Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea and Aleutian Islands Management Area; Amendment 99, 63951-63958 [2013-25271]
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Federal Register / Vol. 78, No. 207 / Friday, October 25, 2013 / Proposed Rules
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 679
[Docket No. 121029593–3851–01]
RIN 0648–BC73
Fisheries of the Exclusive Economic
Zone Off Alaska; Bering Sea and
Aleutian Islands Management Area;
Amendment 99
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed rule; request for
comments.
AGENCY:
NMFS issues a proposed rule
that would implement Amendment 99
to the Fishery Management Plan for
Groundfish of the Bering Sea and
Aleutian Islands Management Area
(BSAI FMP). If approved, Amendment
99 would enable the holders of license
limitation program (LLP) licenses
authorizing a designated vessel to catch
and process Pacific cod in the BSAI
hook-and-line fisheries to use newly
built or existing vessels that are not
eligible under current vessel length and
capacity restrictions. This action is
necessary to promote safety-at-sea by
encouraging the replacement of older
vessels with newer and more efficient
vessels that are able to meet modern
vessel safety standards. This action is
intended to facilitate the increased
retention and utilization of groundfish
by allowing sector participants to use
larger vessels with increased processing
and hold capabilities. This action is
intended to promote the goals and
objectives of the BSAI FMP, the
Magnuson-Stevens Fishery
Conservation and Management Act
(Magnuson-Stevens Act), and other
applicable laws.
DATES: Submit comments on or before
November 25, 2013.
ADDRESSES: You may submit comments,
identified by FDMS Docket Number
NOAA–NMFS–2012–0220, by any of the
following methods:
Electronic Submissions: Submit all
electronic public comments via the
Federal eRulemaking Portal. Go to
www.regulations.gov/
#!docketDetail;D=NOAA-NMFS-20120220, click the ‘‘Comment Now!’’ icon,
complete the required fields, and enter
or attach your comments
Mail: Address written comments to
Glenn Merrill, Assistant Regional
Administrator, Sustainable Fisheries
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SUMMARY:
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Division, Alaska Region NMFS, Attn:
Ellen Sebastian. Mail comments to P.O.
Box 21668, Juneau, AK 99802–1668.
Fax: Address written comments to
Glenn Merrill, Assistant Regional
Administrator, Sustainable Fisheries
Division, Alaska Region NMFS, Attn:
Ellen Sebastian. Fax comments to 907–
586–7557.
Instructions: Comments sent by any
other method, to any other address or
individual, or received after the end of
the comment period, may not be
considered by NMFS. All comments
received are a part of the public record
and will generally be posted for public
viewing on www.regulations.gov
without change. All personal identifying
information (e.g., name, address, etc.),
confidential business information, or
otherwise sensitive information
submitted voluntarily by the sender will
be publicly accessible. NMFS will
accept anonymous comments (enter
‘‘N/A’’ in the required fields if you wish
to remain anonymous). Attachments to
electronic comments will be accepted in
Microsoft Word, Excel, or Adobe PDF
file formats only.
Electronic copies of the Regulatory
Impact Review (RIR) and the Categorical
Exclusion prepared for this proposed
action may be obtained from https://
www.regulations.gov or from the NMFS
Alaska Region Web site at https://
alaskafisheries.noaa.gov.
Written comments regarding the
burden-hour estimates or other aspects
of the collection-of-information
requirements contained in this proposed
rule may be submitted to NMFS Alaska
Region and by email to OIRA_
Submission@omb.eop.gov or fax to (202)
395–7285.
FOR FURTHER INFORMATION CONTACT:
Seanbob Kelly, 907–586–7228.
SUPPLEMENTARY INFORMATION:
Regulatory Authority
NMFS proposes regulations to
implement Amendment 99 to the BSAI
FMP. NMFS manages the U.S.
groundfish fisheries of the Exclusive
Economic Zone (EEZ) off Alaska under
the Fishery Management Plan for
Groundfish of the Gulf of Alaska (GOA
FMP) and the BSAI FMP. The North
Pacific Fishery Management Council
(Council) prepared the GOA FMP and
BSAI FMP pursuant to the MagnusonStevens Act and other applicable laws.
Regulations implementing the GOA
FMP and BSAI FMP appear at 50 CFR
part 679. General regulations that
pertain to U.S. fisheries appear at
subpart H of 50 CFR part 600.
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Background
The proposed action would amend
the BSAI FMP and revise Federal
regulations to: (1) Increase the
maximum length overall (MLOA) to 220
feet (67 m) on LLP licenses authorizing
vessels to catch and process Pacific cod
with hook-and-line gear in the BSAI; (2)
allow holders of LLP licenses
authorized to catch and process Pacific
cod with both hook-and-line and pot
gear in the BSAI to increase the MLOA
on the LLP license to 220 feet (67 m)
only if the pot gear endorsement is
surrendered within a specific time
frame; and (3) allow vessels that catch
and process Pacific cod with hook-andline in the BSAI to exceed length,
tonnage, and power limits established
under the American Fisheries Act
(AFA). The following sections provide
background on the need for, the
objectives of, and the effects of the
proposed action.
The LLP and BSAI Longline Catcher
Processor Subsector
Under the LLP, which was
implemented by NMFS on January 1,
2000 (63 FR 52642, October 1, 1998), an
LLP license is required for all vessels
directed fishing for groundfish in the
BSAI and GOA, with limited
exemptions for smaller vessels and
vessels using a limited amount of jig
gear. Directed fishing is defined in
regulations at § 679.2. For a vessel
designated on an LLP license, the LLP
license authorizes the type of fishing
gear that may be used by the vessel, the
maximum size of the vessel, and
whether the vessel may catch and
process fish at sea or if it is limited to
delivering catch without at-sea
processing. LLP licenses that allow
vessels to catch and process at-sea are
assigned a catcher/processor (C/P)
endorsement, and those that restrict
vessels from at-sea processing are
assigned a catcher vessel endorsement.
LLP licenses specify the MLOA of the
vessel to which that LLP license may be
assigned. Participants in LLP groundfish
fisheries are prohibited from using a
vessel to fish for LLP groundfish that
has a length overall (LOA) that is greater
than the MLOA specified on the LLP
license (see § 679.7(i)(6)). Until 2003, an
LLP license included gear and
operational type (C/P or catcher vessel)
endorsements, but did not include
endorsements to directed fish for
specific groundfish species. In 2003,
NMFS modified the LLP to include a
species endorsement for Pacific cod in
the BSAI. In 2011, NMFS implemented
modifications to the LLP to include a
species endorsement for Pacific cod in
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the GOA. A vessel can directed fish for
Pacific cod in the BSAI or GOA only if
the vessel is designated on an LLP
license that has this specific
endorsement, with limited exemptions
for smaller vessels and vessels using a
limited amount of jig gear as specified
at § 679.4(k)(9)(iv) and § 679.4(k)(10)(iv).
NMFS included Pacific cod
endorsements on existing LLP licenses
based on eligibility criteria, primarily
whether the license or the vessel had
been used to harvest Pacific cod.
Additional detail on the development
and rationale for the LLP and Pacific
cod endorsements in the BSAI and GOA
can be found in the final rule
implementing these Pacific cod
endorsement requirements and is not
repeated here (see 67 FR 18129, April
15, 2002 for the BSAI; see 76 FR 15826,
March 22, 2011, for the GOA).
The LLP Pacific cod endorsement
requirement has, in effect, limited the
number of vessels that are eligible to
fish for Pacific cod in the BSAI and
GOA. For example, under existing LLP
regulations, the vessels currently used
to directed fish for Pacific cod in the
BSAI using hook-and-line gear and to
process that catch at sea must be
assigned an LLP license with a BSAI
Pacific cod hook-and-line C/P
endorsement. Public Law 108–447, 118
Stat. 2887, Dec. 8, 2004, at section
219(a)(6), defines the term ‘‘longline
catcher processor subsector’’ as ‘‘the
holders of an LLP license that is
noninterim and transferable, or that is
interim and subsequently becomes
noninterim and transferable, and that is
endorsed for Bering Sea or Aleutian
Islands catcher processor fishing
activity, C/P, Pcod [Pacific cod], hook
and line gear.’’ There are 36 LLP
licenses that meet the eligibility criteria
for the BSAI longline C/P subsector as
defined in section 219(a)(6).
Vessels Operating In the BSAI Longline
C/P Subsector and the Pacific Cod
Fishery
Most vessels currently operating in
the BSAI longline C/P subsector were
not designed as fishing vessels for the
BSAI but were converted to longline C/
Ps from some other use. The vessels in
the BSAI longline C/P subsector range
in length from 107 feet (32.6 m) to 180
feet (54.8 m) LOA. The average age of
the vessels in this fleet is approximately
40 years, and 30 percent were built
before 1946. In general, the newer
vessels participating in this subsector
have longer LOAs and were designed to
specifically target groundfish with
longline gear. Production capacity is
directly related to vessel length and
overall vessel design. For example, the
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larger vessels in the fleet can
accommodate larger freezer holds that
allow vessels to stay at sea for longer
periods. Larger vessels can provide a
larger processing platform that can be
converted to accommodate more
processing equipment, which can be
optimally located in vessels specifically
designed for fishing to increase overall
daily throughput. Moreover, longer
vessels are able to operate in most
weather conditions, including
conditions that may be considered
adverse by longline C/Ps with relatively
shorter length. Vessels participating in
the BSAI longline C/P subsector are
described in more detail in section 1.5
of the RIR for this action (See
ADDRESSES).
Vessels used in the BSAI longline C/
P subsector target groundfish with
longline gear that consists of a
stationary, buoyed, and anchored line
with hooks attached for the taking of
fish. Once landed, groundfish are sorted
by size and weight, and then packed
and frozen onboard. Vessels eligible to
participate in the BSAI longline C/P
subsector primarily target Pacific cod in
the BSAI, but many also participate in
Greenland turbot and sablefish fisheries
in the BSAI, as well as Pacific cod
fisheries in the GOA. In addition,
vessels using longline gear retain
incidentally caught species such as
skates, rockfish, arrowtooth flounder,
and pollock.
Recent participation information for
vessels eligible to participate in the
BSAI longline C/P sector indicates that
the number of these vessels harvesting
Pacific cod in the BSAI fishery has been
relatively stable and the number of
vessels harvesting Pacific cod in the
GOA fishery has declined. From 2011
through 2013, approximately 33 vessels
eligible to participate in the BSAI
longline C/P sector harvested Pacific
cod in the BSAI. Of the 36 LLP licenses
in the BSAI longline C/P subsector, 27
LLP licenses are also endorsed to fish in
the GOA Pacific cod fisheries. The
number of vessels named on the 36 LLP
licenses in the BSAI longline C/P
subsector that harvested Pacific cod in
the GOA declined from a peak of 18
vessels in 2007 to 14 vessels in 2011,
and to 6 vessels in 2012. Three of the
36 LLP licenses that are eligible for the
BSAI longline C/P subsector are also
authorized to participate in the BSAI
Pacific cod fisheries with a C/P using
pot gear; of these three licenses, only
one is also endorsed to authorize
participation in the Western GOA
Pacific cod fisheries with a C/P using
pot gear. Vessels named on these three
LLP licenses may elect to participate in
either the longline or pot C/P sector in
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the BSAI Pacific cod fishery, or the
vessel may participate in both sectors.
The Council and NMFS annually
establish total allowable catch (TAC)
limits for Pacific cod and other
groundfish targeted by C/Ps using hookand-line gear in the BSAI and the GOA.
The TAC amounts are allocated among
user groups as part of the annual harvest
specifications process, as authorized at
§ 679.20. In the BSAI, Pacific cod is
apportioned between the Western
Alaska Community Development Quota
(CDQ) Program and non-CDQ fishery
participants. Allocations to the CDQ
Program are assigned to CDQ groups as
defined by section 305(i) of the
Magnuson-Stevens Act. The CDQ
groups harvest almost all their Pacific
cod allocations with vessels that are
members of the BSAI longline C/P
subsector.
