[Federal Register Volume 84, Number 188 (Friday, September 27, 2019)]
[Proposed Rules]
[Pages 51092-51106]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-20552]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 190917-0030]
RIN 0648-BJ02
Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Cod
Management in the Groundfish Fisheries of the Bering Sea and Aleutian
Islands and the Gulf of Alaska
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS proposes regulations to implement Amendment 120 to the
Fishery Management Plan (FMP) for Groundfish of the Bering Sea and
Aleutian Islands (BSAI) Management Area (BSAI FMP) and Amendment 108 to
the FMP for Groundfish of the Gulf of Alaska (GOA) (GOA FMP),
collectively referred to as Amendments 120/108. If approved, Amendment
120 would limit the number of catcher/processors (C/Ps) eligible to
operate as motherships receiving and processing Pacific cod from
catcher vessels (CVs) directed fishing in the BSAI non-Community
Development Quota Program (CDQ) Pacific cod trawl fishery. This
proposed rule is intended to promote the goals and objectives of the
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act), Amendments 120/108, the BSAI and GOA FMPs, and other
applicable laws.
DATES: Submit comments on or before October 28, 2019.
ADDRESSES: You may submit comments on this document, identified by FDMS
Docket Number NOAA-NMFS-2019-0060, by any of the following methods:
Electronic Submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Go to
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2019-0060, click the
``Comment Now!'' icon, complete the required fields, and enter or
attach your comments.
Mail: Submit written comments to Glenn Merrill, Assistant
Regional Administrator, Sustainable Fisheries Division, Alaska Region
NMFS, Attn: Records Office. Mail comments to P.O. Box 21668, Juneau, AK
99802-1668.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NMFS. All comments received are a part of the
public record and will generally be posted for public viewing on
www.regulations.gov without change. All personal identifying
information (e.g., name, address), confidential business information,
or otherwise sensitive information submitted voluntarily by the sender
will be publicly accessible. NMFS will accept anonymous comments (enter
``N/A'' in the required fields if you wish to remain anonymous).
Electronic copies of Amendment 120 to the BSAI FMP, Amendment 108
to the GOA FMP, the Regulatory Impact Review (RIR; also referred to as
the Analysis) and the draft National Environmental Policy Act (NEPA)
Categorical Exclusion evaluation document may be obtained from
www.regulations.gov. Electronic copies of Amendments 39, 61, 80, 97,
and 111 to the BSAI FMP, and the Environmental Assessments (EAs)/RIRs
[[Page 51093]]
prepared for those actions may be obtained from www.regulations.gov.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
rule may be submitted by mail to NMFS at the above address; and by
email to [email protected] or by fax to 202-395-5806.
FOR FURTHER INFORMATION CONTACT: Bridget Mansfield, 907-586-7228.
SUPPLEMENTARY INFORMATION:
Authority for Action
NMFS manages the groundfish fisheries in the exclusive economic
zone of the BSAI and GOA under the BSAI and GOA FMPs, respectively. The
North Pacific Fishery Management Council (Council) prepared the BSAI
and GOA FMPs under the authority of the Magnuson-Stevens Act, 16 U.S.C.
1801 et seq. Regulations governing U.S. fisheries and implementing the
BSAI and GOA FMPs appear at 50 CFR parts 600 and 679.
This proposed rule would implement Amendments 120/108 to the BSAI
and GOA FMPs, respectively. The Council submitted Amendments 120/108
for review by the Secretary of Commerce (Secretary), and a Notice of
Availability (NOA) of Amendments 120/108 was published in the Federal
Register on August 21, 2019, with comments invited through October 21,
2019. Comments submitted on this proposed rule by the end of the
comment period (See DATES) will be considered by NMFS and addressed in
the response to comments in the final rule. Comments submitted on this
proposed rule may also address Amendments 120/108. However, all
comments addressing Amendments 120/108 must be received by October 21,
2019, to be considered in the approval/disapproval decision on
Amendments 120/108. Commenters do not need to submit the same comments
on both the NOA and this proposed rule. All relevant written comments
received by October 21, 2019, whether specifically directed to the FMP
amendments, this proposed rule, or both, will be considered by NMFS in
the approval/disapproval decision for Amendments 120/108 and addressed
in the response to comments in the final rule.
Background
In April 2019, the Council voted to recommend Amendments 120/108 to
require that a C/P acting as a mothership receiving deliveries of BSAI
non-CDQ Pacific cod from CVs directed fishing with trawl gear must be
designated on a groundfish LLP license with a ``BSAI Pacific cod trawl
mothership endorsement.'' Directed fishing is defined as any fishing
activity that results in retention of an amount of a species on board a
vessel that is greater than the maximum retainable amount for that
species (see definition at 50 CFR 679.2). The term ``mothership'', as
defined at Sec. 679.2, means a vessel that receives and processes
groundfish from other vessels. As included in the regulatory text and
discussed in the preamble of this proposed rule, the term ``BSAI
Pacific cod trawl mothership endorsement'' refers to an endorsement on
a groundfish LLP license that would allow the C/P vessel designated on
that groundfish LLP license to operate as a mothership and receive and
process catch of Pacific cod in the BSAI non-CDQ Pacific cod trawl CV
directed fishery. This proposed rule would establish the eligibility
criteria and issuance process for this new endorsement. C/Ps not
designated on groundfish LLP licenses will be prohibited from
participating in the BSAI non-CDQ Pacific cod trawl directed fishery as
a mothership. ``BSAI non-CDQ Pacific cod trawl CV directed fishery'' is
defined at Sec. 679.2 as the fishery in which CVs are directed fishing
for BSAI non-CDQ Pacific cod allocated to the CV trawl sector, as
specified at Sec. 679.20(a)(7)(ii)(A).
To implement Amendments 120/108, NMFS would issue a BSAI Pacific
cod trawl mothership endorsement to a groundfish LLP license with
Bering Sea or Aleutian Islands area and C/P operation endorsements if
the groundfish LLP license had an Amendment 80 or non-Amendment 80 C/P
designated on it, and the groundfish LLP license is credited with
receiving and processing a mothership trip target of Pacific cod in the
BSAI non-CDQ Pacific cod trawl CV fishery in each of the qualifying
years 2015 through 2017 (qualifying period). The Council noted its
intent, and Section 2.6.10 of the Analysis specifies, that
qualification for a C/P to operate as a mothership should be based on
the history of that vessel receiving deliveries of targeted non-CDQ
BSAI Pacific cod harvested by CVs using trawl gear during each year in
the qualifying period. This proposed rule defines the term ``mothership
trip target'' as, in the aggregate, the groundfish species that is
delivered by a CV to a given C/P operating as a mothership in an amount
greater than the retained amount of any other groundfish species
delivered by the same CV to the same C/P for a given week. For those C/
Ps that received and processed at least one mothership trip target of
Pacific cod in the BSAI non-CDQ Pacific cod trawl CV fishery in each
year of the qualifying period, only one groundfish LLP license on which
the vessel was designated during the qualifying period would be
eligible to receive the BSAI Pacific cod trawl mothership endorsement.
Further, Amendments 120/108, if approved by the Secretary, would
prohibit all Amendment 80 C/Ps not designated on an Amendment 80 QS
permit and an Amendment 80 LLP license, or not designated on an
Amendment 80 LLP/QS license, from receiving and processing Pacific cod
harvested in directed fishing for Pacific cod in the BSAI and GOA.
The following sections of this preamble provide a brief description
of (1) the LLP, the BSAI Pacific cod trawl CV fishery, and related
management programs; (2) the need for this proposed rule; (3) the
proposed eligibility criteria and process for obtaining the new
endorsement authorizing receipt and processing of Pacific cod in the
BSAI non-CDQ Pacific cod trawl CV directed fishery; and (4) the
prohibition on replaced Amendment 80 C/Ps from receiving and processing
Pacific cod harvested by directed fishing in the BSAI and GOA Pacific
cod fisheries.
Description of the License Limitation Program, the BSAI Pacific Cod
Trawl Catcher Vessel Fishery, and Related Management Programs
License Limitation Program (LLP)
The Council and NMFS have long sought to control the amount of
fishing effort in the BSAI groundfish fisheries to ensure that the
fisheries are sustainably managed and do not exceed established
biological thresholds. One of the measures used by the Council and NMFS
to control fishing effort is the LLP, which limits access to the
groundfish fisheries in the BSAI. The LLP is intended to prevent
unlimited entry into groundfish fisheries managed under the BSAI FMP.
With some limited exceptions, the LLP requires that persons hold a
groundfish LLP license and have designated on a groundfish LLP license
each vessel that is used to fish in federally managed groundfish
fisheries.
NMFS published the final rule to implement the LLP for BSAI
groundfish fisheries on October 1, 1998 (63 FR 52642), and fishing
under the requirements of the LLP began on January 1, 2000. The
preamble to the final rule implementing the BSAI groundfish LLP and the
EA/RIR prepared for that action describe the
[[Page 51094]]
rationale and specific provisions of the LLP in greater detail (see
ADDRESSES) and are not repeated here.
The key components of the LLP are briefly summarized as follows.
The BSAI groundfish LLP established specific criteria to allow a vessel
to receive a groundfish LLP license and continue to be eligible to fish
in groundfish directed fisheries managed under the BSAI FMP. Vessels
under 32 feet length overall (LOA) in the BSAI, and vessels using jig
gear in the BSAI that are less than 60 feet LOA and that deploy no more
than five jigging machines are exempt from the requirements to have a
groundfish LLP license.
Under the LLP, NMFS issued licenses that (1) endorse fishing
activities in specific regulatory areas in the BSAI; (2) restrict the
length of the vessel on which the LLP license may be used; (3)
designate the fishing gear that may be used on the vessel (i.e., trawl
or non-trawl gear designations); and (4) designate the type of vessel
operation permitted (i.e., specify whether the vessel designated on the
LLP license may operate as a CV, a C/P, or as a mothership). LLP
licenses are issued so that the endorsements for specific regulatory
areas, gear designations, and vessel operational types are non-
severable from the LLP license (i.e., once issued, the components of
the LLP license cannot be transferred independently). Individual LLP
licenses are derived from historical fishing activity in one area with
a specific fishing gear or operational type. By creating LLP licenses
with these characteristics, the Council and NMFS limited the ability of
a person to use an assigned LLP license in other areas, with other
gear, or for other operational types. The Council's intent in applying
such limitations was to curtail the ability of the LLP license holder
to expand fishing capacity, which could decrease the benefits derived
by the existing participants from those other fisheries.
In order to receive a BSAI groundfish LLP license, a vessel owner
had to meet minimum landing requirements with the vessel during a
specific time frame. Specifically relevant to this proposed rule, a
vessel owner received a BSAI groundfish LLP license endorsed for a
specific regulatory area in the BSAI, if that vessel met specific
harvesting and landing requirements for that specific regulatory area
during the qualifying periods established in the final rule
implementing the LLP (63 FR 52642, October 1, 1998). A groundfish LLP
license with a CV operation endorsement allows a vessel to catch but
not process its catch at-sea; a groundfish LLP license with a C/P
endorsement allows a vessel to harvest and process its own catch at-sea
or to act as a mothership to process catch harvested and delivered by a
CV. As an example, in order to receive a groundfish LLP endorsed for
trawl gear in the Aleutian Islands with a C/P designation, a vessel
must have met the minimum groundfish harvesting and landing
requirements for the Aleutian Islands using trawl gear during the
qualifying period, and must have processed the qualifying catch on
board the vessel. Section 2.6.9 of the Analysis provides additional
details on the LLP.
