Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea and Aleutian Islands Management Area; American Fisheries Act; Amendment 106
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Proposed rule; request for comments.
CFR Part: "50 CFR Part 679"
RIN Number: "RIN 0648-BD35"
Citation: "79 FR 34696"
Document Number: "Docket No. 130530519-4476-01"
"Proposed Rules"
SUMMARY: NMFS issues a proposed rule to implement Amendment 106 to the Fishery Management Plan for Groundfish of the
EFFECTIVE DATE: Submit comments on or before
ADDRESSES: You may submit comments, identified by NOAA-NMFS-2013-0097, by any one of the following methods:
* Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking portal. Go to http://www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0097, click the "Comment Now!" icon, complete the required fields, and enter or attach your comments.
* Mail: Address written comments to
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. All comments received are a part of the public record and will generally be posted for public viewing on http://www.regulations.gov without change. All Personal Identifying Information (for example, name, address) voluntarily submitted by the commenter will be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information. NMFS will accept anonymous comments (enter N/A in the required fields, if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to NMFS at the above address; emailed to [email protected]; or faxed to 202-395-7285.
Electronic copies of Amendment 106 to the FMP, the Regulatory Impact Review/Initial Regulatory Flexibility Analysis (Analysis), and the Categorical Exclusion prepared for this action may be obtained from or from the
Additional analyses prepared for the AFA include the Final Environmental Impact Statement (FEIS) for American Fisheries Act Amendments 61/61/13/8 (AFA FEIS) (
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fisheries of the BSAI in the
Terms Used in the Preamble
This document uses several terms to help the reader understand the provisions of the proposed rule. The definitions are provided here for ease of reference.
The term "AFA vessel" means a vessel that is named on an AFA catcher vessel permit, an AFA catcher/processor permit, or an AFA mothership permit and is authorized by that permit to participate in the directed pollock fishery in the
The terms "directed pollock fishery" or "AFA fishery" mean directed fishing for pollock in the
The term "original AFA" means the provisions of the AFA as adopted on
The terms "amended AFA" or "AFA" mean the American Fisheries Act as amended since 1998, including the amendments to the AFA made by section 602 of the Coast Guard Authorization Act of 2010 (Coast Guard Act), Public Law. 111-281.
The term "original AFA vessel" means a vessel that became eligible to participate in the directed pollock fishery under the terms of the original AFA.
Background
The Background portion of this proposed rule contains four sections. Section I describes the relevant statutes and regulations governing the AFA fishery prior to the Coast Guard Act. Section II describes the changes to the AFA made by the Coast Guard Act. Section III describes the history of Council action to address the changes made to the AFA by the Coast Guard Act. Section IV describes the need for this action.
I. Summary of the Original AFA
On
Subtitle I of the original AFA, entitled Fishery Endorsements, comprised sections 201 to 204. Subtitle I made changes generally in the issuance of Federal fishery endorsements by the
Subtitle I of the Original AFA: Fishery Endorsements
Before the original AFA, a vessel that was five net tons or greater had to have a Federal certificate of documentation with a Federal fishery endorsement to operate as a fishing vessel in U.S. waters (46 U.S.C. 12102(a) (1997); 46 U.S.C. 12108 (1997)). For a vessel to receive a Federal fishery endorsement, the owner of the vessel had to be a U.S. citizen or, if the owner of the vessel was a corporation, the controlling interest in the corporation had to be owned by individuals who were citizens of
Subtitle I of the original AFA made two changes in the issuance of Federal fishery endorsements. First, it tightened the requirements for a non-individual entity, such as a corporation, to show that U.S. citizens held a controlling interest in the entity. Subtitle I of the original AFA established a standard of at least 75 percent ownership by U.S. citizens at each tier of ownership of the entity and in the aggregate. For vessels 100 feet or greater in registered length, Subtitle I of the original AFA tasked the
Second, Subtitle I of the original AFA prohibited the issuance of Federal fishery endorsements to any new fishing vessels that exceeded 165 feet in registered length, that exceeded 750 gross registered tons, or that had an engine or engines capable of producing more than 3,000 shaft horsepower (46 U.S.C. 12113). MARAD regulations refer to vessels that exceed any of these statutory criteria of 165 feet registered length, 750 gross registered tons, or 3,000 shaft horsepower, as "large vessels" (46 CFR 356.47). If a vessel was a large vessel, the vessel could not receive a Federal fishery endorsement unless (1) the vessel had a certificate of documentation with a fishery endorsement that was effective on
All original AFA vessels had fishery endorsements as of
Subtitle II of the Original AFA: Bering Sea Pollock Fishery
Subtitle II of the original AFA made sweeping changes in the management of the directed pollock fishery in the BSAI and changed, to a lesser extent, the management of other groundfish fisheries off
Subtitle II of the original AFA made five major changes in the management of pollock and other groundfish fisheries off
* Sector allocations. The original AFA in section 206 established sector allocations for the BSAI pollock fishery. The original AFA allocated 10 percent of the BSAI pollock total allowable catch (TAC) to the Western Alaska Community Development Quota (CDQ) Program. After allowance for incidental catch of pollock in other fisheries, the original AFA allocated the remaining TAC as follows: a 50 percent allocation to catcher vessels harvesting pollock for processing by the inshore sector; a 40 percent allocation to catcher vessels and catcher/processors harvesting pollock for processing by the catcher/processor sector; and a 10 percent allocation to catcher vessels harvesting pollock for processing by the mothership sector.
* Eligible vessels and processors. The original AFA in section 208 established which vessels and which processors were eligible to participate in the mothership sector, the catcher/processor sector, and the inshore sector. The mothership sector and the catcher/processor sector together make up the offshore component of the
NMFS initially issued AFA permits to 3 mothership vessels, 21 catcher/processor vessels, and 112 catcher vessels. The
* Cooperatives. The original AFA in section 210 allowed the formation of fishery cooperatives in each AFA sector. Under a fishery cooperative, the members of a cooperative agree to divide up the pollock that the cooperative members may harvest or process in a manner that seeks to eliminate "a wasteful race for fish" and to allow participants "to maximize productivity" (AFA FEIS, Executive Summary at page 2, see ADDRESSES). The original AFA in section 210(b) specifically regulated the formation of inshore cooperatives for catcher vessels. A catcher vessel with an inshore endorsement has a choice to participate in the open access sector and deliver pollock to any AFA inshore processor, or to contribute its catch history to a cooperative and deliver at least 90 percent of its pollock catch to the processor associated with the cooperative (AFA section 210(b); 50 CFR 679.4(l)(6)).
Seven inshore cooperatives have formed (Analysis, Section 1.9.1). Almost all AFA inshore catcher vessels harvest and deliver pollock through a cooperative, rather than in open access. From 2005 to 2014, except for 2010, all inshore catcher vessels fished through a cooperative (Allocations,
* Limits on AFA vessels in other fisheries. The original AFA in section 211 provided protections for other fisheries from spillover effects from the allocation of exclusive harvesting privileges in the
With regard to fishing in the
The regulations subject most AFA catcher vessels to sideboard limits (
The regulations exempt some AFA catcher vessels from sideboard limits for BSAI Pacific cod and for GOA groundfish, if the vessels meet specified criteria (
* Catch weighing and monitoring requirements. The original AFA in section 211(b)(6) imposed catch weighing and monitoring requirements on the 20 catcher/processors that were listed in the original AFA as eligible to harvest the directed pollock allocation of the catcher/processor sector. The original AFA required the listed catcher/processors to carry two NMFS observers at all times and to weigh all catch on NMFS-approved scales. Through regulations, the Council and NMFS developed catch measurement and observer requirements for all AFA catcher/processors, for AFA motherships, and for AFA catcher vessels (see regulations at
Original AFA Provisions on Replacing, Rebuilding and Removing AFA Vessels
The original AFA explicitly prohibited the replacement of original AFA vessels except under conditions specified in section 208(g) of the original AFA. The most stringent restriction in section 208(g) was that an owner of an AFA vessel could only replace an AFA vessel in the event of an "actual total loss or a constructive total loss" of the original AFA vessel. The original AFA did not specifically define total loss or constructive loss, but the terms are commonly used in maritime insurance. A total loss usually means that the vessel sinks, or is otherwise destroyed, and is physically lost. A constructive loss usually means that a vessel is so damaged that the cost of repair is greater than the value of the vessel. Thus, under the original AFA, a vessel owner could not replace an original AFA vessel until the AFA vessel sunk or was so damaged that it could not economically be repaired. An AFA vessel owner could not replace an original AFA vessel with another vessel simply because the vessel owner wanted a vessel that was safer, more fuel-efficient, or more operationally efficient than the owner's current vessel in any way.
Further, if an original AFA vessel owner did lose an original AFA vessel, section 208(g) of the original AFA limited the length, tonnage, and horsepower of the replacement vessel. If the original AFA vessel was a large vessel, the replacement vessel could not exceed the length, tonnage, or horsepower of the original AFA vessel. If the original AFA vessel was less than any of the statutory thresholds, the replacement vessel could exceed the length, weight, or horsepower of the original AFA vessel by 10 percent, but only up to the statutory thresholds for large vessels.
