Rule2023-16526
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
August 8, 2023
Effective
September 7, 2023
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS issues this final 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 establishes the Pacific Cod Trawl Cooperative Program (PCTC Program or Program), a limited access privilege program (LAPP) to harvest Pacific cod in the BSAI trawl catcher vessel (CV) sector. The PCTC Program allocates Pacific cod harvest quota to qualifying groundfish License Limitation Program (LLP) license holders and qualifying processors and requires participants to form cooperatives to harvest the quota. This 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 151 (Tuesday, August 8, 2023)]
[Rules and Regulations]
[Pages 53704-53745]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-16526]
[[Page 53703]]
Vol. 88
Tuesday,
No. 151
August 8, 2023
Part IV
Department of Commerce
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National Oceanic and Atmospheric Administration
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15 CFR Part 902
50 CFR Part 679
Fisheries of the Exclusive Economic Zone Off Alaska; Amendment 122 to
the Fishery Management Plan for Groundfish of the Bering Sea and
Aleutian Islands Management Area; Pacific Cod Trawl Cooperative
Program; Final Rule
Federal Register / Vol. 88 , No. 151 / Tuesday, August 8, 2023 /
Rules and Regulations
[[Page 53704]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 902
50 CFR Part 679
[Docket No. 230728-0179]
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: Final rule.
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SUMMARY: NMFS issues this final 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 establishes the
Pacific Cod Trawl Cooperative Program (PCTC Program or Program), a
limited access privilege program (LAPP) to harvest Pacific cod in the
BSAI trawl catcher vessel (CV) sector. The PCTC Program allocates
Pacific cod harvest quota to qualifying groundfish License Limitation
Program (LLP) license holders and qualifying processors and requires
participants to form cooperatives to harvest the quota. This 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: This rule is effective on September 7, 2023.
ADDRESSES: Electronic copies of the Environmental Assessment (EA), the
Regulatory Impact Review (RIR), and the Social Impact Analysis
(collectively referred to as the ``Analysis''), and the Finding of No
Significant Impact (FONSI) prepared for this final rule may be obtained
from <a href="https://www.regulations.gov">https://www.regulations.gov</a> in docket number NOAA-NMFS-2022-0072
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>.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
final rule may be submitted to NMFS Alaska Region, P.O. Box 21668,
Juneau, AK 99802-1668, Attn: Gretchen Harrington; and to
<a href="http://www.reginfo.gov/public/do/PRAMain">www.reginfo.gov/public/do/PRAMain</a>. Find the particular information
collection by using the search function.
FOR FURTHER INFORMATION CONTACT: Stephanie Warpinski, 907-586-7228 or
<a href="/cdn-cgi/l/email-protection#d8abacbda8b0b9b6b1bdf6afb9aaa8b1b6abb3b198b6b7b9b9f6bfb7ae"><span class="__cf_email__" data-cfemail="1f6c6b7a6f777e71767a31687e6d6f76716c74765f71707e7e31787069">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: NMFS published a Notice of Availability for
Amendment 122 in the Federal Register on December 30, 2022 (87 FR
80519), with public comments invited through February 28, 2023. NMFS
published a proposed rule to implement Amendment 122 in the Federal
Register on February 9, 2023 (88 FR 8592) with public comments invited
through March 13, 2023. The Secretary of Commerce approved Amendment
122 on March 24, 2023 after considering information from the public and
determining that Amendment 122 is consistent with the BSAI FMP, the
Magnuson-Stevens Act, and other applicable laws. NMFS received 16
comment letters on Amendment 122 and the proposed rule. A summary of
the comments and NMFS' responses are provided under the heading
``Comments and Responses'' below.
Background
The following background sections describe the PCTC Program and
this final rule. A detailed description of the PCTC Program and its
development is provided in the preamble to the proposed rule and in the
Analysis.
I. Pacific Cod Management in the 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. Vessels harvesting BSAI
Pacific cod operate as CVs that harvest and deliver the fish for
processing or as catcher/processors (CPs) that harvest and process the
catch on board.
The overfishing level (OFL), acceptable biological catch (ABC), and
total allowable catch (TAC) for BSAI groundfish are specified through
the annual harvest specification process. A detailed description of the
annual harvest specification process is provided in the final 2023 and
2024 harvest specifications for groundfish of the BSAI (88 FR 14926,
March 10, 2023). 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. Allocations of Pacific cod
to the Community Development Quota (CDQ) Program sector 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 50 CFR
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).
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. 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).
NMFS implemented the Groundfish License Limitation Program (LLP) in
1998 (63 FR 52642, Oct. 1, 1998) and issued LLP licenses to qualifying
participants based on historical participation in the Federal
groundfish fisheries off Alaska. 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. All Federal Pacific
cod harvesting activity in the BSAI requires an LLP license and the
correct endorsements.
AI endorsements issued to certain LLP licenses under Amendment 92
to the BSAI FMP were intended to facilitate shoreside deliveries of
Pacific cod to AI communities and provide additional harvest
opportunities for non-American Fisheries Act (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 (18.3 m) length overall (LOA) are severable from the LLP license
and transferable to another LLP licenses with a MLOA under 60 ft (18.3
m) LOA. The transferability provision was intended to allow smaller
vessels operational flexibility and avoid stranding an AI endorsement
on an LLP
[[Page 53705]]
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.
II. PCTC Program Overview
The PCTC Program implements a complex suite of measures to improve
fishery conditions for all participants. This Program establishes
criteria for harvesters and processors in the BSAI trawl CV sector
Pacific cod fishery to qualify for and receive quota share (QS),
criteria for allocating QS in the initial year of implementation, and
criteria for the transfer of QS. QS holders are required to join a
cooperative (harvesters) or associate with a cooperative (processors).
The aggregate QS of cooperative members and associated processors
yields an exclusive harvest privilege for PCTC Program cooperatives,
which NMFS will issue as cooperative quota (CQ) each year. CQ
represents a portion of the A and B season BSAI trawl CV sector Pacific
cod DFA. Of the total annual CQ, 77.5 percent is derived from QS issued
to LLP licenses, and 22.5 percent is derived from QS issued to
processors. The DFA for the C season remains 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.
The PCTC Program includes ownership and use caps to prevent a
permit holder from acquiring an excessive share of the fishery as
required under Magnuson-Stevens Act section 303A(c)(5)(D). No person is
permitted to hold more than 5 percent of harvester-issued QS or 20
percent of processor-issued QS. In addition, no vessel is allowed to
harvest more than 5 percent of the annual CQ, and no company is allowed
to process more than 20 percent of the annual CQ. The PCTC Program also
includes 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.
The PCTC Program reduces the halibut and crab Prohibited Species
Catch (PSC) limits for participating trawl CVs during the A and B
seasons. NMFS will apportion halibut and crab PSC limits to PCTC
Program cooperatives during the annual harvest specifications process
based on the percentage of total BSAI Pacific cod CQ allocated to each
cooperative.
To support the sustained participation of AI communities in the
Pacific cod trawl CV fishery, cooperatives are required to collectively
set-aside 12 percent of the A season CQ for delivery to an Aleutian
Islands shoreplant (AI CQ set-aside) during years in which an AI
community representative notifies NMFS of their intent to process
Pacific cod.
The following sections describe the primary management measures
included in the PCTC Program. Each Program element is discussed in
further detail in the preamble to the proposed rule prepared for this
action (88 FR 8592, February 9, 2023).
III. Quota Share for Harvesters and Processors
NMFS established a PCTC Program official record containing all
necessary information concerning legal landings of Pacific cod during
the qualifying period, vessel and processor ownership, LLP license
holdings, and any other information needed for assigning QS. NMFS will
use the PCTC Program official record as of December 31, 2022 to
establish the initial pool of QS that will be distributed to eligible
harvesters and processors.
A. Initial Allocation of Quota Share for Harvesters
Under the PCTC Program, NMFS will assign QS to eligible LLP
licenses. ``Eligible PCTC Program LLP license'' means an LLP license
that has qualifying catch history (i.e., was assigned to a vessel that
made qualifying legal landings) of targeted trawl CV BSAI Pacific cod
during the qualifying years. The amount of QS allocated to individual
LLP licenses is determined by historic participation relative to other
LLP licenses, as described below.
``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. NMFS determines which LLP
license(s) were assigned to CVs that harvested and offloaded Pacific
cod that met all legal landings requirements. Legal landings for the
PCTC Program do not include landings in the CDQ fishery, in the State
of Alaska Guideline Harvest Level fishery, or made during the C season
by vessels participating in a Federal or parallel State water fishery.
Under this final rule, the Regional Administrator will allocate
PCTC Program QS to an LLP license holder who submits a timely
Application for PCTC Program QS that is approved by NMFS. For each LLP
license without a transferable AI endorsement, NMFS will assign a
specific number of PCTC Program QS units based on the BSAI trawl CV
Pacific cod legal landings of that LLP license using information from
the PCTC Program official record 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.
For each LLP license with a transferable AI endorsement, NMFS will
assign a specific number of PCTC Program QS units 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 Program
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) and during which
the vessel 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.
[[Page 53706]]
(3) Sum the Pacific cod legal landings of the highest fifteen years
for each LLP license with transferable AI endorsement. This yields the
QS units for each LLP license with a transferable AI endorsement.
After the QS units for the LLP licenses with and without
transferable AI endorsements are determined under part 3 of each
scenario above, NMFS sums all harvester QS units to calculate the
harvesters' total QS pool. NMFS will then determine what portion of the
77.5 percent of the A and B season DFA allocated as harvester QS is
represented by each LLP license's QS units. To do so, NMFS will 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 Program 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 QS allocation (which is 77.5
percent of the A and B season DFA) that a QS holder can assign to a
cooperative each year.
NMFS will not divide QS among LLP licenses. The current LLP license
owner is 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.
Some legal landings during 2009 through 2019 were made by vessels
with two or more associated LLP licenses. In these cases, NMFS will
assign the qualifying catch history to a single 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. Second, if no agreement is
provided by the LLP license holders, the owner of the vessel that made
the qualifying catch can assign the history to one of the LLP licenses
that authorized the catch.
B. Initial Allocation of Quota Share for Processors
``Eligible PCTC Program processor'' means a processing facility
with an active Federal Fisheries Permit (FFP) or Federal Processing
Permit (FPP) (subject to eligibility requirements under Amendment 120
to the BSAI FMP to limit CPs acting as mothership) that has
historically received Pacific cod legal landings during the PCTC
Program qualifying years. NMFS will issue QS to the owner of an
eligible PCTC Program processor based on deliveries of legal landings
in the Federal BSAI Pacific cod trawl fishery in the A and B seasons
for each calendar year from 2009 through 2019, with the calendar year
in which the processor received the least amount of legal landings
dropped from the calculation. Owners of eligible PCTC Program
processors must submit a timely and complete Application for PCTC
Program QS.
Processors that are no longer active (i.e., no longer hold an FPP
or FFP upon the effective date of this final rule) will not be issued
QS. The processing history associated with those processors will be
deducted from the total amount of eligible processing history during
the qualifying years when calculating the distribution of QS to
processors.
NMFS will assign a specific number of PCTC Program QS units to each
processor's PCTC Program QS permit based on the qualifying legal
landings delivered to the processor using information from the PCTC
Program official record 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 QS allocation (which is 22.5
percent of the A and B season DFA) that a QS holder can assign to a
cooperative each year.
Table 1--PCTC Program Initial QS Pool in Units
------------------------------------------------------------------------
PCTC Program initial QS pool in
Species units
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Pacific cod (Holders of LLP Licenses [Sigma] highest 10 years of
with 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 [Sigma] highest 15 years of
with a transferable AI endorsement). BSAI Pacific cod catch history
in metric tons in the PCTC
official record as of December
31, 2022 for holders of LLP
licenses with a transferable
AI endorsement.
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.
------------------------------------------------------------------------
C. Application for PCTC Program QS
A person must submit an Application for PCTC Program QS in order to
receive an initial allocation of PCTC QS. NMFS requires 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 PCTC Program official record. Once a person submits an
Application for PCTC Program QS that is approved by NMFS, that person
will not need to resubmit an application for QS in future years. NMFS
will post a list of the eligible PCTC Program LLP license holders and
the eligible PCTC Program processors on the NMFS Alaska Region web page
(see ADDRESSES).
NMFS will mail an application package to the address on record for
all potentially eligible LLP license holders and processors. This
package will 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 QS calculated by NMFS
based on qualifying catch or processing history from the PCTC Program
official record.
Applications will also be available on the NMFS Alaska Region web
page (see
[[Page 53707]]
ADDRESSES), and interested persons can also contact NMFS RAM to request
an application package.
An Application for PCTC Program QS can be submitted electronically
or by mail as indicated in the instructions provided on the
application. A completed Application for PCTC Program QS must be
received by NMFS no later than 1700 hours AKST on October 10, 2023, 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. If participants do not submit an application by the
deadline, they will forfeit their PCTC Program QS.
If a participant agrees with the PCTC Program official record
summary, they still must submit an Application for PCTC Program QS by
the deadline.
If a participant did not receive an application package from NMFS,
they may still apply for QS by submitting an Application for PCTC
Program QS and providing evidence of qualifying participation in the
BSAI trawl CV sector Pacific cod fishery by the application deadline.
If a participant would like to receive QS and does not agree with
the PCTC Program official record summary, they must complete an
Application for PCTC Program QS by the application deadline and provide
evidence of any claims of participation that are contrary to the
official record.
If an LLP license holder's PCTC Program official record summary
includes shared catch history, the participants with shared catch
history must execute an agreement specifying the amount of shared catch
history to assign to each LLP license. If NMFS does not receive an
agreement, the owner of the catcher vessel designated on the LLP
licenses at the time of harvest will determine the amount of QS
assigned to each permit.
D. QS Application Review and Appeals
If any applicant disagrees with NMFS's initial calculations and
provides documentation with their Application for PCTC Program QS to
support a claim of catch history that is different from the PCTC
Program official record, NMFS will determine whether such documentation
is sufficient to amend the official record. If so, NMFS will issue QS
to the applicant. If not, NMFS will 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 will make its final
decision about the official record and issue an initial administrative
determinations (IAD) to the applicant. 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 will identify in an IAD any deficiencies or discrepancies in
the application, including any deficiencies in the information or
evidence submitted to support an applicant's claims challenging the
official record. NMFS's IAD will state which claims cannot be approved
based on the available information or evidence and provide information
on how an applicant can appeal an IAD. An applicant who appeals an IAD
will not receive QS for contested landings data unless and until the
appeal is resolved in the applicant's favor. Once NMFS has approved an
Application for PCTC Program QS in its entirety, NMFS will 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.
For the 2024 fishing season, NMFS will issue CQ to cooperatives
based on the QS held by cooperative members at the time of CQ issuance.
Any ongoing appeals or QS transfers allowed under the 90-day transfer
window for AFA non-exempt CVs will apply to subsequent fishing years.
E. Transferring QS
Under the PCTC Program, QS holders may transfer QS concurrently
with the transfer of the LLP license, AI endorsement, or processor PCTC
Program QS permit. In order to transfer QS, a QS holder must submit to
NMFS an Application for Transfer of License Limitation Program
Groundfish/Crab License or the Application for Transfer of Pacific Cod
Trawl Cooperative Program Quota Share (QS) for Processors. Transfer of
QS requires approval by NMFS to properly track ownership caps. For
harvesters, QS may 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). Each
application must include any additional information needed for the
transfer of QS, including amount of QS to be transferred (generally all
QS attached to the license), the transferee, and the sale price of QS.
Applications are available on the NMFS Alaska Region web page (see
ADDRESSES). Complete applications can be submitted to NMFS
electronically.
To facilitate cooperative formation under the PCTC Program in the
first year, QS transfers submitted after November 1 and prior to the
start of PCTC Program fishing season will be applied to the following
year, meaning if a transfer was submitted in December 2023, the
transfer would not be applied until after the PCTC Program fishing
season ends in 2024.
Under Amendment 92, the AI endorsements issued to LLP licenses used
by non-AFA trawl CVs less than 60 ft (18.3 m) LOA are severable from
the LLP license they were initially issued and transferable to another
LLP licenses with a MLOA under 60 ft (18.3 m) LOA. NMFS modified the
LLP license transfer regulations to clarify the process for
transferring an AI endorsement independent of the LLP license. As part
of the application process, a person must specify the LLP license to
which the transferred AI area endorsement will be assigned.