Effects of the American Fisheries Act, Amendment 80, and Amendment 85
on BSAI Pacific Cod Fisheries
This proposed rule would modify regulations governing the
deliveries of Pacific cod in the BSAI to vessels operating as
motherships. The vessels primarily affected by this proposed rule are
managed under three management regimes, the American Fisheries Act
(AFA) Program, the Amendment 80 Program, and the allocation of Pacific
cod to the BSAI trawl catcher vessel sector that was implemented under
Amendment 85 to the BSAI FMP. Each of these three management regimes is
described in additional detail below.
NMFS published the final rule to implement the American Fisheries
Act (AFA) (BSAI FMP Amendment 61), on December 30, 2002 (67 FR 79691).
The preamble to the final rule implementing the AFA and the EA/RIR
prepared for that action describe the rationale and specific provisions
of the AFA in greater detail (see ADDRESSES) and are not repeated here.
Along with other measures, implementation of the AFA granted AFA vessel
owners fixed percentages of the available BSAI pollock TAC after
deductions for the CDQ fishery and the incidental catch allowances for
other fisheries. The allocation of pollock provided the AFA fleet the
ability to effectively consolidate and improve the efficiency of their
Bering Sea pollock operations. Opportunities for these vessel owners to
expand into other fisheries that would not otherwise have been
available were a potential result. To limit these expansions, the AFA
created harvesting limits, known as sideboards, on AFA vessels in non-
pollock fisheries to protect vessels and processors in other, non-
pollock fisheries from spillover effects resulting from the
rationalization and privatization of the BSAI pollock fishery. One of
the groundfish directed fisheries limited by the sideboard limits was
Pacific cod. The original Pacific cod sideboards applicable to AFA
vessels have been revised, beginning in 2008 with the implementation of
the Amendment 80 Program.
The Amendment 80 Program was implemented in 2008 (72 FR 52668,
September 14, 2007). The preamble to the final rule implementing the
Amendment 80 Program and the EA/RIR prepared for that action describe
the rationale and specific provisions of Amendment 80 in greater detail
(see ADDRESSES) and are not repeated here. Amendment 80 identified
groundfish trawl C/Ps that were not covered by the AFA (i.e., the head-
and-gut fleet or Amendment 80 vessels) and established a framework for
future fishing by this fleet. Along with other measures, Amendment 80
allocated six BSAI non-pollock groundfish species among two trawl
fishery sectors. The six species, known as ``Amendment 80 species,''
include Aleutian Islands Pacific ocean perch, BSAI Atka mackerel, BSAI
flathead sole, BSAI Pacific cod, BSAI rock sole, and BSAI yellowfin
sole. These species are allocated for harvest among the Amendment 80
sector's participants, comprised of specific trawl vessels identified
under Amendment 80, and all other BSAI trawl fishery participants not
in the Amendment 80 sector. The other BSAI trawl fishery participants
include AFA C/Ps, AFA CVs, and non-AFA CVs. Collectively, this group of
other, or non-Amendment 80, BSAI trawl fishery participants comprises
the BSAI trawl limited access sector (TLAS), defined at 50 CFR 679.2.
Each year, NMFS allocates the initial total allowable catch (ITAC)
of the six Amendment 80 species, as well as crab and halibut prohibited
species catch (PSC) limits, between the Amendment 80 sector and the
BSAI TLAS. Allocations made to the Amendment 80 sector are exclusive to
the Amendment 80 sector and not subject to harvest in other fishery
sectors. The Amendment 80 sector is precluded from harvesting Amendment
80 species allocated to the BSAI TLAS. The Council's intent in
establishing the BSAI TLAS was to provide harvesting opportunities for
AFA C/Ps, AFA CVs, and non-AFA CVs. The ITAC represents the amount of
total allowable catch (TAC) for each Amendment 80 species that is
available for harvest after allocations to the CDQ Program and the
incidental catch allowance (ICA) have been subtracted.
The ICA is an amount set aside for the incidental harvest of each
Amendment 80 species by non-Amendment 80 vessels targeting other
groundfish species in non-trawl fisheries and in the BSAI TLAS
fisheries. BSAI Pacific cod ITAC (non-CDQ) for trawl gear is
[[Page 51095]]
allocated to the Amendment 80, AFA C/P, and trawl CV sectors
separately, which is why the Pacific cod AFA C/P and trawl CV sector
allocations are not collectively referred to as the BSAI TLAS fishery.
The annual proportion of BSAI Pacific cod ITAC (non-CDQ) allocated to
the sectors depends on the amount at which the Pacific cod ITAC is set.
The Pacific cod ITAC allocated to the trawl CV sector is divided
between the Aleutian Islands subarea and the Bering Sea subarea. An
allocation to a non-CDQ fishery sector may be harvested in either the
Bering Sea or the Aleutian Islands, subject to the Pacific cod ITAC
specified for the Bering Sea or the Aleutian Islands. If the Pacific
cod ITAC is or will be reached in either the Bering Sea or Aleutian
Islands, NMFS will prohibit directed fishing for Pacific cod in that
subarea for all non-CDQ fishery sectors.
Although the Council was clear in its intent to prohibit Amendment
80 vessels from harvesting Amendment 80 species allocated to the BSAI
TLAS, the Council did not specifically address during its development
of Amendment 80 whether Amendment 80 vessels should be eligible to
serve as processing platforms for other fishery sectors. As noted
earlier in this preamble, a vessel that receives and processes
groundfish from other vessels is referred to as a ``mothership.''
Although Amendment 80 vessels operate as C/Ps (i.e., the vessels catch
and process their own catch) in the Amendment 80 sector, Amendment 80
vessels meet the regulatory definition of a mothership when they
receive and process catch from CVs fishing in other fisheries.
The final rule implementing Amendment 80 clarified that Amendment
80 vessels could be used as motherships for CVs fishing in other BSAI
trawl fisheries, based on public comments received on the proposed rule
(72 FR 30052, May 30, 2007), further analysis by NMFS, and the lack of
clearly stated Council intent to the contrary. The final rule
implementing Amendment 80 modified the proposed regulations to permit
this activity, noted that this revision accommodated one Amendment 80
C/P that had historically been used as a mothership, and acknowledged
that the revision provided for potential future growth in the use of
Amendment 80 vessels as motherships in the BSAI TLAS fisheries. A
detailed description of the Council's intent and NMFS' actions
regarding limitations of Amendment 80 vessels catching, receiving, and
processing fish assigned to the BSAI TLAS fisheries is provided in the
proposed and final rules implementing Amendment 80.
Under Pacific cod allocations prior to the final rule implementing
BSAI FMP Amendment 85 (72 FR 50787, September 4, 2007), one or more
harvest sectors were often unable to harvest their annual allocation of
the BSAI non-CDQ Pacific cod TAC. To provide opportunities for full
harvest, NMFS annually reallocated Pacific cod projected to be
unharvested by some sectors to other sectors. To reduce or eliminate
the need for such reallocations, Amendment 85 established direct
allocations and seasonal apportionments of BSAI Pacific cod TAC for
each specified sector in the BSAI Pacific cod fishery. This change
reduced annual uncertainty about harvest availability within sectors
and increased stability among sectors in the fishery. Because the
allocation to each sector is fixed, and NMFS does not reallocate unused
catch to trawl CPs in most cases, trawl C/Ps may have an incentive to
engage in mothership operations to increase Pacific cod processing.
Increased Mothership Activity in the BSAI Non-CDQ Pacific Cod Trawl CV
Directed Fishery
In 2017 the Council noted an increase in mothership activity since
2016 in the BSAI non-CDQ Pacific cod trawl CV directed fishery. This
increased mothership activity was linked to trawl CVs delivering to C/
Ps operating as motherships thereby decreasing Pacific cod landings at
BSAI shoreside processing facilities. Table 2-29 in the Analysis for
this action shows the rapid increase of the amount of Pacific cod
harvested in the BSAI non-CDQ Pacific cod trawl CV directed fishery and
delivered to C/Ps acting as motherships in recent years. Section 2.7.1
of the Analysis noted that, from 2003 through 2015, four unique C/Ps
operated as motherships in the fishery, with one to three such vessels
participating in any one year. One of the four C/Ps participating from
2003 through 2015 acted as a mothership in the fishery during one of
those 13 years, and one acted as mothership in the fishery during three
of the 13 years. Of the remaining two C/Ps, one participated as a
mothership in the fishery 10 of 13 years, and the other participated as
a mothership in the fishery 12 of 13 years. In 2016 and 2017, the
number of C/Ps acting as motherships in the fishery jumped
substantially to eight vessels, and increased again to nine vessels in
2018.
Section 2.7.1 of the Analysis noted that in 2018, 174 groundfish
LLP licenses had a trawl endorsement for either the Bering Sea area or
the Aleutian Islands area. A C/P endorsement is assigned to 59 of those
licenses, and a CV endorsement is assigned to the remaining 115
licenses. The groundfish LLP licenses also identify whether the
groundfish LLP license is associated with either the Amendment 80 or
AFA programs. Twenty-six of the C/P groundfish LLP licenses are
associated with Amendment 80, while 27 groundfish LLP licenses are
associated with AFA C/Ps. Under current regulations, any of the 50 C/Ps
not currently active in the fishery with a trawl endorsement for either
the Bering Sea area or the Aleutian Islands area could enter the
fishery as a mothership, if they have the proper Federal Fisheries
Permit and endorsement and meet any other regulatory requirement to act
as a mothership. The nine Amendment 80 C/Ps and AFA C/Ps that are
active as motherships in the fishery could maintain or increase the
percentage of the trawl CV sector allocation they process.
The Council noted that, as a result of increased mothership
availability, the number of trawl CVs in the offshore fishery has
increased. This is true particularly in the fishery's A season, when
the majority of BSAI non-CDQ Pacific cod trawl CV allocation is
harvested. Table 2-29 in Section 2.7.1 of the Analysis indicates that
an average of 4.7 CVs in this fishery delivered Pacific cod to C/Ps
acting as motherships from 2006 through 2014, compared to an average of
9 CVs from 2015 through 2017. The number of CVs in the fishery
delivering to C/Ps acting as motherships continued to increase in the A
season in 2018 and 2019, with 11 and 13 CVs, respectively.
A corresponding decline in deliveries to shoreside processors
occurred during the same period. Eighteen different shoreside or
floating processing entities took deliveries of Pacific cod from either
the Bering Sea or Aleutian Islands during 2009 through 2018 (Section
2.6.14.4 of the Analysis). In any one year the number of shoreside
processors that operated ranged from 10 to 13. Just under 93 percent of
non-CDQ Pacific cod targeted in the Bering Sea was delivered to
shoreside and other non-C/P processors from 2008 through 2018 by trawl
CVs. Deliveries to that sector decreased to approximately 87 percent in
2017 and 79 percent in 2018, which the Council noted represented a
substantial departure from historical delivery patterns. In comparison,
in the Bering Sea from 2008 through 2018 deliveries to C/Ps acting as
motherships
[[Page 51096]]
averaged 7.2 percent of overall landings including deliveries to
shoreside and floating processors. The proportion of CV deliveries to
C/Ps operating as motherships was much higher than that average in 2017
(12.7 percent) and higher yet in 2018 (20.8 percent). In the 2019 A
season, the proportion of CV deliveries to C/Ps operating as
motherships was 30.5 percent. These increases are occurring as the
overall BSAI TAC is declining, contributing to a faster-paced fishery.
