through private inter-
cooperative agreements.
Non-AFA trawl CVs are typically between 60 ft and 125 ft, but
occasionally, vessels less than 60 ft participate in the sector.
Fisheries important to non-AFA trawl CVs include BSAI Pacific cod,
groundfish in the GOA, halibut IFQ (using longline gear), and salmon in
the state commercial seine fisheries.
A total of 114 LLP licenses are assigned a trawl CV endorsement for
the BS. Of those 114 LLP licenses, 42 also have an AI endorsement. One
LLP license is endorsed only for the AI, and that license has both a
trawl endorsement and a hook-and-line endorsement. Annual estimates of
the trawl CV sector's gross ex-vessel value for Pacific cod are
provided in Section 2.8.7 of the Analysis.
Given that initial allocations under this proposed rule will be
based on historical participation, no substantial shifts in patterns of
fishery landings between communities are anticipated, nor are
substantial shifts expected in the accompanying patterns of revenue
accruing to municipalities in Alaska from local raw fish taxes or
shared state fishery business taxes.
4. Processor Sector
The PCTC program would allocate QS to eligible processors, both
shoreside and C/Ps acting as motherships, which could serve to
stabilize landings in communities in proportion to their qualifying
history of BSAI Pacific cod processing.
Eligible processors would be allocated a percentage of QS based on
their processing history that would function to promote stability in
the processing sector. Processors eligible to receive QS would include
active processors who hold an active FFP or FPP. Eligible processors
would be issued their QS on a new QS permit. Processor-issued QS would
represent 22.5 percent of the total PCTC Program CQ each year.
Section 2.9.5 of the Analysis provides a count of the years
processing firms were active (received deliveries of targeted Federal
BSAI Pacific cod from trawl CVs). These counts represent all the
processing firms (including C/Ps that are no longer eligible to process
Pacific cod as a mothership) that were reported in the NMFS Catch
Accounting System (CAS) data. Preamble sections II.E and VII.B and C
describe the processor sector in further detail.
5. Allocations of TAC in the PCTC Program
Under this proposed PCTC Program, 22.1 percent of the annual BSAI
Pacific cod non-CDQ TAC would continue to be allocated to the trawl CV
sector using
[[Page 8596]]
the current seasonal apportionments. Of that 22.1 percent, a portion is
allocated for directed fishing by trawl CVs targeting Pacific cod (as
DFAs), and another portion is reserved as an incidental catch allowance
(ICA) for Pacific cod caught as bycatch in other BSAI trawl CV
groundfish fisheries. Under the PCTC Program, A and B season DFAs would
be issued as CQ to PCTC program cooperatives. Of the total PCTC Program
annual allocations, 22.5 percent of CQ would be derived from QS
allocated to processors and 77.5 percent would be derived from QS
allocated to LLP license holders. Section IV discusses CQ and PCTC
Program cooperatives in further detail. The C season would continue to
be managed as a limited access fishery open to any trawl CV with the
required area endorsements. Section VI.B of the preamble discusses the
C season in further detail.
6. PCTC Program Cooperatives
The PCTC Program would authorize the formation of harvester
cooperatives in association with an eligible processor. A cooperative
would be formed by holders of qualified LLP licenses with trawl CV
Pacific cod QS, in association with processors. Each LLP license could
be assigned to only one cooperative. Each year, a cooperative
representative would be required to submit an Application for PCTC
Program Cooperative Quota. CQ would be issued to each cooperative by
NMFS based on the aggregate QS of the cooperative members and
associated processors. Cooperative associations could change on an
annual basis without penalty. Cooperatives would be required to
identify a list of trawl CVs eligible to harvest a portion of that
cooperative's CQ in the annual cooperative application. Any trawl CV
named on an LLP license with a BS and/or AI trawl endorsement could be
identified as an eligible harvester within a PCTC cooperative,
regardless of whether the LLP license was issued QS. Section IV in this
preamble further describes cooperatives in the PCTC Program.
7. AI CQ Set-Aside
The PCTC Program would require cooperatives to reserve 12 percent
of the BSAI A season trawl CV sector CQ as a set-aside for delivery to
an Aleutian Islands shoreplant if the City of Adak or the City of Atka
files a notice of intent to process that year. The set-aside would be
in effect during the A and B seasons and any remaining portion of the
AI CQ set-aside would be reallocated to cooperatives in the same
proportion as the initial allocation if the intent to process is
withdrawn during the A or B season by the representative of the City of
Adak or the City of Atka. NMFS would require an inter-cooperative
agreement that describes how the set-aside will be administered by the
cooperatives to ensure that harvests from the BS do not exceed the
minimum set-aside, how the cooperatives intend to harvest the set-
aside, and how cooperatives would ensure that CVs less than 60 ft LOA
assigned to an LLP license with a transferable AI trawl endorsement
have the opportunity to harvest 10 percent of the AI set-aside for
delivery to an Aleutian Island shoreplant. A cooperative intending to
harvest any amount of the set-aside would be required to provide the
cooperative's plan for coordinating harvest and delivery of the set-
aside with an Aleutian Island shoreplant in the annual cooperative
application.
8. C Season Limited Access Fishery
The PCTC Program would allocate only the A and B season non-CDQ
Pacific cod trawl CV DFA to cooperatives. The C season non-CDQ Pacific
cod trawl CV DFA, which accounts for approximately 15 percent of the
annual trawl CV sector allocation, would remain as a trawl CV limited
access fishery open to any trawl CV with a BS and/or AI area trawl
endorsement.
9. Use Caps
The PCTC program would include ownership and use caps to prevent a
permit holder from acquiring an excessive share of the fishery as
required under MSA Section 303A(c)(5)(D). No person would be permitted
to hold more than 5 percent of harvester-issued QS or 20 percent of
processor-issued QS. In addition, no vessel would be able to harvest
more than 5 percent of the annual CQ, and no company would be able to
process more than 20 percent of CQ. The PCTC Program would also include
legacy exemptions for persons over these ownership and use caps at the
time of PCTC Program implementation, allowing participants to maintain
levels of historical participation rather than forcing divestiture.
10. Gulf of Alaska Sideboard Limits
The PCTC Program includes GOA groundfish sideboard limits for LLP
licenses that receive allocations of QS. The Program would change the
AFA non-exempt GOA groundfish sideboard and halibut PSC limits for all
non-exempt AFA CVs and associated LLP licenses based on the GOA fishing
activity of these vessels in the aggregate during the PCTC Program
qualifying years. GOA halibut PSC limits would be managed as an annual
limit for all AFA non-exempt CVs and associated LLP licenses. The
proposed PCTC Program does not change existing sideboard exemptions for
AFA GOA--exempt CVs and does not add sideboard limits for non-AFA trawl
CVs in the GOA.
However, holders of LLP licenses that authorize these categories of
vessels will not be permitted to lease CQ derived from their LLP
licenses as a condition of benefiting from a GOA sideboard exemption.
If the vessel assigned to the qualified GOA sideboard-exempt LLP
license does not fish in the GOA during the calendar year--with the
exception of fishing in the Central GOA Rockfish Program--the LLP
license holder would be able to lease CQ generated by their LLP license
for that calendar year. In addition, holders of LLP licenses that
authorized GOA sideboard-exempt CVs with less than 300 mt of average
annual qualifying BSAI Pacific cod catch history would be able to lease
CQ generated by their LLP license.
11. Monitoring and Enforcement
All CVs harvesting CQ and making deliveries to a shoreside
processor would be in the full observer coverage category, which
requires the vessel to maintain observer coverage on 100 percent of its
fishing trips. The PCTC Program would maintain the current observer
coverage exception for CVs delivering unsorted codends to motherships
specified at Sec. 679.50(a). CVs in the full observer coverage
category would be required to provide a functional and operational
computer with NMFS-supplied software installed to facilitate the
electronic entry of observer data collected on board the vessel. At the
time of Program implementation, AFA CVs would be required to provide
communications equipment necessary to facilitate the point-to-point
communication necessary to transmit observer data to NMFS on a daily
basis. For the first three years after implementation, the PCTC Program
would exempt non-AFA CVs from the requirement to facilitate at-sea
transmission of observer data. If a non-AFA CV has the necessary
communication equipment already installed on the vessel prior to the
end of the 3-year exemption, the vessel would be required to allow the
observer to use the equipment. After three years, all vessels would be
required to comply with requirements for at-sea observer data
transmission. Monitoring and enforcement provisions would be
[[Page 8597]]
implemented to track quota, harvest, PSC, and use caps. NMFS would
report weekly vessel-level PSC information as authorized under
Magnuson-Stevens Act Sec. 402(b)(2)(A).
II. PCTC Program Quota Share (QS)
Under the PCTC Program, QS for Pacific cod would be assigned to
eligible LLP licenses (with and without transferable AI endorsements)
and newly created processor PCTC Program QS permits. The amount of QS
allocated to individual LLP licenses or processors would be determined
by historic participation relative to other LLP licenses or processors,
as described below. QS holders would be required to join or associate
with a cooperative, and the aggregate QS of cooperative members and
associated processors would yield an exclusive harvest privilege for
PCTC Program cooperatives, which NMFS would issue as CQ each year. Of
the total annual CQ, 77.5 percent would be derived from QS issued to
LLP licenses and 22.5 percent would be derived from QS issued to
processors. CQ would represent a portion of the A and B season BSAI
trawl CV sector Pacific cod DFA that is available only to the holders
of CQ. This Program would establish criteria for harvesters and
processors in the BSAI trawl CV sector Pacific cod fisheries to qualify
for and receive QS, criteria for allocating QS in the initial year of
implementation, and criteria for the transfer of QS.
NMFS would assign PCTC Program QS to eligible LLP licenses based on
qualifying catch history (legal landings) of targeted BSAI Pacific cod
authorized by that LLP license during the qualifying years 2009 through
2019, excluding the year with the lowest total harvest for each
license. The qualifying period for LLP licenses with transferable AI
endorsements also includes harvest by vessels that generated the
transferable AI endorsement from January 20, 2004 through September 13,
2009. The amount of QS assigned to an LLP license relative to the total
QS assigned to all LLP licenses determines the percentage of the
harvesters' allocation (77.5 percent of the A and B season DFA) that a
harvester could designate to a cooperative.
Allocations of QS to processors with an eligible FFP or FPP
(subject to eligibility requirements under BSAI FMP Amendment 120 to
limit C/Ps acting as mothership) is based on processing history in the
Federal BSAI Pacific cod trawl CV fishery. QS would be assigned to
eligible processors based on each processor's targeted Pacific cod
processing history during the qualifying years 2009 through 2019,
excluding the year with the least amount of processing history. The
amount of QS assigned to a processor PCTC Program QS permit relative to
the total QS assigned to all PCTC Program QS permits determines the
percentage of the processors' allocation (22.5 percent of the A and B
season DFA) that a processor could designate to a cooperative. NMFS
would assign QS to holders of eligible LLP licenses if they submit a
timely and complete Application for PCTC Program QS. A similar process
would be used for the processor QS allocation. Processors with
qualifying processing history would be assigned QS on a processor
permit for each unit of processing history.
A. Eligibility To Receive PCTC QS
This section defines and describes the requirements necessary to
identify eligible LLP licenses and processors that would receive PCTC
Program QS. ``Eligible PCTC Program LLP license'' means an LLP license
assigned to a vessel that made qualifying catch history (legal
landings) of targeted trawl CV BSAI Pacific cod during the PCTC Program
qualifying years. ``Eligible PCTC Program processor'' means a
processing facility with an active Federal processor permit that has
historically received Pacific cod legal landings.
``Legal landings'' means the retained catch of Pacific cod caught
by a CV using trawl gear in the BSAI during the directed fishing season
for Pacific cod that was: (1) made in compliance with state and Federal
regulations in effect at that time, (2) recorded on a State of Alaska
fish ticket or shoreside logbook for shoreside deliveries or in
observer data for mothership deliveries, and (3) was the predominately
retained species on the fishing trip (i.e. Pacific cod was targeted). A
legal landing must have been authorized by either (1) an LLP license
participating in the A or B season of a Federal or parallel State water
groundfish fishery during the qualifying years 2009 to 2019, or (2) an
LLP license with a transferable AI endorsement that, prior to receiving
that AI endorsement, participated in the AI parallel fishery from
January 20, 2004 through September 13, 2009. Legal landings for the
PCTC Program would not include landings in the CDQ fishery, in the
State of Alaska GHL fishery, or made during the C season by vessels
participating in a Federal or parallel State water fishery. For LLP
licenses, NMFS would determine which LLP licenses were assigned to
catcher vessels that harvested and offloaded BSAI Pacific cod that met
all legal landings requirements. For processors, NMFS would determine
which processors with active Federal permits received deliveries of
legal landings of BSAI Pacific cod.
B. Rationale for Allocations
The Council recommended and NMFS proposes establishing eligibility
for the Program by considering the catch history associated with LLP
licenses that authorized a vessel to make legal landings of targeted
BSAI trawl CV Pacific cod during the qualifying years. The Council
recommended against considering catch history occurring after December
31, 2019 during the development of this Program to discourage
speculative entry into the fishery. QS would be allocated to eligible
LLP licenses based on legal landings of BSAI trawl CV Pacific cod from
2009 through 2019. In addition, for LLP licenses with transferable AI
endorsements, NMFS would consider catch history of targeted AI Pacific
cod in the parallel fishery prior to receiving a transferable AI
endorsement from January 20, 2004 through September 13, 2009. The
Council recommended these qualifying years to ensure that both current
and historical participation would be considered in allocating QS. This
range of qualifying years is comparable with the Council's
recommendations for awarding catch history in other rationalized
fisheries (or fisheries managed under a LAPP).
The Council considered alternative methods for allocating QS to
participants in the BSAI trawl CV Pacific cod sector in the development
of the Program. These alternatives are addressed in the Analysis
developed to support this proposed action (see ADDRESSES). The Program
would balance allocation among recent and historical participants. As
with other QS programs (e.g., BSAI Crab Rationalization, and IFQ
halibut and sablefish), the Program would allocate QS based on recent
and historical harvesting and processing, as opposed to alternative
allocative methods such as allocating equal shares or auctioning QS. In
other North Pacific quota share programs, NMFS has allocated QS based
on landings that occurred during a specific time period as a means of
equitably distributing QS to participants based on their relative
dependence on the fishery. This is the first LAPP in the North Pacific
that allocates harvester QS to processors based on their processing
history.
One option for this Program considered the most recent five years
of history (2014 through 2019) in the BSAI trawl CV Pacific cod
fishery, but that
[[Page 8598]]
range of years undervalued long-term participation, which the Council
believes is an important consideration for the PCTC Program. A second
option the Council rejected included catch history years from 2004
through 2019 because it would include several years before the
implementation of the current BSAI Pacific cod sector allocations
established by Amendment 85. These sector allocations, combined with a
decline in the BSAI Pacific cod stock in recent years, have
substantially changed fishery management and operations.
A third option the Council considered included allocations on a
blend of catch history and AFA sideboard limit history. This approach
would have awarded catch history to LLP licenses assigned to vessels
that did not make legal landings of BSAI trawl CV Pacific cod during
the qualifying years but instead had catch history of BSAI Pacific cod
from 1997 that contributed to a sideboard limit for all AFA trawl CVs
in the BSAI. The Council recommended maintaining the long-standing
policy that sideboard limits are not sector allocations. Instead, this
proposed Program would award catch history to LLP licenses based on
legal landings that were reported by the vessel assigned to the LLP
license, consistent with the Council's past practice.
In calculating QS to be issued to eligible LLP license holders and
processors, the lowest year of catch history during the qualifying
period would be dropped. Including a one-year drop provision would
allow all participants to benefit from removing a non-representative
participation year from the catch history used to issue their QS. The
public testimony provided to the Council in support of this option
noted that the catch history eligibility period is 11 years, and
unforeseen events have occurred for many BSAI trawl CV Pacific cod
fishery participants over that period that would reduce the amount of
catch history awarded to their LLP license. The Council considered this
to be a reasonable approach and consistent with Council and NMFS's
practice in previous rationalization programs because it recognizes
contingencies in fishing behavior over the qualifying years.
Some legal landings during 2009 through 2019 were made by vessels
with two or more associated LLP licenses, and in these cases the
Council recommended assigning the qualifying catch history to one LLP
license in one of two ways. First, the LLP license owners may come to
an agreement regarding the division of qualifying catch history and
submit this agreement to NMFS when they apply for QS. Or, if no
agreement is provided by the LLP license holders, the owner of the
vessel that made the qualifying catch would assign the history to one
of the LLP licenses that authorized the catch. This approach is
consistent with NMFS's approach for assigning legal landings in all
previous North Pacific rationalization programs. In addition, the
Council received public comment in support of this approach.
The Council determined that an allocation of harvest QS to
processors is necessary to provide stability to the sectors involved in
the fishery after it transitions from a limited access fishery to a
LAPP. The Analysis (see ADDRESSES) did not identify an optimal
percentage of QS that should be allocated to processors to provide
stability for harvesters and processors. Instead, the allocation amount
recommended and proposed in this action--77.5 percent of QS allocated
to harvesters and 22.5 percent to processors--is based on an agreement
brought to the Council by members of the affected CV and processing
sectors. Analysts noted that within the range of percentages considered
for QS to be issued to processors, the leverage that each sector would
have at any specific percentage would vary and the effects are likely
to be most realized by firms that have less leverage outside the BSAI
trawl CV Pacific cod fishery.