Once PCTC Program QS is issued, the QS units will remain attached
to the associated LLP license or processor's PCTC Program QS permit in
most circumstances and cannot be severed or otherwise transferred
independently. There are several limited exceptions to non-
severability: (1) QS can be fully or partially transferred during the
limited 90-day transfer provision for non-exempt AFA CVs; (2) QS
attached to LLP licenses with a transferable AI endorsement can be
transferred along with the endorsement to another LLP license that
meets the criteria for a transferable AI endorsement (endorsements
cannot be stacked on a single LLP); (3) if a participant qualifies for
a legacy exemption and receives an initial allocation of QS in excess
of the ownership cap, that participant's QS can be split during a
transfer to prevent any recipient from exceeding a cap; and (4) QS can
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.
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. 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,
signed by both persons, as evidence of their agreement to transfer the
QS in this one-time
[[Page 53708]]
opportunity. In the letter, they must explain how much QS will be
transferred and to which LLP license or licenses. If only one party
submits evidence of an agreement, the QS will remain with the LLP
license to which it was initially assigned.
F. QS Ownership Caps
The PCTC program includes QS ownership caps to prevent a permit
holder from acquiring an excessive share of the fishery as required
under Magnuson-Stevens Act Section 303A(c)(5)(D). Individual ownership
caps for both harvesters and processors are calculated using the
``individual and collective rule'' which means a person is deemed to
own QS in the same percentage that person owns or uses the relevant
license, permit, or vessel. If a person owns QS equal to the cap, NMFS
will not approve a transfer of additional QS to that person. The PCTC
Program also includes CQ use caps, described in sections IV.E and IV.F.
Harvester QS Ownership Cap--5 Percent
With the exception of persons qualifying for the legacy exemption,
no person is permitted to individually or collectively own more than 5
percent of the aggregate QS units initially assigned to eligible LLP
licenses. The number of QS units is based on the PCTC Program official
record. When QS is transferred, the person receiving the transfer is
prohibited from holding or using QS over the 5 percent cap. This QS
ownership cap limits the amount of QS assigned to an LLP license that
can be held or controlled by a single entity. Processor QS does not
count toward this ownership cap.
Processor QS Ownership Cap--20 Percent
With the exception of persons qualifying for the legacy exemption,
no person is permitted to individually or collectively own more than 20
percent of the aggregate QS units initially assigned to QS permits held
by eligible processors. Processor 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 is applied at the aggregate company or firm level (not the
individual facility level). The processor QS ownership cap limits the
amount of processor-held QS that can be held or controlled by a single
entity.
Legacy Exemption From the Ownership Caps
Under the PCTC Program, persons over the cap at the time of QS
issuance are granted non-transferable legacy exemptions. Because the
ownership caps fall well short of excessive shares in the fishery and
allocating QS based on status quo levels of participation would not
result in any participant holding an excessive share of limited access
privileges, the Program grants legacy exemptions to participants whose
initial QS allocations exceed the ownership 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 QS allocations and cannot be transferred. All future purchasers
of QS would be subject to the ownership caps.
G. Transferring QS in Excess of the Ownership Caps
NMFS will not approve transfers of an LLP license with QS or a PCTC
Program 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.
For LLP licenses and PCTC Program QS permit holders that are
initially issued QS greater than the ownership cap (i.e., for persons
granted a legacy exemption from the ownership cap), the LLP license
holder or QS permit holder may sever the amount of QS over the cap from
the permit (and, once severed, transfer to one or more buyers) at the
time of transfer. This provision allows the transfer of an LLP license
or PCTC Program 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 can be divided or transferred
separately from that processor permit if a sale will otherwise result
in the transferee exceeding an ownership cap.
If a QS holder has a legacy exemption from the QS ownership cap,
NMFS will not approve a QS transfer to that person unless and until
that person's holdings of QS are reduced to an amount below the QS
ownership cap.
IV. PCTC Program Cooperatives
The PCTC Program is a cooperative-based program that requires
harvesters to join a cooperative each year and processors to associate
with a cooperative each year to benefit from QS holdings. NMFS will
issue cooperatives annual CQ derived from the QS held by the harvesters
that join the cooperative and associated processors. Under the Program,
cooperative members are expected to 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 Cooperative
Under the PCTC Program, forming a cooperative requires at least
three LLP licenses with QS. Annually, each cooperative must associate
with at least one permitted processor. There is no limitation on the
number of LLP licenses that may join a single cooperative, the number
of processors a cooperative can associate with, or on the amount of QS
a single cooperative can control. There is also no limit on the number
of cooperatives that may form, but each LLP license may only be
assigned to one cooperative. A person may hold multiple LLP licenses,
meaning that an individual who holds three or more LLP licenses may
form a cooperative in association with a processor.
An LLP license holder may change cooperatives and processor
associations may change annually without penalty. However, an LLP
license holder with QS 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
will remain with the cooperative until the end of the season. Inter-
cooperative formation is allowed and an inter-cooperative agreement
(see section IV.B) is required to implement the AI set-aside and to
allow for efficient transfer of CQ or PSC limits between cooperatives.
NMFS will issue annual CQ to each cooperative based on the
aggregate QS held by all cooperative members and associated processors.
CQ constitutes an exclusive harvest privilege for the A and B seasons.
NMFS will 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. Cooperative members will determine their
own harvest strategy, including which vessels can harvest the CQ.
CQ is not designated for the BS or AI subareas separately, but may
be harvested from either area because the non-CDQ Pacific cod sector
allocations are BSAI wide. If the non-CDQ Pacific cod TAC is or will be
reached in either the BS or the AI subareas, NMFS will
[[Page 53709]]
prohibit non-CDQ directed fishing for Pacific cod in that subarea as
provided at Sec. 679.20(d)(1)(iii). However, NMFS will annually
establish a separate AI DFA to support the calculation of the AI set-
aside. For more information, see Section VI of this preamble. Under
certain conditions, cooperatives would be required to collectively set
aside 12 percent of the A season CQ for delivery to an AI shoreplant as
described further under the AI Community Protections section below.
Cooperatives are limited in the manner in which they distribute CQ
derived from processor-held QS for harvest by cooperative vessels. To
address vertically integrated companies where a processing company may
also own LLP licenses or CVs within a cooperative, CQ derived from
processor-held QS must be divided among cooperative harvesting CVs
proportionately to the QS attached to LLP licenses on board the CVs. In
other words, a cooperative should not allow a CV or LLP license owned
by a processor to harvest a greater proportion of the CQ resulting from
processor-held QS than the LLP license will have brought into the
cooperative absent any processor-held QS. Each cooperative will monitor
this provision and include reporting on harvest of CQ resulting from
processor-held QS in the PCTC Program cooperative annual report to the
North Pacific Fishery Management Council (Council).
B. Application for PCTC Program Cooperative Quota (CQ)
All participants in the Program must organize into cooperatives,
and the cooperative must submit a complete Application for PCTC Program
CQ prior to the November 1 deadline each year to receive an annual CQ
permit. If the cooperative fails to submit a timely application for CQ,
NMFS will not issue CQ to the cooperative for that fishing year.
NMFS will process the application for CQ and, if approved, issue a
CQ permit and apportioned amounts of annual crab PSC and halibut PSC
limits to the cooperative. NMFS will use these applications to issue CQ
permits, establish annual cooperative accounts for catch accounting
purposes, and identify specific harvester vessels for each cooperative.
As with other LAPPs, the information received in this application is
annually used to review ownership and control information for various
QS holders to ensure that QS and CQ use caps are not exceeded.
Processors that receive deliveries of CQ but do not hold a QS permit do
not need to be listed on the application for CQ.
The Application for PCTC Program CQ is available on the NMFS Alaska
Region website and may be submitted electronically through the NMFS
online system or the NMFS Alaska Region website. The following list
summarizes the information that is required:
<bullet> PCTC Program LLP license identification numbers;
<bullet> Processor-held PCTC Program 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 that holds a QS permit;
<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> 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;
<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;
<bullet> A copy of the inter-cooperative agreement that provides
the plan for coordinating harvest and delivery of the AI CQ set-aside;
<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 will review the CQ applications for accurate information,
including cooperative and inter-cooperative agreements, ownership and
use caps, and payment of any fees, including cost recovery. If
approved, NMFS will issue a CQ permit to the cooperative. NMFS will
issue CQ permits after the annual harvest specifications are
recommended by the Council for the upcoming year. Permits will
generally be issued in early January for the fishing year starting
January 20. The CQ permit will 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.
NMFS will issue CQ 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 will be the incidental catch
allowance (ICA) for Pacific cod caught as bycatch in other fisheries,
such as pollock.
D. Processors in Cooperatives
A person holding a PCTC Program QS permit is required to associate
with a cooperative to use 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 will
associate with a cooperative. Processor-held QS that is not associated
with a specific cooperative will be distributed as CQ 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 QS.
E. Vessel CQ Use Cap--5 Percent
A vessel use cap restricts the CQ that can be consolidated and
harvested by one vessel during the year. The PCTC Program includes a 5
percent vessel use cap for CVs. With the exception of persons
qualifying under the legacy exemption, no vessel is permitted to
harvest more than 5 percent of the annual CQ issued in the fishery. A
vessel designated on an LLP license that receives QS in excess of the
QS ownership cap at the time of QS issuance will be granted a legacy
exemption from the vessel use cap because that vessel would have
harvested over 5 percent of the total A and B season trawl CV sector
Pacific cod allocation during the qualifying years. The legacy
exemption applies to the
[[Page 53710]]
vessel designated on an LLP license that yields more than 5 percent of
the QS at the time of initial allocation. This legacy exemption is not
transferable if the LLP license is transferred to a new owner.
F. Processor CQ Use Cap--20 Percent
A processor's CQ use cap protects against excessive consolidation
of processing activity by limiting a person (i.e., company or firm) to
processing no more than 20 percent of the annual CQ using the
individual and collective rule, with the exception of persons
qualifying under the legacy exemption. The processor CQ use cap is
calculated based on the total CQ issued under the PCTC Program and not
just QS initially issued to processors. This ensures that a processing
company is limited to processing a specific percentage of the total
PCTC Program allocation. A person over the cap at the time of QS
issuance--i.e., a processor that, on average, processed more than 20
percent of the total A and B season trawl CV sector Pacific cod
allocation during the qualifying years--is granted a non-transferable
legacy exemption.
G. CQ and PSC Transfers
Under this Program, a cooperative may transfer all or part of its
CQ to another cooperative for harvest subject to the limitations
imposed by the use caps. Transfers of CQ are for a single year's annual
allocation. The underlying QS remains with the LLP license. This CQ
transfer provision provides flexibility for cooperatives to transfer
Pacific cod for harvest or PSC to support cooperative fishing. The
ability to transfer 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.
This final rule allows post-delivery transfers of CQ, but all
transfers must be completed prior to August 1, after the close of the B
season. 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. Consolidation of CQ to a smaller number of
cooperatives toward the end of the fishing season facilitates ``sweep
up'' trips to complete the season's harvests.
To transfer CQ and associated PSC limits between cooperatives, the
cooperative must use the NMFS online system on the NMFS Alaska Region
website, which allows for automated review and approval of transfer
requests within use cap constraints. NMFS will not approve a CQ
transfer if the transfer would result in a CV exceeding the use cap. A
transfer of CQ is not effective until approved by NMFS.
H. Cooperative Reports
Under the PCTC Program, the Council has requested cooperatives to
provide voluntary annual reports. Consistent with other cooperative
programs developed by the Council, these reports shall include specific
information on the structure, function, and operation of the
cooperatives.
Each year, the Council will receive reports outlining the
cooperatives' performance at one of its regularly scheduled meetings.
These reports will be used by the Council and NMFS 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 CQ set-aside when
in effect).
V. Prohibited Species Catch Limits
NMFS will annually apportion halibut and crab PSC limits to PCTC
Program cooperatives based on the percentage of total CQ allocated to
their cooperative. During the A and B seasons, NMFS will monitor PSC
use at the sector level, and cooperatives will manage PSC use at the
cooperative level. Cooperative vessels are 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 using the NMFS online system to cover any overages or to
allow a cooperative to continue harvesting Pacific cod.
A. Halibut PSC
Annually, NMFS will apportion the halibut PSC limit assigned to the
BSAI trawl limited access sector Pacific cod fishery to the trawl CV
and AFA CP sectors; 98 percent will be apportioned to the trawl CV
sector and 2 percent will be apportioned to AFA CP sector. The specific
percentage of the total halibut PSC limit assigned to the trawl limited
access sector may change annually. NMFS will then apportion the halibut
PSC limit to the trawl CV sector for the A, B, and C season. Of the
halibut PSC limit apportioned to the trawl CV sector, 95 percent will
be available for the PCTC Program in the A and B seasons and 5 percent
is available for the C season.
To implement the halibut PSC reduction under the Program, NMFS will
annually apply a fixed percentage reduction to the A and B season PSC
apportionment derived from the overall trawl CV sector halibut PSC
apportionment. The total halibut PSC reduction under the Program is 25
percent, which will be phased in over two years. In the first year of
the Program, NMFS will apply a 12.5 percent reduction to the A and B
season trawl CV sector halibut PSC apportionment 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. In the second year of the Program and every year
thereafter, NMFS will apply a 25 percent reduction to the A and B
season trawl CV sector halibut PSC apportionment. Any amount of the
PCTC Program PSC limit remaining after the B season will be reallocated
to the trawl CV limited access fishery in the C season. Because the
annual halibut PSC limit for the Program is not a fixed amount
established in regulation and, instead, is determined annually through
the harvest specification process, NMFS must apply the 25 percent
reduction to the A and B season apportionment of the trawl CV sector
apportionment to implement the overall PSC reductions under the
Program.
B. Crab PSC
The annual crab PSC limits available to the BSAI trawl limited
access sector Pacific cod fishery category will be apportioned between
the trawl CV sector and the AFA CP 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 CPs. Of the crab PSC limit apportioned
to the trawl CV sector, 95 percent will be available for the PCTC
Program (A and B seasons) and 5 percent will be available for the C
season. NMFS will then reduce the crab PSC limits by 35 percent during
the A and B seasons for the PCTC Program. As with halibut PSC, any
amount of the PCTC Program PSC limit remaining after the B season will
be reallocated to the C season trawl CV limited access fishery.
VI. AI Community Protections
Under the PCTC Program, cooperatives are required to collectively
set aside an amount of CQ equal to 12
[[Page 53711]]
percent of the overall A season CQ for delivery to an Aleutian Islands
shoreplant (AI CQ set-aside) during years in which an AI community
representative notifies NMFS of their intent to process Pacific cod.
The term ``Aleutian Islands shoreplant'' means a processing facility
that is physically located on land west of 170[deg] W. longitude within
the State of Alaska. The rationale and need for this provision is
explained in detail in the preamble to the proposed rule and in Section
2.9.6 of the Analysis prepared for this action (see ADDRESSES).
The AI CQ set-aside provides additional incentives for harvesters
to deliver AI Pacific cod to an Aleutian Islands shoreplant. The AI CQ
set-aside is designed to provide benefits and stability to fishery-
dependent fishing communities in the AI when a shoreplant is operating
and is responsive to lingering effects caused by changes in management
regimes such as rationalization programs. Without the AI CQ set-aside,
AI harvesters, shoreplants, and fishing communities could be preempted
from the fishery by the offshore sector. The AI CQ set-aside is
especially beneficial to AI communities in low TAC years when harvest
can otherwise fully occur in the BS, preventing any cod deliveries in
the AI.
This final rule does not affect any sector's BSAI Pacific cod
allocation or the CDQ Pacific cod allocation in the AI. Non-CDQ sectors
continue to receive annual allocations as established under Amendment
85 to the BSAI FMP (72 FR 50787, September 4, 2007). The performance of
this AI CQ set-aside provision will be evaluated in the periodic
reviews of the Program.
A. Managing the AI CQ Set-Aside
The AI CQ set-aside provision for AI processors requires
cooperatives to set-aside an amount of annual CQ for delivery to an
Aleutian Islands shoreplant if the city of Adak or Atka files a notice
of intent to process that year. The AI CQ set-aside is in effect and
available for delivery to an Aleutian Islands shoreplant during the A
and B seasons unless all notices of the intent to process are withdrawn
by the AI communities. If all notices of intent to process are
withdrawn, any remaining portion of the AI CQ set-aside will be
available for cooperatives to deliver to any processor.
