[Federal Register Volume 75, Number 168 (Tuesday, August 31, 2010)]
[Proposed Rules]
[Pages 53380-53456]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-21124]
[[Page 53379]]
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Part II
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 660
Fisheries Off West Coast States; Pacific Coast Groundfish Fishery
Management Plan; Amendments 20 and 21; Trawl Rationalization Program;
Proposed Rule
Federal Register / Vol. 75, No. 168 / Tuesday, August 31, 2010 /
Proposed Rules
[[Page 53380]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 660
[Docket No. 100212086-0307-03]
RIN 0648-AY68
Fisheries off West Coast States; Pacific Coast Groundfish Fishery
Management Plan; Amendments 20 and 21; Trawl Rationalization Program
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS proposes specific measures for the implementation of
Amendments 20 and 21 to the Pacific Coast Groundfish Fishery Management
Plan (FMP). Amendment 20 would establish a trawl rationalization
program for the Pacific Coast groundfish fishery, which would consist
of: An individual fishing quota (IFQ) program for the shorebased trawl
fleet (including whiting and non-whiting); and cooperative (coop)
programs for the at-sea (whiting only) mothership (MS) and catcher/
processor (C/P) trawl fleets. The trawl rationalization program is
intended to increase net economic benefits, create individual economic
stability, provide full utilization of the trawl sector allocation,
consider environmental impacts, and achieve individual accountability
of catch and bycatch. Amendment 21 would establish fixed allocations
for limited entry (LE) trawl participants. These allocations are
intended to improve management under the rationalization program by
streamlining its administration, providing stability to the fishery,
and addressing halibut bycatch.
On August 9, 2010, NMFS made its decision to partially approve
Amendments 20 and 21. Accordingly, this rule proposes the key
components that would be necessary to implement the trawl
rationalization program at the start of the 2011 fishery. NMFS
previously published a proposed rule on June 10, 2010 that would
restructure and clarify the Pacific Coast groundfish regulations to
more closely track the organization of the proposed measures (the
initial issuance proposed rule). The proposed rule and references to
the groundfish regulations in the preamble for this proposed rule cite
to the applicable sections of in the initial issuance proposed rule.
The initial issuance proposed rule would also establish the allocations
set forth under Amendment 21 and procedures for initial issuance of
permits, endorsements, quota shares (QS), and catch history assignments
under the IFQ and coop programs. This rule supplements the prior
initial issuance proposed rule, and provides additional details,
including: Program components applicable to IFQ gear switching,
observer programs, retention requirements, equipment requirements,
catch monitors, catch weighing requirements, coop permits, coop
agreement requirements, first receiver site licenses, quota share
accounts, vessel quota pound accounts, further tracking and monitoring
components, and economic data collection requirements. NMFS is also
planning a future ``cost recovery'' rule based on a recommended
methodology yet to be developed by the Pacific Fishery Management
Council (the Council).
DATES: Comments on this proposed rule must be received no later than 5
p.m., local time on September 30, 2010.
ADDRESSES: You may submit comments, identified by 0648-AY68, by any of
the following methods:
Electronic Submissions: Submit all electronic public
comments via the Federal e-Rulemaking Portal, at http://www.regulations.gov.
Fax: 206-526-6736; Attn: Jamie Goen.
Mail: William W. Stelle, Jr., Regional Administrator,
Northwest Region, NMFS, 7600 Sand Point Way, NE., Seattle, WA 98115-
0070; Attn: Jamie Goen.
Instructions: All comments received are a part of the public record
and will generally be posted to http://www.regulations.gov without
change. All Personal Identifying Information (for example, name,
address, etc.) voluntarily submitted by the commenter may be publicly
accessible. Do not submit Confidential Business Information or
otherwise sensitive or protected information. NMFS will accept
anonymous comments (if submitting comments via the Federal e-Rulemaking
portal, enter ``N/A'' in the relevant required fields if you wish to
remain anonymous). Attachments to electronic comments will be accepted
in Microsoft Word or Excel, WordPerfect, or Adobe PDF file formats
only. Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
proposed rule may be submitted to NMFS, Northwest Region, e-mailed to
[email protected]; or faxed to 202-395-7285.
FOR FURTHER INFORMATION CONTACT: Jamie Goen, 206-526-4656; (fax) 206-
526-6736; [email protected].
SUPPLEMENTARY INFORMATION:
Electronic Access
This proposed rule is accessible via the Internet at the Office of
the Federal Register's Web site at http://www.gpoaccess.gov/fr/index.html. Background information and documents, including the Final
Environmental Impacts Statements for Amendment 20 and Amendment 21, are
available at the Pacific Fishery Management Council's Web site at
http://www.pcouncil.org/.
Background
On August 9, 2010, NMFS made its decision to partially approve
Amendments 20 and 21 to the Pacific Coast Groundfish Fishery Management
Plan (FMP). Amendment 20 would establish a trawl rationalization
program for the Pacific Coast groundfish fishery, which would consist
of: An individual fishing quota (IFQ) program for the shorebased trawl
fleet (including whiting and non-whiting sectors); and cooperative
(coop) programs for the at-sea (whiting only) mothership (MS) and
catcher/processor (C/P) trawl fleets. Amendment 21 would establish
fixed allocations for limited entry (LE) trawl participants. On May 12,
2010 (75 FR 26702), NMFS published a notice of availability of
Amendments 20 and 21, and--consistent with requirements of the
Magnuson-Stevens Fishery Conservation and Management Act (MSA)--made
its decision to partially approve the amendments on August 9, 2010.
Because of the complexity of these amendments, NMFS determined that
implementation would take place through multiple rulemakings. The first
rule developed by NMFS would: Restructure and clarify the Pacific Coast
groundfish regulations to more closely track the organization of the
proposed management measures, establish the allocations set forth under
Amendment 21, and establish procedures for the initial issuance of
permits, endorsements, QS, and catch history assignments under the IFQ
and coop programs. Council staff and NMFS coordinated to develop this
initial issuance rule in early 2010, and the Council deemed a version
of the initial issuance rule necessary or appropriate for the
implementation of Amendments 20 and 21 at its April 2010 meeting in
Portland, Oregon. At the April meeting,
[[Page 53381]]
the Council directed Council staff to make specific revisions to the
regulations and additional edits as appropriate, convened a Regulatory
Deeming Workgroup (RDW) to review the continuing regulatory
development, and delegated authority to the Executive Director of the
Council to further deem the rule as necessary or appropriate prior to
their transmittal to NMFS for publication. On May 7, 2010, the
Executive Director transmitted Amendments 20 & 21 to NMFS for review by
the Secretary of Commerce. In that same letter, the Executive Director
deemed that the revised rule continued to be necessary or appropriate
for the purpose of implementing the plan amendments consistent with the
Council's intent, and after review by NMFS headquarters, the initial
issuance proposed rule was published in the Federal Register on June
10, 2010 (75 FR 32994). The preamble to the June 10, 2010, proposed
rule provided the detailed background for the proposed management
measures and is not repeated here.
After the April 2010 Council meeting, Council staff and NMFS
coordinated to develop the second set of draft regulations, which would
establish several of the program components required for implementation
of the rationalized trawl fishery in 2011, including IFQ gear switching
provisions, details of observer requirements and first receiver catch
monitor programs, first receiver site licenses, equipment requirements,
catch weighing requirements, retention requirements in the shorebased
IFQ program, QS accounts, vessel accounts for use of quota pounds (QP),
requirements for coop permits and coop agreements, further tracking and
monitoring components, and economic data collection requirements. A
version of the program components proposed rule was provided to the RDW
for its June 10-11, 2010 meeting to review and comment to the Council.
NMFS provided this version for the Council's consideration at its June
2010 meeting. At the June 2010 meeting, the Council directed NMFS to
continue drafting the proposed rule consistent with the Council's
direction on remaining issues to be addressed, and to provide a revised
version for the RDW to review at its June 30, 2010 meeting. The Council
delegated authority to its Executive Director to deem the final version
of the program components proposed rule as necessary or appropriate
after consideration of any further comments by the RDW. The RDW
reviewed additional revisions to the program components proposed rule
on June 30, 2010, and provided its comments to the Council. NMFS
completed drafting the regulations in close coordination with Council
staff, and on July 12, 2010, provided its final version of the program
components proposed rule to the Council. Council staff made additional
revisions, and on July 20, 2010, the Executive Director deemed the
regulations to be necessary or appropriate to implement Amendments 20
and 21 consistent with the Council's action.
The program components proposed rule provides details necessary for
implementation of trawl rationalization by January 2011. Some of the
provisions apply to several or all of the programs (i.e., Shorebased
IFQ Program, MS Coop Program, C/P Coop Program), while other details
only affect one program, as discussed below.
As mentioned in the preamble to the initial issuance proposed rule
(75 FR 32994, June 10, 2010) on page 32997, the management approaches
set forth in the trawl rationalization program consist of different
types of limited-access approaches. These limited-access approaches
grant permission to the holder of the privilege or permit to
participate in the program. Such permission may be revoked, limited, or
modified at any time. In other words, it is a conditional privilege.
Amendment 20 includes features such as annual renewal requirements and
regular program reviews that would ensure program goals are being met,
provide NMFS the ability to review, track, and monitor program
implementation and needs, and prevent the perception that the program
confers ``rights'' as opposed to privileges.
Amendment 20 establishes programs that are ``limited-access
privilege programs,'' which are consistent with the MSA provisions at
section 303A. Limited-access privileges, including the QS, QP, and
catch history assignments, may be revoked, limited or modified at any
time in accordance with the MSA, and do not create any right of
compensation to the holder of the limited-access privilege, QS, QP, or
catch history assignment if revoked, limited or modified. The limited-
access privilege program does not create any right, title, or interest
in or to any fish before the fish is harvested by the holder and shall
be considered a grant of permission to the holder of the limited-access
privilege to engage in activities permitted by the limited-access
privilege program. For further statutory provisions related to limited-
access privileges, see section 303A of the MSA.
Section 303A contains an ``antitrust savings clause'' that provides
that ``nothing in this Act shall be construed to modify, impair, or
supersede the operation of any of the antitrust laws. For purposes of
the preceding sentence, the term `antitrust laws' has the meaning given
such term in subsection (a) of the first section of the Clayton Act,
except that such term includes section 5 of the Federal Trade
Commission Act to the extent that such section 5 applies to unfair
methods of competition.'' NOAA advises that any fishery participants
who are uncertain about the legality of their activities under the
antitrust laws of the United States should consult legal counsel prior
to commencing those activities.
Changes Applicable to All Programs
Recordkeeping and Reporting
The program components proposed rule includes several new
recordkeeping and reporting requirements, including provisions for new
declarations, electronic fish tickets, a mandatory economic data
collection program (described further under ``Economic Data Collection
(EDC) Program'' later in this preamble), scale reports, annual coop
reports, and cease fishing reports.
The proposed rule would expand the use of declarations for the
management of the groundfish fisheries. Current regulations require
groundfish vessels to submit declarations in order to facilitate
tracking of compliance with area management measures when a vessel is
required to carry a vessel monitoring system (VMS). The proposed rule
would use declarations not only to complement VMS requirements, but
also to establish what fishery a vessel would be participating in for
the purpose of catch accounting and identifying what other requirements
would be applicable to that vessel. The proposed rule would also add a
declaration for vessels participating in the Shorebased IFQ Program
under gear switching, as described below. Motherships would be exempted
from the requirement to submit declarations, because motherships do not
operate as a catcher vessel, are not subject to any groundfish
conservation areas (GCAs), are not required to carry a VMS, and do not
switch between various gear types such that a declaration would be of
any use.
Landings in the Shorebased IFQ Program would be reported through a
Federal electronic fish ticket system. Shorebased IFQ first receivers,
which would be issued a first receiver site license from NMFS, would
complete the
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landings information for each fishing trip by a vessel offloading at
their site.
Scale reports would be required for scales used at shorebased IFQ
first receivers and for scales used on mothership and catcher/processor
vessels. Scales used to weigh catch on vessels would be required to be
inspected annually and tested daily. Records of the scale tests and
records of the scale printouts (catch weight and cumulative weight)
would be required to be maintained onboard the vessel until the end of
the year during which the reports were made, and be made available to
NMFS upon request. In addition, the vessel owner would be required to
retain printed reports for 3 years after the end of the year during
which the printouts were made. IFQ first receivers would be required to
allow for in-season scale testing. IFQ first receivers would also be
required to ensure that printouts of the scale weight of each delivery
or offload are made available to NMFS staff or to authorized officers
at the time printouts are generated. An IFQ first receiver would be
required to maintain printouts on site until the end of the fishing
year during which the printouts were made and make them available upon
request by NMFS staff or authorized officers for 3 years after the end
of the fishing year during which the printout was made.
