Fisheries of the Exclusive Economic Zone Off Alaska; Groundfish of the Gulf of Alaska; Amendment 88, 81248-81293 [2011-32873]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 76, Number 248 (Tuesday, December 27, 2011)]
[Rules and Regulations]
[Pages 81248-81293]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-32873]



[[Page 81247]]

Vol. 76

Tuesday,

No. 248

December 27, 2011

Part VI





Department of Commerce





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National Oceanic and Atmospheric Administration





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50 CFR Part 679





Fisheries of the Exclusive Economic Zone Off Alaska; Groundfish of the 
Gulf of Alaska; Amendment 88; Final Rule

Federal Register / Vol. 76 , No. 248 / Tuesday, December 27, 2011 / 
Rules and Regulations

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 110314196-1725-02]
RIN 0648-BA97


Fisheries of the Exclusive Economic Zone Off Alaska; Groundfish 
of the Gulf of Alaska; Amendment 88

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

ACTION: Final rule.

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SUMMARY: NMFS issues regulations implementing Amendment 88 to the 
Fishery Management Plan for Groundfish of the Gulf of Alaska (GOA FMP). 
Amendment 88 is the Central Gulf of Alaska Rockfish Program (Rockfish 
Program). These regulations allocate exclusive harvest privileges to a 
specific group of license limitation program license holders who used 
trawl gear to target Pacific ocean perch, pelagic shelf rockfish, and 
northern rockfish during particular qualifying years. The Rockfish 
Program retains the conservation, management, safety, and economic 
gains realized under the Central Gulf of Alaska Rockfish Pilot Program 
(Pilot Program) and resolves identified issues in the management and 
viability of the rockfish fisheries. This action is necessary to 
replace particular Pilot Program regulations that are scheduled to 
expire at the end of 2011. This action is intended to promote the goals 
and objectives of the Magnuson-Stevens Fishery Conservation and 
Management Act, the GOA FMP, and other applicable law.

DATES: Effective on December 27, 2011.

ADDRESSES: Electronic copies of Amendment 88, the final Environmental 
Assessment (EA) and Regulatory Impact Review (RIR), and the Initial 
Regulatory Flexibility Analysis (IRFA) prepared for the Central Gulf of 
Alaska Rockfish Program are available from the NMFS Alaska Region Web 
site at https://alaskafisheries.noaa.gov. The proposed rule to implement 
Amendment 88 also may be accessed at this Web site.

FOR FURTHER INFORMATION CONTACT: Gwen Herrewig, (907) 586-7228.

SUPPLEMENTARY INFORMATION: The groundfish fisheries in the exclusive 
economic zone of Alaska are managed under the GOA FMP and the Fishery 
Management Plan for Groundfish of the Bering Sea and Aleutian Islands 
Management Area (BSAI FMP). The North Pacific Fishery Management 
Council (Council) prepared both FMPs under the authority of the 
Magnuson-Stevens Fishery Conservation and Management Act (MSA), 16 
U.S.C. 1801 et seq. Regulations implementing the FMPs appear at 50 CFR 
part 679. General regulations governing U.S. fisheries also appear at 
50 CFR part 600. This final rule implements Amendment 88, the Rockfish 
Program, to manage the rockfish fisheries in the Central GOA, which 
covers an area from 147[deg] W. long. to 159[deg] W. long.

Background

    Prior to 2007, the Central GOA rockfish fisheries were managed 
under the License Limitation Program (LLP). The LLP required harvesters 
to hold an LLP license to participate in GOA fisheries, but did not 
provide specific exclusive harvest privileges to LLP license holders. 
Harvesters with LLP licenses competed with each other in a ``race for 
fish'' to harvest the total allowable catch (TAC) assigned to the 
fishery. Processors also competed with each other. The competition 
created economic inefficiencies and incentives to increase harvesting 
and processing capacity. Harvesters increased the fishing capacity of 
their vessels and accelerated their rate of fishing to outcompete other 
vessels. Similarly, processors increased their processing capacity to 
outcompete other processors. The rapid pace of fishing reduced the 
ability of harvesters and processors to improve product quality and 
extract more value from the fishery by producing high-value products 
that require additional processing time.
    Since 2007, NMFS has managed the rockfish fisheries under the Pilot 
Program. Under the Pilot Program, NMFS allocated 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. A detailed description of the Pilot Program is provided in 
the preamble to the Pilot Program's proposed rule (71 FR 33040; June 7, 
2006).
    The Pilot Program was designed to enhance resource conservation and 
improve economic efficiency in the Central GOA rockfish fisheries by 
establishing cooperatives that receive exclusive harvest privileges. 
Section 802 of the Consolidated Appropriations Act of 2004 (Section 
802, Pub. L. 108-199) required that the Secretary of Commerce 
(Secretary), in consultation with the Council, establish a program for 
the rockfish fisheries that recognized the historical participation of 
fishing vessels and fish processors in the Central GOA rockfish 
fisheries. Following extensive public comment, the Council recommended 
the Pilot Program to the Secretary on June 6, 2005. NMFS published 
regulations implementing Amendment 68 and the Pilot Program on November 
20, 2006 (71 FR 67210). Fishing began under the Pilot Program on May 1, 
2007. It created a structure for fishery participants to form 
cooperatives to efficiently manage harvesting activities. The 
allocation of cooperative quota (CQ), which is the annual catch limit 
that may be harvested by rockfish cooperatives, removes the incentives 
to maximize catch rates to capture a share of the available catch. As a 
result, vessel operators make operational choices to improve fishing 
practices.
    The Council adopted the proposed Central GOA Rockfish Program on 
June 14, 2010, to replace the existing Pilot Program that will expire 
December 31, 2011. The Pilot Program and the Rockfish Program are a 
type of a limited access privilege program (LAPP) developed to enhance 
resource conservation and improve economic efficiency in the Central 
GOA rockfish fisheries. LAPPs, also called catch share programs, are 
limited access systems in which Federal permits are issued to harvest a 
quantity of fish representing a portion of the TAC. As noted earlier, 
the Pilot Program was authorized under 2004 appropriations legislation. 
Since that time, the Magnuson Stevens Fishery Conservation and 
Management Reauthorization Act of 2006 (MSRA) (Pub. L. 109-479) was 
enacted. The MSRA amended the MSA to include a new section 303A 
describing requirements for LAPPs initiated after January 12, 2007. The 
Council designed the Rockfish Program to meet the requirements of 
section 303A.
    The Rockfish Program implemented by this final rule includes 
similar implementation, management, monitoring, and enforcement 
measures to those developed under the Pilot Program. For example, the 
Rockfish Program will (1) continue to assign rockfish quota share (QS) 
and CQ to participants for rockfish primary and secondary species; (2) 
allow a participant holding an LLP license with rockfish QS to form a 
rockfish cooperative with other persons; (3) allow holders of catcher/
processor LLP licenses to opt-out of rockfish cooperatives each year; 
(4) include an entry level longline fishery; (5) establish sideboard 
limits, which are limits designed to prevent participants in the 
Rockfish Program from increasing their historical effort in other GOA

