Fisheries of the Exclusive Economic Zone Off Alaska; Amendment 122 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area; Pacific Cod Trawl Cooperative Program, 8592-8633 [2023-01333]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 679
[230118–0016]
RIN 0648–BL08
Fisheries of the Exclusive Economic
Zone Off Alaska; Amendment 122 to
the Fishery Management Plan for
Groundfish of the Bering Sea and
Aleutian Islands Management Area;
Pacific Cod Trawl Cooperative
Program
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed rule; request for
comments.
AGENCY:
NMFS issues a proposed rule
to implement Amendment 122 to the
Fishery Management Plan (FMP) for
Groundfish of the Bering Sea and
Aleutian Islands Management Area
(BSAI). Amendment 122 would
establish the Pacific Cod Trawl
Cooperative Program (PCTC Program or
Program) to allocate Pacific cod harvest
quota to qualifying groundfish License
Limitation Program (LLP) license
holders and qualifying processors. The
PCTC Program would be a limited
access privilege program (LAPP) for the
harvest of Pacific cod in the BSAI trawl
catcher vessel (CV) sector. This
proposed action is necessary to increase
the value of the fishery, minimize
bycatch to the extent practicable,
provide for the sustained participation
of fishery-dependent communities,
ensure the sustainability and viability of
the resource, and promote safety and
stability in the harvesting and
processing sectors. This action is
intended to promote the goals and
objectives of the Magnuson-Stevens
Fishery Conservation and Management
Act (Magnuson-Stevens Act), the BSAI
FMP, and other applicable law.
DATES: Submit comments on or before
March 13, 2023.
ADDRESSES: You may submit comments,
identified by NOAA–NMFS–2022–0072,
by any of the following methods:
• Electronic Submission: Submit all
electronic public comments via the
Federal e-Rulemaking Portal. Go to
https://www.regulations.gov and enter
NOAA–NMFS–2022–0072 in the Search
box. Click on the ‘‘Comment’’ icon,
complete the required fields, and enter
or attach your comments.
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SUMMARY:
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• Mail: Submit written comments to
the Assistant Regional Administrator,
Sustainable Fisheries Division, Alaska
Region NMFS. Mail comments to P.O.
Box 21668, Juneau, AK 99802–1668.
Instructions: Comments sent by any
other method, to any other address or
individual, or received after the end of
the comment period, may not be
considered by NMFS. All comments
received are a part of the public record
and would generally be posted for
public viewing on www.regulations.gov
without change. All personal identifying
information (e.g., name, address),
confidential business information, or
otherwise sensitive information
submitted voluntarily by the sender
would be publicly accessible. NMFS
will accept anonymous comments (enter
‘‘N/A’’ in the required fields if you wish
to remain anonymous).
Written comments regarding the
burden-hour estimates or other aspects
of the collection-of-information
requirements contained in this proposed
rule may be submitted via mail to NMFS
Alaska Region, P.O. Box 21668, Juneau,
AK 99802–1668, Attn: Stephanie
Warpinski; or online at
www.reginfo.gov/public/do/PRAMain.
Find the particular information
collections online by selecting
‘‘Currently under 30-day Review—Open
for Public Comments’’ or by using the
search function.
Electronic copies of the
Environmental Assessment, the
Regulatory Impact Review, and the
Social Impact Analysis (collectively
referred to as the ‘‘Analysis’’), and the
draft Finding of No Significant Impact
prepared for this proposed rule may be
obtained from https://
www.regulations.gov or from the NMFS
Alaska Region website at https://
www.fisheries.noaa.gov/region/alaska.
FOR FURTHER INFORMATION CONTACT:
Stephanie Warpinski, 907–586–7228 or
stephanie.warpinski@noaa.gov.
SUPPLEMENTARY INFORMATION:
Authority for Action
NMFS manages the groundfish
fisheries in the exclusive economic zone
(Federal waters) of the BSAI under
Federal regulations implementing the
BSAI FMP. The North Pacific Fishery
Management Council (Council)
prepared the BSAI FMP under the
authority of the Magnuson-Stevens Act,
16 U.S.C. 1801 et seq. Regulations
governing U.S. fisheries and
implementing the BSAI FMP appear at
50 CFR parts 600 and 679.
A notice of availability (NOA) for
Amendment 122 was published in the
Federal Register on December 30, 2022
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(87 FR 80519, December 30, 2022), with
comments invited through February 28,
2023. All relevant written comments
received by the end of the comment
period (See DATES), whether specifically
directed to the NOA or this proposed
rule, will be considered by NMFS in the
approval/disapproval decision for
Amendment 122. Commenters do not
need to submit the same comments on
both the NOA and this proposed rule.
Comments submitted on this proposed
rule by the end of the comment period
(See DATES) will be considered by NMFS
in our decision to implement measures
recommended by the Council and will
be addressed in the response to
comments in the final rule.
I. Background of Pacific Cod
Management in the BSAI
A. History of Pacific Cod Management
in BSAI
Pacific cod (Gadus macrocephalus) is
one of the most abundant and valuable
groundfish species harvested in the
BSAI. Vessels harvest Pacific cod using
trawl and non-trawl gear. Non-trawl
gear includes hook-and-line, jig, and pot
gear. Vessels harvesting BSAI Pacific
cod operate as catcher vessels (CVs) that
harvest and deliver the fish for
processing or as catcher/processors
(C/Ps) that harvest and process the catch
on board.
The BSAI FMP and implementing
regulations require that, after
consultation with the Council, NMFS
specify an overfishing level (OFL), an
acceptable biological catch (ABC), and a
total allowable catch (TAC) for each
target species or species group of
groundfish, including Pacific cod, on an
annual basis. The OFL is the level above
which overfishing is occurring for a
species or species group. The ABC is the
level of a species’ annual catch that
accounts for the scientific uncertainty in
the estimate of OFL and any other
scientific uncertainty. Under the BSAI
FMP, the ABC is set below the OFL. The
TAC is the annual catch target for a
species or species group, derived from
the ABC by considering social and
economic factors and management
uncertainty, and in the case of BSAI
Pacific cod, after considering any
harvest allocations for guideline harvest
level (GHL) fisheries managed by the
State of Alaska (State) and occurring
only within state waters. Under the
BSAI FMP, the TAC must be set lower
than or equal to the ABC.
The OFLs, ABCs, and TACs for BSAI
groundfish are specified through the
annual harvest specification process. A
detailed description of the annual
harvest specification process is
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provided in the final 2022 and 2023
harvest specifications for groundfish of
the BSAI (87 FR 11626, March 2, 2022).
The annual harvest specification
process for BSAI Pacific cod is briefly
summarized here. Specific examples of
Pacific cod OFLs, ABCs, TACs, and
other apportionments of Pacific cod
used in this preamble are based on the
2022 specifications from the final 2022
and 2023 harvest specifications for
groundfish of the BSAI, unless
otherwise noted.
For Pacific cod, the harvest
specifications establish separate OFLs,
ABCs, and TACs for the Bering Sea (BS)
subarea and the Aleutian Islands (AI)
subarea of the BSAI. As noted above,
before the Pacific cod TACs are
established, the Council and NMFS
consider social and economic factors
and management uncertainty, as well as
two factors that are particularly relevant
to BSAI Pacific cod: the Pacific cod state
waters GHL fisheries and an overall
limit on the maximum amount of TAC
that can be specified for all BSAI
groundfish species combined.
Once the groundfish TACs are
established, regulations at 50 CFR
679.20(a)(7)(i) allocate 10.7 percent of
the BS Pacific cod TAC and 10.7 percent
of the AI Pacific cod TAC to the
Community Development Quota (CDQ)
Program for the exclusive harvest by
Western Alaska CDQ groups. Section
305(i) of the Magnuson-Stevens Act
authorizes six nonprofit corporations
called CDQ groups representing 65
communities to receive exclusive
harvest privileges of groundfish,
including Pacific cod, and specifies the
methods for allocating these harvest
privileges.
After subtraction of the CDQ
allocation from each TAC, NMFS
combines the remaining BS and AI
TACs into one BSAI non-CDQ Pacific
cod TAC, which is available for harvest
by nine non-CDQ fishery sectors. BSAI
Pacific cod have been fully allocated to
these sectors since 2008 with the
implementation of Amendment 85 to
the BSAI groundfish FMP (72 FR 50787,
September 4, 2007). Regulations at
§ 679.20(a)(7)(ii)(A) define the nine
Pacific cod non-CDQ fishery sectors in
the BSAI and specify the percentage
allocated to each. The non-CDQ fishery
sectors are defined by a combination of
gear type (e.g., trawl, hook-and-line),
operation type (i.e., CV or CP), and
vessel size categories (e.g., vessels
greater than or equal to 60 ft in length
overall). Through the annual harvest
specifications process, NMFS allocates
an amount of the combined BSAI nonCDQ TAC to each of these nine nonCDQ fishery sectors. The non-CDQ
fishery sectors and the percentage of the
BSAI non-CDQ Pacific cod TAC
allocated to each sector are shown in
Table 1 below.
TABLE 1—ALLOCATIONS OF THE BSAI NON-CDQ PACIFIC COD TAC TO THE NON-CDQ FISHERY SECTORS
Percentage
allocation of
the BSAI nonCDQ TAC
Non-CDQ fishery sector
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Hook-and-line CVs greater than or equal to 60 ft length overall (LOA) .............................................................................................
Jig gear ................................................................................................................................................................................................
Pot C/Ps ...............................................................................................................................................................................................
Hook-and-line and pot CVs less than 60 ft LOA .................................................................................................................................
American Fisheries Act (AFA) trawl C/Ps ...........................................................................................................................................
Pot CVs greater than or equal to 60 ft LOA .......................................................................................................................................
Non-AFA trawl C/Ps (Amendment 80 C/Ps) .......................................................................................................................................
Trawl CVs ............................................................................................................................................................................................
Hook-and-line C/Ps ..............................................................................................................................................................................
Allocations of Pacific cod to the CDQ
Program and to the non-CDQ fishery
sectors are further apportioned by
seasons. Season dates for the CDQ and
non-CDQ fishery sectors are established
at § 679.23(e)(5). In general, regulations
apportion trawl gear allocations among
three seasons that correspond to January
20–April 1 (A season), April 1–June 10
(B season), and June 10–November 1 (C
season) of the year. The specific season
dates also are provided in the annual
harvest specifications for groundfish of
the BSAI. Depending on the specific
CDQ Program or non-CDQ fishery sector
allocation, between 40 and 70 percent of
the Pacific cod allocation is apportioned
to the A season, which is historically
the most lucrative fishing season due to
the presence of valuable roe in the fish
and the good quality of the flesh during
that time of year.
As noted in Table 1, the trawl CV
sector is apportioned 22.1 percent of the
BSAI Pacific cod non-CDQ TAC, which
is further divided into seasonal
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allowances between the A, B, and C
seasons. A season is issued 74 percent
of the trawl CV sector’s total
apportionment, B season is issued 11
percent, and C season is issued 15
percent. The trawl CV sector impacted
by the implementation of the PCTC
Program would include all trawl CVs
that are assigned to an LLP license with
a trawl gear endorsement for the BS
and/or AI.
After NMFS deducts estimated
incidental catch from the trawl CV
sector apportionment, each seasonal
allowance is assigned to the trawl CV
sector as a BSAI directed fishing
allowance (DFA). The DFA for the A
and B seasons is the amount that would
be available for harvest by the PCTC
program cooperatives under the
proposed LAPP. The DFA for the C
season would remain available for
harvest as a limited access fishery open
to all CVs with the required trawl gear
and area endorsements on the LLP
license assigned to the vessel. Because
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0.2
1.4
1.5
2.0
2.3
8.4
13.4
22.1
48.7
the non-CDQ sector allocations continue
to be defined BSAI-wide, sectors remain
free to redeploy between the two areas.
However, if the non-CDQ portion of the
TAC in either sub-area (BS or AI) is
reached NMFS will close directed
fishing for Pacific cod in that subarea.
B. Groundfish License Limitation
Program (LLP) Licenses
The Groundfish License Limitation
Program (LLP) was implemented in
1998 (63 FR 52642, Oct. 1, 1998) and
issued a limited number of LLP licenses
to qualifying participants based on
historical participation in the Federal
groundfish fisheries off Alaska. The
Council and NMFS have long sought to
control the amount of fishing effort in
the BSAI groundfish fisheries to ensure
that the fisheries are sustainably
managed and do not exceed established
biological thresholds. One of the
measures used by the Council and
NMFS to control fishing effort,
including in the BSAI Pacific cod
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fishery, is the LLP. A groundfish LLP
license authorizes a vessel to participate
in a directed fishery for groundfish in
the BSAI in accordance with specific
area and species endorsements, vessel
and gear designations, and the
maximum length overall (MLOA), or
any exemption from the MLOA,
specified on the license. With some
limited exceptions, the LLP requires
that each vessel that participates in
federally managed groundfish fisheries
off Alaska be designated on a groundfish
LLP license. In other words, an LLP
license is generally required to
participate in the BSAI groundfish
fisheries. The LLP is authorized in
Federal regulations at 50 CFR 679.4(k),
definitions relevant to the program are
at § 679.2, and prohibitions are at
§ 679.7.
All Federal Pacific cod harvesting
activity in the BSAI requires an LLP
license and the correct endorsements.
The Council elected to have LLP license
holders and eligible processors receive
PCTC Program Quota Share (QS) instead
of vessel owners.
C. Transferable AI Endorsements
Amendment 92 to the BSAI FMP (74
FR 41080, August 14, 2009) issued new
AI area endorsements for trawl CV LLP
licenses if minimum recent landing
requirements in the AI were met. Under
this action, NMFS issued AI trawl
endorsements to (1) non-AFA catcher
vessels less than 60 ft LOA, if those
vessels made at least 500 metric tons
(mt) of landings of Pacific cod in State
of Alaska (State) waters adjacent to the
Aleutian Islands Subarea during 2000
through 2006 (i.e. in the parallel
fishery); and (2) non-AFA catcher
vessels equal to or greater than 60 feet
LOA if those vessels made at least one
landing in State waters during the
Federal groundfish season in the
Aleutian Islands Subarea and made at
least 1,000 mt of Pacific cod landings in
the BSAI during 2000 through 2006.
Amendment 92 intended to recognize
the recent participation by CVs in the AI
by allowing those vessels to extend their
fishing operations to Federal waters
using trawl endorsed LLP licenses.
The AI endorsements issued under
Amendment 92 were intended to
facilitate shoreside deliveries of Pacific
cod to AI communities and provide
additional harvest opportunities for
non-AFA trawl vessels who had
demonstrated a dependence on AI
groundfish resources. The AI
endorsements issued to LLP licenses
used by non-AFA trawl CVs less than 60
ft are severable from the LLP license
they were initially issued and
transferable to another LLP licenses
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with a MLOA under 60 ft. The
transferability provision was intended
to allow smaller vessels operational
flexibility and avoid stranding an AI
endorsement on an LLP license being
used by a vessel that no longer fished
in the AI. No other area endorsement in
the LLP can be transferred separately
from an LLP license.
NMFS modified the LLP license
transfer regulations to clarify the
process for transferring an AI
endorsement independent of the LLP
license. As part of that application
process, the person would need to
specify the LLP license to which the
transferred AI area endorsement would
be assigned.
D. Limited Access Privilege Programs
Section 303A of the MagnusonStevens Act authorizes the
establishment of Limited Access
Privilege Programs (LAPPs) that allocate
limited access privileges, such as fishing
quota, to a closed class of participants.
The Council has recommended and
NMFS has implemented LAPPs to
address a wide range of fishery
management objectives, including
providing stability in fishery harvests,
resolving allocative disputes, increasing
the value of the fishery, minimizing
bycatch to the extent practicable,
providing for the sustained participation
of fishery-dependent communities, and
promoting safety. Another example of a
North Pacific LAPP is the Central Gulf
of Alaska (GOA) Rockfish Program. An
extensive discussion of LAPPs can be
found in sections 2.5 and 2.9.8 of the
Analysis (see ADDRESSES).
By allocating quota shares and issuing
exclusive harvest privileges to fishing
cooperatives, a LAPP allows vessel
operators to make operational choices to
improve safety, reduce bycatch, and
reduce discard of fish because the strong
incentive to maximize catch in the
minimum amount of time has been
reduced. Vessel operators can choose to
fish in a slower, less wasteful fashion,
use modified gear with a lower harvest
rate but which reduces bycatch,
coordinate with other vessel operators
to avoid areas of high bycatch, or
otherwise operate in ways that limit
bycatch and increase efficiency.
LAPPs can also improve the
profitability of participating fishing
operations. In most cases, LAPPs
provide harvesters greater flexibility in
tailoring their fishing operations to
specific fisheries, which can reduce
operational costs. Additionally, vessel
operators may avoid costly
improvements in vessel size or fishing
power designed to outcompete other
harvesters in a race for fish. Slower
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fishing rates can improve product
handling and quality and increase the
ex-vessel price of the fish delivered to
the processor. Vessel operators can also
choose to consolidate less profitable
fishing operations onto fewer vessels
through a cooperative system.
LAPPs can increase the costs of
entering the fishery substantially
because the expected long-term profits
from the QS assigned to the permits
increase their value, and, in most
circumstances, permits must be
purchased prior to entry. Increased cost
of entry may limit the ability of persons
without the financial wherewithal to
purchase the permits or QS necessary to
participate in these fisheries.
Consolidation can limit employment
opportunities as well, if fewer vessels
are used to harvest the quota.
Compliance costs can also increase to
ensure that NMFS can monitor the
harvesting and processing of fish.
Administration of LAPPs typically
requires greater effort and cost than nonLAPP fisheries due to the greater
precision in catch accounting required
to track the harvest of fish and proper
debiting of accounts. Participants in
LAPPs may also use their excess fishing
capacity to expand operations into other
fisheries that are not managed by LAPPs
and increase the race for fish in those
fisheries unless they are constrained.
These and other effects have been
addressed in the design of previous
LAPPs by limiting the amount of
consolidation in the fishery through
caps on the ownership and use of QS.
E. PCTC Program Overview
Based on experience with past LAPPs,
and after weighing the potential
advantages and disadvantages, the
Council unanimously recommended the
PCTC Program at its October 2021
meeting to reduce bycatch and improve
the safety of fishery participants while
increasing the potential for greater
economic returns to those holding the
harvest privileges.
The Council had previously adopted
a statement of purpose and need for this
action, emphasizing that conditions in
the fishery had resulted in a race for fish
with a number of negative
consequences. This proposed Program
would be responsive to that statement of
purpose and need by slowing the race
for fish. This Program would provide
incentives to increase the length of the
directed fishing season and allow
deliveries to be distributed over a longer
timeframe, which would benefit both
harvesters and processors. The current
fishery management system, in which
harvesters compete with each other for
a portion of the Pacific cod TAC,
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incentivizes harvesters to fish in
weather conditions that could be unsafe,
and this incentive would be reduced or
avoided under the proposed LAPP.
Several conditions warranted this
proposed change in management,
including a decline in Pacific cod TAC,
an increase in the number of LLP
licenses (and associated vessels)
participating in this sector and the risk
of additional entrants, the compressed
length of the fishery in recent years, the
decreased product quality caused by a
race for fish in recent years, need to
minimize bycatch, and safety concerns.
In response, the Council
recommended, and NMFS proposes the
PCTC Program with the overarching
objectives of increasing the value of the
fishery, minimizing bycatch to the
extent practicable, providing for the
sustained participation of fisherydependent communities, and promoting
safety in the harvesting and processing
sectors. The PCTC Program proposes a
complex suite of measures to ensure the
goals of the Program are met and
improve fishery conditions for all
participants. The Program would
require participants holding QS to form
harvesting cooperatives in association
with an eligible processor to harvest the
annual harvest privilege of Pacific cod.
This Program would also require
cooperatives to set-aside a portion of
their allocation for delivery to an
Aleutian Island shoreplant. A
shoreplant is a land-based processing
plant and is a subset of the term
‘‘shoreside processor’’ which is defined
in § 679.2 to include processing vessels
that are moored or otherwise fixed in a
location (i.e., stationary floating
processors), but not necessarily located
on land.
The following section provides an
overview of the complex suite of
measures included in the proposed
Program. Each Program element will be
addressed in additional detail in
subsequent sections of this preamble.
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1. Pacific Cod Allocations and
Prohibited Species Catch (PSC) Limits
The PCTC Program would allocate QS
to qualifying LLP license holders and
processors based on their qualifying
catch and processing history during the
BSAI trawl CV sector A and B season for
the Pacific cod fishery. The Pacific cod
QS allocations would be based on
qualifying catch or processing history as
recommended by the Council. In
addition, aggregate PSC limits for
halibut and crab would be established
through the annual harvest specification
process for participants in the PCTC
Program. Allocations of Pacific cod and
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PSC limits are discussed in further
detail in section II of the preamble.
2. PCTC Program Quota Share
The PCTC Program would issue QS to
qualified LLP licenses that had
qualifying catch history of BSAI Pacific
cod during the qualifying years, and to
processors based on their processing
history during the qualifying years. The
Council selected 2009 to 2019 as the
qualifying years for processors and most
LLP licenses, with the additional years
of 2004 through 2009 for LLP licenses
with transferable AI endorsements. In
making initial allocations of QS, NMFS
would look at targeted landings of BSAI
Pacific cod from a Federal fishery
during the qualifying years, and then
determine what proportion of those
landings were authorized by each
participating LLP license, and which
proportion was delivered to each
participating processor. Targeted
species are those species retained in an
amount greater than any other species
for which a TAC is specified pursuant
to § 679.20(a)(2). To use their QS, LLP
license holders would be required to
join a PCTC Program cooperative and
processors would be required to
associate with a cooperative. Trawl CVs
eligible to participate in the proposed
Program include all trawl CVs that are
named on an LLP license with a trawl
gear endorsement and BS and/or AI area
endorsement. Section II in the preamble
further discusses QS and participants.
3. Trawl CV Sector
The PCTC Program allocations would
be harvested by trawl CVs that join a
PCTC Program cooperative. The trawl
CV sector that would be eligible to
participate in the proposed Program
includes all trawl CVs designated on an
LLP license with BS and/or AI area
endorsements, including both American
Fisheries Act (AFA) and non-AFA trawl
CVs.
Most AFA CVs rely heavily on
pollock harvested in the BS, but Pacific
cod is the second most important
species in terms of volume for these
vessels in aggregate. While nearly all the
groundfish harvested by the larger AFA
vessels is delivered to shoreside
processors, many of the smaller AFA
vessels deliver their catch to a
mothership. AFA vessels are categorized
as either exempt or non-exempt; AFA
exempt means that they are not limited
based on their catch history by
sideboards, and AFA non-exempt means
that they are limited by sideboards
based on their catch history. The harvest
of BSAI Pacific cod by AFA trawl CVs
is currently managed through private
inter-cooperative agreements.
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8595
Non-AFA trawl CVs are typically
between 60 ft and 125 ft, but
occasionally, vessels less than 60 ft
participate in the sector. Fisheries
important to non-AFA trawl CVs
include BSAI Pacific cod, groundfish in
the GOA, halibut IFQ (using longline
gear), and salmon in the state
commercial seine fisheries.
A total of 114 LLP licenses are
assigned a trawl CV endorsement for the
BS. Of those 114 LLP licenses, 42 also
have an AI endorsement. One LLP
license is endorsed only for the AI, and
that license has both a trawl
endorsement and a hook-and-line
endorsement. Annual estimates of the
trawl CV sector’s gross ex-vessel value
for Pacific cod are provided in Section
2.8.7 of the Analysis.
Given that initial allocations under
this proposed rule will be based on
historical participation, no substantial
shifts in patterns of fishery landings
between communities are anticipated,
nor are substantial shifts expected in the
accompanying patterns of revenue
accruing to municipalities in Alaska
from local raw fish taxes or shared state
fishery business taxes.
4. Processor Sector
The PCTC program would allocate QS
to eligible processors, both shoreside
and C/Ps acting as motherships, which
could serve to stabilize landings in
communities in proportion to their
qualifying history of BSAI Pacific cod
processing.
Eligible processors would be allocated
a percentage of QS based on their
processing history that would function
to promote stability in the processing
sector. Processors eligible to receive QS
would include active processors who
hold an active FFP or FPP. Eligible
processors would be issued their QS on
a new QS permit. Processor-issued QS
would represent 22.5 percent of the total
PCTC Program CQ each year.
Section 2.9.5 of the Analysis provides
a count of the years processing firms
were active (received deliveries of
targeted Federal BSAI Pacific cod from
trawl CVs). These counts represent all
the processing firms (including C/Ps
that are no longer eligible to process
Pacific cod as a mothership) that were
reported in the NMFS Catch Accounting
System (CAS) data. Preamble sections
II.E and VII.B and C describe the
processor sector in further detail.
5. Allocations of TAC in the PCTC
Program
Under this proposed PCTC Program,
22.1 percent of the annual BSAI Pacific
cod non-CDQ TAC would continue to be
allocated to the trawl CV sector using
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the current seasonal apportionments. Of
that 22.1 percent, a portion is allocated
for directed fishing by trawl CVs
targeting Pacific cod (as DFAs), and
another portion is reserved as an
incidental catch allowance (ICA) for
Pacific cod caught as bycatch in other
BSAI trawl CV groundfish fisheries.
Under the PCTC Program, A and B
season DFAs would be issued as CQ to
PCTC program cooperatives. Of the total
PCTC Program annual allocations, 22.5
percent of CQ would be derived from
QS allocated to processors and 77.5
percent would be derived from QS
allocated to LLP license holders. Section
IV discusses CQ and PCTC Program
cooperatives in further detail. The C
season would continue to be managed
as a limited access fishery open to any
trawl CV with the required area
endorsements. Section VI.B of the
preamble discusses the C season in
further detail.
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6. PCTC Program Cooperatives
The PCTC Program would authorize
the formation of harvester cooperatives
in association with an eligible
processor. A cooperative would be
formed by holders of qualified LLP
licenses with trawl CV Pacific cod QS,
in association with processors. Each
LLP license could be assigned to only
one cooperative. Each year, a
cooperative representative would be
required to submit an Application for
PCTC Program Cooperative Quota. CQ
would be issued to each cooperative by
NMFS based on the aggregate QS of the
cooperative members and associated
processors. Cooperative associations
could change on an annual basis
without penalty. Cooperatives would be
required to identify a list of trawl CVs
eligible to harvest a portion of that
cooperative’s CQ in the annual
cooperative application. Any trawl CV
named on an LLP license with a BS and/
or AI trawl endorsement could be
identified as an eligible harvester within
a PCTC cooperative, regardless of
whether the LLP license was issued QS.
Section IV in this preamble further
describes cooperatives in the PCTC
Program.
7. AI CQ Set-Aside
The PCTC Program would require
cooperatives to reserve 12 percent of the
BSAI A season trawl CV sector CQ as a
set-aside for delivery to an Aleutian
Islands shoreplant if the City of Adak or
the City of Atka files a notice of intent
to process that year. The set-aside
would be in effect during the A and B
seasons and any remaining portion of
the AI CQ set-aside would be
reallocated to cooperatives in the same
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proportion as the initial allocation if the
intent to process is withdrawn during
the A or B season by the representative
of the City of Adak or the City of Atka.
NMFS would require an intercooperative agreement that describes
how the set-aside will be administered
by the cooperatives to ensure that
harvests from the BS do not exceed the
minimum set-aside, how the
cooperatives intend to harvest the setaside, and how cooperatives would
ensure that CVs less than 60 ft LOA
assigned to an LLP license with a
transferable AI trawl endorsement have
the opportunity to harvest 10 percent of
the AI set-aside for delivery to an
Aleutian Island shoreplant. A
cooperative intending to harvest any
amount of the set-aside would be
required to provide the cooperative’s
plan for coordinating harvest and
delivery of the set-aside with an
Aleutian Island shoreplant in the annual
cooperative application.
8. C Season Limited Access Fishery
The PCTC Program would allocate
only the A and B season non-CDQ
Pacific cod trawl CV DFA to
cooperatives. The C season non-CDQ
Pacific cod trawl CV DFA, which
accounts for approximately 15 percent
of the annual trawl CV sector allocation,
would remain as a trawl CV limited
access fishery open to any trawl CV
with a BS and/or AI area trawl
endorsement.
9. Use Caps
The PCTC program would include
ownership and use caps to prevent a
permit holder from acquiring an
excessive share of the fishery as
required under MSA Section
303A(c)(5)(D). No person would be
permitted to hold more than 5 percent
of harvester-issued QS or 20 percent of
processor-issued QS. In addition, no
vessel would be able to harvest more
than 5 percent of the annual CQ, and no
company would be able to process more
than 20 percent of CQ. The PCTC
Program would also include legacy
exemptions for persons over these
ownership and use caps at the time of
PCTC Program implementation,
allowing participants to maintain levels
of historical participation rather than
forcing divestiture.
10. Gulf of Alaska Sideboard Limits
The PCTC Program includes GOA
groundfish sideboard limits for LLP
licenses that receive allocations of QS.
The Program would change the AFA
non-exempt GOA groundfish sideboard
and halibut PSC limits for all nonexempt AFA CVs and associated LLP
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licenses based on the GOA fishing
activity of these vessels in the aggregate
during the PCTC Program qualifying
years. GOA halibut PSC limits would be
managed as an annual limit for all AFA
non-exempt CVs and associated LLP
licenses. The proposed PCTC Program
does not change existing sideboard
exemptions for AFA GOA—exempt CVs
and does not add sideboard limits for
non-AFA trawl CVs in the GOA.
However, holders of LLP licenses that
authorize these categories of vessels will
not be permitted to lease CQ derived
from their LLP licenses as a condition
of benefiting from a GOA sideboard
exemption. If the vessel assigned to the
qualified GOA sideboard-exempt LLP
license does not fish in the GOA during
the calendar year—with the exception of
fishing in the Central GOA Rockfish
Program—the LLP license holder would
be able to lease CQ generated by their
LLP license for that calendar year. In
addition, holders of LLP licenses that
authorized GOA sideboard-exempt CVs
with less than 300 mt of average annual
qualifying BSAI Pacific cod catch
history would be able to lease CQ
generated by their LLP license.
11. Monitoring and Enforcement
All CVs harvesting CQ and making
deliveries to a shoreside processor
would be in the full observer coverage
category, which requires the vessel to
maintain observer coverage on 100
percent of its fishing trips. The PCTC
Program would maintain the current
observer coverage exception for CVs
delivering unsorted codends to
motherships specified at § 679.50(a).
CVs in the full observer coverage
category would be required to provide a
functional and operational computer
with NMFS-supplied software installed
to facilitate the electronic entry of
observer data collected on board the
vessel. At the time of Program
implementation, AFA CVs would be
required to provide communications
equipment necessary to facilitate the
point-to-point communication necessary
to transmit observer data to NMFS on a
daily basis. For the first three years after
implementation, the PCTC Program
would exempt non-AFA CVs from the
requirement to facilitate at-sea
transmission of observer data. If a nonAFA CV has the necessary
communication equipment already
installed on the vessel prior to the end
of the 3-year exemption, the vessel
would be required to allow the observer
to use the equipment. After three years,
all vessels would be required to comply
with requirements for at-sea observer
data transmission. Monitoring and
enforcement provisions would be
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implemented to track quota, harvest,
PSC, and use caps. NMFS would report
weekly vessel-level PSC information as
authorized under Magnuson-Stevens
Act Sec. 402(b)(2)(A).
II. PCTC Program Quota Share (QS)
Under the PCTC Program, QS for
Pacific cod would be assigned to eligible
LLP licenses (with and without
transferable AI endorsements) and
newly created processor PCTC Program
QS permits. The amount of QS allocated
to individual LLP licenses or processors
would be determined by historic
participation relative to other LLP
licenses or processors, as described
below. QS holders would be required to
join or associate with a cooperative, and
the aggregate QS of cooperative
members and associated processors
would yield an exclusive harvest
privilege for PCTC Program
cooperatives, which NMFS would issue
as CQ each year. Of the total annual CQ,
77.5 percent would be derived from QS
issued to LLP licenses and 22.5 percent
would be derived from QS issued to
processors. CQ would represent a
portion of the A and B season BSAI
trawl CV sector Pacific cod DFA that is
available only to the holders of CQ. This
Program would establish criteria for
harvesters and processors in the BSAI
trawl CV sector Pacific cod fisheries to
qualify for and receive QS, criteria for
allocating QS in the initial year of
implementation, and criteria for the
transfer of QS.
NMFS would assign PCTC Program
QS to eligible LLP licenses based on
qualifying catch history (legal landings)
of targeted BSAI Pacific cod authorized
by that LLP license during the
qualifying years 2009 through 2019,
excluding the year with the lowest total
harvest for each license. The qualifying
period for LLP licenses with transferable
AI endorsements also includes harvest
by vessels that generated the
transferable AI endorsement from
January 20, 2004 through September 13,
2009. The amount of QS assigned to an
LLP license relative to the total QS
assigned to all LLP licenses determines
the percentage of the harvesters’
allocation (77.5 percent of the A and B
season DFA) that a harvester could
designate to a cooperative.
Allocations of QS to processors with
an eligible FFP or FPP (subject to
eligibility requirements under BSAI
FMP Amendment 120 to limit C/Ps
acting as mothership) is based on
processing history in the Federal BSAI
Pacific cod trawl CV fishery. QS would
be assigned to eligible processors based
on each processor’s targeted Pacific cod
processing history during the qualifying
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years 2009 through 2019, excluding the
year with the least amount of processing
history. The amount of QS assigned to
a processor PCTC Program QS permit
relative to the total QS assigned to all
PCTC Program QS permits determines
the percentage of the processors’
allocation (22.5 percent of the A and B
season DFA) that a processor could
designate to a cooperative. NMFS would
assign QS to holders of eligible LLP
licenses if they submit a timely and
complete Application for PCTC Program
QS. A similar process would be used for
the processor QS allocation. Processors
with qualifying processing history
would be assigned QS on a processor
permit for each unit of processing
history.
A. Eligibility To Receive PCTC QS
This section defines and describes the
requirements necessary to identify
eligible LLP licenses and processors that
would receive PCTC Program QS.
‘‘Eligible PCTC Program LLP license’’
means an LLP license assigned to a
vessel that made qualifying catch
history (legal landings) of targeted trawl
CV BSAI Pacific cod during the PCTC
Program qualifying years. ‘‘Eligible
PCTC Program processor’’ means a
processing facility with an active
Federal processor permit that has
historically received Pacific cod legal
landings.
‘‘Legal landings’’ means the retained
catch of Pacific cod caught by a CV
using trawl gear in the BSAI during the
directed fishing season for Pacific cod
that was: (1) made in compliance with
state and Federal regulations in effect at
that time, (2) recorded on a State of
Alaska fish ticket or shoreside logbook
for shoreside deliveries or in observer
data for mothership deliveries, and (3)
was the predominately retained species
on the fishing trip (i.e. Pacific cod was
targeted). A legal landing must have
been authorized by either (1) an LLP
license participating in the A or B
season of a Federal or parallel State
water groundfish fishery during the
qualifying years 2009 to 2019, or (2) an
LLP license with a transferable AI
endorsement that, prior to receiving that
AI endorsement, participated in the AI
parallel fishery from January 20, 2004
through September 13, 2009. Legal
landings for the PCTC Program would
not include landings in the CDQ fishery,
in the State of Alaska GHL fishery, or
made during the C season by vessels
participating in a Federal or parallel
State water fishery. For LLP licenses,
NMFS would determine which LLP
licenses were assigned to catcher vessels
that harvested and offloaded BSAI
Pacific cod that met all legal landings
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8597
requirements. For processors, NMFS
would determine which processors with
active Federal permits received
deliveries of legal landings of BSAI
Pacific cod.
B. Rationale for Allocations
The Council recommended and
NMFS proposes establishing eligibility
for the Program by considering the catch
history associated with LLP licenses
that authorized a vessel to make legal
landings of targeted BSAI trawl CV
Pacific cod during the qualifying years.
The Council recommended against
considering catch history occurring after
December 31, 2019 during the
development of this Program to
discourage speculative entry into the
fishery. QS would be allocated to
eligible LLP licenses based on legal
landings of BSAI trawl CV Pacific cod
from 2009 through 2019. In addition, for
LLP licenses with transferable AI
endorsements, NMFS would consider
catch history of targeted AI Pacific cod
in the parallel fishery prior to receiving
a transferable AI endorsement from
January 20, 2004 through September 13,
2009. The Council recommended these
qualifying years to ensure that both
current and historical participation
would be considered in allocating QS.
This range of qualifying years is
comparable with the Council’s
recommendations for awarding catch
history in other rationalized fisheries (or
fisheries managed under a LAPP).
The Council considered alternative
methods for allocating QS to
participants in the BSAI trawl CV
Pacific cod sector in the development of
the Program. These alternatives are
addressed in the Analysis developed to
support this proposed action (see
ADDRESSES). The Program would
balance allocation among recent and
historical participants. As with other QS
programs (e.g., BSAI Crab
Rationalization, and IFQ halibut and
sablefish), the Program would allocate
QS based on recent and historical
harvesting and processing, as opposed
to alternative allocative methods such as
allocating equal shares or auctioning
QS. In other North Pacific quota share
programs, NMFS has allocated QS based
on landings that occurred during a
specific time period as a means of
equitably distributing QS to participants
based on their relative dependence on
the fishery. This is the first LAPP in the
North Pacific that allocates harvester QS
to processors based on their processing
history.
One option for this Program
considered the most recent five years of
history (2014 through 2019) in the BSAI
trawl CV Pacific cod fishery, but that
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range of years undervalued long-term
participation, which the Council
believes is an important consideration
for the PCTC Program. A second option
the Council rejected included catch
history years from 2004 through 2019
because it would include several years
before the implementation of the current
BSAI Pacific cod sector allocations
established by Amendment 85. These
sector allocations, combined with a
decline in the BSAI Pacific cod stock in
recent years, have substantially changed
fishery management and operations.
A third option the Council considered
included allocations on a blend of catch
history and AFA sideboard limit
history. This approach would have
awarded catch history to LLP licenses
assigned to vessels that did not make
legal landings of BSAI trawl CV Pacific
cod during the qualifying years but
instead had catch history of BSAI
Pacific cod from 1997 that contributed
to a sideboard limit for all AFA trawl
CVs in the BSAI. The Council
recommended maintaining the longstanding policy that sideboard limits are
not sector allocations. Instead, this
proposed Program would award catch
history to LLP licenses based on legal
landings that were reported by the
vessel assigned to the LLP license,
consistent with the Council’s past
practice.
In calculating QS to be issued to
eligible LLP license holders and
processors, the lowest year of catch
history during the qualifying period
would be dropped. Including a one-year
drop provision would allow all
participants to benefit from removing a
non-representative participation year
from the catch history used to issue
their QS. The public testimony provided
to the Council in support of this option
noted that the catch history eligibility
period is 11 years, and unforeseen
events have occurred for many BSAI
trawl CV Pacific cod fishery participants
over that period that would reduce the
amount of catch history awarded to
their LLP license. The Council
considered this to be a reasonable
approach and consistent with Council
and NMFS’s practice in previous
rationalization programs because it
recognizes contingencies in fishing
behavior over the qualifying years.
Some legal landings during 2009
through 2019 were made by vessels with
two or more associated LLP licenses,
and in these cases the Council
recommended assigning the qualifying
catch history to one LLP license in one
of two ways. First, the LLP license
owners may come to an agreement
regarding the division of qualifying
catch history and submit this agreement
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to NMFS when they apply for QS. Or,
if no agreement is provided by the LLP
license holders, the owner of the vessel
that made the qualifying catch would
assign the history to one of the LLP
licenses that authorized the catch. This
approach is consistent with NMFS’s
approach for assigning legal landings in
all previous North Pacific
rationalization programs. In addition,
the Council received public comment in
support of this approach.
The Council determined that an
allocation of harvest QS to processors is
necessary to provide stability to the
sectors involved in the fishery after it
transitions from a limited access fishery
to a LAPP. The Analysis (see
ADDRESSES) did not identify an optimal
percentage of QS that should be
allocated to processors to provide
stability for harvesters and processors.
Instead, the allocation amount
recommended and proposed in this
action—77.5 percent of QS allocated to
harvesters and 22.5 percent to
processors—is based on an agreement
brought to the Council by members of
the affected CV and processing sectors.
Analysts noted that within the range of
percentages considered for QS to be
issued to processors, the leverage that
each sector would have at any specific
percentage would vary and the effects
are likely to be most realized by firms
that have less leverage outside the BSAI
trawl CV Pacific cod fishery.
Under the proposed Program, NMFS
would allocate QS to eligible processors
based on their processing history of
legal landings of BSAI Pacific cod
during the qualifying years. The QS
issued to processors would be divided
among eligible processors based on the
percentage of legal landings of Pacific
cod they processed during the A and B
seasons during the qualifying years
compared to the total legal landings of
BSAI Pacific cod processed by all
eligible processors. Allocating harvest
shares to processors is intended to
maintain a balance of market power
within the industry under the LAPP.
C. Calculations of Initial Allocations
The Council recommended, and
NMFS proposes to set initial allocations
through a specific process set forth in
this section.
The QS allocations for LLP license
holders with no transferable AI
endorsement would be calculated based
on the sum of the 10 highest years of
Pacific cod qualifying catch for the LLP
license out of the 11 qualifying years
recommended by the Council. If an LLP
license was only used in a single year
or if the LLP license was used in ten or
less years, a year with no qualifying
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catch would be dropped. If the LLP
license was transferred within the
qualifying years of 2009 to 2019, all
legal landings during the period would
still be assigned to that LLP. For LLP
licenses with transferable AI
endorsements, NMFS would also
include the catch history of the vessel
used to generate the endorsement from
January 20, 2004 through September 13,
2009 (for these LLP licenses, NMFS
would be looking at 16 years of catch
history and dropping the lowest year).
The current LLP license owner would
be entitled to all QS derived from the
LLP license and transferable AI
endorsement catch history, unless
compensation was required by a private
agreement associated with the sale of
the LLP license. The QS would not be
divided among LLP licenses.
NMFS proposes that for each LLP
license holder, the qualifying year with
the least amount of legal landings be
dropped, and the total of the remaining
years summed to determine the LLP
license’s QS units. This process would
be done for all eligible LLP licenses,
with and without transferable AI
endorsements. The sum of all QS units
issued would determine the harvesters
total initial QS pool allocated to LLP
licenses. All harvester QS units
combined would represent 77.5 percent
of the A and B season BSAI Pacific cod
trawl CV DFA.
An active processor would be eligible
to receive initial QS allocations in the
PCTC Program if they hold a Federal
Fisheries Permit (FFP) or Federal
Processing Permit (FPP) with processing
history in the Federal BSAI Pacific cod
trawl CV fishery between 2009 and
2019, which is the set of qualifying
years recommended by the Council. An
active processor is a processor firm that
holds an FFP or FPP upon the effective
date of the final rule implementing this
Program.
The QS for processors would be
allocated based on the sum of legal
landings delivered in the 10 highest
years out of the 11 qualifying years
recommended by the Council. If the FFP
or FPP received deliveries of qualified
catch in ten years or less, a year with no
qualifying legal landings would be
dropped. Processing companies that are
no longer active—meaning that they do
not have a current FFP or FPP upon the
effective date of the final rule
implementing this Program—would not
be issued QS.
For each processor, the sum of all
years of deliveries of legal landings is
calculated, the year with the smallest
amount of delivered legal landings is
dropped, and the total of the remaining
years determines the FFP or FPP’s QS
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units. This process is done for all
processors. The sum of all the processor
QS units would determine the
denominator of the initial QS pool for
processors. All processor QS units
combined would represent 22.5 percent
of the A and B season BSAI Pacific cod
trawl CV DFA.
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D. PCTC Program Official Record
NMFS would establish a PCTC
Program official record containing all
necessary information concerning PCTC
Program legal landings during the
qualifying period, vessel and processor
ownership, LLP license holdings, and
any other information needed for
assigning QS. The official record would
include landings data (from the Catch
Accounting System), documentation of
LLP licenses, FFPs, and FPPs, and
observer data. NMFS would presume
the official record is correct and an
applicant wishing to amend the official
record would have the burden of
establishing otherwise through an
evidentiary and appeals process. That
process is described in Section III.C of
this preamble below.
The official record would be used to
establish the initial pool of QS that
would be distributed to eligible
harvesters and processors.
Each metric ton of legal landing
credited to a qualifying LLP license
would result in one QS unit. This initial
QS pool would be adjusted should the
official record be amended through
successful claims brought by an eligible
participant or other corrections to the
underlying data. See Parts E and F of
this section below for more detail. As
with other LAPPs (e.g., Central GOA
Rockfish Program or the Amendment 80
Program), NMFS would establish
ownership and use caps using this
initial QS pool. Ownership and use caps
are described further under Section VII
of this preamble.
E. Harvester Allocations of QS in the
PCTC Program
Under this proposed rule, the
Regional Administrator would allocate
PCTC Program QS to an eligible
harvester—i.e. LLP license holder—who
submits a timely Application for PCTC
Program QS that is approved by NMFS
based on the amount of BSAI trawl
Pacific cod legal landings assigned to an
LLP license.
NMFS proposes to assign a specific
number of Pacific cod QS units to each
LLP license with no transferable AI
endorsement based on the legal landings
of the LLP license using information
from the PCTC Program official record
as of December 31, 2022 according to
the following procedures:
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(1) Determine the BSAI trawl CV
Pacific cod legal landings authorized by
an LLP license for each calendar year
from 2009 through 2019.
(2) Drop from consideration the
calendar year in which the LLP license
had the least amount of legal landings.
If an LLP license had one or more years
with zero harvest, drop one of those
years.
(3) Sum the Pacific cod legal landings
for the 10 years in which each LLP
license had the most landings. This
yields the QS units for each LLP license.
NMFS proposes to assign a specific
number of Pacific cod QS units to each
LLP license with a transferable AI
endorsement based on the legal landings
of each vessel that was used to generate
the transferable AI endorsement and
subsequent legal landings authorized by
the LLP license associated with the
endorsement using information from the
PCTC official record according to the
following procedures:
(1) Determine the BSAI trawl CV
Pacific cod legal landings for each
vessel used to generate the transferable
AI endorsement from January 20, 2004
through September 13, 2009 and the
LLP license associated with that
transferable AI endorsement from
September 14, 2009 through the end of
2019.
(2) Drop from consideration the
calendar year which the vessel used to
generate the transferable AI
endorsement (January 20, 2004–
September 13, 2009) or the associated
LLP license (2009–2019) that had the
least amount of legal landings. If a
vessel or LLP license had one or more
years with zero harvest, drop one of
those years.
(3) Sum the Pacific cod legal landings
for the 15 years in which the relevant
LLP license had the highest amount of
legal landings. This yields the QS units
for LLP licenses with transferable AI
endorsements.
After the QS units for the LLP licenses
with and without transferable AI
endorsements are determined under
part 3 of each scenario above, NMFS
would sum all harvester QS units to
calculate the harvesters’ total QS pool.
NMFS would then determine what
portion of the 77.5 percent of the A and
B season DFA allocated as harvester QS
under the PCTC Program is represented
by each LLP license’s QS units. To do
so, NMFS would divide each LLP
license’s total QS units by the sum (S)
of all QS units for all eligible LLP
licenses based on the PCTC official
record as presented in the following
equation:
LLP license’s QS units/(S QS units for
all LLP licenses) × 100 = Percentage of
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8599
the total harvester QS pool allocated to
that eligible LLP license. The result
(quotient) of this equation is the
percentage of the total harvesters’
portion of PCTC Program allocation
(77.5 percent of the A and B season
DFA) that a QS holder could assign to
a cooperative each year.
F. Processor Allocations of QS in PCTC
Program
The Council recommended and
NMFS proposes allocating harvest
shares to processors to provide stability
to all of the sectors involved in the
fishery after it transitions from status
quo conditions to the PCTC Program.
Under the Program, processors with
an eligible FPP or FFP that have history
of processing in the Federal BSAI
Pacific cod trawl CV fishery would be
eligible to receive QS based on each
processor’s processing history (subject
limitations on the number of C/Ps
authorized to operate as motherships
under BSAI FMP Amendment 120).
Processors eligible to receive QS would
be issued a new PCTC Program
processor QS permit and could annually
associate with a PCTC Program
cooperative. Harvesters in the
cooperative would then have access to
the CQ derived from processor-held QS.
If a processor holding QS does not
associate with a cooperative, that
processor’s QS would be divided among
cooperatives in the same proportion as
the CQ assigned to individual
cooperatives that year. If a processor
associated with more than one
cooperative during a year, the CQ
derived from their processor permit
would be divided among the
cooperatives in the same proportion as
the CQ derived from LLP licenses
within each associated cooperative.
Cooperatives would have some
limitations on the manner in which they
can use CQ derived from processor-held
QS. To address vertically integrated
companies where a processing company
may also own LLP licenses or CVs, the
Council intended processor held QS to
be divided among cooperative CVs
proportionately to the QS attached to
LLP licenses onboard the harvesting
vessel. In other words, a cooperative
should not allow a CV or LLP license
owned by that processor to harvest a
greater proportion of the CQ resulting
from processor-held QS than the LLP
license would have brought into the
cooperative absent any processor-held
QS. The cooperative would monitor this
provision and include reporting on
harvest of CQ resulting from processorheld QS in the PCTC Program
cooperative annual report.
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Processors that are no longer active
(no longer hold an FPP or FFP upon the
effective date of the final rule
implementing this Program) would not
be issued QS. The processing history
associated with those processors would
be deducted from the total amount of
eligible processing history during the
qualifying years when calculating the
distribution of QS to processors.
NMFS proposes to assign a specific
number of Pacific cod QS units to each
processor permit based on the
qualifying landings delivered to the
processor using information from the
PCTC official record as of December 31,
2022 according to the following
procedures:
(1) Determine the BSAI trawl CV
Pacific cod legal landings in the A and
B seasons delivered to each eligible
processor for each calendar year from
2009 through 2019.
(2) Drop from consideration the
calendar year in which the processor
received the least amount of legal
landings. If a processor had one or more
years with zero processing of Pacific cod
legal landings, drop one of those years.
(3) Sum the Pacific cod legal landings
of the highest 10 years for each eligible
processor. This yields the QS units for
each processor.
(4) Divide the QS units for each
eligible processor by the sum (S) of all
QS units for all processors based on the
PCTC official record as presented in the
following equation:
Processor’s QS units/S all processor
QS units × 100 = Percentage of the total
processor QS allocation for that
processor. The result (quotient) of this
equation is the percentage of the total
processors’ portion of PCTC Program
allocation (22.5 percent of the A and B
season DFA) that a QS holder could
designate to a cooperative each year.
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TABLE 2—PCTC PROGRAM INITIAL QS
POOL IN UNITS
Species
PCTC Program initial
QS pool in units
Pacific cod (Holders
of LLP Licenses
with no transferable
AI endorsement).
S highest 10 years of
BSAI Pacific cod
catch history in
metric tons in the
PCTC official
record as of December 31, 2022
for LLP license
holders.
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TABLE 2—PCTC PROGRAM INITIAL QS P sector. The specific percentage of the
total halibut PSC limit assigned to the
POOL IN UNITS—Continued
Species
PCTC Program initial
QS pool in units
Pacific cod (Holders
of LLP licenses
with transferable AI
endorsements).
S highest 15 years of
BSAI Pacific cod
catch history in
metric tons in the
PCTC official
record as of December 31, 2022
for holders of LLP
licenses with transferable AI endorsements.
S highest 10 years
BSAI Pacific cod
processing history
in metric tons in the
PCTC official
record as of December 31, 2022
for that BSAI Pacific cod for eligible
processors.
Pacific cod (All processors).
G. PSC Limits in PCTC Program
The Council’s experience with
rationalization programs has shown
that, as the race for fish ends, fleets can
make operational choices that promote
reductions in PSC. Reducing PSC is an
important benefit of the Program and
reflects a substantial amount of public
testimony highlighting the importance
of minimizing bycatch to the extent
practicable in this rationalization
program consistent with the Council’s
purpose and need statement and
National Standard 9.
PCTC Program cooperatives would
annually be apportioned halibut and
crab PSC limits based on the percentage
of total BSAI Pacific cod CQ allocated
to their cooperative (derived from both
harvester and processor allocations of
QS). NMFS would monitor PSC use at
the sector level and cooperatives would
be responsible for managing PSC limits
at the cooperative level. Cooperatives
would be prohibited from fishing under
the Program if a halibut PSC limit is
reached for the cooperative or from
fishing in a crab bycatch limitation zone
if a crab PSC limit is reached in that
relevant area. PSC limits may be
transferred between cooperatives to
cover any overages or to allow a
cooperative to continue harvesting
Pacific cod CQ.
Halibut PSC
Annually, the Council recommends to
NMFS an apportionment of the total
halibut PSC allowances for the BSAI
trawl limited access sector. The BSAI
trawl limited access sector is composed
of the trawl CV sector and the AFA C/
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trawl limited access sector may change
annually based on the Council’s
recommendation. Each year after
apportioning the halibut PSC limit to
the trawl CV sector for the A and B
season, NMFS will apply a fixed
percentage reduction to that PSC limit.
In the first year of the program, NMFS
will apply a 12.5 percent reduction, and
in the second year and each year
thereafter, NMFS will apply a 25
percent reduction (see section 2.10.3.1).
Because this halibut PSC reduction is
limited to the PCTC Program, it would
apply only to the halibut PSC
apportionment for the A and B season
Pacific cod trawl CV sector. The
recommended reduction to halibut PSC
limits under the Program would be
calculated annually and published in
the annual harvest specifications after
the Council recommends and NMFS
approves the BSAI trawl limited access
sector’s PSC limit apportionments to
fishery categories.
Under the Program and this proposed
rule, NMFS would apportion halibut
PSC limits assigned to the BSAI trawl
limited access sector Pacific cod fishery
between the trawl CV and AFA C/P
sectors. Specifically, the halibut PSC
limit would be divided between the
trawl CV and AFA C/P sectors based on
historical use during the qualifying
years, with 98 percent apportioned to
trawl CVs and 2 percent apportioned to
AFA C/Ps. NMFS would further
apportion the halibut PSC for the trawl
CV sector between the PCTC Program (A
and B seasons) and the trawl CV Pacific
cod C season. The C season
apportionments would be established
before applying PSC limit reductions
described above. Of the halibut PSC
limit apportioned to the trawl CV sector,
95 percent would be available for the
PCTC Program in the A and B seasons
with 5 percent reserved for the C season.
Any amount of the PCTC Program PSC
limit remaining after the B season
would be reallocated to the trawl CV
limited access fishery in the C season.
Currently, 50 CFR 679.21(b)(2) and
(e)(5) authorize NMFS, based on
Council recommendations, to establish
seasonal apportionments of halibut and
crab PSC limits for the BSAI trawl
limited access sector fishery categories
to maximize the ability of the fleet to
harvest the available groundfish TAC
and to minimize PSC mortality to the
extent practicable. The factors
considered annually are (1) seasonal
distribution of prohibited species, (2)
seasonal distribution of target
groundfish species relative to prohibited
species distribution, (3) PSC needs on a
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seasonal basis relevant to prohibited
species biomass and expected catches of
target groundfish species, (4) expected
variations in PSC rates throughout the
year, (5) expected changes in directed
groundfish fishing seasons, (6) expected
start of fishing effort, and (7) economic
effects of establishing seasonal PSC
apportionments on segments of the
target groundfish industry. Based on
these criteria, the Council recommends,
and NMFS annually publishes the
proposed seasonal PSC limit
apportionments to maximize harvest
among fisheries and seasons while
minimizing PSC mortality.
The halibut PSC limit for the BSAI
trawl limited access sector is established
at 745 mt (§ 679.21(b)(1)). The BSAI
trawl limited access sector halibut PSC
limit is further divided by fishery
categories during the annual
specifications process, with 391 mt
(52.5 percent) of the sector limit
designated for use in the BSAI Pacific
cod fishery in 2019. The halibut PSC
limit for the BSAI trawl limited access
sector is an annual limit that is
currently not apportioned by season.
The following example using 2019
halibut PSC limits illustrates how the
PSC reduction under the PCTC Program
would work once fully implemented.
The total 2019 BSAI trawl limited
access sector halibut PSC limit
apportionment to the Pacific cod fishery
category was 391 mt. Had the Program
been in place, 98 percent of that total
would have been apportioned to the
trawl CV Pacific cod sector (383 mt)
while the remaining 2 percent would
have been apportioned to the AFA C/P
sector (9 mt). The trawl CV halibut PSC
limit portion (383 mt) would have been
further apportioned between the
rationalized A and B seasons at 95
percent (364 mt) and the nonrationalized C season at 5 percent (19
mt). Finally, the halibut PSC limit for
the rationalized A and B seasons would
have been reduced by 25 percent to 273
mt, resulting in a halibut PSC limit
savings of 91 mt. Any amount of the
PCTC Program halibut PSC limit
remaining after the B season would have
been rolled over to the C season trawl
CV limited access fishery but future
savings in halibut PSC that is achieved
by not allocating 25 percent of the PSC
limit apportioned to the trawl Pacific
cod sector in the A and B season would
not be used or reallocated for use in
other fisheries.
Crab PSC
The Council recommended, and
NMFS proposes, a 35 percent reduction
in crab PSC limits for PCTC Program
trawl CVs during the A and B season.
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For the crab PSC limits, the 35 percent
reduction in PSC limits for the PCTC
Program would be effective immediately
when the Program is implemented (no
phase-in). The annual crab PSC limits
available to the BSAI trawl limited
access sector Pacific cod fishery
category would be apportioned between
the trawl CV sector and the AFA C/P
sector based on the proportion of BSAI
Pacific cod allocated to the two sectors:
90.6 percent to BSAI trawl CVs and 9.4
percent to AFA C/Ps.
Crab PSC limits include red king crab
(Zone 1), C. opilio (COBLZ), and C.
bairdi (Zone 1 and Zone 2), are specified
annually based on abundance and
spawning biomass and are established
by regulation for the BSAI trawl limited
access sector, which is divided between
the trawl CV and the AFA C/P sectors
(§ 679.21(e)(3)(iv)). Using the 2019 crab
PSC limits as a reference point
combined with the recent decrease in
abundance and biomass estimates, we
can calculate that the proposed 35
percent reduction in crab PSC limits in
2022 would have resulted in an 80
percent reduction for red king crab
(Zone 1), a 69 percent reduction for C.
opilio (COBLZ), and a 48 percent
reduction for C. bairdi (Zone 1 and Zone
2).
Crab PSC limits would be based on
the proportion of BSAI Pacific cod
allocated to the trawl CV sector (90.6
percent) and the AFA C/P sector (9.4
percent). Of the crab PSC limit
apportioned to the trawl CV sector, 95
percent would be available for the PCTC
Program (A and B seasons) and 5
percent would be reserved for the C
season. As with halibut PSC, any
amount of the PCTC Program PSC limit
remaining after the B season would be
reallocated to the C season trawl CV
limited access fishery.
The following example using 2019
crab PSC limits illustrates how the PSC
reduction would work once fully
implemented. The 2019 BSAI trawl
limited access sector red king crab (zone
1) PSC limit apportionment to Pacific
cod fishery category was 2,954 animals,
which would result in 2,676 animals
apportioned to the BSAI trawl CVs and
278 animals apportioned to the AFA C/
Ps. Had the Program been in place, the
BSAI trawl CV crab PSC limit would
have been further apportioned between
the rationalized A and B seasons at 95
percent and the non-rationalized C
season at 5 percent. Thus, 2,542 animals
would have been apportioned to the
rationalized A and B seasons and 134
animals would have been apportioned
to the C season. Finally, the crab PSC
limit for the rationalized A and B
seasons would have been reduced by 35
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8601
percent, resulting in a limit of 1,652
animals, which would have been a
savings of 890 animals. Any amount of
the PCTC Program crab PSC limit
remaining after the B season would be
rolled over to the C season trawl CV
limited access fishery, but future
reductions in crab PSC would not be
allocated and therefore would not be
available for use or reallocation for use
in other fisheries.
III. Application Process
A. Application for PCTC QS
A person would be required to submit
an Application for PCTC Program QS in
order to receive an initial allocation of
PCTC QS. NMFS would require an
application to ensure that QS is
assigned to the appropriate person(s)
and to provide a process for resolving
claims of legal landings that are contrary
to the official record. Once a person
submits an Application for PCTC
Program QS that is approved by NMFS,
that person would not need to resubmit
an application for QS in future years.
A completed Application for PCTC
Program QS must be received by NMFS
no later than 1700 hours AKST 30 days
after the effective date of the final rule
or, if sent by U.S. mail, postmarked by
that time. Objective written evidence of
timely application will be considered
proof of a timely application.
