[Federal Register Volume 75, Number 240 (Wednesday, December 15, 2010)]
[Rules and Regulations]
[Pages 78344-78427]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-30527]
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Part II
Department of Commerce
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National Oceanic and Atmospheric Administration
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15 CFR Part 902
50 CFR Part 660
Fisheries Off West Coast States; Pacific Coast Groundfish Fishery
Management Plan; Amendments 20 and 21; Trawl Rationalization Program;
Final Rule
Federal Register / Vol. 75 , No. 240 / Wednesday, December 15, 2010 /
Rules and Regulations
[[Page 78344]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 902
50 CFR Part 660
[Docket No. 100212086-0532-05]
RIN 0648-AY68
Fisheries Off West Coast States; Pacific Coast Groundfish Fishery
Management Plan; Amendments 20 and 21; Trawl Rationalization Program
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS is implementing Amendments 20 and 21 to the Pacific Coast
Groundfish Fishery Management Plan (FMP), which were partially approved
by the Secretary on August 9, 2010. Amendment 20 establishes a trawl
rationalization program for the Pacific Coast groundfish fishery.
Amendment 20's trawl rationalization program consists of: An individual
fishing quota (IFQ) program for the shorebased trawl fleet (including
whiting and non-whiting sectors); and cooperative (coop) programs for
the at-sea (whiting only) mothership and catcher/processor trawl
fleets. Amendment 21 establishes fixed allocations for limited entry
trawl participants. This final rule supplements the final rule
published on October 1, 2010 (75 FR 60868), and provides additional
program details, including: Program components applicable to IFQ gear
switching, observer programs, retention requirements, equipment
requirements, catch monitors, catch weighing requirements, coop
permits, coop agreement requirements, first receiver site licenses,
quota share (QS) accounts, vessel accounts, further tracking and
monitoring components, and economic data collection requirements.
DATES: This rule is effective January 1, 2011.
ADDRESSES: Background information and documents, including the final
environmental impacts statements for Amendment 20 and Amendment 21, are
available at the Pacific Fishery Management Council's Web site at
http://www.pcouncil.org/. NMFS prepared a Final Regulatory Flexibility
Analysis (FRFA), which is summarized in the Classification section of
this final rule. Copies of the FRFA and the Small Entity Compliance
Guide are available from William W. Stelle, Jr., Regional
Administrator, Northwest Region, NMFS, 7600 Sand Point Way, NE.,
Seattle, WA 98115-0070; or by phone at 206-526-6150. Copies of the
Small Entity Compliance Guide are also available on the Northwest
Regional Office Web site at http://www.nwr.noaa.gov/.
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 William W. Stelle, Jr., Regional
Administrator, Northwest Region, NMFS, 7600 Sand Point Way, NE.,
Seattle, WA 98115-0070, and to OMB by e-mail to [email protected], or fax to 202-395-7285.
FOR FURTHER INFORMATION CONTACT: Jamie Goen, 206-526-4656; (fax) 206-
526-6736; [email protected].
SUPPLEMENTARY INFORMATION:
Background
The Amendment 20 trawl rationalization program is a limited access
privilege program under the Magnuson-Stevens Fishery Conservation and
Management Act (MSA), as reauthorized in 2007. It consists of: (1) An
IFQ program for the shorebased trawl fleet; and (2) coop programs for
the mothership and catcher-processor trawl fleets. The trawl
rationalization program is intended to increase net economic benefits,
create individual economic stability, provide full utilization of the
trawl sector allocation, consider environmental impacts, and achieve
individual accountability of catch and bycatch. Amendment 21
establishes fixed allocations for limited entry trawl participants.
These allocations are intended to improve management under the
rationalization program by streamlining its administration, providing
stability to the fishery, and addressing halibut bycatch.
The trawl rationalization program is scheduled to be implemented on
January 1, 2011. Due to the complexity of the program and the tight
timeline for implementation, NMFS has issued, or is in the process of
issuing multiple rulemakings to implement this program. The following
actions are related to the trawl rationalization program:
A final rule (75 FR 4684, January 29, 2010) which
announced that potential participants in the program should review and,
if necessary, correct their data that will be used for the issuance of
QS, permits, and endorsements. It also established which data NMFS
would use and requested ownership information from potential
participants.
A notice of availability for Amendments 20 and 21 (75 FR
26702, May 12, 2010).
A proposed rule (75 FR 32994, June 10, 2010) followed by a
final rule (75 FR 60868, October 1, 2010) that implemented Amendments
20 and 21, focused on provisions deemed necessary to issue permits and
endorsements in time for use in the 2011 fishery and to have the 2011
harvest specifications reflect the new allocation scheme. In addition,
the October 1st rule also restructured the entire Pacific Coast
groundfish regulations at 50 CFR part 660 from one subpart (Subpart G)
to five subparts (Subparts C-G).
A correction to the June 10th proposed rule (75 FR 37744,
June 30, 2010) which corrected two dates referenced in the preamble to
the proposed rule regarding the decision date for the FMP amendments
and the end date for the public comment period.
The Secretary's review of and decision to partially
approve Amendments 20 and 21 on August 9, 2010.
A proposed rule (75 FR 53380, August 31, 2010) which
proposed for implementation on January 1, 2011, additional program
details, including: Measures applicable to gear switching for the IFQ
program, observer programs, retention requirements, equipment
requirements, catch monitors, catch weighing requirements, coop
permits, coop agreement requirements, first receiver site licenses, QS
accounts, vessel accounts, further tracking and monitoring components,
and economic data collection requirements.
A correction to the October 1st final rule (75 FR 67032,
November 1, 2010) to make sure the correct trip limit tables for 2010
remain effective after November 1, 2010.
This final rule follows the August 31st proposed rule (75 FR 53380)
and implements additional program components for the trawl
rationalization program. The preambles to both the June 10th and August
31st proposed rules provided more details on the program and are not
fully repeated here. The preamble to the June 10th proposed rule (75 FR
32994), called the ``initial issuance'' proposed rule because it
proposed the requirements for initial issuance of new permits and
endorsements for the trawl rationalization program, provided detailed
information on the trawl rationalization program and a general overview
on the provisions in Amendments 20 and 21. In addition, the
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preamble to the August 31st proposed rule (75 FR 53380), called the
``program components'' proposed rule because it proposed further
program details for the trawl rationalization program, provided more
detail on the additional program components being proposed.
The Pacific Fishery Management Council (Council) began scoping on
trailing actions for the trawl rationalization program in the Fall of
2010 and intends to continue developing trailing actions at its 2011
Council meetings on topics including, but not limited to: Cost
recovery, safe harbors/community fishing associations, the severability
of MS/CV endorsements from limited entry trawl permits, and
resubmission of Amendment 21 in response to NMFS' partial disapproval.
Comments and Responses
NMFS solicited public comment on the proposed rule (75 FR 53380,
August 31, 2010). The comment period ended September 30, 2010. NMFS
received 15 individual letters of comments on the proposed rule
submitted by individuals or organizations.
Some commenters have incorporated by reference previous comments
submitted during the Council process or on a rulemaking (notice of
availability 75 FR 26702, May 12, 2010; proposed rule 75 FR 32994, June
10, 2010; final rule 75 FR 60868, October 1, 2010) for the initial
issuance of permits and endorsements and the review of Amendments 20
and 21. Comments presented to the Council are part of the record and
were considered by the Council during its deliberation. Comments on the
previous rulemaking were addressed in the final rule for that
rulemaking.
General Comments in Support and Opposed
Comment 1. NMFS received multiple comments expressing general
support for the proposed rule.
Response. NMFS acknowledges these comments.
Comment 2. NMFS received multiple comments expressing general
disagreement with the proposed rule and amendments.
Response. NMFS acknowledges these comments.
Comments on Implementation of the Program
Comment 3. One commenter stated that the program and implementing
regulations should not be effective until January 1, 2012, in order to
provide sufficient time for the groundfish industry to plan their
operations under the new regulatory system.
Response. This program has been developed by the Council and NMFS
through a public process for over six years, and ample opportunities
have been provided for input into the design of the program. The
starting date for the trawl rationalization program was discussed and
debated on multiple occasions at Council meetings, and based on the
input from the public, the Council recommended, and NMFS agreed, to a
target implementation date of January, 2011. NMFS notes the commenter's
recommendation, but has determined that implementing the program at the
earliest practicable date best serves the public interest. NMFS
disagrees that any delay is necessary.
Comment 4. One commenter described port outreach efforts and a
workshop undertaken by the organization designed to complement the
outreach being conducted by NMFS. These outreach meetings and workshop
are an effort to speed the transition process to the new trawl
rationalization program and provide fishermen tools for success under
the catch shares program. Port outreach meetings were held in seven
ports, with topics covering ways to reduce observer and operating
costs, managing quota portfolios, establishing a business plan, and
managing constraining stocks among others. In addition, the two-day
informational workshop was attended by over 150 fishery participants;
panels included topics on regulatory requirements; managing risks
associated with constraining species and modifying fishing behavior;
approaches for maximizing opportunity; gear modification; handling
techniques and behavior changes; mapping and ``hotspot'' management;
trading, tracking, and financing of quota portfolios; strategies for
minimizing observer and other costs; and strategies for improving
revenues.
Response. NMFS appreciates the commenter's outreach efforts. In
addition to the outreach efforts by outside organizations, NMFS has
held a series of public workshops along the West Coast during the
months of September and October, 2010, to assist program participants
in transitioning to the new trawl rationalization program. Further
information on NMFS's outreach efforts is described in the response to
Comment 5.
Comments on the Rulemaking and Trailing Amendments
Comment 5. Some commenters stated that the complexity of the
rulemakings for the trawl rationalization program have made it
difficult to provide meaningful public input.
Response. NMFS acknowledges that implementation of the trawl
rationalization program, and associated rulemakings, has been complex.
However, NMFS has been making every effort to make the implementation
process as simple as possible and to explain the process in many public
forums. While the Council developed the trawl rationalization program
over several years, the Council and NMFS set an implementation date of
January 1, 2011, giving NMFS and the Council approximately a year and a
half to develop regulations and fine tune the program. This is a tight
timeline for such a complex program which would dramatically change the
operation and management of the trawl sector. Because of the tight
timeline, NMFS had to split implementation into several rulemakings,
focused on timing the rulemakings to allow potential participants the
most time possible for the different phases of implementation given the
resources available to implement the program. Early in the rulemaking
process, NMFS brought forward this approach to the Council at their
September 2009 meeting. In addition, NMFS published a brochure in
December 2009 which was mailed out to the industry announcing the
proposed January 1, 2011 implementation, the rulemaking schedule, and
some additional details on the first rulemaking.
The first rulemaking, which spanned late 2009 and early 2010,
announced that potential participants should be reviewing and, if
necessary, correcting their data before NMFS used the relevant data for
initial issuance of permits and endorsements (proposed rule: 74 FR
47545, September 16, 2009; final rule: 75 FR 4684, January 29, 2010).
NMFS initially announced that corrections should be done by late-May
2010 and before the initial issuance proposed rule published. NMFS
later extended the deadline to July 1 in the initial issuance proposed
rule (75 FR 32994, June 10, 2010) for both the Pacific Fisheries
Information Network (PacFIN) dataset and for NMFS' Northwest Fisheries
Science Center's Pacific whiting observer data from NORPAC (a database
of North Pacific fisheries and Pacific whiting information) (this was
later changed to August 1, 2010 for NORPAC data through a public notice
dated June 22, 2010 (NMFS-SEA-10-08)). This first rulemaking also
required completion of an ownership interest form. The results of these
forms would be used, in part, to populate the ownership interest forms
that would be part of the
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application process. This rulemaking laid the groundwork for the
application process that would take place in the fall of 2010.
Soon after the final rule published for this first rulemaking, the
Council began meetings of its Regulatory Deeming Workgroup (RDW), an
advisory body to the Council. The RDW held several public meetings
between February and June 2010 to review the regulations that NMFS was
developing for the program, to work through implementation details, and
to bring issues forward to the Council, as needed. NMFS updated the RDW
at all of their meetings on the implementation process and the status
of the various rulemakings. The RDW meetings generally preceded Council
meetings. The Council then discussed the rulemakings, including the
implementation process and schedule, at all of their meetings to date
in 2010.
In the spring of 2010, the NOA for both Amendments 20 and 21 was
published, announcing an open public comment period on the amendments
(75 FR 26702, May 12, 2010). Shortly thereafter, the second rulemaking
was initiated that announced the FMP amendments and the initial
issuance process for certain new permits and endorsements which
required a more intensive application process, and thus more time for
implementation. In addition, this rulemaking reorganized the existing
groundfish regulations to accommodate the new trawl rationalization
program. Staggered after this second rulemaking was the third
rulemaking, the subject of this final rule, which announces additional
program details for January 1, 2011, including: IFQ gear switching,
observer programs, retention requirements, equipment requirements,
catch monitors, catch weighing requirements, coop permits, coop
agreement requirements, first receiver site licenses, quota share (QS)
accounts, vessel accounts, further tracking and monitoring components,
and economic data collection requirements. All of these rulemakings
have described NMFS' overall approach to the rulemakings and
implementation.
To provide support and guidance for the public during this process,
NMFS has provided outreach along the West Coast in September and
October 2010. These outreach efforts were used to announce the program
details and implementation logistics, including the rulemakings and
public comment periods. In addition, NMFS Office of Law Enforcement has
provided several additional outreach sessions in October 2010 on
compliance under the program. NMFS has also created a Web site on the
trawl rationalization program to keep the interested public up to date
and published and mailed several fact sheets, each focused on different
aspects of the program. These fact sheets are also available on the Web
site. Finally, NMFS has mailed and e-mailed several public notices to
the industry and interested public regarding the trawl rationalization
program. So while NMFS acknowledges that this has been a complex
rulemaking, NMFS believes that the agency has made every effort to keep
the industry and public informed of our approach and aware of the
rulemaking process.
Comment 6. One commenter requested that the Pacific whiting season
start dates for the shorebased IFQ fishery, the mothership fishery, and
the catcher-processor fishery be revisited under a trailing amendment.
The commenter explained that separate season start dates between the
sectors is no longer needed under a rationalized fishery; staggered
start dates contradict the intent of the program, undermining the goals
of the program to increase net economic benefits and create individual
economic stability.
Response. Start dates for the Pacific whiting season are not part
of the program components rule. The Council discussed the Pacific
whiting season start dates at its April and June 2010 meetings, and
decided not to modify the season start dates at that time. The Council
will continue to review management measures in the groundfish trawl
fisheries after implementation of the rationalization program, and
recommend changes where deemed appropriate. NMFS welcomes and
encourages public participation in the Council decision-making process
to address issues such as this.
Comment 7. One commenter stated that implementing cost recovery
through a trailing amendment does not allow the public or policy makers
to know the full economic ramifications of the program. The commenter
suggested delaying the program until a cost recovery program has been
developed.
Response. Although a recommendation was made by the Council, and
NMFS agreed, that the cost recovery program would be implemented
through the Council process as a trailing amendment to the program,
that does not mean that the ``costs'' associated with cost recovery
cannot be estimated. Under the MSA, as amended, cost recovery
associated with program implementation is capped, or restricted to 3
percent of the value of the fishery. This anticipated cost recovery has
been considered by NMFS in its record of decision. NMFS encourages
public participation as the Council develops and recommends the cost
recovery program to be implemented by NMFS, based on those
recommendations.
Comment 8. Some commenters stated that community fishing
associations (CFAs) should be implemented at the start of the program
rather than as a trailing amendment. One commenter suggests delaying
the program until CFAs have been developed.
Response. NMFS acknowledges that there are members of the public
who feel that CFAs should be implemented at the start of the program.
Although the Council considered incorporating provisions for CFAs into
the alternatives early in the development process, no strong
recommendation or advocacy was voiced by members of the public or
representatives on the Trawl Individual Quota Committee, which was
intended to represent a cross section of interests for the development
of recommendations on structuring the trawl rationalization program.
Proposals for including provisions for CFAs in the program emerged
later on, when the Council was at the point of adopting a preferred
alternative in November 2008, in part tied to the issue of how to deal
with QS holding in excess of accumulation limits. Further refinement of
the preferred alternative, which occurred at Council meetings in 2009,
included additional consideration of CFA provisions. Specifically, at
the April 2009 Council meeting, Agenda Item F.4 addressed CFAs, and it
was at this time that the Council concluded that it would be more
appropriate for CFA provisions to be implemented through a trailing
action. However, the moratorium on the transfer of QS during the first
two years of the program, combined with provisions to allow divestiture
of QS over accumulation limits during years 3 and 4 of the program,
were designed to facilitate the transfer of QS to CFAs. The moratorium
is in part intended to slow the movement of QS holdings out of
communities during a time when the trailing action for CFAs can be
developed and implemented in a considered fashion. Recommendations for
how to structure the CFA provisions in a trailing action are welcome
and should be brought forward as that proposal is developed. The
Council is likely to begin developing CFA provisions in 2011 so that
they could be in place before the QS divestiture period begins.
Comment 9. One commenter stated that the adaptive management
program (AMP) should be promptly implemented as a trailing amendment to
address unforeseen impacts, promote
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bycatch reduction, and promote sustainable fishing practices.
Response. The AMP was established through the October 1st initial
issuance final rule (75 FR 60868), and consists of two primary phases.
For the first two years of the program, the 10 percent AMP share is
allocated to nonwhiting QS owners to ease the transition to an IFQ
system. The Council and NMFS will be evaluating the changes that will
occur after implementation, and will then be able to react as necessary
in the second phase to address specific objectives for the AMP,
identified on page 402 of Appendix A of the FEIS ``Rationalization of
the Pacific Coast Groundfish Limited Entry Trawl Fishery.'' This
interim situation will also allow for some identification of unforeseen
impacts associated with this program, which will better inform both the
Council and NMFS in addressing the issues.
Comments on Policies and Legal Standards
Comment 10. One commenter incorporated by reference comments they
had previously made on the initial issuance proposed rule and
Amendments 20 and 21 on National Standards 1, 2, 4, 6, and 8.
Response. NMFS's responses to comments 56-68 in the final rule to
initiate implementation of Amendments 20 and 21 (75 FR 60868, 60884-
60887) describe how Amendments 20 and 21, as well as that final rule,
comply with National Standards 1, 2, 4, and 8. The explanations
articulated there equally apply to the instant rule. With regard to
National Standard 6, the commenter does not provide an explanation of
why either of the rules or the underlying amendments would be
inconsistent with National Standard 6. Nevertheless, this response will
address consistency with National Standard 6.
National Standard 6 states that conservation and management
measures must: ``take into account and allow for variations among, and
contingencies in, fisheries, fishery resources, and catches.'' 16
U.S.C. 1851(a)(6). The National Standard Guidelines further state that
every effort should be made to develop FMPs that discuss and take into
account vicissitudes and that, to the extent practicable, FMPs should
provide a suitable buffer in favor of conservation. 50 CFR
600.335(c)(2).
Amendments 20 and 21 are expected to give fishermen greater
flexibility in determining when and how to fish, thus giving fishermen
greater ability to respond individually to unanticipated occurrences.
The AMP will provide additional management flexibility and will
facilitate response to unanticipated circumstances. Thus, these
amendments and the program components implemented through this rule are
consistent with National Standard 6.
Comment 11. One commenter stated that the program is inconsistent
with National Standards 5 and 8 of the MSA.
Response. As described in NMFS's response to comment 62 in the
final rule to initiate implementation of Amendments 20 and 21 (75 FR
60868, 60885), Amendments 20 and 21 were designed to achieve multiple
objectives and are consistent with National Standard 5. NMFS has
determined that this rule to implement certain components of those
amendments is consistent with National Standard 5 for the reasons
stated in that previous preamble. NMFS's responses to comments 64-67 in
the final rule to initiate implementation of Amendments 20 and 21 (75
FR 60868, 60886) explain how Amendments 20 and 21 are consistent with
National Standard 8. NMFS has determined that this rule to implement
certain components of those amendments is consistent with National
Standard 8 for the reasons stated in that previous preamble. See also
responses to comments in the FEIS for Amendment 20, particularly
responses to comments 108 and 109.
Comment 12. One commenter stated that the program should be revised
to fully retain public control over our public fisheries resources and
indicated that the statements in the regulations and Amendments that
NMFS retains the right to modify, revoke, or suspend altogether the
catch share system are not enough.
Response. Congress, NMFS, and the Council have been clear and
explicit that in a limited access privilege program, what is being
granted is a privilege that is modifiable and revocable at any time
without compensation to the privilege holder (see Section A-2.3.4 of
the EIS). NMFS's responses to comments in the FEIS for Amendment 20,
particularly responses to comments 86 and 87, provide further
discussion on this issue and are not repeated here. In addition, the
regulations at Sec. Sec. 660.25 and 660.100 clearly state that any
permits, endorsements, or amounts of harvest from the trawl
rationalization program are a privilege that may be revoked, limited,
or modified at any time.
Comments on Program Costs, Community Impacts, and the Burden on Small
Businesses
Comment 13. Some commenters stated NMFS should minimize and
mitigate impacts on small businesses and small communities; the program
should not benefit large businesses at the expense of small businesses.
One commenter stated that the burden of paperwork and costs of the
program would be too much for small businesses and small communities
and requested that the paperwork burden be streamlined.
Response. NMFS responded to similar comments in the October 1st
final rule (75 FR 60868) about the impacts on small businesses. In
particular, concerns were raised about negative impacts on deckhands
and smaller boats; that program costs to fishermen, including the costs
of entering the fishery and the costs of observers and monitoring are
too high; that observer rules need to change for trawl and small boats
to reflect the vastly different bycatch which occurs when mistakes are
made; about the impact of the allocation formulas on Fort Bragg
fishermen; concern that average fishermen will not be able to afford to
participate and that this could lead to increased consolidation and
leave many ports no longer viable; about negative impacts on
processors, that small processors will be driven out of business due to
consolidation; and that it will eliminate the ``mom and pop
businesses.''
NMFS has responded to these comments in detail in the October 1st
initial issuance final rule (75 FR 60868). That response is applicable
to the comments associated with this rule. In terms of impacts on small
businesses, the trawl rationalization program is intended to increase
net economic benefits, create economic stability, provide full
utilization of the trawl sector allocation, consider environmental
impacts, and promote conservation through individual accountability for
catch and bycatch. The allocations of quota under the new program do
not differ significantly from status quo allocations made biennially in
terms of total allocations. However, instead of fleetwide quotas, there
will now be individual allocations of quota shares and quota pounds to
permit owners. Allocations of overfished species constrain all
groundfish fishermen, for both large and small operations. In some
cases, smaller operators may be constrained to a greater extent. This
was recognized in development of the program, and operators are
encouraged to work together cooperatively, through mechanisms like
combining and sharing quota amounts. The program provides for leasing
of additional quota as needed to facilitate operations. The program
includes provisions that would have a beneficial impact on small
entities. It
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would create a management program under which most recent participants
in the Pacific Coast groundfish limited entry trawl fishery (many of
which are small entities) would be eligible to continue participating
in the fishery and under which the fishery itself would experience an
increase in economic profitability. Small entities choosing to exit the
fishery should receive financial compensation from selling their permit
or share of the resource. To prevent a particular individual,
corporation, or other entity from acquiring an excessive share of the
total harvest privileges in the program, accumulation limits would
restrict the amount of harvest privileges that can be held, acquired,
or used by individuals and vessels. In addition, for the shoreside
sector of the fishery, an AMP was created to mitigate any adverse
impacts, including impacts on small entities and communities that might
result from the program.
It is expected that the shorebased IFQ fishery will lead to
consolidation and this may affect small processors, particularly if
they are in disadvantaged ports. Chapter 4 of the Amendment 20 FEIS
analyzed the effects on processors from various perspectives: The
distribution of landings across west coast ports may change as a result
of fleet consolidation, industry agglomeration, and the comparative
advantage of ports (a function of bycatch rates in the waters
constituting the operational area for the port, differences in
infrastructure, and other factors). In particular, the Council analysis
indicated that processors associated with disadvantaged communities may
see trawl groundfish volumes decline. The analysis highlights that
those processors receiving landings from Central California or Neah Bay
may see a reduction in trawl caught groundfish if the market is able to
redirect activity toward more efficient and advantaged ports. However,
in addition to increased landings that are expected to result from the
IFQ program, small processors and disadvantaged communities may benefit
from the control limits, vessel limits, and adaptive management
policies. Control limits will limit the ability of large processors to
obtain shares of the fisheries while the AMP processes will allow the
Council to consider the impacts on small processors and disadvantaged
communities when allocating the AMP quota (10 percent of the total non-
whiting trawl quotas). Although vessel accumulation limits tend to
lower economic efficiency and restrict profitability for the average
vessel, they could help retain vessels in communities because more
vessels would remain.
Another process by which small processors and disadvantaged
communities may benefit will be the future development of CFAs. Some of
the potential benefits of CFAs include: Ensuring access to the fishery
resource in a particular area or community to benefit the local fishing
economy; enabling the formation of risk pools and sharing monitoring
and other costs; ensuring that fish delivered to a local area will
benefit local processors and businesses; providing a local source of
QSs for new entrants and others wanting to increase their participation
in the fishery; increasing local accountability and responsibility for
the resource; and benefiting other providers and users of local fishery
infrastructure.
In summary, the major impacts of this rule appear to be on
shoreside processors which are a mix of large and small processors, and
on shorebased trawlers which are also a mix of large and small
companies. The non-whiting shorebased trawlers are currently operating
at a loss or at best are ``breaking even.'' The new rationalization
program would lead to profitability, but with a reduction of about 50
percent of the fleet. This program would lead to major changes in the
fishery. To help mitigate against these changes, as discussed above,
the agency has announced its intent, subject to available Federal
funding, that participants would initially be responsible for 10
percent of the cost of hiring observers and catch monitors. The
industry proportion of the costs of hiring observers and catch monitors
would be increased every year so that by 2014, once the fishery has
transitioned to the rationalization program, the industry would be
responsible for 100 percent of the cost of hiring the observers and
catch monitors. NMFS believes that an incrementally reduced subsidy to
industry funding would enhance the observer and catch monitor program's
stability, ensure 100 percent observer and catch monitor coverage, and
facilitate the industries' successful transition to the new quota
system. In addition, to help mitigate against negative impacts of this
program, the Council has adopted an AMP where starting in year 3 of the
program, 10 percent of non-whiting QS would be set aside every year to
address community impacts and industry transition needs. After
reviewing the initial effects of IFQ programs in other parts of the
world, the Council had placed a short term QS trading prohibition so
that fishermen can learn from their experiences and not make premature
sales of their QS. The Council is also envisioning future regulatory
processes that would allow community fisheries associations to be
established to help aid communities and fishermen.
NMFS has taken a hard look at the reporting burdens of the program
and, given the program requirements, reduced the burden on small
businesses to the extent possible. For instance, in the IFQ fishery,
transactions for QS accounts and vessel accounts will be done online,
reducing the paperwork burden. The QS permit renewal process will be
the same as the current limited entry permit renewal process and during
the same time period because initially most QS permit owners would
already be familiar with the limited entry permit renewal process.
Similarly, in the mothership sector, the MS/CV-endorsed permit renewal
will be combined with their declaration of intent to obligate to a
mothership processor so that both are done on the same form at the same
time. To the extent possible, NMFS will send out permit renewal forms
and other associated forms, such as the ownership interest form, pre-
filled to reduce the burden on respondents. For the EDC, the survey
design has sought to avoid duplication of data collection, and was
developed from meetings with industry participants to discuss making
survey questions easily understandable and consistent with the record
keeping practices of survey respondents to reduce the burden on
respondents. For the trawl monitoring requirements, NMFS has reduced
the burden of the catch monitoring plans for first receivers by only
requiring essential information needed to assure adequate catch
accounting. To reduce the burden of requiring electronic fish tickets,
fish ticket software will be provided at no cost, and will use a
standard operating system and common software already owned by most
businesses; fish ticket software will be compatible with the existing
fish ticket requirements in each of the three states; and the software
can be used to print a paper copy for submission to the state, when
state law allows. To reduce costs, NMFS has determined that a person
certified as both an observer and a catch monitor can serve in both
capacities, within limitations on hours worked. After consideration of
all these efforts and the requirements of the program, NMFS has
determined that the remaining reporting requirements are necessary.
Comment 14. One commenter expressed concerns that the inequitable
distribution of overfished species QS, such as Canary Rockfish,
disproportionately impacts California,
[[Page 78349]]
while favoring Washington and Oregon; that the program should not
result in an unfair allocation between the states; and that the program
should be designed to result in an even consolidation between states
and between the sectors (non-whiting shorebased IFQ, whiting shorebased
IFQ, mothership sector, and catcher/processor sector).
Response. With respect to the effects on the States including
industry consolidation effects, NMFS acknowledges that this program may
have different impacts on different states and on different
communities. As mentioned above, one of the potential purposes of the
AMP is to address differential impacts upon communities and thus the
states. National Standard 4 requires that when 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 a manner that no particular individual,
corporation, or other entity acquires an excessive share of such
privileges. The National Standard 4 guidelines at Sec.
600.325(c)(3)(i)(B) state that: ``An allocation of fishing privileges
may impose a hardship on one group if it is outweighed by the total
benefits received by another group or groups. An allocation need not
preserve the status quo in the fishery to qualify as fair and
equitable, if a restructuring of fishing privileges would maximize
overall benefits. The Council should make an initial estimate of the
relative benefits and hardships imposed by the allocation, and compare
its consequences with those of alternative allocation schemes,
including the status quo.''
Thus, the Councils are given wide latitude to determine what is
equitable within a particular fishery and to create the appropriate
management measures to accomplish the goals of an FMP. The issue of
allocation of overfished species was addressed extensively in the
response to comments in the October 1st final rule. (75 FR 60868,
comments 29 and 31.) Generally speaking, the Council evaluated the
impacts of its allocation decisions and adequately determined that,
after weighing the costs and benefits of its proposed scheme, the
allocations selected were to the overall benefit of the fishery and its
participants.
Comment 15. One commenter stated that NMFS has not adopted criteria
for participation in CFAs as required by law and improperly excluded
CFAs from initial allocations. The commenter further stated that the 10
percent set aside for the AMP would not be enough to meet the needs of
CFAs, smaller vessels idled by the program, processors, or new
entrants. Another commenter stated that the 10 percent set aside for
the AMP should be used to mitigate transition impacts and be used as an
incentive pool for conservation results and to improve the program.
Response. NMFS responded to a similar comment in the October 31st
final rule (75 FR 60868, comment 41) which is incorporated here by
reference. NMFS disagrees that communities have been excluded from
initial allocations. Communities have not been precluded from acquiring
groundfish limited entry trawl permits, which would make them eligible
for the initial allocation of QS associated with a permit.
Additionally, the Council's preferred alternative includes a very broad
definition of who may own quota shares, so communities are not
precluded from acquiring quota once the program is implemented. Just as
non-trawl fishermen currently need to obtain a trawl-endorsed limited
entry permit to participate in the trawl fishery, under the trawl catch
shares program, a trawl permit and quota pounds is all that is needed
to participate.
NMFS also disagrees with the statement that the Council and NMFS
did not follow the law with regard to CFAs. NMFS created the trawl
rationalization program, including allocation to an AMP, consistent
with the MSA and with communities in mind. The trawl catch shares
program includes several ways to participate beyond the initial
issuance of quota share. The AMP specifically reserves 10 percent of
the non-whiting shoreside quota share to allocate in such a manner as
to promote a wide range of important objectives, beginning with year 3
of the program. The objectives for this program are: Community
stability, processor stability, conservation, unintended/unforeseen
consequences of IFQ management, and facilitation of new entrants. NMFS
agrees with the commenter's statement that the 10 percent set aside for
the AMP should be used to mitigate transition impacts. During the first
2 years of the program, the AMP will help mitigate transition impacts
by distributing the resulting to QP to trawlers with non-whiting QS to
help them as they adjust to the new program, begin to work together and
pool their resources, and adjust to new costs. In ongoing years, the
AMP will help mitigate impacts of the program and promote conservation
following the objectives for the AMP stated above.
In addition to the AMP, the Council is also developing provisions
for community involvement through CFAs as a trailing amendment. The
trawl catch shares program includes a moratorium on the transfer of
quota share during the first two years of the program (quota pounds
will be able to be transferred during the moratorium), combined with
provisions to require divestiture of quota share over accumulation
limits during years 3 and 4 of the program. The moratorium is in part
intended to slow the movement of quota share holdings out of
communities during a time when the trailing action for community
fishing associations can be developed and implemented in a considered
fashion. Recommendations for how to structure the CFA provisions in a
trailing action are welcome and should be brought forward as that
proposal is developed by the Council. Moreover, the Council
specifically acknowledged flexibility to adapt to changing
circumstances, including provisions for a comprehensive review of the
program that includes a community advisory committee, to evaluate
effectiveness in relation to the original program goals and objectives,
scheduled for year five of the program. The trawl rationalization
program has addressed and continues to address directly these issues
and ways to improve the program.
Comment 16. One commenter stated that the rapid increase in value
of QS and QP will make it hard for communities and CFAs to participate
in the program. The commenter further stated that NMFS' new measure to
allow limited entry trawl permit transfers during a window of time
before the permit and endorsement application period will foster quick
inflation of QS value.
Response. NMFS appreciates the commenter's insight into the value
of QS based on NMFS providing a window of opportunity for limited entry
permit transfers before the permit and endorsement application period.
NMFS' intent in providing this window in the October 31st initial
issuance final rule (75 FR 60868) was solely to provide some additional
flexibility for potential participants in the program in making their
business decisions before being locked into their business arrangement
for the next 2 years. As stated in the preamble to the final initial
issuance rule, NMFS believes this change is consistent with the
Council's intent to provide an opportunity for entry level participants
to obtain a qualifying trawl limited entry permit prior to initial
issuance with reasonable certainty of anticipated QS that would be
issued on the basis of that permit. Further, for
[[Page 78350]]
permit owners that have qualifying history that would exceed control
limits, this change will provide an opportunity to divest permits prior
to calculation of QS and any redistribution of QS.
Comments on the Observer and Catch Monitor Programs
Comment 17. Some commenters stated that alternatives should be
explored to reduce the industry and taxpayer costs of the program, such
as not requiring the industry to pay for observer (i.e., the government
should pay as part of its enforcement mandate), requiring less than 100
percent observer coverage, allowing the use of cameras, or measures to
reduce observer costs below $350-500 per day. Another commenter agreed
with NMFS that an observer can also be a catch monitor to reduce costs
but also to gain data tracking efficiencies. A third commenter stated
support for 100 percent observer coverage and rigorous observer and
catch monitor training requirements.
Response. Less than 100 percent observer coverage and the use of
cameras to supplement or substitute for observer coverage were
considered by the Council during the program's development, but were
rejected. Full and independent accountability of all catch is key to
the success of the catch shares program especially programs using
individual fishing quotas. NMFS has recognized the increased costs to
the industry and is therefore planning to subsidize the cost of
observer coverage for at least the first year, subject to
appropriations (see response to Comment 22). The defraying of cost via
this subsidy will give the fleet time to develop cost cutting measures
with other industry members in their port and with the observer
provider companies. NMFS recognizes the importance of reigning in costs
to the industry and the public and will continue to investigate and
implement efficiencies when practical. One such efficiency is that a
person can be trained and certified as both an observer and as a catch
monitor. That person could act in both capacities even for the same
vessel's offload, subject to maximum work hour requirements and other
limitations, which may provide some cost savings.
Comment 18. The Pacific Fishery Management Council commented in
agreement with the conflict of interest regulations as proposed by NMFS
under Alternative 2 for the observer and catch monitor regulations.
Another commenter supported rigorous conflict of interest provisions.
Response. In the August 31st proposed rule (75 FR 53380), NMFS
provided two alternative sections addressing conflict of interest
provisions applicable to observers and catch monitors; Alternative 1
provided provisions as deemed by the Council, Alternative 2 presented
the NMFS-proposed language. NMFS provided its rationale for the NMFS-
proposed alternative in the proposed rule, and explained that the NMFS-
proposed conflict of interest provisions are consistent with existing
language in NMFS policy statement 04-109-01 and current standards in
the West Coast Groundfish Observer Program. NMFS specifically requested
comment on which provisions to include in the final rule and NMFS
received no comments in disagreement with the NMFS-proposed alternative
included in the final rule.
Comment 19. One commenter stated that Morro Bay, California, will
not have enough trawlers to support a catch monitor.
Response. NMFS responded to a similar comment regarding costs of
monitoring in the October 31st final rule (75 FR 60873, comment 22). As
stated in the response to the prior comment: ``Analyses indicate that
the program benefits will outweigh the program costs. The EIS
anticipates that the value of the fishery will increase through a
variety of mechanisms, including increased efficiency of existing
vessels, the transfer of effort to the most efficient vessels, and
increased retention of target species. The program includes
opportunities for adaptive management if actual impacts differ from
projected impacts. [* * *] To aid the fishing industry during the
transition to a rationalized fishery, the agency has announced its
intent, subject to available Federal funding, to cover a portion of the
initial cost of hiring observers and catch monitors. As stated by the
agency, participants would initially be responsible for 10 percent of
the cost of hiring observers and catch monitors, with that amount
increased every year so that by 2014, the industry would be responsible
for 100 percent of the cost of hiring the observers and catch
monitors.''
Landings monitoring is an essential component to the
rationalization program developed by the Council. Thus, industry
members and catch monitor providers need to work together to resolve
local implementation issues such as the development of cost-effective
deployment of catch monitors in Morro Bay. One potential solution
provided for in this final rule would be to contract with providers for
the services of observers that are also certified as catch monitors.
Such ``dual certified'' observers, which would already be on board the
vessel participating in the Shorebased IFQ Program, could assume the
catch monitor role for the IFQ first receiver. Coordination between the
fishing vessel, the IFQ first receiver, and the observer/catch monitor
provider will help alleviate concerns of program costs under
circumstances such as those presented at Morro Bay. NMFS anticipates
that further opportunities to reduce costs will develop with experience
under the program. See also the response to Comment 20.
Comment 20. California Department of Fish and Game (CDFG) commented
that it supports an ongoing dialogue with NMFS and the states about the
use of state employees as observers or catch monitors within the trawl
rationalization program, provided that such dialogue includes a
mechanism to reimburse the states for the use of state employees.
Response. NMFS acknowledges the comment and plans to continue its
dialogue with the states regarding the use of state employees as
observers and/or catch monitors. Initial discussions conducted thus far
indicate that the states are interested in providing some catch monitor
services. If state employees serve as catch monitors, NMFS anticipates
that reimbursement for costs associated with such services would be a
component of legal contracts entered into between the states and the
IFQ first receivers or vessels to which the states provide services.
NMFS looks forward to continued discussions with the states to support
coordination of the trawl rationalization program with state employees.
Comment 21. Some commenters asked for clarification of the terms,
``authorized officer,'' ``authorized person,'' and ``NMFS staff'' with
regard to the catch monitor and observer regulations. One commenter
stated that persons authorized access to first receiver facilities
should include state-authorized employees, both law enforcement and
non-law enforcement, and Pacific States Marine Fisheries Commission
staff. Both of these types of personnel are involved in the monitoring
and enforcement of the groundfish fishery. The commenter also noted
inconsistent use of the terms ``authorized officer'' and ``authorized
person'' in the regulations and recommended a consistent and
encompassing use of the term ``authorized person.'' Another commenter
asked that the term ``NMFS staff'' be defined and should be more
[[Page 78351]]
narrow than any employee of NMFS. The commenter suggested a definition.
Response. NMFS appreciates the comments and how they highlight the
variety of management and enforcement persons that are involved in the
program. However, NMFS disagrees that further definitions are necessary
at this time. NMFS believes that the current use of the terms is
appropriate and serves to distinguish the different persons that must
have access to, or accomplish other duties in connection to program
management and enforcement. ``Authorized officer'' is a term already
defined under the MSA in regulations found at 50 CFR part 600. The term
is focused exclusively on enforcement officers, both state and Federal,
and includes NOAA agents and officers, state officers acting under a
JEA with NOAA and USCG boarding officers. This term is important for
use involving inspection and enforcement activities. ``Authorized
person'' is not defined but was included to identify persons other than
enforcement officers and NMFS staff who are authorized to conduct
duties related to the program. The term includes catch monitors as they
are not NMFS staff, but are employees of contractors. These persons
have authority to conduct duties pursuant to the program regulations.
NMFS staff are those persons who have authority to conduct duties under
the program regulations, as well. As for state employees, these persons
have independent authority under state laws to enter the facility and
do their jobs.
Comment 22. One commenter asked if NMFS' offer to cover up to 90
percent of the costs of the observer program during the first year of
the program was for all sectors of the fishery, or only the Shorebased
IFQ Program.
Response. There is no assurance or guarantee that NMFS will provide
funding, as the funding depends on Congressional appropriation.
However, assuming that an appropriation is made and those funds are
made available to the program and not otherwise restricted, NMFS NWR
would apply these funds to help defray both the observer and catch
monitor program costs. Further, NMFS would make the funds available to
all three sectors (MS, C/P, and Shorebased) not just the Shorebased IFQ
program.
Comment 23. One commenter suggested that language on the catch
monitor program stating that ``monitors have access to telephone lines
during the times that Pacific whiting was being processed'' may be an
artifact of previous regulations for catch monitors. The commenter
suggested that NMFS re-examine whether this language should apply to
more species than Pacific whiting.
Response. NMFS agrees with the comment and, upon further review,
has determined that this requirement is no longer necessary. The
commenter was correct that catch monitors may need access to more
species that just Pacific whiting for the Shorebased IFQ Program. In
addition, any phone may be used, a cell phone or a telephone. However,
the IFQ first receiver will not have to provide catch monitors with
access to a phone while IFQ species are being processed. That is the
responsibility of the catch monitor provider as stated at Sec.
660.17(e)(8)(i)(A). NMFS is removing this language from the IFQ first
receiver responsibilities at Sec. 660.140(i)(4). See the section on
``Changes from the Proposed Rule.''
Comments on the Economic Data Collection (EDC) Program
Comment 24. Some commenters stated that the economic data
collection questionnaire was too detailed and burdensome for small
businesses. One of those commenters suggested that if it is an annual
questionnaire, it should be simplified to collect only crucial
information. If the detailed questionnaire is continued, it should be
collected periodically, not annually. Another commenter stated that the
EDC program is too narrow and will not capture the effects of the trawl
rationalization program on jobs, businesses, and communities.
Response. In developing the trawl catch share program, NMFS is
striking a balance. NMFS believes the importance and benefits of this
program outweighs the burden on small businesses. The statute
authorizing LAP programs such as this, Section 303A of the MSA,
requires periodic reviews. In order to do that, NMFS must collect both
baseline and annual information to judge the effectiveness of the
program for the 5 year review. NMFS will continue to work through the
Council process to make any necessary changes to the program to assure
that that program does collect information needed by the Council meets
the requirements of the MSA and the Council including providing
assessments on the impacts of the program on jobs, businesses, and
communities.
NMFS' authority to collect economic information is limited to those
vessels and processors harvesting and processing fish that are
regulated under the MSA. Although NMFS could ask for economic
information from persons or entities that are not directly regulated
under a fishery program, it would be unable to require submission of
the information. This is a critical difference and NMFS cannot
establish a voluntary economic information program that would certainly
be rejected by non-fishery industry persons and entities. NMFS could
not ensure confidentiality of voluntarily submitted information and
this problem would mean NMFS would never receive information or receive
information that was incomplete or unreliable. An incomplete or
unreliable database would be unusable.
Regarding a commenter's concern over the EDC program not capturing
the effects of the trawl rationalization program on lost jobs, closed
businesses, and devastated communities, the Northwest Fisheries Science
Center will conduct voluntary interviews through the Trawl
Rationalization Program Human Dimensions Study to try and capture some
of these other effects of the program.
Comment 25. One commenter agreed with NMFS' definition of
``processor'' for the EDC Program.
Response. NMFS acknowledges this commenter's concurrence with the
proposed definition for ``processor'' for the EDC program.
Comment 26. One commenter expressed concerns about the EDC audit
process, in particular the potential use of a third-party auditor to
examine EDC submissions. The comment focused on the handling of
``extremely sensitive commercial information''. The comment
acknowledges that NMFS states that submitted information is
confidential, but the comment suggests that there are no standards or
rules in place to ensure confidentiality. Further, the comment
questions whether NMFS can ask for tax information and require its
submission to a third-party auditor and whether this practice may
violate IRS rules.
Response. While NMFS understands the concern about information
confidentiality, this issue was highlighted in the proposed rule and
NMFS explained that the EDC program will ensure information
confidentiality. Information submitted to NMFS pursuant to the trawl
program is considered confidential not only under the MSA, which
specifically states that submitted information is confidential and not
disclosable, but also there are at least two other Federal acts that
NMFS uses to hold commercial and financial information confidential,
namely the FOIA and Trade Secrets Act. NMFS has promulgated regulations
that describe information confidentiality and processes to ensure its
confidentiality at 50 CFR 600.405. Further, NMFS follows a detailed
policy-based process, titled NAO 216-100, directing specifically
[[Page 78352]]
how NMFS employees and contractors ensure information confidentiality.
NMFS personnel as well as any third-party contractor, such as an
auditor, are required to retain information confidentiality. Should
information be mishandled and inappropriately disclosed, both civil and
criminal sanctions could be applied depending on the circumstances. To
further ensure the confidentiality of information submitted to third-
parties such as auditors, NMFS wrote regulatory language at section
660.114(e) describing the EDC audit procedures that indicates that any
information required for verification of economic data, including that
provided to a third-party auditor, is considered a required submission
to NMFS. In other economic information collection programs, such as
those found in the North Pacific crab and Bering sea trawl groundfish
programs, NMFS has adopted the use of professional auditors to evaluate
economic and financial information. Due to resource limitations, NMFS
has no choice but to contract for these special services and cannot
provide them ``in-house.'' Finally, NMFS--like private institutions--
can require submission of financial documents, including tax reporting
forms, if necessary to ensure that its program receives reliable,
verifiable information. If this was not the case, NMFS could not carry-
out Congress' intent that commercial and financial information be
collected and evaluated for this limited access program's future
evaluation and potential effectiveness.
Comment 27. One commenter suggested revised wording for the
economic data collection program regulations at Sec. 660.114 to
require only one owner of a processor to submit the required data, if
the processor is owned by more than one person. The commenter stated
that not all owners may have access to the level of detail required on
the forms and the additional burden of requiring all owners to submit
the data is unnecessary.
Response. NMFS agrees, but does not conclude that a change in the
proposed rule text is necessary. NMFS is aware that some processors are
owned by more than one person. However, a processor can be considered a
single person or entity and thus would report its information on one
form. Thus, NMFS requires only one EDC form from a processor provided
that the form provides all relevant and complete information from the
processor. All owners of a processor, however, are subject to the risk
that with the filing of one form for the processor, that the form may
not be timely filed or properly completed by whoever is identified as
the responsible party for submitting it on behalf of the processor and
thus, all the owners.
Comment 28. One commenter suggested that the language in Sec.
660.114, for the trawl fishery economic data collection program, should
be revised to read ``holder'' of a first receiver site license rather
than ``owner'' because the license is a privilege and conveys no
ownership rights.
Response. NMFS agrees with the commenter that first receiver site
licenses are a privilege and not a right, but declines to change the
term from ``owner'' to ``holder'' as the commenter suggests. The
regulations at Sec. 660.100 clearly state that any privileges
(including IFQ first receiver site licenses) in the trawl
rationalization program may be revoked, limited, or modified at any
time. In order to take delivery of groundfish caught in the Shorebased
IFQ Program, an IFQ first receiver would need to have a first receiver
site license. ``IFQ first receivers'' are defined in the October 31st
final rule (75 FR 60868) at Sec. 660.111 as ``persons who first
receive, purchase, or take custody, control, or possession of catch
onshore directly from a vessel that harvested the catch while fishing
under the Shorebased IFQ Program described at Sec. 660.140, subpart
D.'' For the first receiver site license owner, the term ``license
owner'' is defined at Sec. 660.11 as ``a person who is the owner of
record with NMFS, SFD, Permits Office of a License issued under Sec.
660.140, subpart D'' and is cross-referenced from the ``permit owner''
definition.
Comments on Ownership and Transfer
Comment 29. One commenter asked if an estate completes probate
court during the first two years of the program, can ownership of the
limited entry trawl permit and QS permit be transferred from the estate
administrator to a beneficiary.
Response. The proposed rule states that ``[d]uring the first 2
years after implementation of the program, QS or IBQ cannot be
transferred to another QS permit owner, except under U.S. court order
and as approved by NMFS.'' 50 CFR 660.140(d)(3)(ii)(B)(1). During the
first two years of the program, QS and IBQ are non-transferable.
However, NMFS recognizes that there may be some circumstances where a
court may order or authorize the distribution of assets, including QS
or IBQ. Such a circumstance may arise as a result of death or
dissolution of a QS owner, such as in probate or in a bankruptcy
action. NMFS drafted this regulatory provision to accommodate such
circumstances. Such a transfer would still be subject to review by
NMFS, however, to determine whether the transferee is eligible to own
QS and whether the ownership interest of the transferee would be within
the control limits; NMFS will not approve a transfer if the transferee
is ineligible to own QS or if the ownership interest of the transferee
would exceed control limits as a result of the transfer. NMFS
recognizes that not all distributions of assets in probate or
bankruptcy may be set forth in a court order. Accordingly, NMFS has
clarified its intent by modifying the regulatory provision to state
that ``[d]uring the first 2 years after implementation of the program,
QS or IBQ cannot be transferred * * * except under U.S. court order or
authorization and as approved by NMFS.''
Comment 30. One commenter asked if two limited entry trawl permits
are owned by the same entity, for example an estate administrator, can
the resulting QS from the two limited entry trawl permits be separated
into two QS permits if the court orders the permits to be divided
between beneficiaries.
Response. In the situation described by this commenter, where a
court orders division of the permits, NMFS would transfer the QS and
IBQ to the separate beneficiaries, subject to NMFS' approval of the
transfer. For NMFS to approve such a transfer, NMFS would first
determine whether each beneficiary is eligible to own QS; if a
beneficiary is eligible and does not already own a QS permit, NMFS
would issue a QS permit to the beneficiary. NMFS would also review the
transfer to determine whether either beneficiary's ownership interest
in QS or IBQ would exceed control limits as a result of the transfer.
If a beneficiary is not eligible to own QS, or if the transfer of QS
would cause the beneficiary's ownership of QS or IBQ to exceed control
limits, NMFS would not approve the transfer. NMFS would respond in the
same manner if the transfer is otherwise authorized by a court. See
response to Comment 29.
Comment 31. Several commenters commented on application of
ownership limits on trusts.
a. One commenter agreed with NMFS that the trustee should be
considered the owner of a trust.
Response. NMFS acknowledges this comment.
b. Another commenter agreed that NMFS correctly identified the
nature of trust ownership, but expressed concern that a trustor or
beneficiaries could exert control over the trust. The commenter
suggested that to prevent this, all parties to the trust (trustor,
trustee, and beneficiaries) should be charged with
[[Page 78353]]
100 percent of the trust ownership for purposes of application of
control limits. Another commenter similarly expressed concern that
accumulation limits may be exceeded through ownership by a trust, and
also suggested 100 percent ownership be applied to the trustor,
trustee, and beneficiary for control test purposes.
Response. NMFS acknowledges the comment that accumulation limits
may be exceeded by other parties besides a trustee where QS or IBQ is
owned by a trust, but distinguishes between the different accumulation
limits that apply. ``Accumulation limits,'' as defined in the proposed
rule, means ``the maximum extent of permissible ownership, control or
use of a privilege within the trawl rationalization program[.]'' 75 FR
53413 (emphasis added). As stated in the preamble to the proposed rule,
NMFS interprets an ownership interest by a trust to vest ownership in
the trustee; this interpretation applies specifically to permissible
ownership. Ownership limits would apply to ownership of MS/CV-endorsed
permits and catch history assignment, MS permits, and to QS and IBQ as
a subset of applicable control limits. With regard to QS and IBQ and
control limits Amendment 20 to the FMP states that ``[t]he term `own or
control' was shortened to `control' for simplicity[;] `Control'
includes ownership[.]'' (Appendix E, footnote y, at E-21, August 2010.)
In the proposed rule, control limits applicable to the Shorebased IFQ
Program are defined as ``the maximum amount that a person may own or
control[.]'' 75 FR 53413 (emphasis added). NMFS' interpretation that
ownership of QS or IBQ by a trust would vest ownership in the trustee
(or trustees, if more than one) only applies to the maximum permissible
ownership aspect of compliance with control limits.
Ownership of QS or IBQ by a trust and control by any party other
than the trustee--whether such party is the trustor, a beneficiary, or
any other party--are two different things. While ownership is one way
in which a party may exercise control, control is broader than
ownership and a determination of control depends on further
investigation beyond identification of the legal ownership of the QS or
IBQ involved. A person may exceed control limits for QS or IBQ despite
having no ownership of the QS or IBQ. Investigations regarding alleged
violations of control limits will depend on the facts unique to each
situation; NMFS will make a determination based on all relevant facts
and circumstances revealed in an investigation. Ownership will be one
fact considered, but not the only one. As stated in the preamble to the
proposed rule, NMFS acknowledges that additional information, such as
the trust document, may be needed to determine compliance with control
limits. As the commenter points out, other facts may be needed as well.
Accordingly, the proposed rule and this final rule includes provisions
that NMFS may ask for additional information it believes to be
necessary for a determination of compliance with control limits.
NMFS disagrees with the commenters' suggestion that NMFS should
attribute trust ownership to parties other than the trustee for control
limit purposes. One of the commenters described scenarios where parties
other than the trustee may possibly exert control, either directly or
indirectly, over the trust, the trustee, or the QS or IBQ; however, the
commenter has not provided sufficient facts to enable NMFS to determine
whether control limits are exceeded under these scenarios. The
commenters' suggested approach would presume control exists regardless
of the facts and would attribute control to trustors and beneficiaries
even where they have no actual control. NMFS acknowledges that one of
the commenters expressed concern that an investigation of control would
require ``valuable time of NMFS staff[,]'' but this applies for any
enforcement investigation of control by parties other than legal
owners, regardless of whether the ownership interest is a trust or any
other form of ownership interest. Accordingly, NMFS declines to revise
its interpretation of the attribution of ownership interest of a trust
to the trustee.
Comment 32. One commenter stated that the proposed Shorebased IFQ
Program does not comply with MSA limitations on who can hold, acquire,
or use limited access privileges, and that unrestricted ownership of
quota shares will increase the cost of entry into the fishery and
thwart the conservation benefits of the program.
Response. Section 303A(c)(5)(E) of the MSA states that in
developing a limited access privilege program to harvest fish a Council
shall ``authorize limited access privileges to harvest fish to be held,
acquired, used by, or issued under the system to persons who
substantially participate in the fishery, including in a specific
sector of such fishery, as specified by the Council.'' NOAA interprets
that provision to mean that those who substantially participate in the
fishery must be among those eligible to acquire QS, but are not the
only entities or person who can receive QS. In other words, as long as
those who substantially participate in the fishery are included as
those eligible to receive QS, this provision of the statute is
satisfied. The Council's eligibility criteria at Sec. 660.140(d)(2)
would allow all entities that currently substantially participate in
the shorebased IFQ fishery to hold, acquire, use or be issued QS.
Comment 33. One commenter stated that the proposed Shorebased IFQ
Program does not comply with the MSA because it allows QS to be
acquired to perfect a security interest.
Response. Section 303A(c)(1)(D) of the MSA, which addresses
requirements for eligibility for limited access programs, does not
prohibit the acquisition of QS to perfect a security interest. This
section states that the same statutory eligibility criteria apply to
all persons who acquire a privilege to harvest fish, including those
who acquire a limited access privilege solely for the purpose of
perfecting or realizing on a security interest in such privilege. The
MSA would allow United States citizens, corporations, partnerships,
other entities established under the laws of the United States or any
State, or permanent resident aliens to acquire privileges to harvest
fish, including acquiring a privilege for the purpose of perfecting or
realizing on a security interest in such privilege, if they meet the
eligibility and participation requirements established in the program.
The MSA requires that a limited access privilege program prohibit other
persons from acquiring a harvesting privilege. The eligibility and
participation requirements for the Shorebased IFQ Program in Sec.
660.140(d) are consistent with the MSA.
Comment 34. One commenter asked for clarification in the final rule
on whether NMFS addressed the Council's motion that does not require
the size (or length) endorsement on a vessel to be reduced for limited
entry trawl permits transferred to smaller vessels.
Response. NMFS addressed this issue, consistent with the Council
motion, in the October 1st final rule (75 FR 60868) at Sec.
660.25(b)(3)(iii)(B)(1) which states, ``A limited entry permit may be
registered for use with a vessel up to 5 ft (1.52 m) longer than, the
same length as, or any length shorter than, the size endorsed on the
existing permit without requiring a combination of permits or a change
in the size endorsement.'' Previously, limited entry fixed gear and
limited entry trawl permits had different size endorsements
limitations. Trawl rationalization changed these requirements making
the trawl size endorsement limitations mirror the limited entry fixed
gear (i.e., the size endorsement of neither type of permit
[[Page 78354]]
has to be reduced if registered to a smaller vessel).
Comments on Initial Allocation of Catch Shares
Comment 35. One commenter stated that the allocation formula for
overfished species rewarded fishermen that caught overfished species
while penalizing those that successfully avoided them.
Response. NMFS responded to a similar comment in the October 31st
final rule (75 FR 60868, comment 31) which stated, ``The Council
considered and rejected the option of allocating overfished species for
nonwhiting trips using the same method as for other nonwhiting IFQ
species as not appropriate under the circumstances. In particular, the
relative weighting approach, by which landings for a year are measured
as a percent of all landings for the year and species, would have given
a particularly high amount of credit for pounds caught during the
rebuilding period. Additionally, QS would have been allocated to those
who targeted some of the overfished species in the mid-1990s (before
they were declared overfished) rather than to those who need such QS to
access current target species. Accordingly, the Council rejected the
approach of using the same allocation formula for overfished species as
for nonwhiting target species based on the desire to not reward bycatch
during the rebuilding period and in order to provide QS to those who
would need it to cover incidental catch taken with their target species
QS allocation. Regarding the comment that overfished species years
selected were arbitrary, the Council's methodology for allocating
overfished species is significantly different than the methodology for
allocating target catch. The 1994-2003 period is still used to
determine the target species allocation, and the harvest patterns from
the 2003-2006 logbooks are used to determine the amount of overfished
species an entity would need to take its target species. In this
fashion, more recent information for the fishery is used without
rewarding post control date increases in effort. The 1994-2003 harvest
patterns were not used to determine a target species QS recipients need
for overfished species QS. This is because of the substantial changes
in fishing patterns which were induced by the determination that some
species were overfished and the implementation of the RCAs and because
the RCAs will remain in place after the trawl rationalization system is
put into place. Therefore, the Council considered that an estimate of
likely patterns of activity should be based on a period of time when
the RCAs were in place. The RCAs were not in place for most of the
1994-2003 period but were in place for 2003-2006, further supporting
the conclusion to use this period for the allocation of overfished
species.''
Comment 36. Several commenters stated that the program should not
result in an unfair allocation between the states, and should be
designed to result in an even consolidation between states and between
the sectors (non-whiting shorebased IFQ, whiting shorebased IFQ,
mothership sector, and catcher/processor sector). One commenter stated
that California fishermen have received an unfair allocation of
overfished species compared to fishermen in Washington and Oregon,
which was not discussed by the Council, analyzed under NEPA, or
justified under the Magnuson-Stevens Act.
Response. NMFS responded to a similar comment in the October 31st
final rule (75 FR 60868, 60885, comment 61). As stated in the response
to the prior comment: ``The trawl rationalization program was developed
through the Council process, which facilitates substantial
participation by state representatives. Generally, state proposals are
brought forward when alternatives are crafted and integrated to the
degree practicable. Decisions about catch allocation between different
sectors or gear groups are also part of this participatory process, and
emphasis is placed on equitable division while ensuring conservation
goals. The Council determined that none of the alternatives considered,
including the final plan, would discriminate against residents of
different states. The rationalization program was structured to provide
fair and equitable allocations of both target species and overfished
species to participants.'' These concerns were expressly identified and
addressed in the FEIS for Amendment 20, as well. See the FEIS
``Rationalization of the Pacific Coast Groundfish Limited Entry Trawl
Fishery'' in Chapter 6, Section 6.2 on pages 611. See also the response
to Comment 14, supra.
Comment 37. One commenter disagreed with NMFS' decision to move
forward with formal allocations to the trawl fishermen, favoring the
most impactful gear. The commenter is hopeful that the program can
still be utilized to create conservation benefits and lessen bycatch
and habitat impacts from destructive gears.
