[Federal Register Volume 68, Number 28 (Tuesday, February 11, 2003)]
[Rules and Regulations]
[Pages 6833-6837]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-3379]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 020724175-3022-02; I.D. 062602E]
RIN 0648-AP71


Fisheries of the Exclusive Economic Zone Off Alaska; Amendment 69 
to Revise American Fisheries Act Inshore Cooperative Requirements

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: NMFS issues a final rule to implement Amendment 69 to the 
Fishery Management Plan for the Groundfish Fishery of the Bering Sea 
and Aleutians Area (FMP). This final rule will allow an American 
Fisheries Act (AFA) inshore cooperative to contract with a non-member 
vessel to harvest a portion of the cooperative's pollock allocation. 
The North Pacific Fishery Management Council (Council) developed 
Amendment 69 to provide greater flexibility to inshore catcher vessel 
cooperatives to arrange for the harvest of their pollock allocation, 
and to address potential emergency situations, such as vessel 
breakdowns, that would prevent a cooperative from harvesting its entire 
allocation. This action is designed to be consistent with the 
environmental and socioeconomic objectives of the AFA, the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 
the FMP, and other applicable laws.

DATES: This regulation becomes effective on March 13, 2003, except for

[[Page 6834]]

Sec.  679.62(c), which will become effective after Paperwork Reduction 
Act approval has been received from the Office of Management and Budget 
and a Federal Register notice has been published to make it effective.

ADDRESSES: Copies of the Regulatory Impact Review/Final Regulatory 
Flexibility Analysis (RIR/FRFA) prepared for Amendment 69 may be 
obtained from Lori Durall, NMFS, Alaska Region, P.O. Box 21668, Juneau, 
AK 99802, 907-586-7247.

FOR FURTHER INFORMATION CONTACT: Kent Lind, 907-586-7650, or 
[email protected].

SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fishery in the 
exclusive economic zone of the Bering Sea and Aleutian Islands 
Management Area (BSAI) under the FMP. The Council prepared, and NMFS 
approved, the FMP under the authority of the Magnuson-Stevens Act (16 
U.S.C. 1801 et seq.) and the AFA (Div. C, Title II, Public Law No. 105-
277, 112 Stat. 2681 (1998)). Regulations implementing the FMP appear at 
50 CFR part 679. General regulations governing U.S. fisheries also 
appear at 50 CFR part 600.
    The AFA established a limited access program for the inshore sector 
of the BSAI pollock fishery that is based on the formation of fishery 
cooperatives around each inshore pollock processor. Regulations 
governing the formation and operation of inshore catcher vessel 
cooperatives are set out at 50 CFR 679.62 and are summarized in the 
final rule to implement AFA-related Amendments 61/61/13/8 (67 FR 79692, 
December 30, 2002).