Between 1998 and passage of the Coast Guard Act in 2010, NMFS approved the replacement of four original AFA vessels under the standards in the original AFA. All replaced vessels were catcher vessels. Two replacement vessels were new to the AFA fishery. Two replacement vessels already were original AFA vessels that replaced other original AFA vessels.
The original AFA had no explicit provisions on rebuilding original AFA vessels. The original AFA did not provide a mechanism for a vessel owner to remove an original AFA vessel from the directed pollock fishery.
Effect of License Limitation Program (LLP) on Rebuilding and Replacing Original AFA Vessels
To participate in the directed pollock fishery in the
Further, AFA vessels harvest pollock with trawl gear.
The requirement that an AFA vessel have an LLP license limits the ability of owners of AFA vessels to rebuild or replace AFA vessels. All LLP licenses specify a maximum length overall or MLOA (
Aleutian Islands Directed Pollock Fishery
The original AFA applied to the directed pollock fishery in the entire BSAI Management Area (section 205(4), section 205(6), section 205(10) of original AFA). The BSAI Management Area consists of the Bering Sea Subarea and the Aleutian Islands Subarea (see regulatory definitions in
Within statutory and regulatory restrictions, the
II. Summary of the AFA as Amended by the Coast Guard Act
On
With respect to the Gulf of
With respect to participation in fisheries outside of
The provisions discussed thus far describe the fishing privileges of the AFA rebuilt vessel and the AFA replacement vessel. The other side of the coin is what happens to the vessel that is replaced: the vessel that leaves the AFA fishery and is replaced by another vessel in the AFA fishery. Under section 211(b)(5) of the amended AFA, a vessel that is replaced is not eligible for a Federal fishery endorsement under 46 U.S.C. 12113 unless the replaced vessel becomes, in the future, a replacement vessel for another vessel leaving the AFA fishery.
The amended AFA added section 210(b)(7) to the AFA. This new provision allows the owner of an AFA catcher vessel that is a member of an inshore cooperative to remove the catcher vessel from the inshore cooperative. Under section 210(b)(7), the owner of the removed vessel must assign the catch history of the removed vessel to one or more vessels in the cooperative to which the removed vessel belonged. Under section 210(b)(7), the vessels that are assigned the pollock catch history of the removed vessel must stay in the fishery cooperative for at least one year after the date on which the vessel was removed from the cooperative. Except for the assignment of the pollock catch history of the removed vessel, section 210(b)(7)(B) permanently extinguishes any claim that might have been based on the catch history of the removed vessel. This means that if the removed AFA catcher vessel was exempt from any sideboard limitations, NMFS permanently extinguishes the exemption and does not assign it to any other vessel.
Finally, except for four named vessels, section 210(b)(7)(B) of the amended AFA prevents the owner of an AFA catcher vessel that is removed under this provision from using the removed vessel in other fisheries. The amended AFA accomplishes this by making a removed AFA catcher vessel permanently ineligible for a Federal fishery endorsement, except that a removed AFA vessel may receive a Federal fishery endorsement to reenter the AFA fishery as a replacement vessel.
The four vessels are named in section 210(b)(7)(C) of the amended AFA. These vessels, if removed, may receive a Federal fishery endorsement to participate in a fishery under the authority of the
The Coast Guard, in conjunction with MARAD, will issue Federal fishery endorsements in accord with the amended AFA. For information on the vessel documentation process, see the Coast Guard Web site for the National Vessel Documentation Center at http://www.uscg.mil/hq/cg5/nvdc/.
III. History of Council Action
Section 208(g)(2) of the amended AFA gave the Council authority to recommend additional conservation and management measures if the Council concluded that such measures were necessary to ensure that the amended AFA did not undermine the effectiveness of the fishery management plans for either the BSAI or the GOA. Pursuant to section 208(g)(2) of the amended AFA, the Council reviewed whether to recommend conservation and management measures for the GOA, in addition to the restrictions on fishing by AFA vessels in the GOA in existing regulations. The Council concluded that additional measures for the GOA were not necessary, in light of the protections for GOA participants provided by current management measures.
The history of Council action on this subject is documented in minutes and newsletters of Council meetings, which are on the Council Web site: https://alaskafisheries.noaa.gov/npfmc. At its
At its
In describing Alternative 2, the Analysis described how NMFS would implement the AFA amendments, if the Council did not recommend any additional conservation and management measures (Analysis, Executive Summary at pages ix-xv). The Analysis describes four key areas of NMFS' implementation of the AFA amendments under Alternative 2. First, under Alternative 2, the owner of an AFA vessel would be able to rebuild or replace the vessel with no limitation on the length, size, or horsepower of the rebuilt or replacement vessel, when the rebuilt or replacement vessel was participating in the BSAI (section 208(g)(1)(A) of amended AFA).
Second, with respect to the participation by AFA vessels in the GOA, the AFA amendments preserve the Maximum Length Overall (MLOA) restriction in the LLP for AFA rebuilt and replacement vessels when these vessels participate in the GOA (section 208(g)(6) of amended AFA). To participate in the GOA, AFA vessels must have an LLP license with an area endorsement for the Central Gulf or Western Gulf area (
Third, the AFA amendments allow the owner of an AFA catcher vessel that is a member of an inshore cooperative to remove the vessel from the inshore cooperative and to assign the pollock fishing allowance of the removed vessel to one or more vessels in the same inshore cooperative (section 210(b)(7) of amended AFA). Fourth, and related, NMFS concludes that the AFA amendments require that NMFS extinguish any sideboard exemptions of a removed catcher vessel. The AFA amendments provide that, except for the claim to the pollock fishing allowance of the removed vessel, NMFS must extinguish "any claim (including relating to catch history)" of the removed vessel (section 210(b)(7)(B) of amended AFA). If the removed vessel was exempt from AFA sideboard limitations, the exemption was based on the vessel's catch history (
The Council specifically concurred with NMFS' interpretation of this provision in the AFA amendments (Analysis, Executive Summary at page xx). The Council further concluded that, if NMFS did not implement the AFA amendments this way, the Council would recommend this action--extinguishment of the sideboard exemptions of a removed vessel--as a conservation and management measure necessary to ensure that the AFA amendments did not diminish the effectiveness of fishery management plans of the BSAI or GOA (Analysis, Executive Summary at page xx).
As for whether any other measures were necessary to protect the GOA, the Council concluded that no other measures were necessary. The Council noted the considerable protections already in place that restrict fishing by AFA vessels in the GOA. The Council relied on these measures to conclude that current management measures provided sufficient protection for participants in the GOA from increased activity from AFA rebuilt and replacement vessels.
The Analysis describes the existing limitations on AFA vessels in the GOA: the limited number of LLP licenses with Central Gulf or Western Gulf endorsements; the sideboard limits on GOA species that apply to most AFA vessels; the sideboard limits in the
A further restriction on AFA vessels in the GOA is the Pacific cod sector split. Beginning in 2012, NMFS annually allocates Pacific cod in the GOA by gear type and vessel type. The sector split allocates Pacific cod to the hook-and-line sector, the pot sector, and the trawl sector. Since AFA vessels use trawl gear to harvest pollock, and since the other gear sectors have their own Pacific cod allocation, the sector split restricts the harvest of Pacific cod in the non-trawl fisheries in the GOA by AFA vessels. For additional detail on the GOA Pacific cod sector split, see the final rule implementing this measure (76 FR 74670,
The Council relied on the current suite of restrictions on the participation by AFA vessels in the GOA when the Council did not adopt an alternative that limited participation by AFA vessels in the GOA beyond the restrictions in current statute and regulation.
As for the BSAI, and whether any additional measures were necessary to restrict fishing by AFA vessels in the BSAI, the Council did not specifically consider an alternative to limit non-pollock fishing by AFA rebuilt and replacement vessels in the BSAI beyond the restrictions currently in place. However, the Analysis presented to the Council did describe in detail the extent of fishing by AFA vessels in the BSAI in non-pollock fisheries and did describe the stringent sideboard limits and closures that restrict most AFA vessels (Analysis, Tables 1-1, 1-2, 1-5, 1-8, 1-9, 1-14, 1-15, 1-18. 1-19, 1-23, and Section 1.9.1).
The only AFA vessels that are exempt from any sideboard limits in the BSAI are
Thus, with respect to the BSAI, the Council had before it considerable information regarding non-pollock fishing by AFA vessels in the BSAI and did not recommend any management measures beyond the limits on AFA vessels in existing regulations.