Additional new recordkeeping and reporting requirements for the
coop fisheries would include a requirement for an annual coop report
describing the coop allocation, the total catch (retained and discards)
of the coop, monitoring, and other coop activities. Cease fishing
reports would be required in the coop fisheries to report to NMFS when
a coop has completed fishing for the year.
Permits
Under the proposed initial issuance rule, several new permits that
could be registered to a vessel would be issued. The program components
proposed rule sets forth the rules for registration and transfer of
registration that would apply to these permits. Consistent with current
regulations, when the owner of a limited entry trawl permit registered
to a vessel operating in the Shorebased IFQ Program transfers the
registration to another vessel, the registration would be effective at
the start of the next cumulative trip limit period. This provision
would remain in place because trip limits would remain in place in the
Shorebased IFQ Program (for non-IFQ species and for Pacific whiting
outside the primary whiting season). A transfer of registration for MS/
CV-endorsed limited entry trawl permits would also be effective at the
start of the next cumulative limit period because vessels registered to
MS/CV-endorsed permits would be eligible to participate in both the
Shorebased IFQ Program and the MS Coop Program. Transfers of MS permits
and C/P-endorsed limited entry trawl permits would be effective
immediately upon reissuance to the new vessel, because neither of these
permits would be affected by trip limits.
With respect to transfer of MS/CV-endorsed permits, the Council
motion included a provision (Appendix D, Page D-34) that would allow an
MS/CV-endorsed permit to have two changes in vessel registration in the
same calendar year, provided that the second change in vessel
registration would return the registration to the original vessel
assigned to the permit in that year. Transfer rules for limited entry
trawl permits without an MS/CV endorsement, however, limit the permit
owner to only one transfer in a given year. During its March 2010
meeting, the Council considered that because vessels registered to an
MS/CV-endorsed permit would be able to deliver whiting to the MS sector
and would also potentially be able to deliver IFQ groundfish to
shorebased first receivers, it may be possible for owners of an MS/CV-
endorsed permit to circumvent the restrictions on transfers of limited
entry permits in the Shorebased IFQ Program for owners of permits that
lack an MS/CV-endorsement. Consequently, the Council decided that if
the owner of an MS/CV-endorsed permit were to transfer registration of
the permit a second time, the vessel to which the permit is transferred
to would not be eligible to fish in the Shorebased IFQ Program under
that permit during the remainder of the year. The Council's motion on
this issue did not address the timing of when the second transfer would
be effective. Under the regulations being proposed, the second transfer
would be effective at the start of the next cumulative limit period
(i.e., 2-month period). If there are no trip limits for the mothership
fishery, then this restriction on the effective date of transfers may
not be necessary. NMFS solicits public comment on the effective date
for a second transfer within the same year of an MS/CV-endorsed limited
entry permit.
Pacific whiting vessel licenses, currently used in the at-sea
whiting fishery, would be removed under this proposed rule.
Consequently, section 660.26 of the initial issuance proposed rule
would be removed from the regulations. These licenses, which were first
issued in 2009 as an interim step in implementing Amendment 10, would
no longer be necessary under the trawl rationalization program. Under
trawl rationalization, participation in the mothership and catcher/
processor sectors would be limited by vessel permits that would replace
the Pacific whiting vessel licenses: MS permits and MS/CV-endorsed
limited entry trawl permits for the mothership sector and C/P-endorsed
limited entry trawl permits for the catcher/processor sector. Initial
eligibility and application processes for these permits and
endorsements were proposed in the initial issuance proposed rule (75 FR
32994, June 10, 2010). Vessels fishing for whiting in the Shorebased
IFQ Program would be limited through the existing limited entry trawl
permit system, and thus, Pacific whiting vessel licenses would no
longer be needed.
The at-sea whiting sectors (both mothership and catcher/processor)
would require a coop permit for any coops. Coop permits are discussed
further in the ``at-sea sector'' discussion below.
Economic Data Collection (EDC) Program
Trawl rationalization is expected to change both the size and
distribution of economic benefits generated by the West Coast
groundfish trawl fishery. Recognizing these likely changes in the
economic performance of the fishery, and the limitations inherent in
voluntary economic data collection programs, the Council voted to
implement a mandatory EDC program.
Authority To Implement the EDC Program
Economic data collection from harvesters and processors
participating in the West Coast groundfish trawl fishery is required
not only to determine if the trawl rationalization goals identified by
the Council are being met, but also to meet the heightened requirements
for economic analysis contained in the MSA. The MSA (Sec.
303A.(c)(1)(C)(iii)) requires that any limited access privilege program
(LAPP) shall promote social and economic benefits. In addition, Sec.
303A(c)(1)(G) of the MSA contains a monitoring requirement to determine
whether a LAPP is meeting its goals. The Council's stated goals include
several economic performance measures such as: a profitable and
efficient fleet, operational flexibility, minimize adverse impact on
fishing communities, promotion of economic and employment benefits, and
to provide quality product to consumers. The monitoring of economic
performance can also provide needed
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information to fishery managers about how to best use quota that has
been reserved for adaptive management. Without the collection of
economic data it would be difficult, if not impossible, to measure the
economic benefits and consequences of the proposed groundfish trawl
rationalization program. The EDC program seeks to provide the economic
data needed not only to meet legislative mandates, but also to provide
the Council with valuable information for future fisheries management
decisions. At the same time, the design of this program is mindful of
confidentiality concerns and the compliance burden created for
harvesters and processors.
Type of Information To Be Submitted
In order for economists to provide decision makers with information
on the magnitude and distribution of economic benefits of the trawl
rationalization program, available data collection must provide
reliable information on (1) the relevant parties whose economic welfare
is affected by trawl rationalization, and (2) the elements (such as
earnings, expenditures and employment) that comprise each party's
economic welfare derived from the groundfish trawl fishery. To meet
these needs, NMFS has designed mandatory survey questionnaires for
catcher vessels (both delivering shoreside and to motherships),
catcher-processors, motherships, shoreside processors, and first
receivers. These mandatory surveys would replace the existing voluntary
survey program undertaken with the shoreside limited entry groundfish
trawl fleet. This data collection would provide, for the first time, a
comprehensive source of economic information that can be used to
quantify the economic benefits and consequences accruing to shoreside
processors, catcher-processors, motherships, harvesters, individuals
employed in the fishery, and regional economic impacts.
Information Confidentiality
Under Federal law, EDC information would be considered confidential
and, as such, would not be disclosed to the public. In particular,
under the MSA, information that is submitted to NMFS pursuant to the
MSA is considered confidential and cannot be disclosed. The information
submitted through the questionnaires would be a required submission
under the MSA. If a Freedom of Information Act (FOIA) request for EDC
were received by NMFS, EDC information would only be released in
aggregated form, that is, without identifiers and other information
components that, if released, would allow someone to identify the
submitter and result in competitive or other harm to the submitter.
Further information about NMFS' confidentiality and aggregation
guidance can be found on its Web sites. NMFS' reports or other
publications on trawl rationalization would discuss EDC information,
but only in aggregated form.
Purposes for the EDC Information
Topics that would be addressed by economic analysis of the trawl
rationalization program include the magnitude and distribution of
economic benefits generated by the groundfish trawl fishery, regional
economic impacts, employment, the efficiency of harvesting and
processing operations within the fishery, capacity utilization, the
functioning of the quota market, spillover effects into other
fisheries, product quality, and incentives to reduce bycatch.
Addressing these topics would require collecting data at the level of
the individual harvesting vessel, processing vessel, first receiver and
processing plant. The data collection would be done on an annual basis,
with specific questionnaires designed for catcher vessels, catcher-
processors, motherships, and first receivers and shoreside processing
plants. Due to the relatively small number of vessels or processing
plants in each of these populations, a census of all members of the
survey population would be conducted each year. In addition to the
mandatory surveys of harvesters and processors, NMFS is conducting
voluntary social surveys of a wide range of participants in the
fishery.
Deadlines for EDC Form Submission
The questionnaires would be mailed to permitted and licensed
fishery participants (both active and inactive), as well as others who
according to available databases are required to complete a
questionnaire. Baseline information is necessary for NMFS and the
Council to understand program effects. To achieve a complete and useful
baseline database, NMFS would require 2009 and 2010 trawl fisheries
participants to provide baseline economic information. Although it is
possible that certain participants may not possess baseline
information, or may have dropped out of the fishery, NMFS believes it
must attempt to acquire the information. Requiring submission of 2009
and 2010 baseline information and not older information reduces the
submission burden.
To facilitate program administration, NMFS would attempt to mail
questionnaires to all relevant fishery participants on or around May 1
of every year. However, it is possible that NMFS would not identify all
participants who would be obligated to submit a questionnaire, thus it
would ultimately be the relevant participant's responsibility to obtain
a questionnaire and complete it. NMFS would conduct outreach to
facilitate identification of those who must provide both baseline and
annual questionnaires.
NMFS believes that persons required to submit EDC questionnaires
must have sufficient time to retrieve necessary information and
complete the questionnaire. Information submitted in annual
questionnaires is typically similar to information used to complete tax
returns. Given these considerations, NMFS proposes that EDC
questionnaires would be due no later than September 1 for both baseline
and annual EDC questionnaires. Thus, baseline questionnaires would be
submitted before September 1, 2011. Annual questionnaires would be
submitted before September 1 of each corresponding year, that is,
September 1 of the year following the year for which the information
must be provided.
Compliance With the EDC Form Submission Requirement
Because questionnaire submission would be mandatory, NMFS must
ensure there are compliance incentives. In addition to incentives to
avoid enforcement actions for failure to submit the questionnaire,
another incentive would be to withhold permit issuance or other
applications authorizing participation in the trawl program. For
example, if a prior year's annual questionnaire is not submitted by a
permit applicant or a vessel owner who maintains a vessel account, the
application or renewal process would be considered incomplete by NMFS.
The permit or renewal application would be denied and an Initial
Administrative Determination (IAD) issued setting forth the underlying
facts, a discussion and determination. Upon issuance of the IAD, NMFS
may withhold issuance of any new annual QS, not reauthorize a vessel
account, not register a permit to a vessel, not renew a permit, not
issue a license, or other related authorization to a participant. An
aggrieved permit or other participation applicant could appeal an IAD
through the Office of Administrative Appeals (OAA) in NMFS. An IAD that
is not appealed to the OAA within 30 days of the issuance would become
final agency action. Thus, if a questionnaire had not been submitted
prior to its receipt of an application or renewal request, NMFS
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would suspend permit application or renewal processing. Upon receipt of
the questionnaire, NMFS would then finish application or renewal
processing, assuming the applicant or requestor had met all other
requirements.
Who Would Be Required To Submit the EDC Form
The EDC program would require all trawl program participants to
submit the questionnaires. These participants include owners, lessees
and charterers of, catcher vessels, catcher processor vessels, and
mothership vessels; and, first receivers and shorebased processors. For
purposes of identifying shorebased processors from whom NMFS would
receive questionnaires and relevant economic information, NMFS--in
consultation with the RDW--crafted a specific, EDC program only,
definition for ``shorebased processor.'' Identifying the ``who'' among
shorebased processors that would be required to submit the
questionnaire raised a practical issue. There are a variety of seafood
processing operations, including first receivers and primary fish
processing operations that subject round or headed-and-gutted fish to
the first strokes of a knife. However, a certain amount of
``shorebased'' fish processing occurs long past the point of the
initial processors. For example, commercial processing can occur in
major food manufacturing facilities and supermarkets. While NMFS may
have authority to collect economic information from certain processing
operations, the EDC program was not designed to require information
from these operations.
In its consultations with the RDW, NMFS initially proposed that the
limited entry permit owner would bear the burden of submitting the
questionnaire and all information for vessels, including all vessel
economic information. This meant that the permit owner would be
required to submit data from ``third parties,'' that is, a person who
leases a permit to operate a vessel. In that instance, if the permit
owner were unable to obtain the lessee or charter's economic
information, it was possible that the permit owner would be unable to
submit a completed EDC questionnaire to NMFS. The RDW responded to
NMFS' proposal and asked that NMFS not require the permit owner to be
responsible for the submission of third-party lessee information.
The problem, according to the RDW, would be that in some
circumstances it would be impossible to obtain third-party information.