[[Page 81249]]

groundfish fisheries; and (6) include monitoring and enforcement 
provisions.
    After considering management issues identified under the Pilot 
Program, and new program requirements to ensure the Rockfish Program 
complies with section 303A of the MSA, the Council recommended a 
Rockfish Program that includes modified provisions of the Pilot Program 
as well as new provisions. This recommendation was based on the 
analysis of rockfish management under the LLP, the Pilot Program, and 
anticipated changes under the Rockfish Program. The rationale 
underlying the Council's decision and details of this analysis are 
briefly discussed in this preamble and are contained in the Analysis 
prepared for this action (see ADDRESSES).

Key Differences Between the Pilot Program and the Rockfish Program

    Table 1 outlines some key differences between the Pilot Program and 
the Rockfish Program. In summary, the Rockfish Program will, in 
contrast to the Pilot Program:
     Change the qualifying years for eligibility for QS;
     Use a different suite of years to determine sideboard 
limits and the allocation of QS;
     Assign to rockfish cooperatives a specific portion of the 
Central GOA TAC of species historically harvested in the rockfish 
fisheries;
     Assign a specific amount of halibut prohibited species 
catch (PSC) to cooperatives and conserve a portion of the halibut that 
will remain unallocated;
     Restrict the entry level fishery to longline gear only;
     Relax the requirements to form a cooperative;
     Specify the location where harvesters in cooperatives must 
deliver rockfish;
     Remove the requirement that harvesters in a catcher vessel 
cooperative deliver to a specific processor;
     Discontinue the limited access fishery;
     Simplify sideboards, and slightly modify sideboards for 
catcher/processors;
     Implement a cost recovery program for all participants 
except for opt-out vessels and the entry level longline fishery;
     Establish a catch monitoring and control plan (CMCP) 
specialist staff position; and
     Be authorized for 10 years, from January 1, 2012, until 
December 31, 2021.

   Table 1--Key Differences Between the Pilot Program and the Rockfish
                                 Program
------------------------------------------------------------------------
    Management provision          Pilot program       Rockfish program
------------------------------------------------------------------------
Eligibility to receive QS...  Participants must     Participants must
                               have made targeted    have made targeted
                               legal landings of     legal landings of
                               rockfish primary      rockfish primary
                               species during the    species during the
                               qualifying years      qualifying years
                               1996-2002.            2000-2006, or
                                                     participated in the
                                                     Pilot Program entry
                                                     level trawl fishery
                                                     in 2007, 2008, or
                                                     2009.
 Voluntary exclusion  May not apply for or  LLP license holder
 from the Rockfish Program.    receive initial       may forgo QS and be
                               allocation of QS,     exempted from
                               but may still have    specific sideboard
                               sideboard             limits if legal
                               limitations.          landings were made
                                                     both in 2000-2006
                                                     and in the entry
                                                     level trawl fishery
                                                     during 2007, 2008,
                                                     or 2009. Must apply
                                                     for exclusion
                                                     during initial
                                                     application
                                                     process.
Initial QS Allocations......  Based on landings     97.5% of the initial
                               (best 5 of 7) years   allocation is based
                               between 1996 and      on landings (best 5
                               2002.                 of 7 years) between
                                                     2000 and 2006.
 Entry level trawl    N/A.................  Participants in the
 ``transition'' QS                                   Pilot Program entry
 allocation.                                         level trawl fishery
                                                     will be transferred
                                                     into catch share
                                                     management whereby
                                                     2.5% of the
                                                     allocation will be
                                                     given to licenses
                                                     that participated
                                                     in the Pilot
                                                     Program entry level
                                                     trawl fishery in
                                                     2007, 2008, 2009.
Rockfish Cooperatives.......  Yes.................  Yes.
 Forming a catcher    May only form         May only form a
 vessel (CV) cooperative.      cooperatives with     cooperative with
                               other CVs and the     other CVs with an
                               processor to whom     association with
                               they historically     any shoreside
                               delivered catch       processor located
                               from 1996-2000. No    within the
                               minimum number of     geographic
                               LLP licenses          boundaries of the
                               required for CVs to   City of Kodiak. No
                               form a cooperative.   minimum number of
                                                     LLP licenses
                                                     required.
 Annual CV
 allocation of CQ:
    Primary.................  Based on member QS..  Based on member QS.
    Secondary...............   Pacific cod   3.81% of
                               based on QS.          Pacific cod TAC.
                               Sablefish     6.7% of
                               based on QS.          sablefish TAC.
                               Rougheye/     7.84% of
                               shortraker maximum    thornyhead TAC.
                               retainable amount     Rougheye/
                               (MRA), may not        shortraker MRA may
                               exceed 9.72% of TAC.  not exceed 9.72% of
                               Thornyhead    TAC.
                               based on QS.
    Halibut PSC.............  Based on member QS.   Based on member QS.
                               Calculation based     Calculation based
                               on 1996-2002 data.    on 2000-2006 data
                                                     with a 12.5%
                                                     reduction. 117.3 mt
                                                     to cooperatives.
                                                     16.8 mt remains
                                                     unallocated and
                                                     stays ``in the
                                                     water.''
 Forming a catcher/   May join a            May join a
 processor (C/P) cooperative.  cooperative with      cooperative with
                               other C/Ps. Minimum   other C/Ps. No
                               of 2 LLP licenses     minimum number of
                               required for C/Ps.    LLP licenses
                                                     required.
 Annual C/P
 allocation of CQ
    Primary.................  Amount based on       Amount based on
                               member QS.            member QS.
    Secondary...............   Pacific cod   Pacific cod
                               MRA.                  MRA.
                               Sablefish     3.51% of
                               based on QS.          sablefish TAC.
                               30.03% of     40% of
                               shortraker TAC.       shortraker TAC.
                               58.87% of     58.87% of
                               rougheye TAC.         rougheye TAC.
                               Thornyhead    26.50% of
                               based on QS.          thornyhead TAC.