Purpose and Need for Amendment 69

    Several existing regulations and administrative limitations 
implementing the American Fisheries Act prevent inshore cooperatives 
from contracting with non-member vessels to harvest a portion of the 
cooperative's BSAI pollock allocation. First, NMFS recordkeeping and 
reporting requirements specify that all landings from the BSAI directed 
pollock fishery that are made by the member vessels of a cooperative 
must accrue against that cooperative's annual allocation. The NMFS 
database in its present form automatically assigns a single cooperative 
code to each AFA catcher vessel (the code representing the cooperative 
of which the vessel is a member) and, therefore, precludes a vessel 
from reporting landings using any different cooperative code during a 
fishing year. Second, regulations at 50 CFR 679.7(k)(5)(i) prohibit a 
catcher vessel listed on an AFA inshore cooperative permit to harvest 
pollock in excess of the cooperative's allocation. This prohibition 
prevented the member vessels in one cooperative from contracting to 
harvest a portion of the allocation of another cooperative.
    These restrictions, which have the effect of preventing inshore 
cooperatives from contracting with non-member vessels, were required by 
paragraphs 210(b)(1)(B) and 210(b)(5) of the AFA.
    Amendment 69 has three objectives: (1) Increase efficiency and 
provide catcher vessel owners with a more functional market for leasing 
of individual pollock allocations, (2) ensure that an inshore 
cooperative is able to harvest its entire allocation in the event of 
vessel breakdowns or other unanticipated emergencies, and (3) improve 
safety by providing greater flexibility for larger catcher vessels to 
harvest cooperative allocations during hazardous weather in winter 
months and when Steller sea lion conservation measures require that 
fishing be done further offshore.
    With respect to the first objective, the AFA allows a cooperative 
member to lease pollock quota only to those vessel owners who are 
members of the same cooperative. In cooperatives where a substantial 
number of the vessels are owned or controlled by the associated 
processor, owners of independent catcher vessels may have limited 
opportunities to lease quota to other independent vessel owners in the 
same cooperative. The problem could become even more acute at certain 
times of the year when only plant-owned vessels are operating. In this 
instance, an independent catcher vessel owner could have only one 
potential customer willing to lease his quota and, therefore, may be in 
a weak bargaining position. This independent catcher vessel owner 
likely would benefit from a broader market for his pollock quota. 
Efficiency could improve if the vessel that is being contracted to 
harvest the pollock has lower operating costs than the vessel initially 
granted use rights to the pollock by the cooperative, depending upon 
the cost and terms of the lease contract.
    With respect to the second objective, under existing regulations, 
if one or more vessels in a cooperative breaks down or is otherwise out 
of commission, and the other vessels in the cooperative are already 
operating at full capacity, a catcher vessel owner could be unable to 
contract with a replacement vessel to harvest his portion of the 
cooperative's pollock allocation. An unexpected emergency such as a 
dockside fire or accidents that disable or destroy several member 
vessels of a cooperative at the same time could result in the 
cooperative being unable to harvest a large portion of its annual 
allocation. This final rule gives cooperatives the means to deal with 
such emergency situations and facilitate their ability to harvest their 
entire annual allocations.
    With respect to the third objective, safety may be improved if the 
owners of smaller catcher vessels have greater flexibility to enter 
into contracts with larger (presumably safer) vessels to harvest the 
smaller vessel's allocation during the more hazardous weather 
conditions common during winter months and when Steller sea lion 
protection measures require that fishing be conducted further offshore.

Council Authority to Supersede the AFA

    Subsection 213(c) of the AFA authorizes the Council to recommend 
management measures to supersede certain provisions of the AFA. Any 
measure recommended by the Council, and approved by the Secretary of 
Commerce (Secretary), that supersedes a specific provision of the AFA 
is implemented in accordance with the Magnuson-Stevens Act. In 
developing Amendment 69, the Council determined that all three 
objectives for Amendment 69 meet the criteria established in paragraph 
213(c)(1) of the AFA, which states that the Council may recommend 
measures that supersede the AFA ``to mitigate adverse effects . . . on 
owners of fewer than three vessels in the directed pollock 
fishery...''.
    The Council, in interpreting paragraph 213(c)(1), understood the 
term ``owners of fewer than three vessels'' to reference independent 
vessel owners who own two or less vessels in the directed pollock 
fishery. These are the vessel owners who this rule is intended to 
benefit as is described in the discussion of the three objectives 
above.

Elements of the Final Rule

    This final rule contains the following requirements for inshore 
cooperatives that wish to contract with non-member vessels to harvest a 
portion of a cooperative's annual BSAI pollock allocation.
    Application process. A cooperative that wishes to contract with a 
vessel that is a member of another inshore cooperative is required to 
complete and submit to NMFS a vessel contract form. The form is 
available from NMFS and requires that the cooperative identify the 
contract vessel, the contract vessel's home cooperative, and describe 
how pollock landings by the contract vessel are to be assigned between 
cooperatives.

[[Page 6835]]