Thus, it would be unfair to impose this burden on the permit owner. In
view of the RDW's response, NMFS has changed the requirements it
initially proposed before the RDW. Thus, in this proposed rule, NMFS
would require that the permit owner submit only the permit owner's
information, if required, and not a third-party's information. Further,
the permit lessees would be required to submit questionnaires. This
eliminates the RDW's concerns and reduces the reporting burden for
permit owners and certain other program participants. However, in order
to facilitate its ability to identify who must submit a questionnaire,
NMFS proposes that permit owners and vessel owners be required to
disclose identifying information about lessees and charters.
The RDW also registered concerns about NMFS' use of the
administrative permit process to gain compliance with the EDC
requirements. In other EDC programs, NMFS has found that holding-up a
permit or renewal process for failure to submit a questionnaire
resulted in high compliance. NMFS believes that this administrative-
based compliance incentive is preferred to enforcement-based
incentives. An enforcement-based violation requires a lengthy and
administratively-complex adjudication process, while the
administrative-based, ``complete permit application'' process is more
efficient and requires fewer resources.
EDC Audit Process
In other EDC programs, NMFS has installed an economic information
verification process to ensure that submitted information is accurate
and to ascertain sources or causes for anomalous or outlier
information. Because an audit process enhances the reliability and
accuracy of the information database, NMFS proposes an audit process
for the trawl program. The audit program would consist of a process to
request submission of supporting documentation, either to NMFS itself,
or to a third-party such as a contractor or auditor. Further, NMFS or
the third-party could require the submitter to respond to any questions
within 20 days, unless an extension is granted by NMFS. A NMFS or
third-party auditor would review requested information for verification
purposes. Requested information would include financial statements,
worksheets, and tax returns. Information submitted in this audit
process would be a required submission to either NMFS or the third-
party auditor, thus the information would be considered confidential.
Transaction Prices
Separate from the EDC Program, NMFS would collect transaction
prices as recommended in the Council motion (Appendix D, A-2.3.2, p.D-
14). For collecting transaction values on permits, QS, and QP
transactions, the data collection system would have two components: (a)
A request for monetary estimates; and (b) key questions that
characterize the nature of the transaction. Responses may require a few
sentences to describe the nature of transactions. The permits office
would use this data to provide the public, via the NMFS IFQ Web site,
with simple averages so that the estimates may not reflect the total
values of the transactions. Detailed data on the nature of the
transactions would be provided to the NWFSC for use in developing more
precise estimates using econometric techniques. Because all reporting
would be electronic, NMFS would not be requesting copies of supporting
documentations, such as sales or lease agreements. Instructions would
be provided to encourage retention of supporting documents in order to
be responsive to audits that may be conducted by OLE as part of an
enforcement action or by NWFSC as part of their economic audit
function. Only relevant questions would be asked, with the intent being
to keep the list of questions to a minimum.
Observer Program
The initial issuance proposed rule created a separate section (at
Sec. 660.116) for regulatory requirements regarding mandatory observer
coverage as an interim step until discrete observer regulations were
proposed under this program components rule for each trawl program
(IFQ, MS, and C/P). Observers have been deployed in the Pacific coast
groundfish fisheries since 2001 in the West Coast Groundfish Observer
Program (WCGOP). In order to incorporate changes expected under trawl
rationalization, NMFS has been adapting the regulations implementing
the WCGOP. During this regulatory development, NMFS recognized that
each observer's roles and responsibilities would differ between each
fishery and may change in the future based upon a specific fishery's
requirements or needs. Accordingly, the program components proposed
rule removes Sec. 660.116 and reorganizes the observer regulations to
follow the overall structure of the regulations, providing detailed
requirements by fishery: Shorebased IFQ Program (Sec. 660.140(h)), MS
Coop Program (Sec. 660.150(j)), and C/P Coop Program (Sec.
660.160(g)). While a general description of the observer program
applicable to all is provided here, sections within each program
outline
[[Page 53385]]
changes in the proposed regulations specific to each.
Vessels would be required to procure observer services from any one
of a number of observer providers that are currently permitted to
deploy observers in the North Pacific fisheries. This presents a
distinct change for catcher vessels which have previously had no
observer coverage or which have had government-funded observers
selected and deployed by NMFS. The catcher vessels' cost of procuring
observer services may be partially defrayed by the government via a
subsidy for at least the first year of the Shorebased IFQ Program,
subject to appropriations.
Companies providing observer services (aka observer providers)
would be required to comply with all observer support, deployment
limitations and logistics and communication in this rule. The
requirements are similar to those found in other areas of the country
and focused on those considered necessary to receiving quality data
without impacting the efficiency of the provider companies operating in
the West Coast rationalized groundfish fleet.
Observers would be required to meet the minimum qualification
standards currently in use and successfully complete all training.
Observers would also be required to collect and submit data as per the
protocols of the program. If an observer's performance does not meet
the observer program minimum standards outlined in the observer program
manuals and other materials, the observer may be decertified and would
not be eligible to observe in any West Coast groundfish fishery. If an
observer fails to meet performance standards while conducting their
responsibilities, NMFS would initiate a proceeding to propose their
decertification. As with any proceeding to revoke a certification, NMFS
would provide the observer notice and an opportunity to challenge the
proposed decertification. NMFS would issue a preliminary decision and,
if it is unfavorable to the observer, an appeal process for further
review would be provided.
In addition to continuing to deploy observers in the non-
rationalized fleet, the WCGOP is reorganizing to meet the new demands
of trawl rationalization including training and briefings. To maintain
observer deployment flexibility and efficiency, observer training will
capitalize on the existing program structure to train and certify
qualified observers in the least number of trainings and briefings as
possible. Currently, observers are qualified, trained and certified
separately for the shorebased fleet and at-sea whiting processing
fleet. NMFS envisions continuing to design observer training around
similar observer duties and deployment logistics. Thus, in the future
coop whiting fleet, observers deployed aboard the motherships and
catcher processors would still be required to be certified and in good
standing with the North Pacific Groundfish Observer Program (NPGOP) (as
data collection, recording and transmission methods are similar) and
successfully complete a whiting observer briefing. These existing
briefings are expected to incorporate any additional duties aboard
motherships and catcher processors due to trawl rationalization. As for
observers deploying aboard catcher vessels delivering shoreside or to
motherships, a broader training incorporating updated duties or a
stand-alone IFQ training or briefing, is being investigated. The
current shorebased observer training is 13 days and instruction
includes data sampling methodology, data recording, species
identification, at-sea safety, etc. The Pacific whiting IFQ fishery and
mothership catcher vessel coverage that would be required under this
proposed rule creates the need to develop and train observers in new
methodology not previously included in WCGOP training. Given the number
of vessels anticipated to be in the Shorebased IFQ Program, the given
staffing and class size restrictions, NMFS is planning on two to three
trainings to ensure enough qualified observers are available for the
fleet by year end.
Conflict of Interest Regulations in the Observer or Catch Monitor
Programs
The proposed regulations, as deemed by the Council, contain
language on conflict of interest provisions for observers (Sec. Sec.
660.140(h)(6)(vii)), 660.150(j)(6)(vii), and 660.160(g)(6)(i)(G)) and
catch monitors (Sec. 660.18(c)). However, NMFS has concerns with the
language and believes it has the potential to undermine the integrity
of the shorebased and at-sea monitoring programs.
The data coming from observers aboard fishing vessels and catch
monitors at shorebased first receivers is crucial to NMFS's ability to
sustainably manage groundfish in general, and would be particularly
important during management of the pending groundfish trawl
rationalization program. A crucial component of NMFS's tracking and
monitoring system for the trawl rationalization program is the
collection of timely and accurate landings and discard data to allow
managers to ensure that landings stay within prescribed limits in order
to prevent overfishing and promote rebuilding. Such landings and
discard data would also provide fishermen with an accurate accounting
of their harvesting activities so that they can efficiently plan their
fishing operations. Maintaining strict conflict of interest standards
for monitors and observers would give managers and fishermen a high
level of assurance that they are basing their decisions on accurate
data. NMFS believes that the changes proposed by the Council would
unacceptably reduce the assurance that NMFS is receiving the best
available information from its monitoring programs.
In addition, if the language deemed by the Council were to be
implemented, there would be inconsistent conflict of interest
requirements within NMFS regulations, both between the regions, and on
the West Coast. The conflict of interest requirements that were
presented to the Council at its June 2010 meeting (see http://www.pcouncil.org/wp-content/uploads/B6a_ATT2_DRAFT_PRGRM_COMPONENTS_JUNE2010BB.pdf; requirements for catch monitors starting on
page 9, and for observers on page 41) are consistent with conflict of
interest standards set forth in the NMFS policy statement 04-109-01,
National Minimum Eligibility Standards for Marine Fisheries Observers,
implemented on August 6, 2007. In addition, the provisions proposed by
NMFS are consistent with existing requirements in the WCGOP, which will
remain in place for the fixed gear and open access fleets. NMFS
believes that the changes proposed by the Council would create
discrepancies both within the region and nationally, and would place
undue administrative burdens on NMFS.
Because of these reasons, NMFS intends to use its authority under
section 305(d) of the MSA to publish language in the final rule that
differs from what was deemed by the Council. This proposed rule
includes both the Council-deemed regulatory language and the language
proposed by NMFS. The regulatory language labeled Alternative 1 in the
conflict of interest provisions for observers (Sec. Sec.
660.140(h)(6)(vii)), 660.150(j)(6)(vii), and 660.160(g)(6)(i)(G)) and
for catch monitors (Sec. 660.18(c)) is the Council-deemed language,
and Alternative 2 is the language NMFS proposes to publish in the final
rule.
NMFS specifically requests comment on these conflict of interest
provisions for observers and catch monitors, and on NMFS's intent to
publish Alternative 2 to make these requirements consistent
[[Page 53386]]
within the region and with other NMFS programs.
Ownership Information
Previously, NMFS promulgated rules to determine ownership interests
of limited entry trawl permits under the data collection rule (75 FR
4684, January 29, 2010). Information regarding ownership is necessary
for NMFS to determine compliance with control limits and accumulation
limits in the trawl rationalization program. Based on NMFS's review of
the ownership information that it has received, NMFS realizes that
additional information may be necessary to make this determination. For
instance, while in many cases the owner of the trawl limited entry
permit is the same person as the owner of the vessel to which the
permit is registered, this does not always appear to be the case.
Because control of QS is determined on a case by case basis and
extensive control of QP may indicate control of the underlying QS, NMFS
needs ownership information related to vessel accounts as well as for
the permit owner. The proposed rule would require vessel account owners
to submit an ownership identification form in order to collect this
information. In the event that the permit owner and vessel owner are
the same, there may be some duplication in the requested information,
and NMFS is exploring methods to coordinate processes in order to
minimize the burden of multiple ownership identification forms.
In some cases, the structure of the ownership interests may raise
questions as to how NMFS interprets the ownership interest in order to
make its determination. NMFS has identified two such instances: (1)
Joint ownership, and (2) ownership by a trust. Each of these situations
is addressed in the proposed rule, and NMFS specifically requests
comments on the implications of its interpretations of these ownership
structures, or of any other ownership structure not previously
identified that may raise questions.
A joint ownership situation exists where more than one person
claims an interest indivisible from that of another person, such that
the total ownership interest is greater than 100 percent. An example of
this would be a joint tenancy, a form of property ownership where two
parties (often a husband and wife) each own 100 percent, and in the
event of death of one of them, the survivor would retain the
indivisible 100 percent already owned. In these situations, NMFS would
credit each owner with the full percent claimed (e.g., in this example,
100 percent each), even though the sum of all ownership interests would
exceed 100 percent. NMFS believes that for some owners, the benefits of
joint tenancy may be greater than the parties' concern for accumulation
limits, particularly if they are more interested in estate planning
than accumulation of privileges, and that if the parties to a joint
tenancy don't want to avoid individual accountability for the entire
ownership interest, they would have the option of restructuring.
Ownership by a trust creates another area where questions arise
regarding compliance with accumulation limits. In any consideration of
trusts, there are three parties that need to be considered: the
trustee, the beneficiaries, and the trustor. Generally speaking, the
trustee manages the property held in the trust according to the terms
of the trust document for the benefit of the beneficiaries of the
trust. The beneficiaries are equitable owners of the property, but
generally, since they are not the legal owners do not exercise control
over the property. The trustor is the party that sets up and grants
property to the trust. Because a trust vests the legal title to the
property in the trustee, under the proposed rule NMFS would credit
ownership to the trustee. If there is more than one trustee (i.e.,
``co-trustees''), NMFS would consider each trustee to have 100 percent
ownership of the trust property. NMFS recognizes that whether other
parties besides the trustee would be impacted by ownership and control
rules depends upon the nature of the trust and how it is set up. For
instance, a trustor might retain authority to take the property back
from the trust (i.e., a revocable trust), or, in some circumstances,
beneficiaries could assert control over the trust property, modify the
trust document, and/or wrest the legal ownership away from the trustee.