NMFS will mail an application
package to all potentially eligible LLP
license holders, AI endorsement
holders, and processors based on the
address on record at the time the
application period opens upon
effectiveness of the final rule. This
package would include a letter
informing potentially eligible LLP
license holders and processors whether
NMFS has determined they are eligible
to receive QS, and if so, the amount of
qualifying catch history calculated by
NMFS based on the official record.
Applications will be available on the
Alaska Region website and interested
persons could also contact NMFS to
request an application package. An
application could be submitted
electronically or by mail.
Briefly, the Application for PCTC
Program QS would need to contain the
following elements:
• Identification and contact
information for the applicant;
• LLP licenses held by the applicant;
• FFP or FPP held by the applicant;
• Any other information required on
the application; and
• The applicant’s signature and
certification. If the application is
completed by a third party on behalf of
the potential QS recipient, authorization
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for that person to act on behalf of the
potential QS recipient.
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B. Ninety Day Transfer Window for NonExempt AFA LLP holders
For LLP licenses associated with AFA
non-exempt vessels, within 90 days of
initial issuance of QS, the owner of the
LLP license may transfer QS to another
LLP license associated with an AFA
non-exempt vessel. These QS transfers
are subject to the QS ownership cap
further described in section VII.B of this
proposed rule. This provision allows
LLP license holders that engaged in
AFA sideboard harvesting agreements
during the qualifying period to transfer
resulting QS back to the originating LLP
license.
The transferor and the transferee must
submit to NMFS a letter as evidence of
their agreement to transfer the QS in
this one-time opportunity. In the letter,
they must explain how much QS would
be transferred and to which LLP license
or licenses.
If only one party submits evidence of
an agreement, the QS would remain
with the LLP license to which it was
initially assigned.
C. Application Review and Appeals
Persons applying for QS will state in
their application whether or not they
agree with NMFS’s calculation of catch
and processing history from the official
record. If they disagree, they can submit
supporting documentation regarding
their catch history along with their
application for QS. If any applicant
disagrees with NMFS’s initial
calculations and provides
documentation to support claims of
catch history that are inconsistent with
the official record, NMFS would
determine whether such documentation
is sufficient to amend the official record.
If not, NMFS would inform the
applicant that the submitted
documentation was insufficient and
provide the applicant with a 30-day
evidentiary period to further support
their claims. After the close of the 30day evidentiary period, NMFS would
make its final decision about the official
record and issue an initial
administrative determinations (IAD) to
the applicant. IADs would include all
the information described below.
Applicants who disagree with the IAD
may appeal NMFS’s decision through
the NOAA National Appeals Office
according to the procedures found at 50
CFR 679.43.
NMFS’s IAD would indicate the
deficiencies and discrepancies in the
application or revised application,
including any deficiencies in the
information or evidence submitted to
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support an applicant’s claims
challenging the official record. NMFS’s
IAD would indicate which claims could
not be approved based on the available
information or evidence and provide
information on how an applicant could
appeal an IAD. An applicant who
appeals an IAD would not receive any
QS based on contested landings data
unless and until the appeal was
resolved in the applicant’s favor. Once
NMFS has approved an application for
PCTC Program QS in its entirety, NMFS
would assign QS units to an applicant’s
LLP license or issue a processor a PCTC
Program QS permit with a specified
number of QS units.
PCTC Program QS would be issued to
the person identified in an approved
application for QS. Once PCTC Program
QS is issued, the QS units would remain
attached to the associated LLP license or
processor’s PCTC Program QS permit in
most circumstances and could not be
severed or otherwise be transferred
independently. There are several
limited exceptions to non-severability:
(1) QS attached to LLP licenses with
transferable AI endorsements could be
transferred along with the endorsement
to another LLP license that meets the
criteria for a transferable AI
endorsement; (2) QS could be fully or
partially transferred during the limited
90-day transfer provision described in
section III.B of this proposed rule; (3) if
a participant qualifies for a legacy
exemption and receives an initial
allocation of QS in excess of a program
ownership cap, that participant’s QS
could be split during a transfer to
prevent any recipient from exceeding a
cap; and (4) QS could be separated from
a processor QS permit in any transfer of
processor-held QS if necessary to
prevent any transferee from exceeding
an ownership or use cap.
D. Transferring QS
1. Limits on Transferring QS
As stated above, once QS is assigned
to an LLP license, it generally could not
be divided or transferred separately
from that LLP license. For LLP licenses
with transferable AI endorsements, after
issuance QS generally could not be
divided or separated from the
transferable endorsement. However,
there is an exception for both LLP
licenses and processor-held QS permits
that were initially issued QS greater
than the ownership cap (i.e. for persons
granted a legacy exemption from the
ownership cap). For these QS holders,
the amount of QS over the cap may be
severed from the permit (and divided to
multiple buyers) at the time of transfer
because the QS caps do not allow a
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legacy exemption to extend beyond
initial issuance. This provision would
allow the transfer of an LLP license or
processor-held QS permit subject to a
legacy exemption without the transferee
exceeding a QS ownership cap. In
addition, for QS assigned to a processor
holding a PCTC Program QS permit—
even if the transferor does not hold QS
in excess of any cap—QS could be
divided or transferred separately from
that processor permit if a sale would
otherwise result in the transferee
exceeding an ownership or use cap
described in Section VII of this
preamble. NMFS would not approve
transfers of an LLP license with PCTC
QS or a processor-held QS permit if the
transfer would cause a person to exceed
the 5 percent harvester QS ownership
cap or the 20 percent processor QS
ownership cap.
If a QS holder has a legacy exemption
from the QS ownership cap, NMFS
would not approve any QS permit
transfers to that person unless and until
that person’s holdings of QS are reduced
to an amount below the QS holdings
cap.
2. Methods for Transferring QS
Any transfer of QS would require
approval by NMFS to properly track
ownership and use cap accounting. For
harvesters, QS could be transferred with
an LLP license or a transferable AI
endorsement to another person through
the existing LLP transfer provisions
described in regulations at 50 CFR
679.4(k)(7).
3. Transferring PCTC Program QS
In order to transfer PCTC QS, a QS
holder would submit to NMFS an
application to transfer an LLP license or
an application to transfer a processor QS
permit. NMFS would require that the
application include any additional
information needed for the transfer of
QS, including the sale price of QS.
Applications to transfer an LLP license
with PCTC QS, a transferable AI
endorsement with QS, or a processorheld PCTC Program QS permit could be
submitted electronically (see proposed
regulatory text at § 679.130 for detailed
information). Transfer forms would be
posted on the NMFS Alaska Region
website.
B. CQ Transfers
Under this Program, a cooperative
could transfer all or part of its CQ to
another cooperative for harvest subject
to the limitations imposed by the
ownership and use caps described in
Section VII of this preamble and the
proposed regulations. Transfer
provisions would provide flexibility for
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cooperatives to trade Pacific cod for
harvest or PSC to support the PCTC
program cooperative fishing. The ability
to trade PSC allows cooperatives to
account for unforeseen circumstances,
but the incentive to avoid hitting a
cooperative PSC limit remains because
of the cost of acquiring PSC from
another cooperative.
To effectuate an inter-cooperative
transfer, a designated representative of
each cooperative would need to agree to
and complete a CQ transfer application,
which would be available on eFish or
on the NMFS Alaska Region website. A
transfer of CQ would not be effective
until approved by NMFS. If the
cooperative attempting to acquire CQ
has reached any relevant use caps,
NMFS would deny the transfer
application.
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C. Cooperative Reports
Under the PCTC Program,
cooperatives would be asked to provide
voluntary annual reports to the Council.
Consistent with other cooperative
programs developed by the Council,
these reports would include specific
information on the structure, function,
and operation of the cooperatives.
Each year, the Council would receive
reports outlining the cooperatives’
performance at one of its regularly
scheduled meetings. These reports
would be used by the Council to ensure
the program is functioning as intended
and to solicit timely information on
issues that may need to be addressed by
the Council. The Council requested that
each cooperative report include
information on CQ leasing activities and
any penalties issued, harvest of CQ
resulting from processor-held QS,
cooperative membership, cooperative
management, and performance
(including implementation of the AI setaside when in effect).
IV. PCTC Program Cooperatives
The PCTC Program is a cooperativebased program that requires participants
to join a cooperative each year.
Cooperatives would receive annual CQ
derived from the QS held by the
harvesters and processors that join the
cooperative. Under the Program,
cooperative members could coordinate
their fishing operations, potentially
reduce operational expenses, and
increase the quality and revenue from
the product, among other benefits.
A. Requirements for Forming a PCTC
Cooperative
Under the PCTC Program, forming a
cooperative would require at least three
LLP licenses with PCTC QS. Each
cooperative would be required to
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associate with at least one licensed
processor. There would be no limitation
on the number of LLP licenses that may
join a single cooperative, the number of
processors a cooperative could associate
with, nor on the amount of QS a single
cooperative could control. There also
would be no limitation on the number
of cooperatives that may form, but each
LLP license could be assigned to only
one cooperative. A person may hold
multiple LLP licenses, meaning that a
single LLP license holder who holds
three or more LLP licenses could form
a cooperative in association with a
processor.
Annually, each cooperative would be
required to submit an Application for
PCTC Program Cooperative Quota,
identifying the CVs that would be
eligible to harvest a portion of that
cooperative’s CQ. NMFS would process
an application for CQ and, if approved,
issue CQ permits and apportioned
amounts of annual crab and halibut PSC
limits to the cooperative. CQ would
constitute an exclusive harvest privilege
for the A and B seasons. Under certain
conditions, each cooperative would be
required to set aside 12 percent of the
A season CQ for delivery to an Aleutian
Islands shoreplant as described further
under the AI Community Protections
section below. Cooperative members
would determine their own harvest
strategy, including which vessels could
harvest the CQ.
An LLP License holder may change
cooperatives and processor associations
may change annually without penalty.
However, harvesters may not change
cooperatives and cooperatives may not
change their processor associations
during the PCTC Program fishing
season. If an LLP license is sold or
transferred during the season, it would
remain with the cooperative until the
end of the season. Inter-cooperative
formation would be allowed and an
inter-cooperative agreement would be
required to implement the AI set-aside
and to allow for efficient trading of CQ
or PSC limits between cooperatives.
The following would be required to
form a PCTC Program cooperative under
the proposed Program:
• A complete Application for PCTC
Program CQ must be submitted by
November 1 of the year prior to fishing
in the cooperative;
• A copy of the business license
issued by the state in which the PCTC
cooperative is registered as a business
entity;
• A copy of the articles of
incorporation or partnership agreement
of the PCTC Program cooperative;
• A list of the names of all persons,
to the individual level, holding an
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8603
ownership interest in the LLP licenses
that join the cooperative and the
percentage ownership each person and
individual holds in each LLP license;
• A list of trawl CVs eligible to
harvest a portion of that cooperative’s
CQ; and
• A copy of the cooperative
agreement signed by the members of the
PCTC Program cooperative, which must
include, at a minimum, the following
terms: (1) QS holders affiliated with
processors cannot participate in price
setting negotiations except as permitted
by antitrust law; (2) monitoring
provisions, including sideboard
protections in the GOA, sufficient to
ensure compliance with the PCTC
Program; and (3) a provision that
specifies the obligations of PCTC QS
holders who are members of the
cooperative to ensure the full payment
of cost recovery fees that may be due.
Annual CQ would be issued to each
cooperative by NMFS based on the
aggregate QS of all cooperative
members. NMFS would issue CQ by
season and rely on the cooperatives to
ensure the seasonal limits are not
exceeded. Any unused A season CQ
may be harvested during the B season.
CQ would not be designated for harvest
in a management area (i.e., BS or AI) but
may be harvested from either area.
However, NMFS will annually establish
a separate AI DFA to support the
calculation of the AI set-aside. For more
information, see Section V of this
preamble.
B. Application for Cooperative Quota
(CQ)
The PCTC Program would require
cooperatives to submit an annual
application for CQ by November 1,
which is prior to the start of each fishing
year. NMFS would use these
applications to issue CQ permits,
establish annual cooperative accounts
for catch accounting purposes, and
identify specific vessels that would be
associated with each cooperative. As
with other LAPPs, the information
received in this application would be
used to review ownership and control
information for various QS holders to
ensure that QS and CQ use caps are not
exceeded (see Section IX of this
preamble for additional detail on use
caps).
An application for CQ must be
submitted to NMFS no later than
November 1 of the year prior to fishing
under the CQ permit to be considered
timely. The cooperative’s designated
representative would be responsible for
submitting the application for CQ on
behalf of the cooperative members. If
the designated representative for the
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cooperative were to fail to submit a
timely application for CQ, NMFS would
not issue CQ to the members of the
cooperative for that fishing year. This
requirement would require all
participants in the Program to organize
as a cooperative prior to the November
1 deadline each year and submit a
complete application to avoid delay of
CQ issuance.
The Applications for CQ would be
available on the NMFS Alaska Region
website and would be able to be
submitted electronically through eFish
or the NMFS Alaska Region website.
The information that would be required
in the application is detailed in the
proposed regulatory text at § 679.131.
The following list summarizes the
information that would be required:
• PCTC Program LLP license
identification numbers;
• Processor-held PCTC Program
processor QS permit number(s) and
name of the processor that holds that
each QS permit;
• PCTC Program QS ownership
documentation;
• PCTC Program cooperative business
address or identifier identification;
• Members of the PCTC Program
cooperative and the associated
processor;
• Trawl vessel identification,
including the name(s) and USCG
documentation number of vessel(s)
eligible to harvest the CQ issued to the
PCTC Program cooperative;
• Designated representative and
cooperative members’ signatures and
certification; and
• Authorization for the designated
representative to act on behalf of the
cooperative to complete the application.
C. Issuing PCTC CQ
NMFS would review the CQ
applications for accurate information,
use caps, and payment of any fees,
including cost recovery. If approved,
NMFS would issue a CQ permit to the
cooperatives. Permits would not be
issued until the annual harvest
specifications are recommended by the
Council for the upcoming year. Permits
would generally be issued in early
January for the upcoming year. The CQ
permit would list the metric tons of
Pacific cod by A and B season that the
cooperative may harvest, the metric tons
of apportioned halibut PSC, and the
number of each species of crab PSC that
the cooperative may use during the
fishing year. The following is a brief
description of the process NMFS would
use for calculating the amount of CQ
issued to a cooperative.
CQ would be issued for A and B
seasons separately, with total CQ issued
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to all cooperatives in each season equal
to the DFA. The remaining TAC for the
trawl CV sector would be the ICA for
Pacific cod caught as bycatch in other
fisheries, such as pollock. The DFA
would be further subdivided into 77.5
percent for the harvester QS pool and
22.5 percent for the processor QS pool.
These two QS pools would be converted
into CQ and issued as CQ to
cooperatives.
D. Issuing PSC With CQ
The proposed Program would
authorize NMFS to issue halibut and
crab PSC to each cooperative based on
the proportion of Pacific cod QS, but
NMFS would monitor PSC use at the
sector level. PSC used by PCTC
cooperative vessels would be deducted
from the PCTC PSC limits when they are
directed fishing for BSAI Pacific cod
during the A and B seasons.
E. Processors in Cooperatives
A person holding a PCTC Program
processor QS permit would be required
to associate with a cooperative to realize
the economic benefits associated with
their QS. This creates an economic
incentive for the processors that hold
QS to either associate with a cooperative
on an annual basis or sell their permit
to a processor that would associate with
a cooperative. The CQ derived from
processor-held QS that is not associated
with a specific cooperative would be
distributed among all the cooperatives
that form in a given year in the same
proportion as the CQ assigned to each
cooperative. A cooperative may
associate with a processor that does not
hold PCTC QS.
A cooperative cannot designate CQ
derived from processor-held QS to a
vessel owned by that processor in a
greater amount than the LLP license
associated with the vessel would have
brought into the cooperative absent any
processor-held QS. This provision is
intended to ensure that processor-held
CQ is not utilized to primarily benefit
vessels in the cooperative that are
owned by the processor. The
cooperative would monitor this
provision and include reporting on
harvest of CQ derived from processorheld QS in the PCTC Program
cooperative annual report.
F. CQ Transfers
Under this Program, a cooperative
could transfer all or part of its CQ to
another cooperative for harvest subject
to the limitations imposed by the
ownership and use caps described in
Section VII of this preamble and the
proposed regulations. Transfer
provisions would provide flexibility for
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cooperatives to trade Pacific cod for
harvest or PSC to support the PCTC
program cooperative fishing when it
cannot be avoided. The ability to trade
PSC allows cooperatives to account for
unforeseen circumstances, but the
incentive to avoid hitting a cooperative
PSC limit remains because of the cost of
acquiring PSC from another cooperative.
To effectuate an inter-cooperative
transfer, a designated representative of
each cooperative would need to agree to
and complete a CQ transfer application,
which would be available on eFish or
on the NMFS Alaska Region website. A
transfer of CQ would not be effective
until approved by NMFS. If the
cooperative attempting to acquire CQ
has reached any relevant use caps,
NMFS would deny the transfer
application.
G. Cooperative Reports
Under the PCTC Program,
cooperatives would be asked to provide
voluntary annual reports to the Council.
Consistent with other cooperative
programs developed by the Council,
these reports would include specific
information on the structure, function,
and operation of the cooperatives.
Each year, the Council would receive
reports outlining the cooperatives’
performance at one of its regularly
scheduled meetings. These reports
would be used by the Council to ensure
the program is functioning as intended
and to solicit timely information on
issues that may need to be addressed by
the Council. The Council requested that
each cooperative report include
information on CQ leasing activities and
any penalties issued, harvest of CQ
resulting from processor-held QS,
cooperative membership, cooperative
management, and performance
(including implementation of the AI setaside when in effect).
V. AI Community Protections
The Council and NMFS have long
supported the development of a local
CV fleet in remote AI communities, and
a variety of programs have been
implemented to encourage economic
opportunities for local CVs and
processing operations. Some of these
programs include: the allocation of the
AI pollock TAC to the Aleut
Corporation, an Alaska Native tribal
organization that represents specific
community interests in Adak (70 FR
9856; March 1, 2005); allocations of
Western AI golden king crab to the Adak
Community Development Corporation
under the BSAI Crab Rationalization
Program (70 FR 10174; March 2, 2005);
and the establishment of a Community
Quota Entity Program in the AI that
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provides additional fishing
opportunities for residents of fishery
dependent communities in the AI and
sustains participation in the halibut and
sablefish IFQ fisheries (79 FR 8870;
February, 14, 2014). Adak, the AI
community with the most historical
participation in the Pacific cod fishery,
also acts as a port of embarkation and
disembarkation for personnel on board
C/Ps and CVs harvesting groundfish in
the AI.
The Council previously sought to
ensure the continued participation of
remote AI fishing communities in the
Pacific cod fishery through BSAI
Amendment 113, which was
recommended by the Council and
implemented by NMFS at the start of
the 2017 fishing year (81 FR 84434,
November 23, 2016). Amendment 113
set aside a portion of the BSAI Pacific
cod TAC for harvest by catcher vessels
delivering their catch to Aleutian
Islands shoreplants. However, the U.S.
District Court for the District of
Columbia vacated the rule
implementing Amendment 113, finding
the record for that action failed to
demonstrate consistency with the
Magnuson-Stevens Act’s National
Standards (Groundfish Forum v. Ross,
375 F.Supp.3d 72 (D.D.C. 2019)). As a
result of this court decision, the
regulations implementing Amendment
113 are no longer in effect.
Shortly after the vacatur of
Amendment 113, the Council initiated
action to rationalize the BSAI trawl CV
Pacific cod fisheries and included
options to meet the objective of
supporting sustained participation by AI
communities in the Pacific cod trawl CV
fishery. Under the PCTC Program,
cooperatives would be required to
collectively set-aside 12 percent of the
A season CQ for delivery to an Aleutian
Island shoreplant (AI CQ set-aside)
during years in which an AI community
representative notifies NMFS of their
intent to process Pacific cod.
This provision is different from the
set-aside implemented under
Amendment 113 but would achieve a
similar goal. NMFS proposes new
regulations to implement the PCTC
Program AI community measures,
which will include some provisions that
are similar or identical to the vacated
regulations that implemented
Amendment 113. For example,
Amendment 113 defined an ‘‘Aleutian
Island shoreplant’’ to mean a processing
facility that is physically located on
land west of 170° W longitude within
the State of Alaska (State), and this same
definition will apply under the PCTC
Program. Defining Aleutian Island
shoreplant is necessary because the
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existing term ‘‘shoreside processor’’ in
§ 679.2 can include processing vessels
that are moored or otherwise fixed in a
location (i.e., stationary floating
processors), but not necessarily located
on land. When Amendment 113 was
vacated, the associated regulations lost
their legal effect, though they were not
removed from the Code of Federal
Regulations (CFR). Under this proposed
rule, NMFS proposes to remove
regulatory provisions at § 679.20 that
implemented the vacated Amendment
113 and add provisions applicable to
the PCTC Program.
Despite having a small local CV fleet,
Adak has a substantial degree of
historical engagement in the AI Pacific
cod fishery. Adak is home to a large
shoreplant, and, when operational, the
Adak shoreplant primarily receives and
processes Pacific cod harvested in the A
season. In some years, the facility has
not received any deliveries of
groundfish, crab, or halibut due to a
variety of operational and logistical
challenges, as well as changes in fishery
management. Section 2.8.6 of the
Analysis provides additional detail on
Adak shoreplant processing operations
(see ADDRESSES).
A. Rationale for Establishing an AI CQ
Set-Aside
This proposed rule is intended to
provide benefits to harvesters delivering
to an Aleutian Island shoreplant, the
shoreplants, and the communities
where those shoreplants are located.
This objective is consistent with longstanding policies recommended by the
Council and regulations established by
NMFS to provide harvesting and
processing opportunities for
communities in the AI. The Council
determined and NMFS agrees that a
harvest set-aside is needed for several
reasons. First, the entire BSAI trawl CV
Pacific cod apportionment could be
harvested in the BS which would mean
no cod would be delivered to a
community in the AI, jeopardizing the
ability of AI communities to continue
participating in the fishery. Second, the
Council acknowledged that the TAC for
AI Pacific cod was significantly lower
than predicted in the last few years,
meaning that the small vessels operating
in and around the AI could have
reduced harvest opportunities in any
given year. Third, the rationalization
programs, and particularly the
Amendment 80 Program, allowed an
influx of at-sea processing capacity into
the AI Pacific cod fishery (until at-sea
processing was limited by Amendment
120 to the BSAI FMP), exacerbating the
need for Council action to support
shoreside delivery of Pacific cod to AI
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8605
fishing communities. This proposed
rule would strike a balance between
supporting fishery-dependent
communities and ensuring that the
fishery sectors have a meaningful
opportunity to fully harvest their
allocations by including several
measures to prevent AI Pacific cod from
going unharvested. This proposed rule
would provide benefits and stability to
fishery-dependent fishing communities
in the AI when their shoreplants are
operating and is responsive to lingering
effects caused by changes in
management regimes such as
rationalization programs.
The Council recognized that neither
of the existing Aleutian Island
shoreplants—in Adak and Atka—have
participated in the AI Pacific cod fishery
in recent years. However, the Council
also recognized that the measures and
CQ set-aside in this proposed rule
would minimize the risk that AI
harvesters, processors, and communities
would be excluded from the AI Pacific
cod fishery and would maintain
opportunities for them to participate.
This proposed rule would revise
regulations to provide additional
incentives for harvesters to deliver AI
Pacific cod to an Aleutian Island
shoreplant. The AI Pacific cod TAC is
not sufficient to allow all sectors to
prosecute the AI Pacific cod fishery at
their historical levels. Without the
management measures included in this
proposed rule, AI harvesters,
shoreplants, and fishing communities
could be preempted from the fishery by
the offshore sector. The CQ set-aside
would be especially beneficial to AI
communities in low TAC years when
harvest could otherwise fully occur in
the BS, preventing any cod deliveries in
the AI. The Council emphasized that
this proposed rule would not affect any
sector’s BSAI Pacific cod allocation or
the CDQ Pacific cod allocation in the AI.
Non-CDQ sectors would continue to
receive the allocations established
under Amendment 85.
B. Establishing a Set-Aside for AI
Processors
The Council recommended, and
NMFS proposes establishing a set-aside
provision for AI processors that would
require cooperatives to set-aside an
amount of annual CQ for delivery to an
Aleutian Island shoreplant if the city of
Adak or Atka files a notice of intent to
process that year. The amount of the AI
set-aside would be specified each year
during the annual harvest specifications
process. The amount of the AI set-aside
would be equal to the lesser of either the
AI Pacific cod non-CDQ DFA or 12
percent of the combined BSAI PCTC
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Program A season CQ. The AI Pacific
cod non-CDQ DFA is further described
below in section V.D of this preamble.
In administering the CQ set-aside,
cooperatives would need to ensure that
CVs under 60 feet in length assigned to
an LLP license with a transferable AI
endorsement have an opportunity to
harvest at least 10 percent of the setaside. The AI CQ set-aside would be in
effect during the A and B seasons unless
the intent to process is withdrawn by
the AI community. If the intent to
process is withdrawn, any remaining
portion of the AI CQ set-aside would be
available for cooperatives to harvest and
deliver to any processor. Each year, a
representative of the cooperatives must
submit an inter-cooperative agreement
to NMFS that describes (1) how the CQ
set-aside would be administered by the
cooperatives, (2) how the cooperatives
intend to harvest the set-aside, and (3)
how cooperatives would ensure that
CVs less than 60 feet in length assigned
to an LLP license with a transferable AI
trawl endorsement have the opportunity
to harvest 10 percent of the AI CQ setaside for delivery to an Aleutian Island
shoreplant. All cooperatives would be
required to provide the cooperative’s
plan for coordinating harvest and
delivery of the set-aside to an Aleutian
Island shoreplant in the annual
cooperative application, regardless of
whether a cooperative intends to harvest
any amount of the CQ set-aside.
The purpose of the inter-cooperative
agreement would be to ensure annual
coordination between the PCTC
Program cooperatives and shoreplants
that are operating in the AI and to
guarantee that the AI CQ set-aside is
available to be harvested in the AI. This
reduces the management burden on
NMFS and relies on the cooperatives to
organize the annual fishing activity.
The 12 percent CQ set-aside is based
on historical use by the Aleutian Island
shoreplants. The Council did not
recommend an allocation to the
Aleutian Island shoreplants based, in
part, on concerns about whether the
plants would be in operation every year
and their ability to lease CQ, which was
not the intent of the Council in
providing processing opportunities for
the AI communities. A specific objective
is to provide an opportunity for AI cod
harvests to support a shoreplant that
could be used in conjunction with other
fishery landings and allocations to
benefit AI communities. The Council
determined that this AI CQ set-aside
option best met their objective to
support sustained AI community
participation in the Pacific cod trawl CV
fishery. The performance of this set-
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aside program will be evaluated in the
periodic program reviews.
The Council also noted that Aleutian
Island shoreplants have a different
history in the fishery than the nonAleutian Island shoreplants, and,
therefore, a different management
structure is appropriate. Because there
is currently no Aleutian Island
shoreplant with an active FPP, no entity
in the AI would be eligible for
processor-issued QS. Unlike with the BS
processors, QS allocations to AI
processors would not work well based
on the intermittent and impermanent
operation of the Aleutian Island
shoreplants. For this reason, the PCTC
Program would provide benefits to
Aleutian Island shoreplants through an
AI CQ set-aside rather than by allocating
QS to AI processors.
C. Intent To Process and Eligibility for
AI Set-Aside
This proposed rule would require
annual notification of intent to process
PCTC Program Pacific cod in the
upcoming fishing year by a
representative of the City of Adak or the
City of Atka. A signed letter or
memorandum would serve as the
official notification of intent. This
proposed rule would require that the
official notification of intent be
submitted to the NMFS Regional
Administrator no later than October 15
of the year prior to fishing. Email
submission of an electronic copy of the
official notification of intent by October
15 would provide NMFS inseason
management with the timely
information it needs to manage the
upcoming fisheries and notify the
cooperatives that the AI set-aside is in
effect for the upcoming year.
A city’s notification of intent to
process PCTC Program Pacific cod
would be required to contain the
following information: date, name of
city, a statement of intent to process AI
Pacific cod, statement of calendar year
during which the city intends to process
AI Pacific cod, and the contact
information for the city representative
where the shoreplant is intending to
process AI Pacific cod. If no notice of
intent to process is submitted,
cooperatives would not be required to
set aside CQ for Aleutian Island
shoreplant delivery.
On or before November 30, the
Regional Administrator would notify
the representative of the City of Adak or
the City of Atka confirming receipt of
their official notification of intent to
process PCTC Program Pacific cod.
Shortly after receipt of an official
notification of intent to process PCTC
Program Pacific cod, NMFS would
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announce through notice in the Federal
Register whether the AI set-aside will be
in effect for the upcoming fishing year.
Even if an AI community is uncertain
at the time the notice of intent is due as
to whether an Aleutian Island
shoreplant will be operational, there
would be no penalty to the AI
community or shoreplant for stating
their intention to process but then later
withdrawing that notice of intent. An AI
city would be allowed to withdraw their
notice of intent at any time after
submitting it to NMFS.
NMFS would monitor the
implementation of the set-aside
throughout the A and B seasons. NMFS
would consider the number and
frequency of deliveries to Aleutian
Island shoreside processors as well as
the season timing and remaining CQ to
be harvested. As soon as practicable, if
the Regional Administrator determines
that Aleutian Island shoreplants
authorized under the PCTC Program
will not process the entire AI set-aside,
the Regional Administrator could
remove the delivery requirement for
some or all of the projected unused AI
CQ set-aside. The unused portion of the
AI CQ set-aside would be made
available to PCTC cooperatives in
proportion to the amount of CQ that
each PCTC cooperative received in the
initial allocation of CQ for that calendar
year by inseason notification published
in the Federal Register.
If Adak and/or Atka withdraws its
notice of intent to operate during the A
or B season, any remaining portion of
the AI CQ set-aside would be released
to the cooperatives for delivery to any
shoreside processor or an eligible C/P
with a Pacific cod mothership
endorsement.
D. AI DFA
The Council recommended, and
NMFS proposes that the amount of the
CQ set-aside for delivery to an Aleutian
Island shoreplant would be equal to the
lesser of either the AI Pacific cod nonCDQ DFA or 12 percent of the A season
CQ and would be in effect during the A
and B seasons. The Council and NMFS
annually establish separate OFLs, ABCs,
and TACs, for the AI and BS subareas;
however, the non-CDQ sector
allocations (including the PCTC
Program allocations) remain BSAI-wide
allocations. When this CQ AI set-aside
is equal to the AI DFA, directed fishing
for Pacific cod in the AI may be
conducted only by PCTC Program
vessels that deliver their catch of AI
Pacific cod to Aleutian Island
shoreplants. However, if the AI DFA is
greater than the AI CQ set-aside (and
thus the set-aside is equal to 12 percent
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of the A season CQ), the difference
between the AI DFA and the AI CQ setaside may be available for directed
fishing by all non-CDQ fishery sectors
with sufficient A season allocations and
may be processed by any eligible
processor.
This proposed rule would require that
NMFS annually specify an ICA and a
DFA derived from the Aleutian Islands
non-CDQ TAC. Each year, during the
annual harvest specifications process
described at § 679.20(c), NMFS would
specify an amount of AI Pacific cod that
NMFS estimates will be taken as
incidental catch when directed fishing
for non-CDQ groundfish other than
Pacific cod in the AI subarea. This
amount would be the AI ICA and would
be deducted from the AI non-CDQ TAC.
The amount of the AI non-CDQ TAC
remaining after subtraction of the AI
ICA would be the AI DFA.
NMFS would specify the AI ICA and
DFA so that NMFS could clearly
establish amount of AI CQ set-aside. It
would also aid the public in knowing
how much of the AI non-CDQ TAC is
available for directed fishing prior to the
start of fishing to aid in the planning of
fishery operations.
The amount of the AI ICA may vary
from year to year, and in future years,
NMFS would specify the AI ICA in the
annual harvest specifications based on
recent and anticipated incidental catch
of AI Pacific cod in other AI non-CDQ
directed groundfish fisheries.
VI. BSAI Pacific Cod CV C Season
Fishery
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A. Management of the Limited Access
Fishery
As stated above, the PCTC Program
would allocate only A and B season
trawl CV sector apportionments to
cooperatives as CQ. The C season
apportionment—which is 15 percent of
the total annual allocation to the BSAI
Pacific cod trawl CV sector—would
remain a limited access fishery open to
all trawl CVs with LLP license
endorsements to harvest Pacific cod in
the BS and/or AI with trawl gear. The
C season limited access fishery would
be managed as it is under status quo
conditions, including management of
incidental catches of Pacific cod in
other directed fisheries. This means
that, as under status quo conditions, any
trawl CV with a Pacific cod
endorsement and BS and/or AI area
endorsements is eligible to fish in the C
season until the TAC is reached.
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B. ITAC and PSC Assigned to the
Limited Access Fishery
Although directed fishing for Pacific
cod in the C season (June to November)
is an important part of the annual
fishing plan for some trawl CVs, most of
the trawl CV C season catch is
incidental to other directed fishing. In
August, before directed fishing opens on
September 1 for the hook-and-line and
pot sectors, NMFS estimates any BSAI
trawl CV C season allocation would be
available for reallocation to other
sectors. In some years, it is clear that a
portion of the trawl CV TAC will be
available to reallocate, and NMFS may
effectuate a reallocation in late
September or October. In other years, it
is less clear whether there will be any
surplus TAC, and NMFS waits until
after directed fishing for pollock and
Pacific cod by the trawl CV sector
closes. In that circumstance,
reallocations would occur in November
or December. When the BS and AI
Pacific cod TACs are higher, trawl CV
C season Pacific cod may go unused and
can be reallocated to other sectors. In
some years, other trawl CV fisheries
may be done for the year by October and
would not be considered for Pacific cod
reallocations.
To help ensure efficient allocation
management, NMFS may rollover any
unused portion of a seasonal
apportionment from any non-CDQ
fishery sector (except the jig sector) to
that sector’s next season during the
current fishing year (§ 679.20(a)(7)(iv)(B)
and (C)).
Under the PCTC Program, the
cooperatives would be granted harvest
privileges in the A and B seasons of the
BSAI Pacific cod fishery. Those harvest
privileges would alter the reallocation
structure from the trawl CV sector prior
to the C season since roll-overs of
unused PCTC CQ to other sectors would
not occur until the close of the annual
PCTC fishing year (the end of the B
season). This proposed rule would
establish a separate C season halibut
and crab PSC apportionment of five
percent before reducing the A and B
season PSC limits as described above.
VII. Ownership and Use Caps
A. LAPPs and Use Caps
Section 303A(c)(5)(D) of the
Magnuson-Stevens Act requires the
Council to ensure that Program
participants do not acquire an excessive
share of the total limited access
privileges in the program by (1)
Establishing a maximum share,
expressed as a percentage of the total
limited access privileges, that a limited
access privilege holder is permitted to
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8607
hold, acquire, or use; and (2)
Establishing any other limitations or
measures necessary to prevent an
inequitable concentration of limited
access privileges.
The Council considered how the
allocation of QS could result in
consolidation in the harvesting and
processing sectors, and whether
consolidation could result in any
participant acquiring an excessive share
of the limited access privileges. To
prevent excessive consolidation and any
issues with excessive shares, the
Program would implement ownership
caps to limit the amount of QS a person
could hold and use caps on the amount
of CQ they could use. There are four
types of ownership or use caps under
the PCTC Program that would apply to
harvesters and processors.
Ownership and use caps are typically
implemented to limit consolidation and
prevent a person, vessel, or processing
facility from harvesting, processing, or
controlling an excessive amount of the
LAPP shares. Here, the proposed
ownership and use caps would limit
consolidation of both harvesters and
processors in the BSAI trawl CV sector,
and this is described further in section
2.9.8 of the Analysis. In development of
previous catch share programs, the
Council tried to balance the goals of
improving economic efficiency,
maintaining employment opportunities
for crew, and providing financially
affordable access opportunities for new
participants.
Individual ownership and use caps
for both CVs and processors would be
calculated using the ‘‘individual and
collective rule.’’ The individual and
collective rule means a person is
deemed to own or use QS or CQ in the
same percentage that person owns or
uses the relevant license, permit, or
vessel. For example, persons that hold
100 percent of an eligible LLP license or
processing permit would be assigned
100 percent of the QS assigned to that
LLP license towards their ownership
cap. If they hold 50 percent of the
license, they are credited with holding
50 percent of the QS assigned to that
LLP license. The same logic applies to
use caps: if a person owned 50 percent
of a trawl CV, they would be credited
with using 50 percent of the CQ
harvested by that CV in calculating the
use caps. If a person owns QS equal to
the maximum shares cap, that person
would not be allowed to acquire any
additional QS. The proposed ownership
and use caps of 5 percent for harvesters
and 20 percent for processors are well
below what the Council would consider
an excessive share because such
ownership amounts would preserve
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price competition and would not result
in any participant wielding improper
market power. Because the proposed
program caps fall well short of excessive
shares, the Council recommended and
NMFS proposes granting legacy
exemptions to participants whose initial
allocations based on historical
participation would otherwise exceed
the ownership and use caps. The legacy
exemptions are intended to preserve
stability in the fishery rather than force
longtime participants to divest and
reduce their reliance on the fishery.
However, legacy exemptions are unique
to persons receiving initial allocations
and could not be transferred. All future
purchasers of QS would be subject to
the ownership and use caps described
below.
B. QS Ownership Caps
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1. Harvester QS Ownership Cap—5
Percent
With the exception of persons
qualifying for the proposed legacy
exemption, no person would be
permitted to individually or collectively
own more than 5 percent of the
aggregate PCTC Program QS units
initially assigned to eligible LLP
licenses. The number of PCTC Program
QS units would be based on the PCTC
Program official record. Section II of this
preamble provides a detailed example of
how the PCTC Program initial QS pool
would be established. Persons over the
cap at the time of QS issuance would be
granted legacy exemptions. However,
when QS is transferred, the person
receiving the transfer would be
prohibited from holding or using QS
over the 5 percent cap. Processor-issued
QS would not count toward this use
cap. This QS ownership cap would limit
the amount of PCTC QS assigned to an
LLP license that could be held or
controlled by a single entity.
2. Processor QS Ownership Cap—20
Percent
With the exception of persons
qualifying for the proposed legacy
exemption, no person would be
permitted to individually or collectively
own more than 20 percent of the
aggregate PCTC QS units initially
assigned to PCTC Program QS permits
held by eligible processors. This
proposed rule defines processor-issued
QS caps that limit the percent of that
class of shares a person could hold or
use. Processor-held QS ownership caps
are necessarily higher than harvesterheld QS caps because the total number
of eligible processors is significantly
less than the number of harvesters. This
cap would be applied at the aggregate
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firm level (not the individual facility
level). Persons over the cap at the time
of QS issuance would be granted nontransferable legacy exemptions. The
processor QS ownership cap would
limit the amount of processor held
PCTC QS that could be held or
controlled by a single entity.
C. Vessel CQ Use Cap—5 Percent
Most of the cooperative programs in
the North Pacific include a vessel
harvesting or use cap. A vessel use cap
restricts the quota that can be
consolidated and harvested on one
vessel during the year.
The Program would include a 5
percent vessel use cap on PCTC Program
harvesting vessels. With the exception
of persons qualifying under the
proposed legacy exemption, no vessel
would be permitted to harvest more
than 5 percent of the annual PCTC CQ
issued in the fishery. Vessels over the
cap at the time of QS issuance would be
granted legacy exemptions. The legacy
exemption would apply to the vessel
designated on an LLP license that yields
more than 5 percent of the annual
Pacific cod CQ at the time of initial
allocation. This legacy exemption is not
transferable if the LLP license is
transferred to a new owner. The vessel
use cap would limit the amount of
PCTC CQ that could be harvested by a
single vessel.
D. Processor CQ Use Cap—20 Percent
A processor’s CQ use cap would
protect against excessive consolidation
of processing activity by limiting a
person (i.e. company or firm) from
processing more than 20 percent of the
annual PCTC CQ, with the exception of
persons qualifying under the proposed
legacy exemption. The processor CQ use
cap would be calculated based on use of
all CQ issued under the PCTC Program
and not just QS initially issued to
processors. This would ensure that a
processing company would be limited
to processing a specific percentage of
the PCTC Program allocation. If the cap
was set at the facility level, as was
considered by the Council, there would
have been no processing limit if a firm
operated enough plants.
Under this proposed rule, no person
may process more than 20 percent of the
PCTC CQ using the individual and
collective rule. A person over the cap at
the time of QS issuance would be
granted a non-transferable legacy
exemption. The processor CQ use cap
would limit the amount of PCTC CQ
that could be processed by a single
person.
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E. Transfer Limitations
1. QS Transfer Limitations
Under the PCTC Program, LLP license
holders that receive QS may transfer
PCTC QS concurrently with the transfer
of the LLP license or AI endorsement to
which it is attached. Initially-issued QS
is attached to LLP licenses and QS is
non-severable from the LLP license in
most cases. However, for LLP licenses
with transferable AI endorsements, QS
is instead non-severable from the AI
endorsement and would move with the
AI endorsement if sold to the holder of
another LLP license eligible for the
transferable AI endorsement. Transfer of
an LLP license or AI endorsement
results in the transfer of any PCTC
Program eligibility and QS associated
with the LLP license or transferable AI
endorsement. NMFS would not approve
transfers of LLP licenses or AI
endorsements if the transfer would
cause a person to exceed any ownership
or use caps. If an LLP license holder
qualifies for a legacy exemption from
the QS ownership or use caps, NMFS
would not approve any transfers of QS
to that person unless and until that
person’s holdings of aggregate PCTC QS
are reduced to an amount below the cap.
To transfer an LLP license or an AI
endorsement with PCTC Program QS,
the LLP license holder must fill out an
application for the transfer of an LLP
groundfish or crab license, or for the
transfer of an AI endorsement. In the
application, the transferor must specify
the amount of QS to be transferred
(generally all QS attached to the license)
the transferee, and the price for the QS
transfer. As stated above, NMFS will
consider any ownership or use cap
implications in reviewing transfer
applications. In addition, the QS price
will be used in aggregate during
program reviews.
For processor-held QS, the QS also is
non-severable from the permit unless
the transfer would cause a transferee to
exceed any holding or use caps. If a
processor qualifies for a legacy
exemption from the QS holding or use
caps, NMFS would not approve any
PCTC Program QS permit transfers to
that person unless and until that
person’s holdings of aggregate PCTC QS
are reduced to an amount below the QS
use cap. A PCTC QS permit issued with
a legacy exemption with an amount of
PCTC QS above the QS ownership cap
may be transferred, and any QS above
the ownership cap would be severed
from the PCTC QS permit at the time of
transfer. Any PCTC QS severed from a
PCTC QS permit at the time of transfer
may be transferred to another eligible
processor permit or used to create a new
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PCTC QS permit to be issued to an
eligible shoreside processor that holds
an FPP. If a processor allows their FPP
to expire, they would no longer be
eligible to use their QS, but they could
still transfer their QS permit.
To transfer QS held by a processor,
the processor must fill out an
application to transfer QS. In the
application, the transferee must specify
the amount of QS to be transferred
(generally all QS on the permit), which
processors are receiving it, and the price
for the QS transfer. NMFS will consider
whether a transfer implicates any
ownership or use caps in reviewing
applications. In addition, the QS price
will be used in aggregate during
program reviews.
2. CQ Transfer Limitations
In addition to permanent transfers of
QS, CQ may also be transferred during
the fishing season. Annual CQ and
associated PSC are transferable between
cooperatives through eFish, which
automatically reviews transfers and
approves them if they remain below
specified use caps. Transfers of CQ
would be for a single year’s annual
allocation. The underlying QS remains
with the LLP license.
This proposed rule would allow postdelivery transfers of CQ, but they must
be completed prior to August 1, after the
close of the B season. The intent of this
provision is to improve cooperative
flexibility, reduce potential violations
from overages, reduce enforcement
costs, and allow more complete harvests
of each cooperative’s allocation. At the
end of the fishing season, remaining CQ
may be consolidated into fewer
cooperatives (and for harvest by fewer
vessels) due to the requirement that a
vessel may not begin a fishing trip
without unharvested CQ. Allocations
will likely be consolidated in one or two
cooperatives with harvesters in those
cooperatives making ‘‘sweep up’’ trips
to complete the season’s harvests.
Although consolidation of allocations in
one or two cooperatives may help avoid
overages, it is anticipated that
unintentional small overages could still
occur.
khammond on DSKJM1Z7X2PROD with PROPOSALS3
Additional PCTC Program Provisions
A. Sideboard Limits in the PCTC
Program
Sideboard limits are restrictions
placed on holders of quota share in
rationalized fisheries that prevent them
from taking advantage of the benefits of
consolidation to expand their operations
into other fisheries. PCTC Program
sideboard limits would be intended to
prevent holders of QS from expanding
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Jkt 259001
their fishing effort in GOA fisheries.
Sideboard limits would allow
cooperative members to catch up to the
historical percentage of species they
harvested in non-rationalized GOA
groundfish fisheries. Sideboard limits
are not an allocation. Rather, the
sideboard is a limit on the catch of
species that are not allocated as QS. The
PCTC Program is designed to provide
certain economic advantages to
participants, which could be used to
increase their participation in other
fisheries and adversely affect GOA
fishery participants by increasing
competition in limited access fisheries.
PCTC Program participants would not
be guaranteed any sideboard limit as an
amount of catch but instead could
participate in the specified directed
fishery until the PCTC program CVs in
the aggregate hit the relevant species
sideboard limit or TAC is closed to
directed fishing, whichever happens
first. To limit the participation of PCTC
Program QS holders in other fisheries,
the Program would add sideboard limits
for GOA non-exempt AFA CVs and AFA
LLP licenses and restrict vessels that are
exempt from GOA sideboard limits from
leasing CQ within the cooperative.
The PCTC Program would modify
existing GOA sideboard limits and
associated GOA halibut PSC limits for
non-exempt AFA vessels and LLP
license holders, close directed fishing
where sideboard limits are too small to
support a directed fishery, and require
that PCTC Program cooperatives
monitor and report on leasing activity
for vessels that are not subject to GOA
sideboards. Most vessels that are exempt
from the GOA sideboard limits would
be prohibited from leasing their CQ
under the program as a condition of
benefitting from that exemption, with
one exception: AFA GOA-exempt CVs,
non-AFA CVs, and CVs assigned to
under 60’ LLP licenses with transferable
AI endorsements with less than 300 mt
of average annual qualifying catch
history would be permitted to lease
their CQ.
Existing GOA Sideboard Limits for NonExempt AFA CVs and LLP Licenses
In the GOA, AFA CVs are divided into
two categories: vessels subject to
sideboard limits and vessels exempt
from sideboard limits. The limits are
currently calculated based on the catch
histories of the non-exempt AFA CVs.
Specifically, the sideboard ratio is
aggregated retained catch for each
groundfish species or species group
from 1995 through 1997 period relative
to the sum of the TACs for the species
or species group. Through an intercooperative agreement, AFA
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8609
cooperatives currently divide the
sideboard limits among the cooperatives
and set penalties for exceeding the
limits.
AFA CVs that had a historical
dependence on GOA fisheries and
limited history in the BSAI pollock
fishery benefit from an exemption to the
GOA sideboard limits. The Council
recommended an exemption to GOA
sideboard limits for AFA vessels to be
managed by the cooperatives with the
understanding that no GOA sideboardexempt vessel would lease its BS
pollock in a year that it exceeds its GOA
average harvest level from 1995 through
1997. This exception is implemented
through the AFA CV Inter-Cooperative
Agreement which binds vessels to this
limitation.
The AFA fleet includes two classes of
sideboard-exempt CVs: (1) those exempt
from sideboard limits in the BSAI
Pacific cod fishery, and (2) those exempt
from sideboard limits in the GOA
groundfish fisheries.
NMFS manages the AFA sideboard
limits. The agency makes an initial
determination at the beginning of the
fishing year regarding the fisheries in
which AFA vessels are likely to
participate, based on historical
participation (sideboard ratios), TACs,
PSC limits, and other apportionments
and regulations. The sideboard limit to
TAC ratio remains the same year-to-year
but is applied to the current year’s
initial total allowable catch (ITAC) to
determine the yearly sideboard limit
(see Table 2–121 of the Analysis).
To streamline and simplify NMFS’s
management of AFA groundfish
sideboard limits, regulations currently
prohibit directed fishing for numerous
BSAI and GOA species with historically
small sideboards (84 FR 2723, February
8, 2019); (50 CFR 679.20(d)(1)(iv)(D) and
50 CFR 680.22(e)(1)(i) and (iii) and
Tables 54, 55, and 56 to 50 CFR 679).
See Section 2.9.4 of the Analysis for the
2021 non-exempt AFA CV groundfish
sideboard limits in the GOA and for the
non-exempt AFA CVs halibut PSC
limits in the GOA (see ADDRESSES).
Section 2.9.4 provides a list of the GOA
groundfish species that are closed to
directed fishing by AFA CVs. However,
AFA CVs qualified for the CGOA
Rockfish Program with Rockfish
Program QS would not be restricted by
AFA sideboard limits for primary and
secondary Rockfish Program species
while participating in the Rockfish
Program.
The current GOA halibut PSC limit
for non-exempt AFA CVs is calculated
based on the retained groundfish catch
by AFA sideboarded CVs in the
shallow-water and deep-water complex
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from 1995 through 1997 relative to total
retained catch in the shallow-water and
deep-water complex by all vessels.
Under the GOA halibut PSC limits,
fisheries in the applicable complex are
closed for the remainder of a season
once NMFS determines that the PSC
limit will be reached. Any unused GOA
halibut PSC in one season is added to
the next season. Conversely, if a
seasonal apportionment of a trawl
halibut PSC limit is exceeded, the
overage is deducted from the
apportionment for the next season
during the current fishing year.
Changes to Existing GOA Sideboard
Limits
Under the PCTC program, all GOA
non-exempt AFA CVs and associated
AFA LLP licenses would be sideboarded
in aggregate for all GOA groundfish
fishing activity and for GOA halibut
PSC, except for vessels when
participating in the CGOA Rockfish
Program, based on their GOA catch
history during the qualifying period.
The existing sideboards are applied to
non-exempt AFA vessels as defined at
§ 679.64(b)(2). The PCTC Program
would modify the calculation of the
existing sideboard limits for these nonexempt AFA CVs, based on the GOA
catch history. LLP licenses associated
with non-exempt AFA CVs upon
implementation of the PCTC Program
would also be subject to the revised
sideboard limits regardless of which
vessel is named on the LLP.
Sideboards are currently calculated
for non-exempt AFA CVs based on the
ratio of catch to the TAC during the
years 1995–1997. The PCTC Program
modifies the calculation of the
sideboard ratios for non-exempt AFA
CVs that would be used in the annual
GOA harvest specifications, looking at
the ratio of catch to the TAC in the
qualifying years of 2009–2019 (as shown
in Table 3).
Table 3-GOA groundfish sideboard ratios (aggregate retained catch/TAC) for all nonexempt AFA CVs and LLP licenses based on the PCTC Program qualifying period
A Season Jan 20 -
May31
B Season Sep 1 Nov1
Pollock
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Pacific cod
Shallow-water flatfish
Annual
Deep-water flatfish
Annual
Rex sole
Arrowtooth flounder
Flathead sole
Pacific ocean perch
Annual
Annual
Annual
Annual
In addition, the ratio used to
apportion GOA halibut PSC limits
would be modified and the five seasonal
apportionments based on that sideboard
ratio would be reduced to a single
aggregate amount. Providing an
aggregate halibut PSC limit would
provide greater flexibility for the AFA
vessels and LLPs to assign halibut PSC
limits to those GOA groundfish
sideboard fisheries that have the greatest
value. Table 4 shows the new aggregate
GOA halibut PSC limit ratio based on
the catch history during the qualifying
16:56 Feb 08, 2023
Shumagln (610)
Chlrlkof (620)
Kodiak (630)
Shumagin (610)
Chlrlkof (620)
Kodiak (630)
w
A Season Jan 1 Jun 10
B Season Sept 1 Dec 31
Jkt 259001
C
w
C
w
C
C
E
C
C
C
E
period 2009–2019 that would be used
instead of the information currently in
the GOA harvest specifications table
after the PCTC Program is implemented.
PO 00000
Ratio
New Sideboard
Ratio
0.6047
0.1167
0.2028
0.6047
0.1167
0.2028
0.3495
0.3495
0.1331
0.0692
0.1331
0.0692
0.0156
0.0587
0.0647
0.0128
0.0384
0.028
0.0213
0.0466
0.057
0.064
0.091
0.057
0.064
0.091
0.026
0.000
0.009
0.011
0.009
0.011
0.000
0.011
0.002
0.000
0.014
0.011
0.007
0.001
Existing Sideboard
WYK(640)
SEO (650)
Annual
VerDate Sep<11>2014
Area/component
TABLE 4—NEW GOA HALIBUT PSC
LIMIT RATIO AGGREGATED AT THE
SEASON AND COMPLEX LEVEL FOR
ALL AFA NON-EXEMPT CVS AND
ASSOCIATED LLP LICENSES UNDER
THE QUALIFYING PERIOD
GOA halibut PSC limit
Qualifying
period
(2009–2019)
PSC Limit Ratio ....................
.072
Additionally, the Council
recommended and NMFS proposes to
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Apportionments
by season/gear
Target Species
Federal Register / Vol. 88, No. 27 / Thursday, February 9, 2023 / Proposed Rules
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close directed fishing to all GOA nonexempt AFA CVs and LLP licenses for
the following species categories:
Southeast Outside district of the Eastern
GOA pollock, Western GOA shallowwater flatfish, Central and Eastern GOA
deep-water flatfish, and Eastern GOA
Pacific ocean perch. NMFS will no
longer publish AFA Program sideboard
limits for these specific species or
species groups in the Federal Register
as part of the annual groundfish harvest
specifications but instead will specify in
regulation that directed fishing for these
species is closed to non-exempt AFA
CVs.
AFA GOA-exempt CVs, non-AFA
CVs, and CVs assigned to under 60 ft
LOA LLP licenses with transferable AI
endorsements that receive PCTC
Program QS would not be permitted to
lease the CQ generated by their LLP
license as a condition of benefiting from
a GOA sideboard exemption. If the
GOA-exempt vessel assigned to the LLP
license does not fish in any GOA
fishery, except the CGOA Rockfish
Program, during the calendar year, the
BSAI Pacific cod CQ generated by the
LLP license can be leased that calendar
year. Cooperatives would be required to
monitor CQ leasing activity by AFA
GOA-exempt CVs, and non-AFA CVs,
and CVs assigned to under 60 ft LOA
LLP licenses with transferable AI
endorsements and implement a penalty
structure for violations. Cooperatives
would report leasing activities and
penalties issued in the voluntary
cooperative annual report and in their
annual cooperative application. AFA
GOA-exempt CVs, non-AFA CVs, and
CVs assigned to under 60 ft LOA LLP
licenses with transferable AI
endorsements with less than 300 mt of
average annual qualifying BSAI Pacific
cod history may lease their BSAI Pacific
cod CQ and still benefit from the GOA
sideboard exemption.
Changes to Existing BSAI Sideboard
Limits for AFA CVs
The BSAI Pacific cod and halibut PSC
sideboard limits for AFA trawl CVs
specified at 679.64(b)(4)(i) and in Table
40 to part 679 would be removed upon
implementation of this Program. The
BSAI Pacific cod sideboard limit would
no longer be necessary because BSAI
Pacific cod catch in the A and B seasons
would be fully allocated under the
PCTC Program. NMFS proposes
removing the halibut PSC sideboard
limits for AFA trawl CVs because the
PCTC Program would establish lower
PSC limits for PCTC Program
participants. The BSAI crab PSC
sideboard limit for AFA trawl CVs
specified at § 679.64(b)(4)(i) and Table
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41 to part 679 would remain unchanged
by this proposed rule. Table 41 also
establishes crab PSC sideboard limits for
the AFA CV and AFA C/Ps, and the
PCTC Program would not change these
overall limits.
B. At-Sea Processing Sideboard Limit
The Council recommended and
NMFS proposes a sideboard limit on the
amount of CQ that could be delivered by
trawl CVs to a C/P designated on a
groundfish LLP license with a BSAI
Pacific cod trawl mothership
endorsement. This sideboard limit
would be assigned to the LLP license
with a BSAI Pacific cod trawl
mothership endorsement that authorizes
the C/P to act as a mothership in the
BSAI Pacific cod fishery. The Council
recommended that each eligible C/P
acting as a mothership could process up
to the higher of (1) 125 percent of the
eligible C/P’s processing history during
the qualifying years (with no drop year)
or (2) the history from LLP licenses that
are owned (in excess of 75 percent)
directly or indirectly by the owner of a
C/P LLP license eligible for the offshore
sector of the target non-CDQ BSAI
Pacific cod trawl CV fishery (as of
December 31, 2019) and not to exceed
125 percent of the eligible CP’s
processing history. This at-sea
processing sideboard limit would be
permanently attached to the associated
LLP license and would apply to the
processing activity of any associated
vessel.
The Council recommended and
NMFS proposes to establish an at-sea
processing sideboard limit greater than
the historical average to provide some
opportunity for growth relative to the C/
Ps historical annual average, though this
limit may allow less offshore processing
than occurred during some of the
qualifying years. The 125 percent
limitation was selected as a means to
balance the needs of CVs that want to
(or in some cases must) deliver offshore,
the historical C/P platforms, shoreside
processors, and the communities
dependent on shoreside landings. The
option selected allows two eligible C/Ps
acting as a mothership to process up to
125 percent of their individual average
processing history over the qualifying
period but does not allow the firms to
drop a year when calculating the limit.
Due to confidentiality constraints,
NMFS cannot publicly release the data
used to calculate the limits, or the
annual limits, that will apply to each of
the two qualifying LLP licenses
authorizing a C/P to operate as a
mothership in this fishery. Because the
amount is a limit and not an allocation,
the PCTC Program does not require that
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Sfmt 4702
8611
this amount be delivered to C/Ps, but it
provides an upper bound on how much
may be delivered.
This is consistent with the Council’s
intent under BSAI FMP Amendment
120 (84 FR 70064, December 20, 2019),
where it restricted the number of C/Ps
that are eligible to operate as a
mothership receiving and processing
Pacific cod from CVs in the BSAI nonCDQ Pacific cod directed fishery using
trawl gear. Under Amendment 120, the
Council and NMFS issued a BSAI
Pacific cod trawl mothership
endorsement to two LLP licenses but
did not include a limit on the amount
of BSAI Pacific cod that could be
processed because it was not thought
that any one processor could increase
their capacity significantly under the
LLP management system. However,
under a rationalized, slower paced,
cooperative fishing scenario that is
proposed under this Program, the
Council and NMFS determined it would
be possible for continued mothership
processing growth beyond historical
patterns, so the Council recommended
that a processing limit be established for
each LLP listed in Table 57 to part 679.
For more information on processing
limits for the mothership sector, please
see section 2.9.5 of the Analysis (see
ADDRESSES).
NMFS would calculate the at-sea
processing sideboard limit, expressed as
a percentage of the aggregate PCTC
annual CQ that would apply to each
LLP license with a BSAI Pacific cod
trawl mothership endorsement and
notify the LLP holder upon issuance of
initial allocations. Each year upon
issuance of CQ, this processing
sideboard limit would be calculated for
each applicable LLP. This proposed rule
would not change the regulations
pertaining to the transfer of LLP licenses
as specified at § 679.4(k)(7) nor the
process to change the designated vessel
on an LLP as specified at
§ 679.4(k)(7)(vii). Each LLP subject to
this at-sea processing sideboard limit
would be prohibited from exceeding the
processing limit as specified in
proposed regulations below.
Due to confidentiality requirements,
the amount of the processing limit
would not be made public and the LLP
holder would be responsible for
coordinating with any PCTC Program
cooperative to ensure the applicable
processing limit is not exceeded.
To facilitate accurate accounting of
PCTC catch delivered to a mothership
and assign the catch delivered to a
mothership in unsorted codends to the
correct management program, NMFS
proposes adding a new paragraph to the
maximum retainable amount (MRA)
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regulations at § 679.20. This change will
allow NMFS to assign each codend or
‘‘haul’’ delivered to a mothership to the
appropriate fishery management
program based on the retained catch
composition of the haul. Any unsorted
codend delivered to a mothership
during the applicable PCTC season that
is in the Pacific cod target fishery would
be considered PCTC CQ and resulting
PSC use will be deducted from the
appropriate cooperative CQ and PSC
limits. For any haul that is not in the
Pacific cod target, the catch of Pacific
cod would be deducted from the
appropriate seasonal ICA and resulting
PSC fishery category as established in
the annual harvest specification process.