In 2007, NMFS modified the Pacific
cod allocations to specific sectors in the
BSAI under regulations implementing
Amendment 85 to the BSAI FMP (72 FR
50788, September 4, 2007). Amendment
85 modified the allocations of the
annual BSAI Pacific cod TAC among
various harvest sectors as seasonal
apportionments. Amendment 85
increased the percentage of the BSAI
Pacific cod TAC apportioned to the CDQ
Program from 7.5 percent to 10.7
percent. The remaining TAC, known as
non-CDQ TAC, is further apportioned
between seasons for jig, pot, hook-andline, and trawl gear types and operating
types. The BSAI longline C/P subsector
receives 48.7 percent of the annual nonCDQ allocation of the Pacific cod TAC
as two separate seasonal allowances.
The regulations implementing
Amendment 85 require a sector to stop
conducting directed fishing for Pacific
cod when its allocation is exhausted,
even if TAC allocated to other sectors
remains unharvested. This ensures that
fishery participants in one sector do not
compete for BSAI Pacific cod with
participants in other sectors.
The BSAI longline C/P subsector is
also allocated a limited amount of
halibut to be used as prohibited species
catch (PSC) in the Pacific cod fishery
under regulations implementing
Amendment 85 because halibut is
incidentally caught by vessels using
hook-and-line gear. The halibut PSC
limit ensures that total incidental
mortality of halibut does not exceed a
specified limit while at the same time
allowing participants to conduct their
target fisheries. Once this halibut PSC
limit is reached, then NMFS closes
directed fishing for groundfish that
results in the take of halibut. This
halibut PSC limit constrains the BSAI
longline C/P subsector in the Pacific cod
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and other groundfish fisheries. Prior to
the implementation of Amendment 85,
halibut PSC was apportioned to the
hook-and-line sector, but was not
further apportioned between C/Ps and
catcher vessels. Amendment 85 subapportioned the available hook-and-line
halibut PSC between the catcher vessel
and C/P sectors, which gave the BSAI
longline C/P subsector a separate
apportionment of halibut PSC.
Regulations at § 679.21(e)(2) and (4)
specify that a portion of total halibut
mortality be made available to the BSAI
longline C/P subsector. Typically, this
halibut PSC is further allocated
seasonally through the annual harvest
specifications process.
NMFS has also established specific
allocations of Pacific cod in the GOA
similar to those in the BSAI. In
December 2009, the Council
recommended that NMFS implement
Amendment 83 to the GOA FMP to
supersede the inshore/offshore
processing allocations of Pacific cod and
establish sector allocations of the TACs.
Upon implementation of Amendment
83 in 2012 (76 FR 74670, December 1,
2011), NMFS divided the GOA Pacific
cod TACs and halibut PSC among gear
and operation type, based primarily on
historical dependency and catch history
by each sector. The hook-and-line C/P
sector is allocated 19.8 percent of the
annual Western GOA TAC and 5.1
percent of the annual Central GOA TAC.
Halibut PSC is also apportioned
between the hook-and-line C/P and
catcher vessel sectors proportional to
the allocation of Pacific cod to those
sectors. Consistent with halibut PSC
management in the BSAI, this halibut
PSC allocation ensures that total
incidental mortality of halibut does not
exceed a specified limit while at the
same time allowing participants to
conduct their target fisheries.
Additional detail on Pacific cod and
halibut PSC apportionment is provided
in the final rule implementing
Amendment 83 and is not repeated here
(76 FR 74670, December 1, 2011).
Freezer Longline Conservation
Cooperative
In addition to the constraints on
Pacific cod allocations and halibut PSC
limits implemented under regulations
for Amendment 85 to the BSAI FMP and
Amendment 83 to the GOA FMP, the
BSAI longline C/P subsector has
voluntarily developed private
contractual arrangements to limit Pacific
cod and halibut PSC use in the BSAI,
effectively establishing a de facto
limited access program. Congress’
definition of the BSAI longline C/P
subsector and the allocation of BSAI
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Pacific cod and halibut PSC specifically
to the BSAI longline C/P subsector
encouraged holders of eligible LLP
licenses to form a voluntary cooperative
and divide the Pacific cod and halibut
PSC allocations among its members.
Cooperatives allow multiple quota
recipients to aggregate their annual
quota amounts, coordinate their
collective fishing operations, and
benefit from the resulting efficiencies.
Since the fishing season opened on June
20, 2010, all holders of eligible BSAI
longline C/P subsector LLP licenses
have joined a single cooperative, the
Freezer Longline Conservation
Cooperative (FLCC). Cooperative
management enables the license holders
to efficiently harvest sector allocations
through the coordination of fishing
effort among participants. Cooperation
among vessel owners has resulted in
improved bycatch avoidance and has
increased the value and variety of
seafood products in the subsector. In
addition, the FLCC has established
private contractual arrangements that
divide the sector’s Pacific cod and
halibut PSC allocations among the
member vessels; thus, participants are
able to maximize the harvest and value
of the Pacific cod allocation for a given
halibut PSC limit.
In 2010, Congress passed the Longline
Catcher Processor Subsector Single
Fishery Cooperative Act (Pub. L. 111–
335) to modify the process to form a
cooperative in the subsector. Under this
Act, NMFS must implement a single,
mandatory cooperative with exclusive
catch privileges for each BSAI longline
C/P subsector LLP license holder if
requested to do so by persons holding
at least 80 percent of the LLP licenses
eligible to participate in the BSAI
longline C/P subsector (i.e., at least 29
of the 36 LLP licenses). To date, NMFS
has not received any such request;
however, the fact that such a mandatory
cooperative is explicitly authorized by
Congress helps to ensure that if the
voluntary cooperative established by the
FLCC is unable to continue, regulations
to establish a mandatory cooperative
with exclusive catch privileges could be
implemented by NMFS upon request of
a sufficient number of the members of
the subsector.
Objectives of, and Rationale for,
Amendment 99 and This Proposed Rule
Although participants in the BSAI
longline C/P subsector are currently
authorized to replace their vessels, the
LLP limits the ability of vessels to
exceed a specific length. In addition,
provisions of the AFA limit a vessel
owner’s ability to receive a fishery
endorsement for a replacement vessel
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63953
that exceeds specified length, power,
and displacement restrictions unless
specifically recommended by the
Council and approved by the Secretary
of Commerce. These statutory vessel
capacity restrictions are described in
more detail in the ‘‘American Fisheries
Act and United States Maritime
Administration’’ section of this
preamble.
The Council and NMFS recognize that
these regulatory and statutory vessel
capacity restrictions provide a
disincentive for owners to rebuild or
replace their vessels with larger, more
efficient and safer vessels. In October
2012, the Council recommended
Amendment 99, which would allow
owners of vessels used in the BSAI
longline C/P subsector to rebuild or
replace their vessels with larger vessels.
The principal objective of the proposed
action is to promote the sustainable
harvest of groundfish, especially Pacific
cod in the BSAI and GOA, by removing
disincentives for owners of vessels to
rebuild or replace their vessels with
larger vessels. To the extent that the
vessel owners exercise the vessel
replacement opportunity provided in
this proposed action, it would promote
efficient utilization of the Pacific cod
resource in the BSAI and GOA. The
proposed action would also promote
safety-at-sea by allowing vessel owners
to replace existing vessels with vessels
that can accommodate improved safety
features and minimize the risks faced by
crew members.
The Council and NMFS recognize that
raising the vessel length limits could
provide vessel owners with the
additional hold capacity necessary to
increase the rate of processing
throughput and storage capacity. As
discussed in section 1.6.2 of the RIR
prepared for this action, larger vessels
can incorporate larger freezer holds that
allow a vessel to stay at sea for longer
periods, while smaller vessels generally
require more trips to travel to and from
fishing grounds to offload product.
Fewer trips would increase vessel
efficiency by reducing fuel consumption
and minimizing transit time, which
would allow vessel owners to minimize
the time required to harvest their quota.
The Council recognized the need to
lengthen the vessel size restrictions to
encourage vessel owners to accelerate
the replacement of vessels in the BSAI
longline C/P subsector fleet. The
Council noted that in many cases the
cost of a new vessel may not be
affordable without the increased
production efficiency that could result
from constructing a larger, more
efficient vessel that meets modern safety
requirements.
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Under Amendment 99, the MLOA
specified on LLP licenses in the BSAI
longline C/P subsector that are not also
endorsed for pot gear would be
increased to 200 feet (67 m). The
Council determined that a 220-foot (67
m) MLOA for these eligible LLP licenses
would encourage LLP license holders in
the BSAI longline C/P subsector to
replace aging vessels with newer, safer,
and more efficient vessels. The Council
considered several size limits, including
no size limit, and other variable rate and
fixed-length increases to vessel size
prior to recommending Amendment 99.
Prior to selecting a preferred alternative,
the Council received public testimony
that a 220-foot (67 m) MLOA would
provide adequate incentives to meet the
Council’s objectives for this action and
likely would allow vessel owners to
replace vessels with new vessels that
could accommodate improved
efficiency and safety design.
Specifically, vessel owners potentially
affected by this proposed action stated
that anticipated vessel designs likely
would not result in vessels greater than
220 feet (67 m) due to the costs of
construction and operation of these
larger vessels relative to anticipated
revenues. These assertions are
supported by section 1.6.2.2 of the RIR
prepared for this action, which
describes that processing capacity
constraints likely limit the size of
vessels used in the BSAI longline C/P
subsector to 220 feet (67 m) or less.
Currently, each of the 36 LLP licenses
eligible for the BSAI longline C/P
subsector have an MLOA equal to or
less than 220 feet (67 m). The average
MLOA specified on an LLP license
currently eligible for the BSAI longline
C/P subsector is 152.6 feet (46.5 m).
Seventeen of the 36 eligible LLP
licenses have an MLOA of less than 150
feet (45.7 m). Increasing the MLOA
specified on the LLP licenses in the
BSAI longline C/P subsector to 220 feet
(67 m) would not constrain any existing
LLP licenses in terms of vessel length.
Additional detail on the LLP licenses
currently eligible for the BSAI longline
C/P subsector can be found in section
1.5.1 of the RIR for this action (see
ADDRESSES).
The Council also recommended
management measures designed to
protect historical participants in the
Pacific cod pot fisheries that could be
adversely affected by the use of larger,
more efficient vessels in the BSAI
longline C/P subsector. As noted earlier
in this preamble, the Council and NMFS
recognized that three of the 36 LLP
licenses endorsed for participation in
the the BSAI longline C/P subsector also
authorize the designated vessel to target
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Pacific cod with C/Ps using pot gear in
the BSAI: Two of those LLP licenses
authorize participation in the BSAI
Pacific cod fisheries with C/Ps using pot
gear; one of the LLP licenses authorizes
participation in the BSAI and Western
GOA Pacific cod fisheries with C/Ps
using pot gear. The proposed
regulations to implement Amendment
99 would allow a person holding a LLP
license endorsed to catch and process
Pacific cod with hook-and-line and pot
gear in the BSAI to increase the MLOA
on the LLP license to 220 feet (67 m)
only if the LLP holder elects to
surrender any Pacific cod pot gear
endorsements within a specific time
frame. The Council and the Secretary
recognize the potentially adverse
competitive effects of increased fishing
capacity by the longline C/P subsector
relative to the C/Ps using pot gear.
Under this proposed rule, holders of the
two BSAI longline C/P subsector LLP
licenses with BSAI Pacific cod pot gear
C/P endorsements could either
surrender the BSAI Pacific cod pot gear
C/P endorsements and receive an LLP
license with a 220 feet (67 m) MLOA or
retain their current MLOA and continue
to participate in both fisheries.
Similarly, the holder of the BSAI
longline C/P subsector LLP license with
BSAI and Western GOA Pacific cod pot
gear C/P endorsements could either
surrender the BSAI and GOA Pacific
cod pot gear C/P endorsements and
receive an LLP license with a 220 feet
(67 m) MLOA or retain the BSAI Pacific
cod pot gear C/P endorsements and the
current LLP license MLOA would
continue to apply.