For both of these cases, ownership would not appear to be an issue
unless the trustor or beneficiaries gain actual legal ownership of the
trust property, however, whether control rules would be implicated is
harder to say and would depend upon the trust document. Thus, the
program components rule includes provisions that NMFS may ask for
additional information it believes to be necessary for its
determination.
Monitoring and Enforcement Measures
As is the case for any quota-based program, NMFS would need to be
able to accurately monitor the use of QS and accumulation limits. The
Council voted to institute a variety of monitoring and enforcement
measures. The shorebased monitoring and catch accounting system would
be an expansion of the program that has been conducted under exempted
fisheries permits for the Pacific whiting shoreside fishery since 1992.
The primary tools for monitoring would include: (1) Requiring the use
of observers aboard catcher, catcher-processor, and mothership vessels;
(2) requiring the use of catch monitors at all first receivers and
related processing facilities; (3) requiring the weighing of all catch
on NMFS approved scales; (4) requiring that catcher-processors follow
specified procedures when handling catch prior to processing; (5)
requiring that first receivers participating in the program use
electronic fish tickets and related computer software, and adopt and
comply with catch monitoring plans for each site. These measures are
discussed in more detail below.
Cost Recovery
The agency may collect fees to cover the administrative costs of
issuing any permits (one-time fee for initial issuance and annual
renewal), QS accounts and vessel accounts (annual), and first receiver
site licenses (annual). Amendment 20 provides for the assessment of
cost recovery fees up to 3 percent of ex-vessel value, consistent with
section 303A(e) of the MSA. Under the MSA (Section 303A(e)(1)(2)) and
Public Law 109-479, the Secretary is authorized and shall collect a fee
to recover the agency's costs of management, data collection, analysis,
and enforcement activities. Cost recovery is not included in this
proposed rule, but will be addressed through a future Council action
and trailing regulatory amendment.
Status Quo Management of the Trawl Fishery
Under the trawl rationalization program, some status quo management
measures would remain in place for the trawl fishery, including the use
of trip limits and closed areas. One example of a status quo management
measures that would remain in place is the provision at Sec. 660.55 in
the initial issuance proposed rule that ``no more than 5 percent of the
Shorebased IFQ Program allocation may be taken and retained south of
42[deg] N. lat. before the start of the primary Pacific whiting season
north of 42[deg] N. lat.'' This issue was specifically addressed by the
Council at its April 2010 meeting as a management measure that should
remain because of implications for Chinook salmon bycatch.
Many groundfish species would continue to be subject to trip limits
under the Shorebased IFQ Program; any IFQ species caught (retained or
[[Page 53387]]
discarded) under these trip limits would still be required to be
covered by QP. Trip limits would also remain in place for Pacific
whiting prior to the primary whiting season (see Appendix D, A-1.5, p.
D-6), in order to maintain protections for incidentally-caught Chinook
salmon. The proposed rule would eliminate trip limits at the close of
the primary season, because under an IFQ program, the effective date of
the close of the primary whiting season would be the end of the
calendar year, and any catch of Pacific whiting would be subject to
available whiting QP. Closed areas, including the GCAs and Ocean Salmon
Conservation Zone, would also remain in place as a management tool for
all trawl programs. One potential concern may be that whiting fishermen
could increase targeting of non-whiting stocks, such as yellowtail,
that could be caught with midwater trawl gear used in the GCAs as
allowed for vessels targeting whiting. The proposed rule would not
prohibit this. NMFS believes that it can monitor the fishery, and that
the Council can take action if it determines that this possibility
presents a concern.
Shorebased IFQ Program
Observers and Catch Monitors
Under the Shorebased IFQ Program, in order to assure that all
catch, including discards, would be matched against QP, the Council
voted to implement 100 percent at-sea observer coverage for all vessels
and 100 percent monitoring of catch by all IFQ first receivers. The
proposed rule would require all vessels in the Shorebased IFQ Program
to carry observers, and defines prohibited actions and responsibilities
of vessels, the responsibilities of companies providing observer
services, and observer qualifications and responsibilities. The
proposed rule would also require all IFQ first receivers to employ
catch monitors, and would establish similar definitions of
responsibilities for first receivers, catch monitor providers, and
catch monitors.
The qualifications, roles, and responsibilities would differ
between observers and catch monitors, therefore, each are addressed in
separate areas in the rule. Observers in the WCGOP are highly-trained
biologists that work independently aboard vessels in difficult at-sea
environments to quantify discards and mortality estimates of certain
bycatch species, collect biological samples and monitor for any fishery
interactions with marine mammals, sea turtles and seabirds. The WCGOP
was developed consistent with guidelines for fishery observer programs
developed under the MSA (see MSA sec. 403, 16 U.S.C. 1881b; 50 CFR
600.746), and as such, the program components proposed rule would
retain the WCGOP's existing general framework and add new components
specific to the Shorebased IFQ Program. New provisions would include
the collection of accurate estimates of discards of IFQ species that
would be used to estimate individual vessels' overall use of QP and the
requirement for observer coverage until all IFQ species from the trip
are offloaded.
In contrast to observers, catch monitors would be land-based--
principally at first receiver facilities--and would confirm that total
landings are accurately recorded on fish tickets (landing receipts). A
catch monitors' focus would be more akin to an enforcement role than
that of a biologist. The shorebased monitoring and catch accounting
system in the proposed rule would expand the current program that has
been conducted under exempted fisheries permits (EFPs) for the Pacific
whiting shoreside fishery since 1992. The new collection of data would
cover not only the Pacific whiting shoreside fishery but all groundfish
delivered shoreside by vessels participating in the Shorebased IFQ
Program.
The proposed rule would adopt similar regulations for catch
monitors as for observers, including definitions of prohibited actions
that undermine catch monitors, such as harassment, and responsibilities
of IFQ first receivers, responsibilities of companies providing catch
monitor services, and catch monitor qualifications and
responsibilities. The key differences between the observer and the
catch monitor programs include physical location, tracking of discards
versus landings, and educational requirements. The program components
proposed rule would require catch monitors and catch monitor providers
to meet the standards outlined in the rule, but for the first year of
the trawl rationalization program, to ease the implementation of the
catch monitor program and assure that there are enough catch monitors
available for the fishery to proceed, NMFS would ``grandfather''
existing catch monitors and catch monitor providers that have provided
services in the EFP fishery.
There are some additions to the catch monitor regulations in this
proposed rule that were deemed through the Council deeming process
after the June 2010 Council meeting. A summary of these additions to
Sec. 660.17 follows: (1) That a qualified catch monitor would be
required to have computer skills; (2) that a catch monitor would be
required to be certified by NMFS, not have ailments that would prevent
them from performing their duties, and to have completed training; (3)
that catch monitor providers would be required to provide catch
monitors to first receivers pursuant to the terms of their contract;
(4) that the catch monitor providers would be required to ensure that
catch monitors complete their duties in a timely manner; (5) that the
catch monitor providers would be required to provide catch monitors'
salaries, benefits, and logistical support; (6) that catch monitor
providers would be required to assign catch monitors within specified
assignment limitations and workload; (7) that catch monitor providers
would be required to maintain communications with catch monitors and
the catch monitor program office; (8) details of training, briefing,
and debriefing requirements for catch monitors; (9) details on
requirements of the catch monitor provider contracts; (10) that catch
monitor providers would be required to provide NMFS status reports on
catch monitors; (11) that catch monitor providers would be required to
replace lost or stolen gear; and (12) that catch monitor providers
would be required to ensure that records on individual catch monitor
performance remain confidential. These provisions would delineate the
respective responsibilities between catch monitors, catch monitor
providers, and first receivers and are included to assure the
effectiveness of the catch monitor program.
In order to improve efficiency in some ports, the proposed rule
anticipates that some observers would also take the role as a catch
monitor, provided the qualifications for both would have been met.
However, an individual who functions as both would not work more than a
maximum number of hours that would negatively affect their safety,
health, or job performance. NMFS continues to discuss possible
coordination between observer training and catch monitor training
programs to gain further efficiencies. In addition, NMFS is examining
the Council's request to explore the possibility that State employees
may be used as observers or catch monitors, but discussions have not
progressed sufficiently to include in this proposed rule.
First Receiver Site License, Catch Monitoring Plan, Electronic Fish
Tickets, and Scales
The Shorebased IFQ Program requires that fish harvested in the
program be delivered to an IFQ first receiver holding a first receiver
site license. Under the program components
[[Page 53388]]
proposed rule, for an applicant to obtain a first receiver site
license, the applicant would be required to have a NMFS-approved catch
monitoring plan that complies with regulatory requirements, have been
subject to a site inspection conducted by NMFS staff, be in compliance
with equipment requirements (e.g., scales), and report landings through
an electronic fish ticket system. Because the rule is not projected to
be effective until the end of December 2010, NMFS anticipates that
there would not be sufficient time to review all catch monitor plans
submitted with first receiver site license applications, nor would
there be sufficient time to physically inspect each site prior to the
start of the groundfish season on January 1, 2011. Thus, the program
components proposed rule includes a provision for an interim first
receiver site license that would provide a temporary authorization for
first receivers to buy IFQ groundfish while NMFS processes the
applications for the first receiver site licenses.
To obtain an interim site license, a first receiver would need to
submit an application with a catch monitor plan, and NMFS would issue
the interim license. Subsequently, NMFS would review the plan and
inspect the site, and if the plan and inspection meets the listed
criteria, NMFS would issue a (non-interim) first receiver site license
which would supersede the interim license. If the catch monitor plan or
inspection does not meet the required standards, the first receiver may
attempt to fix the deficiencies and have its application reconsidered
by NMFS. The interim license would be effective for a period of up to
six months, or until NMFS issues a (non-interim) first receiver site
license, whichever comes first. NMFS anticipates that this six month
period would be sufficient to process initial applications for first
receiver site licenses, and any subsequent applications would be
processed as applications are received.
An IFQ first receiver would be required to meet equipment
requirements and electronic landing reporting requirements while
operating under an interim first receiver license. A first receiver
site license applicant would be required to prepare a catch monitoring
plan and be subject to on-site verification for compliance. These plans
would be subject to approval by NMFS to ensure the plan conforms with
program monitoring criteria. The plans would include descriptions of
catch-sorting spaces, how first receiver staff would sort catch and
prevent unsorted catch from entering areas beyond the sorting space,
scales used for weighing and their location, ensure accurate catch
weighing, delivery points where catch is removed from vessels, and the
catch monitor's observing area sufficient to allow monitoring of the
flow of fish. Likewise, a first receiver site license holder would be
required to ensure that all catch is landed, sorted, and weighed in
accordance with the plan. Should conditions change and the plan require
modification, a first receiver would be able to amend the plan.
First receivers would be required to provide complete facility
access to NMFS staff, catch monitors, and other authorized persons.
Such access is necessary for monitoring and program enforcement.
Further, scales to weigh catch would be periodically checked for
accuracy and written printouts verifying their accuracy would be
required to be provided on a periodic basis.
After catch is weighed by the first receiver, the landing
information would be reported on the electronic fish ticket system. The
electronic fish ticket system would require a first receiver to have a
computer installed with NMFS-specified hardware and software. To
facilitate and ensure accurate scales and a reliable electronic fish
ticket system, NMFS proposes a number of standards by which the scales
and computer and software systems would be operated.
QS Permits, QS Accounts, Vessel Accounts
The initial issuance proposed rule established a QS permit that
would be issued to eligible applicants for QS. Under the initial
issuance proposed rule, a QS permit would be required for the
establishment of a QS account, which would be used for tracking the QS
owner's amounts of QS or IBQ for each IFQ species. Also under the
proposed initial issuance rule, such QS permits would be required to be
renewed annually in order to track ownership of QS and IBQ for
compliance with control limits. The program components proposed rule
further develops how NMFS would manage QS accounts and QS permit
renewals.
The proposed rule would allow QS owners to access their QS accounts
electronically, through the use of a unique ID and personal
identification number (PIN). Previously, NMFS had drafted language that
QS account and vessel account owners would be required to make a
request to NMFS in writing in order to designate other people with
access to the account. NMFS has decided, however, that in order to
reduce the paperwork burden on NMFS and the public, NMFS would issue an
ID and PIN to account owners to access their individual QS account or
vessel account. If an account owner wants to grant access to their
account, the account owner may authorize any individual to access their
QS account by providing their unique ID and PIN. NMFS would not manage
access to the accounts, and the burden of ensuring the integrity of the
account would fall to the account owner. While not in the proposed
regulation, if preferable, NMFS could issue access level PINs as well,
allowing account owners to grant different levels of account access to
other individuals as needed. That is, an account owner could have a PIN
that would allow him/her to make a transfer, but another individual may
have a different PIN that only allows for read-only access to the
account, which may be desirable for a vessel captain to verify QP
balances in the vessel account before making a trip, for example.