 Cooperatives are allowed to contract with a non-member vessel to fish 
for the cooperative for a certain period of time, or to harvest a 
certain tonnage of pollock. The contract form also must indicate how 
any harvest overages by the contract vessel will be treated. A vessel 
contract form is not valid unless it is signed by the cooperative's 
designated representative, the contracted vessel owner, and the 
designated representative for the vessel's home cooperative. These 
signatures are necessary to ensure that all affected parties are in 
agreement as to the terms of the contract and to avoid any disputes 
about how a contract vessel's catch is to be attributed.
    Fishing for multiple cooperatives. A vessel owner may enter into 
simultaneous contracts with more than one cooperative. This may occur, 
for example, at the end of a fishing season when several cooperatives 
have very small remaining allocations and it is more cost-effective for 
a single vessel to conduct ``mop up'' operations for several 
cooperatives at one time than for each individual cooperative to send a 
separate vessel to harvest the small remaining tonnages of pollock. If 
a vessel owner wishes to enter into contracts with more than one 
cooperative at the same time, then all the affected cooperatives are 
required to submit their contract applications together, and the 
contract applications must specify how the contracted vessel's harvest 
and any overages are to be assigned among the various cooperatives.
    Recordkeeping and reporting requirements. Inshore processors are 
currently required to report in their shoreside electronic delivery 
reports the name and co-op code of each vessel that makes a delivery to 
that processor. Under this final rule, this requirement does not 
change. However, each vessel operator must correctly identify for the 
processor, the co-op code that should be assigned to each delivery. In 
the event that a vessel is making a single delivery on behalf of more 
than one cooperative, the processor must submit a separate delivery 
report for each cooperative that identifies the tonnage of pollock that 
is assigned to each cooperative. Cooperatives must report any 
contracted landings by non-member vessels on their weekly reports to 
NMFS. Cooperatives also must provide a summary of all contracted 
fishing by non-member vessels in their preliminary and final annual 
reports.
    Liability. For the purpose of liability, a non-member vessel under 
contract to a cooperative is considered to be a member of the 
cooperative for the duration of the terms of the contract. This means 
that the members of the cooperative may be held jointly and severally 
liable under Sec.  679.61 for certain fishing violations made by the 
operator of the contracted vessel.
    Effects of contract fishing on future qualification for membership. 
Under this final rule, BSAI pollock landings made by a vessel while 
under contract to another cooperative would not be used to determine 
the vessel's qualification for future membership in a cooperative. Only 
landings attributed to the vessel's home cooperative will be used to 
determine which cooperative the vessel is eligible to join in a future 
year. The purpose of this measure is to prevent contracted fishing 
activity from affecting which cooperative a vessel is eligible to join 
in the subsequent fishing year.

Response to Comments

    A Notice of Availability of Amendment 69 was published in the 
Federal Register on July 5, 2002 (67 FR 44794), inviting comments on 
the FMP amendment through September 3, 2002. NMFS received two comment 
letters on Amendment 69, both of which supported approval of the 
Amendment. On October 3, 2002, after consideration of the comments 
received, the Secretary approve Amendment 69 in its entirety.
    A proposed rule to implement Amendment 69 was published in the 
Federal Register on August 23, 2002 (67 FR 54610), with comments 
invited through October 7, 2002. NMFS received two comment letters on 
the proposed rule which are summarized in the following three comments:
    Comment 1: The commenters believe it is important to note that 
Amendment 69 would actually relax regulatory requirements on 
participants in the fisheries to allow more operational flexibility. 
This flexibility is very important to independently-owned catcher 
vessels, which in many cases do not have adequate options in their own 
cooperatives. Amendment 69 would provide that flexibility.
    Response: The Final Regulatory Flexibility Analysis prepared for 
Amendment 69 came to the same conclusion.
    Comment 2: The commenters believe it is important to note that this 
amendment has been supported by substantially all affected harvesters 
and processors throughout the Council process. Furthermore, throughout 
the entire Council process no opposition to this action arose.
    Response: NMFS has not received any indication of opposition to 
this action.
    Comment 3: The commenters noted that two major goals of the AFA 
were the rationalization and de-capitalization of the Bering Sea 
harvesting fleet. Amendment 69 will further both goals by providing 
inshore cooperatives with necessary flexibility and the ability to 
employ the optimum number and type of harvesting vessels.
    Response. Comment noted.

Changes from the Proposed Rule

    The structure and numbering of the paragraphs in this final rule 
were revised from the supplemental proposed rule published on August 
23, 2002 (67 FR 54610). These changes were necessary to ensure that the 
paragraph numbering in this final rule is consistent with the final 
rule implementing AFA-related Amendments 61/61/13/8 (67 FR 79692, 
December 30, 2002), which this final rule amends. No other changes were 
made from the supplemental proposed rule.

Classification

    The Administrator, Alaska Region, NMFS, determined that Amendment 
69 is necessary for the conservation and management of the BSAI pollock 
fishery and that it is consistent with the Magnuson-Stevens Act and 
other applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS prepared a Final Regulatory Flexibility Analysis (FRFA), which 
describes the impact this final rule may have on small entities. The 
FRFA incorporates the Initial Regulatory Flexibility Analysis (IRFA) 
and its findings. A copy of the FRFA is available from NMFS (see 
ADDRESSES). No comments on the IRFA were received during the comment 
period that would result in findings that differ from those previously 
described. A description of the impacts of this action on small 
entities was provided in the proposed rule (67 FR 54610, August 23, 
2002). In summary, this final rule modifies an existing form to allow a 
cooperative to identify a non-member vessel with which the cooperative 
intends to contract. None of the cooperatives impacted by this final 
rule are small entities. NMFS is aware of no existing relevant Federal 
rules which duplicate, overlap, or conflict with this final rule.
    This final rule contains collection-of-information requirements 
subject to the Paperwork Reduction Act (PRA) and which have been 
approved by the Office of Management and Budget (OMB) under Control 
Number 0648-0401.