The Council recognized that allowing
holders of LLP licenses with Pacific cod
pot gear C/P endorsements to name
larger vessels on those LLP licenses
could increase vessel capacity in the pot
gear C/P fisheries and could
disadvantage historical participants in
the sector who would continue to be
constrained by the MLOAs specified on
their LLP licenses. As a result, the
Council determined that allowing some
participants in the pot gear C/P fisheries
with hook-and-line endorsements to
have longer MLOAs specified on their
LLP licenses could allow these
participants to harvest a greater
proportion of the GOA Pacific cod
sector allocation relative to their
historical catch. This could negatively
impact historical participants in the
Pacific cod pot fisheries and would not
promote a fair and equitable standard
for all participants in the pot gear C/P
fisheries. The Council recommended
that NMFS promulgate regulations to
ensure that holders of LLP licenses
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eligible for the BSAI longline C/P
subsector that choose to retain Pacific
cod pot gear C/P endorsements would
continue to be restricted by the current
MLOAs on the LLP licenses. The
Council recommended, and NMFS
proposes, a time limit on the one-time
permanent election for these LLP
license holders that would close 36
months from the date of implementation
of this action, if it is approved. The
deadline for making the one-time
election is intended to promote the
conservation and management of the
BSAI and GOA Pacific cod fisheries by
clearly identifying pot gear C/P sector
participants within a reasonable time
frame and by establishing an upper limit
on vessel capacity in the BSAI longline
C/P subsector.
To implement Amendment 99, NMFS
would increase the MLOA on LLP
licenses eligible to participate in the
BSAI longline C/P subsector. Vessels are
prohibited, at 679.7(h)(6), from fishing
for LLP groundfish with a vessel that
has a length overall that exceeds the
MLOA specified on the license that
authorizes fishing for the LLP
groundfish. Therefore, under this action,
the MLOA on an eligible LLP license
would be increased. This proposed
action would not prevent subsector
participants from naming an existing
vessel on their LLP license; however,
the Council and NMFS anticipate that
most replacement vessels would be
newly constructed. As noted earlier in
this preamble, newly constructed
vessels would be better designed for
fishing than are many of the existing
vessels in the fleet. Most existing vessels
lack the capacity to incorporate
innovations and facilities that are
available in newly constructed vessels.
A vessel built to contemporary safety
standards would likely incorporate
advancements in marine design that
improve efficiency.
As discussed in section 1.6.2 of the
RIR, NMFS expects that this proposed
action will not increase the fishing
operations of C/Ps using hook-and-line
gear in the BSAI or GOA. As described
in this preamble, management
constraints, such as Pacific cod species
endorsements on LLP licenses, sector
allocations for Pacific cod in the BSAI
and GOA, and halibut PSC limits in the
BSAI and GOA, limit the ability of
vessels assigned these LLP licenses to
expand their overall fishing operations
in groundfish fisheries.
Specifically, these management
measures in the BSAI and GOA provide
an overall limit to the Pacific cod catch
by vessels in this subsector, thereby
limiting the potential for the C/P vessels
endorsed for hook-and-line gear to
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tkelley on DSK3SPTVN1PROD with PROPOSALS
compete with other subsectors for
Pacific cod TAC. While it is possible
that larger BSAI longline C/P vessels
entering the GOA Pacific cod fishery
could increase competition in that
fishery, the Council recognized that the
harvest patterns of individual FLCC
member vessels are unlikely to change
under the proposed action. Since the
formation of the cooperative, FLCC
member vessels eligible to catch and
process Pacific cod in the GOA have not
increased effort in the GOA Pacific cod
fisheries despite the efficiencies gained
by cooperative management and their
significantly longer length compared to
the hook-and-line C/Ps active in the
GOA that are not FLCC members. The
Council noted that although the BSAI
longline C/P fleet could increase effort
under the status quo, they have not and
so it is unlikely that the replacement of
existing vessels with longer vessels
would increase competition in the GOA.
As noted earlier in this preamble,
NMFS anticipates that the BSAI
longline C/P subsector will continue to
operate in the FLCC to coordinate
Pacific cod harvests. This continued
coordination promotes consistent
harvesting practices by member vessels,
including the newer and more efficient
vessels entering the fishery. Moreover,
NMFS does not anticipate rapid changes
in the composition, quantity of vessels,
or capacity of the BSAI longline C/P
fleet in response to this proposed action,
due to the costs and time required for
construction of new vessels.
Collectively, these factors indicate that
the proposed action would not result in
a modification of fishing behavior
among FLCC members as they target
Pacific cod or other groundfish species.
While it is possible that FLCC members
could expand participation in the
Pacific cod pot fishery, this expansion is
constrained by the proposed limitations
on LLP licenses with Pacific cod hookand-line and pot C/P endorsements as
described above.
Proposed Regulatory Amendments
To implement Amendment 99, NMFS
proposes to list the groundfish LLP
licenses that would be modified by this
action at Table 9 to part 679. As
proposed, Table 9 to part 679 would list
in Column A the 36 LLP licenses
endorsed to participate in the BSAI
longline C/P subsector. Table 9 would
also differentiate between the LLP
licenses that qualify for an increase in
MLOA length to 220 feet (67 m), as
designated in Column B, and the LLP
license holders eligible for a one-time
election to permanently surrender and
extinguish certain LLP license
endorsements in exchange for an
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increase in the MLOA to 220 feet (67 m),
as listed in Column C.
NMFS proposes to revise the
regulatory definition of Maximum LOA
(MLOA) at § 679.2 and to establish
regulatory provisions at
§ 679.4(k)(3)(i)(D) for a new MLOA
category. Under this proposed
provision, NMFS would revise MLOAs
on the LLP licenses designated in
Column B of Table 9 to part 679. If
Amendment 99 and its implementing
regulations are approved, 30 days
following the publication of the final
rule, the NMFS Restricted Access
Management Division would issue new
LLP licenses with an MLOA of 220 feet
(67 m) to the holders of the eligible
licenses designated in Column B of
Table 9 to part 679. NMFS would revise
only the MLOA of the LLP licenses
designated in Column B of Table 9 to
part 679, and not the area, gear, and
operational type endorsements. The
new LLP licenses would be mailed to
the address provided to NMFS by the
holder of the qualifying LLP license.
NMFS would establish this revised
definition of ‘‘Maximum LOA (MLOA)’’
at § 679.2 to ensure that all LLP licenses
designated in Column B of Table 9 to
part 679 would be revised on the
effective date of the final rule, if
approved. NMFS would not need to
modify the definition of ‘‘Maximum
LOA (MLOA)’’ at § 679.2 to apply to
LLP licenses listed in Column C of
Table 9 to part 679 because the MLOAs
of those LLP licenses would only be
modified after the submission of a
written request from the holders of LLP
licenses specified in Column C of Table
9 to part 679 under specific provisions
described in the following paragraphs of
this preamble.
NMFS proposes regulations at
§ 679.4(k)(3)(i)(D)(2) to implement the
Council’s recommendation that the
MLOA on an LLP license endorsed for
participation in the BSAI longline C/P
subsector would not be modified as long
as the LLP license holder retains an
endorsement to participate in Pacific
cod pot fisheries in the BSAI or GOA.
NMFS proposes to establish procedures
for surrendering a Pacific cod pot gear
endorsement on LLP licenses also
endorsed to participate in the BSAI
longline C/P subsector. NMFS would
establish a process for eligible
participants in the BSAI longline C/P
subsector to surrender their Pacific cod
pot gear endorsements for the BSAI and
GOA in exchange for receiving an LLP
with an MLOA of 220 feet (67 m)
authorizing participation in the BSAI
Pacific cod longline C/P fisheries. As
proposed, NMFS would assign an
MLOA of 220 feet (67 m) to any of the
PO 00000
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Sfmt 4702
63955
three LLP licenses listed in Column C of
proposed Table 9 whose holders
surrender the Pacific cod pot gear
endorsements on their LLP license. This
one-time election to surrender the
Pacific cod pot gear endorsements on an
LLP license would be permanent, and
NMFS would extinguish the
surrendered Pacific cod pot gear
endorsements. Current LLP regulations
at § 679.4(k)(7)(viii) specify that LLP
endorsements are non-severable from
the license, with one exception for an
Aleutian Island area endorsement under
the provisions of § 679.4(k)(4)(ix)(A).
Specifying that LLP endorsements are
non-severable from the license limits
the ability of a person to assign an LLP
license that was derived from the
historical landing activity of a vessel in
one area, using a specific fishing gear,
or operational type to be used in other
areas, with other gears, or for other
operational types in a manner that could
expand fishing capacity. The Council’s
recommendation to allow the holders of
three LLP licenses to surrender Pacific
cod pot gear endorsements associated
with the license is consistent with this
objective because the surrendered
endorsements would be extinguished.
NMFS would not transfer the
endorsements to another person, and
the endorsements could not be used in
other areas, with other gears, or for other
operational types.
NMFS proposes regulations at
§ 679.4(k)(6)(xi) to describe the
requirements for holders of LLP licenses
eligible to participate in the BSAI
longline C/P subsector to surrender their
Pacific cod pot gear C/P endorsements.
If the Secretary approves Amendment
99 and its implementing regulations,
NMFS would notify in writing the three
LLP license holders listed in Column C
of the proposed Table 9 to part 679 of
their option to elect to surrender their
Pacific cod pot gear C/P endorsements
on their LLP license and receive a 220foot (67 m) MLOA. Owners of eligible
licenses, or their agents, would need to
notify NMFS in writing at the address
specified at § 679.4(k)(6)(xi) that they
elect to surrender the endorsements.
The request would need to include a
signed statement notifying NMFS that
the holder of the LLP license
acknowledges that the election is
permanent and irreversible and that all
pot gear Pacific cod endorsements on
that LLP would be extinguished. Each
LLP license holder would have 36
months from the date of implementation
of this proposed action to notify NMFS
in writing of the one-time permanent
election. If the written notification is
received by NMFS within the 36 months
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prior to the deadline, NMFS would
issue a revised LLP license to the holder
of that license. License holders who
choose not to make the one-time
election or who do not submit a written
notification within the 36-month
deadline would retain their current
MLOA and continue to participate in
both the Pacific cod pot fisheries and
longline fisheries in the BSAI and GOA.
American Fisheries Act and United
States Maritime Administration
In order for a vessel to participate in
a U.S. fishery, a vessel must obtain a
certificate of documentation with a
fishery endorsement from either the
U.S. Coast Guard or the Maritime
Administration (MARAD), as set forth in
regulations at 46 U.S.C. 12102(a) and
12151(b) The American Fisheries Act of
1998, as amended (AFA), Title II,
Division C, Public Law 105–277, was
enacted to increase U.S. citizen
participation in U.S. fisheries. The AFA
required the Maritime Administration to
ensure compliance with the U.S.
citizenship ownership and control
requirements for U.S.-flag fishing
industry vessels of 100 feet or greater in
registered length. Therefore, a vessel
100 feet or greater in registered length
must receive this documentation from
MARAD.
The AFA and MARAD implementing
regulations prohibit larger vessels from
obtaining a fishery endorsement unless
specific conditions are met. Unless an
exemption applies, a vessel is not
eligible for a fishery endorsement if it is
greater than 165 feet in length, or more
than 750 gross registered tons, or has
engines capable of producing more than
3,000 shaft horsepower.
These regulations were intended to
limit but not reduce fishing capacity in
the BSAI; however, the regulations
effectively limit the ability of vessel
owners to replace vessels currently
participating in the BSAI longline C/P
subsector with newer vessels of an
equivalent size. There are currently nine
vessels named on LLP licenses eligible
to participate within the BSAI longline
C/P subsector that exceed at least one of
the thresholds described at 46 CFR
356.47(a) and (c). These vessels are able
to participate in the fishery because they
received a fishery endorsement prior to
September 25, 1997; however, the
license holders could not replace
vessels named on their LLP licenses
with vessels of comparable or additional
capacity and continue to participate in
the BSAI longline C/P subsector because
such vessels would not be eligible for a
fishery endorsement.