For the first two years of the program, QS and IBQ would not be
transferable, but QS and IBQ pounds would be able to be transferred to
vessel accounts. Each year, QS account holders must transfer their
associated QP and IBQ pounds to a vessel account by September 1. QP and
IBQ pounds, once transferred to a vessel account, would not be able to
be transferred back to a QS account, but could be transferred to other
vessel accounts.
Annually, NMFS would make allocations of QP and IBQ pounds to QS
accounts based on available OYs, the amount of QS or IBQ in the QS
account, and the results of any initial issuance appeals processes and/
or non-renewed QS permits.
A vessel account would be created by NMFS upon request by the owner
of a vessel registered to a valid trawl limited entry permit (other
than a C/P-endorsed permit). A vessel account registration would be
specific to the vessel and its unique vessel owners. The vessel may be
registered with different trawl permits in a given year (one at a
time), and the vessel account would cover landings of IFQ species only
when the vessel is registered to a trawl limited entry permit. Subject
to accumulation limits, vessel accounts would be able to receive QP via
transfers from QS accounts or from other vessel accounts. After an IFQ
landing by a vessel, the amount of the landing would be initially
debited from the vessel account, based on electronic fish ticket
submissions by first receivers. However, if the catch monitor estimates
were to be higher than that reported by the first receiver, the account
would be adjusted to reflect the higher estimate, and both the first
receiver and the vessel account holder
[[Page 53389]]
would be notified of the discrepancy. When a discrepancy occurs, NMFS
would review available information against its quality control
procedures. If differences cannot be resolved, the final correction
would be based on the final fish ticket estimates developed under the
State fish ticket system. The accounts would also be debited by the
discard estimates submitted by the observer program. Should the vessel
owner dispute the observer estimates, the owner would be able to
request the WCGOP to review its processes and make appropriate
corrections.
QS permit owners and owners of vessels that land IFQ species would
be required to use an online IFQ system to account for and to transfer
QS and IBQ, or QP and IBQ pounds. The online IFQ system would grant
access to both QS accounts and vessel accounts.
For transfers, each transaction would be subject to accumulation
limits. Because of this, both the transferee and the transferor would
be required to agree to the transaction online. NMFS would review the
proposed transaction, and accept the transaction if accumulation limits
would not be exceeded as a result of the transfer, thus allowing the
transaction to proceed. NMFS acceptance of the transaction would only
relate to compliance with accumulation limits and not control limits,
as a determination on compliance with control limits would require more
information than that which would be provided in the online IFQ system.
Upon acceptance, the online system would send both the transferee and
transferor confirmation notices for the transaction. Account holders
would be able to use these confirmation notices for purposes of
providing documentation to banks or other third parties associated with
the transaction. NMFS would also provide a process by which account
holders could request a correction of transaction data that were
incorrectly recorded by the online IFQ system.
The November 2008 Council motion states that transfers of ``QS will
be highly divisible and the QP will be transferred in whole pound units
(i.e., fractions of a pound may not be transferred).'' Appendix D, A-
2.2.3(d), p. D-12. While the motion clearly identified the lowest unit
for the transfer of QP, the motion did not state what the lowest unit
of ``highly divisible'' QS would be once QS becomes transferable in the
third year of the program. NMFS presented this issue to the Council at
its June 2010 meeting, and the Council determined that the smallest
unit for QS transfers would be one one-thousandth of a percent. Thus,
the proposed rule establishes the minimum unit for QS transfer at 0.001
percent.
Under the proposed initial issuance rule, QS permits would be
required to be renewed annually. The program components proposed rule
adds a renewal requirement for vessel accounts as well. Upon review of
ownership information for limited entry permits collected from the data
collection rule (75 FR 4684, January 29, 2010), NMFS realized that
ownership of limited entry trawl permits alone would be insufficient to
administer the Shorebased IFQ Program and that additional information
would be needed. In particular, NMFS would need to collect information
for the economic data collection program, ownership information to
assure compliance with control limits, and general administrative
information to keep NMFS' database current. Requiring an annual renewal
of vessel accounts would provide NMFS the ability to collect such
information at the vessel level, in particular where the permit owner
and vessel owner are not the same. In the event that the permit owner
and vessel owner are the same, there may be some duplication in the
requested information, and NMFS is exploring methods to coordinate
processes in order to minimize the burden of multiple renewals. If NMFS
does not renew a QS permit or a vessel account after the owner submits
the renewal application (e.g., because the renewal is incomplete), this
action would be subject to NMFS' permit appeals process.
While the initial issuance proposed rule would establish a QS
permit renewal requirement, it did not specify what would happen to the
QP that would be derived from the QS associated with the QS permit in
the event that the permit owner failed to renew the permit. Allowing a
QS permit owner to renew at a later time and delaying the issuance of
QP until that time would provide greater flexibility for an individual
QS permit owner, but would provide less overall flexibility for the
fleet as the QP would not be available for transfer to vessels that
seek additional QP. At its June 2010 meeting, the Council determined
that for any QS permit that is not timely renewed, the QP that would be
derived from the QS associated with the QS permit would be
redistributed among all of the QS permit owners that timely renew their
permits, in proportion to the amount of QS they each own for each IFQ
species. The redistribution of QP would not affect the ownership of QS;
the owner of the QS permit that did not timely renew in one year would
be able to renew the QS permit in a subsequent year to bring the QS
permit current.
Accumulation Limits and ``Other Fish''
The accumulation limits on used and unused QP in vessel accounts in
the Council motion (Appendix D, Table D-2, p. D-20) erroneously
included limits on ``other fish,'' which is not an IFQ species subject
to these limits. The initial issuance proposed rule likewise included
``other fish'' erroneously in the accumulation limits table at Sec.
660.140(e)(4). In this proposed rule, NMFS has removed ``other fish''
from the accumulation limits table, and intends to make the same change
in the final initial issuance rule.
Maximized Retention in the Pacific Whiting IFQ Fishery
Under current practices in the maximized retention Pacific whiting
fisheries, some minor amounts of operational discard are allowed. Under
trawl rationalization, any minor operational amounts of discard would
be estimated by the observer and deducted from allocations. NMFS raised
this issue at the Council's March 2010 meeting for the maximized
retention fishery in the mothership sector (Agenda Item E.6.b, NMFS
Report 1, March 2010, 25). For the Shorebased IFQ Program,
however, the Council motion at Appendix D, A-2.3.1, p. D-13 states:
``Whiting: Maximized retention vessels: Discarding of fish covered by
IFQ or IBQ, and nongroundfish species prohibited.'' The proposed rule
adopts this language at Sec. 660.140(g)(2), which states: ``Maximized
retention vessels participating in the Pacific whiting IFQ fishery are
prohibited from discarding any IFQ species/species group and
nongroundfish species[;]'' however, this language is potentially
ambiguous in that it refers to maximized retention vessels, but
prohibits discarding. NMFS specifically requests public comment on any
implications that the prohibition on discarding may have on the
prosecution of a maximized retention fishery, and further requests
comment on what should constitute discarding under this provision of
the Shorebased IFQ Program.
IFQ Program Management Measures
Prohibition on Processing Groundfish in Shorebased IFQ Program
Under the trawl rationalization program, vessels participating in
the Shorebased IFQ Program may have more flexibility in when and how
they harvest their quota, including fishing
[[Page 53390]]
with any legal groundfish gear under the gear switching provisions.
Therefore, there may be increased opportunity for processing of
groundfish at sea. Under current regulations at Sec. 660.302 (which
would remain under the proposed rule at Sec. 660.11), ``processing''
is defined as ``the preparation or packaging of groundfish to render it
suitable for human consumption, retail sale, industrial uses or long-
term storage, including, but not limited to, cooking, canning, smoking,
salting, drying, filleting, freezing, or rendering into meal or oil,
but does not mean heading and gutting unless additional preparation is
done.'' Current groundfish regulations prohibit the following: (1)
Processing sablefish taken at-sea in the limited entry fixed gear
primary sablefish fishery from a vessel that does not have a sablefish
at-sea processing exemption (Sec. 660.334(e)); or (2) processing of
Pacific whiting except by Pacific whiting shoreside vessels 75 feet in
length or less that are allowed to head and gut, remove tails, and
freeze whiting (Sec. 660.373(a)(3)). The current regulations do not
include a general prohibition on processing all groundfish at-sea for
vessels landing groundfish at shorebased processors. In other words,
under current regulations, the non-whiting trawl catcher vessels are
not prohibited from processing non-whiting catch.
NMFS brought the prohibitions on processing for limited entry fixed
gear sablefish and Pacific whiting shoreside vessels to the Council's
attention at its March and April 2010 meetings in regards to
implications for the Shorebased IFQ Program. At the Council's April
meeting, NMFS provided a document that stated ``Because at-sea
processing is prohibited for participants of the limited entry primary
sablefish fishery and in order to maintain fairness between this
fishery and the shorebased IFQ fishery, sablefish processing at-sea
will also be prohibited for participants in the shorebased IFQ
fishery.'' (Agenda Item I.1.b, Supplemental NMFS Report 3, April 2010,
5). Extending from that interpretation, and as brought forward
in the version of the regulations deemed by the Council at its June
2010 Council meeting, the prohibition was broadened to include
processing of all groundfish at sea by vessels in the Shorebased IFQ
Program, regardless of the type of gear used, with the following
exceptions: (A) A vessel that is 75-ft (23-m) or less LOA that harvests
whiting and, in addition to heading and gutting, cuts the tail off and
freezes the whiting, and (B) a vessel that has a sablefish at-sea
processing exemption may process sablefish at-sea. The proposed rule
would adopt this prohibition at Sec. 660.112(b)(1)(xii).
Weight Limits and Conversions
Groundfish allocations, harvest guidelines, and quotas are
expressed in round weight. In cases where fish are landed dressed
(headed and gutted, or in the case of Pacific whiting, headed and
gutted with tails removed (neither activity is considered processing
under the groundfish regulations which prohibit processing at-sea for
the shorebased fishery), catch weight conversions are used to determine
actual round weight of the harvested fish. To derive the weight of
round fish harvested by a vessel that delivers dressed fish, a weight
conversion factor is multiplied by the dressed weight.
Due to the increased individual accountability of catch (landings
and discards) and the individual allocations of harvest opportunity
under the Shorebased IFQ Program, NMFS proposes to revise regulations
at Sec. 660.60(h)(5)(ii) to create more consistent use of weight
conversion factors coastwide. Currently, some discrepancies exist
between the weight conversions used by the States of Washington,
Oregon, and California. The use of State weight conversions would
remain in place for the limited entry fixed gear and open access
fisheries because they would continue to be managed under sector
allocations (rather than individual quotas) and would continue to be
tracked under the State paper fish ticket system. However, under trawl
rationalization, landings of groundfish in the Shorebased IFQ Program
would be reported through a Federal electronic fish ticket system in
addition to the State paper fish ticket system. A consistent, accurate
round weight must be reported on the electronic fish ticket submitted
to NMFS, and would be used to determine total catch in the Shorebased
IFQ Program.
The use of different weight conversions in the different States for
catch estimates under the Shorebased IFQ Program may influence vessels
to make deliveries based on conversion factors perceived to be more
favorable for a particular species, especially if landing near a State
border. Another concern from using different State weight conversions
would be discrepancies in reported landings values. NMFS believes that
the use of consistent coastwide conversion factors in the Shoreside IFQ
Program would provide consistency in catch estimates between States,
prevent artificial influences on individual landings choices, and
benefit NMFS's ability to track landings values. Thus, NMFS proposes
Federal conversion factors for species within the scope of the IFQ
program at Sec. 660.60(h)(5)(ii) based on published values.
The new catch weight conversion values for dressed IFQ species
proposed by this action were derived from an Alaska Sea Grant College
Program publication titled, ``Recoveries and Yields from Pacific Fish
and Shellfish'' (Marine Advisory Bulletin number 37, 2004). For Pacific
whiting that has been dressed (headed and gutted) with tails removed,
the weight conversion was derived from the value for pollock as
published at Sec. 679 for the Alaska groundfish fishery. NMFS informed
the Council at its March 2010 meeting of its intent to use published
values for these weight conversions, however, NMFS specifically
requests public comment on the actual values and implications of the
proposed conversion factors.