IV. The Need for Action
The BSAI FMP and current regulations are consistent with the original AFA, but not with the amended AFA. On this basis, the need for action is clear. The BSAI FMP and regulations must be changed to conform to a statute adopted by
This action is needed not only to implement the amended AFA, but also to further the purpose of the AFA amendments themselves. The primary purpose of the Coast Guard Act amendments to the AFA is to promote the safety and efficiency of the AFA fleet by allowing the owners of AFA vessels to rebuild or replace their vessels. Under the original AFA and existing regulations, an owner of an AFA vessel had to wait until the vessel sank or was damaged beyond repair before the owner of an AFA vessel could replace the AFA vessel with another vessel. The AFA fleet is aging. Of the
Under the original AFA, as reflected in current regulations, an owner of an AFA vessel cannot replace an AFA vessel with a vessel that is safer, more fuel efficient, or more operationally efficient in other ways. For example, the Analysis notes that advances in propulsion systems for catcher vessels, when paired with improved hull forms, can result in gains in fuel efficiency of up to 25 percent or more per pound of fish products delivered (Analysis, Section 1.11.2).
Under the original AFA, the rebuilding or replacement of AFA vessels was limited by length, tonnage, and horsepower of the rebuilt or replacement vessel. Under the amended AFA, the owner of an AFA vessel may rebuild that vessel or replace that vessel with no limit on the length, tonnage, or horsepower of the rebuilt or replacement vessel when the rebuilt or replacement vessel is participating in the BSAI. The removal of these limits could substantially improve the operational efficiency of AFA vessels. For example, the Analysis notes that the owners of smaller and older AFA catcher/processors may wish to rebuild or replace their vessels to install a fish meal plant, which would enable them to sell fish meal and fish oil. Vessels may also use fish oil as fuel in hybrid diesel electric engines and reduce costs from purchasing petroleum-based fuel (Analysis, Section 1.11.2).
The proposed rule would not require an AFA vessel owner to upgrade a vessel. An AFA vessel owner still must find that the improved safety and improved efficiency from rebuilding or replacing is worth the cost. The Analysis does not try to estimate how many owners of AFA catcher vessels, catcher/processors, or motherships will rebuild or replace vessels. The likelihood of a given vessel being rebuilt or replaced will depend on many factors, including the financial resources of the vessel owner, which is proprietary and confidential information. NMFS does not have that information and therefore cannot reliably estimate how many AFA vessel owners would rebuild or replace their vessels under the proposed rule. The proposed rule would, however, allow the owners of AFA vessels to weigh the costs and benefits of rebuilding or replacing their vessels, and to act on their evaluation, before their vessels sink or are damaged beyond repair.
Finally, this action responds to the problem that owners of catcher vessels in the inshore sector have experienced because the AFA had no provisions allowing for removal of vessels from the AFA fishery. Under existing regulations, the catcher vessels that do not actively fish for the cooperative must be tied up at the dock or put in storage, even if the owner has concluded that the vessel will never fish again. Except when a vessel was lost, the original AFA provided no way for the owner of an AFA inshore catcher vessel to transfer the catch history of one inshore catcher vessel to any other inshore catcher vessel. The owner of an AFA inshore catcher vessel could not do that simply because the owner wished to remove the vessel from the fishery.
The inability of the owner of an AFA inshore catcher vessel to remove a vessel from the AFA fishery results from the requirement in the original AFA and AFA regulations for a vessel to be a member of an inshore cooperative. For each year the owner of a catcher vessel wants to be a member of a particular inshore cooperative, the catcher vessel must be a "qualified catcher vessel" for membership in that inshore cooperative. (Original AFA, section 211(b)(3); 50 CFR 679.4(l)(6)(ii)( D)). To be a qualified catcher vessel, a catcher vessel must be eligible to harvest pollock in the
Even though every catcher vessel in an inshore cooperative must be eligible to fish for pollock and for groundfish under the original AFA, not every catcher vessel in an inshore cooperative must actually fish for the cooperative. Some catcher vessels in a cooperative do not fish at all, or fish very little. Other, more efficient, catcher vessels in the cooperative harvest the pollock that the cooperative is authorized to catch. Some of the catcher vessels that do not fish are obsolete and inefficient, but under the original AFA and existing regulations, the owners of these vessels have no way to remove them from the AFA fishery. The AFA amendments and the proposed rule remedy this deficiency by allowing the owner of a catcher vessel that is a member of an inshore cooperative to remove that vessel from the AFA fishery subject to the conditions described above in Section II, "Summary of the AFA as amended by the Coast Guard Act."
Proposed Action
This proposed rule would revise the current regulations to implement the amended AFA and Amendment 106 to the BSAI FMP. This proposed rule addresses the rebuilding, replacement, and removal of AFA vessels and would make the following changes.
AFA Rebuilt Vessels
This proposed rule would establish the procedure for owners of AFA rebuilt vessels to maintain AFA permits on rebuilt vessels, would define the fishing privileges of the rebuilt vessel, and would modify the LLP regulations for AFA rebuilt vessels.
* Procedure. The proposed rule at
In the application process, NMFS would not undertake to substantiate that the owner rebuilt the AFA vessel for the reason stated in the application. Similarly, NMFS would not undertake to substantiate through the application process that the rebuilt vessel was safer or more efficient. It would be difficult to establish a standard for judging whether a rebuilt or replacement vessel was safer or more efficient. NMFS does not believe that was the intent of
To maintain an AFA permit, the AFA rebuilt vessel must have a certificate of documentation with a Federal fishery endorsement. If the owner of an AFA vessel rebuilds an AFA vessel, the proposed rule at
* Fishing privileges of AFA rebuilt vessels. Under the proposed rule at
The exemption from the MLOA requirement would attach to any AFA vessel that was rebuilt after
The second area where an AFA rebuilt vessel would be subject to a different requirement from the AFA vessel before rebuilding relates to the fishing restrictions in
Section 679.23 is an inseason management tool to lessen competitive interactions between the groundfish fisheries and Steller sea lions. Section 679.23 "limits the concentration of fishing effort in one area and reduces the potential for localized depletion of Steller sea lion prey" (Analysis, section 1.9.1 at page 39). However,
NMFS considered whether an AFA rebuilt catcher vessel that is 125 feet LOA or greater after rebuilding would remain subject to the restrictions in
NMFS bases this provision in the proposed rule--the continuation of the restrictions in
First, the amended AFA in section 208(g)(1)(A) states that "[n]otwithstanding any limitation to the contrary on replacing, rebuilding, or lengthening vessels, or transferring permits or licenses to a replacement vessel contained in section 679.2 and 679.4 [of Title 50 CFR]," a vessel owner may rebuild or replace an AFA vessel. The restriction in
The amended AFA in section 208(g)(1)(B) states that the rebuilt and replacement vessel will be "subject to the same restrictions and limitations . . . as the vessel being rebuilt or replaced." The amended AFA in section 208(g)(1)(C) states that the rebuilt and replacement vessel should receive the permits "as necessary . . . to operate in the same manner" as the vessel prior to rebuilding or replacement. If the AFA vessel, prior to rebuilding or replacement, had been lengthened so that it was 125 feet LOA or greater, the AFA vessel would have been subject to the restrictions in
Second, as noted, the purpose of
Finally, the Analysis describes the restrictions in
* Changes in LLP regulations for AFA rebuilt vessels. The proposed rule would modify the LLP regulations at
The LLP license holder that wishes to designate an AFA rebuilt vessel on an LLP license is still subject to a limit of one voluntary transfer per year of an LLP license (
AFA Replacement Vessels
This proposed rule would establish the procedure for the owner of an AFA vessel to obtain an AFA permit for a replacement vessel, would define the fishing privileges of the replacement vessel, and would modify the LLP regulations for AFA replacement vessels.
* Procedure. Under the proposed rule at
On NMFS's approval of the application to replace the AFA vessel with another vessel, the AFA permit that designated the former, or replaced, vessel would be revoked and NMFS would issue a new AFA permit to the replacement vessel, unless the replacement vessel already had an AFA permit.
* Fishing privileges of AFA replacement vessels. The owner of the AFA replacement vessel would be eligible to use the AFA replacement vessel in the same manner as the AFA replaced vessel, and the AFA replacement vessel would be subject to the same requirements under 50 CFR part 679 that applied to the AFA replaced vessel, except for three requirements.
First, under the proposed rule at
Second, under the proposed rule at
Third, under the proposed rule at
* Changes in LLP regulations for AFA replacement vessels. As with AFA rebuilt vessels, the proposed rule would modify the LLP regulations at
The LLP license holder that wishes to designate an AFA replacement vessel on an LLP license is still subject to the limit in current regulation of one voluntary transfer per year of an LLP license (
* Fishing privileges of AFA replaced vessels. The replaced vessel is the AFA vessel that has left the AFA fishery and is replaced by another vessel. Under the amended AFA at section 208(g)(5), the replaced vessel is not eligible for a Federal fishery endorsement unless, at some point in the future, the replaced vessel reenters the AFA fishery as a replacement vessel. Thus, the only fishing activity possible for a replaced vessel is reentering the AFA fishery as a replacement vessel.