C. Cost Recovery
The PCTC Program would be a LAPP
established under the provisions of
Section 303A of the Magnuson-Stevens
Act. The Magnuson-Stevens Act
requires that NMFS collect fees from
limited access privilege holders to cover
the actual costs of management, data
collection and analysis, and
enforcement activities associated with
LAPPs. Cost recovery fees may not
exceed three percent of the ex-vessel
value of the fish harvested under the
LAPP. NMFS would assess a fee on the
ex-vessel value of PCTC Program Pacific
cod harvested by cooperatives in the
BSAI. Halibut and crab PSC would not
be subject to a cost recovery fee because
PSC cannot be retained for sale and,
therefore, does not have an ex-vessel
value.
Collecting fees for the PCTC Program
would require determining CQ ex-vessel
value, assessing management costs,
billing the appropriate fee to each
cooperative, and ensuring that
cooperatives comply with the fee
collection requirements.
NMFS would rely on the existing
BSAI Pacific cod Ex-vessel Volume and
Value Report to provide information on
the ex-vessel value of Pacific cod for the
PCTC Program. Pacific Cod Ex-Vessel
Volume and Value reports are a
component of existing groundfish cost
recovery programs, such as the
Amendment 80 Program. A shoreside
processor designated on an FPP, or a
mothership designated on an FFP, that
processes landings of either CDQ Pacific
cod or BSAI Pacific cod harvested by a
vessel using trawl gear must submit
annually to NMFS a complete Pacific
Cod Ex-vessel Volume and Value
Report, as described at paragraph
§ 679.5(u)(1), for each reporting period
for which the shoreside processor or
mothership receives this Pacific cod.
Each shoreside processor that would
receive Pacific cod harvested under a
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PCTC CQ permit is already required to
submit this report to NMFS no later
than November 10 of each year pursuant
to § 679.5(u)(1)(iii). This report would
allow NMFS to collect price data from
the PCTC Program season which
extends from January through June of
each year and generate a standard exvessel price for Pacific cod and
determine the average price paid per
pound for all shoreside processors
receiving CQ. NMFS publishes the
applicable Pacific cod standard exvessel prices and fee percentage in the
Federal Register following the end of
the B season fishery in the year the
landings were made, which would
provide cooperatives with information
necessary to assess their fee liability.
NMFS would publish the Pacific cod
fee percentage in the Federal Register
that would determine the total fee, up
to three percent of the total ex-vessel
value of the fishery, required from all
cooperatives based on landings of CQ
made in the previous year. The fee
percentage is the total percentage of exvessel value due for each pound of CQ
made by a cooperative during the
previous year. The amount due to
NMFS is based on the standard exvessel value of the CQ debited from all
PCTC Program CQ accounts relative to
the actual costs directly related to the
management, enforcement and data
collection of the PCTC Program.
NMFS would determine the fee
percentage that applies to landings
made in the current calendar year by
dividing the total value of Pacific cod
for all cooperatives made during the
current year by the total actual costs
during the previous fiscal year. NMFS
would capture the actual cost of
managing the fishery through an
established accounting system that
allows staff to track labor, travel, and
procurement. Once the actual costs for
the previous fiscal year are identified,
that amount is recovered from all CQ
holders in the fishery. If a three-percent
fee would recover revenues in excess of
those needed, the percentage will be set
at less than three percent. The fee
percentage could not be set at an
amount higher than three percent of exvessel value even if the actual costs for
the previous year exceeded three
percent of the standard ex-vessel value
for the PCTC Program CQ landings.
NMFS would inform each cooperative
of the fee percentage applied to the
current year’s landings and the total
amount due (fee liability). NMFS
advises cooperatives to inform NMFS if
their contact information has changed.
This fee liability letter would be sent to
cooperative representatives after the fee
was incurred (typically in the months
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following). The fee liability letter would
be provided before fees are due on
August 31 of each year. The letter would
include a summary explaining the fee
liability determination including the
current fee percentage and details of CQ
pounds debited from CQ allocations by
permit, date, and prices.
NMFS would require that all
payments be submitted electronically in
U.S. dollars through the NMFS Alaska
Region website. Many of the
cooperatives are familiar with, and
regularly use, electronic submissions of
various forms under other catch share
programs, such as the AFA Program,
and NMFS would extend this common
practice to fee submission for the PCTC
Program. Instructions for electronic
payment would be made available on
the payment website and through a fee
liability summary letter NMFS would
mail to the CQ permit holder.
The cooperative representative would
be responsible for paying cost recovery
fees. Failure to pay cost recovery fee
liabilities on time would result in NMFS
not approving a cooperative’s
application for a CQ permit the
following year until full payment of the
fee liability is received by NMFS. This
is because a CQ permit may not be
issued until NMFS receives a complete
application for CQ, which would
include confirmation of the full
payment of any cost recovery fee
liability. Communication with NMFS
using the contact information provided
in the fee liability letter would provide
ample opportunity for CQ permit
holders to reconcile accounts. However,
if the account is not reconciled and the
individual does not pay, NMFS would
send an initial administrative decision
(IAD) to the CQ permit holder. The IAD
would state that the CQ permit holder’s
estimated fee liability due from the CQ
permit holder had not been paid. Any
such formal determination may be
appealed. The appeals process is
described under 50 CFR 679.43. An
applicant who appeals an IAD would
not receive a new CQ permit until the
appeal was resolved in the applicant’s
favor.
After 30 days, the agency may pursue
collection of the unpaid fees if the
formal determination is not appealed
and the account remains unpaid or
under-paid. The Regional Administrator
may continue to prohibit issuance of a
CQ permit for any subsequent calendar
years until NMFS receives the unpaid
fees.
The PCTC Program would follow this
proposed cost recovery process that
builds on existing cost recovery
processes in other programs. NMFS
would use standard prices derived from
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volume and value reports, which are
submitted in early November of each
year, from the calendar year prior to the
landings used to calculate the fee
percentage. NMFS would begin tracking
PCTC Program management costs in the
calendar year 2023 once the rule is in
effect. PCTC Program landings would be
made in the A and B seasons, which
extends from January 20 to June 10.
To illustrate this in an example using
the year 2025, the PCTC Program fishing
year that would have landings subject to
cost recovery would end June 10, 2025.
NMFS would use standard prices
derived from the volume and value
report submitted by November 10, 2024
for landings made in 2024. Finally,
NMFS would use the management costs
from July, 2024 through June, 2025 to
calculate the 2025 fee percentage. By no
later than July 31, 2025, the Regional
Administrator would publish the
standard price and fee percentage in a
notice in the Federal Register and send
invoices to cooperatives.
D. Monitoring Provisions
The Council recommended and
NMFS proposes requirements for
observer coverage and other monitoring
and enforcement provisions under the
PCTC Program to ensure that fleet-wide
harvests can be effectively monitored
and that catches remain within
allocations. These requirements include
full observer coverage for CVs
harvesting PCTC Program CQ (except for
CVs delivering unsorted codends to
motherships) and requirements for
communications equipment to facilitate
observer data entry and electronic
transmission to NMFS. These
monitoring provisions are designed to
maximize the quality of data used to
estimate PCTC Program catch and
bycatch, including PSC. Delivered catch
would be reported electronically by
shoreside processors through eLandings.
Estimates of at-sea discards and PSC
would be derived solely from observer
data. All catch would accumulate
against cooperative allocations and
other applicable limits.
Under the North Pacific Observer
Program (Observer Program), all vessels
and processors in the groundfish and
halibut fisheries off Alaska are placed
into one of two categories: (1) The full
observer coverage category, where
vessels and processors obtain observer
coverage by contracting directly with
observer providers; and (2) the partial
observer coverage category, where
NMFS has the flexibility to deploy
observers when and where they are
needed, as described in the annual
deployment plan that is developed by
NMFS in consultation with the Council.
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NMFS funds observer deployment in
the partial observer coverage category by
assessing a 1.65 percent fee on the exvessel value of retained groundfish and
halibut from vessels that are not in the
full observer coverage category.
The Council recommended and
NMFS proposes that all vessels under
the PCTC Program would be placed in
the full coverage category of the
Observer Program. All vessels used to
harvest PCTC CQ would be required to
carry at least one observer on board the
vessel at all times except for CV
deliveries of unsorted codends to a
mothership pursuant to the exception
specified at § 679.51(a)(2).
The owner of a trawl CV in the full
observer coverage category would
contract directly with a permitted full
coverage observer provider to procure
observer services as described at
§ 679.51(d). The owner of a trawl CV in
the full observer coverage category
would not be required to log fishing
trips in Observer Declare and Deploy
System (ODDS) under § 679.51(a)(1),
and landings made by a vessel in the
full observer coverage category would
not be subject to the 1.65 percent partial
observer coverage fee under § 679.55.
This action would not modify
observer coverage requirements for
trawl CVs participating in the BSAI
trawl limited access fisheries during the
C season. Regulations at Subpart E to
part 679 specifying observer coverage
requirements would continue to apply.
The owner of a trawl CV would
continue to be able to request, on an
annual basis, that NMFS place the
vessel in the full observer coverage
category for all directed fishing for
groundfish using trawl gear in the BSAI
in the following calendar year.
Voluntary placement in the full
coverage category would apply to all
non-PCTC directed fishing for
groundfish using trawl gear in the
specified calendar year.
Additionally, the Council
recommended and NMFS proposes that
all vessels used to harvest PCTC CQ
would be required to provide equipment
and at-sea data transmission capabilities
to facilitate electronic transmission of
observer data to NMFS. Requirements
for non-AFA trawl CVs to install
equipment necessary to facilitate at-sea
observer data transmission requirements
would not be effective until three years
after the effective date of the final rule
implementing the PCTC Program. This
proposed rule also modifies regulations
at § 679.51(e)(2)(iii)(A) to explicitly
include the electronic transmission of
observer data in the requirement for
vessel operators to allow an observer to
use the vessel’s existing
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8613
communications equipment for
confidential entry, transmission, and
receipt of work-related messages.
Under this proposed rule, all vessels
participating in the PCTC Program
would be required to provide an
onboard computer that meets minimum
specifications for use by an observer.
Currently, NMFS uses and installs
custom software (ATLAS) on the
vessel’s computer, and this software
application is used by observers to enter
the data they collect. The ATLAS
software contains business rules that
perform many quality control and data
validation checks automatically, which
dramatically increases the quality of the
preliminary data. After the observer data
are entered into the ATLAS software, it
is transmitted to NMFS.
At-sea transmission of observer data
improves data quality. To accommodate
concerns by small vessel operators, the
Council determined and NMFS
proposes that, for the first three years
after implementation, the current at-sea
observer data transmission requirements
would be maintained, unless the
necessary equipment is installed before
that time. Public testimony suggests that
most of the vessels that do not currently
have data transmission capability would
realize the benefits from this program
and be able to obtain the technology.
Though the installation of equipment to
facilitate at-sea data transmission on
non-AFA vessels would not be required
until after the first three years of the
Program, this proposed rule clarifies
that if the vessel already has equipment
capable of facilitating at-sea data
transmission, that equipment must be
made available to the observer for use in
transmitting work-related messages
including collected data.
NMFS proposes requiring
motherships receiving unsorted codends
from a PCTC Program CV to comply
with catch monitoring requirements
specified at § 679.93(c) for Amendment
80 vessels and C/Ps. These requirements
are already applicable to Amendment 80
C/Ps acting as a mothership and would
continue to apply when participating
vessels act as a mothership to process
PCTC Program CQ. This proposed rule
would not alter existing observer
coverage requirements for trawl CVs
delivering unsorted codends to a
mothership in the BSAI. A trawl CV
delivering unsorted codends to a
mothership is not required to carry an
observer because the catch is not
brought on board the CV and not
available for observer sampling. Rather,
the catch is sorted and sampled by
observers aboard the mothership.
Participating motherships would be
required to have at least two observers
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aboard the mothership, at least one of
whom would be required to be endorsed
as a lead level 2 observer. More than
two observers would be required to be
aboard if the observer workload
restriction would otherwise preclude
sampling as required. All PCTC Program
catch, except halibut sorted on deck by
vessels participating in the halibut deck
sorting described at § 679.120, would be
required to be weighed on a NMFSapproved scale in compliance with the
scale requirements at § 679.28(b). Each
haul would be required to be weighed
separately and all catch made available
for sampling by an observer.
NMFS proposes catch monitoring
requirements for shoreside processors
receiving deliveries from CVs harvesting
PCTC Program Pacific cod. The Council
recommended that all shoreside
processors receiving deliveries from CVs
harvesting PCTC Program Pacific cod
would comply with a NMFS certified
catch monitoring and control plan
(CMCP); however, NMFS has
determined that a CMCP is not
necessary to ensure the accurate
accounting of all PCTC landings.
Instead, NMFS proposes that all
groundfish landed by CVs described in
§ 679.51(a)(2) would be required to be
sorted, weighed on a scale approved by
the State of Alaska as described in
§ 679.28(c), and be made available for
sampling by an observer, NMFS staff, or
any individual authorized by NMFS.
Any of these persons must be allowed
to test any scale used to weigh
groundfish to determine its accuracy.
E. PCTC Program Review
Under the Magnuson-Stevens Act, a
LAPP program review shall be
undertaken five years after
implementation, with additional
reviews occurring, at a minimum, every
seven years thereafter. A formal review
of the proposed PCTC Program by the
Council would take place five years
after the implementation of the program
and would help the Council determine
if the program is functioning as
intended. The review process would
allow for a full evaluation of the
program’s successes or challenges and
provide the Council with details on
unanticipated consequences. The
Council determined that a formal review
process was essential to the PCTC
Program as a key tool to assess whether
the PCTC Program was achieving the
goals of the Magnuson-Stevens Act and
the problem statement as identified in
the Analysis (see ADDRESSES). This
review and evaluation by the Council
would include an assessment of the
program objectives. Specifically, the
Council would review whether the
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allocation of Pacific cod is fair and
equitable given participation in the
fishery, historical investments in and
dependence upon the fishery, and
employment in the harvesting and
processing sectors. The Council would
also assess performance of the program
based on changes in annual cooperative
formation, changes in product value, the
number and distribution of processing
facilities, and stability or use of annual
processor associations with harvesting
cooperatives. The focus of these reviews
would be the impact of this action on
the harvesting and processing sectors, as
well as on fishery dependent
communities. The Council would also
assess whether the needs for
management and enforcement, as well
as data collection and analysis, are
adequately met. Because the Council
would undertake this review as part of
routine work, NMFS is not proposing
regulatory changes to implement this
review process.
IX. Examples of Allocations Under the
PCTC Program
The following section provides an
example of QS allocations, annual CQ
allocations, and PSC limit calculations
under the proposed PCTC Program. For
these examples, NMFS has used the
2022 harvest specifications for
groundfish of the BSAI (87 FR 11626,
March 2, 2022) to illustrate how annual
TAC would correspond to issued QS,
how portions of annual TAC would be
allocated as CQ, and how annual PSC
limits would be established for the
cooperatives.
A. PCTC Program QS Pool Example
The first step of PCTC Program
implementation would be for NMFS to
estimate the QS pools for both
harvesters and processors.
Step 1: Determine the Total Legal
Landings for PCTC Program Harvesters
Using the official record, NMFS
would sum the best 10 of 11 years of
legal landings for all eligible LLP
licenses during the 2009 through 2019
qualifying years for directed harvest of
Pacific cod (or best 15 of 16 years from
2004 through 2019 for LLP licenses with
transferable AI endorsements). This
estimate may be subject to change if the
official record is adjusted based on
information provided through the QS
application process.
Step 2: Determine the Total Deliveries of
Legal Landings for PCTC Program
Processors
Using the official record, NMFS
would sum the best 10 of 11 years of
deliveries of legal landings for all
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Sfmt 4702
eligible processors during the 2009
through 2019 qualifying years for
directed harvest of Pacific cod. This
estimate may be subject to change if the
official record is adjusted based on
information provided through the QS
application process.
Step 3: Establish the Initial PCTC
Program QS Pools
NMFS would set the initial QS pool
for harvesters and processors equal to
the sum of legal landings assigned to
each LLP license or processor in metric
tons as of December 31, 2022, according
the process described in Step 1 and Step
2 above. Each metric ton of legal
landings in NMFS’s official record on
this date would yield one QS unit.
This example assumes that all
potentially eligible persons applied,
NMFS reviewed the applications, no
applicant challenged the official record,
and NMFS did not amend the official
record. Each year, the harvester QS pool
would correspond to 77.5 percent of the
annual A and B season trawl CV DFA.
Processor-held QS would correspond to
22.5 percent of the annual A and B
season trawl CV DFA.
Step 4: Assign QS to an LLP License
Holder
NMFS would assign QS to an LLP
license holder who submits a timely and
complete application within 30 days of
the effective date of the final rule.
Because issued QS would be
permanently affixed to the LLP license,
except under specific circumstances
defined in Section III D, all qualifying
LLP licenses would be reissued with
PCTC Program QS.
Step 5: Assign QS to a Processor
NMFS would assign QS to a processor
who submits a timely and complete
application by within 30 days of the
effective date of the final rule. The
PCTC Program would issue a new PCTC
Program QS permit to eligible
processors, and QS would be
permanently attached to those QS
permits, except under specific
circumstances defined in Section III D.
B. TAC and CQ Example for the PCTC
Program
The annual trawl CV sector allocation
is 22.1 percent of the combined BS
subarea and AI subarea non-CDQ Pacific
cod TAC. Table 1 in Section I of this
preamble provides sector allocations for
Pacific cod. The 2022 Pacific cod trawl
CV sector allocation was 29,655 mt. The
sector allocation is further subdivided
between the A season (74 percent), B
season (11 percent), and C season (15
percent). As stated above, the PCTC
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Program allocation would be derived
from the A and B season apportionment
of the annual trawl CV sector allocation.
Before allocating A and B season TAC
to the PCTC Program as CQ, NMFS
would determine an ICA for each season
that would be account for the incidental
catch of Pacific cod in other groundfish
fisheries. This ICA would be deducted
from the A and B season trawl CV sector
apportionments, and the remainder
would represent the A and B season
DFAs that would ultimately be allocated
as CQ. For this example, NMFS uses an
ICA placeholder amount of 1,000 mt for
the A season and 500 mt for the B
season. However, these ICAs are only
for an example and the ICA may change
each year depending on projected
incidental catch needs. In 2022, if the
PCTC Program were in effect, the DFA
for the A and B season—i.e., the
allocation of Pacific cod to the PCTC
Program—would have been 20,945 mt
in the A season ((29,655 × .74) ¥ 1,000)
and 2,762 mt in the B season ((29,655
× .11) ¥ 500), for a total of 23,707 mt.
The C season DFA would have been
4,448 mt (29,655 × .15); there is no ICA
for the C season).
The PCTC Program apportionment
would be assigned to PCTC cooperatives
as CQ. The Council recommended and
NMFS proposes that 77.5 percent of the
annual CQ would be issued to
cooperatives proportionate to the
harvester-held QS and 22.5 percent of
the annual PCTC Program CQ would be
issued to cooperatives proportionate to
the processor-held QS.
TABLE 5—FINAL 2022 SECTOR ALLOCATION AND SEASONAL ALLOWANCES OF THE BSAI PACIFIC COD TAC FOR THE
TRAWL CV SECTOR AND THE PCTC PROGRAM
PCTC
program 2022
TAC
apportionment
77.5 Percent of
annual PCTC
CQ issued to
cooperatives
for harvesterheld QS
(in mt)
22.5 Percent of
annual CQ
issued to
cooperatives
for processorheld QS
(in mt)
Sector
Season dates
Trawl CV sector TAC ..............................................................
A Season ICA ..........................................................................
PCTC Program A Season DFA ((TAC × .74) ¥ A season
ICA).
B season ICA ..........................................................................
PCTC Program B Season DFA ((TAC × .11) ¥ B season
ICA).
Limited Access C Season DFA (TAC × .15) ..........................
........................................
........................................
January 20–April 1 .........
29,655
1,000
20,945
............................
............................
16,232
............................
............................
4,713
........................................
April 1–June 10 ..............
500
2,762
............................
2,141
............................
621
June 10–November 1 ....
4,448
............................
............................
C. Annual CQ Issuance Example
Per Table 5, in this example the
combined A and B season DFA to be
issued as CQ totals 23,707 mt. Of that
total, 77.5 percent (18,373 mt) would
represent CQ derived from QS assigned
to LLP licenses (harvester-held QS
pool), and 22.5 percent (5,334 mt)
would represent CQ derived from QS
held by processors (processor-held QS
pool). To illustrate how CQ would be
issued to cooperatives, assume that
there are three groups of LLP licenses
that associate with three groups of
processors holding PCTC QS to form
three cooperatives. The groups of LLP
license holders hold 30, 4, and 66
percent of the harvester-held QS pool of
18,373 mt, respectively. The processors
hold 8, 41, and 51 percent of the
processor-held QS pool of 5,334 mt,
respectively. Harvester Group 1
associates with Processor Group 1 to
form Cooperative 1, Harvester Group 2
associates with Processor Group 2 to
form Cooperative 2, and Harvester
Group 3 associates with Processor
Group 3 to form Cooperative 3.
In this example, the cooperatives
would be allocated annual totals of CQ
as described in the table below (actual
CQ permits would specify a separate CQ
allocation for A and B seasons; those
allocations are combined here for
simplicity and to illustrate hypothetical
annual totals):
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TABLE 6—EXAMPLES OF CQ ISSUANCE TO THREE HYPOTHETICAL COOPERATIVES
Harvester 1 ......................................................................................................
Processor 1 ......................................................................................................
Cooperative 1 ..................................................................................................
Harvester 2 ......................................................................................................
Processor 2 ......................................................................................................
Cooperative 2 ..................................................................................................
Harvester 3 ......................................................................................................
Processor 3 ......................................................................................................
Cooperative 3 ..................................................................................................
Total CQ issued in A and B season .........................................................
Classification
Pursuant to Section 304(b)(1)(A) of
the Magnuson-Stevens Act, the NMFS
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Percent of
harvester QS
(18,373 mt)
Percent of
processor QS
(5,334 mt)
30
........................
........................
4
........................
........................
66
........................
........................
100
........................
8
........................
........................
41
........................
........................
51
........................
100
Assistant Administrator has determined
that this proposed rule is consistent
with the BSAI FMP, other provisions of
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Sfmt 4702
2022 CQ
derived from
QS
(in mt)
5,512
427
5,939
735
2,187
2,922
12,126
2,720
14,846
23,707
2022 Percent
of PCTC
total CQ
........................
........................
25
........................
........................
12
........................
........................
63
100
the Magnuson-Stevens Act, and other
applicable law, subject to further
consideration after public comment.
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This proposed rule has been
determined to be not significant for
purposes of Executive Order 12866.
Regulatory Impact Review (RIR)
A Regulatory Impact Review (RIR)
was prepared to assess all costs and
benefits of available regulatory
alternatives. A copy of this analysis is
available from NMFS (see ADDRESSES).
NMFS is recommending Amendment
122 and this proposed rule based on
those measures that maximized net
benefits to the Nation. Specific aspects
of the economic analysis are discussed
below in the Initial Regulatory
Flexibility Analysis (IRFA) section.
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Initial Regulatory Flexibility Analysis
(IRFA)
This IRFA was prepared, as required
by Section 603 of the Regulatory
Flexibility Act (RFA). The IRFA
describes the economic impact this
proposed rule, if adopted, would have
on small entities. An IRFA describes
why this action is being proposed; the
objectives and legal basis for the
proposed rule; the number of small
entities to which the proposed rule
would apply; any projected reporting,
recordkeeping, or other compliance
requirements of the proposed rule; any
overlapping, duplicative, or conflicting
Federal rules; and any significant
alternatives to the proposed rule that
would accomplish the stated objectives,
consistent with applicable statutes, and
that would minimize any significant
adverse economic impacts of the
proposed rule on small entities.
Descriptions of this proposed rule, its
purpose, and the legal basis are
contained earlier in this preamble and
are not repeated here.
Number and Description of Small
Entities Regulated by This Proposed
Rule
The alternatives would directly
regulate owners and operators of
harvesters and processors that
participate in the BSAI trawl CV Pacific
cod fishery including (1) trawl CVs, (2)
shoreside processors, (3) floating
processors, (4) trawl C/Ps acting as
motherships, and (5) small government
jurisdictions in the AI. This action may
also impact observer providers that
support the BSAI trawl CV Pacific cod
fishery, but they would be indirectly
impacted. Therefore, observer providers
are not considered directly regulated
entities in the IRFA prepared for this
action.
A small business includes any firm
that is independently owned and
operated and not dominant in its field
of operation. Businesses classified as
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primarily engaged in commercial fishing
are considered small entities if they
have less than 11 million dollars in
annual gross receipts for all businesses
in the commercial fishing industry
(NAICS 11411). The RFA requires
consideration of affiliations between
entities for the purpose of assessing
whether an entity is classified as small.
The AFA pollock cooperatives, which
make up a subset of the entities
regulated under this proposed rule, are
types of affiliation between entities. All
of the AFA cooperatives have gross
annual revenues that are substantially
greater than 11 million dollars.
Therefore, NMFS considers members in
these cooperatives to be ‘‘affiliated’’
large (non-small) entities for RFA
purposes. The eligible AFA entities are
large entities based on those affiliations.
The remaining 13 trawl CVs would be
considered small entities. This count
includes five trawl CVs that are greater
than 60 ft LOA and eight CVs that are
less than 60 ft LOA with a transferable
AI endorsement.
Though C/Ps engage in both fish
harvesting and fish processing activities,
since at least 1993, NMFS Alaska
Region has considered C/Ps to be
predominantly engaged in fish
harvesting rather than fish processing.
Under this classification, the threshold
of 11 million dollars in annual gross
receipts is the appropriate threshold to
apply to identify any C/Ps that are small
entities. All the C/Ps that are directed
regulated by this action do not meet the
Small Business Administration (SBA)
definition of a small entity due to
cooperative affiliation.
Under the SBA’s size standard for
‘‘seafood product preparation and
packaging’’ (NAICS code 311710),
seafood processors are considered small
entities if they are independently owned
and operated, not dominant in their
field of operation, and have a combined
annual employment of fewer than 750
employees. Of the plants that took
deliveries of Pacific cod from 2017
through 2019 that are currently in
business, one firm would be considered
a small entity.
The RFA defines ‘‘small governmental
jurisdiction’’ as the government of a
city, county, town, school district or
special district with a population of less
than 50,000 people. Two small
governmental jurisdictions are directly
regulated under the proposed action.
Adak and Atka would be required to
submit a notice of their intent to process
to NMFS to receive a portion of the AI
CQ set-aside described in Section V of
this preamble. The set-aside amount is
intended to benefit the AI communities
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and participation by these communities
is voluntary.
Description of Significant Alternatives
That Minimize Adverse Impacts on
Small Entities
The Council considered an extensive
and elaborate suite of alternatives,
options, and sub-options as it designed
and evaluated a quota share program for
the BSAI Pacific cod trawl CV sector,
including a ‘‘no action’’ alternative. The
RIR presents the complete set of
alternatives, in various combinations
with the complex suite of elements and
options. The Council selected a
preferred alternative that includes a
suite of elements and options to manage
the BSAI trawl CV Pacific cod sector.
The alternatives proposed include no
action (Alternative 1) and action to
implement a cooperative style LAPP for
the BSAI Pacific cod trawl CV sector
(Alternatives 2a and 2b and Alternative
3, which is the Council’s recommended
action).
In general, the recommended LAPP
includes allocations of QS to groundfish
LLP licenses based on the legal landings
of targeted BSAI Pacific cod in a Federal
fishery during a range of qualifying
years included in the options. The
recommended action also allocates QS
to a processor permit based on
processing history of legal landings of
BSAI Pacific cod harvested in a Federal
fishery and deducted from the BSAI
trawl CV sector apportionment during
the qualifying years. One alternative
considered but removed included gear
conversion, which would have
authorized BSAI Pacific cod quota
associated with trawl CV LLP licenses to
be fished annually by CVs using pot
gear. In the end, the Council did not
include the gear conversion element in
its preferred alternative due to concerns
over the possibility of high crab PSC in
pot gear for red king crab (Zone 1) and
C. opilio.
A second option considered but
removed was a cooperative formation
approach based on existing AFA and
non-AFA membership. The AFA vessels
and non-AFA vessels would have
formed their cooperatives
independently of each other. A person
owning both an AFA vessel and nonAFA vessel would have been required to
join the AFA cooperative for the AFA
vessel and the non-AFA cooperative for
the non-AFA vessel. Allowing only an
AFA and non-AFA cooperative was
rejected by the Council after considering
the obstacles it would create under the
various program elements being
considered by the Council and
withdrawal of industry support for the
option. For example, under the options
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that would allocate quota to processors,
it would create a situation where
multiple processors could designate CQ
to a cooperative and require that the
cooperative negotiate the terms and
conditions of the harvest of those Pacific
cod. This would have raised antitrust
concerns that would need to be
carefully navigated. Integrating multiple
processors, the potential limitation on
competition, and reduced cooperative
formation choice were ultimately the
issues associated with the two
cooperative approach that led to it being
removed from consideration. The
recommended action allows a
cooperative to associate with one
processor. This model has been used
successfully in the AFA program and
CGOA Rockfish Program and reduces
antitrust concerns that were raised to
the Council under the AFA and nonAFA cooperative structure.
These alternatives constitute the suite
of ‘‘significant alternatives,’’ under this
proposed action, for purposes of the
RFA. Based upon the best available
scientific data, and consideration of the
objectives of this action, NMFS did not
identify alternatives to the proposed
action that have the potential to
accomplish the stated objectives of the
Magnuson-Stevens Act and any other
applicable statutes and that have the
potential to minimize any significant
adverse economic impact of the
proposed rule on small entities. After
public process, the Council concluded
that the proposed PCTC Program would
best accomplish the stated objectives
articulated in the problem statement
and applicable statutes, and minimize to
the extent practicable adverse economic
impacts on the universe of directly
regulated small entities.
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Duplicate, Overlapping, or Conflicting
Federal Rules
No Federal rules that may duplicate,
overlap, or conflict with this proposed
action have been identified.
Recordkeeping, Reporting, and Other
Compliance Requirements
This action would implement new
recordkeeping, reporting, and
compliance requirements and revise
existing requirements. These
requirements are necessary for the
management and monitoring of the
PCTC Program.
All PCTC program participants would
be required to provide additional
information to NMFS for management
purposes. Each harvester would be
required to track harvests to avoid
exceeding their allocation. As in other
North Pacific rationalized fisheries,
processors would provide catch
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recording data to managers to monitor
harvest of allocations. Processors would
be required to record deliveries and
processing activities to aid in the
Program administration.
To participate in the Program, persons
are required to complete application
forms, transfer forms, reporting
requirements, and monitoring
requirements. These requirements
impose costs on small entities in
gathering the required information and
completing the information collections.
NMFS has estimated the costs of
complying with the requirements based
on information such as the burden
hours per response, number of
responses per year, and wage rate
estimates from industry or the Bureau of
Labor Statistics. Persons are required to
complete many of the requirements at
the start of the Program, such as the
application to participate in the
Program. Persons are required to
complete some requirements every year,
such as the cooperative application.
Additionally, reporting for purposes of
catch accounting or transfer of CQ
among cooperatives is completed more
frequently. The impacts of these
changes are described in more detail in
Sections 2.10.7 and 2.10.12 of the
Analysis prepared for this proposed rule
(see ADDRESSES).
New requirements for the PCTC
Program include the Application for
PCTC Program QS, the 90-day transfer
window, the Application for PCTC
Program CQ, the Application for
Transfer of PCTC Program QS for
Processors, the AI notice of intent to
process, inter-cooperative transfers, the
appeals process, and cost recovery fee.
The initial allocation process requires
all eligible harvesters and processors
who want to participate in the PCTC
Program to submit an Application for
PCTC Program QS to receive QS. This
application is needed to determine the
allocation of QS to eligible LLP licenses
and to eligible processors. For CVs,
NMFS will use the Catch Accounting
System data to determine how much
Pacific cod was harvested using the LLP
license authorizing a CV and ask the
current LLP license holder to verify the
catch estimate. For processors NMFS
will use the Catch Accounting System
data to determine the amount of
qualifying Pacific cod delivered to the
processor, and the processors will verify
the estimates. That information will also
be used to determine whether the QS
holder complies with the ownership
and use cap limitations imposed under
the program. Allowing persons to
harvest a given percentage of the fishery
is anticipated to allow harvesters to
avoid fishing in bad weather conditions,
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8617
improving safety of the fleet. The fleet
is also expected to be able to deliver a
consistently higher quality product.
Quality improvements are expected to
result from shorter times between
harvest and processing and less damage
to the fish in the holds by not fishing
in bad weather.
In addition, the initial allocation
process has a 90-day transfer window to
allow persons to transfer QS between
non-exempt AFA LLP licenses under
certain conditions to honor private
contracts and agreements associated
with harvest of the AFA Pacific cod
sideboard limits. This transfer window
would allow persons to resolve any
disputes or request QS transfers
between LLP licenses. After the 90-day
window for these transfers has closed,
QS could not be separated from an LLP
license or transferable AI endorsement
unless necessary to prevent exceedances
of the ownership or use caps, or if
required by an operation of law.
The PCTC Program would include a
standardized appeals process. The
appeals process provides participants
the required opportunity to dispute the
catch and processing history records in
the Catch Accounting System that are
used to determine a person’s allocation
of QS. The appeals process is in
addition to the 90-day transfer window
discussed above and open to all
participants, not just non-exempt AFA
vessels.
Each year the cooperative manager
would be required to submit an
Application for PCTC Program CQ that
identifies the LLP licenses and
processor QS permits named to the
cooperative and the vessels allowed to
harvest the CQ. This application would
include the inter-cooperative agreement
that defines how the AI CQ set-aside
will be harvested during years it is in
effect. The Council requests that
cooperatives submit an annual
cooperative report to the Council.
The Application of Transfer of PCTC
Program QS for Processors would be
required for eligible processors to
transfer their QS to other processors.
Processor QS assigned to a processor
permit established under the PCTC
program may be transferred through the
eFish system with approval by NMFS.
The PCTC program requires the
cooperatives to set aside 12.5 percent of
their allocation for delivery to Aleutian
Island shoreplants in years that a
representative from the City of Adak or
the City of Atka files a valid intent to
process with NMFS. The intent to
process is necessary for NMFS and the
cooperatives to know whether the
regulations established for the set-aside
are in effect during the A and B seasons.
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If an intent to process is filed, it also
triggers additional reporting in the
cooperative report to the Council.
The PCTC Program is a LAPP and
therefore NMFS is required to collect
fees for the PCTC Program under
sections 303A and 304(d)(2) of the
Magnuson-Stevens Act. Section
304(d)(2) of the Magnuson-Stevens Act
limits the cost recovery fee so that it
may not exceed 3 percent of the exvessel value of the Pacific cod harvested
under the PCTC Program. Ex-vessel
volume and value reports currently
being used to establish an average
annual price for BSAI trawl caught
Pacific cod would be used to establish
the standard price and no additional
collection of price data would be
necessary. NMFS uses this information
to meet the required provisions in
sections 303A and 304(d) of the
Magnuson-Stevens Act that require
NMFS to collect these fees associated
with recoverable costs.
In addition to the new requirements,
the PCTC Program would revise existing
requirements.
If LLP license holders want to transfer
their LLP license or transferable AI
endorsement and the associated PCTC
Program QS, they must fill out an
Application to Transfer a Groundfish or
Crab LLP License. This form would be
revised to collect information on the
PCTC QS transaction, including QS
prices, amount transferred, and whether
there are multiple transferees in the
event ownership caps would otherwise
be exceeded. Information would be
added to the LLP license transfer form
identifying how PCTC QS would be
distributed to the other LLP licenses if
the original holder of the LLP license
was assigned QS that was over the 5
percent ownership cap and qualified for
the legacy exemption.
The PCTC Program would require
updating ATLAS data transmission to
enable the timely electronic entry,
archival, and transmission of observer
data for at-sea operations and
shorebased processing plants.
This rule would require that all
vessels submit logbooks when fishing in
the PCTC program. All CVs greater than
or equal to 60 ft LOA currently submit
logbooks. Some CVs that may
participate in the AI Pacific cod fishery
are less than 60 ft LOA and may already
file logbooks when fishing for Pacific
cod. Many already complete logbooks
based on their participation in other
programs. However, a small number of
CVs less than 60 ft LOA that do not
currently submit a logbook would likely
need to begin submitting a logbook if
they choose to participate in the PCTC
Program.
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Paperwork Reduction Act
This proposed rule contains
collection of information requirements
subject to review and approval by OMB
under the Paperwork Reduction Act
(PRA). This proposed rule would add
new collections of information for the
PCTC Program under a new OMB
control number and revise requirements
for collections of information under
existing OMB Control Numbers 0648–
0213 (Alaska Region Logbook and
Activity Family of Forms); –0318 (North
Pacific Observer Program); –0334
(Alaska License Limitation Program for
Groundfish, Crab, and Scallops); –0711
(Alaska Cost Recovery and Fee
Programs); –0678 (North Pacific Fishery
Management Council Cooperative
Annual Reports); and –0515 (Alaska
Interagency Electronic Reporting
System). However, because the
collection of information authorized by
OMB Control Number 0648–0515 is
concurrently being revised in a separate
action, the revisions to that collection of
information in this proposed rule will
be assigned a temporary control number
that will later be merged into 0648–
0515. The existing collections of
information under OMB control
numbers 0648–0330 (NMFS Alaska
Region Scale & Catch Weighing
Requirements) and 0648–0445 (NMFS
Alaska Region Vessel Monitoring
System (VMS) Program) will also
provide information needed to
implement the PCTC Program and will
continue to apply. This proposed rule
would not make any changes to these
two collections of information. The
public reporting burden estimates
provided below for these collections of
information include the time for
reviewing instructions, searching
existing data sources, gathering and
maintaining the data needed, and
completing and reviewing the collection
of information.
OMB Control Number 0648–NEW
This proposed rule would create a
new collection of information needed to
implement PCTC Program. This new
collection of information would
authorize applications and processes
used by the PCTC Program cooperatives,
processors, LLP license holders, and
community representatives to apply for
permits, to transfer cooperative quota
and quota share, to manage fishing and
processor activity, and to appeal agency
decisions. This new collection is
necessary for NMFS to implement,
monitor, and enforce the PCTC Program.
The data would be used to ensure that
program participants adhere to all
harvesting, processing, ownership, and
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Sfmt 4702
use limits. More information on these
new requirements is provided in the
Classification section of this proposed
rule under the heading ‘‘Recordkeeping,
Reporting, and Other Compliance
Requirements.’’
The public reporting burden per
individual response is estimated to
average 2 hours for the Application for
Pacific Cod Trawl Cooperative Program
Quota Share, 2 hours for the
Application for Pacific Cod Trawl
Cooperative Program Cooperative
Quota, 2 hours for the Application for
Transfer of Pacific Cod Trawl
Cooperative Program Quota Share for
Processors, 10 minutes for the
Application for Inter-Cooperative
Transfer of Cooperative Quota, 30
minutes for the notification of intent to
process Aleutian Islands Pacific cod, 2
hours for the 90-day transfer window for
non-exempt AFA LLP license holders,
and 4 hours for appeals.
OMB Control Number 0648–0213
This proposed rule would revise the
existing requirements for the collection
of information 0648–0213 related to
logbooks because CVs participating in
the PCTC Program would be required to
submit a CV trawl gear daily fishing
logbook. Some CVs less than 60 ft LOA
that do not currently submit this
logbook would need to begin doing so
to participate in the PCTC Program. The
revision to this collection of information
adds the CVs less than 60 ft LOA that
would need to start using the CV trawl
gear daily fishing logbook as new
respondents. CVs participating in the
PCTC Program would have the option of
using either the paper logbook approved
under this collection or the electronic
option, which is approved under OMB
Control Number 0648–0515. The PCTC
Program does not change the
information collected by this logbook.
This rule would require C/Ps and
shoreside processors authorized as
processors in the PCTC Program to
submit a product transfer report;
however, no changes would be needed
to the respondents or responses for this
report because all expected respondents
are currently submitting it. The public
reporting burden per individual
response is estimated to average 18
minutes for the Catcher Vessel Trawl
Daily Fishing Log and 20 minutes for
the Product Transfer Report.
OMB Control Number 0648–0318
This proposed rule would revise the
existing requirements for the collection
of information 0648–0318 related to the
North Pacific Observer Program because
all vessels participating in the PCTC
program would be required to have a
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computer onboard and use ATLAS to
submit observer data to NMFS. This
would increase the number of vessels
that need to provide observers access to
a computer with ATLAS installed.
PCTC Program participants would have
up to three years to install ATLAS. Most
vessels comply with this requirement by
allowing NMFS to install ATLAS on an
existing computer on the vessel. Many,
if not all, of the vessels that would need
to install ATLAS already have a
computer that meets the minimum
requirements, and they would only
incur costs if they choose to purchase an
additional computer. Estimated costs to
purchase and install the data
transmission system vary from about
$5,000 to $37,000, depending on what a
vessel needs to install. This rule also
revises the existing requirements in this
collection because catcher vessels that
choose to participate in the PCTC
Program would be required to be in the
full observer coverage category instead
of the partial observer coverage
category. These catcher vessels would
no longer be required to use ODDS to
log fishing trips; therefore, this would
decrease the number of respondents that
log trips in ODDS. The public reporting
burden per individual response is
estimated to average 15 minutes to log
a trip in ODDS.
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OMB Control Number 0648–0334
This proposed rule would revise the
existing requirements for the collection
of information 0648–0334 related to the
LLP license and the transferable AI
endorsement to include PCTC Program
QS information on the groundfish/crab
LLP license transfer application form.
Subject to public comment, no change is
made to the burden because the estimate
allows for differences in the time
needed to complete and submit the
form. The public reporting burden per
individual response is estimated to
average 1 hour for the Application for
Transfer LLP Groundfish/Crab License.
OMB Control Number 0648–
TEMPORARY
This proposed rule would revise the
collection of information under OMB
Control Number 0648–0515 associated
with electronic reporting. However, due
to multiple concurrent actions for that
collection, the collection-of-information
requirements will be assigned a
temporary control number that will later
be merged into OMB Control Number
0648–0515.
PCTC Program participants would
need to use eLandings to submit
landings and production information,
which is approved under control
number OMB 0648–0515. CVs
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8619
participating in the PCTC Program
would be required to submit a CV trawl
gear daily fishing logbook and may use
either the electronic logbook approved
under OMB Control Number 0648–0515
or the paper logbook approved under
OMB Control Number 0648–0213. CVs
greater than 60 ft LOA are already
required to maintain logbooks but this
would be a new requirement for CVs
less than 60 ft LOA. Some CVs less than
60 ft LOA that do not current submit the
logbook would need to begin doing so.
The temporary control number would
cover the revisions necessary to –0515
for the CVs that choose to submit
electronic logbooks. The PCTC Program
does not change the information
collected by this logbook but does
increase the number of participants
required to submit it. The public
reporting burden per individual
response is estimated to average 15
minutes for the CV electronic logbook.
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. Submit
comments on these or any other aspects
of the collection of information to
NMFS Alaska Region (see ADDRESSES) or
at www.reginfo.gov/public/do/PRAMain.
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.
OMB Control Number 0648–0678
This rule would revise the existing
collection of information under 0648–
0678 to because the Council requests
PCTC Program cooperatives submit a
voluntary annual cooperative report to
the Council. This revision would add
the PCTC Program cooperatives as new
respondents that will submit an annual
cooperative report. The public reporting
burden per individual response is
estimated to average 18 hours for the
PCTC Program annual report.
Dated: January 19, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
OMB Control Number 0648–0711
This proposed rule would revise the
existing requirements for the collection
of information 0648–0711 related to cost
recovery because the PCTC Program is
a LAPP that is subject to a cost recovery
fee under MSA 303A. This revision
adds the PCTC Program cooperatives as
new respondents that will submit a cost
recovery fee to NMFS. The rule would
require PCTC processors to submit an
annual Pacific Cod Ex-vessel Volume
and Value Report; however, this would
not change the respondents or responses
for this report because all expected
respondents are currently submitting it.
The public reporting burden per
individual response is estimated to
average 1 minute for the PCTC cost
recovery fee and 1 minute for the Pacific
Cod Ex-vessel Volume and Value
Report.
Public Comments
Public comment is sought regarding:
whether these proposed information
collections are necessary for the proper
performance of the functions of the
agency, including whether the
information shall have practical utility;
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List of Subjects in 50 CFR Part 679
Alaska, Fisheries, Reporting and
recordkeeping requirements.
For the reasons set out in the
preamble, 50 CFR part 679 is proposed
to be amended as follows:
PART 679—FISHERIES OF THE
EXCLUSIVE ECONOMIC ZONE OFF
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; Pub. L.
111–281.
2. Amend § 679.2 by:
a. Removing the definitions of
‘‘Affiliation for the purpose of defining
AFA and the Rockfish Program’’;
■ b. Adding the definitions of
‘‘Affiliation for the purpose of defining
AFA, Rockfish Program, and PCTC
Program’’;
■ c. Republishing the definition of
‘‘Aleutian Islands shoreplant’’;
■ d. Revising the definitions of
‘‘Cooperative quota’’ and ‘‘CQ Permit’’;
and
■ e. Adding in alphabetical order the
definitions of ‘‘NMFS Alaska Region
website,’’ ‘‘Pacific Cod Trawl
Cooperative (PCTC) Program,’’ ‘‘PCTC
Program cooperative,’’ ‘‘PCTC Program
CQ,’’ ‘‘PCTC Program harvester QS
pool,’’ ‘‘PCTC Program official record,’’
‘‘PCTC Program participants,’’ ‘‘PCTC
Program processor QS pool’’, ‘‘PCTC
Program QS unit,’’ and ‘‘PCTC Program
quota share (QS)’’.
The additions and revisions read as
follows:
■
■
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Definitions.
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*
*
*
*
*
Affiliation for the purpose of defining
AFA, Rockfish Program, and PCTC
Program means a relationship between
two or more individuals, corporations,
or other business concerns, except CDQ
groups, in which one concern directly
or indirectly owns a 10 percent or
greater interest in another, exerts control
over another, or has the power to exert
control over another; or a third
individual, corporation, or other
business concern directly or indirectly
owns a 10 percent or greater interest in
both, exerts control over both, or has the
power to exert control over both.
(1) What is 10 percent or greater
ownership? For the purpose of
determining affiliation, 10 percent or
greater ownership is deemed to exist if
an individual, corporation, or other
business concern directly or indirectly
owns 10 percent or greater interest in a
second corporation or other business
concern.
(2) What is an indirect interest? An
indirect interest is one that passes
through one or more intermediate
entities. An entity’s percentage of
indirect interest in a second entity is
equal to the entity’s percentage of direct
interest in an intermediate entity
multiplied by the intermediate entity’s
direct or indirect interest in the second
entity.
(3) What is control? For the purpose
of determining affiliation, control is
deemed to exist if an individual,
corporation, or other business concern
has any of the following relationships or
forms of control over another
individual, corporation, or other
business concern:
(i) Controls 10 percent or more of the
voting stock of another corporation or
business concern;
(ii) Has the authority to direct the
business of the entity that owns the
fishing vessel or processor. The
authority to direct the business of the
entity does not include the right to
simply participate in the direction of the
business activities of an entity that owns
a fishing vessel or processor;
(iii) Has the authority in the ordinary
course of business to limit the actions of
or to replace the chief executive officer,
a majority of the board of directors, any
general partner or any person serving in
a management capacity of an entity that
holds 10 percent or greater interest in a
fishing vessel or processor. Standard
rights of minority shareholders to
restrict the actions of the entity are not
included in this definition of control
provided they are unrelated to day-today business activities. These rights
include provisions to require the
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consent of the minority shareholder to
sell all or substantially all the assets, to
enter into a different business, to
contract with the major investors or
their affiliates, or to guarantee the
obligations of majority investors or their
affiliates;
(iv) Has the authority to direct the
transfer, operation, or manning of a
fishing vessel or processor. The
authority to direct the transfer,
operation, or manning of a vessel or
processor does not include the right to
simply participate in such activities;
(v) Has the authority to control the
management of or to be a controlling
factor in the entity that holds 10 percent
or greater interest in a fishing vessel or
processor;
(vi) Absorbs all the costs and normal
business risks associated with
ownership and operation of a fishing
vessel or processor;
(vii) Has the responsibility to procure
insurance on the fishing vessel or
processor, or assumes any liability in
excess of insurance coverage;
(viii) Has the authority to control a
fishery cooperative through 10 percent
or greater ownership or control over a
majority of the vessels in the
cooperative, has the authority to
appoint, remove, or limit the actions of
or replace the chief executive officer of
the cooperative, or has the authority to
appoint, remove, or limit the actions of
a majority of the board of directors of
the cooperative. In such instance, all
members of the cooperative are
considered affiliates of the individual,
corporation, or other business concern
that exerts control over the cooperative;
or
(ix) Has the ability through any other
means whatsoever to control the entity
that holds 10 percent or greater interest
in a fishing vessel or processor.
*
*
*
*
*
Aleutian Islands shoreplant means a
processing facility that is physically
located on land west of 170° W
longitude within the State of Alaska.
*
*
*
*
*
Cooperative quota (CQ):
(1) For purposes of the Amendment
80 Program means:
(i) The annual catch limit of an
Amendment 80 species that may be
caught by an Amendment 80
cooperative while fishing under a CQ
permit;
(ii) The amount of annual halibut and
crab PSC that may be used by an
Amendment 80 cooperative while
fishing under a CQ permit.
(2) For purposes of the Rockfish
Program means:
(i) The annual catch limit of a rockfish
primary species or rockfish secondary
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species that may be harvested by a
rockfish cooperative while fishing under
a CQ permit;
(ii) The amount of annual halibut PSC
that may be used by a rockfish
cooperative in the Central GOA while
fishing under a CQ permit (see rockfish
halibut PSC in this section).
(3) For purposes of the PCTC Program
means:
(i) The annual catch limit of Pacific
cod that may be caught by a PCTC
Program cooperative while fishing
under a CQ permit;
(ii) The amount of annual halibut and
crab PSC that may be used by a PCTC
Program cooperative while fishing
under a CQ permit.
*
*
*
*
*
CQ permit means a permit issued to
an Amendment 80 cooperative under
§ 679.4(o)(2), a rockfish cooperative
under § 679.4(n)(1), or a PCTC Program
cooperative under § 679.131(a).
*
*
*
*
*
NMFS Alaska Region website means
https://www.fisheries.noaa.gov/region/
alaska.
*
*
*
*
*
Pacific Cod Trawl Cooperative (PCTC)
Program means the Pacific Cod Trawl
Cooperative Program as implemented
under subpart L of this part.
*
*
*
*
*
PCTC Program cooperative means a
group of eligible Pacific cod harvesters
who have chosen to form a cooperative
under the requirements in § 679.132 in
order to combine and harvest fish
collectively under a CQ permit issued
by NMFS.
PCTC Program CQ (See CQ)
PCTC Program harvester QS pool
means the sum of Pacific cod QS units
assigned to LLP licenses established for
the PCTC Program fishery based on the
PCTC Program official record.
PCTC Program official record means
information used by NMFS necessary to
determine eligibility to participate in
the PCTC Program and assign specific
harvest privileges or limits to PCTC
Program participants based on Pacific
cod legal landings as defined at
§ 679.130.
PCTC Program participants means
those PCTC Program eligible harvesters
and eligible processors who receive
Pacific cod QS.
PCTC Program processor QS pool
means the sum of Pacific cod QS units
assigned to processor permits issued
under the PCTC Program based on the
PCTC Program official record.
PCTC Program QS unit means a single
share of the PCTC Program QS pool
based on Pacific cod legal landings.
PCTC Program quota share (QS)
means QS units issued by NMFS
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expressed in metric tons, derived from
the Pacific cod legal landings assigned
to an LLP license or PCTC Program QS
permit held by a processor and used as
the basis for the issuance of annual CQ.
*
*
*
*
*
■ 3. In § 679.4, add paragraphs
(a)(1)(xvi), (k)(16) and paragraph (q) to
read as follows:
If program permit or card type is:
Permits.
(a) * * *
(1) * * *
Permit is in effect from issue date through the end of:
*
*
*
(xvi) PCTC Program:
(A) PCTC Program QS permit (for processors) ....
(B) PCTC Program CQ permit ..............................
*
For more information, see . . .
*
*
10 Years .......................................................................
Until expiration date shown on permit .........................
*
Paragraph (q) of this section.
Paragraph (q) of this section.
*
*
*
*
(k) * * *
(16) PCTC Program. In addition to
other requirements of this part, an LLP
license holder must have PCTC Program
QS assigned to their groundfish LLP
license to join a PCTC Program
cooperative to harvest Pacific cod.
*
*
*
*
*
(q) PCTC Program Permits.
(1) PCTC Program Cooperative Quota
Permits. (i) A CQ permit is issued
annually to a PCTC Program cooperative
if the members of that cooperative have
submitted a complete and timely
application for CQ as described in
§ 679.131 that is approved by the
Regional Administrator. A CQ permit
authorizes a PCTC Program cooperative
to participate in the PCTC Program. The
CQ permit will indicate the amount of
Pacific cod that may be harvested by the
PCTC Program cooperative, and the
amount of halibut PSC and crab PSC
that may be used by the PCTC Program
cooperative. The CQ permit will list the
members of the PCTC Program
cooperative, the trawl catcher vessels
that are authorized to fish under the CQ
permit for that cooperative, and the
PCTC Program processor(s) with whom
that cooperative is associated.
(ii) A CQ permit is valid only until the
end of the BSAI Pacific cod B season for
the year in which the CQ permit is
issued;
(iii) A legible copy of a valid CQ
permit must be carried on board the
vessel(s) used by the PCTC Program
cooperative.
(2) PCTC Program Quota Share
Permits for Processors.
(i) NMFS will issue PCTC Program QS
permits to eligible processors if the
owner(s) submits to the Regional
Administrator a completed application
for PCTC Program QS as described in
§ 679.130 that is subsequently approved.
(ii) A processor may associate the QS
assigned to the PCTC Program QS
permit to a PCTC Program cooperative
as described in § 679.131.
*
*
*
*
*
■ 4. Amend § 679.5 by:
■ a. Adding paragraph (a)(1)(iii)(G);
■ b. Revising paragraph (a)(4)(i); and
■ c. Adding paragraph (x).
The additions and revisions read as
follows:
If harvest made under . . . program
Record the . . .
For more information, see . . .
*
*
(G) PCTC Program ...........................................
*
*
*
Cooperative number .........................................
*
subpart L to this part.
*
*
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§ 679.4
*
*
(4) * * *
(i) Catcher vessels less than 60 ft (18.3
m) LOA. Except for vessels using pot
gear as described in paragraph
(c)(3)(i)(B)(1) of this section or vessels
participating in the PCTC Program as
described in paragraph (x) of this
section, the owner or operator of a
catcher vessel less than 60 ft (18.3 m)
LOA is not required to comply with the
R&R requirements of this section, but
must comply with the vessel activity
report described at paragraph (k) of this
section.
*
*
*
*
*
(x) PCTC Program. The owners and
operators of catcher vessels and
processors authorized as participants in
the PCTC Program must comply with
the applicable recordkeeping and
reporting requirements of this section
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*
Prohibitions.
*
*
*
*
*
(m) PCTC Program—
(1) General.
(i) Name an LLP license in more than
one PCTC Program cooperative
application in a fishing year.
(ii) Use a vessel to catch or receive a
PCTC Program cooperative’s Pacific cod
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Recordkeeping and Reporting
(a) * * *
(1) * * *
(iii) * * *
*
and must assign all catch to a PCTC
Program cooperative at the time of catch
or receipt of groundfish. Owners of
catcher vessels and processors
authorized as participants in the PCTC
Program must ensure that their
designated representatives or employees
comply with applicable recordkeeping
and reporting requirements as described
in § 679.134.
■ 5. In § 679.7 add paragraph (m) to read
as follows:
§ 679.7
§ 679.5
(R&R).
Sfmt 4702
*
*
*
when that vessel was not listed on the
PCTC Program cooperative’s application
for PCTC Program CQ.
(iii) Fail to comply with any other
requirement or restriction specified in
this part or violate any provision of this
part.
(2) Vessel operators participating in
the PCTC Program.
(i) Fail to follow the catch monitoring
requirements detailed in § 679.134
while fishing under a CQ permit issued
to a PCTC Program cooperative.
(ii) Operate a vessel that is subject to
a sideboard limit detailed in § 679.133,
as applicable, and fail to follow the
catch monitoring requirements detailed
in § 679.134.
(iii) Exceed the ownership or use caps
specified at § 679.133. Owners and
operators of vessels participating in the
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PCTC Program are jointly and severally
liable for any violation of PCTC Program
regulations while fishing under the
authority of a CQ permit.
(3) VMS.
(i) Operate a vessel in a PCTC
Program cooperative and fail to use
functioning VMS equipment as
described at § 679.134.
(ii) Operate a vessel that is subject to
a sideboard limit detailed in § 679.133
and fail to use functioning VMS
equipment as described in § 679.134.
(4) PCTC Program processors.
(i) Take deliveries of, or process,
PCTC Program Pacific cod harvested by
a catcher vessel fishing under the
authority of a PCTC CQ permit unless
operating as a processor.
(ii) Process any groundfish delivered
by a catcher vessel fishing under the
authority of a CQ permit not weighed on
a scale approved by the State of Alaska.
The scale must meet the requirements
specified in § 679.28(c).
(iii) Fail to submit a timely and
complete Pacific cod Ex-vessel Volume
and Value Report as required under
§ 679.5(u)(1).
(iv) Use a catcher/processor
designated on an LLP license with a
BSAI Pacific cod trawl mothership
endorsement to sort, process, or discard
any species, except halibut sorted on
deck by vessels participating in halibut
deck sorting described at § 679.120,
before the total catch is weighed on a
scale that meets the requirements of
§ 679.28(b).
(v) Use a catcher/processor designated
on an LLP license with a BSAI Pacific
cod trawl mothership endorsement to
process Pacific cod in excess of the atsea processing sideboard limit defined
at § 679.133(b)(2) and assigned to the
LLP license.
(vi) Process an amount of Pacific cod
that exceeds use caps specified in
§ 679.133. The owners and operators of
the individual processors that process
Pacific cod are jointly and severally
liable for any violation of PCTC Program
regulations.
(5) PCTC cooperatives.
(i) Fail to retain any Pacific cod
caught by a vessel when that vessel is
fishing under the authority of a PCTC
Program cooperative CQ permit.
(ii) Harvest PCTC Program Pacific
cod, use halibut PSC, or use crab PSC
assigned to a PCTC cooperative in the
BSAI without having on board a legible
copy of valid PCTC Program CQ permit.
(iii) Begin a fishing trip for PCTC
Program Pacific cod with any vessel
named in a PCTC Program cooperative
if the total amount of unharvested PCTC
Program Pacific cod on a CQ permit
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16:56 Feb 08, 2023
Jkt 259001
currently held by that cooperative is
zero or less.
(iv) Operate a vessel fishing under the
authority of a CQ permit issued to a
PCTC Program cooperative and have
any Pacific cod aboard the vessel unless
those fish were harvested under the
authority of a PCTC Program CQ permit.
(v) Have a negative balance in a PCTC
Program CQ account after the end of the
calendar year for which a PCTC Program
CQ permit was issued.
(vi) Fail to submit a PCTC Program
cost recovery fee payment as required
under § 679.135.
*
*
*
*
*
■ 6. Amend § 679.20 by, revising
paragraph (a)(7)(viii) and adding
paragraph (e)(3)(vi) to read as follows:
(5) Pacific cod fishery. Fishing with
trawl gear during any weekly reporting
period that results in a retained
aggregate amount of Pacific cod that is
greater than the retained amount of any
other groundfish fishery category
defined under this paragraph
(b)(1)(ii)(B). This Pacific cod fishery is
further apportioned between the PCTC
Program, the trawl catcher vessel
limited access C season, and AFA
catcher/processors as established at
§ 679.131(c) and (d).
*
*
*
*
*
(2) * * *
(iii) * * *
(A) Unused seasonal apportionments.
Unused seasonal apportionments of
trawl fishery PSC allowances made
under paragraph (b)(2) of this section
§ 679.20 General limitations.
will be added to its respective fishery
(a) * * *
PSC allowance for the next season
(7) * * *
during a current fishing year except for
(viii) Aleutian Islands PCTC Program
set-aside provisions.—During the annual the Pacific cod fishery apportionment to
the PCTC Program, which follows the
harvest specifications process, the
regulations at § 679.131(c) and (d).
Regional Administrator will establish
(B) Seasonal apportionment
the Aleutian Islands PCTC Program setexceeded.
If a seasonal apportionment
aside through the process set forth at
of a trawl fishery PSC allowance made
§ 679.132.
under paragraph (b)(2) of this section is
*
*
*
*
*
exceeded, the amount by which the
(e) * * *
seasonal apportionment is exceeded
(3) * * *
will be deducted from its respective
(vi) For a catcher/processor with a
apportionment for the next season
BSAI Pacific cod trawl mothership
during a current fishing year except for
endorsement that receives an unsorted
the Pacific cod fishery apportionment to
codend delivered by a catcher vessel
the PCTC Program, which follows the
authorized to harvest PCTC Program
regulations at § 679.131(c) and (d).