An exemption from these regulations
is possible if the owner of such a vessel
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17:00 Oct 24, 2013
Jkt 232001
demonstrates to MARAD that the
regional fishery management council of
jurisdiction, established under section
302(a)(1) of the Magnuson-Stevens Act,
has recommended after October 21,
1998, and the Secretary has approved,
conservation and management measures
in accordance with regulations
implementing the AFA at 46 CFR
356.47, to allow vessels that may exceed
the length, horsepower, and tonnage
requirements to be used in fisheries
under such council’s authority. NMFS
and MARAD General Counsel consulted
to determine what action on the part of
the Council and NMFS would satisfy
this exemption. NMFS and MARAD
General Counsel determined, based on
the regulatory requirments established
at 46 CFR 356.47(c), that the Council
would need to recommend, and the
Secretary would need to approve,
conservation and management measures
that would allow such a vessel to be
used in the BSAI longline C/P subsector
fisheries. The statutory vessel capacity
restrictions are described in more detail
in section 1.2.2 of the RIR for this action
(See ADDRESSES).
If the Secretary approves Amendment
99 and issues a final rule to implement
Amendment 99, the Secretary will have
approved conservation and management
measures that would permit a vessel to
exceed the limits specified at 46 U.S.C.
12113(d) in order to participate in the
BSAI longline C/P subsector. Secretarial
approval of Amendment 99 and the
publication of implementing regulations
are intended to provide MARAD with
documentation that eligible vessels
qualify to receive a fishery endorsement.
If the Secretary approves Amendment
99 and issues a final rule to implement
Amendment 99, NMFS will notify
MARAD that any vessel named on an
LLP license endorsed for participation
in the BSAI longline C/P subsector,
which is greater than 165 feet in
registered length, of more than 750 gross
registered tons, or that has an engine or
engines capable of producing a total of
more than 3,000 shaft horsepower, is
authorized for use in the EEZ under the
jurisdiction of the Council, and is
eligible to receive a certificate of
documentation consistent with 46
U.S.C. 12113(d) and MARAD
regulations at 46 CFR 356.47.
Recordkeeping, Reporting, Monitoring
and Enforcement
The proposed action would not
change the monitoring and enforcement
requirements for participants in the
BSAI C/P longline subsector. As
mentioned elsewhere in the this
preamble, this proposed action would
add a reporting requirement for the LLP
PO 00000
Frm 00056
Fmt 4702
Sfmt 4702
licenses identified in the proposed
Column C to Table 9 to part 679. The
holders of these three LLP licenses
would need to notify NMFS of their
election to permanently surrender all
pot Pacific cod endorsements in
exchange for a 220-foot (67 m) MLOA.
Beginning in 2013, all vessels
participating in the BSAI C/P longline
subsector are required to follow a
selected monitoring option, either carry
two observers or carry one observer and
use a NMFS-approved motion
compensated flow scale, while directed
fishing for Pacific cod is open in the
BSAI or while CDQ groundfish fishing
(77 FR 59053, September 26, 2012). A
description of monitoring and
enforcement regulations applicable to
the BSAI C/P longline subsector is
described in more detail in the preamble
to the proposed rule for these
requirements (77 FR 35925, June 15,
2012) and is not repeated here.
Classification
Pursuant to sections 304(b)(1)(A) and
305(d) of the Magnuson-Stevens Act, the
NMFS Assistant Administrator has
determined that this proposed rule is
consistent with the BSAI and GOA
FMPs, other provisions of the
Magnuson-Stevens Act, and other
applicable law, subject to further
consideration after public comment.
This proposed rule has been
determined to be not significant for
purposes of Executive Order 12866.
The Chief Counsel for Regulation of
the Department of Commerce certified
to the Chief Counsel for Advocacy of the
Small Business Administration (SBA)
that this proposed rule, if adopted,
would not have a significant economic
impact on a substantial number of small
entities. On June 20, 2013, SBA issued
a final rule revising the small business
size standards for several industries
effective July 22, 2013 (78 FR 37398).
The rule increased the size standard for
Finfish Fishing from $ 4.0 to 19.0
million, Shellfish Fishing from $ 4.0 to
5.0 million, and Other Marine Fishing
from $4.0 to 7.0 million. Id. at 37400
(Table 1). Pursuant to the Regulatory
Flexibility Act (RFA), codified at 5
U.S.C. 600–611, and prior to SBA’s June
20 final rule, a certification was
developed for this action using SBA’s
former size standards. NMFS has
reviewed the analyses prepared for this
action in light of the new size standards
and has determined that the new size
standards do not affect the analyses
prepared for this action. NMFS solicits
public comment on the analyses in light
of the new size standards.
This rule would not have a significant
economic impact on a substantial
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number of small entities. NMFS has
reviewed the 2012 gross fishing
revenues from all sources for the vessels
affiliated through this cooperative, and
finds that they substantially exceed the
$19 million threshold for determining
whether a finfish fishing entity is large
or small, for RFA purposes, that became
effective on July 22, 2013 (78 FR 37898).
Moreover, NMFS has concluded that the
36 LLP license holders impacted
through this proposed action are all
affiliated with each other through
membership in the FLCC. Consequently,
all impacted entities are considered
‘‘large entities’’ for the purpose of the
RFA. This conclusion is consistent with
previous actions impacting the same
fleet, composed of the same operations,
prosecuting the same resources (77 FR
59053, September 26, 2012; 77 FR
58775, September 24, 2012). In both
cases, NMFS determined that the
impacted entities are not considered
small entities for the purpose of the RFA
based upon their affiliations with larger
fishing-entities or gross revenue. As a
result, an initial regulatory flexibility
analysis is not required and none has
been prepared.
The economic analysis contained in
the RIR for this action (see ADDRESSES)
further describes the regulatory and
operational characteristics and history
of this fishery, including the origins and
operation of the fishery cooperative, the
history of this action, and the details of
the alternatives considered for this
action, including the preferred
alternative.
Duplicate, Overlapping, or Conflicting
Federal Rules
No duplication, overlap, or conflict
between this proposed action and
existing Federal rules has been
identified.
tkelley on DSK3SPTVN1PROD with PROPOSALS
Description of Significant Alternatives
That Minimize Adverse Impacts on
Small Entities
Since there are no directly regulated
small entities under this action within
the definition of small entities used in
the RFA, there are no economic impacts
from this action on small entities.
Collection-of-Information Requirements
This proposed rule contains a
collection-of-information requirement
subject to review and approval by OMB
under the Paperwork Reduction Act
(PRA). This requirement has been
submitted to OMB for approval under
OMB Control No. 0648–0334. Public
reporting burden per response is
estimated to be 2 hours for One-time
Election to Permanently Surrender
Pacific Cod Pot Gear Endorsement for
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Jkt 232001
the BSAI and GOA in Exchange for
Receiving an LLP with an MLOA of 220
feet Authorizing Participation in the
BSAI Pacific cod Longline C/P fisheries.
Public reporting burden includes the
time for reviewing instructions,
searching existing data sources,
gathering and maintaining the data
needed, and completing and reviewing
the collection of information.
Public comment is sought regarding:
whether this proposed collection of
information is necessary for the proper
performance of the functions of the
agency, including whether the
information shall have practical utility;
the accuracy of the burden estimate;
ways to enhance the quality, utility, and
clarity of the information to be
collected; and ways to minimize the
burden of the collection of information,
including through the use of automated
collection techniques or other forms of
information technology. Send comments
on these or any other aspects of the
collection of information to (enter office
name) at the ADDRESSES above, and
email to OIRA_Submission@
omb.eop.gov, or fax to (202) 395–7285.
Notwithstanding any other provision
of the law, no person is required to
respond to, nor shall any person be
subject to a penalty for failure to comply
with, a collection of information subject
to the requirements of the PRA, unless
that collection of information displays a
currently valid OMB Control Number.
List of Subjects in 50 CFR Part 679
Alaska, Fisheries, Recordkeeping and
reporting requirements.
Dated: October 21, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries,
performing the functions and duties of the
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the
preamble, NMFS proposes to amend 50
CFR part 679 as follows:
PART 679—FISHERIES OF THE
EXCLUSIVE ECONOMIC ZONE OFF
ALASKA
1. The authority citation for 50 CFR
part 679 continues to read as follows:
■
Authority: 16 U.S.C. 773 et seq.; 1801 et
seq.; 3631 et seq.; Pub. L. 108–447.
2. In § 679.2, add paragraph (2)(v) to
the definition of ‘‘Maximum LOA
(MLOA)’’ to read as follows:
■
§ 679.2
*
PO 00000
Definitions.
*
*
*
*
Maximum LOA (MLOA) means:
(2) * * *
Frm 00057
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63957
(v) The MLOA of a groundfish LLP
license endorsed to catch and process
Pacific cod with hook-and-line gear in
the BS or AI, or both, and is designated
in Column B of Table 9 to this part is
220 feet (67 m).
*
*
*
*
*
■ 3. In § 679.4, add paragraphs
(k)(3)(i)(D) and (k)(6)(xi) to read as
follows:
§ 679.4
Permits.
*
*
*
*
*
(k) * * *
(3) * * *
(i) * * *
(D) Modification of the MLOA on a
groundfish LLP license listed in column
A of Table 9 to this part. (1) Each
groundfish LLP license endorsed to
catch and process Pacific cod with
hook-and-line gear in the BS or AI, or
both, and designated in column B of
Table 9 to this part will receive a 220foot (67 m) MLOA following November
25, 2013.
(2) Each groundfish LLP license
endorsed to catch and process Pacific
cod with hook-and-line gear in the BS
or AI, or both, and designated in column
C of Table 9 to this part is eligible to be
assigned a 220-foot (67 m) MLOA if the
LLP holder submits a timely written
request to remove all pot gear Pacific
cod endorsements on that LLP following
the process established under
§ 679.4(k)(6)(xi) of this part.
*
*
*
*
*
(6) * * *
(xi) Surrender and extinguishment of
a groundfish LLP endorsement.
Endorsements specified on a groundfish
LLP license are not severable from a
license and cannot be surrendered
except that pot gear Pacific cod
endorsements specified on groundfish
LLP licenses listed in Column C of
Table 9 to this part, can be permanently
surrendered, removed and extinguished
if:
(A) The holder of the groundfish LLP
license listed in Column C of Table 9 to
this part requests, in writing, that NMFS
permanently remove and extinguish all
pot gear Pacific cod endorsements
specified on that LLP license and
acknowledges in that written request
that the surrender and removal are
permanent and irreversible and that all
pot gear Pacific cod endorsements on
that LLP license are extinguished;
(B) The holder of the groundfish LLP
license listed in Column C of Table 9 to
this part requests, in writing, that NMFS
assign a 220-foot (67 m) MLOA on that
LLP license;
(C) The holder of the eligible LLP
license, or the authorized agent, signs
the request;
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(D) NMFS receives the written request
to permanently remove and extinguish
all pot gear Pacific cod endorsements
specified on the LLP groundfish license
by [DATE 36 MONTHS AFTER
IMPLEMENTATION DATE]; and
(E) The written request is submitted to
NMFS using one of the following
methods:
(1) Mail: Regional Administrator, c/o
Restricted Access Management Program,
NMFS, P.O. Box 21668, Juneau, AK
99802–1668;
(2) Fax: 907–586–7354; or
(3) Hand delivery or carrier: NMFS,
Room 713, 709 West 9th Street, Juneau,
AK 99801.
*
*
*
*
*
■ 4. Table 9 to part 679 is added to read
as follows:
TABLE 9 TO PART 679—GROUNDFISH LLP LICENSES ELIGIBLE FOR USE IN THE BSAI LONGLINE CATCHER/PROCESSOR
SUBSECTOR, COLUMN A
[X indicates whether Column B or Column C applies]
Column A
4508
1785
3681
3676
3609
1400
1401
3617
1916
1917
1989
1127
1128
1125
4823
2783
1988
2238
2958
3973
3637
2421
1713
3616
2892
2112
5222
1578
2026
3847
3602
2081
4008
3090
1576
2959
Column C
The Holder of Groundfish
License Number . . .