The potential exists for additional motherships and CVs delivering
to motherships to participate in the BSAI non-CDQ Pacific cod trawl CV
directed fishery. There are no current constraints on C/Ps operating as
motherships in the BSAI non-CDQ Pacific cod trawl CV directed fishery
as long as they hold the required permits or licenses. Section 2.7.1 of
the Analysis provides information indicating that up to 46 additional
Amendment 80 or AFA C/Ps could enter the BSAI non-CDQ Pacific cod trawl
CV directed fishery as motherships based on a range of factors. These
motherships could provide processing capacity for a substantial number
of additional CVs. CVs are not limited in the amount of Pacific cod
from the available allocation to the BSAI non-CDQ Pacific cod trawl CV
directed fishery that they can delivery to C/Ps. These estimates likely
represent the maximum potential expansion of mothership processing
capacity in the BSAI non-CDQ Pacific cod trawl CV directed fishery,
although that maximum would likely not be realized for a number of
reasons. Section 2.7.1 of the Analysis provides additional details on
the potential for new C/Ps operating as motherships and for CVs to
enter the BSAI non-CDQ Pacific cod trawl CV directed fishery.
Need for Action
Given the recent sharp increases in offshore deliveries in the BSAI
non-CDQ Pacific cod trawl CV directed fishery to C/Ps operating as
motherships and the potential for future growth in offshore deliveries,
the Council identified two primary management concerns that it wanted
to address with Amendments 120/108: (1) The likelihood of decreasing
benefits from the fishery for long-time participants, including some C/
Ps, shoreside processors, and communities dependent on those shoreside
processors; and (2) negative impacts of a faster paced fishery, such as
the increased risk of a ``race for fish.'' The Council noted the
increase in mothership deliveries in the fishery was disrupting
historical distribution patterns resulting in, and increasing the
potential to have further, negative impacts on long-time participants
with sustained activity in the fishery, including C/Ps operating as
motherships, shoreside processors, and communities with local economies
dependent on revenue and jobs created by the shoreside processors. The
Council was concerned that the increase in offshore deliveries may have
resulted in slightly shorter fishing seasons due to the faster pace of
the fishery, negatively affecting PSC rates and vessel safety.
The Analysis (Section 2.8.2) noted that safety issues associated
with compressed seasons and crowding of premium fishing areas could be
made worse as more vessels enter the fishery. Public testimony has
indicated that crowding may already be occurring on Bering Sea fishing
grounds, where vessels are required to queue up to begin fishing for
Pacific cod. Additional effort in the fishery could increase queue
times and increase the risks that vessel operators are willing to take.
Shorter fishing seasons may affect vessel safety as the race for fish
intensifies; fish quality may suffer as Pacific cod is rushed through
factory processing; global markets may respond with lower prices if
large volumes of lower quality Pacific cod oversaturate markets; and
local economies may receive less revenue as landings to shoreside
processors, upon which associated communities have historically been
dependent, continue to erode. The Council also expressed concern that
recent declines in available trawl CV sector allocations of BSAI
Pacific cod, noted in Section 2.6.2 of the Analysis and potential
future declines could exacerbate these other problems in the fishery.
In order to address these concerns, the Council determined, and
NMFS agrees, that management measures are needed to limit the offshore
processing capacity in the BSAI non-CDQ Pacific cod trawl CV directed
fishery. The Council also determined that any Amendment 80 C/P that was
replaced under BSAI Amendment 97 (77 FR 59852; October 1, 2012) should
be prohibited from operating as a mothership in the fishery. The
Council recommended, and NMFS proposes two preferred alternatives for
Amendment 120 and one for Amendment 108 to implement those management
measures. The first preferred alternative under Amendment 120 would
implement eligibility criteria for a groundfish LLP license to receive
a mothership endorsement authorizing a C/P designated on that
groundfish LLP license to operate in the BSAI non-CDQ Pacific cod trawl
CV directed fishery as a mothership and receive and process deliveries
of Pacific cod from CVs using trawl gear in the fishery. The Council
considered two separate eligibility options: One for groundfish LLP
licenses on which Amendment 80 C/Ps are designated and one for
groundfish LLP licenses on which non-Amendment 80 C/Ps are designated.
For groundfish LLP licenses on which Amendment 80 C/Ps are designated,
the Council recommended the most restrictive sub-option of the three
evaluated in the Analysis. This sub-option stipulates that groundfish
LLP licenses on which Amendment 80 C/Ps are designated would be
eligible for a mothership endorsement only if the groundfish LLP
license has been credited with receiving at least one mothership trip
target of Pacific cod in the BSAI non-CDQ Pacific cod trawl CV directed
fishery in each year from 2015 through 2017.
The second option, addressing eligibility for groundfish LLP
licenses on which non-Amendment 80 C/Ps are designated, was evaluated
in Section 2.4.2 of the Analysis. Because only one groundfish LLP
license on which a non-Amendment 80 C/P is designated would qualify
under any of the eligibility sub-options considered for groundfish LLP
licenses on which Amendment 80 C/Ps are designated, the Council
initially noted that sub-options need not be considered for groundfish
LLP licenses on which non-Amendment 80 C/Ps are designated in the
Analysis. As a result, the Council recommended adopting the only option
for eligibility for groundfish LLP licenses on which non-Amendment 80
C/P are designated. That option specified that ``a catcher/processor
may take directed fishery deliveries of Pacific cod from catcher
vessels participating in the Bering Sea (BSAI) non-CDQ Pacific cod
trawl CV fishery if the catcher/processor acted as a mothership and
received targeted Pacific cod deliveries as follows: Non-Amendment 80
vessels acting as a mothership during 2015-2017.'' However, in
discussion during final action, the Council clarified its intent that a
groundfish LLP license on which a non-Amendment 80 C/P is designated
would be eligible for a mothership endorsement only if the C/P was
designated on a groundfish LLP license that has been credited with
receiving and processing at least one mothership trip target of Pacific
cod in the BSAI non-CDQ Pacific cod trawl CV directed fishery in each
year from 2015 through 2017. The Council made this clarification to
ensure that eligibility criteria for groundfish LLP licenses on which
Amendment 80 and non-Amendment 80 C/Ps are designated are
[[Page 51097]]
consistent. The Council also clearly understood that this approach
would not change the number of non-Amendment 80 C/Ps that could operate
as a mothership for BSAI Pacific cod in the future. This proposed rule
would implement eligibility criteria for groundfish LLP licenses on
which non-Amendment 80 C/Ps are designated, as clarified by the
Council.
The second preferred alternative that would be implemented under
Amendment 120 would also be implemented under Amendment 108. This
preferred alternative would eliminate the ability of any Amendment 80
C/P replaced under BSAI Amendment 97 from operating as a mothership in
the fishery. Thus, any Amendment 80 sector C/P not designated on an
Amendment 80 QS permit and an Amendment 80 LLP license, or not
designated on an Amendment 80 LLP/QS license, would be prohibited from
receiving and processing Pacific cod harvested in directed fishing for
Pacific cod in the BSAI or GOA.
The Council determined, and NMFS agrees, that limiting the number
of C/Ps operating as motherships in the BSAI non-CDQ Pacific cod trawl
CV directed fishery is necessary to restore historical patterns of
harvest delivery distribution between processing sectors. Reducing
recent levels of deliveries to offshore processors and increasing
deliveries to shoreside processors will ease the likelihood of
harvesting pressure further shortening the fishing season, and mitigate
the risk that a ``race for fish'' could continue to develop and
accelerate. The Council also determined, and NMFS agrees, that this
proposed rule would reasonably balance the need to limit the number of
C/Ps operating as motherships in the BSAI non-CDQ Pacific cod trawl CV
directed fishery with the need to provide continued access and benefits
to long time participants with sustained activity in the fishery,
including C/Ps operating in the fishery as motherships, shoreside
processors, and fishery-dependent communities.
The Council determined, and NMFS agrees, that the proposed action
would likely prevent the fishing season from shortening further,
because it removes the ability for additional offshore processing
capacity to enter the fishery and accelerate TAC harvest or reach PSC
limits more quickly. Reaching the halibut PSC limit or harvesting
Pacific cod allocations increasingly quickly results in increasingly
earlier fishery closures. The Council noted, and NMFS agrees, that this
proposed rule could ease NMFS's inseason management challenges in
gathering effort information to project when the seasonal allocations
will be harvested. As described in Section 2.6.3 and 2.7.1 of the
Analysis, the lengths of the A seasons in 2017 through 2019, when the
bulk of the fishery's annual allocation is harvested, were the shortest
on record for this fishery, and this trend was coincident with the
highest numbers of C/Ps operating as motherships and highest levels of
offshore deliveries compared to shoreside deliveries. The pace of
fishing during those fishing seasons may have increased in part due to
additional speculative entry and concerns by current participants about
the increasing competition.
This proposed rule could help lengthen the fishing season and
mitigate a ``race for fish'' by limiting the eligible groundfish LLP
licenses for C/Ps operating as motherships, such that participation is
generally representative of the levels seen from 2008 through 2015,
when the A season lasted five weeks or longer. This proposed rule also
would allow more flexibility in fishing operations by ensuring
predictable levels of competition. That flexibility may help reduce PSC
in the fishery and improve vessel safety, by allowing vessels to
implement fishing practices known to reduce PSC and improve vessel
safety. At a minimum, the proposed action is expected to minimize
further negative impacts on C/Ps with long-term, sustained
participation operating as motherships, as well as shoreside processors
and associated fishery-dependent communities.
Under the LLP, a license can be transferred to a different vessel
that is eligible to be designated on that LLP license. Although a
vessel may be designated on more than one LLP license at one time, only
one vessel can be designated on each LLP license at any given time.
Therefore, the number of eligible groundfish LLP licenses presented in
this proposed rule and the Analysis represents the maximum number of C/
Ps that NMFS has determined would be eligible to receive and process
Pacific cod in the BSAI non-CDQ Pacific cod trawl CV directed fishery.
If Amendments 120/108 are approved and this rule is implemented, fewer
and/or different C/Ps designated on groundfish LLP licenses with a BSAI
Pacific cod trawl fishery mothership endorsement may be used to receive
and process Pacific cod in the BSAI non-CDQ Pacific cod trawl CV
directed fishery. The Analysis uses the current groundfish LLP license
vessel designations to describe the likely impacts of the proposed
action, because it is not possible to know how the vessel designations
on groundfish LLP licenses may change in the future or how those
groundfish LLP licenses will be used in the fishery.