[[Page 6836]]

 Public reporting burden for recordkeeping and reporting under AFA is 
as follows: Five minutes to submit a copy of the cooperative contract; 
5 minutes to complete the catcher vessel cooperative pollock catch 
report; 8 hours to complete the cooperative preliminary report; and 8 
hours to complete the annual written cooperative final report.
    This rule also contains a proposed revision to this information 
collection that has been submitted to OMB for approval. The revision 
would require inshore cooperatives that wish to contract with a non-
member vessel to harvest a portion of the cooperatives' annual pollock 
allocation to submit a completed contract fishing application to the 
Alaska Region, NMFS. Public reporting burden for this collection is 
estimated to be 30 minutes to complete the application and submit it to 
NMFS. The number of annual respondents is not expected to exceed 8, 
which is the maximum number of inshore cooperatives, as provided by the 
AFA.
    Public comment is sought regarding the revision: whether this 
proposed collection of information is necessary for the proper 
performance of the functions of the agency, including whether the 
information shall have practical utility; the accuracy of the burden 
estimate; ways to enhance the quality, utility, and clarity of the 
information to be collected; and ways to minimize the burden of the 
collection of information, including through the use of automated 
collection techniques or other forms of information technology. Send 
comments on these or any other aspects of the collection of information 
to NMFS (see ADDRESSES above) and to OMB at the Office of Information 
and Regulatory Affairs, Office of Management and Budget, Washington, 
D.C. 20503 (Attention: NOAA Desk Officer).
    Notwithstanding any other provision of law, no person is required 
to respond to, nor shall a person be subject to a penalty for failure 
to comply with a collection of information subject to the requirements 
of the PRA unless that collection of information displays a currently 
valid OMB Control Number.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Recordkeeping and reporting requirements.

    Dated: February 5, 2003.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set forth in the preamble, 50 CFR part 679 is 
amended as follows:

PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

    1. The authority citation for 50 CFR part 679 is revised to read as 
follows:

    Authority: 16 U.S.C. 773 et seq., 1801 et seq., and 3631 et 
seq.; Title II of Division C, Pub. L. 105-277; Sec. 3027, Pub. L. 
106-31, 113 Stat. 57.


    2. In Sec.  679.4, paragraph (l)(6)(ii)(D)(2)(iii) is added to read 
as follows.


Sec.  679.4  Permits.

* * * * *
    (l) * * *
    (6) * * *
    (ii) * * *
    (D) * * *
    (2) * * *
    (iii) Harvests under contract to a cooperative. Any landings made 
by a vessel operating under contract to an inshore cooperative in which 
it was not a member will not be used to determine eligibility under 
paragraph (l)(6)(ii)(D)(2).
* * * * *

    3. In Sec.  679.7, paragraph (k)(5)(i) is revised to read as 
follows:


Sec.  679.7  Prohibitions.

* * * * *
    (k) * * *
    (5) * * * (i) Overages by vessel. Use an AFA catcher vessel listed 
on an AFA inshore cooperative fishing permit, or under contract to a 
fishery cooperative under Sec.  679.62(c), to harvest non-CDQ BSAI 
pollock in excess of the fishery cooperative's annual allocation of 
pollock specified under Sec.  679.62.
* * * * *

    4. In Sec.  679.61, paragraph (a) is revised to read as follows:


Sec.  679.61  Formation and operation of fishery cooperatives.

    (a) Who is liable for violations by a fishery cooperative and 
cooperative members? A fishery cooperative must comply with the 
provisions of this section. The owners and operators of vessels that 
are members of a fishery cooperative, including vessels under contract 
to a cooperative, are responsible for ensuring that the fishery 
cooperative complies with the directed fishing, sideboard closures, PSC 
limits and other allocations and restrictions that are applicable to 
the fishery cooperative. The owners and operators of vessels that are 
members of a fishery cooperative, including vessels under contract to a 
cooperative, are responsible for ensuring that all fishery cooperative 
members comply with the directed fishing, sideboard closures, PSC 
limits and other allocations and restrictions that are applicable to 
the fishery cooperative.
* * * * *

    5. In Sec.  679.62, paragraph (b) is revised and a new paragraph 
(c) is added to read as follows:


Sec.  679.62  Inshore sector cooperative allocation program.