Response. NMFS responded to a similar comment in the October 31st
final rule (75 FR 60868, comment 81) which stated, in part, ``The
action [from the October 31st final rule] largely limits the trawl
allocation of many of the Amendment 21 species to percentages less than
the historical trawl catch shares to the benefit of the non-trawl
sectors. For instance, the proposed action limits the maximum trawl
allocation of any Amendment 21species to 95 percent of the directed
harvest when historical trawl catch shares for many of these species
have been higher than 95 percent. Amendment 21 species' allocations
that tend to favor non-trawl sectors (i.e., non-trawl sector
allocations greater than observed in the 1995 to 2005 historical catch)
include Pacific cod, Pacific ocean perch, chilipepper rockfish south of
40[deg]10' N. lat., splitnose rockfish south of 40[deg]10' N. lat.,
shortspine thornyhead north of 34[deg]27' N. lat., longspine thornyhead
north of 34[deg]27' N. lat., darkblotched rockfish, Dover sole, English
sole, petrale sole, arrowtooth flounder, starry flounder, and species
in the Other Flatfish complex. All other Amendment 21 species'
allocations under the proposed action are generally favorable to non-
trawl sectors in that the highest non-trawl sector catch percentages
analyzed were proposed to be allocated to the non-trawl sectors. The
only exception to this general trend is lingcod, where a more favorable
trawl allocation was adopted as the final action. The rationale for a
higher trawl allocation of lingcod is that, unlike the non-trawl
sectors that predominantly use hook-and-line gear to target groundfish,
the trawl sectors are not as constrained by management measures
designed to foster yelloweye rockfish rebuilding. This is because the
mandatory use of trawls with small-diameter footropes (i.e., at least 8
inches) shoreward of the RCA effectively keeps bottom trawls out of the
high relief habitats where yelloweye occur. A higher trawl allocation
of lingcod would minimize stranding of harvestable yields of lingcod
that would otherwise be allocated to non-trawl sectors and unavailable
for harvest due to yelloweye rebuilding constraints. Thus, the inter-
sector allocation does not provide more bottom trawl opportunity than
status quo management measures and allocations.
In addition, the trawl rationalization allows limited entry trawl
permit holders to switch from trawl to fixed gears to fish their
quotas, which, in turn, would reduce trawl impacts. It also allows
nontrawl vessels to harvest the allocation to the trawl sector if they
acquire a trawl permit and IFQ. These facts lead to the conclusion that
potential adverse impacts from trawl
[[Page 78355]]
gear could be expected to be lower under the proposed action than under
status quo management or under any of the other alternatives analyzed.
Moreover, the allocations are consistent with the current distribution
of fishing opportunity among groundfish sectors. Even if the fixed gear
sector had the capacity and desire to catch significantly greater
amounts of groundfish, which is questionable, those factors are not, in
and of themselves, criteria for determining allocations. Allocations
are necessary precisely because more than one group has some level of
``capacity and desire,'' which engenders potential conflicts over
resource access that must be resolved through allocation.''
Comments on the Shorebased IFQ Program
Comment 38. One commenter disagrees with the regulatory provision
that allows the Shorebased IFQ Program to be closed as a result of a
projected overage in another trawl sector (MS Coop Program, C/P Coop
Program). The commenter believes NMFS misinterpreted the Council's
intent.
Response. NMFS acknowledges the comment, and appreciates the
commenter's concern. This concern was raised by representatives of the
trawl sectors through the Council during the regulatory deeming
process. As explained at that time, this language reflects NMFS'
authority to take action in any and/or all sectors of the fishery based
on a conservation concern. Overfishing or projected overages on OYs are
expected to be less likely under the trawl rationalization program,
however, consistent with the MSA, NMFS retains the authority to take
action to protect the status of the stocks, if needed.
Comment 39. One commenter stated that fishermen who receive minimal
QS or zero QS for overfished bycatch species would face the choice of
being tied up at the dock or paying other fishermen for the privilege
of using their IFQ for overfished bycatch species.
Response. NMFS disagrees with the comment that these are the only
choices available to fishermen that receive low initial allocations of
QS for overfished bycatch species. QS is associated with QS permit
owners, and is tracked in the QS permit owner's QS account. Each year,
NMFS will deposit QP in the QS account based on the amount of QS for
the IFQ species and the shoreside trawl allocation for that species. In
order for a fisherman to use QP, the fisherman must obtain QP to
transfer into the fisherman's unique vessel account associated with the
vessel the fisherman will use to catch the fish. QP is required in the
vessel account to cover catch of IFQ species.
Unless a fisherman has a negative balance of QP for any IFQ species
in their vessel account, they can go fishing in the Shorebased IFQ
Program. This is true even if they have zero QP for some IFQ species,
including overfished bycatch species. To the extent that the fisherman
is adept at avoiding bycatch of IFQ species which the fisherman has no
QP for, no QP need ever be transferred to that fisherman's vessel
account for those species. If the fisherman does catch IFQ species for
which they do not have QP, the fisherman would have 30 days to obtain
and transfer QP for that species into their vessel account.
Alternatively, if the amount of QP that they need to cover the overage
is within the carryover provisions, they can opt out of the fishery for
the remainder of the year and use the next year's QP to cover that
overage (see comment 41). Fisherman also have the option of working
together to share their QP for overfished bycatch species by avoiding
overfished bycatch species as much as possible, forming risk pools to
use collectively, and using that amount to address inadvertent catch of
unwanted bycatch by members of the pooling arrangement.
Comment 40. One commenter supported the proposed requirement that
the owner of a vessel account must cover a deficit for any IFQ species
within 30 days of when the deficit occurs, or, if the vessel chooses to
invoke the carryover provision to avoid penalties, opt out of the
fishery for the remainder of the year. The commenter also suggested
that in order to encourage clean fishing practices, NMFS should limit
the number of times a vessel can use this provision to two years total.
Response. In the August 31st proposed rule (75 FR 53380), NMFS
specifically requested comment on the carryover provision. NMFS
acknowledges the comment in support of the proposed regulation and the
requirement to opt out of the IFQ fishery for the remainder of the year
if a fisherman invokes the carryover provision to cover a deficit.
Nothing in the Council motion, however, authorizes NMFS to limit the
carryover provision to only two years of the program. Amendment 20 does
not restrict the carryover provision to the first two years of the
program, but does provide a method for future revision of the carryover
limit, which may be changed during the biennial specifications process.
Appendix E, A-2.2.2b; at E-13. Moreover, the carryover provision, as
well as other relevant issues, will be reviewed during the 5-year
review. To the extent that the commenter suggests a more restrictive
carryover provision than that described in the proposed rule, the
appropriate avenue for consideration of this suggestion under the FMP
would be through the biennial specifications process or as part of the
5-year review.
Comment 41. Another commenter stated that the proposed rule would
require fishermen to cover a deficit within 30 days or opt out of the
fishery for the year, and that under the commenter's reading of the
proposed rule, fishermen that receive zero QS/QP would start from a
position of noncompliance, and would be required to first obtain QP to
fish for target species.
Response. The commenter correctly states that a deficit must be
covered within 30 days, but does not accurately state what would be
required for compliance with this provision. In order to harvest fish
without incurring a deficit, a vessel must have sufficient QP in its
vessel account. Each vessel participating in the Shorebased IFQ Program
would have a vessel account, and all vessel accounts start with a zero
balance. In order to be in compliance, the owner of the vessel would
have to acquire QP only for the fish that it catches; having a zero
balance for QP for any one IFQ species does not automatically result in
noncompliance.
Under the rationalized fishery, fishermen have several options to
plan their fishing strategies. A QS owner may choose to transfer the
resulting QP to the owner's own vessel account, or may elect to lease
the QP and transfer them to another vessel account entirely. A vessel
owner that chooses to go fishing can obtain QP before the vessel goes
fishing, whether from the vessel owner's own QS account or by transfer
from another owner of QP, for IFQ species that the vessel intends to
harvest or anticipates harvesting, and may go fishing with a zero
balance for IFQ species which it intends to avoid. Moreover, if a
vessel fishing with a zero balance for an IFQ species were to catch
that species, the vessel would have 30 days after that occurrence
within which to obtain sufficient QP to cover the deficit, and if the
deficit is within the carryover limit, the vessel owner has the option
to opt out of the IFQ fishery for the remainder of the year and cover
the deficit with QP issued in the following year. A vessel that opts
out of the IFQ fishery to use the carryover provision may still fish in
other fisheries during the remainder of the year, and may transfer
unused QP from the vessel account to another vessel account.
[[Page 78356]]
Under none of these scenarios would the fisherman be in a ``position of
noncompliance,'' despite having started with a zero balance of QP.
Comment 42. Multiple commenters addressed NMFS' proposed weight
conversions. Some commenters agreed with NMFS on the need for a
standard, coastwide set of conversion factors for fish not landed
whole. The commenters agreed with the values NMFS published in the
August 31st proposed rule (75 FR 53380) for most species. For
sablefish, lingcod, Pacific whiting, and skates, the commenters
recommended NMFS use values from the Oregon Department of Fish and
Wildlife (ODFW). Another commenter only supported a non-sector specific
sablefish conversion factor of 1.6, but did not support any other
proposed additional weight conversion factors at this time for several
reasons.
Response. In the August 31st proposed rule (75 FR 53380), NMFS
specifically requested comment on the actual values and implications of
the proposed conversion factors. NMFS' intent is to have consistent
coastwide conversion factors that are as consistent as possible with
existing state practices. It is NMFS' understanding that processors
will report on electronic fish tickets in a similar manner as the
states have been doing for the state paper fish ticket system, which is
to report the groundfish species to sorting groups with their current
condition noted (e.g., headed and gutted (eviscerated)). If the states
have more restrictive landings requirements on the species or condition
that fish may be landed in, the Federal regulations will not supersede
those more restrictive state requirements. The conversion factor would
be applied to the state, PacFIN, or Federal data systems later in the
process. While ideally the Federal weight conversion factors would be
consistent with values used by the states, they are independent and may
be different. As stated in the preamble to the proposed rule, Federal
regulations at Sec. 660.60(h)(5)(ii) state that Federal conversion
factors will be used for participants in the Shorebased IFQ Program.
However, for the limited entry fixed gear and open access fisheries,
the regulations say that state conversion factors will be used.
Based on Council discussion at the September 2010 meeting and on
public comment received, NMFWS has revised the regulations in this
final rule to make sablefish, lingcod, and Pacific whiting consistent
with the values from the Oregon Department of Fish and Wildlife (ODFW),
with some exceptions, and to clarify that Federal regulations do not
supersede more restrictive state regulations on landings requirements
for the species or condition that fish may be landed. NMFS is not
adopting ODFW conversion factors for filleted Pacific whiting, for
winged skates, or for glazed sablefish because processing of groundfish
is prohibited at-sea by vessels in the Shorebased IFQ Program at Sec.
660.112(b)(1)(xii), with narrow exceptions, inapplicable here. In
addition, skates are not an IFQ species. The value from ODFW for
lingcod of 1.1 uses the term ``gilled and gutted'' which is equivalent
to ``gutted with the head on'' in Federal regulations. The values for
other groundfish species will remain as previously specified in the
August 31st proposed rule, including a value for Pacific whiting that
has been headed and gutted with tail removed. This conversion factor is
necessary because there is an exception from the prohibition on
processing at-sea for Pacific whiting for vessels that are equal to or
shorter than 75-ft (23-m) that head, gut, remove tails and freeze
whiting. See the section on ``Changes from the Proposed Rule.'' The
conversion factors implemented through this final rule are based on the
best available information and are subject to change on the basis of
improved scientific information.
Comment 43. One commenter disagreed with the proposed regulations
at Sec. 660.113(a)(4)(i) to record the weight of fish on electronic
fish tickets in round weight only. The commenter suggested that the
weight of fish recorded on electronic fish tickets should be the weight
of the fish based on the condition it was landed in, whether dressed or
round, and the conversion factors for dressed fish should be applied
after the fish ticket reporting. The commenter provided several reasons
why this would be preferable, including: ease for the catch monitors to
verify weights without dealing with conversion factors; more assurance
by NMFS and states that the correct conversion factors are applied,
reducing the likelihood of confusion for buyers between state and
electronic fish tickets; and consistent weights between state and
electronic fish tickets.
Response. NMFS appreciates the comment and has reviewed the
required information for electronic fish tickets. NMFS is developing an
electronic fish ticket system where weight limit conversion factor will
be automated and applied once the data is entered into the data system.
Accordingly, the required information that IFQ first receivers must
provide on electronic fish tickets is being revised in this final rule
to require the actual weight and condition of species landed, rather
than the round weight. NMFS is also requiring the vessel account number
to be reported on the electronic fish ticket to accurately track landed
catch to a specific vessel account. To be clear, the Federal electronic
landing report (electronic fish ticket) does not replace any state
reporting requirements for landings but is in addition to those
requirements.
Comment 44. One commenter stated that NMFS failed to consider
impacts of gear switching on fixed gear fisheries, on ports and
processors dependent on species harvested by trawl gear, and on the
inequities created between sectors (fixed gear and trawl) for gear
conversion.
Response. As discussed in response to the commenter's similar
comments on Amendments 20 and 21 to the FMP, the potential effects of
the trawl rationalization program on other fisheries and on ports and
processors dependent on species harvested by trawl gear are
specifically addressed in the FEIS ``Rationalization of the Pacific
Coast Groundfish Limited Entry Trawl Fishery'' in Chapter 4, Sections
4.8.2 and 4.8.3 on pages 402-409, and Section 4.9.2 on pages 413-423,
respectively. Potential effects specifically due to gear switching that
were analyzed in the FEIS include spillover of vessel participation,
grounds competition, market competition and regional shifts in
landings. These potential effects were identified and analyzed, to the
extent possible, without the knowledge of observed or actual impacts.
These potential impacts were highlighted for the purpose of monitoring
behavioral changes in the fishery, understanding their impacts, and
reacting through the Council process to minimize impacts. These matters
will also be evaluated through the 5 year comprehensive review of the
trawl rationalization program.
Regarding the comment about alleged inequities between sectors,
under the license limitation program, trawl vessels are already allowed
to use fixed gear to take the trawl allocation, albeit they must do so
under the open access regulations, which have much lower limits. In
contrast, fixed gear endorsements give a vessel access to the fixed
gear allocation. Allowing trawl vessels to switch gear (or other
vessels to acquire a trawl permit and IFQ) does not give trawl-
permitted vessels access to the fixed gear quota; it merely allows the
vessel to use nontrawl gear to take the trawl IFQ. Moreover, with
regard to intersector allocations and allowing fixed gear to harvest
trawl quota, it should be noted that trawlers who have entered the
fishery since 1994 have had to buy trawl permits to access trawl quota,
thus in this respect other vessels
[[Page 78357]]
would be on an even footing with trawl vessels. This issue of requiring
a trawl permit and quota to harvest trawl quota with fixed gear was
addressed in the response to comments on the Amendment 20 FEIS at page
661. On average there are about 120 trawl vessels that participate in
the fishery each year; however, there are about 168 permits. This
indicates some opportunity for nontrawl vessels to acquire trawl
permits and use trawl IFQ. Further, it is expected that there will be
consolidation in the trawl fleet, increasing the number of trawl
permits potentially available for use by nontrawl vessels. Thus,
despite the limited scope, the IFQ system will allow for some use of
trawl IFQ by nontrawl vessels.
Comment 45. One commenter expressed support for gear switching and
recommended that NMFS create incentives for permanent conversion to
lower impact gears.
Response. NMFS acknowledges the comment in support of gear
switching provisions in the proposed rule; however, nothing in
Amendment 20 allows NMFS to provide incentives for permanent gear
conversion. The Council considered and rejected permanent gear
conversion in its development of alternatives for Amendment 20. The
Council's rationale for rejecting permanent gear conversion is included
in the FEIS at Appendix A, Section A.7, on pages A-419 to A-423. Since
permanent gear conversion is not within the scope of the trawl
rationalization program, NMFS declines to provide any incentives for
permanent gear conversion.
Comment 46. One commenter was concerned with the timing of applying
for an interim first receiver site license and the start of the
fishery. The commenter suggested that, if the fishery starts January 1,
2011, no first receiver site license (interim or permanent) should be
required until February 1, 2011.
Response. NMFS understands the commenter's concerns, but believes
the interim first receiver site license will accommodate the needs of
the fishery. Due to the quick implementation of this program, the
interim first receiver site license was developed to allow industry
participants time to obtain permanent site licenses. An interim first
receiver site license is required before an IFQ first receiver begins
accepting landings of IFQ species, which could be as early as January
1, 2011. Site licenses are required for tracking and documentation
purposes to account for the landings from the quota-based program. NMFS
will work with industry from the start of the program through June 30,
2011, to complete an acceptable application and monitoring plan for an
annual first receiver site license, including site inspections. First
receivers that have accepted Pacific whiting in the past three years
are already familiar with many of the site license requirements,
including preparation of a monitoring plan, and should only require
some modifications to their plans such as expanding them to cover more
groundfish species.
Comment 47. Some commenters stated that the maximized retention in
the Shorebased IFQ Program should be consistent with the existing
maximized retention fishery, where some discards are allowed for
operational and safety reasons, but those discards are estimated by an
observer.
Response. In the August 31st proposed rule (75 FR 53380), NMFS
specifically requested comment on any implications that the prohibition
on discarding may have on the prosecution of a maximized retention
fishery, and further requested comment on what should constitute
discarding under this provision of the Shorebased IFQ Program. NMFS
agrees with the commenters that the maximized retention in the
Shorebased IFQ Program should be consistent with the existing maximized
retention fishery. Under current practices in the maximized retention
Pacific whiting fisheries, some minor amounts of operational discard
are allowed. Under trawl rationalization, any minor operational amounts
of discard would be estimated by the observer and deducted from
allocations. NMFS has modified the final rule language in the
Shorebased IFQ Program to be consistent with the MS Coop Program
language on maximized retention which allows minor operational amounts
of discard which are estimated by the observer. See the section on
``Changes from the Proposed Rule.''
Comment 48. One commenter disagreed with the requirement that a
vessel fish in a single management area during a single trip. The
commenter stated that with 100 percent observer coverage, observer
access to vessel location, all catch recorded, and--in the future--
electronic logbooks, there is no need to restrict a vessel's operation
by restricting them to a single management area per trip.
Response. Several IFQ species are either a single species with
different QS by area; or are a single species in one area and a
component of an assemblage, such as minor shelf rockfish or minor slope
rockfish, in another. For instance, QS for sablefish is issued with
area distinctions either north or south of 36[deg] N. lat. Likewise, QS
for shortspine thornyhead is issued with area distinctions either north
or south of 34[deg]27' N. lat. One example of an IFQ species would be
yellowtail rockfish, which is an individual IFQ species north of
40[deg]10', but a component of the minor shelf rockfish species complex
south of 40[deg]10'. Similar distinctions exist for bocaccio rockfish,
chilipepper rockfish, cowcod, Pacific ocean perch, and splitnose
rockfish.
Discards will be accounted for at the tow level, with 100 percent
observer coverage and haul locations. However, not all retained catch
will be estimated by observers. Landed catch, therefore, would not be
attributable to the appropriate management area if a vessel were to
fish in multiple management areas in one trip. For example, if a vessel
were to catch sablefish both North and South of 36[deg] in the same
trip, it would not be possible for an IFQ first receiver to sort or for
the catch monitor to verify how much sablefish was caught in either
area in order to enter on the electronic fish ticket the appropriate
amount for sablefish north of 36[deg] N. lat. versus sablefish south of
36[deg] N. lat. Nor would it be possible for NMFS to determine how much
QP should be subtracted from the vessel account for their QP of each
IFQ species.
NMFS raised this concern with the Council in its March 2010
meeting. Because landings are a mix of all hauls taken during a single
trip, NMFS indicated its intent to implement this provision in order to
simplify sorting requirements, at-sea observation, and enforcement of
IFQ limits. NMFS considers this approach to be the most straightforward
and efficient method to track and verify total catch of a vessel's IFQ
limits for individual species and rockfish complexes. Therefore, the
Council deemed, and NMFS has implemented, the requirement in the
Shorebased IFQ Program for a vessel to fish in a single management area
during a trip.
Comment 49. One commenter requested clarification on the provision
that allows a vessel to deliver a load of fish to more than one first
receiver and how that relates to the requirement that all fish be
offloaded once an offload has begun.
Response. A vessel may make more than one delivery as part of the
same landing. Current regulations at Sec. 660.11 define land or
landing as ``to begin transfer of fish, offloading fish, or to offload
fish from any vessel[;] Once transfer of fish begins, all fish aboard
the vessel are counted as part of the landing.'' This definition does
not prohibit a landing from being offloaded
[[Page 78358]]
through more than one delivery; however, all fish aboard a vessel at
the start of the first transfer are considered part of the same
landing. Current regulations at Sec. 660.12(e)(5) prohibit vessels
from landing fish without observer coverage when a vessel is required
to carry an observer. The proposed regulations at Sec. Sec.
660.112(b)(1)(xiii) and 660.140(h)(1) clarify that observer coverage
requirements under the Shorebased IFQ Program include having an
observer onboard during a trip until such time that all fish from that
trip have been offloaded. Observers must also be onboard the vessel
during transit from one delivery site to another. Section 660.60(h)(2)
reiterates the definition of a landing at Sec. 660.12, and clarifies
that not only are all fish aboard the vessel at the time offloading
begins counted as part of the same landing, but also that they would be
required to be reported as such. Section 660.60(h)(2) of the proposed
rule would also prohibit catcher vessels in the mothership sector from
setting the gear for a subsequent haul; however, the regulations did
not specify that all fish from an IFQ landing would need to be
completed before a new fishing trip begins. NMFS appreciates the
comment pointing to this discrepancy in the regulations, and
accordingly is including additional regulatory language to clarify that
an IFQ landing would need to be offloaded prior to starting a new
fishing trip. See the section on ``Changes from the Proposed Rule'' for
specific regulatory citations.
Comment 50. One commenter requested clarification on the printed
record requirement for scales at first receivers as stated at Sec.
660.140(j)(2)(i) and (ii). The commenter stated that one paragraph
exempted scales used for bulk weighing from the printed record
requirement while the other paragraph limits the exemption based on the
purchasing record of the first receiver and other factors having
nothing to do with bulk weighing.
Response. The commenter appears to have misread the exemption.
Scales NOT designed for bulk weighing may be exempted from all or part
of the printed record requirements (i.e. platform scales). The second
paragraph referenced outlines the conditions that are required to
obtain the exemption. Based on comments received from industry during
public workshops, including comments about the costs for small business
that do not accept large volumes of fish, NMFS considered a specific
standard for this exemption as appropriate. The requirement for a
printed record is to assist the catch monitor in independently
monitoring the sorting and weighing processes and ensuring catch
accountability. Monitoring may be conducted effectively at facilities
that accept small volumes of catch, without the need for a printed
record from non-bulk weighing scales, pending the first receiver
ensuring that all catch is weighed and that independent verification of
the weights are possible.
Comment 51. One commenter suggested that the responsibilities of
the first receiver site license should go to the ``holder'' of the
license rather than the owner of the first receiver company because the
holder could be an individual other than an owner and restrictions on
the license is a primary enforcement tool.
Response. NMFS agrees with the comment. NMFS is revising the final
rule at Sec. 660.140(j)(2)(i) and (j)(3) to change the regulations
from ``the owner of an IFQ first receiver must* * * '' to ``the IFQ
first receiver must* * *. '' ``IFQ first receivers'' are defined in the
October 31st final rule (75 FR 60868) at Sec. 660.111 as ``persons who
first receive, purchase, or take custody, control, or possession of
catch onshore directly from a vessel that harvested the catch while
fishing under the Shorebased IFQ Program described at Sec. 660.140,
subpart D.'' For the first receiver site license owner, the term
``license owner'' is defined at Sec. 660.11 as ``a person who is the
owner of record with NMFS, SFD, Permits Office of a License issued
under Sec. 660.140, subpart D'' and is cross-referenced from the
``permit owner'' definition. See the section on ``Changes from the
Proposed Rule'' for specific regulatory citations.
Comments on At-Sea Whiting Programs (Mothership or Catcher/Processor)
Comment 52. One commenter stated that transfers of MS/CV endorsed
permits should be effective immediately rather than at the start of the
next cumulative limit period because 2-month cumulative trip limits do
not apply to the at-sea fishery. Another commenter agreed with NMFS'
statement in the proposed rule that transfers of MS permits and C/P-
endorsed limited entry permits would be effective immediately upon
reissuance to the new vessel because neither of these permits would be
affected by trip limits.
Response. In the August 31st proposed rule (75 FR 53380), NMFS
specifically requested comment on the effective date for an MS/CV-
endorsed limited entry permit's second transfer within the same year.
At the September 2010 Council meeting and in the Council's letter of
public comment on the August 31st proposed rule, the Council stated
that the second transfer of an MS/CV-endorsed limited entry permit
should be effective immediately because trip limits will not apply to
the at-sea sectors (MS or C/P) in 2011 and 2012. NMFS agrees with the
Council's recommendation and revised the regulations in this final rule
to reflect that. See the section on ``Changes from the Proposed Rule''
for specific regulatory citations. NMFS also agrees with the second
commenter who reaffirmed NMFS regulations in the proposed rule that
transfers of MS permits and C/P-endorsed limited entry permits would be
effective immediately because they are not subject to trip limits.
Comment 53. Some commenters stated that there is no need for the
regulations on the at-sea sector donation program (which allows amounts
over retention limits to be donated instead of discarded) because there
are no 2-month cumulative trip limits in the at-sea fishery.
Response. In the August 31st proposed rule (75 FR 53380), NMFS
specifically requested comment on the implications of removing or
retaining the at-sea sector donation program and requested suggested
language revisions. The at-sea sector donation program, called the
``bycatch reduction and full utilization program for at-sea
processors'' in regulation, was previously established to allow vessels
harvesting unsorted catch to retain and donate amounts of groundfish
that were in excess of trip limits. At the September 2010 Council
meeting, the Council clarified that the at-sea sector regulations
should not require vessels to be subject to trip limits for bycatch of
non-whiting groundfish species. In addition to public comment from the
Council, another commenter supported this conclusion and both
recommended that the donation program is no longer necessary. NMFS
agrees with this conclusion and has removed the at-sea donation program
from the regulations in this final rule. See the section on ``Changes
from the Proposed Rule'' for specific regulatory citations.
In reviewing regulations that may no longer be necessary because of
changes in the trip limit requirements for the at-sea fishery, NMFS
also notes that there may be regulations that are no longer necessary
or need revisions because of changes in the trip limit requirements for
the Shorebased IFQ Program. For the 2011-2012 groundfish harvest
specifications and management measures, the Council has recommended
trip limits only for non-
[[Page 78359]]
IFQ species. The trawl fishery crossover provision regulations,
specified in the October 1st final rule at Sec. 660.120, list
requirements for handling trip limits when a vessel crosses over a
management area within a 2-month cumulative trip limit period. However,
all of the species listed in this section of the regulations are now
IFQ species that are no longer subject to 2-month cumulative trip
limits. NMFS intends to revisit these regulations through a future
action to determine if they should be removed altogether or revised
with new species or based on changing management concerns.
Comment 54. One commenter asked for clarification on whether
discarding of non-whiting species would be required in the absence of
2-month cumulative trip limits in the at-sea fishery.
Response. The regulations for at-sea coop programs would not
require discarding of non-whiting groundfish species in the absence of
2-month cumulative trip limits. Allocations of non-whiting species to
the at-sea sectors are specified at Sec. 660.150(c) for the MS Coop
Program and at Sec. 660.160(c) for the C/P Coop Program, including
allocations for some overfished non-whiting groundfish species at risk
of being caught with Pacific whiting, set-asides for other non-whiting
groundfish species less likely to be caught in whiting fisheries, and
no allocation or set-aside for species not expected to be caught in
whiting fisheries. Over time, the Council may revisit these
allocations, set-asides (or lack thereof), and trip limits if catch of
non-whiting groundfish species increases in the at-sea sectors.
Comment 55. One commenter agreed with NMFS' interpretation of the
processor obligation for the MS Coop Program where the MS/CV-endorsed
permit's catch history assignment is obligated to an MS permit for the
year. The commenter also agreed with the timing of the declaration in
regulations which is reported to NMFS through the annual MS/CV-endorsed
limited entry trawl permit renewal and again through the MS Coop permit
application.
Response. NMFS acknowledges this comment.
Comment 56. One commenter asked for clarification about items
applicable to the MS Coop Program that NMFS disapproved in Amendment
20, as stated in the preamble to the August 31st proposed rule (75 FR
53380, 53396), and whether they should apply to the C/P Coop Program.
In particular, the commenter questioned the requirement for coop
agreements to be submitted to the Council and available for public
review before the coop is authorized to go fishing, and the requirement
to submit a letter to the Department of Justice and provide a copy to
NMFS.
Response. On August 9, 2010, NMFS made its decision to partially
approve Amendments 20 and 21 to the FMP. The preamble to the October
1st final rule (75 FR 60868) discussed the partial approval of
Amendments 20 and 21. The August 31st proposed rule (75 FR 53380) for
the additional program components, developed by NMFS and deemed by the
Council prior to NMFS' partial approval of the amendments, contained
several provisions that NMFS subsequently disapproved. The commenter
correctly noted that the preamble to the August 31st proposed rule (75
FR 53380, 53396) described disapproval of items applicable to the MS
Coop Program, but did not specify whether similar provisions should
apply to the C/P Coop Program. The similar provisions applicable to the
C/P Coop Program were not specifically contained in Amendment 20 to the
FMP and thus were not specifically disapproved by NMFS' decision on the
Amendments; however, they had been deemed by the Council as necessary
and appropriate in the regulations for the implementation of the
program. NMFS has considered the issue in light of the disapproval of
provisions of Amendment 20 applicable to the MS Coop Program, and
believes the reasons for disapproval apply equally to the C/P Coop
Program. Accordingly, with this final rule, NMFS is removing the
requirement that the C/P coop file a coop contract with the Council and
make it available for public review and the requirement that the C/P
coop file a letter from the Department of Justice and provide a copy to
NMFS. See the section on ``Changes from the Proposed Rule'' for
specific regulatory citations.
Items NMFS Requested Comment on in the Proposed Rule
In addition to the comments received above, NMFS specifically
requested comment on several items in the proposed rule. NMFS received
comments on some but not all of those items. Where NMFS has made
changes to the proposed rule where comments were specifically
requested, these specific requests are identified in the section on
``Changes from the Proposed Rule.''
Changes From the Proposed Rule
A. All Trawl Programs
I. Changes To Reflect Recent NMFS Actions
Some changes are made in this final rule to update the regulations
to reflect actions that have been implemented at 50 CFR part 660 since
the proposed rule (75 FR 53380, August 31, 2010) was published. The
regulations in this final rule were reviewed and revised to reflect
changes implemented in the final rule published on October 1, 2010 (75
FR 60868), called the ``initial issuance'' final rule. For example,
Sec. 660.25(b)(4)(iv)(A) was revised to include the language from the
final rule regarding the restriction on changes in permit ownership
during application period.
II. Changes Due to Partial Disapproval of Amendment 20
On August 9, 2010, NMFS made its decision to partially approve
Amendments 20 and 21 to the FMP. The preamble to the final rule (75 FR
60868, October 1, 2010) discussed the partial approval of Amendments 20
and 21. The proposed rule (75 FR 53380, August 31, 2010), which was
developed by NMFS and deemed necessary by the Council prior to NMFS'
partial approval of the amendments, contained several provisions in the
MS Coop Program and C/P Coop Program that NMFS subsequently
disapproved. Public comment on the proposed rule requested
clarification whether the items that were disapproved only affected the
MS Coop Program, or whether similar provisions applicable to the C/P
Coop Program would also be revised. The similar provisions applicable
to the C/P Coop Program were not specifically contained in Amendment 20
to the FMP, however, they had been deemed by the Council as necessary
and appropriate for the implementation of the program. NMFS has
considered the issue in light of the disapproval of provisions of
Amendment 20 applicable to the MS Coop Program, and believes the
reasons for disapproval apply equally to the C/P Coop Program.
Accordingly, with this final rule, NMFS is removing or revising
regulatory language for three provisions based on the partial
disapproval of Amendment 20: (1) The requirement that MS coops or the
C/P coop file a coop contract with the Council and to make it available
for public review [it must still be filed with NMFS]; (2) the
requirement that MS coops or the C/P coop file a letter from the
Department of Justice; and (3) the
[[Page 78360]]
requirement that MS coop agreements include a clause that at least a
majority of the members are required to dissolve the coop.
The first provision stated: ``Signed copies of the coop agreement
must be submitted to NMFS and the Council and available for public
review before the coop is authorized to engage in fishing activities.''
NMFS disapproved of the requirement to submit agreements to the Council
and for public review because not only would it be impracticable given
the timing for public review, but also could violate restrictions on
the disclosure of confidential information under the MSA. Accordingly,
NMFS is revising this provision in the final rule for both the MS Coop
Program (Sec. 660.150 (d)(1)(iii)(A)) and the C/P Coop Program (Sec.
660.160 (d)(1)(iii)(A)) to state: ``Signed copies of the coop agreement
must be submitted to NMFS before the coop is authorized to engage in
fishing activities.'' The second provision would have required coops to
submit a letter to the Department of Justice requesting a business
review letter on the fishery coop, and to submit copies of all such
correspondence with a coop permit application. NMFS disapproved this
provision because compliance with antitrust laws is a separate and
distinct obligation of each and every participant and does not need to
be a requirement specified in the FMP. Accordingly, NMFS is removing
this provision entirely in the final rule for both the MS Coop Program
(from Sec. 660.150 (d)(1)(iii)(A)(2)) and the C/P Coop Program (from
Sec. 660.160 (d)(1)(iii)(A)(2)). The third provision would have
required coop agreements in the MS Coop Program to include ``A
requirement that agreement by at least a majority of the members is
required to dissolve the coop.'' NMFS disapproved this provision
because it would interfere with private parties' ability to contract
and agree to the terms of dissolution that are appropriate for their
coop. Accordingly, NMFS is removing this provision in the final rule
for the MS Coop Program from Sec. 660.150 (d)(1)(iii)(A)(1).
III. Observer and Catch Monitor Programs
In the proposed rule (75 FR 53380, August 31, 2010), NMFS
specifically requested comment on two alternatives to the conflict of
interest provisions of the observer and catch monitor regulations.
Alternative 1 (Council-deemed) represented the more narrow
interpretation of the conflict of interest regulations recommended and
deemed by the Council. As mentioned in the preamble to the proposed
rule, NMFS had concerns that the Council's recommended regulatory
language was not consistent with national policy, with conflict of
interest regulations for other sectors of the groundfish fishery, or
with regulations for other NMFS programs. Therefore, NMFS proposed to
implement Alternative 2 (NMFS-proposed) using its authority under
section 305(d) of the MSA to publish language in the final rule that
differs from what was deemed by the Council. The Council discussed this
issue further at their September 2010 meeting and submitted public
comment on the proposed rule supporting Alternative 2 (NMFS-proposed)
(see Comment 18). With this final rule, NMFS is implementing the
conflict of interest regulations from Alternative 2 (NMFS-proposed) in
the proposed rule for the observer programs (Sec. Sec.
660.140(h)(6)(vii)), 660.150(j)(6)(vii), and 660.160(g)(6)(i)(G)) and
for the catch monitor program (Sec. 660.18(c)).
In this final rule, NMFS has further clarified a provision at Sec.
660.112(b)(1)(xiii), Trawl fishery--prohibitions, to make it clear that
observer coverage must continue until all IFQ species from the trip are
offloaded, regardless of whether the fish is delivered to one or
multiple IFQ first receiver(s). Once all IFQ species from the trip are
offloaded, the observer will inspect the hold to verify that all IFQ
species have been offloaded, completing that trip. In addition, new
prohibitions have been added to Sec. 660.12, General groundfish
prohibitions, at paragraphs (e)(9) and (f)(9) to make it clear that it
is prohibited to fail to meet observer provider and catch monitor
provider responsibilities.
Also in this final rule, NMFS has further clarified provisions in
the observer program regulations on the effective date of a
decertification. The following sentence has been added to regulations
at Sec. Sec. 660.140(h)(6)(ix)(C), 660.150(j)(6)(ix)(C),
660.160(g)(6)(i)(I)(3), ``Decertification is effective 30 calendar days
after the date on the IAD, unless there is an appeal.'' Language for
the observer and catch monitor regulations at Sec. Sec. 660.18,
660.140(h), 660.150(j), and 660.160(g) have also been revised to make
the language on the IAD and appeals more consistent between these
sections and with the IAD and appeals language for the trawl
rationalization permits and endorsements. Language in these sections
has also been revised to make them as consistent with each other as
appropriate.
With this final rule, language at Sec. 660.17, Catch monitors and
catch monitor providers, and at Sec. 660.18, Certification and
decertification procedures for catch monitors and catch monitor
providers, was revised in some places to replace the terms
``processor'' or ``processing facility'' with ``first receiver.''
Language in these sections has also been revised to make them as
consistent as possible with similar provisions for the observer program
at Sec. Sec. 660.140(h), 660.150(j), and 660.160(g). New language was
added to the catch monitor provider responsibilities at Sec.
660.17(e)(1)(vii) consistent with similar requirements for the observer
program to include additional specifications for the health and fitness
exams of catch monitors, including a certificate of insurance. In Sec.
660.17(e)(1)(ix) regarding priority given to candidates that prove
their knowledge of West Coast marine species, ability to communicate in
writing, etc. was deleted from this final rule because it is not
necessary to specify in regulation. Also consistent with the observer
program requirements, a new paragraph was added to the catch monitor
provider responsibilities at Sec. 660.17(e)(14) to include information
on catch monitor training certificate, annual briefing requirement, and
validity of the certificate.
With this final rule, a sentence was deleted from Sec.
660.140(i)(2) that stated, ``IFQ first receivers are responsible for
all associated costs including training time, debriefing time, and
lodging while deployed.'' This sentence was deleted because this is a
requirement of the catch monitor provider. The contract between the
catch monitor provider and the first receiver will determine the cost
paid for catch monitor services.
Based on public comment received (see Comment 23), NMFS is removing
regulations regarding telephone access while processing whiting (Sec.
660.140(i)(4)(iv) of the August 31st proposed rule) because they are no
longer necessary.
IV. Initial Issuance Appeals Deadline
NMFS has decided to extend the deadline to appeal an IAD for the
initial issuance of the following permits and endorsements: QS permit
and associated QS and/or IBQ, MS permit, MS/CV endorsement and
associated catch history assignment, and C/P endorsement. Upon further
consideration, NMFS is extending the deadline published in the October
1st final rule (75 FR 60868) from 30 calendar days to 60 calendar days.
NMFS believes this extension of time is warranted given the time of
year in which NMFS anticipates sending out IADs and the potential
difficulties in
[[Page 78361]]
meeting a 30 day deadline due to holidays, with corresponding reduced
staffing, increased administrative burdens, and potential postal
delays. Additionally, the extension provides applicants more time to
gather documentation in support of any appeal that applicants may wish
to make. The regulations at Sec. Sec. 660.25(g)(4), 660.140(d)(8)(ix),
660.150(f)(6)(vi) and (g)(6)(viii), and 660.160(e)(6)(vii) are revised
to reflect the 60 calendar day deadline to appeal an IAD.
V. Minor Edits
NMFS has made some minor edits to the regulations to make
terminology more consistent (e.g., references to shorebased IFQ fishery
are edited to read Shorebased IFQ Program) and to correct typographical
errors and technical errors (e.g., capitalize Shorebased IFQ Program;
use ``an'' before MS permit and MS/CV-endorsed permit; and add a hyphen
to ``MS/CV-endorsed'' and ``C/P-endorsed''). In addition, in Sec.
660.25(b)(4) regarding limited entry permits, NMFS has replaced the
term ``transfer'' with ``change in vessel registration'' as appropriate
to distinguish such transfers from changes in permit ownership. To the
extent that ``transfer'' may be used in other sections where a similar
confusion may arise, NMFS intends to clarify the term as appropriate in
future rulemakings.
B. Shorebased IFQ Program
I. General
Some general changes are made to regulatory language in this final
rule. Similar to what was implemented with the ``initial issuance''
final rule (75 FR 60868, October 1, 2010), where appropriate, the terms
``QS'' and ``QP'' have been revised to read ``QS and IBQ'' and ``QP or
IBQ pounds,'' respectively. Pacific halibut is listed as an IFQ
species. Pacific halibut, however, has an individual bycatch quota
(IBQ) which is distinct from QS for groundfish species listed under the
groundfish FMP. This change is to make it clear that Pacific halibut
IBQ and IBQ pounds are distinct and may be managed differently than QS
or QP.
II. Maximized Retention in the Pacific Whiting IFQ Fishery
In the proposed rule (75 FR 53380, August 31, 2010), NMFS
specifically requested comment on any implications that the prohibition
on discarding may have on the prosecution of a maximized retention
fishery, and further requested comment on what should constitute
discarding under this provision of the Shorebased IFQ Program. NMFS
received two comments on this issue, both of which stated that the
maximized retention provision in the Shorebased IFQ Program should be
consistent with the existing maximized retention fishery, where some
discards are allowed for operational and safety reasons, but those
discards are estimated by an observer (see Comment 47). Under current
practices in the maximized retention Pacific whiting fisheries, some
minor amounts of operational discard are allowed. Under trawl
rationalization, any minor operational amounts of discard would be
estimated by the observer and deducted from allocations. NMFS raised
this issue at the Council's March 2010 meeting for the maximized
retention fishery in the mothership sector (Agenda Item E.6.b, NMFS
Report 1, March 2010, 25). For the Shorebased IFQ Program,
however, the Council motion was ambiguous. In the proposed rule, NMFS
proposed regulations consistent with the Council motion, but not
consistent with current practice nor with regulations for the MS Coop
Program. With this final rule and based on public comment, NMFS is
revising the language at Sec. 660.140(g)(2) to be consistent with the
MS Coop Program language at Sec. 660.150(i). The revised language
reads, ``Maximized retention vessels participating in the Pacific
whiting IFQ fishery may discard minor operational amounts of catch at
sea if the observer has accounted for the discard (i.e., a maximized
retention fishery).'' In addition, the prohibition on discarding IFQ
species at Sec. 660.112(b)(1)(xiv) is revised to clarify that it is
prohibited to discard IFQ species at sea unless that discard has been
documented or estimated by an observer.
III. Weight Limits and Conversions
In the proposed rule (75 FR 53380, August 31, 2010), NMFS
specifically requested comment on the actual values and implications of
the proposed conversion factors. NMFS received multiple comments on
this issue (see Comment 42). Based on the September 2010 Council
meeting and on public comment received, the regulations at Sec.
660.60(h)(5) have been revised in this final rule to make sablefish,
lingcod, and Pacific whiting consistent with the values from ODFW (with
some exceptions, described below) and to clarify that Federal
regulations do not supersede more restrictive state regulations on
landings requirements for the species or condition that fish may be
landed. There will not be a Federal conversion factor for filleted
Pacific whiting, for winged skates, or for glazed sablefish because
processing of groundfish is prohibited at-sea by vessels in the
Shorebased IFQ Program at Sec. 660.112(b)(1)(xii), with narrow
exceptions, inapplicable here. In addition, skates are not an IFQ
species and so are not appropriate to be included. The value from ODFW
for lingcod of 1.1 uses the term ``gilled and gutted'' which is
equivalent to ``gutted with the head on'' in Federal regulations. The
values for other groundfish species will remain as previously specified
in the August 31st proposed rule. The conversion factors implemented
through this final rule are based on the best available scientific
information and may change in a future rulemaking based on improved
science.
In this final rule, NMFS is also revising regulations at Sec.
660.113(b)(4)(i) on recordkeeping and reporting for electronic fish
tickets in the Shorebased IFQ Program. In making the revisions to the
weight limit and conversions regulations and in response to public
comment (see Comment 43), NMFS reviewed the required information for
electronic fish tickets. NMFS is developing an electronic fish ticket
system where weight limit conversion factor will be automated and
applied once the data is input in the data system. Accordingly, the
required information that IFQ first receivers must provide on
electronic fish tickets is being revised in this final rule to require
the actual weight and condition of species landed, rather than the
round weight. NMFS is also requiring the vessel account number to be
reported on the electronic fish ticket to accurately track landed catch
to a specific vessel account.
IV. Landing Groundfish in the Shorebased IFQ Program
NMFS received public comment requesting clarification of the
provision that allows a vessel to deliver a load of fish to more than
one first receiver and how that relates to the requirement that all
fish be offloaded once an offload has begun (see Comment 49). Based on
the public comment received, NMFS is further clarifying this provision
in the final rule at Sec. 660.60(h)(2) and is adding a prohibition at
Sec. 660.112(b)(1)(xv). These changes will clarify that a vessel
participating in the Shorebased IFQ Program may not begin a new fishing
trip until all fish aboard the vessel have been offloaded.
V. IFQ Species and Species Groupings
The regulations at Sec. 660.140(c)(1), as specified in the initial
issuance final rule (75 FR 60868, October 1, 2010), list
[[Page 78362]]
the IFQ species/species groups and area specific designations for those
species. Those regulations also state that the IFQ species groupings
and area subdivisions will be those for which OYs are specified in the
ABC/OY tables, and those for which there is an area-specific
precautionary harvest policy. Upon further review, NMFS determined that
the IFQ species list published in the initial issuance final rule did
not match the ABC/OY table, in particular with regards to area
designations for those species. The description of IFQ species in this
section needs to be clarified in order for the reallocation provisions
(Sec. 660.140(c)(3)(vii)) to be applied in the future. This final rule
clarifies the area designations at Sec. 660.140(c)(1) for the
following IFQ species: Pacific ocean perch (north of 40[deg]10' N.
lat.), chilipepper rockfish (south of 40[deg]10' N. lat.), bocaccio
(south of 40[deg]10' N. lat.), splitnose rockfish (south of 40[deg]10'
N. lat.), yellowtail rockfish (north of 40[deg]10' N. lat.), cowcod
(south of 40[deg]10' N. lat.), minor shelf rockfish complex north (of
40[deg]10' N. lat.), minor shelf rockfish complex south (of 40[deg]10'
N. lat.), minor slope rockfish complex north (of 40[deg]10' N. lat.),
and minor slope rockfish complex south (of 40[deg]10' N. lat.).
Similarly, language is revised to reflect these area designations in
the tables at Sec. 660.140(d)(4)(i)(C) on the QS and IBQ control
limits and at Sec. 660.140(e)(4)(i) on the vessel limits.
In addition, NMFS is clarifying regulations at Sec. 660.140(c)(1)
in this final rule to reference the definition of ``Groundfish'' at
Sec. 660.11 for the list of which individual groundfish species are
included in the minor shelf complex north and south of 40[deg]10' N.
lat., in the minor slope complex north and south 40[deg]10' N. lat.,
and in the other flatfish complex.
VI. QS Accounts and Vessel Accounts
With this final rule, NMFS has expanded the description of the
operation of QS accounts and vessel accounts. NMFS has further
clarified regulations to require designated account managers for both
QS accounts and vessel accounts; to prohibit QP and IBQ pound transfers
between vessel accounts from December 15 through 31 each year in order
to allow NMFS to reconcile accounts; and to clarify that once a QS
account transaction or vessel account transaction has been accepted by
the transferee, the transaction will be considered final and permanent.
In addition to these more substantive changes which are further
described below, NMFS has made some minor changes to these regulations
to make the QS account regulations and vessel account regulations more
consistent with each other. For example, information on the type of
computer access necessary to use the vessel account has been added to
the regulations at Sec. 660.140(e), consistent with the regulations
for the QS account.
The proposed rule generally described QS accounts and vessel
accounts that NMFS will use to manage QS and IBQ, and QP and IBQ
pounds, respectively. The final rule expands upon this description,
providing further detail of how the QS accounts and vessel accounts
will operate. The revised paragraph describes how NMFS will manage QS
accounts and vessel accounts, particularly with regards to how NMFS
will issue QP and IBQ pounds each year, how NMFS will adjust QS and IBQ
amounts if and when necessary, and the mechanics for operation of these
accounts. Additionally, NMFS has clarified how the operation of online
access to these accounts will function, particularly in regard to
transfers between accounts.
In the proposed rule (75 FR 53380, August 31, 2010), the vessel
account regulations (Sec. 660.140(e)) specified an account manager,
but the same requirement was not specified under the QS account
regulations (Sec. 660.140(d)(3)). A designated account manager is
necessary for either a QS account or a vessel account in order to
manage the account activity in cases where the account owner is a
business (individuals may name themselves as an account manager).
Without a designated account manager when the account owner is a
business, sensitive information (e.g., notices of account activity or
the personal identification number (PIN) or password) may not get
directed to the proper person. The designated account manager would be
identified to NMFS through the QS permit or vessel account renewal
process (except that for the 2011 fishery, the designated QS account
manager may be requested by NMFS through a separate process because
this information was not included on the initial issuance applications
for QS permits). The designated account manager's contact information,
such as phone number and email, would be requested. Their email
address, while optional, provides the most flexibility and quickest
resource for disseminating information. The designated account manager
is an extension of what NMFS brought forward at the June 2010 Council
meeting (Agenda Item B.6.b, Supplemental NMFS Report 3, June 2010,
10) which stated that NMFS would issue a unique ID and PIN to
account owners. If the account owner is not a business but is an
individual person, the account owner would be the designated account
manager. Because of the sensitive nature of this information and
because account owners may be businesses, NMFS is revising language in
this final rule to identify designated account managers and their
contact information for QS accounts and for vessel accounts.
There may be times when transactions in QS accounts and vessel
accounts may need to be prohibited. As stated in the August 31st
proposed rule for both types of accounts, ``during the year there may
be situations where NMFS deems it necessary to prohibit transfers
(i.e., account reconciliation, system maintenance, or for emergency
fishery management reasons).'' In addition, the August 31st proposed
rule stated that, for QS accounts, transactions are prohibited between
December 1 and December 31 each year. This prohibition is intended to
provide time for the QS account to remain stable for a period of time
prior to the start of the next fishing year so that NMFS can issue the
corresponding QP and IBQ pounds in to the QS account (see Council's
June 2010 meeting, Agenda Item B.6.b, Supplemental NMFS Report 3,
9). Upon further consideration and as the logical extension of
what was proposed, NMFS has determined to apply a similar requirement
to vessel accounts as that proposed for QS accounts. For vessel
accounts, this prohibition is intended to allow time for the vessel
account to remain stable in order to calculate any carryover provisions
that would be applicable for the next fishing year. However, QP and IBQ
pounds in vessel accounts need to be available as late as possible in
the year to provide flexibility to fishermen fishing later in the year
and to allow vessel account owners to cover deficits. Therefore, for
vessel accounts, NMFS has adopted a shorter time for the agency to
reconcile the account, approximately two weeks. With this final rule,
regulations at Sec. 660.140(e) have been revised to prohibit QP and
IBQ pound transfers between vessel accounts from December 15 through 31
each year. This provision may be reviewed and revised through a future
rulemaking based on experience during the first years of the program.
NMFS has clarified in this final rule at Sec. 660.140(d)(3) and
(e) that transactions in QS accounts or vessel accounts are final and
permanent once the transaction is accepted by both parties. NMFS will
not review or undo these transactions once they are accepted by both
parties. If one of the parties feels the transaction was for the wrong
amount, they would need to
[[Page 78363]]
resolve any dispute over the transaction on their own independently of
NMFS, and if an adjustment is needed to resolve the dispute, would need
to conduct another transfer. NMFS will only review transactions if an
error is identified with NMFS' online system.
VII. Transfers of QS and/or IBQ
The proposed rule would prohibit transfer of QS or IBQ in the first
two years of the program except under U.S. court order as approved by
NMFS. NMFS recognizes, however, that there may be some circumstances
where a court may authorize the distribution of assets, including QS or
IBQ, without a specific court order. Such a circumstance may arise as a
result of death or dissolution of a QS owner, such as in probate or in
a bankruptcy action. Based on public comment received, the regulations
at Sec. 660.140(d)(3)(ii)(B)(1) have been revised in this final rule
to allow QS and IBQ transfers during the first two years of the program
under a U.S court order or authorization, to accommodate such
circumstances (see Comment 29). Such transfers would still be subject
to NMFS' approval, including a determination of the transferee's
eligibility to own QS and a determination that the transferee's
ownership interest would not exceed applicable control limits (see
Comment 30).
VIII. Eligibility To Own a QS Permit
The August 31st proposed rule (75 FR 53380) included language that
states that eligibility to own and control a U.S. fishing vessel with a
fishery endorsement pursuant to 46 U.S.C. 12113 is required for U.S.
citizens, permanent resident aliens, and for corporations,
partnerships, or other entities, in order to be eligible to own a QS
permit. However, application of Title 46 of the U.S. Code to U.S.
citizens or permanent resident aliens in this context is confusing.
Under 46 U.S.C. 12113, all U.S. citizens are automatically eligible to
own and control a U.S. fishing vessel with a fishery endorsement, thus
the additional language is redundant. Also, under 46 U.S.C. 12113, all
permanent resident aliens are ineligible to own and control a U.S.
fishing vessel with a fishery endorsement, thus the additional language
appears to effectively bar permanent resident aliens from owning a QS
permit. In this final rule, NMFS has retained the language deemed by
the Council in the proposed rule. However, NMFS will continue to assess
this issue, and if appropriate, may request further consideration by
the Council.
IX. Carryover Provision
In the proposed rule, NMFS included a provision that would allow a
vessel owner to cover a deficit in the vessel account with QP from the
following year if the deficit is within the carryover limit and the
vessel declares out of the IFQ fishery for the remainder of the year
prior to the 30-day deadline by which a deficit would otherwise be
required to be covered. The declaration by the vessel owner that the
vessel opts out of the IFQ fishery for the remainder of the year would
notify NMFS enforcement in order to delay opening an investigation for
failure to cover the deficit within 30 days. The proposed regulation,
however, did not specify how the vessel owner would be able to declare
out of the fishery. In this final rule, NMFS has specified that the
vessel owner could declare out of the IFQ fishery by a written letter
to the NMFS Office of Law Enforcement declaring the vessel owner's
intent to declare out of the Shorebased IFQ Program for the remainder
of the year and invoke the carryover provision to cover the deficit.
Because the declaration would provide evidence documenting the vessel
owner's intent to remain out of the fishery for the remainder of the
year, NMFS has determined that the letter from the vessel owner must be
signed, dated, and notarized. If the deficit occurs less than 30 days
before the end of the calendar year, declaring out of the Shorebased
IFQ Program for the remainder of the year would not be required,
however, the vessel owner must notify the NMFS Office of Law
Enforcement of the owner's intent to invoke the carryover provision to
cover the deficit. This final rule clarifies what would meet the
carryover provision requirement for declaring out of the fishery for
the remainder of the year.
X. IFQ First Receiver and First Receiver Site Licenses
NMFS is revising the final rule at Sec. 660.140(j)(2)(i) and
(j)(3) to change the regulations from ``the owner of an IFQ first
receiver must * * * '' to ``the IFQ first receiver must * * *. '' This
change is being made to clarify that the obligation applies to the IFQ
first receiver, and is being made after further consideration and
review of the record and in response to public comment (see Comment
51).
In addition, NMFS is revising this final rule at Sec. 660.140(f)
to clarify the first receiver site license application process and to
revise language to be clear that the non-interim site licenses are
effective for one year from the date of issuance. A catch monitoring
plan, including a written request for a site inspection, must be
submitted with a first receiver site license application. Once NMFS
receives the application package, NMFS will contact the applicant to
arrange a site inspection.
C. At-Sea Coop Programs
Some changes from the August 31st proposed rule (75 FR 53380) for
the At-sea Coop Programs, both the MS Coop Program and the C/P Coop
Program, resulting from items disapproved in Amendment 20 were
discussed previously in the preamble for this final rule under ``A. All
Trawl Programs, II. Changes due to Partial Disapproval of Amendment
20.''
I. Effective Date of Permit Transfers and No Trip Limits
In the proposed rule (75 FR 53380), NMFS specifically requested
comment on the effective date for an MS/CV-endorsed limited entry
permit's second transfer within the same year. At the September 2010
Council meeting and in the Council's letter of public comment on the
August 31st proposed rule, the Council stated that the second transfer
of an MS/CV-endorsed limited entry permit should be effective
immediately because trip limits will not apply to the at-sea sectors
(MS or C/P) in 2011 and 2012. Based on the September 2010 Council
meeting and on public comment received (see Comment 52), the
regulations at Sec. 660.25(b)(4)(vi)(C) have been revised in this
final rule to make the second transfer of an MS/CV-endorsed limited
entry permit effective immediately. In addition, the regulations at
Sec. 660.131(b)(3), Trip limits in the whiting fishery, have been
clarified in this final rule to be clear that they only apply to the
Shorebased IFQ Program.
II. At-Sea Sector Donation Program
In the proposed rule (75 FR 53380), NMFS specifically requested
comment on the implications of removing or retaining the at-sea sector
donation program and requested suggested language revisions. The at-sea
sector donation program was an optional provision in the August 31st
proposed rule regulations at Sec. 660.131(g), where it was called the
``bycatch reduction and full utilization program for at-sea
processors.'' This program was previously established to allow vessels
harvesting unsorted catch in the at-sea sectors to retain and donate
amounts of groundfish that were in excess of trip limits. At the
September 2010 Council meeting, the Council clarified that the at-sea
sector regulations should not require vessels to be subject to trip
[[Page 78364]]
limits for bycatch of non-whiting groundfish species. Therefore, the
donation program is no longer necessary. Based on the September 2010
Council meeting and on public comment received which supported removal
of donation program (see Comment 53), the proposed rule regulations at
Sec. 660.131(g) have been removed in this final rule.
III. MS Coop Program Processor Obligation for 2011
In this final rule, NMFS is revising regulations for the timing of
the processor obligation provision in the MS Coop Program for 2011. The
regulations specifying coop agreement contents for the MS Coop Program
include a clause stating that each MS/CV-endorsed permit must have
notified a specific MS permit by September 1 of the previous year of
that MS/CV-endorsed permit's intent to obligate its catch history
assignment to that MS permit in that year. Because these regulations
will not be effective until after September 1, 2010, this clause must
be adjusted for application to the 2011 fishery. This final rule
revises the regulations at Sec. 660.150(d)(1)(iii)(A)(1)(iii) to
require a coop agreement to include ``[a] processor obligation clause
indicating that each MS/CV-endorsed permit has notified a specific MS
permit by September 1 of the previous year of that MS/CV-endorsed
permit's intent to obligate its catch history assignment to that MS
permit, except that for the 2011 fishery, such notification must have
been made prior to submission of the MS coop permit application.''
IV. Minor Edits
NMFS has made some minor edits to the regulations to make
references in the regulatory text consistent. Specifically, this final
rule revises language to make references in Sec. 660.25(e)(1) and (2)
consistent with the categories in the paragraph headers at Sec.
660.150 for MS coop permits and Sec. 660.160 for the C/P coop permit.
The revised language removes references to ``renewal'' and ``change of
permit ownership'' because these provisions do not apply to coop
permits. In addition, the regulations at Sec. 660.111, ``accumulation
limit'' (2)(i), is revised to clarify that the MS permit usage limit
only applies to a person ``owning an MS permit.''
Classification
The NMFS Assistant Administrator has determined that this final
rule is consistent with the Pacific Coast Groundfish FMP, other
provisions of the MSA, and other applicable law. To the extent that the
regulations in this final rule differ from what was deemed by the
Council, NMFS invokes its independent authority under 16 U.S.C.
1855(d).
NMFS and the Council prepared final environmental impact statements
(EISs) for Amendment 20 and for Amendment 21 to the Pacific Coast
Groundfish FMP. A notice of availability was published on June 25, 2010
(75 FR 36386). In partially approving FMP Amendments 20 and 21 on
August 9, 2010, NMFS issued a Record of Decision (ROD) for each
amendment identifying the selected alternatives. Copies of the RODs are
available from NMFS (see ADDRESSES).
NMFS finds good cause to waive the 30-day delay in effectiveness
pursuant to 5 U.S.C. 553(d)(3), so that this final rule may become
effective January 1, 2011. The trawl rationalization program has been
developed through the public fishery management council process since
2003 and has culminated in multiple rulemakings over the fall of 2009
through 2010. NMFS announced through the Pacific Fishery Management
Council process and through these rulemakings its intent to implement
this program on January 1, 2011. The public has been aware of this
implementation date. In addition, NMFS has conducted numerous outreach
workshops along the West Coast over the fall of 2010 to assist the
affected public in preparing for January 1, 2011 implementation (see
response to comment 5 in the preamble). NMFS has also provided outreach
specifically to the shorebased IFQ first receivers for the new
requirements under the program and also provided an interim first
receiver site license with a shortened issuance process in order to
facilitate implementation on January 1. In addition, NMFS provided
preliminary guidance during the fall of 2010 to assist first receivers
in preparing their catch monitoring plans in anticipation of a January
1, 2011 implementation.