[[Page 81250]]

 
    Halibut PSC.............  Based on member QS.   Amount based on
                               Calculation based     member QS.
                               on 1996-2002 data.    Calculation based
                                                     on 2000-2006 data
                                                     with a 12.5%
                                                     reduction.
                                                    74.1 mt allocated.
                                                    10.6 mt remains in
                                                     the water.
Transfer of CQ..............   C/P may       C/P may
                               transfer to C/P or    transfer to C/P or
                               CV.                   CV, except no
                               CV may        shortraker or
                               transfer to CV        rougheye may
                               only. No minimum      transfer from C/P
                               number of LLP         to CV.
                               licenses required     CV may
                               to transfer CQ.       transfer to CV only
                                                     Minimum of
                                                     2 LLP licenses in
                                                     each cooperative
                                                     required to
                                                     transfer CQ.
Limited access fishery......  Yes.................  None.
Opt-out option for C/Ps.....  Yes, but subject to   Yes, but subject to
                               opt-out sideboards.   opt-out sideboards.
Halibut PSC % rollover of     100% of unused CQ     55% of unused CQ
 unused CQ.                    halibut PSC will be   halibut PSC will be
                               added to the last     added to the last
                               seasonal              seasonal
                               apportionment         apportionment
                               during the current    during the current
                               fishing year.         fishing year.
                                                     Resulting 45% of
                                                     unused CQ halibut
                                                     PSC remains in the
                                                     water.
Use caps for rockfish         A person may not      A person may not
 primary species.              hold or use more      hold or use more
                               than:                 than:
                                  5% of         4% of
                                  the QS assigned       the QS assigned
                                  to the CV sector.     to the CV sector
                                  20% of        40% of
                                  the QS assigned       the QS assigned
                                  to the C/P            to the C/P
                                  sector.               sector.
                              CV cooperative may    CV cooperative may
                               not hold or use       not hold or use
                               more CQ than:         more CQ than:
                                  30% QS        30% QS
                                  assigned to CV        assigned to CV
                                  sector.               sector.
                              A vessel may not      A vessel may not
                               harvest more than:    harvest more than:
                                  60% CQ     8% CQ
                                  issued to the C/   issued to the CV
                                  P sector.          sector.
                                                     60% CQ
                                                     issued to the C/P
                                                     sector.
                              Processors may not    Processors may not
                               receive or process    receive or process
                               more than:            more than:
                                  30% CQ        30% CQ
                                  issued to CV          issued to CV
                                  sector (rockfish      sector (rockfish
                                  primary species       primary species,
                                  only).                Pacific cod, and
                                                        sablefish).
Sideboards (in effect July 1- Yes.................  Yes.
 31).
 Catcher vessel.....  Exemption from        Exemptions from
                               sideboard limits:     sideboard limits:
                               (1) Any American     (1) Any AFA CVs not
                               Fisheries Act (AFA)   exempt under AFA
                               CVs not exempt        regulations;
                               under AFA            (2) vessels that
                               regulations.          have been selected
                                                     as being
                                                     voluntarily
                                                     excluded from the
                                                     Rockfish Program;
                                                     and
                                                    (3) any vessels
                                                     assigned an LLP
                                                     license that has
                                                     been selected as
                                                     being voluntarily
                                                     excluded from the
                                                     Rockfish Program.
                               Prohibited   Prohibited fishing
                               from fishing in the   restrictions:
                               BSAI groundfish       West
                               fisheries and         Yakutat District/
                               limits on Pacific     Western GOA
                               cod.                  (rockfish primary
                               Prohibited    species).
                               from fishing in the   Deep-water
                               West Yakutat/         complex--arrowtooth
                               Western GOA (for      flounder, deep
                               rockfish).            water flatfish, rex
                               Deep and      sole.
                               shallow water
                               complex halibut PSC.
 C/P................   Prohibited    West
                               from fishing in the   Yakutat/Western GOA
                               BSAI groundfish       limitation
                               fisheries and non-    (rockfish primary
                               program groundfish    species).
                               fisheries in the      Deep and
                               GOA.                  shallow water
                               Deep and      halibut PSC limit.
                               shallow water         Prohibited
                               halibut PSC limit.    from fishing
                                                     rockfish primary
                                                     species in the
                                                     Western GOA and
                                                     West Yakutat
                                                     District for non-
                                                     Amendment 80
                                                     vessels.
                             -------------------------------------------
 C/P Opt-out vessels    Subject to sideboards and receives the
                                portion of each rockfish sideboard limit
                                 not assigned to rockfish cooperatives.
                             -------------------------------------------
                              Prevents directed      Prevents
                               fishing in GOA        directed fishing in
                               groundfish            GOA groundfish
                               fisheries without     fisheries without
                               previous              previous
                               participation in      participation in
                               1996-2002.            2000-2006.
                                                     Prohibit
                                                     directed fishing
                                                     for rockfish
                                                     primary species in
                                                     Western GOA and
                                                     West Yakutat for
                                                     non-Amendment 80
                                                     vessels.
Entry level fishery.........  Yes, trawl and        Yes, longline gear
                               longline gear.        only.
 Annual application.  Yes. Processor        None. May deliver to
                               affirmation           any shoreside
                               required.             processing facility
                                                     in the GOA.
 TAC................  5% of the rockfish    Annual set aside of
                               primary species TAC   the TAC increases
                               goes to the entry     annually, to a
                               level fishery,        predetermined cap,
                               divided equally       if the fishery
                               between trawl         harvests >= 90% of
                               (2.5%) and longline   their allocation of
                               gear (2.5%).          a species in the
                                                     previous year.
Monitoring and enforcement..  Observer coverage:
                                  100% CV    100% CV
                                  in July and when   when checked-in.
                                  checked-in.
                               200% C/P
                               cooperative for CQ
                               or sideboards, and
                               100% C/P
                               opt-out vessels in
                               July only.
                             -------------------------------------------
 Shoreside/            Catch Monitoring and Control Plan (CMCP)
 stationary processors:          is required except for the entry level
                                           longline fishery.
                             -------------------------------------------