The Council considered a range of factors and options in
determining what criteria would qualify a groundfish LLP license for a
BSAI Pacific cod trawl CV fishery mothership endorsement, including:
(1) How eligible mothership trip targets would be determined; (2) the
range of years during which eligible mothership trip targets would need
to be made (i.e., qualifying period); (3) the number of years during
the qualifying period in which eligible mothership trip targets would
need to be made; (4) sideboards; and (5) a prohibition on replaced
Amendment 80 C/Ps operating as motherships to receive and process
Pacific cod deliveries harvested in directed fishing in the Pacific cod
fisheries in the BSAI and GOA. In addition to other factors considered
and addressed in the Analysis, the Council and NMFS considered the
proposed action's consistency with allocations initially made under the
Amendment 80 Program, and the proposed action's potential impacts on
the BSAI AFA C/P and trawl CV Pacific cod fisheries. The following
discussion briefly summarizes these options and key considerations.
Why is the qualification for a BSAI Pacific cod trawl CV fishery
mothership endorsement based on mothership trip targets rather than
directed fishing?
At its June 2018 meeting, the Council clarified that eligibility
criteria should be based on mothership trip targets rather than
directed fishing landings. Directed fishing is defined as any fishing
activity that results in retention of an amount of a species on board a
vessel that is greater than the maximum retainable amount for that
species (see definition at 50 CFR 679.2). Under this definition of
directed fishing, a vessel may be targeting and retaining yellowfin
sole but also retaining incidentally caught Pacific cod at an amount
that exceeds the maximum retainable amount for Pacific cod. NMFS would
consider the vessel to be directed fishing for yellowfin sole and
directed fishing for Pacific cod in such a situation. Thus, limiting
access of C/Ps acting as motherships to the BSAI directed non-CDQ
Pacific cod trawl CV fishery based on a history of receiving and
processing directed fishing landings of Pacific cod could result in C/
Ps meeting eligibility criteria based on receiving and processing
incidental catch of Pacific cod from trawl CVs.
Under this proposed rule, ``mothership trip target'' is defined as,
[[Page 51098]]
in the aggregate, the groundfish species that is delivered by a CV to a
given C/P acting as a mothership in an amount greater than the retained
amount of any other groundfish species delivered by the same CV to the
same C/P for a given week. The Council's intent with this action is to
provide endorsements to those C/Ps acting as motherships receiving and
processing deliveries from trawl CVs that were intentionally targeting
Pacific cod in the BSAI trawl CV fishery. The Council did not intend
for this action to provide endorsements to C/Ps acting as motherships
receiving and processing deliveries from trawl CVs that were
intentionally targeting other groundfish species, but retaining their
incidental catch of Pacific cod. Using mothership trip targets to
determine eligibility would limit the potential for a C/P to qualify
for participation in the BSAI non-CDQ Pacific cod trawl CV directed
fishery as a mothership based on the vessel receiving and processing
incidental catch of Pacific cod. This is consistent with previous uses
of trip targets, rather than directed fishing activity, as eligibility
criteria for limiting access to fisheries (e.g., BSAI FMP Amendment
116; 83 FR 49994, October 4, 2018).
The Analysis presented to the Council explained that different
numbers of groundfish LLP licenses would qualify for a BSAI Pacific cod
trawl mothership endorsement depending on whether weekly production
reports or fish tickets are used to determine which C/Ps received
deliveries of targeted Pacific cod during the qualifying period. If
weekly production reports from the qualifying period are used to
determine receipt of targeted Pacific cod deliveries, then two
groundfish LLP licenses would qualify for a BSAI Pacific cod trawl
mothership endorsement. If fish ticket data are used, then three
groundfish LLP licenses would be eligible to receive a BSAI Pacific cod
trawl mothership endorsement. The record demonstrates that the Council
understood that two groundfish LLP licenses would qualify for the
endorsement under the preferred alternative. This suggests to NMFS that
only weekly production reports should be used in determining
qualification. Further, relying on weekly production report data would
qualify the two C/Ps that have long-term, sustained participation as
motherships in the fishery, which is also consistent with the Council's
intent.
Why was the range of qualifying years selected?
The Council considered one range of years, 2015 through 2017, to
define the qualifying period in which mothership trip targets of
Pacific cod in the BSAI non-CDQ Pacific cod trawl CV directed fishery
delivered to C/Ps operating as motherships would qualify a groundfish
LLP license on which the C/P was designated for a mothership
endorsement. This range includes the years directly before and after
2016, which was the year that five additional Amendment 80 C/Ps entered
the BSAI non-CDQ Pacific cod trawl CV directed fishery as motherships,
more than doubling the number of participating C/Ps operating as
motherships in the fishery. There has not been the same increase in
non-Amendment 80 C/P participation as motherships in the BSAI Pacific
cod fishery during this same period. The increase in Amendment 80 C/Ps
operating as motherships resulted in the Council expressing concern
about the increased amount of BSAI non-CDQ Pacific cod delivered
offshore in the fishery, and the corresponding decrease in the amount
delivered onshore. The Council considered including participation in
the fishery prior to 2015, but determined that participation prior to
2015 was stable and represented sustained effort. The Council chose to
end the qualifying period with 2017, because the Council initiated the
Analysis for Amendments 120/108 in 2017 and announced its intent to
limit the number of C/Ps operating as motherships based on activity
occurring prior to December 31, 2017. Thus, the Council considered
participation after 2017 to represent speculative entry into the
fishery. Finally, these were the most recent three years of data
available at the time the Council signaled its intent to limit the
number of C/Ps operating as motherships in the BSAI non-CDQ Pacific cod
trawl CV directed fishery, and a three-year qualifying period is
consistent with the length of qualifying periods set in similar Council
actions (e.g., BSAI FMP Amendment 116; 83 FR 49994, October 4, 2018).
The Council was aware of the potential for additional effort to
enter the BSAI non-CDQ Pacific cod trawl CV directed fishery while the
Council developed and considered Amendments 120/108. The Council was
also aware that additional or speculative effort could enter the
fishery to establish some history in it, potentially impacting existing
participants in the fishery by further shortening the fishing season
and increasing the ``race for fish'' (see Section 2.6.3 of the Analysis
for a description of fishing patterns and seasons), and further
shifting the historical delivery patterns in this fishery from
shoreside processors to offshore processors. To dampen the effect of
additional or speculative entry into the BSAI non-CDQ Pacific cod trawl
CV directed fishery, on December 9, 2017, the Council signaled its
intent to establish eligibility criteria based on activity occurring
prior to December 31, 2017. Although this date was not binding on
future Council actions, the Council clearly indicated at its December
2017 meeting that December 31, 2017 could be used as a reference date
for a future management action to limit C/Ps from acting as motherships
in the BSAI trawl catcher vessel Pacific cod fishery. In taking such
action, the Council intended to promote awareness that the Council may
develop a future management action; to provide notice to the public
that any current or future mothership operations in the offshore sector
of the BSAI non-CDQ Pacific cod trawl CV directed fishery may be
affected or restricted; and to discourage speculative participation and
behavior in the fishery while the Council considered whether to
initiate a management action to further limit mothership participation
in the fishery.
After the Council noted the recent increase of C/Ps operating as
motherships in the fishery from three C/Ps in 2015 to eight C/Ps in
2016 and 2017, and signaled its intent to limit this activity in
December 2017, the number of participating C/Ps acting as motherships
increased to nine in 2018. The 2018 level was triple the maximum level
of participation by C/Ps acting as motherships during any year from
2003 through 2015, and over four times the average level from 2003
through 2015. Because the Council identified in 2017 the recent
increase in C/Ps acting as motherships in the fishery as a contributing
factor to the increased pace of the fishery and shortened fishing
seasons, the Council was concerned that the even greater increase in
participation by C/Ps acting as motherships after 2017 would further
shorten the fishing season. The Council believed that this would
decrease the Council's ability to maximize the value of the fishery,
and would negatively impact fishery participants and threaten the
viability of the fishery. The selection of the 2015 through 2017
qualifying period is consistent with the Council's clearly stated
policy objectives for this action.
Why select a qualifying period of three years, not one or two years,
for participation for Amendment 80 and non-Amendment 80 C/Ps acting as
motherships?
In selecting the years 2015 through 2017 as the qualifying period,
the
[[Page 51099]]
Council considered the potential for future entry of capacity into the
fishery, while also recognizing existing participation. For Amendment
80 C/Ps, the Council evaluated three levels of participation during the
selected qualifying period to determine eligibility of groundfish LLP
licenses on which Amendment 80 C/Ps are designated for the BSAI Pacific
cod trawl mothership endorsement. The three sub-options considered by
the Council required Amendment 80 C/Ps to receive and process a legal
mothership trip target of Pacific cod in the BSAI non-CDQ Pacific cod
trawl CV directed fishery in either: (1) One of the three years during
the qualifying period, (2) two of three years, or (3) each of three
years. The Council considered only one level of participation for non-
Amendment 80 C/Ps during the selected qualifying period to determine
eligibility for the BSAI Pacific cod trawl mothership endorsement,
because a single groundfish LLP license on which only one non-Amendment
80 C/P is designated would qualify under any of the sub-options
considered for Amendment 80 C/Ps. That level of participation was
receiving and processing a legal mothership trip target of Pacific cod
in the BSAI non-CDQ Pacific cod trawl CV directed fishery in any one of
the three years. However, as noted above, the Council amended the
recommended eligibility level of participation for non-Amendment 80 C/
Ps to be consistent with the preferred sub-option for eligibility for a
groundfish LLP license on which Amendment 80 C/Ps are designated to
simplify regulations.
Section 2.7.2 of the Analysis details the number of groundfish LLP
licenses that would and would not qualify for a BSAI Pacific cod trawl
mothership endorsement for each of the options described above. Under
the first sub-option described above, seven groundfish LLP licenses on
which an Amendment 80 C/P was designated would be credited with at
least one mothership trip target of Pacific cod in the BSAI non-CDQ
Pacific cod trawl CV directed fishery in each year of the qualifying
period and therefore would be eligible to receive a BSAI Pacific cod
trawl mothership endorsement. Twelve groundfish LLP licenses on which
an Amendment 80 C/P was designated would not qualify for the
endorsement under this sub-option. Under the second sub-option, six
groundfish LLP licenses on which an Amendment 80 C/P was designated
would be credited with at least one mothership trip target of Pacific
cod in the BSAI non-CDQ Pacific cod trawl CV directed fishery in each
year of the qualifying period, and therefore would be eligible to
receive the endorsement. Thirteen groundfish LLP licenses on which an
Amendment 80 C/P was designated would not qualify for the endorsement
under the second sub-option. Under the third sub-option, selected by
the Council as its preferred sub-option, one groundfish LLP license on
which an Amendment 80 C/P was designated would be eligible to receive
the endorsement. Eighteen groundfish LLP licenses on which an Amendment
80 C/P was designated would not qualify for the endorsement under the
third sub-option.
Since only one non-Amendment 80 C/P received deliveries of BSAI
directed, non-CDQ Pacific cod from trawl CVs in each year from 2015
through 2017, the groundfish LLP license on which that vessel was
designated during the qualifying period is the only one that would be
eligible for the BSAI Pacific cod trawl mothership endorsement under
the terms of all of the sub-options established for the Amendment 80 C/
Ps. The Council selected the one non-Amendment 80 option, Alternative
2, Option 2, as its preferred option to provide eligibility for the
groundfish LLP license on which the one non-Amendment 80 C/P that
operated in the fishery as a mothership was designated. The Council
decided to exclude non-Amendment 80 true motherships from this action
based on information showing minimal participation taking deliveries
from the BSAI cod target fishery from 2008 through 2018, as noted in
Section 2.6.14.5 of the Analysis.