Pacific cod, the maximum retainable
*
*
*
*
*
amount for each species or species
(4) * * *
group applies at any time for the
(i) * * *
duration of the fishing trip and must be
(B) Closures. Except as provided in
applied to only the PCTC Program hauls
paragraph (b)(4)(i)(A) of this section, if,
during a fishing trip.
during the fishing year, the Regional
*
*
*
*
*
Administrator determines that U.S.
■ 7. In § 679.21, revise paragraphs
fishing vessels participating in any of
(b)(1)(ii)(B) introductory text and (B)(5);
the trawl fishery categories listed in
(b)(2)(iii)(A) and (B); (b)(4)(i)(B);
paragraphs (b)(1)(ii)(B)(2) through (6) of
(e)(3)(iv) introductory text and (iv)(E);
this section will catch the halibut PSC
and add paragraph (e)(7)(v) to read as
allowance, or seasonal apportionment
follows:
thereof, specified for that fishery
category under paragraph (b)(1)(i) or (ii)
§ 679.21 Prohibited species bycatch
management.
of this section, NMFS will publish in
the Federal Register the closure of the
*
*
*
*
*
entire BSAI to directed fishing for each
(b) * * *
species and/or species group in that
(1) * * *
(ii) * * *
fishery category for the remainder of the
(B) Trawl fishery categories. For
year or for the remainder of the season.
purposes of apportioning the trawl PSC
This does not apply to allocations to the
limit set forth under paragraph
PCTC Program specified at § 679.133(b).
(b)(1)(ii)(A)(1) of this section among
*
*
*
*
*
trawl fisheries, the following fishery
(e) * * *
categories are specified and defined in
(3) * * *
terms of round-weight equivalents of
(iv) Trawl fishery categories. For
those groundfish species or species
purposes of apportioning trawl PSC
groups for which a TAC has been
limits for crab and herring among
specified under § 679.20.
fisheries, other than crab PSC CQ
assigned to an Amendment 80
*
*
*
*
*
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cooperative, the following fishery
categories are specified and defined in
terms of round-weight equivalents of
those groundfish species or species
groups for which a TAC has been
specified under § 679.20.
*
*
*
*
*
(E) Pacific cod fishery. Fishing with
trawl gear during any weekly reporting
period that results in a retained
aggregate amount of Pacific cod that is
greater than the retained amount of any
other groundfish fishery category
defined under this paragraph (e)(3)(iv).
The Pacific cod fishery is further
apportioned between the PCTC
Program, the trawl catcher vessel
limited access C season, and AFA
catcher/processors as established at
§ 679.131(d).
*
*
*
*
*
(7) * * *
(v) Paragraph (e)(7) of this section
does not apply to apportionments to the
PCTC Program as described in
§ 679.130.
*
*
*
*
*
■ 9. Amend § 679.51 by:
■ a. Revising paragraph (a)(2)(i)(C)(4);
■ b. Adding paragraphs (a)(2)(i)(C)(5)
and (vi)(G);
■ c. Revising paragraphs (e)(1)(iii)(A)
and (B) introductory text; and
■ d. Adding paragraph (e)(1)(iii)(D).
The revisions and additions read as
follows:
communications equipment and
personnel, on request, for the
confidential entry, transmission, and
receipt of work-related messages
(including electronic transmission of
data), at no cost to the observer or the
United States.
(B) Equipment, software, and data
transmission requirements. The operator
of a catcher/processor (except for a
catcher/processor placed in the partial
observer coverage category under
paragraph (a)(3) of this section),
mothership, catcher vessel 125 ft LOA
or longer (except for a catcher vessel
fishing for groundfish with pot gear), or
a catcher vessel participating in the
PCTC Program (except for paragraph
(D)) must provide the following
equipment, software and data
transmission capabilities:
*
*
*
*
*
(D) PCTC Program. The operator of a
non-AFA catcher vessel participating in
the PCTC Program is not required to
comply with paragraph (e)(1)(iii)(B)(3)
of this section to provide data
transmission capability until [Date 3
years after effective date of the final
rule]. However, once any non-AFA
catcher vessel in the PCTC Program is
capable of at-sea data transmission, the
operator must comply.
*
*
*
*
*
§ 679.64
[Amended]
10. In § 679.64, remove and reserve
paragraphs (b)(3)(ii) and (4)(i).
■ 11. Add Subpart L, consisting of
§§ 679.130 through 679.135 to read as
follows:
■
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§ 679.51 Observer and Electronic
Monitoring System requirements for
vessels and plants.
(a) * * *
(2) * * *
(i) * * *
(C) * * *
(4) Using trawl gear in the BSAI if the
vessel has been placed in the full
observer coverage category under
paragraph (a)(4) of this section; or
(5) Participating in the PCTC Program.
*
*
*
*
*
(vi) * * *
(G) PCTC Program Motherships. A
mothership that receives unsorted
codends from catcher vessels harvesting
Pacific cod under the PCTC Program
must have at least two observers aboard
the mothership, at least one of whom
must be endorsed as a lead level 2
observer. More than two observers must
be aboard if the observer workload
restriction would otherwise preclude
sampling as required.
*
*
*
*
*
(e) * * *
(1) * * *
(iii) * * *
(A) Observer use of equipment. Allow
an observer to use the vessel’s
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Subpart L—Pacific Cod Trawl Cooperative
Program
Sec.
679.130 Allocation, use, and transfer of
PCTC Program QS permits.
679.131 PCTC Program annual harvester
privileges.
679.132 Aleutian Islands set-aside
provisions in the PCTC Program.
679.133 PCTC Program use caps and
sideboard limits.
679.134 PCTC Program permits, catch
monitoring, catch accounting, and
recordkeeping and reporting.
679.135 PCTC Program cost recovery.
Subpart L—Pacific Cod Trawl
Cooperative Program
§ 679.130 Allocation, use, and transfer of
PCTC Program QS.
(a) Applicable areas and seasons.
(1) Applicable fishery. The PCTC
Program applies to the Pacific cod trawl
catcher vessel sector in the BSAI as
defined in § 679.20(a)(7)(ii)(A).
(2) PCTC Program Fishing Seasons.
The following fishing seasons apply to
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8623
fishing under this subpart subject to
other provisions of this part:
(i) PCTC Program cooperative A
season. Fishing by vessels participating
in a cooperative is authorized from 1200
hours, A.l.t., January 20 through 1200
hours, A.l.t., April 1.
(ii) PCTC Program cooperative B
season. Fishing by vessels participating
in a cooperative is authorized from 1200
hours, A.l.t., April 1 through 1200
hours, A.l.t., June 10.
(iii) Limited Access C Season. The
PCTC Program does not apply to the
Pacific cod trawl catcher vessel C
season, as defined in
§ 679.23(e)(5)(ii)(C)(1).
(b) Pacific cod legal landings. Pacific
cod legal landings means the retained
catch of Pacific cod caught using trawl
gear in a management area in the BSAI
by a catcher vessel during the directed
fishing season for Pacific cod that:
(1) Was made in compliance with
state and Federal regulations in effect at
that time; and
(2) Was recorded on a State of Alaska
fish ticket for shoreside deliveries or in
observer data for mothership deliveries;
and
(3) Was the predominately retained
species on the fishing trip; and
(4) Was authorized by:
(i) An LLP license and caught in the
A or B season of a Federal or parallel
groundfish fishery during the qualifying
years 2009 through 2019; or
(ii) An LLP license with a transferable
AI endorsement prior to receiving an AI
endorsement and was caught in a
parallel fishery between January 20,
2004 and September 13, 2009; and
(5) Was not made in a CDQ fishery;
and
(6) Was not made in a State of Alaska
GHL fishery.
(c) Eligible PCTC Program harvesters.
NMFS will assign Pacific cod legal
landings to an LLP license only if the
qualifying Pacific cod legal landings of
BSAI trawl catcher vessel Pacific cod
were made under the authority of a fully
transferable LLP license endorsed for BS
or AI Pacific cod with a trawl gear
designation from 2009 through 2019 or
under the authority of an LLP license
endorsed for Pacific cod with a trawl
gear designation prior to earning a
transferable AI endorsement from 2004
through September 13, 2009;
(d) Assigning trawl catcher vessel
Pacific cod legal landings to an LLP
license.
(1) NMFS will assign Pacific cod legal
landings to an LLP license in the form
of QS only if the holder of the LLP
license with those landings submits a
timely and complete application for
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Pacific cod QS, in paragraph (h) of this
section, that is approved by NMFS.
(2) NMFS will assign Pacific cod legal
landings to an LLP license that meets
the requirements of paragraph (b) of this
section.
(3) NMFS will reissue LLP licenses to
eligible harvesters that specify the
number of QS units assigned to their
LLP licenses.
(e) Eligible PCTC Program Processors.
NMFS will assign legal landings to an
eligible PCTC Program processor if the
processor operates under the authority
of a valid FFP or FPP and received
deliveries of legal landings of Pacific
cod from the trawl catcher vessel sector
from 2009 through 2019. A processor is
ineligible to receive PCTC Program QS
if its FFP or FPP is no longer active as
of [Date 30 days after the effective date
of the final rule].
(f) Assigning Pacific cod processing
history to an eligible processor.
(1) NMFS will assign Pacific cod
processing history to a processor in the
form of QS only if the FFP or FPP
holder submits a timely and complete
application for PCTC Program QS that is
approved by NMFS pursuant to
paragraph (h) of this section.
(2) NMFS will assign Pacific cod
processing history based on legal
landings delivered to a processor
authorized by an FPP or FFP that meets
the requirements of this section.
(3) For the initial allocation of QS,
qualifying processing history is attached
to the processor at the time legal
landings were received.
(4) An eligible processor will be
issued a PCTC Program QS permit that
specifies the number of QS units
assigned to that processor.
(g) PCTC Program official record.
(1) Use of the PCTC Program official
record. The PCTC Program official
record will contain information used by
the Regional Administrator to
determine:
(i) The amount of Pacific cod legal
landings as defined in § 679.130
assigned to an LLP license;
(ii) The amount of Pacific cod
processing history of legal landings as
defined in § 679.130 assigned to an FPP
or FFP;
(iii) The amount of PCTC Program QS
resulting from Pacific cod legal landings
assigned to an LLP license held by an
eligible harvester, or QS resulting from
Pacific cod processing history assigned
to an FPP or FFP held by an eligible
processor;
(iv) The amount of Pacific cod
sideboard ratios assigned to LLP
licenses;
(v) Eligibility to participate in the
PCTC Program; and
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(vi) QS assigned to PCTC Program
participants.
(2) Presumption of correctness. The
PCTC Program official record is
presumed to be correct. An applicant
participating in the PCTC Program has
the burden to prove otherwise.
(3) Documentation. Only Pacific cod
legal landings and processing history of
legal landings, as described in
paragraph (b) of this section, shall be
used to establish an allocation of PCTC
Program QS. Evidence of legal landings
shall be limited to documentation of
state or Federal catch reports that
indicate the amount of Pacific cod
harvested, the groundfish reporting area
in which it was caught, the vessel and
gear type used to catch it, and the date
of harvesting, landing, or reporting.
(4) Non-severability of Pacific cod
legal landings. Pacific cod legal
landings are non-severable from the LLP
license or PCTC Program QS Permit to
which those Pacific cod legal landings
are assigned according to the PCTC
Program official record except under the
following provisions:
(i) If multiple LLP licenses authorized
catch by a vessel, in the absence of an
agreement provided by the LLP license
holder at the time of application for QS,
qualifying catch history will be assigned
to an LLP license by the owner of the
vessel that made the catch at the time
of application.
(ii) 90-day transfer provision.
(A) For the LLP licenses associated
with non-exempt AFA catcher vessels,
within 90 days of initial issuance of QS,
the owners of the LLP licenses that are
associated with AFA non-exempt
catcher vessels that had engaged in fish
transfer agreements during the
qualifying periods may transfer QS to
other LLP licenses associated with AFA
non-exempt vessels, subject to the
ownership cap in § 679.133.
(B) NMFS will execute permanent
transfers of QS between eligible LLPs
during the 90-day transfer provision
upon showing that both the transferor
and transferee agree to the one-time
transfer of QS and understand the
transfer will be permanent, or upon
showing a transfer is authorized by an
operation of law (e.g., a court order).
Requests to transfer QS must specify
which LLP is transferring QS, which
LLP is receiving QS, and the amount of
QS to be transferred.
(C) After the expiration of the 90-day
transfer provision, PCTC QS will no
longer be severable from the LLP license
to which it is assigned unless
authorized by the transfer rules
specified in paragraph (f) of this section
or modification is supported by an
operation of law.
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(h) Application for PCTC Program
Quota Share—
(1) Submission of an application for
PCTC Program quota share. A person
who wishes to receive QS to participate
in the PCTC Program as an eligible
harvester or an eligible processor must
submit a timely and complete
application for PCTC Program QS. An
application form will be provided by
NMFS or available from NMFS Alaska
Region website as defined at § 679.2.
The acceptable submittal methods will
be described on the application form.
(2) Deadline. A completed application
for PCTC Program QS must be received
by NMFS no later than 1700 hours,
A.l.t., on [Date 30 days after the effective
date of the final rule], or if sent by U.S.
mail, postmarked by that time. Objective
written evidence of timely application
will be considered proof of a timely
application.
(3) Contents of application. A timely
and complete application must contain
the information specified on the
application for PCTC Program QS with
all required documentation attached.
(i) Additional required documentation
for LLP license holders. Vessel names,
ADF&G vessel registration numbers, and
USCG documentation numbers of all
vessels that fished under the authority
of each LLP license, including dates
when landings were made under the
authority of an LLP license from 2009
through 2019 or under the authority of
an LLP license prior to earning a
transferable AI endorsement from 2004–
2019;
(ii) Additional required
documentation for processors. Processor
name, FFP or FPP number, and location
of processing plant, including dates
when landings were made under the
authority of an LLP license from 2009
through 2019;
(iii) The applicant must sign and date
the application certifying under penalty
of perjury that all information is true
and correct. If the application is
completed by a designated
representative, then explicit
authorization signed by the applicant
must accompany the application.
(4) Application evaluation. The
Regional Administrator will evaluate
applications and compare all claims of
catch history or processing history in an
application with the information in the
PCTC Program official record.
Application claims that are consistent
with information in the PCTC Program
official record will be approved by the
Regional Administrator. Application
claims that are inconsistent with the
PCTC Program official record will not be
approved unless supported by
documentation sufficient to substantiate
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such claims. An applicant who submits
claims of catch history or processing
history that are inconsistent with the
official record without sufficient
evidence, or an applicant who fails to
submit the information specified in
paragraph (d) of this section, will be
provided a single 30-day evidentiary
period to submit the specified
information, submit evidence to verify
their claims of catch or processing
history, or submit a revised application
consistent with information in the PCTC
Program official record. An applicant
who claims catch or processing history
that is inconsistent with information in
the PCTC Program official record has
the burden of proving that the submitted
claims are correct. Any claims that
remain unsubstantiated after the 30-day
evidentiary period will be denied. All
applicants will be notified of NMFS’s
final application determinations by an
initial administrative determination
(IAD), which will inform applicants of
their appeal rights under 15 CFR part
906.
(5) Appeals. An applicant may appeal
an IAD under the provisions in 15 CFR
part 906.
(i) Assigning PCTC Program QS to
Harvesters and Processors. The Regional
Administrator will assign PCTC
Program QS only to an eligible harvester
or eligible processor who submits a
timely application for PCTC Program QS
that is approved by NMFS.
(1) Calculation of PCTC Program QS
allocation to LLP licenses without a
transferable AI endorsement. NMFS will
assign a specific amount of PCTC
Program QS units to each LLP license
based on the Pacific cod legal landings
of each LLP license using information
from the PCTC Program official record
according to the following procedures:
(i) Determine the Pacific cod legal
landings for each LLP license for each
calendar year from 2009 through 2019.
(ii) Select the 10 calendar years from
the qualifying time period with the
highest amount of legal landings for
each LLP license, including years with
zero metric tons if necessary.
(iii) Sum the Pacific cod legal
landings of the highest 10 years for each
LLP license. This yields the QS units (in
metric tons) for each LLP license.
(2) Calculation of PCTC Program QS
allocation to LLP licenses with
transferable AI endorsements. NMFS
will assign a specific amount of PCTC
Program QS units to each LLP license
with a transferable AI endorsement
based on the Pacific cod legal landings
of each using information from the
PCTC Program official record according
to the following procedures:
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(i) Determine the Pacific cod legal
landings for each LLP license with a
transferable AI endorsement for each
calendar year from 2004 through 2019.
(ii) Select the fifteen calendar years
that yield the highest amount of legal
landings for each LLP license, including
years with zero metric tons if necessary.
(iii) Sum the Pacific cod legal
landings of the highest fifteen years for
each LLP license with transferable AI
endorsement. This yields the QS units
(in metric tons) for each LLP license
with a transferable AI endorsement.
(3) Official Record Date. The initial
PCTC Program QS pool for all LLP
licenses, with and without transferable
AI endorsements, is the sum of the sum
of the QS units assigned to all LLP
licenses in metric tons based on the
PCTC Program official record as of
December 31, 2022.
(4) Calculation of PCTC Program QS
allocation to processors. NMFS will
assign a specific amount of Pacific cod
QS units to each eligible processor
based on the Pacific cod legal landings
delivered to each FPP or FFP using
information from the PCTC Program
official record according to the
following procedures:
(i) Sum the Pacific cod legal landings
delivered to each FPP or FFP for each
calendar year from 2009 through 2019;
(ii) Select the ten calendar years that
yield the highest amount of legal
landings delivered to each FPP or FFP,
including years with zero metric tons if
necessary;
(iii) Sum the Pacific cod legal
landings of the highest 10 years for each
FPP or FFP. This yields the QS units for
each eligible processor, which will be
specified on a PCTC Program Processor
Permit for that processor;
(iv) The PCTC Program QS pool for
processors is the sum of all QS units
assigned to processors in metric tons
based on the PCTC official record as of
December 31, 2022.
(j) Transfer of PCTC Program QS.
(1) Transfer of an LLP license with
PCTC Program QS. A person may
transfer an LLP license and any PCTC
Program QS assigned to that LLP license
under the provisions in § 679.4(k)(7),
provided that the LLP license is not
assigned PCTC Program QS in excess of
the ownership cap specified in
§ 679.133 at the time of transfer.
(2) Transfer of PCTC Program QS
assigned to LLP licenses that exceeds
PCTC Program QS ownership caps.
(i) If an LLP license receives an initial
allocation of QS that exceeds an
ownership cap specified in § 679.133(a),
upon transfer of the LLP license, the
LLP license holder may transfer the
amount of QS in excess of the
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8625
ownership cap separately from the LLP
license and assign it to one or more LLP
licenses. However, a transfer will not be
approved by NMFS if that transfer
would cause the receiving LLP license
to exceed an ownership cap specified in
§ 679.133(a).
(ii) Prior to the transfer of an LLP
license that received an initial
allocation of QS that exceeds an
ownership cap specified in § 679.133(a),
the LLP license holder must transfer the
QS that is in excess of the ownership
cap separately from that LLP license and
assign it to one or more LLP licenses.
On completion of the transfer of QS, the
LLP license that was initially allocated
an amount of QS in excess of the
ownership cap may not exceed any
ownership cap specified in § 679.133(a).
(iii) Any QS associated with the LLP
license that is in excess of the
ownership cap may be transferred only
if an application to transfer LLP licenses
is approved as specified in § 679.4(k)(7).
(iv) QS that is transferred from an LLP
license that was initially allocated an
amount of QS in excess of the
ownership cap specified in § 679.133(a)
and assigned to another LLP license
may not be severed from the receiving
LLP license.
(3) Transfer of processor PCTC
Program QS Permits. A person may
transfer a PCTC Program QS Permit to
another processor eligible to hold that
permit and any QS assigned to that
permit provided that the permit is not
assigned QS in excess of the ownership
cap specified in § 679.133(a) at the time
of transfer. PCTC Program QS may be
severed from a PCTC Program QS
permit at the time of transfer if the
transfer of the PCTC Program QS permit
would otherwise result in a transferee
exceeding an ownership cap. A PCTC
Program QS Permit held by a processor
and associated QS may be transferred
only if the application for transfer of
PCTC Program QS Permit is filled out
entirely.
(4) Transfer of PCTC Program QS
assigned to a processor-held PCTC
Program QS Permit that exceeds PCTC
Program ownership caps.
(i) If a PCTC Program QS Permit
receives an initial allocation of QS that
exceeds an ownership cap specified in
§ 679.133(a), the processor may transfer
QS in excess of the ownership cap
separately from that PCTC Program QS
Permit and assign it to the PCTC
Program QS Permit of one or more
eligible processors. However, a transfer
may not be approved by NMFS if that
transfer would cause the receiving
processor to exceed an ownership cap
specified in § 679.133(a).
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(ii) Prior to the transfer of a PCTC
Program QS Permit that received an
initial allocation of QS that exceeds an
ownership cap specified in § 679.133(a),
the permit holder must transfer the QS
that is in excess of the ownership cap
separately from that PCTC Program QS
Permit and assign it to one or more
PCTC Program QS Permits. On
completion of the transfer of QS, the
PCTC Program QS Permit that was
initially allocated an amount of QS in
excess of the ownership cap may not
exceed any ownership cap specified in
§ 679.133(a).
(iii) Any QS associated with the PCTC
Program QS Permit held by a processor
that is in excess of an ownership cap
may be transferred only if the
application for transfer of PCTC
Program QS Permit is filled out entirely.
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§ 679.131 PCTC Program annual harvester
privileges.
(a) Assigning PCTC Program CQ to a
PCTC cooperative.
(1) General. (See also § 679.4(q)).
(i) Every calendar year, PCTC Program
QS assigned to LLP licenses and PCTC
Program QS Permits held by a PCTC
Program processor must be assigned to
a PCTC cooperative as a CQ permit to
use the CQ derived from that PCTC QS
to catch, process, or receive Pacific cod,
crab PSC, or halibut PSC assigned to the
PCTC Program.
(ii) NMFS will assign CQ permit to a
PCTC Program cooperative based on the
aggregate QS of all LLP licenses and
associated processors designated on an
application for CQ that is approved by
the Regional Administrator as described
under paragraph (a)(4) of this section.
(iii) Eligible processors must be
associated with a PCTC Program
cooperative for the QS assigned to that
processor’s PCTC Program QS Permit to
be issued to a PCTC Program
cooperative as CQ.
(2) PCTC Program QS issued after
issuance of CQ or Pacific cod trawl
catcher vessel sector TAC. Any PCTC
Program QS on an LLP license or PCTC
Program QS Permit assigned to a PCTC
QS holder after NMFS has issued CQ for
a calendar year, will not result in any
additional CQ being issued to a PCTC
cooperative if that QS holder has
assigned their QS to a PCTC Program
cooperative for that calendar year.
(3) Failure to designate QS to a PCTC
Program cooperative. Failure to
designate an LLP license with PCTC
Program QS or a PCTC Program QS
Permit on a timely and complete
application for CQ that is approved by
the Regional Administrator as described
under paragraph (a)(4) of this section,
will result in the Regional
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Administrator not assigning that QS to
a PCTC Program cooperative for the
applicable calendar year.
(4) Application for PCTC Program CQ.
PCTC Program cooperatives must
submit a complete application by
November 1 to receive PCTC Program
CQ and identify the following:
(i) PCTC Program cooperative
identification, including but not limited
to the name of the cooperative and the
taxpayer identification number;
(ii) PCTC Program QS holders and
ownership documentation;
(iii) PCTC Program cooperative
member vessels and LLP licenses;
(iv) PCTC Program cooperative
associated processors;
(v) Vessels on which the CQ issued to
the PCTC Program cooperative will be
used;
(vi) Certification of cooperative
representative;
(vii) Attach a copy of the membership
agreement or contract that includes the
following terms:
(A) How the cooperative intends to
catch its PCTC Program CQ;
(B) The obligations of QS holders who
are members of a PCTC Program
cooperative to ensure the full payment
of PCTC Program fee liabilities that may
be due;
(C) How cooperatives monitor and
report leasing activity into GOA
fisheries; and
(D) A cooperative intending to harvest
any amount of the CQ set-aside must
provide the cooperative’s plan for
coordinating harvest and delivery of the
CQ set-aside with an Aleutian Islands
shoreplant as defined in § 679.2.
(viii) Each year, all cooperatives must
establish an inter-cooperative
agreement. This inter-cooperative
agreement must be provided as part of
each annual cooperative application and
is required before NMFS will issue CQ.
The inter-cooperative agreement must
establish how the cooperatives intend to
harvest the CQ set-aside in years when
it applies and ensure harvests in the BS
do not exceed the minimum set-aside as
specified in § 679.132(a)(4)(i).
(b) Allocations of PCTC Program
Pacific cod.
(1) General. Each calendar year, the
Regional Administrator will determine
the amount of the BSAI trawl catcher
vessel sector’s Pacific cod A and B
season allocations that will be assigned
to the PCTC Program as follows:
(i) Incidental catch allowance (ICA).
For the A and B seasons, the Regional
Administrator will establish an ICA to
account for projected incidental catch of
Pacific cod by trawl catcher vessels
engaged in directed fishing for
groundfish other than PCTC Program
Pacific cod.
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(ii) Directed fishing allowance (DFA).
The remaining trawl catcher vessel
sector’s Pacific cod A and B season
allocations are established as a DFA for
the PCTC Program.
(2) Calculation.
(i) Determination of Pacific cod trawl
catcher vessel TAC allocated to the
PCTC Program. NMFS will determine
the Pacific cod trawl catcher vessel TAC
in a calendar year in the annual harvest
specification process in § 679.20.
(ii) Annual apportionment of Pacific
cod trawl catcher vessel TAC. The
annual apportionment of Pacific cod in
the A and B seasons between the PCTC
Program DFA and the ICA in a given
calendar year is established in the
annual harvest specifications.
(3) Allocations of Pacific Cod DFA to
PCTC Program.
(i) Harvester Percentage of DFA.
NMFS will assign 77.5 percent of the
PCTC Program DFA to the QS attached
to LLP licenses assigned to PCTC
Program cooperatives. Each LLP
license’s QS units will correspond to a
portion of the DFA according to the
following equation: (LLP license QS
units/(sum of all LLP license QS units))
× (.775 × DFA).
(ii) Processor Percentage of DFA.
NMFS will assign 22.5 percent of the
PCTC Program DFA to the QS attached
to PCTC Program QS Permits assigned
to PCTC Program cooperatives. Each QS
Permit’s QS units will correspond to a
portion of the DFA according to the
following equation: (PCTC Program QS
permit QS units/(sum of all PCTC
Program QS permit QS units)) × (.225 ×
DFA).
(4) Allocation of CQ to PCTC Program
cooperatives—
(i) General. Annual CQ will be issued
to each cooperative by NMFS based on
the aggregate QS attached to LLP
licenses and PCTC Program QS permits
that are assigned to the cooperative.
NMFS will issue CQ by A and B season
and cooperatives will ensure the
seasonal limits are not exceeded.
Unused A season CQ may be rolled over
to the B season. Annual CQ may be
harvested from either BS or AI subareas.
(ii) CQ allocation for PCTC Program.
The amount of CQ that is assigned to a
PCTC Program cooperative is expressed
algebraically as follows:
CQ derived from QS assigned to LLP
holders = [(.775 × DFA) × (Total LLP
license QS units assigned to that
cooperative/sum of all LLP license
QS units)]
CQ derived from QS assigned to FFP
and FPP holders = [(.225 × DFA) ×
(Total PCTC Program Permit QS
units assigned to that cooperative/
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sum of all PCTC Program QS permit
QS units)]
The total CQ assigned to that
cooperative = CQ derived from LLP
license holders + CQ derived from
PCTC Program QS permit holders
(iii) Issuance of CQ. A and B season
trawl catcher vessel Pacific cod sector
DFAs will be allocated to cooperatives
as CQ. Annual CQ for each PCTC
Cooperative will be issued separately as
A and B season CQ.
(iv) AI set-aside. When in effect, the
AI set-aside will be established annually
as specified further at § 679.132.
(c) Halibut PSC.
(1) Halibut PSC limit for the PCTC
Program. The overall halibut PSC limit
for the PCTC Program for each calendar
year is specified in the harvest
specifications pursuant to the
procedures specified at § 679.21(b). That
halibut PSC limit is then assigned to
cooperatives pursuant to paragraph
(a)(1)(i) of this section.
(i) Multiply the halibut PSC limit
apportioned to the BSAI trawl limited
access sector’s Pacific cod fishery
category by 98 percent, which yields the
halibut PSC apportioned to the trawl
catcher vessel sector. The remaining 2
percent is apportioned to the AFA
catcher/processor sector as specified in
§ 679.21(b)(4).
(ii) Assign 95 percent of the trawl
catcher vessel sector’s halibut PSC limit
to the A and B seasons and 5 percent to
the C season.
(iii) Each year after apportioning
halibut PSC to the trawl catcher vessel
sector for the A and B season, apply one
of the following reductions to the A and
B season trawl catcher vessel halibut
PSC limit to determine the overall PCTC
Program halibut PSC limit:
(A) In the first year of the PCTC
Program, reduce the A and B season
halibut PSC limit by 12.5 percent.
(B) In the second year, and each year
thereafter, reduce the A and B season
halibut PSC limit by 25 percent.
(2) Halibut PSC assigned to each
PCTC Program cooperative. For each
calendar year, the amount of halibut
PSC assigned to a cooperative is
determined by the following procedure
and the amount will be specified on the
CQ permit:
(i) Divide the amount of PCTC
Program CQ units assigned to each
PCTC Program cooperative by the
amount of CQ allocated to all
cooperatives. This yields the percentage
of PCTC Program CQ units held by each
cooperative.
(ii) Multiply the overall PCTC
Program halibut PSC limit by the
percentage of the PCTC Program CQ
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assigned to a cooperative. This yields
the amount of halibut PSC issued to that
cooperative as CQ.
(3) Use of halibut PSC in the PCTC
Program. Halibut PSC limits assigned to
the PCTC Program may only be used by
the members of the PCTC Program. A
halibut PSC limit is assigned to the CQ
permit issued to a cooperative for use
while harvesting CQ in the BSAI. Any
halibut PSC used by a cooperative must
be deducted from the amount of halibut
PSC on its CQ permit. A halibut PSC
limit on a CQ permit may be used only
by the members of the cooperative to
which it is assigned. Halibut PSC limits
for cooperatives are not subject to
seasonal apportionment under § 679.21.
Halibut PSC limits are issued to the
PCTC Program for the duration of the A
and B seasons. Halibut PSC limits may
be reapportioned to the C season.
(d) Allocations of crab PSC.
(1) Crab PSC limits for the PCTC
Program. The overall crab PSC limit for
the PCTC Program for each calendar
year is specified in the harvest
specifications pursuant to the
procedures specified at § 679.21(e). That
crab PSC limit is then assigned to
cooperatives with CQ pursuant to
paragraph (a)(1)(i) of this section.
(i) Multiply the crab PSC limit
apportioned to the BSAI trawl limited
access sector’s Pacific cod fishery
category by 90.6 percent, which yields
the percentage of crab PSC apportioned
to the trawl catcher vessel sector. The
remaining 9.4 percent goes to the AFA
catcher/processor sector as specified in
§ 679.21(b)(4).
(ii) Assign 95 percent of the trawl
catcher vessel sector’s crab PSC limit to
the A and B seasons and 5 percent to the
C season.
(iii) Reduce the A and B season trawl
catcher vessel crab PSC limit by 35
percent to determine the overall PCTC
Program crab PSC limit.
(2) Crab PSC assigned to each PCTC
Program cooperative. For each calendar
year, the amount of crab PSC limit
assigned to a cooperative is determined
by the following procedure and the
amount will be specified on the CQ
permit:
(i) Divide the amount of PCTC
Program CQ assigned to each PCTC
Program cooperative by the total CQ
assigned to all cooperatives. This yields
the percentage of PCTC Program CQ
held by that cooperative.
(ii) Multiply the overall PCTC
Program crab PSC limit by the
percentage of the PCTC Program CQ
pool assigned to a cooperative. This
yields the crab PSC limit issued to that
cooperative as CQ.
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8627
(3) Use of crab PSC in the PCTC
Program. Crab PSC limits assigned to
the PCTC Program may only be used by
the members of the PCTC Program. A
crab PSC limit is assigned to the CQ
permit issued to a PCTC Program
cooperative for use while harvesting CQ
in the BSAI. Any crab PSC used by a
cooperative must be deducted from the
amount of crab PSC limit on its CQ
permit. A crab PSC limit on a CQ permit
may be used only by the members of the
cooperative to which it is assigned. Crab
PSC limits for cooperatives are not
subject to seasonal apportionment under
§ 679.21. Crab PSC limits are issued to
the PCTC Program for the duration of
the A and B seasons. Crab PSC limits
may be reapportioned to the C season.
(e) Transfer of PSC Limits. Halibut
and crab PSC limits are transferable
between cooperatives according to the
same rules established for CQ at
§ 679.130(g)(4).
(f) Non-allocated Groundfish species.
The PCTC Program allocations are for
directed fishing for Pacific cod by trawl
catcher vessels. All groundfish species
not allocated to PCTC Program
cooperatives are managed to the
maximum retainable amounts (MRAs),
as described under § 679.20(e).
(g) Rollover of Pacific cod. If, after
June 10, the Regional Administrator
determines that reallocating a portion of
the Pacific cod ICA or DFA from the
PCTC Program to the BSAI trawl limited
access sector C season is appropriate,
the Regional Administrator may do so
through notification in the Federal
Register consistent with regulations at
§ 679.20(a)(7)(iii).
(h) Rollover of PSC to the C Season.
If, after June 10, the Regional
Administrator determines that
reallocating a portion of the halibut or
crab PSC limits from the PCTC Program
to the BSAI trawl limited access sector
C season is appropriate, the Regional
Administrator may do so through
notification in the Federal Register
consistent with regulations at
§ 679.91(f)(4) and (5).
(i) Process for inter-cooperative
transfer of PCTC Program CQ. NMFS
will process an application on eFish for
an online inter-cooperative transfer of
CQ, including PSC, provided that all
information is completed by the
transferor and transferee, with all
applicable fields accurately filled in,
and all required documentation is
provided.
(j) PCTC Program cooperative—
(1) General. This section governs the
formation and operation of PCTC
Program cooperatives. The regulations
in this section apply only to PCTC
Program cooperatives that have formed
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for the purpose of applying for and
fishing with CQ issued annually by
NMFS. PCTC Program cooperatives and
cooperative members are responsible for
ensuring the conduct of cooperatives is
consistent with any relevant state or
Federal antitrust laws. Membership in a
cooperative is voluntary. No person may
be required to join a cooperative. Any
LLP license holder with PCTC Program
QS may join a PCTC Program
cooperative and assign their QS to that
cooperative. Members may leave a
cooperative, but any CQ derived from
the QS held by that member will remain
with that cooperative for the duration of
the calendar year.
(2) Legal and organizational
requirements. A PCTC Program
cooperative must meet the following
legal and organizational requirements
before it is eligible to receive CQ:
(i) Each PCTC Program cooperative
must be formed as a partnership,
corporation, or other legal business
entity that is registered under the laws
of one of the 50 states or the District of
Columbia;
(ii) Each PCTC Program cooperative
must appoint an individual as the
designated representative to act on the
cooperative’s behalf and to serve as a
contact point for NMFS for questions
regarding the operation of the
(i) Who may join or associate with a PCTC Program
cooperative?
(ii) What is the minimum number of LLP licenses required to form a cooperative?
(iii) How many unique LLP license holders are required to form a cooperative?
(iv) Is there a minimum amount of PCTC Program QS
units that must be assigned to a PCTC Program cooperative?
(v) What is allocated to the PCTC Program cooperatives?
(vi) Is this CQ an exclusive catch and use privilege?
(vii) Is there a period in a calendar year during which
PCTC Program cooperative vessels may catch Pacific cod?
(viii) Can any vessel catch a PCTC Program cooperative’s Pacific cod?
(ix) Can a member of a PCTC Program cooperative
transfer CQ individually without the approval of
the other members of the cooperative?
(x) Are GOA sideboard limits assigned to specific
persons or PCTC Program cooperatives?
(xi) Can PCTC Program QS assigned to an LLP license
or QS held by processors be assigned to more than
one PCTC Program cooperative in a calendar year?
(xii) Which members may catch the PCTC Program
cooperative’s CQ?
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(xiii) Does a PCTC Program cooperative need a membership agreement or contract?
(xiv) What happens if the PCTC Program cooperative
membership agreement or contract is modified during the fishing year?
(xv) What happens if the cooperative exceeds its CQ
amount?
(xvi) Is there a limit on how much CQ a PCTC Program cooperative may hold or use?
(xvii) Is there a limit on how much Pacific cod a vessel may catch?
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cooperative. The designated
representative may be a member of the
cooperative, or some other individual
designated by the cooperative to act on
its behalf;
(iii) Each PCTC Program cooperative
must submit a timely and complete
application for CQ; and
(iv) Each PCTC Program cooperative
must meet the mandatory requirements
established in paragraph (j)(3) of this
section applicable to that PCTC Program
cooperative.
(3) Mandatory requirements. The
following table describes the
requirements to form a PCTC Program
cooperative:
Any PCTC Program QS holder named on a timely and complete application for CQ
for that calendar year that is approved by NMFS. Individuals who are not QS
holders may be employed by, or serve as the designated representative of, a cooperative, but cannot be members of the cooperative. Any processor may associate with a cooperative.
A minimum of three LLP licenses are needed to form a cooperative.
There is no minimum number of unique LLP license holders required to form a cooperative.
No.
A and B season CQ for Pacific cod, halibut PSC limits, and crab PSC limits, based
on the total QS units assigned to the cooperative by its members.
Yes, the members of the cooperative have an exclusive privilege to collectively
catch and use this CQ, or a cooperative can transfer all or a portion of this CQ to
another cooperative.
Yes, any cooperative vessel may harvest PCTC CQ during the during the A and B
seasons specified at § 679.130(a)(2).
No, only vessels that are listed on a PCTC Program cooperative’s application for
CQ may catch Pacific cod assigned to that cooperative.
No, only the designated representative of the cooperative, and not individual members, may transfer CQ to another cooperative, and only if that transfer is approved by NMFS.
Existing sideboard limits apply to individual vessels or LLP license holders, not
cooperatives.
QS assigned to an LLP license may be assigned to only one cooperative in a calendar year. Multiple QS permits or LLP licenses held by a single person are not
required to be assigned to the same cooperative. A processor may associate with
more than one cooperative and any QS held by the processor would be divided
between the associated cooperatives in the same proportion as the CQ derived
from the LLP licenses.
Use of a cooperative’s CQ is determined by the cooperative contract signed by its
members. Any violations of this contract by a cooperative member may be subject to civil claims by other members of the cooperative.
Yes, a cooperative must have a membership agreement or contract. A copy of this
agreement or contract must be submitted to NMFS with the application for CQ.
The membership agreement or contract must specify: (A) How the cooperative
intends to catch its CQ; and (B) The obligations of QS holders, who are members
of a cooperative, to ensure the full payment of fee liabilities that may be due.
A copy of the amended membership agreement or contract must be sent to NMFS
in accordance with § 679.131.
A cooperative is not authorized to catch Pacific cod or use halibut or crab PSC limits in excess of the amount on its CQ permit. Exceeding a CQ permit is a violation of the regulations. Each member of the cooperative is jointly and severally
liable for any violations of the PCTC Program regulations while fishing under the
authority of a CQ permit. This liability extends to any persons who are hired to
catch or receive Pacific cod assigned to a cooperative.
No, but each QS holder is subject to ownership caps, and a vessel may be subject
to vessel use caps. See § 679.133.
Yes, generally a vessel may not catch more than 5 percent of the Pacific cod assigned to the PCTC Program for that calendar year. See § 679.133 for use cap provisions.
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(xviii) Are there any special reporting requirements?
(xix) Is there a requirement that a PCTC Program cooperative pay PCTC Program cost recovery fees?
(xx) Is there any restriction on deliveries of PCTC
Program CQ?
The designated representative of the cooperative may submit an annual PCTC Program cooperative report to the North Pacific Fishery Management Council.
Yes, see § 679.135 for the provisions that apply. PCTC Program cooperatives are responsible for paying cost recovery fees.
Sometimes, if the CQ AI set-aside is in effect for the fishing year as specified in
§ 679.132. Cooperatives must establish, through an inter-cooperative agreement,
how 12 percent of the BSAI A season CQ will be set aside for delivery to an
Aleutian Islands shoreplant.
fishing for non-CDQ Pacific cod for
other sectors.
(4) Calculation of the Aleutian Islands
Set-aside. Each year, during the annual
harvest specifications process set forth
at § 679.20(c), the Regional
Administrator will specify the AI setaside, which will be an amount of
Pacific cod equal to the lesser of either
the AI Pacific cod non-CDQ DFA or 12
percent of the BSAI PCTC Program A
season CQ.
(b) Annual notification of intent to
process Aleutian Islands Pacific cod –
(1) Submission of notification. The
provisions of this section will apply if
§ 679.132 Aleutian Islands set-aside
either a representative of the City of
provisions in the PCTC Program.
Adak or the City of Atka submits to the
(a) Aleutian Islands set-aside
Regional Administrator a timely and
provisions in the PCTC Program.
complete notification of its intent to
(1) Calculation of the Aleutian Islands process PCTC Program Pacific cod
during the upcoming fishing year.
Pacific cod non-CDQ ICA and DFA.
(2) Submission method and deadline.
Each year, during the annual harvest
The notification of intent to process
specifications process set forth at
PCTC Program Pacific cod for the
§ 679.20(c), the Regional Administrator
will specify the AI Pacific cod non-CDQ upcoming fishing year must be
submitted in writing to the Regional
ICA and DFA from the AI Pacific cod
Administrator by a representative of the
non-CDQ TAC and specify the AI setCity of Adak or the City of Atka no later
aside as follows.
than October 15 of each year in order for
(2) Aleutian Islands Pacific cod nonthe provisions of this section to apply
CDQ ICA. The AI Pacific cod non-CDQ
ICA will be deducted from the aggregate during the upcoming fishing year.
Notifications of intent received later
portion of Pacific cod TAC annually
than October 15 may not be accepted by
allocated to the non-CDQ sectors
the Regional Administrator.
identified in § 679.20(a)(7)(ii)(A).
(3) Contents of notification. A
(3) Aleutian Islands Pacific cod nonnotification
of intent to process PCTC
CDQ DFA. The AI Pacific cod non-CDQ
Program Pacific cod for the upcoming
DFA will be the amount of the AI
fishing year must contain the following
Pacific cod TAC remaining after
information:
subtraction of the AI Pacific cod CDQ
(i) Date of submission,
reserve and the AI Pacific cod non-CDQ
(ii) Name of city,
ICA. The Regional Administrator will
(iii) Statement of intent to process
specify the AI set-aside in either of the
PCTC Program Pacific cod,
following ways:
(iv) Identification of the fishing year
(i) The AI set-aside is 12 percent of
during which the city intends to process
the PCTC Program A season CQ and is
PCTC Program Pacific cod,
in effect during the A and B seasons.
(v) Contact information for the
(ii) If the AI non-CDQ TAC is below
representative of the city, and
12 percent of the BSAI PCTC Program
(vi) Documentation of authority to
A season CQ, then the AI set-aside will
represent the City of Adak or the City
be set equal to the AI non-CDQ DFA.
of Atka.
(4) NMFS confirmation and
When the AI set-aside is in effect and set
notification. On or before November 30,
equal to the AI non-CDQ DFA, directed
the Regional Administrator will notify
fishing for Pacific cod in the AI may
the representative of the City of Adak or
only be conducted by PCTC Program
the City of Atka, confirming receipt of
vessels that deliver their catch of AI
their official notification of intent to
Pacific cod to an Aleutian Islands
process PCTC Program Pacific cod.
shoreplant. After June 10, the Regional
Then, NMFS will announce through
Administrator may open directed
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(4) Successors-in-interest. If a member
of a PCTC Program cooperative dies (in
the case of an individual) or dissolves
(in the case of a business entity), the CQ
derived from the QS assigned to the
cooperative for that year from that
person remains under the control of the
cooperative for the duration of that
calendar year as specified in the
cooperative contract. Each cooperative
is free to establish its own internal
procedures for admitting a successor-ininterest during the fishing season due to
the death or dissolution of a cooperative
member.
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notice in the Federal Register whether
the AI set-aside will be in effect for the
upcoming fishing year.
(5) AI Set-aside Cooperative
Provisions. If the representative of the
City of Adak or the City of Atka submits
a timely and complete notification of
intent to process in accordance of this
section, then the following provisions
will apply for the fishing year following
the notification:
(i) The PCTC Program cooperative(s)
are required to set-aside an amount of
CQ calculated by the Regional
Administrator pursuant to paragraph
(a)(4) of this section for delivery to an
Aleutian Islands shoreplant as defined
at § 679.2.
(ii) All cooperatives must enter into
an inter-cooperative agreement that
describes how the AI set-aside will be
administered by the cooperatives to
ensure that the PCTC Program harvests
in the BS do not exceed the amount of
the set-aside for delivery to an Aleutian
Islands shoreplant. This intercooperative agreement must establish
how the cooperatives intend to harvest
the AI set-aside when it applies. This
inter-cooperative agreement must be
provided as part of the annual
cooperative application as specified in
§ 679.131(a)(4) and is required before
NMFS can issue CQ.
(iii) The inter-cooperative agreement
must establish how cooperatives would
ensure that trawl catcher vessels less
than 60 feet LOA assigned to an LLP
license with a transferable AI trawl
endorsement have the opportunity to
harvest 10 percent of the AI set-aside for
delivery to an Aleutian Islands
shoreplant.
(c) PCTC Program A Season Set-Aside
Limitations.
(1) If the Regional Administrator has
approved a notification of intent to
process, vessels authorized under the
PCTC Program shall not harvest the
amount of the AI set-aside in the BS
subarea.
(2) PCTC Program cooperatives may
not deliver more than the PCTC A
season CQ minus the AI set-aside
established under § 679.132 to
processors in the BS subarea when the
AI set-aside is in effect.
(3) If an Aleutian Islands shoreplant is
not able to receive deliveries of Pacific
cod under the PCTC Program, then the
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City of Adak or the City of Atka may
withdraw their annual notification of
intent to process prior to the end of B
season.
(4) As soon as practicable, if the
Regional Administrator determines that
Aleutian Islands shoreplants authorized
under the PCTC Program will not
process the entire AI set-aside, the
Regional Administrator may remove the
delivery requirement for some or all of
the projected unused AI set-aside to
PCTC cooperatives in proportion to the
amount of CQ that each PCTC
cooperative received in the initial
allocation of CQ for the remainder of the
A and B season by inseason notification
published in the Federal Register.
(i) If the City of Adak or the City of
Atka withdraws its intent to process, the
Regional Administrator will release the
unused AI set-aside to PCTC
cooperatives in proportion to the
amount of CQ that each PCTC
cooperative received in the initial
allocation of CQ for that calendar year
by inseason notification published in
the Federal Register.
(ii) Following a withdrawal of an
intent to process, the Regional
Administrator will announce through
notice in the Federal Register that the
AI set-aside will not be in effect for the
remainder of the PCTC Program fishing
year.
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§ 679.133 PCTC Program use caps and
sideboard limits.
(a) Ownership and use caps. (1)
General.
(i) Ownership caps limit the amount
of QS that may be owned by an eligible
harvester or eligible processor and their
affiliates. Use caps limit the amount of
CQ that may be harvested by a vessel or
received and processed by a processor.
(ii) Use caps do not apply to halibut
or crab PSC CQ.
(iii) Ownership and use may not be
exceeded unless the entity subject to the
cap is specifically allowed to exceed a
cap according to the criteria established
under paragraph (a)(6) of this section.
(iv) All QS ownership caps are a
percentage of the initial QS pool
established by NMFS in § 679.130(e).
(v) The CQ processing use cap is a
percentage of the total amount of CQ
issued to cooperatives during a calendar
year.
(vi) The vessel use cap is a percentage
of the amount of CQ assigned to the
PCTC Program during a calendar year.
(2) Harvester ownership cap. A person
may not individually or collectively
own more than 5 percent of the QS
initially assigned to harvesters unless
that person qualifies for an exemption to
this ownership cap under paragraph
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(a)(6) of this section based on their
qualifying catch history. Processorissued QS does not count toward this
ownership cap.
(3) Vessel use cap. A catcher vessel
may not harvest an amount of CQ
greater than 5 percent of the CQ issued
to the PCTC Program during a calendar
year unless that vessel qualifies for an
exemption to this use cap under
paragraph (a)(6) of this section based on
their qualifying catch history.
(4) Processor ownership cap. A person
may not individually or collectively
own more than 20 percent of the QS
initially assigned to processors unless
that person qualifies for an exemption to
this ownership cap under paragraph
(a)(6) of this section based on their
qualifying processing history.
(5) Processing use cap. A processor, at
the firm or company level, may not
process more than 20 percent of the CQ
assigned to the PCTC Program during a
calendar year unless that processor
qualifies for an exemption to this use
cap under paragraph (a)(6) of this
section based on their qualifying
processing history. The amount of CQ
that is received by a PCTC Program
processor is calculated based on the
sum of all landings made with CQ
received or processed by that processor
and the CQ received or processed by
any person affiliated with that processor
as that term is defined in § 679.2.
(6) Ownership exemptions.
(i) Harvester ownership cap
exemption. A person may receive an
initial allocation of Pacific cod QS in
excess of the harvester ownership cap.
This exemption is non-transferrable.
(ii) Processor ownership cap
exemption. A person may receive an
initial allocation of Pacific cod QS in
excess of the processor ownership cap.
This exemption is non-transferrable.
(iii) Vessel use cap exemption. A
vessel designated on an LLP that
received an initial allocation of Pacific
cod QS in excess of the harvester
ownership cap may harvest CQ in
excess of the vessel use cap up to an
amount of CQ proportional to the
amount of CQ resulting from QS
assigned to the LLP. This exemption is
non-transferrable.
(iv) Processor use cap exemption. A
processor that received an initial
allocation of Pacific cod QS in excess of
the processor ownership cap may
process more than 20 percent of PCTC
Program CQ during a calendar year up
to an amount of CQ proportional to the
ratio of QS held by the processor over
the total amount of QS held by
processors. This exemption is nontransferrable.
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(7) Transfer limitations. An eligible
harvester that receives an initial
allocation of Pacific cod QS that exceeds
the ownership cap listed in paragraph
(a)(2) of this section shall not receive
any Pacific cod QS by transfer unless
and until the eligible harvester’s
holdings of Pacific cod QS in the PCTC
Program are reduced to an amount
below the use cap specified in
paragraph (a) of this section.
(b) Sideboard limits—General. The
regulations in this section restrict the
holders of LLP licenses issued PCTC
Program QS from using the increased
flexibility provided by the PCTC
Program to expand their level of
participation in GOA groundfish
fisheries.
(1) Sideboard limit restrictions for LLP
licenses authorizing AFA non-exempt
catcher vessels. LLP licenses that
authorize AFA non-exempt catcher
vessels will be subject to the sideboard
limitations specified at § 679.64(b)(4)(i).
(2) At-Sea Processing Sideboard Limit.
A sideboard limit will be specified on
each LLP license with a BSAI Pacific
cod trawl mothership endorsement.
Each LLP license with a BSAI Pacific
cod trawl mothership endorsement may
receive PCTC Program CQ deliveries
from a catcher vessel not to exceed 125
percent of a catcher/processor’s
processing history as defined in
§ 679.130 or 125 percent of the catch
history from LLP licenses that are
owned (in excess of 75 percent) directly
or indirectly by the owner of a catcher/
processor eligible for the PCTC Program,
up to 125 percent of their processing
history.
§ 679.134 PCTC Program permits, catch
monitoring, catch accounting, and
recordkeeping and reporting.
(a) Permits. For permit information,
please see § 679.4(q).
(b) Catch monitoring requirements for
PCTC Program catcher vessels. The
owner or operator of a catcher vessel
must ensure the vessel complies with
the observer coverage requirements
described in § 679.51(a)(2) at all times
the vessel is participating in a
cooperative.
(c) Catch monitoring requirements for
motherships receiving unsorted codends
from a PCTC Program catcher vessel. (1)
Catch weighing. All catch, except
halibut sorted on deck by vessels
participating in the halibut deck sorting
described at § 679.120, must be weighed
on a NMFS-approved scale in
compliance with the scale requirements
at § 679.28(b). Each haul must be
weighed separately and all catch must
be made available for sampling by an
observer.
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(2) Additional catch monitoring
requirements. Comply with catch
monitoring requirements specified
at§ 679.93(c).
(d) Catch monitoring requirements for
shoreside processors. All groundfish
landed by catcher vessels described in
§ 679.51(a)(2) must be sorted, weighed
on a scale approved by the State of
Alaska as described in § 679.28(c), and
be made available for sampling by an
observer, NMFS staff, or any individual
authorized by NMFS. Any of these
persons must be allowed to test any
scale used to weigh groundfish to
determine its accuracy.
(e) Catch accounting. (1) Pacific cod.
All Pacific cod harvests by a vessel that
is named on an LLP license assigned to
a PCTC Program cooperative and fishing
under a CQ permit will be debited
against the CQ for that cooperative
during the PCTC Program fishing
seasons as defined in § 679.130(a)(2).
(2) PCTC Program halibut and crab
PSC. All halibut and crab PSC in the
PCTC Program used by a vessel that is
named on an LLP license assigned to a
cooperative and fishing under a CQ
permit will be debited against the CQ
for that cooperative during the PCTC
Program fishing seasons as defined in
§ 679.130(a)(2).
(3) Groundfish sideboard limits. All
groundfish harvests in the BSAI and
GOA that are subject to a sideboard
limit for that groundfish species as
described under § 679.133(c), except
groundfish harvested by a vessel when
participating in the Central GOA
Rockfish Program, will be debited
against the applicable sideboard limit.
(f) Recordkeeping and reporting. The
owners and operators of catcher vessels
and processors authorized as
participants in the PCTC Program must
comply with the applicable
recordkeeping and reporting
requirements of this section and must
assign all catch to a PCTC Program
cooperative as applicable at the time of
catch or receipt of Pacific cod. All
owners of catcher vessels and
processors authorized as participants in
the PCTC Program must ensure that
their designated representatives or
employees comply with all applicable
recordkeeping and reporting
requirements.
(1) Logbook.
(i) DFL. Operators of catcher vessels
participating in the PCTC Program
fishery must maintain a daily fishing
logbook for trawl gear as described in
§ 679.5.
(ii) ELB. Operators of a catcher/
processor designated on an LLP license
with a BSAI Pacific cod trawl
mothership endorsement must use a
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combination of NMFS-approved
catcher/processor trawl gear ELB and
eLandings to record and report
groundfish and PSC information as
described in § 679.5 to record PCTC
Program landings and production.
(2) eLandings. Managers of shoreside
processors that receive Pacific cod in
the PCTC Program must use eLandings
or NMFS-approved software as
described in § 679.5(e) to record PCTC
Program landings and production.
(3) Production reports. Operators of a
catcher/processor designated on an LLP
license with a BSAI Pacific cod trawl
mothership endorsement that receives
and purchases landings of PCTC CQ
must submit a production report as
described in § 679.5(e)(10).
(4) Product transfer report (PTR),
processors. Operators of a catcher/
processor designated on an LLP license
with a BSAI Pacific cod trawl
mothership endorsement and managers
of shoreside processors that receive and
purchase landings of PCTC Program CQ
must submit a PTR as described in
§ 679.5(g).
(5) Vessel monitoring system (VMS)
requirements. Operators of catcher
vessels assigned to a PCTC cooperative
or that are subject to sideboard limits
detailed in § 679.134 must use
functioning VMS equipment as
described at § 679.28(f) at all times
when operating in a reporting area off
Alaska during the A and B season.
(6) PCTC Program cost recovery fee
submission (See § 679.135).
(7) Pacific cod Ex-vessel Volume and
Value Report. A processor that receives
and purchases landings of PCTC CQ
must submit annually to NMFS a
complete Pacific cod Ex-vessel Volume
and Value Report, as described in
§ 679.5(u) for each reporting period for
which the PCTC processor receives
PCTC CQ.
§ 679.135
PCTC Program cost recovery.
(a) Cost recovery fees.
(1) Responsibility. Each PCTC
Program cooperative must comply with
the requirements of this section.
(i) Subsequent transfer of CQ or QS
held by PCTC cooperative members
does not affect the cooperative’s liability
for noncompliance with this section.
(ii) Non-renewal of a CQ permit does
not affect the cooperative’s liability for
noncompliance with this section.
(iii) Changes in the membership in a
PCTC cooperative, such as members
joining or departing during the relevant
year, or changes in the amount of QS
holdings of those members does not
affect the cooperative’s liability for
noncompliance with this section.
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8631
(2) Fee collection. PCTC Program
cooperatives that receive CQ are
responsible for submitting the cost
recovery payment for all CQ landings
made under the authority of their CQ
permit.
(3) Payment.
(i) Payment due date. A cooperative
representative must submit any cost
recovery fee liability payment(s) no later
than August 31 following the calendar
year in which the CQ landings were
made.
(ii) Payment recipient. Make
electronic payment payable to NMFS.
(iii) Payment address. Submit
payment and related documents as
instructed on the NMFS Alaska Region
website as defined at § 679.2.
(iv) Payment method. Payment must
be made electronically in U.S. dollars
using an approved payment method
available on the payment website.
(b) Pacific cod standard ex-vessel
value determination and use. NMFS
will use the standard prices calculated
for Pacific cod based on information
provided in the Pacific Cod Ex-vessel
Volume and Value Report described at
§ 679.5(u)(1) from the previous calendar
year.
(c) PCTC Program fee percentage.
(1) Established percentage. The fee
percentage is the amount as determined
by the factors and methodology
described in paragraph (c)(2) of this
section. This amount will be announced
by publication in the Federal Register.
This amount must not exceed 3.0
percent of the gross ex-vessel value
pursuant to 16 U.S.C. 1854(d)(2)(B).
(2) Calculating fee percentage value.
Each year NMFS shall calculate and
publish the fee percentage according to
the following factors and methodology:
(i) Factors. NMFS must use the
following factors to determine the fee
percentage:
(A) The catch to which the PCTC
Program cost recovery fee will apply;
(B) The ex-vessel value of that catch;
and
(C) The costs directly related to the
management, data collection, and
enforcement of the PCTC Program.
(ii) Methodology. NMFS must use the
following equations to determine the fee
percentage:
100 × DPC/V
where:
DPC = the direct program costs for the PCTC
Program for the previous calendar year
with any adjustments to the account
from payments received in the previous
year.
V = total of the standard ex-vessel value of
the catch subject to the PCTC cost
recovery fee liability for the current year.
(3) Publication.
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(i) General. Following the fishing
season in which the PCTC CQ landings
were made, NMFS shall calculate the
fee percentage based on the calculations
described in paragraph (c)(2) of this
section.
(ii) Effective period. The calculated
fee percentage is applied to PCTC CQ
landings made in the previous calendar
year.
(4) Applicable percentage. The CQ
permit holder must use the fee
percentage applicable at the time a
PCTC landing is debited from a CQ
allocation to calculate the cost recovery
fee liability for any retroactive payments
for CQ landed.
(5) Fee liability determination for a
cooperative.
(i) All cooperatives are subject to a fee
liability for any CQ debited from a CQ
allocation during a calendar year.
(ii) The Pacific cod fee liability
assessed to a cooperative is based on the
proportion of the standard ex-vessel
value of Pacific cod debited from a CQ
holder relative to all cooperatives
during a calendar year as determined by
NMFS.
(iii) NMFS will provide a fee liability
summary letter to all cooperative
representatives by no later than August
1 of each year. The summary will
explain the fee liability determination
including the current fee percentage,
details of CQ pounds debited from CQ
allocations by permit, species, date, and
prices.
(d) Underpayment of fee liability.
(1) Pursuant to § 679.131, no
cooperative will receive any CQ unless
that cooperative has made full payment
of cost recovery liability at the time it
applies for CQ.
(2) If a cooperative representative fails
to submit full payment for PCTC
Program cost recovery fee liability by
the date described in paragraph (a)(3) of
this section:
(i) At any time thereafter the Regional
Administrator may send an IAD to the
cooperative stating the amount of the
cooperative’s estimated fee liability that
is past due and requesting payment. If
payment is not received by the 30th day
after the date on the IAD, the agency
may pursue collection of the unpaid
fees.
(ii) The Regional Administrator may
disapprove any application to transfer
CQ to or from the cooperative in
accordance with § 679.130.