[[Page 81251]]

 
                              Notify the observer   In the CMCP,
                               at least one hour     describe how the
                               prior to offloading   CMCP specialist
                               of each delivery of   will be notified of
                               groundfish            deliveries.
                               harvested in a
                               Pilot Program
                               fishery. An
                               observer must be
                               available to
                               monitor each
                               delivery.
Cost recovery...............  None................  Yes, fee liability
                                                     payment is a
                                                     maximum of 3% of
                                                     the ex-vessel value
                                                     of rockfish primary
                                                     and secondary
                                                     species. Payment
                                                     due on February 15
                                                     of the following
                                                     year. No fees for
                                                     the entry level
                                                     longline fishery.
Duration....................  5 years.............  10 years.
------------------------------------------------------------------------

Rockfish Program Overview

    A detailed review of the provisions of Amendment 88 and its 
implementing rule is provided in the preamble to the proposed rule (76 
FR 52148, August 19, 2011), and is not repeated here. The proposed rule 
is available from the NMFS Alaska Region Web site (see ADDRESSES). The 
following section provides a brief overview of the Rockfish Program.
    The rockfish fisheries are conducted in Federal waters near Kodiak, 
Alaska, primarily by trawl vessels, and to a lesser extent by longline 
vessels. Exclusive harvesting privileges are allocated under the 
Rockfish Program for rockfish primary and secondary species. The 
rockfish primary species are northern rockfish, Pacific ocean perch, 
and pelagic shelf rockfish. The rockfish secondary species include 
Pacific cod, rougheye rockfish, shortraker rockfish, sablefish, and 
thornyhead rockfish. The Rockfish Program also allocates halibut PSC, 
which is a portion of the total GOA halibut mortality limit annually 
specified under Sec.  679.21. Halibut PSC is allocated to participants 
based on historic halibut mortality rates in the primary rockfish 
species fisheries.

Eligibility for Rockfish QS

    The Rockfish Program allocates harvest privileges to holders of LLP 
groundfish licenses with a history of Central GOA rockfish legal 
landings associated with those licenses (Rockfish legal landings are 
groundfish caught and retained in compliance with state and Federal 
regulations). The allocation of legal landings to an LLP license allows 
the holder of that LLP license to participate in the Rockfish Program 
and receive an exclusive harvest privilege under certain conditions. 
The Rockfish Program assigns QS to LLP licenses for rockfish primary 
and secondary species based on legal landings associated with that LLP. 
LLP license holders are eligible to receive rockfish QS if the LLP 
license was used to make legal landings of rockfish primary species 
during the qualifying years 2000 through 2006, or participated in the 
Pilot Program entry level trawl fishery in 2007, 2008, or 2009. An 
application to receive rockfish QS must be submitted to NMFS by 5 p.m. 
on January 17, 2012, or be postmarked by that date. Rockfish QS that is 
assigned to a specific LLP license cannot be divided or transferred 
separately from that LLP license, unless the QS is in excess of a use 
cap specified in Sec.  679.82(a)(2).
    LLP licenses that receive initial allocations based on legal 
landings (best 5 of 7 years) between 2000 and 2006 are given 97.5 
percent of the total allowable catch (TAC). While selecting qualifying 
years, and in balancing the interests of historic and recent 
participants, the Council considered fishing patterns over the 11-year 
period before the Pilot Program, from 1996 through 2006. The Council 
also considered how modifying the Pilot Program's 1996 through 2002 
qualifying years might potentially affect rockfish Pilot Program QS 
holders under the new Rockfish Program. The Council explained 
throughout the development of the Rockfish Program that, given the 
limited duration of the Pilot Program established by Congress, the 
Council could use different qualifying years to allocate rockfish QS 
under a new program. Ultimately, the Council selected the qualifying 
years of 2000 through 2006 after (1) considering both historic and more 
recent fishing patterns; (2) changes in the management of the fishery 
with the implementation of the LLP in 2000; and (3) the fishing 
patterns of catcher/processor vessels beginning in 2000.
    LLP licenses used to make rockfish legal landings in the Pilot 
Program entry level trawl fishery, in 2007, 2008, or 2009, will receive 
an initial allocation of 2.5 percent of the TAC under the Rockfish 
Program. In the Pilot Program, the entry level trawl fishery had a 
small amount of TAC. The Council chose to eliminate the entry level 
trawl fishery in the Rockfish Program due to concerns about the 
potential for more than a limited number of participants to register 
for, and participate in, the entry level trawl fishery. Given the small 
amount of TAC assigned to the entry level trawl fishery in the Pilot 
Program, NMFS may need to close the fishery as a precautionary measure 
to avoid exceeding the entry level trawl allocation if more than two or 
three vessels participated in the fishery. As recommended by the 
Council, the final rule eliminates the entry level trawl fishery but 
provides an opportunity for LLP license holders who participated in the 
Pilot Program entry level trawl fishery in 2007, 2008, or 2009 to 
receive rockfish QS. The Council determined that assigning rockfish QS 
to participants in the Pilot Program entry level trawl fishery will 
reduce the need for NMFS to establish and manage a separate ``race for 
fish'' fishery. The potential fishing effort in such a fishery could 
exceed the limited allocation available to the fishery. The Rockfish 
Program assigns rockfish QS to the Pilot Program entry level trawl 
fishery participants to ensure that those participants benefit from 
catch share management under the Rockfish Program.
    LLP license holders who made rockfish legal landings in both of the 
specified seasons--2000 through 2006 and in the entry level trawl 
fishery during 2007, 2008, or 2009--can choose to forgo rockfish QS and 
avoid specific sideboard limitations. The Council recommended this 
provision to address a situation in which a limited number of LLP 
license holders, possibly no more than one, would prefer to have the 
option to forego an allocation of rockfish QS in order to continue to 
participate in the West Yakutat District and Western GOA rockfish 
fisheries consistent with recent participation patterns. An LLP license 
holder must apply for the voluntary exclusion during the initial 
application process.