Area Management
Under the Shorebased IFQ Program, IFQ species would be managed in
four distinct geographic areas: U.S./Canada border to >= 40[deg]10';
40[deg]10' to >= 36[deg]; 36[deg] to >= 34[deg]27'; 34[deg]27' to the
U.S./Mexico border. These management areas would have different
management measures for different species. Many groundfish species
would be tracked as either a single species with different QS by area;
or as a single species in one area and as a component of a species
group in another area (e.g., minor shelf or slope group north or south
of 40[deg]10' N. lat.). For example, yellowtail rockfish is an
individual species management unit north of 40[deg]10', but a member of
the minor shelf rockfish species complex south of 40[deg]10'. As
another example, QS for sablefish would be issued with area
distinctions either north or south of 36[deg] N. lat. As still another
example, QS for shortspine thornyhead would be issued with area
distinctions either north or south of 34[deg]27' N. lat.
To address the different management measures in the different
areas, the proposed rule would prohibit a vessel from fishing in
different areas during the same trip. Because landings in the
Shorebased IFQ Program would be a mix of all hauls taken during a
single trip, a vessel would be required to fish entirely in one
management area during any trip to simplify sorting requirements, at-
sea observation, and enforcement of IFQ limits. While this provision
would reduce flexibility for a vessel that wishes to fish in more than
one area during a trip, this provision would address the catch
accounting and enforcement concerns without
[[Page 53391]]
increasing costs of the program by overburdening the observer and
enforcement programs, and thus would provide the most straightforward
and efficient method to track and verify total catch of a vessel's IFQ
limits for individual species and rockfish complexes.
Gear Switching Provisions
The proposed initial issuance rule laid out the provisions of the
Council motion that would allow IFQ species to be harvested with gear
other than trawl gear, also known as ``gear switching.'' The program
components proposed rule would set forth details of how such gear
switching would be managed by NMFS. Many existing management measures
depend upon the gear employed by the vessel, and not by the sector
endorsement on the vessel's limited entry permit. For instance, GCAs
are specific to whether the vessel employs trawl gear or fixed gear,
regardless of whether the permit the vessel is registered to is
endorsed for trawl or for fixed gear. In order to account for when a
vessel participating in the Shorebased IFQ Program elects to use gear
other than trawl gear, the proposed rule would incorporate a new
designation in the vessel declaration process that would identify the
vessel as ``Limited entry groundfish non-trawl, shorebased IFQ.''
Under the proposed rule, a vessel would be required to elect gear
switching in the declaration before the trip begins, and would not be
able to use trawl gear on that trip. Current regulations prohibit a
vessel from carrying both trawl gear and non-trawl gear onboard the
vessel at the same time. This restriction would continue under the
proposed rule, because of the gear-specific management measures in
place. If vessels were to be allowed to fish more than one gear on the
same trip, it would present significant management difficulties. While
vessels fishing in the Shorebased IFQ Program under gear switching
would be required to have observer coverage onboard at all times, the
observer program is designed to identify species composition in the
catch, account for discards and, for some species, mortality estimates;
to have the observer account for changes in gear use during the trip
would detract from the purposes of the observer program and thus would
be impracticable. Alternatively, if a vessel wanted to fish with more
than one gear during the same trip, the vessel would need to be
accountable to management measures for both gear types, as for
instance, being restricted from both fixed gear GCAs and trawl GCAs, a
management outcome that would likewise be impracticable. Instead, to
reduce the complexity of managing gear switching under the Shorebased
IFQ Program, the proposed rule would require that a vessel only fish
with trawl gear or non-trawl gear on the same trip.
One issue under consideration with regards to gear switching is how
often a fisherman would be able to declare and switch gears. Although
the declaration system managed by the NMFS Office of Law Enforcement
can manage frequent changes in vessel declarations as would be the case
for frequent gear switching, NMFS believes the process must be managed
in an orderly fashion so as to not compromise the efficient management
of the observer program by the Northwest Fisheries Science Center. NMFS
specifically requests comment regarding the impact of any restrictions
on changes in declarations on gear switching in the Shorebased IFQ
Program.
The proposed rule would establish the new declaration for gear
switching as ``Limited entry groundfish non-trawl, shorebased IFQ.''
During the June 2010 Council meeting and at the RDW meetings, some
members of the public expressed that the declaration process should be
more specific, with separate declarations for pot gear or longline gear
as opposed to the more general non-trawl declaration. NMFS has not
included more specific declarations for vessels electing to fish in the
Shorebased IFQ Program under the gear switching provisions because the
management measures for non-trawl gears do not differ such that
separate declarations would be of any use. For instance, whether a
vessel fishes with pot gear or longline gear, the vessel would be
subject to the same GCAs. Furthermore, if the management of the
nontrawl gears were to change in the future such that a separate
declaration would make sense (e.g., separate GCAs for pot and longline
gears), such change would require a change to the regulations and a new
declaration category could be added at that time. Because of this, NMFS
declines to adopt unnecessary additional declaration categories at this
time.
Reallocation
The November 2008 Council motion provided directions for
reallocation of QS in response to future management changes or for
future allocations of groundfish currently outside the scope of the IFQ
program (Appendix D, A-2.1.6, p. D-9). Specific potential changes
addressed in the Council motion include changes in overfished status,
changes in area management, subdivision of an IFQ species group, or
subdivision of an IFQ species group. Changes in area management could
entail geographic subdivision of an area for management of an IFQ
species, recombination of two or more subdivided areas, or movement of
a management boundary line.
The proposed rule sets forth what action NMFS would take in the
event of a change in area management or subdivision of a species group.
For area subdivision, NMFS would issue QS for each newly created area
that is equivalent to the amount that was owned for the area before it
was subdivided. When two areas are combined, NMFS would adjust the QS
for each area so that the total sums to 100 percent and the QS owner
would receive the same amount of QP as if the areas had not been
combined. If a management boundary line is moved, NMFS would adjust the
QS proportionally so that the QS owner would maintain the same share of
the trawl allocation for that species on a coastwise basis. If a
species group becomes subdivided, NMFS would issue an amount of QS for
the newly created IFQ management unit equal to the amount of QS owned
of the species group before subdivision.
With regards to changes in overfished status, the November 2008
Council motion states that ``When an overfished species is rebuilt or a
species becomes overfished there may be a change in the QS allocation
within a sector. When a stock becomes rebuilt, the reallocation will be
to facilitate the reestablishment of historic target fishing
opportunities. When a stock becomes overfished, QS may be reallocated
to maintain target fisheries to the degree possible. That change may be
based on a person's holding of QS for target species associated with
the rebuilt species or other approaches deemed appropriate by the
Council.'' Appendix D, A-2.1.6, p. D-9. Because any reallocation based
on a change in overfished status anticipates future Council action,
NMFS does not include this language in this proposed rule, but
highlights it as a statement of Council intent.
With regards to future allocations of groundfish outside the scope
of the IFQ program, the November 2008 Council motion states ``For the
`Other Fish,' category of groundfish, if at some time in the future the
Council adds it to the IFQ system, the initial allocation would be
determined using the same history criteria as was used for other IFQ
species (i.e., 1994-2003 history), unless otherwise specified by a
future Council action.'' Id. This, too, anticipates future action by
the Council and is thus not
[[Page 53392]]
included in this proposed rule, but is highlighted here in the
preamble.
IFQ Carryover Provision
The proposed carryover provisions at Sec. 660.140(d)(5) would
allow a limited amount of surplus QP and IBQ pounds in a vessel account
to be carried over from one year to the next or would allow a deficit
in a vessel account in one year to be covered with QP or IBQ pounds
from a subsequent year, up to a carryover limit. The carryover limit
would be calculated by multiplying the percent allowed for a carryover
by the total cumulative amount of QP or IBQ pounds transferred into the
vessel account for the year (used and unused), less any transfers of QP
or IBQ pounds out of the vessel account and less any prior carryover
amounts. The reason that QP or IBQ pounds transferred out of the
account would not be included in the calculation is to prevent a
carryover from being calculated from the same QP or IBQ pounds in more
than one account, which would effectively circumvent the percent
determined by the Council for the carryover limit. The reason prior
carryover amounts would be excluded from the calculation of the
carryover limit is to prevent carryovers from being carried forward
more than one year, consistent with the Council motion. The Council
determined that the percentage to be used for calculating the carryover
limit would be 10 percent, but that if there was any reduction in the
OY for an IFQ species, the carryover limit would be reduced
proportionately. The Council could revise the percentage used for this
calculation in future action.
Under the proposed rule, a surplus up to the carryover limit could
be carried over if a vessel account has remaining unused QP for an IFQ
species at the end of the year. In the case of a surplus, the carryover
limit would be based on the cumulative total QP or IBQ pounds in the
account (used and unused, less any transfers out of the account and any
prior carryover amounts) for the entire year. Alternatively, a vessel
account that incurs a deficit (a negative balance for any IFQ species)
that is lower than the carryover limit where the vessel account owner
is unable to transfer QP or IBQ pounds into the vessel account to cure
the deficit within 30 days, the vessel account owner could cure the
deficit by declaring the vessel out of the fishery for the remainder of
the year and transferring sufficient QP or IBQ pounds into the vessel
account within 30 days of NMFS's issuance of QP and IBQ pounds in the
following year. In the case of a deficit, the carryover limit would be
based on the cumulative total QP or IBQ pounds in the account (used and
unused, less any transfers out of the account and any prior carryover
amounts) at the date upon which the deficit was documented. If a vessel
declares out of the fishery for the remainder of the year, remaining QP
or IBQ pounds in the vessel account (species for which there is no
deficit) would still be transferable.
During discussions at the RDW, some commenters expressed concern
that the requirement to declare out of the fishery for the remainder of
the year in order to invoke the carryover provision for a deficit would
be overly restrictive and that, in their view, a vessel that declares
out of the IFQ fishery under the carryover provision should be able to
declare back into the fishery if able to obtain sufficient QP or IBQ
pounds later in the year. Under the proposed rule, a vessel would be
able to declare back into the Shorebased IFQ Program if it cures the
deficit in the same year in which the deficit occurs, however, if a
vessel opts to do so, it would no longer meet the requirements for the
carryover provision. Instead, the vessel would be subject to
enforcement for a violation of the requirement to cure a deficit within
30 days of the date the deficit is documented. The Council was emphatic
on the importance of curing deficits within 30 days, and that the
carryover provision was a narrow exception to this requirement. If a
vessel were allowed to declare out of the fishery under the carryover
provision, and subsequently declare back into the fishery before the
end of the year, a vessel could effectively circumvent the requirement
to cure a deficit within 30 days. The RDW did not achieve consensus
regarding this issue, and it was suggested that if any approach
different from that in this proposed rule were considered preferable,
the Council could address it in the trailing amendments for the
rationalization program. Thus, NMFS specifically highlights this issue
to solicit public comment.
At-Sea Sectors
Changes Applicable to All At-Sea Sectors
Coop Permits & Coop Agreements
The proposed rule would require that any coop participating in the
MS Coop Program or C/P Coop Program would need to obtain a NMFS-
approved coop permit in order to address management at the coop level.
A coop permit would formally register the coop and its associated
members to harvest and process in the sector. Under the proposed rule,
in order to obtain a coop permit, the coop would need to specify a coop
manager and submit a coop agreement that would establish the terms and
conditions for the coop. These provisions would provide NMFS with a
mechanism to track and communicate with the coop. In addition, the coop
permit would provide a means to assure accountability at the coop level
instead of at the individual level, and would provide NMFS with an
avenue to take enforcement or administrative action at the coop level
if any of the conditions of the coop permit and its associated coop
agreement are not met. Under the proposed rule, the coop permit may be
revised by NMFS to reflect changes in the membership or participating
vessels and other material changes to the coop.
A coop agreement must be submitted with any application for an MS
or C/P coop permit. The coop agreement would establish the terms and
conditions for the coop. The MS coop agreement language from the
Council motion at Appendix D, B-2.3.3 (e), p. D-31, stated that a coop
agreement must include ``A list of all vessels, and which must match
the amount distributed to individual permit holders by NMFS.'' Some
text was inadvertently removed from an earlier version of this Council
motion language. Council staff clarified after the June 30th RDW
meeting that the text should read, ``A list of all vessels and permit
holders participating in the coop and their share of the allocated
catch, which must match the amount distributed to individual permit
owners by NMFS.'' NMFS requires this missing language because of its
need to track vessels participating in the coop for enforcement
reasons. Accordingly, this corrected language has been inserted in this
proposed rule. The C/P coop agreement language also requires a list of
vessels for NMFS' enforcement reasons, but does not specify associated
catch allocations because the C/P Coop Program is one voluntary coop
that receives the entire C/P sector allocation.