Under the proposed Program, NMFS would allocate QS to eligible
processors based on their processing history of legal landings of BSAI
Pacific cod during the qualifying years. The QS issued to processors
would be divided among eligible processors based on the percentage of
legal landings of Pacific cod they processed during the A and B seasons
during the qualifying years compared to the total legal landings of
BSAI Pacific cod processed by all eligible processors. Allocating
harvest shares to processors is intended to maintain a balance of
market power within the industry under the LAPP.
C. Calculations of Initial Allocations
The Council recommended, and NMFS proposes to set initial
allocations through a specific process set forth in this section.
The QS allocations for LLP license holders with no transferable AI
endorsement would be calculated based on the sum of the 10 highest
years of Pacific cod qualifying catch for the LLP license out of the 11
qualifying years recommended by the Council. If an LLP license was only
used in a single year or if the LLP license was used in ten or less
years, a year with no qualifying catch would be dropped. If the LLP
license was transferred within the qualifying years of 2009 to 2019,
all legal landings during the period would still be assigned to that
LLP. For LLP licenses with transferable AI endorsements, NMFS would
also include the catch history of the vessel used to generate the
endorsement from January 20, 2004 through September 13, 2009 (for these
LLP licenses, NMFS would be looking at 16 years of catch history and
dropping the lowest year). The current LLP license owner would be
entitled to all QS derived from the LLP license and transferable AI
endorsement catch history, unless compensation was required by a
private agreement associated with the sale of the LLP license. The QS
would not be divided among LLP licenses.
NMFS proposes that for each LLP license holder, the qualifying year
with the least amount of legal landings be dropped, and the total of
the remaining years summed to determine the LLP license's QS units.
This process would be done for all eligible LLP licenses, with and
without transferable AI endorsements. The sum of all QS units issued
would determine the harvesters total initial QS pool allocated to LLP
licenses. All harvester QS units combined would represent 77.5 percent
of the A and B season BSAI Pacific cod trawl CV DFA.
An active processor would be eligible to receive initial QS
allocations in the PCTC Program if they hold a Federal Fisheries Permit
(FFP) or Federal Processing Permit (FPP) with processing history in the
Federal BSAI Pacific cod trawl CV fishery between 2009 and 2019, which
is the set of qualifying years recommended by the Council. An active
processor is a processor firm that holds an FFP or FPP upon the
effective date of the final rule implementing this Program.
The QS for processors would be allocated based on the sum of legal
landings delivered in the 10 highest years out of the 11 qualifying
years recommended by the Council. If the FFP or FPP received deliveries
of qualified catch in ten years or less, a year with no qualifying
legal landings would be dropped. Processing companies that are no
longer active--meaning that they do not have a current FFP or FPP upon
the effective date of the final rule implementing this Program--would
not be issued QS.
For each processor, the sum of all years of deliveries of legal
landings is calculated, the year with the smallest amount of delivered
legal landings is dropped, and the total of the remaining years
determines the FFP or FPP's QS
[[Page 8599]]
units. This process is done for all processors. The sum of all the
processor QS units would determine the denominator of the initial QS
pool for processors. All processor QS units combined would represent
22.5 percent of the A and B season BSAI Pacific cod trawl CV DFA.
D. PCTC Program Official Record
NMFS would establish a PCTC Program official record containing all
necessary information concerning PCTC Program legal landings during the
qualifying period, vessel and processor ownership, LLP license
holdings, and any other information needed for assigning QS. The
official record would include landings data (from the Catch Accounting
System), documentation of LLP licenses, FFPs, and FPPs, and observer
data. NMFS would presume the official record is correct and an
applicant wishing to amend the official record would have the burden of
establishing otherwise through an evidentiary and appeals process. That
process is described in Section III.C of this preamble below.
The official record would be used to establish the initial pool of
QS that would be distributed to eligible harvesters and processors.
Each metric ton of legal landing credited to a qualifying LLP
license would result in one QS unit. This initial QS pool would be
adjusted should the official record be amended through successful
claims brought by an eligible participant or other corrections to the
underlying data. See Parts E and F of this section below for more
detail. As with other LAPPs (e.g., Central GOA Rockfish Program or the
Amendment 80 Program), NMFS would establish ownership and use caps
using this initial QS pool. Ownership and use caps are described
further under Section VII of this preamble.
E. Harvester Allocations of QS in the PCTC Program
Under this proposed rule, the Regional Administrator would allocate
PCTC Program QS to an eligible harvester--i.e. LLP license holder--who
submits a timely Application for PCTC Program QS that is approved by
NMFS based on the amount of BSAI trawl Pacific cod legal landings
assigned to an LLP license.
NMFS proposes to assign a specific number of Pacific cod QS units
to each LLP license with no transferable AI endorsement based on the
legal landings of the LLP license using information from the PCTC
Program official record as of December 31, 2022 according to the
following procedures:
(1) Determine the BSAI trawl CV Pacific cod legal landings
authorized by an LLP license for each calendar year from 2009 through
2019.
(2) Drop from consideration the calendar year in which the LLP
license had the least amount of legal landings. If an LLP license had
one or more years with zero harvest, drop one of those years.
(3) Sum the Pacific cod legal landings for the 10 years in which
each LLP license had the most landings. This yields the QS units for
each LLP license.
NMFS proposes to assign a specific number of Pacific cod QS units
to each LLP license with a transferable AI endorsement based on the
legal landings of each vessel that was used to generate the
transferable AI endorsement and subsequent legal landings authorized by
the LLP license associated with the endorsement using information from
the PCTC official record according to the following procedures:
(1) Determine the BSAI trawl CV Pacific cod legal landings for each
vessel used to generate the transferable AI endorsement from January
20, 2004 through September 13, 2009 and the LLP license associated with
that transferable AI endorsement from September 14, 2009 through the
end of 2019.
(2) Drop from consideration the calendar year which the vessel used
to generate the transferable AI endorsement (January 20, 2004-September
13, 2009) or the associated LLP license (2009-2019) that had the least
amount of legal landings. If a vessel or LLP license had one or more
years with zero harvest, drop one of those years.
(3) Sum the Pacific cod legal landings for the 15 years in which
the relevant LLP license had the highest amount of legal landings. This
yields the QS units for LLP licenses with transferable AI endorsements.
After the QS units for the LLP licenses with and without
transferable AI endorsements are determined under part 3 of each
scenario above, NMFS would sum all harvester QS units to calculate the
harvesters' total QS pool. NMFS would then determine what portion of
the 77.5 percent of the A and B season DFA allocated as harvester QS
under the PCTC Program is represented by each LLP license's QS units.
To do so, NMFS would divide each LLP license's total QS units by the
sum ([Sigma]) of all QS units for all eligible LLP licenses based on
the PCTC official record as presented in the following equation:
LLP license's QS units/([Sigma] QS units for all LLP licenses) x
100 = Percentage of the total harvester QS pool allocated to that
eligible LLP license. The result (quotient) of this equation is the
percentage of the total harvesters' portion of PCTC Program allocation
(77.5 percent of the A and B season DFA) that a QS holder could assign
to a cooperative each year.
F. Processor Allocations of QS in PCTC Program
The Council recommended and NMFS proposes allocating harvest shares
to processors to provide stability to all of the sectors involved in
the fishery after it transitions from status quo conditions to the PCTC
Program.
Under the Program, processors with an eligible FPP or FFP that have
history of processing in the Federal BSAI Pacific cod trawl CV fishery
would be eligible to receive QS based on each processor's processing
history (subject limitations on the number of C/Ps authorized to
operate as motherships under BSAI FMP Amendment 120). Processors
eligible to receive QS would be issued a new PCTC Program processor QS
permit and could annually associate with a PCTC Program cooperative.
Harvesters in the cooperative would then have access to the CQ derived
from processor-held QS.
If a processor holding QS does not associate with a cooperative,
that processor's QS would be divided among cooperatives in the same
proportion as the CQ assigned to individual cooperatives that year. If
a processor associated with more than one cooperative during a year,
the CQ derived from their processor permit would be divided among the
cooperatives in the same proportion as the CQ derived from LLP licenses
within each associated cooperative.
Cooperatives would have some limitations on the manner in which
they can use CQ derived from processor-held QS. To address vertically
integrated companies where a processing company may also own LLP
licenses or CVs, the Council intended processor held QS to be divided
among cooperative CVs proportionately to the QS attached to LLP
licenses onboard the harvesting vessel. In other words, a cooperative
should not allow a CV or LLP license owned by that processor to harvest
a greater proportion of the CQ resulting from processor-held QS than
the LLP license would have brought into the cooperative absent any
processor-held QS. The cooperative would monitor this provision and
include reporting on harvest of CQ resulting from processor-held QS in
the PCTC Program cooperative annual report.
[[Page 8600]]
Processors that are no longer active (no longer hold an FPP or FFP
upon the effective date of the final rule implementing this Program)
would not be issued QS. The processing history associated with those
processors would be deducted from the total amount of eligible
processing history during the qualifying years when calculating the
distribution of QS to processors.
NMFS proposes to assign a specific number of Pacific cod QS units
to each processor permit based on the qualifying landings delivered to
the processor using information from the PCTC official record as of
December 31, 2022 according to the following procedures:
(1) Determine the BSAI trawl CV Pacific cod legal landings in the A
and B seasons delivered to each eligible processor for each calendar
year from 2009 through 2019.
(2) Drop from consideration the calendar year in which the
processor received the least amount of legal landings. If a processor
had one or more years with zero processing of Pacific cod legal
landings, drop one of those years.
(3) Sum the Pacific cod legal landings of the highest 10 years for
each eligible processor. This yields the QS units for each processor.
(4) Divide the QS units for each eligible processor by the sum
([Sigma]) of all QS units for all processors based on the PCTC official
record as presented in the following equation:
Processor's QS units/[Sigma] all processor QS units x 100 =
Percentage of the total processor QS allocation for that processor. The
result (quotient) of this equation is the percentage of the total
processors' portion of PCTC Program allocation (22.5 percent of the A
and B season DFA) that a QS holder could designate to a cooperative
each year.
Table 2--PCTC Program Initial QS Pool in Units
------------------------------------------------------------------------
PCTC Program initial QS pool
Species in units
------------------------------------------------------------------------
Pacific cod (Holders of LLP Licenses with [Sigma] highest 10 years of
no transferable AI endorsement). BSAI Pacific cod catch
history in metric tons in
the PCTC official record as
of December 31, 2022 for
LLP license holders.
Pacific cod (Holders of LLP licenses with [Sigma] highest 15 years of
transferable AI endorsements). BSAI Pacific cod catch
history in metric tons in
the PCTC official record as
of December 31, 2022 for
holders of LLP licenses
with transferable AI
endorsements.
Pacific cod (All processors).............. [Sigma] highest 10 years
BSAI Pacific cod processing
history in metric tons in
the PCTC official record as
of December 31, 2022 for
that BSAI Pacific cod for
eligible processors.
------------------------------------------------------------------------
G. PSC Limits in PCTC Program
The Council's experience with rationalization programs has shown
that, as the race for fish ends, fleets can make operational choices
that promote reductions in PSC. Reducing PSC is an important benefit of
the Program and reflects a substantial amount of public testimony
highlighting the importance of minimizing bycatch to the extent
practicable in this rationalization program consistent with the
Council's purpose and need statement and National Standard 9.
PCTC Program cooperatives would annually be apportioned halibut and
crab PSC limits based on the percentage of total BSAI Pacific cod CQ
allocated to their cooperative (derived from both harvester and
processor allocations of QS). NMFS would monitor PSC use at the sector
level and cooperatives would be responsible for managing PSC limits at
the cooperative level. Cooperatives would be prohibited from fishing
under the Program if a halibut PSC limit is reached for the cooperative
or from fishing in a crab bycatch limitation zone if a crab PSC limit
is reached in that relevant area. PSC limits may be transferred between
cooperatives to cover any overages or to allow a cooperative to
continue harvesting Pacific cod CQ.
Halibut PSC
Annually, the Council recommends to NMFS an apportionment of the
total halibut PSC allowances for the BSAI trawl limited access sector.
The BSAI trawl limited access sector is composed of the trawl CV sector
and the AFA C/P sector. The specific percentage of the total halibut
PSC limit assigned to the trawl limited access sector may change
annually based on the Council's recommendation. Each year after
apportioning the halibut PSC limit to the trawl CV sector for the A and
B season, NMFS will apply a fixed percentage reduction to that PSC
limit. In the first year of the program, NMFS will apply a 12.5 percent
reduction, and in the second year and each year thereafter, NMFS will
apply a 25 percent reduction (see section 2.10.3.1).
Because this halibut PSC reduction is limited to the PCTC Program,
it would apply only to the halibut PSC apportionment for the A and B
season Pacific cod trawl CV sector. The recommended reduction to
halibut PSC limits under the Program would be calculated annually and
published in the annual harvest specifications after the Council
recommends and NMFS approves the BSAI trawl limited access sector's PSC
limit apportionments to fishery categories.
Under the Program and this proposed rule, NMFS would apportion
halibut PSC limits assigned to the BSAI trawl limited access sector
Pacific cod fishery between the trawl CV and AFA C/P sectors.
Specifically, the halibut PSC limit would be divided between the trawl
CV and AFA C/P sectors based on historical use during the qualifying
years, with 98 percent apportioned to trawl CVs and 2 percent
apportioned to AFA C/Ps. NMFS would further apportion the halibut PSC
for the trawl CV sector between the PCTC Program (A and B seasons) and
the trawl CV Pacific cod C season. The C season apportionments would be
established before applying PSC limit reductions described above. Of
the halibut PSC limit apportioned to the trawl CV sector, 95 percent
would be available for the PCTC Program in the A and B seasons with 5
percent reserved for the C season. Any amount of the PCTC Program PSC
limit remaining after the B season would be reallocated to the trawl CV
limited access fishery in the C season.
Currently, 50 CFR 679.21(b)(2) and (e)(5) authorize NMFS, based on
Council recommendations, to establish seasonal apportionments of
halibut and crab PSC limits for the BSAI trawl limited access sector
fishery categories to maximize the ability of the fleet to harvest the
available groundfish TAC and to minimize PSC mortality to the extent
practicable. The factors considered annually are (1) seasonal
distribution of prohibited species, (2) seasonal distribution of target
groundfish species relative to prohibited species distribution, (3) PSC
needs on a
[[Page 8601]]
seasonal basis relevant to prohibited species biomass and expected
catches of target groundfish species, (4) expected variations in PSC
rates throughout the year, (5) expected changes in directed groundfish
fishing seasons, (6) expected start of fishing effort, and (7) economic
effects of establishing seasonal PSC apportionments on segments of the
target groundfish industry. Based on these criteria, the Council
recommends, and NMFS annually publishes the proposed seasonal PSC limit
apportionments to maximize harvest among fisheries and seasons while
minimizing PSC mortality.
The halibut PSC limit for the BSAI trawl limited access sector is
established at 745 mt (Sec. 679.21(b)(1)). The BSAI trawl limited
access sector halibut PSC limit is further divided by fishery
categories during the annual specifications process, with 391 mt (52.5
percent) of the sector limit designated for use in the BSAI Pacific cod
fishery in 2019. The halibut PSC limit for the BSAI trawl limited
access sector is an annual limit that is currently not apportioned by
season.
The following example using 2019 halibut PSC limits illustrates how
the PSC reduction under the PCTC Program would work once fully
implemented. The total 2019 BSAI trawl limited access sector halibut
PSC limit apportionment to the Pacific cod fishery category was 391 mt.
Had the Program been in place, 98 percent of that total would have been
apportioned to the trawl CV Pacific cod sector (383 mt) while the
remaining 2 percent would have been apportioned to the AFA C/P sector
(9 mt). The trawl CV halibut PSC limit portion (383 mt) would have been
further apportioned between the rationalized A and B seasons at 95
percent (364 mt) and the non-rationalized C season at 5 percent (19
mt). Finally, the halibut PSC limit for the rationalized A and B
seasons would have been reduced by 25 percent to 273 mt, resulting in a
halibut PSC limit savings of 91 mt. Any amount of the PCTC Program
halibut PSC limit remaining after the B season would have been rolled
over to the C season trawl CV limited access fishery but future savings
in halibut PSC that is achieved by not allocating 25 percent of the PSC
limit apportioned to the trawl Pacific cod sector in the A and B season
would not be used or reallocated for use in other fisheries.
Crab PSC
The Council recommended, and NMFS proposes, a 35 percent reduction
in crab PSC limits for PCTC Program trawl CVs during the A and B
season. For the crab PSC limits, the 35 percent reduction in PSC limits
for the PCTC Program would be effective immediately when the Program is
implemented (no phase-in). The annual crab PSC limits available to the
BSAI trawl limited access sector Pacific cod fishery category would be
apportioned between the trawl CV sector and the AFA C/P sector based on
the proportion of BSAI Pacific cod allocated to the two sectors: 90.6
percent to BSAI trawl CVs and 9.4 percent to AFA C/Ps.