The Council determined, and NMFS agrees, that the selected sub-
option 3 for Amendment 80 C/Ps, and the selected option, as clarified
by the Council, for non-Amendment 80 C/Ps would allow the fishery to be
fully prosecuted without the risk of a continued increase in harvest
pressure that could continue to shorten the fishing season or decrease
deliveries to the shoreside processors. The Council did not choose the
sub-options for one- or two-year participation requirements for
groundfish LLP licenses on which Amendment 80 C/Ps were designated,
because either option would have allowed participation in a manner that
is not reflective of the historical harvest patterns in the fishery
prior to the recent increase in Amendment 80 C/Ps acting as
motherships. The selected eligibility criteria for groundfish LLP
licenses are consistent with the Council's intent to provide continued
access and benefits to C/Ps that had sustained participation operating
as a mothership, as well as shoreside processors that historically
accepted higher levels of Pacific cod deliveries in the fishery.
Why restrict Amendment 80 C/Ps acting as motherships to only those
designated on an Amendment 80 QS permit and an Amendment 80 LLP license
or on an Amendment 80 LLP/QS license?
Restricting Amendment 80 C/Ps operating as motherships in directed
Pacific cod fisheries in the BSAI and GOA to only those designated on
an Amendment 80 QS permit and an Amendment 80 LLP license or on an
Amendment 80 LLP/QS license is intended to ensure that Amendment 80 C/
Ps that are replaced under regulations promulgated under BSAI Amendment
97 (77 FR 59852; October 1, 2012) cannot be used to circumvent the
intent of the proposed action. This ensures that both current and
replaced Amendment 80 C/Ps are subject to the limitations placed on the
fleet under this proposed rule. If an Amendment 80 C/P designated on a
groundfish LLP license that qualifies for the BSAI Pacific cod trawl
mothership endorsement is replaced, the endorsement transfers with the
Amendment 80 QS permit and LLP license or the combined QS permit/LLP
license to the replacement vessel designated on the license and permit.
This proposed provision thus eliminates the opportunity for both the
replacement vessel and the replaced vessel to be used as a mothership
in the BSAI non-CDQ Pacific cod trawl CV fishery. This provision
expands the limitations of this proposed rule, which is otherwise
focused on the BSAI non-CDQ Pacific cod trawl CV directed fishery, to
include all mothership activity in the BSAI and GOA Pacific cod
fisheries. This expansion reflects the Council's intent to prohibit the
expanded use of those C/Ps once they exit the Amendment 80 program. If
this proposed provision were not included in this proposed rule, a
replaced Amendment 80 C/P would continue to be allowed to operate as a
mothership and receive and process Pacific cod harvested by vessels
directed fishing for Pacific cod, in addition to the C/P that replaced
it. This proposed provision closes that potential loophole in the
regulations and therefore meets the Council's intent of allowing only
one Amendment 80 C/P and one non-Amendment 80 C/P to operate as a
mothership in the BSAI non-CDQ Pacific cod trawl directed fishery in
the future. Further, this approach is consistent with the Council's
practice of limiting the ability of catch share program participants to
increase
[[Page 51100]]
participation in non-catch share fisheries and disadvantage historical
participants in those fisheries. As discussed in Section 2.6.4 of the
Analysis, AFA vessel replacement regulations prohibit replaced AFA
vessels from operating as a mothership in the Pacific cod fisheries.
Therefore, it is not necessary to include those vessels under this
restriction.
Why are no options needed to impose sideboards on C/Ps that qualify to
operate as motherships in the BSAI non-CDQ directed fishery?
As noted in the Analysis in Section 2.7.3.2, the Council determined
that establishing a limit on the amount of Pacific cod the two eligible
C/Ps operating as motherships could receive, commonly known as a
``sideboard,'' would: Increase management costs, increase management
complexity for the Council and NMFS, and potentially increase the
incidental catch of Pacific cod delivered to C/Ps that qualify for the
BSAI Pacific cod trawl mothership endorsement. The Council and NMFS
determined that these potential costs outweigh the benefits of
implementing a sideboard. Further, public testimony indicated that
there are operational constraints on a C/P's ability to accept
increases in Pacific cod deliveries, making sideboards unnecessary for
limiting offshore deliveries. These constraints include space
limitations, limits on freezing and processing capacity, and regulatory
prohibitions on mixing tows in single tanks.
Section 2.7.3.2. of the Analysis states that without a sideboard,
it would be possible for the C/Ps designated on a groundfish LLP
license that qualifies under this proposed rule for an endorsement to
operate as a mothership in this fishery to increase the amount of
Pacific cod they accept from CVs in this fishery, but the potential
amount of increase cannot be known with any certainty. This concern was
expressed by the Council and some members of the public. However,
because the C/Ps designated on a groundfish LLP license that would be
eligible for a BSAI Pacific cod trawl mothership endorsement have been
operating in a fishery where participants compete for a portion of the
sector allocation, incentives exist to operate at capacity and as
efficiently as possible. These incentives will remain in place under
the proposed rule, since the C/Ps designated on an eligible groundfish
LLP license will still compete with the shoreside and floating
processors for a share of the fishery. Further, the Analysis (Section
2.10) and public testimony received on this issue clearly stated that
imposing a sideboard would increase the complexity of the action and
could result in a sideboard limit that would be confidential or too
small to allow NMFS to open the fishery at the start of the A season.
NMFS could deem a sideboard to be too small to open the fishery if the
sideboard amount could be harvested before NMFS received data in time
to close the fishery before the sideboard was exceeded.
There is also the potential for negative impacts of a Bering Sea
sideboard on both the Bering Sea and Aleutian Islands directed Pacific
cod trawl fisheries. Under certain conditions a relatively small
sideboard in the Bering Sea could result in increased effort in the
Aleutian Islands, resulting in negative impacts on the shoreside
processors in the Aleutian Islands. The Council determined, and NMFS
agrees, that it was neither necessary nor appropriate to establish a
sideboard in the Bering Sea for the two C/Ps designated on a groundfish
LLP license that qualify for the BSAI Pacific cod trawl mothership
endorsement. The impact in the Bering Sea of implementing a Bering Sea
sideboard would primarily be a change in the distribution of harvest
effort, but would be tempered because only two groundfish LLP licenses
will qualify for the BSAI Pacific cod trawl mothership endorsement.
Tightly limiting the number of C/Ps that qualify to operate as a
mothership in the BSAI non-CDQ Pacific cod trawl CV directed fishery
and not implementing a sideboard was the preferred management approach.
How would this proposed action affect shoreside processors and
associated communities?
The increase in deliveries of BSAI non-CDQ Pacific cod from the
trawl CV directed fishery to C/Ps operating as motherships has resulted
in a corresponding decline in the amount of Pacific cod delivered to
onshore processing facilities. The Council determined, and NMFS agrees,
that these Pacific cod deliveries are an important financial component
to Bering Sea inshore processing operations and fishery dependent
communities in the BSAI: Dutch Harbor/Unalaska, King Cove, Akutan, Sand
Point, St. Paul, Adak, Atka, and the Aleutians East Borough. For
shoreside processing operations, Pacific cod is second only to pollock
in terms of volume, and these high-volume fisheries help ensure a more
stable workforce in these remote communities and increase economic
activity, as described in Sections 2.8.3 through 2.8.5 of the Analysis.
Limiting the C/Ps that can operate as a mothership to only the
historical participants is consistent with the objectives of this
action to address the recent and rapid increase in deliveries of
Pacific cod offshore and the resulting negative impacts to the
shoreside processors and fishery-dependent communities, consistent with
National Standard 8. The Council has utilized the best available
economic and social data to evaluate the sustained participation of
fishing communities.
How would this action help reduce PSC rates?
In fisheries where circumstances motivate fishermen to race against
each other to harvest as much fish as they can before the annual catch
limit or the PSC limit is reached and the fishery closes for the
season, participants can have a substantial disincentive to take
actions to reduce bycatch use and waste, particularly if those actions
could reduce groundfish catch rates. In a ``race for fish,''
participants who choose not to take actions to reduce bycatch and waste
stand to gain additional groundfish catch by continuing to harvest at a
higher bycatch rate, at the expense of any vessels engaged in bycatch
avoidance. By limiting processing capacity in the offshore sector of
the BSAI non-CDQ pacific cod trawl CV directed fishery and reducing
pressure to harvest the BSAI Pacific cod trawl CV allocation quickly,
this proposed action would help to reduce incentives for a ``race for
fish'' and provide participating CVs more flexibility in fishing
operations, because participation in the fishery would be more stable
and predictable over the long term, thereby allowing them to choose
fishing operations that better avoid PSC (Section 2.7.1 and 2.8.2 of
the Analysis).
This proposed rule would not affect annual halibut PSC limits, but
it could help maintain or reduce halibut PSC rates in the fishery.
While such savings are not guaranteed or predictable, due to the suite
of variables that can affect PSC rates, the proposed action addresses
concerns that increases in the number of C/Ps operating as motherships
could increase PSC rates during shorter fishing seasons at a time when
Pacific cod Allowable Biological Catch (ABC) is declining in the Bering
Sea, thus creating incentives to abandon fishing practices that have
reduced halibut PSC (Section 2.8.2 of the Analysis). Additionally, PSC
limits for this fishery would continue to be established each year
under the process analyzed in the EA/RIR/IRFA for Amendment 111 (80 FR
71649, November 16, 2015) to the BSAI FMP (see ADDRESSES). The fishery
would be closed if NMFS determines
[[Page 51101]]
that any PSC limits will be reached before the Pacific cod allocation
for this fishery is reached.
Why change the policy on C/Ps operating as motherships as implemented
under the Amendment 80 Program?
As explained earlier in this preamble, the Council and NMFS
recognized at the time Amendment 80 was implemented that participation
by Amendment 80 vessels as motherships in the offshore BSAI TLAS
fisheries could continue or even increase. However, the proportion of
the BSAI non-CDQ Pacific cod trawl CV directed fishery catch now being
harvested and delivered to Amendment 80 C/Ps operating as motherships
is substantially greater than it was at the time the Amendment 80
Program was implemented.
The final rule for the Amendment 80 Program (72 FR 52668, September
14, 2007) that allowed Amendment 80 C/Ps to operate as motherships
noted that only one Amendment 80 C/P was receiving and processing catch
delivered from one non-Amendment 80 CV using trawl gear in the BSAI
TLAS fishery prior to the implementation of the Amendment 80 Program.
The 2008 final rule noted the practice of delivering unsorted catch
from non-Amendment 80 CVs to Amendment 80 C/Ps was not widespread at
that time. The final rule also noted that permitting this practice was
unlikely to create a significant shift in processing patterns away from
shoreside processors based on data available at that time, particularly
if then-current rates of delivery of unsorted BSAI TLAS catch from CVs
to C/Ps operating as motherships for processing continued. Importantly,
the final rule noted that NMFS could not predict the extent to which
that practice might increase in the future or whether the practice
would have adverse effects on existing processing operations (i.e.,
shoreside processors). NMFS also stated that a review of processing
operations by shoreside processors and Amendment 80 vessels could
provide the basis for a future regulatory amendment should the Council
identify and recommend additional changes to the Amendment 80 Program
to address potential conflicts.