MS coop agreements would also be required to include, ``Provisions
that prohibit co-op membership by permit holders that have incurred
legal sanctions that prevent them from fishing groundfish in the
Council region'' (Appendix D, B-2.3.3(e)(10), p. D-31). Because MS
coops would also be required to represent at least 20 percent of the
catch history assignment associated with MS/CV-endorsed limited entry
trawl permits, as stated, such provisions could result in a coop
failure if a coop member permit incurs a legal sanction, is prohibited
membership in the coop, and the coop membership falls below the 20
percent
[[Page 53393]]
threshold as a result. Such an outcome could potentially penalize all
members of a coop for actions of a single member unrelated to the
coop's activity. In this proposed rule, NMFS revised this clause to
require of MS coop agreements ``Provisions that prohibit member permit
owners that have incurred legal sanctions that prevent them from
fishing groundfish in the Council region from fishing in the coop.''
This way, such members would remain coop members, avoiding the risk of
triggering a coop failure, but could not fish for the coop. The
proposed rule does not include a parallel clause for C/P coop
agreements referring to legal sanctions.
The Council motion did not include a C/P coop agreement provision.
However, NMFS determined the need for the coop agreement provisions for
the same reasons such provisions are required for the MS Coop Program.
C/P coop agreement contents would not be directly parallel to the MS
coop agreement language because these fisheries are structured
differently.
At-Sea Sector Observers
Under the MS Coop Program and the C/P Coop Program, the Council
voted to implement 100 percent at-sea observer coverage for all
vessels, including processing vessels, in order to assure that all
catch, including discards, would be matched against allocations. The
proposed rule would require all vessels in the MS Coop or C/P Coop
Programs to carry observers, and defines prohibited actions and
responsibilities of vessels, the responsibilities of companies
providing observer services, and observer qualifications and
responsibilities.
As previously described, the WCGOP was developed consistent with
guidelines for fishery observer programs developed under the MSA (see
MSA sec. 403, 16 U.S.C. 1881b; 50 CFR 600.746), and as such, the
program components proposed rule would retain the WCGOP's existing
general framework and add new components specific to the MS or C/P Coop
Programs. New provisions would include mandatory observer coverage, the
placement of observers on catcher vessels, and collection of estimates
of any operational or other discards.
Observers certified for catcher vessels in the mothership fishery
would be trained in the same manner as those trained for the Shorebased
IFQ Program because of the similarity of their roles (refer back to
Shorebased IFQ Program observer discussion for details applicable to
catcher vessel observers). Observers certified for mothership
processors or catcher/processors would be trained in the same manner as
under the current at-sea observer program.
At-Sea Sector Donation Program
A management measure that may no longer be necessary or may need
further revision is the optional ``bycatch reduction and full
utilization program for at-sea processors'' (called bycatch reduction
and donation program). The bycatch reduction and donation program was
established to allow vessels harvesting unsorted catch to retain and
donate amounts of groundfish that were in excess of trip limits. Under
trawl rationalization, the at-sea sector regulations may not require
vessels to be subject to trip limits for groundfish species other than
Pacific whiting outside of the primary whiting season. Therefore, the
donation program may no longer be necessary or may require minor
adjustments. In this proposed rule, the bycatch reductions and donation
program remains as stated in existing regulations. NMFS specifically
requests comment on the implications of removing or retaining this
program and suggested language revisions.
Other At-Sea Management Measures
Many of the existing Pacific whiting management measures and
provisions for bycatch management remain in place under the
implementation of the rationalization program. With regards to bycatch,
the Council motion states that ``[t]he goal of bycatch management is to
control the rate and amounts of rockfish and salmon bycatch to ensure
that each sector is provided an opportunity to harvest its whiting
allocation'' (Appendix D, B-1.3, p. D-24). For rockfish, hard caps for
widow, canary, darkblotched, and Pacific ocean perch would be
subdivided between sectors, and in the MS Coop Program, would be
further subdivided between the coop fishery and non-coop fishery, and
between the coops in the coop fishery. The motion further states that
``[t]he ESA listed salmon bycatch management measures--that is, the
11,000 Chinook threshold, 0.05 rate threshold, and triggered 100 fathom
closure--will also continue to be in place.'' Id. The program
components proposed rule specifies that these measures would continue
to be applicable to the at-sea sector under rationalization.
Existing regulations at Sec. 660.306(f)(8) prohibit sorting or
discarding of any portion of the catch taken by a catcher vessel in the
mothership sector prior to the catch being received on a mothership,
and prior to the observer being provided access to the unsorted catch,
with the exception of minor amounts of catch that are lost when the
codend is separated from the net and prepared for transfer. Moreover,
Sec. 660.306(i)(2) prohibits all vessels with an observer onboard from
interfering with or biasing the observer's sampling procedure,
including either mechanically or physically sorting or discarding catch
before sampling. These prohibitions were retained in the proposed
initial issuance rule, at Sec. 660.112(c)(5) and Sec. 660.112(e)(2),
respectively. These existing prohibitions address retention
requirements sufficiently in the catcher/processor sector. However,
because of the allocations to coops and increased observer coverage,
additional provisions have been proposed in the MS Coop Program. In the
draft program components rule provided by NMFS to the Council for its
review at the June 2010 meeting, NMFS had included language in Sec.
660.150 regarding retention requirements in the MS Coop Program with
the understanding that catcher vessels would be able to continue to
operate as a maximized retention fishery where vessels transfer all of
their catch to the mothership prior to sorting the catch. In this
program components proposed rule, NMFS has clarified the retention
requirements in the MS Coop Program consistent with Council guidance
that a maximized retention fishery would still be allowed to continue,
but that discards would need to be accounted for and applied against
allocations.
MS Coop Program
The proposed rule provides details of the requirements of the MS
Coop Program. Each year, a vessel registered to an MS/CV-endorsed
permit would be allowed to fish in the coop or non-coop portion of the
MS Coop Program, but not both. As discussed above, the MS Coop Program
is a maximized retention fishery. While some minor amounts of
operational discards may occur, the intent is that all such discards
would be accounted for (estimated by the observer) and deducted from
allocations.
Motherships
The proposed rule specifies the participation responsibilities for
mothership processors in the MS Coop Program. A mothership would be
allowed to receive and process fish provided that it was registered to
an MS permit and that it neither fished in the MS sector as a catcher
vessel nor fished in the C/P sector as a catcher processor during the
same calendar year. An MS permit is a new kind of limited entry permit;
however, unlike vessels
[[Page 53394]]
registered to other limited entry permits, a mothership would not be
required to have a vessel monitoring system (VMS) onboard. VMS provides
location data to assure fishing vessel with groundfish conservation
areas, and is inapplicable to motherships. As described above, the
mothership would need to maintain observer coverage, provide NMFS-
approved catch weighing equipment, and ensure that all catch which it
receives is accurately weighed in its round form. The mothership would
also be required to maintain and submit required records and reports,
including: Economic data collection forms, scale test records, and
cease fishing reports. A vessel registered to an MS permit would also
be required to declare its intent to operate as a mothership in the MS
permit renewal process. MS permits would be subject to a usage limit in
that no person who owns an MS permit(s) may register the MS permit(s)
to vessels that cumulatively process more than 45 percent of the annual
mothership sector Pacific whiting allocation. Ownership of an MS permit
would be calculated using the individual and collective rule, which
means the person would be credited with 100 percent of the processing
associated with each permit wholly owned by that person and with an
amount of processing equivalent to that person's ownership interest in
the permit for each permit partially owned by that person.
Catcher Vessels
A catcher vessel would be eligible to participate in the MS Coop
Program provided it is registered to a trawl-endorsed limited entry
permit; however, it may only elect to participate in the non-coop
fishery in the MS Coop Program if the permit has an MS/CV endorsement.
The vessel would not be eligible to participate as a catcher vessel in
the MS Coop Program if it operated as a mothership in the MS Coop
Program or as a catcher-processor in the C/P Coop Program during the
same year. A vessel would also not be allowed to catch more than 30
percent of the Pacific whiting allocation for the mothership sector. As
with motherships, catcher vessels would be required to procure
observers, and maintain and submit required records and reports such as
economic data collection forms and scale test records (if scales are
employed). MS/CV-endorsed permits could be combined with another
limited entry trawl permit in order to increase the size endorsement,
but if combined with another MS/CV-endorsed permit would be subject to
accumulation limits restricting ownership of catch history assignment
to no more than 20 percent of the MS Coop Program allocation. MS/CV-
endorsed permits would be subject to limited entry permit regulations
regarding change in ownership, change in vessel registration, and
annual renewal.
If the owner of an MS/CV-endorsed permit fails to renew the permit,
the catch history assignment for that permit would be assigned to the
non-coop fishery in the first year in which this occurs; if not renewed
in a second year, the catch history assignment would be redistributed
proportionally to all valid MS/CV-endorsed permits. The reason the
catch history assignment would be assigned to the non-coop fishery in
the first year is to provide sufficient time for the permit owner to
appeal the extinguishment of the permit as a result of the permit
owner's failure to renew the permit. If the permit owner's appeal were
to be successful, the permit owner would be eligible to fish in the
non-coop fishery. If the permit owner's appeal does not succeed, the
catch history assignment would be redistributed among all other MS/CV-
endorsed permits in the following year; NMFS would not redistribute the
catch history assignment in the first year because of the timing
involved.
Coops
Owners of MS/CV-endorsed limited entry trawl permits would be
allowed to form coops, provided the coop meets its own participation
requirements and responsibilities. A coop would be required to be a
voluntarily formed, legally recognized entity that is owned and
operated by and representative of its members, who would need to be the
owners of at least 20 percent of all MS/CV-endorsed permits, and would
be required to designate a coop manager and obtain an MS coop permit
from NMFS. The coop would be responsible for applying for and being
registered to an MS coop permit, managing and monitoring transfers of
catch allocations between members and with other coops, managing and
monitoring harvest activities and enforcing catch limits of the coop
members, submitting an annual report and identifying a designated coop
manager. The designated coop manager would serve as the contact person
for the coop, and would be responsible for the annual distribution of
catch and bycatch, oversee transfers, prepare annual reports, and be
authorized to receive and respond to any legal process against the
coop. The designated coop manager would also be required to notify NMFS
if the coop dissolves.
Each year, a coop entity that wishes to participate in the MS Coop
Program as a permitted coop would be required to submit a complete
application for an MS coop permit, including a coop agreement and any
administrative fees and annual reports that may be due. The coop entity
would also be required to provide copies of any inter-coop agreement(s)
into which the coop has entered at the time of annual application,
which must incorporate and honor the provisions of each permitted MS
coop. For a coop agreement to be complete, it must be signed by all
members of the coop and include all of the information outlined in the
regulation. If NMFS does not accept the coop agreement, the application
would be returned with a letter explaining why not, the coop entity
could resubmit the application after addressing any deficiencies. If
NMFS accepts the coop agreement and issues an MS coop permit, the coop
agreement would remain in place through the end of the calendar year.
If any material changes to the coop agreement were to occur during the
year, the designated coop manager would be required to notify NMFS
within 7 calendar days and would be required to submit a revised coop
agreement within 30 calendar days (a material change would be any
change in the required components of the coop agreement). The MS coop
permit itself would remain in effect until the coop has reached its
Pacific whiting allocation or notifies NMFS that it has ceased fishing
for the calendar year, a material change to the coop agreement has
occurred and the designated coop manager failed to provide a revised
coop agreement to NMFS within 7 calendar days of the material change,
or NMFS has determined that a coop failure occurred.
MS Coop Program Allocations
The proposed rule sets forth how sub-allocations in the MS Coop
Program would be determined and managed. Catch history assignment
associated with each MS/CV-endorsed limited entry trawl permit would be
annually allocated to a single permitted MS coop or to the non-coop
fishery, and would remain with that coop or non-coop fishery for that
year. Each permitted MS coop would be authorized to harvest a quantity
of Pacific whiting that is based on the sum of the catch history
assignments for each MS/CV-endorsed permit identified in the accepted
coop agreement for a given calendar year. Designated coop managers may
redistribute Pacific whiting sub-allocations between permitted MS coops
[[Page 53395]]
through an inter-coop agreement, but Pacific whiting would not be
allowed to be redistributed from a permitted MS coop to the non-coop
fishery, nor from the MS Coop Program to either the Shorebased IFQ
Program or the C/P Coop Program.
Annual mothership sector allocations of non-whiting groundfish
species would be divided between MS coops and the non-coop fishery
annually; NMFS would inform each MS coop with the amount of its
allocation for such species at the time NMFS issues the MS coop permit.
