Fisheries of the Exclusive Economic Zone Off Alaska; Allocating Gulf of Alaska Fishery Resources, 67210-67273 [06-9229]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 71, Number 223 (Monday, November 20, 2006)]
[Rules and Regulations]
[Pages 67210-67273]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-9229]



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Part II





Department of Commerce





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National Oceanic and Atmospheric Administration



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15 CFR Part 902

50 CFR Part 679



 Fisheries of the Exclusive Economic Zone Off Alaska; Allocating Gulf 
of Alaska Fishery Resources; Final Rule

Federal Register / Vol. 71, No. 223 / Monday, November 20, 2006 / 
Rules and Regulations

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 902

50 CFR Part 679

[Docket No. 060511126-6285-02; I.D. 050306E]
RIN 0648-AT71


Fisheries of the Exclusive Economic Zone Off Alaska; Allocating 
Gulf of Alaska Fishery Resources

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

ACTION: Final rule.

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SUMMARY: NMFS issues a final rule to implement Amendment 68 to the 
Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP). 
This action implements statutory provisions for the Central Gulf of 
Alaska Rockfish Pilot Program (hereafter referred to as the Program). 
This action is necessary to enhance resource conservation and improve 
economic efficiency for harvesters and processors who participate in 
the Central Gulf of Alaska (GOA) rockfish fishery. This action is 
intended to promote the goals and objectives of the Magnuson-Stevens 
Fishery Conservation and Management Act (Magnuson-Stevens Act), the 
FMP, and other applicable law.

DATES: Effective on December 20, 2006.

ADDRESSES: Copies of Amendment 68; the final Environmental Assessment 
(EA) and Regulatory Impact Review (RIR); Initial Regulatory Flexibility 
Analysis (IRFA); and Final Regulatory Flexibility Analysis (FRFA) for 
this action may be obtained from the NMFS Alaska Region, P.O. Box 
21668, Juneau, AK 99802, Attn: Ellen Walsh, and on the NMFS Alaska 
Region website at https://www.fakr.noaa.gov. The proposed rule to 
implement Amendment 68 also may be accessed at this website.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
rule may be submitted to NMFS (at the above address, and by e-mail to 
David--Rostker@omb.eop.gov or by fax to 202-395-7285.

FOR FURTHER INFORMATION CONTACT: Glenn Merrill, 907-586-7228 or 
glenn.merrill@noaa.gov.

SUPPLEMENTARY INFORMATION: The groundfish fisheries in the GOA are 
managed under the FMP. The North Pacific Fishery Management Council 
(Council) prepared the FMP under the authority of the Magnuson-Stevens 
Act, 16 U.S.C. 1801 et seq. Regulations implementing the FMP appear at 
50 CFR part 679. General regulations governing U.S. fisheries also 
appear at 50 CFR part 600.
    Congress granted NMFS additional specific statutory authority to 
manage rockfish fisheries under the FMP in Section 802 of the 
Consolidated Appropriations Act of 2004 (Public Law 108-199; Section 
802). In Section 802, Congress required the Secretary in consultation 
with the Council to establish the Program with specific provisions. The 
Program was developed and recommended by the Council to meet the 
requirements of Section 802, which states:

SEC. 802. GULF OF ALASKA ROCKFISH DEMONSTRATION PROGRAM.

The Secretary of Commerce, in consultation with the North Pacific 
Fishery Management Council, shall establish a pilot program that 
recognizes the historic participation of fishing vessels (1996 to 
2002, best 5 of 7 years) and historic participation of fish 
processors (1996 to 2000, best 4 of 5 years) for Pacific ocean 
perch, northern rockfish, and pelagic shelf rockfish harvested in 
Central Gulf of Alaska. Such a pilot program shall (1) provide for a 
set-aside of up to 5 percent for the total allowable catch of such 
fisheries for catcher vessels not eligible to participate in the 
pilot program, which shall be delivered to shore-based fish 
processors not eligible to participate in the pilot program; (2) 
establish catch limits for non-rockfish species and non-target 
rockfish species currently harvested with Pacific ocean perch, 
northern rockfish, and pelagic shelf rockfish, which shall be based 
on historical harvesting of such bycatch species. The pilot program 
will sunset when a Gulf of Alaska Groundfish comprehensive 
rationalization plan is authorized by the Council and implemented by 
the Secretary, or 2 years from date of implementation, whichever is 
earlier.
    The Council adopted the proposed Program on June 6, 2005. NMFS 
published a notice of availability for Amendment 68 on May 15, 2006 (71 
FR 27984). The public comment period on Amendment 68 ended on July 14, 
2006. NMFS received one comment specific to Amendment 68. That comment 
has been addressed in our Response to Comment section for this rule. On 
June 7, 2006, NMFS published a proposed rule to implement the Program 
(71 FR 33040). The public comment period ended on July 24, 2006. NMFS 
received nine letters on the proposed rule, including the letter 
submitted during the Amendment 68 comment period. These letters 
contained a total of 120 unique comments. These comments are addressed 
in the Response to Comment section of this rule below. The Secretary 
approved Amendment 68 on August 11, 2006.
    NOAA General Counsel reviewed Section 802 and in a February 3, 
2005, legal opinion to the Council concluded that:
(1) Section 802 requires the Secretary of Commerce (Secretary) and 
the Council to recognize the historic participation of fishing 
vessels and fish processors for specific time periods, geographical 
areas, and rockfish species when establishing the [Program]; and (2) 
Section 802 does not authorize recognition of the historic 
participation of fishing vessels or processors in years other than 
those specified in Section 802. Further, Section 802 defines the 
range of years, but does not specify that a processor must have 
actually processed in each of those years in order to be eligible to 
participate in the [Program].
    The opinion by NOAA General Counsel noted further that:
Section 802 authorizes the Council and Secretary to develop a 
program that would establish ``[American Fisheries Act(AFA)]-style'' 
cooperatives or a program that would establish limited entry 
licenses for processors in the [Central GOA] rockfish fishery. 
However, Section 802 does not authorize the establishment of 
processor shares since they are prohibited under Section 802 of the 
[Consolidated Appropriations Act of 2004]. The legislative history 
supports the position that the Council is authorized to consider a 
broad range of ``appropriate'' management schemes, including ``AFA-
style'' cooperatives, which are specifically mentioned in the 
legislative history. . .
    The Council considered the Congressional guidance in the 
development of the Program, particularly in the selection of specific 
years on which to base participation, and for the ``recognition'' of 
processor participation. While NMFS does not have specific authority 
under the Magnuson-Stevens Act to directly regulate on-shore groundfish 
processing activities, Section 802 requires NMFS to regulate on-shore 
processors under this Program.
    Concurrent with the enactment of Public Law 108-199, Section 802, 
in 2004, industry representatives for harvesters and processors 
developed proposed management alternatives for the Program and 
submitted them to the Council for consideration. The Council and NMFS 
prepared an analytical document (EA/RIR/IRFA) for the Program that 
reviewed alternative methods to improve the economic efficiency in the 
Central GOA rockfish fisheries. These included (1) status quo 
management under the License Limitation Program (LLP); (2) the 
formation of harvester cooperatives each of which would receive an 
exclusive annual harvest privilege, with no