From 2003 through 2015, no more than two Amendment 80 C/Ps
participated as motherships in the BSAI non-CDQ Pacific cod trawl CV
directed fishery in any one year (Section 2.7.1 of the Analysis), and
this participation rate was more or less in line with NMFS's previous
expectations. However, in each year from 2016 through 2018, the
practice of trawl CVs delivering non-Amendment 80 catch to Amendment 80
C/Ps operating as motherships expanded significantly, with six to seven
Amendment 80 C/Ps and two AFA C/Ps operating as motherships in the BSAI
non-CDQ Pacific cod trawl CV directed fishery.
The Council determined, and NMFS agrees, that it is appropriate to
review the policies adopted for the BSAI TLAS fisheries under the
Amendment 80 Program and the fishing operations in those fisheries, and
take action, if necessary, as fishing patterns change from those
observed at the time the Amendment 80 Program was implemented. As a
result, the Council concluded, and NMFS agrees, at this time it is
necessary to limit activity of C/Ps operating as motherships receiving
and processing BSAI non-CDQ Pacific cod from CVs using trawl gear in
the directed fishery.
Proposed Action
This proposed rule would implement Amendment 120 to the BSAI FMP
and Amendment 108 to the GOA FMP. This proposed rule would establish
eligibility criteria for, and a process to issue, a new endorsement to
groundfish LLP licenses that would authorize C/Ps designated on those
licenses to operate as a mothership and receive and process deliveries
of Pacific cod in the BSAI non-CDQ Pacific cod trawl CV directed
fishery. Regulations at 50 CFR 679.2 define a mothership as a vessel
that receives and processes groundfish from other vessels. Any C/P that
meets the mothership definition at Sec. 679.2 or has a mothership
designation on its Federal Fisheries Permit will be considered a
mothership under this action. However, true motherships, other at-sea
processors, and shoreside processors would not be restricted by this
action.
Under this proposed action, NMFS would issue a BSAI Pacific cod
trawl mothership endorsement to an Amendment 80 or non-Amendment 80
groundfish LLP license with Bering Sea or Aleutian Islands area and C/P
operation endorsements if the groundfish LLP license is credited with
receiving and processing at least one legal mothership trip target of
Pacific cod in the BSAI non-CDQ Pacific cod trawl CV directed fishery
in each year of the qualifying period from 2015 through 2017. Further,
under this proposed rule, any Amendment 80 vessel not designated on an
Amendment 80 QS permit and Amendment 80 LLP license or on an Amendment
80 LLP/QS license would be prohibited from receiving and processing
Pacific cod harvested in the Pacific cod directed fishery in the BSAI
and the GOA.
Based on the information provided in the Analysis and the official
record, NMFS has determined that two groundfish LLP licenses would be
eligible to be credited with at least one mothership trip target of
Pacific cod in the BSAI non-CDQ Pacific cod trawl CV directed fishery
in each year of the qualifying period and receive a BSAI Pacific cod
trawl mothership endorsement. One is an Amendment 80 groundfish LLP
license and one is an AFA groundfish LLP license. Therefore, under this
proposed rule, those two groundfish LLP licenses would be credited with
at least one mothership trip target of Pacific cod in the BSAI non-CDQ
Pacific cod trawl CV directed fishery in each year of the qualifying
period and receive a BSAI Pacific cod trawl mothership endorsement.
Based on NMFS's catch records, both were the sole groundfish LLP
license on which a C/P that received and processed at least one
mothership trip target of Pacific cod in the BSAI non-CDQ Pacific cod
trawl CV directed fishery in each year of the qualifying period was
designated during the qualifying period. As a result, NMFS anticipates
that a total of two groundfish LLP licenses would receive a BSAI
Pacific cod trawl mothership endorsement, resulting in up to two C/Ps
that could operate as a mothership authorized to receive and process
Pacific cod in the BSAI non-CDQ Pacific cod trawl CV directed fishery.
This proposed rule would not preclude a vessel without a BSAI
Pacific cod trawl mothership endorsement from receiving and processing
incidental catch of Pacific cod that is caught while participating in
other directed fisheries. For example, a C/P without a BSAI Pacific cod
trawl mothership endorsement could participate in the BSAI TLAS
yellowfin sole directed fishery and receive and process directed catch
of BSAI TLAS yellowfin sole with incidental catch of BSAI Pacific cod,
provided that the vessel has met all applicable requirements to
participate in the BSAI TLAS yellowfin sole directed fishery and the
incidental catch of BSAI Pacific cod is at or under the maximum
retainable amount (MRA) for Pacific cod. This proposed action would not
preclude an Amendment 80 or a non-Amendment 80 vessel from
participating as a C/P and processing its own catch in the BSAI non-CDQ
Pacific cod trawl CV directed fishery. As noted above, it would not
preclude a true mothership, other at-sea processor, or shoreside
processor from receiving and processing Pacific cod harvested by a CV
using trawl gear in the BSAI non-
[[Page 51102]]
CDQ Pacific cod directed fishery. Under this proposed rule, a C/P that
does not have a BSAI Pacific cod trawl mothership endorsement would be
prohibited from acting as a mothership and receiving and processing
Pacific cod in the BSAI non-CDQ Pacific cod trawl CV directed fishery.
The following sections of this preamble describe how NMFS proposes to
determine a mothership trip target, credit trip targets to a groundfish
LLP license, and issue BSAI Pacific cod trawl mothership endorsements.
Determining and Crediting Mothership Trip Targets
NMFS can determine which and how many landings were received by a
vessel designated on a specific groundfish LLP license during a
particular timeframe. ``Landing'' means offloading fish (see 50 CFR
679.2), and is used interchangeably with ``deliveries'' in the preamble
of this proposed rule. Regulations at 50 CFR 679.4(k) require an LLP
license holder to designate a specific vessel on which the license will
be used. This requirement allows NMFS to credit vessel deliveries to a
specific LLP license. NMFS also collects vessel delivery data in the
form of weekly production reports from C/Ps operating as motherships,
which include information on the species and amounts received. From
these data, NMFS has created an official record with all relevant
information necessary to determine legal mothership trip targets that
can be credited to groundfish LLP licenses with a C/P designation.
The official record created by NMFS contains vessel delivery data
and the groundfish LLP licenses to which those deliveries are credited.
The official record includes the documentation of specific groundfish
LLP licenses, including vessels designated on them, and other relevant
information necessary to credit vessel deliveries to specific
groundfish LLP licenses. NMFS presumes the official record is correct,
and a person wishing to challenge the presumptions in the official
record would bear the burden of proof through an evidentiary and
appeals process. Evidence of the number of mothership trip targets of
Pacific cod in the BSAI non-CDQ Pacific cod trawl CV directed fishery
is based on legally required production reports submitted to NMFS by C/
Ps, as required by 50 CFR 679.5(c)(6).
In order for a groundfish LLP license to receive a BSAI Pacific cod
trawl mothership endorsement and thus be authorized to receive and
process deliveries of Pacific cod in the BSAI non-CDQ Pacific cod trawl
CV directed fishery, NMFS must first determine that the groundfish LLP
license is an eligible license, and then must determine that the
eligible license can be credited with one or more mothership trip
targets of Pacific cod in the BSAI non-CDQ Pacific cod trawl CV
directed fishery for each year during the qualifying period. Under this
proposed rule, NMFS would identify as eligible those groundfish LLP
licenses with Bering Sea or Aleutian Islands area and C/P operation
endorsements on which an Amendment 80 or non-Amendment 80 C/P was
designated when the groundfish LLP license was used to receive and
process at least one mothership trip target of Pacific cod in the BSAI
non-CDQ Pacific cod trawl CV directed fishery during each year from
2015 through 2017.
Based on the official record, NMFS has identified two groundfish
LLP licenses that would be eligible to be credited with at least one
mothership trip target of Pacific cod in the BSAI non-CDQ Pacific cod
trawl CV directed fishery for each year during the qualifying period.
Neither of these groundfish LLP licenses had more than one C/P
designated on it during the qualifying period. Therefore, NMFS would
credit these two groundfish LLP licenses with at least one mothership
trip target of Pacific cod in the BSAI non-CDQ Pacific cod trawl CV
directed fishery for each year during the qualifying period under this
proposed rule. NMFS proposes to list these two groundfish LLP licenses
in Table 57 to part 679 to facilitate the public's ability to review
their catch records and determine if additional groundfish LLP licenses
may be eligible to receive the endorsement. Additional groundfish LLP
licenses may qualify for an endorsement through the proposed
administrative adjudicative process described below. If a holder of a
groundfish LLP license believes the groundfish LLP license would meet
the eligibility criteria described above, but the license is not listed
in proposed Table 57 to part 679, or if a license holder disagrees with
a groundfish LLP license to which NMFS would assign the BSAI Pacific
cod trawl mothership endorsement, the holder would have the opportunity
to challenge NMFS's determination as described in the following section
of this preamble.
Proposed Notification and Appeals Processes for Issuing BSAI Pacific
Cod Trawl Mothership Endorsements
NMFS has determined the groundfish LLP licenses identified in
proposed Table 57 can be credited with at least one mothership trip
target of Pacific cod in the BSAI non-CDQ Pacific cod trawl CV directed
fishery for each year during the qualifying period, based on the
official record, and those groundfish LLP licenses would receive a BSAI
Pacific cod trawl mothership endorsement. If BSAI Amendment 120 is
approved and this action is implemented in a final rule, then, in
accordance with the regulatory text of the final rule, NMFS would issue
a notification of eligibility and a revised groundfish LLP license with
a BSAI Pacific cod trawl mothership endorsement to the holders of the
groundfish LLP licenses identified in proposed Table 57, using the
address on record at the time the notification is sent.
For all those groundfish LLP licenses with an Amendment 80 or AFA,
Bering Sea or Aleutian Islands area, and C/P operation endorsements,
but not listed in proposed Table 57, NMFS would notify the holders that
the groundfish LLP license is not eligible for a BSAI Pacific cod trawl
mothership endorsement based on the official record, using the address
on record at the time the notification is sent. NMFS would provide the
holder with an opportunity to submit information to NMFS to rebut the
official record. NMFS would provide a single, 30-day evidentiary
period, beginning on the date that notification is sent, for a
groundfish LLP license holder to submit any information or evidence to
demonstrate that the information contained in the official record is
inconsistent with the holder's records.
A groundfish LLP license holder who submits claims that are
inconsistent with information in the official record would have the
burden of proving that the submitted claims are correct. NMFS would not
accept claims that are inconsistent with the official record, unless
they are supported by clear, written documentation. NMFS would evaluate
all additional information or evidence submitted within the 30-day
evidentiary period. If NMFS determines that the additional information
or evidence proves that the groundfish LLP license holder's claims are
correct, NMFS would amend the official record in accordance with that
information or evidence. However, if, after the 30-day evidentiary
period, NMFS determines that the additional information or evidence
does not prove that the groundfish LLP license holder's claims were
correct, NMFS would deny the claim. NMFS would notify the applicant
that the additional information or evidence did not meet the burden of
proof to overcome the official record through an initial administrative
determination (IAD).
[[Page 51103]]
NMFS's IAD would indicate the deficiencies and discrepancies in the
information or evidence that is submitted in support of the claim.