While the provisions explained above apply generally to rebuilding and replacing AFA catcher/processors, motherships, and catcher vessels, the proposed rule includes specific measures that apply to (1) the rebuilding or replacement of AFA catcher vessels with sideboard exemptions; (2) the replacement of vessels in AFA inshore cooperatives; (3) the status of AFA permits after a vessel is lost; and (4) how the owners of lost catcher AFA vessels may participate in AFA inshore cooperatives. Before examining the provisions in the proposed rule on removing AFA catcher vessels, NMFS will discuss these four special situations regarding rebuilding and replacing AFA vessels.
The Rebuilding or Replacing of AFA Catcher Vessels With Sideboard Exemptions
Under current regulations, AFA catcher vessels are subject to sideboard limitations in the BSAI groundfish fisheries and in the GOA groundfish fisheries, unless an AFA catcher vessel met requirements in
In the original AFA, the requirements for initial eligibility for an AFA vessel to be exempt from BSAI Pacific cod sideboard limits were that an AFA catcher vessel (1) was under 125 feet LOA; (2) harvested a relatively small amount of BSAI pollock between 1995 and 1997 (5,100 metric tons); and (3) made a fairly high number of landings of BSAI Pacific cod (30 or more) in that same time period (
The requirements for initial eligibility for an AFA vessel to be exempt from GOA groundfish sideboard limits were that an AFA catcher vessel (1) was under 125 feet LOA; (2) harvested a relatively small amount of BSAI pollock between 1995 and 1997 (5,100 metric tons); and (3) made a fairly high number of landings of GOA groundfish (40 or more) in that same time period (
Ten AFA catcher vessels met the requirements for an exemption from BSAI Pacific cod sideboard limits and
Under the proposed rule at
First, in the amended AFA, section 208(g)(1)(A) states that the expanded privilege for rebuilding and replacing AFA vessels is "[n]otwithstanding any limitation to the contrary on replacing, rebuilding, or lengthening vessels or transferring permits or licenses to a replacement vessel contained in sections 679.2 and 679.4." The requirements for initial eligibility for a sideboard exemption are in
The amended AFA in section 208(g)(1)(B) states that the rebuilt or replacement vessel "shall be eligible to operate in the same manner and subject to the same restrictions and limitations" as the vessel before rebuilding or the vessel before replacement. The amended AFA states in section 208(g)(1)(C) that "[e]ach fishing permit and license held by the owner of the vessel or vessels to be rebuilt or replaced . . . shall be transferred to the rebuilt or replacement vessel or its owner, as necessary to permit such rebuilt or replacement vessel to operate in the same manner as the vessel prior to the rebuilding or the vessel it replaced, respectively." Under the amended AFA and this proposed rule, an AFA rebuilt or replacement catcher vessel would maintain an exemption from sideboard closures so as to allow the vessel "to operate in the same manner" as the vessel did prior to rebuilding or replacement, notwithstanding the limitation in
Second, this provision in the proposed rule--continuation of sideboard exemptions for AFA rebuilt or replacement vessels--was part of Alternative 2, the Council's preferred alternative. Under Alternative 2, as explained in the Analysis, an AFA rebuilt or replacement vessel would have sideboard exemptions if the vessel before rebuilding, or if the vessel that was being replaced, had exemptions (Analysis, Executive Summary at page ix).
Finally, the continuation of sideboard exemptions for AFA rebuilt or replacement vessels furthers the primary purpose of the AFA amendments, which is to allow the owners of AFA vessels to rebuild and replace AFA vessels in accord with their determination that the costs of rebuilding and replacing are worth the benefits. The proposed rule would allow the owner of an AFA catcher vessel that is exempt from AFA sideboards to determine whether to rebuild or replace the vessel based on the costs and benefits of rebuilding and replacing. The proposed rule would not make the owners of AFA sideboard-exempt vessels choose between rebuilding/replacing their vessels andcontinuing to operate with an exemption from sideboard limits.
However, with respect to AFA vessels that are exempt from GOA groundfish sideboard limits, the amended AFA and this proposed rule would preserve the requirement that an AFA vessel may not fish for groundfish in any area in the GOA if the AFA vessel exceeds the MLOA on the vessel's LLP license endorsed for the GOA. This is a very significant constraint on the length of AFA vessels that may operate in the GOA. Although
The Replacement of Catcher Vessels in AFA Inshore Cooperatives
NMFS issues AFA inshore cooperative fishing permits annually to inshore cooperatives. The AFA inshore cooperative fishing permit displays the amount of pollock the inshore cooperative is authorized to harvest for the upcoming fishing year. The permit displays this amount as a percentage of the
The proposed rule would not change the current deadline for the annual application for an inshore cooperative permit. NMFS still must receive the inshore cooperative application for the upcoming fishing year by
The
The Status of AFA Permits After a Vessel Is Lost
The proposed rule addresses the situation of owners of AFA vessels who experience a total or constructive loss of their vessel. The amended AFA completely revised section 208(g) of the original AFA, which had allowed the owner of AFA vessel to replace the vessel only if it was lost. Section 208(g) of the amended AFA allows the owner of an AFA vessel to replace or rebuild the vessel at any time to improve safety or efficiency.
Under section 208(g) of the original AFA, the owner of an AFA vessel had 36 months from the end of the last year in which the AFA vessel harvested or processed pollock to replace a lost AFA vessel. The original AFA was silent as to the privileges of the owner of a lost AFA vessel during that period and silent as to the privileges of the owner of the lost AFA vessel after that period had lapsed if the owner did not replace the AFA vessel during the allotted time.
The amended AFA also did not explicitly address what happens to the AFA fishing privileges of a lost vessel between the time that the owner loses the vessel and the owner replaces the vessel. To implement the amended AFA, and to provide clarity to the public, the proposed rule specifies the status of an AFA permit in the event of a total or constructive loss of an AFA vessel. NMFS specifically welcomes comment on this provision.
NMFS examined three options. The first option would provide that in the event of a total or constructive loss of an AFA vessel, the AFA permit that designates the lost vessel would immediately become invalid and the owner of the lost AFA vessel would have no AFA fishing privileges until the owner replaces or removes the lost vessel under the replacement/removal procedures in the proposed rule. This approach would pressure the owner of the lost AFA vessel to immediately replace or remove the lost vessel.The second option would provide that in the event of a total or constructive loss of an AFA vessel, the AFA permit would remain valid until the AFA permit holder designated a replacement vessel. This option would have no mechanism that required the AFA permit holder to designate a replacement vessel and would change the AFA permit from a permit tied to a specific vessel to a permit that was not tied to a vessel. NMFS believes the amended AFA was not meant to fundamentally change the nature of the AFA permit in this way.
The third option would provide that in the event of total or constructive loss of an AFA vessel, the AFA permit would remain valid for a reasonable, but not unlimited, period of time to allow the owner of the lost AFA vessel to continue to receive privileges under the AFA without immediately having to designate a replacement vessel. The proposed rule would implement this approach. NMFS recognizes that, after a vessel owner incurs the loss of a vessel, it takes time to decide whether and how to replace the vessel. It takes time, sometimes a considerable amount, to collect payment under an insurance policy. It takes time to arrange financing for a replacement vessel. NMFS determined that the proposed rule should provide the vessel owner with a reasonable period of time to take these steps in the wake of an event such as a complete vessel loss.
NMFS determined that a reasonable period of time for the vessel owner to replace a lost vessel or, in the case of an AFA catcher vessel in an inshore cooperative, to remove a lost vessel, is the same period of time that was in the original AFA: the time period starting on the date of the vessel loss and ending on
NMFS believes that a 3-year period would provide a vessel owner with adequate time to decide whether to replace or remove a lost vessel and to apply to take one of those actions. As noted, this 3-year period is the same period of time that the original AFA in section 208(g) gave the owner of an original AFA vessel to replace an AFA vessel. This 3-year period was adequate for the replacement of
Under the proposed rule, NMFS would revoke the AFA permit that designated the lost vessel if, before the end of the 3-year period if, during that period, the owner of the AFA vessel replaces the lost vessel with another vessel or removes the lost vessel pursuant to the replacement/removal procedures established by the proposed rule. It would be inconsistent with the AFA to have
If, at the end of the 3-year period, the AFA vessel owner had not replaced or removed the lost AFA vessel, NMFS would suspend the AFA permit that designated that lost vessel and the AFA permit would not be valid. Since NMFS may have to suspend the AFA permit, the proposed rule would require that the owner of an AFA vessel notify NMFS within 120 days after the vessel is lost.
After the permit was suspended, the owner of the lost AFA vessel could still apply to replace or remove the lost vessel that was designated on the AFA permit. But while the permit was suspended, the owner of the lost AFA vessel would not have a valid AFA permit and would have no fishing privileges based on the suspended AFA permit.
For several reasons, NMFS believes it is highly unlikely that any AFA permits would be suspended under this provision. The permits are valuable. The AFA permit holders have operated in a highly regulated fishery since 1998. And since AFA vessels almost always fish as members of cooperatives, the other members of the cooperative and the cooperative manager would have a great interest in making sure a member's AFA permit is not suspended.