NMFS has determined it is critical to the fishery to implement this
program on January 1, 2011, the start of the fishing year. The program
creates a system where participants can choose when to fish during the
year, giving them ample time to harvest their available catch and to
come into compliance with these regulations. Under the Shorebased IFQ
Program, fishermen can choose when to fish between January 1 and
December 15 every year. Under the At-Sea Coop Programs, fishermen can
choose when to fish after their season opens in the spring through
December every year. Thus, the program provides fishermen with more
individual choice on when to fish than the two-month cumulative limit
system that was in place before the trawl rationalization program.
Delaying the effectiveness of this rule and beginning January 1 with
the two-month cumulative limit system in place prior to implementing
the trawl rationalization program would be confusing to the public,
would cause problems in the fishery, and would be contrary to the
public good. If the trawl fishery starts the year with two-month
cumulative limits, the fleet could catch up to the available trip
limits for some groundfish species, which could create an incentive for
participants to fish as much as possible at the start of the year,
especially if the participant knew they did not receive much initial
allocation of certain groundfish species. There would then be a lag
time of up to several months before the landings data would be
available to determine the remaining amount of catch available to the
trawl fishery to start the trawl rationalization program. There is
likelihood that some species could have little or no harvest remaining
for the trawl rationalization program in 2011. Thus, a delay in the
effectiveness of the program could require unnecessarily restrictive
measures later in the year, including possible fishery closures, to
make up for harvest that would be allowed under the two-month
cumulative limits at the start of the year. In addition, it would be
confusing to the public to have two different systems of regulations
including, but not limited to, different harvest limits, observer
requirements, permit requirements, and reporting requirements. These
reasons constitute good cause under authority contained in 5 U.S.C.
553(d)(3), to establish an effective date less than 30 days after date
of publication.
This final rule has been determined to be significant for purposes
of Executive Order 12866.
The preamble to the proposed rule (75 FR 53380, August 31, 2010)
included a detailed summary of the analyses contained in the IRFA.
NMFS, pursuant to section 604 of the Regulatory Flexibility Act (RFA)
prepared a FRFA in support of this rule. The FRFA incorporates the
IRFA, a summary of the significant issues raised by the public comments
in response to the IRFA, and NMFS's responses to those comments. A copy
of the FRFA is available from NMFS (see ADDRESSES) and a summary of the
FRFA follows:
The Council prepared two EIS documents: Amendment 20--
Rationalization of the Pacific Coast Groundfish Limited Entry Trawl
Fishery, which creates the structure and management details of the
trawl fishery
[[Page 78365]]
rationalization program; and Amendment 21--Allocation of Harvest
Opportunity Between Sectors of the Pacific Coast Groundfish Fishery,
which allocates the groundfish stocks between trawl and non-trawl
fisheries. Each of the two EIS's prepared by the Council provide
economic analyses of the Council's preferred alternatives and draft RIR
and IRFAs (DEIS IRFAs). The DEIS IRFAs were updated and combined into a
single RIR/IRFA for use with the ``initial issuance'' proposed rule
that was published on June 10, 2010 (75 FR 32994) (June 10th PR IRFA).
The June 10th PR IRFA reviewed and summarized the benefits and costs,
and the economic effects of the Council's recommendations as presented
in the two EIS's. In addition, the June 10th PR IRFA contained
additional information on characterizing the participants in the
fishery and on the tracking and monitoring costs associated with this
program.
The June 10th PR IRFA analyzed the overall program as recommended
by the Pacific Fishery Management Council. The analysis encompassed
aspects of the initial issuance rule which establishes the allocations
set forth under Amendment 21 and procedures for initial issuance of
permits, endorsements, quota shares, and catch history assignments
under the IFQ and coop programs. It also encompassed this rule--the
``program components'' rule which provides additional details,
including: Program components applicable to IFQ gear switching,
observer programs, retention requirements, equipment requirements,
catch monitors, catch weighing requirements, coop permits/agreements,
first receiver site licenses, quota share accounts, vessel accounts,
further tracking and monitoring components, and economic data
collection requirements. Revenue and landings data in the RIR/IRFA for
the program components proposed rule (75 FR 53380, August 31, 2010)
(August 31st PR IRFA) were updated based on recent analysis by the
Council (Appendix F: Historical Landings and Revenue in Groundfish
Fisheries; Agenda Item B.3.a, Attachment 3, June 2010). The Council
analysis provided revenue trends based on inflation adjusted dollars
where estimates are adjusted to current (2009) dollars. The August 31st
PR IRFA was also revised based on comments received on the initial
issuance rule and included a discussion of the other alternatives
considered by the Council.
Although other alternatives were examined, the FRFA focused on the
two key alternatives--the No-Action Alternative and the Preferred
Alternative. The EISs include an economic analysis of the impacts of
all the alternatives and the August 31st PR IRFA and the FRFA
incorporate this analysis. For the Amendment 20 EIS, the alternatives
ranged from status quo (no action), to IFQ for all trawl sectors, IFQ
for the non-whiting sector and coops for all whiting sectors, and IFQ
for the shorebased sector and coops for the at-sea sectors (preferred).
Various elements were part of each of these alternatives and varied
among them, including initial qualifications and allocations,
accumulation limits, grandfathering, processor shares, species covered,
number of sectors, adaptive management, area management, and carryover
provisions. The preferred alternative was a blending of components from
the other alternatives analyzed in the EIS. For the Amendment 21 EIS,
alternatives were provided for 6 decision points: (1) Limited entry
trawl allocations for Amendment 21 species, (2) shoreside trawl sector
allocations, (3) trawl sector allocations of trawl-dominant overfished
species, (4) at-sea whiting trawl sector set-asides, (5) Pacific
halibut total bycatch limits, and (6) formal allocations in the FMP.
For most of these decision points, the alternatives within them were
crafted around approximately maintaining historical catch levels by the
sectors or, in some cases, increasing opportunity for the non-trawl
sector.
By focusing on the two key alternatives in the August 31st PR IRFA
and in the FRFA (no action and preferred), it encompasses parts of the
other alternatives and informs the reader of these regulations. The
analysis of the no action alternative describes what is likely to occur
in the absence of the proposed action. It provides a benchmark to
compare the incremental effects of the action. Under the no action
alternative, the current, primary management tool used to control the
Pacific coast groundfish trawl catch includes a system of two month
cumulative landing limits for most species and season closures for
Pacific whiting. This management program would continue under the no
action alternative. Only long-term, fixed allocations for Pacific
whiting and sablefish north of 36[deg] N. lat. would exist. All other
groundfish species would not be formally allocated between the trawl
and non-trawl sectors. Allocating the available harvest of groundfish
species and species complexes would occur in the Council process of
deciding biennial harvest specifications and management measures and,
as such, would be considered short term allocations.
The analysis of the preferred alternative describes what is likely
to occur as a result of the action. Under the preferred alternative,
the existing shorebased whiting and shorebased non-whiting sectors of
the Pacific Coast groundfish limited entry trawl fishery would be
managed as one sector under a system of IFQs, and the at-sea whiting
sectors of the fishery (i.e., catcher-processor sector and mothership
sector, which includes motherships and catcher vessels) would be
managed under a system of sector-specific harvesting cooperatives
(coops). The catcher-processor sector would continue to operate under
the existing, self-developed coop program entered into voluntarily by
that sector. A distinct set of groundfish species and Pacific halibut
would be covered by the rationalization program. Amendment 20 would
include a tracking and monitoring program to assure that all catch
(including discards) would be documented and matched against QP. The
Council specified that observers would be required on all vessels and
shorebased monitoring (catch monitors) would be required during all
off-loading (100 percent coverage). Compared to status quo monitoring,
this would be a monitoring and observer coverage level increase for a
large portion of the trawl fleet, particularly for non-whiting
shorebased vessels.
The limited entry trawl fishery is divided into two broad sectors:
a multi-species trawl fishery, which most often uses bottom trawl gear
(hereafter called the non-whiting fishery), and the Pacific whiting
fishery, which uses midwater trawl gear. Over the 2005-2009 period,
these fisheries when combined have average annual inflation adjusted
revenues of about $57 million and total landings of about 215,000 tons.
The non-whiting fishery has been principally managed through 2-month
cumulative landing limits along with closed areas to limit overfished
species bycatch. Fishery participants target the range of species
described above with the exception of Pacific whiting. By weight, the
vast majority of trawl vessel groundfish is caught in the Pacific
whiting fishery. In contrast, the non-whiting fishery accounts for the
majority of limited entry trawl fishery ex-vessel revenues. On average,
for the period 2005-2009, Pacific whiting accounted for about 90
percent of the quantity of groundfish landed in the limited entry trawl
fishery, but only 44 percent of the value due to their relatively low
ex-vessel price.
[[Page 78366]]
Non-whiting trawl vessels deliver their catch to shoreside
processors and buyers located along the coasts of Washington, Oregon,
and California, and tend to have their homeports located in towns
within the same general area where they make deliveries, though there
are several cases of vessels delivering to multiple ports during a
year. Some Pacific whiting trawl vessels are catcher-processors, which,
as their name implies, process their catch on-board, while other
vessels in this sector deliver their catch to shoreside processors or
motherships that receive Pacific whiting for processing but do not
directly harvest the fish.
Over time, landings in the limited entry trawl fishery have
fluctuated, especially on a species-specific basis. Pacific whiting has
grown in importance, especially in recent years. Through the 1990s, the
volume of Pacific whiting landed in the fishery increased. In 2002 and
2003, landings of Pacific whiting declined due to information showing
the stock was depleted and the subsequent regulations that restricted
harvest in order to rebuild the species. Over the years 2005-2009,
estimated Pacific whiting ex-vessel revenues averaged about $25 million
(figures have been adjusted to 2009 dollars to account for inflation).
In 2008, these participants harvested about 216,000 tons of whiting
worth about $51 million in ex-vessel revenues, based on shorebased ex-
vessel prices of $235 per ton, the highest ex-vessel revenues and
prices on record. In comparison, the 2007 fishery harvested about
214,000 tons worth $29 million at an average ex-vessel price of about
$137 per ton while the 2009 non-tribal fishery harvested about 99,000
tons worth about $12 million at a price of $120 per ton.
While the Pacific whiting fishery has grown in importance in recent
years, harvests in the non-whiting component of the limited entry trawl
fishery have declined steadily since the 1980s. Non-whiting trawl ex-
vessel revenues (adjusted for inflation) in the fishery peaked in the
mid 1990s at about $40 million. Following the passage of the
Sustainable Fisheries Act (1996) and the listing of several species as
overfished, harvests became increasingly restricted and landings and
revenues declined steadily until 2002. Over the period 2005 to 2009,
inflation adjusted ex-vessel revenues from groundfish in the non-
whiting trawl sector have averaged $27 million annually; ranging from
$24 million (2005) to $32 million (2008). The 2009 fishery earned $30
million in ex-vessel revenues. Under the trawl rationalization program,
shorebased whiting sector will be joined with the shorebased non-
whiting sector. For perspective, when these fisheries are combined,
their total ex-vessel revenues have averaged about $36 million annually
over the last five years.
Expected Effects of Amendment 21--Intersector Allocation
The allocation of harvest opportunity between sectors under the new
regulations (75 FR 60868, October 1, 2010) does not differ
significantly from the allocation made biennially under the no action
alternative. The primary economic effect of the long-term allocation
under the new regulations is to provide more certainty in future trawl
harvest opportunities, which would enable better business planning for
participants in the rationalized fishery. As described elsewhere, the
trawl rationalization program could create an incentive structure and
facilitate more comprehensive monitoring to allow bycatch reduction and
effective management of the groundfish fisheries. In support of the
trawl rationalization program, the main socioeconomic impact of
Amendment 21 allocations is longer term stability for the trawl
industry. While the preferred Amendment 21 allocations do not differ
significantly from status quo ad hoc allocations made biennially, there
is more certainty in future trawl harvest opportunities, which enables
better business planning for participants in the rationalized fishery.
This is the main purpose for the Amendment 21 actions. The economic
effects of Amendment 21 arise from the impacts on current and future
harvests. The need to constrain groundfish harvests to address
overfishing has had substantial socioeconomic impacts. The groundfish
limited entry trawl sector has experienced a large contraction, spurred
in part by a partially federally-subsidized vessel and permit buyback
program implemented in 2005. This $46 million buyback program was
financed by a Congressional appropriation of $10 million and an
industry loan of $36 million. Approximately 240 groundfish, crab, and
shrimp permits were retired from state and federal fisheries, and there
was a 35 percent reduction in the groundfish trawl permits. To repay
the loan, groundfish, shrimp and crab fisheries are subject to landings
fees. Follow-on effects of the buyback have been felt in coastal
communities where groundfish trawlers comprise a large portion of the
local fleet. As the fleet size shrinks and ex-vessel revenues decline,
income and employment in these communities is affected. Fishery-related
businesses in the community may cease operations because of lost
business. This can affect non-groundfish fishery sectors that also
depend on the services provided by these businesses, such as providing
ice and buying fish. An objective to the trawl rationalization program
is to mitigate some of these effects by increasing revenues and profits
within the trawl sector. However, because further fleet consolidation
is expected, the resulting benefits are likely to be unevenly
distributed among coastal communities. Some communities may see their
groundfish trawl fleet shrink further as the remaining vessels
concentrate in a few major ports. Species subject to Amendment 21
allocations would be: lingcod, Pacific cod, sablefish south of 36[deg]
N. lat., Pacific ocean perch, widow rockfish, chilipepper rockfish,
splitnose rockfish, yellowtail rockfish north of 40[deg] 10' N. lat.,
shortspine thornyhead (north and south of 34[deg] 27' N. lat.),
longspine thornyhead north of 34[deg] 27' N. lat., darkblotched
rockfish, minor slope rockfish (north and south of 40[deg] 10' N.
lat.), Dover sole, English sole, petrale sole, arrowtooth flounder,
starry flounder, and Other Flatfish. While the preferred Amendment 21
allocations of these species do not differ significantly from status
quo ad hoc allocations made biennially, there is more certainty in
future trawl harvest opportunities, which enables better business
planning for participants in the rationalized fishery. This is the main
purpose for the Amendment 21 actions.
Based on ex-vessel revenue projections, Table 4-18 (ISA DEIS) shows
the potential 2010 yield to trawl and non-trawl (including
recreational) sectors under the Amendment 21 alternatives and the
potential 2010 value of alternative trawl allocations. Under the status
quo option Alternative 1, the projected ex-vessel value of the trawl
allocation is $56 million while the projected ex-vessel value of the
Council's preferred alternative is $54 million, indicating a potential
increase to the non-trawl sectors and a potential decrease to the trawl
sector.
In addition to the species above, halibut would also be
specifically allocated to the trawl fishery. The proposed regulations
include a halibut trawl bycatch reduction program in phases to provide
sufficient time to establish a baseline of trawl halibut bycatch and
for harvesters to explore methods (e.g., adjustments to time and/or
area fished, gear modifications) to reduce halibut bycatch and bycatch
mortality. Pacific halibut are currently not allowed to be retained in
any U.S. or Canadian trawl fisheries per the policy of the IPHC. The
Council's intent on setting a total catch limit of Pacific
[[Page 78367]]
halibut in Area 2A trawl fisheries is to limit the bycatch and
progressively reduce the bycatch to provide more benefits to directed
halibut fisheries. The program establishes a limit for total Pacific
halibut bycatch mortality (legal-sized and sublegal fish) through the
use of an individual bycatch quota in the trawl fishery. The initial
amount for the first four years of the trawl rationalization program
would be calculated by taking 15 percent of the Area 2A Total Constant
Exploitation Yield (CEY) as set by the IPHC for the previous year, not
to exceed 130,000 lbs per year for total mortality. For example, if the
trawl rationalization program went into effect in 2013, the trawl
halibut IBQ would be set at 15 percent of the Area 2A CEY adopted for
2012 or 130,000 lbs per year, whichever is less, for each year from
2013 through 2016 (years 1 through 4 of the program). Beginning with
the fifth year of implementation, the maximum amount set aside for the
trawl rationalization program would be reduced to 100,000 lbs per year
for total mortality. This amount may be adjusted through the biennial
specifications process for future years.
Currently there are no total catch limits of Pacific halibut
specified for the west coast trawl fishery. Trawl bycatch of Pacific
halibut, therefore, does not limit the trawl fishery. A phased in,
halibut bycatch reduction program, would provide sufficient time to
establish a baseline of trawl halibut bycatch under the new
rationalization program and for harvesters to explore methods (e.g.,
adjustments to time and/or area fished, gear modifications) to reduce
both halibut bycatch and bycatch mortality. By limiting the bycatch of
Pacific halibut in the LE trawl fisheries, Amendment 21 would control
bycatch and could provide increased benefits to Washington, Oregon, and
California fishermen targeting Pacific halibut. Reducing the trawl
limit would also provide more halibut to those who participate in the
directed tribal, commercial and recreational halibut fisheries.
Effects of Amendment 20--Trawl Rationalization
An overall comprehensive model that simultaneously captures changes
in fishermens' behavior, changes in the markets, and changes in
communities was not feasible because of lack of data and empirical
analyses that show needed relationships. Instead, a set of models
designed to focus on specific issues was developed. For example, models
were used to: analyze the effects of the initial allocation of QS in
the trawl IFQ program; project geographic shifts in fishery patterns;
and illustrate the potential for reducing bycatch, increasing target
catch, and increasing revenues. To illustrate the benefits of the IFQ
program, a model projecting the expected amount of fleet consolidation
in the shorebased non-whiting fishery was developed. This model
illustrated the potential for the fleet to reduce bycatch and
potentially increase the amount of target species harvested. This model
was primarily based on bycatch reduction experiences in the Pacific
whiting fishery and under an Exempted Fishing Permit carried out in the
arrowtooth flounder fishery. The model accounted for the fact that
trawlers harvest many species (multiple outputs). The model also used
fish ticket data and the data from the recently completed West Coast
Limited Entry Cost Earnings Survey sponsored by the NMFS Northwest
Fisheries Science Center. (For the other sectors, similar models could
not be developed because the appropriate cost data was unavailable.)
Estimates of potential economic benefits were generated based on
the predicted harvesting practices from the first step analysis.
Because the west coast non-whiting groundfish fishery is not a derby
fishery, it is expected that economic benefits will come through cost
reductions and increased access to target species that arise from
modifications in fishing behavior (overfished species avoidance). The
key output of this analysis was an estimate of post-rationalization
equilibrium harvesting cost.
Changes in harvesting costs can arise from three sources. First,
the total fixed costs incurred by the groundfish trawl fleet change as
the size of the fleet changes. Since many limited entry trawlers incur
annual fixed costs of at least $100,000, reductions in fleet size can
result in substantial cost savings. In other words, a fewer number of
vessels in the fishery will lead to decreased costs through a decrease
in annual fixed costs. Second, costs may change as fishery
participation changes and no longer incur diseconomies of scope (such
as the costs of frequently switching gear for participating in multiple
fisheries). Third, costs may change as vessels are able to buy and sell
quota to take advantage of economies of scale and operate at the
minimum point on their long-run average cost curve (i.e. the strategy
that minimizes the cost of harvesting).
The major conclusions of this model suggested that (with landings
held at 2004 levels), the current groundfish fleet (non-whiting
component) which consisted of 117 vessels in 2004, will be reduced by
roughly 50 percent to 66 percent, or 40-60 vessels under an IFQ
program. The reduction in fleet size implies cost savings of $18-$22
million for the year 2004 (most recent year of the data). Vessels that
remain active will, on average, be more cost efficient and will benefit
from economies of scale that are currently unexploited under controlled
access regulations in the fishery. The cost savings estimates are
significant, amounting to approximately half of the costs incurred
currently, suggesting that IFQ management may be an attractive option
for the Pacific coast groundfish fishery. Assuming a 10 percent annual
return to the vessel capital investment, estimates indicate that the
2004 groundfish fleet incurred a total cost of $39 million. The PacFIN
data indicate fleetwide revenue (this includes groundfish, crab, and
other species) at roughly $36 million in 2004, and, therefore, fleet
wide losses of about $3 million occurred in 2004. Based on a lower 5
percent return to vessel capital, the results suggest that the
groundfish fleet merely broke even in 2004; i.e., dockside revenues
were offset by the fleetwide harvesting costs. The results also suggest
a switch from the current controlled access management program to IFQs
could yield a significant increase in resource rents in the Pacific
coast groundfish fishery. For instance, the analysis finds that the
2004 groundfish catch generated zero resource rent. Instead, it could
have yielded a substantial positive rent of about $14 million.
As the model was based on the 2004 fishery, it may be useful to
show current trends in the fishery. In 2004, the shorebased non-whiting
trawl fishery generated about $21 million in groundfish ex-vessel
revenues (inflation adjusted). But according to cost estimates
discussed above, this fishery was at best breaking even or perhaps
suffering a loss of up to $2 million. Since 2004, shorebased non-
whiting trawl fisheries have increased their revenues to about $30
million. The increase in shorebased revenues have come from increased
landings of flatfish and sablefish and significant increase in
sablefish ex-vessel prices. Sablefish now accounts for almost 40
percent of the trawl fleet's revenues. While revenues were increasing,
so were fuel prices. Fuel costs now account for approximately 30 to 40
percent of the vessels' revenues. The average 2005-2009 revenues were
about $27 million, or 29 percent greater than 2004. The average 2005-
2009 fuel price was about $2.81 per gallon, 70 percent greater than
[[Page 78368]]
that of 2004. Therefore, it appears that the profitability of the 2009
fishery may not be that much improved over that of 2004.
Ex-vessel revenues for the non-whiting sector of the limited entry
trawl fishery are projected to be approximately $30-40 million per year
under the preferred alternative, compared to $22-25 million under the
no action alternative. These projections yield a potential range in
increased revenues of 20 to 80 percent. This revenue increase is
expected to occur in a rationalized fishery, because target species
quotas can be more fully utilized. Currently, in the non-whiting
sector, cumulative landing limits for target species have to be set
lower because the bycatch of overfished species cannot be directly
controlled. Introducing accountability at the individual vessel level
by means of IFQs provides a strong incentive for bycatch avoidance
(because of the actual or implicit cost of quota needed to cover
bycatch species) and prevents the bycatch of any one vessel from
affecting the harvest opportunities of others. In addition, under the
preferred alternative, the non-whiting sector would have control over
harvest timing over the whole calendar year. Non-whiting harvesters
currently operate under 2-month cumulative landing limits, which allow
greater flexibility in terms of harvest timing between 2-month periods
but less flexibility within periods (because any difference between
actual limits and the period limit cannot be carried over to the next
period). In contrast, under the IFQ program harvesters will have
control over harvest timing over the whole calendar year. However, in
terms of any influence on price, this increased flexibility is unlikely
to have a noticeable effect. Finally, the ability for vessels managed
under IFQs to use other types of legal groundfish gear could allow some
increases in revenue by targeting higher-value line or pot gear caught
fish. This opportunity would mainly relate to sablefish, which are
caught in deeper water, rather than nearshore species where state level
regulatory constraints apply.
Costs for the non-whiting sector of the limited entry trawl fishery
are expected to decrease under the preferred alternative because of
productivity gains related to fleet consolidation. Productivity gains
would be achieved through lower capital requirements and a move to more
efficient vessels. Operating costs for the non-whiting sector are
predicted to decrease by as much as 60 percent annually. Based on
estimates of current costs, this percentage decrease represents a $13.8
million cost reduction relative to the no action alternative.
The accumulation limits considered under the preferred alternative
are not expected to introduce cost inefficiencies in the non-whiting
sector, provided that current prices and harvest volumes do not
decrease. However, the preferred alternative would impose new costs on
the non-whiting sector that would not be incurred under the no action
alternative. First, a landings fee of up to 3 percent of the ex-vessel
value of fish harvested would be assessed under the preferred
alternative to recover management costs, such as maintenance of the
system of QS accounts. Second, new at-sea observer requirements would
be introduced, and vessels would have to pay the costs of complying
with these requirements, estimated at $500 a day if independent
contractors are hired. The daily observer cost could place a
disproportionate adverse economic burden on small businesses because
such costs would comprise a larger portion of small vessels costs than
that of larger vessels.
The increase in profits that commercial harvesters are expected to
experience under the preferred alternative may render them better able
to sustain the costs of complying with the new reporting and monitoring
requirements. The improved harvesting cost efficiency under the
preferred alternative may allow the non-whiting sector to realize
profits of $14-23 million compared to $0 or less under the no action
alternative. In addition, a provision that allows vessels managed under
the IFQ program to use other legal gear (gear switching) would allow
sablefish allocated to the trawl sector to be sold at a higher price
per pound, possibly contributing to increased profits. The imposition
of accumulation limits could reduce the expected increase in the
profitability of the non-whiting sector by restricting the amount of
expected cost savings, and the costs of at-sea observers may reduce
profits by about $2.2 million, depending on the fee structure. However,
the profits earned by the non-whiting sector would still be
substantially higher under the preferred alternative than under the no
action alternative.
New entrants are likely to face a barrier to entry in the Pacific
coast groundfish limited entry trawl fishery in the form of the cost of
acquiring QS (or a coop share in the case of the at-sea whiting
sector). This disadvantages them in comparison to those entities that
receive an initial allocation of harvest privileges. Small entities may
be particularly disadvantaged to the degree that they may find it more
difficult to finance such quota purchases. Among the goals the Council
identified for the adaptive management program was to use the reserved
non-whiting QS to facilitate new entry into the fishery. In addition,
the Council identified, as a trailing action, a framework to allow the
establishment and implementation of Community Fishing Associations as
part of the adaptive management program. These entities could
facilitate entry into the fishery by leasing QS at below market rates,
thereby leveling the playing field in terms of costs between initial
recipients of QS and new entrants.
The incremental effects of the preferred alternative on buyers and
processors of trawl caught groundfish are detailed in Sections 4.9-4.10
of the Rationalization of the Amendment 20 Pacific Coast Groundfish
Limited Entry Trawl Fishery DEIS. Even though processors may have to
pay fishermen higher ex-vessel prices, processors may see cost savings
under the preferred alternative to the degree that rationalization
allows greater processors and fishermen greater ability to plan the
timing, location, and species mix of landings. Processors could use
current plant capacity more efficiently, because available information
suggests that processing facilities are currently underutilized. Fleet
consolidation in the non-whiting sector could also provide cost savings
for processors if landings occur in fewer locations, thereby reducing
the need for facilities and/or transport. The preferred alternative
would also impose new costs on processors that would not be incurred
under the no action alternative. Processors would be required to pay
some or all of the costs of plant monitors, who would verify landings.
Similar to at-sea observers, these monitors would be independent
contractors rather than direct employees of the processing firm.
In the non-whiting processing industry, harvest volumes may
increase because of a decrease in constraining species bycatch and a
subsequent increase in under-utilized target species catch. This boost
in target species catch may increase utilization of processing capital
and processing activity. (It should be noted that if under the current
system bycatch has been underreported, with 100 percent observer
coverage under the new system, the gains in increased target catches
may be less than expected.) Consequently, the possibility of capital
consolidation in the non-whiting shorebased sector may be less than in
the shore-based whiting sector.
[[Page 78369]]
However, shifts in the distribution of landings across ports as a
result of fleet consolidation, industry agglomeration, and the
comparative advantage of ports (a function of bycatch rates in the
waters constituting the operational area for the port, differences in
infrastructure, and other factors) could lead to consolidation in
processing activity at a localized or regional scale and an expansion
in processing activity elsewhere. To mitigate harm to adversely
impacted non-whiting shoreside processors, the adaptive management
program provides a mechanism to distribute non-whiting QS to
processors, thereby ensuring that some processors receive greater
landings of groundfish than would otherwise be the case.
As noted above, the preferred alternative may reduce the power of
non-whiting shoreside processors to negotiate ex-vessel prices with
harvesters. The larger harvest volume due to bycatch avoidance may
lower processor average costs, which could offset the negative effects
on non-whiting shoreside processors of a shift in bargaining power. In
addition, QS could be purchased by processors over the long term,
thereby increasing processors' negotiation power. However, the
accumulation limits included in the preferred alternative would limit
the ability of processors to purchase substantial quantities of QS.
Alternatively, the adaptive management provision could be used to
allocate QS to non-whiting shoreside processors, thereby providing them
additional leverage when negotiating terms with harvesters.
The allocation of 20 percent of the initial shorebased whiting QS
to the shoreside processor portion of the groundfish fishery would give
these processors more influence in negotiations over ex-vessel prices
and would tend to offset the gains in bargaining power for harvesters.
For example, a processor could use QS to induce a harvester that is
short of quota pounds for a Pacific whiting trip to make deliveries
under specified conditions and prices. However, because of a reduction
in peak harvest volume, fewer processing companies and/or facilities
may be necessary to handle harvest volumes of Pacific whiting, meaning
some companies may find themselves without enough product to continue
justifying processing operations of Pacific whiting. Revenues from
harvesting and processing trawl-caught groundfish are expected to
increase. Revenues in the non-whiting trawl sector are projected to
increase by 20 to 80 percent in a rationalized fishery, depending on
bycatch rate reductions and stock status. Revenue increases are mainly
expected because under rationalized fisheries, target species quotas
can be more fully utilized. Currently, in the non-whiting sector,
cumulative landing limits for target species have to be set lower
because the bycatch of overfished species cannot be directly
controlled. Introducing accountability at the individual vessel level
provides a strong incentive for bycatch avoidance (because of the
actual or implicit cost of quota needed to cover bycatch species) and
prevents the bycatch of any one vessel from affecting the harvest
opportunity of others. Whiting fisheries are more directly managed
through quotas, and in recent years, by limits on bycatch. Beginning in
2009, bycatch limits have been established for each of the three
whiting sectors. For the shore-based and mothership whiting sectors,
the fishery can potentially close before the whiting allocation is
fully harvested because a bycatch cap is reached. (The catcher-
processor sector currently operates as a voluntary co-op and is
therefore better able to coordinate harvest strategy to avoid reaching
bycatch limits.) However, in general, the whiting sectors have been
able to harvest their sector allocations. Whiting vessels could
increase revenues due to improved product recovery as a result of the
ability to better control harvest timing. As mentioned above, the
ability for vessels managed under IFQs to use other types of legal
groundfish gear could allow some increases in revenue by targeting
higher-value line or pot gear caught fish.
Harvester and possibly processor costs are expected to decrease
because of productivity gains related to fleet consolidation. Cost
savings would be due to lower capital requirements and a move to more
efficient vessels in the non-whiting sector. Costs are predicted to
decrease by as much as 60 percent annually, which based on estimates of
current operating costs would represent a $13.8 million decrease.
Similar levels of consolidation are expected for shorebased and
mothership catcher vessels. Proposed mitigation measures could reduce
these costs savings. For example, a 1 percent quota share accumulation
limit could reduce cost savings by as much as 20 percent. But the
accumulation limits considered in the alternatives are not expected to
introduce higher costs at current prices and harvest volume. The
proposed action would introduce some new costs. First, up to 3 percent
of the value of landings may be assessed to cover administrative and
management costs. Second, new at-sea observer requirements would be
introduced and vessels would have to pay the cost, estimated at $350-
$500 a day.
Processors may see cost-savings to the degree that rationalization
allows greater control over the timing and location of landings.
Processors could use current plant capacity more efficiently, because
available information suggests that processing facilities are currently
underutilized. Fleet consolidation could also drive some cost savings
on the part of processors if landings occur in fewer locations. This
would reduce the need for facilities and/or transport. Under the
proposed action, processors would be required to pay the costs of plant
monitors, who would verify landings. These monitors would not be
directly employed by the processing firm but, similar to at-sea
observers, be independent contractors.
Rationalization of the groundfish trawl sector is expected to free
up capital and labor because of increases in productivity. (Since the
basic input, trawl-caught fish, is subject to an underlying constraint
due to biological productivity, increases in labor and capital
productivity are expected to reduce the amount of those inputs needed.)
However, from a national net benefit perspective these effects are
neutral since capital and labor can be put to some productive use
elsewhere in the broader economy. Also, current groundfish fishery
participants that receive QS (trawl limited entry trawl permit holders
and eligible shoreside processors) are compensated to the degree that
the asset value of the QS covers capital losses.
The Amendment 20 DEIS IRFA presents an explicit range of costs
based on different daily observer cost rates. What follows is a summary
of those estimates--these estimates are focused on the shorebased non-
whiting fishery so that it is compared to the results of the NWFSC
economic model of this fishery. After a transition period, for the
shorebased fishery, the initial estimates of the annual federal and
state agency costs to run this program are about $5 million; and after
the transition period, these costs could fall to $4.0 million. Based on
the observer cost of $500 per day, the annual costs to the vessel of
observer monitoring is about $4 million. Based on $350 per day, the
annual costs of compliance monitors is just over $1 million. These
figures add up to about $10 million. From a cost-benefit viewpoint, if
consolidation leads to $14 million savings from reduced harvesting
costs and the new program
[[Page 78370]]
increases the tracking and monitoring costs of $10 million, there is a
projected net gain of about $4 million. These estimates do not take
into account expectations that agency, observer and compliance costs
are likely to be reduced due to consolidation or the expected increases
in revenues discussed above. Better planning by the industry and
companies that provide the observers and compliance monitors should
further reduce costs. Recent analyses developed for the North Pacific
Fishery Management Council and for the New England Fishery Management
Council were reviewed. The New England Council analysis includes
observer cost estimates associated with the Canadian Pacific Groundfish
fishery. Based on a review of these analyses, a daily observer rate of
$350 a day is feasible. If so, the annual shoreside non-whiting costs
of observers and catch monitors will add up to about $3.5 million. (For
purposes of implementing the observer and catch monitoring
reimbursement program, NMFS is continuing to research what is the
appropriate daily rate.)
In contrast to the shoreside non-whiting fishery, the effect of the
preferred alternative on revenues and costs in the whiting sector of
the limited entry trawl fishery can only be discussed qualitatively, as
there is no economic model because of lack of cost data. The lower
motivation to ``race for fish'' due to coop harvest privileges is
expected to result in improved product quality, slower-paced harvest
activity, increased yield (which should increase ex-vessel prices), and
enhanced flexibility and ability for business planning. The overall
effect of these changes would be higher revenues and profits for
harvesters in the shoreside and mothership portions of the whiting
fishery in comparison to the no action alternative. Under the preferred
alternative, some consolidation may occur in the shoreside and
mothership sectors of the Pacific whiting fishery, though the magnitude
of consolidation is expected to be less than in the non-whiting sector.
The existing catcher-processor coop would continue under the preferred
alternative, with effects on the catcher-processor sector that look
similar, or identical, to those of the no action alternative. However,
the change from a vessel-based limit under Amendment 15 to the permit-
based limit of Amendment 21 will provide additional flexibility that
currently does not exist in the catcher-processor fishery. Using
estimates of $350 per day for observers and compliance monitors, the
total annual costs of observers and catch monitors for the whiting
sector (shoreside harvesters, processors, mothership processors,
mothership catcher vessels, and catcher-processors) is about $1.5
million. Additional agency costs associated with managing these whiting
fisheries are included in the estimates provided in the above
discussion on shorebased non-whiting costs.
This rule regulates businesses that harvest groundfish and
processors that wish to process limited entry trawl groundfish. Under
the RFA, the term ``small entities'' includes small businesses, small
organizations, and small governmental jurisdictions. For small
businesses, the SBA has established size criteria for all major
industry sectors in the U.S., including fish harvesting and fish
processing businesses. A business involved in fish harvesting is a
small business if it is independently owned and operated and not
dominant in its field of operation (including its affiliates) and if it
has combined annual receipts not in excess of $4.0 million for all its
affiliated operations worldwide. A seafood processor is a small
business if it is independently owned and operated, not dominant in its
field of operation, and employs 500 or fewer persons on a full time,
part time, temporary, or other basis, at all its affiliated operations
worldwide. A business involved in both the harvesting and processing of
seafood products is a small business if it meets the $4.0 million
criterion for fish harvesting operations. A wholesale business
servicing the fishing industry is a small business if it employs 100 or
fewer persons on a full time, part time, temporary, or other basis, at
all its affiliated operations worldwide. For marinas and charter/party
boats, a small business is one with annual receipts not in excess of
$7.0 million. The RFA defines a small organization as any nonprofit
enterprise that is independently owned and operated and is not dominant
in its field. The RFA defines small governmental jurisdictions as
governments of cities, counties, towns, townships, villages, school
districts, or special districts with populations of less than 50,000.
NMFS makes the following conclusions based primarily on analyses
associated with fish ticket data and limited entry permit data,
available employment data provided by processors, information on the
charterboat and tribal fleets, and available industry responses to on-
going surveys on ownership. Entities were analyzed as to whether they
were only affected by the Amendment 21 allocation processes (non-
trawl), or if they were affected by both Amendments 20 and 21 (trawl).
The non-trawl businesses are associated with the following fleets:
Limited entry fixed gear (approximately 150 companies), open access
groundfish (1,100), charterboats (465), and the tribal fleet (four
tribes with 66 vessels). Available information on average revenue per
vessel suggests that all the entities in this group can be considered
small.
For the trawl sector, there are 177 permit holders. Nine limited
entry trawl permits are associated with the catcher-processing vessels
which are considered ``large'' companies. Of the remaining 168 limited
entry permits, 25 limited entry trawl permits are either owned or
closely associated with a ``large'' shore-based processing company or
with a non-profit organization who considers itself a ``large''
organization. Nine other permit owners indicated that they were large
``companies.'' Almost all of these companies are associated with the
shorebased and mothership whiting fisheries. The remaining 134 limited
entry trawl permits are projected to be held by ``small'' companies.
Three of the six mothership processors are ``large'' companies. Within
the 14 shorebased whiting first receivers/processors, there are four
``large'' companies. Including the shorebased whiting first receivers,
in 2008, there were 75 first receivers that purchased limited entry
trawl groundfish. There were 36 small purchasers (less than $150,000);
26 medium purchasers (purchases greater than $150,000 but less than
$1,000,000); and 13 large purchasers (purchases greater than $1.0
million). Because of the costs of obtaining a ``processor site
license,'' procuring and scheduling a catch monitor, and installing and
using the electronic fish ticket software, these ``small'' purchasers
will likely opt out of buying groundfish, or make arrangements to
purchase fish from another company that has obtained a processing site
license.
NMFS received several comments that concerned the burdens and
effects on small businesses and on small communities, but not
specifically on the IRFA. These include comments about the burden of
paperwork and costs of the program on small businesses and small
communities; that NMFS should minimize and mitigate impacts on small
businesses and small communities; that the program should not result in
an unfair allocation between the states; that the program should be
designed to result in an even consolidation between states and between
the sectors (non-whiting shorebased IFQ, whiting shorebased IFQ,
mothership sector, and
[[Page 78371]]
catcher/processor sector) and that the program should not benefit large
businesses at the expense of small businesses.
NMFS responded to similar comments in the final initial issuance
rule (75 FR 60868, October 1, 2010) on the impacts on small businesses.
In particular, concerns were raised about negative impacts on smaller
boats, deckhands, and smaller boats; that program costs to fishermen,
including the costs of entering the fishery and the costs of observers
and monitoring are too high; that observer rules need to change for
trawl and small boats to reflect the vastly different bycatch which
occurs when mistakes are made; about the impact of the allocation
formulas on Fort Bragg fishermen; concern that average fishermen will
not be able to afford to participate and that this will lead to
increased consolidation and leave many ports no longer viable; about
negative impacts on processors, that small processors will be driven
out of business due to consolidation; and that it will eliminate the
``mom and pop businesses.''
NMFS has responded to these comments in detail in the final initial
issuance rule. The overall general nature of NMFS' response is
applicable to the comments associated with this rule. In terms of
impacts on small businesses, the trawl rationalization program is
intended to increase net economic benefits, create economic stability,
provide full utilization of the trawl sector allocation, consider
environmental impacts, and promote conservation through individual
accountability for catch and bycatch. The allocations of quota under
the new program do not differ significantly from status quo allocations
made biennially in terms of total allocations. However, instead of
fleetwide quotas, there will now be individual allocations of quota
shares and quota pounds to permit owners. Allocations of overfished
species constrain all groundfish fishermen, for both large and small
operations. In some cases, smaller operators may be constrained to a
greater extent. This was recognized in development of the program, and
operators are encouraged to work together cooperatively, through
mechanisms like combining and sharing quota amounts. The program
provides for leasing of additional quota as needed to facilitate
operations. The program includes provisions that would have a
beneficial impact on small entities. It would create a management
program under which most recent participants in the Pacific Coast
groundfish limited entry trawl fishery (many of which are small
entities) would be eligible to continue participating in the fishery
and under which the fishery itself would experience an increase in
economic profitability. Small entities choosing to exit the fishery
should receive financial compensation from selling their permit or
share of the resource. To prevent a particular individual, corporation,
or other entity from acquiring an excessive share of the total harvest
privileges in the program, accumulation limits would restrict the
amount of harvest privileges that can be held, acquired, or used by
individuals and vessels. In addition, for the shoreside sector of the
fishery, an AMP was created to mitigate any adverse impacts, including
impacts on small entities and communities that might result from the
program.
It is expected that the shorebased IFQ fishery will lead to
consolidation and this may affect small processors, particularly if
they are in disadvantaged ports. Chapter 4 of the FEIS analyzed the
effects on processors from various perspectives: The distribution of
landings across west coast ports may change as a result of fleet
consolidation, industry agglomeration, and the comparative advantage of
ports (a function of bycatch rates in the waters constituting the
operational area for the port, differences in infrastructure, and other
factors). In particular, the Council analysis indicated that processors
associated with disadvantaged communities may see trawl groundfish
volumes decline. The analysis highlights that those processors
receiving landings from Central California or Neah Bay may see a
reduction in trawl caught groundfish if the market is able to redirect
activity toward more efficient and advantaged ports. However, in
addition to increased landings that are expected to result from the IFQ
program, small processors and disadvantaged communities may benefit
from the control limits, vessel limits, and adaptive management
policies. Control limits will limit the ability of large processors to
obtain shares of the fisheries while the adaptive management processes
will allow the Council to consider the impacts on small processors, and
disadvantaged communities when allocating the adaptive management quota
(10 percent of the total non-whiting trawl quotas). Although vessel
accumulation limits tend to lower economic efficiency and restrict
profitability for the average vessel, they could help retain vessels in
communities because more vessels would remain.
Another process by which small processors and disadvantaged
communities may benefit from will be the future development of CFAs.
Some of the potential benefits of CFAs include: Ensuring access to the
fishery resource in a particular area or community to benefit the local
fishing economy; enabling the formation of risk pools and sharing
monitoring and other costs; ensuring that fish delivered to a local
area will benefit local processors and businesses; providing a local
source of QSs for new entrants and others wanting to increase their
participation in the fishery; increasing local accountability and
responsibility for the resource; and benefiting other providers and
users of local fishery infrastructure.
In summary, the primary impacts of this rule appear to be on
shoreside processors which are a mix of large and small processors, and
on shorebased trawlers which are also a mix of large and small
companies. The non-whiting shorebased trawlers are currently operating
at a loss or at best are ``breaking even.'' The new rationalization
program would lead to profitability, but only with a reduction of about
50 percent of the fleet. This program would lead to major changes in
the fishery. To help mitigate against these changes, as discussed
above, the agency has announced its intent, subject to available
Federal funding, that participants would initially be responsible for
10 percent of the cost of hiring observers and catch monitors. The
industry proportion of the costs of hiring observers and catch monitors
would be increased every year so that by 2014, once the fishery has
transitioned to the rationalization program, the industry would be
responsible for 100 percent of the cost of hiring the observers and
catch monitors. NMFS believes that an incrementally reduced subsidy to
industry funding would enhance the observer and catch monitor program's
stability, ensure 100 percent observer and catch monitor coverage, and
facilitate the industries' successful transition to the new quota
system. In addition, to help mitigate against negative impacts of this
program, the Council has adopted an Adaptive Management Program where
starting in year 3 of the program, 10 percent of non-whiting QS would
be set aside every year to address community impacts and industry
transition needs. After reviewing the initial effects of IFQ programs
in other parts of the world, the council had placed a short term QS
trading prohibition so that fishermen can learn from their experiences
and not make premature sales of their QS. The Council is also
envisioning future regulatory processes that would allow community
fisheries associations to be
[[Page 78372]]
established to help aid communities and fishermen.
NMFS has taken a hard look at the reporting burden of the program
and we believe we have reduced the burden on small businesses to the
extent possible. The reporting requirements are necessary. With respect
to the effects on the States including industry consolidation effects,
NMFS acknowledges that this program has different impacts on different
states and on different communities. This rulemaking does not set up an
allocation scheme. As mentioned above, one of the potential purposes of
the Adaptive Management Program is to address differential impacts upon
communities and thus the states.
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 FRFA, 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. As part of
this rulemaking process, a small entity compliance guide (the guide)
was prepared. Copies of this final rule are available from the
Northwest Regional Office and the guide will be sent to all permit
owners for the fishery. The guide and this final rule will also be
available on the Northwest Regional Office Web site (see ADDRESSES) and
upon request.
This final rule contains a collection-of-information requirement
subject to the Paperwork Reduction Act (PRA) and which has been
approved by the Office of Management and Budget (OMB) under control
numbers 0648-0271 (Northwest Region Logbook Family of Forms), 0648-0573
(Expanded Vessel Monitoring System Requirement for the Pacific Coast
Groundfish Fishery), 0648-0593 (NMFS Observer Programs' Information
That Can be Gathered Only Through Questions), 0648-0618 (West Coast
Groundfish Trawl Economic Data), 0648-0620 (Pacific Coast Groundfish
Trawl--permits and licenses), and 0648-0619 (Northwest Region
Groundfish Trawl Fishery Monitoring and Catch Accounting Program).
Public reporting burden for the Economic Data Collection survey is
estimated to average 8 hours per response (268 responses). Public
reporting burden for QS Permit Renewal Application is estimated to
average 0.33 hours per response (120 responses), First Receiver Site
License Initial Issuance/Renewal Application is estimated to average
0.5 hours per response (80 responses), MS Renewal Application is
estimated to average 0.33 hours per response (6 responses), MS Transfer
Application is estimated to average 0.5 hours per response (3
responses), C/P Coop Permit Transfer Application is estimated to
average 3 hours per response (1 response), MS Coop Permit Application
is estimated to average 3 hours per response (1 response), Change in
vessel fishing for coop form is estimated to average 0.33 hours per
response (3 responses), Material Change form is estimated to average 2
hours per response (3 responses), MS Withdrawal/Mutual Exception form
is estimated to average 2 hours per response (2 responses), Ownership
Interest Form Renewal is estimated to average 0.5 hours per response
(156 responses), Ownership Interest Form Transfer, is estimated to
average 0.5 hours per response (20 responses), Vessel Account
Registration (Initial) is estimated to average 0.5 hours per response
(120 responses), Vessel Account Registration (ongoing) is estimated to
average 0.5 hours per response (10 responses), Vessel Account Renewal
(annual) is estimated to average 0.33 hour per response (30 responses),
QS Account Registration is estimated to average 1 hour per response (1
response), QS/QP transfer from QS account to vessel account is
estimated to average 0.25 hours per response (180 responses), QP
Transfer from vessel account to vessel account is estimated to average
0.25 hours per response (600 responses), Transaction Dispute Request is
estimated to average 1 hour per response (10 responses). Public
reporting burden for the catch monitor providers, Application
preparation & submission is estimated to average 10 hours per response
(3 responses), Training registration is estimated to average 1 hour per
response (3 responses), Exit Interview registration is estimated to
average 10 minutes per response (3 responses), Appeals--written
response and submission is estimated to average 4 hours per response (1
response). Public reporting burden for the catch monitors application
appeals--written response & submission is estimated to average 4 hours
per response (5 responses). Public reporting burden for the catch
monitoring plans, Preparation & submission is estimated to average 4
hours per response (80 responses), Inspection is estimated to average 2
hours per response (80 response), inseason scale testing is estimated
to average 1 hour per response (80 responses), reports are estimated to
average 10 minutes per response (2,400 responses). Public reporting
burden for electronic fish tickets is estimated to average 10 minutes
per response (400 responses). Public reporting burden for the changes
to the declaration reporting system (OMB Control No. 0648-0573) and the
changes to the observer program (OMB Control No. 0648-0593) are not
expected to change the public reporting burden. Public reporting burden
for the changes to the cease fishing report for the at-sea whiting
fisheries (OMB Control No. 0648-0271) will reduce the public reporting
burden. These estimates include the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collection information.
Send comments on these or any other aspects of the collection of
information to NMFS, Northwest Region, at the ADDRESSES section above;
and to OMB by e-mail to [email protected]; or fax to 202-
395-7285.
Notwithstanding any other provision of the law, no person is
required to respond to, and no person shall be subject to 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.
NMFS issued Biological Opinions under the Endangered Species Act
(ESA) on August 10, 1990, November 26, 1991, August 28, 1992, September
27, 1993, May 14, 1996, and December 15, 1999 pertaining to the effects
of the Pacific Coast groundfish FMP fisheries on Chinook salmon (Puget
Sound, Snake River spring/summer, Snake River fall, upper Columbia
River spring, lower Columbia River, upper Willamette River, Sacramento
River winter, Central Valley spring, California coastal), coho salmon
(Central California coastal, southern Oregon/northern California
coastal), chum salmon (Hood Canal summer, Columbia River), sockeye
salmon (Snake River, Ozette Lake), and steelhead (upper, middle and
lower Columbia River, Snake River Basin, upper Willamette River,
central California coast, California Central Valley, south/central
California, northern California, southern California). These biological
opinions have concluded that implementation of the FMP for the Pacific
Coast groundfish fishery was not expected to jeopardize the continued
existence of any endangered or threatened species under the
jurisdiction of NMFS, or result in the destruction or adverse
modification of critical habitat.
[[Page 78373]]
NMFS reinitiated a formal section 7 consultation under the ESA in
2005 for both the Pacific whiting midwater trawl fishery and the
groundfish bottom trawl fishery. The December 19, 1999, Biological
Opinion had defined an 11,000 Chinook incidental take threshold for the
Pacific whiting fishery. During the 2005 Pacific whiting season, the
11,000 fish Chinook incidental take threshold was exceeded, triggering
reinitiation. Also in 2005, new data from the West Coast Groundfish
Observer Program became available, allowing NMFS to complete an
analysis of salmon take in the bottom trawl fishery.
NMFS prepared a Supplemental Biological Opinion dated March 11,
2006, which addressed salmon take in both the Pacific whiting midwater
trawl and groundfish bottom trawl fisheries. In its 2006 Supplemental
Biological Opinion, NMFS concluded that catch rates of salmon in the
2005 whiting fishery were consistent with expectations considered
during prior consultations. Chinook bycatch has averaged about 7,300
fish over the last 15 years and has only occasionally exceeded the
reinitiation trigger of 11,000 fish.
Since 1999, annual Chinook bycatch has averaged about 8,450 fish.
The Chinook ESUs most likely affected by the whiting fishery has
generally improved in status since the 1999 section 7 consultation.
Although these species remain at risk, as indicated by their ESA
listing, NMFS concluded that the higher observed bycatch in 2005 does
not require a reconsideration of its prior ``no jeopardy'' conclusion
with respect to the fishery. For the groundfish bottom trawl fishery,
NMFS concluded that incidental take in the groundfish fisheries is
within the overall limits articulated in the Incidental Take Statement
of the 1999 Biological Opinion. The groundfish bottom trawl limit from
that opinion was 9,000 fish annually. NMFS will continue to monitor and
collect data to analyze take levels. NMFS also reaffirmed its prior
determination that implementation of the Groundfish FMP is not likely
to jeopardize the continued existence of any of the affected ESUs.
Lower Columbia River coho (70 FR 37160, June 28, 2005) were
recently listed and Oregon Coastal coho (73 FR 7816, February 11, 2008)
were recently relisted as threatened under the ESA. The 1999 biological
opinion concluded that the bycatch of salmonids in the Pacific whiting
fishery were almost entirely Chinook salmon, with little or no bycatch
of coho, chum, sockeye, and steelhead.
The Southern Distinct Population Segment (DPS) of green sturgeon
was listed as threatened under the ESA (71 FR 17757, April 7, 2006).
The southern DPS of Pacific eulachon was listed as threatened on March
18, 2010, under the ESA (75 FR 13012). NMFS has reinitiated
consultation on the fishery, including impacts on green sturgeon,
eulachon, marine mammals, and turtles. After reviewing the available
information, NMFS has concluded that, consistent with Sections 7(a)(2)
and 7(d) of the ESA, the proposed action would not jeopardize any
listed species, would not adversely modify any designated critical
habitat, and would not result in any irreversible or irretrievable
commitment of resources that would have the effect of foreclosing the
formulation or implementation of any reasonable and prudent alternative
measures.
Amendments 20 and 21 to the FMP were developed after meaningful
consultation and collaboration, through the Council process, with the
tribal representative on the Council. The Amendments have no direct
effect on tribes; these proposed regulations were deemed by the Council
as ``necessary or appropriate'' to implement the FMP as amended.
List of Subjects
15 CFR Part 902
Reporting and recordkeeping requirements.
50 CFR Part 660
Fisheries, Fishing, and Indian fisheries.
Dated: December 1, 2010.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
0
For the reasons set out in the preamble, 15 CFR chapter IX and 50 CFR
chapter VI are amended as follows:
15 CFR Chapter IX
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. In Sec. 902.1(b), in the table under the entry ``50 CFR'', add new
entries and corresponding OMB numbers for Sec. Sec. 660.13, 660.14,
660.16, 660.17, 660.114, 660.140, 660.150, 660.160, 660.216, and
660.316; and revise the entries for Sec. Sec. 660.25 and 660.113.
The additions and revisions 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 requirement is Current OMB control number (all
located numbers begin with 0648-)
------------------------------------------------------------------------
* * * * *
50 CFR
* * * * *
660.13............................... -0573
660.14............................... -0573
660.16............................... -0593
660.17............................... -0619
660.25............................... -0203, -0620
660.113.............................. -0271, -0573, -0618, -0619
660.114.............................. -0618
660.140.............................. -0593, -0619, -0620
660.150.............................. -0593, -0620
660.160.............................. -0593, -0620
660.216.............................. -0593
* * * * *
660.316.............................. -0593
* * * * *
------------------------------------------------------------------------
50 CFR Chapter VI
PART 660--FISHERIES OFF WEST COAST STATES
0
3. The authority citation for part 660 is revised to read as follows:
Authority: 16 U.S.C. 1801 et seq., 16 U.S.C. 773 et seq., and 16
U.S.C. 7001 et seq.
0
4. In Sec. 660.11, the definitions for ``Processing or to process''
and ``Processor'' are revised to read as follows:
Sec. 660.11 General definitions.
* * * * *
Processing or to process means the preparation or packaging of
groundfish to render it suitable for human consumption, retail sale,
industrial uses or long-term storage, including, but not limited to,
cooking, canning, smoking, salting, drying, filleting, freezing, or
rendering into meal or oil, but does not
[[Page 78374]]
mean heading and gutting unless additional preparation is done. (Also
see an exception to certain requirements at Sec. 660.131(a), subpart D
pertaining to Pacific whiting shoreside vessels 75-ft (23-m) or less
LOA that, in addition to heading and gutting, remove the tails and
freeze catch at sea.)
(1) At-sea processing means processing that takes place on a vessel
or other platform that floats and is capable of being moved from one
location to another, whether shore-based or on the water.
(2) Shorebased processing or processing means processing that takes
place at a facility that is permanently fixed to land. (Also see the
definition for shoreside processing at Sec. 660.140, subpart D which
defines shoreside processing for the purposes of qualifying for a
Shorebased IFQ Program QS permit.) For the purposes of economic data
collection in the Shorebased IFQ Program, shorebased processing means
either of the following:
(i) Any activity that takes place shoreside; and that involves:
Cutting groundfish into smaller portions; or freezing, cooking,
smoking, drying groundfish; or packaging that groundfish for resale
into 100 pound units or smaller; for sale or distribution into a
wholesale or retail market.
(ii) The purchase and redistribution in to a wholesale or retail
market of live groundfish from a harvesting vessel.
Processor means a person, vessel, or facility that engages in
commercial processing; or receives live groundfish directly from a
fishing vessel for retail sale without further processing. (Also see
the definition for processors at Sec. 660.140, subpart D which defines
processor for the purposes of qualifying for initial issuance of QS in
the Shorebased IFQ Program.)
(1) For the purposes of economic data collection in the Shorebased
IFQ Program, shorebased processor means a person that engages in
commercial processing, that is an operation working on U.S. soil or
permanently fixed to land, that takes delivery of fish that has not
been subject to at-sea processing or shorebased processing; and that
thereafter engages that particular fish in shorebased processing; and
excludes retailers, such as grocery stores and markets, which receive
whole or headed and gutted fish that are then filleted and packaged for
retail sale. At Sec. 660.114(b), trawl fishery--economic data
collection program, the definition of processor is further refined to
describe which shorebased processors are required to submit their
economic data collection forms.
(2) [Reserved]
* * * * *
0
5. In Sec. 660.12, paragraph (e)(7) and (e)(8) are revised, paragraph
(f) is redesignated as paragraph (g), and a new paragraph (f) is added
to read as follows:
Sec. 660.12 General groundfish prohibitions.
* * * * *
(e) * * *
(7) Fail to provide departure or cease fishing reports specified at
Sec. Sec. 660.140, 660.150, 660.160, subpart D; Sec. 660.216, subpart
E; or Sec. 660.316, subpart F.
(8) Fail to meet the vessel responsibilities specified at
Sec. Sec. 660.140, 660.150, 660.160, subpart D; Sec. 660.216, subpart
E; or Sec. 660.316, subpart F.
(9) Fail to meet the observer provider responsibilities specified
at Sec. Sec. 660.140, 660.150, 660.160, subpart D.
(f) Groundfish catch monitor program. (1) Forcibly assault, resist,
oppose, impede, intimidate, harass, sexually harass, bribe, or
interfere with a catch monitor.
(2) Interfere with or bias the monitoring procedure employed by a
catch monitor, including either mechanically or manually sorting or
discarding catch before it's monitored.
(3) Tamper with, destroy, or discard a catch monitor's collected
samples, equipment, records, photographic film, papers, or personal
effects.
(4) Harass a catch monitor by conduct that:
(i) Has sexual connotations,
(ii) Has the purpose or effect of interfering with the catch
monitor's work performance, and/or
(iii) Otherwise creates an intimidating, hostile, or offensive
environment. In determining whether conduct constitutes harassment, the
totality of the circumstances, including the nature of the conduct and
the context in which it occurred, will be considered. The determination
of the legality of a particular action will be made from the facts on a
case-by-case basis.
(5) Receive, purchase, or take custody, control, or possession of a
delivery without catch monitor coverage when such coverage is required
under Sec. 660.140, subpart D.
(6) Fail to allow the catch monitor unobstructed access to catch
sorting, processing, catch counting, catch weighing, or electronic or
paper fish tickets.
(7) Fail to provide reasonable assistance to the catch monitor.
(8) Require, pressure, coerce, or threaten a catch monitor to
perform duties normally performed by employees of the first receiver,
including, but not limited to duties associated with the receiving of
landing, processing of fish, sorting of catch, or the storage of the
finished product.
(9) Fail to meet the catch monitor provider responsibilities
specified at Sec. 660.140, subpart D.
* * * * *
0
6. In Sec. 660.13, paragraph (d)(5)(iv) introductory text, paragraph
(d)(5)(iv)(A) introductory text, and paragraphs (d)(5)(iv)(A)(1)
through (4), and (6) through (8) are revised to read as follows:
Sec. 660.13 Recordkeeping and reporting.
* * * * *
(d) * * *
(5) * * *
(iv) Declaration reports will include: The vessel name and/or
identification number, and gear type (as defined in paragraph
(d)(5)(iv)(A) of this section). Upon receipt of a declaration report,
NMFS will provide a confirmation code or receipt to confirm that a
valid declaration report was received for the vessel. Retention of the
confirmation code or receipt to verify that a valid declaration report
was filed and the declaration requirement was met is the responsibility
of the vessel owner or operator. Vessels using nontrawl gear may
declare more than one gear type with the exception of vessels
participating in the Shorebased IFQ Program (i.e. gear switching),
however, vessels using trawl gear may only declare one of the trawl
gear types listed in paragraph (d)(5)(iv)(A) of this section on any
trip and may not declare nontrawl gear on the same trip in which trawl
gear is declared.