* * * * *
    (b) What are the restrictions on fishing under a cooperative 
fishing permit? A cooperative that receives a cooperative fishing 
permit under Sec.  679.4(l)(6) must comply with all of the fishing 
restrictions set out in this subpart. The owners and operators of all 
the member vessels that are named on an inshore cooperative fishing 
permit and the owners and operators of any vessels under contract to 
the cooperative under paragraph (c) of this section are jointly and 
severally responsible for compliance with all of the requirements of a 
cooperative fishing permit pursuant to Sec.  679.4(l)(6).
    (1) What vessels are eligible to fish under an inshore cooperative 
fishing permit? Only catcher vessels listed on a cooperative's AFA 
inshore cooperative fishing permit or vessels under contract to the 
cooperative under paragraph (c) of this section are permitted to 
harvest any portion of an inshore cooperative's annual pollock 
allocation.
    (2) What harvests accrue against an inshore cooperative's annual 
pollock allocation? The following catches will accrue against a 
cooperative's annual pollock allocation regardless of whether the 
pollock was retained or discarded:
    (i) Member vessels. All pollock caught by a member vessel while 
engaged in directed fishing for pollock in the BSAI by a member vessel 
unless the vessel is under contract to another cooperative and the 
pollock is assigned to another cooperative.
    (ii) Contract vessels. All pollock contracted for harvest and 
caught by a vessel under contract to the cooperative under paragraph 
(c) of this section while the vessel was engaged in directed fishing 
for pollock in the BSAI.
    (3) How must cooperative harvests be reported to NMFS? Each inshore 
pollock cooperative must report its BSAI pollock harvest to NMFS on a 
weekly basis according to the recordkeeping and reporting requirements 
set out at Sec.  679.5(o).
    (c) Contract fishing by non-member vessels. A cooperative that 
wishes to contract with a non-member vessel to harvest a portion of the 
cooperative's annual pollock allocation must comply with the following 
procedures.

[[Page 6837]]

    (1) How does a cooperative contract with a non-member vessel? A 
cooperative that wishes to contract with a non-member vessel must 
submit a completed contract fishing application to the Alaska Region, 
NMFS, in accordance with the contract fishing application instructions.
    (2) What information must be included on a contract fishing 
application? The following information must be included on a contract 
fishing application:
    (i) Co-op name(s). The names of the cooperative or cooperatives 
that wish to contract with a non-member vessel.
    (ii) Designated representative(s). The names and signatures of the 
designated representatives for the cooperatives that wish to contract 
with a non-member vessel and the vessel's home cooperative.
    (iii) Vessel name. The name and AFA permit number of the contracted 
vessel.
    (iv) Vessel owner. The name and signature of the owner of the 
contracted vessel.
    (v) Harvest schedule. A completed harvest schedule showing how all 
catch and any overages by the contracted vessel will be allocated 
between the contracting cooperative (or cooperatives) and the contract 
vessel's home cooperative. In the event that multiple cooperatives are 
jointly contracting with a non-member vessel, the harvest schedule must 
clearly specify how all catch and any overages will be allocated among 
the various cooperatives.
    (3) What vessels are eligible to conduct contract fishing on behalf 
of an inshore cooperative? Only AFA catcher vessels with an inshore 
fishing endorsement that are members of an inshore cooperative may 
conduct contract fishing on behalf of another inshore cooperative.
    (4) Who must be informed? A cooperative that has contracted with a 
non-member vessel to harvest a portion of its inshore pollock 
allocation must inform any AFA inshore processors to whom the vessel 
will deliver pollock while under contract to the cooperative prior to 
the start of fishing under the contract.
    (5) How must contract fishing be reported to NMFS? An AFA inshore 
processor that receives pollock harvested by a vessel under contract to 
a cooperative must report the delivery to NMFS on the electronic 
delivery report by using the co-op code for the contracting cooperative 
rather than the co-op code of the vessel's home cooperative.
[FR Doc. 03-3379 Filed 2-10-03; 8:45 am]
BILLING CODE 3510-22-S