(iii) No CQ permit will be issued to
that cooperative for that following
calendar year and the Regional
Administrator may continue to prohibit
issuance of a CQ permit for any
subsequent calendar years until NMFS
receives the unpaid fees.
(iv) No CQ will be issued based on the
QS held by the members of that
cooperative to any other CQ permit for
that following calendar year.
(e) Over payment. Payment submitted
to NMFS in excess of the annual PCTC
Program cost recovery fee liability for a
cooperative will be credited against the
CQ permit holder’s future cost recovery
fee liability unless the CQ permit holder
requests the agency refund the over
payment. Payment processing fees may
be deducted from any fees returned to
the CQ permit holder.
(f) Appeals. A cooperative who
receives an IAD for incomplete payment
of a fee liability may appeal the IAD
pursuant to 15 CFR part 906.
(g) Annual report. Each year, NMFS
will publish a report describing the
PCTC Program cost recovery fee
program.
■ 12. Revise Table 40 to Part 679—
BSAI Halibut PSC Sideboard Limits for
AFA Catcher/Processors and AFA
Catcher Vessels, to read as follows:
TABLE 40 TO PART 679—BSAI HALIBUT PSC SIDEBOARD LIMITS FOR AFA CATCHER/PROCESSORS AND AFA CATCHER
VESSELS
The AFA catcher/processor halibut
PSC sideboard limit in metric tons
is . . .
In the following target species categories as defined in
§ 679.21(b)(1)(iii) and (e)(3)(iv) . . .
All target species categories ...........................................................
Pacific cod trawl ...............................................................................
Pacific cod hook-and-line or pot ......................................................
Yellowfin sole ...................................................................................
Rock sole/flathead sole/‘‘other flatfish’’ 1 .........................................
Turbot/Arrowtooth/Sablefish ............................................................
Rockfish 2 .........................................................................................
Pollock/Atka mackerel/‘‘other species’’ ............................................
13. Revise Table 56 to Part 679—GOA
Species and Species Groups for Which
Directed Fishing for Sideboard Limits
■
The AFA catcher vessel halibut
PSC sideboard limit in metric tons
is . . .
286
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
2
101
228
0
2
5
by Non-Exempt AFA Catcher Vessels is
Prohibited, to read as follows:
TABLE 56 TO PART 679—GOA SPECIES AND SPECIES GROUPS FOR WHICH DIRECTED FISHING FOR SIDEBOARD LIMITS
BY NON-EXEMPT AFA CATCHER VESSELS IS PROHIBITED
Management or regulatory area and
processing component
(if applicable)
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Species or species group
Pollock .................................................................................................................................................
Pacific cod ...........................................................................................................................................
Sablefish ..............................................................................................................................................
Shallow-water flatfish ...........................................................................................................................
Deep-water flatfish ...............................................................................................................................
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Southeast Outside District, Eastern GOA.
Eastern GOA, inshore component.
Eastern GOA, offshore component.
Western GOA.
Central GOA.
Eastern GOA.
Western GOA.
Eastern GOA.
Western GOA.
Central GOA.
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8633
TABLE 56 TO PART 679—GOA SPECIES AND SPECIES GROUPS FOR WHICH DIRECTED FISHING FOR SIDEBOARD LIMITS
BY NON-EXEMPT AFA CATCHER VESSELS IS PROHIBITED—Continued
Management or regulatory area and
processing component
(if applicable)
Species or species group
Rex sole ...............................................................................................................................................
Arrowtooth flounder .............................................................................................................................
Flathead sole .......................................................................................................................................
Pacific ocean perch .............................................................................................................................
Northern rockfish .................................................................................................................................
Shortraker rockfish ...............................................................................................................................
Dusky rockfish .....................................................................................................................................
Rougheye rockfish ...............................................................................................................................
Demersal shelf rockfish .......................................................................................................................
Thornyhead rockfish ............................................................................................................................
Other rockfish ......................................................................................................................................
Atka mackerel ......................................................................................................................................
Big skates ............................................................................................................................................
Longnose skates ..................................................................................................................................
Other skates ........................................................................................................................................
Sculpins ...............................................................................................................................................
Sharks ..................................................................................................................................................
Octopuses ............................................................................................................................................
Eastern GOA.
Western GOA.
Eastern GOA.
Western GOA.
Eastern GOA.
Western GOA.
Eastern GOA.
Western GOA.
Eastern GOA.
Western GOA.
Western GOA.
Central GOA.
Eastern GOA.
Western GOA.
Central GOA.
Eastern GOA.
Western GOA.
Central GOA.
Eastern GOA.
Southeast Outside District.
Western GOA.
Central GOA.
Eastern GOA.
Central GOA.
Eastern GOA.
GOA.
Western GOA.
Central GOA.
Eastern GOA.
Western GOA.
Central GOA.
Eastern GOA.
GOA.
GOA.
GOA.
GOA.
[FR Doc. 2023–01333 Filed 2–8–23; 8:45 am]
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Agencies
[Federal Register Volume 88, Number 27 (Thursday, February 9, 2023)]
[Proposed Rules]
[Pages 8592-8633]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-01333]
[[Page 8591]]
Vol. 88
Thursday,
No. 27
February 9, 2023
Part III
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 679
Fisheries of the Exclusive Economic Zone Off Alaska; Amendment 122 to
the Fishery Management Plan for Groundfish of the Bering Sea and
Aleutian Islands Management Area; Pacific Cod Trawl Cooperative
Program; Proposed Rule
Federal Register / Vol. 88 , No. 27 / Thursday, February 9, 2023 /
Proposed Rules
[[Page 8592]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[230118-0016]
RIN 0648-BL08
Fisheries of the Exclusive Economic Zone Off Alaska; Amendment
122 to the Fishery Management Plan for Groundfish of the Bering Sea and
Aleutian Islands Management Area; Pacific Cod Trawl Cooperative Program
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: NMFS issues a proposed rule to implement Amendment 122 to the
Fishery Management Plan (FMP) for Groundfish of the Bering Sea and
Aleutian Islands Management Area (BSAI). Amendment 122 would establish
the Pacific Cod Trawl Cooperative Program (PCTC Program or Program) to
allocate Pacific cod harvest quota to qualifying groundfish License
Limitation Program (LLP) license holders and qualifying processors. The
PCTC Program would be a limited access privilege program (LAPP) for the
harvest of Pacific cod in the BSAI trawl catcher vessel (CV) sector.
This proposed action is necessary to increase the value of the fishery,
minimize bycatch to the extent practicable, provide for the sustained
participation of fishery-dependent communities, ensure the
sustainability and viability of the resource, and promote safety and
stability in the harvesting and processing sectors. This action is
intended to promote the goals and objectives of the Magnuson-Stevens
Fishery Conservation and Management Act (Magnuson-Stevens Act), the
BSAI FMP, and other applicable law.
DATES: Submit comments on or before March 13, 2023.
ADDRESSES: You may submit comments, identified by NOAA-NMFS-2022-0072,
by any of the following methods:
Electronic Submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Go to https://www.regulations.gov and enter NOAA-NMFS-2022-0072 in the Search box.
Click on the ``Comment'' icon, complete the required fields, and enter
or attach your comments.
Mail: Submit written comments to the Assistant Regional
Administrator, Sustainable Fisheries Division, Alaska Region NMFS. Mail
comments to P.O. Box 21668, Juneau, AK 99802-1668.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NMFS. All comments received are a part of the
public record and would generally be posted for public viewing on
www.regulations.gov without change. All personal identifying
information (e.g., name, address), confidential business information,
or otherwise sensitive information submitted voluntarily by the sender
would be publicly accessible. NMFS will accept anonymous comments
(enter ``N/A'' in the required fields if you wish to remain anonymous).
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
proposed rule may be submitted via mail to NMFS Alaska Region, P.O. Box
21668, Juneau, AK 99802-1668, Attn: Stephanie Warpinski; or online at
www.reginfo.gov/public/do/PRAMain. Find the particular information
collections online by selecting ``Currently under 30-day Review--Open
for Public Comments'' or by using the search function.
Electronic copies of the Environmental Assessment, the Regulatory
Impact Review, and the Social Impact Analysis (collectively referred to
as the ``Analysis''), and the draft Finding of No Significant Impact
prepared for this proposed rule may be obtained from https://www.regulations.gov or from the NMFS Alaska Region website at https://www.fisheries.noaa.gov/region/alaska.
FOR FURTHER INFORMATION CONTACT: Stephanie Warpinski, 907-586-7228 or
[email protected].
SUPPLEMENTARY INFORMATION:
Authority for Action
NMFS manages the groundfish fisheries in the exclusive economic
zone (Federal waters) of the BSAI under Federal regulations
implementing the BSAI FMP. The North Pacific Fishery Management Council
(Council) prepared the BSAI FMP under the authority of the Magnuson-
Stevens Act, 16 U.S.C. 1801 et seq. Regulations governing U.S.
fisheries and implementing the BSAI FMP appear at 50 CFR parts 600 and
679.
A notice of availability (NOA) for Amendment 122 was published in
the Federal Register on December 30, 2022 (87 FR 80519, December 30,
2022), with comments invited through February 28, 2023. All relevant
written comments received by the end of the comment period (See DATES),
whether specifically directed to the NOA or this proposed rule, will be
considered by NMFS in the approval/disapproval decision for Amendment
122. Commenters do not need to submit the same comments on both the NOA
and this proposed rule. Comments submitted on this proposed rule by the
end of the comment period (See DATES) will be considered by NMFS in our
decision to implement measures recommended by the Council and will be
addressed in the response to comments in the final rule.
I. Background of Pacific Cod Management in the BSAI
A. History of Pacific Cod Management in BSAI
Pacific cod (Gadus macrocephalus) is one of the most abundant and
valuable groundfish species harvested in the BSAI. Vessels harvest
Pacific cod using trawl and non-trawl gear. Non-trawl gear includes
hook-and-line, jig, and pot gear. Vessels harvesting BSAI Pacific cod
operate as catcher vessels (CVs) that harvest and deliver the fish for
processing or as catcher/processors (C/Ps) that harvest and process the
catch on board.
The BSAI FMP and implementing regulations require that, after
consultation with the Council, NMFS specify an overfishing level (OFL),
an acceptable biological catch (ABC), and a total allowable catch (TAC)
for each target species or species group of groundfish, including
Pacific cod, on an annual basis. The OFL is the level above which
overfishing is occurring for a species or species group. The ABC is the
level of a species' annual catch that accounts for the scientific
uncertainty in the estimate of OFL and any other scientific
uncertainty. Under the BSAI FMP, the ABC is set below the OFL. The TAC
is the annual catch target for a species or species group, derived from
the ABC by considering social and economic factors and management
uncertainty, and in the case of BSAI Pacific cod, after considering any
harvest allocations for guideline harvest level (GHL) fisheries managed
by the State of Alaska (State) and occurring only within state waters.
Under the BSAI FMP, the TAC must be set lower than or equal to the ABC.
The OFLs, ABCs, and TACs for BSAI groundfish are specified through
the annual harvest specification process. A detailed description of the
annual harvest specification process is
[[Page 8593]]
provided in the final 2022 and 2023 harvest specifications for
groundfish of the BSAI (87 FR 11626, March 2, 2022). The annual harvest
specification process for BSAI Pacific cod is briefly summarized here.
Specific examples of Pacific cod OFLs, ABCs, TACs, and other
apportionments of Pacific cod used in this preamble are based on the
2022 specifications from the final 2022 and 2023 harvest specifications
for groundfish of the BSAI, unless otherwise noted.
For Pacific cod, the harvest specifications establish separate
OFLs, ABCs, and TACs for the Bering Sea (BS) subarea and the Aleutian
Islands (AI) subarea of the BSAI. As noted above, before the Pacific
cod TACs are established, the Council and NMFS consider social and
economic factors and management uncertainty, as well as two factors
that are particularly relevant to BSAI Pacific cod: the Pacific cod
state waters GHL fisheries and an overall limit on the maximum amount
of TAC that can be specified for all BSAI groundfish species combined.
Once the groundfish TACs are established, regulations at 50 CFR
679.20(a)(7)(i) allocate 10.7 percent of the BS Pacific cod TAC and
10.7 percent of the AI Pacific cod TAC to the Community Development
Quota (CDQ) Program for the exclusive harvest by Western Alaska CDQ
groups. Section 305(i) of the Magnuson-Stevens Act authorizes six
nonprofit corporations called CDQ groups representing 65 communities to
receive exclusive harvest privileges of groundfish, including Pacific
cod, and specifies the methods for allocating these harvest privileges.
After subtraction of the CDQ allocation from each TAC, NMFS
combines the remaining BS and AI TACs into one BSAI non-CDQ Pacific cod
TAC, which is available for harvest by nine non-CDQ fishery sectors.
BSAI Pacific cod have been fully allocated to these sectors since 2008
with the implementation of Amendment 85 to the BSAI groundfish FMP (72
FR 50787, September 4, 2007). Regulations at Sec. 679.20(a)(7)(ii)(A)
define the nine Pacific cod non-CDQ fishery sectors in the BSAI and
specify the percentage allocated to each. The non-CDQ fishery sectors
are defined by a combination of gear type (e.g., trawl, hook-and-line),
operation type (i.e., CV or CP), and vessel size categories (e.g.,
vessels greater than or equal to 60 ft in length overall). Through the
annual harvest specifications process, NMFS allocates an amount of the
combined BSAI non-CDQ TAC to each of these nine non-CDQ fishery
sectors. The non-CDQ fishery sectors and the percentage of the BSAI
non-CDQ Pacific cod TAC allocated to each sector are shown in Table 1
below.
Table 1--Allocations of the BSAI Non-CDQ Pacific Cod TAC to the Non-CDQ
Fishery Sectors
------------------------------------------------------------------------
Percentage
allocation of
Non-CDQ fishery sector the BSAI non-
CDQ TAC
------------------------------------------------------------------------
Hook-and-line CVs greater than or equal to 60 ft length 0.2
overall (LOA)..........................................
Jig gear................................................ 1.4
Pot C/Ps................................................ 1.5
Hook-and-line and pot CVs less than 60 ft LOA........... 2.0
American Fisheries Act (AFA) trawl C/Ps................. 2.3
Pot CVs greater than or equal to 60 ft LOA.............. 8.4
Non-AFA trawl C/Ps (Amendment 80 C/Ps).................. 13.4
Trawl CVs............................................... 22.1
Hook-and-line C/Ps...................................... 48.7
------------------------------------------------------------------------
Allocations of Pacific cod to the CDQ Program and to the non-CDQ
fishery sectors are further apportioned by seasons. Season dates for
the CDQ and non-CDQ fishery sectors are established at Sec.
679.23(e)(5). In general, regulations apportion trawl gear allocations
among three seasons that correspond to January 20-April 1 (A season),
April 1-June 10 (B season), and June 10-November 1 (C season) of the
year. The specific season dates also are provided in the annual harvest
specifications for groundfish of the BSAI. Depending on the specific
CDQ Program or non-CDQ fishery sector allocation, between 40 and 70
percent of the Pacific cod allocation is apportioned to the A season,
which is historically the most lucrative fishing season due to the
presence of valuable roe in the fish and the good quality of the flesh
during that time of year.
As noted in Table 1, the trawl CV sector is apportioned 22.1
percent of the BSAI Pacific cod non-CDQ TAC, which is further divided
into seasonal allowances between the A, B, and C seasons. A season is
issued 74 percent of the trawl CV sector's total apportionment, B
season is issued 11 percent, and C season is issued 15 percent. The
trawl CV sector impacted by the implementation of the PCTC Program
would include all trawl CVs that are assigned to an LLP license with a
trawl gear endorsement for the BS and/or AI.
After NMFS deducts estimated incidental catch from the trawl CV
sector apportionment, each seasonal allowance is assigned to the trawl
CV sector as a BSAI directed fishing allowance (DFA). The DFA for the A
and B seasons is the amount that would be available for harvest by the
PCTC program cooperatives under the proposed LAPP. The DFA for the C
season would remain available for harvest as a limited access fishery
open to all CVs with the required trawl gear and area endorsements on
the LLP license assigned to the vessel. Because the non-CDQ sector
allocations continue to be defined BSAI-wide, sectors remain free to
redeploy between the two areas. However, if the non-CDQ portion of the
TAC in either sub-area (BS or AI) is reached NMFS will close directed
fishing for Pacific cod in that subarea.
B. Groundfish License Limitation Program (LLP) Licenses
The Groundfish License Limitation Program (LLP) was implemented in
1998 (63 FR 52642, Oct. 1, 1998) and issued a limited number of LLP
licenses to qualifying participants based on historical participation
in the Federal groundfish fisheries off Alaska. The Council and NMFS
have long sought to control the amount of fishing effort in the BSAI
groundfish fisheries to ensure that the fisheries are sustainably
managed and do not exceed established biological thresholds. One of the
measures used by the Council and NMFS to control fishing effort,
including in the BSAI Pacific cod
[[Page 8594]]
fishery, is the LLP. A groundfish LLP license authorizes a vessel to
participate in a directed fishery for groundfish in the BSAI in
accordance with specific area and species endorsements, vessel and gear
designations, and the maximum length overall (MLOA), or any exemption
from the MLOA, specified on the license. With some limited exceptions,
the LLP requires that each vessel that participates in federally
managed groundfish fisheries off Alaska be designated on a groundfish
LLP license. In other words, an LLP license is generally required to
participate in the BSAI groundfish fisheries. The LLP is authorized in
Federal regulations at 50 CFR 679.4(k), definitions relevant to the
program are at Sec. 679.2, and prohibitions are at Sec. 679.7.
All Federal Pacific cod harvesting activity in the BSAI requires an
LLP license and the correct endorsements. The Council elected to have
LLP license holders and eligible processors receive PCTC Program Quota
Share (QS) instead of vessel owners.
C. Transferable AI Endorsements
Amendment 92 to the BSAI FMP (74 FR 41080, August 14, 2009) issued
new AI area endorsements for trawl CV LLP licenses if minimum recent
landing requirements in the AI were met. Under this action, NMFS issued
AI trawl endorsements to (1) non-AFA catcher vessels less than 60 ft
LOA, if those vessels made at least 500 metric tons (mt) of landings of
Pacific cod in State of Alaska (State) waters adjacent to the Aleutian
Islands Subarea during 2000 through 2006 (i.e. in the parallel
fishery); and (2) non-AFA catcher vessels equal to or greater than 60
feet LOA if those vessels made at least one landing in State waters
during the Federal groundfish season in the Aleutian Islands Subarea
and made at least 1,000 mt of Pacific cod landings in the BSAI during
2000 through 2006. Amendment 92 intended to recognize the recent
participation by CVs in the AI by allowing those vessels to extend
their fishing operations to Federal waters using trawl endorsed LLP
licenses.
The AI endorsements issued under Amendment 92 were intended to
facilitate shoreside deliveries of Pacific cod to AI communities and
provide additional harvest opportunities for non-AFA trawl vessels who
had demonstrated a dependence on AI groundfish resources. The AI
endorsements issued to LLP licenses used by non-AFA trawl CVs less than
60 ft are severable from the LLP license they were initially issued and
transferable to another LLP licenses with a MLOA under 60 ft. The
transferability provision was intended to allow smaller vessels
operational flexibility and avoid stranding an AI endorsement on an LLP
license being used by a vessel that no longer fished in the AI. No
other area endorsement in the LLP can be transferred separately from an
LLP license.
NMFS modified the LLP license transfer regulations to clarify the
process for transferring an AI endorsement independent of the LLP
license. As part of that application process, the person would need to
specify the LLP license to which the transferred AI area endorsement
would be assigned.
D. Limited Access Privilege Programs
Section 303A of the Magnuson-Stevens Act authorizes the
establishment of Limited Access Privilege Programs (LAPPs) that
allocate limited access privileges, such as fishing quota, to a closed
class of participants. The Council has recommended and NMFS has
implemented LAPPs to address a wide range of fishery management
objectives, including providing stability in fishery harvests,
resolving allocative disputes, increasing the value of the fishery,
minimizing bycatch to the extent practicable, providing for the
sustained participation of fishery-dependent communities, and promoting
safety. Another example of a North Pacific LAPP is the Central Gulf of
Alaska (GOA) Rockfish Program. An extensive discussion of LAPPs can be
found in sections 2.5 and 2.9.8 of the Analysis (see ADDRESSES).
By allocating quota shares and issuing exclusive harvest privileges
to fishing cooperatives, a LAPP allows vessel operators to make
operational choices to improve safety, reduce bycatch, and reduce
discard of fish because the strong incentive to maximize catch in the
minimum amount of time has been reduced. Vessel operators can choose to
fish in a slower, less wasteful fashion, use modified gear with a lower
harvest rate but which reduces bycatch, coordinate with other vessel
operators to avoid areas of high bycatch, or otherwise operate in ways
that limit bycatch and increase efficiency.
LAPPs can also improve the profitability of participating fishing
operations. In most cases, LAPPs provide harvesters greater flexibility
in tailoring their fishing operations to specific fisheries, which can
reduce operational costs. Additionally, vessel operators may avoid
costly improvements in vessel size or fishing power designed to
outcompete other harvesters in a race for fish. Slower fishing rates
can improve product handling and quality and increase the ex-vessel
price of the fish delivered to the processor. Vessel operators can also
choose to consolidate less profitable fishing operations onto fewer
vessels through a cooperative system.
LAPPs can increase the costs of entering the fishery substantially
because the expected long-term profits from the QS assigned to the
permits increase their value, and, in most circumstances, permits must
be purchased prior to entry. Increased cost of entry may limit the
ability of persons without the financial wherewithal to purchase the
permits or QS necessary to participate in these fisheries.
Consolidation can limit employment opportunities as well, if fewer
vessels are used to harvest the quota. Compliance costs can also
increase to ensure that NMFS can monitor the harvesting and processing
of fish. Administration of LAPPs typically requires greater effort and
cost than non-LAPP fisheries due to the greater precision in catch
accounting required to track the harvest of fish and proper debiting of
accounts. Participants in LAPPs may also use their excess fishing
capacity to expand operations into other fisheries that are not managed
by LAPPs and increase the race for fish in those fisheries unless they
are constrained. These and other effects have been addressed in the
design of previous LAPPs by limiting the amount of consolidation in the
fishery through caps on the ownership and use of QS.
E. PCTC Program Overview
Based on experience with past LAPPs, and after weighing the
potential advantages and disadvantages, the Council unanimously
recommended the PCTC Program at its October 2021 meeting to reduce
bycatch and improve the safety of fishery participants while increasing
the potential for greater economic returns to those holding the harvest
privileges.
The Council had previously adopted a statement of purpose and need
for this action, emphasizing that conditions in the fishery had
resulted in a race for fish with a number of negative consequences.
This proposed Program would be responsive to that statement of purpose
and need by slowing the race for fish. This Program would provide
incentives to increase the length of the directed fishing season and
allow deliveries to be distributed over a longer timeframe, which would
benefit both harvesters and processors. The current fishery management
system, in which harvesters compete with each other for a portion of
the Pacific cod TAC,
[[Page 8595]]
incentivizes harvesters to fish in weather conditions that could be
unsafe, and this incentive would be reduced or avoided under the
proposed LAPP. Several conditions warranted this proposed change in
management, including a decline in Pacific cod TAC, an increase in the
number of LLP licenses (and associated vessels) participating in this
sector and the risk of additional entrants, the compressed length of
the fishery in recent years, the decreased product quality caused by a
race for fish in recent years, need to minimize bycatch, and safety
concerns.
In response, the Council recommended, and NMFS proposes the PCTC
Program with the overarching objectives of increasing the value of the
fishery, minimizing bycatch to the extent practicable, providing for
the sustained participation of fishery-dependent communities, and
promoting safety in the harvesting and processing sectors. The PCTC
Program proposes a complex suite of measures to ensure the goals of the
Program are met and improve fishery conditions for all participants.
The Program would require participants holding QS to form harvesting
cooperatives in association with an eligible processor to harvest the
annual harvest privilege of Pacific cod. This Program would also
require cooperatives to set-aside a portion of their allocation for
delivery to an Aleutian Island shoreplant. A shoreplant is a land-based
processing plant and is a subset of the term ``shoreside processor''
which is defined in Sec. 679.2 to include processing vessels that are
moored or otherwise fixed in a location (i.e., stationary floating
processors), but not necessarily located on land.
The following section provides an overview of the complex suite of
measures included in the proposed Program. Each Program element will be
addressed in additional detail in subsequent sections of this preamble.
1. Pacific Cod Allocations and Prohibited Species Catch (PSC) Limits
The PCTC Program would allocate QS to qualifying LLP license
holders and processors based on their qualifying catch and processing
history during the BSAI trawl CV sector A and B season for the Pacific
cod fishery. The Pacific cod QS allocations would be based on
qualifying catch or processing history as recommended by the Council.
In addition, aggregate PSC limits for halibut and crab would be
established through the annual harvest specification process for
participants in the PCTC Program. Allocations of Pacific cod and PSC
limits are discussed in further detail in section II of the preamble.
2. PCTC Program Quota Share
The PCTC Program would issue QS to qualified LLP licenses that had
qualifying catch history of BSAI Pacific cod during the qualifying
years, and to processors based on their processing history during the
qualifying years. The Council selected 2009 to 2019 as the qualifying
years for processors and most LLP licenses, with the additional years
of 2004 through 2009 for LLP licenses with transferable AI
endorsements. In making initial allocations of QS, NMFS would look at
targeted landings of BSAI Pacific cod from a Federal fishery during the
qualifying years, and then determine what proportion of those landings
were authorized by each participating LLP license, and which proportion
was delivered to each participating processor. Targeted species are
those species retained in an amount greater than any other species for
which a TAC is specified pursuant to Sec. 679.20(a)(2). To use their
QS, LLP license holders would be required to join a PCTC Program
cooperative and processors would be required to associate with a
cooperative. Trawl CVs eligible to participate in the proposed Program
include all trawl CVs that are named on an LLP license with a trawl
gear endorsement and BS and/or AI area endorsement. Section II in the
preamble further discusses QS and participants.
3. Trawl CV Sector
The PCTC Program allocations would be harvested by trawl CVs that
join a PCTC Program cooperative. The trawl CV sector that would be
eligible to participate in the proposed Program includes all trawl CVs
designated on an LLP license with BS and/or AI area endorsements,
including both American Fisheries Act (AFA) and non-AFA trawl CVs.
Most AFA CVs rely heavily on pollock harvested in the BS, but
Pacific cod is the second most important species in terms of volume for
these vessels in aggregate. While nearly all the groundfish harvested
by the larger AFA vessels is delivered to shoreside processors, many of
the smaller AFA vessels deliver their catch to a mothership. AFA
vessels are categorized as either exempt or non-exempt; AFA exempt
means that they are not limited based on their catch history by
sideboards, and AFA non-exempt means that they are limited by
sideboards based on their catch history. The harvest of BSAI Pacific
cod by AFA trawl CVs is currently managed through private inter-
cooperative agreements.
Non-AFA trawl CVs are typically between 60 ft and 125 ft, but
occasionally, vessels less than 60 ft participate in the sector.
Fisheries important to non-AFA trawl CVs include BSAI Pacific cod,
groundfish in the GOA, halibut IFQ (using longline gear), and salmon in
the state commercial seine fisheries.
A total of 114 LLP licenses are assigned a trawl CV endorsement for
the BS. Of those 114 LLP licenses, 42 also have an AI endorsement. One
LLP license is endorsed only for the AI, and that license has both a
trawl endorsement and a hook-and-line endorsement. Annual estimates of
the trawl CV sector's gross ex-vessel value for Pacific cod are
provided in Section 2.8.7 of the Analysis.
Given that initial allocations under this proposed rule will be
based on historical participation, no substantial shifts in patterns of
fishery landings between communities are anticipated, nor are
substantial shifts expected in the accompanying patterns of revenue
accruing to municipalities in Alaska from local raw fish taxes or
shared state fishery business taxes.
4. Processor Sector
The PCTC program would allocate QS to eligible processors, both
shoreside and C/Ps acting as motherships, which could serve to
stabilize landings in communities in proportion to their qualifying
history of BSAI Pacific cod processing.
Eligible processors would be allocated a percentage of QS based on
their processing history that would function to promote stability in
the processing sector. Processors eligible to receive QS would include
active processors who hold an active FFP or FPP. Eligible processors
would be issued their QS on a new QS permit. Processor-issued QS would
represent 22.5 percent of the total PCTC Program CQ each year.
Section 2.9.5 of the Analysis provides a count of the years
processing firms were active (received deliveries of targeted Federal
BSAI Pacific cod from trawl CVs). These counts represent all the
processing firms (including C/Ps that are no longer eligible to process
Pacific cod as a mothership) that were reported in the NMFS Catch
Accounting System (CAS) data. Preamble sections II.E and VII.B and C
describe the processor sector in further detail.
5. Allocations of TAC in the PCTC Program
Under this proposed PCTC Program, 22.1 percent of the annual BSAI
Pacific cod non-CDQ TAC would continue to be allocated to the trawl CV
sector using
[[Page 8596]]
the current seasonal apportionments. Of that 22.1 percent, a portion is
allocated for directed fishing by trawl CVs targeting Pacific cod (as
DFAs), and another portion is reserved as an incidental catch allowance
(ICA) for Pacific cod caught as bycatch in other BSAI trawl CV
groundfish fisheries. Under the PCTC Program, A and B season DFAs would
be issued as CQ to PCTC program cooperatives. Of the total PCTC Program
annual allocations, 22.5 percent of CQ would be derived from QS
allocated to processors and 77.5 percent would be derived from QS
allocated to LLP license holders. Section IV discusses CQ and PCTC
Program cooperatives in further detail. The C season would continue to
be managed as a limited access fishery open to any trawl CV with the
required area endorsements. Section VI.B of the preamble discusses the
C season in further detail.
6. PCTC Program Cooperatives
The PCTC Program would authorize the formation of harvester
cooperatives in association with an eligible processor. A cooperative
would be formed by holders of qualified LLP licenses with trawl CV
Pacific cod QS, in association with processors. Each LLP license could
be assigned to only one cooperative. Each year, a cooperative
representative would be required to submit an Application for PCTC
Program Cooperative Quota. CQ would be issued to each cooperative by
NMFS based on the aggregate QS of the cooperative members and
associated processors. Cooperative associations could change on an
annual basis without penalty. Cooperatives would be required to
identify a list of trawl CVs eligible to harvest a portion of that
cooperative's CQ in the annual cooperative application. Any trawl CV
named on an LLP license with a BS and/or AI trawl endorsement could be
identified as an eligible harvester within a PCTC cooperative,
regardless of whether the LLP license was issued QS. Section IV in this
preamble further describes cooperatives in the PCTC Program.
7. AI CQ Set-Aside
The PCTC Program would require cooperatives to reserve 12 percent
of the BSAI A season trawl CV sector CQ as a set-aside for delivery to
an Aleutian Islands shoreplant if the City of Adak or the City of Atka
files a notice of intent to process that year. The set-aside would be
in effect during the A and B seasons and any remaining portion of the
AI CQ set-aside would be reallocated to cooperatives in the same
proportion as the initial allocation if the intent to process is
withdrawn during the A or B season by the representative of the City of
Adak or the City of Atka. NMFS would require an inter-cooperative
agreement that describes how the set-aside will be administered by the
cooperatives to ensure that harvests from the BS do not exceed the
minimum set-aside, how the cooperatives intend to harvest the set-
aside, and how cooperatives would ensure that CVs less than 60 ft LOA
assigned to an LLP license with a transferable AI trawl endorsement
have the opportunity to harvest 10 percent of the AI set-aside for
delivery to an Aleutian Island shoreplant. A cooperative intending to
harvest any amount of the set-aside would be required to provide the
cooperative's plan for coordinating harvest and delivery of the set-
aside with an Aleutian Island shoreplant in the annual cooperative
application.
8. C Season Limited Access Fishery
The PCTC Program would allocate only the A and B season non-CDQ
Pacific cod trawl CV DFA to cooperatives. The C season non-CDQ Pacific
cod trawl CV DFA, which accounts for approximately 15 percent of the
annual trawl CV sector allocation, would remain as a trawl CV limited
access fishery open to any trawl CV with a BS and/or AI area trawl
endorsement.
9. Use Caps
The PCTC program would include ownership and use caps to prevent a
permit holder from acquiring an excessive share of the fishery as
required under MSA Section 303A(c)(5)(D). No person would be permitted
to hold more than 5 percent of harvester-issued QS or 20 percent of
processor-issued QS. In addition, no vessel would be able to harvest
more than 5 percent of the annual CQ, and no company would be able to
process more than 20 percent of CQ. The PCTC Program would also include
legacy exemptions for persons over these ownership and use caps at the
time of PCTC Program implementation, allowing participants to maintain
levels of historical participation rather than forcing divestiture.
10. Gulf of Alaska Sideboard Limits
The PCTC Program includes GOA groundfish sideboard limits for LLP
licenses that receive allocations of QS. The Program would change the
AFA non-exempt GOA groundfish sideboard and halibut PSC limits for all
non-exempt AFA CVs and associated LLP licenses based on the GOA fishing
activity of these vessels in the aggregate during the PCTC Program
qualifying years. GOA halibut PSC limits would be managed as an annual
limit for all AFA non-exempt CVs and associated LLP licenses. The
proposed PCTC Program does not change existing sideboard exemptions for
AFA GOA--exempt CVs and does not add sideboard limits for non-AFA trawl
CVs in the GOA.
However, holders of LLP licenses that authorize these categories of
vessels will not be permitted to lease CQ derived from their LLP
licenses as a condition of benefiting from a GOA sideboard exemption.
If the vessel assigned to the qualified GOA sideboard-exempt LLP
license does not fish in the GOA during the calendar year--with the
exception of fishing in the Central GOA Rockfish Program--the LLP
license holder would be able to lease CQ generated by their LLP license
for that calendar year. In addition, holders of LLP licenses that
authorized GOA sideboard-exempt CVs with less than 300 mt of average
annual qualifying BSAI Pacific cod catch history would be able to lease
CQ generated by their LLP license.
11. Monitoring and Enforcement
All CVs harvesting CQ and making deliveries to a shoreside
processor would be in the full observer coverage category, which
requires the vessel to maintain observer coverage on 100 percent of its
fishing trips. The PCTC Program would maintain the current observer
coverage exception for CVs delivering unsorted codends to motherships
specified at Sec. 679.50(a). CVs in the full observer coverage
category would be required to provide a functional and operational
computer with NMFS-supplied software installed to facilitate the
electronic entry of observer data collected on board the vessel. At the
time of Program implementation, AFA CVs would be required to provide
communications equipment necessary to facilitate the point-to-point
communication necessary to transmit observer data to NMFS on a daily
basis. For the first three years after implementation, the PCTC Program
would exempt non-AFA CVs from the requirement to facilitate at-sea
transmission of observer data. If a non-AFA CV has the necessary
communication equipment already installed on the vessel prior to the
end of the 3-year exemption, the vessel would be required to allow the
observer to use the equipment. After three years, all vessels would be
required to comply with requirements for at-sea observer data
transmission. Monitoring and enforcement provisions would be
[[Page 8597]]
implemented to track quota, harvest, PSC, and use caps. NMFS would
report weekly vessel-level PSC information as authorized under
Magnuson-Stevens Act Sec. 402(b)(2)(A).
II. PCTC Program Quota Share (QS)
Under the PCTC Program, QS for Pacific cod would be assigned to
eligible LLP licenses (with and without transferable AI endorsements)
and newly created processor PCTC Program QS permits. The amount of QS
allocated to individual LLP licenses or processors would be determined
by historic participation relative to other LLP licenses or processors,
as described below. QS holders would be required to join or associate
with a cooperative, and the aggregate QS of cooperative members and
associated processors would yield an exclusive harvest privilege for
PCTC Program cooperatives, which NMFS would issue as CQ each year. Of
the total annual CQ, 77.5 percent would be derived from QS issued to
LLP licenses and 22.5 percent would be derived from QS issued to
processors. CQ would represent a portion of the A and B season BSAI
trawl CV sector Pacific cod DFA that is available only to the holders
of CQ. This Program would establish criteria for harvesters and
processors in the BSAI trawl CV sector Pacific cod fisheries to qualify
for and receive QS, criteria for allocating QS in the initial year of
implementation, and criteria for the transfer of QS.
NMFS would assign PCTC Program QS to eligible LLP licenses based on
qualifying catch history (legal landings) of targeted BSAI Pacific cod
authorized by that LLP license during the qualifying years 2009 through
2019, excluding the year with the lowest total harvest for each
license. The qualifying period for LLP licenses with transferable AI
endorsements also includes harvest by vessels that generated the
transferable AI endorsement from January 20, 2004 through September 13,
2009. The amount of QS assigned to an LLP license relative to the total
QS assigned to all LLP licenses determines the percentage of the
harvesters' allocation (77.5 percent of the A and B season DFA) that a
harvester could designate to a cooperative.
Allocations of QS to processors with an eligible FFP or FPP
(subject to eligibility requirements under BSAI FMP Amendment 120 to
limit C/Ps acting as mothership) is based on processing history in the
Federal BSAI Pacific cod trawl CV fishery. QS would be assigned to
eligible processors based on each processor's targeted Pacific cod
processing history during the qualifying years 2009 through 2019,
excluding the year with the least amount of processing history. The
amount of QS assigned to a processor PCTC Program QS permit relative to
the total QS assigned to all PCTC Program QS permits determines the
percentage of the processors' allocation (22.5 percent of the A and B
season DFA) that a processor could designate to a cooperative. NMFS
would assign QS to holders of eligible LLP licenses if they submit a
timely and complete Application for PCTC Program QS. A similar process
would be used for the processor QS allocation. Processors with
qualifying processing history would be assigned QS on a processor
permit for each unit of processing history.
A. Eligibility To Receive PCTC QS
This section defines and describes the requirements necessary to
identify eligible LLP licenses and processors that would receive PCTC
Program QS. ``Eligible PCTC Program LLP license'' means an LLP license
assigned to a vessel that made qualifying catch history (legal
landings) of targeted trawl CV BSAI Pacific cod during the PCTC Program
qualifying years. ``Eligible PCTC Program processor'' means a
processing facility with an active Federal processor permit that has
historically received Pacific cod legal landings.
``Legal landings'' means the retained catch of Pacific cod caught
by a CV using trawl gear in the BSAI during the directed fishing season
for Pacific cod that was: (1) made in compliance with state and Federal
regulations in effect at that time, (2) recorded on a State of Alaska
fish ticket or shoreside logbook for shoreside deliveries or in
observer data for mothership deliveries, and (3) was the predominately
retained species on the fishing trip (i.e. Pacific cod was targeted). A
legal landing must have been authorized by either (1) an LLP license
participating in the A or B season of a Federal or parallel State water
groundfish fishery during the qualifying years 2009 to 2019, or (2) an
LLP license with a transferable AI endorsement that, prior to receiving
that AI endorsement, participated in the AI parallel fishery from
January 20, 2004 through September 13, 2009. Legal landings for the
PCTC Program would not include landings in the CDQ fishery, in the
State of Alaska GHL fishery, or made during the C season by vessels
participating in a Federal or parallel State water fishery. For LLP
licenses, NMFS would determine which LLP licenses were assigned to
catcher vessels that harvested and offloaded BSAI Pacific cod that met
all legal landings requirements. For processors, NMFS would determine
which processors with active Federal permits received deliveries of
legal landings of BSAI Pacific cod.
B. Rationale for Allocations
The Council recommended and NMFS proposes establishing eligibility
for the Program by considering the catch history associated with LLP
licenses that authorized a vessel to make legal landings of targeted
BSAI trawl CV Pacific cod during the qualifying years. The Council
recommended against considering catch history occurring after December
31, 2019 during the development of this Program to discourage
speculative entry into the fishery. QS would be allocated to eligible
LLP licenses based on legal landings of BSAI trawl CV Pacific cod from
2009 through 2019. In addition, for LLP licenses with transferable AI
endorsements, NMFS would consider catch history of targeted AI Pacific
cod in the parallel fishery prior to receiving a transferable AI
endorsement from January 20, 2004 through September 13, 2009. The
Council recommended these qualifying years to ensure that both current
and historical participation would be considered in allocating QS. This
range of qualifying years is comparable with the Council's
recommendations for awarding catch history in other rationalized
fisheries (or fisheries managed under a LAPP).
The Council considered alternative methods for allocating QS to
participants in the BSAI trawl CV Pacific cod sector in the development
of the Program. These alternatives are addressed in the Analysis
developed to support this proposed action (see ADDRESSES). The Program
would balance allocation among recent and historical participants. As
with other QS programs (e.g., BSAI Crab Rationalization, and IFQ
halibut and sablefish), the Program would allocate QS based on recent
and historical harvesting and processing, as opposed to alternative
allocative methods such as allocating equal shares or auctioning QS. In
other North Pacific quota share programs, NMFS has allocated QS based
on landings that occurred during a specific time period as a means of
equitably distributing QS to participants based on their relative
dependence on the fishery. This is the first LAPP in the North Pacific
that allocates harvester QS to processors based on their processing
history.
One option for this Program considered the most recent five years
of history (2014 through 2019) in the BSAI trawl CV Pacific cod
fishery, but that
[[Page 8598]]
range of years undervalued long-term participation, which the Council
believes is an important consideration for the PCTC Program. A second
option the Council rejected included catch history years from 2004
through 2019 because it would include several years before the
implementation of the current BSAI Pacific cod sector allocations
established by Amendment 85. These sector allocations, combined with a
decline in the BSAI Pacific cod stock in recent years, have
substantially changed fishery management and operations.
A third option the Council considered included allocations on a
blend of catch history and AFA sideboard limit history. This approach
would have awarded catch history to LLP licenses assigned to vessels
that did not make legal landings of BSAI trawl CV Pacific cod during
the qualifying years but instead had catch history of BSAI Pacific cod
from 1997 that contributed to a sideboard limit for all AFA trawl CVs
in the BSAI. The Council recommended maintaining the long-standing
policy that sideboard limits are not sector allocations. Instead, this
proposed Program would award catch history to LLP licenses based on
legal landings that were reported by the vessel assigned to the LLP
license, consistent with the Council's past practice.
In calculating QS to be issued to eligible LLP license holders and
processors, the lowest year of catch history during the qualifying
period would be dropped. Including a one-year drop provision would
allow all participants to benefit from removing a non-representative
participation year from the catch history used to issue their QS. The
public testimony provided to the Council in support of this option
noted that the catch history eligibility period is 11 years, and
unforeseen events have occurred for many BSAI trawl CV Pacific cod
fishery participants over that period that would reduce the amount of
catch history awarded to their LLP license. The Council considered this
to be a reasonable approach and consistent with Council and NMFS's
practice in previous rationalization programs because it recognizes
contingencies in fishing behavior over the qualifying years.
Some legal landings during 2009 through 2019 were made by vessels
with two or more associated LLP licenses, and in these cases the
Council recommended assigning the qualifying catch history to one LLP
license in one of two ways. First, the LLP license owners may come to
an agreement regarding the division of qualifying catch history and
submit this agreement to NMFS when they apply for QS. Or, if no
agreement is provided by the LLP license holders, the owner of the
vessel that made the qualifying catch would assign the history to one
of the LLP licenses that authorized the catch. This approach is
consistent with NMFS's approach for assigning legal landings in all
previous North Pacific rationalization programs. In addition, the
Council received public comment in support of this approach.
The Council determined that an allocation of harvest QS to
processors is necessary to provide stability to the sectors involved in
the fishery after it transitions from a limited access fishery to a
LAPP. The Analysis (see ADDRESSES) did not identify an optimal
percentage of QS that should be allocated to processors to provide
stability for harvesters and processors. Instead, the allocation amount
recommended and proposed in this action--77.5 percent of QS allocated
to harvesters and 22.5 percent to processors--is based on an agreement
brought to the Council by members of the affected CV and processing
sectors. Analysts noted that within the range of percentages considered
for QS to be issued to processors, the leverage that each sector would
have at any specific percentage would vary and the effects are likely
to be most realized by firms that have less leverage outside the BSAI
trawl CV Pacific cod fishery.
Under the proposed Program, NMFS would allocate QS to eligible
processors based on their processing history of legal landings of BSAI
Pacific cod during the qualifying years. The QS issued to processors
would be divided among eligible processors based on the percentage of
legal landings of Pacific cod they processed during the A and B seasons
during the qualifying years compared to the total legal landings of
BSAI Pacific cod processed by all eligible processors. Allocating
harvest shares to processors is intended to maintain a balance of
market power within the industry under the LAPP.
C. Calculations of Initial Allocations
The Council recommended, and NMFS proposes to set initial
allocations through a specific process set forth in this section.
The QS allocations for LLP license holders with no transferable AI
endorsement would be calculated based on the sum of the 10 highest
years of Pacific cod qualifying catch for the LLP license out of the 11
qualifying years recommended by the Council. If an LLP license was only
used in a single year or if the LLP license was used in ten or less
years, a year with no qualifying catch would be dropped. If the LLP
license was transferred within the qualifying years of 2009 to 2019,
all legal landings during the period would still be assigned to that
LLP. For LLP licenses with transferable AI endorsements, NMFS would
also include the catch history of the vessel used to generate the
endorsement from January 20, 2004 through September 13, 2009 (for these
LLP licenses, NMFS would be looking at 16 years of catch history and
dropping the lowest year). The current LLP license owner would be
entitled to all QS derived from the LLP license and transferable AI
endorsement catch history, unless compensation was required by a
private agreement associated with the sale of the LLP license. The QS
would not be divided among LLP licenses.
NMFS proposes that for each LLP license holder, the qualifying year
with the least amount of legal landings be dropped, and the total of
the remaining years summed to determine the LLP license's QS units.
This process would be done for all eligible LLP licenses, with and
without transferable AI endorsements. The sum of all QS units issued
would determine the harvesters total initial QS pool allocated to LLP
licenses. All harvester QS units combined would represent 77.5 percent
of the A and B season BSAI Pacific cod trawl CV DFA.
An active processor would be eligible to receive initial QS
allocations in the PCTC Program if they hold a Federal Fisheries Permit
(FFP) or Federal Processing Permit (FPP) with processing history in the
Federal BSAI Pacific cod trawl CV fishery between 2009 and 2019, which
is the set of qualifying years recommended by the Council. An active
processor is a processor firm that holds an FFP or FPP upon the
effective date of the final rule implementing this Program.
The QS for processors would be allocated based on the sum of legal
landings delivered in the 10 highest years out of the 11 qualifying
years recommended by the Council. If the FFP or FPP received deliveries
of qualified catch in ten years or less, a year with no qualifying
legal landings would be dropped. Processing companies that are no
longer active--meaning that they do not have a current FFP or FPP upon
the effective date of the final rule implementing this Program--would
not be issued QS.
For each processor, the sum of all years of deliveries of legal
landings is calculated, the year with the smallest amount of delivered
legal landings is dropped, and the total of the remaining years
determines the FFP or FPP's QS
[[Page 8599]]
units. This process is done for all processors. The sum of all the
processor QS units would determine the denominator of the initial QS
pool for processors. All processor QS units combined would represent
22.5 percent of the A and B season BSAI Pacific cod trawl CV DFA.
D. PCTC Program Official Record
NMFS would establish a PCTC Program official record containing all
necessary information concerning PCTC Program legal landings during the
qualifying period, vessel and processor ownership, LLP license
holdings, and any other information needed for assigning QS. The
official record would include landings data (from the Catch Accounting
System), documentation of LLP licenses, FFPs, and FPPs, and observer
data. NMFS would presume the official record is correct and an
applicant wishing to amend the official record would have the burden of
establishing otherwise through an evidentiary and appeals process. That
process is described in Section III.C of this preamble below.
The official record would be used to establish the initial pool of
QS that would be distributed to eligible harvesters and processors.
Each metric ton of legal landing credited to a qualifying LLP
license would result in one QS unit. This initial QS pool would be
adjusted should the official record be amended through successful
claims brought by an eligible participant or other corrections to the
underlying data. See Parts E and F of this section below for more
detail. As with other LAPPs (e.g., Central GOA Rockfish Program or the
Amendment 80 Program), NMFS would establish ownership and use caps
using this initial QS pool. Ownership and use caps are described
further under Section VII of this preamble.
E. Harvester Allocations of QS in the PCTC Program
Under this proposed rule, the Regional Administrator would allocate
PCTC Program QS to an eligible harvester--i.e. LLP license holder--who
submits a timely Application for PCTC Program QS that is approved by
NMFS based on the amount of BSAI trawl Pacific cod legal landings
assigned to an LLP license.
NMFS proposes to assign a specific number of Pacific cod QS units
to each LLP license with no transferable AI endorsement based on the
legal landings of the LLP license using information from the PCTC
Program official record as of December 31, 2022 according to the
following procedures:
(1) Determine the BSAI trawl CV Pacific cod legal landings
authorized by an LLP license for each calendar year from 2009 through
2019.
(2) Drop from consideration the calendar year in which the LLP
license had the least amount of legal landings. If an LLP license had
one or more years with zero harvest, drop one of those years.
(3) Sum the Pacific cod legal landings for the 10 years in which
each LLP license had the most landings. This yields the QS units for
each LLP license.
NMFS proposes to assign a specific number of Pacific cod QS units
to each LLP license with a transferable AI endorsement based on the
legal landings of each vessel that was used to generate the
transferable AI endorsement and subsequent legal landings authorized by
the LLP license associated with the endorsement using information from
the PCTC official record according to the following procedures:
(1) Determine the BSAI trawl CV Pacific cod legal landings for each
vessel used to generate the transferable AI endorsement from January
20, 2004 through September 13, 2009 and the LLP license associated with
that transferable AI endorsement from September 14, 2009 through the
end of 2019.
(2) Drop from consideration the calendar year which the vessel used
to generate the transferable AI endorsement (January 20, 2004-September
13, 2009) or the associated LLP license (2009-2019) that had the least
amount of legal landings. If a vessel or LLP license had one or more
years with zero harvest, drop one of those years.
(3) Sum the Pacific cod legal landings for the 15 years in which
the relevant LLP license had the highest amount of legal landings. This
yields the QS units for LLP licenses with transferable AI endorsements.
After the QS units for the LLP licenses with and without
transferable AI endorsements are determined under part 3 of each
scenario above, NMFS would sum all harvester QS units to calculate the
harvesters' total QS pool. NMFS would then determine what portion of
the 77.5 percent of the A and B season DFA allocated as harvester QS
under the PCTC Program is represented by each LLP license's QS units.
To do so, NMFS would divide each LLP license's total QS units by the
sum ([Sigma]) of all QS units for all eligible LLP licenses based on
the PCTC official record as presented in the following equation:
LLP license's QS units/([Sigma] QS units for all LLP licenses) x
100 = Percentage of the total harvester QS pool allocated to that
eligible LLP license. The result (quotient) of this equation is the
percentage of the total harvesters' portion of PCTC Program allocation
(77.5 percent of the A and B season DFA) that a QS holder could assign
to a cooperative each year.
F. Processor Allocations of QS in PCTC Program
The Council recommended and NMFS proposes allocating harvest shares
to processors to provide stability to all of the sectors involved in
the fishery after it transitions from status quo conditions to the PCTC
Program.
Under the Program, processors with an eligible FPP or FFP that have
history of processing in the Federal BSAI Pacific cod trawl CV fishery
would be eligible to receive QS based on each processor's processing
history (subject limitations on the number of C/Ps authorized to
operate as motherships under BSAI FMP Amendment 120). Processors
eligible to receive QS would be issued a new PCTC Program processor QS
permit and could annually associate with a PCTC Program cooperative.
Harvesters in the cooperative would then have access to the CQ derived
from processor-held QS.
If a processor holding QS does not associate with a cooperative,
that processor's QS would be divided among cooperatives in the same
proportion as the CQ assigned to individual cooperatives that year. If
a processor associated with more than one cooperative during a year,
the CQ derived from their processor permit would be divided among the
cooperatives in the same proportion as the CQ derived from LLP licenses
within each associated cooperative.
Cooperatives would have some limitations on the manner in which
they can use CQ derived from processor-held QS. To address vertically
integrated companies where a processing company may also own LLP
licenses or CVs, the Council intended processor held QS to be divided
among cooperative CVs proportionately to the QS attached to LLP
licenses onboard the harvesting vessel. In other words, a cooperative
should not allow a CV or LLP license owned by that processor to harvest
a greater proportion of the CQ resulting from processor-held QS than
the LLP license would have brought into the cooperative absent any
processor-held QS. The cooperative would monitor this provision and
include reporting on harvest of CQ resulting from processor-held QS in
the PCTC Program cooperative annual report.
[[Page 8600]]
Processors that are no longer active (no longer hold an FPP or FFP
upon the effective date of the final rule implementing this Program)
would not be issued QS. The processing history associated with those
processors would be deducted from the total amount of eligible
processing history during the qualifying years when calculating the
distribution of QS to processors.
NMFS proposes to assign a specific number of Pacific cod QS units
to each processor permit based on the qualifying landings delivered to
the processor using information from the PCTC official record as of
December 31, 2022 according to the following procedures:
(1) Determine the BSAI trawl CV Pacific cod legal landings in the A
and B seasons delivered to each eligible processor for each calendar
year from 2009 through 2019.
(2) Drop from consideration the calendar year in which the
processor received the least amount of legal landings. If a processor
had one or more years with zero processing of Pacific cod legal
landings, drop one of those years.
(3) Sum the Pacific cod legal landings of the highest 10 years for
each eligible processor. This yields the QS units for each processor.
(4) Divide the QS units for each eligible processor by the sum
([Sigma]) of all QS units for all processors based on the PCTC official
record as presented in the following equation:
Processor's QS units/[Sigma] all processor QS units x 100 =
Percentage of the total processor QS allocation for that processor. The
result (quotient) of this equation is the percentage of the total
processors' portion of PCTC Program allocation (22.5 percent of the A
and B season DFA) that a QS holder could designate to a cooperative
each year.
Table 2--PCTC Program Initial QS Pool in Units
------------------------------------------------------------------------
PCTC Program initial QS pool
Species in units
------------------------------------------------------------------------
Pacific cod (Holders of LLP Licenses with [Sigma] highest 10 years of
no transferable AI endorsement). BSAI Pacific cod catch
history in metric tons in
the PCTC official record as
of December 31, 2022 for
LLP license holders.
Pacific cod (Holders of LLP licenses with [Sigma] highest 15 years of
transferable AI endorsements). BSAI Pacific cod catch
history in metric tons in
the PCTC official record as
of December 31, 2022 for
holders of LLP licenses
with transferable AI
endorsements.
Pacific cod (All processors).............. [Sigma] highest 10 years
BSAI Pacific cod processing
history in metric tons in
the PCTC official record as
of December 31, 2022 for
that BSAI Pacific cod for
eligible processors.
------------------------------------------------------------------------
G. PSC Limits in PCTC Program
The Council's experience with rationalization programs has shown
that, as the race for fish ends, fleets can make operational choices
that promote reductions in PSC. Reducing PSC is an important benefit of
the Program and reflects a substantial amount of public testimony
highlighting the importance of minimizing bycatch to the extent
practicable in this rationalization program consistent with the
Council's purpose and need statement and National Standard 9.
PCTC Program cooperatives would annually be apportioned halibut and
crab PSC limits based on the percentage of total BSAI Pacific cod CQ
allocated to their cooperative (derived from both harvester and
processor allocations of QS). NMFS would monitor PSC use at the sector
level and cooperatives would be responsible for managing PSC limits at
the cooperative level. Cooperatives would be prohibited from fishing
under the Program if a halibut PSC limit is reached for the cooperative
or from fishing in a crab bycatch limitation zone if a crab PSC limit
is reached in that relevant area. PSC limits may be transferred between
cooperatives to cover any overages or to allow a cooperative to
continue harvesting Pacific cod CQ.
Halibut PSC
Annually, the Council recommends to NMFS an apportionment of the
total halibut PSC allowances for the BSAI trawl limited access sector.
The BSAI trawl limited access sector is composed of the trawl CV sector
and the AFA C/P sector. The specific percentage of the total halibut
PSC limit assigned to the trawl limited access sector may change
annually based on the Council's recommendation. Each year after
apportioning the halibut PSC limit to the trawl CV sector for the A and
B season, NMFS will apply a fixed percentage reduction to that PSC
limit. In the first year of the program, NMFS will apply a 12.5 percent
reduction, and in the second year and each year thereafter, NMFS will
apply a 25 percent reduction (see section 2.10.3.1).
Because this halibut PSC reduction is limited to the PCTC Program,
it would apply only to the halibut PSC apportionment for the A and B
season Pacific cod trawl CV sector. The recommended reduction to
halibut PSC limits under the Program would be calculated annually and
published in the annual harvest specifications after the Council
recommends and NMFS approves the BSAI trawl limited access sector's PSC
limit apportionments to fishery categories.
Under the Program and this proposed rule, NMFS would apportion
halibut PSC limits assigned to the BSAI trawl limited access sector
Pacific cod fishery between the trawl CV and AFA C/P sectors.
Specifically, the halibut PSC limit would be divided between the trawl
CV and AFA C/P sectors based on historical use during the qualifying
years, with 98 percent apportioned to trawl CVs and 2 percent
apportioned to AFA C/Ps. NMFS would further apportion the halibut PSC
for the trawl CV sector between the PCTC Program (A and B seasons) and
the trawl CV Pacific cod C season. The C season apportionments would be
established before applying PSC limit reductions described above. Of
the halibut PSC limit apportioned to the trawl CV sector, 95 percent
would be available for the PCTC Program in the A and B seasons with 5
percent reserved for the C season. Any amount of the PCTC Program PSC
limit remaining after the B season would be reallocated to the trawl CV
limited access fishery in the C season.
Currently, 50 CFR 679.21(b)(2) and (e)(5) authorize NMFS, based on
Council recommendations, to establish seasonal apportionments of
halibut and crab PSC limits for the BSAI trawl limited access sector
fishery categories to maximize the ability of the fleet to harvest the
available groundfish TAC and to minimize PSC mortality to the extent
practicable. The factors considered annually are (1) seasonal
distribution of prohibited species, (2) seasonal distribution of target
groundfish species relative to prohibited species distribution, (3) PSC
needs on a
[[Page 8601]]
seasonal basis relevant to prohibited species biomass and expected
catches of target groundfish species, (4) expected variations in PSC
rates throughout the year, (5) expected changes in directed groundfish
fishing seasons, (6) expected start of fishing effort, and (7) economic
effects of establishing seasonal PSC apportionments on segments of the
target groundfish industry. Based on these criteria, the Council
recommends, and NMFS annually publishes the proposed seasonal PSC limit
apportionments to maximize harvest among fisheries and seasons while
minimizing PSC mortality.
The halibut PSC limit for the BSAI trawl limited access sector is
established at 745 mt (Sec. 679.21(b)(1)). The BSAI trawl limited
access sector halibut PSC limit is further divided by fishery
categories during the annual specifications process, with 391 mt (52.5
percent) of the sector limit designated for use in the BSAI Pacific cod
fishery in 2019. The halibut PSC limit for the BSAI trawl limited
access sector is an annual limit that is currently not apportioned by
season.
The following example using 2019 halibut PSC limits illustrates how
the PSC reduction under the PCTC Program would work once fully
implemented. The total 2019 BSAI trawl limited access sector halibut
PSC limit apportionment to the Pacific cod fishery category was 391 mt.
Had the Program been in place, 98 percent of that total would have been
apportioned to the trawl CV Pacific cod sector (383 mt) while the
remaining 2 percent would have been apportioned to the AFA C/P sector
(9 mt). The trawl CV halibut PSC limit portion (383 mt) would have been
further apportioned between the rationalized A and B seasons at 95
percent (364 mt) and the non-rationalized C season at 5 percent (19
mt). Finally, the halibut PSC limit for the rationalized A and B
seasons would have been reduced by 25 percent to 273 mt, resulting in a
halibut PSC limit savings of 91 mt. Any amount of the PCTC Program
halibut PSC limit remaining after the B season would have been rolled
over to the C season trawl CV limited access fishery but future savings
in halibut PSC that is achieved by not allocating 25 percent of the PSC
limit apportioned to the trawl Pacific cod sector in the A and B season
would not be used or reallocated for use in other fisheries.
Crab PSC
The Council recommended, and NMFS proposes, a 35 percent reduction
in crab PSC limits for PCTC Program trawl CVs during the A and B
season. For the crab PSC limits, the 35 percent reduction in PSC limits
for the PCTC Program would be effective immediately when the Program is
implemented (no phase-in). The annual crab PSC limits available to the
BSAI trawl limited access sector Pacific cod fishery category would be
apportioned between the trawl CV sector and the AFA C/P sector based on
the proportion of BSAI Pacific cod allocated to the two sectors: 90.6
percent to BSAI trawl CVs and 9.4 percent to AFA C/Ps.