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required linkage between the cooperative and a specific processor, and 
establishment of a limited number of eligible processors; and (3) the 
preferred alternative, the formation of harvester cooperatives each of 
which would receive an exclusive annual harvest privilege, with a 
required linkage between the cooperative and a qualified processor.
    Currently, rockfish fisheries, and many other groundfish fisheries, 
are managed under the LLP. The LLP requires harvesters to possess an 
LLP license to participate in GOA groundfish fisheries, but does not 
provide specific exclusive harvest privileges to LLP holders. 
Harvesters with LLP licenses compete with each other for the total 
allowable catch (TAC) amounts annually specified for the fisheries. 
This competition creates economic inefficiencies. Harvesters increase 
the fishing capacity of their vessels to exceed that of other vessels 
resulting in an accelerated rate of fishing as fishermen race to 
harvest more fish than their competitors before TAC amounts or halibut 
mortality limits are reached and the fisheries are closed. Similarly, 
processors increase their processing capacity to outcompete other 
processors. These incentives to increase harvesting and processing 
capacity reduce the ability of harvesters and processors to extract 
additional value from the fishery products because the TACs are 
harvested and processed quickly. This rapid pace provides few 
opportunities to focus on quality or produce product forms that require 
additional time but yield greater value. Additionally, the rapid pace 
of the fishery makes management difficult.

Central GOA Rockfish Pilot Program Overview

    A detailed overview of the Program is provided in the preamble to 
the proposed rule (71 FR 33040; June 6, 2006), and is not repeated 
here. The proposed rule is available via the internet and from NMFS 
(see ADDRESSES). The following section provides a brief overview of the 
Program.
    Program development was initiated by trawl industry 
representatives, primarily from Kodiak, Alaska, in conjunction with 
catcher/processor representatives. They sought to improve the economic 
efficiency of the Central GOA rockfish fisheries by developing a 
program that establishes cooperatives that receive exclusive harvest 
privileges. These rockfish fisheries are almost exclusively harvested 
by trawl vessels in Federal waters.
    The Program is authorized for two years, from January 1, 2007, 
until December 31, 2008. The Program provides exclusive harvesting and 
processing privileges for a specific set of rockfish species and for 
associated species harvested incidentally to those rockfish in the 
Central GOA-an area from 147[deg] W. longitude to 159[deg] W. 
longitude.
    Exclusive harvesting and processing privileges are allocated under 
the Program for the primary rockfish species. The primary rockfish 
species are northern rockfish, Pacific ocean perch, and pelagic shelf 
rockfish. Secondary species are those species incidentally harvested 
during the harvest of primary rockfish species fisheries in the Central 
GOA. The secondary species for which exclusive harvesting and 
processing privileges are allocated include Pacific cod, rougheye 
rockfish, shortraker rockfish, sablefish, and thornyhead rockfish.
    The Program allocates a portion of the total GOA halibut mortality 
limit annually specified under Sec.  679.21 to participants based on 
historic halibut mortality rates in the primary rockfish species 
fisheries. Halibut is incidentally caught and killed in a number of the 
primary rockfish species and secondary species fisheries. Halibut 
caught by trawl gear is considered prohibited species catch (PSC) and 
may not be retained or sold commercially under regulations established 
under the authority of the Northern Pacific Halibut Act of 1982, or 
under regulations implementing the FMP at Sec.  679.21. However, the 
Program provides participants a fixed amount of incidental halibut 
mortality through an allocation of halibut bycatch, specifically an 
allocation of the halibut mortality limit. To maintain consistency with 
terms currently used by NMFS and the fishing industry, this halibut 
mortality limit is called a halibut PSC limit.
    The Program allocates harvest privileges to holders of LLP 
groundfish licenses with a history of legal Central GOA rockfish 
landings associated with those licenses. The allocation of legal 
landings to an LLP license allows the holder of that LLP license to 
participate in the Program and receive an exclusive harvest privilege 
under certain conditions. Specifically, the Program will:
    1. Assign rockfish quota share (QS) for primary rockfish species to 
an LLP license with a trawl gear designation endorsed for the Central 
GOA. Under the Program, NMFS assigns Rockfish QS to an LLP license 
based on the legal landings of primary rockfish species associated with 
that LLP license. A person holding an LLP license can receive Rockfish 
QS if the LLP license had a history of primary rockfish species 
landings during a specific time period associated with the license and 
the person holding the LLP license meets other eligibility 
requirements. Once Rockfish QS is assigned to a specific LLP license it 
cannot be divided or transferred separately from that LLP license. On 
an annual basis, a LLP holder assigns the LLP license and Rockfish QS 
assigned to that LLP license for use in a rockfish cooperative, limited 
access fishery, or opt-out fishery.
    2. Establish eligibility criteria for processors to have an 
exclusive privilege to receive and process primary rockfish species and 
secondary species allocated to harvesters in this Program.
    3. Allow a person holding a LLP license with Rockfish QS to form a 
rockfish cooperative with other persons (i.e., harvesters) on an annual 
basis. Each rockfish cooperative receives an annual cooperative quota 
(CQ), which is an amount of primary rockfish species and secondary 
species dedicated to that rockfish cooperative for harvest in a given 
year. Each rockfish cooperative also receives an annual CQ that limits 
the amount of halibut PSC the cooperative can use while harvesting its 
primary rockfish species and secondary species CQ. The amount of CQ 
assigned to a cooperative is a portion of the annual TAC based on the 
sum of the Rockfish QS held by all the harvesters participating in the 
rockfish cooperative. A rockfish cooperative can form only under 
specific conditions. A person holding a LLP license that allows them to 
catch and process their catch at sea (catcher/processor vessel LLP 
license) can form a rockfish cooperative with other persons holding 
catcher/processor LLP licenses. A person holding a LLP license that 
allows them only to deliver their catch onshore (catcher vessel LLP 
license) can only form a rockfish cooperative with other persons 
holding catcher vessel LLP licenses and only in association with the 
processor to whom those persons have historically delivered most of 
their catch.
    4. Allow rockfish cooperatives to transfer all or part of their CQ 
to other rockfish cooperatives, with some restrictions.
    5. Provide an opportunity for a person not in a rockfish 
cooperative, but who holds an LLP license with Rockfish QS, to fish in 
a limited access fishery. NMFS will not allocate a specific amount of 
fish to a specific harvester in the limited access fishery. All 
harvesters in the