Cooperatives will manage the AI CQ set-aside through an inter-
cooperative agreement. This agreement will ensure annual coordination
between the cooperatives and shoreplants that are operating in the AI
and guarantee that the AI CQ set-aside is available for delivery to the
Aleutian Islands shoreplants. This reduces the management burden on
NMFS and relies on the cooperatives to organize annual fishing
activity.
Each year, the cooperative must submit a copy of the inter-
cooperative agreement with the Application for PCTC Program CQ to NMFS
that describes (1) how the AI CQ set-aside would be administered by the
cooperatives, (2) how the cooperatives intend to harvest the AI CQ set-
aside, and (3) how cooperatives would ensure that CVs less than 60 ft
(18.3 m) LOA assigned to an LLP license with a transferable AI
endorsement have the opportunity to harvest 10 percent of the AI CQ
set-aside for delivery to an Aleutian Islands shoreplant. Each
cooperative is required to provide the cooperative's plan for
coordinating harvest and delivery of the AI CQ set-aside to an Aleutian
Islands shoreplant regardless of whether that cooperative intends to
harvest any amount of the AI CQ set-aside.
For the calendar year 2023, to provide for implementation of the
Program during its first year, NMFS will allow each cooperative to
submit the inter-cooperative agreement on or before December 31, 2023,
after the November 1 deadline for the Application for PCTC Program CQ.
B. Intent To Process and Eligibility for AI CQ Set-Aside
This final rule allows the representative of the City of Adak or
the City of Atka to submit an annual notice of intent to process PCTC
Program Pacific cod in the upcoming fishing year to the NMFS Regional
Administrator no later than October 15 of the year prior to fishing.
Submission of the notice of intent by October 15 provides NMFS inseason
management with the timely information it needs to manage the upcoming
fisheries and notify the cooperatives that the AI CQ set-aside is in
effect for the upcoming year. If neither Adak nor Atka submit a notice
of intent to process by October 15, cooperatives are not required to
set aside CQ for delivery to an Aleutian Islands shoreplant in the
subsequent fishing season.
A city's notice of intent to process Pacific cod must contain the
following information: date, name of city, a statement of intent to
process Pacific cod, statement of calendar year during which the city
intends to process Pacific cod, and the contact information for the
city representative where the relevant shoreplant is located.
On or before November 30, the Regional Administrator will notify
the representative of Adak or Atka confirming receipt of their notice
of intent to process Pacific cod. Shortly after receipt of a notice of
intent to process Pacific cod, NMFS will announce through notice in the
Federal Register whether the AI CQ set-aside is in effect for the
upcoming fishing year.
Even if Adak or Atka is uncertain at the time the notice of intent
is due as to whether an Aleutian Islands shoreplant will be
operational, there would be no penalty to Adak or Atka or the
shoreplant for stating their intention to process but then later
withdrawing that notice of intent. Adak or Atka would be allowed to
withdraw their notice of intent at any time after submitting it to
NMFS. In the event that both Adak and Atka withdraw their notices of
intent to process during the A or B season, NMFS will publish a notice
in the Federal Register announcing that the AI CQ set-aside is no
longer in effect and remove the delivery requirement. The remaining
portion of the AI CQ set-aside would be available for harvest without
restrictions on delivery location.
NMFS will monitor the implementation of the AI CQ set-aside
throughout the A and B seasons. NMFS will consider the number and
frequency of deliveries to Aleutian Islands shoreplants as well as the
season timing and remaining CQ to be harvested. As soon as practicable,
if the Regional Administrator determines that Aleutian Islands
shoreplants authorized under the PCTC Program will not process the
entire AI set-aside, the Regional Administrator may publish a notice in
the Federal Register to remove the delivery requirement for some or all
of the projected unused AI CQ set-aside.
C. AI DFA
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. Each year, during the annual harvest specifications
process described at Sec. 679.20(c), NMFS will specify an ICA and a
DFA derived from the AI non-CDQ TAC. The 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 will be
the AI ICA. The amount of the AI ICA may vary from year to year, and in
future years, NMFS will specify the AI ICA in the annual harvest
specifications based on recent and anticipated
[[Page 53712]]
incidental catch of AI Pacific cod in other AI non-CDQ directed
groundfish fisheries. The amount of the AI non-CDQ TAC remaining after
subtraction of the AI ICA will be the AI DFA.
NMFS will specify the AI ICA and DFA so that NMFS can clearly
establish the amount of the AI CQ set-aside. It will 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 annual AI CQ set-aside for delivery to an
Aleutian Islands shoreplant is equal to the lesser of either the AI
Pacific cod non-CDQ DFA or 12 percent of the A season CQ and is in
effect during the A and B seasons. When the AI CQ 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 an Aleutian Islands shoreplant. However, if the AI DFA is greater
than the AI CQ set-aside (and thus the set-aside is equal to 12 percent
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 PCTC Program
vessels with no restrictions on where that CQ must be delivered and
processed.
VII. C Season Limited Access Fishery
The C season apportionment--which is 15 percent of the total annual
allocation to the BSAI Pacific cod trawl CV sector--remains 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, which occurs June 10 through November 1,
continues to be managed as it is under status quo conditions and
remains unchanged by this final rule.
Although directed fishing for Pacific cod in the C season 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
the fall, as directed fishing for Pacific cod that opens on September 1
for the hook-and-line and pot sectors progresses, NMFS estimates any
BSAI trawl CV C season allocation, including any unused amounts of PCTC
Pacific cod and PSC limits rolled over to the C season, will be
available for reallocation to other sectors. In some years, projected
unused amounts of the trawl CV Pacific cod TAC will be available to
reallocate, and NMFS may make a reallocation in late September or
October. In other years, there may not be any projected unused amounts,
and NMFS will wait until after directed fishing for pollock and Pacific
cod by the trawl CV sector closes. In that circumstance, reallocations
will 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. For projected unused PSC limits, the
Regional Administrator may reallocate a portion of crab PSC or halibut
PSC to Amendment 80 cooperatives if the amount assigned to the BSAI
trawl limited access sector is not projected to be harvested or used
(Sec. 679.91(f)).
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 are granted harvest
privileges in the A and B seasons of the BSAI Pacific cod fishery.
Those harvest privileges alter the reallocation structure from the
trawl CV sector prior to the C season since rollovers of unused CQ and
PSC limits to other sectors will not occur until the close of the
annual PCTC fishing year (the end of the B season).
VIII. Additional PCTC Program Provisions
A. Sideboard Limits in the PCTC Program
The PCTC Program modifies existing GOA sideboard limits and
associated GOA halibut PSC limits for non-exempt AFA vessels and LLP
license holders and closes directed fishing where sideboard limits are
too small to support a directed fishery. All GOA non-exempt AFA CVs and
associated AFA LLP licenses are sideboarded in aggregate for all GOA
groundfish fishing activity and for GOA halibut PSC based on their GOA
catch history during the qualifying period, except when participating
in the Central Gulf of Alaska (CGOA) Rockfish Program. The existing
sideboards apply to non-exempt AFA vessels as defined at Sec.
679.64(b)(2). The PCTC Program modifies 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 are also
subject to the revised sideboard limits regardless of which vessel is
named on the LLP.
GOA 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 will 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 2).
[[Page 53713]]
[GRAPHIC] [TIFF OMITTED] TR08AU23.008
In addition, the ratio used to apportion GOA halibut PSC limits is
modified and the five seasonal apportionments based on that sideboard
ratio is reduced to a single aggregate annual amount. Providing an
aggregate annual halibut PSC limit provides greater flexibility for the
AFA vessels and LLP licenses to assign halibut PSC limits to those GOA
groundfish sideboard fisheries that have the greatest value. Table 3
shows the new aggregate GOA halibut PSC limit ratio based on catch
history during the qualifying period 2009-2019 that will be used
annually in the GOA harvest specifications table after the effective
date of this final rule.
Table 3--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, this final rule closes 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, Central GOA dusky rockfish, and Eastern GOA and Central 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 and
instead this final rule specifies in regulation at Sec.
679.64(b)(4)(ii) that directed fishing for these species is closed to
non-exempt AFA CVs.
The Council directed cooperatives to (1) ensure GOA AFA exempt and
non-AFA CVs and CVs assigned to under 60 ft (18.3 m) LLP licenses with
AI transferrable endorsements do not lease their CQ as a condition of
benefiting from a GOA sideboard exemption, (2) implement a penalty
structure for violations, and (3) report leasing activities and
penalties issued in the cooperative's annual report to the Council. The
cooperative can allow leasing for (1) AFA GOA-exempt CVs, non-AFA CVs,
and CVs assigned to under 60 ft (18.3 m) LOA LLP licenses with a
transferable AI endorsement with less than 300 metric tons of average
annual qualifying catch history, and (2) CVs assigned to the LLP
license that only fishes in the CGOA Rockfish Program during the
calendar year. Additionally, NMFS requires cooperatives to include
information about the cooperative's plan to monitor CQ leasing
activities, including into
[[Page 53714]]
GOA fisheries, in the Application for PCTC Program CQ.
B. Changes to Existing BSAI Sideboard Limits for AFA CVs
This final rule revises the BSAI Pacific cod and halibut PSC
sideboard limits for AFA trawl CVs specified at Sec. 679.64(b)(4)(i)
and in Table 40 to part 679 to only apply in the C season. The BSAI
Pacific cod sideboard limit is no longer necessary in the A and B
seasons because directed fishing in the BSAI for Pacific cod is now
managed under the PCTC Program. NMFS removes the halibut PSC sideboard
limits for AFA trawl CVs because the PCTC Program establishes lower PSC
limits for PCTC Program participants. This final rule does not change
the BSAI crab PSC sideboard limit for AFA trawl CVs specified at Sec.
679.64(b)(4)(i) and Table 41 to part 679.
C. At-Sea Processing Sideboard Limit
This final rule implements a sideboard limit on the amount of CQ
that can be processed by a CP designated on a groundfish LLP license
with a BSAI Pacific cod trawl mothership endorsement. This sideboard
limit is assigned to each LLP license with a BSAI Pacific cod trawl
mothership endorsement that authorizes the CP to act as a mothership in
the BSAI Pacific cod fishery as listed in Table 57 to part 679. The
Council recommended that each eligible CP acting as a mothership can
process up to 125 percent of the eligible CP's processing history
during the qualifying years (with no drop year). This at-sea processing
sideboard limit is permanently attached to the associated LLP license
and applies to the processing activity of any associated vessel.
The data used to calculate the at-sea processing sideboard limits
and the resulting sideboard limit assigned to each LLP license is
confidential. Each LLP license holder is responsible for coordinating
with any cooperative to ensure the applicable processing limit is not
exceeded. The at-sea processing sideboard limit is not an allocation
and the PCTC Program does not require that this amount be delivered to
CPs acting as a mothership, but it provides an upper bound on how much
CQ may be delivered.
The at-sea processing sideboard limit is consistent with Amendment
120 (84 FR 70064, December 20, 2019) that restricted the number of CPs
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, 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 can be processed because
it was not thought that any one processor could increase their capacity
significantly under the LLP management system. However, under this
rationalized, slower paced, cooperative fishing Program, the Council
and NMFS determined it may be possible for continued mothership
processing growth beyond historical patterns, so the Council
recommended that a processing limit be established for each LLP license
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).
Annually, NMFS will calculate the at-sea processing sideboard
limit, expressed as a percentage of the aggregate CQ that would apply
to each LLP license with a BSAI Pacific cod trawl mothership
endorsement and notify the LLP license holder upon issuance of initial
allocations. This final rule does 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 license as
specified at Sec. 679.4(k)(7)(vii). Each LLP license subject to this
at-sea processing sideboard limit is prohibited from exceeding the
processing limit as specified in regulations at Sec. 679.133(b)(2).
D. Cost Recovery
The PCTC Program is 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 will assess a fee on the ex-vessel value
of PCTC Program Pacific cod harvested by cooperatives in the BSAI.
Halibut and crab PSC are not subject to a cost recovery fee because PSC
cannot be retained for sale and, therefore, does not have an ex-vessel
value.
The annual PCTC Program cost recovery process builds on other
existing cost recovery requirements implemented under other programs.
NMFS annually receives information used to calculate Pacific cod
standard prices in the existing BSAI Pacific cod Ex-vessel Volume and
Value Report, which is submitted in early November of each year. NMFS
will use this existing data source to calculate standard prices used to
determine the annual PCTC Program fishery value, which will be used to
calculate the annual PCTC Program cost recovery fee percentage. NMFS
will begin tracking PCTC Program management costs upon the effective
date of this final rule. PCTC Program landings will be made in the A
and B seasons, which extends from January 20 to June 10.
The following is an example to illustrate the data NMFS will use in
the annual PCTC Program cost recovery process using the year 2025. The
PCTC Program fishing year will have landings subject to cost recovery
starting on January 20, 2025 and ending on June 10, 2025. NMFS will
calculate standard prices derived from the volume and value report
submitted by November 10, 2024 for landings made in 2024. Finally, NMFS
will 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 will publish a notice announcing the standard
prices and fee percentage in the Federal Register and send invoices to
cooperatives.
NMFS will send each cooperative a fee liability letter to inform
each cooperative of the fee percentage applied to the current year's
landings and the total amount due (fee liability). The letter will
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.
Fees must be paid by August 31 of each year. NMFS requires that all
payments be submitted electronically in U.S. dollars through the NMFS
Alaska Region website. Instructions for electronic payment are made
available on the payment website and through a fee liability summary
letter NMFS will mail to the cooperative.
Each cooperative is responsible for paying cost recovery fees
assessed on cooperative landings. Failure to pay cost recovery fee
liabilities on time will 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. NMFS will not issue a CQ permit
until NMFS receives a complete application for CQ and confirmation of
the full payment of any cost recovery fee liability. Communication with
NMFS using the contact information provided in the fee liability letter
will provide ample opportunity for cooperative to
[[Page 53715]]
reconcile accounts. However, if the account is not reconciled and the
individual does not pay, NMFS will send an IAD to the cooperative. The
IAD would state that the cooperative's estimated fee liability due from
the cooperative had not been paid. The cooperative may appeal the IAD.
The appeals process is described at Sec. 679.43. A cooperative who
appeals an IAD would not receive a new CQ permit unless the appeal was
resolved in the applicant's favor.
The agency may pursue collection of the unpaid fees if the formal
determination is not appealed and the account remains unpaid or under-
paid 30 days after fees are due (August 31 of each year). The Regional
Administrator will continue to prohibit issuance of a CQ permit for any
subsequent calendar years until NMFS receives the unpaid fees.
E. Monitoring Provisions
This final rule establishes requirements for observer coverage and
other monitoring and enforcement provisions to ensure that fleet-wide
harvests under the PCTC Program are effectively monitored and that
catches remain within allocations. These requirements include full
observer coverage for CVs harvesting CQ (except for CVs delivering
unsorted codends to motherships, as explained below) 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. Shoreside processors are required to
report landings data to NMFS electronically through eLandings.
Estimates of at-sea discards and PSC would be derived solely from
observer data.
All vessels used to harvest CQ are required to carry equipment to
facilitate at-sea electronic transmission of observer data to NMFS.
This final rule modifies regulations at Sec. 679.51(e)(1)(iii)(A) to
explicitly require vessel operators to allow an observer to use the
vessel's existing communications equipment for confidential entry,
transmission, and receipt of work-related messages.
All vessels participating in the PCTC Program are 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, they are transmitted to NMFS.
At-sea transmission of observer data improves data quality. To
minimize impacts to small vessel operators, the requirements for non-
AFA trawl CVs to install equipment necessary to facilitate at-sea
observer data transmission become effective three years after the
effective date of this final rule. Though the installation of equipment
to facilitate at-sea data transmission on non-AFA vessels will not be
required immediately upon implementation of the Program, this final
rule clarifies that if a 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.
This final rule requires 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 CPs. These
requirements are already applicable to Amendment 80 CPs acting as
motherships and would continue to apply when acting as a mothership to
process PCTC Program CQ. This final rule does 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.
Motherships receiving deliveries from PCTC Program CVs are required
to have at least two observers aboard the mothership, at least one of
whom will be required to be endorsed as a lead level 2 observer. More
than two observers are 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, must be weighed
on a NMFS-approved scale in compliance with the scale requirements at
Sec. 679.28(b). Each haul must be weighed separately and all catch
made available for sampling by an observer.