Crab PSC limits include red king crab (Zone 1), C. opilio (COBLZ),
and C. bairdi (Zone 1 and Zone 2), are specified annually based on
abundance and spawning biomass and are established by regulation for
the BSAI trawl limited access sector, which is divided between the
trawl CV and the AFA C/P sectors (Sec. 679.21(e)(3)(iv)). Using the
2019 crab PSC limits as a reference point combined with the recent
decrease in abundance and biomass estimates, we can calculate that the
proposed 35 percent reduction in crab PSC limits in 2022 would have
resulted in an 80 percent reduction for red king crab (Zone 1), a 69
percent reduction for C. opilio (COBLZ), and a 48 percent reduction for
C. bairdi (Zone 1 and Zone 2).
Crab PSC limits would be based on the proportion of BSAI Pacific
cod allocated to the trawl CV sector (90.6 percent) and the AFA C/P
sector (9.4 percent). Of the crab PSC limit apportioned to the trawl CV
sector, 95 percent would be available for the PCTC Program (A and B
seasons) and 5 percent would be reserved for the C season. As with
halibut PSC, any amount of the PCTC Program PSC limit remaining after
the B season would be reallocated to the C season trawl CV limited
access fishery.
The following example using 2019 crab PSC limits illustrates how
the PSC reduction would work once fully implemented. The 2019 BSAI
trawl limited access sector red king crab (zone 1) PSC limit
apportionment to Pacific cod fishery category was 2,954 animals, which
would result in 2,676 animals apportioned to the BSAI trawl CVs and 278
animals apportioned to the AFA C/Ps. Had the Program been in place, the
BSAI trawl CV crab PSC limit would have been further apportioned
between the rationalized A and B seasons at 95 percent and the non-
rationalized C season at 5 percent. Thus, 2,542 animals would have been
apportioned to the rationalized A and B seasons and 134 animals would
have been apportioned to the C season. Finally, the crab PSC limit for
the rationalized A and B seasons would have been reduced by 35 percent,
resulting in a limit of 1,652 animals, which would have been a savings
of 890 animals. Any amount of the PCTC Program crab PSC limit remaining
after the B season would be rolled over to the C season trawl CV
limited access fishery, but future reductions in crab PSC would not be
allocated and therefore would not be available for use or reallocation
for use in other fisheries.
III. Application Process
A. Application for PCTC QS
A person would be required to submit an Application for PCTC
Program QS in order to receive an initial allocation of PCTC QS. NMFS
would require an application to ensure that QS is assigned to the
appropriate person(s) and to provide a process for resolving claims of
legal landings that are contrary to the official record. Once a person
submits an Application for PCTC Program QS that is approved by NMFS,
that person would not need to resubmit an application for QS in future
years.
A completed Application for PCTC Program QS must be received by
NMFS no later than 1700 hours AKST 30 days after the effective date of
the final rule or, if sent by U.S. mail, postmarked by that time.
Objective written evidence of timely application will be considered
proof of a timely application.
NMFS will mail an application package to all potentially eligible
LLP license holders, AI endorsement holders, and processors based on
the address on record at the time the application period opens upon
effectiveness of the final rule. This package would include a letter
informing potentially eligible LLP license holders and processors
whether NMFS has determined they are eligible to receive QS, and if so,
the amount of qualifying catch history calculated by NMFS based on the
official record. Applications will be available on the Alaska Region
website and interested persons could also contact NMFS to request an
application package. An application could be submitted electronically
or by mail.
Briefly, the Application for PCTC Program QS would need to contain
the following elements:
Identification and contact information for the applicant;
LLP licenses held by the applicant;
FFP or FPP held by the applicant;
Any other information required on the application; and
The applicant's signature and certification. If the
application is completed by a third party on behalf of the potential QS
recipient, authorization
[[Page 8602]]
for that person to act on behalf of the potential QS recipient.
B. Ninety Day Transfer Window for Non-Exempt AFA LLP holders
For LLP licenses associated with AFA non-exempt vessels, within 90
days of initial issuance of QS, the owner of the LLP license may
transfer QS to another LLP license associated with an AFA non-exempt
vessel. These QS transfers are subject to the QS ownership cap further
described in section VII.B of this proposed rule. This provision allows
LLP license holders that engaged in AFA sideboard harvesting agreements
during the qualifying period to transfer resulting QS back to the
originating LLP license.
The transferor and the transferee must submit to NMFS a letter as
evidence of their agreement to transfer the QS in this one-time
opportunity. In the letter, they must explain how much QS would be
transferred and to which LLP license or licenses.
If only one party submits evidence of an agreement, the QS would
remain with the LLP license to which it was initially assigned.
C. Application Review and Appeals
Persons applying for QS will state in their application whether or
not they agree with NMFS's calculation of catch and processing history
from the official record. If they disagree, they can submit supporting
documentation regarding their catch history along with their
application for QS. If any applicant disagrees with NMFS's initial
calculations and provides documentation to support claims of catch
history that are inconsistent with the official record, NMFS would
determine whether such documentation is sufficient to amend the
official record. If not, NMFS would inform the applicant that the
submitted documentation was insufficient and provide the applicant with
a 30-day evidentiary period to further support their claims. After the
close of the 30-day evidentiary period, NMFS would make its final
decision about the official record and issue an initial administrative
determinations (IAD) to the applicant. IADs would include all the
information described below. Applicants who disagree with the IAD may
appeal NMFS's decision through the NOAA National Appeals Office
according to the procedures found at 50 CFR 679.43.
NMFS's IAD would indicate the deficiencies and discrepancies in the
application or revised application, including any deficiencies in the
information or evidence submitted to support an applicant's claims
challenging the official record. NMFS's IAD would indicate which claims
could not be approved based on the available information or evidence
and provide information on how an applicant could appeal an IAD. An
applicant who appeals an IAD would not receive any QS based on
contested landings data unless and until the appeal was resolved in the
applicant's favor. Once NMFS has approved an application for PCTC
Program QS in its entirety, NMFS would assign QS units to an
applicant's LLP license or issue a processor a PCTC Program QS permit
with a specified number of QS units.
PCTC Program QS would be issued to the person identified in an
approved application for QS. Once PCTC Program QS is issued, the QS
units would remain attached to the associated LLP license or
processor's PCTC Program QS permit in most circumstances and could not
be severed or otherwise be transferred independently. There are several
limited exceptions to non-severability: (1) QS attached to LLP licenses
with transferable AI endorsements could be transferred along with the
endorsement to another LLP license that meets the criteria for a
transferable AI endorsement; (2) QS could be fully or partially
transferred during the limited 90-day transfer provision described in
section III.B of this proposed rule; (3) if a participant qualifies for
a legacy exemption and receives an initial allocation of QS in excess
of a program ownership cap, that participant's QS could be split during
a transfer to prevent any recipient from exceeding a cap; and (4) QS
could be separated from a processor QS permit in any transfer of
processor-held QS if necessary to prevent any transferee from exceeding
an ownership or use cap.
D. Transferring QS
1. Limits on Transferring QS
As stated above, once QS is assigned to an LLP license, it
generally could not be divided or transferred separately from that LLP
license. For LLP licenses with transferable AI endorsements, after
issuance QS generally could not be divided or separated from the
transferable endorsement. However, there is an exception for both LLP
licenses and processor-held QS permits that were initially issued QS
greater than the ownership cap (i.e. for persons granted a legacy
exemption from the ownership cap). For these QS holders, the amount of
QS over the cap may be severed from the permit (and divided to multiple
buyers) at the time of transfer because the QS caps do not allow a
legacy exemption to extend beyond initial issuance. This provision
would allow the transfer of an LLP license or processor-held QS permit
subject to a legacy exemption without the transferee exceeding a QS
ownership cap. In addition, for QS assigned to a processor holding a
PCTC Program QS permit--even if the transferor does not hold QS in
excess of any cap--QS could be divided or transferred separately from
that processor permit if a sale would otherwise result in the
transferee exceeding an ownership or use cap described in Section VII
of this preamble. NMFS would not approve transfers of an LLP license
with PCTC QS or a processor-held QS permit if the transfer would cause
a person to exceed the 5 percent harvester QS ownership cap or the 20
percent processor QS ownership cap.
If a QS holder has a legacy exemption from the QS ownership cap,
NMFS would not approve any QS permit transfers to that person unless
and until that person's holdings of QS are reduced to an amount below
the QS holdings cap.
2. Methods for Transferring QS
Any transfer of QS would require approval by NMFS to properly track
ownership and use cap accounting. For harvesters, QS could be
transferred with an LLP license or a transferable AI endorsement to
another person through the existing LLP transfer provisions described
in regulations at 50 CFR 679.4(k)(7).
3. Transferring PCTC Program QS
In order to transfer PCTC QS, a QS holder would submit to NMFS an
application to transfer an LLP license or an application to transfer a
processor QS permit. NMFS would require that the application include
any additional information needed for the transfer of QS, including the
sale price of QS. Applications to transfer an LLP license with PCTC QS,
a transferable AI endorsement with QS, or a processor-held PCTC Program
QS permit could be submitted electronically (see proposed regulatory
text at Sec. 679.130 for detailed information). Transfer forms would
be posted on the NMFS Alaska Region website.
B. CQ Transfers
Under this Program, a cooperative could transfer all or part of its
CQ to another cooperative for harvest subject to the limitations
imposed by the ownership and use caps described in Section VII of this
preamble and the proposed regulations. Transfer provisions would
provide flexibility for
[[Page 8603]]
cooperatives to trade Pacific cod for harvest or PSC to support the
PCTC program cooperative fishing. The ability to trade PSC allows
cooperatives to account for unforeseen circumstances, but the incentive
to avoid hitting a cooperative PSC limit remains because of the cost of
acquiring PSC from another cooperative.
To effectuate an inter-cooperative transfer, a designated
representative of each cooperative would need to agree to and complete
a CQ transfer application, which would be available on eFish or on the
NMFS Alaska Region website. A transfer of CQ would not be effective
until approved by NMFS. If the cooperative attempting to acquire CQ has
reached any relevant use caps, NMFS would deny the transfer
application.
C. Cooperative Reports
Under the PCTC Program, cooperatives would be asked to provide
voluntary annual reports to the Council. Consistent with other
cooperative programs developed by the Council, these reports would
include specific information on the structure, function, and operation
of the cooperatives.
Each year, the Council would receive reports outlining the
cooperatives' performance at one of its regularly scheduled meetings.
These reports would be used by the Council to ensure the program is
functioning as intended and to solicit timely information on issues
that may need to be addressed by the Council. The Council requested
that each cooperative report include information on CQ leasing
activities and any penalties issued, harvest of CQ resulting from
processor-held QS, cooperative membership, cooperative management, and
performance (including implementation of the AI set-aside when in
effect).
IV. PCTC Program Cooperatives
The PCTC Program is a cooperative-based program that requires
participants to join a cooperative each year. Cooperatives would
receive annual CQ derived from the QS held by the harvesters and
processors that join the cooperative. Under the Program, cooperative
members could coordinate their fishing operations, potentially reduce
operational expenses, and increase the quality and revenue from the
product, among other benefits.
A. Requirements for Forming a PCTC Cooperative
Under the PCTC Program, forming a cooperative would require at
least three LLP licenses with PCTC QS. Each cooperative would be
required to associate with at least one licensed processor. There would
be no limitation on the number of LLP licenses that may join a single
cooperative, the number of processors a cooperative could associate
with, nor on the amount of QS a single cooperative could control. There
also would be no limitation on the number of cooperatives that may
form, but each LLP license could be assigned to only one cooperative. A
person may hold multiple LLP licenses, meaning that a single LLP
license holder who holds three or more LLP licenses could form a
cooperative in association with a processor.
Annually, each cooperative would be required to submit an
Application for PCTC Program Cooperative Quota, identifying the CVs
that would be eligible to harvest a portion of that cooperative's CQ.
NMFS would process an application for CQ and, if approved, issue CQ
permits and apportioned amounts of annual crab and halibut PSC limits
to the cooperative. CQ would constitute an exclusive harvest privilege
for the A and B seasons. Under certain conditions, each cooperative
would be required to set aside 12 percent of the A season CQ for
delivery to an Aleutian Islands shoreplant as described further under
the AI Community Protections section below. Cooperative members would
determine their own harvest strategy, including which vessels could
harvest the CQ.
An LLP License holder may change cooperatives and processor
associations may change annually without penalty. However, harvesters
may not change cooperatives and cooperatives may not change their
processor associations during the PCTC Program fishing season. If an
LLP license is sold or transferred during the season, it would remain
with the cooperative until the end of the season. Inter-cooperative
formation would be allowed and an inter-cooperative agreement would be
required to implement the AI set-aside and to allow for efficient
trading of CQ or PSC limits between cooperatives.
The following would be required to form a PCTC Program cooperative
under the proposed Program:
A complete Application for PCTC Program CQ must be
submitted by November 1 of the year prior to fishing in the
cooperative;
A copy of the business license issued by the state in
which the PCTC cooperative is registered as a business entity;
A copy of the articles of incorporation or partnership
agreement of the PCTC Program cooperative;
A list of the names of all persons, to the individual
level, holding an ownership interest in the LLP licenses that join the
cooperative and the percentage ownership each person and individual
holds in each LLP license;
A list of trawl CVs eligible to harvest a portion of that
cooperative's CQ; and
A copy of the cooperative agreement signed by the members
of the PCTC Program cooperative, which must include, at a minimum, the
following terms: (1) QS holders affiliated with processors cannot
participate in price setting negotiations except as permitted by
antitrust law; (2) monitoring provisions, including sideboard
protections in the GOA, sufficient to ensure compliance with the PCTC
Program; and (3) a provision that specifies the obligations of PCTC QS
holders who are members of the cooperative to ensure the full payment
of cost recovery fees that may be due.
Annual CQ would be issued to each cooperative by NMFS based on the
aggregate QS of all cooperative members. NMFS would issue CQ by season
and rely on the cooperatives to ensure the seasonal limits are not
exceeded. Any unused A season CQ may be harvested during the B season.
CQ would not be designated for harvest in a management area (i.e., BS
or AI) but may be harvested from either area. However, NMFS will
annually establish a separate AI DFA to support the calculation of the
AI set-aside. For more information, see Section V of this preamble.
B. Application for Cooperative Quota (CQ)
The PCTC Program would require cooperatives to submit an annual
application for CQ by November 1, which is prior to the start of each
fishing year. NMFS would use these applications to issue CQ permits,
establish annual cooperative accounts for catch accounting purposes,
and identify specific vessels that would be associated with each
cooperative. As with other LAPPs, the information received in this
application would be used to review ownership and control information
for various QS holders to ensure that QS and CQ use caps are not
exceeded (see Section IX of this preamble for additional detail on use
caps).
An application for CQ must be submitted to NMFS no later than
November 1 of the year prior to fishing under the CQ permit to be
considered timely. The cooperative's designated representative would be
responsible for submitting the application for CQ on behalf of the
cooperative members. If the designated representative for the
[[Page 8604]]
cooperative were to fail to submit a timely application for CQ, NMFS
would not issue CQ to the members of the cooperative for that fishing
year. This requirement would require all participants in the Program to
organize as a cooperative prior to the November 1 deadline each year
and submit a complete application to avoid delay of CQ issuance.
The Applications for CQ would be available on the NMFS Alaska
Region website and would be able to be submitted electronically through
eFish or the NMFS Alaska Region website. The information that would be
required in the application is detailed in the proposed regulatory text
at Sec. 679.131. The following list summarizes the information that
would be required:
PCTC Program LLP license identification numbers;
Processor-held PCTC Program processor QS permit number(s)
and name of the processor that holds that each QS permit;
PCTC Program QS ownership documentation;
PCTC Program cooperative business address or identifier
identification;
Members of the PCTC Program cooperative and the associated
processor;
Trawl vessel identification, including the name(s) and
USCG documentation number of vessel(s) eligible to harvest the CQ
issued to the PCTC Program cooperative;
Designated representative and cooperative members'
signatures and certification; and
Authorization for the designated representative to act on
behalf of the cooperative to complete the application.
C. Issuing PCTC CQ
NMFS would review the CQ applications for accurate information, use
caps, and payment of any fees, including cost recovery. If approved,
NMFS would issue a CQ permit to the cooperatives. Permits would not be
issued until the annual harvest specifications are recommended by the
Council for the upcoming year. Permits would generally be issued in
early January for the upcoming year. The CQ permit would list the
metric tons of Pacific cod by A and B season that the cooperative may
harvest, the metric tons of apportioned halibut PSC, and the number of
each species of crab PSC that the cooperative may use during the
fishing year. The following is a brief description of the process NMFS
would use for calculating the amount of CQ issued to a cooperative.
CQ would be issued for A and B seasons separately, with total CQ
issued to all cooperatives in each season equal to the DFA. The
remaining TAC for the trawl CV sector would be the ICA for Pacific cod
caught as bycatch in other fisheries, such as pollock. The DFA would be
further subdivided into 77.5 percent for the harvester QS pool and 22.5
percent for the processor QS pool. These two QS pools would be
converted into CQ and issued as CQ to cooperatives.
D. Issuing PSC With CQ
The proposed Program would authorize NMFS to issue halibut and crab
PSC to each cooperative based on the proportion of Pacific cod QS, but
NMFS would monitor PSC use at the sector level. PSC used by PCTC
cooperative vessels would be deducted from the PCTC PSC limits when
they are directed fishing for BSAI Pacific cod during the A and B
seasons.
E. Processors in Cooperatives
A person holding a PCTC Program processor QS permit would be
required to associate with a cooperative to realize the economic
benefits associated with their QS. This creates an economic incentive
for the processors that hold QS to either associate with a cooperative
on an annual basis or sell their permit to a processor that would
associate with a cooperative. The CQ derived from processor-held QS
that is not associated with a specific cooperative would be distributed
among all the cooperatives that form in a given year in the same
proportion as the CQ assigned to each cooperative. A cooperative may
associate with a processor that does not hold PCTC QS.
A cooperative cannot designate CQ derived from processor-held QS to
a vessel owned by that processor in a greater amount than the LLP
license associated with the vessel would have brought into the
cooperative absent any processor-held QS. This provision is intended to
ensure that processor-held CQ is not utilized to primarily benefit
vessels in the cooperative that are owned by the processor. The
cooperative would monitor this provision and include reporting on
harvest of CQ derived from processor-held QS in the PCTC Program
cooperative annual report.
F. CQ Transfers
Under this Program, a cooperative could transfer all or part of its
CQ to another cooperative for harvest subject to the limitations
imposed by the ownership and use caps described in Section VII of this
preamble and the proposed regulations. Transfer provisions would
provide flexibility for cooperatives to trade Pacific cod for harvest
or PSC to support the PCTC program cooperative fishing when it cannot
be avoided. The ability to trade PSC allows cooperatives to account for
unforeseen circumstances, but the incentive to avoid hitting a
cooperative PSC limit remains because of the cost of acquiring PSC from
another cooperative.
To effectuate an inter-cooperative transfer, a designated
representative of each cooperative would need to agree to and complete
a CQ transfer application, which would be available on eFish or on the
NMFS Alaska Region website. A transfer of CQ would not be effective
until approved by NMFS. If the cooperative attempting to acquire CQ has
reached any relevant use caps, NMFS would deny the transfer
application.
G. Cooperative Reports
Under the PCTC Program, cooperatives would be asked to provide
voluntary annual reports to the Council. Consistent with other
cooperative programs developed by the Council, these reports would
include specific information on the structure, function, and operation
of the cooperatives.
Each year, the Council would receive reports outlining the
cooperatives' performance at one of its regularly scheduled meetings.
These reports would be used by the Council to ensure the program is
functioning as intended and to solicit timely information on issues
that may need to be addressed by the Council. The Council requested
that each cooperative report include information on CQ leasing
activities and any penalties issued, harvest of CQ resulting from
processor-held QS, cooperative membership, cooperative management, and
performance (including implementation of the AI set-aside when in
effect).
V. AI Community Protections
The Council and NMFS have long supported the development of a local
CV fleet in remote AI communities, and a variety of programs have been
implemented to encourage economic opportunities for local CVs and
processing operations. Some of these programs include: the allocation
of the AI pollock TAC to the Aleut Corporation, an Alaska Native tribal
organization that represents specific community interests in Adak (70
FR 9856; March 1, 2005); allocations of Western AI golden king crab to
the Adak Community Development Corporation under the BSAI Crab
Rationalization Program (70 FR 10174; March 2, 2005); and the
establishment of a Community Quota Entity Program in the AI that
[[Page 8605]]
provides additional fishing opportunities for residents of fishery
dependent communities in the AI and sustains participation in the
halibut and sablefish IFQ fisheries (79 FR 8870; February, 14, 2014).
Adak, the AI community with the most historical participation in the
Pacific cod fishery, also acts as a port of embarkation and
disembarkation for personnel on board C/Ps and CVs harvesting
groundfish in the AI.
The Council previously sought to ensure the continued participation
of remote AI fishing communities in the Pacific cod fishery through
BSAI Amendment 113, which was recommended by the Council and
implemented by NMFS at the start of the 2017 fishing year (81 FR 84434,
November 23, 2016). Amendment 113 set aside a portion of the BSAI
Pacific cod TAC for harvest by catcher vessels delivering their catch
to Aleutian Islands shoreplants. However, the U.S. District Court for
the District of Columbia vacated the rule implementing Amendment 113,
finding the record for that action failed to demonstrate consistency
with the Magnuson-Stevens Act's National Standards (Groundfish Forum v.
Ross, 375 F.Supp.3d 72 (D.D.C. 2019)). As a result of this court
decision, the regulations implementing Amendment 113 are no longer in
effect.
Shortly after the vacatur of Amendment 113, the Council initiated
action to rationalize the BSAI trawl CV Pacific cod fisheries and
included options to meet the objective of supporting sustained
participation by AI communities in the Pacific cod trawl CV fishery.
Under the PCTC Program, cooperatives would be required to collectively
set-aside 12 percent of the A season CQ for delivery to an Aleutian
Island shoreplant (AI CQ set-aside) during years in which an AI
community representative notifies NMFS of their intent to process
Pacific cod.
This provision is different from the set-aside implemented under
Amendment 113 but would achieve a similar goal. NMFS proposes new
regulations to implement the PCTC Program AI community measures, which
will include some provisions that are similar or identical to the
vacated regulations that implemented Amendment 113. For example,
Amendment 113 defined an ``Aleutian Island shoreplant'' to mean a
processing facility that is physically located on land west of 170[deg]
W longitude within the State of Alaska (State), and this same
definition will apply under the PCTC Program. Defining Aleutian Island
shoreplant is necessary because the existing term ``shoreside
processor'' in Sec. 679.2 can include processing vessels that are
moored or otherwise fixed in a location (i.e., stationary floating
processors), but not necessarily located on land. When Amendment 113
was vacated, the associated regulations lost their legal effect, though
they were not removed from the Code of Federal Regulations (CFR). Under
this proposed rule, NMFS proposes to remove regulatory provisions at
Sec. 679.20 that implemented the vacated Amendment 113 and add
provisions applicable to the PCTC Program.
Despite having a small local CV fleet, Adak has a substantial
degree of historical engagement in the AI Pacific cod fishery. Adak is
home to a large shoreplant, and, when operational, the Adak shoreplant
primarily receives and processes Pacific cod harvested in the A season.
In some years, the facility has not received any deliveries of
groundfish, crab, or halibut due to a variety of operational and
logistical challenges, as well as changes in fishery management.
Section 2.8.6 of the Analysis provides additional detail on Adak
shoreplant processing operations (see ADDRESSES).
A. Rationale for Establishing an AI CQ Set-Aside
This proposed rule is intended to provide benefits to harvesters
delivering to an Aleutian Island shoreplant, the shoreplants, and the
communities where those shoreplants are located. This objective is
consistent with long-standing policies recommended by the Council and
regulations established by NMFS to provide harvesting and processing
opportunities for communities in the AI. The Council determined and
NMFS agrees that a harvest set-aside is needed for several reasons.
First, the entire BSAI trawl CV Pacific cod apportionment could be
harvested in the BS which would mean no cod would be delivered to a
community in the AI, jeopardizing the ability of AI communities to
continue participating in the fishery. Second, the Council acknowledged
that the TAC for AI Pacific cod was significantly lower than predicted
in the last few years, meaning that the small vessels operating in and
around the AI could have reduced harvest opportunities in any given
year. Third, the rationalization programs, and particularly the
Amendment 80 Program, allowed an influx of at-sea processing capacity
into the AI Pacific cod fishery (until at-sea processing was limited by
Amendment 120 to the BSAI FMP), exacerbating the need for Council
action to support shoreside delivery of Pacific cod to AI fishing
communities. This proposed rule would strike a balance between
supporting fishery-dependent communities and ensuring that the fishery
sectors have a meaningful opportunity to fully harvest their
allocations by including several measures to prevent AI Pacific cod
from going unharvested. This proposed rule would provide benefits and
stability to fishery-dependent fishing communities in the AI when their
shoreplants are operating and is responsive to lingering effects caused
by changes in management regimes such as rationalization programs.
The Council recognized that neither of the existing Aleutian Island
shoreplants--in Adak and Atka--have participated in the AI Pacific cod
fishery in recent years. However, the Council also recognized that the
measures and CQ set-aside in this proposed rule would minimize the risk
that AI harvesters, processors, and communities would be excluded from
the AI Pacific cod fishery and would maintain opportunities for them to
participate.
This proposed rule would revise regulations to provide additional
incentives for harvesters to deliver AI Pacific cod to an Aleutian
Island shoreplant. The AI Pacific cod TAC is not sufficient to allow
all sectors to prosecute the AI Pacific cod fishery at their historical
levels. Without the management measures included in this proposed rule,
AI harvesters, shoreplants, and fishing communities could be preempted
from the fishery by the offshore sector. The CQ set-aside would be
especially beneficial to AI communities in low TAC years when harvest
could otherwise fully occur in the BS, preventing any cod deliveries in
the AI. The Council emphasized that this proposed rule would not affect
any sector's BSAI Pacific cod allocation or the CDQ Pacific cod
allocation in the AI. Non-CDQ sectors would continue to receive the
allocations established under Amendment 85.
B. Establishing a Set-Aside for AI Processors
The Council recommended, and NMFS proposes establishing a set-aside
provision for AI processors that would require cooperatives to set-
aside an amount of annual CQ for delivery to an Aleutian Island
shoreplant if the city of Adak or Atka files a notice of intent to
process that year. The amount of the AI set-aside would be specified
each year during the annual harvest specifications process. The amount
of the AI set-aside would be equal to the lesser of either the AI
Pacific cod non-CDQ DFA or 12 percent of the combined BSAI PCTC
[[Page 8606]]
Program A season CQ. The AI Pacific cod non-CDQ DFA is further
described below in section V.D of this preamble.
In administering the CQ set-aside, cooperatives would need to
ensure that CVs under 60 feet in length assigned to an LLP license with
a transferable AI endorsement have an opportunity to harvest at least
10 percent of the set-aside. The AI CQ set-aside would be in effect
during the A and B seasons unless the intent to process is withdrawn by
the AI community. If the intent to process is withdrawn, any remaining
portion of the AI CQ set-aside would be available for cooperatives to
harvest and deliver to any processor. Each year, a representative of
the cooperatives must submit an inter-cooperative agreement to NMFS
that describes (1) how the CQ set-aside would be administered by the
cooperatives, (2) how the cooperatives intend to harvest the set-aside,
and (3) how cooperatives would ensure that CVs less than 60 feet in
length assigned to an LLP license with a transferable AI trawl
endorsement have the opportunity to harvest 10 percent of the AI CQ
set-aside for delivery to an Aleutian Island shoreplant. All
cooperatives would be required to provide the cooperative's plan for
coordinating harvest and delivery of the set-aside to an Aleutian
Island shoreplant in the annual cooperative application, regardless of
whether a cooperative intends to harvest any amount of the CQ set-
aside.
The purpose of the inter-cooperative agreement would be to ensure
annual coordination between the PCTC Program cooperatives and
shoreplants that are operating in the AI and to guarantee that the AI
CQ set-aside is available to be harvested in the AI. This reduces the
management burden on NMFS and relies on the cooperatives to organize
the annual fishing activity.
The 12 percent CQ set-aside is based on historical use by the
Aleutian Island shoreplants. The Council did not recommend an
allocation to the Aleutian Island shoreplants based, in part, on
concerns about whether the plants would be in operation every year and
their ability to lease CQ, which was not the intent of the Council in
providing processing opportunities for the AI communities. A specific
objective is to provide an opportunity for AI cod harvests to support a
shoreplant that could be used in conjunction with other fishery
landings and allocations to benefit AI communities. The Council
determined that this AI CQ set-aside option best met their objective to
support sustained AI community participation in the Pacific cod trawl
CV fishery. The performance of this set-aside program will be evaluated
in the periodic program reviews.
The Council also noted that Aleutian Island shoreplants have a
different history in the fishery than the non-Aleutian Island
shoreplants, and, therefore, a different management structure is
appropriate. Because there is currently no Aleutian Island shoreplant
with an active FPP, no entity in the AI would be eligible for
processor-issued QS. Unlike with the BS processors, QS allocations to
AI processors would not work well based on the intermittent and
impermanent operation of the Aleutian Island shoreplants. For this
reason, the PCTC Program would provide benefits to Aleutian Island
shoreplants through an AI CQ set-aside rather than by allocating QS to
AI processors.
C. Intent To Process and Eligibility for AI Set-Aside
This proposed rule would require annual notification of intent to
process PCTC Program Pacific cod in the upcoming fishing year by a
representative of the City of Adak or the City of Atka. A signed letter
or memorandum would serve as the official notification of intent. This
proposed rule would require that the official notification of intent be
submitted to the NMFS Regional Administrator no later than October 15
of the year prior to fishing. Email submission of an electronic copy of
the official notification of intent by October 15 would provide NMFS
inseason management with the timely information it needs to manage the
upcoming fisheries and notify the cooperatives that the AI set-aside is
in effect for the upcoming year.
A city's notification of intent to process PCTC Program Pacific cod
would be required to contain the following information: date, name of
city, a statement of intent to process AI Pacific cod, statement of
calendar year during which the city intends to process AI Pacific cod,
and the contact information for the city representative where the
shoreplant is intending to process AI Pacific cod. If no notice of
intent to process is submitted, cooperatives would not be required to
set aside CQ for Aleutian Island shoreplant delivery.
On or before November 30, the Regional Administrator would notify
the representative of the City of Adak or the City of Atka confirming
receipt of their official notification of intent to process PCTC
Program Pacific cod. Shortly after receipt of an official notification
of intent to process PCTC Program Pacific cod, NMFS would announce
through notice in the Federal Register whether the AI set-aside will be
in effect for the upcoming fishing year.
Even if an AI community is uncertain at the time the notice of
intent is due as to whether an Aleutian Island shoreplant will be
operational, there would be no penalty to the AI community or
shoreplant for stating their intention to process but then later
withdrawing that notice of intent. An AI city would be allowed to
withdraw their notice of intent at any time after submitting it to
NMFS.
NMFS would monitor the implementation of the set-aside throughout
the A and B seasons. NMFS would consider the number and frequency of
deliveries to Aleutian Island shoreside processors as well as the
season timing and remaining CQ to be harvested. As soon as practicable,
if the Regional Administrator determines that Aleutian Island
shoreplants authorized under the PCTC Program will not process the
entire AI set-aside, the Regional Administrator could remove the
delivery requirement for some or all of the projected unused AI CQ set-
aside. The unused portion of the AI CQ set-aside would be made
available to PCTC cooperatives in proportion to the amount of CQ that
each PCTC cooperative received in the initial allocation of CQ for that
calendar year by inseason notification published in the Federal
Register.
If Adak and/or Atka withdraws its notice of intent to operate
during the A or B season, any remaining portion of the AI CQ set-aside
would be released to the cooperatives for delivery to any shoreside
processor or an eligible C/P with a Pacific cod mothership endorsement.
D. AI DFA
The Council recommended, and NMFS proposes that the amount of the
CQ set-aside for delivery to an Aleutian Island shoreplant would be
equal to the lesser of either the AI Pacific cod non-CDQ DFA or 12
percent of the A season CQ and would be in effect during the A and B
seasons. The Council and NMFS annually establish separate OFLs, ABCs,
and TACs, for the AI and BS subareas; however, the non-CDQ sector
allocations (including the PCTC Program allocations) remain BSAI-wide
allocations. When this CQ AI set-aside is equal to the AI DFA, directed
fishing for Pacific cod in the AI may be conducted only by PCTC Program
vessels that deliver their catch of AI Pacific cod to Aleutian Island
shoreplants. However, if the AI DFA is greater than the AI CQ set-aside
(and thus the set-aside is equal to 12 percent
[[Page 8607]]
of the A season CQ), the difference between the AI DFA and the AI CQ
set-aside may be available for directed fishing by all non-CDQ fishery
sectors with sufficient A season allocations and may be processed by
any eligible processor.
This proposed rule would require that NMFS annually specify an ICA
and a DFA derived from the Aleutian Islands non-CDQ TAC. Each year,
during the annual harvest specifications process described at Sec.
679.20(c), NMFS would specify an amount of AI Pacific cod that NMFS
estimates will be taken as incidental catch when directed fishing for
non-CDQ groundfish other than Pacific cod in the AI subarea. This
amount would be the AI ICA and would be deducted from the AI non-CDQ
TAC. The amount of the AI non-CDQ TAC remaining after subtraction of
the AI ICA would be the AI DFA.
NMFS would specify the AI ICA and DFA so that NMFS could clearly
establish amount of AI CQ set-aside. It would also aid the public in
knowing how much of the AI non-CDQ TAC is available for directed
fishing prior to the start of fishing to aid in the planning of fishery
operations.
The amount of the AI ICA may vary from year to year, and in future
years, NMFS would specify the AI ICA in the annual harvest
specifications based on recent and anticipated incidental catch of AI
Pacific cod in other AI non-CDQ directed groundfish fisheries.
VI. BSAI Pacific Cod CV C Season Fishery
A. Management of the Limited Access Fishery
As stated above, the PCTC Program would allocate only A and B
season trawl CV sector apportionments to cooperatives as CQ. The C
season apportionment--which is 15 percent of the total annual
allocation to the BSAI Pacific cod trawl CV sector--would remain a
limited access fishery open to all trawl CVs with LLP license
endorsements to harvest Pacific cod in the BS and/or AI with trawl
gear. The C season limited access fishery would be managed as it is
under status quo conditions, including management of incidental catches
of Pacific cod in other directed fisheries. This means that, as under
status quo conditions, any trawl CV with a Pacific cod endorsement and
BS and/or AI area endorsements is eligible to fish in the C season
until the TAC is reached.
B. ITAC and PSC Assigned to the Limited Access Fishery
Although directed fishing for Pacific cod in the C season (June to
November) is an important part of the annual fishing plan for some
trawl CVs, most of the trawl CV C season catch is incidental to other
directed fishing. In August, before directed fishing opens on September
1 for the hook-and-line and pot sectors, NMFS estimates any BSAI trawl
CV C season allocation would be available for reallocation to other
sectors. In some years, it is clear that a portion of the trawl CV TAC
will be available to reallocate, and NMFS may effectuate a reallocation
in late September or October. In other years, it is less clear whether
there will be any surplus TAC, and NMFS waits until after directed
fishing for pollock and Pacific cod by the trawl CV sector closes. In
that circumstance, reallocations would occur in November or December.
When the BS and AI Pacific cod TACs are higher, trawl CV C season
Pacific cod may go unused and can be reallocated to other sectors. In
some years, other trawl CV fisheries may be done for the year by
October and would not be considered for Pacific cod reallocations.
To help ensure efficient allocation management, NMFS may rollover
any unused portion of a seasonal apportionment from any non-CDQ fishery
sector (except the jig sector) to that sector's next season during the
current fishing year (Sec. 679.20(a)(7)(iv)(B) and (C)).
Under the PCTC Program, the cooperatives would be granted harvest
privileges in the A and B seasons of the BSAI Pacific cod fishery.
Those harvest privileges would alter the reallocation structure from
the trawl CV sector prior to the C season since roll-overs of unused
PCTC CQ to other sectors would not occur until the close of the annual
PCTC fishing year (the end of the B season). This proposed rule would
establish a separate C season halibut and crab PSC apportionment of
five percent before reducing the A and B season PSC limits as described
above.
VII. Ownership and Use Caps
A. LAPPs and Use Caps
Section 303A(c)(5)(D) of the Magnuson-Stevens Act requires the
Council to ensure that Program participants do not acquire an excessive
share of the total limited access privileges in the program by (1)
Establishing a maximum share, expressed as a percentage of the total
limited access privileges, that a limited access privilege holder is
permitted to hold, acquire, or use; and (2) Establishing any other
limitations or measures necessary to prevent an inequitable
concentration of limited access privileges.
The Council considered how the allocation of QS could result in
consolidation in the harvesting and processing sectors, and whether
consolidation could result in any participant acquiring an excessive
share of the limited access privileges. To prevent excessive
consolidation and any issues with excessive shares, the Program would
implement ownership caps to limit the amount of QS a person could hold
and use caps on the amount of CQ they could use. There are four types
of ownership or use caps under the PCTC Program that would apply to
harvesters and processors.
Ownership and use caps are typically implemented to limit
consolidation and prevent a person, vessel, or processing facility from
harvesting, processing, or controlling an excessive amount of the LAPP
shares. Here, the proposed ownership and use caps would limit
consolidation of both harvesters and processors in the BSAI trawl CV
sector, and this is described further in section 2.9.8 of the Analysis.
In development of previous catch share programs, the Council tried to
balance the goals of improving economic efficiency, maintaining
employment opportunities for crew, and providing financially affordable
access opportunities for new participants.
Individual ownership and use caps for both CVs and processors would
be calculated using the ``individual and collective rule.'' The
individual and collective rule means a person is deemed to own or use
QS or CQ in the same percentage that person owns or uses the relevant
license, permit, or vessel. For example, persons that hold 100 percent
of an eligible LLP license or processing permit would be assigned 100
percent of the QS assigned to that LLP license towards their ownership
cap. If they hold 50 percent of the license, they are credited with
holding 50 percent of the QS assigned to that LLP license. The same
logic applies to use caps: if a person owned 50 percent of a trawl CV,
they would be credited with using 50 percent of the CQ harvested by
that CV in calculating the use caps. If a person owns QS equal to the
maximum shares cap, that person would not be allowed to acquire any
additional QS. The proposed ownership and use caps of 5 percent for
harvesters and 20 percent for processors are well below what the
Council would consider an excessive share because such ownership
amounts would preserve
[[Page 8608]]
price competition and would not result in any participant wielding
improper market power. Because the proposed program caps fall well
short of excessive shares, the Council recommended and NMFS proposes
granting legacy exemptions to participants whose initial allocations
based on historical participation would otherwise exceed the ownership
and use caps. The legacy exemptions are intended to preserve stability
in the fishery rather than force longtime participants to divest and
reduce their reliance on the fishery. However, legacy exemptions are
unique to persons receiving initial allocations and could not be
transferred. All future purchasers of QS would be subject to the
ownership and use caps described below.
B. QS Ownership Caps
1. Harvester QS Ownership Cap--5 Percent
With the exception of persons qualifying for the proposed legacy
exemption, no person would be permitted to individually or collectively
own more than 5 percent of the aggregate PCTC Program QS units
initially assigned to eligible LLP licenses. The number of PCTC Program
QS units would be based on the PCTC Program official record. Section II
of this preamble provides a detailed example of how the PCTC Program
initial QS pool would be established. Persons over the cap at the time
of QS issuance would be granted legacy exemptions. However, when QS is
transferred, the person receiving the transfer would be prohibited from
holding or using QS over the 5 percent cap. Processor-issued QS would
not count toward this use cap. This QS ownership cap would limit the
amount of PCTC QS assigned to an LLP license that could be held or
controlled by a single entity.
2. Processor QS Ownership Cap--20 Percent
With the exception of persons qualifying for the proposed legacy
exemption, no person would be permitted to individually or collectively
own more than 20 percent of the aggregate PCTC QS units initially
assigned to PCTC Program QS permits held by eligible processors. This
proposed rule defines processor-issued QS caps that limit the percent
of that class of shares a person could hold or use. Processor-held QS
ownership caps are necessarily higher than harvester-held QS caps
because the total number of eligible processors is significantly less
than the number of harvesters. This cap would be applied at the
aggregate firm level (not the individual facility level). Persons over
the cap at the time of QS issuance would be granted non-transferable
legacy exemptions. The processor QS ownership cap would limit the
amount of processor held PCTC QS that could be held or controlled by a
single entity.
C. Vessel CQ Use Cap--5 Percent
Most of the cooperative programs in the North Pacific include a
vessel harvesting or use cap. A vessel use cap restricts the quota that
can be consolidated and harvested on one vessel during the year.
The Program would include a 5 percent vessel use cap on PCTC
Program harvesting vessels. With the exception of persons qualifying
under the proposed legacy exemption, no vessel would be permitted to
harvest more than 5 percent of the annual PCTC CQ issued in the
fishery. Vessels over the cap at the time of QS issuance would be
granted legacy exemptions. The legacy exemption would apply to the
vessel designated on an LLP license that yields more than 5 percent of
the annual Pacific cod CQ at the time of initial allocation. This
legacy exemption is not transferable if the LLP license is transferred
to a new owner. The vessel use cap would limit the amount of PCTC CQ
that could be harvested by a single vessel.
D. Processor CQ Use Cap--20 Percent
A processor's CQ use cap would protect against excessive
consolidation of processing activity by limiting a person (i.e. company
or firm) from processing more than 20 percent of the annual PCTC CQ,
with the exception of persons qualifying under the proposed legacy
exemption. The processor CQ use cap would be calculated based on use of
all CQ issued under the PCTC Program and not just QS initially issued
to processors. This would ensure that a processing company would be
limited to processing a specific percentage of the PCTC Program
allocation. If the cap was set at the facility level, as was considered
by the Council, there would have been no processing limit if a firm
operated enough plants.
Under this proposed rule, no person may process more than 20
percent of the PCTC CQ using the individual and collective rule. A
person over the cap at the time of QS issuance would be granted a non-
transferable legacy exemption. The processor CQ use cap would limit the
amount of PCTC CQ that could be processed by a single person.
E. Transfer Limitations
1. QS Transfer Limitations
Under the PCTC Program, LLP license holders that receive QS may
transfer PCTC QS concurrently with the transfer of the LLP license or
AI endorsement to which it is attached. Initially-issued QS is attached
to LLP licenses and QS is non-severable from the LLP license in most
cases. However, for LLP licenses with transferable AI endorsements, QS
is instead non-severable from the AI endorsement and would move with
the AI endorsement if sold to the holder of another LLP license
eligible for the transferable AI endorsement. Transfer of an LLP
license or AI endorsement results in the transfer of any PCTC Program
eligibility and QS associated with the LLP license or transferable AI
endorsement. NMFS would not approve transfers of LLP licenses or AI
endorsements if the transfer would cause a person to exceed any
ownership or use caps. If an LLP license holder qualifies for a legacy
exemption from the QS ownership or use caps, NMFS would not approve any
transfers of QS to that person unless and until that person's holdings
of aggregate PCTC QS are reduced to an amount below the cap.
To transfer an LLP license or an AI endorsement with PCTC Program
QS, the LLP license holder must fill out an application for the
transfer of an LLP groundfish or crab license, or for the transfer of
an AI endorsement. In the application, the transferor must specify the
amount of QS to be transferred (generally all QS attached to the
license) the transferee, and the price for the QS transfer. As stated
above, NMFS will consider any ownership or use cap implications in
reviewing transfer applications. In addition, the QS price will be used
in aggregate during program reviews.
For processor-held QS, the QS also is non-severable from the permit
unless the transfer would cause a transferee to exceed any holding or
use caps. If a processor qualifies for a legacy exemption from the QS
holding or use caps, NMFS would not approve any PCTC Program QS permit
transfers to that person unless and until that person's holdings of
aggregate PCTC QS are reduced to an amount below the QS use cap. A PCTC
QS permit issued with a legacy exemption with an amount of PCTC QS
above the QS ownership cap may be transferred, and any QS above the
ownership cap would be severed from the PCTC QS permit at the time of
transfer. Any PCTC QS severed from a PCTC QS permit at the time of
transfer may be transferred to another eligible processor permit or
used to create a new
[[Page 8609]]
PCTC QS permit to be issued to an eligible shoreside processor that
holds an FPP. If a processor allows their FPP to expire, they would no
longer be eligible to use their QS, but they could still transfer their
QS permit.
To transfer QS held by a processor, the processor must fill out an
application to transfer QS. In the application, the transferee must
specify the amount of QS to be transferred (generally all QS on the
permit), which processors are receiving it, and the price for the QS
transfer. NMFS will consider whether a transfer implicates any
ownership or use caps in reviewing applications. In addition, the QS
price will be used in aggregate during program reviews.
2. CQ Transfer Limitations
In addition to permanent transfers of QS, CQ may also be
transferred during the fishing season. Annual CQ and associated PSC are
transferable between cooperatives through eFish, which automatically
reviews transfers and approves them if they remain below specified use
caps. Transfers of CQ would be for a single year's annual allocation.
The underlying QS remains with the LLP license.
This proposed rule would allow post-delivery transfers of CQ, but
they must be completed prior to August 1, after the close of the B
season. The intent of this provision is to improve cooperative
flexibility, reduce potential violations from overages, reduce
enforcement costs, and allow more complete harvests of each
cooperative's allocation. At the end of the fishing season, remaining
CQ may be consolidated into fewer cooperatives (and for harvest by
fewer vessels) due to the requirement that a vessel may not begin a
fishing trip without unharvested CQ. Allocations will likely be
consolidated in one or two cooperatives with harvesters in those
cooperatives making ``sweep up'' trips to complete the season's
harvests. Although consolidation of allocations in one or two
cooperatives may help avoid overages, it is anticipated that
unintentional small overages could still occur.
Additional PCTC Program Provisions
A. Sideboard Limits in the PCTC Program
Sideboard limits are restrictions placed on holders of quota share
in rationalized fisheries that prevent them from taking advantage of
the benefits of consolidation to expand their operations into other
fisheries. PCTC Program sideboard limits would be intended to prevent
holders of QS from expanding their fishing effort in GOA fisheries.
Sideboard limits would allow cooperative members to catch up to the
historical percentage of species they harvested in non-rationalized GOA
groundfish fisheries. Sideboard limits are not an allocation. Rather,
the sideboard is a limit on the catch of species that are not allocated
as QS. The PCTC Program is designed to provide certain economic
advantages to participants, which could be used to increase their
participation in other fisheries and adversely affect GOA fishery
participants by increasing competition in limited access fisheries.
PCTC Program participants would not be guaranteed any sideboard limit
as an amount of catch but instead could participate in the specified
directed fishery until the PCTC program CVs in the aggregate hit the
relevant species sideboard limit or TAC is closed to directed fishing,
whichever happens first. To limit the participation of PCTC Program QS
holders in other fisheries, the Program would add sideboard limits for
GOA non-exempt AFA CVs and AFA LLP licenses and restrict vessels that
are exempt from GOA sideboard limits from leasing CQ within the
cooperative.
The PCTC Program would modify existing GOA sideboard limits and
associated GOA halibut PSC limits for non-exempt AFA vessels and LLP
license holders, close directed fishing where sideboard limits are too
small to support a directed fishery, and require that PCTC Program
cooperatives monitor and report on leasing activity for vessels that
are not subject to GOA sideboards. Most vessels that are exempt from
the GOA sideboard limits would be prohibited from leasing their CQ
under the program as a condition of benefitting from that exemption,
with one exception: AFA GOA-exempt CVs, non-AFA CVs, and CVs assigned
to under 60' LLP licenses with transferable AI endorsements with less
than 300 mt of average annual qualifying catch history would be
permitted to lease their CQ.
Existing GOA Sideboard Limits for Non-Exempt AFA CVs and LLP Licenses
In the GOA, AFA CVs are divided into two categories: vessels
subject to sideboard limits and vessels exempt from sideboard limits.
The limits are currently calculated based on the catch histories of the
non-exempt AFA CVs. Specifically, the sideboard ratio is aggregated
retained catch for each groundfish species or species group from 1995
through 1997 period relative to the sum of the TACs for the species or
species group. Through an inter-cooperative agreement, AFA cooperatives
currently divide the sideboard limits among the cooperatives and set
penalties for exceeding the limits.
AFA CVs that had a historical dependence on GOA fisheries and
limited history in the BSAI pollock fishery benefit from an exemption
to the GOA sideboard limits. The Council recommended an exemption to
GOA sideboard limits for AFA vessels to be managed by the cooperatives
with the understanding that no GOA sideboard-exempt vessel would lease
its BS pollock in a year that it exceeds its GOA average harvest level
from 1995 through 1997. This exception is implemented through the AFA
CV Inter-Cooperative Agreement which binds vessels to this limitation.
The AFA fleet includes two classes of sideboard-exempt CVs: (1)
those exempt from sideboard limits in the BSAI Pacific cod fishery, and
(2) those exempt from sideboard limits in the GOA groundfish fisheries.
NMFS manages the AFA sideboard limits. The agency makes an initial
determination at the beginning of the fishing year regarding the
fisheries in which AFA vessels are likely to participate, based on
historical participation (sideboard ratios), TACs, PSC limits, and
other apportionments and regulations. The sideboard limit to TAC ratio
remains the same year-to-year but is applied to the current year's
initial total allowable catch (ITAC) to determine the yearly sideboard
limit (see Table 2-121 of the Analysis).
To streamline and simplify NMFS's management of AFA groundfish
sideboard limits, regulations currently prohibit directed fishing for
numerous BSAI and GOA species with historically small sideboards (84 FR
2723, February 8, 2019); (50 CFR 679.20(d)(1)(iv)(D) and 50 CFR
680.22(e)(1)(i) and (iii) and Tables 54, 55, and 56 to 50 CFR 679). See
Section 2.9.4 of the Analysis for the 2021 non-exempt AFA CV groundfish
sideboard limits in the GOA and for the non-exempt AFA CVs halibut PSC
limits in the GOA (see ADDRESSES). Section 2.9.4 provides a list of the
GOA groundfish species that are closed to directed fishing by AFA CVs.
However, AFA CVs qualified for the CGOA Rockfish Program with Rockfish
Program QS would not be restricted by AFA sideboard limits for primary
and secondary Rockfish Program species while participating in the
Rockfish Program.
The current GOA halibut PSC limit for non-exempt AFA CVs is
calculated based on the retained groundfish catch by AFA sideboarded
CVs in the shallow-water and deep-water complex
[[Page 8610]]
from 1995 through 1997 relative to total retained catch in the shallow-
water and deep-water complex by all vessels. Under the GOA halibut PSC
limits, fisheries in the applicable complex are closed for the
remainder of a season once NMFS determines that the PSC limit will be
reached. Any unused GOA halibut PSC in one season is added to the next
season. Conversely, if a seasonal apportionment of a trawl halibut PSC
limit is exceeded, the overage is deducted from the apportionment for
the next season during the current fishing year.
Changes to Existing GOA Sideboard Limits
Under the PCTC program, all GOA non-exempt AFA CVs and associated
AFA LLP licenses would be sideboarded in aggregate for all GOA
groundfish fishing activity and for GOA halibut PSC, except for vessels
when participating in the CGOA Rockfish Program, based on their GOA
catch history during the qualifying period. The existing sideboards are
applied to non-exempt AFA vessels as defined at Sec. 679.64(b)(2). The
PCTC Program would modify the calculation of the existing sideboard
limits for these non-exempt AFA CVs, based on the GOA catch history.
LLP licenses associated with non-exempt AFA CVs upon implementation of
the PCTC Program would also be subject to the revised sideboard limits
regardless of which vessel is named on the LLP.
Sideboards are currently calculated for non-exempt AFA CVs based on
the ratio of catch to the TAC during the years 1995-1997. The PCTC
Program modifies the calculation of the sideboard ratios for non-exempt
AFA CVs that would be used in the annual GOA harvest specifications,
looking at the ratio of catch to the TAC in the qualifying years of
2009-2019 (as shown in Table 3).
[GRAPHIC] [TIFF OMITTED] TP09FE23.000
In addition, the ratio used to apportion GOA halibut PSC limits
would be modified and the five seasonal apportionments based on that
sideboard ratio would be reduced to a single aggregate amount.
Providing an aggregate halibut PSC limit would provide greater
flexibility for the AFA vessels and LLPs to assign halibut PSC limits
to those GOA groundfish sideboard fisheries that have the greatest
value. Table 4 shows the new aggregate GOA halibut PSC limit ratio
based on the catch history during the qualifying period 2009-2019 that
would be used instead of the information currently in the GOA harvest
specifications table after the PCTC Program is implemented.
Table 4--New GOA Halibut PSC Limit Ratio Aggregated at the Season and
Complex Level for All AFA Non-Exempt CVs and Associated LLP Licenses
Under the Qualifying Period
------------------------------------------------------------------------
Qualifying
GOA halibut PSC limit period (2009-
2019)
------------------------------------------------------------------------
PSC Limit Ratio........................................ .072
------------------------------------------------------------------------
Additionally, the Council recommended and NMFS proposes to
[[Page 8611]]
close directed fishing to all GOA non-exempt AFA CVs and LLP licenses
for the following species categories: Southeast Outside district of the
Eastern GOA pollock, Western GOA shallow-water flatfish, Central and
Eastern GOA deep-water flatfish, and Eastern GOA Pacific ocean perch.
NMFS will no longer publish AFA Program sideboard limits for these
specific species or species groups in the Federal Register as part of
the annual groundfish harvest specifications but instead will specify
in regulation that directed fishing for these species is closed to non-
exempt AFA CVs.
AFA GOA-exempt CVs, non-AFA CVs, and CVs assigned to under 60 ft
LOA LLP licenses with transferable AI endorsements that receive PCTC
Program QS would not be permitted to lease the CQ generated by their
LLP license as a condition of benefiting from a GOA sideboard
exemption. If the GOA-exempt vessel assigned to the LLP license does
not fish in any GOA fishery, except the CGOA Rockfish Program, during
the calendar year, the BSAI Pacific cod CQ generated by the LLP license
can be leased that calendar year. Cooperatives would be required to
monitor CQ leasing activity by AFA GOA-exempt CVs, and non-AFA CVs, and
CVs assigned to under 60 ft LOA LLP licenses with transferable AI
endorsements and implement a penalty structure for violations.
Cooperatives would report leasing activities and penalties issued in
the voluntary cooperative annual report and in their annual cooperative
application. AFA GOA-exempt CVs, non-AFA CVs, and CVs assigned to under
60 ft LOA LLP licenses with transferable AI endorsements with less than
300 mt of average annual qualifying BSAI Pacific cod history may lease
their BSAI Pacific cod CQ and still benefit from the GOA sideboard
exemption.
Changes to Existing BSAI Sideboard Limits for AFA CVs
The BSAI Pacific cod and halibut PSC sideboard limits for AFA trawl
CVs specified at 679.64(b)(4)(i) and in Table 40 to part 679 would be
removed upon implementation of this Program. The BSAI Pacific cod
sideboard limit would no longer be necessary because BSAI Pacific cod
catch in the A and B seasons would be fully allocated under the PCTC
Program. NMFS proposes removing the halibut PSC sideboard limits for
AFA trawl CVs because the PCTC Program would establish lower PSC limits
for PCTC Program participants. The BSAI crab PSC sideboard limit for
AFA trawl CVs specified at Sec. 679.64(b)(4)(i) and Table 41 to part
679 would remain unchanged by this proposed rule. Table 41 also
establishes crab PSC sideboard limits for the AFA CV and AFA C/Ps, and
the PCTC Program would not change these overall limits.
B. At-Sea Processing Sideboard Limit
The Council recommended and NMFS proposes a sideboard limit on the
amount of CQ that could be delivered by trawl CVs to a C/P designated
on a groundfish LLP license with a BSAI Pacific cod trawl mothership
endorsement. This sideboard limit would be assigned to the LLP license
with a BSAI Pacific cod trawl mothership endorsement that authorizes
the C/P to act as a mothership in the BSAI Pacific cod fishery. The
Council recommended that each eligible C/P acting as a mothership could
process up to the higher of (1) 125 percent of the eligible C/P's
processing history during the qualifying years (with no drop year) or
(2) the history from LLP licenses that are owned (in excess of 75
percent) directly or indirectly by the owner of a C/P LLP license
eligible for the offshore sector of the target non-CDQ BSAI Pacific cod
trawl CV fishery (as of December 31, 2019) and not to exceed 125
percent of the eligible CP's processing history. This at-sea processing
sideboard limit would be permanently attached to the associated LLP
license and would apply to the processing activity of any associated
vessel.
The Council recommended and NMFS proposes to establish an at-sea
processing sideboard limit greater than the historical average to
provide some opportunity for growth relative to the C/Ps historical
annual average, though this limit may allow less offshore processing
than occurred during some of the qualifying years. The 125 percent
limitation was selected as a means to balance the needs of CVs that
want to (or in some cases must) deliver offshore, the historical C/P
platforms, shoreside processors, and the communities dependent on
shoreside landings. The option selected allows two eligible C/Ps acting
as a mothership to process up to 125 percent of their individual
average processing history over the qualifying period but does not
allow the firms to drop a year when calculating the limit. Due to
confidentiality constraints, NMFS cannot publicly release the data used
to calculate the limits, or the annual limits, that will apply to each
of the two qualifying LLP licenses authorizing a C/P to operate as a
mothership in this fishery. Because the amount is a limit and not an
allocation, the PCTC Program does not require that this amount be
delivered to C/Ps, but it provides an upper bound on how much may be
delivered.
This is consistent with the Council's intent under BSAI FMP
Amendment 120 (84 FR 70064, December 20, 2019), where it restricted the
number of C/Ps that are eligible to operate as a mothership receiving
and processing Pacific cod from CVs in the BSAI non-CDQ Pacific cod
directed fishery using trawl gear. Under Amendment 120, the Council and
NMFS issued a BSAI Pacific cod trawl mothership endorsement to two LLP
licenses but did not include a limit on the amount of BSAI Pacific cod
that could be processed because it was not thought that any one
processor could increase their capacity significantly under the LLP
management system. However, under a rationalized, slower paced,
cooperative fishing scenario that is proposed under this Program, the
Council and NMFS determined it would be possible for continued
mothership processing growth beyond historical patterns, so the Council
recommended that a processing limit be established for each LLP listed
in Table 57 to part 679. For more information on processing limits for
the mothership sector, please see section 2.9.5 of the Analysis (see
ADDRESSES).
NMFS would calculate the at-sea processing sideboard limit,
expressed as a percentage of the aggregate PCTC annual CQ that would
apply to each LLP license with a BSAI Pacific cod trawl mothership
endorsement and notify the LLP holder upon issuance of initial
allocations. Each year upon issuance of CQ, this processing sideboard
limit would be calculated for each applicable LLP. This proposed rule
would not change the regulations pertaining to the transfer of LLP
licenses as specified at Sec. 679.4(k)(7) nor the process to change
the designated vessel on an LLP as specified at Sec. 679.4(k)(7)(vii).
Each LLP subject to this at-sea processing sideboard limit would be
prohibited from exceeding the processing limit as specified in proposed
regulations below.
Due to confidentiality requirements, the amount of the processing
limit would not be made public and the LLP holder would be responsible
for coordinating with any PCTC Program cooperative to ensure the
applicable processing limit is not exceeded.
To facilitate accurate accounting of PCTC catch delivered to a
mothership and assign the catch delivered to a mothership in unsorted
codends to the correct management program, NMFS proposes adding a new
paragraph to the maximum retainable amount (MRA)
[[Page 8612]]
regulations at Sec. 679.20. This change will allow NMFS to assign each
codend or ``haul'' delivered to a mothership to the appropriate fishery
management program based on the retained catch composition of the haul.
Any unsorted codend delivered to a mothership during the applicable
PCTC season that is in the Pacific cod target fishery would be
considered PCTC CQ and resulting PSC use will be deducted from the
appropriate cooperative CQ and PSC limits. For any haul that is not in
the Pacific cod target, the catch of Pacific cod would be deducted from
the appropriate seasonal ICA and resulting PSC fishery category as
established in the annual harvest specification process.
C. Cost Recovery
The PCTC Program would be a LAPP established under the provisions
of Section 303A of the Magnuson-Stevens Act. The Magnuson-Stevens Act
requires that NMFS collect fees from limited access privilege holders
to cover the actual costs of management, data collection and analysis,
and enforcement activities associated with LAPPs. Cost recovery fees
may not exceed three percent of the ex-vessel value of the fish
harvested under the LAPP. NMFS would assess a fee on the ex-vessel
value of PCTC Program Pacific cod harvested by cooperatives in the
BSAI. Halibut and crab PSC would not be subject to a cost recovery fee
because PSC cannot be retained for sale and, therefore, does not have
an ex-vessel value.
Collecting fees for the PCTC Program would require determining CQ
ex-vessel value, assessing management costs, billing the appropriate
fee to each cooperative, and ensuring that cooperatives comply with the
fee collection requirements.