LLG
LLG
LLG
LLG
LLG
LLG
LLG
LLG
LLG
LLG
LLG
LLG
LLG
LLG
LLG
LLG
LLG
LLG
LLG
LLG
LLG
LLG
LLG
LLG
LLG
LLG
LLG
LLG
LLG
LLG
LLG
LLG
LLG
LLG
LLG
LLG
Column B
Is eligible under 50 CFR
679.4(k)(3)(i)(D)(1) to be
assigned a 220-foot (67 m)
MLOA on that LLP license
Is eligible to request that
NMFS permanently assign a
220-foot (67 m) MLOA on that
LLP License under 50 CFR
679.4(k)(3)(i)(D)(2)
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
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[FR Doc. 2013–25271 Filed 10–24–13; 8:45 am]
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Agencies
[Federal Register Volume 78, Number 207 (Friday, October 25, 2013)]
[Proposed Rules]
[Pages 63951-63958]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-25271]
[[Page 63951]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 121029593-3851-01]
RIN 0648-BC73
Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea
and Aleutian Islands Management Area; Amendment 99
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS issues a proposed rule that would implement Amendment 99
to the Fishery Management Plan for Groundfish of the Bering Sea and
Aleutian Islands Management Area (BSAI FMP). If approved, Amendment 99
would enable the holders of license limitation program (LLP) licenses
authorizing a designated vessel to catch and process Pacific cod in the
BSAI hook-and-line fisheries to use newly built or existing vessels
that are not eligible under current vessel length and capacity
restrictions. This action is necessary to promote safety-at-sea by
encouraging the replacement of older vessels with newer and more
efficient vessels that are able to meet modern vessel safety standards.
This action is intended to facilitate the increased retention and
utilization of groundfish by allowing sector participants to use larger
vessels with increased processing and hold capabilities. This action is
intended to promote the goals and objectives of the BSAI FMP, the
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act), and other applicable laws.
DATES: Submit comments on or before November 25, 2013.
ADDRESSES: You may submit comments, identified by FDMS Docket Number
NOAA-NMFS-2012-0220, by any of the following methods:
Electronic Submissions: Submit all electronic public comments via
the Federal eRulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2012-0220, click the ``Comment Now!'' icon,
complete the required fields, and enter or attach your comments
Mail: Address written comments to Glenn Merrill, Assistant Regional
Administrator, Sustainable Fisheries Division, Alaska Region NMFS,
Attn: Ellen Sebastian. Mail comments to P.O. Box 21668, Juneau, AK
99802-1668.
Fax: Address written comments to Glenn Merrill, Assistant Regional
Administrator, Sustainable Fisheries Division, Alaska Region NMFS,
Attn: Ellen Sebastian. Fax comments to 907-586-7557.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NMFS. All comments received are a part of the
public record and will generally be posted for public viewing on
www.regulations.gov without change. All personal identifying
information (e.g., name, address, etc.), confidential business
information, or otherwise sensitive information submitted voluntarily
by the sender will be publicly accessible. NMFS will accept anonymous
comments (enter ``N/A'' in the required fields if you wish to remain
anonymous). Attachments to electronic comments will be accepted in
Microsoft Word, Excel, or Adobe PDF file formats only.
Electronic copies of the Regulatory Impact Review (RIR) and the
Categorical Exclusion prepared for this proposed action may be obtained
from https://www.regulations.gov or from the NMFS Alaska Region Web site
at https://alaskafisheries.noaa.gov.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
proposed rule may be submitted to NMFS Alaska Region and by email to
OIRA_Submission@omb.eop.gov or fax to (202) 395-7285.
FOR FURTHER INFORMATION CONTACT: Seanbob Kelly, 907-586-7228.
SUPPLEMENTARY INFORMATION:
Regulatory Authority
NMFS proposes regulations to implement Amendment 99 to the BSAI
FMP. NMFS manages the U.S. groundfish fisheries of the Exclusive
Economic Zone (EEZ) off Alaska under the Fishery Management Plan for
Groundfish of the Gulf of Alaska (GOA FMP) and the BSAI FMP. The North
Pacific Fishery Management Council (Council) prepared the GOA FMP and
BSAI FMP pursuant to the Magnuson-Stevens Act and other applicable
laws. Regulations implementing the GOA FMP and BSAI FMP appear at 50
CFR part 679. General regulations that pertain to U.S. fisheries appear
at subpart H of 50 CFR part 600.
Background
The proposed action would amend the BSAI FMP and revise Federal
regulations to: (1) Increase the maximum length overall (MLOA) to 220
feet (67 m) on LLP licenses authorizing vessels to catch and process
Pacific cod with hook-and-line gear in the BSAI; (2) allow holders of
LLP licenses authorized to catch and process Pacific cod with both
hook-and-line and pot gear in the BSAI to increase the MLOA on the LLP
license to 220 feet (67 m) only if the pot gear endorsement is
surrendered within a specific time frame; and (3) allow vessels that
catch and process Pacific cod with hook-and-line in the BSAI to exceed
length, tonnage, and power limits established under the American
Fisheries Act (AFA). The following sections provide background on the
need for, the objectives of, and the effects of the proposed action.
The LLP and BSAI Longline Catcher Processor Subsector
Under the LLP, which was implemented by NMFS on January 1, 2000 (63
FR 52642, October 1, 1998), an LLP license is required for all vessels
directed fishing for groundfish in the BSAI and GOA, with limited
exemptions for smaller vessels and vessels using a limited amount of
jig gear. Directed fishing is defined in regulations at Sec. 679.2.
For a vessel designated on an LLP license, the LLP license authorizes
the type of fishing gear that may be used by the vessel, the maximum
size of the vessel, and whether the vessel may catch and process fish
at sea or if it is limited to delivering catch without at-sea
processing. LLP licenses that allow vessels to catch and process at-sea
are assigned a catcher/processor (C/P) endorsement, and those that
restrict vessels from at-sea processing are assigned a catcher vessel
endorsement.
LLP licenses specify the MLOA of the vessel to which that LLP
license may be assigned. Participants in LLP groundfish fisheries are
prohibited from using a vessel to fish for LLP groundfish that has a
length overall (LOA) that is greater than the MLOA specified on the LLP
license (see Sec. 679.7(i)(6)). Until 2003, an LLP license included
gear and operational type (C/P or catcher vessel) endorsements, but did
not include endorsements to directed fish for specific groundfish
species. In 2003, NMFS modified the LLP to include a species
endorsement for Pacific cod in the BSAI. In 2011, NMFS implemented
modifications to the LLP to include a species endorsement for Pacific
cod in
[[Page 63952]]
the GOA. A vessel can directed fish for Pacific cod in the BSAI or GOA
only if the vessel is designated on an LLP license that has this
specific endorsement, with limited exemptions for smaller vessels and
vessels using a limited amount of jig gear as specified at Sec.
679.4(k)(9)(iv) and Sec. 679.4(k)(10)(iv). NMFS included Pacific cod
endorsements on existing LLP licenses based on eligibility criteria,
primarily whether the license or the vessel had been used to harvest
Pacific cod. Additional detail on the development and rationale for the
LLP and Pacific cod endorsements in the BSAI and GOA can be found in
the final rule implementing these Pacific cod endorsement requirements
and is not repeated here (see 67 FR 18129, April 15, 2002 for the BSAI;
see 76 FR 15826, March 22, 2011, for the GOA).
The LLP Pacific cod endorsement requirement has, in effect, limited
the number of vessels that are eligible to fish for Pacific cod in the
BSAI and GOA. For example, under existing LLP regulations, the vessels
currently used to directed fish for Pacific cod in the BSAI using hook-
and-line gear and to process that catch at sea must be assigned an LLP
license with a BSAI Pacific cod hook-and-line C/P endorsement. Public
Law 108-447, 118 Stat. 2887, Dec. 8, 2004, at section 219(a)(6),
defines the term ``longline catcher processor subsector'' as ``the
holders of an LLP license that is noninterim and transferable, or that
is interim and subsequently becomes noninterim and transferable, and
that is endorsed for Bering Sea or Aleutian Islands catcher processor
fishing activity, C/P, Pcod [Pacific cod], hook and line gear.'' There
are 36 LLP licenses that meet the eligibility criteria for the BSAI
longline C/P subsector as defined in section 219(a)(6).
Vessels Operating In the BSAI Longline C/P Subsector and the Pacific
Cod Fishery
Most vessels currently operating in the BSAI longline C/P subsector
were not designed as fishing vessels for the BSAI but were converted to
longline C/Ps from some other use. The vessels in the BSAI longline C/P
subsector range in length from 107 feet (32.6 m) to 180 feet (54.8 m)
LOA. The average age of the vessels in this fleet is approximately 40
years, and 30 percent were built before 1946. In general, the newer
vessels participating in this subsector have longer LOAs and were
designed to specifically target groundfish with longline gear.
Production capacity is directly related to vessel length and overall
vessel design. For example, the larger vessels in the fleet can
accommodate larger freezer holds that allow vessels to stay at sea for
longer periods. Larger vessels can provide a larger processing platform
that can be converted to accommodate more processing equipment, which
can be optimally located in vessels specifically designed for fishing
to increase overall daily throughput. Moreover, longer vessels are able
to operate in most weather conditions, including conditions that may be
considered adverse by longline C/Ps with relatively shorter length.
Vessels participating in the BSAI longline C/P subsector are described
in more detail in section 1.5 of the RIR for this action (See
ADDRESSES).
Vessels used in the BSAI longline C/P subsector target groundfish
with longline gear that consists of a stationary, buoyed, and anchored
line with hooks attached for the taking of fish. Once landed,
groundfish are sorted by size and weight, and then packed and frozen
onboard. Vessels eligible to participate in the BSAI longline C/P
subsector primarily target Pacific cod in the BSAI, but many also
participate in Greenland turbot and sablefish fisheries in the BSAI, as
well as Pacific cod fisheries in the GOA. In addition, vessels using
longline gear retain incidentally caught species such as skates,
rockfish, arrowtooth flounder, and pollock.
Recent participation information for vessels eligible to
participate in the BSAI longline C/P sector indicates that the number
of these vessels harvesting Pacific cod in the BSAI fishery has been
relatively stable and the number of vessels harvesting Pacific cod in
the GOA fishery has declined. From 2011 through 2013, approximately 33
vessels eligible to participate in the BSAI longline C/P sector
harvested Pacific cod in the BSAI. Of the 36 LLP licenses in the BSAI
longline C/P subsector, 27 LLP licenses are also endorsed to fish in
the GOA Pacific cod fisheries. The number of vessels named on the 36
LLP licenses in the BSAI longline C/P subsector that harvested Pacific
cod in the GOA declined from a peak of 18 vessels in 2007 to 14 vessels
in 2011, and to 6 vessels in 2012. Three of the 36 LLP licenses that
are eligible for the BSAI longline C/P subsector are also authorized to
participate in the BSAI Pacific cod fisheries with a C/P using pot
gear; of these three licenses, only one is also endorsed to authorize
participation in the Western GOA Pacific cod fisheries with a C/P using
pot gear. Vessels named on these three LLP licenses may elect to
participate in either the longline or pot C/P sector in the BSAI
Pacific cod fishery, or the vessel may participate in both sectors.
The Council and NMFS annually establish total allowable catch (TAC)
limits for Pacific cod and other groundfish targeted by C/Ps using
hook-and-line gear in the BSAI and the GOA. The TAC amounts are
allocated among user groups as part of the annual harvest
specifications process, as authorized at Sec. 679.20. In the BSAI,
Pacific cod is apportioned between the Western Alaska Community
Development Quota (CDQ) Program and non-CDQ fishery participants.
Allocations to the CDQ Program are assigned to CDQ groups as defined by
section 305(i) of the Magnuson-Stevens Act. The CDQ groups harvest
almost all their Pacific cod allocations with vessels that are members
of the BSAI longline C/P subsector.