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limited access fishery compete with all other such harvesters to catch 
the TAC assigned to the limited access fishery. The TAC assigned to the 
limited access fishery represents the total amount of fish assigned to 
all LLP licenses designated for the limited access fishery.
    6. Establish a small entry level fishery for Central GOA rockfish 
for harvesters and processors not eligible to receive Rockfish QS under 
this Program.
    7. Allow holders of catcher/processor LLP licenses to opt-out of 
the Program, with certain limitations.
    8. Limit the ability of processors to process catch outside the 
communities in which they have traditionally processed primary rockfish 
species and associated secondary species.
    9. Establish catch limits, commonly called ``sideboards,'' to limit 
the ability of participants eligible for this Program to harvest fish 
in fisheries other than the Central GOA rockfish fisheries. The Program 
provides certain economic advantages to harvesters. Harvesters could 
use this economic advantage to increase their participation in other 
fisheries, adversely affecting the participants in other fisheries. 
Sideboards limit the total amount of catch in other groundfish 
fisheries that can be taken by eligible harvesters to historic levels, 
including harvests made in the State of Alaska parallel groundfish 
fisheries. These are fisheries authorized by the State in its waters 
concurrent with the Federal fishery for which harvest amounts are 
deducted from the Federal TAC. Sideboards limit harvest in specific 
rockfish fisheries and the amount of halibut bycatch that can be used 
in certain flatfish fisheries. General sideboards apply to all vessels 
and LLP licenses with associated legal landings that can be used to 
generate Rockfish QS. Additionally, specific sideboards apply to 
certain catcher/processor and catcher vessels and LLP licenses.
    10. Establish monitoring and enforcement provisions to ensure that 
harvesters maintain catches within annual allocations and do not exceed 
sideboard limits.
    The Program provides greater security to harvesters in rockfish 
cooperatives by creating an exclusive harvest privilege. Although 
individual participants in the limited access fishery, opt-out fishery, 
and entry level fishery do not receive a guaranteed catch allocation, 
most harvesters are likely to participate in a rockfish cooperative 
that receives CQ. The Program is anticipated to result in a slower-
paced fishery and enable the harvester to choose when to fish and 
therefore take advantage of market factors and avoid dangerous fishing 
conditions. The Program likely will provide greater stability for 
processors by spreading out production over a longer period. These 
changes will increase product quality in all sectors.

Cost Recovery and Fee Collection Provisions

    Section 304(d)(2)(A) of the Magnuson-Stevens Act requires the 
Secretary to ``collect a fee to recover the actual costs directly 
related to the management and enforcement of any...individual fishing 
quota program [or] community development quota program.'' Any 
individual fishing quota (IFQ) program must follow the statutory 
provisions set forth by section 304(d)(2) of the Magnuson-Stevens Act 
and other provisions of the Magnuson-Stevens Act related to cost 
recovery and fee collection for IFQ programs. The Central GOA rockfish 
Program does not issue IFQ under the same criteria as current IFQ 
programs (i.e., the Halibut and Sablefish IFQ Program). Thus, the 
establishment of a cost recovery Program is not included in the final 
rule. However, NMFS and NOAA General Counsel are reviewing the 
applicability of the Magnuson-Stevens Act provisions on cost recovery 
and fee collection to fishery cooperative allocations and other more 
general limited access privilege programs. If subsequent review of the 
Magnuson-Stevens Act indicates that a fee collection provision is 
required for cooperative allocation privilege programs, and the 
Rockfish Program specifically, NMFS would implement any required 
provision in a subsequent regulatory amendment to the Program.

Summary of Regulation Changes in Response to Public Comments

    This section provides a summary of the major changes made to the 
final rule in response to public comments on the proposed rule. All of 
the specific changes, and the reasons for making these changes, are 
contained under Response to Comments below. The changes are described 
by regulatory section.
    In Sec.  679.2, NMFS adopted a new term ``cooperative quota (CQ),'' 
to replace the term ``cooperative fishing quota (CQ)'' to reduce 
confusion with an acronym used by the Council in the GOA 
rationalization program under development. NMFS also clarified the 
definitions of an ``Rockfish entry level harvester,'' ``Rockfish entry 
level processor,'' ``Rockfish limited access fishery,'' and ``Ten 
percent or greater direct or indirect ownership interest for purposes 
of the Rockfish Program.'' Last, NMFS added the terms ``aggregate 
forage fish,'' ``skates,'' and ``other rockfish'' to the group of 
species defined under ``Non-allocated secondary species.''
    In Sec.  679.4, NMFS clarified the circumstances under which a CQ 
permit assigned to a rockfish cooperative is valid, and the effect on a 
CQ permit once NMFS has approved a rockfish cooperative's termination 
of fishing declaration.
    In Sec.  679.5, NMFS made minor clarifications to the rockfish 
cooperative catch report requirement, and deleted a reference to a 
process for amending a CQ permit to select vessels that are eligible to 
fish under the CQ permit. NMFS also established a more flexible 
rockfish reporting system that allows a cooperative's designated 
representative to determine how and when vessels will fish under a CQ 
permit. Authorized cooperative representatives could ``check-in'' a 
vessel when it is fishing under a CQ permit during the rockfish 
cooperative fishing year, and ``check-out'' vessels no longer fishing 
under its CQ permit. For administrative efficiency, NMFS will constrain 
the number of times a vessel may check-in and check-out based on the 
number of LLP licenses assigned to that cooperative.
    In Sec.  679.7 NMFS made several modifications. NMFS clarified that 
an eligible rockfish harvester cannot assign their LLP license to more 
than one rockfish fishery in a year. NMFS also clarified that an 
eligible rockfish harvester or processor is prohibited from 
participating in the entry level fishery, detailed the prohibitions 
that apply for monitoring provisions in the opt-out fishery, and 
established provisions to complement a rockfish cooperative's 
designated representative ability to submit vessel check-in and check-
out reports to designate fishing under a CQ permit. NMFS deleted the 
prohibition requiring retention of groundfish harvested while fishing 
under a sideboard limit. NMFS deleted prohibitions applicable to 
rockfish observer coverage and the catch monitoring control plan (CMCP) 
for rockfish entry level processors, and the prohibition on having 
primary rockfish species harvested under a CQ permit and rockfish 
incidentally retained in non-Program vessels aboard a catcher/processor 
vessel at the same time.
    In Sec.  679.21, NMFS inserted provisions to allow the 
reapportionment of halibut PSC CQ that is unused by rockfish 
cooperatives to the trawl sector after rockfish cooperatives have 
completed fishing.

[[Page 67213]]