NMFS would rely on the existing BSAI Pacific cod Ex-vessel Volume
and Value Report to provide information on the ex-vessel value of
Pacific cod for the PCTC Program. Pacific Cod Ex-Vessel Volume and
Value reports are a component of existing groundfish cost recovery
programs, such as the Amendment 80 Program. A shoreside processor
designated on an FPP, or a mothership designated on an FFP, that
processes landings of either CDQ Pacific cod or BSAI Pacific cod
harvested by a vessel using trawl gear must submit annually to NMFS a
complete Pacific Cod Ex-vessel Volume and Value Report, as described at
paragraph Sec. 679.5(u)(1), for each reporting period for which the
shoreside processor or mothership receives this Pacific cod. Each
shoreside processor that would receive Pacific cod harvested under a
PCTC CQ permit is already required to submit this report to NMFS no
later than November 10 of each year pursuant to Sec. 679.5(u)(1)(iii).
This report would allow NMFS to collect price data from the PCTC
Program season which extends from January through June of each year and
generate a standard ex-vessel price for Pacific cod and determine the
average price paid per pound for all shoreside processors receiving CQ.
NMFS publishes the applicable Pacific cod standard ex-vessel prices and
fee percentage in the Federal Register following the end of the B
season fishery in the year the landings were made, which would provide
cooperatives with information necessary to assess their fee liability.
NMFS would publish the Pacific cod fee percentage in the Federal
Register that would determine the total fee, up to three percent of the
total ex-vessel value of the fishery, required from all cooperatives
based on landings of CQ made in the previous year. The fee percentage
is the total percentage of ex-vessel value due for each pound of CQ
made by a cooperative during the previous year. The amount due to NMFS
is based on the standard ex-vessel value of the CQ debited from all
PCTC Program CQ accounts relative to the actual costs directly related
to the management, enforcement and data collection of the PCTC Program.
NMFS would determine the fee percentage that applies to landings
made in the current calendar year by dividing the total value of
Pacific cod for all cooperatives made during the current year by the
total actual costs during the previous fiscal year. NMFS would capture
the actual cost of managing the fishery through an established
accounting system that allows staff to track labor, travel, and
procurement. Once the actual costs for the previous fiscal year are
identified, that amount is recovered from all CQ holders in the
fishery. If a three-percent fee would recover revenues in excess of
those needed, the percentage will be set at less than three percent.
The fee percentage could not be set at an amount higher than three
percent of ex-vessel value even if the actual costs for the previous
year exceeded three percent of the standard ex-vessel value for the
PCTC Program CQ landings.
NMFS would inform each cooperative of the fee percentage applied to
the current year's landings and the total amount due (fee liability).
NMFS advises cooperatives to inform NMFS if their contact information
has changed. This fee liability letter would be sent to cooperative
representatives after the fee was incurred (typically in the months
following). The fee liability letter would be provided before fees are
due on August 31 of each year. The letter would include a summary
explaining the fee liability determination including the current fee
percentage and details of CQ pounds debited from CQ allocations by
permit, date, and prices.
NMFS would require that all payments be submitted electronically in
U.S. dollars through the NMFS Alaska Region website. Many of the
cooperatives are familiar with, and regularly use, electronic
submissions of various forms under other catch share programs, such as
the AFA Program, and NMFS would extend this common practice to fee
submission for the PCTC Program. Instructions for electronic payment
would be made available on the payment website and through a fee
liability summary letter NMFS would mail to the CQ permit holder.
The cooperative representative would be responsible for paying cost
recovery fees. Failure to pay cost recovery fee liabilities on time
would result in NMFS not approving a cooperative's application for a CQ
permit the following year until full payment of the fee liability is
received by NMFS. This is because a CQ permit may not be issued until
NMFS receives a complete application for CQ, which would include
confirmation of the full payment of any cost recovery fee liability.
Communication with NMFS using the contact information provided in the
fee liability letter would provide ample opportunity for CQ permit
holders to reconcile accounts. However, if the account is not
reconciled and the individual does not pay, NMFS would send an initial
administrative decision (IAD) to the CQ permit holder. The IAD would
state that the CQ permit holder's estimated fee liability due from the
CQ permit holder had not been paid. Any such formal determination may
be appealed. The appeals process is described under 50 CFR 679.43. An
applicant who appeals an IAD would not receive a new CQ permit until
the appeal was resolved in the applicant's favor.
After 30 days, the agency may pursue collection of the unpaid fees
if the formal determination is not appealed and the account remains
unpaid or under-paid. The Regional Administrator may continue to
prohibit issuance of a CQ permit for any subsequent calendar years
until NMFS receives the unpaid fees.
The PCTC Program would follow this proposed cost recovery process
that builds on existing cost recovery processes in other programs. NMFS
would use standard prices derived from
[[Page 8613]]
volume and value reports, which are submitted in early November of each
year, from the calendar year prior to the landings used to calculate
the fee percentage. NMFS would begin tracking PCTC Program management
costs in the calendar year 2023 once the rule is in effect. PCTC
Program landings would be made in the A and B seasons, which extends
from January 20 to June 10.
To illustrate this in an example using the year 2025, the PCTC
Program fishing year that would have landings subject to cost recovery
would end June 10, 2025. NMFS would use standard prices derived from
the volume and value report submitted by November 10, 2024 for landings
made in 2024. Finally, NMFS would use the management costs from July,
2024 through June, 2025 to calculate the 2025 fee percentage. By no
later than July 31, 2025, the Regional Administrator would publish the
standard price and fee percentage in a notice in the Federal Register
and send invoices to cooperatives.
D. Monitoring Provisions
The Council recommended and NMFS proposes requirements for observer
coverage and other monitoring and enforcement provisions under the PCTC
Program to ensure that fleet-wide harvests can be effectively monitored
and that catches remain within allocations. These requirements include
full observer coverage for CVs harvesting PCTC Program CQ (except for
CVs delivering unsorted codends to motherships) and requirements for
communications equipment to facilitate observer data entry and
electronic transmission to NMFS. These monitoring provisions are
designed to maximize the quality of data used to estimate PCTC Program
catch and bycatch, including PSC. Delivered catch would be reported
electronically by shoreside processors through eLandings. Estimates of
at-sea discards and PSC would be derived solely from observer data. All
catch would accumulate against cooperative allocations and other
applicable limits.
Under the North Pacific Observer Program (Observer Program), all
vessels and processors in the groundfish and halibut fisheries off
Alaska are placed into one of two categories: (1) The full observer
coverage category, where vessels and processors obtain observer
coverage by contracting directly with observer providers; and (2) the
partial observer coverage category, where NMFS has the flexibility to
deploy observers when and where they are needed, as described in the
annual deployment plan that is developed by NMFS in consultation with
the Council. NMFS funds observer deployment in the partial observer
coverage category by assessing a 1.65 percent fee on the ex-vessel
value of retained groundfish and halibut from vessels that are not in
the full observer coverage category.
The Council recommended and NMFS proposes that all vessels under
the PCTC Program would be placed in the full coverage category of the
Observer Program. All vessels used to harvest PCTC CQ would be required
to carry at least one observer on board the vessel at all times except
for CV deliveries of unsorted codends to a mothership pursuant to the
exception specified at Sec. 679.51(a)(2).
The owner of a trawl CV in the full observer coverage category
would contract directly with a permitted full coverage observer
provider to procure observer services as described at Sec. 679.51(d).
The owner of a trawl CV in the full observer coverage category would
not be required to log fishing trips in Observer Declare and Deploy
System (ODDS) under Sec. 679.51(a)(1), and landings made by a vessel
in the full observer coverage category would not be subject to the 1.65
percent partial observer coverage fee under Sec. 679.55.
This action would not modify observer coverage requirements for
trawl CVs participating in the BSAI trawl limited access fisheries
during the C season. Regulations at Subpart E to part 679 specifying
observer coverage requirements would continue to apply. The owner of a
trawl CV would continue to be able to request, on an annual basis, that
NMFS place the vessel in the full observer coverage category for all
directed fishing for groundfish using trawl gear in the BSAI in the
following calendar year. Voluntary placement in the full coverage
category would apply to all non-PCTC directed fishing for groundfish
using trawl gear in the specified calendar year.
Additionally, the Council recommended and NMFS proposes that all
vessels used to harvest PCTC CQ would be required to provide equipment
and at-sea data transmission capabilities to facilitate electronic
transmission of observer data to NMFS. Requirements for non-AFA trawl
CVs to install equipment necessary to facilitate at-sea observer data
transmission requirements would not be effective until three years
after the effective date of the final rule implementing the PCTC
Program. This proposed rule also modifies regulations at Sec.
679.51(e)(2)(iii)(A) to explicitly include the electronic transmission
of observer data in the requirement for vessel operators to allow an
observer to use the vessel's existing communications equipment for
confidential entry, transmission, and receipt of work-related messages.
Under this proposed rule, all vessels participating in the PCTC
Program would be required to provide an onboard computer that meets
minimum specifications for use by an observer. Currently, NMFS uses and
installs custom software (ATLAS) on the vessel's computer, and this
software application is used by observers to enter the data they
collect. The ATLAS software contains business rules that perform many
quality control and data validation checks automatically, which
dramatically increases the quality of the preliminary data. After the
observer data are entered into the ATLAS software, it is transmitted to
NMFS.
At-sea transmission of observer data improves data quality. To
accommodate concerns by small vessel operators, the Council determined
and NMFS proposes that, for the first three years after implementation,
the current at-sea observer data transmission requirements would be
maintained, unless the necessary equipment is installed before that
time. Public testimony suggests that most of the vessels that do not
currently have data transmission capability would realize the benefits
from this program and be able to obtain the technology. Though the
installation of equipment to facilitate at-sea data transmission on
non-AFA vessels would not be required until after the first three years
of the Program, this proposed rule clarifies that if the vessel already
has equipment capable of facilitating at-sea data transmission, that
equipment must be made available to the observer for use in
transmitting work-related messages including collected data.
NMFS proposes requiring motherships receiving unsorted codends from
a PCTC Program CV to comply with catch monitoring requirements
specified at Sec. 679.93(c) for Amendment 80 vessels and C/Ps. These
requirements are already applicable to Amendment 80 C/Ps acting as a
mothership and would continue to apply when participating vessels act
as a mothership to process PCTC Program CQ. This proposed rule would
not alter existing observer coverage requirements for trawl CVs
delivering unsorted codends to a mothership in the BSAI. A trawl CV
delivering unsorted codends to a mothership is not required to carry an
observer because the catch is not brought on board the CV and not
available for observer sampling. Rather, the catch is sorted and
sampled by observers aboard the mothership.
Participating motherships would be required to have at least two
observers
[[Page 8614]]
aboard the mothership, at least one of whom would be required to be
endorsed as a lead level 2 observer. More than two observers would be
required to be aboard if the observer workload restriction would
otherwise preclude sampling as required. All PCTC Program catch, except
halibut sorted on deck by vessels participating in the halibut deck
sorting described at Sec. 679.120, would be required to be weighed on
a NMFS-approved scale in compliance with the scale requirements at
Sec. 679.28(b). Each haul would be required to be weighed separately
and all catch made available for sampling by an observer.
NMFS proposes catch monitoring requirements for shoreside
processors receiving deliveries from CVs harvesting PCTC Program
Pacific cod. The Council recommended that all shoreside processors
receiving deliveries from CVs harvesting PCTC Program Pacific cod would
comply with a NMFS certified catch monitoring and control plan (CMCP);
however, NMFS has determined that a CMCP is not necessary to ensure the
accurate accounting of all PCTC landings. Instead, NMFS proposes that
all groundfish landed by CVs described in Sec. 679.51(a)(2) would be
required to be sorted, weighed on a scale approved by the State of
Alaska as described in Sec. 679.28(c), and be made available for
sampling by an observer, NMFS staff, or any individual authorized by
NMFS. Any of these persons must be allowed to test any scale used to
weigh groundfish to determine its accuracy.
E. PCTC Program Review
Under the Magnuson-Stevens Act, a LAPP program review shall be
undertaken five years after implementation, with additional reviews
occurring, at a minimum, every seven years thereafter. A formal review
of the proposed PCTC Program by the Council would take place five years
after the implementation of the program and would help the Council
determine if the program is functioning as intended. The review process
would allow for a full evaluation of the program's successes or
challenges and provide the Council with details on unanticipated
consequences. The Council determined that a formal review process was
essential to the PCTC Program as a key tool to assess whether the PCTC
Program was achieving the goals of the Magnuson-Stevens Act and the
problem statement as identified in the Analysis (see ADDRESSES). This
review and evaluation by the Council would include an assessment of the
program objectives. Specifically, the Council would review whether the
allocation of Pacific cod is fair and equitable given participation in
the fishery, historical investments in and dependence upon the fishery,
and employment in the harvesting and processing sectors. The Council
would also assess performance of the program based on changes in annual
cooperative formation, changes in product value, the number and
distribution of processing facilities, and stability or use of annual
processor associations with harvesting cooperatives. The focus of these
reviews would be the impact of this action on the harvesting and
processing sectors, as well as on fishery dependent communities. The
Council would also assess whether the needs for management and
enforcement, as well as data collection and analysis, are adequately
met. Because the Council would undertake this review as part of routine
work, NMFS is not proposing regulatory changes to implement this review
process.
IX. Examples of Allocations Under the PCTC Program
The following section provides an example of QS allocations, annual
CQ allocations, and PSC limit calculations under the proposed PCTC
Program. For these examples, NMFS has used the 2022 harvest
specifications for groundfish of the BSAI (87 FR 11626, March 2, 2022)
to illustrate how annual TAC would correspond to issued QS, how
portions of annual TAC would be allocated as CQ, and how annual PSC
limits would be established for the cooperatives.
A. PCTC Program QS Pool Example
The first step of PCTC Program implementation would be for NMFS to
estimate the QS pools for both harvesters and processors.
Step 1: Determine the Total Legal Landings for PCTC Program Harvesters
Using the official record, NMFS would sum the best 10 of 11 years
of legal landings for all eligible LLP licenses during the 2009 through
2019 qualifying years for directed harvest of Pacific cod (or best 15
of 16 years from 2004 through 2019 for LLP licenses with transferable
AI endorsements). This estimate may be subject to change if the
official record is adjusted based on information provided through the
QS application process.
Step 2: Determine the Total Deliveries of Legal Landings for PCTC
Program Processors
Using the official record, NMFS would sum the best 10 of 11 years
of deliveries of legal landings for all eligible processors during the
2009 through 2019 qualifying years for directed harvest of Pacific cod.
This estimate may be subject to change if the official record is
adjusted based on information provided through the QS application
process.
Step 3: Establish the Initial PCTC Program QS Pools
NMFS would set the initial QS pool for harvesters and processors
equal to the sum of legal landings assigned to each LLP license or
processor in metric tons as of December 31, 2022, according the process
described in Step 1 and Step 2 above. Each metric ton of legal landings
in NMFS's official record on this date would yield one QS unit.
This example assumes that all potentially eligible persons applied,
NMFS reviewed the applications, no applicant challenged the official
record, and NMFS did not amend the official record. Each year, the
harvester QS pool would correspond to 77.5 percent of the annual A and
B season trawl CV DFA. Processor-held QS would correspond to 22.5
percent of the annual A and B season trawl CV DFA.
Step 4: Assign QS to an LLP License Holder
NMFS would assign QS to an LLP license holder who submits a timely
and complete application within 30 days of the effective date of the
final rule. Because issued QS would be permanently affixed to the LLP
license, except under specific circumstances defined in Section III D,
all qualifying LLP licenses would be reissued with PCTC Program QS.
Step 5: Assign QS to a Processor
NMFS would assign QS to a processor who submits a timely and
complete application by within 30 days of the effective date of the
final rule. The PCTC Program would issue a new PCTC Program QS permit
to eligible processors, and QS would be permanently attached to those
QS permits, except under specific circumstances defined in Section III
D.
B. TAC and CQ Example for the PCTC Program
The annual trawl CV sector allocation is 22.1 percent of the
combined BS subarea and AI subarea non-CDQ Pacific cod TAC. Table 1 in
Section I of this preamble provides sector allocations for Pacific cod.
The 2022 Pacific cod trawl CV sector allocation was 29,655 mt. The
sector allocation is further subdivided between the A season (74
percent), B season (11 percent), and C season (15 percent). As stated
above, the PCTC
[[Page 8615]]
Program allocation would be derived from the A and B season
apportionment of the annual trawl CV sector allocation. Before
allocating A and B season TAC to the PCTC Program as CQ, NMFS would
determine an ICA for each season that would be account for the
incidental catch of Pacific cod in other groundfish fisheries. This ICA
would be deducted from the A and B season trawl CV sector
apportionments, and the remainder would represent the A and B season
DFAs that would ultimately be allocated as CQ. For this example, NMFS
uses an ICA placeholder amount of 1,000 mt for the A season and 500 mt
for the B season. However, these ICAs are only for an example and the
ICA may change each year depending on projected incidental catch needs.
In 2022, if the PCTC Program were in effect, the DFA for the A and B
season--i.e., the allocation of Pacific cod to the PCTC Program--would
have been 20,945 mt in the A season ((29,655 x .74) - 1,000) and 2,762
mt in the B season ((29,655 x .11) - 500), for a total of 23,707 mt.
The C season DFA would have been 4,448 mt (29,655 x .15); there is no
ICA for the C season).
The PCTC Program apportionment would be assigned to PCTC
cooperatives as CQ. The Council recommended and NMFS proposes that 77.5
percent of the annual CQ would be issued to cooperatives proportionate
to the harvester-held QS and 22.5 percent of the annual PCTC Program CQ
would be issued to cooperatives proportionate to the processor-held QS.
Table 5--Final 2022 Sector Allocation and Seasonal Allowances of the BSAI Pacific Cod TAC for the Trawl CV
Sector and the PCTC Program
----------------------------------------------------------------------------------------------------------------
77.5 Percent of
annual PCTC CQ 22.5 Percent of
PCTC program issued to annual CQ issued
Sector Season dates 2022 TAC cooperatives for to cooperatives
apportionment harvester- held for processor-
QS (in mt) held QS (in mt)
----------------------------------------------------------------------------------------------------------------
Trawl CV sector TAC......... .............................. 29,655 ................ ................
A Season ICA................ .............................. 1,000 ................ ................
PCTC Program A Season DFA January 20-April 1............ 20,945 16,232 4,713
((TAC x .74) - A season
ICA).
B season ICA................ .............................. 500 ................ ................
PCTC Program B Season DFA April 1-June 10............... 2,762 2,141 621
((TAC x .11) - B season
ICA).
Limited Access C Season DFA June 10-November 1............ 4,448 ................ ................
(TAC x .15).
----------------------------------------------------------------------------------------------------------------
C. Annual CQ Issuance Example
Per Table 5, in this example the combined A and B season DFA to be
issued as CQ totals 23,707 mt. Of that total, 77.5 percent (18,373 mt)
would represent CQ derived from QS assigned to LLP licenses (harvester-
held QS pool), and 22.5 percent (5,334 mt) would represent CQ derived
from QS held by processors (processor-held QS pool). To illustrate how
CQ would be issued to cooperatives, assume that there are three groups
of LLP licenses that associate with three groups of processors holding
PCTC QS to form three cooperatives. The groups of LLP license holders
hold 30, 4, and 66 percent of the harvester-held QS pool of 18,373 mt,
respectively. The processors hold 8, 41, and 51 percent of the
processor-held QS pool of 5,334 mt, respectively. Harvester Group 1
associates with Processor Group 1 to form Cooperative 1, Harvester
Group 2 associates with Processor Group 2 to form Cooperative 2, and
Harvester Group 3 associates with Processor Group 3 to form Cooperative
3.
In this example, the cooperatives would be allocated annual totals
of CQ as described in the table below (actual CQ permits would specify
a separate CQ allocation for A and B seasons; those allocations are
combined here for simplicity and to illustrate hypothetical annual
totals):
Table 6--Examples of CQ Issuance to Three Hypothetical Cooperatives
----------------------------------------------------------------------------------------------------------------
Percent of Percent of 2022 CQ 2022 Percent
harvester QS processor QS derived from of PCTC total
(18,373 mt) (5,334 mt) QS (in mt) CQ
----------------------------------------------------------------------------------------------------------------
Harvester 1..................................... 30 .............. 5,512 ..............
Processor 1..................................... .............. 8 427 ..............
Cooperative 1................................... .............. .............. 5,939 25
Harvester 2..................................... 4 .............. 735 ..............
Processor 2..................................... .............. 41 2,187 ..............
Cooperative 2................................... .............. .............. 2,922 12
Harvester 3..................................... 66 .............. 12,126 ..............
Processor 3..................................... .............. 51 2,720 ..............
Cooperative 3................................... .............. .............. 14,846 63
Total CQ issued in A and B season........... 100 100 23,707 100
----------------------------------------------------------------------------------------------------------------
Classification
Pursuant to Section 304(b)(1)(A) of the Magnuson-Stevens Act, the
NMFS Assistant Administrator has determined that this proposed rule is
consistent with the BSAI FMP, other provisions of the Magnuson-Stevens
Act, and other applicable law, subject to further consideration after
public comment.
[[Page 8616]]
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
Regulatory Impact Review (RIR)
A Regulatory Impact Review (RIR) was prepared to assess all costs
and benefits of available regulatory alternatives. A copy of this
analysis is available from NMFS (see ADDRESSES). NMFS is recommending
Amendment 122 and this proposed rule based on those measures that
maximized net benefits to the Nation. Specific aspects of the economic
analysis are discussed below in the Initial Regulatory Flexibility
Analysis (IRFA) section.
Initial Regulatory Flexibility Analysis (IRFA)
This IRFA was prepared, as required by Section 603 of the
Regulatory Flexibility Act (RFA). The IRFA describes the economic
impact this proposed rule, if adopted, would have on small entities. An
IRFA describes why this action is being proposed; the objectives and
legal basis for the proposed rule; the number of small entities to
which the proposed rule would apply; any projected reporting,
recordkeeping, or other compliance requirements of the proposed rule;
any overlapping, duplicative, or conflicting Federal rules; and any
significant alternatives to the proposed rule that would accomplish the
stated objectives, consistent with applicable statutes, and that would
minimize any significant adverse economic impacts of the proposed rule
on small entities. Descriptions of this proposed rule, its purpose, and
the legal basis are contained earlier in this preamble and are not
repeated here.
Number and Description of Small Entities Regulated by This Proposed
Rule
The alternatives would directly regulate owners and operators of
harvesters and processors that participate in the BSAI trawl CV Pacific
cod fishery including (1) trawl CVs, (2) shoreside processors, (3)
floating processors, (4) trawl C/Ps acting as motherships, and (5)
small government jurisdictions in the AI. This action may also impact
observer providers that support the BSAI trawl CV Pacific cod fishery,
but they would be indirectly impacted. Therefore, observer providers
are not considered directly regulated entities in the IRFA prepared for
this action.
A small business includes any firm that is independently owned and
operated and not dominant in its field of operation. Businesses
classified as primarily engaged in commercial fishing are considered
small entities if they have less than 11 million dollars in annual
gross receipts for all businesses in the commercial fishing industry
(NAICS 11411). The RFA requires consideration of affiliations between
entities for the purpose of assessing whether an entity is classified
as small. The AFA pollock cooperatives, which make up a subset of the
entities regulated under this proposed rule, are types of affiliation
between entities. All of the AFA cooperatives have gross annual
revenues that are substantially greater than 11 million dollars.
Therefore, NMFS considers members in these cooperatives to be
``affiliated'' large (non-small) entities for RFA purposes. The
eligible AFA entities are large entities based on those affiliations.
The remaining 13 trawl CVs would be considered small entities. This
count includes five trawl CVs that are greater than 60 ft LOA and eight
CVs that are less than 60 ft LOA with a transferable AI endorsement.
Though C/Ps engage in both fish harvesting and fish processing
activities, since at least 1993, NMFS Alaska Region has considered C/Ps
to be predominantly engaged in fish harvesting rather than fish
processing. Under this classification, the threshold of 11 million
dollars in annual gross receipts is the appropriate threshold to apply
to identify any C/Ps that are small entities. All the C/Ps that are
directed regulated by this action do not meet the Small Business
Administration (SBA) definition of a small entity due to cooperative
affiliation.
Under the SBA's size standard for ``seafood product preparation and
packaging'' (NAICS code 311710), seafood processors are considered
small entities if they are independently owned and operated, not
dominant in their field of operation, and have a combined annual
employment of fewer than 750 employees. Of the plants that took
deliveries of Pacific cod from 2017 through 2019 that are currently in
business, one firm would be considered a small entity.
The RFA defines ``small governmental jurisdiction'' as the
government of a city, county, town, school district or special district
with a population of less than 50,000 people. Two small governmental
jurisdictions are directly regulated under the proposed action. Adak
and Atka would be required to submit a notice of their intent to
process to NMFS to receive a portion of the AI CQ set-aside described
in Section V of this preamble. The set-aside amount is intended to
benefit the AI communities and participation by these communities is
voluntary.
Description of Significant Alternatives That Minimize Adverse Impacts
on Small Entities
The Council considered an extensive and elaborate suite of
alternatives, options, and sub-options as it designed and evaluated a
quota share program for the BSAI Pacific cod trawl CV sector, including
a ``no action'' alternative. The RIR presents the complete set of
alternatives, in various combinations with the complex suite of
elements and options. The Council selected a preferred alternative that
includes a suite of elements and options to manage the BSAI trawl CV
Pacific cod sector. The alternatives proposed include no action
(Alternative 1) and action to implement a cooperative style LAPP for
the BSAI Pacific cod trawl CV sector (Alternatives 2a and 2b and
Alternative 3, which is the Council's recommended action).
In general, the recommended LAPP includes allocations of QS to
groundfish LLP licenses based on the legal landings of targeted BSAI
Pacific cod in a Federal fishery during a range of qualifying years
included in the options. The recommended action also allocates QS to a
processor permit based on processing history of legal landings of BSAI
Pacific cod harvested in a Federal fishery and deducted from the BSAI
trawl CV sector apportionment during the qualifying years. One
alternative considered but removed included gear conversion, which
would have authorized BSAI Pacific cod quota associated with trawl CV
LLP licenses to be fished annually by CVs using pot gear. In the end,
the Council did not include the gear conversion element in its
preferred alternative due to concerns over the possibility of high crab
PSC in pot gear for red king crab (Zone 1) and C. opilio.
A second option considered but removed was a cooperative formation
approach based on existing AFA and non-AFA membership. The AFA vessels
and non-AFA vessels would have formed their cooperatives independently
of each other. A person owning both an AFA vessel and non-AFA vessel
would have been required to join the AFA cooperative for the AFA vessel
and the non-AFA cooperative for the non-AFA vessel. Allowing only an
AFA and non-AFA cooperative was rejected by the Council after
considering the obstacles it would create under the various program
elements being considered by the Council and withdrawal of industry
support for the option. For example, under the options
[[Page 8617]]
that would allocate quota to processors, it would create a situation
where multiple processors could designate CQ to a cooperative and
require that the cooperative negotiate the terms and conditions of the
harvest of those Pacific cod. This would have raised antitrust concerns
that would need to be carefully navigated. Integrating multiple
processors, the potential limitation on competition, and reduced
cooperative formation choice were ultimately the issues associated with
the two cooperative approach that led to it being removed from
consideration. The recommended action allows a cooperative to associate
with one processor. This model has been used successfully in the AFA
program and CGOA Rockfish Program and reduces antitrust concerns that
were raised to the Council under the AFA and non-AFA cooperative
structure.
These alternatives constitute the suite of ``significant
alternatives,'' under this proposed action, for purposes of the RFA.
Based upon the best available scientific data, and consideration of the
objectives of this action, NMFS did not identify alternatives to the
proposed action that have the potential to accomplish the stated
objectives of the Magnuson-Stevens Act and any other applicable
statutes and that have the potential to minimize any significant
adverse economic impact of the proposed rule on small entities. After
public process, the Council concluded that the proposed PCTC Program
would best accomplish the stated objectives articulated in the problem
statement and applicable statutes, and minimize to the extent
practicable adverse economic impacts on the universe of directly
regulated small entities.
Duplicate, Overlapping, or Conflicting Federal Rules
No Federal rules that may duplicate, overlap, or conflict with this
proposed action have been identified.
Recordkeeping, Reporting, and Other Compliance Requirements
This action would implement new recordkeeping, reporting, and
compliance requirements and revise existing requirements. These
requirements are necessary for the management and monitoring of the
PCTC Program.
All PCTC program participants would be required to provide
additional information to NMFS for management purposes. Each harvester
would be required to track harvests to avoid exceeding their
allocation. As in other North Pacific rationalized fisheries,
processors would provide catch recording data to managers to monitor
harvest of allocations. Processors would be required to record
deliveries and processing activities to aid in the Program
administration.
To participate in the Program, persons are required to complete
application forms, transfer forms, reporting requirements, and
monitoring requirements. These requirements impose costs on small
entities in gathering the required information and completing the
information collections.
NMFS has estimated the costs of complying with the requirements
based on information such as the burden hours per response, number of
responses per year, and wage rate estimates from industry or the Bureau
of Labor Statistics. Persons are required to complete many of the
requirements at the start of the Program, such as the application to
participate in the Program. Persons are required to complete some
requirements every year, such as the cooperative application.
Additionally, reporting for purposes of catch accounting or transfer of
CQ among cooperatives is completed more frequently. The impacts of
these changes are described in more detail in Sections 2.10.7 and
2.10.12 of the Analysis prepared for this proposed rule (see
ADDRESSES).
New requirements for the PCTC Program include the Application for
PCTC Program QS, the 90-day transfer window, the Application for PCTC
Program CQ, the Application for Transfer of PCTC Program QS for
Processors, the AI notice of intent to process, inter-cooperative
transfers, the appeals process, and cost recovery fee.
The initial allocation process requires all eligible harvesters and
processors who want to participate in the PCTC Program to submit an
Application for PCTC Program QS to receive QS. This application is
needed to determine the allocation of QS to eligible LLP licenses and
to eligible processors. For CVs, NMFS will use the Catch Accounting
System data to determine how much Pacific cod was harvested using the
LLP license authorizing a CV and ask the current LLP license holder to
verify the catch estimate. For processors NMFS will use the Catch
Accounting System data to determine the amount of qualifying Pacific
cod delivered to the processor, and the processors will verify the
estimates. That information will also be used to determine whether the
QS holder complies with the ownership and use cap limitations imposed
under the program. Allowing persons to harvest a given percentage of
the fishery is anticipated to allow harvesters to avoid fishing in bad
weather conditions, improving safety of the fleet. The fleet is also
expected to be able to deliver a consistently higher quality product.
Quality improvements are expected to result from shorter times between
harvest and processing and less damage to the fish in the holds by not
fishing in bad weather.
In addition, the initial allocation process has a 90-day transfer
window to allow persons to transfer QS between non-exempt AFA LLP
licenses under certain conditions to honor private contracts and
agreements associated with harvest of the AFA Pacific cod sideboard
limits. This transfer window would allow persons to resolve any
disputes or request QS transfers between LLP licenses. After the 90-day
window for these transfers has closed, QS could not be separated from
an LLP license or transferable AI endorsement unless necessary to
prevent exceedances of the ownership or use caps, or if required by an
operation of law.
The PCTC Program would include a standardized appeals process. The
appeals process provides participants the required opportunity to
dispute the catch and processing history records in the Catch
Accounting System that are used to determine a person's allocation of
QS. The appeals process is in addition to the 90-day transfer window
discussed above and open to all participants, not just non-exempt AFA
vessels.
Each year the cooperative manager would be required to submit an
Application for PCTC Program CQ that identifies the LLP licenses and
processor QS permits named to the cooperative and the vessels allowed
to harvest the CQ. This application would include the inter-cooperative
agreement that defines how the AI CQ set-aside will be harvested during
years it is in effect. The Council requests that cooperatives submit an
annual cooperative report to the Council.
The Application of Transfer of PCTC Program QS for Processors would
be required for eligible processors to transfer their QS to other
processors. Processor QS assigned to a processor permit established
under the PCTC program may be transferred through the eFish system with
approval by NMFS.
The PCTC program requires the cooperatives to set aside 12.5
percent of their allocation for delivery to Aleutian Island shoreplants
in years that a representative from the City of Adak or the City of
Atka files a valid intent to process with NMFS. The intent to process
is necessary for NMFS and the cooperatives to know whether the
regulations established for the set-aside are in effect during the A
and B seasons.
[[Page 8618]]
If an intent to process is filed, it also triggers additional reporting
in the cooperative report to the Council.
The PCTC Program is a LAPP and therefore NMFS is required to
collect fees for the PCTC Program under sections 303A and 304(d)(2) of
the Magnuson-Stevens Act. Section 304(d)(2) of the Magnuson-Stevens Act
limits the cost recovery fee so that it may not exceed 3 percent of the
ex-vessel value of the Pacific cod harvested under the PCTC Program.
Ex-vessel volume and value reports currently being used to establish an
average annual price for BSAI trawl caught Pacific cod would be used to
establish the standard price and no additional collection of price data
would be necessary. NMFS uses this information to meet the required
provisions in sections 303A and 304(d) of the Magnuson-Stevens Act that
require NMFS to collect these fees associated with recoverable costs.
In addition to the new requirements, the PCTC Program would revise
existing requirements.
If LLP license holders want to transfer their LLP license or
transferable AI endorsement and the associated PCTC Program QS, they
must fill out an Application to Transfer a Groundfish or Crab LLP
License. This form would be revised to collect information on the PCTC
QS transaction, including QS prices, amount transferred, and whether
there are multiple transferees in the event ownership caps would
otherwise be exceeded. Information would be added to the LLP license
transfer form identifying how PCTC QS would be distributed to the other
LLP licenses if the original holder of the LLP license was assigned QS
that was over the 5 percent ownership cap and qualified for the legacy
exemption.
The PCTC Program would require updating ATLAS data transmission to
enable the timely electronic entry, archival, and transmission of
observer data for at-sea operations and shorebased processing plants.
This rule would require that all vessels submit logbooks when
fishing in the PCTC program. All CVs greater than or equal to 60 ft LOA
currently submit logbooks. Some CVs that may participate in the AI
Pacific cod fishery are less than 60 ft LOA and may already file
logbooks when fishing for Pacific cod. Many already complete logbooks
based on their participation in other programs. However, a small number
of CVs less than 60 ft LOA that do not currently submit a logbook would
likely need to begin submitting a logbook if they choose to participate
in the PCTC Program.
Paperwork Reduction Act
This proposed rule contains collection of information requirements
subject to review and approval by OMB under the Paperwork Reduction Act
(PRA). This proposed rule would add new collections of information for
the PCTC Program under a new OMB control number and revise requirements
for collections of information under existing OMB Control Numbers 0648-
0213 (Alaska Region Logbook and Activity Family of Forms); -0318 (North
Pacific Observer Program); -0334 (Alaska License Limitation Program for
Groundfish, Crab, and Scallops); -0711 (Alaska Cost Recovery and Fee
Programs); -0678 (North Pacific Fishery Management Council Cooperative
Annual Reports); and -0515 (Alaska Interagency Electronic Reporting
System). However, because the collection of information authorized by
OMB Control Number 0648-0515 is concurrently being revised in a
separate action, the revisions to that collection of information in
this proposed rule will be assigned a temporary control number that
will later be merged into 0648-0515. The existing collections of
information under OMB control numbers 0648-0330 (NMFS Alaska Region
Scale & Catch Weighing Requirements) and 0648-0445 (NMFS Alaska Region
Vessel Monitoring System (VMS) Program) will also provide information
needed to implement the PCTC Program and will continue to apply. This
proposed rule would not make any changes to these two collections of
information. The public reporting burden estimates provided below for
these collections of information include the time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
OMB Control Number 0648-NEW
This proposed rule would create a new collection of information
needed to implement PCTC Program. This new collection of information
would authorize applications and processes used by the PCTC Program
cooperatives, processors, LLP license holders, and community
representatives to apply for permits, to transfer cooperative quota and
quota share, to manage fishing and processor activity, and to appeal
agency decisions. This new collection is necessary for NMFS to
implement, monitor, and enforce the PCTC Program. The data would be
used to ensure that program participants adhere to all harvesting,
processing, ownership, and use limits. More information on these new
requirements is provided in the Classification section of this proposed
rule under the heading ``Recordkeeping, Reporting, and Other Compliance
Requirements.''
The public reporting burden per individual response is estimated to
average 2 hours for the Application for Pacific Cod Trawl Cooperative
Program Quota Share, 2 hours for the Application for Pacific Cod Trawl
Cooperative Program Cooperative Quota, 2 hours for the Application for
Transfer of Pacific Cod Trawl Cooperative Program Quota Share for
Processors, 10 minutes for the Application for Inter-Cooperative
Transfer of Cooperative Quota, 30 minutes for the notification of
intent to process Aleutian Islands Pacific cod, 2 hours for the 90-day
transfer window for non-exempt AFA LLP license holders, and 4 hours for
appeals.
OMB Control Number 0648-0213
This proposed rule would revise the existing requirements for the
collection of information 0648-0213 related to logbooks because CVs
participating in the PCTC Program would be required to submit a CV
trawl gear daily fishing logbook. Some CVs less than 60 ft LOA that do
not currently submit this logbook would need to begin doing so to
participate in the PCTC Program. The revision to this collection of
information adds the CVs less than 60 ft LOA that would need to start
using the CV trawl gear daily fishing logbook as new respondents. CVs
participating in the PCTC Program would have the option of using either
the paper logbook approved under this collection or the electronic
option, which is approved under OMB Control Number 0648-0515. The PCTC
Program does not change the information collected by this logbook. This
rule would require C/Ps and shoreside processors authorized as
processors in the PCTC Program to submit a product transfer report;
however, no changes would be needed to the respondents or responses for
this report because all expected respondents are currently submitting
it. The public reporting burden per individual response is estimated to
average 18 minutes for the Catcher Vessel Trawl Daily Fishing Log and
20 minutes for the Product Transfer Report.
OMB Control Number 0648-0318
This proposed rule would revise the existing requirements for the
collection of information 0648-0318 related to the North Pacific
Observer Program because all vessels participating in the PCTC program
would be required to have a
[[Page 8619]]
computer onboard and use ATLAS to submit observer data to NMFS. This
would increase the number of vessels that need to provide observers
access to a computer with ATLAS installed. PCTC Program participants
would have up to three years to install ATLAS. Most vessels comply with
this requirement by allowing NMFS to install ATLAS on an existing
computer on the vessel. Many, if not all, of the vessels that would
need to install ATLAS already have a computer that meets the minimum
requirements, and they would only incur costs if they choose to
purchase an additional computer. Estimated costs to purchase and
install the data transmission system vary from about $5,000 to $37,000,
depending on what a vessel needs to install. This rule also revises the
existing requirements in this collection because catcher vessels that
choose to participate in the PCTC Program would be required to be in
the full observer coverage category instead of the partial observer
coverage category. These catcher vessels would no longer be required to
use ODDS to log fishing trips; therefore, this would decrease the
number of respondents that log trips in ODDS. The public reporting
burden per individual response is estimated to average 15 minutes to
log a trip in ODDS.
OMB Control Number 0648-0334
This proposed rule would revise the existing requirements for the
collection of information 0648-0334 related to the LLP license and the
transferable AI endorsement to include PCTC Program QS information on
the groundfish/crab LLP license transfer application form. Subject to
public comment, no change is made to the burden because the estimate
allows for differences in the time needed to complete and submit the
form. The public reporting burden per individual response is estimated
to average 1 hour for the Application for Transfer LLP Groundfish/Crab
License.
OMB Control Number 0648-TEMPORARY
This proposed rule would revise the collection of information under
OMB Control Number 0648-0515 associated with electronic reporting.
However, due to multiple concurrent actions for that collection, the
collection-of-information requirements will be assigned a temporary
control number that will later be merged into OMB Control Number 0648-
0515.
PCTC Program participants would need to use eLandings to submit
landings and production information, which is approved under control
number OMB 0648-0515. CVs participating in the PCTC Program would be
required to submit a CV trawl gear daily fishing logbook and may use
either the electronic logbook approved under OMB Control Number 0648-
0515 or the paper logbook approved under OMB Control Number 0648-0213.
CVs greater than 60 ft LOA are already required to maintain logbooks
but this would be a new requirement for CVs less than 60 ft LOA. Some
CVs less than 60 ft LOA that do not current submit the logbook would
need to begin doing so. The temporary control number would cover the
revisions necessary to -0515 for the CVs that choose to submit
electronic logbooks. The PCTC Program does not change the information
collected by this logbook but does increase the number of participants
required to submit it. The public reporting burden per individual
response is estimated to average 15 minutes for the CV electronic
logbook.
OMB Control Number 0648-0678
This rule would revise the existing collection of information under
0648-0678 to because the Council requests PCTC Program cooperatives
submit a voluntary annual cooperative report to the Council. This
revision would add the PCTC Program cooperatives as new respondents
that will submit an annual cooperative report. The public reporting
burden per individual response is estimated to average 18 hours for the
PCTC Program annual report.
OMB Control Number 0648-0711
This proposed rule would revise the existing requirements for the
collection of information 0648-0711 related to cost recovery because
the PCTC Program is a LAPP that is subject to a cost recovery fee under
MSA 303A. This revision adds the PCTC Program cooperatives as new
respondents that will submit a cost recovery fee to NMFS. The rule
would require PCTC processors to submit an annual Pacific Cod Ex-vessel
Volume and Value Report; however, this would not change the respondents
or responses for this report because all expected respondents are
currently submitting it. The public reporting burden per individual
response is estimated to average 1 minute for the PCTC cost recovery
fee and 1 minute for the Pacific Cod Ex-vessel Volume and Value Report.
Public Comments
Public comment is sought regarding: whether these proposed
information collections are 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. Submit comments on these or any other
aspects of the collection of information to NMFS Alaska Region (see
ADDRESSES) or at www.reginfo.gov/public/do/PRAMain.
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, Reporting and recordkeeping requirements.
Dated: January 19, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 679 is
proposed to be amended as follows:
PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF 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; Pub. L. 111-281.
0
2. Amend Sec. 679.2 by:
0
a. Removing the definitions of ``Affiliation for the purpose of
defining AFA and the Rockfish Program'';
0
b. Adding the definitions of ``Affiliation for the purpose of defining
AFA, Rockfish Program, and PCTC Program'';
0
c. Republishing the definition of ``Aleutian Islands shoreplant'';
0
d. Revising the definitions of ``Cooperative quota'' and ``CQ Permit'';
and
0
e. Adding in alphabetical order the definitions of ``NMFS Alaska Region
website,'' ``Pacific Cod Trawl Cooperative (PCTC) Program,'' ``PCTC
Program cooperative,'' ``PCTC Program CQ,'' ``PCTC Program harvester QS
pool,'' ``PCTC Program official record,'' ``PCTC Program
participants,'' ``PCTC Program processor QS pool'', ``PCTC Program QS
unit,'' and ``PCTC Program quota share (QS)''.
The additions and revisions read as follows:
[[Page 8620]]
Sec. 679.2 Definitions.
* * * * *
Affiliation for the purpose of defining AFA, Rockfish Program, and
PCTC Program means a relationship between two or more individuals,
corporations, or other business concerns, except CDQ groups, in which
one concern directly or indirectly owns a 10 percent or greater
interest in another, exerts control over another, or has the power to
exert control over another; or a third individual, corporation, or
other business concern directly or indirectly owns a 10 percent or
greater interest in both, exerts control over both, or has the power to
exert control over both.
(1) What is 10 percent or greater ownership? For the purpose of
determining affiliation, 10 percent or greater ownership is deemed to
exist if an individual, corporation, or other business concern directly
or indirectly owns 10 percent or greater interest in a second
corporation or other business concern.
(2) What is an indirect interest? An indirect interest is one that
passes through one or more intermediate entities. An entity's
percentage of indirect interest in a second entity is equal to the
entity's percentage of direct interest in an intermediate entity
multiplied by the intermediate entity's direct or indirect interest in
the second entity.
(3) What is control? For the purpose of determining affiliation,
control is deemed to exist if an individual, corporation, or other
business concern has any of the following relationships or forms of
control over another individual, corporation, or other business
concern:
(i) Controls 10 percent or more of the voting stock of another
corporation or business concern;
(ii) Has the authority to direct the business of the entity that
owns the fishing vessel or processor. The authority to direct the
business of the entity does not include the right to simply participate
in the direction of the business activities of an entity that owns a
fishing vessel or processor;
(iii) Has the authority in the ordinary course of business to limit
the actions of or to replace the chief executive officer, a majority of
the board of directors, any general partner or any person serving in a
management capacity of an entity that holds 10 percent or greater
interest in a fishing vessel or processor. Standard rights of minority
shareholders to restrict the actions of the entity are not included in
this definition of control provided they are unrelated to day-to-day
business activities. These rights include provisions to require the
consent of the minority shareholder to sell all or substantially all
the assets, to enter into a different business, to contract with the
major investors or their affiliates, or to guarantee the obligations of
majority investors or their affiliates;
(iv) Has the authority to direct the transfer, operation, or
manning of a fishing vessel or processor. The authority to direct the
transfer, operation, or manning of a vessel or processor does not
include the right to simply participate in such activities;
(v) Has the authority to control the management of or to be a
controlling factor in the entity that holds 10 percent or greater
interest in a fishing vessel or processor;
(vi) Absorbs all the costs and normal business risks associated
with ownership and operation of a fishing vessel or processor;
(vii) Has the responsibility to procure insurance on the fishing
vessel or processor, or assumes any liability in excess of insurance
coverage;
(viii) Has the authority to control a fishery cooperative through
10 percent or greater ownership or control over a majority of the
vessels in the cooperative, has the authority to appoint, remove, or
limit the actions of or replace the chief executive officer of the
cooperative, or has the authority to appoint, remove, or limit the
actions of a majority of the board of directors of the cooperative. In
such instance, all members of the cooperative are considered affiliates
of the individual, corporation, or other business concern that exerts
control over the cooperative; or
(ix) Has the ability through any other means whatsoever to control
the entity that holds 10 percent or greater interest in a fishing
vessel or processor.
* * * * *
Aleutian Islands shoreplant means a processing facility that is
physically located on land west of 170[deg] W longitude within the
State of Alaska.
* * * * *
Cooperative quota (CQ):
(1) For purposes of the Amendment 80 Program means:
(i) The annual catch limit of an Amendment 80 species that may be
caught by an Amendment 80 cooperative while fishing under a CQ permit;
(ii) The amount of annual halibut and crab PSC that may be used by
an Amendment 80 cooperative while fishing under a CQ permit.
(2) For purposes of the Rockfish Program means:
(i) The annual catch limit of a rockfish primary species or
rockfish secondary species that may be harvested by a rockfish
cooperative while fishing under a CQ permit;
(ii) The amount of annual halibut PSC that may be used by a
rockfish cooperative in the Central GOA while fishing under a CQ permit
(see rockfish halibut PSC in this section).
(3) For purposes of the PCTC Program means:
(i) The annual catch limit of Pacific cod that may be caught by a
PCTC Program cooperative while fishing under a CQ permit;
(ii) The amount of annual halibut and crab PSC that may be used by
a PCTC Program cooperative while fishing under a CQ permit.
* * * * *
CQ permit means a permit issued to an Amendment 80 cooperative
under Sec. 679.4(o)(2), a rockfish cooperative under Sec.
679.4(n)(1), or a PCTC Program cooperative under Sec. 679.131(a).
* * * * *
NMFS Alaska Region website means https://www.fisheries.noaa.gov/region/alaska.
* * * * *
Pacific Cod Trawl Cooperative (PCTC) Program means the Pacific Cod
Trawl Cooperative Program as implemented under subpart L of this part.
* * * * *
PCTC Program cooperative means a group of eligible Pacific cod
harvesters who have chosen to form a cooperative under the requirements
in Sec. 679.132 in order to combine and harvest fish collectively
under a CQ permit issued by NMFS.
PCTC Program CQ (See CQ)
PCTC Program harvester QS pool means the sum of Pacific cod QS
units assigned to LLP licenses established for the PCTC Program fishery
based on the PCTC Program official record.
PCTC Program official record means information used by NMFS
necessary to determine eligibility to participate in the PCTC Program
and assign specific harvest privileges or limits to PCTC Program
participants based on Pacific cod legal landings as defined at Sec.
679.130.
PCTC Program participants means those PCTC Program eligible
harvesters and eligible processors who receive Pacific cod QS.
PCTC Program processor QS pool means the sum of Pacific cod QS
units assigned to processor permits issued under the PCTC Program based
on the PCTC Program official record.
PCTC Program QS unit means a single share of the PCTC Program QS
pool based on Pacific cod legal landings.
PCTC Program quota share (QS) means QS units issued by NMFS
[[Page 8621]]
expressed in metric tons, derived from the Pacific cod legal landings
assigned to an LLP license or PCTC Program QS permit held by a
processor and used as the basis for the issuance of annual CQ.
* * * * *
0
3. In Sec. 679.4, add paragraphs (a)(1)(xvi), (k)(16) and paragraph
(q) to read as follows:
Sec. 679.4 Permits.
(a) * * *
(1) * * *
------------------------------------------------------------------------
Permit is in effect For more
If program permit or card type from issue date information, see
is: through the end of: . . .
------------------------------------------------------------------------
* * * * * * *
(xvi) PCTC Program:
(A) PCTC Program QS permit 10 Years.............. Paragraph (q) of
(for processors). this section.
(B) PCTC Program CQ permit Until expiration date Paragraph (q) of
shown on permit. this section.
------------------------------------------------------------------------
* * * * *
(k) * * *
(16) PCTC Program. In addition to other requirements of this part,
an LLP license holder must have PCTC Program QS assigned to their
groundfish LLP license to join a PCTC Program cooperative to harvest
Pacific cod.
* * * * *
(q) PCTC Program Permits.
(1) PCTC Program Cooperative Quota Permits. (i) A CQ permit is
issued annually to a PCTC Program cooperative if the members of that
cooperative have submitted a complete and timely application for CQ as
described in Sec. 679.131 that is approved by the Regional
Administrator. A CQ permit authorizes a PCTC Program cooperative to
participate in the PCTC Program. The CQ permit will indicate the amount
of Pacific cod that may be harvested by the PCTC Program cooperative,
and the amount of halibut PSC and crab PSC that may be used by the PCTC
Program cooperative. The CQ permit will list the members of the PCTC
Program cooperative, the trawl catcher vessels that are authorized to
fish under the CQ permit for that cooperative, and the PCTC Program
processor(s) with whom that cooperative is associated.
(ii) A CQ permit is valid only until the end of the BSAI Pacific
cod B season for the year in which the CQ permit is issued;
(iii) A legible copy of a valid CQ permit must be carried on board
the vessel(s) used by the PCTC Program cooperative.
(2) PCTC Program Quota Share Permits for Processors.
(i) NMFS will issue PCTC Program QS permits to eligible processors
if the owner(s) submits to the Regional Administrator a completed
application for PCTC Program QS as described in Sec. 679.130 that is
subsequently approved.
(ii) A processor may associate the QS assigned to the PCTC Program
QS permit to a PCTC Program cooperative as described in Sec. 679.131.
* * * * *
0
4. Amend Sec. 679.5 by:
0
a. Adding paragraph (a)(1)(iii)(G);
0
b. Revising paragraph (a)(4)(i); and
0
c. Adding paragraph (x).
The additions and revisions read as follows:
Sec. 679.5 Recordkeeping and Reporting (R&R).
(a) * * *
(1) * * *
(iii) * * *
------------------------------------------------------------------------
For more
If harvest made under . . . Record the . . . information, see . .
program .
------------------------------------------------------------------------
* * * * * * *
(G) PCTC Program............ Cooperative number.. subpart L to this
part.
* * * * * * *
------------------------------------------------------------------------
(4) * * *
(i) Catcher vessels less than 60 ft (18.3 m) LOA. Except for
vessels using pot gear as described in paragraph (c)(3)(i)(B)(1) of
this section or vessels participating in the PCTC Program as described
in paragraph (x) of this section, the owner or operator of a catcher
vessel less than 60 ft (18.3 m) LOA is not required to comply with the
R&R requirements of this section, but must comply with the vessel
activity report described at paragraph (k) of this section.
* * * * *
(x) PCTC Program. The owners and operators of catcher vessels and
processors authorized as participants in the PCTC Program must comply
with the applicable recordkeeping and reporting requirements of this
section and must assign all catch to a PCTC Program cooperative at the
time of catch or receipt of groundfish. Owners of catcher vessels and
processors authorized as participants in the PCTC Program must ensure
that their designated representatives or employees comply with
applicable recordkeeping and reporting requirements as described in
Sec. 679.134.
0
5. In Sec. 679.7 add paragraph (m) to read as follows:
Sec. 679.7 Prohibitions.
* * * * *
(m) PCTC Program--
(1) General.
(i) Name an LLP license in more than one PCTC Program cooperative
application in a fishing year.
(ii) Use a vessel to catch or receive a PCTC Program cooperative's
Pacific cod when that vessel was not listed on the PCTC Program
cooperative's application for PCTC Program CQ.
(iii) Fail to comply with any other requirement or restriction
specified in this part or violate any provision of this part.
(2) Vessel operators participating in the PCTC Program.
(i) Fail to follow the catch monitoring requirements detailed in
Sec. 679.134 while fishing under a CQ permit issued to a PCTC Program
cooperative.
(ii) Operate a vessel that is subject to a sideboard limit detailed
in Sec. 679.133, as applicable, and fail to follow the catch
monitoring requirements detailed in Sec. 679.134.
(iii) Exceed the ownership or use caps specified at Sec. 679.133.
Owners and operators of vessels participating in the
[[Page 8622]]
PCTC Program are jointly and severally liable for any violation of PCTC
Program regulations while fishing under the authority of a CQ permit.
(3) VMS.
(i) Operate a vessel in a PCTC Program cooperative and fail to use
functioning VMS equipment as described at Sec. 679.134.
(ii) Operate a vessel that is subject to a sideboard limit detailed
in Sec. 679.133 and fail to use functioning VMS equipment as described
in Sec. 679.134.
(4) PCTC Program processors.
(i) Take deliveries of, or process, PCTC Program Pacific cod
harvested by a catcher vessel fishing under the authority of a PCTC CQ
permit unless operating as a processor.
(ii) Process any groundfish delivered by a catcher vessel fishing
under the authority of a CQ permit not weighed on a scale approved by
the State of Alaska. The scale must meet the requirements specified in
Sec. 679.28(c).
(iii) Fail to submit a timely and complete Pacific cod Ex-vessel
Volume and Value Report as required under Sec. 679.5(u)(1).
(iv) Use a catcher/processor designated on an LLP license with a
BSAI Pacific cod trawl mothership endorsement to sort, process, or
discard any species, except halibut sorted on deck by vessels
participating in halibut deck sorting described at Sec. 679.120,
before the total catch is weighed on a scale that meets the
requirements of Sec. 679.28(b).
(v) Use a catcher/processor designated on an LLP license with a
BSAI Pacific cod trawl mothership endorsement to process Pacific cod in
excess of the at-sea processing sideboard limit defined at Sec.
679.133(b)(2) and assigned to the LLP license.
(vi) Process an amount of Pacific cod that exceeds use caps
specified in Sec. 679.133. The owners and operators of the individual
processors that process Pacific cod are jointly and severally liable
for any violation of PCTC Program regulations.
(5) PCTC cooperatives.
(i) Fail to retain any Pacific cod caught by a vessel when that
vessel is fishing under the authority of a PCTC Program cooperative CQ
permit.
(ii) Harvest PCTC Program Pacific cod, use halibut PSC, or use crab
PSC assigned to a PCTC cooperative in the BSAI without having on board
a legible copy of valid PCTC Program CQ permit.
(iii) Begin a fishing trip for PCTC Program Pacific cod with any
vessel named in a PCTC Program cooperative if the total amount of
unharvested PCTC Program Pacific cod on a CQ permit currently held by
that cooperative is zero or less.
(iv) Operate a vessel fishing under the authority of a CQ permit
issued to a PCTC Program cooperative and have any Pacific cod aboard
the vessel unless those fish were harvested under the authority of a
PCTC Program CQ permit.
(v) Have a negative balance in a PCTC Program CQ account after the
end of the calendar year for which a PCTC Program CQ permit was issued.
(vi) Fail to submit a PCTC Program cost recovery fee payment as
required under Sec. 679.135.
* * * * *
0
6. Amend Sec. 679.20 by, revising paragraph (a)(7)(viii) and adding
paragraph (e)(3)(vi) to read as follows:
Sec. 679.20 General limitations.
(a) * * *
(7) * * *
(viii) Aleutian Islands PCTC Program set-aside provisions.--During
the annual harvest specifications process, the Regional Administrator
will establish the Aleutian Islands PCTC Program set-aside through the
process set forth at Sec. 679.132.
* * * * *
(e) * * *
(3) * * *
(vi) For a catcher/processor with a BSAI Pacific cod trawl
mothership endorsement that receives an unsorted codend delivered by a
catcher vessel authorized to harvest PCTC Program Pacific cod, the
maximum retainable amount for each species or species group applies at
any time for the duration of the fishing trip and must be applied to
only the PCTC Program hauls during a fishing trip.
* * * * *
0
7. In Sec. 679.21, revise paragraphs (b)(1)(ii)(B) introductory text
and (B)(5); (b)(2)(iii)(A) and (B); (b)(4)(i)(B); (e)(3)(iv)
introductory text and (iv)(E); and add paragraph (e)(7)(v) to read as
follows:
Sec. 679.21 Prohibited species bycatch management.
* * * * *
(b) * * *
(1) * * *
(ii) * * *
(B) Trawl fishery categories. For purposes of apportioning the
trawl PSC limit set forth under paragraph (b)(1)(ii)(A)(1) of this
section among trawl fisheries, the following fishery categories are
specified and defined in terms of round-weight equivalents of those
groundfish species or species groups for which a TAC has been specified
under Sec. 679.20.
* * * * *
(5) Pacific cod fishery. Fishing with trawl gear during any weekly
reporting period that results in a retained aggregate amount of Pacific
cod that is greater than the retained amount of any other groundfish
fishery category defined under this paragraph (b)(1)(ii)(B). This
Pacific cod fishery is further apportioned between the PCTC Program,
the trawl catcher vessel limited access C season, and AFA catcher/
processors as established at Sec. 679.131(c) and (d).
* * * * *
(2) * * *
(iii) * * *
(A) Unused seasonal apportionments. Unused seasonal apportionments
of trawl fishery PSC allowances made under paragraph (b)(2) of this
section will be added to its respective fishery PSC allowance for the
next season during a current fishing year except for the Pacific cod
fishery apportionment to the PCTC Program, which follows the
regulations at Sec. 679.131(c) and (d).
(B) Seasonal apportionment exceeded. If a seasonal apportionment of
a trawl fishery PSC allowance made under paragraph (b)(2) of this
section is exceeded, the amount by which the seasonal apportionment is
exceeded will be deducted from its respective apportionment for the
next season during a current fishing year except for the Pacific cod
fishery apportionment to the PCTC Program, which follows the
regulations at Sec. 679.131(c) and (d).
* * * * *
(4) * * *
(i) * * *
(B) Closures. Except as provided in paragraph (b)(4)(i)(A) of this
section, if, during the fishing year, the Regional Administrator
determines that U.S. fishing vessels participating in any of the trawl
fishery categories listed in paragraphs (b)(1)(ii)(B)(2) through (6) of
this section will catch the halibut PSC allowance, or seasonal
apportionment thereof, specified for that fishery category under
paragraph (b)(1)(i) or (ii) of this section, NMFS will publish in the
Federal Register the closure of the entire BSAI to directed fishing for
each species and/or species group in that fishery category for the
remainder of the year or for the remainder of the season. This does not
apply to allocations to the PCTC Program specified at Sec. 679.133(b).
* * * * *
(e) * * *
(3) * * *
(iv) Trawl fishery categories. For purposes of apportioning trawl
PSC limits for crab and herring among fisheries, other than crab PSC CQ
assigned to an Amendment 80
[[Page 8623]]
cooperative, the following fishery categories are specified and defined
in terms of round-weight equivalents of those groundfish species or
species groups for which a TAC has been specified under Sec. 679.20.
* * * * *
(E) Pacific cod fishery. Fishing with trawl gear during any weekly
reporting period that results in a retained aggregate amount of Pacific
cod that is greater than the retained amount of any other groundfish
fishery category defined under this paragraph (e)(3)(iv). The Pacific
cod fishery is further apportioned between the PCTC Program, the trawl
catcher vessel limited access C season, and AFA catcher/processors as
established at Sec. 679.131(d).
* * * * *
(7) * * *
(v) Paragraph (e)(7) of this section does not apply to
apportionments to the PCTC Program as described in Sec. 679.130.