In 2007, NMFS modified the Pacific cod allocations to specific
sectors in the BSAI under regulations implementing Amendment 85 to the
BSAI FMP (72 FR 50788, September 4, 2007). Amendment 85 modified the
allocations of the annual BSAI Pacific cod TAC among various harvest
sectors as seasonal apportionments. Amendment 85 increased the
percentage of the BSAI Pacific cod TAC apportioned to the CDQ Program
from 7.5 percent to 10.7 percent. The remaining TAC, known as non-CDQ
TAC, is further apportioned between seasons for jig, pot, hook-and-
line, and trawl gear types and operating types. The BSAI longline C/P
subsector receives 48.7 percent of the annual non-CDQ allocation of the
Pacific cod TAC as two separate seasonal allowances. The regulations
implementing Amendment 85 require a sector to stop conducting directed
fishing for Pacific cod when its allocation is exhausted, even if TAC
allocated to other sectors remains unharvested. This ensures that
fishery participants in one sector do not compete for BSAI Pacific cod
with participants in other sectors.
The BSAI longline C/P subsector is also allocated a limited amount
of halibut to be used as prohibited species catch (PSC) in the Pacific
cod fishery under regulations implementing Amendment 85 because halibut
is incidentally caught by vessels using hook-and-line gear. The halibut
PSC limit ensures that total incidental mortality of halibut does not
exceed a specified limit while at the same time allowing participants
to conduct their target fisheries. Once this halibut PSC limit is
reached, then NMFS closes directed fishing for groundfish that results
in the take of halibut. This halibut PSC limit constrains the BSAI
longline C/P subsector in the Pacific cod
[[Page 63953]]
and other groundfish fisheries. Prior to the implementation of
Amendment 85, halibut PSC was apportioned to the hook-and-line sector,
but was not further apportioned between C/Ps and catcher vessels.
Amendment 85 sub-apportioned the available hook-and-line halibut PSC
between the catcher vessel and C/P sectors, which gave the BSAI
longline C/P subsector a separate apportionment of halibut PSC.
Regulations at Sec. 679.21(e)(2) and (4) specify that a portion of
total halibut mortality be made available to the BSAI longline C/P
subsector. Typically, this halibut PSC is further allocated seasonally
through the annual harvest specifications process.
NMFS has also established specific allocations of Pacific cod in
the GOA similar to those in the BSAI. In December 2009, the Council
recommended that NMFS implement Amendment 83 to the GOA FMP to
supersede the inshore/offshore processing allocations of Pacific cod
and establish sector allocations of the TACs. Upon implementation of
Amendment 83 in 2012 (76 FR 74670, December 1, 2011), NMFS divided the
GOA Pacific cod TACs and halibut PSC among gear and operation type,
based primarily on historical dependency and catch history by each
sector. The hook-and-line C/P sector is allocated 19.8 percent of the
annual Western GOA TAC and 5.1 percent of the annual Central GOA TAC.
Halibut PSC is also apportioned between the hook-and-line C/P and
catcher vessel sectors proportional to the allocation of Pacific cod to
those sectors. Consistent with halibut PSC management in the BSAI, this
halibut PSC allocation ensures that total incidental mortality of
halibut does not exceed a specified limit while at the same time
allowing participants to conduct their target fisheries. Additional
detail on Pacific cod and halibut PSC apportionment is provided in the
final rule implementing Amendment 83 and is not repeated here (76 FR
74670, December 1, 2011).
Freezer Longline Conservation Cooperative
In addition to the constraints on Pacific cod allocations and
halibut PSC limits implemented under regulations for Amendment 85 to
the BSAI FMP and Amendment 83 to the GOA FMP, the BSAI longline C/P
subsector has voluntarily developed private contractual arrangements to
limit Pacific cod and halibut PSC use in the BSAI, effectively
establishing a de facto limited access program. Congress' definition of
the BSAI longline C/P subsector and the allocation of BSAI Pacific cod
and halibut PSC specifically to the BSAI longline C/P subsector
encouraged holders of eligible LLP licenses to form a voluntary
cooperative and divide the Pacific cod and halibut PSC allocations
among its members. Cooperatives allow multiple quota recipients to
aggregate their annual quota amounts, coordinate their collective
fishing operations, and benefit from the resulting efficiencies. Since
the fishing season opened on June 20, 2010, all holders of eligible
BSAI longline C/P subsector LLP licenses have joined a single
cooperative, the Freezer Longline Conservation Cooperative (FLCC).
Cooperative management enables the license holders to efficiently
harvest sector allocations through the coordination of fishing effort
among participants. Cooperation among vessel owners has resulted in
improved bycatch avoidance and has increased the value and variety of
seafood products in the subsector. In addition, the FLCC has
established private contractual arrangements that divide the sector's
Pacific cod and halibut PSC allocations among the member vessels; thus,
participants are able to maximize the harvest and value of the Pacific
cod allocation for a given halibut PSC limit.
In 2010, Congress passed the Longline Catcher Processor Subsector
Single Fishery Cooperative Act (Pub. L. 111-335) to modify the process
to form a cooperative in the subsector. Under this Act, NMFS must
implement a single, mandatory cooperative with exclusive catch
privileges for each BSAI longline C/P subsector LLP license holder if
requested to do so by persons holding at least 80 percent of the LLP
licenses eligible to participate in the BSAI longline C/P subsector
(i.e., at least 29 of the 36 LLP licenses). To date, NMFS has not
received any such request; however, the fact that such a mandatory
cooperative is explicitly authorized by Congress helps to ensure that
if the voluntary cooperative established by the FLCC is unable to
continue, regulations to establish a mandatory cooperative with
exclusive catch privileges could be implemented by NMFS upon request of
a sufficient number of the members of the subsector.
Objectives of, and Rationale for, Amendment 99 and This Proposed Rule
Although participants in the BSAI longline C/P subsector are
currently authorized to replace their vessels, the LLP limits the
ability of vessels to exceed a specific length. In addition, provisions
of the AFA limit a vessel owner's ability to receive a fishery
endorsement for a replacement vessel that exceeds specified length,
power, and displacement restrictions unless specifically recommended by
the Council and approved by the Secretary of Commerce. These statutory
vessel capacity restrictions are described in more detail in the
``American Fisheries Act and United States Maritime Administration''
section of this preamble.
The Council and NMFS recognize that these regulatory and statutory
vessel capacity restrictions provide a disincentive for owners to
rebuild or replace their vessels with larger, more efficient and safer
vessels. In October 2012, the Council recommended Amendment 99, which
would allow owners of vessels used in the BSAI longline C/P subsector
to rebuild or replace their vessels with larger vessels. The principal
objective of the proposed action is to promote the sustainable harvest
of groundfish, especially Pacific cod in the BSAI and GOA, by removing
disincentives for owners of vessels to rebuild or replace their vessels
with larger vessels. To the extent that the vessel owners exercise the
vessel replacement opportunity provided in this proposed action, it
would promote efficient utilization of the Pacific cod resource in the
BSAI and GOA. The proposed action would also promote safety-at-sea by
allowing vessel owners to replace existing vessels with vessels that
can accommodate improved safety features and minimize the risks faced
by crew members.
The Council and NMFS recognize that raising the vessel length
limits could provide vessel owners with the additional hold capacity
necessary to increase the rate of processing throughput and storage
capacity. As discussed in section 1.6.2 of the RIR prepared for this
action, larger vessels can incorporate larger freezer holds that allow
a vessel to stay at sea for longer periods, while smaller vessels
generally require more trips to travel to and from fishing grounds to
offload product. Fewer trips would increase vessel efficiency by
reducing fuel consumption and minimizing transit time, which would
allow vessel owners to minimize the time required to harvest their
quota. The Council recognized the need to lengthen the vessel size
restrictions to encourage vessel owners to accelerate the replacement
of vessels in the BSAI longline C/P subsector fleet. The Council noted
that in many cases the cost of a new vessel may not be affordable
without the increased production efficiency that could result from
constructing a larger, more efficient vessel that meets modern safety
requirements.
[[Page 63954]]
Under Amendment 99, the MLOA specified on LLP licenses in the BSAI
longline C/P subsector that are not also endorsed for pot gear would be
increased to 200 feet (67 m). The Council determined that a 220-foot
(67 m) MLOA for these eligible LLP licenses would encourage LLP license
holders in the BSAI longline C/P subsector to replace aging vessels
with newer, safer, and more efficient vessels. The Council considered
several size limits, including no size limit, and other variable rate
and fixed-length increases to vessel size prior to recommending
Amendment 99. Prior to selecting a preferred alternative, the Council
received public testimony that a 220-foot (67 m) MLOA would provide
adequate incentives to meet the Council's objectives for this action
and likely would allow vessel owners to replace vessels with new
vessels that could accommodate improved efficiency and safety design.
Specifically, vessel owners potentially affected by this proposed
action stated that anticipated vessel designs likely would not result
in vessels greater than 220 feet (67 m) due to the costs of
construction and operation of these larger vessels relative to
anticipated revenues. These assertions are supported by section 1.6.2.2
of the RIR prepared for this action, which describes that processing
capacity constraints likely limit the size of vessels used in the BSAI
longline C/P subsector to 220 feet (67 m) or less.
Currently, each of the 36 LLP licenses eligible for the BSAI
longline C/P subsector have an MLOA equal to or less than 220 feet (67
m). The average MLOA specified on an LLP license currently eligible for
the BSAI longline C/P subsector is 152.6 feet (46.5 m). Seventeen of
the 36 eligible LLP licenses have an MLOA of less than 150 feet (45.7
m). Increasing the MLOA specified on the LLP licenses in the BSAI
longline C/P subsector to 220 feet (67 m) would not constrain any
existing LLP licenses in terms of vessel length. Additional detail on
the LLP licenses currently eligible for the BSAI longline C/P subsector
can be found in section 1.5.1 of the RIR for this action (see
ADDRESSES).
The Council also recommended management measures designed to
protect historical participants in the Pacific cod pot fisheries that
could be adversely affected by the use of larger, more efficient
vessels in the BSAI longline C/P subsector. As noted earlier in this
preamble, the Council and NMFS recognized that three of the 36 LLP
licenses endorsed for participation in the the BSAI longline C/P
subsector also authorize the designated vessel to target Pacific cod
with C/Ps using pot gear in the BSAI: Two of those LLP licenses
authorize participation in the BSAI Pacific cod fisheries with C/Ps
using pot gear; one of the LLP licenses authorizes participation in the
BSAI and Western GOA Pacific cod fisheries with C/Ps using pot gear.
The proposed regulations to implement Amendment 99 would allow a person
holding a LLP license endorsed to catch and process Pacific cod with
hook-and-line and pot gear in the BSAI to increase the MLOA on the LLP
license to 220 feet (67 m) only if the LLP holder elects to surrender
any Pacific cod pot gear endorsements within a specific time frame. The
Council and the Secretary recognize the potentially adverse competitive
effects of increased fishing capacity by the longline C/P subsector
relative to the C/Ps using pot gear. Under this proposed rule, holders
of the two BSAI longline C/P subsector LLP licenses with BSAI Pacific
cod pot gear C/P endorsements could either surrender the BSAI Pacific
cod pot gear C/P endorsements and receive an LLP license with a 220
feet (67 m) MLOA or retain their current MLOA and continue to
participate in both fisheries. Similarly, the holder of the BSAI
longline C/P subsector LLP license with BSAI and Western GOA Pacific
cod pot gear C/P endorsements could either surrender the BSAI and GOA
Pacific cod pot gear C/P endorsements and receive an LLP license with a
220 feet (67 m) MLOA or retain the BSAI Pacific cod pot gear C/P
endorsements and the current LLP license MLOA would continue to apply.