    In Sec.  679.28, NMFS clarified that entry level processors are not 
required to have a CMCP.
    In Sec.  679.50, NMFS reduced observer coverage requirements for 
catcher/processor vessels fishing in the opt-out fishery, and clarified 
how observer coverage required under the Program affects processor 
facility observer coverage requirements in other non-Program groundfish 
fisheries.
    In Sec.  679.80, NMFS clarified that an LLP license is eligible to 
be assigned Rockfish QS only if a landing was made during the primary 
rockfish species qualifying periods in which rockfish were targeted 
(i.e., primary rockfish species were the predominant groundfish catch). 
Similarly, secondary species and halibut PSC is assigned to the 
catcher/processor or catcher vessel sector based on harvests or halibut 
PSC use attributed to specific landings in which primary rockfish 
species were targeted. Further, NMFS clarified that an onshore 
processing facility must be closed before the processing history 
associated with that facility may be transferred. NMFS made minor 
clarifications in the formula for determining a legal rockfish landing.
    In Sec.  679.81, NMFS made several modifications and changes in the 
process and formulas for allocating Rockfish QS among fishery 
participants, and the allocation of TAC for secondary species and 
halibut PSC between the catcher vessel and catcher/processor sectors. 
These changes clarified proposed regulatory text. NMFS extended the due 
date for the application to join a rockfish cooperative, limited access 
fishery, or opt-out fishery from December 1 of the year prior to 
fishing to March 1 of the year in which fishing occurs. NMFS clarified 
that CQ inter-cooperative transfers must be approved by the eligible 
rockfish processor with whom that rockfish cooperative is associated. 
NMFS made several clarifications on the process of forming a rockfish 
cooperative, specifically to requirements establishing the amount of 
Rockfish QS that must be assigned to a rockfish cooperative before it 
can form. NMFS specified the associations that can form between 
eligible rockfish harvesters and processors. NMFS deleted provisions 
concerning the transfer of processor eligibility, requirements on 
providing corporate ownership information on inter-cooperative CQ 
transfer forms, and provisions requiring modification of the CQ permit 
to add or delete the vessels fishing under that permit.
    In Sec.  679.82, NMFS clarified the calculation of use caps 
applicable to catcher vessel cooperatives and eligible rockfish 
processors; how transfers of CQ are attributed to eligible rockfish 
harvesters in a rockfish cooperative; and which fisheries are subject 
to closure once a sideboard limit is reached. NMFS inserted the BSAI 
Pacific cod sideboard limit that applies to the catcher vessel sector 
in a table with other sideboard limited species and deleted redundant 
text. NMFS established the halibut PSC sideboard limit as a use cap 
applying to the entire GOA, not to specific management areas in the 
GOA. Last, NMFS clarified the method for calculating the amount of 
groundfish and halibut PSC sideboard limits that are attributed to 
rockfish cooperatives, the rockfish limited access fishery, and 
catcher/processor sector opt-out fishery.
    In Sec.  679.84, NMFS made several modifications that designate the 
specific catch monitoring requirements that apply to catcher/processor 
vessels assigned to the opt-out fishery. Specifically, NMFS relieved 
requirements for scales and an observer sampling station. NMFS also 
clarified that groundfish harvested or halibut PSC used under a CQ 
permit is not debited against groundfish or halibut PSC sideboard 
limits in July.
    In Table 28 to part 679, NMFS corrected the closure date for 
primary rockfish species in 1999. In Table 30 to part 679, NMFS 
corrected typographic errors in the maximum retainable amount (MRA) 
percentages for other species, clarified the rockfish fisheries to 
which the MRA percentages in this table apply, and added an MRA for 
thornyhead rockfish in the rockfish limited access fishery.

Response to Comments

    Comment 1: The use of the CFQ acronym for ``cooperative fishing 
quota'' is likely to be very confusing to the public because several 
Council actions under consideration refer to ``community fisheries 
quota'' as ``CFQs.''
    Response: NMFS agrees and has changed Cooperative Fishing Quota 
(CFQ) to Cooperative Quota (CQ) to avoid confusion that may result from 
the use of the same abbreviation as has been used to 
describe``community fishing quotas.''
    Comment 2: Modify the definition in Sec.  679.2 of ``Eligible 
rockfish entry level harvester'' to limit eligibility to harvesters not 
eligible to enter a rockfish cooperative.
    Response: NMFS agrees and has modified the definition of an 
eligible entry level rockfish harvester at Sec.  679.2 and in Sec.  
679.80(b)(2) to explicitly exclude eligible rockfish harvesters.
    Comment 3: Modify the definition in Sec.  679.2 of ``Eligible 
rockfish entry level processor'' to limit eligibility to processors not 
eligible to associate with a rockfish cooperative.
    Response: NMFS agrees and has modified the definition of an 
eligible entry level rockfish processor in Sec.  679.2 to explicitly 
exclude eligible rockfish processors.
    Comment 4: Include skates, aggregate forage fish, and other 
rockfish in the definition in Sec.  679.2 of ``Non-allocated species.''
    Response: NMFS agrees and has changed the definition of ``Rockfish 
Program species'' to include these species. These species are not 
specifically allocated under the Program and should be included in the 
definition of non-allocated species.
    Comment 5: The definition of ``Sideboard limit for purposes of the 
Rockfish Program'' in Sec.  679.2 includes primary rockfish, Pacific 
cod, and halibut. Is Pacific cod included because of the sideboard 
limit for the catcher vessel sector in the BSAI in July?
    Response: Yes. BSAI Pacific cod is included in the definition of 
Sideboard limit for purposes of the Rockfish Program under Sec.  679.2 
because it is subject to a sideboard limit in the catcher vessel 
sector.
    Comment 6: In the definition in Sec.  679.2 of ``Ten percent or 
greater direct or indirect ownership interest for purposes of the 
Rockfish Program,'' NMFS uses the term ``entity'' to define a 
``person.'' This creates a circular definition in the rule. ``Person'' 
is currently defined in Sec.  679.2 as an individual, corporation, or 
other entity. The new definition of ``entity'' includes ``persons.''
    Response: NMFS agrees. Although the existing definition of an 
``entity'' contained within the definition of ``Ten percent or greater 
direct or indirect ownership interest for purposes of the Rockfish 
Program'' effectively includes the definition of a ``person'' as that 
term is currently defined in Sec.  679.2, it may reduce confusion to 
use the term ``person'' rather than ``entity.'' NMFS notes that because 
the current definition of ``person'' in Sec.  679.2 includes an 
``entity,'' any of the descriptions of an ``entity'' provided in the 
proposed rule, specifically an association, partnership, joint-stock 
company, trust, or any other type of legal entity; any receiver, 
trustee in bankruptcy or similar official or liquidating agent; or any 
organized group of persons whether incorporated or not, is presumed to 
be included in the existing definition of a ``person'' in Sec.  679.2.

[[Page 67214]]