This Program establishes catch monitoring requirements for all
shoreside processors receiving deliveries from CVs harvesting PCTC
Program CQ. All groundfish landings made to a shoreside processors must
be sorted; weighed on a scale approved by the State of Alaska as
described at 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.
F. PCTC Program Review
The Council will review the PCTC Program five years after
implementation to determine if the Program is functioning as intended,
as required by the Magnuson-Stevens Act. This review and evaluation by
the Council will include an assessment of the program objectives.
Specifically, the Council will 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 will
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 will be the impact of this action on the harvesting and
processing sectors, as well as on fishery dependent communities. The
Council will also assess whether the needs for management and
enforcement, as well as data collection and analysis, are adequately
met.
Comments and Responses
NMFS received 16 comment letters on the NOA and the proposed rule.
NMFS has summarized and responded to the 55 unique comments below. The
comments were from individuals, local government representatives,
Alaska Native corporations, and industry participants including
harvesters and processors.
Comments in Support
Comment 1: Several commenters expressed support for Amendment 122
and timely implementation of the PCTC Program in 2024. The PCTC Program
will maintain or improve harvesting and processing participation in the
Pacific cod fishery, it provides fair and equitable allocation of QS to
harvesters and processors. It will reduce environmental impacts of the
fishery, and it will promote conservation and sustainability.
Response: NMFS acknowledges this comment.
[[Page 53716]]
Comment 2: This rule is important to recover and conserve our
mammals. This rule will help ensure the productivity and sustainability
of fisheries.
Response: NMFS acknowledges this comment.
Comment 3: Limiting the amount of Pacific cod that fisheries are
allowed to harvest is good because it balances economics with the
sustainability of the environment.
Response: NMFS specifies the OFL, ABC, and TAC for BSAI Pacific cod
through the annual harvest specification process as further explained
in Section I of this preamble. For Pacific cod, the harvest
specifications establish separate OFLs, ABCs, and TACs for the BS
subarea and the AI subarea of the BSAI. Allocations of Pacific cod to
the CDQ Program and to the non-CDQ fishery sectors are further
apportioned by seasons. The PCTC Program allocates the available
Pacific cod to the various trawl harvesters during the A and B season;
this action does not change the overall amount of Pacific cod that is
expected to be harvested annually.
Comment 4: Amendment 122 and the efforts by the Council to
establish the PCTC Program are supported because they recognize
processing history as well as investments in the fishery and
acknowledge what a shift a catch share program can have on
relationships between harvesters and processors. The qualifying years
are appropriate and were well-supported throughout the Council's
lengthy process to establish Amendment 122. The commenter supports
actions by the Council that do the least amount of harm to the overall
participants in the BSAI cod fishery.
Response: NMFS acknowledges this comment.
Conservation
Comment 5: Pelagic, or midwater, trawlers use nets within the water
column between the surface and seabed. Pelagic trawling is considered
more sustainable because of the belief that their nets do not make
contact with the seabed, but pollock midwater trawlers make contact
with the seabed 40-70 percent of the time they are completing a trawl.
The Council is focusing on Pacific cod because of the impact of benthic
trawls (also known as nonpelagic or bottom trawls) on the seabed and
non-target species without fully considering whether pelagic trawls in
more ecologically sensitive areas may have a more significant overall
impact.
Response: Under the PCTC Program, vessels will use nonpelagic trawl
gear, as defined at Sec. 679.2, to harvest CQ. Nonpelagic trawl gear--
trawl gear that targets fish species near the ocean floor--is different
than pelagic trawl gear, which targets fish species in the water
column. This comment addresses management issues that are beyond the
scope of Amendment 122 and this regulatory action. This action is not
intended to modify authorized gear types, including nonpelagic trawl
gear used in the PCTC Program, or address their use in sensitive areas.
Modifications to authorized gear types or use in sensitive areas would
need to be addressed in a separate regulatory action developed through
the Council process. Section 3.1.2 of the Analysis states that previous
analyses have found no substantial adverse effects to habitat in the
BSAI caused by fishing activities. Any effects continue to be limited
by the amount of the groundfish TACs and by the existing habitat
conservation and protection measures. Overall, the combination of the
direct, indirect, and cumulative effects on habitat for both living and
non-living substrates, benthic biodiversity, and habitat suitability
are not likely to be significant under this action.
Comment 6: It is important to understand the destruction of
trawling despite its efficiency. Effort can be made to fish more
sustainably. Trawling in Alaska should be done less in order to protect
Pacific cod, other species, and the ocean floor.
Response: NMFS manages the BSAI Pacific cod fishery based on the
best scientific information available. To ensure conservation of the
resource, the status of the Pacific cod stock is reviewed by NMFS and
the Council each year through a public scientific review process before
the TAC is allocated. The Council and NMFS analyzed the environmental
impacts of Amendment 122 and concluded that it would not result in a
significant impact on the human environment as presented in the
Analysis and FONSI prepared for this action (see ADDRESSES). This
action is not intended to modify authorized gear types.
Quota Share for Harvesters and Processors
Comment 7: In recommending Amendment 122 and this Program, the
Council intended for NMFS to consider specific area endorsements on
each LLP license at the time of harvest in determining how to attribute
qualifying catch history to an LLP license in the situation when there
were two or more LLP licenses associated with the vessel. The language
in the proposed rule does not clearly indicate that only the LLP
license with the appropriate area endorsement would receive the
resulting qualifying catch history.
Response: NMFS agrees and clarifies that specific area endorsements
are considered when determining how to attribute qualifying catch
history to LLP licenses. In determining how to attribute catch history
when two or more LLP licenses were associated with a vessel, NMFS
considers the area endorsements on each of the LLP licenses at the time
fishing occurred.
An LLP license will only be eligible for qualifying catch history
in an area if it had the endorsement for that area at the time of
harvest. In the event more than one LLP license associated with a
vessel had the area endorsement for where the catch occurred, the
vessel owner will decide how to assign QS to the LLP licenses. In the
event only one LLP license associated with a vessel had the area
endorsement for where the catch occurred, despite there being more than
one LLP license associated with the vessel at the time fishing began,
only the LLP license with the correct area endorsement will receive the
resulting qualifying catch history. The vessel owner would not decide
how this portion of the QS would be assigned between LLP licenses. For
example, say a vessel had qualifying catch history in the BS and AI and
was named on two LLP licenses at the time the landing occurred. One LLP
license had a BS endorsement and the other LLP license had BS and AI
endorsements. In this scenario, fishing history in the BS would be
considered shared catch between the two LLP licenses (because both LLP
licenses had the appropriate endorsements authorizing the fishing
activity) and fishing history in the AI is considered qualifying catch
history only for LLP license with the AI endorsement.
Comment 8: NMFS should use ``target'' catch in the official record
to determine initial QS issued to harvesters and processors.
Response: NMFS agrees. Under the PCTC Program, NMFS determines QS
allocations based on legal landings of target Pacific cod. The trawl CV
sector can have significant incidental catch of Pacific cod in other
fisheries like pollock and yellowfin sole, and historical amounts of
incidental catch have been variable. The Council recommended that the
PCTC Program not include incidental catch in the calculations for QS.
Comment 9: Will NMFS issue a PCTC Program QS permit to the owner of
a processing facility that is no longer operational, based on the
qualifying processing history at that facility?
[[Page 53717]]
Response: No. NMFS will not issue a PCTC Program QS permit to the
owner of an inactive processing facility (i.e., the facility is not
authorized by an FPP or FFP upon the effective date of this final rule)
based on the qualifying processing history at that facility. Upon
approval of an Application for PCTC Program QS, NMFS will issue a PCTC
Program QS permit to the owner of a processing facility with an active
FPP or qualifying FFP. For a person (i.e. processing firm) to receive a
PCTC Program QS permit, it requires two things: (1) processing history
in the fishery during the qualifying years and (2) a currently valid
FPP or FFP (in the case of an eligible CP with a Pacific cod mothership
endorsement).
Comment 10: Does the firm that operated the Adak facility in 2013
get credit for the Adak facility's processing history if the firm does
not hold an FPP for that facility now, but does operate one or more
facilities in the BS each with its own FPP?
Response: No. Processing history is facility specific. A firm will
not receive a PCTC Program QS permit for a facility that does not have
a current FPP. The processing history associated with that facility
will be deducted from the total amount of eligible processing history
during the qualifying years when calculating the distribution of QS to
processors.
A person may own more than one processing facility with qualifying
processing history and an FPP or FFP and therefore may receive more
than one PCTC Program QS permit. A firm that operated a processing
facility that is no longer active would be eligible to receive a PCTC
QS permit for a different facility if it holds a valid FPP for that
facility and that facility has qualifying processing history.
Comment 11: How would a new processor become eligible to receive a
PCTC Program QS permit in order to annually associate with a
cooperative?
Response: A processor would need to have an active FPP and purchase
QS from an existing PCTC Program QS permit holder under the QS transfer
provisions in this final rule.
Note that any processor with an FPP can process CQ. There is not a
requirement to hold a PCTC Program QS permit or associate with a
cooperative for a processor to receive deliveries and process CQ.
Further, any shoreside processor, stationary floating processor, or
mothership, including an eligible CP with a BSAI Pacific cod trawl
mothership endorsement, may associate with a cooperative regardless of
whether or not the processor holds a PCTC Program QS permit. For PCTC
Program QS permit holders, the only way to receive benefits from a PCTC
Program QS permit is to associate annually with a cooperative.
Comment 12: Include the years 2004 through 2009 in the PCTC Program
official record to determine an initial QS allocation to an Aleutian
Islands shoreplant, similar to the catch history for determining
initial allocations to CV LLP licenses with a transferable AI
endorsement.
Response: Even if the PCTC Program included 2004 through 2009 in
the qualifying years, the Aleutian Islands shoreplant is ineligible for
an initial QS allocation because it does not have an active FPP.
The QS issued to processors is 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. Because processing facilities will be issued QS based on
deliveries of this catch history, the Council chose to award QS based
on processing history by considering the time frame of 2009-2019, the
same time frame used for the majority of CVs. The Council did not
recommend a variation in the qualifying years for any processor either
in the BS or AI.
The Council and NMFS considered several different options for the
range of qualifying years including an option that would have included
catch history years from 2004 through 2019. The Council selected 2009
through 2019 as representative of history for the vast majority of CVs
because these years reflect current and historical participation and
are consistent with the Council's approach to awarding QS based on
catch history in other rationalization programs. The Council decided
against history earlier than 2009 for the majority of catch history
because that was prior to the implementation of Amendment 85 to the
BSAI FMP. Amendment 85 established sector allocations for Pacific and
separate TAC splits for the Pacific cod stock, which changed fishery
management and operations.
The one exception to the qualifying years is for LLP licenses with
a transferable AI endorsement that, prior to receiving that AI
endorsement through Amendment 92 to the BSAI FMP, participated in the
AI parallel fishery from January 20, 2004 through September 13, 2009
without an LLP license. Eight vessels met the criteria for eligibility
to receive these transferable AI endorsements based on their fishing
activity in parallel fisheries where they did not qualify for an LLP
license but still fished in federal waters.
Comment 13: The degree to which an LLP license holder will benefit
from dropping a year of catch history from the calculation for initial
QS allocations will depend upon the consistency of their annual
participation in the fishery. An LLP holder with one or more years of
low or no legal landings will benefit from dropping that year more than
an LLP license holder with consistently high annual participation.
Response: The Council and NMFS considered a range of drop years
from zero to two years. The range of qualifying years is 11 years, and
unforeseen events have occurred for many fishery participants. The
Council recommended and NMFS is implementing a provision to drop one
year of catch history from the initial allocation as a fair way to
remove one year that may not be representative of typical participation
in the fishery.
Comment 14: Clarify that QS can only be used if the QS holder
annually joins or associates with a cooperative.
Response: QS holders must annually join or associate with a
cooperative in order for their QS to generate the CQ necessary to
harvest Pacific cod in the BSAI trawl sector.
Comment 15: To acquire QS that would attract vessels to deliver to
a processor that does not receive an initial allocation of QS (such as
an Aleutian Islands shoreplant), a processor would need to purchase an
LLP license with attached QS. This creates a barrier to entry into the
PCTC Program because LLP licenses have a very high market price and QS
is only a small portion of that value. Because QS is only a small part
of an LLP license's value, this makes it functionally impossible for an
Adak processor to purchase QS that it would need to use in lieu of an
initial allocation of QS to attract vessels.
Response: A new entrant may acquire either harvester QS by
purchasing an LLP license with associated QS or by purchasing a
processor-held PCTC Program QS permit. It is not yet clear what the
market may be for processor PCTC Program QS permits. Generally, QS is
non-severable from the LLP license or PCTC Program QS permit except in
situations where an ownership cap would be exceeded upon transfer.
Regulations specifying transfer provisions and limitations for QS are
specified in regulations at Sec. 679.130(j) and ownership caps are at
Sec. 679.133.
This PCTC Program does not create a closed class of processors who
may process CQ. Any shoreside processor, stationary floating processor,
mothership, and eligible CPs with a
[[Page 53718]]
BSAI Pacific cod trawl mothership endorsement, may receive and process
CQ. A processor is not required to associate with a cooperative to
receive deliveries and process CQ.
Aleutian Islands CQ Set-Aside
Comment 16: Establish a minimum annual AI CQ set-aside amount equal
to 5,000 metric tons. This is the amount of Pacific cod determined to
be the minimum amount necessary to support a processing plant in the AI
under Amendment 113 to the BSAI FMP. Amendment 113 was implemented in
2016 to provide a 5,000 metric tons set-aside delivery requirement of
Pacific cod for shoreplants in the communities of Adak and Atka,
considered to be the minimum necessary to support the regional economy.
Without a floor of 5,000 metric tons of Pacific cod, the volume of fish
may not meet the minimum viable amount for the processing plant to
operate in Adak.
Response: Shortly after the court's vacatur of Amendment 113, the
Council initiated action to rationalize the BSAI trawl CV Pacific cod
fishery and included options to meet the objective of supporting
sustained participation by AI communities in the Pacific cod trawl CV
fishery. The Council recommended and this final rule implements
community protections for Adak and Atka in the form of a set-aside
provision. Under the PCTC Program, cooperatives are required to
collectively set-aside 12 percent of the A season CQ for delivery to an
Aleutian Islands shoreplant during years in which a community
representative notifies NMFS of their intent to process Pacific cod.
The AI CQ set-aside provides opportunity for Pacific cod landings to
support an Aleutian Islands shoreplant that, in conjunction with other
fishery landings and allocations, such as the AI pollock fishery,
benefit the communities of Adak and Atka. This final rule strikes 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 provision is different from the set-aside implemented under
Amendment 113 but is intended achieve a similar goal. The Council
considered maintaining the 5,000 metric tons floor similar to Amendment
113, but ultimately decided against it to maintain the same allocation
criteria for all processors and to address concerns about leasing the
5,000 metric tons floor in years when there was not an active Aleutian
Islands shoreplant. In addition, all the allocations under the PCTC
Program are based on percentages of the TAC, not static numbers. This
allows for flexibility in years of low TAC.
Comment 17: Clarify regulations at Sec. 679.132(c)(4) governing
the AI CQ set-aside provision to direct the Regional Administrator to
remove the delivery requirement rather than allow the Regional
Administrator to remove the delivery requirement if the Regional
Administrator determines that Aleutian Islands shoreplants will not
process the entire AI CQ set-aside.
Response: NMFS agrees that the proposed regulatory language needed
to be clarified. NMFS removed language at Sec. 679.132(c)(4) regarding
reallocating the projected unused AI set-aside to PCTC Program
cooperatives in proportion to the amount of CQ that each PCTC Program
cooperative received in the initial allocation of CQ for the remainder
of the A and B seasons. This language is not applicable to the PCTC
Program because the cooperatives manage the AI CQ set-aside.
However, NMFS maintained in the regulations that the Regional
Administrator may remove the delivery requirement for some or all of
the projected unused AI CQ set-aside if the Regional Administrator
determines that Aleutian Islands shoreplants will not process the
entire AI CQ set-aside. NMFS will monitor the cooperative's
implementation of the AI CQ set-aside throughout the A and B seasons.