(A) One of the following gear types or sectors must be declared:
(1) Limited entry fixed gear, not including shorebased IFQ,
(2) Limited entry groundfish non-trawl, shorebased IFQ,
(3) Limited entry midwater trawl, non-whiting shorebased IFQ,
(4) Limited entry midwater trawl, Pacific whiting shorebased IFQ,
* * * * *
(6) Limited entry midwater trawl, Pacific whiting mothership sector
(catcher vessel or mothership),
(7) Limited entry bottom trawl, shorebased IFQ, not including
demersal trawl,
(8) Limited entry demersal trawl, shorebased IFQ,
* * * * *
0
7. In Sec. 660.14, paragraph (b)(1) is revised to read as follows:
Sec. 660.14 Vessel Monitoring System (VMS) requirements.
* * * * *
(b) * * *
[[Page 78375]]
(1) Any vessel registered for use with a limited entry ``A''
endorsed permit (i.e., not an MS permit) that fishes in state or
Federal waters seaward of the baseline from which the territorial sea
is measured off the States of Washington, Oregon or California (0-200
nm offshore).
* * * * *
0
8. Section 660.15 is revised to read as follows:
Sec. 660.15 Equipment requirements.
(a) Applicability. This section contains the equipment and
operational requirements for scales used to weigh catch at sea, scales
used to weigh catch at IFQ first receivers, computer hardware for
electronic fish ticket software, and computer hardware for electronic
logbook software. Unless otherwise specified by regulation, the
operator or manager must retain, for 3 years, a copy of all records
described in this section and make available the records upon request
of NMFS staff or authorized officer.
(b) Scales used to weigh catch at sea--performance and technical
requirements. (1) Scales approved by NMFS for MS and C/P Coop Programs.
A scale used to weigh catch in the MS and C/P Coop Programs must meet
the type evaluation and initial inspection requirements set forth in 50
CFR 679.28(b)(1) and (2), and must be approved by NMFS.
(2) Annual inspection. Once a scale is installed on a vessel and
approved by NMFS for use, it must be inspected annually as described in
50 CFR 679.28(b).
(3) Daily testing. Each scale must be tested daily and meet the
maximum permissible error (MPE) requirements described at described at
paragraph (b)(4) of this section.
(4) At-sea scale tests. To verify that the scale meets the maximum
permissible errors (MPEs) specified in this paragraph, the vessel
operator must ensure that vessel crew test each scale used to weigh
catch at least one time during each 24-hour period when use of the
scale is required. The vessel owner must ensure that these tests are
performed in an accurate and timely manner.
(i) Belt scales. The MPE for the daily at-sea scale test is plus or
minus 3 percent of the known weight of the test material. The scale
must be tested by weighing at least 400 kg (882 lb) of fish or an
alternative material supplied by the scale manufacturer on the scale
under test. The known weight of the fish or test material must be
determined by weighing it on a platform scale approved for use under 50
CFR 679.28(b)(7).
(ii) Platform scales used for observer sampling on MSs and C/Ps. A
platform scale used for observer sampling must be tested at 10, 25, and
50 kg (or 20, 50, and 100 lb if the scale is denominated in pounds)
using approved test weights. The MPE for the daily at-sea scale test is
plus or minus 0.5 percent.
(iii) Approved test weights. Each test weight must have its weight
stamped on or otherwise permanently affixed to it. The weight of each
test weight must be annually certified by a National Institute of
Standards and Technology approved metrology laboratory or approved for
continued use by the NMFS authorized inspector at the time of the
annual scale inspection.
(iv) Requirements for all at-sea scale tests. The vessel operator
must ensure that vessel crew:
(A) Notify the observer at least 15 minutes before the time that
the test will be conducted, and conduct the test while the observer is
present.
(B) Conduct the scale test and record the following information on
the at-sea scale test report form:
(1) Vessel name;
(2) Month, day, and year of test;
(3) Time test started to the nearest minute;
(4) Known weight of test weights;
(5) Weight of test weights recorded by scale;
(6) Percent error as determined by subtracting the known weight of
the test weights from the weight recorded on the scale, dividing that
amount by the known weight of the test weights, and multiplying by 100;
and
(7) Sea conditions at the time of the scale test.
(C) Maintain the test report form on board the vessel until the end
of the fishing year during which the tests were conducted, and make the
report forms available to observers, NMFS staff, or authorized
officers. In addition, the vessel owner must retain the scale test
report forms for 3 years after the end of the fishing year during which
the tests were performed. Each scale test report form must be signed by
the vessel operator immediately following completion of each scale
test.
(5) Scale maintenance. The vessel owner must ensure that the vessel
operator maintains the scale in proper operating condition throughout
its use, that adjustments made to the scale are made so as to bring the
performance errors as close as practicable to a zero value, and that no
adjustment is made that will cause the scale to weigh inaccurately.
(6) Printed reports from the scale. The vessel owner must ensure
that the printed reports are provided to NMFS as required by this
paragraph. Printed reports from the scale must be maintained on board
the vessel until the end of the year during which the reports were
made, and be made available to NMFS staff or authorized officers. In
addition, the vessel owner must retain printed reports for 3 years
after the end of the year during which the printouts were made.
(i) Reports of catch weight and cumulative weight. Reports must be
printed at least once every 24 hours. Reports must also be printed
before any information stored in the scale computer memory is replaced.
Scale weights must not be adjusted by the scale operator to account for
the perceived weight of water, slime, mud, debris, or other materials.
Scale printouts must show:
(A) The vessel name and Federal vessel permit number;
(B) The date and time the information was printed;
(C) The haul number;
(D) The total weight of the haul; and
(E) The total cumulative weight of all fish and other material
weighed on the scale since the last annual inspection.
(ii) Printed report from the audit trail. The printed report must
include the information specified in sections 2.3.1.8, 3.3.1.7, and
4.3.1.8 of appendix A to 50 CFR part 679. The printed report must be
provided to the authorized scale inspector at each scale inspection and
must also be printed at any time upon request of NMFS staff or other
authorized officer.
(iii) Platform scales used for observer sampling. A platform scale
used for observer sampling is not required to produce a printed record.
(c) Scales used to weigh catch at IFQ first receivers--performance
and technical requirements. Scale requirements in this paragraph are in
addition to those requirements set forth by the State in which the
scale is located, and nothing in this paragraph may be construed to
reduce or supersede the authority of the State to regulate, test, or
approve scales within the State. Scales used to weigh catch that are
also required to be approved by the State must meet the following
requirements:
(1) Verification of approval. The scale must display a valid
sticker indicating that the scale is currently approved in accordance
with the laws of the state where the scale is located.
(2) Visibility. NMFS staff, NMFS-authorized personnel, or
authorized officers must be allowed to observe the
[[Page 78376]]
weighing of catch on the scale and be allowed to read the scale display
at all times.
(3) Printed scale weights. (i) An IFQ first receiver must ensure
that printouts of the scale weight of each delivery or offload are made
available to NMFS staff, to NMFS-authorized personnel, or to authorized
officers at the time printouts are generated. An IFQ first receiver
must maintain printouts on site until the end of the fishing year
during which the printouts were made and make them available upon
request by NMFS staff, NMFS-authorized personnel, or authorized
officers for 3 years after the end of the fishing year during which the
printout was made.
(ii) All scales identified in a catch monitoring plan (see Sec.
660.140(f)(3), subpart D) must produce a printed record for each
delivery, or portion of a delivery, weighed on that scale, unless
specifically exempted by NMFS. NMFS may exempt, as part of the NMFS-
accepted catch monitoring plan, scales not designed for automatic bulk
weighing from part or all of the printed record requirements. For
scales that must produce a printed record, the printed record must
include:
(A) The IFQ first receiver's name;
(B) The weight of each load in the weighing cycle;
(C) The total weight of fish in each landing, or portion of the
landing that was weighed on that scale;
(D) The date the information is printed; and
(E) The name and vessel registration or documentation number of the
vessel making the delivery. The scale operator may write this
information on the scale printout in ink at the time of printing.
(4) Inseason scale testing. IFQ first receivers must allow, and
provide reasonable assistance to NMFS staff, NMFS-authorized personnel,
and authorized officers to test scales used to weigh IFQ catch. A scale
that does not pass an inseason test may not be used to weigh IFQ catch
until the scale passes an inseason test or is approved for continued
use by the weights and measures authorities of the State in which the
scale is located.
(i) Inseason testing criteria. To pass an inseason test, NMFS staff
or authorized officers must be able to verify that:
(A) The scale display and printed information are clear and easily
read under all conditions of normal operation;
(B) Weight values are visible on the display until the value is
printed;
(C) The scale does not exceed the maximum permissible errors
specified in the following table:
------------------------------------------------------------------------
Maximum error
Test load in scale divisions in scale
divisions
------------------------------------------------------------------------
(1) 0-500............................................... 1
(2) 501-2,000........................................... 2
(3) 2,001-4,000......................................... 3
(4) >4,000.............................................. 4
------------------------------------------------------------------------
(D) Automatic weighing systems. An automatic weighing system must
be provided and operational that will prevent fish from passing over
the scale or entering any weighing hopper unless the following criteria
are met:
(1) No catch may enter or leave a weighing hopper until the
weighing cycle is complete;
(2) No product may be cycled and weighed if the weight recording
element is not operational; and
(3) No product may enter a weighing hopper until the prior weighing
cycle has been completed and the scale indicator has returned to a
zero.
(ii) [Reserved]
(d) Electronic fish tickets. IFQ first receivers using the
electronic fish ticket software provided by Pacific States Marine
Fisheries Commission are required to meet the hardware and software
requirements below. Those IFQ first receivers who have NMFS-approved
software compatible with the standards specified by Pacific States
Marine Fisheries Commission for electronic fish tickets are not subject
to any specific hardware or software requirements.
(1) Hardware and software requirements. (i) A personal computer
with Pentium 75-MHz or higher. Random Access Memory (RAM) must have
sufficient megabyte (MB) space to run the operating system, plus an
additional 8 MB for the software application and available hard disk
space of 217 MB or greater. A CD-ROM drive with a Video Graphics
Adapter (VGA) or higher resolution monitor (super VGA is recommended).
(ii) Microsoft Windows 2000 (64 MB or greater RAM required),
Windows XP (128 MB or greater RAM required), or later operating system.
(iii) Microsoft Access 2003 or newer.
(2) NMFS approved software standards and internet access. The IFQ
first receiver is responsible for obtaining, installing, and updating
electronic fish tickets software either provided by Pacific States
Marine Fisheries Commission, or compatible with the data export
specifications specified by Pacific States Marine Fisheries Commission
and for maintaining internet access sufficient to transmit data files
via e-mail. Requests for data export specifications can be submitted
to: Attn: Electronic Fish Ticket Monitoring, National Marine Fisheries
Service, Northwest Region, Sustainable Fisheries Division, 7600 Sand
Point Way, NE, Seattle, WA 98115.
(3) Maintenance. The IFQ first receiver is responsible for ensuring
that all hardware and software required under this subsection are fully
operational and functional whenever they receive, purchase, or take
custody, control, or possession of an IFQ landing.
(4) Improving data quality. Vessel owners and operators, IFQ first
receivers, or shoreside processor owners, or managers may contact NMFS
in writing to request assistance in improving data quality and
resolving issues. Requests may be submitted to: Attn: Electronic Fish
Ticket Monitoring, National Marine Fisheries Service, Northwest Region,
Sustainable Fisheries Division, 7600 Sand Point Way, NE, Seattle, WA
98115.
0
9. Section 660.16 is revised to read as follows:
Sec. 660.16 Groundfish observer program.
(a) General. Vessel owners, operators, and managers are jointly and
severally responsible for their vessel's compliance with observer
requirements specified in this section and within Sec. Sec. 660.140,
660.150, 660.160, subpart D; Sec. 660.216, subpart E; Sec. 660.316,
subpart F; or subpart G.
(b) Purpose. The purpose of the Groundfish Observer Program is to
collect fisheries data necessary and appropriate for, among other
relevant purposes, management, compliance monitoring, and research in
the groundfish fisheries and for the conservation of living marine
resources.
(c) Observer coverage requirements. The following table provides
references to the paragraphs in the Pacific coast groundfish subparts
that contain fishery specific requirements. Observer coverage required
for the Shorebased IFQ Program, MS Coop Program, or C/P Coop Program
shall not be used to comply with observer coverage requirements for any
other Pacific coast groundfish fishery in which that vessel may also
participate.
------------------------------------------------------------------------
West Coast Groundfish Fishery Regulation section
------------------------------------------------------------------------
(1) Shorebased IFQ Program--Trawl Sec. 660.140, subpart D.
Fishery.
[[Page 78377]]
(2) MS Coop Program--Whiting At-sea Sec. 660.150, subpart D.
Trawl Fishery.
(3) C/P Coop Program--Whiting At- Sec. 660.160, subpart D.
sea Trawl Fishery.
(4) Fixed Gear Fisheries........... Sec. 660.216, subpart E.
(5) Open Access Fisheries.......... Sec. 660.316, subpart F.
------------------------------------------------------------------------
0
10. Section 660.17 is added to read as follows:
Sec. 660.17 Catch monitors and catch monitor providers.
(a) Catch monitor certification. Catch monitor certification
authorizes an individual to fulfill duties as specified by NMFS while
under the employ of a certified catch monitor provider.
(b) Catch monitor certification requirements. NMFS may certify
individuals who:
(1) Are employed by a certified catch monitor provider at the time
of the issuance of the certification and qualified, as described at
paragraph (e)(1)(i) through (viii) of this section and have provided
proof of qualifications to NMFS, through the certified catch monitor
provider.
(2) Have successfully completed NMFS-approved training.
(i) Successful completion of training by an applicant consists of
meeting all attendance and conduct standards issued in writing at the
start of training; meeting all performance standards issued in writing
at the start of training for assignments, tests, and other evaluation
tools; and completing all other training requirements established by
NMFS.
(ii) If a candidate fails training, he or she will be notified in
writing on or before the last day of training. The notification will
indicate: The reasons the candidate failed the training; whether the
candidate can retake the training, and under what conditions.
(3) Have not been decertified as an observer or catch monitor under
provisions in Sec. Sec. 660.18, 660.140(h)(6), 660.150(g)(6), and
660.160(g)(6).
(4) Existing catch monitors as of 2010. A catch monitor who has
completed sampling or monitoring activities in 2010 in NMFS-managed
West Coast groundfish fisheries, and has not had his or her
certification revoked during or after that time, will be considered to
have met his or her certification requirements under this section.
These catch monitors will be issued a new catch monitor certification
prior to their first deployment to a first receiver after December 31,
2010, unless NMFS determines that he or she has not completed any
additional training required for this program.
(c) Catch monitor standards of behavior. Catch monitors must do the
following:
(1) Perform authorized duties as described in training and
instructional manuals or other written and oral instructions provided
by NMFS.
(2) Accurately record and submit the required data, which includes
fish species composition, identification, sorting, and weighing
information.
(3) Write complete reports, and report accurately any observations
of suspected violations of regulations.
(4) Keep confidential and not disclose data and observations
collected at the first receiver to any person except, NMFS staff or
authorized officers or others as specifically authorized by NMFS.
(d) Catch monitor provider certification. Persons seeking to
provide catch monitor services under this section must obtain a catch
monitor provider certification from NMFS.
(1) Applications. Persons seeking to provide catch monitor services
must submit a completed application by mail to the NMFS Northwest
Region, Permits Office, ATTN: Catch Monitor Coordinator, 7600 Sand
Point Way, NE, Seattle, WA 98115. An application for a catch monitor
provider permit shall consist of a narrative that contains the
following:
(i) Identification of the management, organizational structure, and
ownership structure of the applicant's business, including
identification by name and general function of all controlling
management interests in the company, including but not limited to
owners, board members, officers, authorized agents, and staff. If the
applicant is a corporation, the articles of incorporation must be
provided. If the applicant is a partnership, the partnership agreement
must be provided.
(ii) Contact information. (A) The owner's permanent mailing
address, telephone, and fax numbers.
(B) The business mailing address, including the physical location,
e-mail address, telephone and fax numbers.
(C) Any authorized agent's mailing address, physical location, e-
mail address, telephone and fax numbers. An authorized agent means a
person appointed and maintained within the United States who is
authorized to receive and respond to any legal process issued in the
United States to an owner or employee of a catch monitor provider.
(iii) Prior experience. A statement identifying prior relevant
experience in recruiting, hiring, deploying, and providing support for
individuals in marine work environments in the groundfish fishery or
other fisheries of similar scale.
(iv) Ability to perform or carry out responsibilities of a catch
monitor provider. A description of the applicant's ability to carry out
the responsibilities of a catch monitor provider is set out under
paragraph (e) of this section.
(v) A statement describing any criminal convictions of each owner
and board member, officer, authorized agent, and staff; a list of
Federal contracts held and related performance ratings; and, a
description of any previous decertification actions that may have been
taken while working as an observer or observer provider.
(vi) A statement describing each owner and board member, officer,
authorized agent, and staff indicating that they are free from conflict
of interest as described under Sec. 660.18(d).
(2) Application review. (i) The certification official, described
in Sec. 660.18(a), may issue catch monitor provider certifications
upon determination that the application submitted by the candidate
meets all requirements specified in paragraph (d)(2)(ii) of this
section.
(ii) Issuance of the certification will, at a minimum, be based on
the completeness of the application, as well as the following criteria:
(A) The applicant's ability to carry out the responsibilities and
relevant experience;
(B) Satisfactory performance ratings on any Federal contracts held
by the applicant.
(C) Absence of a conflict of interest.
(D) Absence of relevant criminal convictions.
(3) Agency determination. The certification official will make a
determination to approve or deny the application and notify the
applicant by letter via certified return receipt mail, within 60 days
of receipt of the application. Additional certification procedures are
specified in Sec. 660.18, subpart C.
[[Page 78378]]
(4) Existing catch monitor providers as of 2010. NMFS-certified
providers who deployed catch monitors in a NMFS-managed West Coast
groundfish fishery or observers under the North Pacific Groundfish
Program in 2010, are exempt from the requirement to apply for a permit
for 2011 and will be issued a catch monitor provider permit effective
through December 31, 2011, except that a change in ownership of an
existing catch monitor provider or observer provider after January 1,
2011, requires a new permit application under this section. To receive
catch monitor certification for 2012 and beyond, these exempted catch
monitor providers must follow application procedures otherwise set
forth in this section.
(e) Catch monitor provider responsibilities. (1) Provide qualified
candidates to serve as catch monitors. To be qualified a candidate
must:
(i) Be a U.S. citizen or have authorization to work in the United
States;
(ii) Be at least 18 years of age;
(iii) Have a high school diploma and;
(A) At least two years of study from an accredited college with a
major study in natural resource management, natural sciences, earth
sciences, natural resource anthropology, law enforcement/police
science, criminal justice, public administration, behavioral sciences,
environmental sociology, or other closely related subjects pertinent to
the management and protection of natural resources, or;
(B) One year of specialized experience performing duties which
involved communicating effectively and obtaining cooperation,
identifying and reporting problems or apparent violations of
regulations concerning the use of protected or public land areas, and
carrying out policies and procedures within a recreational area or
natural resource site.
(iv) Computer skills that enable the candidate to work competently
with standard database software and computer hardware.
(v) Have a current and valid driver's license.
(vi) Have had a background investigation and been found to have had
no criminal or civil convictions that would affect their performance or
credibility as a catch monitor.
(vii) Have had health and physical fitness exams and been found to
be fit for the job duties and work conditions;
(A) Physical fitness exams shall be conducted by a medical doctor
who has been provided with a description of the job duties and work
conditions and who provides a written conclusion regarding the
candidate's fitness relative to the required duties and work
conditions. A signed and dated statement from a licensed physician that
he or she has physically examined a catch monitor or catch monitor
candidate. The statement must confirm that, based on that physical
examination, the catch monitor or catch monitor candidate does not have
any health problems or conditions that would jeopardize that
individual's safety or the safety of others while deployed, or prevent
the catch monitor or catch monitor candidate from performing his or her
duties satisfactorily. The physician's statement must be submitted to
the catch monitor program office prior to certification of a catch
monitor. The physical exam must have occurred during the 12 months
prior to the catch monitor's or catch monitor candidate's deployment.
The physician's statement will expire 12 months after the physical exam
occurred. A new physical exam must be performed, and accompanying
statement submitted, prior to any deployment occurring after the
expiration of the statement.
(B) Physical exams may include testing for illegal drugs.
(C) Certificates of insurance. Copies of ``certificates of
insurance'', that names the NMFS Catch Monitor Program leader as the
``certificate holder'', shall be submitted to the Catch Monitor Program
Office by February 1 of each year. The certificates of insurance shall
verify the following coverage provisions and state that the insurance
company will notify the certificate holder if insurance coverage is
changed or canceled.
(1) Coverage under the U.S. Longshore and Harbor Workers'
Compensation Act ($1 million minimum).
(2) States Worker's Compensation as required.
(3) Commercial General Liability.
(viii) Have signed a statement indicating that they are free from
conflict of interest as described under Sec. 660.18(c).
(2) Standards. Provide to the candidate a copy of the standards of
conduct, responsibilities, conflict of interest standards and drug and
alcohol policy.
(3) Contract. Provide to the candidate a copy of a written contract
signed by the catch monitor and catch monitor provider that shows among
other factors the following provisions for employment:
(i) Compliance with the standards of conduct, responsibilities,
conflict of interest standards and drug and alcohol policy;
(ii) Willingness to complete all responsibilities of current
deployment prior to performing jobs or duties which are not part of the
catch monitor responsibilities.
(iii) Commitment to return all sampling or safety equipment issued
for the deployment.
(4) Catch monitors provided to a first receiver.
(i) Must have a valid catch monitor certification;
(ii) Must not have informed the provider prior to the time of
assignment that he or she is experiencing a mental illness or a
physical ailment or injury developed since submission of the
physician's statement, as required in paragraph (e)(1)(vii)(A) of this
section that would prevent him or her from performing his or her
assigned duties; and
(iii) Must have successfully completed all NMFS required training
and briefing before assignment.
(5) Respond to industry requests for catch monitors. A catch
monitor provider must provide a catch monitor for assignment pursuant
to the terms of the contractual relationship with the first receiver to
fulfill first receiver requirements for catch monitor coverage under
paragraph (e)(10)(i)(C)(1)(ii) of this section. An alternate catch
monitor must be supplied in each case where injury or illness prevents
the catch monitor from performing his or her duties or where the catch
monitor resigns prior to completion of his or her duties. If the catch
monitor provider is unable to respond to an industry request for catch
monitor coverage from a first receiver for whom the provider is in a
contractual relationship due to the lack of available catch monitors,
the provider must report it to NMFS at least 4 hours prior to the
expected assignment time.
(6) Ensure that catch monitors complete duties in a timely manner.
Catch monitor providers must ensure that catch monitors employed by
that provider do the following in a complete and timely manner:
(i) Submit to NMFS all data, logbooks and reports as required under
the catch monitor program deadlines.
(ii) Report for his or her scheduled debriefing and complete all
debriefing responsibilities.
(7) Provide catch monitor salaries and benefits. A catch monitor
provider must provide to its catch monitor employees salaries and any
other benefits and personnel services in accordance with the terms of
each catch monitor's contract.
(8) Provide catch monitor assignment logistics.
(i) A catch monitor provider must ensure each of its catch monitors
under contract:
[[Page 78379]]
(A) Has an individually assigned mobile or cell phones, in working
order, for all necessary communication. A catch monitor provider may
alternatively compensate catch monitors for the use of the catch
monitor's personal cell phone or pager for communications made in
support of, or necessary for, the catch monitor's duties.
(B) Has Internet access for catch monitor program communications
and data submission
(C) Remains available to NOAA Office for Law Enforcement and the
catch monitor program until the completion of the catch monitors'
debriefing.
(D) Receives all necessary transportation, including arrangements
and logistics, of catch monitors to the location of assignment, to all
subsequent assignments during that assignment, and to the debriefing
location when an assignment ends for any reason; and
(E) Receives lodging, per diem, and any other services necessary to
catch monitors assigned to first receivers, as specified in the
contract between the catch monitor and catch monitor provider.
(F) While under contract with a permitted catch monitor provider,
catch monitor shall be provided with accommodations in accordance with
the contract between the catch monitor and the catch monitor provider.
If the catch monitor provider is responsible for providing
accommodations under the contract with the catch monitor, the
accommodations must be at a licensed hotel, motel, bed and breakfast,
or other accommodations that have an assigned bed for each catch
monitor that no other person may be assigned to for the duration of
that catch monitor's stay.
(ii) [Reserved]
(9) Catch monitor assignment limitations and workload.
(i) Not assign a catch monitor to the same first receiver for more
than 90 calendar days in a 12-month period, unless otherwise authorized
by NMFS.
(ii) Not exceed catch monitor assignment limitations and workload
as outlined in Sec. 660.140(i)(3)(ii), subpart D.
(10) Maintain communications with catch monitors. A catch monitor
provider must have an employee responsible for catch monitor activities
on call 24 hours a day to handle emergencies involving catch monitors
or problems concerning catch monitor logistics, whenever catch monitors
are assigned, or in transit, or awaiting first receiver reassignment.
(11) Maintain communications with the catch monitor program office.
A catch monitor provider must provide all of the following information
by electronic transmission (e-mail), fax, or other method specified by
NMFS.
(i) Catch monitor training, briefing, and debriefing registration
materials. This information must be submitted to the catch monitor
program at least 7 business days prior to the beginning of a scheduled
catch monitor certification training or briefing session.
(A) Training registration materials consist of the following:
(1) Date of requested training;
(2) A list of catch monitor candidates that includes each
candidate's full name (i.e., first, middle and last names), date of
birth, and gender;
(3) A copy of each candidate's academic transcripts and resume;
(4) A statement signed by the candidate under penalty of perjury
which discloses the candidate's criminal convictions;
(5) Projected candidate assignments. Prior to the completion of the
training session, the catch monitor provider must submit to the catch
monitor program a statement of projected catch monitor assignments that
includes each catch monitor's name and length of catch monitors
contract.
(B) Briefing registration materials consist of the following:
(1) Date and type of requested briefing session;
(2) List of catch monitors to attend the briefing session, that
includes each catch monitor's full name (first, middle, and last
names);
(3) Projected catch monitor assignments. Prior to the catch
monitor's completion of the briefing session, the catch monitor
provider must submit to the catch monitor program a statement of
projected catch monitor assignments that includes each catch monitor's
name and length of observer contract.
(C) Debriefing. The catch monitor program will notify the catch
monitor provider which catch monitors require debriefing and the
specific time period the provider has to schedule a date, time, and
location for debriefing. The catch monitor provider must contact the
catch monitor program within 5 business days by telephone to schedule
debriefings.
(1) Catch monitor providers must immediately notify the catch
monitor program when catch monitors end their contract earlier than
anticipated.
(2) [Reserved]
(ii) Catch monitor provider contracts. If requested, catch monitor
providers must submit to the catch monitor program a completed and
unaltered copy of each type of signed and valid contract (including all
attachments, appendices, addendums, and exhibits incorporated into the
contract) between the catch monitor provider and those entities
requiring catch monitor services under Sec. 660.140(i)(1), subpart D.
Catch monitor providers must also submit to the catch monitor program
upon request, a completed and unaltered copy of the current or most
recent signed and valid contract (including all attachments,
appendices, addendums, and exhibits incorporated into the contract and
any agreements or policies with regard to catch monitor compensation or
salary levels) between the catch monitor provider and the particular
entity identified by the catch monitor program or with specific catch
monitors. The copies must be submitted to the catch monitor program via
e-mail, fax, or mail within 5 business days of the request. Signed and
valid contracts include the contracts a catch monitor provider has
with:
(A) First receivers required to have catch monitor coverage as
specified at paragraph Sec. 660.140(i)(1), subpart D; and
(B) Catch monitors.
(iii) Change in catch monitor provider management and contact
information. A catch monitor provider must submit to the catch monitor
program any change of management or contact information submitted on
the provider's permit application under paragraphs (d)(1) of this
section within 30 days of the effective date of such change.
(iv) Catch monitor status report. Each Tuesday, catch monitor
providers must provide NMFS with an updated list of contact information
for all catch monitors that includes the catch monitor's name, mailing
address, e-mail address, phone numbers, first receiver assignment for
the previous week and whether or not the catch monitor is ``in
service'', indicating when the catch monitor has requested leave and/or
is not currently working for the provider.
(v) Informational materials. Providers must submit to NMFS, if
requested, copies of any information developed and used by the catch
monitor providers and distributed to first receivers, including, but
not limited to, informational pamphlets, payment notification, and
description of catch monitor duties.
(vi) Other reports. Reports of the following must be submitted in
writing to the catch monitor program by the catch monitor provider via
fax or e-mail address designated by the catch monitor program within 24
hours after the catch monitor provider becomes aware of the
information:
(A) Any information regarding possible catch monitor harassment;
[[Page 78380]]
(B) Any information regarding any action prohibited under Sec.
660.12(f);
(C) Any catch monitor illness or injury that prevents the catch
monitor from completing any of his or her duties described in the catch
monitor manual; and
(D) Any information, allegations or reports regarding catch monitor
conflict of interest or breach of the standards of behavior described
in catch monitor provider policy.
(12) Replace lost or damaged gear. A catch monitor provider must
replace all lost or damaged gear and equipment issued by NMFS to a
catch monitor under contract to that provider.
(13) Confidentiality of information. A catch monitor provider must
ensure that all records on individual catch monitor performance
received from NMFS under the routine use provision of the Privacy Act
or as otherwise required by law remain confidential and are not further
released to anyone outside the employ of the catch monitor provider
company to whom the catch monitor was contracted except with written
permission of the catch monitor.
(14) Catch monitor program training and certification--(i) A
training certification signifies the successful completion of the
training course required to obtain catch monitor certification. This
endorsement expires when the catch monitor has not been deployed and
performed sampling duties as required by the catch monitor program
office for a period of time, specified by the catch monitor program,
after his or her most recent debriefing. The catch monitor can renew
the certification by successfully completing training once more.
(ii) Catch monitor program annual briefing. Each catch monitor must
attend an annual briefing prior to his or her first deployment within
any calendar year subsequent to a year in which a training
certification is obtained. To maintain certification, a catch monitor
must successfully complete the annual briefing, as specified by the
catch monitor program. All briefing attendance, performance, and
conduct standards required by the catch monitor program must be met.
(iii) Maintaining the validity of a catch monitor certification.
After initial issuance, a catch monitor must keep their certification
valid by meeting all of the following requirements specified below:
(A) Successfully perform their assigned duties as described in the
Catch Monitor Manual or other written instructions from the catch
monitor program.
(B) Accurately record their data, write complete reports, and
report accurately any observations of suspected violations of
regulations relevant to conservation of marine resources or their
environment.
(C) Not disclose collected data and observations made on board the
vessel or in the first receiver facility to any person except the owner
or operator of the observed vessel, first receiver management or an
authorized officer or NMFS.
(D) Successfully complete NMFS-approved annual briefings as
prescribed by the catch monitor program.
(E) Successful completion of a briefing by a catch monitor consists
of meeting all attendance and conduct standards issued in writing at
the start of training; meeting all performance standards issued in
writing at the start of training for assignments, tests, and other
evaluation tools; and completing all other briefing requirements
established by the catch monitor program.
(F) Successfully meet all expectations in all debriefings including
reporting for assigned debriefings.
(G) Submit all data and information required by the catch monitor
program within the program's stated guidelines.
0
11. Section 660.18 is revised to read as follows:
Sec. 660.18 Certification and decertification procedures for catch
monitors and catch monitor providers.
(a) Certification official. The Regional Administrator (or a
designee) will designate a NMFS catch monitor certification official
who will make decisions on whether to issue or deny catch monitor or
catch monitor provider certification pursuant to the regulations at
Sec. Sec. 660.17 and 660.18, subpart C.
(b) Agency determinations on certifications. (1) Issuance of
certifications--Certification may be issued upon determination by the
certification official that the candidate has successfully met all
requirements for certification as specified in:
(i) Sec. 660.17(b) for catch monitors; and
(ii) Sec. 660.17(d) for catch monitor providers.
(2) Denial of a certification. The NMFS certification official will
issue a written determination identifying the reasons for denial of a
certification.
(c) Limitations on conflict of interest for catch monitors. (1)
Catch monitors must not have a direct financial interest, other than
the provision of observer or catch monitor services, in a North Pacific
fishery managed pursuant to an FMP for the waters off the coast of
Alaska, Alaska state waters, or in a Pacific Coast fishery managed by
either the state or Federal Governments in waters off Washington,
Oregon, or California, including but not limited to:
(i) Any ownership, mortgage holder, or other secured interest in a
vessel, shore-based or floating stationary processor facility involved
in the catching, taking, harvesting or processing of fish,
(ii) Any business involved with selling supplies or services to any
vessel, shore-based or floating stationary processing facility; or
(iii) Any business involved with purchasing raw or processed
products from any vessel, shore-based or floating stationary processing
facilities.
(2) Must not solicit or accept, directly or indirectly, any
gratuity, gift, favor, entertainment, loan, or anything of monetary
value from anyone who either conducts activities that are regulated by
NMFS or has interests that may be substantially affected by the
performance or nonperformance of the catch monitor's official duties.
(3) May not serve as a catch monitor at any shoreside or floating
stationary processing facility owned or operated where a person was
previously employed in the last two years.
(4) May not solicit or accept employment as a crew member or an
employee of a vessel, or shoreside processor while employed by a catch
monitor provider.
(5) Provisions for remuneration of catch monitors under this
section do not constitute a conflict of interest.
(d) Limitations on conflict of interest for catch monitor
providers. Catch monitor providers must not have a direct financial
interest, other than the provision of observer or catch monitor
services, in a North Pacific fishery managed pursuant to an FMP for the
waters off the coast of Alaska, Alaska state waters, or in a Pacific
Coast fishery managed by either the state or Federal Governments in
waters off Washington, Oregon, or California, including but not limited
to:
(1) Any ownership, mortgage holder, or other secured interest in a
vessel, shore-based or floating stationary processor facility involved
in the catching, taking, harvesting or processing of fish,
(2) Any business involved with selling supplies or services to any
vessel, shore-based or floating stationary processing facility; or
(3) Any business involved with purchasing raw or processed products
from any vessel, shore-based or floating stationary processing
facilities.
(e) Decertification. (1) Decertification review official--The
Regional
[[Page 78381]]
Administrator (or a designee) will designate a decertification review
official(s), who will have the authority to review certifications and
issue IADs of decertification.
(2) Causes for decertification. The decertification official may
initiate decertification proceedings when it is alleged that any of the
following acts or omissions have been committed:
(i) Failed to satisfactorily perform the specified duties and
responsibilities;
(ii) Failed to abide by the specified standards of conduct;
(iii) Upon conviction of a crime or upon entry of a civil judgment
for:
(A) Commission of fraud or other violation in connection with
obtaining or attempting to obtain certification, or in performing the
duties and responsibilities specified in this section;
(B) Commission of embezzlement, theft, forgery, bribery,
falsification or destruction of records, making false statements, or
receiving stolen property;
(C) Commission of any other offense indicating a lack of integrity
or honesty that seriously and directly affects the fitness of catch
monitors.
(3) Issuance of IAD. Upon determination that decertification is
warranted under Sec. 660.17(c) or (e), the decertification official
will issue a written IAD. The IAD will identify the specific reasons
for the action taken. Decertification is effective 30 calendar days
after the date on the IAD, unless there is an appeal.
(4) Appeals. A certified catch monitor who receives an IAD that
suspends or revokes his or her catch monitor certification may appeal
the determination within 30 calendar days after the date on the IAD to
the Office of Administrative Appeals pursuant to Sec. 679.43.
0
12. In Sec. 660.25, paragraphs (b)(1)(i)(A) and (B) are removed;
paragraph (b)(4)(i)(F) is added; the heading to paragraph (b)(4) and
paragraphs (b)(4)(iv)(A), (b)(4)(v)(A) through (C), the heading to
paragraph (b)(4)(vi), and paragraphs (b)(4)(vi)(A), (b)(4)(vi)(C), and
(g)(4) are revised; and paragraph (e) is added to read as follows:
Sec. 660.25 Permits.
* * * * *
(b) * * *
(4) Limited entry permit actions--renewal, combination, stacking,
change of permit ownership or permit holdership, and change in vessel
registration--
(i) * * *
(F) A limited entry permit will not be renewed until a complete
economic data collection form is submitted as required under Sec.
660.113(b), (c) and (d), subpart D. The permit renewal will be marked
incomplete until the required information is submitted.
* * * * *
(iv) Changes in permit ownership and permit holder--(A) General.
The permit owner may convey the limited entry permit to a different
person. The new permit owner will not be authorized to use the permit
until the change in permit ownership has been registered with and
approved by the SFD. The SFD will not approve a change in permit
ownership for a limited entry permit with a sablefish endorsement that
does not meet the ownership requirements for such permit described at
paragraph (b)(3)(iv)(C) of this section. The SFD will not approve a
change in permit ownership for a limited entry permit with an MS/CV
endorsement or an MS permit that does not meet the ownership
requirements for such permit described at Sec. 660.150(g)(3), subpart
D, and Sec. 660.150(f)(3), subpart D, respectively. Change in permit
owner and/or permit holder applications must be submitted to SFD with
the appropriate documentation described at paragraph (b)(4)(vii) of
this section.
(1) During the initial issuance application period for the trawl
rationalization program, NMFS will not review or approve any request
for a change in limited entry trawl permit owner, as specified at Sec.
660.140(d)(8)(viii) for QS permit applicants, at Sec.
660.150(g)(6)(vii) for MS/CV endorsement applicants, and at Sec.
660.160(d)(7)(vii) for C/P endorsement applicants. The initial issuance
application period for the trawl rationalization program will begin on
either November 1, 2010, or the date upon which the application is
received by NMFS, whichever occurs first.
(2) [Reserved]
* * * * *
(v) Changes in vessel registration of limited entry permits and
gear endorsements--(A) General. A permit may not be used with any
vessel other than the vessel registered to that permit. For purposes of
this section, a permit change in vessel registration occurs when,
through SFD, a permit owner registers a limited entry permit for use
with a new vessel. Permit change in vessel registration applications
must be submitted to SFD with the appropriate documentation described
at paragraph (b)(4)(vii) of this section. Upon receipt of a complete
application, and following review and approval of the application, the
SFD will reissue the permit registered to the new vessel. Applications
to change vessel registration on limited entry permits with sablefish
endorsements will not be approved until SFD has received complete
documentation of permit ownership as described at paragraph
(b)(3)(iv)(C)(4) and as required under paragraph (b)(4)(vii) of this
section. Applications to change vessel registration on limited entry
permits with trawl endorsements or MS permits will not be approved
until SFD has received complete EDC forms as required under Sec.
660.114, subpart D.
(B) Application. A complete application must be submitted to SFD in
order for SFD to review and approve a change in vessel registration. At
a minimum, a permit owner seeking to change vessel registration of a
limited entry permit shall submit to SFD a signed application form and
his/her current limited entry permit before the first day of the
cumulative limit period in which they wish to fish. If a permit owner
provides a signed application and current limited entry permit after
the first day of a cumulative limit period, the permit will not be
effective until the succeeding cumulative limit period. SFD will not
approve a change in vessel registration until it receives a complete
application, the existing permit, a current copy of the USCG 1270, and
other required documentation.
(C) Effective date. Changes in vessel registration on permits will
take effect no sooner than the first day of the next major limited
entry cumulative limit period following the date that SFD receives the
signed permit change in vessel registration form and the original
limited entry permit, except that changes in vessel registration on MS
permits and C/P-endorsed permits will take effect immediately upon
reissuance to the new vessel, and a change in vessel registration on
MS/CV-endorsed permits will take effect immediately upon reissuance to
the new vessel only on the second transfer for the year. No change in
vessel registration is effective until the limited entry permit has
been reissued as registered with the new vessel.
* * * * *
(vi) Restriction on frequency of changes in vessel registration--
(A) General. A permit owner may designate the vessel registration for a
permit as ``unidentified,'' meaning that no vessel has been identified
as registered for use with that permit. No vessel is authorized to use
a permit with the vessel registration designated as ``unidentified.'' A
vessel owner who removes a permit from his vessel and registers that
permit as ``unidentified'' is not exempt from VMS requirements at
[[Page 78382]]
Sec. 660.14, subpart C unless specifically authorized by that section.
When a permit owner requests that the permit's vessel registration be
designated as ``unidentified,'' the transaction is not considered a
change in vessel registration for purposes of this section. Any
subsequent request by a permit owner to change from the
``unidentified'' status of the permit in order to register the permit
with a specific vessel will be considered a change in vessel
registration and subject to the restriction on frequency and timing of
changes in vessel registration.
* * * * *
(C) Limited entry MS permits and limited entry permits with an MS/
CV or a C/P endorsement. Limited entry MS permits and limited entry
permits with an MS/CV or a C/P endorsement may be registered to another
vessel up to two times during the fishing season as long as the second
change in vessel registration is back to the original vessel. The
original vessel is either the vessel registered to the permit as of
January 1, or if no vessel is registered to the permit as of January 1,
the original vessel is the first vessel to which the permit is
registered after January 1. After the original vessel has been
established, the first change in vessel registration would be to
another vessel, but any second change in vessel registration must be
back to the original vessel. For an MS/CV-endorsed permit on the second
change in vessel registration back to the original vessel, that vessel
must be used to fish exclusively in the MS Coop Program described Sec.
660.150, and declare in to the limited entry mid water trawl, Pacific
whiting mothership sector as specified at Sec. 660.13(d)(5)(iv).
* * * * *
(e) Coop permit--(1) MS coop permit. An MS coop permit conveys a
conditional privilege to an eligible coop entity to receive and manage
a coop's allocation of designated species and species groups. An MS
coop permit is not a limited entry permit. The provisions for the MS
coop permit, including eligibility, annual registration, fees, and
appeals are described in the MS Coop Program at Sec. 660.150, subpart
D.
(2) C/P coop permit. A C/P coop permit conveys a conditional
privilege to an eligible coop entity to receive and manage a coop's
allocation of designated species and species groups. A C/P coop permit
is not a limited entry permit. The provisions for the C/P coop permit,
including eligibility, annual registration, fees, and appeals are
described in the C/P Coop Program at Sec. 660.160, subpart D.
* * * * *
(g) * * *
(4) Timing of appeals. (i) For permit actions related to the
application and initial issuance process for QS permits, MS permits,
MS/CV endorsements, and C/P endorsements for the trawl rationalization
program listed in subpart D of part 660, if an applicant appeals an
IAD, the appeal must be postmarked, faxed, or hand delivered to NMFS no
later than 60 calendar days after the date on the IAD. If the applicant
does not appeal the IAD within 60 calendar days, the IAD becomes the
final decision of the Regional Administrator acting on behalf of the
Secretary of Commerce.
(ii) For all other permit actions, if an applicant appeals an IAD,
the appeal must be postmarked, faxed, or hand delivered to NMFS no
later than 30 calendar days after the date on the IAD. If the applicant
does not appeal the IAD within 30 calendar days, the IAD becomes the
final decision of the Regional Administrator acting on behalf of the
Secretary of Commerce.
(iii) The time period to submit an appeal begins with the date on
the IAD. If the last day of the time period is a Saturday, Sunday, or
Federal holiday, the time period will extend to the close of business
on the next business day.
* * * * *
Sec. 660.26 [Removed]]
0
13. Section 660.26 is removed.]
0
14. In Sec. 660.55, paragraph (i)(2) is revised to read as follows:
Sec. 660.55 Allocations.
* * * * *
(i) * * *
(2) The commercial harvest guideline for Pacific whiting is
allocated among three sectors, as follows: 34 percent for the C/P Coop
Program; 24 percent for the MS Coop Program; and 42 percent for the
Shore based IFQ Program. No more than 5 percent of the Shore based IFQ
Program allocation may be taken and retained south of 42[deg] N. lat.
before the start of the primary Pacific whiting season north of 42[deg]
N. lat. Specific sector allocations for a given calendar year are found
in Tables 1a and 2a of this subpart. Set asides for other species for
the at-sea whiting fishery for a given calendar year are found in
Tables 1d and 2d of this subpart.
* * * * *]
0
15. In Sec. 660.60, paragraph (d)(1), paragraph (h)(2), and paragraph
(h)(5)(ii) are revised; and paragraphs (h)(5)(iii) and (h)(5)(iv) are
removed to read as follows:
Sec. 660.60 Specifications and management measures.
* * * * *
(d) * * *
(1) Automatic actions are used in the Pacific whiting fishery to:
(i) Close an at-sea sector of the fishery when that sector's
Pacific whiting allocation is reached, or is projected to be reached;
(ii) Close all at-sea sectors or a single sector of the fishery
when a non-whiting groundfish species with allocations is reached or
projected to be reached;
(iii) Reapportion unused allocations of non-whiting groundfish
species from one at-sea sector of the Pacific whiting fishery to
another.
(iv) Implement the Ocean Salmon Conservation Zone, described at
Sec. 660.131(c)(3), subpart D, when NMFS projects the Pacific whiting
fishery may take in excess of 11,000 Chinook within a calendar year.
(v) Implement Pacific Whiting Bycatch Reduction Areas, described at
Sec. 660.131(c)(4) Subpart D, when NMFS projects a sector-specific
bycatch limit will be reached before the sector's whiting allocation.
* * * * *
(h) * * *
(2) Landing. As stated at Sec. 660.11, subpart C (in the
definition of ``Landing''), once the offloading of any species begins,
all fish aboard the vessel are counted as part of the landing and must
be reported as such. All fish from an IFQ landing must be offloaded
from the vessel before a new fishing trip begins. Transfer of fish at
sea is prohibited under Sec. 660.12, subpart C, unless a vessel is
participating in the primary whiting fishery as part of the mothership
or catcher/processor sectors, as described at Sec. 660.131(a), subpart
D. Catcher vessels in the mothership sector must transfer all catch
from a haul to the same vessel registered to an MS permit prior to the
gear being set for a subsequent haul. Catch may not be transferred to a
tender vessel.
* * * * *
(5) * * *
(ii) Weight limits and conversions. To determine the round weight,
multiply the processed weight times the conversion factor. Federal
commercial groundfish regulations do not supersede more restrictive
state commercial groundfish regulations, including landings
requirements regarding groundfish species or the condition in which
they may be landed.
(A) Limited entry fixed gear or open access fisheries. The weight
limit conversion factor established by the state where the fish is or
will be landed
[[Page 78383]]
will be used to convert the processed weight to round weight for
purposes of applying the trip limit or other allocation. Weight
conversions provided herein are those conversions currently in use by
the States of Washington, Oregon, and California and may be subject to
change by those states. Fishery participants should contact fishery
enforcement officials in the state where the fish will be landed to
determine that state's official conversion factor.
(1) Sablefish. The following conversion applies to both the limited
entry fixed gear and open access fisheries when trip limits are in
effect for those fisheries. For headed and gutted (eviscerated)
sablefish the weight conversion factor is 1.6 (multiply the headed and
gutted weight by 1.6 to determine the round weight).
(2) Lingcod. The following conversions apply in both limited entry
fixed gear and open access fisheries.
(i) North of 42[deg] N. lat., for lingcod with the head removed,
the minimum size limit is 18 inches (46 cm), which corresponds to 22
inches (56 cm) total length for whole fish.
(ii) South of 42[deg] N. lat., for lingcod with the head removed,
the minimum size limit is 19.5 inches (49.5 cm), which corresponds to
24 inches (61 cm) total length for whole fish.
(iii) The weight conversion factor for headed and gutted lingcod is
1.5. The conversion factor for lingcod that has only been gutted with
the head on is 1.1.
(B) Shorebased IFQ Program. For vessels landing sorted catch, the
weight conversions for purposes of applying QP are provided below.
(1) Sablefish. The weight conversion factor for headed and gutted
(eviscerated) sablefish is 1.6.
(2) Lingcod. The following conversions apply:
(i)The minimum size limit lingcod North of 42[deg] N. lat., with
the head removed, is 18 inches (46 cm), which corresponds to 22 inches
(56 cm) total length for whole fish.
(ii) The minimum size limit for lingcod South of 42[deg] N. lat.,
with the head removed, is 19.5 inches (49.5 cm), which corresponds to
24 inches (61 cm) total length for whole fish.
(iii) The weight conversion factor for headed and gutted
(eviscerated) lingcod is 1.5; for lingcod that has only been gutted
with the head on, the weight conversion factor is 1.1.
(3) Pacific whiting. For headed and gutted Pacific whiting (head
removed just in front of the collar bone and viscera removed,) the
weight conversion factor is 1.56; and for headed and gutted Pacific
whiting with the tail removed the weight conversion factor is 2.0.
(4) Rockfish (including thornyheads), except POP. For headed and
gutted (eviscerated), the weight conversion factor is 1.75; for headed
and gutted, western cut (head removed just in front of the collar bone
and viscera removed,) the weight conversion factor is 1.66; for headed
and gutted, eastern cut (head removed just behind the collar bone and
viscera removed,) the weight conversion factor is 2.0.
(5) Pacific ocean perch (POP). For headed and gutted (eviscerated),
the weight conversion factor is 1.6.
(6) Pacific cod. For headed and gutted (eviscerated), the weight
conversion factor is 1.58.
(7) Dover sole, English sole, and ``other flatfish''. For headed
and gutted (eviscerated), the weight conversion factor is 1.53.
(8) Petrale sole. For headed and gutted (eviscerated), the weight
conversion factor is 1.51.
(9) Arrowtooth flounder. For headed and gutted (eviscerated), the
weight conversion factor is 1.35.
(10) Starry flounder. For headed and gutted (eviscerated), the
weight conversion factor is 1.49.
* * * * *]
0
16. Section 660.100 is revised to read as follows:
Sec. 660.100 Purpose and scope.
This subpart covers the Pacific coast groundfish limited entry
trawl fishery. Under the trawl rationalization program, the limited
entry trawl fishery consists of the Shorebased IFQ Program, the MS Coop
Program, and the C/P Coop Program. Nothing in these regulations shall
be construed to modify, impair, or supersede the operation of any of
the antitrust laws. The trawl rationalization program creates limited
access privileges. These limited access privileges, including the QS or
IBQ, QP or IBQ pounds, and catch history assignments, may be revoked,
limited or modified at any time in accordance with the MSA--and do not
create any right of compensation to the holder of the limited access
privilege if it is revoked, limited, or modified. The trawl
rationalization program does not create any right, title, or interest
in or to any fish before the fish is harvested by the holder and shall
be considered a grant of permission to the holder of the limited access
privilege to engage in activities permitted by the trawl
rationalization program.]
0
17. In Sec. 660.111, the following definitions are removed: ``Pacific
whiting shoreside first receivers'', ``Pacific whiting shoreside or
shore-based fishery'', ``Pacific whiting shoreside vessel,'' and
``Vessel limits''; the definition of ``Pacific whiting IFQ fishery'' is
revised; and new definitions are added in alphabetical order for:
``Accumulation limits,'' ``Charterer,'' ``Complete economic data
collection (EDC) form,'' ``IFQ trip'', ``Lessee,'' and ``Pacific
whiting IFQ trip''.
Sec. 660.111 Trawl fishery--definitions.
* * * * *
Accumulation limits mean the maximum extent of permissible
ownership, control or use of a privilege within the trawl
rationalization program, and include the following:
(1) Shorebased IFQ Program. (i) Control limits means the maximum
amount of QS or IBQ that a person may own or control, as described at
Sec. 660.140(d)(4).
(ii) Vessel limits means the maximum amount of QP a vessel can
hold, acquire, and/or use during a calendar year, and specify the
maximum amount of QP that may be registered to a single vessel during
the year (QP Vessel Limit) and, for some species, the maximum amount of
unused QP registered to a vessel account at any one time (Unused QP
Vessel Limit), as described at Sec. 660.140(e)(4).
(2) MS Coop Program. (i) MS permit usage limit means the maximum
amount of the annual mothership sector Pacific whiting allocation that
a person owning an MS permit may cumulatively process, no more than 45
percent, as described at Sec. 660.150(f)(3)(i).
(ii) MS/CV permit ownership limit means the maximum amount of catch
history assignment that a person may own, no more than 20 percent of
the MS sector's allocation of Pacific whiting, as described at Sec.
660.150(g)(3)(i).
(iii) Catcher vessel usage limit means the maximum amount of the
annual mothership sector Pacific whiting allocation that a vessel may
catch, no more than 30 percent, as described at Sec.
660.150(g)(3)(ii).
* * * * *
Charterer means, for the purpose of economic data collection
program, a person, other than the owner of the vessel, who: entered in
to any agreement or commitment by which the possession or services of
the vessel are secured for a period of time for the purposes of
commercially harvesting or processing fish. A long-term or exclusive
contract for the sale of all or a portion of the vessel's catch or
processed products is not considered a charter.
* * * * *
Complete economic data collection (EDC) form means that a response
is
[[Page 78384]]
supplied for each question, sub-question, and answer-table cell. If
particular question or sub-question is not applicable, ``NA'', must be
entered in the appropriate space on the form. The form must also be
signed and dated to certify that the information is true and complete
to the best of the signatory's knowledge.
* * * * *
IFQ trip means a trip in which the vessel has a valid fishing
declaration for any of the following: Limited entry midwater trawl,
non-whiting shorebased IFQ; Limited entry midwater trawl, Pacific
whiting shorebased IFQ; Limited entry bottom trawl, shorebased IFQ, not
including demersal trawl; Limited entry demersal trawl, shorebased IFQ;
or Limited entry groundfish non-trawl, shorebased IFQ.
* * * * *
Lessee means, for the purpose of economic data collection program,
a person, other than the owner of the vessel or facility, who: was
identified as the leaseholder, in a written lease, of the vessel or
facility, or paid expenses of the vessel or facility, or claimed
expenses for the vessel or facility as a business expense on a federal
income tax return, or on a state income tax return.
* * * * *
Pacific whiting IFQ fishery means the Shorebased IFQ Program
fishery composed of vessels making Pacific whiting IFQ trips pursuant
to the requirements at Sec. 660.131 during the primary whiting season
fishery dates for the Shorebased IFQ Program.
Pacific whiting IFQ trip means a trip in which a vessel registered
to a limited entry permit uses legal midwater groundfish trawl gear
with a valid declaration for limited entry midwater trawl, Pacific
whiting shorebased IFQ, as specified at Sec. 660.13(d)(5)(iv)(A)
during the dates for the Pacific whiting IFQ fishery primary season.
* * * * *]
0
18. In Sec. 660.112:
0
a. Paragraph (f) is removed;
0
b. Paragraph (a)(2) is added;
0
c. Paragraph (a)(3)(iii) is added;
0
d. Paragraph (a)(4) is redesignated as paragraph (a)(5), and a new
paragraph (a)(4) is added; and
0
e. Paragraphs (b) through (e) are added to read as follows:
Sec. 660.112 Trawl fishery--prohibitions.
* * * * *
(a) * * *
(2) Sorting. Fail to sort catch consistent with the requirements
specified at Sec. 660.130(d).
* * * * *
(3) * * *
(iii) Failure to submit a complete EDC form to NMFS as required by
Sec. 660.113.
* * * * *
(4) Observers.--(i) Fish (including processing, as defined at Sec.
600.10 of this chapter) in the Shorebased IFQ Program, the MS Coop
Program, or the C/P Coop Program if NMFS determines the vessel is
unsafe for an observer.
(ii) Fish in the Shorebased IFQ Program, the MS Coop Program, or
the C/P Coop Program without observer coverage.
* * * * *
(b) Shorebased IFQ Program--(1) General. (i) Own or control by any
means whatsoever an amount of QS or IBQ that exceeds the Shorebased IFQ
Program accumulation limits.
(ii) Fish in the Shorebased IFQ Program with a vessel that does not
have a valid vessel account or that has a vessel account with a deficit
(negative balance) for any species/species group.
(iii) Have any IFQ species/species group catch (landings and
discards) from an IFQ trip not covered by QP for greater than 30 days
from the date the deficit (negative balance) from that trip is
documented, unless the deficit is within the limits of the carryover
provision specified at Sec. 660.140(e)(5), subpart D, in which case
the vessel has 30 days after the QP for the following year are issued
to eliminate the deficit.
(iv) Transfer the limited entry trawl endorsed permit to another
vessel or sell the limited entry trawl endorsed permit to another owner
if the vessel registered to the permit has an overage (catch not
covered by QP), until the overage is covered, regardless of the amount
of the overage.
(v) Use QP by vessels not registered to a limited entry trawl
permit with a valid vessel account.
(vi) Use QP in an area or for species/species groups other than
that for which it is designated.
(vii) Fish in more than one IFQ management area, specified at Sec.
660.140(c)(2), on the same trip.
(viii) Fish on a Pacific whiting IFQ trip with a gear other than
legal midwater groundfish trawl gear.
(ix) Fish on a Pacific whiting IFQ trip without a valid declaration
for limited entry midwater trawl, Pacific whiting shorebased IFQ, as
specified at Sec. 660.13(d)(5)(iv)(A), subpart C.
(x) Use midwater trawl gear to fish for Pacific whiting within an
RCA outside the Pacific whiting IFQ fishery primary season as specified
at Sec. 660.131(b)(2)(iii).
(xi) Bring a haul on board before all catch from the previous haul
has been stowed.
(xii) Process groundfish at-sea (``at-sea processing'') by vessels
in the Shorebased IFQ Program regardless of the type of gear used, with
the following exceptions:
(A) A vessel that is 75-ft (23-m) or less LOA that harvests whiting
and, in addition to heading and gutting, cuts the tail off and freezes
the whiting, is not considered to be a catcher/processor nor is it
considered to be processing fish, and
(B) A vessel that has a sablefish at-sea processing exemption,
defined at Sec. 660.25(b)(3)(iv)(D), subpart C may process sablefish
at-sea.
(xiii) Retain any IFQ species/species group onboard a vessel unless
the vessel has observer coverage during the entire trip and until all
IFQ species from the trip are offloaded. A vessel may deliver IFQ
species/species groups to more than one IFQ first receiver, but must
maintain observer coverage until all IFQ species from the trip are
offloaded. Once transfer of fish begins, all fish aboard the vessel are
counted as part of the same landing as defined at Sec. 660.11.
(xiv) Discard IFQ species/species group at sea unless the observer
has documented or estimated the discards.
(xv) Begin a new fishing trip until all fish from an IFQ landing
have been offloaded from the vessel.
(2) IFQ first receivers. (i) Accept an IFQ landing without a valid
first receiver site license.
(ii) Fail to sort fish received from a IFQ landing prior to first
weighing after offloading as specified at Sec. 660.130(d)(2) for the
Shorebased IFQ Program, except the vessels declared in to the limited
entry midwater trawl, Pacific whiting shorebased IFQ at Sec.
660.13(d)(5)(iv)(A), subpart C may weigh catch on a bulk scale before
sorting as described at Sec. 660.140(j)(2).
(iii) Process, sell, or discard any groundfish received from an IFQ
landing that has not been weighed on a scale that is in compliance with
requirements at Sec. 660.15, subpart C.
(iv) Transport catch away from the point of landing before that
catch has been sorted and weighed by federal groundfish species or
species group, and recorded for submission on an electronic fish
ticket. (If fish will be transported to a different location for
processing, all sorting and weighing to federal groundfish species
groups must occur before transporting the catch away from the point of
landing).
(v) Receive an IFQ landing without coverage by a catch monitor when
one is required by regulations, unless NMFS has granted a written
waiver exempting the IFQ first receiver from the catch monitor coverage
requirements. On a
[[Page 78385]]
case-by-case basis, a temporary written waiver may be granted by the
Assistant Regional Administrator or designee if he/she determines that
the failure to obtain coverage of a catch monitor was due to
circumstances beyond the control of the first receiver. The duration of
the waiver will be determined on a case-by-case basis.
(vi) Receive an IFQ landing without a NMFS-accepted catch
monitoring plan or not in accordance with their NMFS-accepted catch
monitoring plan.
(vii) Mix catch from more than one IFQ landing prior to the catch
being sorted and weighed.
(viii) Fail to comply with the IFQ first receiver responsibilities
specified at Sec. 660.140(b)(2).
(ix) Process, sell, or discard any groundfish received from an IFQ
landing that has not been accounted for on an electronic fish ticket
with the identification number for the vessel that delivered the fish.
(x) Fail to submit, or submit incomplete or inaccurate information
on any report, application, or statement required under this part.
(c) MS and C/P Coop Programs. (1) Process Pacific whiting in the
fishery management area during times or in areas where at-sea
processing is prohibited for the sector in which the vessel fishes,
unless:
(i) The fish are received from a member of a Pacific Coast treaty
Indian tribe fishing under Sec. 660.50, subpart C;
(ii) The fish are processed by a waste-processing vessel according
to Sec. 660.131(h), subpart D; or
(iii) The vessel is completing processing of Pacific whiting taken
on board prior to the close of that vessel's primary season.