* * * * *
0
9. Amend Sec. 679.51 by:
0
a. Revising paragraph (a)(2)(i)(C)(4);
0
b. Adding paragraphs (a)(2)(i)(C)(5) and (vi)(G);
0
c. Revising paragraphs (e)(1)(iii)(A) and (B) introductory text; and
0
d. Adding paragraph (e)(1)(iii)(D).
The revisions and additions read as follows:
Sec. 679.51 Observer and Electronic Monitoring System requirements
for vessels and plants.
(a) * * *
(2) * * *
(i) * * *
(C) * * *
(4) Using trawl gear in the BSAI if the vessel has been placed in
the full observer coverage category under paragraph (a)(4) of this
section; or
(5) Participating in the PCTC Program.
* * * * *
(vi) * * *
(G) PCTC Program Motherships. A mothership that receives unsorted
codends from catcher vessels harvesting Pacific cod under the PCTC
Program must have at least two observers aboard the mothership, at
least one of whom must be endorsed as a lead level 2 observer. More
than two observers must be aboard if the observer workload restriction
would otherwise preclude sampling as required.
* * * * *
(e) * * *
(1) * * *
(iii) * * *
(A) Observer use of equipment. Allow an observer to use the
vessel's communications equipment and personnel, on request, for the
confidential entry, transmission, and receipt of work-related messages
(including electronic transmission of data), at no cost to the observer
or the United States.
(B) Equipment, software, and data transmission requirements. The
operator of a catcher/processor (except for a catcher/processor placed
in the partial observer coverage category under paragraph (a)(3) of
this section), mothership, catcher vessel 125 ft LOA or longer (except
for a catcher vessel fishing for groundfish with pot gear), or a
catcher vessel participating in the PCTC Program (except for paragraph
(D)) must provide the following equipment, software and data
transmission capabilities:
* * * * *
(D) PCTC Program. The operator of a non-AFA catcher vessel
participating in the PCTC Program is not required to comply with
paragraph (e)(1)(iii)(B)(3) of this section to provide data
transmission capability until [Date 3 years after effective date of the
final rule]. However, once any non-AFA catcher vessel in the PCTC
Program is capable of at-sea data transmission, the operator must
comply.
* * * * *
Sec. 679.64 [Amended]
0
10. In Sec. 679.64, remove and reserve paragraphs (b)(3)(ii) and
(4)(i).
0
11. Add Subpart L, consisting of Sec. Sec. 679.130 through 679.135 to
read as follows:
Subpart L--Pacific Cod Trawl Cooperative Program
Sec.
679.130 Allocation, use, and transfer of PCTC Program QS permits.
679.131 PCTC Program annual harvester privileges.
679.132 Aleutian Islands set-aside provisions in the PCTC Program.
679.133 PCTC Program use caps and sideboard limits.
679.134 PCTC Program permits, catch monitoring, catch accounting,
and recordkeeping and reporting.
679.135 PCTC Program cost recovery.
Subpart L--Pacific Cod Trawl Cooperative Program
Sec. 679.130 Allocation, use, and transfer of PCTC Program QS.
(a) Applicable areas and seasons.
(1) Applicable fishery. The PCTC Program applies to the Pacific cod
trawl catcher vessel sector in the BSAI as defined in Sec.
679.20(a)(7)(ii)(A).
(2) PCTC Program Fishing Seasons. The following fishing seasons
apply to fishing under this subpart subject to other provisions of this
part:
(i) PCTC Program cooperative A season. Fishing by vessels
participating in a cooperative is authorized from 1200 hours, A.l.t.,
January 20 through 1200 hours, A.l.t., April 1.
(ii) PCTC Program cooperative B season. Fishing by vessels
participating in a cooperative is authorized from 1200 hours, A.l.t.,
April 1 through 1200 hours, A.l.t., June 10.
(iii) Limited Access C Season. The PCTC Program does not apply to
the Pacific cod trawl catcher vessel C season, as defined in Sec.
679.23(e)(5)(ii)(C)(1).
(b) Pacific cod legal landings. Pacific cod legal landings means
the retained catch of Pacific cod caught using trawl gear in a
management area in the BSAI by a catcher vessel during the directed
fishing season for Pacific cod that:
(1) Was made in compliance with state and Federal regulations in
effect at that time; and
(2) Was recorded on a State of Alaska fish ticket for shoreside
deliveries or in observer data for mothership deliveries; and
(3) Was the predominately retained species on the fishing trip; and
(4) Was authorized by:
(i) An LLP license and caught in the A or B season of a Federal or
parallel groundfish fishery during the qualifying years 2009 through
2019; or
(ii) An LLP license with a transferable AI endorsement prior to
receiving an AI endorsement and was caught in a parallel fishery
between January 20, 2004 and September 13, 2009; and
(5) Was not made in a CDQ fishery; and
(6) Was not made in a State of Alaska GHL fishery.
(c) Eligible PCTC Program harvesters. NMFS will assign Pacific cod
legal landings to an LLP license only if the qualifying Pacific cod
legal landings of BSAI trawl catcher vessel Pacific cod were made under
the authority of a fully transferable LLP license endorsed for BS or AI
Pacific cod with a trawl gear designation from 2009 through 2019 or
under the authority of an LLP license endorsed for Pacific cod with a
trawl gear designation prior to earning a transferable AI endorsement
from 2004 through September 13, 2009;
(d) Assigning trawl catcher vessel Pacific cod legal landings to an
LLP license.
(1) NMFS will assign Pacific cod legal landings to an LLP license
in the form of QS only if the holder of the LLP license with those
landings submits a timely and complete application for
[[Page 8624]]
Pacific cod QS, in paragraph (h) of this section, that is approved by
NMFS.
(2) NMFS will assign Pacific cod legal landings to an LLP license
that meets the requirements of paragraph (b) of this section.
(3) NMFS will reissue LLP licenses to eligible harvesters that
specify the number of QS units assigned to their LLP licenses.
(e) Eligible PCTC Program Processors. NMFS will assign legal
landings to an eligible PCTC Program processor if the processor
operates under the authority of a valid FFP or FPP and received
deliveries of legal landings of Pacific cod from the trawl catcher
vessel sector from 2009 through 2019. A processor is ineligible to
receive PCTC Program QS if its FFP or FPP is no longer active as of
[Date 30 days after the effective date of the final rule].
(f) Assigning Pacific cod processing history to an eligible
processor.
(1) NMFS will assign Pacific cod processing history to a processor
in the form of QS only if the FFP or FPP holder submits a timely and
complete application for PCTC Program QS that is approved by NMFS
pursuant to paragraph (h) of this section.
(2) NMFS will assign Pacific cod processing history based on legal
landings delivered to a processor authorized by an FPP or FFP that
meets the requirements of this section.
(3) For the initial allocation of QS, qualifying processing history
is attached to the processor at the time legal landings were received.
(4) An eligible processor will be issued a PCTC Program QS permit
that specifies the number of QS units assigned to that processor.
(g) PCTC Program official record.
(1) Use of the PCTC Program official record. The PCTC Program
official record will contain information used by the Regional
Administrator to determine:
(i) The amount of Pacific cod legal landings as defined in Sec.
679.130 assigned to an LLP license;
(ii) The amount of Pacific cod processing history of legal landings
as defined in Sec. 679.130 assigned to an FPP or FFP;
(iii) The amount of PCTC Program QS resulting from Pacific cod
legal landings assigned to an LLP license held by an eligible
harvester, or QS resulting from Pacific cod processing history assigned
to an FPP or FFP held by an eligible processor;
(iv) The amount of Pacific cod sideboard ratios assigned to LLP
licenses;
(v) Eligibility to participate in the PCTC Program; and
(vi) QS assigned to PCTC Program participants.
(2) Presumption of correctness. The PCTC Program official record is
presumed to be correct. An applicant participating in the PCTC Program
has the burden to prove otherwise.
(3) Documentation. Only Pacific cod legal landings and processing
history of legal landings, as described in paragraph (b) of this
section, shall be used to establish an allocation of PCTC Program QS.
Evidence of legal landings shall be limited to documentation of state
or Federal catch reports that indicate the amount of Pacific cod
harvested, the groundfish reporting area in which it was caught, the
vessel and gear type used to catch it, and the date of harvesting,
landing, or reporting.
(4) Non-severability of Pacific cod legal landings. Pacific cod
legal landings are non-severable from the LLP license or PCTC Program
QS Permit to which those Pacific cod legal landings are assigned
according to the PCTC Program official record except under the
following provisions:
(i) If multiple LLP licenses authorized catch by a vessel, in the
absence of an agreement provided by the LLP license holder at the time
of application for QS, qualifying catch history will be assigned to an
LLP license by the owner of the vessel that made the catch at the time
of application.
(ii) 90-day transfer provision.
(A) For the LLP licenses associated with non-exempt AFA catcher
vessels, within 90 days of initial issuance of QS, the owners of the
LLP licenses that are associated with AFA non-exempt catcher vessels
that had engaged in fish transfer agreements during the qualifying
periods may transfer QS to other LLP licenses associated with AFA non-
exempt vessels, subject to the ownership cap in Sec. 679.133.
(B) NMFS will execute permanent transfers of QS between eligible
LLPs during the 90-day transfer provision upon showing that both the
transferor and transferee agree to the one-time transfer of QS and
understand the transfer will be permanent, or upon showing a transfer
is authorized by an operation of law (e.g., a court order). Requests to
transfer QS must specify which LLP is transferring QS, which LLP is
receiving QS, and the amount of QS to be transferred.
(C) After the expiration of the 90-day transfer provision, PCTC QS
will no longer be severable from the LLP license to which it is
assigned unless authorized by the transfer rules specified in paragraph
(f) of this section or modification is supported by an operation of
law.
(h) Application for PCTC Program Quota Share--
(1) Submission of an application for PCTC Program quota share. A
person who wishes to receive QS to participate in the PCTC Program as
an eligible harvester or an eligible processor must submit a timely and
complete application for PCTC Program QS. An application form will be
provided by NMFS or available from NMFS Alaska Region website as
defined at Sec. 679.2. The acceptable submittal methods will be
described on the application form.
(2) Deadline. A completed application for PCTC Program QS must be
received by NMFS no later than 1700 hours, A.l.t., on [Date 30 days
after the effective date of the final rule], or if sent by U.S. mail,
postmarked by that time. Objective written evidence of timely
application will be considered proof of a timely application.
(3) Contents of application. A timely and complete application must
contain the information specified on the application for PCTC Program
QS with all required documentation attached.
(i) Additional required documentation for LLP license holders.
Vessel names, ADF&G vessel registration numbers, and USCG documentation
numbers of all vessels that fished under the authority of each LLP
license, including dates when landings were made under the authority of
an LLP license from 2009 through 2019 or under the authority of an LLP
license prior to earning a transferable AI endorsement from 2004-2019;
(ii) Additional required documentation for processors. Processor
name, FFP or FPP number, and location of processing plant, including
dates when landings were made under the authority of an LLP license
from 2009 through 2019;
(iii) The applicant must sign and date the application certifying
under penalty of perjury that all information is true and correct. If
the application is completed by a designated representative, then
explicit authorization signed by the applicant must accompany the
application.
(4) Application evaluation. The Regional Administrator will
evaluate applications and compare all claims of catch history or
processing history in an application with the information in the PCTC
Program official record. Application claims that are consistent with
information in the PCTC Program official record will be approved by the
Regional Administrator. Application claims that are inconsistent with
the PCTC Program official record will not be approved unless supported
by documentation sufficient to substantiate
[[Page 8625]]
such claims. An applicant who submits claims of catch history or
processing history that are inconsistent with the official record
without sufficient evidence, or an applicant who fails to submit the
information specified in paragraph (d) of this section, will be
provided a single 30-day evidentiary period to submit the specified
information, submit evidence to verify their claims of catch or
processing history, or submit a revised application consistent with
information in the PCTC Program official record. An applicant who
claims catch or processing history that is inconsistent with
information in the PCTC Program official record has the burden of
proving that the submitted claims are correct. Any claims that remain
unsubstantiated after the 30-day evidentiary period will be denied. All
applicants will be notified of NMFS's final application determinations
by an initial administrative determination (IAD), which will inform
applicants of their appeal rights under 15 CFR part 906.
(5) Appeals. An applicant may appeal an IAD under the provisions in
15 CFR part 906.
(i) Assigning PCTC Program QS to Harvesters and Processors. The
Regional Administrator will assign PCTC Program QS only to an eligible
harvester or eligible processor who submits a timely application for
PCTC Program QS that is approved by NMFS.
(1) Calculation of PCTC Program QS allocation to LLP licenses
without a transferable AI endorsement. NMFS will assign a specific
amount of PCTC Program QS units to each LLP license based on the
Pacific cod legal landings of each LLP license using information from
the PCTC Program official record according to the following procedures:
(i) Determine the Pacific cod legal landings for each LLP license
for each calendar year from 2009 through 2019.
(ii) Select the 10 calendar years from the qualifying time period
with the highest amount of legal landings for each LLP license,
including years with zero metric tons if necessary.
(iii) Sum the Pacific cod legal landings of the highest 10 years
for each LLP license. This yields the QS units (in metric tons) for
each LLP license.
(2) Calculation of PCTC Program QS allocation to LLP licenses with
transferable AI endorsements. NMFS will assign a specific amount of
PCTC Program QS units to each LLP license with a transferable AI
endorsement based on the Pacific cod legal landings of each using
information from the PCTC Program official record according to the
following procedures:
(i) Determine the Pacific cod legal landings for each LLP license
with a transferable AI endorsement for each calendar year from 2004
through 2019.
(ii) Select the fifteen calendar years that yield the highest
amount of legal landings for each LLP license, including years with
zero metric tons if necessary.
(iii) Sum the Pacific cod legal landings of the highest fifteen
years for each LLP license with transferable AI endorsement. This
yields the QS units (in metric tons) for each LLP license with a
transferable AI endorsement.
(3) Official Record Date. The initial PCTC Program QS pool for all
LLP licenses, with and without transferable AI endorsements, is the sum
of the sum of the QS units assigned to all LLP licenses in metric tons
based on the PCTC Program official record as of December 31, 2022.
(4) Calculation of PCTC Program QS allocation to processors. NMFS
will assign a specific amount of Pacific cod QS units to each eligible
processor based on the Pacific cod legal landings delivered to each FPP
or FFP using information from the PCTC Program official record
according to the following procedures:
(i) Sum the Pacific cod legal landings delivered to each FPP or FFP
for each calendar year from 2009 through 2019;
(ii) Select the ten calendar years that yield the highest amount of
legal landings delivered to each FPP or FFP, including years with zero
metric tons if necessary;
(iii) Sum the Pacific cod legal landings of the highest 10 years
for each FPP or FFP. This yields the QS units for each eligible
processor, which will be specified on a PCTC Program Processor Permit
for that processor;
(iv) The PCTC Program QS pool for processors is the sum of all QS
units assigned to processors in metric tons based on the PCTC official
record as of December 31, 2022.
(j) Transfer of PCTC Program QS.
(1) Transfer of an LLP license with PCTC Program QS. A person may
transfer an LLP license and any PCTC Program QS assigned to that LLP
license under the provisions in Sec. 679.4(k)(7), provided that the
LLP license is not assigned PCTC Program QS in excess of the ownership
cap specified in Sec. 679.133 at the time of transfer.
(2) Transfer of PCTC Program QS assigned to LLP licenses that
exceeds PCTC Program QS ownership caps.
(i) If an LLP license receives an initial allocation of QS that
exceeds an ownership cap specified in Sec. 679.133(a), upon transfer
of the LLP license, the LLP license holder may transfer the amount of
QS in excess of the ownership cap separately from the LLP license and
assign it to one or more LLP licenses. However, a transfer will not be
approved by NMFS if that transfer would cause the receiving LLP license
to exceed an ownership cap specified in Sec. 679.133(a).
(ii) Prior to the transfer of an LLP license that received an
initial allocation of QS that exceeds an ownership cap specified in
Sec. 679.133(a), the LLP license holder must transfer the QS that is
in excess of the ownership cap separately from that LLP license and
assign it to one or more LLP licenses. On completion of the transfer of
QS, the LLP license that was initially allocated an amount of QS in
excess of the ownership cap may not exceed any ownership cap specified
in Sec. 679.133(a).
(iii) Any QS associated with the LLP license that is in excess of
the ownership cap may be transferred only if an application to transfer
LLP licenses is approved as specified in Sec. 679.4(k)(7).
(iv) QS that is transferred from an LLP license that was initially
allocated an amount of QS in excess of the ownership cap specified in
Sec. 679.133(a) and assigned to another LLP license may not be severed
from the receiving LLP license.
(3) Transfer of processor PCTC Program QS Permits. A person may
transfer a PCTC Program QS Permit to another processor eligible to hold
that permit and any QS assigned to that permit provided that the permit
is not assigned QS in excess of the ownership cap specified in Sec.
679.133(a) at the time of transfer. PCTC Program QS may be severed from
a PCTC Program QS permit at the time of transfer if the transfer of the
PCTC Program QS permit would otherwise result in a transferee exceeding
an ownership cap. A PCTC Program QS Permit held by a processor and
associated QS may be transferred only if the application for transfer
of PCTC Program QS Permit is filled out entirely.
(4) Transfer of PCTC Program QS assigned to a processor-held PCTC
Program QS Permit that exceeds PCTC Program ownership caps.
(i) If a PCTC Program QS Permit receives an initial allocation of
QS that exceeds an ownership cap specified in Sec. 679.133(a), the
processor may transfer QS in excess of the ownership cap separately
from that PCTC Program QS Permit and assign it to the PCTC Program QS
Permit of one or more eligible processors. However, a transfer may not
be approved by NMFS if that transfer would cause the receiving
processor to exceed an ownership cap specified in Sec. 679.133(a).
[[Page 8626]]
(ii) Prior to the transfer of a PCTC Program QS Permit that
received an initial allocation of QS that exceeds an ownership cap
specified in Sec. 679.133(a), the permit holder must transfer the QS
that is in excess of the ownership cap separately from that PCTC
Program QS Permit and assign it to one or more PCTC Program QS Permits.
On completion of the transfer of QS, the PCTC Program QS Permit that
was initially allocated an amount of QS in excess of the ownership cap
may not exceed any ownership cap specified in Sec. 679.133(a).
(iii) Any QS associated with the PCTC Program QS Permit held by a
processor that is in excess of an ownership cap may be transferred only
if the application for transfer of PCTC Program QS Permit is filled out
entirely.
Sec. 679.131 PCTC Program annual harvester privileges.
(a) Assigning PCTC Program CQ to a PCTC cooperative.
(1) General. (See also Sec. 679.4(q)).
(i) Every calendar year, PCTC Program QS assigned to LLP licenses
and PCTC Program QS Permits held by a PCTC Program processor must be
assigned to a PCTC cooperative as a CQ permit to use the CQ derived
from that PCTC QS to catch, process, or receive Pacific cod, crab PSC,
or halibut PSC assigned to the PCTC Program.
(ii) NMFS will assign CQ permit to a PCTC Program cooperative based
on the aggregate QS of all LLP licenses and associated processors
designated on an application for CQ that is approved by the Regional
Administrator as described under paragraph (a)(4) of this section.
(iii) Eligible processors must be associated with a PCTC Program
cooperative for the QS assigned to that processor's PCTC Program QS
Permit to be issued to a PCTC Program cooperative as CQ.
(2) PCTC Program QS issued after issuance of CQ or Pacific cod
trawl catcher vessel sector TAC. Any PCTC Program QS on an LLP license
or PCTC Program QS Permit assigned to a PCTC QS holder after NMFS has
issued CQ for a calendar year, will not result in any additional CQ
being issued to a PCTC cooperative if that QS holder has assigned their
QS to a PCTC Program cooperative for that calendar year.
(3) Failure to designate QS to a PCTC Program cooperative. Failure
to designate an LLP license with PCTC Program QS or a PCTC Program QS
Permit on a timely and complete application for CQ that is approved by
the Regional Administrator as described under paragraph (a)(4) of this
section, will result in the Regional Administrator not assigning that
QS to a PCTC Program cooperative for the applicable calendar year.
(4) Application for PCTC Program CQ. PCTC Program cooperatives must
submit a complete application by November 1 to receive PCTC Program CQ
and identify the following:
(i) PCTC Program cooperative identification, including but not
limited to the name of the cooperative and the taxpayer identification
number;
(ii) PCTC Program QS holders and ownership documentation;
(iii) PCTC Program cooperative member vessels and LLP licenses;
(iv) PCTC Program cooperative associated processors;
(v) Vessels on which the CQ issued to the PCTC Program cooperative
will be used;
(vi) Certification of cooperative representative;
(vii) Attach a copy of the membership agreement or contract that
includes the following terms:
(A) How the cooperative intends to catch its PCTC Program CQ;
(B) The obligations of QS holders who are members of a PCTC Program
cooperative to ensure the full payment of PCTC Program fee liabilities
that may be due;
(C) How cooperatives monitor and report leasing activity into GOA
fisheries; and
(D) A cooperative intending to harvest any amount of the CQ set-
aside must provide the cooperative's plan for coordinating harvest and
delivery of the CQ set-aside with an Aleutian Islands shoreplant as
defined in Sec. 679.2.
(viii) Each year, all cooperatives must establish an inter-
cooperative agreement. This inter-cooperative agreement must be
provided as part of each annual cooperative application and is required
before NMFS will issue CQ. The inter-cooperative agreement must
establish how the cooperatives intend to harvest the CQ set-aside in
years when it applies and ensure harvests in the BS do not exceed the
minimum set-aside as specified in Sec. 679.132(a)(4)(i).
(b) Allocations of PCTC Program Pacific cod.
(1) General. Each calendar year, the Regional Administrator will
determine the amount of the BSAI trawl catcher vessel sector's Pacific
cod A and B season allocations that will be assigned to the PCTC
Program as follows:
(i) Incidental catch allowance (ICA). For the A and B seasons, the
Regional Administrator will establish an ICA to account for projected
incidental catch of Pacific cod by trawl catcher vessels engaged in
directed fishing for groundfish other than PCTC Program Pacific cod.
(ii) Directed fishing allowance (DFA). The remaining trawl catcher
vessel sector's Pacific cod A and B season allocations are established
as a DFA for the PCTC Program.
(2) Calculation.
(i) Determination of Pacific cod trawl catcher vessel TAC allocated
to the PCTC Program. NMFS will determine the Pacific cod trawl catcher
vessel TAC in a calendar year in the annual harvest specification
process in Sec. 679.20.
(ii) Annual apportionment of Pacific cod trawl catcher vessel TAC.
The annual apportionment of Pacific cod in the A and B seasons between
the PCTC Program DFA and the ICA in a given calendar year is
established in the annual harvest specifications.
(3) Allocations of Pacific Cod DFA to PCTC Program.
(i) Harvester Percentage of DFA. NMFS will assign 77.5 percent of
the PCTC Program DFA to the QS attached to LLP licenses assigned to
PCTC Program cooperatives. Each LLP license's QS units will correspond
to a portion of the DFA according to the following equation: (LLP
license QS units/(sum of all LLP license QS units)) x (.775 x DFA).
(ii) Processor Percentage of DFA. NMFS will assign 22.5 percent of
the PCTC Program DFA to the QS attached to PCTC Program QS Permits
assigned to PCTC Program cooperatives. Each QS Permit's QS units will
correspond to a portion of the DFA according to the following equation:
(PCTC Program QS permit QS units/(sum of all PCTC Program QS permit QS
units)) x (.225 x DFA).
(4) Allocation of CQ to PCTC Program cooperatives--
(i) General. Annual CQ will be issued to each cooperative by NMFS
based on the aggregate QS attached to LLP licenses and PCTC Program QS
permits that are assigned to the cooperative. NMFS will issue CQ by A
and B season and cooperatives will ensure the seasonal limits are not
exceeded. Unused A season CQ may be rolled over to the B season. Annual
CQ may be harvested from either BS or AI subareas.
(ii) CQ allocation for PCTC Program. The amount of CQ that is
assigned to a PCTC Program cooperative is expressed algebraically as
follows:
CQ derived from QS assigned to LLP holders = [(.775 x DFA) x (Total LLP
license QS units assigned to that cooperative/sum of all LLP license QS
units)]
CQ derived from QS assigned to FFP and FPP holders = [(.225 x DFA) x
(Total PCTC Program Permit QS units assigned to that cooperative/
[[Page 8627]]
sum of all PCTC Program QS permit QS units)]
The total CQ assigned to that cooperative = CQ derived from LLP license
holders + CQ derived from PCTC Program QS permit holders
(iii) Issuance of CQ. A and B season trawl catcher vessel Pacific
cod sector DFAs will be allocated to cooperatives as CQ. Annual CQ for
each PCTC Cooperative will be issued separately as A and B season CQ.
(iv) AI set-aside. When in effect, the AI set-aside will be
established annually as specified further at Sec. 679.132.
(c) Halibut PSC.
(1) Halibut PSC limit for the PCTC Program. The overall halibut PSC
limit for the PCTC Program for each calendar year is specified in the
harvest specifications pursuant to the procedures specified at Sec.
679.21(b). That halibut PSC limit is then assigned to cooperatives
pursuant to paragraph (a)(1)(i) of this section.
(i) Multiply the halibut PSC limit apportioned to the BSAI trawl
limited access sector's Pacific cod fishery category by 98 percent,
which yields the halibut PSC apportioned to the trawl catcher vessel
sector. The remaining 2 percent is apportioned to the AFA catcher/
processor sector as specified in Sec. 679.21(b)(4).
(ii) Assign 95 percent of the trawl catcher vessel sector's halibut
PSC limit to the A and B seasons and 5 percent to the C season.
(iii) Each year after apportioning halibut PSC to the trawl catcher
vessel sector for the A and B season, apply one of the following
reductions to the A and B season trawl catcher vessel halibut PSC limit
to determine the overall PCTC Program halibut PSC limit:
(A) In the first year of the PCTC Program, reduce the A and B
season halibut PSC limit by 12.5 percent.
(B) In the second year, and each year thereafter, reduce the A and
B season halibut PSC limit by 25 percent.
(2) Halibut PSC assigned to each PCTC Program cooperative. For each
calendar year, the amount of halibut PSC assigned to a cooperative is
determined by the following procedure and the amount will be specified
on the CQ permit:
(i) Divide the amount of PCTC Program CQ units assigned to each
PCTC Program cooperative by the amount of CQ allocated to all
cooperatives. This yields the percentage of PCTC Program CQ units held
by each cooperative.
(ii) Multiply the overall PCTC Program halibut PSC limit by the
percentage of the PCTC Program CQ assigned to a cooperative. This
yields the amount of halibut PSC issued to that cooperative as CQ.
(3) Use of halibut PSC in the PCTC Program. Halibut PSC limits
assigned to the PCTC Program may only be used by the members of the
PCTC Program. A halibut PSC limit is assigned to the CQ permit issued
to a cooperative for use while harvesting CQ in the BSAI. Any halibut
PSC used by a cooperative must be deducted from the amount of halibut
PSC on its CQ permit. A halibut PSC limit on a CQ permit may be used
only by the members of the cooperative to which it is assigned. Halibut
PSC limits for cooperatives are not subject to seasonal apportionment
under Sec. 679.21. Halibut PSC limits are issued to the PCTC Program
for the duration of the A and B seasons. Halibut PSC limits may be
reapportioned to the C season.
(d) Allocations of crab PSC.
(1) Crab PSC limits for the PCTC Program. The overall crab PSC
limit for the PCTC Program for each calendar year is specified in the
harvest specifications pursuant to the procedures specified at Sec.
679.21(e). That crab PSC limit is then assigned to cooperatives with CQ
pursuant to paragraph (a)(1)(i) of this section.
(i) Multiply the crab PSC limit apportioned to the BSAI trawl
limited access sector's Pacific cod fishery category by 90.6 percent,
which yields the percentage of crab PSC apportioned to the trawl
catcher vessel sector. The remaining 9.4 percent goes to the AFA
catcher/processor sector as specified in Sec. 679.21(b)(4).
(ii) Assign 95 percent of the trawl catcher vessel sector's crab
PSC limit to the A and B seasons and 5 percent to the C season.
(iii) Reduce the A and B season trawl catcher vessel crab PSC limit
by 35 percent to determine the overall PCTC Program crab PSC limit.
(2) Crab PSC assigned to each PCTC Program cooperative. For each
calendar year, the amount of crab PSC limit assigned to a cooperative
is determined by the following procedure and the amount will be
specified on the CQ permit:
(i) Divide the amount of PCTC Program CQ assigned to each PCTC
Program cooperative by the total CQ assigned to all cooperatives. This
yields the percentage of PCTC Program CQ held by that cooperative.
(ii) Multiply the overall PCTC Program crab PSC limit by the
percentage of the PCTC Program CQ pool assigned to a cooperative. This
yields the crab PSC limit issued to that cooperative as CQ.
(3) Use of crab PSC in the PCTC Program. Crab PSC limits assigned
to the PCTC Program may only be used by the members of the PCTC
Program. A crab PSC limit is assigned to the CQ permit issued to a PCTC
Program cooperative for use while harvesting CQ in the BSAI. Any crab
PSC used by a cooperative must be deducted from the amount of crab PSC
limit on its CQ permit. A crab PSC limit on a CQ permit may be used
only by the members of the cooperative to which it is assigned. Crab
PSC limits for cooperatives are not subject to seasonal apportionment
under Sec. 679.21. Crab PSC limits are issued to the PCTC Program for
the duration of the A and B seasons. Crab PSC limits may be
reapportioned to the C season.
(e) Transfer of PSC Limits. Halibut and crab PSC limits are
transferable between cooperatives according to the same rules
established for CQ at Sec. 679.130(g)(4).
(f) Non-allocated Groundfish species. The PCTC Program allocations
are for directed fishing for Pacific cod by trawl catcher vessels. All
groundfish species not allocated to PCTC Program cooperatives are
managed to the maximum retainable amounts (MRAs), as described under
Sec. 679.20(e).
(g) Rollover of Pacific cod. If, after June 10, the Regional
Administrator determines that reallocating a portion of the Pacific cod
ICA or DFA from the PCTC Program to the BSAI trawl limited access
sector C season is appropriate, the Regional Administrator may do so
through notification in the Federal Register consistent with
regulations at Sec. 679.20(a)(7)(iii).
(h) Rollover of PSC to the C Season. If, after June 10, the
Regional Administrator determines that reallocating a portion of the
halibut or crab PSC limits from the PCTC Program to the BSAI trawl
limited access sector C season is appropriate, the Regional
Administrator may do so through notification in the Federal Register
consistent with regulations at Sec. 679.91(f)(4) and (5).
(i) Process for inter-cooperative transfer of PCTC Program CQ. NMFS
will process an application on eFish for an online inter-cooperative
transfer of CQ, including PSC, provided that all information is
completed by the transferor and transferee, with all applicable fields
accurately filled in, and all required documentation is provided.
(j) PCTC Program cooperative--
(1) General. This section governs the formation and operation of
PCTC Program cooperatives. The regulations in this section apply only
to PCTC Program cooperatives that have formed
[[Page 8628]]
for the purpose of applying for and fishing with CQ issued annually by
NMFS. PCTC Program cooperatives and cooperative members are responsible
for ensuring the conduct of cooperatives is consistent with any
relevant state or Federal antitrust laws. Membership in a cooperative
is voluntary. No person may be required to join a cooperative. Any LLP
license holder with PCTC Program QS may join a PCTC Program cooperative
and assign their QS to that cooperative. Members may leave a
cooperative, but any CQ derived from the QS held by that member will
remain with that cooperative for the duration of the calendar year.
(2) Legal and organizational requirements. A PCTC Program
cooperative must meet the following legal and organizational
requirements before it is eligible to receive CQ:
(i) Each PCTC Program cooperative must be formed as a partnership,
corporation, or other legal business entity that is registered under
the laws of one of the 50 states or the District of Columbia;
(ii) Each PCTC Program cooperative must appoint an individual as
the designated representative to act on the cooperative's behalf and to
serve as a contact point for NMFS for questions regarding the operation
of the cooperative. The designated representative may be a member of
the cooperative, or some other individual designated by the cooperative
to act on its behalf;
(iii) Each PCTC Program cooperative must submit a timely and
complete application for CQ; and
(iv) Each PCTC Program cooperative must meet the mandatory
requirements established in paragraph (j)(3) of this section applicable
to that PCTC Program cooperative.
(3) Mandatory requirements. The following table describes the
requirements to form a PCTC Program cooperative:
(i) Who may join or associate with a PCTC Program Any PCTC Program QS holder named on a timely and
cooperative? complete application for CQ for that calendar year
that is approved by NMFS. Individuals who are not QS
holders may be employed by, or serve as the
designated representative of, a cooperative, but
cannot be members of the cooperative. Any processor
may associate with a cooperative.
(ii) What is the minimum number of LLP licenses required A minimum of three LLP licenses are needed to form a
to form a cooperative? cooperative.
(iii) How many unique LLP license holders are required There is no minimum number of unique LLP license
to form a cooperative? holders required to form a cooperative.
(iv) Is there a minimum amount of PCTC Program QS units No.
that must be assigned to a PCTC Program cooperative?
(v) What is allocated to the PCTC Program cooperatives? A and B season CQ for Pacific cod, halibut PSC limits,
and crab PSC limits, based on the total QS units
assigned to the cooperative by its members.
(vi) Is this CQ an exclusive catch and use privilege? Yes, the members of the cooperative have an exclusive
privilege to collectively catch and use this CQ, or a
cooperative can transfer all or a portion of this CQ
to another cooperative.
(vii) Is there a period in a calendar year during which Yes, any cooperative vessel may harvest PCTC CQ during
PCTC Program cooperative vessels may catch Pacific cod? the during the A and B seasons specified at Sec.
679.130(a)(2).
(viii) Can any vessel catch a PCTC Program cooperative's No, only vessels that are listed on a PCTC Program
Pacific cod? cooperative's application for CQ may catch Pacific
cod assigned to that cooperative.
(ix) Can a member of a PCTC Program cooperative transfer No, only the designated representative of the
CQ individually without the approval of the other cooperative, and not individual members, may transfer
members of the cooperative? CQ to another cooperative, and only if that transfer
is approved by NMFS.
(x) Are GOA sideboard limits assigned to specific Existing sideboard limits apply to individual vessels
persons or PCTC Program cooperatives? or LLP license holders, not cooperatives.
(xi) Can PCTC Program QS assigned to an LLP license or QS assigned to an LLP license may be assigned to only
QS held by processors be assigned to more than one PCTC one cooperative in a calendar year. Multiple QS
Program cooperative in a calendar year? permits or LLP licenses held by a single person are
not required to be assigned to the same cooperative.
A processor may associate with more than one
cooperative and any QS held by the processor would be
divided between the associated cooperatives in the
same proportion as the CQ derived from the LLP
licenses.
(xii) Which members may catch the PCTC Program Use of a cooperative's CQ is determined by the
cooperative's CQ? cooperative contract signed by its members. Any
violations of this contract by a cooperative member
may be subject to civil claims by other members of
the cooperative.
(xiii) Does a PCTC Program cooperative need a membership Yes, a cooperative must have a membership agreement or
agreement or contract? contract. A copy of this agreement or contract must
be submitted to NMFS with the application for CQ. The
membership agreement or contract must specify: (A)
How the cooperative intends to catch its CQ; and (B)
The obligations of QS holders, who are members of a
cooperative, to ensure the full payment of fee
liabilities that may be due.
(xiv) What happens if the PCTC Program cooperative A copy of the amended membership agreement or contract
membership agreement or contract is modified during the must be sent to NMFS in accordance with Sec.
fishing year? 679.131.
(xv) What happens if the cooperative exceeds its CQ A cooperative is not authorized to catch Pacific cod
amount? or use halibut or crab PSC limits in excess of the
amount on its CQ permit. Exceeding a CQ permit is a
violation of the regulations. Each member of the
cooperative is jointly and severally liable for any
violations of the PCTC Program regulations while
fishing under the authority of a CQ permit. This
liability extends to any persons who are hired to
catch or receive Pacific cod assigned to a
cooperative.
(xvi) Is there a limit on how much CQ a PCTC Program No, but each QS holder is subject to ownership caps,
cooperative may hold or use? and a vessel may be subject to vessel use caps. See
Sec. 679.133.
(xvii) Is there a limit on how much Pacific cod a vessel Yes, generally a vessel may not catch more than 5
may catch? percent of the Pacific cod assigned to the PCTC
Program for that calendar year. See Sec. 679.133
for use cap provisions.
[[Page 8629]]
(xviii) Are there any special reporting requirements? The designated representative of the cooperative may
submit an annual PCTC Program cooperative report to
the North Pacific Fishery Management Council.
(xix) Is there a requirement that a PCTC Program Yes, see Sec. 679.135 for the provisions that apply.
cooperative pay PCTC Program cost recovery fees? PCTC Program cooperatives are responsible for paying
cost recovery fees.
(xx) Is there any restriction on deliveries of PCTC Sometimes, if the CQ AI set-aside is in effect for the
Program CQ? fishing year as specified in Sec. 679.132.
Cooperatives must establish, through an inter-
cooperative agreement, how 12 percent of the BSAI A
season CQ will be set aside for delivery to an
Aleutian Islands shoreplant.
(4) Successors-in-interest. If a member of a PCTC Program
cooperative dies (in the case of an individual) or dissolves (in the
case of a business entity), the CQ derived from the QS assigned to the
cooperative for that year from that person remains under the control of
the cooperative for the duration of that calendar year as specified in
the cooperative contract. Each cooperative is free to establish its own
internal procedures for admitting a successor-in-interest during the
fishing season due to the death or dissolution of a cooperative member.
Sec. 679.132 Aleutian Islands set-aside provisions in the PCTC
Program.
(a) Aleutian Islands set-aside provisions in the PCTC Program.
(1) Calculation of the Aleutian Islands Pacific cod non-CDQ ICA and
DFA. Each year, during the annual harvest specifications process set
forth at Sec. 679.20(c), the Regional Administrator will specify the
AI Pacific cod non-CDQ ICA and DFA from the AI Pacific cod non-CDQ TAC
and specify the AI set-aside as follows.
(2) Aleutian Islands Pacific cod non-CDQ ICA. The AI Pacific cod
non-CDQ ICA will be deducted from the aggregate portion of Pacific cod
TAC annually allocated to the non-CDQ sectors identified in Sec.
679.20(a)(7)(ii)(A).
(3) Aleutian Islands Pacific cod non-CDQ DFA. The AI Pacific cod
non-CDQ DFA will be the amount of the AI Pacific cod TAC remaining
after subtraction of the AI Pacific cod CDQ reserve and the AI Pacific
cod non-CDQ ICA. The Regional Administrator will specify the AI set-
aside in either of the following ways:
(i) The AI set-aside is 12 percent of the PCTC Program A season CQ
and is in effect during the A and B seasons.
(ii) If the AI non-CDQ TAC is below 12 percent of the BSAI PCTC
Program A season CQ, then the AI set-aside will be set equal to the AI
non-CDQ DFA. When the AI set-aside is in effect and set equal to the AI
non-CDQ DFA, directed fishing for Pacific cod in the AI may only be
conducted by PCTC Program vessels that deliver their catch of AI
Pacific cod to an Aleutian Islands shoreplant. After June 10, the
Regional Administrator may open directed fishing for non-CDQ Pacific
cod for other sectors.
(4) Calculation of the Aleutian Islands Set-aside. Each year,
during the annual harvest specifications process set forth at Sec.
679.20(c), the Regional Administrator will specify the AI set-aside,
which will be an amount of Pacific cod equal to the lesser of either
the AI Pacific cod non-CDQ DFA or 12 percent of the BSAI PCTC Program A
season CQ.
(b) Annual notification of intent to process Aleutian Islands
Pacific cod -
(1) Submission of notification. The provisions of this section will
apply if either a representative of the City of Adak or the City of
Atka submits to the Regional Administrator a timely and complete
notification of its intent to process PCTC Program Pacific cod during
the upcoming fishing year.
(2) Submission method and deadline. The notification of intent to
process PCTC Program Pacific cod for the upcoming fishing year must be
submitted in writing to the Regional Administrator by a representative
of the City of Adak or the City of Atka no later than October 15 of
each year in order for the provisions of this section to apply during
the upcoming fishing year. Notifications of intent received later than
October 15 may not be accepted by the Regional Administrator.
(3) Contents of notification. A notification of intent to process
PCTC Program Pacific cod for the upcoming fishing year must contain the
following information:
(i) Date of submission,
(ii) Name of city,
(iii) Statement of intent to process PCTC Program Pacific cod,
(iv) Identification of the fishing year during which the city
intends to process PCTC Program Pacific cod,
(v) Contact information for the representative of the city, and
(vi) Documentation of authority to represent the City of Adak or
the City of Atka.
(4) NMFS confirmation and notification. On or before November 30,
the Regional Administrator will notify the representative of the City
of Adak or the City of Atka, confirming receipt of their official
notification of intent to process PCTC Program Pacific cod. Then, NMFS
will announce through notice in the Federal Register whether the AI
set-aside will be in effect for the upcoming fishing year.
(5) AI Set-aside Cooperative Provisions. If the representative of
the City of Adak or the City of Atka submits a timely and complete
notification of intent to process in accordance of this section, then
the following provisions will apply for the fishing year following the
notification:
(i) The PCTC Program cooperative(s) are required to set-aside an
amount of CQ calculated by the Regional Administrator pursuant to
paragraph (a)(4) of this section for delivery to an Aleutian Islands
shoreplant as defined at Sec. 679.2.
(ii) All cooperatives must enter into an inter-cooperative
agreement that describes how the AI set-aside will be administered by
the cooperatives to ensure that the PCTC Program harvests in the BS do
not exceed the amount of the set-aside for delivery to an Aleutian
Islands shoreplant. This inter-cooperative agreement must establish how
the cooperatives intend to harvest the AI set-aside when it applies.
This inter-cooperative agreement must be provided as part of the annual
cooperative application as specified in Sec. 679.131(a)(4) and is
required before NMFS can issue CQ.
(iii) The inter-cooperative agreement must establish how
cooperatives would ensure that trawl catcher vessels less than 60 feet
LOA assigned to an LLP license with a transferable AI trawl endorsement
have the opportunity to harvest 10 percent of the AI set-aside for
delivery to an Aleutian Islands shoreplant.
(c) PCTC Program A Season Set-Aside Limitations.
(1) If the Regional Administrator has approved a notification of
intent to process, vessels authorized under the PCTC Program shall not
harvest the amount of the AI set-aside in the BS subarea.
(2) PCTC Program cooperatives may not deliver more than the PCTC A
season CQ minus the AI set-aside established under Sec. 679.132 to
processors in the BS subarea when the AI set-aside is in effect.
(3) If an Aleutian Islands shoreplant is not able to receive
deliveries of Pacific cod under the PCTC Program, then the
[[Page 8630]]
City of Adak or the City of Atka may withdraw their annual notification
of intent to process prior to the end of B season.
(4) As soon as practicable, if the Regional Administrator
determines that Aleutian Islands shoreplants authorized under the PCTC
Program will not process the entire AI set-aside, the Regional
Administrator may remove the delivery requirement for some or all of
the projected unused AI set-aside to PCTC cooperatives in proportion to
the amount of CQ that each PCTC cooperative received in the initial
allocation of CQ for the remainder of the A and B season by inseason
notification published in the Federal Register.
(i) If the City of Adak or the City of Atka withdraws its intent to
process, the Regional Administrator will release the unused AI set-
aside to PCTC cooperatives in proportion to the amount of CQ that each
PCTC cooperative received in the initial allocation of CQ for that
calendar year by inseason notification published in the Federal
Register.
(ii) Following a withdrawal of an intent to process, the Regional
Administrator will announce through notice in the Federal Register that
the AI set-aside will not be in effect for the remainder of the PCTC
Program fishing year.
Sec. 679.133 PCTC Program use caps and sideboard limits.
(a) Ownership and use caps. (1) General.
(i) Ownership caps limit the amount of QS that may be owned by an
eligible harvester or eligible processor and their affiliates. Use caps
limit the amount of CQ that may be harvested by a vessel or received
and processed by a processor.
(ii) Use caps do not apply to halibut or crab PSC CQ.
(iii) Ownership and use may not be exceeded unless the entity
subject to the cap is specifically allowed to exceed a cap according to
the criteria established under paragraph (a)(6) of this section.
(iv) All QS ownership caps are a percentage of the initial QS pool
established by NMFS in Sec. 679.130(e).
(v) The CQ processing use cap is a percentage of the total amount
of CQ issued to cooperatives during a calendar year.
(vi) The vessel use cap is a percentage of the amount of CQ
assigned to the PCTC Program during a calendar year.
(2) Harvester ownership cap. A person may not individually or
collectively own more than 5 percent of the QS initially assigned to
harvesters unless that person qualifies for an exemption to this
ownership cap under paragraph (a)(6) of this section based on their
qualifying catch history. Processor-issued QS does not count toward
this ownership cap.
(3) Vessel use cap. A catcher vessel may not harvest an amount of
CQ greater than 5 percent of the CQ issued to the PCTC Program during a
calendar year unless that vessel qualifies for an exemption to this use
cap under paragraph (a)(6) of this section based on their qualifying
catch history.
(4) Processor ownership cap. A person may not individually or
collectively own more than 20 percent of the QS initially assigned to
processors unless that person qualifies for an exemption to this
ownership cap under paragraph (a)(6) of this section based on their
qualifying processing history.
(5) Processing use cap. A processor, at the firm or company level,
may not process more than 20 percent of the CQ assigned to the PCTC
Program during a calendar year unless that processor qualifies for an
exemption to this use cap under paragraph (a)(6) of this section based
on their qualifying processing history. The amount of CQ that is
received by a PCTC Program processor is calculated based on the sum of
all landings made with CQ received or processed by that processor and
the CQ received or processed by any person affiliated with that
processor as that term is defined in Sec. 679.2.
(6) Ownership exemptions.
(i) Harvester ownership cap exemption. A person may receive an
initial allocation of Pacific cod QS in excess of the harvester
ownership cap. This exemption is non-transferrable.
(ii) Processor ownership cap exemption. A person may receive an
initial allocation of Pacific cod QS in excess of the processor
ownership cap. This exemption is non-transferrable.
(iii) Vessel use cap exemption. A vessel designated on an LLP that
received an initial allocation of Pacific cod QS in excess of the
harvester ownership cap may harvest CQ in excess of the vessel use cap
up to an amount of CQ proportional to the amount of CQ resulting from
QS assigned to the LLP. This exemption is non-transferrable.
(iv) Processor use cap exemption. A processor that received an
initial allocation of Pacific cod QS in excess of the processor
ownership cap may process more than 20 percent of PCTC Program CQ
during a calendar year up to an amount of CQ proportional to the ratio
of QS held by the processor over the total amount of QS held by
processors. This exemption is non-transferrable.
(7) Transfer limitations. An eligible harvester that receives an
initial allocation of Pacific cod QS that exceeds the ownership cap
listed in paragraph (a)(2) of this section shall not receive any
Pacific cod QS by transfer unless and until the eligible harvester's
holdings of Pacific cod QS in the PCTC Program are reduced to an amount
below the use cap specified in paragraph (a) of this section.
(b) Sideboard limits--General. The regulations in this section
restrict the holders of LLP licenses issued PCTC Program QS from using
the increased flexibility provided by the PCTC Program to expand their
level of participation in GOA groundfish fisheries.
(1) Sideboard limit restrictions for LLP licenses authorizing AFA
non-exempt catcher vessels. LLP licenses that authorize AFA non-exempt
catcher vessels will be subject to the sideboard limitations specified
at Sec. 679.64(b)(4)(i).
(2) At-Sea Processing Sideboard Limit. A sideboard limit will be
specified on each LLP license with a BSAI Pacific cod trawl mothership
endorsement. Each LLP license with a BSAI Pacific cod trawl mothership
endorsement may receive PCTC Program CQ deliveries from a catcher
vessel not to exceed 125 percent of a catcher/processor's processing
history as defined in Sec. 679.130 or 125 percent of the catch history
from LLP licenses that are owned (in excess of 75 percent) directly or
indirectly by the owner of a catcher/processor eligible for the PCTC
Program, up to 125 percent of their processing history.
Sec. 679.134 PCTC Program permits, catch monitoring, catch
accounting, and recordkeeping and reporting.
(a) Permits. For permit information, please see Sec. 679.4(q).
(b) Catch monitoring requirements for PCTC Program catcher vessels.
The owner or operator of a catcher vessel must ensure the vessel
complies with the observer coverage requirements described in Sec.
679.51(a)(2) at all times the vessel is participating in a cooperative.
(c) Catch monitoring requirements for motherships receiving
unsorted codends from a PCTC Program catcher vessel. (1) Catch
weighing. All catch, except halibut sorted on deck by vessels
participating in the halibut deck sorting described at Sec. 679.120,
must be weighed on a NMFS-approved scale in compliance with the scale
requirements at Sec. 679.28(b). Each haul must be weighed separately
and all catch must be made available for sampling by an observer.
[[Page 8631]]
(2) Additional catch monitoring requirements. Comply with catch
monitoring requirements specified atSec. 679.93(c).
(d) Catch monitoring requirements for shoreside processors. All
groundfish landed by catcher vessels described in Sec. 679.51(a)(2)
must be sorted, weighed on a scale approved by the State of Alaska as
described in Sec. 679.28(c), and be made available for sampling by an
observer, NMFS staff, or any individual authorized by NMFS. Any of
these persons must be allowed to test any scale used to weigh
groundfish to determine its accuracy.
(e) Catch accounting. (1) Pacific cod. All Pacific cod harvests by
a vessel that is named on an LLP license assigned to a PCTC Program
cooperative and fishing under a CQ permit will be debited against the
CQ for that cooperative during the PCTC Program fishing seasons as
defined in Sec. 679.130(a)(2).
(2) PCTC Program halibut and crab PSC. All halibut and crab PSC in
the PCTC Program used by a vessel that is named on an LLP license
assigned to a cooperative and fishing under a CQ permit will be debited
against the CQ for that cooperative during the PCTC Program fishing
seasons as defined in Sec. 679.130(a)(2).
(3) Groundfish sideboard limits. All groundfish harvests in the
BSAI and GOA that are subject to a sideboard limit for that groundfish
species as described under Sec. 679.133(c), except groundfish
harvested by a vessel when participating in the Central GOA Rockfish
Program, will be debited against the applicable sideboard limit.
(f) Recordkeeping and reporting. The owners and operators of
catcher vessels and processors authorized as participants in the PCTC
Program must comply with the applicable recordkeeping and reporting
requirements of this section and must assign all catch to a PCTC
Program cooperative as applicable at the time of catch or receipt of
Pacific cod. All owners of catcher vessels and processors authorized as
participants in the PCTC Program must ensure that their designated
representatives or employees comply with all applicable recordkeeping
and reporting requirements.
(1) Logbook.
(i) DFL. Operators of catcher vessels participating in the PCTC
Program fishery must maintain a daily fishing logbook for trawl gear as
described in Sec. 679.5.
(ii) ELB. Operators of a catcher/processor designated on an LLP
license with a BSAI Pacific cod trawl mothership endorsement must use a
combination of NMFS-approved catcher/processor trawl gear ELB and
eLandings to record and report groundfish and PSC information as
described in Sec. 679.5 to record PCTC Program landings and
production.
(2) eLandings. Managers of shoreside processors that receive
Pacific cod in the PCTC Program must use eLandings or NMFS-approved
software as described in Sec. 679.5(e) to record PCTC Program landings
and production.
(3) Production reports. Operators of a catcher/processor designated
on an LLP license with a BSAI Pacific cod trawl mothership endorsement
that receives and purchases landings of PCTC CQ must submit a
production report as described in Sec. 679.5(e)(10).
(4) Product transfer report (PTR), processors. Operators of a
catcher/processor designated on an LLP license with a BSAI Pacific cod
trawl mothership endorsement and managers of shoreside processors that
receive and purchase landings of PCTC Program CQ must submit a PTR as
described in Sec. 679.5(g).
(5) Vessel monitoring system (VMS) requirements. Operators of
catcher vessels assigned to a PCTC cooperative or that are subject to
sideboard limits detailed in Sec. 679.134 must use functioning VMS
equipment as described at Sec. 679.28(f) at all times when operating
in a reporting area off Alaska during the A and B season.
(6) PCTC Program cost recovery fee submission (See Sec. 679.135).
(7) Pacific cod Ex-vessel Volume and Value Report. A processor that
receives and purchases landings of PCTC CQ must submit annually to NMFS
a complete Pacific cod Ex-vessel Volume and Value Report, as described
in Sec. 679.5(u) for each reporting period for which the PCTC
processor receives PCTC CQ.
Sec. 679.135 PCTC Program cost recovery.
(a) Cost recovery fees.
(1) Responsibility. Each PCTC Program cooperative must comply with
the requirements of this section.
(i) Subsequent transfer of CQ or QS held by PCTC cooperative
members does not affect the cooperative's liability for noncompliance
with this section.
(ii) Non-renewal of a CQ permit does not affect the cooperative's
liability for noncompliance with this section.
(iii) Changes in the membership in a PCTC cooperative, such as
members joining or departing during the relevant year, or changes in
the amount of QS holdings of those members does not affect the
cooperative's liability for noncompliance with this section.
(2) Fee collection. PCTC Program cooperatives that receive CQ are
responsible for submitting the cost recovery payment for all CQ
landings made under the authority of their CQ permit.
(3) Payment.
(i) Payment due date. A cooperative representative must submit any
cost recovery fee liability payment(s) no later than August 31
following the calendar year in which the CQ landings were made.
(ii) Payment recipient. Make electronic payment payable to NMFS.
(iii) Payment address. Submit payment and related documents as
instructed on the NMFS Alaska Region website as defined at Sec. 679.2.
(iv) Payment method. Payment must be made electronically in U.S.
dollars using an approved payment method available on the payment
website.
(b) Pacific cod standard ex-vessel value determination and use.
NMFS will use the standard prices calculated for Pacific cod based on
information provided in the Pacific Cod Ex-vessel Volume and Value
Report described at Sec. 679.5(u)(1) from the previous calendar year.
(c) PCTC Program fee percentage.
(1) Established percentage. The fee percentage is the amount as
determined by the factors and methodology described in paragraph (c)(2)
of this section. This amount will be announced by publication in the
Federal Register. This amount must not exceed 3.0 percent of the gross
ex-vessel value pursuant to 16 U.S.C. 1854(d)(2)(B).
(2) Calculating fee percentage value. Each year NMFS shall
calculate and publish the fee percentage according to the following
factors and methodology:
(i) Factors. NMFS must use the following factors to determine the
fee percentage:
(A) The catch to which the PCTC Program cost recovery fee will
apply;
(B) The ex-vessel value of that catch; and
(C) The costs directly related to the management, data collection,
and enforcement of the PCTC Program.
(ii) Methodology. NMFS must use the following equations to
determine the fee percentage:
100 x DPC/V
where:
DPC = the direct program costs for the PCTC Program for the previous
calendar year with any adjustments to the account from payments
received in the previous year.
V = total of the standard ex-vessel value of the catch subject to
the PCTC cost recovery fee liability for the current year.
(3) Publication.
[[Page 8632]]
(i) General. Following the fishing season in which the PCTC CQ
landings were made, NMFS shall calculate the fee percentage based on
the calculations described in paragraph (c)(2) of this section.
(ii) Effective period. The calculated fee percentage is applied to
PCTC CQ landings made in the previous calendar year.
(4) Applicable percentage. The CQ permit holder must use the fee
percentage applicable at the time a PCTC landing is debited from a CQ
allocation to calculate the cost recovery fee liability for any
retroactive payments for CQ landed.
(5) Fee liability determination for a cooperative.
(i) All cooperatives are subject to a fee liability for any CQ
debited from a CQ allocation during a calendar year.
(ii) The Pacific cod fee liability assessed to a cooperative is
based on the proportion of the standard ex-vessel value of Pacific cod
debited from a CQ holder relative to all cooperatives during a calendar
year as determined by NMFS.
(iii) NMFS will provide a fee liability summary letter to all
cooperative representatives by no later than August 1 of each year. The
summary will explain the fee liability determination including the
current fee percentage, details of CQ pounds debited from CQ
allocations by permit, species, date, and prices.
(d) Underpayment of fee liability.
(1) Pursuant to Sec. 679.131, no cooperative will receive any CQ
unless that cooperative has made full payment of cost recovery
liability at the time it applies for CQ.
(2) If a cooperative representative fails to submit full payment
for PCTC Program cost recovery fee liability by the date described in
paragraph (a)(3) of this section:
(i) At any time thereafter the Regional Administrator may send an
IAD to the cooperative stating the amount of the cooperative's
estimated fee liability that is past due and requesting payment. If
payment is not received by the 30th day after the date on the IAD, the
agency may pursue collection of the unpaid fees.
(ii) The Regional Administrator may disapprove any application to
transfer CQ to or from the cooperative in accordance with Sec.
679.130.
(iii) No CQ permit will be issued to that cooperative for that
following calendar year and the Regional Administrator may continue to
prohibit issuance of a CQ permit for any subsequent calendar years
until NMFS receives the unpaid fees.
(iv) No CQ will be issued based on the QS held by the members of
that cooperative to any other CQ permit for that following calendar
year.
(e) Over payment. Payment submitted to NMFS in excess of the annual
PCTC Program cost recovery fee liability for a cooperative will be
credited against the CQ permit holder's future cost recovery fee
liability unless the CQ permit holder requests the agency refund the
over payment. Payment processing fees may be deducted from any fees
returned to the CQ permit holder.
(f) Appeals. A cooperative who receives an IAD for incomplete
payment of a fee liability may appeal the IAD pursuant to 15 CFR part
906.
(g) Annual report. Each year, NMFS will publish a report describing
the PCTC Program cost recovery fee program.
0
12. Revise Table 40 to Part 679-- BSAI Halibut PSC Sideboard Limits for
AFA Catcher/Processors and AFA Catcher Vessels, to read as follows:
Table 40 to Part 679--BSAI Halibut PSC Sideboard Limits for AFA Catcher/Processors and AFA Catcher Vessels
----------------------------------------------------------------------------------------------------------------
In the following target species The AFA catcher/processor halibut The AFA catcher vessel halibut
categories as defined in Sec. PSC sideboard limit in metric tons PSC sideboard limit in metric tons
679.21(b)(1)(iii) and (e)(3)(iv) . . . is . . . is . . .
----------------------------------------------------------------------------------------------------------------
All target species categories........... 286 N/A
Pacific cod trawl....................... N/A N/A
Pacific cod hook-and-line or pot........ N/A 2
Yellowfin sole.......................... N/A 101
Rock sole/flathead sole/``other N/A 228
flatfish'' \1\.........................
Turbot/Arrowtooth/Sablefish............. N/A 0
Rockfish \2\............................ N/A 2
Pollock/Atka mackerel/``other species''. N/A 5
----------------------------------------------------------------------------------------------------------------
0
13. Revise Table 56 to Part 679--GOA Species and Species Groups for
Which Directed Fishing for Sideboard Limits by Non-Exempt AFA Catcher
Vessels is Prohibited, to read as follows:
Table 56 to Part 679--GOA Species and Species Groups for Which Directed Fishing for Sideboard Limits by Non-
Exempt AFA Catcher Vessels is Prohibited
----------------------------------------------------------------------------------------------------------------
Management or regulatory area and processing component (if
Species or species group applicable)
----------------------------------------------------------------------------------------------------------------
Pollock.................................... Southeast Outside District, Eastern GOA.
Pacific cod................................ Eastern GOA, inshore component.
Eastern GOA, offshore component.
Sablefish.................................. Western GOA.
Central GOA.
Eastern GOA.
Shallow-water flatfish..................... Western GOA.
Eastern GOA.
Deep-water flatfish........................ Western GOA.
Central GOA.
[[Page 8633]]
Eastern GOA.
Rex sole................................... Western GOA.
Eastern GOA.
Arrowtooth flounder........................ Western GOA.
Eastern GOA.
Flathead sole.............................. Western GOA.
Eastern GOA.
Pacific ocean perch........................ Western GOA.
Eastern GOA.
Northern rockfish.......................... Western GOA.
Shortraker rockfish........................ Western GOA.
Central GOA.
Eastern GOA.
Dusky rockfish............................. Western GOA.
Central GOA.
Eastern GOA.
Rougheye rockfish.......................... Western GOA.
Central GOA.
Eastern GOA.
Demersal shelf rockfish.................... Southeast Outside District.
Thornyhead rockfish........................ Western GOA.
Central GOA.
Eastern GOA.
Other rockfish............................. Central GOA.
Eastern GOA.
Atka mackerel.............................. GOA.
Big skates................................. Western GOA.
Central GOA.
Eastern GOA.
Longnose skates............................ Western GOA.
Central GOA.
Eastern GOA.
Other skates............................... GOA.
Sculpins................................... GOA.
Sharks..................................... GOA.
Octopuses.................................. GOA.
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[FR Doc. 2023-01333 Filed 2-8-23; 8:45 am]
BILLING CODE 3510-22-P