Crab PSC limits include red king crab (Zone 1), C. opilio (COBLZ),
and C. bairdi (Zone 1 and Zone 2), are specified annually based on
abundance and spawning biomass and are established by regulation for
the BSAI trawl limited access sector, which is divided between the
trawl CV and the AFA C/P sectors (Sec. 679.21(e)(3)(iv)). Using the
2019 crab PSC limits as a reference point combined with the recent
decrease in abundance and biomass estimates, we can calculate that the
proposed 35 percent reduction in crab PSC limits in 2022 would have
resulted in an 80 percent reduction for red king crab (Zone 1), a 69
percent reduction for C. opilio (COBLZ), and a 48 percent reduction for
C. bairdi (Zone 1 and Zone 2).
Crab PSC limits would be based on the proportion of BSAI Pacific
cod allocated to the trawl CV sector (90.6 percent) and the AFA C/P
sector (9.4 percent). Of the crab PSC limit apportioned to the trawl CV
sector, 95 percent would be available for the PCTC Program (A and B
seasons) and 5 percent would be reserved for the C season. As with
halibut PSC, any amount of the PCTC Program PSC limit remaining after
the B season would be reallocated to the C season trawl CV limited
access fishery.
The following example using 2019 crab PSC limits illustrates how
the PSC reduction would work once fully implemented. The 2019 BSAI
trawl limited access sector red king crab (zone 1) PSC limit
apportionment to Pacific cod fishery category was 2,954 animals, which
would result in 2,676 animals apportioned to the BSAI trawl CVs and 278
animals apportioned to the AFA C/Ps. Had the Program been in place, the
BSAI trawl CV crab PSC limit would have been further apportioned
between the rationalized A and B seasons at 95 percent and the non-
rationalized C season at 5 percent. Thus, 2,542 animals would have been
apportioned to the rationalized A and B seasons and 134 animals would
have been apportioned to the C season. Finally, the crab PSC limit for
the rationalized A and B seasons would have been reduced by 35 percent,
resulting in a limit of 1,652 animals, which would have been a savings
of 890 animals. Any amount of the PCTC Program crab PSC limit remaining
after the B season would be rolled over to the C season trawl CV
limited access fishery, but future reductions in crab PSC would not be
allocated and therefore would not be available for use or reallocation
for use in other fisheries.
III. Application Process
A. Application for PCTC QS
A person would be required to submit an Application for PCTC
Program QS in order to receive an initial allocation of PCTC QS. NMFS
would require an application to ensure that QS is assigned to the
appropriate person(s) and to provide a process for resolving claims of
legal landings that are contrary to the official record. Once a person
submits an Application for PCTC Program QS that is approved by NMFS,
that person would not need to resubmit an application for QS in future
years.
A completed Application for PCTC Program QS must be received by
NMFS no later than 1700 hours AKST 30 days after the effective date of
the final rule or, if sent by U.S. mail, postmarked by that time.
Objective written evidence of timely application will be considered
proof of a timely application.
NMFS will mail an application package to all potentially eligible
LLP license holders, AI endorsement holders, and processors based on
the address on record at the time the application period opens upon
effectiveness of the final rule. This package would include a letter
informing potentially eligible LLP license holders and processors
whether NMFS has determined they are eligible to receive QS, and if so,
the amount of qualifying catch history calculated by NMFS based on the
official record. Applications will be available on the Alaska Region
website and interested persons could also contact NMFS to request an
application package. An application could be submitted electronically
or by mail.
Briefly, the Application for PCTC Program QS would need to contain
the following elements:
<bullet> Identification and contact information for the applicant;
<bullet> LLP licenses held by the applicant;
<bullet> FFP or FPP held by the applicant;
<bullet> Any other information required on the application; and
<bullet> The applicant's signature and certification. If the
application is completed by a third party on behalf of the potential QS
recipient, authorization
[[Page 8602]]
for that person to act on behalf of the potential QS recipient.
B. Ninety Day Transfer Window for Non-Exempt AFA LLP holders
For LLP licenses associated with AFA non-exempt vessels, within 90
days of initial issuance of QS, the owner of the LLP license may
transfer QS to another LLP license associated with an AFA non-exempt
vessel. These QS transfers are subject to the QS ownership cap further
described in section VII.B of this proposed rule. This provision allows
LLP license holders that engaged in AFA sideboard harvesting agreements
during the qualifying period to transfer resulting QS back to the
originating LLP license.
The transferor and the transferee must submit to NMFS a letter as
evidence of their agreement to transfer the QS in this one-time
opportunity. In the letter, they must explain how much QS would be
transferred and to which LLP license or licenses.
If only one party submits evidence of an agreement, the QS would
remain with the LLP license to which it was initially assigned.
C. Application Review and Appeals
Persons applying for QS will state in their application whether or
not they agree with NMFS's calculation of catch and processing history
from the official record. If they disagree, they can submit supporting
documentation regarding their catch history along with their
application for QS. If any applicant disagrees with NMFS's initial
calculations and provides documentation to support claims of catch
history that are inconsistent with the official record, NMFS would
determine whether such documentation is sufficient to amend the
official record. If not, NMFS would inform the applicant that the
submitted documentation was insufficient and provide the applicant with
a 30-day evidentiary period to further support their claims. After the
close of the 30-day evidentiary period, NMFS would make its final
decision about the official record and issue an initial administrative
determinations (IAD) to the applicant. IADs would include all the
information described below. Applicants who disagree with the IAD may
appeal NMFS's decision through the NOAA National Appeals Office
according to the procedures found at 50 CFR 679.43.
NMFS's IAD would indicate the deficiencies and discrepancies in the
application or revised application, including any deficiencies in the
information or evidence submitted to support an applicant's claims
challenging the official record. NMFS's IAD would indicate which claims
could not be approved based on the available information or evidence
and provide information on how an applicant could appeal an IAD. An
applicant who appeals an IAD would not receive any QS based on
contested landings data unless and until the appeal was resolved in the
applicant's favor. Once NMFS has approved an application for PCTC
Program QS in its entirety, NMFS would assign QS units to an
applicant's LLP license or issue a processor a PCTC Program QS permit
with a specified number of QS units.
PCTC Program QS would be issued to the person identified in an
approved application for QS. Once PCTC Program QS is issued, the QS
units would remain attached to the associated LLP license or
processor's PCTC Program QS permit in most circumstances and could not
be severed or otherwise be transferred independently. There are several
limited exceptions to non-severability: (1) QS attached to LLP licenses
with transferable AI endorsements could be transferred along with the
endorsement to another LLP license that meets the criteria for a
transferable AI endorsement; (2) QS could be fully or partially
transferred during the limited 90-day transfer provision described in
section III.B of this proposed rule; (3) if a participant qualifies for
a legacy exemption and receives an initial allocation of QS in excess
of a program ownership cap, that participant's QS could be split during
a transfer to prevent any recipient from exceeding a cap; and (4) QS
could be separated from a processor QS permit in any transfer of
processor-held QS if necessary to prevent any transferee from exceeding
an ownership or use cap.
D. Transferring QS
1. Limits on Transferring QS
As stated above, once QS is assigned to an LLP license, it
generally could not be divided or transferred separately from that LLP
license. For LLP licenses with transferable AI endorsements, after
issuance QS generally could not be divided or separated from the
transferable endorsement. However, there is an exception for both LLP
licenses and processor-held QS permits that were initially issued QS
greater than the ownership cap (i.e. for persons granted a legacy
exemption from the ownership cap). For these QS holders, the amount of
QS over the cap may be severed from the permit (and divided to multiple
buyers) at the time of transfer because the QS caps do not allow a
legacy exemption to extend beyond initial issuance. This provision
would allow the transfer of an LLP license or processor-held QS permit
subject to a legacy exemption without the transferee exceeding a QS
ownership cap. In addition, for QS assigned to a processor holding a
PCTC Program QS permit--even if the transferor does not hold QS in
excess of any cap--QS could be divided or transferred separately from
that processor permit if a sale would otherwise result in the
transferee exceeding an ownership or use cap described in Section VII
of this preamble. NMFS would not approve transfers of an LLP license
with PCTC QS or a processor-held QS permit if the transfer would cause
a person to exceed the 5 percent harvester QS ownership cap or the 20
percent processor QS ownership cap.
If a QS holder has a legacy exemption from the QS ownership cap,
NMFS would not approve any QS permit transfers to that person unless
and until that person's holdings of QS are reduced to an amount below
the QS holdings cap.
2. Methods for Transferring QS
Any transfer of QS would require approval by NMFS to properly track
ownership and use cap accounting. For harvesters, QS could be
transferred with an LLP license or a transferable AI endorsement to
another person through the existing LLP transfer provisions described
in regulations at 50 CFR 679.4(k)(7).
3. Transferring PCTC Program QS
In order to transfer PCTC QS, a QS holder would submit to NMFS an
application to transfer an LLP license or an application to transfer a
processor QS permit. NMFS would require that the application include
any additional information needed for the transfer of QS, including the
sale price of QS. Applications to transfer an LLP license with PCTC QS,
a transferable AI endorsement with QS, or a processor-held PCTC Program
QS permit could be submitted electronically (see proposed regulatory
text at Sec. 679.130 for detailed information). Transfer forms would
be posted on the NMFS Alaska Region website.
B. CQ Transfers
Under this Program, a cooperative could transfer all or part of its
CQ to another cooperative for harvest subject to the limitations
imposed by the ownership and use caps described in Section VII of this
preamble and the proposed regulations. Transfer provisions would
provide flexibility for
[[Page 8603]]
cooperatives to trade Pacific cod for harvest or PSC to support the
PCTC program cooperative fishing. The ability to trade PSC allows
cooperatives to account for unforeseen circumstances, but the incentive
to avoid hitting a cooperative PSC limit remains because of the cost of
acquiring PSC from another cooperative.
To effectuate an inter-cooperative transfer, a designated
representative of each cooperative would need to agree to and complete
a CQ transfer application, which would be available on eFish or on the
NMFS Alaska Region website. A transfer of CQ would not be effective
until approved by NMFS. If the cooperative attempting to acquire CQ has
reached any relevant use caps, NMFS would deny the transfer
application.
C. Cooperative Reports
Under the PCTC Program, cooperatives would be asked to provide
voluntary annual reports to the Council. Consistent with other
cooperative programs developed by the Council, these reports would
include specific information on the structure, function, and operation
of the cooperatives.
Each year, the Council would receive reports outlining the
cooperatives' performance at one of its regularly scheduled meetings.
These reports would be used by the Council to ensure the program is
functioning as intended and to solicit timely information on issues
that may need to be addressed by the Council. The Council requested
that each cooperative report include information on CQ leasing
activities and any penalties issued, harvest of CQ resulting from
processor-held QS, cooperative membership, cooperative management, and
performance (including implementation of the AI set-aside when in
effect).
IV. PCTC Program Cooperatives
The PCTC Program is a cooperative-based program that requires
participants to join a cooperative each year. Cooperatives would
receive annual CQ derived from the QS held by the harvesters and
processors that join the cooperative. Under the Program, cooperative
members could coordinate their fishing operations, potentially reduce
operational expenses, and increase the quality and revenue from the
product, among other benefits.
A. Requirements for Forming a PCTC Cooperative
Under the PCTC Program, forming a cooperative would require at
least three LLP licenses with PCTC QS. Each cooperative would be
required to associate with at least one licensed processor. There would
be no limitation on the number of LLP licenses that may join a single
cooperative, the number of processors a cooperative could associate
with, nor on the amount of QS a single cooperative could control. There
also would be no limitation on the number of cooperatives that may
form, but each LLP license could be assigned to only one cooperative. A
person may hold multiple LLP licenses, meaning that a single LLP
license holder who holds three or more LLP licenses could form a
cooperative in association with a processor.
Annually, each cooperative would be required to submit an
Application for PCTC Program Cooperative Quota, identifying the CVs
that would be eligible to harvest a portion of that cooperative's CQ.
NMFS would process an application for CQ and, if approved, issue CQ
permits and apportioned amounts of annual crab and halibut PSC limits
to the cooperative. CQ would constitute an exclusive harvest privilege
for the A and B seasons. Under certain conditions, each cooperative
would be required to set aside 12 percent of the A season CQ for
delivery to an Aleutian Islands shoreplant as described further under
the AI Community Protections section below. Cooperative members would
determine their own harvest strategy, including which vessels could
harvest the CQ.
An LLP License holder may change cooperatives and processor
associations may change annually without penalty. However, harvesters
may not change cooperatives and cooperatives may not change their
processor associations during the PCTC Program fishing season. If an
LLP license is sold or transferred during the season, it would remain
with the cooperative until the end of the season. Inter-cooperative
formation would be allowed and an inter-cooperative agreement would be
required to implement the AI set-aside and to allow for efficient
trading of CQ or PSC limits between cooperatives.
The following would be required to form a PCTC Program cooperative
under the proposed Program:
<bullet> A complete Application for PCTC Program CQ must be
submitted by November 1 of the year prior to fishing in the
cooperative;
<bullet> A copy of the business license issued by the state in
which the PCTC cooperative is registered as a business entity;
<bullet> A copy of the articles of incorporation or partnership
agreement of the PCTC Program cooperative;
<bullet> A list of the names of all persons, to the individual
level, holding an ownership interest in the LLP licenses that join the
cooperative and the percentage ownership each person and individual
holds in each LLP license;
<bullet> A list of trawl CVs eligible to harvest a portion of that
cooperative's CQ; and
<bullet> A copy of the cooperative agreement signed by the members
of the PCTC Program cooperative, which must include, at a minimum, the
following terms: (1) QS holders affiliated with processors cannot
participate in price setting negotiations except as permitted by
antitrust law; (2) monitoring provisions, including sideboard
protections in the GOA, sufficient to ensure compliance with the PCTC
Program; and (3) a provision that specifies the obligations of PCTC QS
holders who are members of the cooperative to ensure the full payment
of cost recovery fees that may be due.
Annual CQ would be issued to each cooperative by NMFS based on the
aggregate QS of all cooperative members. NMFS would issue CQ by season
and rely on the cooperatives to ensure the seasonal limits are not
exceeded. Any unused A season CQ may be harvested during the B season.
CQ would not be designated for harvest in a management area (i.e., BS
or AI) but may be harvested from either area. However, NMFS will
annually establish a separate AI DFA to support the calculation of the
AI set-aside. For more information, see Section V of this preamble.
B. Application for Cooperative Quota (CQ)
The PCTC Program would require cooperatives to submit an annual
application for CQ by November 1, which is prior to the start of each
fishing year. NMFS would use these applications to issue CQ permits,
establish annual cooperative accounts for catch accounting purposes,
and identify specific vessels that would be associated with each
cooperative. As with other LAPPs, the information received in this
application would be used to review ownership and control information
for various QS holders to ensure that QS and CQ use caps are not
exceeded (see Section IX of this preamble for additional detail on use
caps).
An application for CQ must be submitted to NMFS no later than
November 1 of the year prior to fishing under the CQ permit to be
considered timely. The cooperative's designated representative would be
responsible for submitting the application for CQ on behalf of the
cooperative members. If the designated representative for the
[[Page 8604]]
cooperative were to fail to submit a timely application for CQ, NMFS
would not issue CQ to the members of the cooperative for that fishing
year. This requirement would require all participants in the Program to
organize as a cooperative prior to the November 1 deadline each year
and submit a complete application to avoid delay of CQ issuance.
The Applications for CQ would be available on the NMFS Alaska
Region website and would be able to be submitted electronically through
eFish or the NMFS Alaska Region website. The information that would be
required in the application is detailed in the proposed regulatory text
at Sec. 679.131. The following list summarizes the information that
would be required:
<bullet> PCTC Program LLP license identification numbers;
<bullet> Processor-held PCTC Program processor QS permit number(s)
and name of the processor that holds that each QS permit;
<bullet> PCTC Program QS ownership documentation;
<bullet> PCTC Program cooperative business address or identifier
identification;
<bullet> Members of the PCTC Program cooperative and the associated
processor;
<bullet> Trawl vessel identification, including the name(s) and
USCG documentation number of vessel(s) eligible to harvest the CQ
issued to the PCTC Program cooperative;
<bullet> Designated representative and cooperative members'
signatures and certification; and
<bullet> Authorization for the designated representative to act on
behalf of the cooperative to complete the application.
C. Issuing PCTC CQ
NMFS would review the CQ applications for accurate information, use
caps, and payment of any fees, including cost recovery. If approved,
NMFS would issue a CQ permit to the cooperatives. Permits would not be
issued until the annual harvest specifications are recommended by the
Council for the upcoming year. Permits would generally be issued in
early January for the upcoming year. The CQ permit would list the
metric tons of Pacific cod by A and B season that the cooperative may
harvest, the metric tons of apportioned halibut PSC, and the number of
each species of crab PSC that the cooperative may use during the
fishing year. The following is a brief description of the process NMFS
would use for calculating the amount of CQ issued to a cooperative.
CQ would be issued for A and B seasons separately, with total CQ
issued to all cooperatives in each season equal to the DFA. The
remaining TAC for the trawl CV sector would be the ICA for Pacific cod
caught as bycatch in other fisheries, such as pollock. The DFA would be
further subdivided into 77.5 percent for the harvester QS pool and 22.5
percent for the processor QS pool. These two QS pools would be
converted into CQ and issued as CQ to cooperatives.