(2) During times or in areas where at-sea processing is prohibited,
take and retain or receive Pacific whiting, except as cargo or fish
waste, on a vessel in the fishery management area that already has
processed Pacific whiting on board. An exception to this prohibition is
provided if the fish are received within the tribal U&A from a member
of a Pacific Coast treaty Indian tribe fishing under Sec. 660.50,
subpart C.
(3) Operate as a waste-processing vessel within 48 hours of a
primary season for Pacific whiting in which that vessel operates as a
catcher/processor or mothership, according to Sec. 660.131(h), subpart
D.
(4) On a vessel used to fish for Pacific whiting, fail to keep the
trawl doors on board the vessel, when taking and retention is
prohibited under Sec. 660.131(b), subpart D.
(5) Sort or discard any portion of the catch taken by a catcher
vessel in the mothership sector before the catcher vessel observer
completes sampling of the catch, with the exception of minor amounts of
catch that are lost when the codend is separated from the net and
prepared for transfer.
(d) MS Coop Program (coop and non-coop fisheries). (1) Catch, take,
or harvest fish in the mothership non-coop fishery with a vessel that
is not registered to a current MS/CV-endorsed limited entry trawl
permit.
(2) Receive catch, process catch, or otherwise fish as a mothership
vessel if it is not registered to a current MS permit.
(3) Fish with a vessel in the mothership sector, if that vessel was
used to fish in the C/P fishery in the same calendar year.
(4) Catch, take, or harvest fish in the MS Coop Program with a
vessel that does not have a valid VMS declaration for limited entry
midwater trawl, Pacific whiting mothership sector, as specified at
Sec. 660.13(d)(5)(iv)(A), subpart C.
(5) Transfer catch to a vessel that is not registered to an MS
permit. (i.e. a tender vessel).
(6) Use a vessel registered to a limited entry permit with a trawl
endorsement (with or without an MS/CV endorsement) to catch more than
30 percent of the Pacific whiting allocation for the mothership sector.
(7) Process more than 45 percent of the annual mothership sector's
Pacific whiting allocation.
(8) Catch, take, or harvest fish before all catch from any previous
haul has been transferred to a single vessel registered to an MS
permit.
(9) Transfer catch from a single haul to more than one permitted MS
vessel.
(10) Catch, take, or harvest fish for a MS coop with a vessel that
has not been identified by the coop as a vessel authorized to harvest
that coop's allocation.
(11) Catch, take, or harvest fish in the non-coop fishery with a
vessel registered to an MS/CV-endorsed permit in the same year the MS/
CV-endorsed permit was registered to a vessel that fished as a member
of a coop in the MS Coop Program.
(12) Sort or discard any portion of the catch taken by a catcher
vessel in the mothership sector before the catcher vessel observer
completes sampling of the catch, except for minor operational amounts
of catch lost by a catcher vessel provided the observer has accounted
for the discard (i.e., a maximized retention fishery).
(13) Mix catch from more than one haul before the observer
completes their collection of catch for sampling.
(14) Take deliveries without a valid scale inspection report signed
by an authorized scale inspector on board the vessel.
(15) Sort, process, or discard catch delivered to a mothership
before the catch is weighed on a scale that meets the requirements of
Sec. 660.15(b), including the daily test requirements.
(e) C/P Coop Program. (1) Fish with a vessel in the catcher/
processor sector that is not registered to a current C/P-endorsed
limited entry trawl permit.
(2) Fish as a catcher/processor vessel in the same year that the
vessel fishes as a catcher vessel in the mothership fishery.
(3) Fish as a catcher/processor vessel in the same year that the
vessel operates as a mothership in the mothership fishery.
(4) Fish in the C/P Coop Program with a vessel that does not have a
valid VMS declaration for limited entry midwater trawl, Pacific whiting
catcher/processor sector, as specified at Sec. 660.13(d)(5)(iv)(A).
(5) Fish in the C/P Coop Program with a vessel that is not
identified in the C/P coop agreement.
(6) Fish in the C/P Coop Program without a valid scale inspection
report signed by an authorized scale inspector on board the vessel.
(7) Sort, process, or discard catch before the catch is weighed on
a scale that meets the requirements of Sec. 660.15(b), including the
daily test requirements.
(8) Discard any catch from the codend or net (i.e. bleeding) before
the observer has completed their data collection.
(9) Mix catch from more than one haul before the observer completes
their collection of catch for sampling.]
0
19. In Sec. 660.113, paragraphs (a) through (c) are added, and
paragraph (d) is revised, to read as follows:
Sec. 660.113 Trawl fishery--recordkeeping and reporting.
* * * * *
(a) General requirements. (1) All records or reports required by
this paragraph (a) must: be maintained in English, be accurate, be
legible, be based on local time, and be submitted in a timely manner.
(2) Retention of Records. All records used in the preparation of
records or reports specified in this section or corrections to these
reports must be maintained for a period of not less than three years
after the date of landing and must be immediately available upon
request for inspection by NMFS or authorized officers or others as
specifically authorized by NMFS. Records used in the preparation of
[[Page 78386]]
required reports specified in this section or corrections to these
reports that are required to be kept include, but are not limited to,
any written, recorded, graphic, electronic, or digital materials as
well as other information stored in or accessible through a computer or
other information retrieval system; worksheets; weight slips;
preliminary, interim, and final tally sheets; receipts; checks;
ledgers; notebooks; diaries; spreadsheets; diagrams; graphs; charts;
tapes; disks; or computer printouts. All relevant records used in the
preparation of electronic fish ticket reports or corrections to these
reports must be maintained for a period of not less than three years
after the date and must be immediately available upon request for
inspection by NMFS or authorized officers or others as specifically
authorized by NMFS.
(b) Shorebased IFQ Program. (1) Economic data collection (EDC)
program. The following persons are required to submit an EDC form as
specified at Sec. 660.114:
(i) All owners, lessees, and charterers of a catcher vessel
registered to a limited entry trawl endorsed permit.
(ii) All owners of a first receiver site license.
(iii) All owners and lessees of a shorebased processor.
(2) Electronic vessel logbook. [Reserved]
(3) Gear switching declaration. Any person with a limited entry
trawl permit participating in the Shorebased IFQ Program using
groundfish non-trawl gear (i.e., gear switching) must submit a valid
gear declaration reporting such participation as specified in Sec.
660.13(d)(5)(iv)(A).
(4) Electronic fish ticket. The IFQ first receiver is responsible
for compliance with all reporting requirements described in this
paragraph.
(i) Required information. All IFQ first receivers must provide the
following types of information: Date of landing, vessel that made the
delivery, vessel account number, gear type used, catch area, first
receiver, actual weights of species landed listed by species or species
group including species with no value, condition landed, number of
salmon by species, number of Pacific halibut, and any other information
deemed necessary by the Regional Administrator as specified on the
appropriate electronic fish ticket form.
(ii) Submissions. The IFQ first receiver must:
(A) Include as part of each electronic fish ticket submission, the
actual scale weight for each groundfish species as specified by
requirements at Sec. 660.15(c) and the vessel identification number.
(B) Use for the purpose of submitting electronic fish tickets, and
maintain in good working order, computer equipment as specified at
Sec. 660.15(d)(1);
(C) Install, use, and update as necessary, any NMFS-approved
software described at Sec. 660.15(d)(3);
(D) Submit a completed electronic fish ticket for every IFQ landing
no later than 24 hours after the date the fish are received, unless a
waiver of this requirement has been granted under provisions specified
at paragraph (b)(4)(iv) of this section.
(iii) Revising a submission. In the event that a data error is
found, electronic fish ticket submissions may be revised by
resubmitting the revised form. Electronic fish tickets are to be used
for the submission of final data. Preliminary data, including estimates
of fish weights or species composition, shall not be submitted on
electronic fish tickets.
(iv) Waivers for submission. On a case-by-case basis, a temporary
written waiver of the requirement to submit electronic fish tickets may
be granted by the Assistant Regional Administrator or designee if he/
she determines that circumstances beyond the control of a first
receiver would result in inadequate data submissions using the
electronic fish ticket system. The duration of the waiver will be
determined on a case-by-case basis.
(v) Reporting requirements when a temporary waiver has been
granted. IFQ First receivers that have been granted a temporary waiver
from the requirement to submit electronic fish tickets must submit on
paper the same data as is required on electronic fish tickets within 24
hours of the date received during the period that the waiver is in
effect. Paper fish tickets must be sent by facsimile to NMFS, Northwest
Region, Sustainable Fisheries Division, 206-526- 6736 or by delivering
it in person to 7600 Sand Point Way, NE., Seattle, WA 98115. The
requirements for submissions of paper tickets in this paragraph are
separate from, and in addition to existing state requirements for
landing receipts or fish receiving tickets.
(c) MS Coop Program (coop and non-coop fisheries)--(1) Economic
data collection (EDC) program. The following persons are required to
submit a complete economic data collection form as specified at Sec.
660.114.
(i) All owners, lessees, and charterers of a catcher vessel
registered to a limited entry trawl MS/CV-endorsed permit.
(ii) All owners, lessees, and charterers of a vessel registered to
an MS permit.
(2) NMFS-approved scales--(i) Scale test report form. Mothership
vessel operators are responsible for conducting scale tests and for
recording the scale test information on the at-sea scale test report
form as specified at Sec. 660.15(b), subpart C, for mothership
vessels.
(ii) Printed scale reports. Specific requirements pertaining to
printed scale reports and scale weight print outs are specified at
Sec. 660.15(b), subpart C, for mothership vessels.
(iii) Retention of scale records and reports. The vessel must
maintain the test report form on board until the end of the fishing
year during which the tests were conducted, and make the report forms
available to observers, NMFS staff, or authorized officers. In
addition, the vessel owner must retain the scale test report forms for
3 years after the end of the fishing year during which the tests were
performed. All scale test report forms must be signed by the vessel
operator.
(3) Annual coop report--(i) The designated coop manager for the
mothership coop must submit an annual report to the Pacific Fishery
Management Council for their November meeting each year. The annual
coop report will contain information about the current year's fishery,
including:
(A) The mothership sector's annual allocation of Pacific whiting
and the permitted mothership coop allocation;
(B) The mothership coop's actual retained and discarded catch of
Pacific whiting, salmon, Pacific halibut, rockfish, groundfish, and
other species on a vessel-by-vessel basis;
(C) A description of the method used by the mothership coop to
monitor performance of coop vessels that participated in the fishery;
(D) A description of any actions taken by the mothership coop in
response to any vessels that exceed their allowed catch and bycatch;
and
(E) Plans for the next year's mothership coop fishery, including
the companies participating in the cooperative, the harvest agreement,
and catch monitoring and reporting requirements.
(ii) The annual coop report submitted to the Pacific Fishery
Management Council must be finalized to capture any additional fishing
activity that year and submitted to NMFS by March 31 of the following
year before a coop permit is issued for the following year.
(4) Cease fishing report. As specified at Sec. 660.150(c)(4)(ii),
the designated coop manager, or in the case of an inter-coop agreement,
all of the designated coop managers must submit a cease fishing report
to NMFS indicating that harvesting has concluded for the year.
[[Page 78387]]
(d) C/P Coop Program--(1) Economic data collection (EDC) program.
All owners, lessees, and charterers of a vessel registered to a C/P-
endorsed limited entry trawl permit are required to submit a complete
economic data collection form as specified at Sec. 660.114.
(2) NMFS-approved scales--(i) Scale test report form. Catcher/
processor vessel operators are responsible for conducting scale tests
and for recording the scale test information on the at-sea scale test
report form as specified at Sec. 660.15(b), subpart C, for C/P
vessels.
(ii) Printed scale reports. Specific requirements pertaining to
printed scale reports and scale weight print outs are specified at
Sec. 660.15(b), subpart C, for C/P vessels.
(iii) Retention of scale records and reports. The vessel must
maintain the test report form on board until the end of the fishing
year during which the tests were conducted, and make the report forms
available to observers, NMFS staff, or authorized officers. In
addition, the vessel owner must retain the scale test report forms for
3 years after the end of the fishing year during which the tests were
performed. All scale test report forms must be signed by the vessel
operator.
(3) Annual coop report--(i) The designated coop manager for the C/P
coop must submit an annual report to the Pacific Fishery Management
Council for their November meeting each year. The annual coop report
will contain information about the current year's fishery, including:
(A) The C/P sector's annual allocation of Pacific whiting;
(B) The C/P coop's actual retained and discarded catch of Pacific
whiting, salmon, Pacific halibut, rockfish, groundfish, and other
species on a vessel-by-vessel basis;
(C) A description of the method used by the C/P coop to monitor
performance of cooperative vessels that participated in the fishery;
(D) A description of any actions taken by the C/P coop in response
to any vessels that exceed their allowed catch and bycatch; and
(E) Plans for the next year's C/P coop fishery, including the
companies participating in the cooperative, the harvest agreement, and
catch monitoring and reporting requirements.
(ii) The annual coop report submitted to the Pacific Fishery
Management Council must be finalized to capture any additional fishing
activity that year and submitted to NMFS by March 31 of the following
year before a coop permit is issued for the following year.
(4) Cease fishing report. As specified at Sec. 660.160(c)(5), the
designated coop manager must submit a cease fishing report to NMFS
indicating that harvesting has concluded for the year.
0
20. Section 660.114 is added to read as follows:
Sec. 660.114 Trawl fishery--economic data collection program.
(a) General. The economic data collection (EDC) program collects
mandatory economic data from participants in the trawl rationalization
program. NMFS requires submission of an EDC form to gather ongoing,
annual data for 2011 and beyond, as well as a onetime collection in
2011 of baseline economic data from 2009 through 2010.
(b) Economic data collection program requirements. The following
fishery participants in the limited entry groundfish trawl fisheries
are required to comply with the following EDC program requirements:
----------------------------------------------------------------------------------------------------------------
Consequence for failure to
submit (In addition to
Economic data Who is required to consequences listed below,
Fishery participant collection submit an EDC? failure to submit an EDC
may be a violation of the
MSA.)
----------------------------------------------------------------------------------------------------------------
(1) Limited entry trawl catcher (i) Baseline (2009 and All owners, lessees, (A) For permit owner, a
vessels. 2010) economic data. and charterers of a limited entry trawl permit
catcher vessel application (including MS/
registered to a CV-endorsed limited entry
limited entry trawl trawl permit) will not be
endorsed permit at considered complete until
any time in 2009 or the required EDC for that
2010. permit owner associated
with that permit is
submitted, as specified at
Sec. 660.25(b)(4)(i),
subpart C.
(B) For a vessel owner,
participation in the
groundfish fishery
(including, but not
limited to, changes in
vessel registration,
vessel account actions, or
if own QS permit, issuance
of annual QP or IBQ
pounds) will not be
authorized until the
required EDC for that
owner for that vessel is
submitted, as specified,
in part, at Sec.
660.25(b)(4)(v), subpart C
and Sec. 660.140(e),
subpart D.
(C) For a vessel lessee or
charterer, participation
in the groundfish fishery
(including, but not
limited to, issuance of
annual QP or IBQ pounds if
own QS or IBQ) will not be
authorized, until the
required EDC for their
operation of that vessel
is submitted.
[[Page 78388]]
(ii) Annual/ongoing All owners, lessees, (A) For permit owner, a
(2011 and beyond) and charterers of a limited entry trawl permit
economic data. catcher vessel application (including MS/
registered to a CV-endorsed limited entry
limited entry trawl trawl permit) will not be
endorsed permit at considered complete until
any time in 2011 and the required EDC for that
beyond. permit owner associated
with that permit is
submitted, as specified at
Sec. 660.25(b)(4)(i),
subpart C.
(B) For a vessel owner,
participation in the
groundfish fishery
(including, but not
limited to, changes in
vessel registration,
vessel account actions, or
if own QS permit, issuance
of annual QP or IBQ
pounds) will not be
authorized until the
required EDC for that
owner for that vessel is
submitted, as specified,
in part, at Sec.
660.25(b)(4)(v), subpart C
and Sec. 660.140(e),
subpart D.
(C) For a vessel lessee or
charterer, participation
in the groundfish fishery
(including, but not
limited to, issuance of
annual QP or IBQ pounds if
own QS or IBQ) will not be
authorized, until the
required EDC for their
operation of that vessel
is submitted.
(2) Motherships.................... (i) Baseline (2009 and All owners, lessees, (A) For permit owner, an MS
2010) economic data. and charterers of a permit application will
mothership vessel not be considered complete
that received whiting until the required EDC for
in 2009 or 2010 as that permit owner
recorded in NMFS' associated with that
NORPAC database. permit is submitted, as
specified at Sec.
660.25(b)(4)(i), subpart
C.
(B) For a vessel owner,
participation in the
groundfish fishery
(including, but not
limited to, changes in
vessel registration) will
not be authorized until
the required EDC for that
owner for that vessel is
submitted, as specified,
in part, at Sec.
660.25(b)(4)(v), subpart
C.
(C) For a vessel lessee or
charterer, participation
in the groundfish fishery
will not be authorized,
until the required EDC for
their operation of that
vessel is submitted.
(ii) Annual/ongoing All owners, lessees, (A) For permit owner, an MS
(2011 and beyond) and charterers of a permit application will
economic data. mothership vessel not be considered complete
registered to an MS until the required EDC for
permit at any time in that permit owner
2011 and beyond. associated with that
permit is submitted, as
specified at Sec.
660.25(b)(4)(i), subpart
C.
(B) For a vessel owner,
participation in the
groundfish fishery
(including, but not
limited to, changes in
vessel registration) will
not be authorized until
the required EDC for that
owner for that vessel is
submitted, as specified,
in part, at Sec.
660.25(b)(4)(v), subpart
C.
(C) For a vessel lessee or
charterer, participation
in the groundfish fishery
will not be authorized,
until the required EDC for
their operation of that
vessel is submitted.
(3) Catcher processors............. (i) Baseline (2009 and All owners, lessees, (A) For permit owner, a C/P-
2010) economic data. and charterers of a endorsed limited entry
catcher processor trawl permit application
vessel that harvested will not be considered
whiting in 2009 or complete until the
2010 as recorded in required EDC for that
NMFS' NORPAC database. permit owner associated
with that permit is
submitted, as specified at
Sec. 660.25(b)(4)(i),
subpart C.
(B) For a vessel owner,
participation in the
groundfish fishery
(including, but not
limited to, changes in
vessel registration) will
not be authorized until
the required EDC for that
owner for that vessel is
submitted, as specified,
in part, at Sec.
660.25(b)(4)(v), subpart
C.
(C) For a vessel lessee or
charterer, participation
in the groundfish fishery
will not be authorized,
until the required EDC for
their operation of that
vessel is submitted.
[[Page 78389]]
(ii) Annual/ongoing All owners, lessees, (A) For permit owner, a C/P-
(2011 and beyond) and charterers of a endorsed limited entry
economic data. catcher processor trawl permit application
vessel registered to will not be considered
a catcher processor complete until the
permit at any time in required EDC for that
2011 and beyond. permit owner associated
with that permit is
submitted, as specified at
Sec. 660.25(b)(4)(i),
subpart C.
(B) For a vessel owner,
participation in the
groundfish fishery
(including, but not
limited to, changes in
vessel registration) will
not be authorized until
the required EDC for that
owner for that vessel is
submitted, as specified,
in part, at Sec.
660.25(b)(4)(v), subpart
C.
(C) For a vessel lessee or
charterer, participation
in the groundfish fishery
will not be authorized,
until the required EDC for
their operation of that
vessel is submitted.
(4) First receivers/shorebased (i) Baseline (2009 and All owners and lessees A first receiver site
processors. 2010) economic data. of a shorebased license application for a
processor and all particular physical
buyers that received location for processing
groundfish or whiting and buying will not be
harvested with a considered complete until
limited entry trawl the required EDC for the
permit as listed in applying processor or
the PacFIN database buyer is submitted, as
in 2009 or 2010. specified at Sec.
660.140(f)(3), subpart D.
(ii) Annual/ongoing (A) All owners of a A first receiver site
(2011 and beyond) first receiver site license application will
economic data. license in 2011 and not be considered complete
beyond. until the required EDC for
that license owner
associated with that
license is submitted, as
specified at Sec.
660.140(f)(3), subpart D.
See paragraph
(b)(4)(ii)(A) of this
table.
(B) All owners and
lessees of a shore-
based processor (as
defined under
``processor'' at Sec.
660.11, subpart C,
for purposes of EDC)
that received round
or headed-and-gutted
IFQ species
groundfish or whiting
from a first receiver
in 2011 and beyond.
----------------------------------------------------------------------------------------------------------------
(c) Submission of the EDC form and deadline--(1) Submission of the
EDC form. The complete, certified EDC form must be submitted to ATTN:
Economic Data Collection Program (FRAM Division), NMFS, Northwest
Fisheries Science Center, 2725 Montlake Boulevard East, Seattle, WA
98112. A complete EDC form contains responses for all data fields,
which include but are not limited to costs, labor, earnings, activity
in a fishery, vessel or plant characteristics, value, quota,
operational information, location of expenditures and earnings,
ownership information and leasing information.
(2) Deadline. Complete, certified EDC forms must be mailed and
postmarked by or hand-delivered to NMFS NWFSC no later than September
1, 2011, for baseline data, and, for the annual/ongoing data collection
beginning September 1, 2012, September 1 each year for the prior year's
data.
(d) Confidentiality of information. Information received on an EDC
form will be considered confidential under applicable law and guidance.
(e) EDC audit procedures--(1) NMFS reserves the right to conduct
verification of economic data with the submitter of the form. NMFS may
employ a third party agent to conduct the audits.
(2) The submitter of the EDC form must respond to any inquiry by
NMFS or a NMFS agent within 20 days of the date of issuance of the
inquiry, unless an extension is granted by NMFS.
(3) The submitter of the form must provide copies of additional
data to facilitate verification by NMFS or NMFS' agent upon request.
The NMFS auditor may review and request copies of additional data
provided by the submitter, including but not limited to, previously
audited or reviewed financial statements, worksheets, tax returns,
invoices, receipts, and other original documents substantiating the
economic data submitted.
Sec. 660.116 [Removed]
0
21. Section 660.116 is removed.
0
22. In Sec. 660.130, paragraphs (a) and (d) are revised to read as
follows:
Sec. 660.130 Trawl fishery--management measures.
(a) General. Limited entry trawl vessels are those vessels
registered to a limited entry permit with a trawl endorsement and those
vessels registered to an MS permit. Most species taken in limited entry
trawl fisheries will be managed with quotas (see Sec. 660.140),
allocations or set-asides (see Sec. 660.150 or Sec. 660.160), or
cumulative trip limits (see trip limits in Tables 1 (North) and 1
(South) of this subpart), size limits (see Sec. 660.60 (h)(5), subpart
C), seasons (see Pacific whiting at Sec. 660.131(b), subpart D), gear
restrictions (see paragraph (b) of this section) and closed areas (see
paragraph (e) of this section and Sec. Sec. 660.70 through 660.79,
subpart C). The trawl fishery has gear requirements and harvest limits
that differ by the type of trawl gear on board and the area fished.
Groundfish
[[Page 78390]]
vessels operating south of Point Conception must adhere to CCA
restrictions (see paragraph (e)(1) of this section and Sec. 660.70,
subpart C). The trip limits in Tables 1 (North) and 1 (South) of this
subpart apply to vessels participating in the limited entry groundfish
trawl fishery and may not be exceeded. Federal commercial groundfish
regulations are not intended to supersede any more restrictive state
commercial groundfish regulations relating to federally-managed
groundfish.
* * * * *
(d) Sorting. Under Sec. 660.12(a)(8), subpart C, it is unlawful
for any person to ``fail to sort, prior to the first weighing after
offloading, those groundfish species or species groups for which there
is a trip limit, size limit, scientific sorting designation, quota,
harvest guideline, or OY, if the vessel fished or landed in an area
during a time when such trip limit, size limit, scientific sorting
designation, quota, harvest guideline, or OY applied.'' The states of
Washington, Oregon, and California may also require that vessels record
their landings as sorted on their state landing receipt.
(1) Species and areas--(i) Coastwide. Widow rockfish, canary
rockfish, darkblotched rockfish, yelloweye rockfish, shortbelly
rockfish, black rockfish, blue rockfish, minor nearshore rockfish,
minor shelf rockfish, minor slope rockfish, shortspine and longspine
thornyhead, Dover sole, arrowtooth flounder, petrale sole, starry
flounder, English sole, other flatfish, lingcod, sablefish, Pacific
cod, spiny dogfish, other fish, longnose skate, and Pacific whiting;
(ii) North of 40[deg]10' N. lat. POP, yellowtail rockfish;
(iii) South of 40[deg]10' N. lat. Minor shallow nearshore rockfish,
minor deeper nearshore rockfish, California scorpionfish, chilipepper
rockfish, bocaccio rockfish, splitnose rockfish, Pacific sanddabs,
cowcod, bronzespotted rockfish and cabezon.
(2) Sorting requirements for the Shorebased IFQ Program--(i) First
receivers. Fish landed at IFQ first receivers (including shoreside
processing facilities and buying stations that intend to transport
catch for processing elsewhere) must be sorted, prior to first weighing
after offloading from the vessel and prior to transport away from the
point of landing, except the vessels declared in to the limited entry
midwater trawl, Pacific whiting shorebased IFQ at Sec.
660.13(d)(5)(iv)(A), subpart C, may weigh catch on a bulk scale before
sorting as described at Sec. 660.140(j)(2).
(ii) Catcher vessels. All catch must be sorted to the species
groups specified in paragraph (d)(1) of this section for vessels with
limited entry permits, except those retaining all catch during a
Pacific whiting IFQ trip. The catch must not be discarded from the
vessel and the vessel must not mix catch from hauls until the observer
has sampled the catch. Prohibited species must be sorted according to
the following species groups: Dungeness crab, Pacific halibut, Chinook
salmon, other salmon. Non-groundfish species must be sorted as required
by the state of landing.
(3) Sorting requirements for the at-sea sectors of the Pacific
whiting fishery.
(i) Pacific whiting at-sea processing vessels may use an accurate
in-line conveyor or hopper type scale to derive an accurate total catch
weight prior to sorting. Immediately following weighing of the total
catch, the catch must be sorted to the species groups specified in
paragraph (d)(1) of this section and all incidental catch (groundfish
and non-groundfish species) must be accurately accounted for and the
weight of incidental catch deducted from the total catch weight to
derive the weight of target species.
(ii) Catcher vessels in the MS sector. If sorting occurs on the
catcher vessel, the catch must not be discarded from the vessel and the
vessel must not mix catch from hauls until the observer has sampled the
catch.
* * * * *
0
23. In Sec. 660.131:
0
a. Paragraphs (a) and (b), the introductory text of paragraph (c), and
paragraphs (e) and (f) are revised;
0
b. Paragraphs (g), (h), (i) and (k) are removed;
0
c. Paragraph (j) is redesignated as paragraph (g) to read as follows:
Sec. 660.131 Pacific whiting fishery management measures.
* * * * *
(a) Sectors--(1) The catcher/processor sector, or C/P Coop Program,
is composed of catcher/processors registered to a limited entry permit
with a C/P endorsement.
(2) The mothership sector, or MS Coop Program, is composed of
motherships and catcher vessels that harvest Pacific whiting for
delivery to motherships. Motherships are vessels registered to an MS
permit, and catcher vessels are vessels registered to a limited entry
permit with an MS/CV endorsement or vessels registered to a limited
entry permit without an MS/CV endorsement if the vessel is authorized
to harvest the coop's allocation.
(3) The Pacific whiting IFQ fishery is composed of vessels that
harvest Pacific whiting for delivery shoreside to IFQ first receivers
during the primary season.
(b) Pacific whiting seasons--(1) Primary seasons. The primary
seasons for the Pacific whiting fishery are:
(i) For the Shorebased IFQ Program, Pacific whiting IFQ fishery,
the period(s) of the large-scale target fishery is conducted after the
season start date;
(ii) For catcher/processors, the period(s) when catching and at-sea
processing is allowed for the catcher/processor sector (after the
season closes at-sea processing of any fish already on board the
processing vessel is allowed to continue); and
(iii) For vessels delivering to motherships, the period(s) when
catching and at-sea processing is allowed for the mothership sector
(after the season closes at-sea processing of any fish already on board
the processing vessel is allowed to continue).
(2) Different primary season start dates. North of 40[deg]30' N.
lat., different starting dates may be established for the catcher/
processor sector, the mothership sector, and in the Pacific whiting IFQ
fishery for vessels delivering to IFQ first receivers north of 42[deg]
N. lat. and vessels delivering to IFQ first receivers between 42[deg]
through 40[deg]30' N. lat.
(i) Procedures. The primary seasons for the whiting fishery north
of 40[deg]3' N. lat. generally will be established according to the
procedures of the PCGFMP for developing and implementing harvest
specifications and apportionments. The season opening dates remain in
effect unless changed, generally with the harvest specifications and
management measures.
(ii) Criteria. The start of a primary season may be changed based
on a recommendation from the Council and consideration of the following
factors, if applicable: Size of the harvest guidelines for whiting and
bycatch species; age/size structure of the whiting population; expected
harvest of bycatch and prohibited species; availability and stock
status of prohibited species; expected participation by catchers and
processors; the period between when catcher vessels make annual
processor obligations and the start of the fishery; environmental
conditions; timing of alternate or competing fisheries; industry
agreement; fishing or processing rates; and other relevant information.
(iii) Primary whiting season start dates and duration. After the
start of a primary season for a sector of the whiting fishery, the
season remains open for that sector until the sector allocation of
whiting or non-whiting groundfish (with allocations) is reached
[[Page 78391]]
or projected to be reached and the fishery season for that sector is
closed by NMFS. The starting dates for the primary seasons for the
whiting fishery are as follows:
(A) Catcher/processor sector--May 15.
(B) Mothership sector--May 15.
(C) Shorebased IFQ Program, Pacific whiting IFQ fishery.
(1) North of 42[deg] N. lat.--June 15;
(2) Between 42[deg]-40[deg]30' N. lat.--April 1; and
(3) South of 40[deg]30' N. lat.--April 15.
(3) Trip limits in the whiting fishery. The ``per trip'' limit for
whiting before the regular (primary) season for the shorebased sector
is announced in Table 1 of this subpart, and is a routine management
measure under Sec. 660.60(c). This trip limit includes any whiting
caught shoreward of 100-fm (183-m) in the Eureka, CA area. The ``per
trip'' limit for other groundfish species for the shorebased sector are
announced in Table 1 (North) and Table 1 (South) of this subpart and
apply as follows:
(i) During the groundfish cumulative limit periods both before and
after the primary whiting season, vessels may use either small and/or
large footrope gear, but are subject to the more restrictive trip
limits for those entire cumulative periods.
(ii) If, during a primary whiting season, a whiting vessel harvests
a groundfish species other than whiting for which there is a midwater
trip limit, then that vessel may also harvest up to another footrope-
specific limit for that species during any cumulative limit period that
overlaps the start or end of the primary whiting season.
(c) Closed areas. Vessels fishing in the Pacific whiting primary
seasons for the Shorebased IFQ Program, MS Coop Program, or C/P Coop
Program shall not target Pacific whiting with midwater trawl gear in
the following portions of the fishery management area:
* * * * *
(e) At-sea processing. Whiting may not be processed at sea south of
42[deg]00' N. lat. (Oregon-California border), unless by a waste-
processing vessel as authorized under paragraph (g) of this section.
(f) Time of day. Vessels fishing in the Pacific whiting primary
seasons for the Shorebased IFQ Program, MS Coop Program or C/P Coop
Program shall not target Pacific whiting with midwater trawl gear in
the fishery management area south of 42[deg]00' N. lat. between 0001
hours to one-half hour after official sunrise (local time). During this
time south of 42[deg]00'N. lat., trawl doors must be on board any
vessel used to fish for whiting and the trawl must be attached to the
trawl doors. Official sunrise is determined, to the nearest 5[deg]
lat., in The Nautical Almanac issued annually by the Nautical Almanac
Office, U.S. Naval Observatory, and available from the U.S. Government
Printing Office.
* * * * *
0
24. In Sec. 660.140:
0
a. Paragraphs (a), (d)(1), (d)(4)(i)(C), (d)(4)(iv), and (d)(8)(ix) are
revised;
0
b. The heading of paragraph (b) is revised, and text is added to
paragraph (b).
0
c. The heading of paragraph (c) and paragraph (c)(1) are revised,
paragraph (c)(2) is redesignated as paragraph (c)(3) and a new
paragraph (c)(2) is added, and the newly redesignated paragraph
(c)(3)(vi) is revised;
0
d. Paragraphs (c)(3)(vii), (d)(2), (d)(3), (d)(5), and (e) through (h)
are added; and
0
e. Paragraphs (j) through (m) are redesignated as paragraphs (i)
through (l), the headings of newly designated paragraphs (i) and (k)
are revised, and text is added to the newly redesignated paragraphs (i)
through (l) to read as follows:
Sec. 660.140 Shorebased IFQ Program.
* * * * *
(a) General. The Shorebased IFQ Program requirements in this
section will be effective beginning January 1, 2011, except for
paragraphs (d)(4), (d)(6), and (d)(8) of this section, which are
effective immediately. The Shorebased IFQ Program applies to qualified
participants in the Pacific Coast Groundfish fishery and includes a
system of transferable QS for most groundfish species or species
groups, IBQ for Pacific halibut, and trip limits or set-asides for the
remaining groundfish species or species groups. NMFS will issue a QS
permit to eligible participants and will establish a QS account for
each QS permit owner to track the amount of QS or IBQ and QP or IBQ
pounds owned by that owner. QS permit owners may own QS or IBQ for IFQ
species, expressed as a percent of the allocation to the Shorebased IFQ
Program for that species. NMFS will issue QP or IBQ pounds to QS permit
owners, expressed in pounds, on an annual basis, to be deposited in the
corresponding QS account. NMFS will establish a vessel account for each
eligible vessel owner participating in the Shorebased IFQ Program,
which is independent of the QS permit and QS account. In order to use
QP or IBQ pounds, a QS permit owner must transfer the QP or IBQ pounds
from the QS account into the vessel account for the vessel to which the
QP or IBQ pounds is to be assigned. Harvests of IFQ species may only be
delivered to an IFQ first receiver with a first receiver site license.
In addition to the requirements of this section, the Shorebased IFQ
Program is subject to the following groundfish regulations of subparts
C and D:
(1) Regulations set out in the following sections of subpart C:
Sec. 660.11 Definitions, Sec. 660.12 Prohibitions, Sec. 660.13
Recordkeeping and reporting, Sec. 660.14 VMS requirements, Sec.
660.15 Equipment requirements, Sec. 660.16 Groundfish observer
program, Sec. 660.20 Vessel and gear identification, Sec. 660.25
Permits, Sec. 660.55 Allocations, Sec. 660.60 Specifications and
management measures, Sec. 660.65 Groundfish harvest specifications,
and Sec. Sec. 660.70 through 660.79 Closed areas.
(2) Regulations set out in the following sections of subpart D:
Sec. 660.111 Trawl fishery definitions, Sec. 660.112 Trawl fishery
prohibitions, Sec. 660.113 Trawl fishery recordkeeping and reporting,
Sec. 660.120 Trawl fishery crossover provisions, Sec. 660.130 Trawl
fishery management measures, and Sec. 660.131 Pacific whiting fishery
management measures.
(3) The Shorebased IFQ Program may be restricted or closed as a
result of projected overages within the Shorebased IFQ Program, the MS
Coop Program, or the C/P Coop Program. As determined necessary by the
Regional Administrator, area restrictions, season closures, or other
measures will be used to prevent the trawl sector in aggregate or the
individual trawl sectors (Shorebased IFQ, MS Coop, or C/P Coop) from
exceeding an OY, or formal allocation specified in the PCGFMP or
regulation at Sec. 660.55, subpart C, or Sec. Sec. 660.140, 660.150,
or 660.160, subpart D.
(b) Participation requirements and responsibilities--(1) IFQ
vessels. (i) Vessels must be registered to a groundfish limited entry
permit, endorsed for trawl gear with no C/P endorsement.
(ii) To start a fishing trip in the Shorebased IFQ Program, a
vessel and its owner(s) (as described on the USCG documentation or
state registration document) must be registered to the same vessel
account established by NMFS with no deficit (negative balance) for any
species/species group.
(iii) All IFQ species/species group catch (landings and discards)
must be covered by QP or IBQ pounds. Any deficit (negative balance in a
vessel account) must be cured within 30 calendar days from the date the
deficit from that trip is documented in the vessel account, unless the
deficit is within the limits of the carryover
[[Page 78392]]
provision at paragraph (e)(5) of this section, in which case the vessel
may declare out of the IFQ fishery for the remainder of the year in
which the deficit occurred, and must cure the deficit within 30 days
after the issuance of QP or IBQ pounds for the following year.
(iv) Any vessel with a deficit (negative balance) in its vessel
account is prohibited from fishing that is within the scope of the
Shorebased IFQ Program until sufficient QP or IBQ pounds are
transferred into the vessel account to remove any deficit, regardless
of the amount of the deficit.
(v) A vessel account may not have QP or IBQ pounds (used and unused
combined) in excess of the QP Vessel Limit in any year, and for species
covered by Unused QP Vessel Limit, may not have QP or IBQ pounds in
excess of the Unused QP Vessel Limit at any time. These amounts are
specified at paragraph (e)(4) of this section.
(vi) Vessels must use either trawl gear as specified at Sec.
660.130(b), or a legal non-trawl groundfish gear under the gear
switching provisions as specified at Sec. 660.140(k).
(vii) Vessels that are registered to MS/CV-endorsed permits may be
used to fish in the Shorebased IFQ Program provided that the vessel is
registered to a valid Shorebased IFQ Program vessel account.
(viii) In the same calendar year, a vessel registered to a trawl
endorsed limited entry permit with no MS/CV or C/P endorsements may be
used to fish in the Shorebased IFQ Program if the vessel has a valid
vessel account, and to fish in the mothership sector for a permitted MS
coop as authorized by the MS coop.
(ix) Vessels that are registered to C/P-endorsed permits may not be
used to fish in the Shorebased IFQ Program.
(2) IFQ first receivers. The IFQ first receiver must:
(i) Ensure that all catch removed from a vessel making an IFQ
delivery is weighed on a scale or scales meeting the requirements
described in Sec. 660.15(c), subpart C;
(ii) Ensure that all catch is landed, sorted, and weighed in
accordance with a valid catch monitoring plan as described in Sec.
660.140(f)(3)(iii), subpart D.
(iii) Ensure that all catch is sorted, prior to first weighing, by
species or species groups as specified at Sec. 660.130(d), except the
vessels declared in to the limited entry midwater trawl, Pacific
whiting shorebased IFQ at Sec. 660.13(d)(5)(iv)(A), subpart C may
weigh catch on a before sorting as described at Sec. 660.140(j)(2).
(iv) Provide uninhibited access to all areas where fish are or may
be sorted or weighed to NMFS staff, NMFS-authorized personnel, or
authorized officer at any time when a delivery of IFQ species, or the
processing of those species, is taking place.
(v) Ensure that each scale produces a complete and accurate printed
record of the weight of all catch in a delivery, unless exempted in the
NMFS-accepted catch monitoring plan.
(vi) Retain and make available to NMFS staff, NMFS-authorized
personnel, or an authorized officer, all printed output from any scale
used to weigh catch, and any hand tally sheets, worksheets, or notes
used to determine the total weight of any species.
(vii) Ensure that each delivery of IFQ catch is monitored by a
catch monitor and that the catch monitor is on site the entire time the
delivery is being weighed or sorted.
(viii) Ensure that sorting and weighing is completed prior to catch
leaving the area that can be monitored from the observation area.
* * * * *
(c) IFQ species, management areas, and allocations.
(1) IFQ species. IFQ species are those groundfish species and
Pacific halibut in the exclusive economic zone or adjacent state waters
off Washington, Oregon and California, under the jurisdiction of the
Pacific Fishery Management Council, for which QS and IBQ will be
issued. Groupings and area subdivisions for IFQ species are those
groupings and area subdivisions for which OYs are specified in the
Tables 1a through 2d, subpart C, and those for which there is an area-
specific precautionary harvest policy. The lists of individual
groundfish species included in the minor shelf complex north of
40[deg]10' N. lat., minor shelf complex south of 40[deg]10' N. lat.,
minor slope complex north 40[deg]10' N. lat., minor slope complex south
of 40[deg]10' N. lat., and in the other flatfish complex are specified
under the definition of ``groundfish'' at Sec. 660.11. The following
are the IFQ species:
IFQ Species
------------------------------------------------------------------------
-------------------------------------------------------------------------
ROUNDFISH
------------------------------------------------------------------------
Lingcod
Pacific cod
Pacific whiting
Sablefish N. of 36[deg]
Sablefish S. of 36[deg]
------------------------------------------------------------------------
FLATFISH
------------------------------------------------------------------------
Dover sole
English sole
Petrale sole
Arrowtooth flounder
Starry flounder
Other flatfish stock complex
Pacific halibut (IBQ) N. of 40[deg]10'
------------------------------------------------------------------------
ROCKFISH
------------------------------------------------------------------------
Pacific ocean perch N. of 40[deg]10'
Widow rockfish
Canary rockfish
Chilipepper rockfish S. of 40[deg]10'
Bocaccio S. of 40[deg]10'
Splitnose rockfish S. of 40[deg]10'
Yellowtail rockfish N. of 40[deg]10'
Shortspine thornyhead N. of 34[deg]27'
Shortspine thornyhead S. of 34[deg]27'
Longspine thornyhead N. of 34[deg]27'
Cowcod S. of 40[deg]10'
Darkblotched rockfish
Yelloweye rockfish
Minor shelf rockfish complex N. of 40[deg]10'
Minor shelf rockfish complex S. of 40[deg]10'
Minor slope rockfish complex N. of 40[deg]10'
Minor slope rockfish complex S. of 40[deg]10'
------------------------------------------------------------------------
(2) IFQ management areas. A vessel participating in the Shorebased
IFQ Program may not fish in more than one IFQ management area during a
trip. IFQ management areas are as follows:
(i) Between the US/Canada border and 40[deg]10' N. lat.,
(ii) Between 40[deg]10' N. lat. and 36[deg] N. lat.,
(iii) Between 36[deg] N. lat. and 34[deg]27' N. lat., and
(iv) Between 34[deg]27' N. lat. and the US/Mexico border.
* * * * *
(3) * * *
(vi) For each IFQ species, NMFS will determine annual sub-
allocations to individual QS accounts by multiplying the percent of QS
or IBQ registered to the account by the amount of each respective IFQ
species allocated to the Shorebased IFQ Program for that year. For each
IFQ species, NMFS will deposit QP or IBQ pounds in the respective QS
account in the amount of each sub-allocation determined.
(vii) Reallocations--(A) Reallocation with changes in management
areas.
(1) Area subdivision. If at any time after the initial allocation,
an IFQ species is geographically subdivided, those holding QS or IBQ
for the IFQ species being subdivided will receive an amount of QS or
IBQ for each newly created area that is equivalent to the amount they
held for the area before it was subdivided.
(2) Area recombination. When two areas are combined for an IFQ
species, the QS or IBQ held by individuals in each area will be
adjusted proportionally such that:
(i) The total QS or IBQ for the area sums to 100 percent, and
[[Page 78393]]
(ii) A person holding QS or IBQ in the newly created area will
receive the same amount of total QP or IBQ pounds as they would if the
areas had not been combined.
(3) Area line movement. When a management area boundary line is
moved for an IFQ species, the QS or IBQ held by individuals in each
area will be adjusted proportionally such that they each maintain their
same share of the trawl allocation on a coastwide basis (a fishing area
may expand or decrease, but the individual's QP or IBQ pounds for both
areas combined wouldn't change because of the change in areas). In
order to achieve this end, the holders of QS or IBQ in the area being
reduced will receive QS or IBQ for the area being expanded, such that
the total QP or IBQ pounds they would be issued will not be reduced as
a result of the area reduction. Those holding QS or IBQ in the area
being expanded will have their QS or IBQ reduced such that the total QP
or IBQ pounds they receive in the year of the line movement will not
increase as a result of the expansion (nor will it be reduced).
(B) Reallocation with subdivision of a species group. If at any
time after the initial allocation an IFQ species which is a species
group is subdivided, each species or species group resulting from the
subdivision will be an IFQ species. QS owners for the species group
being subdivided will receive an amount of QS for each newly created
IFQ species that is equivalent to the amount they held for the species
group before it was subdivided. For example, if a person holds one
percent of a species group before the subdivision, that person will
hold one percent of the QS for each IFQ species resulting from the
subdivision.
* * * * *
(d) QS permits and QS accounts--(1) General. In order to obtain QS
and/or IBQ, a person must apply for a QS permit. NMFS will determine if
the applicant is eligible to own QS and/or IBQ in accordance with
paragraph (d)(2) of this section. If eligible, NMFS will issue a QS
permit, and will establish a QS account to track QS and IBQ balances
for all IFQ species identified at Sec. 660.140(c)(1). NMFS will issue
initial allocations of QS and IBQ in accordance with paragraph (d)(8)
of this section. Transfers of QS and IBQ, and of QP or IBQ pounds, are
subject to provisions at paragraph (d)(3) of this section. QS permit
owners can monitor the status of their QS and IBQ, and associated QP
and IBQ pounds, throughout the year in their QS account.
(i) Annual QS adjustments. On or about January 1 each year, QS
permit owners will be notified, via the IFQ Web site and their QS
account, of any adjustments to their QS and/or IBQ allocations, for
each of the IFQ species. Updated QS and/or IBQ values, if applicable,
will reflect the results of: any recalculation of initial allocation
formulas resulting from changes in provisional OYs used in the
allocation formulas or appeals, any redistribution of QS and IBQ (e.g.,
resulting from permanent revocation of applicable permits, subject to
accumulation limits), and any transfers of QS and/or IBQ made during
the prior year.
(ii) Annual QP and IBQ pound allocations. QP and IBQ pounds will be
deposited into QS accounts annually. QS permit owners will be notified
of QP deposits via the IFQ Web site and their QS account. QP and IBQ
pounds will be issued to the nearest whole pound using standard
rounding rules (i.e. decimal amounts less than 0.5 round down and 0.5
and greater round up), except that in the first year of the Shorebased
IFQ Program, issuance of QP for overfished species greater than zero
but less than one pound will be rounded up to one pound. QS permit
owners must transfer their QP and IBQ pounds from their QS account to a
vessel account in order for those QP and IBQ pounds to be fished. QP
and IBQ pounds must be transferred in whole pounds (i.e. no fraction of
a QP or IBQ pound can be transferred). All QP and IBQ pounds in a QS
account must be transferred to a vessel account by September 1 of each
year in order to be fished.
(A) Nonwhiting QP annual sub-allocations. NMFS will issue QP for
IFQ species other than Pacific whiting and Pacific halibut annually by
multiplying the QS permit owner's QS for each such IFQ species by that
year's shorebased trawl allocation for that IFQ species. Deposits to QS
accounts for IFQ species other than Pacific whiting and Pacific halibut
will be made on or about January 1 each year.
(B) Pacific whiting QP annual allocation. NMFS will issue QP for
Pacific whiting annually by multiplying the QS permit owner's QS for
Pacific whiting by that year's shorebased trawl allocation for Pacific
whiting.
(1) In years where the Pacific whiting harvest specification is
known by January 1, deposits to QS accounts for Pacific whiting will be
made on or about January 1.
(2) In years where the Pacific whiting harvest specification is not
known by January 1, NMFS will issue Pacific whiting QP in two parts. On
or about January 1, NMFS will deposit Pacific whiting QP based on the
shorebased trawl allocation multiplied by the lower end of the range of
potential harvest specifications for Pacific whiting for that year.
After the final Pacific whiting harvest specifications are established
later in the year, NMFS will deposit additional QP to the QS account so
that the total QP issued for that year is equal to the QS permit
owner's QS for Pacific whiting multiplied by that year's shorebased
trawl allocation for Pacific whiting.
(C) Pacific halibut IBQ pounds annual allocation. NMFS will issue
IBQ pounds for Pacific halibut annually by multiplying the QS permit
owner's IBQ percent by the shorebased component of the trawl mortality
limit for that year (expressed in net weight), and dividing by 0.75 to
convert to round weight pounds. Consistent with Sec. 660.55(m), the
shorebased component of the trawl mortality limit will be calculated by
multiplying the total constant exploitation yield of the prior year by
15 percent, not to exceed 130,000 pounds in the first four years of the
Shorebased IFQ Program and not to exceed 100,000 pounds starting in the
fifth year of the Shorebased IFQ Program, less the set-aside amount of
Pacific halibut to accommodate the incidental catch in the trawl
fishery south of 40[deg]10' N. latitude and in the at-sea whiting
fishery. Deposits to QS accounts for Pacific halibut IBQ pounds will be
made on or about January 1 each year.
(D) [Reserved]
(2) Eligibility and registration--(i) Eligibility. Only the
following persons are eligible to own QS permits:
(A) A United States citizen, that is eligible to own and control a
U.S. fishing vessel with a fishery endorsement pursuant to 46 U.S.C.
12113 (general fishery endorsement requirements and 75 percent
citizenship requirement for entities);
(B) A permanent resident alien, that is eligible to own and control
a U.S. fishing vessel with a fishery endorsement pursuant to 46 U.S.C.
12113 (general fishery endorsement requirements and 75 percent
citizenship requirement for entities); or
(C) A corporation, partnership, or other entity established under
the laws of the United States or any State, that is eligible to own and
control a U.S. fishing vessel with a fishery endorsement pursuant to 46
U.S.C. 12113 (general fishery endorsement requirements and 75 percent
citizenship requirement for entities). However, there is an exception
for any entity that owns a mothership that participated in the west
coast groundfish fishery during the allocation period and is eligible
to own or control that U.S. fishing vessel
[[Page 78394]]
with a fishery endorsement pursuant to sections 203(g) and 213(g) of
the AFA.
(ii) Registration. A QS account will be established by NMFS with
the issuance of a QS permit. The administrative functions associated
with the Shorebased IFQ Program (e.g., account registration, landing
transactions, and transfers) are designed to be accomplished online;
therefore, a participant must have access to a computer with Internet
access and must set up online access to their QS account to
participate. The computer must have Internet browser software installed
(e.g., Internet Explorer, Netscape, Mozilla Firefox); as well as the
Adobe Flash Player software version 9.0 or greater. NMFS will mail
initial QS permit owners instructions to set up online access to their
QS account. NMFS may require QS account owners that are business
entities to designate an account manager that may act on behalf of the
entity and their contact information. NMFS will use the QS account to
send messages to QS permit owners; it is important for QS permit owners
to monitor their online QS account and all associated messages.
(3) Renewal, change of permit ownership, and transfers--(i)
Renewal. (A) QS permits expire at the end of each calendar year, and
must be renewed between October 1 and November 30 of each year in order
to remain in force the following year. A complete QS permit renewal
package must be received by SFD no later than November 30 to be
accepted by NMFS.
(B) Notification to renew QS permits will be sent by SFD by
September 1 each year to the QS permit owner's most recent address in
the SFD record. The QS permit owner shall provide SFD with notice of
any address change within 15 days of the change.
(C) Any QS permit for which SFD does not receive a QS permit
renewal request by November 30 will have its QS account inactivated by
NMFS at the end of the calendar year and the QS permit will not be
renewed by NMFS for the following year. NMFS will not issue QP or IBQ
pounds to the inactivated QS account associated with the non-renewed QS
permit for that year. Any QP or IBQ pounds derived from the QS or IBQ
in the inactivated QS account will be redistributed among all other QS
permit owners that renewed their permit by the deadline. Redistribution
of QP or IBQ pounds to QS permit owners will be proportional to the QS
or IBQ for each IFQ species. A non-renewed QS permit may be renewed in
a subsequent year by submission of a complete QS permit renewal package
during the permit renewal period for that year, and NMFS will issue the
associated QP or IBQ pounds for that year.
(D) QS permits will not be renewed until SFD has received a
complete application for a QS permit renewal, which includes payment of
required fees, complete documentation of QS permit ownership on the
Trawl Identification of Ownership Interest Form as required under
paragraph (d)(4)(iv) of this section, a complete economic data
collection form if required under Sec. 660.114, subpart D. The QS
permit renewal will be considered incomplete until the required
information is submitted. NMFS may require QS account owners that are
business entities to designate an account manager and their contact
information through the QS permit renewal process.
(E) Effective Date. A QS permit is effective on the date given on
the permit and remains effective until the end of the calendar year.
(F) IAD and appeals. QS permit renewals are subject to the permit
appeals process specified at Sec. 660.25(g), subpart C.
(ii) Change of permit ownership and transfer restrictions--(A)
Restriction on the transfer of ownership for QS permits. A QS permit
cannot be transferred to another individual or entity. The QS permit
owner cannot change or add additional individuals or entities as owners
of the permit (i.e., cannot change the registered permit owners as
given on the permit). Any change to the owner of the QS permit requires
the new owner(s) to apply for a QS permit, and is subject to
accumulation limits and approval by NMFS.
(B) Transfers of QS or IBQ or QP or IBQ pounds. (1) General.
Transfers of QS or IBQ from one QS account to another QS account and
transfers of QP or IBQ pounds from a QS account to a vessel account
must be accomplished via the online QS account. During the year there
may be situations where NMFS deems it necessary to prohibit transfers
(i.e., account reconciliation, system maintenance, or for emergency
fishery management reasons). To make a transfer, a QS permit owner must
initiate a transfer request by logging onto the online QS account.
Following the instructions provided on the Web site, the QS permit
owner must enter pertinent information regarding the transfer request
including, but not limited to: IFQ species, amount of QS, IBQ, QP, or
IBQ pounds to be transferred for each IFQ species; name and any other
identifier of the eligible transferee (e.g., QS permit number, vessel
account number); and the value of the transferred QS, IBQ, QP, or IBQ
pounds for each IFQ species. The online system will verify whether all
information has been entered and whether the transfer complies with
ownership limits or vessel limits, as applicable. If the information is
not accepted, an electronic message will record as much in the
transferor's QS account explaining the reason(s). If the information is
accepted, the online system will record the pending transfer in both
the transferor's QS account and the transferee's QS account or vessel
account. The transferee must approve the transfer by electronic
signature in order for the transfer to be completed. If the transferee
accepts the transfer, the online system will record the transfer and
confirm the transaction in both the transferor's QS account and the
transferee's QS account or vessel account through a transaction
confirmation notice. Once the transferee accepts the transaction, the
transaction is final and permanent.
(2) Transfer of QS or IBQ between QS accounts. After the second
year of the trawl rationalization program, QS permit owners may
transfer QS or IBQ to another QS permit owner, subject to accumulation
limits and approval by NMFS. QS or IBQ is transferred as a percent,
divisible to one-thousandth of a percent (i.e., greater than or equal
to 0.001%). During the first 2 years after implementation of the
program, QS or IBQ cannot be transferred to another QS permit owner,
except under U.S. court order or authorization and as approved by NMFS.
QS or IBQ may not be transferred between December 1 through December 31
each year. QS or IBQ may not be transferred to a vessel account.
(3) Transfer of QP or IBQ pounds from a QS account to a vessel
account. QP or IBQ pounds must be transferred in whole pounds (i.e. no
fraction of a QP can be transferred). QP or IBQ pounds must be
transferred to a vessel account in order to be used. Transfers of QP or
IBQ pounds from a QS account to a vessel account are subject to vessel
accumulation limits and NMFS' approval. All QP or IBQ pounds from a QS
account must be transferred to one or more vessel accounts by September
1 each year. Once QP or IBQ pounds are transferred from a QS account to
a vessel account (accepted by the transferee/vessel owner), they cannot
be transferred back to a QS account and may only be transferred to
another vessel account. QP or IBQ pounds may not be transferred from
one QS account to another QS account.
[[Page 78395]]
(C) Effective date--(1) Transfer of QS or IBQ between QS accounts
is effective on the date approved by NMFS.
(2) Transfer of QP or IBQ pounds from a QS account to a vessel
account is effective on the date approved by NMFS.
(D) IAD and appeals. Transfers are subject to the permit appeals
process specified at Sec. 660.25 (g), subpart C.
* * * * *
(4) * * *
(i) * * *
(C) The Shorebased IFQ Program accumulation limits are as follows:
------------------------------------------------------------------------
QS and IBQ
control
Species category limit (in
percent)
------------------------------------------------------------------------
Non-whiting groundfish species............................. 2.7
Lingcod--coastwide......................................... 2.5
Pacific cod................................................ 12.0
Pacific whiting (shoreside)................................ 10.0
Sablefish:
N. of 36[deg] (Monterey north)........................... 3.0
S. of 36[deg] (Conception area).......................... 10.0
Pacific ocean perch N. of 40[deg]10'....................... 4.0
Widow rockfish............................................. 5.1
Canary rockfish............................................ 4.4
Chilipepper rockfish S. of 40[deg]10'...................... 10.0
Bocaccio S. of 40[deg]10'.................................. 13.2
Splitnose rockfish S. of 40[deg]10'........................ 10.0
Yellowtail rockfish N. of 40[deg]10'....................... 5.0
Shortspine thornyhead:
N. of 34[deg]27'......................................... 6.0
S. of 34[deg]27'......................................... 6.0
Longspine thornyhead:
N. of 34[deg]27'......................................... 6.0
Cowcod S. of 40[deg]10'.................................... 17.7
Darkblotched rockfish...................................... 4.5
Yelloweye rockfish......................................... 5.7
Minor rockfish complex N. of
40[deg]10':
Shelf species............................................ 5.0
Slope species............................................ 5.0
Minor rockfish complex S. of
40[deg]10':
Shelf species............................................ 9.0
Slope species............................................ 6.0
Dover sole................................................. 2.6
English sole............................................... 5.0
Petrale sole............................................... 3.0
Arrowtooth flounder........................................ 10.0
Starry flounder............................................ 10.0
Other flatfish stock complex............................... 10.0
Pacific halibut (IBQ) N. of 40[deg]10'..................... 5.4
------------------------------------------------------------------------
* * * * *
(iv) Trawl identification of ownership interest form. Any person
that owns a limited entry trawl permit and that is applying for or
renewing a QS permit shall document those persons that have an
ownership interest in the limited entry trawl or QS permit greater than
or equal to 2 percent. This ownership interest must be documented with
the SFD via the Trawl Identification of Ownership Interest Form. For
renewal, if the limited entry trawl permit and QS permit have identical
ownership interest, only one form need be submitted attesting to such
ownership. SFD will not issue a QS permit unless the Trawl
Identification of Ownership Interest Form has been completed. Further,
if SFD discovers through review of the Trawl Identification of
Ownership Interest Form that a person owns or controls more than the
accumulation limits and is not authorized to do so under paragraph
(d)(4)(v) of this section, the person will be notified and the QS
permit will be issued up to the accumulation limit specified in the QS
or IBQ control limit table from paragraph (d)(4)(i) of this section.
NMFS may request additional information of the applicant as necessary
to verify compliance with accumulation limits.
* * * * *
(5) Appeals. An appeal to a QS permit or QS account action follows
the same process as the general permit appeals process as defined at
Sec. 660.25(g), subpart C.
* * * * *
(8) * * *
(ix) Initial Administrative Determination (IAD). NMFS will issue an
IAD for all complete, certified applications received by the
application deadline date. If NMFS approves an application for initial
issuance of QS and IBQ, the applicant will receive a QS permit
specifying the amounts of QS and IBQ for which the applicant has
qualified and the applicant will be registered to a QS account. If NMFS
disapproves or partially disapproves an application, the IAD will
provide the reasons. As part of the IAD, NMFS will indicate whether the
QS permit owner qualifies for QS or IBQ in amounts that exceed the
accumulation limits and are subject to divestiture provisions given at
paragraph (d)(4)(v) of this section, or whether the QS permit owner
qualifies for QS or IBQ that exceed the accumulation limits and does
not qualify to receive the excess under paragraph (d)(4)(v) of this
section. If the applicant does not appeal the IAD within 60 calendar
days of the date on the IAD, the IAD becomes the final decision of the
Regional Administrator acting on behalf of the Secretary of Commerce.