[[Page 81252]]

Rockfish Cooperative Fishing Quota

    Rockfish QS may only be harvested through cooperative membership. 
No minimum number of LLP licenses is required to form a cooperative. On 
an annual basis, an LLP holder will assign the LLP license and rockfish 
QS for use in a rockfish cooperative. Catcher/processors may only form 
a cooperative with other catcher/processors. Catcher vessels may only 
form a cooperative with other catcher vessels in association with any 
shoreside processor located within the geographic boundaries of the 
City of Kodiak. The Council included the port delivery requirement to 
address industry concern that harvesters participating in the Rockfish 
Program continue to deliver catch to the traditional port of Kodiak. 
The association requirement between the catcher vessel cooperative and 
the shoreside processor only indicates that a processor may be willing 
to take delivery of the catch. The association requirement does not 
limit a catcher vessel cooperative to only one processor, and it does 
not obligate the cooperative to deliver catch to that specific 
processor. See Eligibility for Processors below for more information on 
the association between a catcher vessel cooperative and shoreside 
processors.
    The designated representative of a rockfish cooperative must submit 
a timely application to NMFS each fishing year. The annual application 
for cooperative fishing quota is due to March 15, 2012, for the first 
year of the program, and then March 1 for all subsequent years. Each 
rockfish cooperative will receive an annual CQ, which is an amount of 
rockfish primary and secondary species, and halibut PSC that may be 
harvested by that rockfish cooperative in that fishing year. NMFS will 
base rockfish CQ on the collective rockfish QS of the LLP licenses held 
by the cooperative members. To reduce total halibut mortality in the 
Rockfish Program, NMFS will allocate halibut PSC to each sector based 
on an 87.5 percent reduction of the average total halibut PSC used from 
2000 through 2006. The Council considered a range of alternative 
approaches to reduce the total halibut PSC CQ assigned to each sector. 
Ultimately, the Council recommended reducing the amount to 87.5 percent 
of the 2000 through 2006 average annual usage. This decision balances 
the need to provide adequate halibut PSC for use by rockfish 
cooperatives, while recognizing patterns of reduced halibut PSC use 
once exclusive harvest privileges are established, and meeting broader 
goals to reduce halibut mortality. The Council combined this reduction 
in the amount of halibut CQ initially available to rockfish 
cooperatives with other measures detailed later in this preamble to 
reduce the amount of halibut PSC that may be reassigned to non-Rockfish 
Program fisheries. The fishing season for vessels participating in a 
rockfish cooperative is authorized each year from May 1 through 
November 15.
    Rockfish cooperatives may transfer all or part of their CQ to other 
rockfish cooperatives, with some restrictions. A minimum of 2 LLP 
licenses in each cooperative is required to transfer CQ. Transfer of CQ 
would be valid only during the calendar year of the transfer. All post-
delivery transfers must be completed by December 31 of the calendar 
year of the transfer. Halibut PSC CQ is not available for transfer 
after November 15 of each year, or after a cooperative termination of 
fishing declaration has been submitted to NMFS.

Eligibility for Processors

    Processors are not required to meet historical eligibility 
requirements to receive primary or secondary species fish harvested by 
rockfish cooperatives. The Council recommended that a catcher vessel 
cooperative may only form if a ``rockfish processor'' is an 
``associate'' of the rockfish cooperative and is designated on the 
application for CQ. A rockfish processor is any shoreside processor 
with a Federal processor permit that receives groundfish harvested 
under the authority of a rockfish CQ permit. In order to receive 
rockfish CQ, the shorebased processor must be located within the 
boundaries of the City of Kodiak and have an approved CMCP. Any 
processor may qualify to receive CQ and is not required to be in 
business at the effective date of this rule. The association 
requirement is intended to encourage harvesters and processors to 
discuss and possibly coordinate fishing plans as part of the 
application process to form a rockfish cooperative, but without the 
specific mandate established under the Pilot Program. Membership 
agreements must specify that processor affiliated cooperative members 
cannot participate in price setting negotiations except as permitted by 
antitrust laws.
    The Council also sought to address concerns raised by processors 
that allocation of exclusive harvest privileges would provide an undue 
competitive advantage for harvesters and could reduce the incentive for 
harvesters to continue to deliver to the traditional port of Kodiak. As 
a result, this final rule requires harvesters to deliver all rockfish 
primary and secondary species CQ in the catcher vessel sector to a 
shorebased processor operating within the geographic boundaries of the 
City of Kodiak. The port delivery requirement is intended to protect 
the fishing community of Kodiak and the traditional shorebased 
processors from changes in the location of shorebased processing 
activities that could occur under the Rockfish Program. This provision 
ensures that Kodiak processors and the community continue to benefit 
from the fishery. During the 2000 through 2006 period, all catch was 
delivered within Kodiak to shorebased processors; therefore, this 
provision does not represent a change from traditional harvest 
patterns. NMFS defines the boundaries of the City of Kodiak using the 
boundary specified by the State of Alaska on the date this final rule 
is published.
    During the development of the Rockfish Program the Council reviewed 
and considered a range of options to address concerns raised by 
shorebased processors about potential consolidation of processing 
capacity under catch share management and the effects of catch share 
allocations on processing operations. The Council considered management 
measures that included the linkage between shorebased processors and 
catcher vessel cooperatives required under the Pilot Program, regional 
landing requirements, allocating harvest shares to processors, an 
annual cooperative/processor association (that may be changed, without 
penalty or forfeiture), and caps on the amount of landings that may be 
processed by any single processor. Ultimately, the Council recommended 
a specific landing requirement within the City of Kodiak and processing 
caps to preserve flexibility for harvesters to deliver to multiple 
markets. The purpose of the port landing requirement is to maintain the 
traditional shorebased processing activity within Kodiak and limit the 
consolidation of processing effort among rockfish processors that may 
be detrimental to existing processors and harvesters.
    Overall, the purposes of the Rockfish Program are to stabilize the 
processing work force, increase shoreside deliveries of rockfish, and 
remove processing conflicts with GOA salmon production. The Council 
determined that fixed linkages between harvesters and processors that 
require a harvester to deliver to a particular processor, or allocating 
harvest quota to processors, were not necessary or appropriate to meet 
the overall goals and purposes of the Council for the Rockfish Program.