D. Issuing PSC With CQ
The proposed Program would authorize NMFS to issue halibut and crab
PSC to each cooperative based on the proportion of Pacific cod QS, but
NMFS would monitor PSC use at the sector level. PSC used by PCTC
cooperative vessels would be deducted from the PCTC PSC limits when
they are directed fishing for BSAI Pacific cod during the A and B
seasons.
E. Processors in Cooperatives
A person holding a PCTC Program processor QS permit would be
required to associate with a cooperative to realize the economic
benefits associated with their QS. This creates an economic incentive
for the processors that hold QS to either associate with a cooperative
on an annual basis or sell their permit to a processor that would
associate with a cooperative. The CQ derived from processor-held QS
that is not associated with a specific cooperative would be distributed
among all the cooperatives that form in a given year in the same
proportion as the CQ assigned to each cooperative. A cooperative may
associate with a processor that does not hold PCTC QS.
A cooperative cannot designate CQ derived from processor-held QS to
a vessel owned by that processor in a greater amount than the LLP
license associated with the vessel would have brought into the
cooperative absent any processor-held QS. This provision is intended to
ensure that processor-held CQ is not utilized to primarily benefit
vessels in the cooperative that are owned by the processor. The
cooperative would monitor this provision and include reporting on
harvest of CQ derived from processor-held QS in the PCTC Program
cooperative annual report.
F. CQ Transfers
Under this Program, a cooperative could transfer all or part of its
CQ to another cooperative for harvest subject to the limitations
imposed by the ownership and use caps described in Section VII of this
preamble and the proposed regulations. Transfer provisions would
provide flexibility for cooperatives to trade Pacific cod for harvest
or PSC to support the PCTC program cooperative fishing when it cannot
be avoided. The ability to trade PSC allows cooperatives to account for
unforeseen circumstances, but the incentive to avoid hitting a
cooperative PSC limit remains because of the cost of acquiring PSC from
another cooperative.
To effectuate an inter-cooperative transfer, a designated
representative of each cooperative would need to agree to and complete
a CQ transfer application, which would be available on eFish or on the
NMFS Alaska Region website. A transfer of CQ would not be effective
until approved by NMFS. If the cooperative attempting to acquire CQ has
reached any relevant use caps, NMFS would deny the transfer
application.
G. Cooperative Reports
Under the PCTC Program, cooperatives would be asked to provide
voluntary annual reports to the Council. Consistent with other
cooperative programs developed by the Council, these reports would
include specific information on the structure, function, and operation
of the cooperatives.
Each year, the Council would receive reports outlining the
cooperatives' performance at one of its regularly scheduled meetings.
These reports would be used by the Council to ensure the program is
functioning as intended and to solicit timely information on issues
that may need to be addressed by the Council. The Council requested
that each cooperative report include information on CQ leasing
activities and any penalties issued, harvest of CQ resulting from
processor-held QS, cooperative membership, cooperative management, and
performance (including implementation of the AI set-aside when in
effect).
V. AI Community Protections
The Council and NMFS have long supported the development of a local
CV fleet in remote AI communities, and a variety of programs have been
implemented to encourage economic opportunities for local CVs and
processing operations. Some of these programs include: the allocation
of the AI pollock TAC to the Aleut Corporation, an Alaska Native tribal
organization that represents specific community interests in Adak (70
FR 9856; March 1, 2005); allocations of Western AI golden king crab to
the Adak Community Development Corporation under the BSAI Crab
Rationalization Program (70 FR 10174; March 2, 2005); and the
establishment of a Community Quota Entity Program in the AI that
[[Page 8605]]
provides additional fishing opportunities for residents of fishery
dependent communities in the AI and sustains participation in the
halibut and sablefish IFQ fisheries (79 FR 8870; February, 14, 2014).
Adak, the AI community with the most historical participation in the
Pacific cod fishery, also acts as a port of embarkation and
disembarkation for personnel on board C/Ps and CVs harvesting
groundfish in the AI.
The Council previously sought to ensure the continued participation
of remote AI fishing communities in the Pacific cod fishery through
BSAI Amendment 113, which was recommended by the Council and
implemented by NMFS at the start of the 2017 fishing year (81 FR 84434,
November 23, 2016). Amendment 113 set aside a portion of the BSAI
Pacific cod TAC for harvest by catcher vessels delivering their catch
to Aleutian Islands shoreplants. However, the U.S. District Court for
the District of Columbia vacated the rule implementing Amendment 113,
finding the record for that action failed to demonstrate consistency
with the Magnuson-Stevens Act's National Standards (Groundfish Forum v.
Ross, 375 F.Supp.3d 72 (D.D.C. 2019)). As a result of this court
decision, the regulations implementing Amendment 113 are no longer in
effect.
Shortly after the vacatur of Amendment 113, the Council initiated
action to rationalize the BSAI trawl CV Pacific cod fisheries and
included options to meet the objective of supporting sustained
participation by AI communities in the Pacific cod trawl CV fishery.
Under the PCTC Program, cooperatives would be required to collectively
set-aside 12 percent of the A season CQ for delivery to an Aleutian
Island shoreplant (AI CQ set-aside) during years in which an AI
community representative notifies NMFS of their intent to process
Pacific cod.
This provision is different from the set-aside implemented under
Amendment 113 but would achieve a similar goal. NMFS proposes new
regulations to implement the PCTC Program AI community measures, which
will include some provisions that are similar or identical to the
vacated regulations that implemented Amendment 113. For example,
Amendment 113 defined an ``Aleutian Island shoreplant'' to mean a
processing facility that is physically located on land west of 170[deg]
W longitude within the State of Alaska (State), and this same
definition will apply under the PCTC Program. Defining Aleutian Island
shoreplant is necessary because the existing term ``shoreside
processor'' in Sec. 679.2 can include processing vessels that are
moored or otherwise fixed in a location (i.e., stationary floating
processors), but not necessarily located on land. When Amendment 113
was vacated, the associated regulations lost their legal effect, though
they were not removed from the Code of Federal Regulations (CFR). Under
this proposed rule, NMFS proposes to remove regulatory provisions at
Sec. 679.20 that implemented the vacated Amendment 113 and add
provisions applicable to the PCTC Program.
Despite having a small local CV fleet, Adak has a substantial
degree of historical engagement in the AI Pacific cod fishery. Adak is
home to a large shoreplant, and, when operational, the Adak shoreplant
primarily receives and processes Pacific cod harvested in the A season.
In some years, the facility has not received any deliveries of
groundfish, crab, or halibut due to a variety of operational and
logistical challenges, as well as changes in fishery management.
Section 2.8.6 of the Analysis provides additional detail on Adak
shoreplant processing operations (see ADDRESSES).
A. Rationale for Establishing an AI CQ Set-Aside
This proposed rule is intended to provide benefits to harvesters
delivering to an Aleutian Island shoreplant, the shoreplants, and the
communities where those shoreplants are located. This objective is
consistent with long-standing policies recommended by the Council and
regulations established by NMFS to provide harvesting and processing
opportunities for communities in the AI. The Council determined and
NMFS agrees that a harvest set-aside is needed for several reasons.
First, the entire BSAI trawl CV Pacific cod apportionment could be
harvested in the BS which would mean no cod would be delivered to a
community in the AI, jeopardizing the ability of AI communities to
continue participating in the fishery. Second, the Council acknowledged
that the TAC for AI Pacific cod was significantly lower than predicted
in the last few years, meaning that the small vessels operating in and
around the AI could have reduced harvest opportunities in any given
year. Third, the rationalization programs, and particularly the
Amendment 80 Program, allowed an influx of at-sea processing capacity
into the AI Pacific cod fishery (until at-sea processing was limited by
Amendment 120 to the BSAI FMP), exacerbating the need for Council
action to support shoreside delivery of Pacific cod to AI fishing
communities. This proposed rule would strike a balance between
supporting fishery-dependent communities and ensuring that the fishery
sectors have a meaningful opportunity to fully harvest their
allocations by including several measures to prevent AI Pacific cod
from going unharvested. This proposed rule would provide benefits and
stability to fishery-dependent fishing communities in the AI when their
shoreplants are operating and is responsive to lingering effects caused
by changes in management regimes such as rationalization programs.
The Council recognized that neither of the existing Aleutian Island
shoreplants--in Adak and Atka--have participated in the AI Pacific cod
fishery in recent years. However, the Council also recognized that the
measures and CQ set-aside in this proposed rule would minimize the risk
that AI harvesters, processors, and communities would be excluded from
the AI Pacific cod fishery and would maintain opportunities for them to
participate.
This proposed rule would revise regulations to provide additional
incentives for harvesters to deliver AI Pacific cod to an Aleutian
Island shoreplant. The AI Pacific cod TAC is not sufficient to allow
all sectors to prosecute the AI Pacific cod fishery at their historical
levels. Without the management measures included in this proposed rule,
AI harvesters, shoreplants, and fishing communities could be preempted
from the fishery by the offshore sector. The CQ set-aside would be
especially beneficial to AI communities in low TAC years when harvest
could otherwise fully occur in the BS, preventing any cod deliveries in
the AI. The Council emphasized that this proposed rule would not affect
any sector's BSAI Pacific cod allocation or the CDQ Pacific cod
allocation in the AI. Non-CDQ sectors would continue to receive the
allocations established under Amendment 85.
B. Establishing a Set-Aside for AI Processors
The Council recommended, and NMFS proposes establishing a set-aside
provision for AI processors that would require cooperatives to set-
aside an amount of annual CQ for delivery to an Aleutian Island
shoreplant if the city of Adak or Atka files a notice of intent to
process that year. The amount of the AI set-aside would be specified
each year during the annual harvest specifications process. The amount
of the AI set-aside would be equal to the lesser of either the AI
Pacific cod non-CDQ DFA or 12 percent of the combined BSAI PCTC
[[Page 8606]]
Program A season CQ. The AI Pacific cod non-CDQ DFA is further
described below in section V.D of this preamble.
In administering the CQ set-aside, cooperatives would need to
ensure that CVs under 60 feet in length assigned to an LLP license with
a transferable AI endorsement have an opportunity to harvest at least
10 percent of the set-aside. The AI CQ set-aside would be in effect
during the A and B seasons unless the intent to process is withdrawn by
the AI community. If the intent to process is withdrawn, any remaining
portion of the AI CQ set-aside would be available for cooperatives to
harvest and deliver to any processor. Each year, a representative of
the cooperatives must submit an inter-cooperative agreement to NMFS
that describes (1) how the CQ set-aside would be administered by the
cooperatives, (2) how the cooperatives intend to harvest the set-aside,
and (3) how cooperatives would ensure that CVs less than 60 feet in
length assigned to an LLP license with a transferable AI trawl
endorsement have the opportunity to harvest 10 percent of the AI CQ
set-aside for delivery to an Aleutian Island shoreplant. All
cooperatives would be required to provide the cooperative's plan for
coordinating harvest and delivery of the set-aside to an Aleutian
Island shoreplant in the annual cooperative application, regardless of
whether a cooperative intends to harvest any amount of the CQ set-
aside.
The purpose of the inter-cooperative agreement would be to ensure
annual coordination between the PCTC Program cooperatives and
shoreplants that are operating in the AI and to guarantee that the AI
CQ set-aside is available to be harvested in the AI. This reduces the
management burden on NMFS and relies on the cooperatives to organize
the annual fishing activity.
The 12 percent CQ set-aside is based on historical use by the
Aleutian Island shoreplants. The Council did not recommend an
allocation to the Aleutian Island shoreplants based, in part, on
concerns about whether the plants would be in operation every year and
their ability to lease CQ, which was not the intent of the Council in
providing processing opportunities for the AI communities. A specific
objective is to provide an opportunity for AI cod harvests to support a
shoreplant that could be used in conjunction with other fishery
landings and allocations to benefit AI communities. The Council
determined that this AI CQ set-aside option best met their objective to
support sustained AI community participation in the Pacific cod trawl
CV fishery. The performance of this set-aside program will be evaluated
in the periodic program reviews.
The Council also noted that Aleutian Island shoreplants have a
different history in the fishery than the non-Aleutian Island
shoreplants, and, therefore, a different management structure is
appropriate. Because there is currently no Aleutian Island shoreplant
with an active FPP, no entity in the AI would be eligible for
processor-issued QS. Unlike with the BS processors, QS allocations to
AI processors would not work well based on the intermittent and
impermanent operation of the Aleutian Island shoreplants. For this
reason, the PCTC Program would provide benefits to Aleutian Island
shoreplants through an AI CQ set-aside rather than by allocating QS to
AI processors.
C. Intent To Process and Eligibility for AI Set-Aside
This proposed rule would require annual notification of intent to
process PCTC Program Pacific cod in the upcoming fishing year by a
representative of the City of Adak or the City of Atka. A signed letter
or memorandum would serve as the official notification of intent. This
proposed rule would require that the official notification of intent be
submitted to the NMFS Regional Administrator no later than October 15
of the year prior to fishing. Email submission of an electronic copy of
the official notification of intent by October 15 would provide NMFS
inseason management with the timely information it needs to manage the
upcoming fisheries and notify the cooperatives that the AI set-aside is
in effect for the upcoming year.
A city's notification of intent to process PCTC Program Pacific cod
would be required to contain the following information: date, name of
city, a statement of intent to process AI Pacific cod, statement of
calendar year during which the city intends to process AI Pacific cod,
and the contact information for the city representative where the
shoreplant is intending to process AI Pacific cod. If no notice of
intent to process is submitted, cooperatives would not be required to
set aside CQ for Aleutian Island shoreplant delivery.
On or before November 30, the Regional Administrator would notify
the representative of the City of Adak or the City of Atka confirming
receipt of their official notification of intent to process PCTC
Program Pacific cod. Shortly after receipt of an official notification
of intent to process PCTC Program Pacific cod, NMFS would announce
through notice in the Federal Register whether the AI set-aside will be
in effect for the upcoming fishing year.
Even if an AI community is uncertain at the time the notice of
intent is due as to whether an Aleutian Island shoreplant will be
operational, there would be no penalty to the AI community or
shoreplant for stating their intention to process but then later
withdrawing that notice of intent. An AI city would be allowed to
withdraw their notice of intent at any time after submitting it to
NMFS.
NMFS would monitor the implementation of the set-aside throughout
the A and B seasons. NMFS would consider the number and frequency of
deliveries to Aleutian Island shoreside processors as well as the
season timing and remaining CQ to be harvested. As soon as practicable,
if the Regional Administrator determines that Aleutian Island
shoreplants authorized under the PCTC Program will not process the
entire AI set-aside, the Regional Administrator could remove the
delivery requirement for some or all of the projected unused AI CQ set-
aside. The unused portion of the AI CQ set-aside would be made
available to PCTC cooperatives in proportion to the amount of CQ that
each PCTC cooperative received in the initial allocation of CQ for that
calendar year by inseason notification published in the Federal
Register.
If Adak and/or Atka withdraws its notice of intent to operate
during the A or B season, any remaining portion of the AI CQ set-aside
would be released to the cooperatives for delivery to any shoreside
processor or an eligible C/P with a Pacific cod mothership endorsement.
D. AI DFA
The Council recommended, and NMFS proposes that the amount of the
CQ set-aside for delivery to an Aleutian Island shoreplant would be
equal to the lesser of either the AI Pacific cod non-CDQ DFA or 12
percent of the A season CQ and would be in effect during the A and B
seasons. The Council and NMFS annually establish separate OFLs, ABCs,
and TACs, for the AI and BS subareas; however, the non-CDQ sector
allocations (including the PCTC Program allocations) remain BSAI-wide
allocations. When this CQ AI set-aside is equal to the AI DFA, directed
fishing for Pacific cod in the AI may be conducted only by PCTC Program
vessels that deliver their catch of AI Pacific cod to Aleutian Island
shoreplants. However, if the AI DFA is greater than the AI CQ set-aside
(and thus the set-aside is equal to 12 percent
[[Page 8607]]
of the A season CQ), the difference between the AI DFA and the AI CQ
set-aside may be available for directed fishing by all non-CDQ fishery
sectors with sufficient A season allocations and may be processed by
any eligible processor.
This proposed rule would require that NMFS annually specify an ICA
and a DFA derived from the Aleutian Islands non-CDQ TAC. Each year,
during the annual harvest specifications process described at Sec.
679.20(c), NMFS would specify an amount of AI Pacific cod that NMFS
estimates will be taken as incidental catch when directed fishing for
non-CDQ groundfish other than Pacific cod in the AI subarea. This
amount would be the AI ICA and would be deducted from the AI non-CDQ
TAC. The amount of the AI non-CDQ TAC remaining after subtraction of
the AI ICA would be the AI DFA.
NMFS would specify the AI ICA and DFA so that NMFS could clearly
establish amount of AI CQ set-aside. It would also aid the public in
knowing how much of the AI non-CDQ TAC is available for directed
fishing prior to the start of fishing to aid in the planning of fishery
operations.
The amount of the AI ICA may vary from year to year, and in future
years, NMFS would specify the AI ICA in the annual harvest
specifications based on recent and anticipated incidental catch of AI
Pacific cod in other AI non-CDQ directed groundfish fisheries.