* * * * *
(e) Vessel accounts--(1) General. In order to participate in the
Shorebased IFQ Program, a vessel must be registered to an eligible
limited entry trawl permit. A vessel account will be established on
request for an owner of a vessel registered to an eligible limited
entry trawl permit in order to track QP and IBQ pounds. QP or IBQ
pounds will have the same species/species groups and area designations
as the QS or IBQ from which it was issued. Annually, QS or IBQ
(expressed as a percent) are converted to QP or IBQ pounds (expressed
as a weight) in a QS account. QP or IBQ pounds may be transferred from
a QS account to a vessel account or from one vessel account to another
vessel account. QP or IBQ pounds are required to cover catch (landings
and discards) by limited entry trawl vessels of all IFQ species/species
groups, except for:
(i) Gear exception. Vessels with a limited entry trawl permit using
the following gears would not be required to cover groundfish catch
with QP or Pacific halibut catch with IBQ pounds: Non-groundfish trawl,
gear types defined in the coastal pelagic species FMP, gear types
defined in the highly migratory species FMP, salmon troll, crab pot,
and limited entry fixed gear when the vessel also has a limited entry
permit endorsed for fixed gear and has declared that they are fishing
in the limited entry fixed gear fishery.
(ii) Species exception. QP are not required for the following
species: Longspine thornyheads south of 34[deg]27' N. lat., minor
nearshore rockfish (north and south), black rockfish (coastwide),
California scorpionfish, cabezon, kelp greenling, shortbelly rockfish,
and ``other fish'' (as defined at Sec. 660.11, subpart C, under the
definition of ``groundfish''). For these species, trip limits remain in
place as specified in the trip limit tables at Table 1 (North) and
Table 1 (South) of this subpart.
(2) Eligibility and registration--(i) Eligibility. To establish a
registered vessel account, a person must own a vessel and that vessel
must be registered to a groundfish limited entry permit endorsed for
trawl gear.
(ii) Registration. A vessel account must be registered with the
NMFS SFD Permits Office. A vessel account may be established at any
time during the year. An eligible vessel owner must submit a request in
writing to NMFS to establish a vessel account. The request must include
the vessel name; USCG vessel registration number (as given on USCG Form
1270) or state registration number, if no USCG documentation; all
vessel owner names (as given on USCG Form 1270, or on state
registration, as applicable); and business contact information,
including: Address, phone number, fax number, and e-mail. NMFS may
require vessel account owners that are business entities to designate
an account manager that may act on behalf of the entity and their
contact
[[Page 78396]]
information. Requests for a vessel account must also include the
following information: A complete economic data collection form as
required under Sec. 660.113(b), (c) and (d), subpart D, and a complete
Trawl Identification of Ownership Interest Form as required under
paragraph (e)(4)(ii) of this section. The request for a vessel account
will be considered incomplete until the required information is
submitted. Any change in the legal name of the vessel owner(s) will
require the new owner to register with NMFS for a vessel account. A
participant must have access to a computer with Internet access and
must set up online access to their vessel account to participate. The
computer must have Internet browser software installed (e.g., Internet
Explorer, Netscape, Mozilla Firefox); as well as the Adobe Flash Player
software version 9.0 or greater. NMFS will mail vessel account owners
instructions to set up online access to their vessel account. NMFS may
require vessel account owners that are business entities to designate
an account manager that may act on behalf of the entity and their
contact information. NMFS will use the vessel account to send messages
to vessel owners in the Shorebased IFQ Program; it is important for
vessel owners to monitor their online vessel account and all associated
messages.
(3) Renewal, change of account ownership, and transfer of QP or IBQ
pounds--(i) Renewal. (A) Vessel accounts expire at the end of each
calendar year, and must be renewed between October 1 and November 30 of
each year in order to ensure the vessel account is active on January 1
of the following year. A complete vessel account renewal package must
be received by SFD no later than November 30 to be accepted by NMFS.
(B) Notification to renew vessel accounts will be issued by SFD
prior to September 1 each year to the vessel account owner's most
recent address in the SFD record. The vessel account owner shall
provide SFD with notice of any address change within 15 days of the
change.
(C) Any vessel account for which SFD does not receive a vessel
account renewal request by November 30 will have its vessel account
inactivated by NMFS at the end of the calendar year. NMFS will not
issue QP or IBQ pounds to the inactivated vessel account. Any QP or IBQ
pounds in the vessel account will expire and surplus QP or IBQ pounds
will not be available for carryover. A non-renewed vessel account may
be renewed in a subsequent year by submission of a complete vessel
account renewal package.
(D) Vessel accounts will not be renewed until SFD has received a
complete application for a vessel account renewal, which includes
payment of required fees, a complete documentation of permit ownership
on the Trawl Identification of Ownership Interest Form as required
under (e)(4)(ii) of this section, and a complete economic data
collection form as required under Sec. 660.114, subpart D. The vessel
account renewal will be considered incomplete until the required
information is submitted. NMFS may require vessel account owners that
are business entities to designate an account manager that may act on
behalf of the entity and their contact information.
(E) Effective Date. A vessel account is effective on the date
issued by NMFS and remains effective until the end of the calendar
year.
(F) IAD and appeals. Vessel account renewals are subject to the
appeals process specified at Sec. 660.25(g), subpart C.
(ii) Change in vessel account ownership. Vessel accounts are non-
transferable and ownership of a vessel account cannot change. If the
ownership of a vessel changes, then a new vessel account must be opened
by the new owner in order for the vessel to participate in the
Shorebased IFQ Program.
(iii) Transfer of QP or IBQ pounds--(A) General. QP or IBQ pounds
may only be transferred from a QS account to a vessel account or
between vessel accounts. QP or IBQ pounds cannot be transferred from a
vessel account to a QS account. Transfers of QP or IBQ pounds are
subject to accumulation limits. QP or IBQ pounds in a vessel account
may only be transferred to another vessel account. QP or IBQ pounds
must be transferred in whole pounds (i.e., no fraction of a QP or IBQ
pound can be transferred). During the year there may be situations
where NMFS deems it necessary to prohibit transfers (i.e., account
reconciliation, system maintenance, or for emergency fishery management
reasons).
(B) Transfer procedures. QP or IBQ pound transfers from one vessel
account to another vessel account must be accomplished via the online
vessel account. To make a transfer, a vessel account owner must
initiate a transfer request by logging onto the online vessel account.
Following the instructions provided on the Web site, the vessel account
owner must enter pertinent information regarding the transfer request
including, but not limited to: IFQ species, amount of QP or IBQ pounds
to be transferred for each IFQ species (in whole pound increments);
name and any other identifier of the eligible transferee (e.g., USCG
documentation number or state registration number, as applicable) of
the eligible vessel account receiving the transfer; and the value of
the transferred QP or IBQ pounds. The online system will verify whether
all information has been entered and whether the transfer complies with
vessel limits, as applicable. If the information is not accepted, an
electronic message will record as much in the transferor's vessel
account explaining the reason(s). If the information is accepted, the
online system will record the pending transfer in both the transferor's
and the transferee's vessel accounts. The transferee must approve the
transfer by electronic signature. If the transferee accepts the
transfer, the online system will record the transfer and confirm the
transaction in both accounts through a transaction confirmation notice.
Once the transferee accepts the transaction, the transaction is final
and permanent. QP or IBQ pounds may be transferred to vessel accounts
at any time during January 1 through December 14 each year unless
otherwise notified by NMFS. QP or IBQ pounds may not be transferred
between December 15 and December 31 each year.
(4) Accumulation limits--(i) Vessel limits. Vessel accounts may not
have QP or IBQ pounds in excess of the QP Vessel Limit in any year,
and, for species covered by Unused QP Vessel Limits, may not have QP or
IBQ pounds in excess of the Unused QP Vessel Limit at any time. These
amounts are as follows:
------------------------------------------------------------------------
Unused QP
QP vessel vessel
limit limit
Species category (annual (daily
limit) (in limit) (in
percent) percent)
------------------------------------------------------------------------
Non-whiting groundfish species................ 3.2 ...........
[[Page 78397]]
Lingcod--coastwide............................ 3.8 ...........
Pacific cod................................... 20.0 ...........
Pacific whiting (shoreside)................... 15.0 ...........
Sablefish:
N. of 36[deg] (Monterey north)............ 4.5 ...........
S. of 36[deg] (Conception area)........... 15.0 ...........
Pacific ocean perch N. of 40[deg]10'.......... 6.0 4.0
Widow rockfish \1\............................ 8.5 5.1
Canary rockfish............................... 10.0 4.4
Chilipepper rockfish S. of 40[deg]10'......... 15.0 ...........
Bocaccio S. of 40[deg]10'..................... 15.4 13.2
Splitnose rockfish S. of 40[deg]10'........... 15.0 ...........
Yellowtail rockfish N. of 40[deg]10'.......... 7.5 ...........
Shortspine thornyhead:
N. of 34[deg]27'.......................... 9.0 ...........
S. of 34[deg]27'.......................... 9.0 ...........
Longspine thornyhead:
N. of 34[deg]27'.......................... 9.0 ...........
Cowcod S. of 40[deg]10'....................... 17.7 17.7
Darkblotched rockfish......................... 6.8 4.5
Yelloweye rockfish............................ 11.4 5.7
Minor rockfish complex N. of 40[deg]10':
Shelf species............................. 7.5 ...........
Slope species............................. 7.5 ...........
Minor rockfish complex S. of 40[deg]10':
Shelf species............................. 13.5 ...........
Slope species............................. 9.0 ...........
Dover sole.................................... 3.9 ...........
English sole.................................. 7.5 ...........
Petrale sole.................................. 4.5 ...........
Arrowtooth flounder........................... 20.0 ...........
Starry flounder............................... 20.0 ...........
Other flatfish stock complex.................. 15.0 ...........
Pacific halibut (IBQ) N. of 40[deg]10'........ 14.4 5.4
------------------------------------------------------------------------
\1\ If widow rockfish is rebuilt before initial allocation of QS, the
vessel limit will be set at 1.5 times the control limit.
(ii) Trawl identification of ownership interest form. Any person
that owns a vessel registered to a limited entry trawl permit and that
is applying for or renewing a vessel account shall document those
persons that have an ownership interest in the vessel greater than or
equal to 2 percent. This ownership interest must be documented with the
SFD via the Trawl Identification of Ownership Interest Form. SFD will
not issue a vessel account unless the Trawl Identification of Ownership
Interest Form has been completed. NMFS may request additional
information of the applicant as necessary to verify compliance with
accumulation limits.
(5) Carryover. The carryover provision allows a limited amount of
surplus QP or IBQ pounds in a vessel account to be carried over from
one year to the next or allows a deficit in a vessel account in one
year to be covered with QP or IBQ pounds from a subsequent year, up to
a carryover limit. The carryover limit is calculated by multiplying the
carryover percentage by the cumulative total of QP or IBQ pounds (used
and unused) in a vessel account for the base year, less any transfers
out of the vessel account or any previous carryover amounts. The
percentage used for the carryover provision may be changed during the
biennial specifications and management measures process.
(i) Surplus QP or IBQ pounds. A vessel account with a surplus of QP
or IBQ pounds (unused QP or IBQ pounds) for any IFQ species at the end
of the fishing year may carryover for use in the immediately following
year an amount of unused QP or IBQ pounds up to its carryover limit.
The carryover limit for the surplus is calculated as 10 percent of the
cumulative total QP or IBQ pounds (used and unused, less any transfers
or any previous carryover amounts) in the vessel account at the end of
the year. NMFS will credit the carryover amount to the vessel account
in the immediately following year. If there is a decline in the OY
between the base year and the following year in which the QP or IBQ
pounds would be carried over, the carryover amount will be reduced in
proportion to the reduction in the OY. Surplus QP or IBQ pounds may not
be carried over for more than one year. Any amount of QP or IBQ pounds
in a vessel account and in excess of the carryover amount will expire
on December 31 each year and will not be available for any future use.
(ii) Deficit QP or IBQ pounds. A vessel account with a deficit
(negative balance) of QP or IBQ pounds for any IFQ species in the
current year may cover that deficit with QP or IBQ pounds from the
following year without incurring a violation if all of the following
conditions are met:
(A) The vessel declares out of the Shorebased IFQ Program for the
year in which the deficit occurred. To declare out of the Shorebased
IFQ Program, the vessel owner must submit a signed, dated, and
notarized letter to the NMFS Office of Law Enforcement, declaring the
vessel owner's intent to declare out of the Shorebased IFQ Program for
the remainder of the year and invoke the carryover provision to cover
the deficit. (If the deficit occurs less than 30 days before the end of
the calendar year, declaring out of the Shorebased IFQ Program for the
remainder of the year is
[[Page 78398]]
not required, however, the vessel owner must notify the NMFS Office of
Law Enforcement of the owner's intent to invoke the carryover provision
to cover the deficit.)
(B) The amount of QP or IBQ pounds required to cover the deficit
from the current fishing year is less than or equal to the vessel's
carryover limit for a deficit. The carryover limit for a deficit is
calculated as 10 percent of the total cumulative QP or IBQ pounds (used
and unused, less any transfers or any previous carryover amounts) in
the vessel account 30 days after the date the deficit is documented;
and
(C) Sufficient QP or IBQ pounds are transferred in to the vessel
account to cure the deficit within 30 days of NMFS' issuance of QP or
IBQ pounds to QS accounts in the following year.
(6) Appeals. An appeal to a vessel account action follows the
appeals process defined at Sec. 660.25(g), subpart C.
(7) Fees. The Regional Administrator is authorized to charge fees
for administrative costs associated with the vessel accounts consistent
with the provisions given at Sec. 660.25(f), subpart C.
(8) Cost recovery. [Reserved]
(f) First receiver site license--(1) General. Any IFQ first
receiver that receives IFQ landings must hold a valid first receiver
site license. The first receiver site license authorizes the holder to
receive, purchase, or take custody, control, or possession of an IFQ
landing at a specific physical site onshore directly from a vessel.
Once the trawl rationalization program is implemented, a temporary,
interim first receiver site license will be available by application to
NMFS and will be valid until June 30, 2011, or until an application for
a first receiver site license as specified in paragraph (f)(3) of this
section is approved by NMFS, whichever comes first. An application for
an interim first receiver site license is subject to all of the
requirements in this paragraph (f) including the submission of a catch
monitoring plan, except that the catch monitoring plan in paragraph
(f)(3)(iii) does not have to have been previously accepted by NMFS and
the site does not have to have been previously inspected.
(2) Issuance. (i) First receiver site licenses will only be issued
to a person registered to a valid license issued by the state of
Washington, Oregon, or California, and that authorizes the person to
receive fish from a catcher vessel.
(ii) A first receiver may apply for a first receiver site license
at any time during the calendar year.
(iii) A first receiver site license is valid for one year from the
date it was issued by NMFS, or until the state license required by
paragraph (f)(2)(i) of this section is no longer effective, whichever
occurs first. IFQ first receivers must reapply for a first receiver
site license each year and whenever a change in the ownership occurs.
(3) Application process. Persons interested in being licensed as an
IFQ first receiver must submit a complete application for a first
receiver site license to NMFS, Northwest Region, Permits Office, ATTN:
Catch Monitor Coordinator, Bldg. 1, 7600 Sand Point Way NE, Seattle, WA
98115. NMFS will only consider complete applications for approval. A
complete application includes:
(i) State license. A copy of a valid license issued by the state in
which they operate which allows the person to receive fish from a
catcher vessel.
(ii) Contact information. (A) The name of the first receiver,
(B) The physical location of the first receiver, including the
street address where the IFQ landings will be received and/or
processed.
(C) The name and phone number of the plant manager and any other
authorized representative who will serve as a point of contact with
NMFS.
(iii) A NMFS-accepted catch monitoring plan. All IFQ first
receivers must prepare and operate under a NMFS-accepted catch
monitoring plan. NMFS will not issue a first receiver site license to a
processor that does not have a current, NMFS-accepted catch monitoring
plan.
(A) Catch monitoring plan review process. NMFS will accept a catch
monitoring plan if it meets all the requirements specified in paragraph
(f)(3)(iii)(C) of this section. The site must be inspected by NMFS
staff or a NMFS designated inspector prior to acceptance to ensure that
the first receiver conforms to the elements addressed in the catch
monitoring plan. If NMFS does not accept a catch monitoring plan for
any reason, a new or revised catch monitoring plan may be submitted.
(B) Arranging an inspection. The time and place of a monitoring
plan inspection must be arranged by submitting a written request for an
inspection as part of the application for a first receiver site
license. After receiving a complete application for a first receiver
site license, NMFS will contact the applicant to schedule a site
inspection. The inspection request must include:
(1) Name and signature of the person submitting the application and
the date of the application;
(2) Address, telephone number, fax number, and email address (if
available) of the person submitting the application;
(3) A proposed catch monitoring plan detailing how the IFQ first
receiver will meet each of the performance standards in paragraph
(f)(3)(iii)(C) of this section.
(C) Contents of a catch monitoring plan. The catch monitoring plan
must:
(1) Catch sorting. Describe the amount and location of all space
used for sorting catch, the number of staff assigned to catch sorting,
and the maximum rate that catch will flow through the sorting area.
(2) Monitoring for complete sorting. Detail how IFQ first receiver
staff will ensure that sorting is complete; what steps will be taken to
prevent unsorted catch from entering the factory or other areas beyond
the location where catch sorting and weighing can be monitored from the
observation area; and what steps will be taken if unsorted catch enters
the factory or other areas beyond the location where catch sorting and
weighing can be monitored from the observation area.
(3) Scales used for weighing IFQ landings. Identify each scale that
will be used to weigh IFQ landings by the type and capacity and
describe where it is located and what it will be used for. Each scale
must be appropriate for its intended use.
(4) Printed record. Identify all scales that will be used to weigh
IFQ landings that cannot produce a complete printed record as specified
at Sec. 660.15(c), subpart C. State how the scale will be used, and
how the plant intends to produce a complete and accurate record of the
total weight of each delivery.
(5) Weight monitoring. Detail how the IFQ first receiver will
ensure that all catch is weighed and the process used to meet the catch
weighing requirements specified at paragraph (j) of this section. If a
catch monitoring plan proposes the use of totes in which IFQ species
will be weighed, or a deduction for the weight of ice, the catch
monitoring plan must detail how the process will accurately account for
the weight of ice and/or totes.
(6) Delivery points. Identify specific delivery points where catch
is removed from an IFQ vessel. The delivery point is the first location
where fish removed from a delivering catcher vessel can be sorted or
diverted to more than one location. If the catch is pumped from the
hold of a catcher vessel or a codend, the delivery point will be the
location where the pump first discharges the
[[Page 78399]]
catch. If catch is removed from a vessel by brailing, the delivery
point normally will be the bin or belt where the brailer discharges the
catch.
(7) Observation area. Designate and describe the observation area.
The observation area is a location where a catch monitor may monitor
the flow of fish during a delivery, including: Access to the
observation area, the flow of fish, and lighting used during periods of
limited visibility. Standards for the observation area are specified at
paragraph (i)(4)(ii) of this section.
(8) Lockable cabinet. Identify the location of a secure, dry, and
lockable cabinet or locker with the minimum interior dimensions of two
feet wide by two feet tall by two feet deep for the exclusive use of
the catch monitor, NMFS staff, or authorized officers.
(9) Plant liaison. Identify the designated plant liaison. The plant
liaison responsibilities are specified at paragraph (i)(6) of this
section.
(10) First receiver diagram. The catch monitoring plan must be
accompanied by a diagram of the plant showing:
(i) The delivery point(s);
(ii) The observation area;
(iii) The lockable cabinet;
(iv) The location of each scale used to weigh catch; and
(v) Each location where catch is sorted.
(D) Catch monitoring plan acceptance period and changes. NMFS will
accept a catch monitoring plan if it meets the performance standards
specified in paragraph (f)(3)(iii)(C) of this section. For the first
receiver site license to remain in effect, an owner or manager must
notify NMFS in writing of any and all changes made in IFQ first
receiver operations or layout that do not conform to the catch
monitoring plan.
(E) Changing a NMFS-accepted catch monitoring plan. An owner and
manager may change an accepted catch monitoring plan by submitting a
plan addendum to NMFS. NMFS will accept the modified catch monitoring
plan if it continues to meet the performance standards specified in
paragraph (f)(3)(iii)(C) of this section. Depending on the nature and
magnitude of the change requested, NMFS may require an additional catch
monitoring plan inspection. A catch monitoring plan addendum must
contain:
(1) Name and signature of the person submitting the addendum;
(2) Address, telephone number, fax number and email address (if
available) of the person submitting the addendum;
(3) A complete description of the proposed catch monitoring plan
change.
(iv) Completed EDC form. A first receiver site license application
must include a complete economic data collection form as required under
Sec. 660.113(b), subpart D. The application for a first receiver site
license will be marked incomplete until the required information is
submitted.
(4) Initial administrative determination. For all complete
applications, NMFS will issue an IAD that either approves or
disapproves the application. If approved, the IAD will include a first
receiver site license. If disapproved, the IAD will provide the reasons
for this determination.
(5) Effective date. The first receiver site license is effective
upon approval and issuance by NMFS and will be effective for one year
from the date of NMFS issuance.
(6) Reissuance in subsequent years. Existing license holders must
reapply annually. If the existing license holder fails to reapply, the
first receiver's site license will expire one year from the date of
NMFS issuance of the license. The first receiver will not be authorized
to receive or process groundfish IFQ species if their first receiver
site license has expired.
(7) Change in ownership of an IFQ first receiver. If there are any
changes to the owner of a first receiver registered to a first receiver
site license during a calendar year, the first receiver site license is
void. The new owner of the first receiver must apply to NMFS for a
first receiver site license. A first receiver site license is not
transferrable by the license holder to any other person.
(8) Fees. The Regional Administrator is authorized to charge fees
for administrative costs associated with processing the application
consistent with the provisions given at Sec. 660.25(f), subpart C.
(9) Appeals. If NMFS does not accept the first receiver site
license application through an IAD, the applicant may appeal the IAD
consistent with the general permit appeals process defined at Sec.
660.25(g), subpart C.
(g) Retention requirements (whiting and non-whiting vessels)--(1)
Non-whiting vessels. Vessels participating in the Shoreside IFQ Program
other than vessels participating in the Pacific whiting IFQ fishery
(non-whiting vessels) may discard IFQ species/species groups, provided
such discards are accounted for and deducted from QP in the vessel
account. Non-whiting vessels must discard Pacific halibut and the
discard mortality must be accounted for and deducted from IBQ pounds in
the vessel account. Non-whiting vessels may discard non-IFQ species and
non-groundfish species. The sorting of catch, the weighing and
discarding of any IBQ and IFQ species, and the retention of IFQ species
must be monitored by the observer.
(2) Whiting maximized retention vessels. Maximized retention
vessels participating in the Pacific whiting IFQ fishery may discard
minor operational amounts of catch at sea if the observer has accounted
for the discard (i.e., a maximized retention fishery).
(3) Whiting vessels sorting at-sea. Vessels participating in the
Pacific whiting IFQ fishery that sort their catch at sea (whiting
vessels sorting at-sea) may discard IFQ species/species groups,
provided such discards are accounted for and deducted from QP in the
vessel account. Whiting vessels sorting at sea must discard Pacific
halibut and such discard mortality must be accounted for and deducted
from IBQ pounds in the vessel account. Whiting vessels sorting at-sea
may discard non-IFQ species and non-groundfish species. The sorting of
catch, weighing and discarding of any IFQ or IBQ species must be
monitored by the observer.
(h) Observer requirements--(1) Observer coverage requirements. (i)
Any vessel participating in the Shorebased IFQ Program must carry a
NMFS-certified observer during any trip until all fish from that trip
have been offloaded. If a vessel delivers fish from an IFQ trip to more
than one IFQ first receiver, the observer must remain onboard the
vessel during any transit between delivery points.
(ii) Observer deployment limitations and workload. Observer must
not be deployed for more than 22 calendar days in a calendar month. The
observer program may issue waivers to allow observers to work more than
22 calendar days per month when it's anticipated one trip will last
over 20 days or for issues with observer availability due illness or
injury of other observers.
(A) If an observer is unable to perform their duties for any
reason, the vessel is required to be in port within 36 hours of the
last haul sampled by the observer.
(B) [Reserved]
(iii) Refusal to board. Any boarding refusal on the part of the
observer or vessel must be immediately reported to the observer program
and NOAA OLE by the observer provider. The observer must be available
for an interview with the observer program or NOAA OLE if necessary.
(2) Vessel responsibilities. An operator and/or crew of a vessel
required to carry an observer must provide:
(i) Accommodations and food. (A) Accommodations and food for trips
less than 24 hours must be equivalent to those provided for the crew.
[[Page 78400]]
(B) Accommodations and food for trips of 24 hours or more must be
equivalent to those provided for the crew and must include berthing
space, a space that is intended to be used for sleeping and is provided
with installed bunks and mattresses. A mattress or futon on the floor
or a cot is not acceptable if a regular bunk is provided to any crew
member, unless other arrangements are approved in advance by the
Regional Administrator or their designee.
(ii) Safe conditions. (A) Maintain safe conditions on the vessel
for the protection of observers including adherence to all U.S. Coast
Guard and other applicable rules, regulations, statutes, and guidelines
pertaining to safe operation of the vessel, including, but not limited
to rules of the road, vessel stability, emergency drills, emergency
equipment, vessel maintenance, vessel general condition and port bar
crossings. An observer may refuse boarding or reboarding a vessel and
may request a vessel to return to port if operated in an unsafe manner
or if unsafe conditions are identified.
(B) Have on board a valid Commercial Fishing Vessel Safety Decal
that certifies compliance with regulations found in 33 CFR Chapter I
and 46 CFR Chapter I, a certificate of compliance issued pursuant to 46
CFR 28.710 or a valid certificate of inspection pursuant to 46 U.S.C.
3311.
(iii) Computer hardware and software. [Reserved]
(iv) Vessel position. Allow observer(s) access to the vessel's
navigation equipment and personnel, on request, to determine the
vessel's position.
(v) Access. Allow observer(s) free and unobstructed access to the
vessel's bridge, trawl or working deck, holding bins, sorting areas,
cargo hold, and any other space that may be used to hold, process,
weigh, or store fish at any time.
(vi) Prior notification. Notify observer(s) at least 15 minutes
before fish are brought on board to allow sampling the catch.
(vii) Records. Allow observer(s) to inspect and copy any state or
Federal logbook maintained voluntarily or as required by regulation.
(viii) Assistance. Provide all other reasonable assistance to
enable observer(s) to carry out their duties, including, but not
limited to:
(A) Measuring decks, codends, and holding bins.
(B) Providing a designated working area on deck for the observer(s)
to collect, sort and store catch samples.
(C) Collecting samples of catch.
(D) Collecting and carrying baskets of fish.
(E) Allowing the observer(s) to collect biological data and
samples.
(F) Providing adequate space for storage of biological samples.
(G) Providing time between hauls to sample and record all catch.
(H) Sorting retained and discarded catch into quota pound
groupings.
(I) Stowing all catch from a haul before the next haul is brought
aboard.
(ix) Sampling station. To allow the observer to carry out the
required duties, the vessel owner must provide an observer sampling
station that is:
(A) Accessible. The observer sampling station must be available to
the observer at all times.
(B) Limits hazards. To the extent possible, the area should be free
and clear of hazards including, but not limited to, moving fishing
gear, stored fishing gear, inclement weather conditions, and open
hatches.
(x) Transfers at sea. Transfers at-sea are prohibited.
(3) Procurement of observer services--(i) Owners of vessels
required to carry observers under paragraph (a)(1) of this section must
arrange for observer services from a permitted observer provider,
except that:
(A) Vessels are required to procure observer services directly from
NMFS when NMFS has determined and given notification that the vessel
must carry NMFS staff or an individual authorized by NMFS in lieu of an
observer provided by a permitted observer provider.
(B) Vessels are required to procure observer services directly from
NMFS and a permitted observer provider when NMFS has determined and
given notification that the vessel must carry NMFS staff and/or
individuals authorized by NMFS, in addition to an observer provided by
a permitted observer provider.
(ii) [Reserved]
(4) Application to become an observer provider. Any observer
provider holding a valid permit issued by the North Pacific observer
program in 2010 can supply observer services to the west coast trawl
fishery and will be issued a West Coast Groundfish Observer Program
permit.
(5) Observer provider responsibilities.
(i) Provide qualified candidates to serve as observers. Observer
providers must provide qualified candidates to serve as observers. To
be qualified, a candidate must have:
(A) A Bachelor's degree or higher from an accredited college or
university with a major in one of the natural sciences;
(B) Successfully completed a minimum of 30 semester hours or
equivalent in applicable biological sciences with extensive use of
dichotomous keys in at least one course;
(C) Successfully completed at least one undergraduate course each
in math and statistics with a minimum of 5 semester hours total for
both; and
(D) Computer skills that enable the candidate to work competently
with standard database software and computer hardware.
(ii) Hiring an observer candidate--(A) The observer provider must
provide the candidate a copy of NMFS-provided pamphlets, information
and other literature describing observer duties, for example, the West
Coast Groundfish Observer Program's sampling manual. Observer job
information is available from the Observer Program Office's web site at
http://www.nwfsc.noaa.gov/research/divisions/fram/observer/index.cfm.
(B) Observer contracts. The observer provider must have a written
contract or a written contract addendum signed by the observer and
observer provider prior to the observer's deployment with the following
clauses:
(1) That all the observer's in-season messages and catch reports
required to be sent while deployed are delivered to the Observer
Program Office as specified by written Observer Program instructions;
(2) That the observer inform the observer provider prior to the
time of embarkation if he or she is experiencing any new mental illness
or physical ailments or injury since submission of the physician's
statement as required as a qualified observer candidate that would
prevent him or her from performing their assigned duties; and
(3) That every observer completes a basic cardiopulmonary
resuscitation/first aid course prior to the end of the NMFS West Coast
Groundfish Observer Training class.
(iii) Ensure that observers complete duties in a timely manner. An
observer provider must ensure that observers employed by that observer
provider do the following in a complete and timely manner:
(A) Submit to NMFS all data, logbooks and reports and biological
samples as required under the observer program policy deadlines.
(B) Report for his or her scheduled debriefing and complete all
debriefing responsibilities; and
(C) Return all sampling and safety gear to the Observer Program
Office at the termination of their contract.
(D) Immediately report to the Observer Program Office and the NOAA
OLE any refusal to board an assigned vessel.
[[Page 78401]]
(iv) Observers provided to vessel. (A) Must have a valid West Coast
Groundfish observer certification endorsement;
(B) Must not have informed the provider prior to the time of
embarkation that he or she is experiencing a mental illness or a
physical ailment or injury developed since submission of the
physician's statement, as required in paragraph (h)(5)(xi)(B) of this
section that would prevent him or her from performing his or her
assigned duties; and
(C) Must have successfully completed all NMFS required training and
briefing before deployment.
(v) Respond to industry requests for observers. An observer
provider must provide an observer for deployment pursuant to the terms
of the contractual relationship with the vessel to fulfill vessel
requirements for observer coverage under paragraphs (h)(5)(xi)(D) of
this section. An alternate observer must be supplied in each case where
injury or illness prevents the observer from performing his or her
duties or where the observer resigns prior to completion of his or her
duties. If the observer provider is unable to respond to an industry
request for observer coverage from a vessel for whom the provider is in
a contractual relationship due to the lack of available observers by
the estimated embarking time of the vessel, the provider must report it
to NMFS at least 4 hours prior to the vessel's estimated embarking
time.
(vi) Provide observer salaries and benefits. An observer provider
must provide to its observer employees salaries and any other benefits
and personnel services in accordance with the terms of each observer's
contract.
(vii) Provide observer deployment logistics. (A) An observer
provider must ensure each of its observers under contract:
(1) Has an individually assigned mobile or cell phones, in working
order, for all necessary communication. An observer provider may
alternatively compensate observers for the use of the observer's
personal cell phone or pager for communications made in support of, or
necessary for, the observer's duties.
(2) Calls into the NMFS deployment hotline upon departing and
arriving into port for each trip to leave the following information:
observer name, phone number, vessel departing on, expected trip end
date and time.
(3) Remains available to NOAA Office for Law Enforcement and the
Observer Program until the conclusion of debriefing.
(4) Receives all necessary transportation, including arrangements
and logistics, of observers to the initial location of deployment, to
all subsequent vessel assignments during that deployment, and to the
debriefing location when a deployment ends for any reason; and
(5) Receives lodging, per diem, and any other services necessary to
observers assigned to fishing vessels.
(i) An observer under contract may be housed on a vessel to which
he or she is assigned: Prior to their vessel's initial departure from
port; for a period not to exceed twenty-four hours following the
completion of an offload when the observer has duties and is scheduled
to disembark; or for a period not to exceed twenty-four hours following
the vessel's arrival in port when the observer is scheduled to
disembark.
(ii) During all periods an observer is housed on a vessel, the
observer provider must ensure that the vessel operator or at least one
crew member is aboard.
(iii) Otherwise, each observer between vessels, while still under
contract with a permitted observer provider, shall be provided with
accommodations in accordance with the contract between the observer and
the observer provider. If the observer provider is responsible for
providing accommodations under the contract with the observer, the
accommodations must be at a licensed hotel, motel, bed and breakfast,
or other shoreside accommodations that has an assigned bed for each
observer that no other person may be assigned to for the duration of
that observer's stay. Additionally, no more than four beds may be in
any room housing observers at accommodations meeting the requirements
of this section.
(viii) Observer deployment limitations and workload. (A) Not deploy
an observer on the same vessel more than 90 calendar days in a 12-month
period, unless otherwise authorized by NMFS.
(B) Not exceed observer deployment limitations and workload as
outlined in paragraph (h)(1)(ii) of this section.
(ix) Verify vessel's safety decal. An observer provider must verify
that a vessel has a valid USCG safety decal as required under paragraph
(h)(2)(ii)(B) of this section before an observer may get underway
aboard the vessel. One of the following acceptable means of
verification must be used to verify the decal validity:
(A) An employee of the observer provider, including the observer,
visually inspects the decal aboard the vessel and confirms that the
decal is valid according to the decal date of issuance; or
(B) The observer provider receives a hard copy of the USCG
documentation of the decal issuance from the vessel owner or operator.
(x) Maintain communications with observers. An observer provider
must have an employee responsible for observer activities on call 24
hours a day to handle emergencies involving observers or problems
concerning observer logistics, whenever observers are at sea, in
transit, or in port awaiting vessel reassignment.
(xi) Maintain communications with the Observer Program Office. An
observer provider must provide all of the following information by
electronic transmission (e-mail), fax, or other method specified by
NMFS.
(A) Observer training, briefing, and debriefing registration
materials. This information must be submitted to the Observer Program
Office at least 7 business days prior to the beginning of a scheduled
West Coast groundfish observer certification training or briefing
session.
(1) Training registration materials consist of the following:
(i) Date of requested training;
(ii) A list of observer candidates that includes each candidate's
full name (i.e., first, middle and last names), date of birth, and
gender;
(iii) A copy of each candidate's academic transcripts and resume;
(iv) A statement signed by the candidate under penalty of perjury
which discloses the candidate's criminal convictions;
(v) Projected observer assignments. Prior to the observer's
completion of the training or briefing session, the observer provider
must submit to the Observer Program Office a statement of projected
observer assignments that includes each observer's name, current
mailing address, e-mail address, phone numbers and port of embarkation
(``home port''); and
(vi) Length of each observer's contract.
(2) Briefing registration materials consist of the following:
(i) Date and type of requested briefing session;
(ii) List of observers to attend the briefing session, that
includes each observer's full name (first, middle, and last names);
(iii) Projected observer assignments. Prior to the observer's
completion of the training or briefing session, the observer provider
must submit to the Observer Program Office a statement of projected
observer assignments that includes each observer's name, current
mailing address, e-mail address, phone numbers and port of embarkation
(``home port''); and
(iv) Length of each observer's contract.
(3) Debriefing. The West Coast Groundfish Observer Program will
[[Page 78402]]
notify the observer provider which observers require debriefing and the
specific time period the provider has to schedule a date, time, and
location for debriefing. The observer provider must contact the West
Coast Groundfish Observer program within 5 business days by telephone
to schedule debriefings.
(i) Observer providers must immediately notify the observer program
when observers end their contract earlier than anticipated.
(ii) [Reserved]
(B) Physical examination. A signed and dated statement from a
licensed physician that he or she has physically examined an observer
or observer candidate. The statement must confirm that, based on that
physical examination, the observer or observer candidate does not have
any health problems or conditions that would jeopardize that
individual's safety or the safety of others while deployed, or prevent
the observer or observer candidate from performing his or her duties
satisfactorily. The statement must declare that, prior to the
examination, the physician was made aware of the duties of the observer
and the dangerous, remote, and rigorous nature of the work by reading
the NMFS-prepared information. The physician's statement must be
submitted to the Observer Program Office prior to certification of an
observer. The physical exam must have occurred during the 12 months
prior to the observer's or observer candidate's deployment. The
physician's statement will expire 12 months after the physical exam
occurred. A new physical exam must be performed, and accompanying
statement submitted, prior to any deployment occurring after the
expiration of the statement.
(C) Certificates of insurance. Copies of ``certificates of
insurance'', that name the NMFS Observer Program leader as the
``certificate holder'', shall be submitted to the Observer Program
Office by February 1 of each year. The certificates of insurance shall
verify the following coverage provisions and state that the insurance
company will notify the certificate holder if insurance coverage is
changed or canceled.
(1) Maritime Liability to cover ``seamen's'' claims under the
Merchant Marine Act (Jones Act) and General Maritime Law ($1 million
minimum).
(2) Coverage under the U.S. Longshore and Harbor Workers'
Compensation Act ($1 million minimum).
(3) States Worker's Compensation as required.
(4) Commercial General Liability.
(D) Observer provider contracts. If requested, observer providers
must submit to the Observer Program Office a completed and unaltered
copy of each type of signed and valid contract (including all
attachments, appendices, addendums, and exhibits incorporated into the
contract) between the observer provider and those entities requiring
observer services under paragraph (h)(1)(i) of this section. Observer
providers must also submit to the Observer Program Office upon request,
a completed and unaltered copy of the current or most recent signed and
valid contract (including all attachments, appendices, addendums, and
exhibits incorporated into the contract and any agreements or policies
with regard to observer compensation or salary levels) between the
observer provider and the particular entity identified by the Observer
Program or with specific observers. The copies must be submitted to the
Observer Program Office via e-mail, fax, or mail within 5 business days
of the request. Signed and valid contracts include the contracts an
observer provider has with:
(1) Vessels required to have observer coverage as specified at
paragraph (h)(1)(i) of this section; and
(2) Observers.
(E) Change in observer provider management and contact information.
An observer provider must submit to the Observer Program Office any
change of management or contact information submitted on the provider's
permit application under paragraph (h)(4) of this section within 30
days of the effective date of such change.
(F) Biological samples. The observer provider must ensure that
biological samples are stored/handled properly prior to delivery/
transport to NMFS.
(G) Observer status report. Each Tuesday, observer providers must
provide NMFS with an updated list of contact information for all
observers that includes the observer's name, mailing address, e-mail
address, phone numbers, port of embarkation (``home port''), fishery
deployed the previous week and whether or not the observer is ``in
service'', indicating when the observer has requested leave and/or is
not currently working for the provider.
(H) Providers must submit to NMFS, if requested, copies of any
information developed and used by the observer providers distributed to
vessels, such as informational pamphlets, payment notification,
description of observer duties, etc.
(I) Other reports. Reports of the following must be submitted in
writing to the West Coast Groundfish Observer Program Office by the
observer provider via fax or e-mail address designated by the Observer
Program Office within 24 hours after the observer provider becomes
aware of the information:
(1) Any information regarding possible observer harassment;
(2) Any information regarding any action prohibited under Sec.
660.112 or Sec. 600.725(o), (t) and (u);
(3) Any concerns about vessel safety or marine casualty under 46
CFR 4.05-1(a)(1) through (7);
(4) Any observer illness or injury that prevents the observer from
completing any of his or her duties described in the observer manual;
and
(5) Any information, allegations or reports regarding observer
conflict of interest or breach of the standards of behavior described
in observer provider policy.
(xii) Replace lost or damaged gear. An observer provider must
replace all lost or damaged gear and equipment issued by NMFS to an
observer under contract to that provider. All replacements must be in
accordance with requirements and procedures identified in writing by
the Observer Program Office.
(xiii) Maintain confidentiality of information. An observer
provider must ensure that all records on individual observer
performance received from NMFS under the routine use provision of the
Privacy Act or as otherwise required by law remain confidential and are
not further released to anyone outside the employ of the observer
provider company to whom the observer was contracted except with
written permission of the observer.
(xiv) Limitations on conflict of interest. Observer providers:
(A) Must not have a direct financial interest, other than the
provision of observer services, in the North Pacific or Pacific coast
fishery managed under an FMP for the waters off the coasts of Alaska,
Washington, Oregon, and California, including, but not limited to:
(1) Any ownership, mortgage holder, or other secured interest in a
vessel or shoreside processor facility involved in the catching,
taking, harvesting or processing of fish,
(2) Any business involved with selling supplies or services to any
vessel or shoreside processors participating in a fishery managed
pursuant to an FMP in the waters off the coasts of Alaska, California,
Oregon, and Washington, or
(3) Any business involved with purchasing raw or processed products
from any vessel or shoreside processor participating in a fishery
managed pursuant to an FMP in the waters off the coasts of Alaska,
California, Oregon, and Washington.
[[Page 78403]]
(B) Must assign observers without regard to any preference by
representatives of vessels other than when an observer will be
deployed.
(C) Must not solicit or accept, directly or indirectly, any
gratuity, gift, favor, entertainment, loan, or anything of monetary
value except for compensation for providing observer services from
anyone who conducts fishing or fish processing activities that are
regulated by NMFS in the Pacific coast or North Pacific regions, or who
has interests that may be substantially affected by the performance or
non-performance of the official duties of observer providers.
(xv) Observer conduct and behavior. An observer provider must
develop and maintain a policy addressing observer conduct and behavior
for their employees that serve as observers.
(A) The policy shall address the following behavior and conduct
regarding:
(1) Observer use of alcohol;
(2) Observer use, possession, or distribution of illegal drugs;
and;
(3) Sexual contact with personnel of the vessel or processing
facility to which the observer is assigned, or with any vessel or
processing plant personnel who may be substantially affected by the
performance or non-performance of the observer's official duties.
(B) An observer provider shall provide a copy of its conduct and
behavior policy to each observer candidate and to the Observer Program
by February 1 of each year.
(xvi) Refusal to deploy an observer. Observer providers may refuse
to deploy an observer on a requesting vessel if the observer provider
has determined that the requesting vessel is inadequate or unsafe
pursuant to those described at Sec. 600.746 or U.S. Coast Guard and
other applicable rules, regulations, statutes, or guidelines pertaining
to safe operation of the vessel.
(6) Observer certification and responsibilities--(i) Applicability.
Observer certification authorizes an individual to fulfill duties as
specified in writing by the NMFS Observer Program Office while under
the employ of a NMFS-permitted observer provider and according to
certification requirements as designated under paragraph (h)(6)(iii) of
this section.
(ii) Observer certification official. The Regional Administrator
will designate a NMFS observer certification official who will make
decisions for the Observer Program Office on whether to issue or deny
observer certification.
(iii) Certification requirements--(A) Initial certification. NMFS
may certify individuals who, in addition to any other relevant
considerations:
(1) Are employed by an observer provider company permitted pursuant
to Sec. 660.140(h) at the time of the issuance of the certification;
(2) Have provided, through their observer provider:
(i) Information identified by NMFS at Sec. 679.50 regarding an
observer candidate's health and physical fitness for the job;
(ii) Meet all observer candidate education and health standards as
specified in Sec. 679.50; and
(iii) Have successfully completed NMFS-approved training as
prescribed by the At-Sea Hake and/or West Coast Groundfish Observer
Program. Successful completion of training by an observer applicant
consists of meeting all attendance and conduct standards issued in
writing at the start of training; meeting all performance standards
issued in writing at the start of training for assignments, tests, and
other evaluation tools; and completing all other training requirements
established by the Observer Program.
(iv) Have not been decertified under paragraph (h)(6)(ix) of this
section, or pursuant to Sec. 679.50.
(B) [Reserved]
(iv) Denial of a certification. The NMFS observer certification
official will issue a written determination denying observer
certification if the candidate fails to successfully complete training,
or does not meet the qualifications for certification for any other
relevant reason.
(v) Issuance of an observer certification. An observer
certification may be issued upon determination by the observer
certification official that the candidate has successfully met all
requirements for certification as specified at paragraph (h)(6)(iii) of
this section. The following endorsements must be obtained in addition
to observer certification, in order for an observer to deploy.
(A) West Coast Groundfish Observer Program training certification
endorsement. A training certification endorsement signifies the
successful completion of the training course required to obtain
observer certification. This endorsement expires when the observer has
not been deployed and performed sampling duties as required by the
Observer Program Office for a period of time, specified by the Observer
Program, after his or her most recent debriefing. The Observer can
renew the endorsement by successfully completing training once more.
(B) West Coast Groundfish Observer Program annual general
endorsement. Each observer must obtain an annual general endorsement to
their certification prior to his or her first deployment within any
calendar year subsequent to a year in which a training certification
endorsement is obtained. To obtain an annual general endorsement, an
observer must successfully complete the annual briefing, as specified
by the Observer Program. All briefing attendance, performance, and
conduct standards required by the Observer Program must be met.
(C) West Coast Groundfish Observer Program deployment endorsement.
Each observer who has completed an initial deployment after their
certification or annual briefing must receive a deployment endorsement
to their certification prior to any subsequent deployments for the
remainder of that year. An observer may obtain a deployment endorsement
by successfully completing all briefing requirements, when applicable.
The type of briefing the observer must attend and successfully complete
will be specified in writing by the Observer Program during the
observer's most recent debriefing.
(vi) Maintaining the validity of an observer certification. After
initial issuance, an observer must keep their certification valid by
meeting all of the following requirements specified below:
(A) Successfully perform their assigned duties as described in the
Observer Manual or other written instructions from the Observer Program
Office including calling in to the NMFS deployment hotline upon
departing and arriving in to port each trip to leave the following
information: Observer name, phone number, vessel name departing on,
date and time of departure and date and time of expected return.
(B) Accurately record their sampling data, write complete reports,
and report accurately any observations of suspected violations of
regulations relevant to conservation of marine resources or their
environment.
(C) Not disclose collected data and observations made on board the
vessel or in the processing facility to any person except the owner or
operator of the observed vessel or an authorized officer or NMFS.
(D) Successfully complete NMFS-approved annual briefings as
prescribed by the West Coast Groundfish Observer Program.
(E) Successful completion of briefing by an observer applicant
consists of meeting all attendance and conduct standards issued in
writing at the start of training; meeting all performance standards
issued in writing at the start of training for assignments, tests, and
other evaluation tools; and completing
[[Page 78404]]
all other briefing requirements established by the Observer Program.
(F) Hold current basic cardiopulmonary resuscitation/first aid
certification as per American Red Cross Standards.
(G) Successfully meet all expectations in all debriefings including
reporting for assigned debriefings.
(H) Submit all data and information required by the Observer
Program within the program's stated guidelines.
(I) Meet the minimum annual deployment period of 3 months at least
once every 12 months.
(vii) Limitations on conflict of interest. Observers:
(A) Must not have a direct financial interest, other than the
provision of observer services, in a fishery managed pursuant to an FMP
for the waters off the coast of Alaska, or in a Pacific Coast fishery
managed by either the state or Federal Governments in waters off
Washington, Oregon, or California, including but not limited to:
(1) Any ownership, mortgage holder, or other secured interest in a
vessel, shore-based or floating stationary processor facility involved
in the catching, taking, harvesting or processing of fish,
(2) Any business involved with selling supplies or services to any
vessel, shore-based or floating stationary processing facility; or
(3) Any business involved with purchasing raw or processed products
from any vessel, shore-based or floating stationary processing
facilities.
(B) Must not solicit or accept, directly or indirectly, any
gratuity, gift, favor, entertainment, loan, or anything of monetary
value from anyone who either conducts activities that are regulated by
NMFS in the Pacific coast or North Pacific regions or has interests
that may be substantially affected by the performance or nonperformance
of the observers' official duties.
(C) May not serve as observers on any vessel or at any shore-based
owned or operated by a person who employed the observer in the last two
years.
(D) May not solicit or accept employment as a crew member or an
employee of a vessel or shore-based processor while employed by an
observer provider.
(E) Provisions for remuneration of observers under this section do
not constitute a conflict of interest.
(viii) Standards of behavior. Observers must:
(A) Perform their duties as described in the Observer Manual or
other written instructions from the Observer Program Office.
(B) Immediately report to the Observer Program Office and the NOAA
OLE any time they refuse to board a vessel.
(C) Accurately record their sampling data, write complete reports,
and report accurately any observations of suspected violations of
regulations relevant to the conservation of marine resources of their
environment.
(D) Not disclose collected data and observations made on board the
vessel to any person except the owner or operator of the observed
vessel, an authorized officer, or NMFS.
(ix) Suspension and decertification--(A) Suspension and
decertification review official. The Regional Administrator (or a
designee) will designate an observer suspension and decertification
review official(s), who will have the authority to review observer
certifications and issue initial administrative determinations of
observer certification suspension and/or decertification.
(B) Causes for suspension or decertification. The suspension and
decertification official may initiate suspension or decertification
proceedings against an observer:
(1) When it is alleged that the observer has not met applicable
standards, including any of the following:
(i) Failed to satisfactorily perform duties as described or
directed by the observer program; or
(ii) Failed to abide by the standards of conduct for observers,
including conflicts of interest;
(2) Upon conviction of a crime or upon entry of a civil judgment
for:
(i) Commission of fraud or other violation in connection with
obtaining or attempting to obtain certification, or in performing the
duties as specified in writing by the NMFS Observer Program;
(ii) Commission of embezzlement, theft, forgery, bribery,
falsification or destruction of records, making false statements, or
receiving stolen property;
(iii) Commission of any other offense indicating a lack of
integrity or honesty that seriously and directly affects the fitness of
observers.
(C) Issuance of initial administrative determination. Upon
determination that suspension or decertification is warranted, the
suspension/decertification official will issue a written IAD to the
observer via certified mail at the observer's most current address
provided to NMFS. The IAD will identify whether a certification is
suspended or revoked and will identify the specific reasons for the
action taken. Decertification is effective 30 calendar days after the
date on the IAD, unless there is an appeal.
(D) Appeals. A certified observer who receives an IAD that suspends
or revokes his or her observer certification may appeal the
determination within 30 calendar days after the date on the IAD to the
Office of Administrative Appeals pursuant to Sec. 679.43.
(i) Catch monitor requirements for IFQ first receivers--(1) Catch
monitor coverage requirements. A catch monitor is required be present
at each IFQ first receiver whenever an IFQ landing is received, unless
the first receiver has been granted a written waiver from the catch
monitor requirements by NMFS.
(2) Procurement of catch monitor services. Owners or managers of
each IFQ first receiver must arrange for catch monitor services from a
certified catch monitor provider prior to accepting IFQ landings.
(3) Catch monitor safety. (i) Each IFQ first receiver must adhere
to all applicable rules, regulations, or statutes pertaining to safe
operation and maintenance of a processing and/or receiving facility.
(ii) The working hours of each individual catch monitor will be
limited as follows:
(A) An individual catch monitor shall not be required or permitted
to work more than 16 hours per calendar day, with maximum of 14 hours
being work other than the summary and submission of catch monitor data.
(B) Following monitoring shift of more than 10 hours, each catch
monitor must be provided with a minimum 6 hours break before they may
resume monitoring.
(4) Catch monitor access. (i) Each IFQ first receiver must allow
catch monitors free and unobstructed access to the catch throughout the
sorting process and the weighing process.
(ii) The IFQ first receiver must ensure that there is an
observation area available to the catch monitor that meets the
following standards:
(A) Access to the observation area. The observation area must be
freely accessible to NMFS staff, NMFS-authorized personnel, or
authorized officers at any time a valid catch monitoring plan is
required.
(B) Monitoring the flow of fish. The catch monitor must have an
unobstructed view or otherwise be able to monitor the entire flow of
fish between the delivery point and a location where all sorting has
takes place and each species has been weighed.
(C) Adequate lighting. Adequate lighting must be provided during
periods of limited visibility.
(iii) Each IFQ first receiver must allow catch monitors free and
unobstructed
[[Page 78405]]
access to any documentation required by regulation including fish
tickets, scale printouts and scale test results.
(5) Lockable cabinet. Each IFQ first receiver must provide a
secure, dry, and lockable cabinet or locker with the minimum interior
dimensions of two feet wide by two feet tall by two feet deep for the
exclusive use the catch monitor and NMFS staff or NMFS-authorized
agents.
(6) Plant liaison for the catch monitor. Each IFQ first receiver
must designate a plant liaison. The plant liaison is responsible for:
(i) Orienting new catch monitors to the facility;
(ii) Assisting in the resolution of catch monitoring concerns; and
(iii) Informing NMFS if changes must be made to the catch
monitoring plan.
(7) Reasonable assistance. Each IFQ first receiver must provide
reasonable assistance to the catch monitors to enable each catch
monitor to carry out his or her duties. Reasonable assistance includes,
but is not limited to: informing the monitor when bycatch species will
be weighed, and providing a secure place to store equipment and gear.
(j) Catch weighing requirements--(1) Catch monitoring plan. All
first receivers must operate under a NMFS-accepted catch monitoring
plan.
(2) Sorting and weighing IFQ landings--(i) Approved scales. The IFQ
first receiver must ensure that all IFQ species received from a vessel
making an IFQ landing are weighed on a scale(s) that meets the
requirements specified at Sec. 660.15(c).
(ii) Printed record. All scales identified in the catch monitoring
plan accepted by NMFS during the first receiver site license
application process, must produce a printed record for each delivery,
or portion of a delivery, weighed on that scale, with the following
exception: If approved by NMFS as part of the catch monitoring plan,
scales not designed for automatic bulk weighing may be exempted from
part or all of the printed record requirements. The printed record must
include:
(A) The first receiver's name;
(B) The weight of each load in the weighing cycle;
(C) The total weight of fish in each landing, or portion of the
landing that was weighed on that scale;
(D) The date the information is printed; and
(E) The name and vessel registration or documentation number of the
vessel making the delivery. The scale operator may write this
information on the scale printout in ink at the time of printing.
(iii) Scales that may be exempt from printed report. An IFQ first
receiver that receives no more than 200,000 pounds of groundfish in any
calendar month will be exempt from the requirement to produce a printed
record provided that:
(A) The first receiver has not previously operated under a catch
monitoring plan where a printed record was required;
(B) The first receiver ensures that all catch is weighed; and
(C) The catch monitor, NMFS staff, or authorized officer can verify
that all catch is weighed.
(iv) Retention of printed records. An IFQ first receiver must
maintain printouts on site until the end of the fishing year during
which the printouts were made and make them available upon request by
NMFS staff or an authorized officer for 3 years after the end of the
fishing year during which the printout was made.
(v) Weight monitoring. An IFQ first receiver must ensure that it is
possible for the catch monitor, NMFS staff, or authorized officer to
verify the weighing of all catch.
(vi) Catch sorting. All fish delivered to the plant must be sorted
and weighed by species as specified at Sec. 660.130(d).
(vii) Complete sorting. Sorting and weighing must be completed
prior to catch leaving the area that can be monitored from the catch
monitor's observation area.
(viii) Pacific whiting. For Pacific Whiting taken with midwater
trawl gear, IFQ first receivers may use an in-line conveyor or hopper
type scale to derive an accurate total catch weight prior to sorting.
Immediately following weighing of the total catch and prior to
processing or transport away from the point of landing, the catch must
be sorted to the species groups specified at Sec. 660.130(d) and all
incidental catch (groundfish and non groundfish species) must be
accurately weighed and the weight of incidental catch deducted from the
total catch weight to derive the weight of target species.
(ix) For all other IFQ landings the following weighing standards
apply:
(A) A belt or automatic hopper scale may be used to weigh all of
the catch prior to sorting. All but a single predominant species must
then be reweighed.
(B) An in-line conveyor or automatic hopper scale may be used to
weigh the predominant species after catch has been sorted. Other
species must be weighed in a manner that facilitates tracking of the
weights of those species.
(C) IFQ species or species group may be weighed in totes on a
platform scale capable of printing a label or tag and recording the
label or tag information to memory for printing a report as specified
at Sec. 660.15. The label or tag must remain affixed to the tote until
the tote is emptied. The label or tag must show the following
information:
(1) The species or species group;
(2) The weight of the fish in the tote;
(3) The date the label or tag was printed; and
(4) The vessel name.
(D) Totes and ice. If a catch monitoring plan proposes the use of
totes in which fish will be weighed, or a deduction for the weight of
ice, the deduction must be accurately accounted for. No deduction may
be made for the weight of water or slime. This standard may be met by:
(1) Taring the empty or pre-iced tote on the scale prior to filling
with fish;
(2) Labeling each tote with an individual tare weight. This weight
must be accurate within 500 grams (1 pound if scale is denominated in
pounds) for any given tote and the average error for all totes may not
exceed 200 grams (8 ounces for scales denominated in pounds);
(3) An alternate approach accepted by NMFS. NMFS will only accept
approaches that do not involve the estimation of the weight of ice or
the weight of totes and allow NMFS staff or an authorized officer to
verify that the deduction or tare weight is accurate.
(E) An alternate approach accepted by NMFS in the catch monitoring
plan.
(3) IFQ first receiver responsibilities relative to catch weighing
and monitoring of catch weighing. The IFQ first receiver must:
(i) General. (A) Ensure that all IFQ landings are sorted and
weighed as specified at Sec. 660.130(d) and in accordance with an
approved catch monitoring plan.
(B) [Reserved]
(ii) Catch monitors, NMFS staff, and authorized officers. (A) Have
a catch monitor on site the entire time an IFQ landing is being
offloaded, sorted, or weighed.
(B) Notify the catch monitor of the offloading schedule.
(C) Provide catch monitors, NMFS staff, or an authorized officer
with unobstructed access to any areas where IFQ species are or may be
sorted or weighed at any time IFQ species are being landed or
processed.
(D) Ensure that catch monitors, NMFS staff, or an authorized
officer are able to simultaneously observe the weighing of catch on the
scale and read the scale display at any time.
(E) Ensure that printouts of the scale weight of each delivery or
offload are made available to catch monitors, NMFS
[[Page 78406]]
staff, or an authorized officer at the time printouts are generated.
(4) Scale tests. (i) All testing must meet the scale test standards
specified at Sec. 660.15(c).
(ii) Inseason scale testing. First receivers must allow, and
provide reasonable assistance to a catch monitor, NMFS staff or an
authorized officer to test scales used to weigh IFQ catch. A scale that
does not pass an inseason test may not be used to weigh IFQ catch until
the scale passes an inseason test or is approved for continued use by
the weights and measures authorities of the state in which the scale is
located.
(k) Gear switching. (1) Participants in the Shorebased IFQ Program
may take IFQ species using any legal groundfish non-trawl gear (i.e.,
gear switching) and are exempt from the gear endorsements at Sec.
660.25(b)(3) for limited entry fixed gear permits, provided the
following requirements are met:
(i) The vessel must be registered to a limited entry trawl permit.
(ii) The vessel must be registered to a vessel account that is not
in deficit on any IFQ species.
(iii) The vessel operator must have submitted a valid gear
declaration for the trip that declares ``Limited entry groundfish non-
trawl, shorebased IFQ,'' as specified in Sec. 660.13(d)(5)(iv)(A), and
does not declare any other designation (a Shorebased IFQ Program trip
may not be combined with any other designation).
(iv) The vessel must comply with prohibitions applicable to limited
entry fixed gear fishery as specified at Sec. 660.212, gear
restrictions applicable to limited entry fixed gear as specified in
Sec. Sec. 660.219 and 660.230(b), and management measures specified in
Sec. 660.230(d), including restrictions on the fixed gear allowed
onboard, its usage, and applicable fixed gear groundfish conservation
area restrictions, except that the vessel will not be subject to
limited entry fixed gear trip limits when fishing in the Shorebased IFQ
Program.
(v) The vessel must comply with the limited entry trawl trip limits
for species/species groups not covered under the Shorebased IFQ Program
or whiting trip limits outside the primary season.
(vi) The vessel must comply with recordkeeping and reporting
requirements applicable to limited entry trawl gear as specified in
Sec. 660.113.
(vii) The vessel must comply with and observer requirements and all
other provisions of the Shoreside IFQ Program as specified in this
section.
(2) [Reserved]
(l) Adaptive management program--(1) General. The adaptive
management program (AMP) is a set-aside of 10 percent of the non-
whiting QS to address the following objectives:
(i) Community stability;
(ii) Processor stability;
(iii) Conservation;
(iv) Unintended/unforeseen consequences of IFQ management; or
(v) Facilitating new entrants.
(2) Years one and two. The 10 percent of non-whiting QS will be
reserved for the AMP during years one and two of the Shorebased IFQ
Program, but the resulting AMP QP will be issued to all QS permit
owners in proportion to their non-whiting QS during years one and two.