The original AFA in section 208(g) recognized two types of vessel loss that allowed the owner of an AFA vessel to replace an AFA vessel: total loss of the AFA vessel or constructive loss of the AFA vessel. The proposed rule also recognizes these two types of vessel loss. The proposed rule would define total loss and constructive loss for purposes of determining the validity of AFA permits and would clarify when the time period for replacing or removing a vessel would begin. The proposed rule would define total loss and constructive loss in
The proposed rule would define the date of the total loss of the vessel as the date when the vessel was physically lost. The proposed rule would define the date of the constructive loss of the vessel as the date when the vessel suffered the damage that resulted in the cost of repair exceeding the value of the vessel.
How the Owners of Lost AFA Catcher Vessels May Participate in AFA Inshore Cooperatives
The proposed rule addresses how NMFS would evaluate an application for an inshore cooperative fishing permit if the applicant includes the catch history of a lost catcher vessel. In examining this provision, it is helpful to keep in mind the standard requirements for a vessel to be a member of a particular cooperative. To be a member of an inshore cooperative, a catcher vessel must meet permit requirements and landing requirements (
The landing requirements are specific to each cooperative. Each cooperative designates a particular AFA inshore processor to which the cooperative members have agreed to deliver at least 90 percent of their pollock catch (
As described earlier, under the proposed rule, if an AFA vessel is lost, the AFA permit that designated the lost catcher vessel would be valid for up to 3 years from
The proposed rule would establish which inshore cooperative that the owner of a lost AFA catcher vessel may join during this 3-year period. The proposed rule would do this by adding a provision to the inshore cooperative permit regulation at
In the unlikely event that a catcher vessel is lost during a year when the catcher vessel was not a member of an inshore cooperative, but the vessel had made deliveries to an AFA inshore processor during that year before the vessel was lost, the owner of the lost vessel would be allowed to join the inshore cooperative that is associated with the processor to which the vessel delivered more pollock than any other processor during that year.
In both these situations--when the lost catcher vessel was a member of a cooperative and when the lost catcher vessel was in the open access sector but had made deliveries to a processor associated with a cooperative--the proposed rule would not allow the owner of the lost vessel to join a different cooperative. This limitation is in keeping with the AFA cooperative structure and the landing requirements to be a member of a cooperative (
In the very unlikely event that a catcher vessel is lost during a year when the vessel was not designated on an inshore cooperative permit, and before the vessel made any pollock deliveries, the owner of the lost vessel would be permitted to join any inshore cooperative while the AFA permit designating the lost vessel was valid.
NMFS notes that it is rare that vessels are lost. From 1998 to 2010, NMFS is aware of only
Removing an AFA Catcher
The proposed rule at
First, under the proposed rule at
Second, except for assigning the inshore pollock catch history, NMFS would permanently extinguish all other claims relating to the catch history of the removed vessel. The proposed rule at
Third, under the proposed rule at
Fourth, under the proposed rule at
Application Procedures
NMFS has created one form that would be used by the owners of AFA vessels that rebuild, replace, or remove their AFA vessels: "American Fisheries Act (AFA) Permit: Rebuilt, Replaced, or Removed Vessel Application." The application and instructions would be published on the
After NMFS receives a complete application, NMFS would take the action requested by the applicant if the applicant met the requirements for NMFS to take the action. If the application is a notification to NMFS of an AFA rebuilt vessel, NMFS would acknowledge the notification. The AFA vessel would be designated on an LLP license. NMFS would reissue to the AFA rebuilt vessel an LLP groundfish license with an exemption from the MLOA restriction when the AFA rebuilt vessel is used to fish for groundfish in the BSAI pursuant to that LLP license.
If the applicant seeks to replace an AFA vessel, NMFS would issue a new AFA permit to the replacement vessel, unless the replacement vessel already is designated on an AFA permit. NMFS would revoke the AFA permit on the former, or replaced, AFA vessel. On the application form, the AFA vessel owner would indicate the LLP license on which the AFA replacement vessel would be designated. NMFS would issue to the AFA replacement vessel an LLP groundfish license with an exemption from the MLOA restriction. The exemption would only be valid when the AFA replacement vessel is used to fish for groundfish in the BSAI pursuant to that LLP license. If the applicant seeks to replace an AFA catcher vessel with an inshore endorsement, NMFS would modify the AFA permit of the replacement vessel so that the replacement vessel has the exemptions from sideboard limitations, if any, of the replaced vessel.
If the applicant seeks to remove an AFA catcher vessel with an inshore endorsement, NMFS would assign the pollock catch history of the removed vessel to one or more vessels in the inshore cooperative to which the removed vessel belonged, in accord with the application of the owner of the removed vessel. NMFS would notify the applicant that the AFA permit designating the removed catcher vessel was revoked and that, except for the reassigned pollock history, NMFS had extinguished all claims related to the catch history of the removed vessel, including any claims to exemptions from sideboard limitations.
If NMFS believes that the application is deficient, NMFS would notify the applicant and give the applicant one 30-day period to remedy the deficiencies in the application. After the 30-day period, NMFS would review the application and any information submitted within the 30-day period. NMFS would either grant the application or deny the application by issuing an Initial Administrative Determination (IAD), which would explain the basis for the denial.
Appeal Procedures
Under the proposed rule at
NMFS may, however, request that NAO decide appeals in programs where NAO does not have mandatory jurisdiction. 15 CFR 906.1(d). In the proposed rule, NMFS proposes to use NAO for appeals of initial administrative determinations issued under this rule and to adopt 15 CFR part 906 as the procedural rules for AFA appeals.
In the past,
In developing this proposed rule, NMFS identified an error in the definition of mothership in 50 CFR 679.2. The current regulation states: "AFA mothership means a mothership permitted to process BS pollock under
Classification
Pursuant to section 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 the BSAI FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration of comments received during the public comment period.
The proposed rule has been determined to be not significant for purposes of Executive Order 12866.
A Regulatory Impact Review/Initial Regulatory Flexibility Analysis was prepared. An Initial Regulatory Flexibility Analysis (IRFA) was prepared as required in section 603 of the Regulatory Flexibility Act (RFA). On
The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained under the heading "Need for Action" in the preamble and in the SUMMARY section of the preamble. A summary of the Analysis follows. A copy of the complete Analysis is available from NMFS (see ADDRESSES).
Number and Description of Small Entities Regulated by the Proposed Action
This action would regulate the owners of vessels that are designated on AFA permits; these vessels are catcher vessels, catcher/processor vessels, and motherships. In 2013, 105 catcher vessels, 21 catcher/processors, and 3 motherships were designated on AFA permits (Analysis, Section 2.4). In assessing whether an entity is small, the RFA requires NMFS to consider affiliations between entities.
With respect to AFA catcher/processors, the IRFA states: "All AFA catcher/processors are affiliated through membership in the
With respect to catcher vessels, the IRFA states: "All AFA catcher vessels are members of one of eight cooperatives delivering pollock to inshore processing plants, to motherships, or to catcher/processors. The cooperative of catcher vessels delivering to catcher/processors was closely affiliated with the catcher/processor cooperative, and thus the member entities are large. The seven cooperatives delivering to processing plants or motherships had gross revenues from pollock alone in excess of
With respect to AFA motherships, the IRFA states: "Three motherships accept deliveries of pollock from catcher vessels. While these vessels are authorized to join the cooperative of catcher vessels making such deliveries, they have not recently chosen to do so. However, each of these motherships is believed to be a large entity, based on corporate affiliations with other large processing firms." (Analysis, Section 2.4).
Thus, the IRFA concluded that all of the entities regulated by this action are "large" entities for the purpose of the RFA. If that is so, NMFS need not have prepared an IRFA for this proposed rule because an IRFA is necessary only to evaluate the impact of a proposed rule on small entities. NMFS prepared an IRFA, however, because the IRFA acknowledged that the data on ownership and affiliation of AFA entities was limited.
Recordkeeping and Reporting Requirements
This action imposes one additional reporting requirement on the owner of an AFA rebuilt vessel. If the owner of an AFA vessel rebuilds an AFA vessel, the owner shall submit the documentation for the rebuilt vessel to NMFS within 30 days of the issuance of the documentation.
Apart from this requirement, the owners of AFA rebuilt vessels would be subject to the same recordkeeping and reporting requirements after rebuilding as before rebuilding. Similarly, the owners of AFA replacement vessels would be subject to the same recordkeeping and reporting requirements that applied to the replaced, or former, AFA vessel. If a vessel is removed, the owners of the AFA vessels that are assigned the catch history of the removed vessel would be subject to the same recordkeeping and reporting requirements after they are assigned the catch history of the removed vessel as before they were assigned the catch history of the removed vessel.