NMFS will consider the number and frequency of deliveries to Aleutian
Islands shoreplants as well as the season timing and remaining CQ to be
harvested. The Regional Administrator will use this information to
determine if it is appropriate to remove the delivery requirement for
some or all of the projected unused AI CQ set-aside.
Comment 18: Modify regulations at Sec. 679.132(c)(4) to clarify
that if both communities of Adak and Atka file a notice of intent to
process, the delivery requirement would be in effect until both
communities withdraw their notice of intent.
Response: NMFS agrees and has modified regulations at Sec.
679.132(c)(5) and (6). In the event all notices of intent to process
are withdrawn, the Regional Administrator will remove the AI CQ set-
aside delivery requirement for that calendar year by publishing a
notice in the Federal Register.
Comment 19: Reject the AI CQ set-aside as inconsistent with
National Standard 4. All cooperative members get the benefit of both A
and B season CQ allocations. However, an Aleutian Islands shoreplant
only gets a ``reservation'' for 12 percent of the A season CQ. This
takes care of the issue of giving a disproportionate share of
processor-held CQ to company boats, but it still allows processors to
attract new vessels with volume rather than price using CQ off a
company boat to attract independent boats with a double share of CQ,
which an Adak processor cannot do because it does not get any CQ. This
means an Adak processor cannot offer a single share match, let alone a
double share, leaving the Adak plant operator at an insurmountable
competitive disadvantage.
Response: NMFS disagrees that the allocations of QS under the PCTC
Program are inconsistent with National Standard 4. National Standard 4
states that ``Conservation and management measures shall not
discriminate between residents of different states. If it becomes
necessary to allocate or assign fishing privileges among various United
States fishermen, such allocation shall be (a) fair and equitable to
all such fishermen; (b) reasonably calculated to promote conservation;
and (c) carried out in such manner that no particular individual,
corporation, or other entity acquires an excessive share of such
privilege.''
In considering whether an allocation is fair and equitable under
National Standard 4, NMFS assesses whether the allocation is rationally
connected to achieving OY in the fishery, would maximize overall net
benefits, and achieve the objectives of the FMP. In addition, NMFS
considers the relative impacts of various allocations in light of
status quo conditions. Here, the PCTC Program allocates QS to
processors based on two objective criteria: (1) historic participation
in the fishery and (2) an active processing license that demonstrates
ongoing participation. This second criteria provides some reasonable
assurance any allocated privileges will be utilized and OY will
continue to be achieved in the fishery. There is currently no active
processor (with an active FPP) in Adak that could be allocated QS based
on historic participation, and operations at the Adak plant have been
inconsistent. As a result, under the processor-held QS eligibility
criteria alone, AI communities would not receive QS under this program.
However, the Council and NMFS recognize that providing some degree
of support to AI communities remains a management objective. Therefore,
this rule includes a set-aside for AI communities that would require
cooperatives to deliver an amount of annual CQ equal to the lesser of
either 12 percent of their A season CQ or the
[[Page 53719]]
AI DFA, to an Adak or Atka if, in the future, there is an active
shoreplant in the AI capable of receiving deliveries of Pacific cod.
The AI CQ set-aside provision is rationally connected to a management
objective of supporting AI fishing communities, while recognizing that
there is currently no active processing facility in Adak to which NMFS
could allocate privileges.
NMFS disagrees that the PCTC Program allocations are not fair and
equitable because they do not place AI communities on the same footing
as active processors. The fact that the AI CQ set-aside is based on
total A season CQ is immaterial to fairness and equity--that simply
provides a basis for calculating the amount of the set-aside in any
given year. The set-aside remains in effect through the B season, and
it is intended to mandate deliveries of an amount of Pacific cod to
Aleutian Islands shoreplants through the B season whenever Aleutian
Islands shoreplants are operating.
Comment 20: Given the historic uncertainty that AI communities have
faced when trying to access fish, it is good that the Council ensured
protections for Aleutian Islands shoreplants within the PCTC Program.
However, there should be more clarity over whether processors in the
western Aleutian Islands, including Adak, would be required to join a
cooperative after signaling the Adak's intention to process fish in a
given year. It appears that Adak would not be required to join a
cooperative to receive the AI CQ set-aside, but rather that
cooperatives are responsible for delivering the set-aside to AI
processors. Adak should not be required to join a cooperative to
receive fish for processing.
Response: An Aleutian Islands shoreplant is not required to
associate with a cooperative to receive deliveries of CQ. An Aleutian
Islands shoreplant may choose to associate with a cooperative, but that
is not required to receive the benefits of processing Pacific cod under
the AI CQ set-aside provision of the PCTC Program. An Aleutian Islands
shoreplant with an active FPP may purchase QS in the future and
associate with a cooperative by bringing the QS into the cooperative.
Comment 21: Correctly describe all references to the amount of the
AI CQ set-aside as 12 percent of the PCTC Program A season CQ rather
than 12.5 percent.
Response: In the preamble to the proposed rule describing the PRA
requirements needed for this Program, NMFS erroneously described the AI
CQ set-aside as 12.5 percent instead of 12 percent and has corrected
the issue in the final rule. All other references to the AI CQ set-
aside in the proposed and final rule correctly described it as 12
percent of A season CQ or the AI DFA, whichever is less.
Comment 22: For the community of Adak, the 5 year PCTC Program
review is more likely to be an autopsy report unless there are
significant changes to the AI CQ set-aside component prior to
publication of a final rule. Access to Pacific cod is crucial for the
economic success of the Aleutian Islands shoreplant. Access to Pacific
cod means the Aleutian Islands shoreplant can support AI harvesters of
multiple species. Without Aleutian Islands shoreplant access to Pacific
cod, these harvesters are essentially stranded. There is no other
community or processing facility in Alaska that is more dependent on
Pacific cod than Adak. Pacific cod has accounted for the overwhelming
majority of landings in Adak since the plant opened in 1999. Adak is
unique in this regard; the pollock fishery (not Pacific cod) is the
primary fishery for Bering Sea processors.
Response: The Aleutian Islands shoreplants have a unique processing
history for many reasons, and their remote coastal location is a
challenge both for plant operations and harvester deliveries. NMFS
understands that Pacific cod has been crucial to the economic success
of Aleutian Islands shoreplants, but Aleutian Islands shoreplants have
not always been open to accept deliveries, as shown in the past few
years. Without an active AI processor, there is no entity to which NMFS
could allocate QS on the same terms as other processors. The PCTC
Program instead implements an AI CQ set-aside element that provides an
opportunity for AI communities to benefit from the PCTC Program in
years when an active processor is able to accept deliveries.
Comment 23: The recommendation by the Council to adopt an AI CQ
set-aside instead of a QS allocation fails to meet National Standard 8
and does not adequately respond to the problem statement relative to
the dependence of the community of Adak on the AI Pacific cod fishery.
Response: NMFS disagrees that the AI CQ set-aside is inconsistent
with National Standard 8. National Standard 8 states ``Conservation and
management measures shall, consistent with the conservation
requirements of this Act (including the prevention of overfishing and
rebuilding of overfished stocks), take into account the importance of
fishery resources to fishing communities by utilizing economic and
social data that meet the requirement of paragraph (2) [i.e., National
Standard 2], in order to (a) provide for the sustained participation of
such communities, and (b) to the extent practicable, minimize adverse
economic impacts on such communities.''
The AI CQ set-aside is intended to provide for the sustained
participation of AI communities in the event there is an operational
Aleutian Islands shoreplant in future years. Currently, no operating
shoreplant is open to accept deliveries of Pacific cod. Even if the
plant were open, without the PCTC Program AI CQ set-aside vessels,
would have no obligation to deliver Pacific cod to AI communities.
Compared to current conditions, the PCTC Program will provide for the
sustained participation of AI communities and minimize adverse economic
impacts on AI communities to the extent practicable by ensuring these
communities will receive deliveries of Pacific cod in years when an
Aleutian Islands shoreplant is in operation and able to take
deliveries.
The Council and NMFS took into account the importance of fishery
resources to fishing communities, including but not limited to Adak.
The PCTC Program is designed to provide for the sustained participation
of many different fishing communities (i.e., those communities
substantially engaged in and/or dependent on the fishery), and features
a history-based approach for initial allocation of QS that would be
made in proportion to historical levels of participation in the fishery
during the qualifying period.
Comment 24: The recommendation by the Council to adopt an AI CQ
set-aside instead of a QS allocation fails to meet the Magnuson-Stevens
Act 303A LAPP standards.
Response: NMFS disagrees that the PCTC Program fails to meet the
Magnuson-Stevens Act 303A LAPP standards. The PCTC Program is
authorized by section 303A of the MSA. The QS issued under the PCTC
Program would qualify as a permit (per MSA 303A(b)(1)) and would give
the permittee exclusive access to those fish while the permit is held.
The Magnuson-Stevens Act LAPP provisions in Section 303A(c)(5)(A)
require that the Council ensure fair and equitable initial allocations,
including consideration of (1) current and historical harvests, (2)
employment in the harvesting and processing sectors, (3) investments in
and dependence on the fishery, and (4) the current and historical
participation of fishing communities. The Council developed and NMFS
implemented the PCTC Program after considerable debate and
[[Page 53720]]
review of the Analysis prepared to support Amendment 122 and this final
rule. Any harvesters based in AI communities will receive QS
allocations just like other participants. And all processors are
subject to the same objective criteria for initial allocations of QS.
The AI CQ set-aside was a means of providing some support to AI
communities despite there being no active processor with history in the
fishery to which NMFS could allocate QS. No communities are being
allocated QS under the PCTC program.
Comment 25: Disapprove Option 6.1 (a CQ set-aside to Aleutians
Islands shoreplants) and instead adopt the structure of Option 6.2 (an
allocation to Aleutian Islands shoreplants). Adak currently does not
have a processor operating the facility. It has not been possible to
attract an operator, in large part because of the lack of leverage and
barriers to entry inherent in the PCTC Program. The Council's
recommendation of Option 6.1 rather than 6.2 creates a fundamental
structural flaw.
Response: The Council recommended Amendment 122, including option
6.1, due to the unique characteristics of the AI communities and the
difficulties in maintaining an open plant each year. Option 6.1 creates
the set-aside of 12 percent of the A season CQ for delivery to AI
shoreplants. The AI CQ set-aside is designed to be in place during the
trawl CV sector Pacific cod A and B seasons. Cooperatives are
responsible for submitting a plan to coordinate the harvest and
delivery of the set-aside. The Council did not select Option 6.2 based,
in part, on concerns about ability to lease CQ in years that the
Aleutian Islands shoreplant was not operational, which was not the
intent of the Council in providing processing opportunities for the AI
communities. The Aleutian Islands shoreplants are the only processing
plants that have a set-aside mechanism.
Similarly to other business relationships between harvesters and
processors, a processing plant will need to offer competitive prices to
harvesters. This is true for processing plants in all of Alaska's
federal fisheries.
Comment 26: An Adak entity needs to be able to associate with a
cooperative to have a seat at the table. Vessels have disincentives to
work with Adak because those vessels would be walking away from their
pro-rata share of the 22.5 percent processor CQ. This is asymmetrical
and probably disadvantages Adak. There is no limit 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.
Response: An Aleutian Islands shoreplant is not required to
associate with a cooperative, but it may associate with a cooperative
whether or not it holds a PCTC Program QS permit. In addition, CVs
harvesting CQ may deliver to any shoreside processor, including an
Aleutian Islands shoreplant, regardless of whether or not that
processor holds a PCTC Program QS permit and regardless of whether or
not the processor is associated with a PCTC Program cooperative.
Cooperatives may form annually in association with a federally
permitted processor to harvest their CQ. That processor must hold an
active FPP or FFP, but they are not required to also hold QS. This
extends to all active processors, including potential Aleutian Islands
shoreplants. However, processors do not form cooperatives and will not
be members of cooperatives under the PCTC Program. In addition,
associating with a processor in Adak would not require a cooperative to
forego access to processor-held QS. Though each cooperative is required
to associate with at least one processor, there is no limit on the
number of processors with which a cooperative may associate.
Regarding incentives to deliver to an Aleutian Islands shoreplant,
cooperatives are required to annually submit an inter-cooperative
agreement that describes, (1) how the AI CQ set-aside would be
administered by the cooperatives; (2) how the cooperatives intend to
harvest the AI CQ set-aside; and (3) how cooperatives would ensure that
CVs less than 60 ft (18.3 m) LOA 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 Islands
shoreplant. In years the AI CQ set-aside is in effect, refusing to work
with an Aleutian Islands shoreplant could mean the cooperatives forfeit
12 percent of their A season CQ. Therefore, NMFS expects the
cooperatives will have an incentive to work with an Aleutian Islands
shoreplant.
Comment 27: Each cooperative is required to set aside 12 percent of
its CQ (independent of where the members' catch history was earned or
whether they have AI LLP endorsements). This is unnecessarily
burdensome for all parties; an Adak processor will have to deal with
each cooperative individually under some very constrained deadlines.
Response: The cooperatives are required to collectively set aside
12 percent of the A season CQ and come up with a delivery strategy
through an inter-cooperative agreement. The cooperatives will have an
incentive to come up with a plan that works for all parties to ensure
CQ would not go unharvested when the set-aside is in effect. Aleutian
Islands shoreplants will need to work with cooperatives but the
cooperative system allows the flexibility to work with one cooperative
or with all cooperatives. It is possible the inter-cooperative
agreement could designate one cooperative (or more) to coordinate
deliveries with Adak so long as 12 percent of the total A season CQ is
delivered to the Aleutian Islands shoreplants.
Comment 28: The definition of an Aleutian Islands shoreplant needs
to recognize that the Aleut Corporation's lease to an operator includes
buildings and land connecting to the dock as well as the dock itself.
The final rule should affirm that a stationary floating processor that
is moored to a dock that is physically integrated into processing
operations on land qualifies as being ``land based'' west of 170
degrees.
Response: The Council selected a specific definition for an
Aleutian Islands shoreplant, similar to Amendment 113, based on public
testimony and the analysis to prevent stationary floating processors
from relocating to Adak and competing with the shoreplant. The
definition of an Aleutian Islands shoreplant does not include a
stationary floating processor at this time.
Comment 29: Use caps apply at the firm level, as they should.
However, the analysis shows that the fishery will be dominated by a
couple major companies who will be grandfathered over the cap.
Meanwhile Aleutian Islands shoreplants will be effectively capped at 12
percent by the structure of the cooperative AI CQ set-aside. Because
the AI CQ set-aside is not an allocation, the structure of the program
means the 12 percent is also very likely to be a ceiling with Aleutian
Islands shoreplants effectively capped at 12 percent, which is far less
than their historical average.
Response: NMFS disagrees that the 12 percent AI CQ set-aside is a
ceiling. The Council designed the community protection measures to
benefit Adak and Atka if their plant is operational and accepting
deliveries for that year. The 12 percent AI CQ set-aside is a minimum
delivery requirement in years when an Aleutian Islands shoreplant is
operational. Defining the set-aside as a percentage of CQ rather than a
fixed amount avoids disproportionate impacts on other PCTC Program
participants in years of low TAC (as opposed to the
[[Page 53721]]
static 5,000 metric tons delivery requirement under Amendment 113).
The Magnuson-Stevens Act requires use caps in development of a LAPP
to prevent any person from holding, acquiring, or using an excessive
share of limited access privileges. One of the use caps in the PCTC
Program is a firm level processor cap that no company may process more
than 20 percent of the CQ (Sec. 679.133(a)(4) and (5)). This
processing cap does not apply to Aleutian Islands shoreplants when the
AI intent to process is in effect.
Comment 30: Without a tag identifying whether a unit of CQ was
designated as part of the AI CQ set-aside, it will be difficult for the
Regional Administrator to know inseason whether the AI CQ set-aside
will be harvested. If any Pacific cod delivered to an AI shoreplant is
assumed to accrue against the set-aside until the 12 percent amount has
been delivered, that introduces further complexities that serve to make
the 12 percent a de-facto cap.
Response: All CQ caught in the PCTC Program will be accounted for
at the dock, except deliveries to motherships, and NMFS would consider
all CQ landed to an Aleutian Islands shoreplant to count toward the AI
CQ set-aside. There is no need to tag each unit of CQ as part of the
set-aside or not part of the set-aside, because NMFS will track all
deliveries of Pacific cod, and cooperatives will not be able to deliver
more than 88 percent of A season CQ to anywhere other than an Aleutian
Islands shoreplant.