0
25. In Sec. 660.150;
0
a. Paragraph (a) introductory text and paragraphs (a)(3), (a)(4), (d),
(f)(3), (f)(6)(vi), (g)(3)(i)(C), and (g)(6)(viii) are revised;
0
b. The headings of paragraphs (b), (c), (e), (g)(1)(iv), (g)(2), and
(k) are revised, and text is added to paragraphs (b), (c), (e),
(g)(1)(iv), (g)(2), and (k).
0
c. Paragraphs (f)(2), (f)(4), (g)(3)(ii), (g)(4), and (h) through (j)
are added; and
0
d. Paragraph (g)(1) introductory text is revised, and paragraph
(g)(1)(v) is removed;
0
e. Paragraph (l) is removed to read as follows:
Sec. 660.150 Mothership (MS) Coop Program.
(a) General. The MS Coop Program requirements in this section will
be effective beginning January 1, 2011. The MS Coop Program is a
general term to describe the limited access program that applies to
eligible harvesters and processors in the mothership sector of the
Pacific whiting at-sea trawl fishery. Eligible harvesters and
processors, including coop and non-coop fishery participants, must meet
the requirements set forth in this section of the Pacific Coast
groundfish regulations. Each year a vessel registered to an MS/CV-
endorsed permit may fish in either the coop or non-coop portion of the
MS Coop Program, but not both. In addition to the requirements of this
section, the MS Coop Program is subject to the following groundfish
regulations of subparts C and D of this part:
* * * * *
(3) Regulations set out in the following sections of subpart C:
Sec. 660.11 Definitions, Sec. 660.12 Prohibitions, Sec. 660.13
Recordkeeping and reporting, Sec. 660.14 VMS requirements, Sec.
660.15 Equipment requirements, Sec. 660.16 Groundfish Observer
Program, Sec. 660.20 Vessel and gear identification, Sec. 660.25
Permits, Sec. 660.55 Allocations, Sec. 660.60 Specifications and
management measures, Sec. 660.65 Groundfish harvest specifications,
and Sec. Sec. 660.70 through 660.79 Closed areas.
(4) Regulations set out in the following sections of subpart D:
Sec. 660.111 Trawl fishery definitions, Sec. 660.112 Trawl fishery
prohibitions, Sec. 660.113 Trawl fishery recordkeeping and reporting,
Sec. 660.120 Trawl fishery crossover provisions, Sec. 660.130 Trawl
fishery management measures, and Sec. 660.131 Pacific whiting fishery
management measures.
* * * * *
(b) Participation requirements and responsibilities--(1) Mothership
vessels. (i) Mothership vessel participation requirements. A vessel is
eligible to receive and process catch as a mothership in the MS Coop
Program if:
(A) The vessel is registered to an MS permit;
(B) The vessel is not used to fish as a catcher vessel in the
mothership sector of the Pacific whiting fishery in the same calendar
year; and
(C) The vessel is not used to fish as a C/P in the Pacific whiting
fishery in the same calendar year.
(ii) Mothership vessel responsibilities. The owner and operator of
a mothership vessel must:
(A) Recordkeeping and reporting. Maintain a valid declaration as
specified at Sec. 660.13(d), subpart C; and, maintain and submit all
records and reports specified at Sec. 660.113(c) including, economic
data, scale tests records, and cease fishing reports.
(B) Observers. As specified at paragraph (j) of this section,
procure observer services, maintain the appropriate level of coverage,
and meet the vessel responsibilities.
(C) Catch weighing requirements. The owner and operator of a MS
vessel must:
(1) Ensure that all catch is weighed in its round form on a NMFS-
approved scale that meets the requirements described in section Sec.
660.15(b), subpart C;
(2) Provide a NMFS-approved platform scale, belt scale, and test
weights that meet the requirements described in section Sec.
660.15(b), subpart C.
(2) Mothership catcher vessels--(i) Mothership catcher vessel
participation requirements--(A) A vessel is eligible to harvest in the
MS Coop Program if the following conditions are met:
(1) If the vessel is used to fish as a mothership catcher vessel
for a permitted MS coop, the vessel is registered to a limited entry
permit with a trawl endorsement and NMFS has been notified that the
vessel is authorized to fish for the coop.
[[Page 78407]]
(2) If the vessel is used to harvest fish in the non-coop fishery,
the vessel is registered to an MS/CV-endorsed limited entry permit.
(3) The vessel is not used to harvest fish or process as a
mothership or catcher/processor vessel in the same calendar year.
(4) The vessel does not catch more than 30 percent of the Pacific
whiting allocation for the mothership sector.
(B) [Reserved]
(ii) Mothership catcher vessel responsibilities--(A) Observers. As
specified at paragraph (j) of this section, procure observer services,
maintain the appropriate level of coverage, and meet the vessel
responsibilities.
(B) Recordkeeping and reporting. Maintain a valid declaration as
specified at Sec. 660.13(d), subpart C; and, maintain and submit all
records and reports specified at Sec. 660.113(c) including, economic
data and scale tests records, if applicable.
(3) MS coops--(i) MS coop participation requirements. For a MS coop
to participate in the Pacific whiting mothership sector fishery it
must:
(A) Be issued a MS coop permit;
(B) Be composed of MS/CV-endorsed limited entry permit owners;
(C) Be formed voluntarily;
(D) Be a legally recognized entity that represents its members;
(E) Designate an individual as a coop manager; and
(F) Include at least 20 percent of all MS/CV-endorsed permits as
members. The coop membership percentage will be interpreted by rounding
to the nearest whole permit (i.e. less than 0.5 rounds down and 0.5 and
greater rounds up).
(ii) MS coop responsibilities. A MS coop is responsible for:
(A) Applying for and being registered to a MS coop permit;
(B) Organizing and coordinating harvest activities of vessels
authorized to fish for the coop;
(C) Reassigning catch history assignments for use by coop members;
(D) Organizing and coordinating the transfer and leasing of catch
allocations with other permitted coops through inter-coop agreements;
(E) Monitoring harvest activities and enforcing the catch limits of
coop members;
(F) Submitting an annual report.
(G) Having a designated coop manager. The designated coop manager
must:
(1) Serve as the contact person between NMFS, the Council, and
other coops;
(2) Be responsible for the annual distribution of catch and bycatch
allocations among coop members;
(3) Oversee reassignment of catch allocations within the coop;
(4) Oversee inter-coop catch allocation reassignments;
(5) Prepare and submit an annual report on behalf of the coop;
(6) Be authorized to receive or respond to any legal process in
which the coop is involved; and
(7) Notify NMFS if the coop dissolves.
(iii) MS coop compliance and joint/several liability. An MS coop
must comply with the provisions of this section. The MS coop, member
limited entry permit owners, and owners and operators of vessels
registered to member limited entry permits, are jointly and severally
responsible for compliance with the provisions of this section.
Pursuant to 15 CFR part 904, each MS coop, member permit owner, and
owner and operator of a vessel registered to a coop member permit may
be charged jointly and severally for violations of the provisions of
this section. For purposes of enforcement, an MS coop is a legal entity
that can be subject to NOAA enforcement action for violations of the
provisions of this section.
(c) MS Coop Program species and allocations--(1) MS Coop Program
species. MS Coop Program species are as follows:
(i) Species with formal allocations to the MS Coop Program are
Pacific whiting, canary rockfish, darkblotched rockfish, Pacific Ocean
perch, and widow rockfish;
(ii) Species with set-asides for the MS and C/P Coop Programs
combined, as described in Tables 1d and 2d, subpart C.
(2) Annual mothership sector sub-allocations. Annual allocation
amount(s) will be determined using the following procedure:
(i) MS/CV catch history assignments. Catch history assignments will
be based on catch history using the following methodology:
(A) Pacific whiting catch history assignment. For each MS/CV-
endorsed limited entry permit, the permit's entire catch history
assignment of Pacific whiting will be annually allocated to a single
permitted MS coop or to the non-coop fishery. An MS/CV-endorsed permit
owner cannot divide the permit's catch history assignment between more
than one MS coop or between a coop and the non-coop fishery for that
year. Once assigned to a permitted MS coop or to the non-coop fishery,
the permit's catch history assignment remains with that permitted MS
coop or non-coop fishery for that calendar year. When the mothership
sector allocation is established through the final Pacific whiting
specifications, the information for the conversion of catch history
assignment to pounds will be made available to the public through a
Federal Register announcement and/or public notice and/or the NMFS Web
site. The amount of whiting from the catch history assignment will be
issued to the nearest whole pound using standard rounding rules (i.e.
less than 0.5 rounds down and 0.5 and greater rounds up).
(B) Non-whiting groundfish species catch--(1) Non-whiting
groundfish species with a mothership sector allocation will be divided
annually between the permitted coops and the non-coop fishery. The
pounds associated with each permitted MS coop will be provided when the
coop permit is issued.
(2) Groundfish species with at-sea sector set-asides will be
managed on an annual basis unless there is a risk of a harvest
specification being exceeded, unforeseen impact on another fisheries,
or conservation concerns in which case inseason action may be taken.
Set asides may be adjusted through the biennial specifications and
management measures process as necessary.
(3) Groundfish species not addressed in paragraph (1) or (2) above,
will be managed on an annual basis unless there is a risk of a harvest
specification being exceeded, unforeseen impact on another fisheries,
or conservation concerns in which case inseason action may be taken.
(4) Halibut set-asides. Annually a specified amount of the Pacific
halibut will be held in reserve as a shared set-aside for bycatch in
the at-sea Pacific whiting fisheries and the shorebased trawl sector
south of 40[deg]10' N. lat.
(ii) Annual coop allocations--(A) Pacific whiting. Each permitted
MS coop is authorized to harvest a quantity of Pacific whiting that is
based on the sum of the catch history assignments for each member MS/
CV-endorsed permit identified in the NMFS-accepted coop agreement for a
given calendar year. Other limited entry permits registered to vessels
that will fish for the coop do not bring catch allocation to a
permitted MS coop.
(B) Non-whiting groundfish with allocations. Sub-allocations of
non-whiting groundfish species with allocations to permitted MS coops
will be in proportion to the Pacific whiting catch history assignments
assigned to each permitted MS coop.
(iii) Annual non-coop allocation--(A) Pacific whiting. The non-coop
whiting
[[Page 78408]]
fishery is authorized to harvest a quantity of Pacific whiting that is
remaining in the mothership sector annual allocation after the
deduction of all coop allocations.
(B) Non-whiting groundfish with allocations. The sub-allocation to
the non-coop fishery will be in proportion to the mothership catcher
vessel Pacific whiting catch history assignments for the non-coop
fishery.
(C) Announcement of the non-coop fishery allocations. Information
on the amount of Pacific whiting and non-whiting groundfish with
allocations that will be made available to the non-coop fishery when
the final Pacific whiting specifications for the mothership sector is
established and will be announced to the public through a Federal
Register announcement and/or public notice and/or the NMFS Web site.
(3) Reaching an allocation or sub-allocation. When the mothership
sector Pacific whiting allocation, Pacific whiting sub-allocation, or
non-whiting groundfish catch allocation is reached or is projected to
be reached, the following action may be taken:
(i) Further harvesting, receiving or at-sea processing by a
mothership or catcher vessel in the mothership sector is prohibited
when the mothership sector Pacific whiting allocation or non-whiting
groundfish allocation is projected to be reached. No additional
unprocessed groundfish may be brought on board after at-sea processing
is prohibited, but a mothership may continue to process catch that was
on board before at-sea processing was prohibited. Pacific whiting may
not be taken and retained, possessed, or landed by a catcher vessel
participating in the mothership sector.
(ii) When a permitted MS coop sub-allocation of Pacific whiting or
non-whiting groundfish species is reached, further harvesting or
receiving of groundfish by vessels fishing in the permitted MS coop
must cease, unless the permitted MS coop is operating under an NMFS-
accepted inter-coop agreement.
(iii) When the non-coop fishery sub-allocation of Pacific whiting
or non-whiting groundfish species is projected to be reached, further
harvesting or receiving of groundfish by vessels fishing in under the
non-coop fishery must cease.
(4) Non-whiting groundfish species reapportionment. This paragraph
(c)(4) describes the process for reapportioning non-whiting groundfish
species with allocations between permitted MS coops and the catcher/
processor sector. Reapportionment of mothership sector allocations to
the catcher/processor will not occur until all permitted MS coops and
the non-coop fishery have been closed by NMFS or have informed NMFS
that they have ceased operations for the remainder of the calendar
year.
(i) Within the mothership sector. The Regional Administrator may
make available for harvest to permitted coops and the non-coop fishery
that have not notified NMFS that they have ceased fishing for the year,
the amounts of a permitted MS coop's non-whiting catch allocation
remaining when a coop reaches its Pacific whiting allocation or when
the designated coop manager notifies NMFS that a permitted coop has
ceased fishing for the year. The reapportioned allocations will be in
proportion to their original allocations.
(ii) Between the mothership and catcher/processor sectors. The
Regional Administrator may make available for harvest to the catcher/
processor sector of the Pacific whiting fishery, the amounts of the
mothership sector's non-whiting catch allocation remaining when the
Pacific whiting allocation is reached or participants in the sector do
not intend to harvest the remaining allocation. The designated coop
manager, or in the case of an inter-coop, all of the designated coop
managers must submit a cease fishing report to NMFS indicating that
harvesting has concluded for the year. At any time after greater than
80 percent of the Mothership sector Pacific whiting allocation has been
harvested, the Regional Administrator may contact designated coop
managers to determine whether they intend to continue fishing. When
considering redistribution of non-whiting catch allocation, the
Regional Administrator will take in to consideration the best available
data on total projected fishing impacts. Reapportionment between
permitted MS coops and the non-coop fishery within the mothership
sector will be in proportion to their original coop allocations for the
calendar year.
(iii) Set-aside species. No inseason management actions are
associated with set asides.
(5) Announcements. The Regional Administrator will announce in the
Federal Register when the mothership sector or the allocation of
Pacific whiting or non-whiting groundfish with an allocation is
reached, or is projected to be reached, and specify the appropriate
action. In order to prevent exceeding an allocation and to avoid
underutilizing the resource, prohibitions against further taking and
retaining, receiving, or at-sea processing of Pacific whiting, or
reapportionment of non-whiting groundfish with allocations may be made
effective immediately by actual notice to fishers and processors, by e-
mail, internet (www.nwr.noaa.gov/Groundfish-Halibut/Groundfish-Fishery-Management/Whiting-Management/index.cfm), phone, fax, letter, press
release, and/or USCG Notice to Mariners (monitor channel 16 VHF),
followed by publication in the Federal Register, in which instance
public comment will be sought for a reasonable period of time
thereafter.
(6) Redistribution of annual allocation--(i) Between permitted MS
coops (inter-coop). (A) Through an inter-coop agreement, the designated
coop managers of permitted MS coops may distribute Pacific whiting and
non-whiting groundfish allocations among one or more permitted MS
coops, provided the processor obligations at paragraph (c)(7) of this
section have been met or a mutual agreement exception at paragraph
(c)(7)(iv) of this section has been submitted to NMFS.
(B) In the case of a MS coop failure during the Pacific whiting
primary season for the mothership sector, unused allocation associated
with the catch history will not be available for harvest by the coop
that failed, by any former members of the coop that failed, or any
other MS coop for the remainder of that calendar year.
(ii) Between the MS coop and non-coop fisheries. Pacific whiting
may not be redistributed between the coop and non-coop fisheries.
(ii) Between Pacific whiting sectors. Pacific whiting may not be
redistributed between the mothership sector and catcher/processor
sector. Whiting may not be redistributed to the Shorebased IFQ Program.
(7) Processor obligation and mutual agreement exceptions--(i)
Processor obligation. Through the annual MS/CV-endorsed limited entry
permit renewal process, the MS/CV-endorsed permit owner must identify
to NMFS to which MS permit the MS/CV permit owner intends to obligate
the catch history assignment associated with that permit if they are
participating in the MS coop fishery. Only one MS permit may be
designated (the obligation may not be split among MS permits).
(ii) Expiration of a processor obligation. Processor obligations
expire at the end of each calendar year when the MS Coop Permit
expires.
(iii) Processor obligation when MS coop allocation is
redistributed. When a permitted MS coop redistributes Pacific whiting
allocation within the permitted MS coop or from one permitted MS coop
to another permitted MS coop through an inter-coop agreement, such
allocations must be delivered to the
[[Page 78409]]
mothership registered to the MS permit to which the allocation was
obligated under the processor obligation submitted to NMFS, unless a
mutual agreement exception has been submitted to NMFS.
(iv) Mutual agreement exception. An MS/CV-endorsed permit's catch
history assignment can be released from a processor obligation through
a mutual agreement exception. The MS/CV-endorsed permit owner must
submit a copy to NMFS of the written agreement that includes the
initial MS permit owner's acknowledgment of the release of the MS/CV-
endorsed permit owner's processor obligation and the MS/CV-endorsed
permit owner must identify a processor obligation for a new MS permit.
(v) MS permit withdrawal. If an MS permit withdraws from the
mothership fishery before the resulting amounts of catch history
assignment have been announced by NMFS, any MS/CV-endorsed permit
obligated to the MS permit may elect to participate in the coop or non-
coop fishery. In such an event, the MS permit owner must provide
written notification of its withdrawal to NMFS and all MS/CV-endorsed
permits that are obligated to the MS permit, and the owner of each MS/
CV-endorsed permit obligated to the MS permit must provide written
notification to NMFS of their intent to either participate in the non-
coop fishery or the coop fishery, and if participating in the coop
fishery must identify a processor obligation for a new MS permit.
(vi) Submission of a mutual agreement exception or MS permit
withdrawal. Written notification of a mutual exception agreement or MS
permit withdrawal must be submitted to NMFS, Northwest Region, Permits
Office, Bldg. 1, 7600 Sand Point Way, NE., Seattle, WA 98115.
(d) MS coop permit and agreement--(1) Eligibility and registration.
(i) Eligibility. To be an eligible coop entity a group of MS/CV-
endorsed permit owners (coop members) must be a recognized entity under
the laws of the United States or the laws of a State and represent all
of the coop members.
(ii) Annual registration and deadline. Each year, a coop entity
intending to participate as a coop under the MS Coop Program must
submit an application for a MS coop permit between February 1 and March
31 of the year in which it intends to fish. NMFS will not consider any
applications received after March 31. A MS coop permit expires on
December 31 of the year in which it was issued.
(iii) Application for MS coop permit. The designated coop manager,
on behalf of the coop entity, must submit a complete application form
and include each of the items listed in paragraph (d)(1)(iii)(A) of
this section. Only complete applications will be considered for
issuance of a MS coop permit. An application will not be considered
complete if any required application fees and annual coop reports have
not been received by NMFS. NMFS may request additional supplemental
documentation as necessary to make a determination of whether to
approve or disapprove the application. Application forms and
instruction are available on the NMFS NWR Web site (http://www.nwr.noaa.gov) or by request from NMFS. The designated coop manager
must sign the application acknowledging the responsibilities of a
designated coop manager defined in paragraph (b)(3) of this section.
(A) Coop agreement. Signed copies of the coop agreement must be
submitted to NMFS before the coop is authorized to engage in fishing
activities. A coop agreement must include all of the information listed
in this paragraph to be considered a complete coop agreement. NMFS will
only review complete coop agreements. A coop agreement will not be
accepted unless it includes all of the required information; the
descriptive items listed in this paragraph appear to meet the stated
purpose; and information submitted is correct and accurate.
(1) Coop agreement contents. Each coop agreement must be signed by
all of the coop members (MS/CV-endorsed permit owners) and include the
following information:
(i) A list of all vessels, and permit holders participating in the
coop and their share of the allocated catch which must match the amount
distributed to individual permit owners by NMFS.
(ii) All MS/CV-endorsed limited entry member permits identified by
permit number.
(iii) A processor obligation clause indicating that each MS/CV-
endorsed permit has notified a specific MS permit by September 1 of the
previous year of that MS/CV-endorsed permit's intent to obligate its
catch history assignment to that MS permit, except that for the 2011
fishery, such notification must have been made prior to submission of
the MS coop permit application.
(iv) A clause indicting that each member MS/CV-endorsed permit's
catch history assignment is based on the catch history assignment
calculation by NMFS used for distribution to the coop.
(v) A description of the coop's plan to adequately monitor and
account for the catch of Pacific whiting and non-whiting groundfish
allocations, and to monitor and account for the catch of prohibited
species.
(vi) A clause stating that if a permit is transferred during the
effective period of the coop agreement, any new owners of that member
permit would be coop members required to comply with membership
restrictions in the coop agreement.
(vii) A description of the coop's enforcement and penalty
provisions adequate to maintain catch of Pacific whiting and non-
whiting groundfish within the allocations.
(viii) A description of measures to reduce catch of overfished
species.
(ix) A clause describing the co-op manager's responsibility for
managing inter-coop reassignments of catch history assignment, should
any occur.
(x) A clause describing how the annual report will be produced to
document the coop's catch, bycatch data, inseason catch history
reassignments and any other significant activities undertaken by the
coop during the year, and the submission deadlines for that report.
(xi) Identification of the designated coop manager.
(xii) Provisions that prohibit member permit owners that have
incurred legal sanctions that prevent them from fishing groundfish in
the Council region from fishing in the coop.
(2) Inter-coop agreement. The coop entity must provide, at the time
of annual application, copies of any inter-coop agreement(s) into which
the coop has entered. Such agreements must incorporate and honor the
provisions of the individual coop agreements for each coop that is a
party to the inter-coop agreement. Inter-coop agreements are specified
at paragraph (e) of this section.
(B) Acceptance of a coop agreement--(1) If NMFS does not accept the
coop agreement, the coop permit application will be returned to the
applicant with a letter stating the reasons the coop agreement was not
accepted by NMFS.
(2) Coop agreements that are not accepted may be resubmitted for
review by sufficiently addressing the deficiencies identified in the
NMFS letter and resubmitting the entire coop permit application by the
date specified in the NMFS letter.
(3) An accepted coop agreement that was submitted with the MS coop
permit application and for which a MS coop permit was issued will
remain in place through the end of the calendar year. The designated
coop manager must resubmit a complete coop agreement to
[[Page 78410]]
NMFS consistent with the coop agreement contents described in paragraph
(d)(1)(iii)(A)(1) of this section if there is a material change to the
coop agreement.
(4) Within 7 calendar days following a material change, the
designated coop manager must notify NMFS of the material change. Within
30 calendar days, the designated coop manger must submit to NMFS the
revised coop agreement with a letter that describes such changes. NMFS
will review the material changes and provide a letter to the coop
manager that either accepts the changes as given or does not accept the
revised coop agreement with a letter stating the reasons that it was
not accepted by NMFS. The coop may resubmit the coop agreement with
further revisions to the material changes responding to NMFS concerns.
(iv) Effective date of MS coop permit. A MS coop permit will be
effective upon the date approved by NMFS and will allow fishing from
the start of the MS sector primary whiting season until the end of the
calendar year or until one or more of the following events occur,
whichever comes first:
(A) NMFS permanently closes the mothership sector fishing season
for the year or a specific MS coop or the designated coop manager
notifies NMFS that the coop has completed fishing for the calendar
year,
(B) The coop has reached its Pacific whiting allocation,
(C) A material change to the coop agreement has occurred and the
designated coop manager failed to notify NMFS within 7 calendar days of
the material change and submit to NMFS the revised coop agreement with
a letter that describes such changes within 30 calendar days, or
(D) NMFS has determined that a coop failure occurred.
(2) Initial administrative determination. For all complete
applications, NMFS will issue an IAD that either approves or
disapproves the application. If approved, the IAD will include a MS
coop permit. If disapproved, the IAD will provide the reasons for this
determination.
(3) Appeals. An appeal to a MS coop permit action follows the same
process as the general permit appeals process defined at Sec.
660.25(g), subpart C.
(4) Fees. The Regional Administrator is authorized to charge fees
for administrative costs associated with the issuance of a MS coop
permit consistent with the provisions given at Sec. 660.25(f), subpart
C.
(5) Cost recovery. [Reserved]
(e) Inter-coop agreements--(1) General. Permitted MS coops may
voluntarily enter into inter-coop agreements for the purpose of sharing
permitted MS coop allocations of Pacific whiting and allocated non-
whiting groundfish. If two or more permitted MS coops enter into an
inter-coop agreement, the inter-coop agreement must incorporate and
honor the provisions of each permitted MS coop subject to the inter-
coop agreement.
(2) Submission of inter-coop agreements. Inter-coop agreements must
be submitted to NMFS for acceptance.
(3) Inter-coop agreement review process. Each designated coop
manager must submit a copy of the inter-coop agreement signed by both
designated coop managers for review. Complete coop agreements
containing all items listed under paragraph (d)(1)(iii)(A)(1) will be
reviewed by NMFS.
* * * * *
(f) * * *
(2) Renewal, change of permit ownership, or vessel registration--
(i) Renewal. An MS permit must be renewed annually consistent with the
limited entry permit regulations given at Sec. 660.25(b)(4), subpart
C. If a vessel registered to the MS permit will operate as a mothership
in the year for which the permit is renewed, the permit owner must make
a declaration as part of the permit renewal that while participating in
the whiting fishery it will operate solely as a mothership during the
calendar year to which its limited entry permit applies. Any such
declaration is binding on the vessel for the calendar year, even if the
permit is transferred during the year, unless it is rescinded in
response to a written request from the permit owner. Any request to
rescind a declaration must be made by the permit holder and granted in
writing by the Regional Administrator before any unprocessed whiting
has been taken on board the vessel that calendar year.
(ii) Change of permit ownership. An MS permit is subject to the
limited entry permit change in permit ownership regulations given at
Sec. 660.25(b)(4), subpart C.
(iii) Change of vessel registration. An MS permit is subject to the
limited entry permit change of vessel registration regulations given at
Sec. 660.25(b)(4), subpart C.
(3) Accumulation limits--(i) MS permit usage limit. No person who
owns an MS permit(s) may register the MS permit(s) to vessels that
cumulatively process more than 45 percent of the annual mothership
sector Pacific whiting allocation. For purposes of determining
accumulation limits, NMFS requires that permit owners submit a complete
trawl ownership interest form for the permit owner as part of annual
renewal for the MS permit. An ownership interest form will also be
required whenever a new permit owner obtains an MS permit as part of a
permit transfer request. Accumulation limits will be determined by
calculating the percentage of ownership interest a person has in any MS
permit. Determination of ownership interest will subject to the
individual and collective rule.
(ii) Ownership--individual and collective rule. The ownership that
counts toward a person's accumulation limit will include:
(A) Any MS permit owned by that person, and
(B) A portion of any MS permit owned by an entity in which that
person has an interest, where the person's share of interest in that
entity will determine the portion of that entity's ownership that
counts toward the person's limit.
(iii) [Reserved]
(iv) Trawl identification of ownership interest form. Any person
that is applying for or renewing an MS permit shall document those
persons that have an ownership interest in the permit greater than or
equal to 2 percent. This ownership interest must be documented with the
SFD via the Trawl Identification of Ownership Interest Form. SFD will
not issue an MS Permit unless the Trawl Identification of Ownership
Interest Form has been completed. NMFS may request additional
information of the applicant as necessary to verify compliance with
accumulation limits.
(4) Appeals. An appeal to an MS permit action follows the same
process as the general permit appeals process defined at Sec.
660.25(g), subpart C.
* * * * *
(6) * * *
(vi) Initial administrative determination (IAD). NMFS will issue an
IAD for all complete, certified applications received by the
application deadline date. If NMFS approves an application for initial
issuance of an MS permit, the applicant will receive an MS permit. If
NMFS disapproves an application, the IAD will provide the reasons. If
the applicant does not appeal the IAD within 60 calendar days of the
date on the IAD, the IAD becomes the final decision of the Regional
Administrator acting on behalf of the Secretary of Commerce.
* * * * *
(g) Mothership catcher vessel (MS/CV)--endorsed permit--(1)
General. Any vessel that delivers whiting to a mothership processor in
the Pacific whiting fishery mothership sector must
[[Page 78411]]
be registered to an MS/CV-endorsed permit, except that a vessel
registered to limited entry trawl permit without an MS/CV or C/P
endorsement may fish for a coop if authorized by the coop. Within the
MS Coop Program, an MS/CV-endorsed permit may participate in an MS coop
or in the non-coop fishery. An MS/CV-endorsed permit is a limited entry
permit and is subject to the limited entry permit provisions given at
Sec. 660.25(b), subpart C.
* * * * *
(iv) Restrictions on processing for MS/CV-endorsed permits. A
vessel registered to an MS/CV-endorsed permit in a given year shall not
engage in processing of Pacific whiting during that year.
* * * * *
(2) Renewal, change of permit owner, vessel registration, or
combination--(i) Renewal. An MS/CV-endorsed permit must be renewed
annually consistent with the limited entry permit regulations given at
Sec. 660.25(b)(4), subpart C. During renewal, all MS/CV-endorsed
limited entry permit owners must make a preliminary declaration
regarding their intent to participate in the coop or non-coop portion
of the MS Coop Program for the following year. If the owner of the MS/
CV-endorsed permit intends to participate in the coop portion of the MS
Coop Program, they must also declare which MS vessel to which they
intend to obligate the permit's catch history assignment. MS/CV-
endorsed permits not obligated to a permitted MS coop by March 31 of
the fishing year will be assigned to the non-coop fishery. For an MS/
CV-endorsed permit that is not renewed, the following occurs:
(A) For the first year after the permit is not renewed, the permit
will be extinguished, and the catch history assignment from that permit
will be assigned to the non-coop fishery.
(B) In the year after the permit is extinguished (the second year
after the permit is not renewed), the catch history assignment from
that permit will be redistributed proportionally to all valid MS/CV-
endorsed permits.
(ii) Change of permit ownership. An MS/CV-endorsed permit is
subject to the limited entry permit change in permit ownership
regulations given at Sec. 660.25(b)(4), subpart C.
(iii) Change of vessel registration. An MS/CV-endorsed permit is
subject to the limited entry permit change of vessel registration
regulations given at Sec. 660.25(b)(4), subpart C.
(iv) Combination. An MS/CV-endorsed permit may be combined with one
or more other limited entry trawl permits; the resulting permit will be
a single permit with an increased size endorsement. If the MS/CV-
endorsed permit is combined with another limited entry trawl-endorsed
permit other than a C/P-endorsed permit, the resulting permit will be
MS/CV-endorsed. If an MS/CV-endorsed permit is combined with a C/P-
endorsed permit, the resulting permit will be exclusively a C/P-
endorsed permit, and will not have an MS/CV endorsement. If an MS/CV-
endorsed permit is combined with another MS/CV-endorsed permit, the
combined catch history assignment of the permit(s) will be added to the
active permit (the permit remaining after combination) and the other
permit will be retired. NMFS will not approve a permit combination if
it results in a person exceeding the accumulation limits specified at
paragraph (g)(3) of this section. Any request to combine permits is
subject to the provision provided at Sec. 660.25(b), including the
combination formula for resulting size endorsements.
* * * * *
(3) * * *
(i) * * *
(C) Trawl identification of ownership interest form. Any person
that owns a limited entry trawl permit and that is applying for or
renewing an MS/CV endorsement shall document those persons that have an
ownership interest in the permit greater than or equal to 2 percent.
This ownership interest must be documented with the SFD via the Trawl
Identification of Ownership Interest Form. SFD will not issue an MS/CV
endorsement unless the Trawl Identification of Ownership Interest Form
has been completed. NMFS may request additional information of the
applicant as necessary to verify compliance with accumulation limits.
Further, if SFD discovers through review of the Trawl Identification of
Ownership Interest Form that a person owns or controls more than the
accumulation limits, the person will be subject to divestiture
provisions specified in paragraph (g)(3)(i)(D) of this section.
* * * * *
(ii) Catcher vessel usage limit. No vessel may catch more than 30
percent of the mothership sector's whiting allocation.
(4) Appeals. An appeal to an MS/CV-endorsed permit action follows
the same process as the general permit appeals process defined at Sec.
660.25(g), subpart C.
* * * * *
(6) * * *
(viii) Initial Administrative Determination (IAD). NMFS will issue
an IAD for all complete, certified applications received by the
application deadline date. If NMFS approves an application for initial
issuance of an MS/CV-endorsed permit and associated catch history
assignment, the applicant will receive an MS/CV endorsement on a
limited entry trawl permit specifying the amounts of catch history
assignment for which the applicant has qualified. If NMFS disapproves
an application, the IAD will provide the reasons. If known at the time
of the IAD, NMFS will indicate if the owner of the MS/CV-endorsed
permit has ownership interest in catch history assignments that exceed
the accumulation limits and are subject to divestiture provisions given
at paragraph (g)(3)(i)(D) of this section. If the applicant does not
appeal the IAD within 60 calendar days of the date on the IAD, the IAD
becomes the final decision of the Regional Administrator acting on
behalf of the Secretary of Commerce.
* * * * *
(h) Non-coop fishery--(1) Access to non-coop fishery allocation.
All vessels registered to the MS/CV-endorsed permits assigned to the
non-coop fishery will have access to harvest and deliver the aggregate
catch history assignment of all MS/CV permits assigned to the non-coop
fishery.
(2) Non-coop fishery closure. The non-coop fishery will be closed
by automatic action as specified at Sec. 660.60(d) when the Pacific
whiting or non-whiting allocations to the non-coop fishery have been
reached or are projected to be reached.
(i) Retention requirements. Catcher vessels participating in the MS
Coop Program may discard minor operational amounts of catch at sea if
the observer has accounted for the discard (i.e., a maximized retention
fishery).
(j) Observer requirements--(1) Observer coverage requirements. (i)
Coverage. (A) Motherships. Any vessel registered to an MS permit 125 ft
(38.1 m) LOA or longer must carry two NMFS-certified observers, and any
vessel registered to an MS permit shorter than 125 ft (38.1 m) LOA must
carry one NMFS-certified observer, each day that the vessel is used to
take, retain, receive, land, process, or transport groundfish.
(B) Catcher vessels. Any vessel delivering catch to any mothership
must carry one NMFS-certified observer each day that the vessel is used
to take groundfish.
(ii) Observer workload--(A) Motherships. The time required for the
[[Page 78412]]
observer to complete sampling duties must not exceed 12 consecutive
hours in each 24-hour period.
(B) Catcher vessels. If an observer is unable to perform their
duties for any reason, the vessel is required to be in port within 36
hours of the last haul sampled by the observer.
(iii) Refusal to board. Any boarding refusal on the part of the
observer or vessel must be reported to the observer program and NOAA
OLE by the observer provider. The observer must be available for an
interview with the observer program or NOAA OLE if necessary.
(2) Vessel responsibilities. An operator and/or crew of a vessel
required to carry an observer must provide:
(i) Accommodations and food--(A) Motherships. Provide
accommodations and food that are equivalent to those provided for
officers, engineers, foremen, deck-bosses or other management level
personnel of the vessel.
(B) Catcher vessels--(1) Accommodations and food for trips less
than 24 hours must be equivalent to those provided for the crew.
(2) Accommodations and food for trips of 24 hours or more must be
equivalent to those provided for the crew and must include berthing
space, a space that is intended to be used for sleeping and is provided
with installed bunks and mattresses. A mattress or futon on the floor
or a cot is not acceptable if a regular bunk is provided to any crew
member, unless other arrangements are approved in advance by the
Regional Administrator or their designee.
(ii) Safe conditions. Motherships and Catcher Vessels must:
(A) Maintain safe conditions on the vessel for the protection of
observers including adherence to all U.S. Coast Guard and other
applicable rules, regulations, or statutes pertaining to safe operation
of the vessel including, but not limited to, rules of the road, vessel
stability, emergency drills, emergency equipment, vessel maintenance,
vessel general condition, and port bar crossings. An observer may
refuse boarding or reboarding a vessel and may request a vessel return
to port if operated in an unsafe manner or if unsafe conditions are
indentified.
(B) Have on board a valid Commercial Fishing Vessel Safety Decal
that certifies compliance with regulations found in 33 CFR chapter I
and 46 CFR Chapter I, a certificate of compliance issued pursuant to 46
CFR 28.710 or a valid certificate of inspection pursuant to 46 U.S.C.
3311.
(iii) Computer hardware and software--(A) Motherships must:
(1) Provide hardware and software pursuant to regulations at
Sec. Sec. 679.50(g)(1)(iii)(B)(1) through 679.50(g)(1)(iii)(B)(3).
(2) Provide the observer(s) access to a computer required under
paragraph (j)(2)(iii)(A) of this section, and that is connected to a
communication device that provides a point-to-point connection to the
NMFS host computer.
(3) Ensure that the mothership has installed the most recent
release of NMFS data entry software provided by the Regional
Administrator, or other approved software prior to the vessel
receiving, catching or processing IFQ species.
(4) Ensure that the communication equipment required in paragraph
(j)(2)(iii) of this section and that is used by observers to enter and
transmit data, is fully functional and operational. ``Functional''
means that all the tasks and components of the NMFS supplied, or other
approved, software described at paragraph (j)(2)(iii) of this section
and the data transmissions to NMFS can be executed effectively aboard
the vessel by the communications equipment.
(B) Catcher vessels. [Reserved]
(iv) Vessel position. Allow observer(s) access to the vessel's
navigation equipment and personnel, on request, to determine the
vessel's position.
(v) Access. Allow observer(s) free and unobstructed access to the
vessel's bridge, trawl or working decks, holding bins, processing
areas, freezer spaces, weight scales, cargo holds, and any other space
that may be used to hold, process, weigh, or store fish or fish
products at any time.
(vi) Prior notification. Notify observer(s) at least 15 minutes
before fish are brought on board, or fish and fish products are
transferred from the vessel, to allow sampling the catch or observing
the transfer.
(vii) Records. Allow observer(s) to inspect and copy any state or
Federal logbook maintained voluntarily or as required by regulation.
(viii) Assistance. Provide all other reasonable assistance to
enable observer(s) to carry out their duties, including, but not
limited to:
(A) Measuring decks, codends, and holding bins.
(B) Providing the observer(s) with a safe work area.
(C) Collecting samples of catch.
(D) Collecting and carrying baskets of fish.
(E) Allowing the observer(s) to collect biological data and
samples.
(F) Providing adequate space for storage of biological samples.
(ix) Sample station and operational requirements.
(A) Motherships. To allow the observer to carry out required
duties, the vessel owner must provide an observer sampling station that
meets the following requirements:
(1) Accessibility. The observer sampling station must be available
to the observer at all times.
(2) Location. The observer sampling station must be located within
4 m of the location from which the observer samples unsorted catch.
(3) Access. Unobstructed passage must be provided between the
observer sampling station and the location where the observer collects
sample catch.
(4) Minimum work space. The observer must have a working area of at
least 4.5 square meters, including the observer's sampling table, for
sampling and storage of fish to be sampled. The observer must be able
to stand upright and have a work area at least 0.9 m deep in the area
in front of the table and scale.
(5) Table. The observer sampling station must include a table at
least 0.6 m deep, 1.2 m wide and 0.9 m high and no more than 1.1 m
high. The entire surface area of the table must be available for use by
the observer. Any area for the observer sampling scale is in addition
to the minimum space requirements for the table. The observer's
sampling table must be secured to the floor or wall.
(6) Diverter board. The conveyor belt conveying unsorted catch must
have a removable board (``diverter board'') to allow all fish to be
diverted from the belt directly into the observer's sampling baskets.
The diverter board must be located downstream of the scale used to
weigh total catch. At least 1 m of accessible belt space, located
downstream of the scale used to weigh total catch, must be available
for the observer's use when sampling.
(7) Other requirements. The sampling station must be in a well-
drained area that includes floor grating (or other material that
prevents slipping), lighting adequate for day or night sampling, and a
hose that supplies fresh or sea water to the observer.
(8) Observer sampling scale. The observer sample station must
include a NMFS-approved platform scale (pursuant to requirements at
Sec. 679.28(j)(2)) with a capacity of at least 50 kg located within 1
m of the observer's sampling table. The scale must be mounted so that
the weighing surface is no more than 0.7 m above the floor.
(B) Catcher vessels. To allow the observer to carry out the
required
[[Page 78413]]
duties, the vessel owner must provide an observer sampling station that
is:
(1) Accessible. The observer sampling station must be available to
the observer at all times.
(2) Limits hazards. To the extent possible, the area should be free
and clear of hazards including, but not limited to, moving fishing
gear, stored fishing gear, inclement weather conditions, and open
hatches.
(x) Transfer at sea. Observers may be transferred at-sea between
motherships, between motherships and catcher-processors, or between a
mothership and a catcher vessel. Transfers at-sea between catcher
vessels is prohibited. For transfers, both vessels must:
(A) Ensure that transfers of observers at sea via small boat under
its own power are carried out during daylight hours, under safe
conditions, and with the agreement of observers involved.
(B) Notify observers at least 3 hours before observers are
transferred, such that the observers can finish any sampling work,
collect personal belongings, equipment, and scientific samples.
(C) Provide a safe pilot ladder and conduct the transfer to ensure
the safety of observers during transfers.
(D) Provide an experienced crew member to assist observers in the
small boat in which any transfer is made.
(3) Procurement of observer services--(i) Motherships--(A) Owners
of vessels required to carry observers under paragraph (j)(1)(i) of
this section must arrange for observer services from a permitted
observer provider, except that:
(1) Vessels are required to procure observer services directly from
NMFS when NMFS has determined and given notification that the vessel
must carry NMFS staff or an individual authorized by NMFS in lieu of an
observer provided by a permitted observer provider.
(2) Vessels are required to procure observer services directly from
NMFS and a permitted observer provider when NMFS has determined and
given notification that the vessel must carry NMFS staff and/or
individuals authorized by NMFS, in addition to an observer provided by
a permitted observer provider.
(B) [Reserved]
(ii) Catcher vessels--(A) Owners of vessels required to carry
observers under paragraph (j)(1)(i) of this section must arrange for
observer services from a permitted observer provider, except that:
(1) Vessels are required to procure observer services directly from
NMFS when NMFS has determined and given notification that the vessel
must carry NMFS staff or an individual authorized by NMFS in lieu of an
observer provided by a permitted observer provider.
(2) Vessels are required to procure observer services directly from
NMFS and a permitted observer provider when NMFS has determined and
given notification that the vessel must carry NMFS staff and/or
individuals authorized by NMFS, in addition to an observer provided by
a permitted observer provider.
(B) [Reserved]
(4) Application to become an observer provider--(i) Motherships.
Any observer provider holding a valid permit issued by the North
Pacific Groundfish Observer Program in 2010 can supply observer
services and will be issued a West Coast Groundfish Observer Program
permit.
(ii) Catcher vessels. [Reserved]
(5) Observer provider responsibilities--(i) Provide qualified
candidates to serve as observers. Observer providers must provide
qualified candidates to serve as observers. To be qualified, a
candidate must have:
(A) A Bachelor's degree or higher from an accredited college or
university with a major in one of the natural sciences;
(B) Successfully completed a minimum of 30 semester hours or
equivalent in applicable biological sciences with extensive use of
dichotomous keys in at least one course;
(C) Successfully completed at least one undergraduate course each
in math and statistics with a minimum of 5 semester hours total for
both; and
(D) Computer skills that enable the candidate to work competently
with standard database software and computer hardware.
(ii) Hiring an observer candidate--(A) Motherships.
(1) The observer provider must provide the candidate a copy of
NMFS-provided pamphlets, information and other literature describing
observer duties (i.e. The At-Sea Hake Observer Program's Observer
Manual) prior to hiring the candidate. Observer job information is
available from the Observer Program Office's Web site at http://www.nwfsc.noaa.gov/research/divisions/fram/observer/atseahake.cfm.
(2) Observer contracts. The observer provider must have a written
contract or a written contract addendum that is signed by the observer
and observer provider prior to the observer's deployment with the
following clauses:
(i) That all the observer's in-season messages and catch reports
required to be sent while deployed are delivered to the Observer
Program Office as specified by written Observer Program instructions;
(ii) That the observer inform the observer provider prior to the
time of embarkation if he or she is experiencing any new mental illness
or physical ailments or injury since submission of the physician's
statement as required as a qualified observer candidate that would
prevent him or her from performing their assigned duties.
(B) Catcher vessels--(1) Provide the candidate a copy of NMFS-
provided pamphlets, information and other literature describing
observer duties, for example, the West Coast Groundfish Observer
Program's sampling manual. Observer job information is available from
the Observer Program Office's Web site at http://www.nwfsc.noaa.gov/research/divisions/fram/observer/index.cfm.
(2) Observer contracts. The observer provider must have a written
contract or a written contract addendum that is signed by the observer
and observer provider prior to the observer's deployment with the
following clauses:
(i) That all the observer's in-season messages and catch reports
required to be sent while deployed are delivered to the Observer
Program Office as specified by written Observer Program instructions;
(ii) That the observer inform the observer provider prior to the
time of embarkation if he or she is experiencing any new mental illness
or physical ailments or injury since submission of the physician's
statement as required as a qualified observer candidate that would
prevent him or her from performing their assigned duties; and
(iii) That the observer completes a basic cardiopulmonary
resuscitation/first aid course prior to the end of the NMFS West Coast
Groundfish Observer Training class.
(iii) Ensure that observers complete duties in a timely manner--(A)
Motherships. An observer provider must ensure that observers employed
by that observer provider do the following in a complete and timely
manner:
(1) Submit to NMFS all data, logbooks, and reports as required by
the Observer Manual;
(2) Report for his or her scheduled debriefing and complete all
debriefing responsibilities;
(3) Return all sampling and safety gear to the Observer Program
Office;
(4) Submit all biological samples from the observer's deployment by
the completion of the electronic vessel and/or processor survey(s); and
[[Page 78414]]
(5) Immediately report to the Observer Program Office and the NOAA
OLE any refusal to board an assigned vessel.
(B) Catcher vessels. An observer provider must ensure that
observers employed by that observer provider do the following in a
complete and timely manner:
(1) Submit to NMFS all data, logbooks, and reports as required by
the Observer Manual;
(2) Report for his or her scheduled debriefing and complete all
debriefing responsibilities; and
(3) Return all sampling and safety gear to the Observer Program
Office.
(4) Immediately report to the Observer Program Office and the NOAA
OLE any refusal to board an assigned vessel.
(iv) Observers provided to vessel--(A) Motherships. Observers
provided to mothership vessels:
(1) Must have a valid North Pacific groundfish observer
certification endorsement and an At-Sea Hake Observer Program
certification;
(2) Must not have not informed the provider prior to the time of
embarkation that he or she is experiencing a mental illness or a
physical ailment or injury developed since submission of the
physician's statement that would prevent him or her from performing his
or her assigned duties; and
(3) Must have successfully completed all NMFS required training and
briefing before deployment.
(B) Catcher vessels. Observers provided to catcher vessels:
(1) Must have a valid West Coast Groundfish observer certification;
(2) Must have not informed the provider prior to the time of
embarkation that he or she is experiencing a mental illness or a
physical ailment or injury developed since submission of the
physician's statement, as required in paragraph (j)(5)(x)(B)(2) of this
section that would prevent him or her from performing his or her
assigned duties; and
(3) Must have successfully completed all NMFS required training and
briefing before deployment.
(v) Respond to industry requests for observers. An observer
provider must provide an observer for deployment pursuant to the terms
of the contractual relationship with the vessel to fulfill vessel
requirements for observer coverage specified at paragraph (j)(1)(i) of
this section. An alternate observer must be supplied in each case where
injury or illness prevents the observer from performing his or her
duties or where the observer resigns prior to completion of his or her
duties. If the observer provider is unable to respond to an industry
request for observer coverage from a vessel for whom the provider is in
a contractual relationship due to lack of available observers by the
estimated embarking time of the vessel, the provider must report it to
the observer program at least 4 hours prior to the vessel's estimated
embarking time.
(vi) Provide observer salaries and benefits. An observer provider
must provide to its observer employees salaries and any other benefits
and personnel services in accordance with the terms of each observer's
contract.
(vii) Provide observer deployment logistics--(A) Motherships. An
observer provider must provide to each of its observers under contract:
(1) All necessary transportation, including arrangements and
logistics, of observers to the initial location of deployment, to all
subsequent vessel assignments during that deployment, and to the
debriefing location when a deployment ends for any reason; and
(2) Lodging, per diem, and any other services necessary to
observers assigned to fishing vessels.
(3) An observer under contract may be housed on a vessel to which
he or she is assigned:
(i) Prior to their vessel's initial departure from port;
(ii) For a period not to exceed twenty-four hours following the
completion of an offload when the observer has duties and is scheduled
to disembark; or
(iii) For a period not to exceed twenty-four hours following the
vessel's arrival in port when the observer is scheduled to disembark.
(iv) During all periods an observer is housed on a vessel, the
observer provider must ensure that the vessel operator or at least one
crew member is aboard.
(v) An observer under contract who is between vessel assignments
must be provided with shoreside accommodations pursuant to the terms of
the contract between the observer provider and the observers. If the
observer provider is responsible for providing accommodations under the
contract with the observer, the accommodations must be at a licensed
hotel, motel, bed and breakfast, or other shoreside accommodations for
the duration of each period between vessel or shoreside assignments.
Such accommodations must include an assigned bed for each observer and
no other person may be assigned that bed for the duration of that
observer's stay. Additionally, no more than four beds may be in any
room housing observers at accommodations meeting the requirements of
this section.
(B) Catcher vessels. An observer provider must ensure each of its
observers under contract:
(1) Has an individually assigned mobile or cell phones, in working
order, for all necessary communication. An observer provider may
alternatively compensate observers for the use of the observer's
personal cell phone or pager for communications made in support of, or
necessary for, the observer's duties.
(2) Calls into the NMFS deployment hotline upon departing and
arriving into port for each trip to leave the following information:
Observer name, phone number, vessel departing on, expected trip end
date and time.
(3) Remains available to NOAA OLE and the Observer Program until
the conclusion of debriefing.
(4) Receives all necessary transportation, including arrangements
and logistics, of observers to the initial location of deployment, to
all subsequent vessel assignments during that deployment, and to the
debriefing location when a deployment ends for any reason; and
(5) Receives lodging, per diem, and any other services necessary to
observers assigned to fishing vessels.
(i) An observer under contract may be housed on a vessel to which
he or she is assigned: Prior to their vessel's initial departure from
port; for a period not to exceed 24 hours following the completion of
an offload when the observer has duties and is scheduled to disembark;
or for a period not to exceed twenty-four hours following the vessel's
arrival in port when the observer is scheduled to disembark.
(ii) During all periods an observer is housed on a vessel, the
observer provider must ensure that the vessel operator or at least one
crew member is aboard.
(iii) Otherwise, each observer between vessels, while still under
contract with a permitted observer provider, shall be provided with
accommodations in accordance with the contract between the observer and
the observer provider. If the observer provider is responsible for
providing accommodations under the contract with the observer, the
accommodations must be at a licensed hotel, motel, bed and breakfast,
or other shoreside accommodations that has an assigned bed for each
observer that no other person may be assigned to for the duration of
that observer's stay. Additionally, no more than four beds may be in
any room housing observers at accommodations meeting the requirements
of this section.
(viii) Observer deployment limitations--(A) Motherships. Unless
alternative arrangements are approved
[[Page 78415]]
by the Observer Program Office, an observer provider must not:
(1) Deploy an observer on the same vessel more than 90 days in a
12-month period;
(2) Deploy an observer for more than 90 days in a single
deployment;
(3) Include more than four vessels assignments in a single
deployment, or
(4) Disembark an observer from a vessel before that observer has
completed his or her sampling or data transmission duties.
(B) Catcher vessels. Not deploy an observer on the same vessel more
than 90 calendar days in a 12-month period.
(ix) Verify vessel's safety decal. An observer provider must verify
that a vessel has a valid USCG safety decal as required under paragraph
(j)(2)(ii)(B) of this section before an observer may get underway
aboard the vessel. One of the following acceptable means of
verification must be used to verify the decal validity:
(A) The observer provider or employee of the observer provider,
including the observer, visually inspects the decal aboard the vessel
and confirms that the decal is valid according to the decal date of
issuance; or
(B) The observer provider receives a hard copy of the USCG
documentation of the decal issuance from the vessel owner or operator.
(x) Maintain communications with observers. An observer provider
must have an employee responsible for observer activities on call 24
hours a day to handle emergencies involving observers or problems
concerning observer logistics, whenever observers are at sea, in
transit, or in port awaiting vessel reassignment.
(xi) Maintain communications with the Observer Program Office. An
observer provider must provide all of the following information by
electronic transmission (e-mail), fax, or other method specified by
NMFS.
(A) Motherships--(1) Training and briefing registration materials.
The observer provider must submit training and briefing registration
materials to the Observer Program Office at least 5 business days prior
to the beginning of a scheduled observer at-sea hake training or
briefing session.
(i) Registration materials consist of the date of requested
training or briefing with a list of observers including each observer's
full name (i.e., first, middle and last names).
(ii) Projected observer assignments. Prior to the observer's
completion of the training or briefing session, the observer provider
must submit to the Observer Program Office a statement of projected
observer assignments that include the observer's name; vessel, gear
type, and vessel/processor code; port of embarkation; and area of
fishing.
(2) Observer debriefing registration. The observer provider must
contact the At-Sea Hake Observer Program within 5 business days after
the completion of an observer's deployment to schedule a date, time and
location for debriefing. Observer debriefing registration information
must be provided at the time of debriefing scheduling and must include
the observer's name, cruise number, vessel name(s) and code(s), and
requested debriefing date.
(3) Observer provider contracts. If requested, observer providers
must submit to the Observer Program Office a completed and unaltered
copy of each type of signed and valid contract (including all
attachments, appendices, addendums, and exhibits incorporated into the
contract) between the observer provider and those entities requiring
observer services under paragraph (j)(1)(i) of this section. Observer
providers must also submit to the Observer Program Office upon request,
a completed and unaltered copy of the current or most recent signed and
valid contract (including all attachments, appendices, addendums, and
exhibits incorporated into the contract and any agreements or policies
with regard to observer compensation or salary levels) between the
observer provider and the particular entity identified by the Observer
Program or with specific observers. The copies must be submitted to the
Observer Program Office via fax or mail within 5 business days of the
request. Signed and valid contracts include the contracts an observer
provider has with:
(i) Vessels required to have observer coverage as specified at
paragraph (j)(1)(i) of this section; and
(ii) Observers.
(4) Change in observer provider management and contact information.
Observer providers must submit notification of any other change to
provider contact information, including but not limited to, changes in
contact name, phone number, email address, and address.
(5) Other reports. Reports of the following must be submitted in
writing to the At-Sea Hake Observer Program Office by the observer
provider via fax or email address designated by the Observer Program
Office within 24 hours after the observer provider becomes aware of the
information:
(i) Any information regarding possible observer harassment;
(ii) Any information regarding any action prohibited under
Sec. Sec. 660.112 or 600.725(o), (t) and (u);
(iii) Any concerns about vessel safety or marine casualty under 46
CFR 4.05-1(a)(1) through (7);
(iv) Any observer illness or injury that prevents the observer from
completing any of his or her duties described in the observer manual;
and
(v) Any information, allegations or reports regarding observer
conflict of interest or breach of the standards of behavior described
in observer provider policy.
(B) Catcher vessels. An observer provider must provide all of the
following information by electronic transmission (e-mail), fax, or
other method specified by NMFS.
(1) Observer training, briefing, and debriefing registration
materials. This information must be submitted to the Observer Program
Office at least 7 business days prior to the beginning of a scheduled
West Coast groundfish observer certification training or briefing
session.
(i) Training registration materials consist of the following: Date
of requested training; a list of observer candidates that includes each
candidate's full name (i.e., first, middle and last names), date of
birth, and gender; a copy of each candidate's academic transcripts and
resume; a statement signed by the candidate under penalty of perjury
which discloses the candidate's criminal convictions; projected
observer assignments--Prior to the observer's completion of the
training or briefing session, the observer provider must submit to the
Observer Program Office a statement of projected observer assignments
that include that includes each observer's name, current mailing
address, e-mail address, phone numbers and port of embarkation (``home
port''); and length of observers contract.
(ii) Briefing registration materials consist of the following: Date
and type of requested briefing session; list of observers to attend the
briefing session, that includes each observer's full name (first,
middle, and last names); projected observer assignments--Prior to the
observer's completion of the training or briefing session, the observer
provider must submit to the Observer Program Office a statement of
projected observer assignments that include that includes each
observer's name, current mailing address, e-mail address, phone numbers
and port of embarkation (``home port''); and length of observer
contract.
(iii) Debriefing. The West Coast Groundfish Observer Program will
notify the observer provider which observers require debriefing and the
specific time period the provider has to schedule a date, time, and
location for
[[Page 78416]]
debriefing. The observer provider must contact the West Coast
Groundfish Observer program within 5 business days by telephone to
schedule debriefings. Observer providers must immediately notify the
observer program when observers end their contract earlier than
anticipated.
(2) Physical examination. A signed and dated statement from a
licensed physician that he or she has physically examined an observer
or observer candidate. The statement must confirm that, based on that
physical examination, the observer or observer candidate does not have
any health problems or conditions that would jeopardize that
individual's safety or the safety of others while deployed, or prevent
the observer or observer candidate from performing his or her duties
satisfactorily. The statement must declare that, prior to the
examination, the physician was made aware of the duties of the observer
and the dangerous, remote, and rigorous nature of the work by reading
the NMFS-prepared information. The physician's statement must be
submitted to the Observer Program Office prior to certification of an
observer. The physical exam must have occurred during the 12 months
prior to the observer's or observer candidate's deployment. The
physician's statement will expire 12 months after the physical exam
occurred. A new physical exam must be performed, and accompanying
statement submitted, prior to any deployment occurring after the
expiration of the statement.
(3) Certificates of insurance. Copies of ``certificates of
insurance'', that names the NMFS Observer Program leader as the
``certificate holder'', shall be submitted to the Observer Program
Office by February 1 of each year. The certificates of insurance shall
verify the following coverage provisions and state that the insurance
company will notify the certificate holder if insurance coverage is
changed or canceled.
(i) Maritime Liability to cover ``seamen's'' claims under the
Merchant Marine Act (Jones Act) and General Maritime Law ($1 million
minimum).
(ii) Coverage under the U.S. Longshore and Harbor Workers'
Compensation Act ($1 million minimum).
(iii) States Worker's Compensation as required.
(iv) Commercial General Liability.
(4) Observer provider contracts. If requested, observer providers
must submit to the Observer Program Office a completed and unaltered
copy of each type of signed and valid contract (including all
attachments, appendices, addendums, and exhibits incorporated into the
contract) between the observer provider and those entities requiring
observer services under paragraph (j)(1)(i) of this section. Observer
providers must also submit to the Observer Program Office upon request,
a completed and unaltered copy of the current or most recent signed and
valid contract (including all attachments, appendices, addendums, and
exhibits incorporated into the contract and any agreements or policies
with regard to observer compensation or salary levels) between the
observer provider and the particular entity identified by the Observer
Program or with specific observers. The copies must be submitted to the
Observer Program Office via fax or mail within 5 business days of the
request. Signed and valid contracts include the contracts an observer
provider has with:
(i) Vessels required to have observer coverage as specified at
paragraph (j)(1)(i) of this section; and
(ii) Observers.
(5) Change in observer provider management and contact information.
An observer provider must submit to the Observer Program office any
change of management or contact information submitted on the provider's
permit application under paragraphs (j)(4) of this section within 30
days of the effective date of such change.
(6) Boarding refusals. The observer provider must report to NMFS
any trip that has been refused by an observer within 24 hours of the
refusal.
(7) Biological samples. The observer provider must ensure that
biological samples are stored/handled properly prior to delivery/
transport to NMFS.
(8) Observer status report. Each Tuesday, observer providers must
provide NMFS with an updated list of contact information for all
observers that includes the observer's name, mailing address, e-mail
address, phone numbers, port of embarkation (``home port''), fishery
deployed the previous week and whether or not the observer is ``in
service'', indicating when the observer has requested leave and/or is
not currently working for the provider.
(9) Providers must submit to NMFS, if requested, copies of any
information developed and used by the observer providers distributed to
vessels, such as informational pamphlets, payment notification,
description of observer duties, etc.
(10) Other reports. Reports of the following must be submitted in
writing to the At-Sea Hake or West Coast Groundfish Observer Program
Office by the observer provider via fax or email address designated by
the Observer Program Office within 24 hours after the observer provider
becomes aware of the information:
(i) Any information regarding possible observer harassment;
(ii) Any information regarding any action prohibited under
Sec. Sec. 660.112 or 600.725(o), (t) and (u);
(iii) Any concerns about vessel safety or marine casualty under 46
CFR 4.05-1(a)(1) through (7);
(iv) Any observer illness or injury that prevents the observer from
completing any of his or her duties described in the observer manual;
and
(v) Any information, allegations or reports regarding observer
conflict of interest or breach of the standards of behavior described
in observer provider policy.