VI. BSAI Pacific Cod CV C Season Fishery
A. Management of the Limited Access Fishery
As stated above, the PCTC Program would allocate only A and B
season trawl CV sector apportionments to cooperatives as CQ. The C
season apportionment--which is 15 percent of the total annual
allocation to the BSAI Pacific cod trawl CV sector--would remain a
limited access fishery open to all trawl CVs with LLP license
endorsements to harvest Pacific cod in the BS and/or AI with trawl
gear. The C season limited access fishery would be managed as it is
under status quo conditions, including management of incidental catches
of Pacific cod in other directed fisheries. This means that, as under
status quo conditions, any trawl CV with a Pacific cod endorsement and
BS and/or AI area endorsements is eligible to fish in the C season
until the TAC is reached.
B. ITAC and PSC Assigned to the Limited Access Fishery
Although directed fishing for Pacific cod in the C season (June to
November) is an important part of the annual fishing plan for some
trawl CVs, most of the trawl CV C season catch is incidental to other
directed fishing. In August, before directed fishing opens on September
1 for the hook-and-line and pot sectors, NMFS estimates any BSAI trawl
CV C season allocation would be available for reallocation to other
sectors. In some years, it is clear that a portion of the trawl CV TAC
will be available to reallocate, and NMFS may effectuate a reallocation
in late September or October. In other years, it is less clear whether
there will be any surplus TAC, and NMFS waits until after directed
fishing for pollock and Pacific cod by the trawl CV sector closes. In
that circumstance, reallocations would occur in November or December.
When the BS and AI Pacific cod TACs are higher, trawl CV C season
Pacific cod may go unused and can be reallocated to other sectors. In
some years, other trawl CV fisheries may be done for the year by
October and would not be considered for Pacific cod reallocations.
To help ensure efficient allocation management, NMFS may rollover
any unused portion of a seasonal apportionment from any non-CDQ fishery
sector (except the jig sector) to that sector's next season during the
current fishing year (Sec. 679.20(a)(7)(iv)(B) and (C)).
Under the PCTC Program, the cooperatives would be granted harvest
privileges in the A and B seasons of the BSAI Pacific cod fishery.
Those harvest privileges would alter the reallocation structure from
the trawl CV sector prior to the C season since roll-overs of unused
PCTC CQ to other sectors would not occur until the close of the annual
PCTC fishing year (the end of the B season). This proposed rule would
establish a separate C season halibut and crab PSC apportionment of
five percent before reducing the A and B season PSC limits as described
above.
VII. Ownership and Use Caps
A. LAPPs and Use Caps
Section 303A(c)(5)(D) of the Magnuson-Stevens Act requires the
Council to ensure that Program participants do not acquire an excessive
share of the total limited access privileges in the program by (1)
Establishing a maximum share, expressed as a percentage of the total
limited access privileges, that a limited access privilege holder is
permitted to hold, acquire, or use; and (2) Establishing any other
limitations or measures necessary to prevent an inequitable
concentration of limited access privileges.
The Council considered how the allocation of QS could result in
consolidation in the harvesting and processing sectors, and whether
consolidation could result in any participant acquiring an excessive
share of the limited access privileges. To prevent excessive
consolidation and any issues with excessive shares, the Program would
implement ownership caps to limit the amount of QS a person could hold
and use caps on the amount of CQ they could use. There are four types
of ownership or use caps under the PCTC Program that would apply to
harvesters and processors.
Ownership and use caps are typically implemented to limit
consolidation and prevent a person, vessel, or processing facility from
harvesting, processing, or controlling an excessive amount of the LAPP
shares. Here, the proposed ownership and use caps would limit
consolidation of both harvesters and processors in the BSAI trawl CV
sector, and this is described further in section 2.9.8 of the Analysis.
In development of previous catch share programs, the Council tried to
balance the goals of improving economic efficiency, maintaining
employment opportunities for crew, and providing financially affordable
access opportunities for new participants.
Individual ownership and use caps for both CVs and processors would
be calculated using the ``individual and collective rule.'' The
individual and collective rule means a person is deemed to own or use
QS or CQ in the same percentage that person owns or uses the relevant
license, permit, or vessel. For example, persons that hold 100 percent
of an eligible LLP license or processing permit would be assigned 100
percent of the QS assigned to that LLP license towards their ownership
cap. If they hold 50 percent of the license, they are credited with
holding 50 percent of the QS assigned to that LLP license. The same
logic applies to use caps: if a person owned 50 percent of a trawl CV,
they would be credited with using 50 percent of the CQ harvested by
that CV in calculating the use caps. If a person owns QS equal to the
maximum shares cap, that person would not be allowed to acquire any
additional QS. The proposed ownership and use caps of 5 percent for
harvesters and 20 percent for processors are well below what the
Council would consider an excessive share because such ownership
amounts would preserve
[[Page 8608]]
price competition and would not result in any participant wielding
improper market power. Because the proposed program caps fall well
short of excessive shares, the Council recommended and NMFS proposes
granting legacy exemptions to participants whose initial allocations
based on historical participation would otherwise exceed the ownership
and use caps. The legacy exemptions are intended to preserve stability
in the fishery rather than force longtime participants to divest and
reduce their reliance on the fishery. However, legacy exemptions are
unique to persons receiving initial allocations and could not be
transferred. All future purchasers of QS would be subject to the
ownership and use caps described below.
B. QS Ownership Caps
1. Harvester QS Ownership Cap--5 Percent
With the exception of persons qualifying for the proposed legacy
exemption, no person would be permitted to individually or collectively
own more than 5 percent of the aggregate PCTC Program QS units
initially assigned to eligible LLP licenses. The number of PCTC Program
QS units would be based on the PCTC Program official record. Section II
of this preamble provides a detailed example of how the PCTC Program
initial QS pool would be established. Persons over the cap at the time
of QS issuance would be granted legacy exemptions. However, when QS is
transferred, the person receiving the transfer would be prohibited from
holding or using QS over the 5 percent cap. Processor-issued QS would
not count toward this use cap. This QS ownership cap would limit the
amount of PCTC QS assigned to an LLP license that could be held or
controlled by a single entity.
2. Processor QS Ownership Cap--20 Percent
With the exception of persons qualifying for the proposed legacy
exemption, no person would be permitted to individually or collectively
own more than 20 percent of the aggregate PCTC QS units initially
assigned to PCTC Program QS permits held by eligible processors. This
proposed rule defines processor-issued QS caps that limit the percent
of that class of shares a person could hold or use. Processor-held QS
ownership caps are necessarily higher than harvester-held QS caps
because the total number of eligible processors is significantly less
than the number of harvesters. This cap would be applied at the
aggregate firm level (not the individual facility level). Persons over
the cap at the time of QS issuance would be granted non-transferable
legacy exemptions. The processor QS ownership cap would limit the
amount of processor held PCTC QS that could be held or controlled by a
single entity.
C. Vessel CQ Use Cap--5 Percent
Most of the cooperative programs in the North Pacific include a
vessel harvesting or use cap. A vessel use cap restricts the quota that
can be consolidated and harvested on one vessel during the year.
The Program would include a 5 percent vessel use cap on PCTC
Program harvesting vessels. With the exception of persons qualifying
under the proposed legacy exemption, no vessel would be permitted to
harvest more than 5 percent of the annual PCTC CQ issued in the
fishery. Vessels over the cap at the time of QS issuance would be
granted legacy exemptions. The legacy exemption would apply to the
vessel designated on an LLP license that yields more than 5 percent of
the annual Pacific cod CQ at the time of initial allocation. This
legacy exemption is not transferable if the LLP license is transferred
to a new owner. The vessel use cap would limit the amount of PCTC CQ
that could be harvested by a single vessel.
D. Processor CQ Use Cap--20 Percent
A processor's CQ use cap would protect against excessive
consolidation of processing activity by limiting a person (i.e. company
or firm) from processing more than 20 percent of the annual PCTC CQ,
with the exception of persons qualifying under the proposed legacy
exemption. The processor CQ use cap would be calculated based on use of
all CQ issued under the PCTC Program and not just QS initially issued
to processors. This would ensure that a processing company would be
limited to processing a specific percentage of the PCTC Program
allocation. If the cap was set at the facility level, as was considered
by the Council, there would have been no processing limit if a firm
operated enough plants.
Under this proposed rule, no person may process more than 20
percent of the PCTC CQ using the individual and collective rule. A
person over the cap at the time of QS issuance would be granted a non-
transferable legacy exemption. The processor CQ use cap would limit the
amount of PCTC CQ that could be processed by a single person.
E. Transfer Limitations
1. QS Transfer Limitations
Under the PCTC Program, LLP license holders that receive QS may
transfer PCTC QS concurrently with the transfer of the LLP license or
AI endorsement to which it is attached. Initially-issued QS is attached
to LLP licenses and QS is non-severable from the LLP license in most
cases. However, for LLP licenses with transferable AI endorsements, QS
is instead non-severable from the AI endorsement and would move with
the AI endorsement if sold to the holder of another LLP license
eligible for the transferable AI endorsement. Transfer of an LLP
license or AI endorsement results in the transfer of any PCTC Program
eligibility and QS associated with the LLP license or transferable AI
endorsement. NMFS would not approve transfers of LLP licenses or AI
endorsements if the transfer would cause a person to exceed any
ownership or use caps. If an LLP license holder qualifies for a legacy
exemption from the QS ownership or use caps, NMFS would not approve any
transfers of QS to that person unless and until that person's holdings
of aggregate PCTC QS are reduced to an amount below the cap.
To transfer an LLP license or an AI endorsement with PCTC Program
QS, the LLP license holder must fill out an application for the
transfer of an LLP groundfish or crab license, or for the transfer of
an AI endorsement. In the application, the transferor must specify the
amount of QS to be transferred (generally all QS attached to the
license) the transferee, and the price for the QS transfer. As stated
above, NMFS will consider any ownership or use cap implications in
reviewing transfer applications. In addition, the QS price will be used
in aggregate during program reviews.
For processor-held QS, the QS also is non-severable from the permit
unless the transfer would cause a transferee to exceed any holding or
use caps. If a processor qualifies for a legacy exemption from the QS
holding or use caps, NMFS would not approve any PCTC Program QS permit
transfers to that person unless and until that person's holdings of
aggregate PCTC QS are reduced to an amount below the QS use cap. A PCTC
QS permit issued with a legacy exemption with an amount of PCTC QS
above the QS ownership cap may be transferred, and any QS above the
ownership cap would be severed from the PCTC QS permit at the time of
transfer. Any PCTC QS severed from a PCTC QS permit at the time of
transfer may be transferred to another eligible processor permit or
used to create a new
[[Page 8609]]
PCTC QS permit to be issued to an eligible shoreside processor that
holds an FPP. If a processor allows their FPP to expire, they would no
longer be eligible to use their QS, but they could still transfer their
QS permit.
To transfer QS held by a processor, the processor must fill out an
application to transfer QS. In the application, the transferee must
specify the amount of QS to be transferred (generally all QS on the
permit), which processors are receiving it, and the price for the QS
transfer. NMFS will consider whether a transfer implicates any
ownership or use caps in reviewing applications. In addition, the QS
price will be used in aggregate during program reviews.
2. CQ Transfer Limitations
In addition to permanent transfers of QS, CQ may also be
transferred during the fishing season. Annual CQ and associated PSC are
transferable between cooperatives through eFish, which automatically
reviews transfers and approves them if they remain below specified use
caps. Transfers of CQ would be for a single year's annual allocation.
The underlying QS remains with the LLP license.
This proposed rule would allow post-delivery transfers of CQ, but
they must be completed prior to August 1, after the close of the B
season. The intent of this provision is to improve cooperative
flexibility, reduce potential violations from overages, reduce
enforcement costs, and allow more complete harvests of each
cooperative's allocation. At the end of the fishing season, remaining
CQ may be consolidated into fewer cooperatives (and for harvest by
fewer vessels) due to the requirement that a vessel may not begin a
fishing trip without unharvested CQ. Allocations will likely be
consolidated in one or two cooperatives with harvesters in those
cooperatives making ``sweep up'' trips to complete the season's
harvests. Although consolidation of allocations in one or two
cooperatives may help avoid overages, it is anticipated that
unintentional small overages could still occur.
Additional PCTC Program Provisions
A. Sideboard Limits in the PCTC Program
Sideboard limits are restrictions placed on holders of quota share
in rationalized fisheries that prevent them from taking advantage of
the benefits of consolidation to expand their operations into other
fisheries. PCTC Program sideboard limits would be intended to prevent
holders of QS from expanding their fishing effort in GOA fisheries.
Sideboard limits would allow cooperative members to catch up to the
historical percentage of species they harvested in non-rationalized GOA
groundfish fisheries. Sideboard limits are not an allocation. Rather,
the sideboard is a limit on the catch of species that are not allocated
as QS. The PCTC Program is designed to provide certain economic
advantages to participants, which could be used to increase their
participation in other fisheries and adversely affect GOA fishery
participants by increasing competition in limited access fisheries.
PCTC Program participants would not be guaranteed any sideboard limit
as an amount of catch but instead could participate in the specified
directed fishery until the PCTC program CVs in the aggregate hit the
relevant species sideboard limit or TAC is closed to directed fishing,
whichever happens first. To limit the participation of PCTC Program QS
holders in other fisheries, the Program would add sideboard limits for
GOA non-exempt AFA CVs and AFA LLP licenses and restrict vessels that
are exempt from GOA sideboard limits from leasing CQ within the
cooperative.
The PCTC Program would modify existing GOA sideboard limits and
associated GOA halibut PSC limits for non-exempt AFA vessels and LLP
license holders, close directed fishing where sideboard limits are too
small to support a directed fishery, and require that PCTC Program
cooperatives monitor and report on leasing activity for vessels that
are not subject to GOA sideboards. Most vessels that are exempt from
the GOA sideboard limits would be prohibited from leasing their CQ
under the program as a condition of benefitting from that exemption,
with one exception: AFA GOA-exempt CVs, non-AFA CVs, and CVs assigned
to under 60' LLP licenses with transferable AI endorsements with less
than 300 mt of average annual qualifying catch history would be
permitted to lease their CQ.
Existing GOA Sideboard Limits for Non-Exempt AFA CVs and LLP Licenses
In the GOA, AFA CVs are divided into two categories: vessels
subject to sideboard limits and vessels exempt from sideboard limits.
The limits are currently calculated based on the catch histories of the
non-exempt AFA CVs. Specifically, the sideboard ratio is aggregated
retained catch for each groundfish species or species group from 1995
through 1997 period relative to the sum of the TACs for the species or
species group. Through an inter-cooperative agreement, AFA cooperatives
currently divide the sideboard limits among the cooperatives and set
penalties for exceeding the limits.
AFA CVs that had a historical dependence on GOA fisheries and
limited history in the BSAI pollock fishery benefit from an exemption
to the GOA sideboard limits. The Council recommended an exemption to
GOA sideboard limits for AFA vessels to be managed by the cooperatives
with the understanding that no GOA sideboard-exempt vessel would lease
its BS pollock in a year that it exceeds its GOA average harvest level
from 1995 through 1997. This exception is implemented through the AFA
CV Inter-Cooperative Agreement which binds vessels to this limitation.
The AFA fleet includes two classes of sideboard-exempt CVs: (1)
those exempt from sideboard limits in the BSAI Pacific cod fishery, and
(2) those exempt from sideboard limits in the GOA groundfish fisheries.
NMFS manages the AFA sideboard limits. The agency makes an initial
determination at the beginning of the fishing year regarding the
fisheries in which AFA vessels are likely to participate, based on
historical participation (sideboard ratios), TACs, PSC limits, and
other apportionments and regulations. The sideboard limit to TAC ratio
remains the same year-to-year but is applied to the current year's
initial total allowable catch (ITAC) to determine the yearly sideboard
limit (see Table 2-121 of the Analysis).
To streamline and simplify NMFS's management of AFA groundfish
sideboard limits, regulations currently prohibit directed fishing for
numerous BSAI and GOA species with historically small sideboards (84 FR
2723, February 8, 2019); (50 CFR 679.20(d)(1)(iv)(D) and 50 CFR
680.22(e)(1)(i) and (iii) and Tables 54, 55, and 56 to 50 CFR 679). See
Section 2.9.4 of the Analysis for the 2021 non-exempt AFA CV groundfish
sideboard limits in the GOA and for the non-exempt AFA CVs halibut PSC
limits in the GOA (see ADDRESSES). Section 2.9.4 provides a list of the
GOA groundfish species that are closed to directed fishing by AFA CVs.
However, AFA CVs qualified for the CGOA Rockfish Program with Rockfish
Program QS would not be restricted by AFA sideboard limits for primary
and secondary Rockfish Program species while participating in the
Rockfish Program.
The current GOA halibut PSC limit for non-exempt AFA CVs is
calculated based on the retained groundfish catch by AFA sideboarded
CVs in the shallow-water and deep-water complex
[[Page 8610]]
from 1995 through 1997 relative to total retained catch in the shallow-
water and deep-water complex by all vessels. Under the GOA halibut PSC
limits, fisheries in the applicable complex are closed for the
remainder of a season once NMFS determines that the PSC limit will be
reached. Any unused GOA halibut PSC in one season is added to the next
season. Conversely, if a seasonal apportionment of a trawl halibut PSC
limit is exceeded, the overage is deducted from the apportionment for
the next season during the current fishing year.