Once 12 percent of A season CQ has been landed at an Aleutian
Islands shoreplant, cooperatives could continue to deliver to AI
communities but would no longer be required to. In contrast, once 88
percent of A season CQ had been delivered elsewhere, vessels could
deliver CQ only to an Aleutian Islands shoreplant. If the cooperatives
fail to deliver 12 percent of A season CQ to an Aleutian Islands
shoreplant, the remainder of the set-aside would remain in place for
the B season rather than being rolled over as CQ with no restrictions
on delivery. The operating Aleutian Islands shoreplant may accept
deliveries of CQ harvested in either the BS or the AI. The cooperatives
would monitor the conditions and terms of the inter-cooperative
agreement to ensure those provisions are followed.
Comment 31: The proposed rule appears to only limit CVs in the BS,
implying that the CVs could erode the AI CQ set-aside by fishing in the
AI. Section 679.132(a)(4) outlines the DFA limitations and seems to
deal with that by indicating CVs delivering to an Aleutian Islands
shoreplant are the only vessels allowed to access the DFA. NMFS should
take a very careful review of the text to confirm that the language
captures the intent of the AI CQ set-aside.
Response: When the AI CQ set-aside is in effect and set equal to
the AI non-CDQ DFA, directed fishing for Pacific cod in the AI may be
conducted only by PCTC Program CVs that deliver their catch to an
Aleutian Islands shoreplant. However, when the AI DFA is greater than
the set-aside (i.e. greater than 12 percent of A season CQ), the amount
of the DFA in excess of the set-aside could be harvested by vessels
delivering to any processor. That would not erode the set-aside, which
would remain at 12 percent of A season CQ and apply to all CVs.
Cooperatives may not deliver more than the A season CQ minus the AI CQ
set-aside established under Sec. 679.132 to processors in the BS
subarea when the AI CQ set-aside is in effect.
Comment 32: When the AI CQ set-aside is equal to the AI DFA,
directed fishing for Pacific cod in the AI may be conducted only by CVs
that deliver their catch of AI Pacific cod to Aleutian Islands
shoreplants. This is a crucial element of making the AI CQ set-aside
work under either set-aside option.
Response: NMFS acknowledges the comment in support of the AI CQ
set-aside structure. In years when the AI CQ set-aside is equal to the
AI DFA, all CQ harvested in the AI must be delivered to an Aleutian
Islands shoreplant unless the Regional Administrator removes the AI CQ
set-aside because there is no operational processor.
Comment 33: How can NMFS guarantee that the cooperatives will
comply with the AI CQ set-aside and what are the consequences if the
cooperatives fail to comply? Who negotiates and must submit to the
inter-cooperative agreement?
Response: The Council recommended, and this final rule implements,
a requirement for all PCTC Program cooperatives to form an inter-
cooperative agreement that includes an AI CQ set-aside delivery
agreement. It is the intention of the Council and NMFS that
cooperatives will negotiate with one another to ensure delivery occurs
consistent with the AI CQ set-aside provision.
Failure to come to any agreement would result in NMFS withholding
CQ. NMFS will not issue CQ to cooperatives until the inter-cooperative
agreement is submitted to NMFS with the cooperative application.
If cooperatives fail to implement the agreement and do not deliver
the AI CQ set-aside, the cooperatives would lose access to that portion
of the CQ in that year, as it could only be harvested and delivered to
an AI shoreplant.
Antitrust Concerns With the AI CQ Set-Aside
Comment 34: The AI CQ set-aside may have antitrust implications
between the processing plant operators and the cooperatives because it
would force the Aleutian Islands shoreplant to expose its fish prices
and marketing plans to its competitors prior to the season. Amendment
122 creates an opportunity for competitively sensitive information to
flow back to competing processors, and it may also align the
cooperatives' incentives with those of competing processors (and lead
to other strategic behavior that undermines competition). The
opportunity for collusion is so significant that this may rise to the
level of a ``per se'' violation of the Sherman Act.
Response: NMFS disagrees that the PCTC Program would result in per
se antitrust violations. These same concerns were raised prior to the
publication of the proposed action to the Department of Justice (DOJ)
Antitrust Division, which has expertise in the administration of
federal antitrust laws. DOJ did not inform NMFS that the Program would
result in any per se antitrust violations. All catch share programs
create some potential for anticompetitive behavior, but participants
are required to comply with antitrust laws in order to retain their
fishing privileges. Pursuant to Magnuson-Stevens Act section
303A(c)(1)(K), NMFS would revoke the limited access privileges of any
participant found to have violated federal antitrust laws.
Comment 35: Explain how the Council and NMFS intend to manage the
cooperatives to avoid potential antitrust law violations. The
difference between direct allocation and AI CQ set-aside is
competitively significant if Adak is required to join a cooperative to
receive fish for processing. An inter-cooperative agreement controls
the terms for how a set-aside for Aleutian Islands shoreplants will be
administered, clearly putting the Aleut Corporation at a competitive
disadvantage and raising antitrust concerns. Further, the proposed plan
does not provide any active governmental supervision of the market-
allocation arrangement to ensure fair treatment of the Aleut
Corporation. The Aleut Corporation plant would be a loser in this
unlawful market allocation agreement and would be forced to accept
products delivered under an inter-cooperative agreement.
[[Page 53722]]
Response: The cooperatives are responsible for management of the
cooperative system. All cooperatives are intended to only conduct and
coordinate harvest activities of members and are not Fishermen's
Collective Marketing Act (FCMA) cooperatives. An Aleutian Islands
shoreplant would not be required to join a cooperative to receive CQ
for processing. And, because cooperatives would be required to deliver
a fixed percentage of CQ to an Aleutian Islands shoreplant when
operational, it is possible that shoreplant may have some leverage in
negotiating deliveries. NMFS does not regulate market prices. However,
as stated above, the Magnuson-Stevens Act allows for NMFS to revoke and
redistribute any LAPP held by any person found to have violated the
antitrust laws of the United States.
Impacts to Adak
Comment 36: Reject the FONSI prepared for the EA analyzing the
impacts of Amendment 122 and conduct an Environmental Impact Statement
(EIS). There are real impacts to the human environment of Adak from the
lack of processing in the community. The most recent major positive
impact to the economy was the implementation of Amendment 113. The loss
of Amendment 113 and the closure of the Adak plant have already led to
the collapse of the local economy and the likely closure of the Adak
school in 2024. This loss of the processing facility and its prolonged
closure will have sociological impacts on the community. Each year that
fish processing does not occur, the community loses residents,
including families with school-age children.
Amendment 122 will not likely restore plant operations, revive the
local economy, or reopen the school. NMFS must adequately analyze a
solution to provide relief and the environment to allow fish processing
to occur in Adak to ensure consequences of existing conditions are
identified and mitigated. Amendment 122 will have negative impacts and
likely lead to prolonged closure of the processing facility.
The FONSI is incorrect when it states that Amendment 122 would not
have any effect on the health of minority or low-income communities.
Adak is a small, remote, island community with significant Unangax
population and heritage. According to the Internal Revenue Service,
Adak is a Qualified Opportunity Zone, which is defined as ``an
economically distressed community.'' It would be difficult to argue
that Adak is not a ``minority or low-income community.''
These effects should be well-documented in an EIS as these impacts
need to be studied in detail in order for NMFS and the Council to know
the full and true impacts Amendment 122 will have on Adak.
Response: The PCTC Program includes provisions designed to
facilitate processing activity that could benefit the economy in Adak
and Atka. With respect to providing for the sustained participation of
fishing communities (i.e., those communities substantially engaged in
and/or dependent on the fishery), the PCTC Program features a history-
based approach for initial allocation of QS in proportion to historical
levels of participation in the fishery to address fairness and equity.
NMFS acknowledges that there are circumstances unique to Adak and
that the processing facility, which is important to the local economy,
was relying on Amendment 113. However, after a court struck down
Amendment 113 and the plant closed, the Council had to consider means
of providing some benefits in the future if a plant were to open again
while recognizing there is no operating business that could currently
hold QS.
NMFS prepared an Analysis in compliance with the National
Environmental Policy Act (NEPA) to determine whether the environmental
impact of the proposed action was significant. The Analysis also
analyzed social and economic impacts of the alternatives, including
access to fishing activity, compared to status quo conditions. Section
2.10.5 of the Analysis discussed the impact of the proposed action on
fishing communities. Based on the Analysis, NMFS concluded that
Amendment 122 and this final rule will not have a significant impact on
the human environment. NMFS has determined that Amendment 122 will not
have significant adverse impacts on the City of Adak.
NMFS anticipates there will be beneficial economic effects compared
to status quo because the AI CQ set-aside provision is designed to
provide Pacific cod deliveries to Adak and Atka in years when there is
an operational processor. Because the EA demonstrates there will be no
significant impacts on the human environment compared to current
conditions--as opposed to in comparison to a different program not
currently under consideration--NMFS is not required to prepare an EIS
under the requirements of NEPA. Additionally, the Council on
Environmental Quality regulations implementing NEPA state in 40 CFR
1502.16(b) that economic or social effects by themselves do not require
preparation of an EIS.
Comment 37: The success or failure of the Aleut Corporation owned
processing plant has direct and real impacts to all 4,000 of the
shareholders; the economic impact of decisions made for Adak reach far
wider than the community alone. Harm to the economic stability for the
population of Adak would result in significant health impacts.
Response: NMFS anticipates beneficial effects on the health and the
environment of minority or low-income communities like Adak may be
expected as a result of this action, compared to status quo. For Adak
specifically, the AI CQ set-aside provision is designed to provide
Pacific cod deliveries to Adak and Atka in years when there is an
operational processor. As a result, this action includes provisions
designed to facilitate processing activity that might not otherwise
occur and could benefit the economy in Adak and Atka. Sections 2.10.5
and 2.10.8 of the Analysis prepared for this action provide additional
detail (See ADDRESSES).
PCTC Program Cooperatives
Comment 38: Clarify that a cooperative can associate with any
permitted processor regardless of whether that processor holds QS,
subject to some limitations on CPs acting as motherships.
Response: NMFS agrees with this clarification. There is nothing
that precludes cooperatives from associating with a permitted processor
that does not hold QS. Additionally, cooperatives may deliver Pacific
cod harvested with CQ to any federally-permitted processor, whether or
not it is associated with the cooperative.
Comment 39: Only target catch should count against CQ. Taking the
ICA off the top gives extra fish to boats that have Pacific cod bycatch
in other fisheries.
Response: NMFS concurs that only target catch counts against CQ.
Pacific cod caught incidentally in other target fisheries contribute to
the Pacific cod ICA. The Regional Administrator will annually determine
the amount of the A and B season ICA needed in other trawl CV target
fisheries and deduct that amount from the trawl CV TAC. The ICA is
determined based on the ICA rates in previous years and the projected
amount necessary for the current year. After deducting the ICA, the
remaining TAC is the DFA, which will be fully allocated as Pacific cod
CQ for the A and B season under the PCTC Program.
Comment 40: For clarity, modify the last sentence of Sec.
679.131(j)(3)(i) to
[[Page 53723]]
mirror the preamble and Council motion to clarify that all processors
with an eligible FPP or FFP are eligible to process CQ under this
program (regardless of whether or not they are issued processor-held
QS), subject to eligibility requirements under Amendment 120 to limit
CPs acting as motherships and subject to the at-sea processing limits
placed on such CPs under Sec. 679.133(b)(2) of this rule.
Response: NMFS agrees and has modified language at Sec.
679.131(j)(3)(i) to include this clarifying change. The specific
modification in the table adds that ``all processors'' would include
processors with an FFP subject to eligibility requirements under
Amendment 120 to limit CPs acting as motherships as described at Sec.
679.133(b)(2).
Comment 41: Clarify whether (1) a vessel can be listed as eligible
to harvest in a cooperative other than the cooperative to which it
assigned its QS and (2) a vessel can deliver its CQ to a processor if
it is a member of another processor's cooperative?
Response: NMFS agrees that a vessel (as identified by its FFP) can
be listed on multiple cooperative applications as an eligible harvester
despite the vessel owner not holding QS as a member of each
cooperative. Each LLP license and associated QS may only be listed on
one cooperative application and the LLP license holder is therefore a
``member'' of that cooperative.
Vessels may deliver CQ to a different processor than the processor
associated with their cooperative. There is not a closed class of
processors eligible to receive deliveries of CQ, meaning a vessel may
deliver some or all of the CQ to multiple processors.
Comment 42: Cooperative reports must be mandatory to provide
accountability, as cooperatives must `ensure/guarantee' the PCTC
Program achieves its objective of supporting sustained participation by
fishery dependent communities as stated in the problem statement.
Response: There is precedent in other programs, such as the
Rockfish Program, for relying on voluntary cooperative reporting to the
Council, and several reasons to maintain that practice here. The annual
cooperative reports to the Council contain the information that the
Council requested to determine whether the PCTC Program is meeting its
goals and objectives. Voluntary reports reduce the reporting burden on
cooperatives and their members without sacrificing providing critical
data to the Council.
NMFS separately collects the information that it needs to manage
the fishery. Voluntary cooperative reports to the Council also reduce
the time NMFS spends collecting and storing the annual reports and
eliminates the need to modify regulations for a mandatory report that
are burdensome and do not provide information necessary to manage the
fishery.
Comment 43: In terms of use of the CQ held in the cooperative, the
preamble of the proposed rule is correct and explicit that a
cooperative cannot assign a greater proportion of the CQ resulting from
processor-held QS to an LLP license owned by that processor for harvest
by a vessel owned by that processor than the LLP license would have
brought into the cooperative absent any processor-held QS. Part II.F of
the preamble to the proposed rule also states the Council intended
processor-held QS to be divided among cooperative CVs proportionately
to the QS attached to LLP licenses on board the harvesting vessel, but
the only restriction in the Council's preferred alternative is relative
to processor-held QS used on vessels that are owned by the processor.
In all other cases, it is up to the cooperative, in partnership with
its associated processor, to determine how best to optimize harvest
within the cooperative to meet the objectives of the program.
Response: This final rule establishes use caps to limit the amount
of CQ a vessel can harvest at Sec. 679.133. 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 Council specified that the cooperative will
monitor this provision and include reporting on harvest of CQ resulting
from processor-held QS in the PCTC Program cooperative annual report.
The Council also directed that each cooperative's annual report
provide information on CQ leasing activities and any penalties issued
and harvest of CQ resulting from processor-held QS. Additionally, NMFS
requires cooperatives to include information about the cooperative's
plan to monitor CQ leasing activities and the use of CQ derived from
processor held QS within the cooperative, in the Application for PCTC
Program CQ.
Comment 44: Clarify the terms ``affiliated with'' and ``ownership
of a vessel'' with respect to the use of CQ derived from processor-held
QS.
Response: NMFS defines affiliation and control at Sec. 679.2
Affiliation for the purpose of defining AFA, Rockfish Program, and PCTC
Program. See the response to Comment 43 for more discussion about
processor-held QS used in a cooperative with a processor owned vessel.
Prohibited Species Catch Limits
Comment 45: There is no requirement that the cooperatives will set
aside a proportionate amount of PSCs for the CVs that agree to take on
the obligation of harvesting the AI CQ set-aside for delivery to an
Aleutian Islands shoreplant. NMFS should make it explicit that initial
distribution of PSC limits include pro-rata amounts to the AI CQ set-
aside and require that the inter-cooperative agreement and each
cooperative agreement contain provisions mandating initial distribution
of PSC pro-rata to the individual's QS percentage.
Response: NMFS requires an inter-cooperative agreement signed by
all cooperatives prior to issuing CQ each year. The cooperatives must
agree in the inter-cooperative agreement which cooperatives will
deliver the AI CQ set-aside to the Aleutian Islands shoreplants. In
that agreement, cooperatives should confirm that there would be
sufficient CQ and PSC set aside to accomplish deliveries. The Council
recommended a cooperative system to manage the CQ and PSC limits
allocated within the PCTC Program. NMFS anticipates that each
cooperative will maximize its usage of CQ and PSC limits to the extent
practicable, including adhering to delivery requirements to Aleutian
Islands shoreplants in years the AI CQ set-aside is in effect.
Comment 46: Be explicit that the total halibut PSC limit reduction
is 25 percent, but in the first year, NMFS will apply a 12.5 percent
reduction. This is consistent with the Council motion.