    Comment 7: It has always been the vision of the Kodiak rockfish 
fishery participants that the linkages between eligible rockfish 
harvesters and processors may need to be modified somewhat. Thus, the 
rule needs to incorporate adequate flexibility to accommodate transfers 
of LLPs between cooperatives during initial cooperative formation and 
the time period afterwards, on the condition that the affiliated 
processor and the harvester members of the cooperative agree.
    Response: The linkages between the legal rockfish landings 
attributed to an LLP license to a specific eligible rockfish processor 
were specifically recommended by the Council. However, requiring a 
vessel to deliver to a specific processor when fishing under a CQ 
permit based on the LLP license used by that vessel may limit vessel 
operators from coordinating with specific processors.
    The Program does not modify current provisions for the transfer of 
LLP licenses, nor were such provisions recommended by the Council. LLP 
license holders may continue to transfer LLP licenses to a new LLP 
holder under Sec.  679.4(k)(7). Rockfish cooperatives do not hold LLP 
licenses, eligible rockfish harvesters do. LLP licenses are not 
transferred among rockfish cooperatives and transfers are not subject 
to approval by an eligible rockfish processor. However, the regulations 
do not require an eligible rockfish harvester to assign a vessel to the 
same rockfish cooperative as the LLP license.
    For example, if an LLP license holder wished to assign the Rockfish 
QS to a specific rockfish cooperative, that eligible rockfish harvester 
would submit an application for CQ as described in Sec.  679.81(e)(4). 
If that same eligible rockfish harvester wished to have his vessel 
named on a different LLP license as one of the vessels eligible to 
harvest fish under the CQ for another cooperative, that eligible 
rockfish harvester could list the vessel under a CQ permit for another 
cooperative and deliver catch harvested by that vessel to a different 
eligible rockfish processor. The vessel would continue to be subject to 
existing requirements to maintain a valid LLP license onboard the 
vessel. This arrangement would allow eligible rockfish harvesters to 
separate vessel operations from the rockfish cooperative to which an 
LLP license is assigned. This provides considerable flexibility for 
vessel operators.
    Comment 8: Paragraph (n) of Sec.  679.4 suggests that quota is for 
``primary or secondary species'' and ``halibut PSC'' and that the 
permit is no longer valid if the primary or secondary species or PSC is 
fully fished. Modify the section in two ways. First, if quota is issued 
it will always be for ``primary species, secondary species, and halibut 
PSC.'' Under no circumstances will quota be issued for one of these 
without the other (modify (n)(1)(i)). And, second, the permit should 
remain valid until all amounts of all species are fully fished. Quotas 
are tradable and any amount should remain usable, if it is not fished 
(modify (n)(1)(ii)(B) and (C)).
    Response: NMFS agrees. The intent of this provision is to ensure 
that a CQ permit is valid until the amounts of primary species, 
secondary species, and halibut PSC have been fully used by the rockfish 
cooperative holding that CQ permit. The regulations at Sec.  
679.4(n)(1)(ii)(B) have been modified to more clearly state that a CQ 
permit is valid until all amounts of all primary species, secondary 
species, and halibut PSC CQ have been fully used. This modification 
ensures that the CQ permit for all species is not invalidated because 
the CQ amount for one species has been reached. This modification does 
not relieve restrictions at Sec.  679.7(n)(7)(i) that prohibit a 
rockfish cooperative from exceeding its CQ amount for any species. 
Section 679.4(n)(1)(ii)(C) has been removed and the contents of Sec.  
679.4(n)(1)(ii)(D) have been combined with Sec.  679.4(n)(1)(ii)(B). 
Sections 679.4(n)(1)(ii)(D) through (G) have been renumbered 
accordingly as Sec.  679.4(n)(1)(ii)(C) through (E).
    Comment 9: Section 679.4(n)(2) allows a rockfish cooperative to 
extinguish its CQ permit by submitting a declaration of termination of 
fishing form to NMFS, which has to be reviewed and approved. How long 
will this take and what happens in the meanwhile? If the CQ permit is 
still active, do the sideboard restrictions and monitoring and 
enforcement requirements still apply? Please expedite this process so 
vessels are not stuck with unnecessary limits when they are done with 
the cooperative fishery?
    Response: NMFS intends to process all termination of fishing 
declarations in a timely manner. Processing times for the declarations 
will be short, several days at the most. Until the application is 
approved, the vessel fishing under a CQ permit will continue to be 
subject to the sideboards and necessary monitoring and enforcement 
requirements. As is noted under the response to Comment 50, cooperative 
representatives may choose to check a vessel out at the end of a 
fishing trip. Once a vessel is checked out, if no other vessel is 
checked in, vessels assigned to a rockfish cooperative would not be 
subject to monitoring and enforcement requirements that apply while 
fishing under a CQ permit. However, those vessels would still be 
subject to monitoring and enforcement provisions applicable for 
sideboard management in July. Cooperative managers may wish to ensure 
that all vessels assigned to that rockfish cooperative are checked out 
prior to submitting the termination of fishing declaration.
    Comment 10: Section 679.4(n)(2)(v) notes that all CQ on the permit 
is set to zero when the termination of fishing declaration is approved. 
If this occurs before the residual CQ is transferred, does the rockfish 
cooperative lose their CQ allocation?
    Response: Yes. If a rockfish cooperative submits and NMFS approves 
its declaration to terminate fishing prior to NMFS approving an inter-
cooperative transfer submitted by that rockfish cooperative, the CQ 
amount remaining is extinguished. If a rockfish cooperative wishes to 
transfer CQ, it should submit its transfer application prior to its 
declaration to terminate fishing.
    Comment 11: Section 679.5(r)(7)(i) incorrectly cites Sec.  
679.4(m). This citation refers to the Aleutian Island pollock fishery.
    Response: NMFS agrees and has corrected the citation in Sec.  
679.5(r)(7)(i) from Sec.  679.4(m) to Sec.  679.4(n) to refer to the 
Program.
    Comment 12: Section 679.5(r)(7)(i) requires all vessel operators 
under the Program to file rockfish cooperative catch reports. This 
provision should apply only to vessels assigned to rockfish 
cooperatives.
    Response: NMFS agrees and has modified Sec.  679.5(r)(7)(i) to 
clearly indicate that only vessel operators whose vessels are 
designated to receive catch under a CQ permit are required to submit a 
rockfish cooperative catch report.
    Comment 13: Section 679.5(r)(8)(ii)(B) notes that annual rockfish 
cooperative reports are due by December 15\th\. Is the time estimated 
for completing the report consistent with AFA and Crab Rationalization 
Program requirements?
    Response: Yes, the time required to complete the annual rockfish 
cooperative report is similar to that under the AFA and Crab 
Rationalization Program. The information collected in the report is 
similar to that required under the AFA and Crab Rationalization Program 
annual cooperative report.
    Comment 14: Section 679.7(n)(1)(iv) requires full retention of any 
groundfish caught by a vessel that is subject to a sideboard limit as 
described at Sec.  679.82(d) through (h), as applicable, if

[[Page 67215]]