Changes to Existing GOA Sideboard Limits
Under the PCTC program, all GOA non-exempt AFA CVs and associated
AFA LLP licenses would be sideboarded in aggregate for all GOA
groundfish fishing activity and for GOA halibut PSC, except for vessels
when participating in the CGOA Rockfish Program, based on their GOA
catch history during the qualifying period. The existing sideboards are
applied to non-exempt AFA vessels as defined at Sec. 679.64(b)(2). The
PCTC Program would modify the calculation of the existing sideboard
limits for these non-exempt AFA CVs, based on the GOA catch history.
LLP licenses associated with non-exempt AFA CVs upon implementation of
the PCTC Program would also be subject to the revised sideboard limits
regardless of which vessel is named on the LLP.
Sideboards are currently calculated for non-exempt AFA CVs based on
the ratio of catch to the TAC during the years 1995-1997. The PCTC
Program modifies the calculation of the sideboard ratios for non-exempt
AFA CVs that would be used in the annual GOA harvest specifications,
looking at the ratio of catch to the TAC in the qualifying years of
2009-2019 (as shown in Table 3).
[GRAPHIC] [TIFF OMITTED] TP09FE23.000
In addition, the ratio used to apportion GOA halibut PSC limits
would be modified and the five seasonal apportionments based on that
sideboard ratio would be reduced to a single aggregate amount.
Providing an aggregate halibut PSC limit would provide greater
flexibility for the AFA vessels and LLPs to assign halibut PSC limits
to those GOA groundfish sideboard fisheries that have the greatest
value. Table 4 shows the new aggregate GOA halibut PSC limit ratio
based on the catch history during the qualifying period 2009-2019 that
would be used instead of the information currently in the GOA harvest
specifications table after the PCTC Program is implemented.
Table 4--New GOA Halibut PSC Limit Ratio Aggregated at the Season and
Complex Level for All AFA Non-Exempt CVs and Associated LLP Licenses
Under the Qualifying Period
------------------------------------------------------------------------
Qualifying
GOA halibut PSC limit period (2009-
2019)
------------------------------------------------------------------------
PSC Limit Ratio........................................ .072
------------------------------------------------------------------------
Additionally, the Council recommended and NMFS proposes to
[[Page 8611]]
close directed fishing to all GOA non-exempt AFA CVs and LLP licenses
for the following species categories: Southeast Outside district of the
Eastern GOA pollock, Western GOA shallow-water flatfish, Central and
Eastern GOA deep-water flatfish, and Eastern GOA Pacific ocean perch.
NMFS will no longer publish AFA Program sideboard limits for these
specific species or species groups in the Federal Register as part of
the annual groundfish harvest specifications but instead will specify
in regulation that directed fishing for these species is closed to non-
exempt AFA CVs.
AFA GOA-exempt CVs, non-AFA CVs, and CVs assigned to under 60 ft
LOA LLP licenses with transferable AI endorsements that receive PCTC
Program QS would not be permitted to lease the CQ generated by their
LLP license as a condition of benefiting from a GOA sideboard
exemption. If the GOA-exempt vessel assigned to the LLP license does
not fish in any GOA fishery, except the CGOA Rockfish Program, during
the calendar year, the BSAI Pacific cod CQ generated by the LLP license
can be leased that calendar year. Cooperatives would be required to
monitor CQ leasing activity by AFA GOA-exempt CVs, and non-AFA CVs, and
CVs assigned to under 60 ft LOA LLP licenses with transferable AI
endorsements and implement a penalty structure for violations.
Cooperatives would report leasing activities and penalties issued in
the voluntary cooperative annual report and in their annual cooperative
application. AFA GOA-exempt CVs, non-AFA CVs, and CVs assigned to under
60 ft LOA LLP licenses with transferable AI endorsements with less than
300 mt of average annual qualifying BSAI Pacific cod history may lease
their BSAI Pacific cod CQ and still benefit from the GOA sideboard
exemption.
Changes to Existing BSAI Sideboard Limits for AFA CVs
The BSAI Pacific cod and halibut PSC sideboard limits for AFA trawl
CVs specified at 679.64(b)(4)(i) and in Table 40 to part 679 would be
removed upon implementation of this Program. The BSAI Pacific cod
sideboard limit would no longer be necessary because BSAI Pacific cod
catch in the A and B seasons would be fully allocated under the PCTC
Program. NMFS proposes removing the halibut PSC sideboard limits for
AFA trawl CVs because the PCTC Program would establish lower PSC limits
for PCTC Program participants. The BSAI crab PSC sideboard limit for
AFA trawl CVs specified at Sec. 679.64(b)(4)(i) and Table 41 to part
679 would remain unchanged by this proposed rule. Table 41 also
establishes crab PSC sideboard limits for the AFA CV and AFA C/Ps, and
the PCTC Program would not change these overall limits.
B. At-Sea Processing Sideboard Limit
The Council recommended and NMFS proposes a sideboard limit on the
amount of CQ that could be delivered by trawl CVs to a C/P designated
on a groundfish LLP license with a BSAI Pacific cod trawl mothership
endorsement. This sideboard limit would be assigned to the LLP license
with a BSAI Pacific cod trawl mothership endorsement that authorizes
the C/P to act as a mothership in the BSAI Pacific cod fishery. The
Council recommended that each eligible C/P acting as a mothership could
process up to the higher of (1) 125 percent of the eligible C/P's
processing history during the qualifying years (with no drop year) or
(2) the history from LLP licenses that are owned (in excess of 75
percent) directly or indirectly by the owner of a C/P LLP license
eligible for the offshore sector of the target non-CDQ BSAI Pacific cod
trawl CV fishery (as of December 31, 2019) and not to exceed 125
percent of the eligible CP's processing history. This at-sea processing
sideboard limit would be permanently attached to the associated LLP
license and would apply to the processing activity of any associated
vessel.
The Council recommended and NMFS proposes to establish an at-sea
processing sideboard limit greater than the historical average to
provide some opportunity for growth relative to the C/Ps historical
annual average, though this limit may allow less offshore processing
than occurred during some of the qualifying years. The 125 percent
limitation was selected as a means to balance the needs of CVs that
want to (or in some cases must) deliver offshore, the historical C/P
platforms, shoreside processors, and the communities dependent on
shoreside landings. The option selected allows two eligible C/Ps acting
as a mothership to process up to 125 percent of their individual
average processing history over the qualifying period but does not
allow the firms to drop a year when calculating the limit. Due to
confidentiality constraints, NMFS cannot publicly release the data used
to calculate the limits, or the annual limits, that will apply to each
of the two qualifying LLP licenses authorizing a C/P to operate as a
mothership in this fishery. Because the amount is a limit and not an
allocation, the PCTC Program does not require that this amount be
delivered to C/Ps, but it provides an upper bound on how much may be
delivered.
This is consistent with the Council's intent under BSAI FMP
Amendment 120 (84 FR 70064, December 20, 2019), where it restricted the
number of C/Ps that are eligible to operate as a mothership receiving
and processing Pacific cod from CVs in the BSAI non-CDQ Pacific cod
directed fishery using trawl gear. Under Amendment 120, the Council and
NMFS issued a BSAI Pacific cod trawl mothership endorsement to two LLP
licenses but did not include a limit on the amount of BSAI Pacific cod
that could be processed because it was not thought that any one
processor could increase their capacity significantly under the LLP
management system. However, under a rationalized, slower paced,
cooperative fishing scenario that is proposed under this Program, the
Council and NMFS determined it would be possible for continued
mothership processing growth beyond historical patterns, so the Council
recommended that a processing limit be established for each LLP listed
in Table 57 to part 679. For more information on processing limits for
the mothership sector, please see section 2.9.5 of the Analysis (see
ADDRESSES).
NMFS would calculate the at-sea processing sideboard limit,
expressed as a percentage of the aggregate PCTC annual CQ that would
apply to each LLP license with a BSAI Pacific cod trawl mothership
endorsement and notify the LLP holder upon issuance of initial
allocations. Each year upon issuance of CQ, this processing sideboard
limit would be calculated for each applicable LLP. This proposed rule
would not change the regulations pertaining to the transfer of LLP
licenses as specified at Sec. 679.4(k)(7) nor the process to change
the designated vessel on an LLP as specified at Sec. 679.4(k)(7)(vii).
Each LLP subject to this at-sea processing sideboard limit would be
prohibited from exceeding the processing limit as specified in proposed
regulations below.
Due to confidentiality requirements, the amount of the processing
limit would not be made public and the LLP holder would be responsible
for coordinating with any PCTC Program cooperative to ensure the
applicable processing limit is not exceeded.
To facilitate accurate accounting of PCTC catch delivered to a
mothership and assign the catch delivered to a mothership in unsorted
codends to the correct management program, NMFS proposes adding a new
paragraph to the maximum retainable amount (MRA)
[[Page 8612]]
regulations at Sec. 679.20. This change will allow NMFS to assign each
codend or ``haul'' delivered to a mothership to the appropriate fishery
management program based on the retained catch composition of the haul.
Any unsorted codend delivered to a mothership during the applicable
PCTC season that is in the Pacific cod target fishery would be
considered PCTC CQ and resulting PSC use will be deducted from the
appropriate cooperative CQ and PSC limits. For any haul that is not in
the Pacific cod target, the catch of Pacific cod would be deducted from
the appropriate seasonal ICA and resulting PSC fishery category as
established in the annual harvest specification process.
C. Cost Recovery
The PCTC Program would be a LAPP established under the provisions
of Section 303A of the Magnuson-Stevens Act. The Magnuson-Stevens Act
requires that NMFS collect fees from limited access privilege holders
to cover the actual costs of management, data collection and analysis,
and enforcement activities associated with LAPPs. Cost recovery fees
may not exceed three percent of the ex-vessel value of the fish
harvested under the LAPP. NMFS would assess a fee on the ex-vessel
value of PCTC Program Pacific cod harvested by cooperatives in the
BSAI. Halibut and crab PSC would not be subject to a cost recovery fee
because PSC cannot be retained for sale and, therefore, does not have
an ex-vessel value.
Collecting fees for the PCTC Program would require determining CQ
ex-vessel value, assessing management costs, billing the appropriate
fee to each cooperative, and ensuring that cooperatives comply with the
fee collection requirements.
NMFS would rely on the existing BSAI Pacific cod Ex-vessel Volume
and Value Report to provide information on the ex-vessel value of
Pacific cod for the PCTC Program. Pacific Cod Ex-Vessel Volume and
Value reports are a component of existing groundfish cost recovery
programs, such as the Amendment 80 Program. A shoreside processor
designated on an FPP, or a mothership designated on an FFP, that
processes landings of either CDQ Pacific cod or BSAI Pacific cod
harvested by a vessel using trawl gear must submit annually to NMFS a
complete Pacific Cod Ex-vessel Volume and Value Report, as described at
paragraph Sec. 679.5(u)(1), for each reporting period for which the
shoreside processor or mothership receives this Pacific cod. Each
shoreside processor that would receive Pacific cod harvested under a
PCTC CQ permit is already required to submit this report to NMFS no
later than November 10 of each year pursuant to Sec. 679.5(u)(1)(iii).
This report would allow NMFS to collect price data from the PCTC
Program season which extends from January through June of each year and
generate a standard ex-vessel price for Pacific cod and determine the
average price paid per pound for all shoreside processors receiving CQ.
NMFS publishes the applicable Pacific cod standard ex-vessel prices and
fee percentage in the Federal Register following the end of the B
season fishery in the year the landings were made, which would provide
cooperatives with information necessary to assess their fee liability.
NMFS would publish the Pacific cod fee percentage in the Federal
Register that would determine the total fee, up to three percent of the
total ex-vessel value of the fishery, required from all cooperatives
based on landings of CQ made in the previous year. The fee percentage
is the total percentage of ex-vessel value due for each pound of CQ
made by a cooperative during the previous year. The amount due to NMFS
is based on the standard ex-vessel value of the CQ debited from all
PCTC Program CQ accounts relative to the actual costs directly related
to the management, enforcement and data collection of the PCTC Program.
NMFS would determine the fee percentage that applies to landings
made in the current calendar year by dividing the total value of
Pacific cod for all cooperatives made during the current year by the
total actual costs during the previous fiscal year. NMFS would capture
the actual cost of managing the fishery through an established
accounting system that allows staff to track labor, travel, and
procurement. Once the actual costs for the previous fiscal year are
identified, that amount is recovered from all CQ holders in the
fishery. If a three-percent fee would recover revenues in excess of
those needed, the percentage will be set at less than three percent.
The fee percentage could not be set at an amount higher than three
percent of ex-vessel value even if the actual costs for the previous
year exceeded three percent of the standard ex-vessel value for the
PCTC Program CQ landings.
NMFS would inform each cooperative of the fee percentage applied to
the current year's landings and the total amount due (fee liability).
NMFS advises cooperatives to inform NMFS if their contact information
has changed. This fee liability letter would be sent to cooperative
representatives after the fee was incurred (typically in the months
following). The fee liability letter would be provided before fees are
due on August 31 of each year. The letter would include a summary
explaining the fee liability determination including the current fee
percentage and details of CQ pounds debited from CQ allocations by
permit, date, and prices.
NMFS would require that all payments be submitted electronically in
U.S. dollars through the NMFS Alaska Region website. Many of the
cooperatives are familiar with, and regularly use, electronic
submissions of various forms under other catch share programs, such as
the AFA Program, and NMFS would extend this common practice to fee
submission for the PCTC Program. Instructions for electronic payment
would be made available on the payment website and through a fee
liability summary letter NMFS would mail to the CQ permit holder.
The cooperative representative would be responsible for paying cost
recovery fees. Failure to pay cost recovery fee liabilities on time
would result in NMFS not approving a cooperative's application for a CQ
permit the following year until full payment of the fee liability is
received by NMFS. This is because a CQ permit may not be issued until
NMFS receives a complete application for CQ, which would include
confirmation of the full payment of any cost recovery fee liability.
Communication with NMFS using the contact information provided in the
fee liability letter would provide ample opportunity for CQ permit
holders to reconcile accounts. However, if the account is not
reconciled and the individual does not pay, NMFS would send an initial
administrative decision (IAD) to the CQ permit holder. The IAD would
state that the CQ permit holder's estimated fee liability due from the
CQ permit holder had not been paid. Any such formal determination may
be appealed. The appeals process is described under 50 CFR 679.43. An
applicant who appeals an IAD would not receive a new CQ permit until
the appeal was resolved in the applicant's favor.
After 30 days, the agency may pursue collection of the unpaid fees
if the formal determination is not appealed and the account remains
unpaid or under-paid. The Regional Administrator may continue to
prohibit issuance of a CQ permit for any subsequent calendar years
until NMFS receives the unpaid fees.
The PCTC Program would follow this proposed cost recovery process
that builds on existing cost recovery processes in other programs. NMFS
would use standard prices derived from
[[Page 8613]]
volume and value reports, which are submitted in early November of each
year, from the calendar year prior to the landings used to calculate
the fee percentage. NMFS would begin tracking PCTC Program management
costs in the calendar year 2023 once the rule is in effect. PCTC
Program landings would be made in the A and B seasons, which extends
from January 20 to June 10.
To illustrate this in an example using the year 2025, the PCTC
Program fishing year that would have landings subject to cost recovery
would end June 10, 2025. NMFS would use standard prices derived from
the volume and value report submitted by November 10, 2024 for landings
made in 2024. Finally, NMFS would use the management costs from July,
2024 through June, 2025 to calculate the 2025 fee percentage. By no
later than July 31, 2025, the Regional Administrator would publish the
standard price and fee percentage in a notice in the Federal Register
and send invoices to cooperatives.
D. Monitoring Provisions
The Council recommended and NMFS proposes requirements for observer
coverage and other monitoring and enforcement provisions under the PCTC
Program to ensure that fleet-wide harvests can be effectively monitored
and that catches remain within allocations. These requirements include
full observer coverage for CVs harvesting PCTC Program CQ (except for
CVs delivering unsorted codends to motherships) and requirements for
communications equipment to facilitate observer data entry and
electronic transmission to NMFS. These monitoring provisions are
designed to maximize the quality of data used to estimate PCTC Program
catch and bycatch, including PSC. Delivered catch would be reported
electronically by shoreside processors through eLandings. Estimates of
at-sea discards and PSC would be derived solely from observer data. All
catch would accumulate against cooperative allocations and other
applicable limits.
Under the North Pacific Observer Program (Observer Program), all
vessels and processors in the groundfish and halibut fisheries off
Alaska are placed into one of two categories: (1) The full observer
coverage category, where vessels and processors obtain observer
coverage by contracting directly with observer providers; and (2) the
partial observer coverage category, where NMFS has the flexibility to
deploy observers when and where they are needed, as described in the
annual deployment plan that is developed by NMFS in consultation with
the Council. NMFS funds observer deployment in the partial observer
coverage category by assessing a 1.65 percent fee on the ex-vessel
value of retained groundfish and halibut from vessels that are not in
the full observer coverage category.