NMFS's IAD would indicate which claims could not be approved based on
the available information or evidence, and provide information on how
an applicant could appeal an IAD. The procedure for appealing an IAD
through NMFS's National Appeals Office is described at 15 CFR part 906
(79 FR 7056, February 6, 2014). During the pendency of an
administrative adjudication leading to a final agency action, NMFS
would issue an interim (temporary, non-transferable) license to an
applicant who was authorized to participate in the fishery as a
mothership in the year before the IAD is issued and who makes a
credible claim to eligibility for a BSAI Pacific cod trawl mothership
endorsement. Such an applicant would be eligible for a non-transferable
interim license pending the resolution of his or her claim pursuant to
the license renewal provisions of 5 U.S.C. 558. The non-transferable,
interim license would authorize the applicant to operate as a
mothership and receive and process Pacific cod in the BSAI non-CDQ
Pacific cod trawl CV directed fishery, and would be effective until
final agency action on the appeal. At that time, the person who
appealed would receive either a transferable license with the
endorsement or a transferrable license without the endorsement,
depending on the final agency action.
Regulatory Changes Made by This Proposed Rule
The following provides a brief summary of the regulatory changes
that would be made by this proposed rule. In order to implement
Amendments 120/108, this proposed rule would:
(1) Add Sec. 679.4(k)(15) to include the provisions that are
necessary to qualify for and receive a BSAI Pacific cod trawl
mothership endorsement;
(2) Add Sec. 679.7(i)(12) to prohibit the receipt and processing
by a C/P operating as a mothership of Pacific cod harvested by CVs
directed fishing for Pacific cod in the BSAI non-CDQ Pacific cod trawl
CV directed fishery without a copy of a valid groundfish LLP license
with a BSAI Pacific cod trawl mothership endorsement;
(3) Add Sec. 679.7(o)(3)(v) to prohibit the use of an Amendment 80
C/P to receive and process Pacific cod harvested from directed fishing
in Pacific cod fisheries in the BSAI or GOA, if that C/P is not
designated on an Amendment 80 QS permit and an Amendment 80 LLP license
or on an Amendment 80 LLP/QS license; and
(4) Add Table 57 to part 679 to list those groundfish LLP licenses
NMFS has determined would be eligible, would be credited with at least
one mothership trip target of Pacific cod in the BSAI non-CDQ Pacific
cod trawl CV directed fishery for each year of the qualifying period,
and would receive a BSAI Pacific cod trawl mothership endorsement.
Classification
Pursuant to sections 304(b)(1)(A) and 305(d) of the Magnuson-
Stevens Act, the NMFS Assistant Administrator has determined that this
proposed rule is consistent with Amendments 120/108 to the BSAI and GOA
FMPs, respectively, other provisions of the Magnuson-Stevens Act, and
other applicable law, subject to further consideration of comments
received during the public comment period.
This proposed rule has been determined to be not significant for
the purposes of Executive Order 12866.
Regulatory Impact Review (RIR)
An RIR was prepared to assess all costs and benefits of available
regulatory alternatives. A copy of this analysis is available from NMFS
(see ADDRESSES). NMFS is recommending Amendments 120/108 and the
regulatory revisions in this proposed rule based on those measures that
maximized net benefits to the Nation. Specific aspects of the economic
analysis are discussed below in the IRFA section.
Initial Regulatory Flexibility Analysis (IRFA)
This IRFA was prepared for this proposed rule, as required by
section 603 of the Regulatory Flexibility Act (RFA) (5 U.S.C. 603), to
describe the economic impact this proposed rule, if adopted, would have
on small entities. An IRFA describes why this action is being proposed;
the objectives and legal basis for the proposed rule; the number of
small entities to which the proposed rule would apply; any projected
reporting, recordkeeping, or other compliance requirements of the
proposed rule; any overlapping, duplicative, or conflicting Federal
rules; and any significant alternatives to the proposed rule that would
accomplish the stated objectives, consistent with applicable statutes,
and that would minimize any significant adverse economic impacts of the
proposed rule on small entities. Descriptions of this proposed rule,
its purpose, and the legal basis are contained earlier in this preamble
and are not repeated here.
Number and Description of Small Entities Regulated by This Proposed
Rule
This proposed rule would directly regulate the owners and operators
of certain Amendment 80 and AFA C/Ps operating as motherships when
receiving Pacific cod in the BSAI non-CDQ Pacific cod trawl CV directed
fishery. The proposed action would also directly regulate the owners of
Amendment 80 C/Ps that have been replaced under BSAI Amendment 97 (77
FR 59852, October 1, 2012) by prohibiting such vessels from operating
as a mothership in the BSAI or GOA Pacific cod fisheries.
The thresholds applied to determine if an entity or group of
entities are ``small'' under the RFA depend on the industry
classification for the entity or entities. Businesses classified as
primarily engaged in commercial fishing are considered small entities
if they have combined annual gross receipts not in excess of $11.0
million for all affiliated operations worldwide (50 CFR 200.2). The
nine C/Ps that operated as motherships in 2018 (the most recent year of
complete data) during some part of the BSAI non-CDQ Pacific cod trawl
CV directed fishery operate primarily as C/Ps throughout the year in
either AFA pollock fisheries or Amendment 80 fisheries; they are
considered C/Ps for purposes of classification under this IRFA. Though
C/Ps engage in both fish harvesting and fish processing activities,
since at least 1993 NMFS Alaska Region has considered C/Ps to be
predominantly engaged in fish harvesting rather than fish processing.
Under this classification, the threshold of $11.0 million in annual
gross receipts is the appropriate threshold to apply to identify any C/
Ps that are small entities.
This proposed rule would directly regulate the activities of 19
Amendment 80 vessels owned by five companies. One of the 19 Amendment
80 C/Ps qualified for both the Amendment 80 and AFA programs.
Additionally this proposed rule directly regulates the 21 AFA C/Ps that
are eligible to fish for pollock under the provisions of the AFA. Not
all of the 21 eligible AFA vessels participate in the harvesting of the
Bering Sea pollock allocation. The 2018 Pollock Conservation
Cooperative report indicates that 14 vessel owned by seven firms
harvested the cooperative's pollock allocation in 2018. The owners of
the remaining vessels leased their allocation within the cooperative.
This action does not directly regulate three true AFA motherships that
are defined under the AFA.
[[Page 51104]]
Analysis of directly regulated entity revenue to determine entity
size as measured against the commercial fishing threshold of $11.0
million must also consider ownership affiliations and other contractual
affiliations of the entities, worldwide. This proposed rule directly
regulates C/Ps in the Amendment 80 fleet and the AFA fleet. At present
five firms are operating a total of 19 vessels in the Amendment 80
fleet. All five firms have revenue in excess of the small entity
threshold based on ownership affiliations between vessels, and
therefore are considered large entities for RFA purposes. All Amendment
80 firms owning permitted vessels are members in an Amendment 80
fishing cooperative, which is a cooperative affiliation via contractual
arrangements. Similarly, 14 active AFA C/P vessels are owned by 7 firms
and all are large entities. Additionally, the remaining AFA eligible
entities are affiliated with participating AFA firms via contractual
leasing agreements. The RFA requires consideration of affiliations
between entities for the purpose of assessing whether an entity is
classified as small. The AFA pollock and Amendment 80 cooperatives are
types of affiliation between entities. All of the AFA and Amendment 80
cooperatives have gross annual revenues that are substantially greater
than $11 million. Therefore, NMFS considers members in these
cooperatives to be ``affiliated'' large (non-small) entities for RFA
purposes. The eligible Amendment 80 and AFA entities are large entities
based on those affiliations.
Impacts of This Action on Small Entities
Under this proposed rule, C/Ps acting as motherships in the BSAI
non-CDQ Pacific cod trawl CV directed fishery would be limited to two
vessels, and all remaining AFA and Amendment 80 C/Ps would not be
permitted to operate as a mothership in this fishery even if retired
from and/or replaced in either the AFA or Amendment 80 Programs.
However, all of the directly regulated entities have been determined to
be large entities via ownership, cooperative, or contractual
affiliations. Thus there are no adverse impacts on directly regulated
small entities.
Trawl CVs operating in the BSAI non-CDQ Pacific cod trawl CV
directed fishery are not directly regulated by this action. However,
limiting the mothership markets available to CVs could negatively
impact the ex-vessel price some CVs receive and impact the
profitability of the vessel and firm. Due to data limitations,
definitive statements on overall net revenue of the CVs in the various
sectors are not available, because they would be speculative given the
available information. Furthermore, indirect adverse effects on
participating CVs will be somewhat offset by improved vessel safety
associated with reduced crowding in highly fished areas.
Shoreside processors are not directly regulated by this action but
could be indirectly affected, as they would likely benefit from limits
imposed on C/Ps. The intent of this action is to implement regulations
that would limit the number of C/Ps acting as a mothership in the BSAI
non-CDQ Pacific cod trawl CV directed fishery and limit the amount of
directed fishing deliveries of Pacific cod that can be processed by
those C/Ps. These limitations on mothership activities will likely
result in greater directed fishing deliveries to shoreside processing
facilities. The communities that are home to these shoreside processors
derive multiple benefits from economic activity related to vessel and
processor activities, such as employment and income provided by the
various sectors, business activity generated at fishery support
services providers in the communities, and public revenues that derive
from taxes on fishery related activities in the communities. Thus,
indirect effects of this proposed rule on shoreside processing
facilities and the communities they operate within are expected to be
beneficial. However, we note that communities in which C/Ps have a
strong presence could experience indirect negative effects, due to the
proposed rule's limitations on motherships.
NMFS has determined that all directly regulated entities are large
because of their ownership affiliations or contractual affiliations.
Nonetheless, NMFS has prepared this IRFA, which provides potentially
affected small entities, including those that are indirectly affected,
with an opportunity to provide comments on this IRFA. NMFS will
evaluate any comments received on the IRFA and may consider certifying
under section 605 of the RFA (5 U.S.C. 605) that this action will not
have a significant economic impact on a substantial number of small
entities prior to publication of the final rule.
Description of Significant Alternatives Considered
The RFA requires identification of any significant alternatives to
the proposed rule that accomplish the stated objectives of the proposed
action, consistent with applicable statutes, and that would minimize
any significant economic impact of the proposed rule on small entities.
The Council considered a status quo alternative and three action
alternatives with several options and sub-options. The combination of
options and sub-options under the action alternatives provided a
reasonable range of potential alternative approaches to status quo
management.
No significant alternatives were identified that would accomplish
the stated objectives for limiting mothership activity in the BSAI non-
CDQ Pacific cod trawl CV directed fishery consistent with applicable
statutes, and that would minimize costs to potentially affected small
entities more than the approaches of the preferred alternatives adopted
in this proposed rule. NMFS and the Council considered four
alternatives for action in this proposed rule. Alternative 1 is the no
action alternative. This alternative would continue to allow non-
Amendment 80 and Amendment 80 C/Ps to operate as motherships in the
BSAI non-CDQ Pacific cod trawl CV directed fishery, and is inconsistent
with the Council's purpose and need statement.
Alternative 2, along with Options 1, Sub-option 1.3, and Option 2,
would provide the greatest limit on mothership activity, while
recognizing historical participation. This alternative (and its options
and sub-options), selected as the Council's preferred alternative,
would allow one Amendment 80 C/P and one AFA C/P to act as a mothership
to receive and process Pacific cod in the BSAI non-CDQ Pacific cod
trawl CV directed fishery.