directed fishing for that groundfish species in that area is 
authorized. Does this require full retention of sideboarded species? 
Why is this broad statement even in the rule?
    Response: The intent of this provision was to ensure that 
groundfish subject to a sideboard limit under Sec.  679.82(d) through 
(h) are retained and counted against the sideboard limit. The 
groundfish subject to a sideboard limit are listed in Sec.  
679.82(d)(6) and include rockfish species in the Western GOA and West 
Yakutat District, and Pacific cod in the BSAI for vessels in the 
catcher vessel sector. Flatfish that are harvested in the GOA are not 
subject to a groundfish limit; rather, the harvest of flatfish is 
restricted by halibut PSC sideboard limits established under Sec.  
679.82(d)(8). This provision does not require vessels to retain all 
flatfish harvested during July.
    This provision was intended to ensure that NMFS accurately accounts 
for the total catch in a sideboard limited groundfish fishery. Full 
retention would ensure that all catch is fully counted. However, NMFS 
can obtain information from groundfish discard rates using observer 
data. All vessels subject to sideboard limits in July will have 
observer coverage. This observer coverage is sufficient to monitor any 
amount of discards of groundfish and include discard estimates in the 
total harvest of a groundfish species subject to a sideboard limit. 
Thus, NMFS is not requiring the full retention of groundfish harvested 
that are subject to a sideboard limit by deleting the prohibition in 
Sec.  679.7(n)(1)(iv) and renumbering Sec.  679.7(n)(1)(v) through 
Sec.  679.7(n)(1)(vii) as Sec.  679.7(n)(1)(iv) through Sec.  
679.7(n)(1)(vi).
    Comment 15: Section 679.7(n)(1)(iv) states that vessel operators 
must retain any groundfish caught by a vessel that is subject to a 
sideboard limit as described Sec.  679.81(d) through (h) if directed 
fishing for that groundfish species in that area is authorized. It is 
unclear in this provision whether retention is required only for GOA 
rockfish species and BSAI Pacific cod which are catch side-boarded, or 
if this provision also applies to flatfish species since they are side-
boarded via deep and shallow halibut sideboards caps.
    Response: NMFS has addressed this comment in the response to 
Comment 14.
    Comment 16: Section 679.7(n)(1)(v) prohibits use of an LLP license 
in ``any fishery'' other than the rockfish fishery to which it is 
assigned. To the extent that this prevents a rockfish vessel from 
fishing other species, this is inconsistent with the analysis. The 
analysis suggests that trip-by-trip declarations are made to ensure 
proper accounting of catch and adequate monitoring. Declared rockfish 
trips would be subject to different accounting and monitoring.
    Response: NMFS agrees in part. NMFS has modified this prohibition 
to clearly state that an LLP license may not be used in ``any Rockfish 
Program fishery'' other than the Rockfish Program fishery to which that 
LLP license was originally assigned. The intent of this prohibition was 
not to limit the ability of Program participants from engaging in non-
Program fisheries. This modification makes clear the intent of this 
provision is to limit the ability of an eligible rockfish harvester to 
use his LLP license to fish in more than one Rockfish Program fishery 
in a calendar year (i.e., fishing under a CQ permit for a rockfish 
cooperative, limited access fishery, opt-out fishery, entry level trawl 
fishery, or entry level longline gear fishery). Fishing in more than 
one of these fisheries would undermine the ability of NMFS to 
effectively manage cooperatives and the limited access fishery because 
Rockfish QS must be assigned to specific fisheries at the start of each 
fishing season to properly allocate fishery catch limits.
    The portion of the comment relating to catch accounting of vessels 
on a trip-by-trip basis is addressed in response to Comment 50.
    Comment 17: Section 679.7(n)(1)(v) appears to prevent a non-trawl 
entry level vessel from fishing in fisheries other than the Rockfish 
Program fishery from January 1 until the entry level fishery closes 
(possibly in November). This provision will make the entry level 
fishery impracticable for all non-trawl vessels. Managers should be 
able to account catch against the non-trawl entry level TAC in a manner 
similar to that currently used. Additionally, Sec.  679.7(n)(1)(v) 
seems overly broad with respect to trawl entry level and trawl limited 
access vessels. Those fisheries open in May and July respectively and 
will likely close shortly after opening. This provision seems to limit 
the ability of those vessels to participate in any other fishery during 
the year. In addition, a vessel should be able to withdraw from these 
fisheries at any time with notice to the agency.
    Response: Under the clarification made in response to Comment 16, 
NMFS will only require that if a vessel is directed fishing in a 
specific Rockfish Program fishery as defined in Sec.  679.2 (e.g., 
entry level longline gear fishery), it cannot directed fish in another 
Rockfish Program fishery (e.g., entry level trawl fishery) in the same 
calendar year.
    Comment 18: Paragraph (n) of Sec.  679.7 does not appear to be a 
clear prohibition on eligible harvesters participating in the entry 
level fishery, or eligible processors taking deliveries from the entry 
level fishery. The provision in Sec.  679.7(n)(5) suggests that 
eligible processors can take deliveries from the entry level fishery. 
Only ineligible processors can take entry level deliveries. These 
prohibitions could be included here.
    Response: NMFS agrees. Although the definitions of an ``eligible 
entry level rockfish harvester'' and ``eligible entry level rockfish 
processor'' in Sec.  679.2 have been modified to more explicitly 
exclude ``eligible rockfish harvesters'' and ``eligible rockfish 
processors,'' respectively, from participating in the entry level 
fishery as detailed in Sec.  679.83, a prohibition would further 
clarify this issue. This prohibition would also be consistent with the 
description of the eligibility to participate in the entry level 
Rockfish Program fishery in the preamble to the proposed rule at 71 FR 
33064, which states that ``the Program would establish an entry level 
fishery for all persons who are not eligible rockfish harvesters or 
processors.''
    These new prohibitions are inserted in Sec.  679.7(n)(1)(vi) and 
(vii) and state that it is prohibited to receive any primary rockfish 
species harvested in the entry level rockfish fishery if that person is 
an eligible rockfish processor, or harvest any primary rockfish species 
in the entry level rockfish fishery if that person is an eligible 
rockfish harvester.
    Comment 19: Section 679.7(n)(2)(ii) requires a catcher/processor 
vessel in the limited access fishery to meet the all monitoring and 
enforcement requirements from July 1 until directed fishing for all 
primary rockfish targets for the limited access fishery are closed. 
Catcher/processor vessels with less than 5 percent of the aggregate 
Pacific ocean perch Rockfish QS allocation can fish in the Bering Sea 
or in other GOA fisheries. Those catcher/processor vessels should be 
able to forego the monitoring and enforcement requirements if they are 
not fishing in the Program.
    Response: Nothing in the FMP or Council motion recommending this 
action indicates that catcher/processor vessels using LLP licenses with 
less than 5 percent of the Pacific ocean perch Rockfish QS in the 
catcher/processor sector are relieved of the monitoring and enforcement 
requirements that apply to other catcher/processor vessels. If a 
catcher/processor vessel is fishing in the limited access fishery, or 
fishing in July and

[[Page 67216]]