NMFS has created an application form for the owner of an AFA vessel who wishes to take any of the actions allowed by this rule. The application form allows the owner of an AFA vessel to notify NMFS of rebuilding, to request to replace an AFA vessel, or to remove an AFA vessel.
Duplicate, Overlapping, or Conflicting Federal Rules
This proposed rule is necessary because existing rules conflict with the AFA amendments in the Coast Guard Act. Apart from that conflict, NMFS has not identified any duplication, overlap, or conflict between this proposed action and existing Federal rules.
Description of Significant Alternatives That Minimize Adverse Impacts on Small Entities
Section 603 of the RFA requires that NMFS should describe any significant alternatives to the proposed action that would accomplish the stated objectives of applicable statutes and would minimize any significant adverse economic impacts on small entities. Although the IRFA concluded that this action did not directly regulate any small entities, the Council and NMFS assumed, for the purpose of the IRFA, that the directly regulated entities were small entities and considered the potential effects on the directly regulated entities.
The Council considered Alternative 1; Alternative 2; and Alternatives 2.1, 2.2, 2.3, and 2.4. Alternative 1 was no action. The Council did not adopt Alternative 1 because it did not conform regulations and the BSAI FMP to a statute adopted by
Under Alternative 2, "the status quo" alternative, fishery management plans and existing regulations would be changed to conform to the AFA amendments, as NMFS interprets the AFA amendments. The Council and NMFS concluded that the BSAI FMP was inconsistent with the AFA amendments. The Council and NMFS therefore proposed amending the BSAI FMP with Amendment 106 to the BSAI FMP. The Council and NMFS concluded that the GOA FMP was consistent with the amended AFA and therefore proposed no change to the GOA FMP.
Alternative 2 would change the BSAI FMP and implementing regulations to allow the owners of AFA vessels to participate in the BSAI with a rebuilt or replacement vessel without limit on the length, tonnage, or horsepower of the rebuilt or replacement vessel. Alternative 2 continues all the restrictions currently in place on participation by AFA vessels in the GOA, including the requirement that an AFA vessel may not participate in the GOA unless the vessel has an LLP license and the vessel does not exceed the MLOA on that license. The Council selected Alternative 2 as its preferred alternative.
Alternatives 2.1, 2.2, 2.3, and 2.4 would have imposed additional restrictions on participation by AFA rebuilt and replacement vessels in the GOA, in addition to restrictions in current regulations (Analysis, Executive Summary). Alternative 2.1 stated that an AFA rebuilt and replacement vessel that is subject to sideboards could not participate in the GOA if the vessel exceeded the most restrictive MLOA on any
Section 208(g)(2) of the amended AFA expressly gave the Council the authority to adopt conservation and management measures to ensure that the AFA amendments did not diminish the effectiveness of the fishery management plans for the
As to which alternative achieves the objectives of the amended AFA, Alternatives 2, 2.1, 2.2, 2.3, and 2.4 all expand the ability of the owners of AFA vessels to rebuild or replace AFA vessels over the original AFA. However, Alternative 2 best achieves the objective of the AFA amendments because the objective of the AFA amendments was to impose additional restrictions on the rebuilding and replacement of AFA vessels only if the additional restrictions were necessary to protect the fishery management plans of the BSAI or GOA. The Council did not recommend additional restrictions in either the BSAI or GOA.
As to which alternative minimizes the adverse economic impact on small entities, the Analysis concluded that no AFA vessels are small entities. Therefore none of the alternatives directly regulates small entities and none of the alternatives minimize the adverse economic impacts on small entities.
But assuming for the purposes of analysis that the owners of AFA vessels are small entities, Alternative 2 is the alternative that minimizes the potential adverse economic impacts on the owners of AFA vessels. The reason is that Alternative 2 would allow the owners of AFA vessels to rebuild and replace their vessels without any restrictions on their ability to rebuild and replace vessels beyond the restrictions required by the AFA amendments. Alternative 2 allows the owners of AFA vessels to rebuild and replace their vessels if the vessel owners conclude that the improved safety and efficiency of the rebuilt or replacement vessel warrants the cost of rebuilding or replacing the vessel.
Collection-of-Information Requirements
This proposed rule contains collection-of-information requirements subject to review and approval by the
Public comment is sought regarding whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information to NMFS at the ADDRESSES above, and by email to [email protected], or fax to 202-395-7285.
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number. 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:
Deputy Assistant Administrator for Regulatory Programs,
For the 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
1. The authority citation for 50 CFR part 679 is revised to read as follows:
Authority: 16 U.S.C. 773 et seq.;
* * * * *
2. In
a. Revise the definition of "AFA mothership;" and
b. Add definitions for "AFA rebuilt vessel," "AFA replacement vessel," and "AFA vessel" in alphabetical order, and add paragraph (2)(vi) to the definition of "Maximum LOA (MLOA)" to read as follows:
* * * * *
AFA mothership means a mothership permitted to process BS pollock under
* * * * *
AFA rebuilt vessel means an AFA vessel that was rebuilt after
AFA replacement vessel means a vessel that NMFS designated on an AFA permit pursuant to
AFA vessel means a vessel that is designated on an AFA catcher vessel permit, an AFA catcher/processor permit, or an AFA mothership permit, and is thereby authorized to participate in the
* * * * *
Maximum LOA (MLOA) means: * * *
(2) * * *
(vi) An AFA vessel is exempt from the MLOA on an LLP license with a
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3. In
a. Remove paragraphs (a)(1)(iii)(F), (l)(4) introductory text, and (l)(8)(iv);
b. Redesignate paragraphs (l)(2)(iii) as (l)(2)(iv) and (l)(8)(v) as (l)(8)(iv);
c. Revise paragraphs (k)(1)(i), (k)(3)(i)(A), (l)(1)(ii)(B), (l)(3)(i)(A)( 2), (l)(3)(i)(B)( 2), (l)(3)(i)(C)( 2)( ii), (l)(4)(i), (l)(6)(ii)(C)( 3), (l)(6)(ii)(D) introductory text, (l)(7), (l)(8)(i), (l)(8)(ii), (l)(8)(iii), and (o)(4)(i)(D); and
d. Add paragraphs (k)(3)(i)(E), (l)(2)(iii), (l)(3)(i)(A)( 3), (l)(3)(i)(B)( 3), (l)(3)(i)(C)( 3), (l)(3)(ii)(E)( 3), (1)(6)(ii)(D)( 3), and (l)(6)(ii)(D)( 4) to read as follows:
* * * * *
(k) * * *
(1) * * *
(i) In addition to the permit and licensing requirements of this part, and except as provided in paragraph (k)(2) of this section, each vessel within the GOA or the BSAI must have an LLP groundfish license on board at all times it is engaged in fishing activities defined in
* * * * *
(3) * * *
(i) * * *
(A) General. A license may be used only on a vessel designated on the license, a vessel that complies with the vessel designation and gear designation specified on the license, and a vessel that has an LOA less than or equal to the MLOA specified on the license, unless the license specifies that the vessel is exempt from the MLOA on the license.
* * * * *
(E) Exemption from MLOA on an LLP license with a
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(l) * * *
(1) * * *
(ii) * * *
(B) Duration of final AFA permits. (1) Except as provided in paragraphs (l)(1)(ii)(B)( 2), (l)(1)(ii)(B)( 3), (l)(5)(v)(B)( 3), and (l)(6)(iii) of this section, AFA vessel and processor permits issued under this paragraph (l) are valid indefinitely unless the permit is suspended or revoked.
( 2) An AFA vessel permit is revoked when the vessel designated on the permit is replaced or removed under paragraph (l)(7) of this section.
( 3) In the event of a total loss or constructive loss of an AFA vessel,
( i) The AFA vessel permit that designates the lost AFA vessel will be valid from the date of the vessel loss up to 3 years from
( ii) The owner of the lost AFA vessel must notify NMFS in writing of the vessel loss within 120 days of the date of the total loss or constructive loss of the vessel;
( iii) For purposes of paragraph (l)(1)(ii)(B)( 3) of this section, an AFA lost vessel is a vessel that has been subject to a total loss or a constructive loss; a total loss means that the vessel is physically lost such as from sinking or a fire; a constructive loss means that the vessel suffered damage so that the cost of repairing the vessel exceeded the value of the vessel; the date of the total loss of a vessel is the date on which the physical loss occurred; the date of the constructive loss of a vessel is the date on which the damage to the vessel occurred.
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(2) * * *
(iii) AFA replacement vessels. (A) NMFS will issue a listed AFA catcher/processor permit to the owner of a catcher/processor that is a replacement vessel for a vessel that was designated on a listed AFA catcher/processor permit.
(B) NMFS will issue an unlisted AFA catcher/processor permit to the owner of a catcher/processor that is a replacement vessel for a vessel that was designated on an unlisted AFA catcher/processor permit.
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(3) * * *
(i) * * *
(A) * * *
( 2) Is not listed in paragraph (l)(3)(i)(A)( 1) of this section and is determined by the Regional Administrator to have delivered at least
( 3) Is an AFA replacement vessel for a vessel that was designated on an AFA catcher vessel permit with a catcher/processor endorsement.