[[Page 81253]]

The Council and NMFS expect cooperatives to coordinate with processors 
under the Rockfish Program as they have under the Pilot Program. These 
relationships have reduced processing capacity conflicts between the 
rockfish fishery and the salmon fishery, which is active during summer 
months; and have provided a stable processing workforce by ensuring 
rockfish deliveries during months when other fisheries are less active. 
Section 2.4.6 of the EA/RIR/IRFA describes the likely benefits to 
processing operations under the Rockfish Program.

Reassignment of Halibut PSC CQ to the Last Seasonal Apportionment

    In an effort to reduce halibut mortality and provide incentives for 
participants in rockfish cooperatives to continue to operate in ways to 
minimize halibut mortality, the Council recommended reducing the amount 
of halibut PSC CQ that NMFS may add to the last seasonal apportionment 
during the current fishing year. The last seasonal apportionment is 
October 1 through December 31 of each year. Some of the participants 
eligible for the Rockfish Program are also active in a number of 
flatfish trawl fisheries that occur after November 1. Vessel operators 
that are active in rockfish cooperatives and these flatfish trawl 
fisheries have consistently undertaken efforts to conserve their 
halibut PSC CQ while fishing in a rockfish cooperative in order to 
provide additional halibut PSC during the latter portion of the year. 
The Council recognized the importance of reassigning halibut PSC to 
provide additional harvest opportunities in these flatfish trawl 
fisheries. The Council recommended that NMFS add 55 percent of unused 
halibut PSC CQ to the last seasonal apportionment during the current 
fishing year. In the interest of reducing halibut bycatch in these 
fisheries, the remaining 45 percent of halibut PSC CQ will not be 
available for the last season apportionment, or for transfer, or for 
the commercial halibut IFQ fishery. This amount of halibut is conserved 
and contributes to the halibut biomass. The Rockfish Program limits 
halibut mortality both by limiting the amount of halibut PSC that is 
initially allocated as halibut PSC CQ and by limiting the amount of 
halibut PSC that may be reassigned.

Opt-Out Vessels

    Each fishing year, catcher/processors may opt-out of participating 
in rockfish cooperative. Participants that choose to ``opt-out'' forgo 
the opportunity to fish rockfish primary species. NMFS will assume a 
rockfish eligible harvester has opted-out of participating in a 
rockfish cooperative if their LLP license with assigned rockfish QS is 
not named on a timely Annual Application for Cooperative Fishing Quota. 
Catcher/processor opt-out vessels are subject to opt-out sideboards and 
will receive the portion of each rockfish sideboard limit not assigned 
to rockfish cooperatives.

Use Caps

    The Rockfish Program applies four types of use caps to limit the 
amount of rockfish QS and CQ that may be harvested by harvesters and 
processors: (1) A cap on the amount of QS an eligible rockfish 
harvester may hold; (2) a cap on the amount of rockfish primary species 
CQ that a rockfish cooperative may hold; (3) a cap on the amount of 
rockfish primary species CQ that a vessel may harvest; and (4) a limit 
on the amount of rockfish primary species an eligible rockfish 
processor may receive and process. The intent of the use caps under the 
Rockfish Program is to limit the degree of consolidation that could 
occur in the Central GOA rockfish fisheries. The Rockfish Program 
includes grandfather provisions that will allow persons to retain 
amounts of initial allocations of rockfish QS in excess of the use 
caps. Grandfather provisions apply to persons that held QS in excess of 
the use caps prior to the date of final Council action, June 14, 2010.

Sideboard Limitations

    Sideboards limit the ability of rockfish harvesters to expand their 
participation into other fisheries during the month of July when the 
Central GOA rockfish fishery was traditionally open. Sideboards apply 
to Federally-permitted vessels fishing in Federal waters and waters 
adjacent to the Central GOA when the harvest of rockfish primary 
species by that vessel is deducted from the Federal TAC. They limit 
both the LLP license with rockfish QS assigned to it, and the vessel 
used for the legal landings that generated the rockfish QS. Sideboard 
limitations fall into two broad categories: (1) A limit that constrains 
the amount of harvest in specific regions and fisheries during July; 
and (2) directed fishery closures that prohibit fishing in specific 
fisheries and regions during July. The catcher vessel and catcher/
processor sectors as well as catcher/processor opt-out vessels are all 
subject to sideboards.

Monitoring and Enforcement

    Monitoring and enforcement provisions will ensure that harvesters 
maintain catches within annual allocations and do not exceed sideboard 
limits. NMFS uses 5 primary tools for monitoring participants in the 
Rockfish Program. Specifically, NMFS:
    1. Requires observers aboard vessels that are operating in a 
rockfish cooperative or a rockfish sideboard fishery to adequately 
account for catch and bycatch in the fishery;
    2. Requires that vessels participating in a rockfish cooperative or 
a rockfish sideboard fishery carry and use a NMFS-approved vessel 
monitoring system (VMS) transmitter;
    3. Requires that catcher/processors in a rockfish cooperative or 
rockfish sideboard fishery follow specified catch handling procedures 
prior to processing;
    4. Requires the weighing of all catch from rockfish cooperatives on 
NMFS or State approved scales; and
    5. Requires that shoreside processors receiving rockfish CQ operate 
under a NMFS approved Catch Monitoring and Control Plan (CMCP).

Cost Recovery

    The Rockfish Program is established under the provisions of section 
303A of the MSA. Section 303A requires that NMFS collect fees for 
limited access programs to recover the actual costs directly related to 
the management, data collection and analysis, and enforcement 
activities. NMFS will use a portion of the cost recovery fees collected 
under the Rockfish Program to hire personnel to monitor rockfish 
landings. The rockfish CMCP specialist will monitor program deliveries 
to ensure compliance with the CMCP by any processor receiving program 
landings, assist processors with rockfish species identification to 
ensure accurate catch sorting and quota accounting, and report the 
findings to NMFS. Section 304(d)(2) of the MSA also limits the cost 
recovery fee so that it may not exceed 3 percent of the ex-vessel value 
of the fish harvested under the Rockfish Program. NMFS will assess fees 
on the ex-vessel value of rockfish primary species and rockfish 
secondary species CQ harvested by rockfish cooperatives in the Central 
GOA and waters adjacent to the Central GOA when rockfish primary 
species caught by that vessel are deducted from the Federal TAC. The 
cost recovery fees will not apply to halibut PSC CQ since that halibut 
cannot be retained for sale and, therefore, does not have an ex-vessel 
value. The cost recovery fees will not apply to the entry level 
longline fishery and opt-out vessels because those participants do not 
receive rockfish CQ.