The Council recommended and NMFS proposes that all vessels under
the PCTC Program would be placed in the full coverage category of the
Observer Program. All vessels used to harvest PCTC CQ would be required
to carry at least one observer on board the vessel at all times except
for CV deliveries of unsorted codends to a mothership pursuant to the
exception specified at Sec. 679.51(a)(2).
The owner of a trawl CV in the full observer coverage category
would contract directly with a permitted full coverage observer
provider to procure observer services as described at Sec. 679.51(d).
The owner of a trawl CV in the full observer coverage category would
not be required to log fishing trips in Observer Declare and Deploy
System (ODDS) under Sec. 679.51(a)(1), and landings made by a vessel
in the full observer coverage category would not be subject to the 1.65
percent partial observer coverage fee under Sec. 679.55.
This action would not modify observer coverage requirements for
trawl CVs participating in the BSAI trawl limited access fisheries
during the C season. Regulations at Subpart E to part 679 specifying
observer coverage requirements would continue to apply. The owner of a
trawl CV would continue to be able to request, on an annual basis, that
NMFS place the vessel in the full observer coverage category for all
directed fishing for groundfish using trawl gear in the BSAI in the
following calendar year. Voluntary placement in the full coverage
category would apply to all non-PCTC directed fishing for groundfish
using trawl gear in the specified calendar year.
Additionally, the Council recommended and NMFS proposes that all
vessels used to harvest PCTC CQ would be required to provide equipment
and at-sea data transmission capabilities to facilitate electronic
transmission of observer data to NMFS. Requirements for non-AFA trawl
CVs to install equipment necessary to facilitate at-sea observer data
transmission requirements would not be effective until three years
after the effective date of the final rule implementing the PCTC
Program. This proposed rule also modifies regulations at Sec.
679.51(e)(2)(iii)(A) to explicitly include the electronic transmission
of observer data in the requirement for vessel operators to allow an
observer to use the vessel's existing communications equipment for
confidential entry, transmission, and receipt of work-related messages.
Under this proposed rule, all vessels participating in the PCTC
Program would be required to provide an onboard computer that meets
minimum specifications for use by an observer. Currently, NMFS uses and
installs custom software (ATLAS) on the vessel's computer, and this
software application is used by observers to enter the data they
collect. The ATLAS software contains business rules that perform many
quality control and data validation checks automatically, which
dramatically increases the quality of the preliminary data. After the
observer data are entered into the ATLAS software, it is transmitted to
NMFS.
At-sea transmission of observer data improves data quality. To
accommodate concerns by small vessel operators, the Council determined
and NMFS proposes that, for the first three years after implementation,
the current at-sea observer data transmission requirements would be
maintained, unless the necessary equipment is installed before that
time. Public testimony suggests that most of the vessels that do not
currently have data transmission capability would realize the benefits
from this program and be able to obtain the technology. Though the
installation of equipment to facilitate at-sea data transmission on
non-AFA vessels would not be required until after the first three years
of the Program, this proposed rule clarifies that if the vessel already
has equipment capable of facilitating at-sea data transmission, that
equipment must be made available to the observer for use in
transmitting work-related messages including collected data.
NMFS proposes requiring motherships receiving unsorted codends from
a PCTC Program CV to comply with catch monitoring requirements
specified at Sec. 679.93(c) for Amendment 80 vessels and C/Ps. These
requirements are already applicable to Amendment 80 C/Ps acting as a
mothership and would continue to apply when participating vessels act
as a mothership to process PCTC Program CQ. This proposed rule would
not alter existing observer coverage requirements for trawl CVs
delivering unsorted codends to a mothership in the BSAI. A trawl CV
delivering unsorted codends to a mothership is not required to carry an
observer because the catch is not brought on board the CV and not
available for observer sampling. Rather, the catch is sorted and
sampled by observers aboard the mothership.
Participating motherships would be required to have at least two
observers
[[Page 8614]]
aboard the mothership, at least one of whom would be required to be
endorsed as a lead level 2 observer. More than two observers would be
required to be aboard if the observer workload restriction would
otherwise preclude sampling as required. All PCTC Program catch, except
halibut sorted on deck by vessels participating in the halibut deck
sorting described at Sec. 679.120, would be required to be weighed on
a NMFS-approved scale in compliance with the scale requirements at
Sec. 679.28(b). Each haul would be required to be weighed separately
and all catch made available for sampling by an observer.
NMFS proposes catch monitoring requirements for shoreside
processors receiving deliveries from CVs harvesting PCTC Program
Pacific cod. The Council recommended that all shoreside processors
receiving deliveries from CVs harvesting PCTC Program Pacific cod would
comply with a NMFS certified catch monitoring and control plan (CMCP);
however, NMFS has determined that a CMCP is not necessary to ensure the
accurate accounting of all PCTC landings. Instead, NMFS proposes that
all groundfish landed by CVs described in Sec. 679.51(a)(2) would be
required to be sorted, weighed on a scale approved by the State of
Alaska as described in Sec. 679.28(c), and be made available for
sampling by an observer, NMFS staff, or any individual authorized by
NMFS. Any of these persons must be allowed to test any scale used to
weigh groundfish to determine its accuracy.
E. PCTC Program Review
Under the Magnuson-Stevens Act, a LAPP program review shall be
undertaken five years after implementation, with additional reviews
occurring, at a minimum, every seven years thereafter. A formal review
of the proposed PCTC Program by the Council would take place five years
after the implementation of the program and would help the Council
determine if the program is functioning as intended. The review process
would allow for a full evaluation of the program's successes or
challenges and provide the Council with details on unanticipated
consequences. The Council determined that a formal review process was
essential to the PCTC Program as a key tool to assess whether the PCTC
Program was achieving the goals of the Magnuson-Stevens Act and the
problem statement as identified in the Analysis (see ADDRESSES). This
review and evaluation by the Council would include an assessment of the
program objectives. Specifically, the Council would review whether the
allocation of Pacific cod is fair and equitable given participation in
the fishery, historical investments in and dependence upon the fishery,
and employment in the harvesting and processing sectors. The Council
would also assess performance of the program based on changes in annual
cooperative formation, changes in product value, the number and
distribution of processing facilities, and stability or use of annual
processor associations with harvesting cooperatives. The focus of these
reviews would be the impact of this action on the harvesting and
processing sectors, as well as on fishery dependent communities. The
Council would also assess whether the needs for management and
enforcement, as well as data collection and analysis, are adequately
met. Because the Council would undertake this review as part of routine
work, NMFS is not proposing regulatory changes to implement this review
process.
IX. Examples of Allocations Under the PCTC Program
The following section provides an example of QS allocations, annual
CQ allocations, and PSC limit calculations under the proposed PCTC
Program. For these examples, NMFS has used the 2022 harvest
specifications for groundfish of the BSAI (87 FR 11626, March 2, 2022)
to illustrate how annual TAC would correspond to issued QS, how
portions of annual TAC would be allocated as CQ, and how annual PSC
limits would be established for the cooperatives.
A. PCTC Program QS Pool Example
The first step of PCTC Program implementation would be for NMFS to
estimate the QS pools for both harvesters and processors.
Step 1: Determine the Total Legal Landings for PCTC Program Harvesters
Using the official record, NMFS would sum the best 10 of 11 years
of legal landings for all eligible LLP licenses during the 2009 through
2019 qualifying years for directed harvest of Pacific cod (or best 15
of 16 years from 2004 through 2019 for LLP licenses with transferable
AI endorsements). This estimate may be subject to change if the
official record is adjusted based on information provided through the
QS application process.
Step 2: Determine the Total Deliveries of Legal Landings for PCTC
Program Processors
Using the official record, NMFS would sum the best 10 of 11 years
of deliveries of legal landings for all eligible processors during the
2009 through 2019 qualifying years for directed harvest of Pacific cod.
This estimate may be subject to change if the official record is
adjusted based on information provided through the QS application
process.
Step 3: Establish the Initial PCTC Program QS Pools
NMFS would set the initial QS pool for harvesters and processors
equal to the sum of legal landings assigned to each LLP license or
processor in metric tons as of December 31, 2022, according the process
described in Step 1 and Step 2 above. Each metric ton of legal landings
in NMFS's official record on this date would yield one QS unit.
This example assumes that all potentially eligible persons applied,
NMFS reviewed the applications, no applicant challenged the official
record, and NMFS did not amend the official record. Each year, the
harvester QS pool would correspond to 77.5 percent of the annual A and
B season trawl CV DFA. Processor-held QS would correspond to 22.5
percent of the annual A and B season trawl CV DFA.
Step 4: Assign QS to an LLP License Holder
NMFS would assign QS to an LLP license holder who submits a timely
and complete application within 30 days of the effective date of the
final rule. Because issued QS would be permanently affixed to the LLP
license, except under specific circumstances defined in Section III D,
all qualifying LLP licenses would be reissued with PCTC Program QS.
Step 5: Assign QS to a Processor
NMFS would assign QS to a processor who submits a timely and
complete application by within 30 days of the effective date of the
final rule. The PCTC Program would issue a new PCTC Program QS permit
to eligible processors, and QS would be permanently attached to those
QS permits, except under specific circumstances defined in Section III
D.
B. TAC and CQ Example for the PCTC Program
The annual trawl CV sector allocation is 22.1 percent of the
combined BS subarea and AI subarea non-CDQ Pacific cod TAC. Table 1 in
Section I of this preamble provides sector allocations for Pacific cod.
The 2022 Pacific cod trawl CV sector allocation was 29,655 mt. The
sector allocation is further subdivided between the A season (74
percent), B season (11 percent), and C season (15 percent). As stated
above, the PCTC
[[Page 8615]]
Program allocation would be derived from the A and B season
apportionment of the annual trawl CV sector allocation. Before
allocating A and B season TAC to the PCTC Program as CQ, NMFS would
determine an ICA for each season that would be account for the
incidental catch of Pacific cod in other groundfish fisheries. This ICA
would be deducted from the A and B season trawl CV sector
apportionments, and the remainder would represent the A and B season
DFAs that would ultimately be allocated as CQ. For this example, NMFS
uses an ICA placeholder amount of 1,000 mt for the A season and 500 mt
for the B season. However, these ICAs are only for an example and the
ICA may change each year depending on projected incidental catch needs.
In 2022, if the PCTC Program were in effect, the DFA for the A and B
season--i.e., the allocation of Pacific cod to the PCTC Program--would
have been 20,945 mt in the A season ((29,655 x .74) - 1,000) and 2,762
mt in the B season ((29,655 x .11) - 500), for a total of 23,707 mt.
The C season DFA would have been 4,448 mt (29,655 x .15); there is no
ICA for the C season).
The PCTC Program apportionment would be assigned to PCTC
cooperatives as CQ. The Council recommended and NMFS proposes that 77.5
percent of the annual CQ would be issued to cooperatives proportionate
to the harvester-held QS and 22.5 percent of the annual PCTC Program CQ
would be issued to cooperatives proportionate to the processor-held QS.
Table 5--Final 2022 Sector Allocation and Seasonal Allowances of the BSAI Pacific Cod TAC for the Trawl CV
Sector and the PCTC Program
----------------------------------------------------------------------------------------------------------------
77.5 Percent of
annual PCTC CQ 22.5 Percent of
PCTC program issued to annual CQ issued
Sector Season dates 2022 TAC cooperatives for to cooperatives
apportionment harvester- held for processor-
QS (in mt) held QS (in mt)
----------------------------------------------------------------------------------------------------------------
Trawl CV sector TAC......... .............................. 29,655 ................ ................
A Season ICA................ .............................. 1,000 ................ ................
PCTC Program A Season DFA January 20-April 1............ 20,945 16,232 4,713
((TAC x .74) - A season
ICA).
B season ICA................ .............................. 500 ................ ................
PCTC Program B Season DFA April 1-June 10............... 2,762 2,141 621
((TAC x .11) - B season
ICA).
Limited Access C Season DFA June 10-November 1............ 4,448 ................ ................
(TAC x .15).
----------------------------------------------------------------------------------------------------------------
C. Annual CQ Issuance Example
Per Table 5, in this example the combined A and B season DFA to be
issued as CQ totals 23,707 mt. Of that total, 77.5 percent (18,373 mt)
would represent CQ derived from QS assigned to LLP licenses (harvester-
held QS pool), and 22.5 percent (5,334 mt) would represent CQ derived
from QS held by processors (processor-held QS pool). To illustrate how
CQ would be issued to cooperatives, assume that there are three groups
of LLP licenses that associate with three groups of processors holding
PCTC QS to form three cooperatives. The groups of LLP license holders
hold 30, 4, and 66 percent of the harvester-held QS pool of 18,373 mt,
respectively. The processors hold 8, 41, and 51 percent of the
processor-held QS pool of 5,334 mt, respectively. Harvester Group 1
associates with Processor Group 1 to form Cooperative 1, Harvester
Group 2 associates with Processor Group 2 to form Cooperative 2, and
Harvester Group 3 associates with Processor Group 3 to form Cooperative
3.
In this example, the cooperatives would be allocated annual totals
of CQ as described in the table below (actual CQ permits would specify
a separate CQ allocation for A and B seasons; those allocations are
combined here for simplicity and to illustrate hypothetical annual
totals):
Table 6--Examples of CQ Issuance to Three Hypothetical Cooperatives
----------------------------------------------------------------------------------------------------------------
Percent of Percent of 2022 CQ 2022 Percent
harvester QS processor QS derived from of PCTC total
(18,373 mt) (5,334 mt) QS (in mt) CQ
----------------------------------------------------------------------------------------------------------------
Harvester 1..................................... 30 .............. 5,512 ..............
Processor 1..................................... .............. 8 427 ..............
Cooperative 1................................... .............. .............. 5,939 25
Harvester 2..................................... 4 .............. 735 ..............
Processor 2..................................... .............. 41 2,187 ..............
Cooperative 2................................... .............. .............. 2,922 12
Harvester 3..................................... 66 .............. 12,126 ..............
Processor 3..................................... .............. 51 2,720 ..............
Cooperative 3................................... .............. .............. 14,846 63
Total CQ issued in A and B season........... 100 100 23,707 100
----------------------------------------------------------------------------------------------------------------
Classification
Pursuant to Section 304(b)(1)(A) of the Magnuson-Stevens Act, the
NMFS Assistant Administrator has determined that this proposed rule is
consistent with the BSAI FMP, other provisions of the Magnuson-Stevens
Act, and other applicable law, subject to further consideration after
public comment.
[[Page 8616]]
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
Regulatory Impact Review (RIR)
A Regulatory Impact Review (RIR) was prepared to assess all costs
and benefits of available regulatory alternatives. A copy of this
analysis is available from NMFS (see ADDRESSES). NMFS is recommending
Amendment 122 and this proposed rule based on those measures that
maximized net benefits to the Nation. Specific aspects of the economic
analysis are discussed below in the Initial Regulatory Flexibility
Analysis (IRFA) section.
Initial Regulatory Flexibility Analysis (IRFA)
This IRFA was prepared, as required by Section 603 of the
Regulatory Flexibility Act (RFA). The IRFA describes the economic
impact this proposed rule, if adopted, would have on small entities. An
IRFA describes why this action is being proposed; the objectives and
legal basis for the proposed rule; the number of small entities to
which the proposed rule would apply; any projected reporting,
recordkeeping, or other compliance requirements of the proposed rule;
any overlapping, duplicative, or conflicting Federal rules; and any
significant alternatives to the proposed rule that would accomplish the
stated objectives, consistent with applicable statutes, and that would
minimize any significant adverse economic impacts of the proposed rule
on small entities. Descriptions of this proposed rule, its purpose, and
the legal basis are contained earlier in this preamble and are not
repeated here.
Number and Description of Small Entities Regulated by This Proposed
Rule
The alternatives would directly regulate owners and operators of
harvesters and processors that participate in the BSAI trawl CV Pacific
cod fishery including (1) trawl CVs, (2) shoreside processors, (3)
floating processors, (4) trawl C/Ps acting as motherships, and (5)
small government jurisdictions in the AI. This action may also impact
observer providers that support the BSAI trawl CV Pacific cod fishery,
but they would be indirectly impacted. Therefore, observer providers
are not considered directly regulated entities in the IRFA prepared for
this action.
A small business includes any firm that is independently owned and
operated and not dominant in its field of operation. Businesses
classified as primarily engaged in commercial fishing are considered
small entities if they have less than 11 million dollars in annual
gross receipts for all businesses in the commercial fishing industry
(NAICS 11411). The RFA requires consideration of affiliations between
entities for the purpose of assessing whether an entity is classified
as small. The AFA pollock cooperatives, which make up a subset of the
entities regulated under this proposed rule, are types of affiliation
between entities. All of the AFA cooperatives have gross annual
revenues that are substantially greater than 11 million dollars.
Therefore, NMFS considers members in these cooperatives to be
``affiliated'' large (non-small) entities for RFA purposes. The
eligible AFA entities are large entities based on those affiliations.
The remaining 13 trawl CVs would be considered small entities. This
count includes five trawl CVs that are greater than 60 ft LOA and eight
CVs that are less than 60 ft LOA with a transferable AI endorsement.