(B) * * *
( 2) Is not listed in paragraph (l)(3)(i)(B)( 1) of this section and is determined by the Regional Administrator to have delivered at least
( 3) Is an AFA replacement vessel for a vessel that was designated on an AFA catcher vessel permit with a mothership endorsement.
(C) * * *
( 2) * * *
( ii) Is less than 60 ft (18.1 meters) LOA and is determined by the Regional Administrator to have delivered at least 40 mt of pollock harvested in the directed BSAI pollock fishery for processing by the inshore component in any one of the years 1996 or 1997, or between
( 3) Is an AFA replacement vessel for a vessel that was designated on an AFA catcher vessel permit with an inshore endorsement.
(E) * * *
( 3) AFA replacement vessel for a catcher vessel that qualified for an exemption. A catcher vessel that is a replacement vessel for a vessel that was designated on an AFA catcher vessel permit with an exemption from a groundfish sideboard directed fishing closure will receive an AFA catcher vessel permit with the same exemption as the replaced vessel.
(4) * * *
(i) NMFS will issue to an owner of a mothership an AFA mothership permit if the mothership:
(A) Is one of the following (as listed in paragraphs 208(d)(1) through (3) of the AFA):
EXCELLENCE (USCG documentation number 967502);
GOLDEN
OCEAN
(B) Is an AFA replacement vessel for a vessel that was designated on an AFA mothership permit.
* * * * *
(6) * * *
(ii) * * *
(C) * * *
( 3) Each catcher vessel in the cooperative is a qualified catcher vessel and is otherwise eligible to fish for groundfish in the BSAI, except that a lost vessel that retains an AFA permit pursuant to paragraph (l)(1)(ii)(B)( 3) of this section need not be designated on a Federal Fisheries Permit or an LLP license; has an AFA catcher vessel permit with an inshore endorsement; and has no permit sanctions or other type of sanctions against it that would prevent it from fishing for groundfish in the BSAI.
(D) Qualified catcher vessels. For the purpose of paragraph (l)(6)(ii)(C)( 3) of this section, a catcher vessel is a qualified catcher vessel if the catcher vessel meets the permit and landing requirements in paragraphs (l)(6)(ii)(D)( 1) and (l)(6)(ii)(D)( 2) of this section; the catcher vessel is an AFA replacement catcher vessel that meets the requirements in paragraph (l)(6)(ii)(D)( 3) of this section; or the catcher vessel is an AFA lost catcher vessel that meets the requirements in paragraph (l)(6)(ii)(D)( 4) of this section.
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( 3) AFA replacement catcher vessels. The vessel is an AFA replacement vessel for a catcher vessel that met the permit and landing requirements in paragraphs (l)(6)(ii)(D)( 1) and (l)(6)(ii)(D)( 2) of this section;
( 4) AFA lost catcher vessels. In the event of a total loss or constructive loss of an AFA catcher vessel with an inshore endorsement, the owner of the lost vessel has an AFA catcher vessel permit with an inshore endorsement for the lost vessel that is valid pursuant to paragraph (l)(1)(ii)(B)( 3) of this section, and the inshore cooperative shows:
( i) The vessel was lost during a year when the vessel was designated on an AFA inshore cooperative fishing permit issued to the cooperative submitting the application; or
( ii) The vessel was lost during a year when the vessel was not designated on any AFA inshore cooperative fishing permit and when the vessel delivered more pollock to the AFA inshore processor designated by the inshore cooperative under paragraph (l)(6)(ii)(B) of this section than to any other processor; or
( iii) The vessel was lost during a year when the vessel was not designated on any AFA inshore cooperative fishing permit and when the vessel had made no deliveries of pollock and the owner of the lost vessel has assigned the catch history of the lost vessel to the inshore cooperative that submits the application.
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(7) AFA rebuilt vessels, AFA replacement vessels, and removal of inshore AFA catcher vessels --(i) AFA rebuilt vessels. (A) To improve vessel safety or to improve operational efficiency, including fuel efficiency, the owner of an AFA vessel may rebuild the vessel. If the owner of an AFA vessel rebuilds the vessel, the owner must notify NMFS within 30 days of the issuance of the vessel documentation for the AFA rebuilt vessel and must provide NMFS with a copy of the vessel documentation for the rebuilt vessel. If the owner of the AFA rebuilt vessel provides NMFS with information demonstrating that the AFA rebuilt vessel is documented with a fishery endorsement issued under 46 U.S.C. 12113, NMFS will acknowledge receipt of the notification and inform the owner that the AFA permit issued to the vessel before rebuilding is valid and can be used on the AFA rebuilt vessel.
(B) Except as provided in paragraph (l)(7)(i)(C) and paragraph (l)(7)(i)(D) of this section, the owner of an AFA rebuilt vessel will be subject to the same requirements that applied to the vessel before rebuilding and will be eligible to use the AFA rebuilt vessel in the same manner as the vessel before rebuilding.
(C) An AFA rebuilt vessel is exempt from the maximum length overall (MLOA) restriction on an LLP groundfish license with a
(D) If an AFA rebuilt catcher vessel is equal to or greater than 125 ft (38.1 m) LOA, the AFA rebuilt catcher vessel will be subject to the catcher vessel exclusive fishing seasons for pollock in 50 CFR 679.23(i) and will not be exempt from 50 CFR 679.23(i) even if the vessel before rebuilding was less than 125 ft (38.1 m) LOA and was exempt from 50 CFR 679.23(i).
(ii) AFA replacement vessels. (A) To improve vessel safety or to improve operational efficiency, including fuel efficiency, the owner of an AFA vessel may replace the AFA vessel with a vessel that is documented with a fishery endorsement issued under 46 U.S.C. 12113.
(B) Upon approval of an application to replace an AFA vessel pursuant to paragraph (l)(7) of this section and except as provided in paragraph (l)(7)(ii)(C), paragraph (l)(7)(ii)(D), and paragraph (l)(7)(E) of this section, the owner of an AFA replacement vessel will be subject to the same requirements that applied to the replaced vessel and will be eligible to use the AFA replacement vessel in the same manner as the replaced vessel. If the AFA replacement vessel is not already designated on an AFA permit, the Regional Administrator will issue an AFA permit to the owner of the AFA replacement vessel. The AFA permit that designated the replaced, or former, AFA vessel will be revoked.
(C) An AFA replacement vessel is exempt from the maximum length overall (MLOA) restriction on an LLP groundfish license with a
(D) If an AFA replacement catcher vessel is equal to or greater than 125 ft (38.1 m) LOA, the AFA replacement catcher vessel will be subject to the catcher vessel exclusive fishing seasons for pollock in 50 CFR 679.23(i) and will not be exempt from 50 CFR 679.23(i), even if the replaced vessel was less than 125 ft (38.1 m) LOA and was exempt from 50 CFR 679.23(i).
(E) An AFA replacement catcher vessel for an AFA catcher vessel will have the same sideboard exemptions, if any, as the replaced AFA catcher vessel, except that if the AFA replacement vessel was already designated on an AFA permit as exempt from sideboard limits, the AFA replacement vessel will maintain its exemption even if the replaced vessel was not exempt from sideboard limits.
(iii) Removal of AFA catcher vessel from the directed pollock fishery. (A) The owner of a catcher vessel that is designated on an AFA catcher vessel permit with an inshore endorsement may remove the catcher vessel from the directed pollock fishery, subject to the requirements in paragraphs (B), (C), (D), and (E) of this paragraph (l)(7)(iii).
(B) The owner of the removed catcher vessel must direct NMFS to assign the non-CDQ inshore pollock catch history in the BSAI of the removed vessel to one or more catcher vessels in the inshore fishery cooperative to which the removed vessel belonged at the time of the application for removal.
(C) Except for the assignment of the pollock catch history of the removed catcher vessel in paragraph (l)(7)(iii)(B) of this section, all claims relating to the catch history of the removed catcher vessel, including any claims to an exemption from AFA sideboard limitations, will be permanently extinguished upon NMFS' approval of the application to remove the catcher vessel and the AFA permit that was held by the owner of the removed catcher vessel will be revoked.
(D) The catcher vessel or vessels that are assigned the catch history of the removed catcher vessel cannot be removed from the fishery cooperative to which the removed catcher vessel belonged for a period of one year from the date that NMFS assigned the catch history of the removed catcher vessel to that vessel or vessels.
(iv) Replaced vessels and removed vessels. An AFA vessel that is replaced or removed under paragraph (l)(7) of this section is permanently ineligible to receive any permit to participate in any fishery in the
(v) Application. To notify NMFS that the owner of an AFA vessel has rebuilt the AFA vessel, the owner of the AFA vessel must submit a complete application. To replace an AFA vessel with another vessel, NMFS must receive a complete application from the owner of the vessel that is being replaced. To remove an AFA catcher vessel from the directed pollock fishery, NMFS must receive a complete application from the owner of the vessel that is to be removed. An application must contain the information specified on the application form, with all required fields accurately completed and all required documentation attached. The application must be submitted to NMFS using the methods described on the application. The application referred to in this paragraph is "American Fisheries Act (AFA) Permit: Rebuilt, Replacement, or Removed Vessel Application."