Response: NMFS clarified this change in the final rule preamble and
confirms that this provision aligns with the Council's description of
the PSC limit reduction described in the analysis. To clarify, the
total halibut PSC reduction is 25 percent, phased in over two years.
NMFS will reduce the halibut PSC for the PCTC Program by 12.5 percent
in the first year of the Program, and will apply a 25 percent reduction
to halibut PSC in the second year and each year thereafter.
[[Page 53724]]
Comment 47: An Aleutian Islands shoreplant needs to be able to
associate with a cooperative in order to be able to access transfers of
PSC limits.
Response: NMFS disagrees. Cooperatives can process their Pacific
cod at any processor, subject to the at-sea processing sideboard limit
specified at Sec. 679.133(b)(2). Processors do not need access to PSC
limits; only harvesters do.
Inter-Cooperative Agreement
Comment 48: NMFS should make the PCTC Program official record or a
list of LLP license holder information available to the inter-
cooperative manager when application packages are sent out.
Response: NMFS will publish a list of LLP license holders and
processors who are expected to qualify for QS under the PCTC Program on
the Alaska Region website with the publication of this final rule in
the Federal Register.
Comment 49: The proposed rule states that all participants in the
Program would be required to organize a cooperative prior to the
November 1 deadline each year. Does the inter-cooperative agreement
need to be in place by November 1st? Where are the application
requirements for the inter-cooperative agreement? In the proposed rule,
it appears that the individual cooperative applications would simply
include a copy of the inter-cooperative agreement that defines how the
AI CQ set-aside will be harvested.
Response: Inter-cooperative formation needs to occur prior to
November 1. There are no application requirements for the inter-
cooperative agreement; however, cooperatives must include a copy of the
inter-cooperative agreement in order for their CQ application to be
approved, and that agreement must specify how the AI CQ set-aside would
be harvested.
For the first year, NMFS is making a change to the deadline to
accommodate timing concerns. For the calendar year 2023 only, each
cooperative must submit the inter-cooperative agreement to NMFS prior
to December 31, 2023, described at Sec. 679.131 (a)(4)(viii). 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 transfers of CQ or PSC limits between cooperatives.
Comment 50: The proposed rule does not provide any guidance on how
an inter-cooperative agreement would be agreed upon by the cooperative
members.
Response: The Council recommended a cooperative-based structure for
implementation of the PCTC Program based on public testimony. NMFS
interprets this to mean that the cooperatives will structure their
inter-cooperative agreement in a way that satisfies the AI CQ set-aside
requirements without further guidance from NMFS on cooperative
management. There is precedent set for cooperative systems using
agreements like this, including in other North Pacific catch share
programs. Because an inter-cooperative agreement will be required in
order for NMFS to approve applications for CQ, NMFS does not anticipate
additional procedural guardrails are necessary to encourage
cooperatives to negotiate this required agreement.
Use Caps
Comment 51: It is problematic to provide information down to the
individual ownership level for certain types of ownerships structures,
such as publicly-held companies. In order to effectively enforce
ownership and use caps, the preamble to the proposed rule would require
a list of all persons, to the individual level, holding an ownership
interest in the LLP licenses that join the cooperative. The classic
case is a publicly traded owner. Because individual ownership is
constantly changing and there is little public disclosure of individual
owners, it would be impossible for a publicly traded company to submit
an ownership list to the individual level. Similarly, a company such as
American Seafoods, with a complex ownership structure and private
equity investment, does not have access to ownership information to the
individual level.
Revise the proposed standard to require the same information down
to the individual level for any person having an ownership interest in
excess of five percent. If based on that information NMFS has any
concerns about compliance with ownership and use caps, the Agency can
be authorized to request additional ownership information.
Response: The Application for PCTC CQ, the Application for Transfer
of LLP Groundfish/Crab License, and the Application for Transfer of
PCTC QS for Processors include fields to enter the names of all
persons, to the individual level, holding an ownership interest in the
LLP licenses or QS permit. Federal regulations at Sec. 697.2 defines
person as any individual (whether or not a citizen or national of the
United States), any corporation, partnership, association, or other
non-individual entity (whether or not organized, or existing under the
laws of any state), and any Federal, state, local, or foreign
government or any entity of any such aforementioned governments.
This collection of information is necessary to monitor compliance
with the use caps on CQ and the ownership caps on QS. NMFS does not
currently monitor ownership of publicly traded companies beyond the
person (i.e., beyond the company level), consistent with other Alaska
catch share programs. Collections of information remain unmodified from
the proposed rule.
At-Sea Processing Sideboard Limit
Comment 52: A mothership vessel operator receiving an unsorted
codend or ``haul'' should be allowed to assign the appropriate
management program code rather than NMFS determining that the catch
would be assigned to the PCTC Program based on the retained catch
composition as proposed in regulations at Sec. 679.20. Allowing the
vessel operator to designate which hauls are PCTC Program hauls would
be consistent with the current practice of evaluating the catch
composition prior to determining if a haul is CDQ or non-CDQ (open
access).
Response: NMFS agrees. Based on this comment, NMFS changed Sec.
679.5(c)(6)(v)(J) in the final rule. Rather than considering any
unsorted codend that is delivered to a mothership to be CQ during the
applicable PCTC Program season that is in the Pacific cod target
fishery, the final rule implements a method similar to how catch in an
unsorted codend is assigned to a CDQ group. The mothership will have 2
hours after completion of weighing all catch in the haul on the
mothership to assign a haul to the PCTC Program.
Comment 53: The two CPs acting as motherships to process CQ should
be allowed to share processing sideboards within a cooperative or by an
inter-cooperative agreement. In Amendment 122, the Council adopted
further restrictions on these two vessels, limiting each vessel to
processing no more than 125 percent of its average Pacific cod
processing history over the years 2009-2019. However, the Council did
not address the issue of flexibility between the two motherships with
respect to sideboard usage.
It is critical that final rule include this flexibility. It is
critical that the second mothership be able to provide markets if the
first mothership breaks down. It is critical that the two motherships
be able to work together as either of them nears its sideboard limit to
provide at least a single market for those fishermen who have no
delivery alternatives.
The solution is to include in the final rule a provision that
allows either of the
[[Page 53725]]
two motherships to exceed its individual sideboard based on a written
agreement submitted to NMFS transferring a portion of its annual
sideboard to the other mothership. The result would be that the total
mothership sideboard would remain in full effect but the individual
sideboards could be shared on a voluntary basis between the two
motherships in the same manner that CQ can be shared within and among
different cooperatives.
Response: The PCTC Program does not limit who may process Pacific
cod, but it does place specific limits on the amount of CQ that may be
processed by different operation types. This final rule includes the
sideboard limit on the amount of CQ that can be delivered by trawl CVs
to a CP designated on an LLP license with a BSAI Pacific cod trawl
mothership endorsement. This final rule establishes an at-sea
processing sideboard limit of 125 percent of the eligible CP's
processing history which allows some opportunity for additional
offshore processing relative to the historical annual average for each
operation. This provision allows two eligible CPs acting as a
mothership to process up to 125 percent of their individual average
Pacific cod processing history during the qualifying years of 2009
through 2019 with no years dropped.
This provision is not an allocation, and the Council did not
recommend a sideboard that would function as a joint processing
sideboard limit for the CP sector. Rather, any remaining CQ that
exceeds a vessel's at-sea processing sideboard limit may be delivered
to any other processor, including a shoreside processor.
Comment 54: Issue the at-sea processing sideboard limit applicable
to a CP designated on a groundfish LLP license with a BSAI Pacific cod
trawl mothership endorsement as a new permit or as a transferable
endorsement that could be transferred separately from the LLP license
(i.e., similar to the provisions that currently apply to certain AI
transferable endorsements for smaller vessels).
Response: The Council recommended maintaining the long-standing
policy that sideboard limits are not sector allocations and therefore
should not be transferable.
Comment 55: Revise the regulations at Sec. 679.133(b)(2) to
accurately reflect how at-sea processing sideboards are determined. The
first option sets the sideboard at 125 percent of the relevant
processing history. The second option sets it to 125 percent of the
catch history of certain catcher vessels but only up to 125 percent of
the processor's relevant processing history. In effect, the outcome
under each option will always be that each mothership's sideboard will
equal 125 percent of that vessel's relevant processing history. For
drafting simplicity, ease of future analysis and implementation, we
recommend that the proposed language to determine sideboard amounts be
revised to reflect only option 1.
Response: NMFS agrees and has revised regulations at Sec.
679.133(b)(2) to reflect that NMFS will establish a sideboard limit for
each LLP license with a BSAI Pacific cod trawl mothership endorsement
not to exceed 125 percent of a CP's processing history. Processing
Pacific cod by a CP acting as a mothership is limited by eligibility
requirements under Amendment 120 and subject to the at-sea processing
limits placed on such CPs under Sec. 679.133(b)(2).
Changes From Proposed Rule to Final Rule
This final rule includes the following substantive changes from the
proposed to final rule to address public comment, clarify regulatory
language, or to correct inadvertent errors in the proposed regulations.
Throughout the regulatory text, NMFS also made technical and grammar
edits to correct regulatory cross references, use consistent terms,
remove redundancy, and promote clarity.
At Sec. 679.2, NMFS modified the definition for PCTC Program
cooperative to add that a cooperative associates with a processor under
the requirements at Sec. 679.131. NMFS also modified the definition
for PCTC Program participants to include those harvesters and
processors who receive, hold, or use PCTC Program QS. This change was
necessary to include future Program participants who do not receive
initial allocations. NMFS removed the definition for PCTC Program CQ
because it was duplicative and the content is covered by the definition
of Cooperative Quota (CQ).
At Sec. 679.5(c)(6)(v)(J)(1), NMFS clarified the timing
requirements for a mothership to designate a haul as PCTC Program
management code based on comment 52 and added a requirement to record
the observer's haul number in the mothership daily cumulative
production logbook (DCPL). The final rule implements a method similar
to the regulation that is used for assigning an unsorted codend to a
CDQ group. The mothership will have 2 hours after completion of
weighing all catch in the haul on the mothership to assign a haul to
the PCTC Program. Also, NMFS changed the final rule to require the
mothership to report the observer's haul number in the Mothership DCPL
by 2400 hours, A.l.t., each day to record the previous day's delivery
information. This change is necessary to accurately account for PCTC
catch separate from other management programs.
At Sec. 679.7(m)(2)(i), NMFS removed the phrase ``while fishing
under a CQ permit issued to a PCTC Program cooperative'' to ensure that
motherships and shoreside processors would not be excluded from the
prohibition against failing to follow the catch monitoring
requirements. At Sec. 679.7(m)(4)(ii), NMFS clarified that it is
unlawful for the manager of a shoreside processor or stationary
floating processor to process any groundfish delivered by a CV fishing
under the authority of a CQ permit not weighed on a scale approved by
the State of Alaska. NMFS removed Sec. 679.7(m)(5)(i), Fail to retain
any Pacific cod caught by a vessel when that vessel is fishing under
the authority of a CQ permit, because improved retention/improved
utilization (IR/IU) regulations at Sec. 679.27(c)(2) already apply.
NMFS removed Sec. 679.7(m)(5)(iv) Operate a vessel fishing under the
authority of a CQ permit issued to a PCTC Program cooperative and have
any Pacific cod aboard the vessel unless those fish were harvested
under the authority of a CQ permit, because this prohibition would
prevent a mothership from possessing CDQ Program Pacific cod onboard
the vessels at the same time as participating in the PCTC Program. This
is not necessary because this final rule allows each haul delivered to
a mothership to be assigned a management program code. NMFS also
removed references to joint and several liability for violations
because existing agency regulations at 15 CFR 904.107 address joint and
several liability for any civil penalties issued.
NMFS changed to Table 56 to part 679 to include Central GOA dusky
rockfish and Central GOA Pacific ocean perch sideboard limits for non-
exempt AFA CVs. This regulatory change was inadvertently left out in
the proposed rule; however it was correctly described in the preamble
to the proposed rule at Section VIII.A and in Table 3.
The proposed rule had erroneously removed the harvesting sideboards
for AFA vessels at Sec. 679.64(b)(3)(ii), (iv), and (4)(ii). In the
final rule, NMFS added these paragraphs back in the regulations. At
Sec. 679.64(b)(3)(ii), NMFS specified that the BSAI Pacific cod
harvesting sideboard applies only to C season. At Sec. Sec.
679.64(b)(3)(iv) and 679.64(b)(4)(ii), NMFS corrected the regulation to
state that non-exempt AFA
[[Page 53726]]
CVs and the associated LLP licenses are also sideboarded upon
implementation of the PCTC Program. At Sec. 679.64(b)(4)(ii), NMFS
also corrected the Gulf of Alaska halibut PSC limit for the non-exempt
AFA CVs and associated LLP licenses.
At Sec. 679.130(e), NMFS added that a PCTC Program processor
eligible to receive an initial allocation of QS includes a processor
that holds a valid FFP and an LLP license with a BSAI Pacific cod trawl
mothership endorsement.
NMFS moved the paragraphs on the non-severability of Pacific cod
legal landings and the exception provisions from Sec. 679.130(f)(4) to
Sec. 679.130(i)(5), and made changes to the headings for consistency
and convention. NMFS added that Pacific cod legal landings are non-
severable from transferable AI endorsements. NMFS clarified in Sec.
679.130(i)(5)(i) that, if multiple LLP licenses authorized catch by a
vessel, the LLP license holders must submit to NMFS an agreement
specifying the amount of shared catch history to assign to each LLP
license with the application for PCTC Program QS.
At Sec. 679.130(j)(3), NMFS clarified several transfer
requirements for processor-held PCTC Program QS permits. First,
processors that received an initial QS allocation must have an active
FPP or FFP to receive benefits from their QS through associating with a
cooperative. Second, any transfer of QS in excess of the ownership cap
must be to another PCTC Program QS permit holder who remains below the
ownership cap or a new processor with an active FPP. PCTC Program QS
permits issued to shoreside processors can only be transferred to other
shoreside processors that hold an FPP.
NMFS also added language to specify transfer restrictions for PCTC
Program QS permits initially issued to an FFP holder. CPs acting as
motherships may transfer their QS permit to the onshore or offshore
sector, subject to eligibility requirements under Amendment 120 to
limit CPs acting as motherships (i.e. may transfer QS permits to
processors that hold a valid FPP or a valid FFP in addition to an LLP
license with a BSAI Pacific cod trawl mothership endorsement).
At Sec. 679.131(a)(1)(i), NMFS clarified that QS assigned to LLP
licenses and PCTC Program QS permits held by a processor must be
assigned to a cooperative through a CQ permit to use the CQ derived
from that QS to catch Pacific cod, crab PSC, or halibut PSC assigned to
the PCTC Program. NMFS removed the terms ``process or receive'' because
the PCTC Program does not require a processor to hold QS or CQ to
process or receive Pacific cod from cooperatives.
At Sec. 679.131(a)(4)(viii), NMFS modified the text to accommodate
cooperative formation prior to the first year of the PCTC Program in
response to comment 49. NMFS will allow, for the calendar year 2023
only, for each cooperative to submit the inter-cooperative agreement to
NMFS prior to December 31, 2023. This single year variation will give
cooperatives additional time to come to an agreement after publication
of the final rule. In all years after 2023, the inter-cooperative
agreement must be submitted with the cooperative application no later
than November 1 of each calendar year. The inter-cooperative agreement
is required before NMFS issues CQ to each cooperative and fishing
begins in A season (January 20). The inter-cooperative agreement must
be submitted regardless of whether an Adak or Atka files a notice of
intent to process with NMFS per Sec. 679.132(b).
At Sec. 679.131(i), NMFS modified language to reflect language in
other catch share programs when referring to the NMFS online system
used for inter-cooperative transfers. Instead of being specific to the
current program, eFish, NMFS used ``online system'' to account for any
future application naming conventions.
At Sec. 679.131(j)(3)(i), NMFS clarified that in order for a
cooperative to associate with a processor with an FFP, the vessel must
be named on an LLP license with a BSAI Pacific cod trawl mothership
endorsement in response to comment 40.
At Sec. 679.132(b)(5)(ii), NMFS modified this text to clarify that
cooperatives must ensure that the PCTC Program harvests from the BS do
not exceed the minimum AI CQ set-aside.