Entry Level Longline Fishery

    The entry level fishery is available for harvesters who are fishing 
for rockfish

[[Page 81254]]

primary species using longline gear only. The entry level longline 
fishery did not create the same level of concern under the Pilot 
Program as the entry level trawl fishery because longline harvests 
never exceeded one percent of the TAC for any of the rockfish primary 
species during the qualifying years. Therefore, the entry level 
longline fishery will continue under the Rockfish Program and the 
season is from January 1 to November 15 of each year. A participant is 
not required to submit an application to NMFS. Participants in the 
entry level longline fishery may deliver their harvest to any 
shorebased processing facility in any community in the GOA. The annual 
set aside of the TAC for the entry level longline fishery will increase 
annually, to a predetermined cap as specified in Table 28e to Part 679, 
if the fishery harvests at least 90 percent of their allocation of a 
species in the previous year. The smaller TAC allocation is more in 
line with historical catch rates among the longline sector in the entry 
level fishery, since the sector has had minimal participation in the 
entry level fisheries.

Rockfish Program Duration and Review

    The Rockfish Program is authorized for 10 years, from January 1, 
2012, until December 31, 2021. The Council will conduct a formal review 
of the Rockfish Program 3 years after implementation to assess whether 
the program is achieving the goals of the MSA and the problem 
statement, as identified in the Analysis (ADDRESS). All permits will 
expire after 10 years and will not be renewed unless the Council and 
the Secretary take action to continue the Rockfish Program. Section 
303A(f)(1) of the MSA states that permits are renewable unless revoked, 
limited, or modified. If the Council does not recommend continuing the 
Rockfish Program, all Rockfish Program permits will expire 10 years 
after the implementation of the Rockfish Program and will not be 
renewed.

Anticipated Changes in the Pelagic Shelf Rockfish Complex

    The Rockfish Program allocates QS based on harvests of all three 
species in the pelagic shelf rockfish (PSR) complex--dusky, widow, and 
yellowtail rockfish. At the October 2011 meeting, the Council 
recommended the removal of widow and yellowtail rockfish from the PSR 
species group and the placement of these two species in the ``other 
rockfish'' species group. Extensive GOA trawl survey data and other 
information now exist that indicate dusky rockfish does not generally 
share the same geographic distribution and habitat with the other two 
PSR species, yellowtail and widow rockfish. Upon the removal of widow 
and yellowtail rockfish, the PSR species group would then consist of a 
single species, dusky rockfish. NMFS intends to propose GOA FMP and 
regulatory amendments to dissolve the PSR species group and substitute 
a description of the dusky rockfish target fishery, and revise the 
description of the ``other rockfish'' fishery in the GOA FMP. If 
approved by the Secretary, NMFS would change every occurrence of 
``pelagic shelf rockfish'' that appears in the Rockfish Program 
regulations and tables to ``dusky rockfish.'' The management measures 
associated with PSR and dusky rockfish would be identical. NMFS noted 
in the Rockfish Program proposed rule (76 FR 52148, August 19, 2011) 
that this action would not affect, or change, QS eligibility for 
rockfish primary species in the Rockfish Program.

Removal of the Limited Access Fishery

    The Council recommended eliminating the limited access fishery for 
the catcher/processor sector in the Rockfish Program because the EA/
RIR/IRFA showed the limited access fishery created incentives for the 
catcher/processor sector to avoid joining a cooperative. The Central 
GOA limited access fishery under the Pilot Program opened in the 
beginning of July, and then closed when NMFS estimated that 
participants fully harvested the target rockfish allocations in that 
fishery. Participants with small allocations of rockfish QS could 
choose to fish in the limited access fishery and harvest rockfish in an 
amount greater than their individual historical allocation. 
Additionally, NMFS could not predict participation in the limited 
access fishery from year to year. The Council recognized the 
possibility of a ``race for the fish'' that could result in the fishery 
exceeding the TAC before the fishery could be closed. Ultimately, the 
Council decided to discontinue the limited access fishery. NMFS 
published a notice of availability for Amendment 88 on July 28, 2011 
(76 FR 45217). The public comment period on Amendment 88 ended on 
September 26, 2011, and the Secretary approved Amendment 88 on October 
26, 2011. On August 19, 2011, NMFS published a proposed rule to 
implement Amendment 88 (76 FR 52148). The public comment period ended 
on September 19, 2011. Additional information on this action was 
provided in the preamble of the proposed rule and is not repeated here.
    NMFS received 13 comment letters from 11 unique individuals 
regarding Amendment 88 and the proposed rule. These letters contained a 
total of 55 unique comments. These comments are addressed below.

Response to Comments

    Comment 1: The definitions for the catcher vessel sector and 
catcher/processor sector at Sec.  679.2 are wrong. The catcher vessel 
sector statement ``those rockfish eligible harvesters who hold an LLP 
without a catcher/processor designation'' would preclude catcher/
processor LLP licenses that have generated legal rockfish landings but 
have only operated as a catcher vessel. The catcher/processor sector 
definition does not separate out the issue of catcher/processor LLP 
licenses operating as catcher vessels, but appears to lump all catcher/
processor licenses together. The Pilot Program definitions were a 
better fit.
    Response: NMFS agrees. The definitions in the proposed rule were 
based on an initial review of rockfish legal landings data. NMFS did 
not anticipate that any catcher/processor LLP licenses generated 
rockfish legal landings while operating as catcher vessels, but the 
definition should allow for such a circumstance. Under the Rockfish 
sector definition, at Sec.  679.2, NMFS has replaced the proposed 
definitions for catcher vessel sector and the catcher/processor sector 
with the definitions used in the Pilot Program for the reasons 
indicated above.
    Comment 2: Rockfish CQ accounts should not be set to zero for 
rockfish primary or secondary species after a cooperative submits a 
Declaration of Termination of Fishing to NMFS as suggested in the 
preamble text on page 52178. CQ should be available for transfer until 
the end of the calendar year as specified in the proposed regulatory 
text at Sec.  679.4(n)(1)(ii) and (iv). Additionally, halibut PSC CQ 
may need to be available for transfer to cover cooperative overages. 
Observer data can change after debriefing and a halibut CQ overage 
could occur if no halibut PSC is available for transfer.
    Response: NMFS agrees, in part. The preamble text to the proposed 
rule is incorrect and does not accurately explain the proposed 
regulations for a termination of fishing declaration, as specified in 
Sec.  679.4(n)(2). In addition, some of the proposed regulatory text is 
conflicting. The cooperative rockfish CQ accounts for rockfish primary 
and secondary species will not be set to zero upon a party's submission 
of a Declaration of Termination of Fishing. A cooperative may transfer 
rockfish primary species and rockfish secondary species CQ until the 
end of the calendar