(8) * * *
(i) Initial evaluation. The Regional Administrator will evaluate an application submitted in accord with paragraph (l) of this section. If the Regional Administrator determines that the applicant meets the requirements for NMFS to take the action requested on the application, NMFS will approve the application. If the Regional Administrator determines that the applicant has submitted claims based on inconsistent information or fails to submit the information specified in the application, the applicant will be provided a single 30-day evidentiary period to submit evidence to establish that the applicant meets the requirements for NMFS to take the requested action. The burden is on the applicant to establish that the applicant meets the criteria in the regulation for NMFS to take the action requested by the applicant.
(ii) Additional information and evidence. The Regional Administrator will evaluate the additional information or evidence submitted by the applicant within the 30-day evidentiary period. If the Regional Administrator determines that the additional information or evidence meets the applicant's burden of proof, the application will be approved. However, if the Regional Administrator determines that the applicant did not meet the applicant's burden of proof, the applicant will be notified by an initial administrative determination (IAD) that the application is denied.
(iii) Initial administrative determinations (IAD). 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 applicant fails to support the applicant's claims and is insufficient to establish that the applicant meets the requirements for an AFA permit or for NMFS to approve the withdrawal of a catcher vessel, 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 the applicant's 30-day evidentiary period. The IAD will indicate the deficiencies in the application, including any deficiencies with the information, the evidence submitted in support of the information, or the revised application. An applicant who receives an IAD may appeal under the appeals procedures set out at 15 CFR part 906.
* * * * *
(o) * * *
(4) * * *
(i) * * *
(D) The replacement vessel is not a vessel listed at section 208(e)(1) through (20) of the American Fisheries Act or permitted under paragraph (l)(2)(i) of this section; is not an AFA replacement vessel designated on a listed AFA catcher/processor permit under paragraph (l)(2)of this section; and is not an AFA catcher vessel permitted under paragraph (l)(3) of this section.
* * * * *
4. In
* * * * *
(i) * * *
(6) Use a vessel to fish for LLP groundfish or crab species, or allow a vessel to be used to fish for LLP groundfish or crab species, that has an LOA that exceeds the MLOA specified on the license that authorizes fishing for LLP groundfish or crab species, except if the person is using the vessel to fish for LLP groundfish in the
* * * * *
(k) * * *
(1) * * *
(ii) Fishing in the GOA. Use a listed AFA catcher/processor or a catcher/processor designated on a listed AFA catcher/processor permit to harvest any species of fish in the GOA.
(iii) Processing BSAI crab. Use a listed AFA catcher/processor or a catcher/processor designated on a listed AFA catcher/processor permit to process any crab species harvested in the BSAI.
(iv) Processing GOA groundfish. (A) Use a listed AFA catcher/processor or a catcher/processor designated on a listed AFA catcher/processor permit to process any pollock harvested in a directed pollock fishery in the GOA and any groundfish harvested in Statistical Area 630 of the GOA.
(B) Use a listed AFA catcher/processor or a catcher/processor designated on a listed AFA catcher/processor permit as a stationary floating processor for Pacific cod in the GOA and a catcher/processor in the GOA during the same year.
(v) Directed fishing after a sideboard closure. Use a listed AFA catcher/processor or a catcher/processor designated on a listed AFA catcher/processor permit to engage in directed fishing for a groundfish species or species group in the BSAI after the Regional Administrator has issued an AFA catcher/processor sideboard directed fishing closure for that groundfish species or species group under
(vi) * * *
(A) Listed AFA catcher/processors and catcher/processors designated on listed AFA catcher/processor permits. * * *
(B) Unlisted AFA catcher/processors and catcher/processors designated on unlisted AFA catcher/processor permits. * * *
(vii) * * *
(A) Listed AFA catcher/processors and catcher/processors designated on listed AFA catcher/processor permits. * * *
(B) Unlisted AFA catcher/processors and catcher/processors designated on unlisted AFA catcher/processor permits. * * *
* * * * *
(2) * * *
(ii) Processing GOA groundfish. Use an AFA mothership as a stationary floating processor for Pacific cod in the GOA and a mothership in the GOA during the same year.
* * * * *
5. In
(a) * * *
(2) * * *
(vi) * * *
(B) * * *
( 1) Listed AFA catcher/processors, catcher/processors designated on listed AFA catcher/processor permits, and AFA motherships. The owner or operator of a listed AFA catcher/processor, a catcher/processor designated on a listed AFA catcher/processor permit, or an AFA mothership must have aboard at least two observers, at least one of whom must be certified as a lead level 2 observer, for each day that the vessel is used to catch, process, or receive groundfish. More than two observers must be aboard if the observer workload restriction would otherwise preclude sampling as required.
* * * * *
( 3) Unlisted AFA catcher/processors and catcher/processors designated on unlisted AFA catcher/processor permits. The owner or operator of an unlisted AFA catcher/processor or a catcher/processor designated on an unlisted AFA catcher/processor permit must have aboard at least two observers for each day that the vessel is used to engage in directed fishing for pollock in the BSAI, or receive pollock harvested in the BSAI. At least one observer must be certified as a lead level 2 observer. When a listed AFA catcher/processor is not engaged in directed fishing for BSAI pollock and is not receiving pollock harvested in the BSAI, the observer coverage requirements at paragraph (a)(2)(ii) of this section apply.
* * * * *
6. In
a. Redesignate paragraph (a)(2) as (a)(3) and paragraph (a)(3) as (a)(4); and
b. Add paragraph (a)(2) to read as follows:
(a) * * *
(2) Determination of individual vessel catch histories after approval of replacement of catcher vessel and approval of removal of catcher vessel from the AFA directed pollock fishery.
(i) If NMFS approves the application of an owner of a catcher vessel that is a member of an inshore vessel cooperative to replace a catcher vessel pursuant to
(ii) If NMFS approves the application of an owner of a catcher vessel that is a member of an inshore vessel cooperative to remove a catcher vessel from the AFA directed pollock fishery pursuant to
* * * * *
7. In
a. Redesignate paragraph (c) as paragraph (d); and
b. Add paragraph (c) to read as follows:
* * * * *
(c) What are the requirements for AFA replacement vessels? The owner and operator of an AFA replacement vessel are subject to the catch weighing requirements and the observer sampling station requirements in paragraphs (a) and (b) of this section that applied to the owner and operator of the replaced vessel.
* * * * *
8. In
a. Revise paragraph (a) heading and introductory text, and paragraph (a)(1) heading; and
b. Add paragraphs (b)(2)(iii) and (b)(2)(iv) to read as follows:
(a) Harvesting sideboards for listed AFA catcher/processors and catcher/processors designated on listed AFA catcher/processor permits. The Regional Administrator will restrict the ability of listed AFA catcher/processors and a catcher/processor designated on a listed AFA catcher/processor permit to engage in directed fishing for non-pollock groundfish species to protect participants in other groundfish fisheries from adverse effects resulting from the AFA and from fishery cooperatives in the BS subarea directed pollock fishery.
(1) How will groundfish sideboard limits for AFA listed catcher/processors and catcher/processors designated on listed AFA catcher/processor permits be calculated? * * *
* * * * *
(b) * * *
(2) * * *
(iii) An AFA rebuilt catcher vessel will have the same sideboard exemptions, if any, as the vessel before rebuilding, irrespective of the length of the AFA rebuilt catcher vessel.
(iv) An AFA replacement vessel for an AFA catcher vessel will have the same sideboard exemptions, if any, as the replaced AFA catcher vessel, irrespective of the length of the AFA replacement vessel, except that if the replacement vessel was already designated on an AFA permit as exempt from sideboard limits, the replacement vessel will maintain the exemption even if the replaced vessel was not exempt from sideboard limits.
* * * * *
SUBSEC 679.4 and 679.51 [Amended]
9. At each of the locations shown in the "Location" column, remove the phrase indicated in the "Remove" column and replace it with the phrase indicated in the "Add" column for the number of times indicated in the "Frequency" column. GOES
Location Remove Add Frequency S. Indefinite Indefinite unless permit is 1 679.4(a)(1)(iii)(A) revoked after vessel is and (a)(1)(iii)(C) replaced or permit is suspended after vessel is lost S. Indefinite Indefinite unless permit is 1 679.4(a)(1)(iii)(B) revoked after vessel is replaced or removed, or permit is suspended after vessel is lost S. 679.51(f)(5) (a)(2)(vi)(B)(1) (a)(2)(vi)(B)(1) through (3) 1 and (2)
[FR Doc. 2014-14012 Filed 6-17-14;
BILLING CODE 3510-22-P
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