Though C/Ps engage in both fish harvesting and fish processing
activities, since at least 1993, NMFS Alaska Region has considered C/Ps
to be predominantly engaged in fish harvesting rather than fish
processing. Under this classification, the threshold of 11 million
dollars in annual gross receipts is the appropriate threshold to apply
to identify any C/Ps that are small entities. All the C/Ps that are
directed regulated by this action do not meet the Small Business
Administration (SBA) definition of a small entity due to cooperative
affiliation.
Under the SBA's size standard for ``seafood product preparation and
packaging'' (NAICS code 311710), seafood processors are considered
small entities if they are independently owned and operated, not
dominant in their field of operation, and have a combined annual
employment of fewer than 750 employees. Of the plants that took
deliveries of Pacific cod from 2017 through 2019 that are currently in
business, one firm would be considered a small entity.
The RFA defines ``small governmental jurisdiction'' as the
government of a city, county, town, school district or special district
with a population of less than 50,000 people. Two small governmental
jurisdictions are directly regulated under the proposed action. Adak
and Atka would be required to submit a notice of their intent to
process to NMFS to receive a portion of the AI CQ set-aside described
in Section V of this preamble. The set-aside amount is intended to
benefit the AI communities and participation by these communities is
voluntary.
Description of Significant Alternatives That Minimize Adverse Impacts
on Small Entities
The Council considered an extensive and elaborate suite of
alternatives, options, and sub-options as it designed and evaluated a
quota share program for the BSAI Pacific cod trawl CV sector, including
a ``no action'' alternative. The RIR presents the complete set of
alternatives, in various combinations with the complex suite of
elements and options. The Council selected a preferred alternative that
includes a suite of elements and options to manage the BSAI trawl CV
Pacific cod sector. The alternatives proposed include no action
(Alternative 1) and action to implement a cooperative style LAPP for
the BSAI Pacific cod trawl CV sector (Alternatives 2a and 2b and
Alternative 3, which is the Council's recommended action).
In general, the recommended LAPP includes allocations of QS to
groundfish LLP licenses based on the legal landings of targeted BSAI
Pacific cod in a Federal fishery during a range of qualifying years
included in the options. The recommended action also allocates QS to a
processor permit based on processing history of legal landings of BSAI
Pacific cod harvested in a Federal fishery and deducted from the BSAI
trawl CV sector apportionment during the qualifying years. One
alternative considered but removed included gear conversion, which
would have authorized BSAI Pacific cod quota associated with trawl CV
LLP licenses to be fished annually by CVs using pot gear. In the end,
the Council did not include the gear conversion element in its
preferred alternative due to concerns over the possibility of high crab
PSC in pot gear for red king crab (Zone 1) and C. opilio.
A second option considered but removed was a cooperative formation
approach based on existing AFA and non-AFA membership. The AFA vessels
and non-AFA vessels would have formed their cooperatives independently
of each other. A person owning both an AFA vessel and non-AFA vessel
would have been required to join the AFA cooperative for the AFA vessel
and the non-AFA cooperative for the non-AFA vessel. Allowing only an
AFA and non-AFA cooperative was rejected by the Council after
considering the obstacles it would create under the various program
elements being considered by the Council and withdrawal of industry
support for the option. For example, under the options
[[Page 8617]]
that would allocate quota to processors, it would create a situation
where multiple processors could designate CQ to a cooperative and
require that the cooperative negotiate the terms and conditions of the
harvest of those Pacific cod. This would have raised antitrust concerns
that would need to be carefully navigated. Integrating multiple
processors, the potential limitation on competition, and reduced
cooperative formation choice were ultimately the issues associated with
the two cooperative approach that led to it being removed from
consideration. The recommended action allows a cooperative to associate
with one processor. This model has been used successfully in the AFA
program and CGOA Rockfish Program and reduces antitrust concerns that
were raised to the Council under the AFA and non-AFA cooperative
structure.
These alternatives constitute the suite of ``significant
alternatives,'' under this proposed action, for purposes of the RFA.
Based upon the best available scientific data, and consideration of the
objectives of this action, NMFS did not identify alternatives to the
proposed action that have the potential to accomplish the stated
objectives of the Magnuson-Stevens Act and any other applicable
statutes and that have the potential to minimize any significant
adverse economic impact of the proposed rule on small entities. After
public process, the Council concluded that the proposed PCTC Program
would best accomplish the stated objectives articulated in the problem
statement and applicable statutes, and minimize to the extent
practicable adverse economic impacts on the universe of directly
regulated small entities.
Duplicate, Overlapping, or Conflicting Federal Rules
No Federal rules that may duplicate, overlap, or conflict with this
proposed action have been identified.
Recordkeeping, Reporting, and Other Compliance Requirements
This action would implement new recordkeeping, reporting, and
compliance requirements and revise existing requirements. These
requirements are necessary for the management and monitoring of the
PCTC Program.
All PCTC program participants would be required to provide
additional information to NMFS for management purposes. Each harvester
would be required to track harvests to avoid exceeding their
allocation. As in other North Pacific rationalized fisheries,
processors would provide catch recording data to managers to monitor
harvest of allocations. Processors would be required to record
deliveries and processing activities to aid in the Program
administration.
To participate in the Program, persons are required to complete
application forms, transfer forms, reporting requirements, and
monitoring requirements. These requirements impose costs on small
entities in gathering the required information and completing the
information collections.
NMFS has estimated the costs of complying with the requirements
based on information such as the burden hours per response, number of
responses per year, and wage rate estimates from industry or the Bureau
of Labor Statistics. Persons are required to complete many of the
requirements at the start of the Program, such as the application to
participate in the Program. Persons are required to complete some
requirements every year, such as the cooperative application.
Additionally, reporting for purposes of catch accounting or transfer of
CQ among cooperatives is completed more frequently. The impacts of
these changes are described in more detail in Sections 2.10.7 and
2.10.12 of the Analysis prepared for this proposed rule (see
ADDRESSES).
New requirements for the PCTC Program include the Application for
PCTC Program QS, the 90-day transfer window, the Application for PCTC
Program CQ, the Application for Transfer of PCTC Program QS for
Processors, the AI notice of intent to process, inter-cooperative
transfers, the appeals process, and cost recovery fee.
The initial allocation process requires all eligible harvesters and
processors who want to participate in the PCTC Program to submit an
Application for PCTC Program QS to receive QS. This application is
needed to determine the allocation of QS to eligible LLP licenses and
to eligible processors. For CVs, NMFS will use the Catch Accounting
System data to determine how much Pacific cod was harvested using the
LLP license authorizing a CV and ask the current LLP license holder to
verify the catch estimate. For processors NMFS will use the Catch
Accounting System data to determine the amount of qualifying Pacific
cod delivered to the processor, and the processors will verify the
estimates. That information will also be used to determine whether the
QS holder complies with the ownership and use cap limitations imposed
under the program. Allowing persons to harvest a given percentage of
the fishery is anticipated to allow harvesters to avoid fishing in bad
weather conditions, improving safety of the fleet. The fleet is also
expected to be able to deliver a consistently higher quality product.
Quality improvements are expected to result from shorter times between
harvest and processing and less damage to the fish in the holds by not
fishing in bad weather.
In addition, the initial allocation process has a 90-day transfer
window to allow persons to transfer QS between non-exempt AFA LLP
licenses under certain conditions to honor private contracts and
agreements associated with harvest of the AFA Pacific cod sideboard
limits. This transfer window would allow persons to resolve any
disputes or request QS transfers between LLP licenses. After the 90-day
window for these transfers has closed, QS could not be separated from
an LLP license or transferable AI endorsement unless necessary to
prevent exceedances of the ownership or use caps, or if required by an
operation of law.
The PCTC Program would include a standardized appeals process. The
appeals process provides participants the required opportunity to
dispute the catch and processing history records in the Catch
Accounting System that are used to determine a person's allocation of
QS. The appeals process is in addition to the 90-day transfer window
discussed above and open to all participants, not just non-exempt AFA
vessels.
Each year the cooperative manager would be required to submit an
Application for PCTC Program CQ that identifies the LLP licenses and
processor QS permits named to the cooperative and the vessels allowed
to harvest the CQ. This application would include the inter-cooperative
agreement that defines how the AI CQ set-aside will be harvested during
years it is in effect. The Council requests that cooperatives submit an
annual cooperative report to the Council.
The Application of Transfer of PCTC Program QS for Processors would
be required for eligible processors to transfer their QS to other
processors. Processor QS assigned to a processor permit established
under the PCTC program may be transferred through the eFish system with
approval by NMFS.
The PCTC program requires the cooperatives to set aside 12.5
percent of their allocation for delivery to Aleutian Island shoreplants
in years that a representative from the City of Adak or the City of
Atka files a valid intent to process with NMFS. The intent to process
is necessary for NMFS and the cooperatives to know whether the
regulations established for the set-aside are in effect during the A
and B seasons.
[[Page 8618]]
If an intent to process is filed, it also triggers additional reporting
in the cooperative report to the Council.
The PCTC Program is a LAPP and therefore NMFS is required to
collect fees for the PCTC Program under sections 303A and 304(d)(2) of
the Magnuson-Stevens Act. Section 304(d)(2) of the Magnuson-Stevens Act
limits the cost recovery fee so that it may not exceed 3 percent of the
ex-vessel value of the Pacific cod harvested under the PCTC Program.
Ex-vessel volume and value reports currently being used to establish an
average annual price for BSAI trawl caught Pacific cod would be used to
establish the standard price and no additional collection of price data
would be necessary. NMFS uses this information to meet the required
provisions in sections 303A and 304(d) of the Magnuson-Stevens Act that
require NMFS to collect these fees associated with recoverable costs.
In addition to the new requirements, the PCTC Program would revise
existing requirements.
If LLP license holders want to transfer their LLP license or
transferable AI endorsement and the associated PCTC Program QS, they
must fill out an Application to Transfer a Groundfish or Crab LLP
License. This form would be revised to collect information on the PCTC
QS transaction, including QS prices, amount transferred, and whether
there are multiple transferees in the event ownership caps would
otherwise be exceeded. Information would be added to the LLP license
transfer form identifying how PCTC QS would be distributed to the other
LLP licenses if the original holder of the LLP license was assigned QS
that was over the 5 percent ownership cap and qualified for the legacy
exemption.
The PCTC Program would require updating ATLAS data transmission to
enable the timely electronic entry, archival, and transmission of
observer data for at-sea operations and shorebased processing plants.
This rule would require that all vessels submit logbooks when
fishing in the PCTC program. All CVs greater than or equal to 60 ft LOA
currently submit logbooks. Some CVs that may participate in the AI
Pacific cod fishery are less than 60 ft LOA and may already file
logbooks when fishing for Pacific cod. Many already complete logbooks
based on their participation in other programs. However, a small number
of CVs less than 60 ft LOA that do not currently submit a logbook would
likely need to begin submitting a logbook if they choose to participate
in the PCTC Program.
Paperwork Reduction Act
This proposed rule contains collection of information requirements
subject to review and approval by OMB under the Paperwork Reduction Act
(PRA). This proposed rule would add new collections of information for
the PCTC Program under a new OMB control number and revise requirements
for collections of information under existing OMB Control Numbers 0648-
0213 (Alaska Region Logbook and Activity Family of Forms); -0318 (North
Pacific Observer Program); -0334 (Alaska License Limitation Program for
Groundfish, Crab, and Scallops); -0711 (Alaska Cost Recovery and Fee
Programs); -0678 (North Pacific Fishery Management Council Cooperative
Annual Reports); and -0515 (Alaska Interagency Electronic Reporting
System). However, because the collection of information authorized by
OMB Control Number 0648-0515 is concurrently being revised in a
separate action, the revisions to that collection of information in
this proposed rule will be assigned a temporary control number that
will later be merged into 0648-0515. The existing collections of
information under OMB control numbers 0648-0330 (NMFS Alaska Region
Scale & Catch Weighing Requirements) and 0648-0445 (NMFS Alaska Region
Vessel Monitoring System (VMS) Program) will also provide information
needed to implement the PCTC Program and will continue to apply. This
proposed rule would not make any changes to these two collections of
information. The public reporting burden estimates provided below for
these collections of information include the time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
OMB Control Number 0648-NEW
This proposed rule would create a new collection of information
needed to implement PCTC Program. This new collection of information
would authorize applications and processes used by the PCTC Program
cooperatives, processors, LLP license holders, and community
representatives to apply for permits, to transfer cooperative quota and
quota share, to manage fishing and processor activity, and to appeal
agency decisions. This new collection is necessary for NMFS to
implement, monitor, and enforce the PCTC Program. The data would be
used to ensure that program participants adhere to all harvesting,
processing, ownership, and use limits. More information on these new
requirements is provided in the Classification section of this proposed
rule under the heading ``Recordkeeping, Reporting, and Other Compliance
Requirements.''
The public reporting burden per individual response is estimated to
average 2 hours for the Application for Pacific Cod Trawl Cooperative
Program Quota Share, 2 hours for the Application for Pacific Cod Trawl
Cooperative Program Cooperative Quota, 2 hours for the Application for
Transfer of Pacific Cod Trawl Cooperative Program Quota Share for
Processors, 10 minutes for the Application for Inter-Cooperative
Transfer of Cooperative Quota, 30 minutes for the notification of
intent to process Aleutian Islands Pacific cod, 2 hours for the 90-day
transfer window for non-exempt AFA LLP license holders, and 4 hours for
appeals.
OMB Control Number 0648-0213
This proposed rule would revise the existing requirements for the
collection of information 0648-0213 related to logbooks because CVs
participating in the PCTC Program would be required to submit a CV
trawl gear daily fishing logbook. Some CVs less than 60 ft LOA that do
not currently submit this logbook would need to begin doing so to
participate in the PCTC Program. The revision to this collection of
information adds the CVs less than 60 ft LOA that would need to start
using the CV trawl gear daily fishing logbook as new respondents. CVs
participating in the PCTC Program would have the option of using either
the paper logbook approved under this collection or the electronic
option, which is approved under OMB Control Number 0648-0515. The PCTC
Program does not change the information collected by this logbook. This
rule would require C/Ps and shoreside processors authorized as
processors in the PCTC Program to submit a product transfer report;
however, no changes would be needed to the respondents or responses for
this report because all expected respondents are currently submitting
it. The public reporting burden per individual response is estimated to
average 18 minutes for the Catcher Vessel Trawl Daily Fishing Log and
20 minutes for the Product Transfer Report.
OMB Control Number 0648-0318
This proposed rule would revise the existing requirements for the
collection of information 0648-0318 related to the North Pacific
Observer Program because all vessels participating in the PCTC program
would be required to have a
[[Page 8619]]
computer onboard and use ATLAS to submit observer data to NMFS. This
would increase the number of vessels that need to provide observers
access to a computer with ATLAS installed. PCTC Program participants
would have up to three years to install ATLAS. Most vessels comply with
this requirement by allowing NMFS to install ATLAS on an existing
computer on the vessel. Many, if not all, of the vessels that would
need to install ATLAS already have a computer that meets the minimum
requirements, and they would only incur costs if they choose to
purchase an additional computer. Estimated costs to purchase and
install the data transmission system vary from about $5,000 to $37,000,
depending on what a vessel needs to install. This rule also revises the
existing requirements in this collection because catcher vessels that
choose to participate in the PCTC Program would be required to be in
the full observer coverage category instead of the partial observer
coverage category. These catcher vessels would no longer be required to
use ODDS to log fishing trips; therefore, this would decrease the
number of respondents that log trips in ODDS. The public reporting
burden per individual response is estimated to average 15 minutes to
log a trip in ODDS.
OMB Control Number 0648-0334
This proposed rule would revise the existing requirements for the
collection of information 0648-0334 related to the LLP license and the
transferable AI endorsement to include PCTC Program QS information on
the groundfish/crab LLP license transfer application form. Subject to
public comment, no change is made to the burden because the estimate
allows for differences in the time needed to complete and submit the
form. The public reporting burden per individual response is estimated
to average 1 hour for the Application for Transfer LLP Groundfish/Crab
License.
OMB Control Number 0648-TEMPORARY
This proposed rule would revise the collection of information under
OMB Control Number 0648-0515 associated with electronic reporting.
However, due to multiple concurrent actions for that collection, the
collection-of-information requirements will be assigned a temporary
control number that will later be merged into OMB Control Number 0648-
0515.
PCTC Program participants would need to use eLandings to submit
landings and production information, which is approved under control
number OMB 0648-0515. CVs participating in the PCTC Program would be
required to submit a CV trawl gear daily fishing logbook and may use
either the electronic logbook approved under OMB Control Number 0648-
0515 or the paper logbook approved under OMB Control Number 0648-0213.
CVs greater than 60 ft LOA are already required to maintain logbooks
but this would be a new requirement for CVs less than 60 ft LOA. Some
CVs less than 60 ft LOA that do not current submit the logbook would
need to begin doing so. The temporary control number would cover the
revisions necessary to -0515 for the CVs that choose to submit
electronic logbooks. The PCTC Program does not change the information
collected by this logbook but does increase the number of participants
required to submit it. The public reporting burden per individual
response is estimated to average 15 minutes for the CV electronic
logbook.
OMB Control Number 0648-0678
This rule would revise the existing collection of information under
0648-0678 to because the Council requests PCTC Program
[…truncated; see source link]Indexed from Federal Register on February 9, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.