The Council recognized that allowing holders of LLP licenses with
Pacific cod pot gear C/P endorsements to name larger vessels on those
LLP licenses could increase vessel capacity in the pot gear C/P
fisheries and could disadvantage historical participants in the sector
who would continue to be constrained by the MLOAs specified on their
LLP licenses. As a result, the Council determined that allowing some
participants in the pot gear C/P fisheries with hook-and-line
endorsements to have longer MLOAs specified on their LLP licenses could
allow these participants to harvest a greater proportion of the GOA
Pacific cod sector allocation relative to their historical catch. This
could negatively impact historical participants in the Pacific cod pot
fisheries and would not promote a fair and equitable standard for all
participants in the pot gear C/P fisheries. The Council recommended
that NMFS promulgate regulations to ensure that holders of LLP licenses
eligible for the BSAI longline C/P subsector that choose to retain
Pacific cod pot gear C/P endorsements would continue to be restricted
by the current MLOAs on the LLP licenses. The Council recommended, and
NMFS proposes, a time limit on the one-time permanent election for
these LLP license holders that would close 36 months from the date of
implementation of this action, if it is approved. The deadline for
making the one-time election is intended to promote the conservation
and management of the BSAI and GOA Pacific cod fisheries by clearly
identifying pot gear C/P sector participants within a reasonable time
frame and by establishing an upper limit on vessel capacity in the BSAI
longline C/P subsector.
To implement Amendment 99, NMFS would increase the MLOA on LLP
licenses eligible to participate in the BSAI longline C/P subsector.
Vessels are prohibited, at 679.7(h)(6), from fishing for LLP groundfish
with a vessel that has a length overall that exceeds the MLOA specified
on the license that authorizes fishing for the LLP groundfish.
Therefore, under this action, the MLOA on an eligible LLP license would
be increased. This proposed action would not prevent subsector
participants from naming an existing vessel on their LLP license;
however, the Council and NMFS anticipate that most replacement vessels
would be newly constructed. As noted earlier in this preamble, newly
constructed vessels would be better designed for fishing than are many
of the existing vessels in the fleet. Most existing vessels lack the
capacity to incorporate innovations and facilities that are available
in newly constructed vessels. A vessel built to contemporary safety
standards would likely incorporate advancements in marine design that
improve efficiency.
As discussed in section 1.6.2 of the RIR, NMFS expects that this
proposed action will not increase the fishing operations of C/Ps using
hook-and-line gear in the BSAI or GOA. As described in this preamble,
management constraints, such as Pacific cod species endorsements on LLP
licenses, sector allocations for Pacific cod in the BSAI and GOA, and
halibut PSC limits in the BSAI and GOA, limit the ability of vessels
assigned these LLP licenses to expand their overall fishing operations
in groundfish fisheries.
Specifically, these management measures in the BSAI and GOA provide
an overall limit to the Pacific cod catch by vessels in this subsector,
thereby limiting the potential for the C/P vessels endorsed for hook-
and-line gear to
[[Page 63955]]
compete with other subsectors for Pacific cod TAC. While it is possible
that larger BSAI longline C/P vessels entering the GOA Pacific cod
fishery could increase competition in that fishery, the Council
recognized that the harvest patterns of individual FLCC member vessels
are unlikely to change under the proposed action. Since the formation
of the cooperative, FLCC member vessels eligible to catch and process
Pacific cod in the GOA have not increased effort in the GOA Pacific cod
fisheries despite the efficiencies gained by cooperative management and
their significantly longer length compared to the hook-and-line C/Ps
active in the GOA that are not FLCC members. The Council noted that
although the BSAI longline C/P fleet could increase effort under the
status quo, they have not and so it is unlikely that the replacement of
existing vessels with longer vessels would increase competition in the
GOA.
As noted earlier in this preamble, NMFS anticipates that the BSAI
longline C/P subsector will continue to operate in the FLCC to
coordinate Pacific cod harvests. This continued coordination promotes
consistent harvesting practices by member vessels, including the newer
and more efficient vessels entering the fishery. Moreover, NMFS does
not anticipate rapid changes in the composition, quantity of vessels,
or capacity of the BSAI longline C/P fleet in response to this proposed
action, due to the costs and time required for construction of new
vessels. Collectively, these factors indicate that the proposed action
would not result in a modification of fishing behavior among FLCC
members as they target Pacific cod or other groundfish species. While
it is possible that FLCC members could expand participation in the
Pacific cod pot fishery, this expansion is constrained by the proposed
limitations on LLP licenses with Pacific cod hook-and-line and pot C/P
endorsements as described above.
Proposed Regulatory Amendments
To implement Amendment 99, NMFS proposes to list the groundfish LLP
licenses that would be modified by this action at Table 9 to part 679.
As proposed, Table 9 to part 679 would list in Column A the 36 LLP
licenses endorsed to participate in the BSAI longline C/P subsector.
Table 9 would also differentiate between the LLP licenses that qualify
for an increase in MLOA length to 220 feet (67 m), as designated in
Column B, and the LLP license holders eligible for a one-time election
to permanently surrender and extinguish certain LLP license
endorsements in exchange for an increase in the MLOA to 220 feet (67
m), as listed in Column C.
NMFS proposes to revise the regulatory definition of Maximum LOA
(MLOA) at Sec. 679.2 and to establish regulatory provisions at Sec.
679.4(k)(3)(i)(D) for a new MLOA category. Under this proposed
provision, NMFS would revise MLOAs on the LLP licenses designated in
Column B of Table 9 to part 679. If Amendment 99 and its implementing
regulations are approved, 30 days following the publication of the
final rule, the NMFS Restricted Access Management Division would issue
new LLP licenses with an MLOA of 220 feet (67 m) to the holders of the
eligible licenses designated in Column B of Table 9 to part 679. NMFS
would revise only the MLOA of the LLP licenses designated in Column B
of Table 9 to part 679, and not the area, gear, and operational type
endorsements. The new LLP licenses would be mailed to the address
provided to NMFS by the holder of the qualifying LLP license. NMFS
would establish this revised definition of ``Maximum LOA (MLOA)'' at
Sec. 679.2 to ensure that all LLP licenses designated in Column B of
Table 9 to part 679 would be revised on the effective date of the final
rule, if approved. NMFS would not need to modify the definition of
``Maximum LOA (MLOA)'' at Sec. 679.2 to apply to LLP licenses listed
in Column C of Table 9 to part 679 because the MLOAs of those LLP
licenses would only be modified after the submission of a written
request from the holders of LLP licenses specified in Column C of Table
9 to part 679 under specific provisions described in the following
paragraphs of this preamble.
NMFS proposes regulations at Sec. 679.4(k)(3)(i)(D)(2) to
implement the Council's recommendation that the MLOA on an LLP license
endorsed for participation in the BSAI longline C/P subsector would not
be modified as long as the LLP license holder retains an endorsement to
participate in Pacific cod pot fisheries in the BSAI or GOA. NMFS
proposes to establish procedures for surrendering a Pacific cod pot
gear endorsement on LLP licenses also endorsed to participate in the
BSAI longline C/P subsector. NMFS would establish a process for
eligible participants in the BSAI longline C/P subsector to surrender
their Pacific cod pot gear endorsements for the BSAI and GOA in
exchange for receiving an LLP with an MLOA of 220 feet (67 m)
authorizing participation in the BSAI Pacific cod longline C/P
fisheries. As proposed, NMFS would assign an MLOA of 220 feet (67 m) to
any of the three LLP licenses listed in Column C of proposed Table 9
whose holders surrender the Pacific cod pot gear endorsements on their
LLP license. This one-time election to surrender the Pacific cod pot
gear endorsements on an LLP license would be permanent, and NMFS would
extinguish the surrendered Pacific cod pot gear endorsements. Current
LLP regulations at Sec. 679.4(k)(7)(viii) specify that LLP
endorsements are non-severable from the license, with one exception for
an Aleutian Island area endorsement under the provisions of Sec.
679.4(k)(4)(ix)(A). Specifying that LLP endorsements are non-severable
from the license limits the ability of a person to assign an LLP
license that was derived from the historical landing activity of a
vessel in one area, using a specific fishing gear, or operational type
to be used in other areas, with other gears, or for other operational
types in a manner that could expand fishing capacity. The Council's
recommendation to allow the holders of three LLP licenses to surrender
Pacific cod pot gear endorsements associated with the license is
consistent with this objective because the surrendered endorsements
would be extinguished. NMFS would not transfer the endorsements to
another person, and the endorsements could not be used in other areas,
with other gears, or for other operational types.
NMFS proposes regulations at Sec. 679.4(k)(6)(xi) to describe the
requirements for holders of LLP licenses eligible to participate in the
BSAI longline C/P subsector to surrender their Pacific cod pot gear C/P
endorsements. If the Secretary approves Amendment 99 and its
implementing regulations, NMFS would notify in writing the three LLP
license holders listed in Column C of the proposed Table 9 to part 679
of their option to elect to surrender their Pacific cod pot gear C/P
endorsements on their LLP license and receive a 220-foot (67 m) MLOA.
Owners of eligible licenses, or their agents, would need to notify NMFS
in writing at the address specified at Sec. 679.4(k)(6)(xi) that they
elect to surrender the endorsements. The request would need to include
a signed statement notifying NMFS that the holder of the LLP license
acknowledges that the election is permanent and irreversible and that
all pot gear Pacific cod endorsements on that LLP would be
extinguished. Each LLP license holder would have 36 months from the
date of implementation of this proposed action to notify NMFS in
writing of the one-time permanent election. If the written notification
is received by NMFS within the 36 months
[[Page 63956]]
prior to the deadline, NMFS would issue a revised LLP license to the
holder of that license. License holders who choose not to make the one-
time election or who do not submit a written notification within the
36-month deadline would retain their current MLOA and continue to
participate in both the Pacific cod pot fisheries and longline
fisheries in the BSAI and GOA.
American Fisheries Act and United States Maritime Administration
In order for a vessel to participate in a U.S. fishery, a vessel
must obtain a certificate of documentation with a fishery endorsement
from either the U.S. Coast Guard or the Maritime Administration
(MARAD), as set forth in regulations at 46 U.S.C. 12102(a) and 12151(b)
The American Fisheries Act of 1998, as amended (AFA), Title II,
Division C, Public Law 105-277, was enacted to increase U.S. citizen
participation in U.S. fisheries. The AFA required the Maritime
Administration to ensure compliance with the U.S. citizenship ownership
and control requirements for U.S.-flag fishing industry vessels of 100
feet or greater in registered length. Therefore, a vessel 100 feet or
greater in registered length must receive this documentation from
MARAD.
The AFA and MARAD implementing regulations prohibit larger vessels
from obtaining a fishery endorsement unless specific conditions are
met. Unless an exemption applies, a vessel is not eligible for a
fishery endorsement if it is greater than 165 feet in length, or more
than 750 gross registered tons, or has engines capable of producing
more than 3,000 shaft horsepower.
These regulations were intended to limit but not reduce fishing
capacity in the BSAI; however, the regulations effectively limit the
ability of vessel owners to replace vessels currently participating in
the BSAI longline C/P subsector with newer vessels of an equivalent
size. There are currently nine vessels named on LLP licenses eligible
to participate within the BSAI longline C/P subsector that exceed at
least one of the thresholds described at 46 CFR 356.47(a) and (c).
These vessels are able to participate in the fishery because they
received a fishery endorsement prior to September 25, 1997; however,
the license holders could not replace vessels named on their LLP
licenses with vessels of comparable or additional capacity and continue
to participate in the BSAI longline C/P subsector because such vessels
would not be eligible for a fishery endorsement.
An exemption from these regulations is possible if the owner of
such a vessel demonstrates to MARAD that the regional fishery
management council of jurisdiction, established under section 302(a)(1)
of the Magnuson-Stevens Act, has recommended after October 21, 1998,
and the Secretary has approved, conservation and management measures in
accordance with regulations implementing the AFA at 46 CFR 356.47, to
allow vessels that may exceed the length, horsepower, and tonnage
requirements to be used in fisheries under such council's authority.