Alternative 3 would require a sideboard on the amount of Pacific
cod delivered to C/Ps operating as motherships and only applies to the
Bering Sea. The Council determined that the increased management costs,
increased management complexity for the Council and NMFS, limited
constraints a sideboard would have on the Bering Sea directed fishery,
and the potential for increases in the incidental catch of Pacific cod
delivered to C/Ps that do not qualify for a mothership endorsement
outweighed the benefits of implementing a sideboard. As a result the
Council determined that the preferred management approach would be to
tightly limit the number of C/Ps that qualify to operate as a
mothership rather than implementing a sideboard.
Alternative 4, also selected as the preferred alternative, is
consistent with the intent of the Council to ensure that no loophole
exists to allow Amendment 80 C/Ps replaced under BSAI Amendment 97 to
operate as a mothership in the BSAI non-CDQ Pacific cod trawl CV
directed fishery. Alternative 4 would also clarify the intent of the
Council to prevent
[[Page 51105]]
Amendment 80 C/Ps replaced under BSAI Amendment 97 from operating as a
mothership by receiving and processing Pacific cod harvested by CVs
directed fishing for Pacific cod in the BSAI or GOA. Not selecting
Alternative 4 would have allowed expanded use of replaced Amendment 80
C/Ps to receive and process Pacific cod harvested by CVs directed
fishing for Pacific cod in the BSAI or GOA.
Federal Rules That May Duplicate, Overlapping, or Conflict With the
Proposed Action
No duplication, overlap, or conflict between this proposed action
and existing Federal rules has been identified.
Projected Recordkeeping and Reporting Requirements
This proposed rule does not add additional reporting or
recordkeeping requirements for the vessels that choose to submit an
appeal. An appeal process exists for groundfish LLP license endorsement
issuance. No small entity is subject to reporting requirements that are
in addition to or different from the requirements that apply to all
directly regulated entities. No unique professional skills are needed
for the groundfish LLP license or vessel owners or operators to comply
with the reporting and recordkeeping requirements associated with this
proposed rule. This proposed rule would not implement or increase any
fees that NMFS collects from directly regulated entities. The Analysis
prepared for this action identifies no operational costs of the
endorsement (see ADDRESSES).
Collection-of-Information Requirements
This proposed rule contains collection-of-information requirements
subject to review and approval by the Office of Management and Budget
(OMB) under the Paperwork Reduction Act (PRA). These requirements have
been submitted to OMB for approval under a temporary new information
collection, to be merged, after OMB approval, with existing OMB Control
Number 0648-0334. The public reporting burden for the collection-of-
information requirements in this proposed rule is estimated to average
4 hours per response to submit an appeal, which includes the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
Public comment is sought regarding (1) whether this proposed
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information shall
have practical utility; (2) the accuracy of the burden estimate; (3)
ways to enhance the quality, utility, and clarity of the information to
be collected; and (4) ways to minimize the burden of the collection of
information, including through the use of automated collection
techniques or other forms of information technology. Send comments on
these or any other aspects of the collection of information to NMFS
Alaska Region at the ADDRESSES above, and by email to
[email protected] or fax to (202) 395-5806.
Notwithstanding any other provision of 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. All currently approved NOAA collections of
information may be viewed at http://www.cio.noaa.gov/services_programs/prasubs.html.
List of Subjects in 50 CFR Part 679
Alaska, Fisheries, Reporting and recordkeeping requirements.
Dated: September 18, 2019.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For reasons set out in the preamble, 50 CFR part 679 is proposed to
be amended as follows:
PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
0
1. The authority citation for part 679 continues to read as follows:
Authority: 16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.;
Pub. L. 108-447; Pub. L. 111-281.
0
2. In Sec. 679.4, add paragraph (k)(15) to read as follows:
Sec. 679.4 Permits.
* * * * *
(k) * * *
(15) BSAI Pacific cod trawl mothership endorsement--(i) General. In
addition to other requirements of this part, a vessel must be
designated on a groundfish LLP license that has a BSAI Pacific cod
trawl mothership endorsement in order to receive and process Pacific
cod harvested and delivered by a catcher vessel directed fishing using
trawl gear in the BSAI non-CDQ Pacific cod fishery as specified in
Sec. 679.20(a)(7)(ii)(A). A vessel designated on a groundfish LLP
license with Bering Sea or Aleutian Islands area, catcher/processor
operation, and BSAI Pacific cod trawl mothership endorsements may
operate as a mothership, as defined at Sec. 679.2, to receive and
process Pacific cod harvested by a catcher vessel fishing in the BSAI
non-CDQ Pacific cod trawl catcher vessel directed fishery as specified
in Sec. 679.20(a)(7)(ii)(A).
(ii) Eligibility requirements for a BSAI Pacific cod trawl
mothership endorsement. A groundfish LLP license is eligible to receive
a BSAI Pacific cod trawl mothership endorsement if the groundfish LLP
license:
(A) Has Bering Sea or Aleutian Islands area and catcher/processor
operation endorsements;
(B) Had a vessel designated on it that received and processed at
least one legal mothership trip target of Pacific cod delivered by
catcher vessels directed fishing using trawl gear in the BSAI non-CDQ
Pacific cod trawl catcher vessel fishery as specified in Sec.
679.20(a)(7)(ii)(A) in each of the three years of the qualifying period
of 2015 through 2017, inclusive, where a mothership trip target is, in
the aggregate, the groundfish species that is delivered by a catcher
vessel to a given catcher/processor acting as a mothership in an amount
greater than the retained amount of any other groundfish species
delivered by the same catcher vessel to the same catcher/processor for
a given week; and
(C) Is credited by NMFS with receiving a legal mothership trip
target specified in paragraph (k)(15)(ii)(B) of this section.
(iii) Explanations for BSAI Pacific cod trawl mothership
endorsement. (A) NMFS will determine whether a groundfish LLP license
is eligible to receive a BSAI Pacific cod trawl mothership endorsement
under paragraph (k)(15)(ii) of this section based only on information
contained in the official record described in paragraph (k)(15)(iv) of
this section.
(B) NMFS will credit a groundfish LLP license with a legal
mothership trip target specified in paragraph (k)(15)(ii)(B) of this
section if that groundfish LLP license was the only groundfish LLP
license on which the vessel that received and processed legal
mothership trip targets was designated from 2015 through 2017.
(C) Mothership trip targets will be determined based on round
weight equivalents.
(iv) Official record of participation in the BSAI non-CDQ Pacific
cod trawl catcher vessel fishery.
[[Page 51106]]
(A) The official record will contain all information used by the
Regional Administrator that is necessary to administer the requirements
described in paragraph (k)(15) of this section.
(B) The official record is presumed to be correct. A groundfish LLP
license holder has the burden to prove otherwise.
(C) Only legal landings as defined in Sec. 679.2 and documented on
NMFS production reports will be used to determine legal mothership trip
targets under paragraph (k)(15)(ii)(B) of this section.
(v) Process for issuing BSAI Pacific cod trawl mothership
endorsements. (A) NMFS will issue to the holder of each groundfish LLP
license with Bering Sea or Aleutian Islands area and catcher/processor
operation endorsements, and specified in Column A of Table 57 of this
part, a notice of eligibility to receive a BSAI Pacific cod trawl
mothership endorsement and a revised groundfish LLP license with a BSAI
Pacific cod trawl mothership endorsement.
(B) NMFS will issue to the holder of a groundfish LLP license with
Bering Sea or Aleutian Islands area and catcher/processor operation
endorsements, and that is not listed in Table 57 of this part, a notice
informing that holder that the groundfish LLP license is not eligible
to be credited with at least one legal mothership trip target of
Pacific cod in the BSAI non-CDQ Pacific cod trawl CV directed fishery
for each year during the qualifying period or receive a BSAI Pacific
cod trawl mothership endorsement based on the official record, using
the address on record at the time the notice is sent. The notice
specified in this paragraph will inform the holder of the groundfish
LLP license of the timing and process through which the holder can
provide additional information or evidence to amend or challenge the
information in the official record of this section, as specified in
paragraphs (k)(15)(v)(C) and (D) of this section.
(C) The Regional Administrator will specify by notice a 30-day
evidentiary period during which an applicant may provide additional
information or evidence to amend or challenge the information in the
official record. A person will be limited to one 30-day evidentiary
period. Additional information or evidence received after the 30-day
evidentiary period specified in the letter has expired will not be
considered for purposes of the initial administrative determination
(IAD).
(D) The Regional Administrator will prepare and send an IAD to the
applicant following the expiration of the 30-day evidentiary period, if
the Regional Administrator determines that the information or evidence
provided by the person fails to support the person's claims and is
insufficient to rebut the presumption that the official record is
correct, or if the additional information, evidence, or revised
application is not provided within the time period specified in the
letter that notifies the applicant of his or her 30-day evidentiary
period. The IAD will indicate the deficiencies with the information or
evidence submitted. The IAD will also indicate which claims cannot be
approved based on the available information or evidence. A person who
receives an IAD may appeal pursuant to 15 CFR part 906. NMFS will issue
a non-transferable interim license that is effective until final agency
action on the IAD to an applicant who avails himself or herself of the
opportunity to appeal an IAD and who has a credible claim to
eligibility for a BSAI Pacific cod trawl mothership endorsement.
* * * * *
0
3. In Sec. 679.7, add paragraphs (i)(12) and (o)(3)(v) to read as
follows:
Sec. 679.7 Prohibitions.
* * * * *
(i) * * *
(12) Prohibitions specific to directed fishing in the BSAI non-CDQ
Pacific cod trawl catcher vessel fishery as specified at Sec.
679.20(a)(7)(ii)(A). Receive and process Pacific cod harvested and
delivered by a catcher vessel directed fishing using trawl gear in the
BSAI non-CDQ Pacific cod fishery without a legible copy on board of a
valid groundfish LLP license with Bering Sea or Aleutian Islands area,
catcher/processor operation, and BSAI Pacific cod trawl mothership
endorsements.
* * * * *
(o) * * *
(3) * * *
(v) Use an Amendment 80 catcher/processor, as defined at Sec.
679.2 of this part, to receive and process Pacific cod harvested by
vessels directed fishing for Pacific cod in the BSAI or GOA, if that
catcher/processor is not designated on:
(A) An Amendment 80 QS permit and an Amendment 80 LLP license; or
(B) An Amendment 80 LLP/QS license.
* * * * *
0
4. Adding Table 57 to part 679 to read as follows:
Table 57 to Part 679--Groundfish LLP Licenses With Bering Sea or
Aleutian Islands Area and Catcher/Processor Operation Endorsements
Eligible for a BSAI Pacific Cod Trawl Mothership Endorsement
[X indicates that Column A applies]
------------------------------------------------------------------------
Column A Column B
------------------------------------------------------------------------
The Holder of Groundfish License Number . . ...... Is eligible under 50
CFR
679.4(k)(15)(ii) to
be assigned a BSAI
Pacific Cod Trawl
Mothership
Endorsement.
LLG 5009.......................................... X
LLG 4692.......................................... X
------------------------------------------------------------------------
[FR Doc. 2019-20552 Filed 9-26-19; 8:45 am]
BILLING CODE 3510-22-P