(xii) Replace lost or damaged gear. An observer provider must
replace all lost or damaged gear and equipment issued by NMFS to an
observer under contract to that provider. All replacements must be in
accordance with requirements and procedures identified in writing by
the Observer Program Office.
(xiii) Maintain confidentiality of information. An observer
provider must ensure that all records on individual observer
performance received from NMFS under the routine use provision of the
Privacy Act or as otherwise required by law remain confidential and are
not further released to anyone outside the employ of the observer
provider company to whom the observer was contracted except with
written permission of the observer.
(xiv) Limitations on conflict of interest. Observer providers must
meet limitations on conflict of interest. Observer providers:
(A) Must not have a direct financial interest, other than the
provision of observer services, in the North Pacific or Pacific Coast
Groundfish fishery managed under an FMP for the waters off the coasts
of Alaska, Washington, Oregon, and California, including, but not
limited to,
(1) Any ownership, mortgage holder, or other secured interest in a
vessel, or shoreside processor facility involved in the catching,
taking, harvesting or processing of fish,
(2) Any business involved with selling supplies or services to any
vessel or shoreside processors participating in a fishery managed
pursuant to an FMP in the waters off the coasts of Alaska, California,
Oregon, and Washington, or
(3) Any business involved with purchasing raw or processed products
from any vessel or shoreside processor participating in a fishery
managed pursuant to an FMP in the waters off the
[[Page 78417]]
coasts of Alaska, California, Oregon, and Washington.
(B) Must assign observers without regard to any preference by
representatives of vessels other than when an observer will be
deployed.
(C) Must not solicit or accept, directly or indirectly, any
gratuity, gift, favor, entertainment, loan, or anything of monetary
value except for compensation for providing observer services from
anyone who conducts fishing or fish processing activities that are
regulated by NMFS, or who has interests that may be substantially
affected by the performance or nonperformance of the official duties of
observer providers.
(xv) Observer conduct and behavior. Observer providers must develop
and maintain a policy addressing observer conduct and behavior for
their employees that serve as observers. The policy shall address the
following behavior and conduct regarding:
(A) Observer use of alcohol;
(B) Observer use, possession, or distribution of illegal drugs and;
(C) Sexual contact with personnel of the vessel or processing
facility to which the observer is assigned, or with any vessel or
processing plant personnel who may be substantially affected by the
performance or non-performance of the observer's official duties.
(D) An observer provider shall provide a copy of its conduct and
behavior policy by February 1 of each year, to: Observers, observer
candidates and; the Observer Program Office.
(xvi) Refusal to deploy an observer. Observer providers may refuse
to deploy an observer on a requesting vessel if the observer provider
has determined that the requesting vessel is inadequate or unsafe
pursuant to those regulations described at Sec. 600.746 or U.S. Coast
Guard and other applicable rules, regulations, statutes, or guidelines
pertaining to safe operation of the vessel.
(6) Observer certification and responsibilities--(i) Applicability.
Observer certification authorizes an individual to fulfill duties as
specified in writing by the NMFS Observer Program Office while under
the employ of a NMFS-permitted observer provider and according to
certification endorsements as designated under paragraph (j)(6)(iii) of
this section.
(ii) Observer certification official. The Regional Administrator
will designate a NMFS observer certification official who will make
decisions for the Observer Program Office on whether to issue or deny
observer certification.
(iii) Certification requirements--(A) Initial certification. NMFS
may certify individuals who, in addition to any other relevant
considerations:
(1) Are employed by an observer provider company permitted pursuant
to Sec. 679.50 at the time of the issuance of the certification;
(2) Have provided, through their observer provider:
(i) Information identified by NMFS at Sec. 679.50 regarding an
observer candidate's health and physical fitness for the job;
(ii) Meet all observer education and health standards as specified
in Sec. 679.50 and
(iii) Have successfully completed NMFS-approved training as
prescribed by the At-Sea Hake and/or the West Coast Groundfish Observer
Program. Successful completion of training by an observer applicant
consists of meeting all attendance and conduct standards issued in
writing at the start of training; meeting all performance standards
issued in writing at the start of training for assignments, tests, and
other evaluation tools; and completing all other training requirements
established by the Observer Program.
(iv) Have not been decertified under paragraph (j)(6)(ix) of this
section, or pursuant to Sec. 679.50.
(B) [Reserved]
(iv) Denial of a certification. The NMFS observer certification
official will issue a written determination denying observer
certification if the candidate fails to successfully complete training,
or does not meet the qualifications for certification for any other
relevant reason.
(v) Issuance of an observer certification. An observer
certification will be issued upon determination by the observer
certification official that the candidate has successfully met all
requirements for certification as specified at paragraph (j)(6)(iii) of
this section. The following endorsements must be obtained, in addition
to observer certification, in order for an observer to deploy.
(A) Motherships--(1) North Pacific Groundfish Observer Program
certification training endorsement. A certification training
endorsement signifies the successful completion of the training course
required to obtain observer certification. This endorsement expires
when the observer has not been deployed and performed sampling duties
as required by the Observer Program Office for a period of time,
specified by the Observer Program, after his or her most recent
debriefing. The observer can renew the endorsement by successfully
completing certification training once more.
(2) North Pacific Groundfish Observer Program annual general
endorsements. Each observer must obtain an annual general endorsement
to their certification prior to his or her first deployment within any
calendar year subsequent to a year in which a certification training
endorsement is obtained. To obtain an annual general endorsement, an
observer must successfully complete the annual briefing, as specified
by the Observer Program. All briefing attendance, performance, and
conduct standards required by the Observer Program must be met.
(3) North Pacific Groundfish Observer Program deployment
endorsements. Each observer who has completed an initial deployment
after certification or annual briefing must receive a deployment
endorsement to their certification prior to any subsequent deployments
for the remainder of that year. An observer may obtain a deployment
endorsement by successfully completing all pre-cruise briefing
requirements. The type of briefing the observer must attend and
successfully complete will be specified in writing by the Observer
Program during the observer's most recent debriefing.
(4) At-Sea Hake Observer Program endorsements. A Pacific hake
fishery endorsement is required for purposes of performing observer
duties aboard vessels that process groundfish at sea in the Pacific
whiting fishery. A Pacific whiting fishery endorsement to an observer's
certification may be obtained by meeting the following requirements:
(i) Be a prior NMFS-certified observer in the groundfish fisheries
off Alaska;
(ii) Receive an evaluation by NMFS for his or her most recent
deployment that indicated that the observer's performance met Observer
Program expectations for that deployment; successfully complete a NMFS-
approved observer training and/or Pacific whiting briefing as
prescribed by the Observer Program; and comply with all of the other
requirements of this section.
(B) Catcher vessels. The following endorsements must be obtained in
addition to observer certification, in order for an observer to deploy.
(1) West Coast Groundfish Observer Program training certification
endorsement. A training certification endorsement signifies the
successful completion of the training course required to obtain
observer certification. This endorsement expires when the observer has
not been deployed and performed sampling duties as required by the
observer Program office for a
[[Page 78418]]
period of time, specified by the Observer Program, after his or her
most recent debriefing. The observer can renew the endorsement by
successfully completing training once more.
(2) West Coast Groundfish Observer Program annual general
endorsement. Each observer must obtain an annual general endorsement to
their certification prior to his or her first deployment within any
calendar year subsequent to a year in which a training certification
endorsement is obtained. To obtain an annual general endorsement, an
observer must successfully complete the annual briefing, as specified
by the Observer Program. All briefing attendance, performance, and
conduct standards required by the Observer Program must be met.
(3) West Coast Groundfish Observer Program deployment endorsement.
Each observer who has completed an initial deployment after their
certification or annual briefing must receive a deployment endorsement
to their certification prior to any subsequent deployments for the
remainder of that year. An observer may obtain a deployment endorsement
by successfully completing all briefing requirements, when applicable.
The type of briefing the observer must attend and successfully complete
will be specified in writing by the Observer Program during the
observer's most recent debriefing.
(vi) Maintaining the validity of an observer certification. After
initial issuance, an observer must keep their certification valid by
meeting all of the following requirements specified below:
(A) Motherships--(1) Successfully perform their assigned duties as
described in the Observer Manual or other written instructions from the
Observer Program Office including calling into the NMFS deployment
hotline upon departing and arriving into port each trip to leave the
following information: Observer name, phone number, vessel name
departing on, date and time of departure and date and time of expected
return.
(2) Accurately record their sampling data, write complete reports,
and report accurately any observations of suspected violations of
regulations relevant to conservation of marine resources or their
environment.
(3) Not disclose collected data and observations made on board the
vessel or in the processing facility to any person except the owner or
operator of the observed vessel or an authorized officer or NMFS.
(4) Successfully complete NMFS-approved annual briefings as
prescribed by the At-Sea Hake Observer Program.
(5) Successful completion of briefing by an observer applicant
consists of meeting all attendance and conduct standards issued in
writing at the start of training; meeting all performance standards
issued in writing at the start of training for assignments, tests, and
other evaluation tools; and completing all other briefing requirements
established by the Observer Program.
(6) Successfully meet all expectations in all debriefings including
reporting for assigned debriefings.
(7) Submit all data and information required by the observer
program within the program's stated guidelines.
(B) Catcher vessels. After initial issuance, an observer must keep
their certification valid by meeting all of the following requirements
specified below:
(1) Successfully perform their assigned duties as described in the
Observer Manual or other written instructions from the Observer Program
Office including calling into the NMFS deployment hotline upon
departing and arriving into port each trip to leave the following
information: Observer name, phone number, vessel name departing on,
date and time of departure and date and time of expected return.
(2) Accurately record their sampling data, write complete reports,
and report accurately any observations of suspected violations of
regulations relevant to conservation of marine resources or their
environment.
(3) Not disclose collected data and observations made on board the
vessel or in the processing facility to any person except the owner or
operator of the observed vessel or an authorized officer or NMFS.
(4) Successfully complete NMFS-approved annual briefings as
prescribed by the West Coast Groundfish Observer Program.
(5) Successful completion of briefing by an observer applicant
consists of meeting all attendance and conduct standards issued in
writing at the start of training; meeting all performance standards
issued in writing at the start of training for assignments, tests, and
other evaluation tools; and completing all other briefing requirements
established by the Observer Program.
(6) Hold current basic cardiopulmonary resuscitation/first aid
certification as per American Red Cross Standards.
(7) Successfully meet all expectations in all debriefings including
reporting for assigned debriefings.
(8) Submit all data and information required by the observer
program within the program's stated guidelines.
(9) Meet the minimum annual deployment period of 3 months at least
once every 12 months.
(vii) Limitations on conflict of interest. Observers:
(A) Must not have a direct financial interest, other than the
provision of observer services, in a fishery managed pursuant to an FMP
for the waters off the coast of Alaska, or in a Pacific Coast fishery
managed by either the State or Federal Governments in waters off
Washington, Oregon, or California, including but not limited to:
(1) Any ownership, mortgage holder, or other secured interest in a
vessel, shore-based or floating stationary processor facility involved
in the catching, taking, harvesting or processing of fish,
(2) Any business involved with selling supplies or services to any
vessel, shore-based or floating stationary processing facility; or
(3) Any business involved with purchasing raw or processed products
from any vessel, shore-based or floating stationary processing
facilities.
(B) Must not solicit or accept, directly or indirectly, any
gratuity, gift, favor, entertainment, loan, or anything of monetary
value from anyone who either conducts activities that are regulated by
NMFS in the Pacific coast or North Pacific regions or has interests
that may be substantially affected by the performance or nonperformance
of the observers' official duties.
(C) May not serve as observers on any vessel or at any shore-based
owned or operated by a person who employed the observer in the last two
years.
(D) May not solicit or accept employment as a crew member or an
employee of a vessel or shore-based processor while employed by an
observer provider.
(E) Provisions for remuneration of observers under this section do
not constitute a conflict of interest.
(viii) Standards of behavior. Observers must:
(A) Perform their assigned duties as described in the Observer
Manual or other written instructions from the Observer Program Office.
(B) Immediately report to the observer program office and the NMFS
OLE any time they refuse to board.
(C) Accurately record their sampling data, write complete reports,
and report accurately any observations of suspected violations of
regulations relevant to conservation of marine resources or their
environment.
[[Page 78419]]
(D) Not disclose collected data and observations made on board the
vessel to any person except the owner or operator of the observed
vessel, an authorized officer, or NMFS.
(ix) Suspension and decertification--(A) Suspension and
decertification review official. The Regional Administrator (or a
designee) will designate an observer suspension and decertification
review official(s), who will have the authority to review observer
certifications and issue initial administrative determinations of
observer certification suspension and/or decertification.
(B) Causes for suspension or decertification. The suspension/
decertification official may initiate suspension or decertification
proceedings against an observer:
(1) When it is alleged that the observer has not met applicable
standards, including any of the following:
(i) Failed to satisfactorily perform duties of observers as
specified in writing by the NMFS Observer Program; or
(ii) Failed to abide by the standards of conduct for observers,
including conflicts of interest;
(2) Upon conviction of a crime or upon entry of a civil judgment
for:
(i) Commission of fraud or other violation in connection with
obtaining or attempting to obtain certification, or in performing the
duties as specified in writing by the NMFS Observer Program;
(ii) Commission of embezzlement, theft, forgery, bribery,
falsification or destruction of records, making false statements, or
receiving stolen property;
(iii) Commission of any other offense indicating a lack of
integrity or honesty that seriously and directly affects the fitness of
observers.
(C) Issuance of initial administrative determination. Upon
determination that suspension or decertification is warranted, the
suspension/decertification official will issue a written IAD to the
observer via certified mail at the observer's most current address
provided to NMFS. The IAD will identify whether a certification is
suspended or revoked and will identify the specific reasons for the
action taken. Decertification is effective 30 calendar days after the
date on the IAD, unless there is an appeal.
(D) Appeals. A certified observer who receives an IAD that suspends
or revokes his or her observer certification may appeal the
determination within 30 calendar days after the date on the IAD to the
Office of Administrative Appeals pursuant to Sec. 679.43.
(k) MS coop failure--(1) The Regional Administrator will determine
that a permitted MS coop is considered to have failed if:
(i) The coop members dissolve the coop, or
(ii) The coop membership falls below 20 percent of the MS/CV-
endorsed limited entry permits, or
(iii) The coop agreement is no longer valid.
(2) If a permitted MS coop dissolves, the designated coop manager
must notify NMFS SFD in writing of the dissolution of the coop.
(3) In the event of a NMFS determined coop failure, or reported
failure, the designated coop manager will be notified in writing about
NMFS' determination. Upon notification of a coop failure, fishing under
the MS coop permit will no longer be allowed. Should a coop failure
determination be made during the Pacific whiting primary season for the
mothership sector, unused allocation associated with the catch history
will not be available for harvest by the coop that failed, by any
former members of the coop that failed, or any other MS coop for the
remainder of that calendar year.]
0
26. In Sec. 660.160:
0
a. Paragraphs (a)(3) and (a)(4) are revised;
0
b. Paragraphs (g) and (h) are removed;
0
c. Paragraphs (b) through (f) are redesignated as paragraphs (c)
through (g);
0
d. A new paragraph (b) is added;
0
e. Text is added to the newly designated paragraph (c)(2) and (d);
0
f. The headings of newly designated paragraphs (e)(2) through (e)(4)
are revised;
0
g. New paragraphs (c)(3) through (c)(7) are added, and text is added to
newly designated paragraphs (e)(2) through (e)(4);
0
h. The newly designated paragraph (e)(1) introductory text is revised,
and newly designated paragraph (e)(5) is removed and reserved;
0
i. The newly designated paragraph (e)(7) is redesignated as paragraph
(e)(6) and newly designated paragraph (e)(6)(vii) is revised;
0
j. Text is added to the newly designated paragraph (g); and
0
k. A new paragraph (h) is added to read as follows:
Sec. 660.160 Catcher/processor (C/P) Coop Program.
* * * * *
(a) * * *
(3) Regulations set out in the following sections of subpart C:
Sec. 660.11 Definitions, Sec. 660.12 Prohibitions, Sec. 660.13
Recordkeeping and reporting, Sec. 660.14 VMS requirements, Sec.
660.15 Equipment requirements, Sec. 660.16 Groundfish Observer
Program, Sec. 660.20 Vessel and gear identification, Sec. 660.25
Permits, Sec. 660.55 Allocations, Sec. 660.60 Specifications and
management measures, Sec. 660.65 Groundfish harvest specifications,
and Sec. Sec. 660.70 through 660.79 Closed areas.
(4) Regulations set out in the following sections of subpart D:
Sec. 660.111 Trawl fishery definitions, Sec. 660.112 Trawl fishery
prohibitions, Sec. 660.113 Trawl fishery recordkeeping and reporting,
Sec. 660.120 Trawl fishery crossover provisions, Sec. 660.130 Trawl
fishery management measures, and Sec. 660.131 Pacific whiting fishery
management measures.
* * * * *
(b) Participation requirements and responsibilities--(1) C/P
vessels--(i) C/P vessel participation requirements. A vessel is
eligible to fish as a catcher/processor in the C/P Coop Program if:
(A) The vessel is registered to a C/P-endorsed limited entry trawl
permit.
(B) The vessel is not used to harvest fish as a catcher vessel in
the mothership coop program in the same calendar year.
(C) The vessel is not used to fish as a mothership in the MS Coop
Program in the same calendar year.
(ii) C/P vessel responsibilities. The owner and operator of a
catcher/processor vessel must:
(A) Recordkeeping and reporting. Maintain a valid declaration as
specified at Sec. 660.13(d), subpart C; and maintain and submit all
records and reports specified at Sec. 660.113(d) including, economic
data, scale tests records, and cease fishing reports.
(B) Observers. As specified at paragraph (g) of this section,
procure observer services, maintain the appropriate level of coverage,
and meet the vessel responsibilities.
(C) Catch weighing requirements. The owner and operator of a C/P
vessel must:
(1) Ensure that all catch is weighed in its round form on a NMFS-
approved scale that meets the requirements described in Sec.
660.15(b), subpart C;
(2) Provide a NMFS-approved platform scale, belt scale, and test
weights that meet the requirements described in Sec. 660.15(b),
subpart C.
(2) C/P coops--(i) C/P coop participation requirements. For a C/P
coop to participate in the catcher/processor sector of the Pacific
whiting fishery, the C/P coop must:
(A) Be issued a C/P coop permit;
(B) Be composed of all C/P-endorsed limited entry permits and their
owners;
[[Page 78420]]
(C) Be formed voluntarily;
(D) Be a legally recognized entity that represents its members; and
(E) Designate an individual as a coop manager.
(ii) C/P coop responsibilities. A C/P coop is responsible for:
(A) Applying for and being registered to a C/P coop permit;
(B) Organizing and coordinating harvest activities of vessels that
fish for the coop;
(C) Allocating catch for use by specific coop members;
(D) Monitoring harvest activities and enforcing the catch limits of
coop members;
(E) Submitting an annual report.
(F) Having a designated coop manager. The designated coop manager
must:
(1) Serve as the contact person with NMFS and the Council;
(2) Be responsible for the annual distribution of catch and bycatch
allocations among coop members;
(3) Prepare and submit an annual report on behalf of the coop; and
(4) Be authorized to receive or respond to any legal process in
which the coop is involved; and
(5) Notify NMFS if the coop dissolves.
(iii) C/P coop compliance and joint/several liability. A C/P coop
must comply with the provisions of this section. The C/P coop, member
limited entry permit owners, and owners and operators of vessels
registered to member limited entry permits, are jointly and severally
responsible for compliance with the provisions of this section.
Pursuant to 15 CFR part 904, each C/P coop, member permit owner, and
owner and operator of a vessel registered to a coop member permit may
be charged jointly and severally for violations of the provisions of
this section. For purposes of enforcement, a C/P coop is a legal entity
that can be subject to NOAA enforcement action for violations of the
provisions of this section.
* * * * *
(c) * * *
(2) C/P Coop Program annual allocations. The C/P Coop Program
allocation of Pacific whiting is equal to the catcher/processor sector
allocation. Only a single coop may be formed in the catcher/processor
sector with the one permitted coop receiving the catcher/processor
sector allocation.
(3) Non-whiting groundfish species--(i) Non-whiting groundfish
species with a catcher/processor sector allocation are established in
accordance with regulation at Sec. 660.55(i). The pounds associated
with each species will be provided when the coop permit is issued.
(ii) Groundfish species with at-sea sector set-asides will be
managed on an annual basis unless there is a risk of a harvest
specification being exceeded, unforeseen impact on another fisheries,
or conservation concerns in which case inseason action may be taken.
Set asides may be adjusted through the biennial specifications and
management measures process as necessary.
(iii) Groundfish species not addressed under paragraph (i) or (ii)
above, will be managed on an annual basis unless there is a risk of a
harvest specification being exceeded, unforeseen impact on another
fisheries, or conservation concerns in which case inseason action may
be taken.
(4) Halibut set-asides. Annually a specified amount of the Pacific
halibut will be held in reserve as a shared set-aside for bycatch in
the at-sea Pacific whiting fisheries and the shorebased trawl sector
south of 40[deg]10' N lat.
(5) Non-whiting groundfish species reapportionment. The Regional
Administrator may make available for harvest to the mothership sector
of the Pacific whiting fishery, the amounts of the catcher/processor
sector's non-whiting catch allocation remaining when the catcher/
processor sector reaches its Pacific whiting allocation or participants
in the catcher/processor sector do not intend to harvest the remaining
sector allocation. The designated coop manager must submit a cease
fishing report to NMFS indicating that harvesting has concluded for the
year. At any time after greater than 80 percent of the catcher/
processor sector Pacific whiting allocation has been harvested, the
Regional Administrator may contact the designated coop manager to
determine whether they intend to continue fishing. When considering
redistribution of non-whiting catch allocation, the Regional
Administrator will take into consideration the best available data on
total projected fishing impacts.
(6) Reaching the catcher/processor sector allocation. When the
catcher/processor sector allocation of Pacific whiting or non-whiting
groundfish catch allocation is reached or is projected to be reached,
further taking and retaining, receiving, or at-sea processing by a
catcher/processor is prohibited. No additional unprocessed groundfish
may be brought on board after at-sea processing is prohibited, but a
catcher/processor may continue to process catch that was on board
before at-sea processing was prohibited. The catcher/processor sector
will close when the allocation of any one species is reached or
projected to be reached.
(7) Announcements. The Regional Administrator will announce in the
Federal Register when the catcher/processor sector allocation of
Pacific whiting or non-whiting groundfish with an allocation is
reached, or is projected to be reached, and specify the appropriate
action. In order to prevent exceeding an allocation and to avoid
underutilizing the resource, prohibitions against further taking and
retaining, receiving, or at-sea processing of Pacific whiting, or
reapportionment of non-whiting groundfish with allocations may be made
effective immediately by actual notice to fishers and processors, by e-
mail, Internet (http://www.nwr.noaa.gov/Groundfish-Halibut/Groundfish-Fishery-Management/Whiting-Management/index.cfm), phone, fax, letter,
press release, and/or USCG Notice to Mariners (monitor channel 16 VHF),
followed by publication in the Federal Register, in which instance
public comment will be sought for a reasonable period of time
thereafter.
(d) C/P coop permit and agreement--(1) Eligibility and
registration--(i) Eligibility. To be an eligible coop entity a group of
C/P-endorsed permit owners (coop members) must be a recognized entity
under the laws of the United States or the laws of a State and that
represents all of the coop members.
(ii) Annual registration and deadline. Each year, the coop entity
must submit a complete application to NMFS for a C/P coop permit. The
application must be submitted to NMFS by between February 1 and March
31 of the year in which it intends to participate. NMFS will not
consider any applications received after March 31. A C/P coop permit
expires on December 31 of the year in which it was issued.
(iii) Application for a C/P coop permit. The designated coop
manager, on behalf of the coop entity, must submit a complete
application form and include each of the items listed in paragraph
(d)(1)(iii)(A) of this section. Only complete applications will be
considered for issuance of a C/P coop permit. An application will not
be considered complete if any required application fees and annual coop
reports have not been received by NMFS. NMFS may request additional
supplemental documentation as necessary to make a determination of
whether to approve or disapprove the application. Application forms and
instruction are available on the NMFS NWR Web site (http://www.nwr.noaa.gov) or by request from NMFS. The designated coop manager
[[Page 78421]]
must sign the application acknowledging the responsibilities of a
designated coop manager defined in paragraph (b)(2) of this section.
(A) Coop agreement. Signed copies of the coop agreement must be
submitted to NMFS before the coop is authorized to engage in fishing
activities. A coop agreement must include all of the information listed
in this paragraph to be considered a complete coop agreement. NMFS will
only review complete coop agreements. A coop agreement will not be
accepted unless it includes all of the required information; the
descriptive items listed in this paragraph appear to meet the stated
purpose; and information submitted is correct and accurate.
(1) Coop agreement contents. The coop agreement must be signed by
the coop members (C/P-endorsed permit owners) and include the following
information:
(i) A list of all vessels registered to C/P-endorsed permits that
the member permit owners intend to use for fishing under the C/P coop
permit.
(ii) All C/P-endorsed limited entry member permits identified by
permit number.
(iii) A description of the coop's plan to adequately monitor and
account for the catch of Pacific whiting and non-whiting groundfish
allocations, and to monitor and account for the catch of prohibited
species.
(iv) A clause stating that if a permit is transferred during the
effective period of the co-op agreement, any new owners of that member
permit would be coop members and are required to comply with membership
restrictions in the coop agreement.
(v) A description of the coop's enforcement and penalty provisions
adequate to maintain catch of Pacific whiting and non-whiting
groundfish within the allocations.
(vi) A description of measures to reduce catch of overfished
species.
(vii) A clause describing how the annual report will be produced to
document the coop's catch, bycatch data, and any other significant
activities undertaken by the coop during the year, and the submission
deadlines for that report.
(viii) Identification of the designated coop manager.
(2) [Reserved]
(B) Acceptance of a coop agreement--(1) If NMFS does not accept the
coop agreement, the coop permit application will be returned to the
applicant with a letter stating the reasons the coop agreement was not
accepted by NMFS.
(2) Coop agreements that are not accepted may be resubmitted for
review by sufficiently addressing the deficiencies identified in the
NMFS letter and resubmitting the entire coop permit application by the
date specified in the NMFS letter.
(3) An accepted coop agreement that was submitted with the C/P coop
permit application and for which a C/P coop permit was issued will
remain in place through the end of the calendar year. The designated
coop manager must resubmit a complete coop agreement to NMFS consistent
with the coop agreement contents described in this paragraph if there
is a material change to the coop agreement.
(4) Within 7 calendar days following a material change, the
designated coop manager must notify NMFS of the material change. Within
30 calendar days, the designated coop manger must submit to NMFS the
revised coop agreement with a letter that describes such changes. NMFS
will review the material changes and provide a letter to the coop
manager that either accepts the changes as given or does not accept the
revised coop agreement with a letter stating the reasons that it was
not accepted by NMFS. The coop may resubmit the coop agreement with
further revisions to the material changes responding to NMFS concerns.
(iv) Effective date of C/P coop permit. A C/P coop permit will be
effective on the date approved by NMFS and will allow fishing from the
start of the C/P sector primary whiting season until the end of the
calendar year or until one or more of the following events occur,
whichever comes first:
(A) NMFS closes the C/P sector fishing season for the year or the
designated coop manager notifies NMFS that the coop has completed
fishing for the calendar year,
(B) The C/P coop has reached its Pacific whiting allocation,
(C) A material change to the coop agreement has occurred and the
designated coop manager failed to notify NMFS within 7 calendar days of
the material change and submit to NMFS the revised coop agreement with
a letter that describes such changes within 30 calendar days, or
(D) NMFS has determined that a coop failure occurred.
(2) Initial administrative determination. For all complete
applications, NMFS will issue an IAD that either approves or
disapproves the application. If approved, the IAD will include a C/P
coop permit. If disapproved, the IAD will provide the reasons for this
determination.
(3) Appeals. An appeal to a C/P coop permit action follows the same
process as the general permit appeals process defined at Sec.
660.25(g), subpart C.
(4) Fees. The Regional Administrator is authorized to charge fees
for administrative costs associated with the issuance of a C/P coop
permit consistent with the provisions given at Sec. 660.25(f), subpart
C.
(5) Cost recovery. [Reserved]
(e) C/P-endorsed permit--(1) General. Any vessel participating in
the C/P sector of the non-tribal primary Pacific whiting fishery during
the season described at Sec. 660.131(b) of this subpart must be
registered to a valid limited entry permit with a C/P endorsement. A C/
P-endorsed permit is a limited entry permit and is subject to the
limited entry permit provisions given at Sec. 660.25(b), subpart C.
* * * * *
(2) Renewal, change in permit ownership, vessel registration, or
combination.
(i) Renewal. A C/P-endorsed permit must be renewed annually
consistent with the limited entry permit regulations given at Sec.
660.25(b)(4), subpart C. If a vessel registered to the C/P-endorsed
permit will operate as a mothership in the year for which the permit is
renewed, the permit owner must make a declaration as part of the permit
renewal that while participating in the whiting fishery they will
operate solely as a mothership during the calendar year to which its
limited entry permit applies. Any such declaration is binding on the
vessel for the calendar year, even if the permit is transferred during
the year, unless it is rescinded in response to a written request from
the permit owner. Any request to rescind a declaration must be made by
the permit holder and granted in writing by the Regional Administrator
before any unprocessed whiting has been taken on board the vessel that
calendar year.
(ii) Change of permit ownership. A C/P-endorsed permit is subject
to the limited entry permit change in permit ownership regulations
given at Sec. 660.25(b)(4), subpart C.
(iii) Change of vessel registration. A C/P-endorsed permit is
subject to the limited entry permit change of vessel registration
regulations given at Sec. 660.25(b)(4), subpart C.
(iv) Combination. If two or more permits are combined, the
resulting permit is one permit with an increased size endorsement. A C/
P-endorsed permit that is combined with another limited entry trawl-
endorsed permit that does not have a C/P endorsement will result in a
single trawl limited entry permit with a C/P endorsement with a larger
size endorsement. Any request to
[[Page 78422]]
combine permits is subject to the provisions provided at Sec.
660.25(b), including the combination formula for resulting size
endorsements.
(3) Appeals. An appeal to a C/P-endorsed permit action follows the
same process as the general permit appeals process defined at Sec.
660.25(g), subpart C.
(4) Fees. The Regional Administrator is authorized to charge fees
for the administrative costs associated with review and issuance of a
C/P endorsement consistent with the provisions at Sec. 660.25(f),
subpart C.
(5) [Reserved]
* * * * *
(6) * * *
(vii) Initial Administrative Determination (IAD). NMFS will issue
an IAD for all complete, certified applications received by the
application deadline date. If NMFS approves an application, the
applicant will receive a C/P endorsement on a limited entry trawl
permit. If NMFS disapproves an application, the IAD will provide the
reasons. If the applicant does not appeal the IAD within 60 calendar
days of the date on the IAD, the IAD becomes the final decision of the
Regional Administrator acting on behalf of the Secretary of Commerce.
* * * * *
(g) Observer requirements--(1) Observer coverage requirements--(i)
Coverage. Any vessel registered to a C/P-endorsed limited entry trawl
permit that is 125 ft (38.1 m) LOA or longer must carry two NMFS-
certified observers, and any vessel registered to a C/P-endorsed
limited entry trawl permit that is shorter than 125 ft (38.1 m) LOA
must carry one NMFS-certified observer, each day that the vessel is
used to take, retain, receive, land, process, or transport groundfish.
(ii) Observer workload. The time required for the observer to
complete sampling duties must not exceed 12 consecutive hours in each
24-hour period.
(iii) Refusal to board. Any boarding refusal on the part of the
observer or vessel must be reported to the observer program and NOAA
OLE by the observer provider. The observer must be available for an
interview with the observer program or NOAA OLE if necessary.
(2) Vessel responsibilities. An operator and/or crew of a vessel
required to carry an observer must provide:
(i) Accommodations and food. Provide accommodations and food that
are equivalent to those provided for officers, engineers, foremen,
deck-bosses or other management level personnel of the vessel.
(ii) Safe conditions--(A) Maintain safe conditions on the vessel
for the protection of observers including adherence to all U.S. Coast
Guard and other applicable rules, regulations, or statutes pertaining
to safe operation of the vessel, including but not limited to, rules of
the road, vessel stability, emergency drills, emergency equipment,
vessel maintenance, vessel general condition, and port bar crossings.
An observer may refuse boarding or reboarding a vessel and may request
a vessel to return to port if operated in an unsafe manner or if unsafe
conditions are identified.
(B) Have on board a valid Commercial Fishing Vessel Safety Decal
that certifies compliance with regulations found in 33 CFR chapter I
and 46 CFR chapter I, a certificate of compliance issued pursuant to 46
CFR 28.710 or a valid certificate of inspection pursuant to 46 U.S.C.
3311.
(iii) Computer hardware and software. Catcher/processor vessels
must:
(A) Provide hardware and software pursuant to regulations at
Sec. Sec. 679.50(g)(1)(iii)(B)(1) through 679.50(g)(1)(iii)(B)(3).
(B) Provide the observer(s) access to a computer required under
paragraph (g)(2)(iii) of this section that is connected to a
communication device that provides a point-to-point connection to the
NMFS host computer.
(C) Ensure that the catcher/processor has installed the most recent
release of NMFS data entry software provided by the Regional
Administrator, or other approved software prior to the vessel
receiving, catching or processing IFQ species.
(D) Ensure that the communication equipment required in paragraph
(g)(2)(iii) of this section and used by observers to enter and transmit
data, is fully functional and operational. ``Functional'' means that
all the tasks and components of the NMFS supplied, or other approved,
software described at paragraph (g)(2)(iii) of this section and the
data transmissions to NMFS can be executed effectively aboard the
vessel by the communications equipment.
(iv) Vessel position. Allow observer(s) access to, the vessel's
navigation equipment and personnel, on request, to determine the
vessel's position.
(v) Access. Allow observer(s) free and unobstructed access to the
vessel's bridge, trawl or working decks, holding bins, processing
areas, freezer spaces, weight scales, cargo holds, and any other space
that may be used to hold, process, weigh, or store fish or fish
products at any time.
(vi) Prior notification. Notify observer(s) at least 15 minutes
before fish are brought on board, or fish and fish products are
transferred from the vessel, to allow sampling the catch or observing
the transfer.
(vii) Records. Allow observer(s) to inspect and copy any State or
Federal logbook maintained voluntarily or as required by regulation.
(viii) Assistance. Provide all other reasonable assistance to
enable observer(s) to carry out their duties, including, but not
limited to:
(A) Measuring decks, codends, and holding bins.
(B) Providing the observer(s) with a safe work area.
(C) Collecting samples of catch.
(D) Collecting and carrying baskets of fish.
(E) Allowing the observer(s) to collect biological data and
samples.
(F) Providing adequate space for storage of biological samples.
(ix) Sampling station and operational requirements for catcher/
processor vessels. This paragraph contains the requirements for
observer sampling stations. To allow the observer to carry out the
required duties, the vessel owner must provide an observer sampling
station that meets the following requirements:
(A) Accessibility. The observer sampling station must be available
to the observer at all times.
(B) Location. The observer sampling station must be located within
4 m of the location from which the observer samples unsorted catch.
(C) Access. Unobstructed passage must be provided between the
observer sampling station and the location where the observer collects
sample catch.
(D) Minimum work space. The observer must have a working area of at
least 4.5 square meters, including the observer's sampling table, for
sampling and storage of fish to be sampled. The observer must be able
to stand upright and have a work area at least 0.9 m deep in the area
in front of the table and scale.
(E) Table. The observer sampling station must include a table at
least 0.6 m deep, 1.2 m wide and 0.9 m high and no more than 1.1 m
high. The entire surface area of the table must be available for use by
the observer. Any area for the observer sampling scale is in addition
to the minimum space requirements for the table. The observer's
sampling table must be secured to the floor or wall.
(F) Diverter board. The conveyor belt conveying unsorted catch must
have a removable board (``diverter board'') to allow all fish to be
diverted from the
[[Page 78423]]
belt directly into the observer's sampling baskets. The diverter board
must be located downstream of the scale used to weigh total catch. At
least 1 m of accessible belt space, located downstream of the scale
used to weight total catch, must be available for the observer's use
when sampling.
(G) Other requirements. The sampling station must be in a well-
drained area that includes floor grating (or other material that
prevents slipping), lighting adequate for day or night sampling, and a
hose that supplies fresh or sea water to the observer.
(H) Observer sampling scale. The observer sample station must
include a NMFS-approved platform scale (pursuant to requirements at
Sec. 679.28(d)(5)) with a capacity of at least 50 kg located within 1
m of the observer's sampling table. The scale must be mounted so that
the weighing surface is no more than 0.7 m above the floor.
(x) Transfer at sea. Observers may be transferred at-sea between
catcher-processors, between catcher-processors and motherships, or
between a catcher-processor and a catcher vessel. Transfers at-sea
between catcher vessels is prohibited. For transfers, both vessels
must:
(A) Ensure that transfers of observers at sea via small boat under
its own power are carried out during daylight hours, under safe
conditions, and with the agreement of observers involved.
(B) Notify observers at least 3 hours before observers are
transferred, such that the observers can finish any sampling work,
collect personal belongings, equipment, and scientific samples.
(C) Provide a safe pilot ladder and conduct the transfer to ensure
the safety of observers during transfers.
(D) Provide an experienced crew member to assist observers in the
small boat in which any transfer is made.
(3) Procurement of observer services--(i) Owners of vessels
required to carry observers under paragraph (g)(1) of this section must
arrange for observer services from a permitted observer provider,
except that:
(A) Vessels are required to procure observer services directly from
NMFS when NMFS has determined and given notification that the vessel
must carry NMFS staff or an individual authorized by NMFS in lieu of an
observer provided by a permitted observer provider.
(B) Vessels are required to procure observer services directly from
NMFS and a permitted observer provider when NMFS has determined and
given notification that the vessel must carry NMFS staff and/or
individuals authorized by NMFS, in addition to an observer provided by
a permitted observer provider.
(ii) [Reserved]
(4) Application to become an observer provider. Any observer
provider holding a valid permit issued by the North Pacific Groundfish
Observer Program in 2010 can supply observer services and will be
issued a West Coast Groundfish Observer Program permit.
(5) Observer provider responsibilities--(i) Provide qualified
candidates to serve as observers. Observer providers must provide
qualified candidates to serve as observers. To be qualified, a
candidate must have:
(A) A Bachelor's degree or higher from an accredited college or
university with a major in one of the natural sciences;
(B) Successfully completed a minimum of 30 semester hours or
equivalent in applicable biological sciences with extensive use of
dichotomous keys in at least one course;
(C) Successfully completed at least one undergraduate course each
in math and statistics with a minimum of 5 semester hours total for
both; and
(D) Computer skills that enable the candidate to work competently
with standard database software and computer hardware.
(ii) Hiring an observer candidate--(A) The observer provider must
provide the candidate a copy of NMFS-provided pamphlets, information
and other literature describing observer duties (i.e. The At-Sea Hake
Observer Program's Observer Manual) prior to hiring an observer
candidate. Observer job information is available from the Observer
Program Office's Web site at www.nwfsc.noaa.gov/research/divisions/fram/observer/atseahake.cfm.
(B) Observer contracts. The observer provider must have a written
contract or a written contract addendum that is signed by the observer
and observer provider prior to the observer's deployment with the
following clauses:
(1) That all the observer's in-season messages and catch reports
required to be sent while deployed are delivered to the Observer
Program Office as specified by written Observer Program instructions;
(2) That the observer inform the observer provider prior to the
time of embarkation if he or she is experiencing any new mental illness
or physical ailments or injury since submission of the physician's
statement as required as a qualified observer candidate that would
prevent him or her from performing their assigned duties.
(iii) Ensure that observers complete duties in a timely manner. An
observer provider must ensure that observers employed by that observer
provider do the following in a complete and timely manner:
(A) Submit to NMFS all data, logbooks and reports as required by
the Observer Manual;
(B) Report for his or her scheduled debriefing and complete all
debriefing responsibilities;
(C) Return all sampling and safety gear to the Observer Program
Office;
(D) Submit all biological samples from the observer's deployment by
the completion of the electronic vessel and/or processor survey(s); and
(E) Immediately report to the Observer Program Office and the NOAA
OLE any refusal to board an assigned vessel.
(iv) Observers provided to vessel. Observers provided to catcher
processors:
(A) Must have a valid North Pacific groundfish observer
certification endorsements and an At-Sea Hake Observer Program
certification;
(B) Must not have informed the provider prior to the time of
embarkation that he or she is experiencing a mental illness or a
physical ailment or injury developed since submission of the
physician's statement that would prevent him or her from performing his
or her assigned duties; and
(C) Must have successfully completed all NMFS required training and
briefing before deployment.
(v) Respond to industry requests for observers. An observer
provider must provide an observer for deployment as requested pursuant
to the contractual relationship with the vessel to fulfill vessel
requirements for observer coverage specified under paragraph (g)(1) of
this section. An alternate observer must be supplied in each case where
injury or illness prevents the observer from performing his or her
duties or where the observer resigns prior to completion of his or her
duties. If the observer provider is unable to respond to an industry
request for observer coverage from a vessel for whom the provider is in
a contractual relationship due to lack of available observers by the
estimated embarking time of the vessel, the provider must report it to
the observer program at least 4 hours prior to the vessel's estimated
embarking time.
(vi) Provide observer salaries and benefits. An observer provider
must provide to its observer employees salaries and any other benefits
and personnel services in accordance with the terms of each observer's
contract.
[[Page 78424]]
(vii) Provide observer deployment logistics. An observer provider
must provide to each of its observers under contract:
(A) All necessary transportation, including arrangements and
logistics, of observers to the initial location of deployment, to all
subsequent vessel assignments during that deployment, and to the
debriefing location when a deployment ends for any reason; and
(B) Lodging, per diem, and any other services necessary to
observers assigned to fishing vessels.
(1) An observer under contract may be housed on a vessel to which
he or she is assigned:
(i) Prior to their vessel's initial departure from port;
(ii) For a period not to exceed 24 hours following the completion
of an offload when the observer has duties and is scheduled to
disembark; or
(iii) For a period not to exceed twenty-four hours following the
vessel's arrival in port when the observer is scheduled to disembark.
(2) [Reserved]
(C) During all periods an observer is housed on a vessel, the
observer provider must ensure that the vessel operator or at least one
crew member is aboard.
(D) An observer under contract who is between vessel assignments
must be provided with shoreside accommodations in accordance with the
contract between the observer and the observer provider. If the
provider is providing accommodations, it must be at a licensed hotel,
motel, bed and breakfast, or other shoreside accommodations for the
duration of each period between vessel or shoreside assignments. Such
accommodations must include an assigned bed for each observer and no
other person may be assigned that bed for the duration of that
observer's stay. Additionally, no more than four beds may be in any
room housing observers at accommodations meeting the requirements of
this section.
(viii) Observer deployment limitations. An observer provider must
not exceed observer deployment limitations specified in this paragraph
unless alternative arrangements are approved by the Observer Program
Office. An observer provider must not:
(A) Deploy an observer on the same vessel for more than 90 days in
a 12-month period;
(B) Deploy an observer for more than 90 days in a single
deployment;
(C) Include more than four vessel assignments in a single
deployment, or
(D) Disembark an observer from a vessel before that observer has
completed his or her sampling or data transmission duties.
(ix) Verify vessel's safety decal. An observer provider must verify
that a vessel has a valid USCG safety decal as required under paragraph
(g)(2)(ii)(B) of this section before an observer may get underway
aboard the vessel. One of the following acceptable means of
verification must be used to verify the decal validity:
(A) The observer provider or employee of the observer provider,
including the observer, visually inspects the decal aboard the vessel
and confirms that the decal is valid according to the decal date of
issuance; or
(B) The observer provider receives a hard copy of the USCG
documentation of the decal issuance from the vessel owner or operator.
(x) Maintain communications with observers. An observer provider
must have an employee responsible for observer activities on call 24
hours a day to handle emergencies involving observers or problems
concerning observer logistics, whenever observers are at sea, in
transit, or in port awaiting vessel reassignment.
(xi) Maintain communications with the Observer Program Office. An
observer provider must provide all of the following information by
electronic transmission (e-mail), fax, or other method specified by
NMFS.
(A) Observer training and briefing. Observer training and briefing
registration materials must be submitted to the Observer Program Office
at least 5 business days prior to the beginning of a scheduled observer
at-sea hake training or briefing session. Registration materials
consist of the following: The date of requested training or briefing
with a list of observers including each observer's full name (i.e.,
first, middle and last names).
(B) Projected observer assignments. Prior to the observer's
completion of the training or briefing session, the observer provider
must submit to the Observer Program Office a statement of projected
observer assignments that include the observer's name; vessel, gear
type, and vessel/processor code; port of embarkation; and area of
fishing.
(C) Observer debriefing registration. The observer provider must
contact the At-Sea Hake Observer Program within 5 business days after
the completion of an observer's deployment to schedule a date, time and
location for debriefing. Observer debriefing registration information
must be provided at the time of debriefing scheduling and must include
the observer's name, cruise number, vessel name(s) and code(s), and
requested debriefing date.
(D) Observer provider contracts. If requested, observer providers
must submit to the Observer Program Office a completed and unaltered
copy of each type of signed and valid contract (including all
attachments, appendices, addendums, and exhibits incorporated into the
contract) between the observer provider and those entities requiring
observer services under paragraph (g)(1) of this section. Observer
providers must also submit to the Observer Program Office upon request,
a completed and unaltered copy of the current or most recent signed and
valid contract (including all attachments, appendices, addendums, and
exhibits incorporated into the contract and any agreements or policies
with regard to observer compensation or salary levels) between the
observer provider and the particular entity identified by the Observer
Program or with specific observers. The copies must be submitted to the
Observer Program Office via fax or mail within 5 business days of the
request. Signed and valid contracts include the contracts an observer
provider has with:
(1) Vessels required to have observer coverage as specified at
paragraph (g)(1) of this section; and
(2) Observers.
(E) Change in observer provider management and contact information.
Observer providers must submit notification of any other change to
provider contact information, including but not limited to, changes in
contact name, phone number, e-mail address, and address.
(F) Other reports. Reports of the following must be submitted in
writing to the At-Sea Hake Observer Program Office by the observer
provider via fax or e-mail address designated by the Observer Program
Office within 24 hours after the observer provider becomes aware of the
information:
(1) Any information regarding possible observer harassment;
(2) Any information regarding any action prohibited under
Sec. Sec. 660.112 or 600.725(o), (t) and (u);
(3) Any concerns about vessel safety or marine casualty under 46
CFR 4.05-1(a)(1) through (7);
(4) Any observer illness or injury that prevents the observer from
completing any of his or her duties described in the observer manual;
and
(5) Any information, allegations or reports regarding observer
conflict of interest or breach of the standards of behavior described
in observer provider policy.
(xii) Replace lost or damaged gear. An observer provider must
replace all lost or damaged gear and equipment issued by NMFS to an
observer under contract
[[Page 78425]]
to that provider. All replacements must be in accordance with
requirements and procedures identified in writing by the Observer
Program Office.
(xiii) Maintain confidentiality of information. An observer
provider must ensure that all records on individual observer
performance received from NMFS under the routine use provision of the
Privacy Act or other applicable law remain confidential and are not
further released to anyone outside the employ of the observer provider
company to whom the observer was contracted except with written
permission of the observer.
(xiv) Limitations on conflict of interest. An observer provider
must meet limitations on conflict of interest. Observer providers:
(A) Must not have a direct financial interest, other than the
provision of observer services, in a fishery managed under an FMP for
the waters off the coasts of Alaska, Washington, Oregon, and
California, including, but not limited to:
(1) Any ownership, mortgage holder, or other secured interest in a
vessel or shoreside processor facility involved in the catching,
taking, harvesting or processing of fish,
(2) Any business involved with selling supplies or services to any
vessel or shoreside processors participating in a fishery managed
pursuant to an FMP in the waters off the coasts of Alaska, California,
Oregon, and Washington, or
(3) Any business involved with purchasing raw or processed products
from any vessel or shoreside processor participating in a fishery
managed pursuant to an FMP in the waters off the coasts of Alaska,
California, Oregon, and Washington.
(B) Must assign observers without regard to any preference by
representatives of vessels other than when an observer will be
deployed.
(C) Must not solicit or accept, directly or indirectly, any
gratuity, gift, favor, entertainment, loan, or anything of monetary
value except for compensation for providing observer services from
anyone who conducts fishing or fish processing activities that are
regulated by NMFS in the Pacific coast or North Pacific regions, or who
has interests that may be substantially affected by the performance or
nonperformance of the official duties of observer providers.
(xv) Observer conduct and behavior. An observer provider must
develop and maintain a policy addressing observer conduct and behavior
for their employees that serve as observers. The policy shall address
the following behavior and conduct:
(A) Observer use of alcohol;
(B) Observer use, possession, or distribution of illegal drugs; and
(C) Sexual contact with personnel of the vessel or processing
facility to which the observer is assigned, or with any vessel or
processing plant personnel who may be substantially affected by the
performance or non-performance of the observer's official duties.
(D) An observer provider shall provide a copy of its conduct and
behavior policy by February 1 of each year, to observers, observer
candidates, and the Observer Program Office.
(xvi) Refusal to deploy an observer. Observer providers may refuse
to deploy an observer on a requesting vessel if the observer provider
has determined that the requesting vessel is inadequate or unsafe
pursuant to those regulations described at Sec. 600.746 or U.S. Coast
Guard and other applicable rules, regulations, statutes, or guidelines
pertaining to safe operation of the vessel.
(6) Observer certification and responsibilities--(i) Applicability.
Observer certification authorizes an individual to fulfill duties as
specified in writing by the NMFS Observer Program Office while under
the employ of a NMFS-permitted observer provider and according to
certification endorsements as designated under paragraph (g)(6)(iii) of
this section.
(ii) Observer certification official. The Regional Administrator
will designate a NMFS observer certification official who will make
decisions for the Observer Program Office on whether to issue or deny
observer certification.
(iii) Certification requirements--(A) Initial certification. NMFS
may certify individuals who, in addition to any other relevant
considerations:
(1) Are employed by an observer provider company holding a valid
North Pacific Groundfish Observer Program permit at the time of the
issuance of the certification to the observer;
(2) Have provided, through their observer provider:
(i) Information set forth at Sec. 679.50 regarding an observer
candidate's health and physical fitness for the job;
(ii) Meet all observer education and health standards as specified
in Sec. 679.50; and
(iii) Have successfully completed NMFS-approved training as
prescribed by the At-Sea Hake Observer Program and/or the West Coast
Groundfish Observer Program. Successful completion of training by an
observer applicant consists of meeting all attendance and conduct
standards issued in writing at the start of training; meeting all
performance standards issued in writing at the start of training for
assignments, tests, and other evaluation tools; and completing all
other training requirements established by the Observer Program.
(iv) Have not been decertified under paragraph (g)(6)(ix) of this
section, or pursuant to Sec. 679.50.
(B) [Reserved]
(iv) Denial of a certification. The NMFS observer certification
official will issue a written determination denying observer
certification if the candidate fails to successfully complete training,
or does not meet the qualifications for certification for any other
relevant reason.
(v) Issuance of an observer certification. An observer
certification may be issued upon determination by the observer
certification official that the candidate has successfully met all
requirements for certification as specified in paragraph (g)(6)(iii) of
this section. The following endorsements must be obtained, in addition
to observer certification, in order for an observer to deploy.
(A) North Pacific Groundfish Observer Program certification
training endorsement. A certification training endorsement signifies
the successful completion of the training course required to obtain
observer certification. This endorsement expires when the observer has
not been deployed and performed sampling duties as required by the
Observer Program Office for a period of time, specified by the Observer
Program, after his or her most recent debriefing. The observer can
renew the endorsement by successfully completing certification training
once more.
(B) North Pacific Groundfish Observer Program annual general
endorsements. Each observer must obtain an annual general endorsement
to their certification prior to his or her first deployment within any
calendar year subsequent to a year in which a certification training
endorsement is obtained. To obtain an annual general endorsement, an
observer must successfully complete the annual briefing, as specified
by the Observer Program. All briefing attendance, performance, and
conduct standards required by the Observer Program must be met.
(C) North Pacific Groundfish Observer Program deployment
endorsements. Each observer who has completed an initial deployment
after certification or annual briefing must receive a deployment
endorsement to their certification prior to any subsequent deployments
for the remainder of that year. An observer may obtain a deployment
endorsement by
[[Page 78426]]
successfully completing all pre-cruise briefing requirements. The type
of briefing the observer must attend and successfully complete will be
specified in writing by the Observer Program during the observer's most
recent debriefing.
(D) At-Sea Hake Observer Program endorsements. A Pacific hake
fishery endorsement is required for purposes of performing observer
duties aboard vessels that process groundfish at sea in the Pacific
whiting fishery. A Pacific whiting fishery endorsement to an observer's
certification may be obtained by meeting the following requirements:
(1) Be a prior NMFS-certified observer in the groundfish fisheries
off Alaska, unless an individual with this qualification is not
available;
(2) Receive an evaluation by NMFS for his or her most recent
deployment that indicated that the observer's performance met Observer
Program expectations for that deployment;
(3) Successfully complete a NMFS-approved observer training and/or
Pacific whiting briefing as prescribed by the Observer Program; and
(4) Comply with all of the other requirements of this section.
(vi) Maintaining the validity of an observer certification. After
initial issuance, an observer must keep their certification valid by
meeting all of the following requirements specified below:
(A) Successfully perform their assigned duties as described in the
Observer Manual or other written instructions from the Observer Program
Office including calling into the NMFS deployment hotline upon
departing and arriving into port each trip to leave the following
information: Observer name, phone number, vessel name departing on,
date and time of departure and date and time of expected return.
(B) Accurately record their sampling data, write complete reports,
and report accurately any observations of suspected violations of
regulations relevant to conservation of marine resources or their
environment.
(C) Not disclose collected data and observations made on board the
vessel or in the processing facility to any person except the owner or
operator of the observed vessel or an authorized officer or NMFS.
(D) Successfully complete NMFS-approved annual briefings as
prescribed by the At-Sea Hake Observer Program.
(E) Successful completion of briefing by an observer applicant
consists of meeting all attendance and conduct standards issued in
writing at the start of training; meeting all performance standards
issued in writing at the start of training for assignments, tests, and
other evaluation tools; and completing all other briefing requirements
established by the Observer Program.
(F) Successfully meet all expectations in all debriefings including
reporting for assigned debriefings.
(G) Submit all data and information required by the observer
program within the program's stated guidelines.
(vii) Limitations on conflict of interest. Observers:
(A) Must not have a direct financial interest, other than the
provision of observer services, in a fishery managed pursuant to an FMP
for the waters off the coast of Alaska, or in a Pacific Coast fishery
managed by either the state or Federal Governments in waters off
Washington, Oregon, or California, including but not limited to:
(1) Any ownership, mortgage holder, or other secured interest in a
vessel, shore-based or floating stationary processor facility involved
in the catching, taking, harvesting or processing of fish,
(2) Any business involved with selling supplies or services to any
vessel, shore-based or floating stationary processing facility; or
(3) Any business involved with purchasing raw or processed products
from any vessel, shore-based or floating stationary processing
facilities.
(B) Must not solicit or accept, directly or indirectly, any
gratuity, gift, favor, entertainment, loan, or anything of monetary
value from anyone who either conducts activities that are regulated by
NMFS in the Pacific coast or North Pacific regions or has interests
that may be substantially affected by the performance or nonperformance
of the observers' official duties.
(C) May not serve as observers on any vessel or at any shore-based
owned or operated by a person who employed the observer in the last two
years.
(D) May not solicit or accept employment as a crew member or an
employee of a vessel or shore-based processor while employed by an
observer provider.
(E) Provisions for remuneration of observers under this section do
not constitute a conflict of interest.
(viii) Standards of behavior. Observers must:
(A) Perform their assigned duties as described in the Observer
Manual or other written instructions from the Observer Program Office.
(B) Immediately report to the observer program office and the NOAA
Office of Law Enforcement any time they refuse to board a vessel.
(C) Accurately record their sampling data, write complete reports,
and report accurately any observations of suspected violations of
regulations relevant to conservation of marine resources or their
environment.
(D) Not disclose collected data and observations made on board the
vessel to any person except the owner or operator of the observed
vessel, an authorized officer, or NMFS.
(ix) Suspension and decertification--(A) Suspension and
decertification review official. The Regional Administrator (or a
designee) will designate an observer suspension and decertification
review official(s), who will have the authority to review observer
certifications and issue initial administrative determinations of
observer certification suspension and/or decertification.
(B) Causes for suspension or decertification. The suspension/
decertification official may initiate suspension or decertification
proceedings against an observer:
(1) When it is alleged that the observer has committed any acts or
omissions of any of the following: Failed to satisfactorily perform the
duties of observers as specified in writing by the NMFS Observer
Program; or failed to abide by the standards of conduct for observers
(including conflicts of interest);
(2) Upon conviction of a crime or upon entry of a civil judgment
for: Commission of fraud or other violation in connection with
obtaining or attempting to obtain certification, or in performing the
duties as specified in writing by the NMFS Observer Program; commission
of embezzlement, theft, forgery, bribery, falsification or destruction
of records, making false statements, or receiving stolen property; or
commission of any other offense indicating a lack of integrity or
honesty that seriously and directly affects the fitness of observers.
(C) Issuance of initial administrative determination. Upon
determination that suspension or decertification is warranted, the
suspension/decertification official will issue a written IAD to the
observer via certified mail at the observer's most current address
provided to NMFS. The IAD will identify whether a certification is
suspended or revoked and will identify the specific reasons for the
action taken. Decertification is effective 30 calendar days after the
date on the IAD, unless there is an appeal.
(D) Appeals. A certified observer who receives an IAD that suspends
or revokes the observer certification may appeal the determination
within 30 calendar days after the date on the IAD to the Office of
Administrative Appeals pursuant to Sec. 679.43.
[[Page 78427]]
(h) C/P coop failure--(1) The Regional Administrator will determine
that a permitted C/P coop is considered to have failed if any one of
the following occurs:
(i) Any current C/P-endorsed limited entry trawl permit is not
identified as a C/P coop member in the coop agreement submitted to NMFS
during the C/P coop permit application process;
(ii) Any current C/P-endorsed permit withdraws from the C/P coop
agreement;
(iii) The coop members voluntarily dissolve the coop; or
(iv) The coop agreement is no longer valid.
(2) If the permitted C/P coop dissolves, the designated coop
manager must notify NMFS SFD in writing of the dissolution of the coop.
(3) The Regional Administrator may make an independent
determination of a coop failure based on factual information collected
by or provided to NMFS.
(4) In the event of a NMFS-determined coop failure, or reported
failure, the designated coop manager will be notified in writing about
NMFS' determination.
(i) Upon notification of a coop failure, the C/P coop permit will
no longer be in effect.
(ii) The C/P sector will convert to an IFQ-based fishery beginning
the following calendar year after a coop failure, or a soon as
practicable thereafter. NMFS will develop additional regulations, as
necessary to implement an IFQ fishery for the C/P sector. Each C/P-
endorsed permit would receive an equal distribution of QS from the
total IFQ for the catcher/processor sector allocation.
0
27. In Sec. 660.212, the introductory text, and paragraphs (a)(2) and
(c)(1), are revised to read as follows:
Sec. 660.212 Fixed gear fishery--prohibitions.
These prohibitions are specific to the limited entry fixed gear
fisheries and to the limited entry trawl fishery Shorebased IFQ Program
under gear switching. General groundfish prohibitions are found at
Sec. 660.12, subpart C. In addition to the general groundfish
prohibitions specified in Sec. 660.12, subpart C, it is unlawful for
any person to:
(a) * * *
(2) Take, retain, possess, or land more than a single cumulative
limit of a particular species, per vessel, per applicable cumulative
limit period, except for sablefish taken in the limited entry, fixed
gear sablefish primary season from a vessel authorized to fish in that
season, as described at Sec. 660.231, subpart E and except for IFQ
species taken in the Shorebased IFQ Program from a vessel authorized
under gear switching provisions as described at Sec. 660.140.
* * * * *
(c) Fishing in conservation areas--(1) Operate a vessel registered
to a limited entry permit with a longline, trap (pot), or trawl
endorsement and longline and/or trap gear onboard in an applicable GCA
(as defined at Sec. 660.230(d)), except for purposes of continuous
transiting, with all groundfish longline and/or trap gear stowed in
accordance with Sec. 660.212(a) or except as authorized in the
groundfish management measures at Sec. 660.230.
* * * * *
[FR Doc. 2010-30527 Filed 12-7-10; 11:15 am]
BILLING CODE 3510-22-P