subject to a sideboard limit, that vessel is subject to the monitoring 
and enforcement requirements established for that sector (See Sec.  
679.82(d) through (h)).
    Comment 20: Section 679.7(n)(7)(i) prohibits exceeding the amount 
of CQ assigned to a rockfish cooperative. Can the CQ amount assigned to 
a rockfish cooperative be amended by a documented transfer from another 
rockfish cooperative?
    Response: Yes. Rockfish cooperatives can increase or decrease the 
amount of CQ held by engaging in inter-cooperative transfers. See Sec.  
679.81(i)(4)(iii) for additional details.
    Comment 21: Paragraphs (n)(7)(iv) and (vi) of Sec.  679.7 prohibit 
fishing with a CQ permit if there are non-CQ fish on board. This means 
a catcher/processor will have to offload prior to entering a Rockfish 
Program fishery, and prior to completing fishing under a Rockfish 
Program fishery and beginning fishing in a non-Program groundfish 
fishery. If a vessel chooses to leave and enter a Rockfish Program 
fishery multiple times it would be forced to offload repeatedly. 
Offloads require several days away from the grounds and several 
thousand dollars worth of fuel. The level of monitoring and enforcement 
required is more than adequate to determine what fish was landed while 
in the Program. Requiring the offload is expensive and unnecessary.
    Response: NMFS agrees, Sec.  679.7(n)(7)(iv) is modified to apply 
only to catcher vessels, and Sec.  679.7(n)(7)(vi) is removed. This 
effectively authorizes a catcher/processor vessel to have species 
harvested under a CQ permit and those not harvested under a CQ permit 
onboard the vessel at the same time. Therefore, if a catcher/processor 
vessel checked-out while at sea at the end of a week-ending date, it 
would not need to offload prior to fishing in other non-Program 
fisheries. This comment is more fully addressed in response to Comment 
50.
    Comment 22: There should be a mechanism to make halibut PSC CQ 
unused by rockfish cooperatives available to other trawl target 
fisheries. Halibut PSC could be released back to the open access trawl 
fisheries either when the rockfish fishery closes on November 15, or 
when the CQ permit is revoked through an approved rockfish cooperative 
termination of fishing declaration. If the remaining halibut PSC were 
made available to the other trawl target fisheries, it would offer an 
incentive for the rockfish cooperatives to work toward minimizing 
halibut PSC CQ use and bearing the additional cost that comes with 
these bycatch reduction efforts.
    Response: NMFS agrees. If a rockfish cooperative has not fully used 
its allocation of halibut PSC CQ in a year, or if that rockfish 
cooperative submits a termination of fishing declaration, that portion 
of the halibut PSC not used in the Program could be reallocated for use 
in other non-rockfish fisheries. This is consistent with the overall 
goals of halibut PSC management to apportion halibut by gear type. To 
facilitate the management of this ``roll-over'' NMFS will allow halibut 
PSC remaining after November 15, or after a cooperative has submitted a 
declaration to terminate fishing, to be reallocated to the final 
seasonal apportionment of halibut PSC for use by trawl gear in the GOA. 
Currently, the final season for halibut PSC apportionment begins on 
October 1. NMFS will review termination of fishing declarations and 
allow halibut PSC remaining to be redistributed for general use 
beginning on October 1. After November 15, any remaining halibut PSC 
allocated to rockfish cooperatives will be available for general use by 
vessels using trawl gear. NMFS has modified regulations at Sec.  
679.21(d)(5)(iii) to allow this reapportionment of unused halibut PSC, 
and has modified regulations at Sec.  679.4(n)(2)(v) to clarify that 
once a rockfish cooperative termination of fishing declaration has been 
submitted, the halibut PSC that was allocated as CQ, is reapportioned 
to the trawl sector according the provisions of the new Sec.  
679.21(d)(5)(iii)(B).
    Comment 23: The title of Sec.  679.50 states that the Groundfish 
Observer Program is applicable through December 31, 2007. Is this the 
current expiration date of the Observer Program?
    Response: At its June, 2006 meeting, the Council recommended 
removing the December 31, 2007, expiration date. NMFS currently is 
drafting a proposed rule that would remove this expiration date. That 
rulemaking will be part of a separate action.
    Comment 24: There are several questions regarding the new 
requirements for plant observers:
    Comment 24-1: When are an observer's duties considered complete?
    Response 24-1: Daily observer coverage begins when the first 
rockfish delivery occurs and ends 12 hours later regardless of the 
nature of the deliveries (i.e., Program or non-Program deliveries) 
during that period. Program deliveries after that 12 hour time in the 
calendar day will require a second observer. Other non-Program 
deliveries may occur after this 12 hour period has lapsed and the 
observer may decide to sample those non-Program deliveries. This 
clarification does not modify the existing regulations.
    Comment 24-2: Present regulations require specific coverage levels 
based on processing volumes. For example, if a plant processes less 
than 500 mt of groundfish in a month, then no observer coverage is 
required. We are assuming that rockfish deliveries would not count 
towards the processing volume level and therefore would not trigger 
observer requirements for other groundfish deliveries. We also assume 
that rockfish observer coverage would not count towards meeting the 
observer requirements for other groundfish delivery requirements. Is 
this the agency intent?
    Response 24-2: The intent of the regulations is to ensure that non-
Program deliveries count for non-Program coverage, but deliveries of 
Program groundfish would not be counted for purposes of meeting minimum 
observer coverage requirements for non-Program groundfish. Any non-
Program deliveries that occur when the Program observer is present at 
that processing facility during that calendar day will be counted 
towards the non-Program observer coverage requirements for that month. 
NMFS has clarified the provisions of Sec.  679.50(d)(7)(iv) to define 
the accounting of observer coverage.
    Comment 24-3: There may be times that a processor will not need a 
rockfish observer for an entire 12 hour period. Can the processor use 
this observer for other groundfish deliveries if the 12 hour limit has 
not been reached?
    Response 24-3: If a Program observer is not needed to observe 
Program deliveries during an entire 12 hour period, that processor may 
use this observer for other non-Program groundfish deliveries. During 
periods when an observer is monitoring both Program and non-Program 
deliveries, the observer coverage on non-Program catch may apply toward 
their observer requirements.
    Comment 24-4: Is it possible that the processor can use an observer 
for monitoring Program deliveries and after 12 hours use that same 
observer for other groundfish observer requirements?
    Response 24-4: Yes. At the end of a 12 hour period during a 
calendar day, a Program observer cannot observe any more Program 
deliveries until the next calendar day. However, that observer could 
monitor deliveries in other non-Program groundfish fisheries subject to 
existing observer coverage requirements.
    Comment 24-5: Is it the intent of the observer program to use 
vessel observers to monitor the entire vessel offload?

[[Page 67217]]