At Sec. 679.132(c)(3) and (4), NMFS clarified language pertaining
to the Regional Administrator removing the delivery requirement and the
process for withdrawing a notice of intent to process, in response to
comments 17 and 18. NMFS removed language at Sec. 679.132(c)(4)
regarding removing the projected unused AI set-aside to PCTC Program
cooperatives in proportion to the amount of CQ that each PCTC Program
cooperative received in the initial allocation of CQ for the remainder
of the A and B seasons. NMFS maintained in the regulations that the
Regional Administrator may remove the delivery requirement for some or
all of the projected unused AI CQ set-aside if the Regional
Administrator determines that Aleutian Islands shoreplants will not
process the entire AI CQ set-aside.
NMFS also removed language limiting when the City of Adak or City
of Atka could withdraw their notice of intent to process. A notice of
intent to process may be withdrawn at any time after it is submitted to
NMFS. NMFS clarified that all notices of intent must be withdrawn for
NMFS to remove the delivery requirements applicable when the AI CQ set-
aside is in effect.
At Sec. 679.133(a)(6)(iv), NMFS added language to exempt an
Aleutian Islands shoreplant from processor use caps when the AI CQ set-
aside is in effect.
At Sec. 679.133(b)(2), based on comment 55, NMFS modified the text
to reflect the Council recommendation that NMFS establish a sideboard
limit for each LLP license with a BSAI Pacific cod trawl mothership
endorsement not to exceed 125 percent of the CP's processing history.
Processing Pacific cod by a CP acting as a mothership is limited by
eligibility requirements under Amendment 120.
At Sec. 679.135(d)(2)(iv), NMFS clarified that if a cooperative
does not pay its cost recovery fees and a member of that cooperative
leaves and joins another cooperative, NMFS will withhold any CQ
generated by that person's QS until the original cooperative pays its
delinquent cost recovery fee.
Classification
Pursuant to section 304(b)(3) of the Magnuson-Stevens Act, the NMFS
Assistant Administrator (AA) has determined that this final rule is
consistent with Amendment 122 to the BSAI FMP, other provisions of the
Magnuson-Stevens Act, and other applicable law.
NMFS prepared an environmental assessment (EA) for this action and
the AA concluded that there will be no significant impact on the human
environment as a result of this rule. This action creates a LAPP to
rationalize the BSAI Pacific cod trawl CV sector A and B seasons but
will not result in significant changes to amount, timing, or location
of total harvest, or result in other changes that would significantly
impact the quality of the human environment. A copy of the EA is
available from NMFS (see ADDRESSES).
This final rule has been determined to be not significant for the
purposes of Executive Order 12866.
Small Entity Compliance Guide
Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 states that, for each rule or group of related rules for
which an agency is required to prepare a final regulatory
[[Page 53727]]
flexibility analysis, the agency shall publish one or more guides to
assist small entities in complying with the rule, and shall designate
such publications as ``small entity compliance guides.'' The agency
shall explain the actions a small entity is required to take to comply
with a rule or group of rules. The preambles to the proposed rule and
this final rule include a detailed description of the actions necessary
to comply with this rule, and as part of this rulemaking process, NMFS
included on its website a summary of compliance requirements that
serves as the small entity compliance guide: <a href="https://www.fisheries.noaa.gov/alaska/commercial-fishing/pacific-cod-trawl-cooperative-program">https://www.fisheries.noaa.gov/alaska/commercial-fishing/pacific-cod-trawl-cooperative-program</a>. This action does not require any additional
compliance from small entities that is not described in the small
entity compliance guide or the preambles to the proposed rule and this
final rule. Copies of the proposed rule and this final rule are
available from the NMFS website at <a href="https://www.fisheries.noaa.gov/region/alaska">https://www.fisheries.noaa.gov/region/alaska</a>.
Final Regulatory Flexibility Analysis (FRFA)
This FRFA incorporates the initial regulatory flexibility analysis
(IRFA), a summary of the significant issues raised by the public
comments in response to the IRFA, NMFS' responses to those comments,
and a summary of the analyses completed to support this action.
Section 604 of the Regulatory Flexibility Act (RFA) requires that,
when an agency promulgates a final rule under section 553 of Title 5 of
the U.S. Code, after being required by that section or any other law to
publish a general notice of proposed rulemaking, the agency shall
prepare a FRFA. Section 604 describes the required contents of a FRFA:
(1) a statement of the need for and objectives of the rule; (2) a
statement of the significant issues raised by the public comments in
response to the IRFA, a statement of the assessment of the agency of
such issues, and a statement of any changes made to the proposed rule
as a result of such comments; (3) the response of the agency to any
comments filed by the Chief Counsel for Advocacy of the Small Business
Administration (SBA) in response to the proposed rule, and a detailed
statement of any change made to the proposed rule in the final rule as
a result of the comments; (4) a description of and an estimate of the
number of small entities to which the rule will apply or an explanation
of why no such estimate is available; (5) a description of the
projected reporting, recordkeeping, and other compliance requirements
of the rule, including an estimate of the classes of small entities
that will be subject to the requirement and the type of professional
skills necessary for preparation of the report or record; and (6) a
description of the steps the agency has taken to minimize the
significant economic impact on small entities consistent with the
stated objectives of applicable statutes including a statement of the
factual, policy, and legal reasons for selecting the alternative
adopted in this final rule and why each one of the other significant
alternatives to the rule considered by the agency which affect the
impact on small entities was rejected.
A description of this final rule and the need for and objectives of
this rule are contained in the preamble to this final rule and the
preamble to the proposed rule (88 FR 8592, February 9, 2023) and are
not repeated here.
Public and Chief Counsel for Advocacy Comments on the IRFA
An IRFA was prepared in the Classification section of the preamble
to the proposed rule. The Chief Counsel for Advocacy of the SBA did not
file any comments on the proposed rule. NMFS received no comments
specifically on the IRFA.
Number and Description of Small Entities Regulated by This Final Rule
This final rule directly regulates 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 CPs acting as motherships, and (5) small
government jurisdictions in the AI. This rule may also impact observer
providers that support the BSAI trawl CV Pacific cod fishery, but they
are 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 final 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 (18.3 m) LOA
and eight CVs that are less than 60 ft (18.3 m) LOA with a transferable
AI endorsement.
Though CPs engage in both fish harvesting and fish processing
activities, since at least 1993, NMFS Alaska Region has considered CPs
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 CPs that are small entities. All the CPs that are
directed regulated by this action do not meet the 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 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.
Recordkeeping, Reporting, and Other Compliance Requirements
This action implements new recordkeeping, reporting, and compliance
requirements and revises existing requirements. These requirements are
necessary for the management and monitoring of the PCTC Program.
All PCTC program participants are required to provide additional
[[Page 53728]]
information to NMFS for management purposes. Each harvester is required
to track harvests to avoid exceeding their allocation. As in other
North Pacific rationalized fisheries, processors provide catch
recording data to managers to monitor harvest of allocations.
Processors are 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 final rule (see ADDRESSES).
New requirements for the PCTC Program include the Application for
PCTC Program QS, applications for transfer of QS during 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 harvesters, 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 allows persons to resolve any disputes or
request QS transfers between LLP licenses. After the 90-day window for
these transfers has closed, QS cannot 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 includes 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.
Each year the cooperative manager for each cooperative will 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 includes 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 will
be required for eligible processors to transfer their QS to other
processors. Processor QS assigned to a processor-held PCTC Program QS
permit established under the PCTC program may be transferred through
the NMFS online system with approval by NMFS.
The PCTC program requires the cooperatives to set aside 12 percent
of their A season CQ allocation for delivery to Aleutian Islands
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 notice of
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. If a notice of 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 will be used to
establish the standard price, and no additional collection of price
data will 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 revises
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 is 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 is 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 requires 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 requires that all vessels submit logbooks when fishing in
the PCTC program. All CVs greater than or equal to 60 ft (18.3 m) LOA
currently submit logbooks. Some CVs that participate in the AI Pacific
cod fishery
[[Page 53729]]
are less than 60 ft (18.3 m) 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 (18.3 m) LOA that do not currently submit a logbook will
need to begin submitting a logbook if they choose to participate in the
PCTC Program.
Description of Significant Alternatives That Minimize Adverse Impacts
on Small Entities
The Council and NMFS 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 Analysis 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 included 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 action also allocates QS to a processors
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 not selected 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. 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 or more processor(s). This
approach reduces antitrust concerns that were raised to the Council
under the AFA and non-AFA cooperative structure.
The alternatives discussed in this section constitute the suite of
``significant alternatives,'' under this 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 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 rule on small entities. After public process, the Council
concluded that the 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.
Paperwork Reduction Act
This final rule contains collection of information requirements
subject to review and approval by OMB under the Paperwork Reduction Act
(PRA). This final rule contains new collections of information for the
PCTC Program under new OMB Control Number 0648-0811 and revises
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 rule will be assigned a temporary
control number, 0648-0812, 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 rule does not make 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 0648-0811
This rule creates new collection of information requirements to
implement PCTC Program. The new collections of information authorize
applications and processes used by the PCTC Program cooperatives,
processors, LLP license holders, and community representatives to apply
for permits, to transfer CQ and QS, to manage fishing and processor
activity, and to appeal agency decisions. These new collections are
necessary for NMFS to implement, monitor, and enforce the PCTC Program.
The data is used to ensure that program participants adhere to all
harvesting, processing, ownership, and use limits.
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
application to transfer QS during the 90-day transfer window for non-
exempt AFA LLP license holders, and 4 hours for appeals.
OMB Control Number 0648-0213
This rule revises the existing requirements for the collection of
information 0648-0213 related to logbooks because CVs participating in
the PCTC Program are required to submit a CV trawl gear daily fishing
logbook. Some CVs less than 60 ft (18.3 m) LOA that do not currently
submit this logbook will need to begin doing so
[[Page 53730]]
to participate in the PCTC Program. The revision to this collection of
information adds as new respondents the CVs less than 60 ft (18.3 m)
LOA that will need to start using the CV trawl gear daily fishing
logbook. CVs participating in the PCTC Program 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 requires CPs and shoreside processors
authorized as processors in the PCTC Program to submit a product
transfer report. However, no changes are 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 rule revises 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 are required to
have a computer onboard and use ATLAS to submit observer data to NMFS.
This increases the number of vessels that need to provide observers
access to a computer with ATLAS installed. PCTC Program participants
have up to three years to install communication equipment to facilitate
electronic transmission of observer data to NMFS. 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 will need
to install ATLAS already have a computer that meets the minimum
requirements, and they will incur costs only 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 CVs that choose to participate
in the PCTC Program are required to be in the full observer coverage
category instead of the partial observer coverage category. These CVs
will no longer be required to use ODDS to log fishing trips; therefore,
this decreases 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 rule revises 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. 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 0648-0812
This rule revises 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,
0648-0812, that will later be merged into OMB Control Number 0648-0515.
PCTC Program participants 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 are 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 (18.3 m) LOA are already required to maintain logbooks but this
is a new requirement for CVs less than 60 ft (18.3 m) LOA. Some CVs
less than 60 ft (18.3 m) LOA that do not currently submit the logbook
will need to begin doing so. The temporary control number covers 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.
A change from the proposed rule to the final rule adds a new
reporting requirement for the mothership daily cumulative production
logbook, which is approved under OMB Control Number 0648-0515. This
revision to -0515 for the mothership logbook is included in this
temporary control number. No changes are needed to the respondents or
responses for the mothership logbook because all expected respondents
are currently submitting it. No change was made to the public reporting
burden because the estimate allows for differences in the time needed
to complete and submit the information. The public reporting burden per
individual response is estimated to average 15 minutes for the
mothership logbook.
OMB Control Number 0648-0678
This rule revises the existing collection of information under
0648-0678 because the Council requests PCTC Program cooperatives submit
a voluntary annual cooperative report to the Council. This revision
adds the PCTC Program cooperatives as new respondents that will submit
an annual cooperative report. The public reporting burden per
individual response is estimated to average 18 hours for the PCTC
Program annual report.
OMB Control Number 0648-0711
This rule revises the existing requirements for the collection of
information 0648-0711 related to cost recovery because the PCTC Program
is a LAPP that is subject to a cost recovery fee under Magnuson-Stevens
Act 303A. This revision adds the PCTC Program cooperatives as new
respondents that will submit a cost recovery fee to NMFS. The rule
requires PCTC Program processors to submit an annual Pacific Cod Ex-
vessel Volume and Value Report; however, this does not change 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 1 minute for the PCTC
cost recovery fee and 1 minute for the Pacific Cod Ex-vessel Volume and
Value Report.
Public Comments
We invite the general public and other Federal agencies to comment
on proposed and continuing information collections, which helps us
assess the impact of our information collection requirements and
minimize the public's reporting burden. Written comments and
recommendations for these information collections should be submitted
on the following website: <a href="http://www.reginfo.gov/public/do/PRAMain">www.reginfo.gov/public/do/PRAMain</a>. Find the
particular information collection by using the search function and
entering either the title of the collection or the OMB Control Number.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB control number.
[[Page 53731]]
List of Subjects
15 CFR Part 902
Reporting and recordkeeping requirements.
50 CFR Part 679
Alaska, Fisheries, Reporting and recordkeeping requirements.
Dated: July 28, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, NMFS amends 15 CFR part
902 and 50 CFR part 679 as follows:
Title 15--Commerce and Foreign Trade
PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE
PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS
0
1. The authority citation for part 902 continues to read as follows:
Authority: 44 U.S.C. 3501 et seq.
0
2. Amend Sec. 902.1, in the table in paragraph (b), under ``50 CFR'',
by:
0
a. Revising the entry for ``679.4'';
0
b. Adding in numerical order an entry for ``679.5(x)'';
0
c. Revising the entry for ``679.7'';
0
d. Adding in numerical order an entry for ``679.7(m)'';
0
e. Revising the entry for ``679.51''; and
0
f. Adding in numerical order entries for ``679.130'' through
``679.132'', ``679.134'', and ``679.135''.
The revisions and additions read as follows:
Sec. 902.1 OMB control numbers assigned pursuant to the Paperwork
Reduction Act.
* * * * *
(b) * * *
------------------------------------------------------------------------
CFR part or section where the
information collection Current OMB control number (all numbers
requirement is located begin with 0648-)
------------------------------------------------------------------------
* * * * * * *
50 CFR....................... .........................................
* * * * * * *
679.4........................ -0206, -0272, -0334, -0393, -0513, -0545,
-0565, -0665, and -0811.
* * * * * * *
679.5(x)..................... -0811.
* * * * * * *
679.7........................ -0206, -0269, -0272, -0316, -0318, -0330,
-0334, -0393, -0445, -0513, -0514, -
0545, -0565, and -0811.
* * * * * * *
679.7(m)..................... -0811
* * * * * * *
679.51....................... -0206, -0269, -0272, -0318, -0401, -0513,
-0545, -0565, and -0811.
* * * * * * *
679.130...................... -0811.
679.131...................... -0811.
679.132...................... -0811.
679.134...................... -0811.
679.135...................... -0811.
* * * * * * *
------------------------------------------------------------------------
PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
0
3. The authority citation for part 679 continues to read as follows:
Authority: 16 U.S.C. 773 et seq., 1801 et seq., 3631 et seq.;
Pub. L. 108-447; Pub. L. 111-281.
0
4. Amend Sec. 679.2 by:
0
a. Removing the definition of ``Affiliation for the purpose of defining
AFA and the Rockfish Program'';
0
b. Adding in alphabetical order a definition for ``Affiliation for the
purpose of defining AFA, Rockfish Program, and PCTC Program'';
0
c. Republishing the definition of ``Aleutian Islands shoreplant'';
0
d. Revising the definitions of ``Cooperative quota (CQ)'' and ``CQ
permit''; and
0
e. Adding in alphabetical order definitions for ``NMFS Alaska Region
website,'' ``Pacific Cod Trawl Cooperative (PCTC) Program,'' ``PCTC
Program cooperative,'' ``PCTC Program harvester QS pool,'' ``PCTC
Program official record,'' ``PCTC Program participants,'' ``PCTC
Program processor QS pool'', ``PCTC Program QS unit,'' and ``PCTC
Program quota share (QS)''.
The additions and revisions read as follows:
Sec. 679.2 D
[…truncated; see source link]Indexed from Federal Register on August 8, 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.