[[Page 81255]]

year, even after submitting a Declaration of Termination of Fishing. 
However, halibut PSC CQ may not be used for transfer after a 
termination of fishing declaration is submitted to NMFS, or after 
November 15 of each year. The Council recommended that 55 percent of 
the halibut PSC would be reassigned and made available for vessels 
fishing during the last halibut PSC apportionment period, which is 
October 1 through December 31 of each year. However, in the interest of 
reducing halibut bycatch in these fisheries, the remaining 45 percent 
halibut PSC CQ will not be available for the last season apportionment 
or for transfer. If a halibut PSC overage occurs after a cooperative 
submits a termination of fishing declaration, the adjustment will be 
made in the amount of halibut PSC reassigned for the last halibut PSC 
apportionment. In the case of an overage, the halibut PSC reassignment 
would be reduced.
    NMFS made a number of regulatory changes in the final rule in 
response to this comment. NMFS deleted proposed text at Sec.  
679.4(n)(2)(iii) through (v) instead of only paragraph (n)(2)(v), to 
clarify that rockfish CQ accounts will not be set to zero for rockfish 
primary and secondary species after a rockfish cooperative termination 
of fishing declaration is submitted to NMFS. To clarify and remove 
duplicate provisions, NMFS moved regulatory language from Sec.  679.4 
regarding the reapportionment of halibut PSC and the transfer of CQ to 
Sec. Sec.  679.21 and 679.81 of the final rule. Provisions at Sec.  
679.4(n)(1)(iv)(A) and (B) are specific to limitations on transfers of 
CQ after November 15, or upon approval of a rockfish cooperative 
termination of fishing declaration. NMFS has determined that this is 
more appropriately covered under Sec.  679.81(i)(4)(ii)(H), which is 
the section regulating transfers of CQ between cooperatives. Provisions 
at Sec.  679.4(n)(1)(iv)(C) duplicate regulatory text proposed at Sec.  
679.21(d)(5)(iii)(B); therefore, paragraph (n)(1)(iv)(C) has been 
removed from the final rule. Section 679.4(n)(1)(iv)(D) is specific to 
the reallocation of prohibited species bycatch management under the 
Rockfish Program. Such reallocation is covered in regulations on 
prohibited species bycatch management at Sec.  679.21; therefore, 
paragraph (n)(1)(iv)(D) has been moved to Sec.  679.21(d)(5)(iii)(C).
    Comment 3: The 48-hour check-in requirement, as specified in Sec.  
679.5(r)(8)(i)(A) and (B), is operationally very difficult for catcher/
processors when a vessel is changing areas from the Rockfish Program to 
Central GOA fishing, or vice versa. Perhaps the 48-hour requirement is 
a good management tool for the catcher vessel sector, but since the 
catcher/processor sector submits the check-ins electronically, the 48-
hour delay seems unnecessary and does not seem worth the operational 
cost. We recommend eliminating this requirement altogether, or at least 
reducing the lead time from 48 hours to 12 hours.
    Response: NMFS agrees. NMFS reduced the 48-hour check-in 
requirement for catcher/processor cooperatives, to a one hour check-in 
requirement, as specified in Sec.  679.5(r)(8)(i)(A)(2). This one hour 
check-in requirement will still provide adequate time for NMFS to 
properly track and account for catch against a cooperative CQ permit. 
Catcher vessel cooperatives are still subject to the 48-hour check-in 
requirement, as specified in Sec.  679.5(r)(8)(i)(A)(1).
    Comment 4: The proposed rule is confusing regarding check-out 
requirements for the catcher/processor sector. Check-out notification 
is required within 6 hours after the last haul of rockfish CQ, but does 
not take effect at the end of a weekly reporting period or offload, 
whichever comes first. With two observers on board and real-time 
reporting, the check-out should take effect upon submission of the 
notice itself.
    Response: NMFS agrees. The effective date for check-out 
designations in the catcher/processor sector, as specified in Sec.  
679.5(r)(8)(i)(B), has been changed to be effective upon submission of 
the check-out designation to NMFS. Catcher/processors are encouraged to 
retain the submission receipt to ensure that the check-out designation 
was received by NMFS.
    Comment 5: In Sec.  679.5(r)(8)(ii), the captain of the vessel 
should be able to submit the check-in and check-out designations, 
instead of the cooperative designated representative, because a vessel 
may want to check-out at midnight when the representative is 
unavailable or unaware that the vessel decided to finish. The vessel 
also might have an operational reason where they had to check-out 
unplanned.
    Response: NMFS disagrees. The cooperative designated representative 
must coordinate fishing plans with their members. This is because the 
cooperative designated representative is responsible for ensuring that 
once a vessel is checked in, it is used to harvest fish under the CQ 
permit, and once a vessel is checked-out it can no longer be used to 
fish for that cooperative's CQ unless checked in again. Cooperative 
managers should be able to coordinate fishing schedules with their 
members to avoid subjecting them to monitoring and enforcement 
requirements beyond those required to effectively manage the Rockfish 
Program. No change to this provision has been made.
    Comment 6: NMFS should clarify the resulting difference between 
someone who timely submits an application affirming their exclusion 
from the Rockfish Program and someone who does not apply for rockfish 
QS by the regulatory deadline.
    Response: The voluntary exclusion from the Rockfish Program, as 
specified under Sec.  679.80(d)(4)(ii), is available only during the 
initial QS application process for a person who holds an LLP license 
that made