NMFS and MARAD General Counsel consulted to determine what action on
the part of the Council and NMFS would satisfy this exemption. NMFS and
MARAD General Counsel determined, based on the regulatory requirments
established at 46 CFR 356.47(c), that the Council would need to
recommend, and the Secretary would need to approve, conservation and
management measures that would allow such a vessel to be used in the
BSAI longline C/P subsector fisheries. The statutory vessel capacity
restrictions are described in more detail in section 1.2.2 of the RIR
for this action (See ADDRESSES).
If the Secretary approves Amendment 99 and issues a final rule to
implement Amendment 99, the Secretary will have approved conservation
and management measures that would permit a vessel to exceed the limits
specified at 46 U.S.C. 12113(d) in order to participate in the BSAI
longline C/P subsector. Secretarial approval of Amendment 99 and the
publication of implementing regulations are intended to provide MARAD
with documentation that eligible vessels qualify to receive a fishery
endorsement. If the Secretary approves Amendment 99 and issues a final
rule to implement Amendment 99, NMFS will notify MARAD that any vessel
named on an LLP license endorsed for participation in the BSAI longline
C/P subsector, which is greater than 165 feet in registered length, of
more than 750 gross registered tons, or that has an engine or engines
capable of producing a total of more than 3,000 shaft horsepower, is
authorized for use in the EEZ under the jurisdiction of the Council,
and is eligible to receive a certificate of documentation consistent
with 46 U.S.C. 12113(d) and MARAD regulations at 46 CFR 356.47.
Recordkeeping, Reporting, Monitoring and Enforcement
The proposed action would not change the monitoring and enforcement
requirements for participants in the BSAI C/P longline subsector. As
mentioned elsewhere in the this preamble, this proposed action would
add a reporting requirement for the LLP licenses identified in the
proposed Column C to Table 9 to part 679. The holders of these three
LLP licenses would need to notify NMFS of their election to permanently
surrender all pot Pacific cod endorsements in exchange for a 220-foot
(67 m) MLOA.
Beginning in 2013, all vessels participating in the BSAI C/P
longline subsector are required to follow a selected monitoring option,
either carry two observers or carry one observer and use a NMFS-
approved motion compensated flow scale, while directed fishing for
Pacific cod is open in the BSAI or while CDQ groundfish fishing (77 FR
59053, September 26, 2012). A description of monitoring and enforcement
regulations applicable to the BSAI C/P longline subsector is described
in more detail in the preamble to the proposed rule for these
requirements (77 FR 35925, June 15, 2012) and is not repeated here.
Classification
Pursuant to sections 304(b)(1)(A) and 305(d) of the Magnuson-
Stevens Act, the NMFS Assistant Administrator has determined that this
proposed rule is consistent with the BSAI and GOA FMPs, other
provisions of the Magnuson-Stevens Act, and other applicable law,
subject to further consideration after public comment.
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration (SBA) that this proposed rule, if adopted, would not
have a significant economic impact on a substantial number of small
entities. On June 20, 2013, SBA issued a final rule revising the small
business size standards for several industries effective July 22, 2013
(78 FR 37398). The rule increased the size standard for Finfish Fishing
from $ 4.0 to 19.0 million, Shellfish Fishing from $ 4.0 to 5.0
million, and Other Marine Fishing from $4.0 to 7.0 million. Id. at
37400 (Table 1). Pursuant to the Regulatory Flexibility Act (RFA),
codified at 5 U.S.C. 600-611, and prior to SBA's June 20 final rule, a
certification was developed for this action using SBA's former size
standards. NMFS has reviewed the analyses prepared for this action in
light of the new size standards and has determined that the new size
standards do not affect the analyses prepared for this action. NMFS
solicits public comment on the analyses in light of the new size
standards.
This rule would not have a significant economic impact on a
substantial
[[Page 63957]]
number of small entities. NMFS has reviewed the 2012 gross fishing
revenues from all sources for the vessels affiliated through this
cooperative, and finds that they substantially exceed the $19 million
threshold for determining whether a finfish fishing entity is large or
small, for RFA purposes, that became effective on July 22, 2013 (78 FR
37898). Moreover, NMFS has concluded that the 36 LLP license holders
impacted through this proposed action are all affiliated with each
other through membership in the FLCC. Consequently, all impacted
entities are considered ``large entities'' for the purpose of the RFA.
This conclusion is consistent with previous actions impacting the same
fleet, composed of the same operations, prosecuting the same resources
(77 FR 59053, September 26, 2012; 77 FR 58775, September 24, 2012). In
both cases, NMFS determined that the impacted entities are not
considered small entities for the purpose of the RFA based upon their
affiliations with larger fishing-entities or gross revenue. As a
result, an initial regulatory flexibility analysis is not required and
none has been prepared.
The economic analysis contained in the RIR for this action (see
ADDRESSES) further describes the regulatory and operational
characteristics and history of this fishery, including the origins and
operation of the fishery cooperative, the history of this action, and
the details of the alternatives considered for this action, including
the preferred alternative.
Duplicate, Overlapping, or Conflicting Federal Rules
No duplication, overlap, or conflict between this proposed action
and existing Federal rules has been identified.
Description of Significant Alternatives That Minimize Adverse Impacts
on Small Entities
Since there are no directly regulated small entities under this
action within the definition of small entities used in the RFA, there
are no economic impacts from this action on small entities.
Collection-of-Information Requirements
This proposed rule contains a collection-of-information requirement
subject to review and approval by OMB under the Paperwork Reduction Act
(PRA). This requirement has been submitted to OMB for approval under
OMB Control No. 0648-0334. Public reporting burden per response is
estimated to be 2 hours for One-time Election to Permanently Surrender
Pacific Cod Pot Gear Endorsement for the BSAI and GOA in Exchange for
Receiving an LLP with an MLOA of 220 feet Authorizing Participation in
the BSAI Pacific cod Longline C/P fisheries.
Public reporting burden includes the time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
Public comment is sought regarding: whether this proposed
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information shall
have practical utility; the accuracy of the burden estimate; ways to
enhance the quality, utility, and clarity of the information to be
collected; and ways to minimize the burden of the collection of
information, including through the use of automated collection
techniques or other forms of information technology. Send comments on
these or any other aspects of the collection of information to (enter
office name) at the ADDRESSES above, and email to OIRA_Submission@omb.eop.gov, or fax to (202) 395-7285.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB Control Number.
List of Subjects in 50 CFR Part 679
Alaska, Fisheries, Recordkeeping and reporting requirements.
Dated: October 21, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and
duties of the Deputy Assistant Administrator for Regulatory Programs,
National Marine Fisheries Service.
For the reasons set out in the preamble, NMFS proposes to amend 50
CFR part 679 as follows:
PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
0
1. The authority citation for 50 CFR part 679 continues to read as
follows:
Authority: 16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.;
Pub. L. 108-447.
0
2. In Sec. 679.2, add paragraph (2)(v) to the definition of ``Maximum
LOA (MLOA)'' to read as follows:
Sec. 679.2 Definitions.
* * * * *
Maximum LOA (MLOA) means:
(2) * * *
(v) The MLOA of a groundfish LLP license endorsed to catch and
process Pacific cod with hook-and-line gear in the BS or AI, or both,
and is designated in Column B of Table 9 to this part is 220 feet (67
m).
* * * * *
0
3. In Sec. 679.4, add paragraphs (k)(3)(i)(D) and (k)(6)(xi) to read
as follows:
Sec. 679.4 Permits.
* * * * *
(k) * * *
(3) * * *
(i) * * *
(D) Modification of the MLOA on a groundfish LLP license listed in
column A of Table 9 to this part. (1) Each groundfish LLP license
endorsed to catch and process Pacific cod with hook-and-line gear in
the BS or AI, or both, and designated in column B of Table 9 to this
part will receive a 220-foot (67 m) MLOA following November 25, 2013.
(2) Each groundfish LLP license endorsed to catch and process
Pacific cod with hook-and-line gear in the BS or AI, or both, and
designated in column C of Table 9 to this part is eligible to be
assigned a 220-foot (67 m) MLOA if the LLP holder submits a timely
written request to remove all pot gear Pacific cod endorsements on that
LLP following the process established under Sec. 679.4(k)(6)(xi) of
this part.
* * * * *
(6) * * *
(xi) Surrender and extinguishment of a groundfish LLP endorsement.
Endorsements specified on a groundfish LLP license are not severable
from a license and cannot be surrendered except that pot gear Pacific
cod endorsements specified on groundfish LLP licenses listed in Column
C of Table 9 to this part, can be permanently surrendered, removed and
extinguished if:
(A) The holder of the groundfish LLP license listed in Column C of
Table 9 to this part requests, in writing, that NMFS permanently remove
and extinguish all pot gear Pacific cod endorsements specified on that
LLP license and acknowledges in that written request that the surrender
and removal are permanent and irreversible and that all pot gear
Pacific cod endorsements on that LLP license are extinguished;
(B) The holder of the groundfish LLP license listed in Column C of
Table 9 to this part requests, in writing, that NMFS assign a 220-foot
(67 m) MLOA on that LLP license;
(C) The holder of the eligible LLP license, or the authorized
agent, signs the request;
[[Page 63958]]
(D) NMFS receives the written request to permanently remove and
extinguish all pot gear Pacific cod endorsements specified on the LLP
groundfish license by [DATE 36 MONTHS AFTER IMPLEMENTATION DATE]; and
(E) The written request is submitted to NMFS using one of the
following methods:
(1) Mail: Regional Administrator, c/o Restricted Access Management
Program, NMFS, P.O. Box 21668, Juneau, AK 99802-1668;
(2) Fax: 907-586-7354; or
(3) Hand delivery or carrier: NMFS, Room 713, 709 West 9th Street,
Juneau, AK 99801.
* * * * *
0
4. Table 9 to part 679 is added to read as follows:
Table 9 to Part 679--Groundfish LLP Licenses Eligible for Use in the BSAI Longline Catcher/Processor Subsector,
Column A
[X indicates whether Column B or Column C applies]
----------------------------------------------------------------------------------------------------------------
Column A Column B Column C
----------------------------------------------------------------------------------------------------------------
Is eligible to request that
Is eligible under 50 CFR NMFS permanently assign a 220-
The Holder of Groundfish License Number . . . 679.4(k)(3)(i)(D)(1) to be foot (67 m) MLOA on that LLP
assigned a 220-foot (67 m) License under 50 CFR
MLOA on that LLP license 679.4(k)(3)(i)(D)(2)
----------------------------------------------------------------------------------------------------------------
LLG 4508.......................................... X .............................
LLG 1785.......................................... X .............................
LLG 3681.......................................... X .............................
LLG 3676.......................................... X .............................
LLG 3609.......................................... X .............................
LLG 1400.......................................... X .............................
LLG 1401.......................................... X .............................
LLG 3617.......................................... X .............................
LLG 1916.......................................... X .............................
LLG 1917.......................................... X .............................
LLG 1989.......................................... X .............................
LLG 1127.......................................... X .............................
LLG 1128.......................................... X .............................
LLG 1125.......................................... X .............................
LLG 4823.......................................... X .............................
LLG 2783.......................................... X .............................
LLG 1988.......................................... X .............................
LLG 2238.......................................... X .............................
LLG 2958.......................................... X .............................
LLG 3973.......................................... X .............................
LLG 3637.......................................... X .............................
LLG 2421.......................................... X .............................
LLG 1713.......................................... X .............................
LLG 3616.......................................... X .............................
LLG 2892.......................................... X .............................
LLG 2112.......................................... X .............................
LLG 5222.......................................... X .............................
LLG 1578.......................................... X .............................
LLG 2026.......................................... X .............................
LLG 3847.......................................... X .............................
LLG 3602.......................................... X .............................
LLG 2081.......................................... X .............................
LLG 4008.......................................... X .............................
LLG 3090.......................................... ............................. X
LLG 1576.......................................... ............................. X
LLG 2959.......................................... ............................. X
----------------------------------------------------------------------------------------------------------------
[FR Doc. 2013-25271 Filed 10-24-13; 8:45 am]
BILLING CODE 3510-22-P