    Response 24-5: No. Program observers onboard vessels are limited to 
collating their at-sea sample data and transmitting these data to NMFS 
from shore.
    Comment 25: While industry understands that monitoring and 
enforcement of a quota share program is important for managers and 
conservation, the 100 percent observer coverage requirement for the 
vessels creates a large financial burden for them. The Program is 
complicated because of the number of QS species required to accommodate 
the mixed nature of the fishery. However, Program observer requirements 
are the highest standard ever imposed on a small catcher vessel fleet 
in the North Pacific and are more restrictive than the requirements for 
the halibut IFQ fleet and the AFA pollock fleet. Both industry and 
managers must develop creative solutions that meets monitoring and 
enforcement requirements but that are affordable for industry 
participants. The Program offers the appropriate environment to 
experiment with creative solutions to find a way to reduce the 
monitoring and enforcement costs for this and other quota programs.
    Response: NMFS agrees that the continued investigation of 
innovative solutions to the monitoring and enforcement issues 
associated with a complex quota-based program and suite of species such 
as rockfish is critical and we will continue to actively work with the 
fishing industry to investigate new approaches. However, at this time 
no feasible alternative to 100 percent observer coverage exists that 
can ensure that all catch is accounted for against the quotas. NMFS 
agrees that monitoring requirements, including observer coverage levels 
proposed for the Program, are more stringent than those imposed on 
either the halibut and sablefish IFQ fleets or the AFA pollock fleet. 
However, NMFS notes that neither of these programs are multispecies 
fisheries, nor is the ability to fully harvest quotas potentially 
constrained by the availability of halibut PSC. This constraint 
distinguishes the Program from all other quota-type programs developed 
to date and results in the need for the more rigorous monitoring and 
enforcement standards than have been imposed in previous programs.
    Comment 26: The rockfish fishery is probably one of the most 
complicated fisheries to observe for species identification and catch 
monitoring. We believe that lead level-two observers should be required 
for the shoreside vessels and processors, as is required for the 
catcher processor fleet.
    Response: NMFS disagrees. Level-two certified observers are trained 
in at-sea sample station requirements, at-sea motion compensated scale 
testing, and observer duties at-sea under the AFA and CDQ Program. 
Training for level-two observers does not include new duties for 
shoreside vessel and plant observers under the Program. Any shoreside 
duties for level-two observers are specific to CDQ Program 
requirements. Species identification and sampling methodologies for the 
shoreside component are covered during the three week training course 
that all certified observers receive.
    Comment 27: The preamble to the proposed rule (71 FR 33044) on 
pages 33065 and 33068, state that the observer coverage requirements 
for shoreside processors apply to those processors taking rockfish 
deliveries from all categories of harvesters, including those in the 
entry level fishery. However, the proposed modifications to Sec.  
679.50(c)(7)(ii) of the proposed rule listing the catcher vessel 
categories subject to additional shoreside processor observer coverage 
requirements does not include entry level harvesters. Entry level 
processors taking deliveries from entry level harvesters, particularly 
small longline gear vessels, should not be subject to these observer 
requirements added by the implementation of a Program for which they 
are not eligible.
    Response: NMFS agrees. Entry level processors are expected to only 
take a few deliveries that result from a modest amount of catch, and 
NMFS expects that current monitoring requirements will be sufficient to 
meet data needs. The page of the proposed rule preamble referenced in 
the comment (71 FR 33065) is inconsistent with the requirements of 
Sec.  679.50(d)(7). Additionally, NMFS notes that without a dedicated 
rockfish observer present to monitor the sorting and weighing at the 
plant, a CMCP is not a functional monitoring tool. Therefore, NMFS 
removed the provisions at Sec.  679.84(e) that require a CMCP for an 
rockfish entry level processor. NMFS modified Sec.  679.7(n)(6) to 
limit this provision to catcher vessels delivering catch under a CQ 
permit, or in the rockfish limited access fishery. NMFS notes that 
these changes do not relieve processing facilities receiving entry 
level fishery catch from other monitoring and enforcement requirements 
that may apply to those facilities while receiving or processing fish 
in other fisheries.
    Comment 28: Section 679.80(b)(1)(i)(B) of the proposed rule 
provides that a landing of a primary species during a directed fishery 
opening qualifies an LLP license for the Program. The provision should 
provide that an LLP license is qualified to participate in the Program 
and receive Rockfish QS only if it has a targeted legal rockfish 
landing during a directed fishery, where a legal rockfish landing is 
considered to be targeted only if the catch of the primary species was 
the predominant catch in that trip.
    Response: NMFS agrees. Clarifying that an LLP license is eligible 
to participate in the Program and receive Rockfish QS only if primary 
rockfish species were the predominant catch in at least one legal 
rockfish landing will reduce any potential claims for assigning 
Rockfish QS to LLP licenses based on legal rockfish landings that are 
attributed to incidental harvest in other groundfish fisheries. This is 
also consistent with the intent of the Council as described in Section 
3.3.1.1 of the Council motion recommending this action. Section 3.3.1.1 
indicates that targeted catch should be used to determine whether an 
LLP license is eligible to be used to participate in the Program. NMFS 
has modified Sec.  679.80(b)(1)(i)(B) to require that an LLP license is 
eligible to qualify to receive Rockfish QS only if it is assigned a 
legal rockfish landing of any primary rockfish species in which the sum 
of the catch of all primary rockfish species for that legal rockfish 
landing exceeded the catch of all other groundfish according to the 
official rockfish record.
    NMFS modified the criteria for establishing eligibility to 
participate in the entry-level fishery under Sec.  679.80(b)(2)(iii) to 
indicate that a person cannot participate in the entry level fishery if 
that person holds an LLP license with landings attributed to it that 
reflect a directed rockfish target fishery and that person is otherwise 
eligible to receive Rockfish QS.
    This comment also indirectly addresses the allocation of secondary 
species and halibut PSC between the catcher/processor and catcher 
vessel sector by noting that targeted catch is the basis for 
determining eligibility to participate in the Program and receive 
allocations. NMFS has modified Sec.  679.81(b)(2) and (b)(3) to 
allocate an amount of secondary species to the catcher/processor and 
catcher vessel sectors based on secondary species that were harvested 
during the directed fishing seasons for primary rockfish species in 
which the sum of the catch of all primary rockfish species for that 
legal rockfish landing exceeded the catch of all other groundfish. This 
modification is consistent with the Section 3.3.1.2 of the Council 
motion

[[Page 67218]]

recommending this action which states that ``secondary species history 
is allocated based on retained catch over retained catch while 
targeting the primary rockfish species.'' This clarification also is 
consistent with data presented in Table 27 in the final EA/RIR prepared 
for this action.
    Similarly, NMFS has modified Sec.  679.81(c)(2) and (c)(4) to 
allocate an amount of halibut PSC to the catcher/processor and catcher 
vessel sectors based on halibut PSC that was used during the directed 
fishing seasons for primary rockfish species in which the sum of the 
catch of all primary rockfish species for that legal rockfish landing 
exceeded the catch of all other groundfish. This modification is 
consistent with the Section 3.3.1.3 of the Council motion recommending 
this action which states that halibut PSC allocations between the 
catcher/processor and catcher vessel sector ``will be based on historic 
average usage, calculated by dividing the total number of metric tons 
of halibut mortality in the CGOA rockfish target fisheries.'' This 
clarification also is consistent with data presented in Table 28 in the 
final EA/RIR prepared for this action.
    Comment 29: Paragraphs (b)(3) through (b)(5) of Sec.  679.80 should 
note that the assignment of legal rockfish landings for secondary 
species to the sector occurs only if the LLP license is eligible for 
the Program.
    Response: NMFS agrees. NMFS would only assign legal landings to an 
LLP license if that LLP license was eligible to be used in the Program 
under the criteria listed in Sec.  679.80(b)(1). These criteria prevent 
NMFS from assigning a legal landing to an LLP license that is not held 
by an eligible person. For clarity, NMFS notes that an LLP license must 
be eligible to have legal landings attributed to it under Sec.  
679.80(b)(3), (b)(4)(ii), and (b)(5)(ii). The allocation of secondary 
species to the catcher/processor and catcher vessel sector is discussed 
further in the response to Comment 28.
    Comment 30: Paragraph (c) of Sec.  679.80 should more clearly note 
that processing history transfers that are separate from the plant 
ownership only apply if the facility has closed and the purchaser 
remains in the same community. Paragraph (d)(4)(ii) of Sec.  679.80 
should limit the transfer of processing history. In general, a 
processing facility is eligible if it meets the processing criteria and 
its processing history remains attached to its originating facility, 
unless the facility is closed. If a facility is closed, the history can 
only be transferred to a facility in the community.
    Response: NMFS agrees. Section 5.4 of the Council motion notes that 
``[i]f a processing facility has closed down and another processing 
facility has acquired that processing history through purchase, the 
history belongs to the facility that purchased that history.''
    The Council's intent is best met by limiting transfers of 
processing history to two cases: one in which the processing history 
can only be transferred with the sale of the processing facility at 
which that catch history was earned; and the other is to limit the 
transfer of processing history separate from the sale