Sub-allocations of non-whiting groundfish species with allocations to
permitted MS coops would be in proportion to the Pacific whiting catch
history assignments assigned to each permitted MS coop. The annual
amount of both whiting and allocated non-whiting groundfish species to
the non-coop fishery would likewise be calculated from the sum of the
catch history assignments for each MS/CV-endorsed permit in the non-
coop fishery plus any permits that did not identify a coop, did not
renew or were revoked in the previous year. [Note: After any permits
that did not renew or were revoked have been through due process, the
catch history assignments from those permits would be redistributed
pro-rata to all remaining MS/CV-endorsed permits in the second year
after revocation or non-renewal. Permits that did not declare into a
coop and that do not have an obligation to an MS permit would default
to the non-coop fishery due to failure to meet the processor obligation
and coop agreement requirements.] Pacific halibut and groundfish
species that are not allocated (e.g., those with at-sea sector set-
asides and those with no set-asides) would not be divided between MS
coops and the non-coop fishery, but would be managed annually.
Under the proposed rule, when a mothership sector allocation is
reached or is projected to be reached, fishing would be required to
cease and a mothership would be prohibited from receiving further
deliveries. Likewise, if a sub-allocation to the non-coop fishery is
reached or is projected to be reached, all fishing would be required to
cease in the non-coop fishery. In a permitted MS coop, fishing would be
required to cease once the annual sub-allocation is reached, unless the
coop is operating under an inter-coop agreement. Unused non-whiting
allocations that remain after a MS coop ceases fishing could be
reapportioned among permitted MS coops and the non-coop fishery in
proportion to their sub-allocations, or could be reallocated to the C/P
sector if the mothership sector's Pacific whiting allocation is reached
or participants in the sector do not intend to harvest the remaining
allocation.
Processor Obligations
The proposed rule outlines requirements for owners of MS/CV-
endorsed permits to make a preliminary declaration in the annual permit
renewal process whether they intend to participate in an MS coop or in
the non-coop fishery in the following year. If declaring to fish in an
MS coop, the owner of the permit would also be required to designate to
which mothership the owner intends to obligate its permit for that
year. An MS/CV-endorsed permit owner would be required to indicate its
intended processor obligation through the renewal process for that
permit, and the actual processor obligation would be required to be
disclosed on the MS coop permit application in the following year. A
permitted MS coop would be required to honor the processor obligation
of each permit with respect to any distribution of Pacific whiting sub-
allocation within the coop or between permitted coops through an inter-
coop agreement, unless it obtains a mutual agreement with the processor
to release the MS/CV-endorsed permit owner's processor obligation and
the MS/CV-endorsed permit owner identifies a processor obligation to
another MS permit. A vessel registered to an MS/CV-endorsed permit may
fish for more than one coop in a year, but can only transfer the catch
history assignment associated with its MS/CV-endorsed permit through an
inter-coop agreement and deliveries of fish caught under that catch
history assignment may only be delivered to another MS permit through a
mutual agreement exception.
In developing the regulations for the processor obligation
provision, NMFS discovered that there may be some confusion over the
extent of the annual obligation of an MS/CV-endorsed permit to a
specific processor. The Council motion states that ``Each year, a
permit will obligate to a processor all of its catch for a coming
year[,]'' and that ``CV(MS) permits will be obligated to a single MS
permit for an entire year[.]'' (Appendix D, B-2.4, p. D-31). As the
motion further describes this obligation, it refers to the obligation
as a ``linkage'' between the MS/CV-endorsed permit and the MS permit,
and states that the ``CV permit must notify the MS permit that the CV
permit QP will be linked to.'' Id. at p. D-32 (emphasis added). Because
of this language in the Council motion, NMFS believes the nature and
extent of the processor obligation is the commitment of the annual
catch history assignment associated with the MS/CV-endorsed permit,
analogous to QP in the Shorebased IFQ Program. Draft regulations
provided to the Council for review as part of the deeming process
referred only to the obligation of the MS/CV-endorsed permit to the MS
permit, and did not specify the nature or extent of that obligation.
Members of the Council's RDW expressed concern that such language could
be interpreted to require all deliveries of a vessel registered to the
MS/CV-endorsed permit to be delivered to the mothership registered to
the MS permit, not just deliveries of the fish associated with the MS/
CV-endorsed permit's catch history assignment, and that under such an
interpretation, for a vessel to deliver to a processor other than that
to which its permit is obligated would require registration of the
vessel to another permit or release of the permit through mutual
agreement with the processor to which the permit is obligated. For the
reasons described above, NMFS does not believe that such an
interpretation comports with the intent of the Council motion.
Accordingly, NMFS has clarified the regulation to specify that the
processor obligation refers only to the commitment of the permit's
catch history assignment to a given MS permit, and specifically
requests comment on the implications that this interpretation may have
on anticipated operations within the MS Coop Program.
There is no processor obligation provision for participants in the
non-coop fishery. The version of the regulations provided to the
Council at its June 2010 meeting erroneously included a processor
obligation for participants in the non-coop fishery. This has been
removed from these proposed regulations to conform to the Council
motion on the trawl rationalization program.
The Council motion included a clause where a mothership processor
may withdraw from the mothership fishery and its obligation to any MS/
CV endorsed permits. This provision requires a mothership to notify
NMFS and all MS/CV-endorsed permit owners that have declared their
obligation to the MS permit registered to that mothership if the
mothership is withdrawing from their processor obligation before NMFS
assignment of catch history assignments to an individual mothership
coop. The Council motion states that this withdrawal could happen
``subsequent to quota assignments[.]'' (Appendix D, B-2.4.3, p. D-32.)
NMFS interprets this to mean subsequent to the declaration of MS/CV-
endorsed permit owners' intent
[[Page 53396]]
to obligate to particular MS permits during the limited entry permit
renewal process up to NMFS's issuance of coop permits in the following
year. After NMFS assigns catch history assignments to individual MS
coops, MS/CV-endorsed permits would not be able to move between the
coop and non-coop fishery within the calendar year, and the Council
provided for transfers of allocations in such circumstances through the
mutual agreement process described above. Under the MS permit
withdrawal provision, if an MS permit were to withdraw from the
mothership fishery before the allocations to individual MS coops have
been announced by NMFS, any MS/CV endorsed permit obligated to the MS
permit may elect to participate in the coop or non-coop fishery. In
such an event, the owner of each MS/CV-endorsed permit obligated to the
MS permit must provide written notification to NMFS of their intent to
either participate in the non-coop fishery or the coop fishery, and if
participating in the coop fishery must identify a processor obligation
for another MS permit.
MS Coop Failure
In the event of a coop failure during the Pacific whiting primary
season for the mothership sector, unused allocation associated with the
catch history would not be available for harvest by the coop that
failed, by any former members of the coop that failed, any other MS
coop, or the non-coop fishery for the remainder of that calendar year.
The regulations at Sec. 660.150(k) do not reference the non-coop
fishery because regulations at Sec. 660.150(c)(2), annual mothership
sector sub-allocations, already establishes that allocations could not
be redistributed between the coop and non-coop fishery within the
calendar year. If allocations were permitted to move to the non-coop
fishery within year, it may create incentives for coop failure.
Items Disapproved by NMFS
On August 9, 2010, NMFS made its decision to partially approve
Amendments 20 and 21 to the FMP. The proposed rule, which was developed
by NMFS and deemed by the Council prior to this partial approval, and
contains several provisions in the MS Coop Program that NMFS has
subsequently disapproved. NMFS intends to remove these provisions in
the final rule. One such provision states: ``Signed copies of the coop
agreement must be submitted to NMFS and the Council and available for
public review before the coop is authorized to engage in fishing
activities.'' NMFS disapproved of the requirement to submit agreements
to the Council and for public review because not only would it be
impracticable given the timing for public review, but also could
violate restrictions on the disclosure of confidential information
under the MSA. Accordingly, NMFS intends to revise this provision in
the final rule to state: ``Signed copies of the coop agreement must be
submitted to NMFS before the coop is authorized to engage in fishing
activities.'' Another provision would require coops to submit a letter
to the Department of Justice requesting a business review letter on the
fishery coop, and to submit copies of all such correspondence with an
MS coop permit application. NMFS disapproved this provision because
compliance with antitrust laws is a separate and distinct obligation of
each and every participant and does not need to be a requirement
specified in the FMP. Accordingly, NMFS intends to remove this
provision entirely in the final rule. Another provision would require
coop agreements to include ``A requirement that agreement by at least a
majority of the members is required to dissolve the coop.'' NMFS
disapproved this provision because it would interfere with private
parties' ability to contract and agree to the terms of dissolution that
are appropriate for their coop. Accordingly, NMFS intends to remove
this provision entirely in the final rule as well.
C/P Coop Program
Under Amendment 20, the C/P Coop Program would formalize in the FMP
provisions that support the formation of a single, voluntary coop
consisting of all owners of C/P-endorsed permits. Because there could
be only one coop, the allocation of Pacific whiting to the C/P Coop
Program in a given year would be equal to the entire catcher/processor
sector allocation. The annual amount of non-whiting groundfish species
with allocations (canary rockfish, darkblotched rockfish, POP, and
widow rockfish) would be allocated to the C/P Coop Program in
proportion to its allocation of Pacific whiting (i.e., the same percent
as the catcher/processor sector whiting allocation). Pacific halibut
and groundfish species that are not allocated (e.g., those with at-sea
sector set-asides and those with no set-asides) would not be so
divided, but would be managed annually.
When the catcher-processor sector whiting allocation is reached or
is projected to be reached, fishing within the sector would be required
to cease. If the catcher-processor sector's whiting allocation is
reached, or if participants in the sector do not intend to harvest the
remaining whiting allocation, unused non-whiting allocations that
remain after the C/P coop ceases fishing could be reapportioned to the
mothership sector.
Because the catcher-processor sector already operates as a
voluntary coop under existing regulations, NMFS does not anticipate
significant change to its operations. One change that the proposed rule
would adopt is the provision that if the voluntary coop were to fail,
it would be replaced with an IFQ program, and NMFS would issue IFQ
equally to each owner of a C/P-endorsed permit, as specified in the
Council motion. Appendix D, B-4, p. D-34. Other changes to the C/P Coop
Program are described in sections of this preamble applicable to all
fisheries or to at-sea sectors (e.g., EDC program, observer program,
coop permits and coop agreements, etc.).
Classification
Pursuant to section 304(b)(1)(A) of the MSA, the NMFS Assistant
Administrator has determined that this proposed rule is consistent with
the Pacific Coast Groundfish FMP, other provisions of the MSA, and
other applicable law, subject to further consideration after public
comment.
The Council prepared a final environmental impact statement (EIS)
for Amendment 20 and Amendment 21 to the Pacific Coast Groundfish FMP;
a notice of availability for each of these final EISs was published on
June 25, 2010 (75 FR 36386).
This proposed rule has been determined to be significant for
purposes of Executive Order 12866.
An initial regulatory flexibility analysis (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. A description of the action, why it is
being considered, and the legal basis for this action are contained at
the beginning of this section in the preamble and in the SUMMARY
section of the preamble. A copy of the IRFA is available from NMFS (see
ADDRESSES) and a summary of the IRFA, per the requirements of 5 U.S.C.
604(a) follows:
The Council has prepared two EIS documents: Amendment 20--
Rationalization of the Pacific Coast Groundfish Limited Entry Trawl
Fishery, which would create the structure and management details of the
trawl fishery rationalization program; and Amendment 21--Allocation of
Harvest Opportunity Between Sectors of
[[Page 53397]]
the Pacific Coast Groundfish Fishery, which would allocate the
groundfish stocks between trawl and non-trawl fisheries. The two draft
EIS's prepared by the Council provide economic analyses of the
Council's preferred alternatives and draft RIR and IRFAs. The draft RIR
and IRFAs were updated and combined into a single RIR/IRFA for use with
the ``initial issuance'' proposed rule that was published on June 10,
2010 (75 FR 32994). This single RIR/IRFA reviewed and summarized the
benefits and costs, and the economic effects of the Council's
recommendations as presented in the two EIS's. In addition, the RIR/
IRFA contains additional information on characterizing the participants
in the fishery and on the tracking and monitoring costs associated with
this program.
The RIR/IRFA analyzed the overall program as recommended by the
Pacific Fishery Management Council. The analysis encompassed aspects of
the initial issuance rule which establishes the allocations set forth
under Amendment 21 and procedures for initial issuance of permits,
endorsements, quota shares, and catch history assignments under the IFQ
and coop programs. It also encompassed this rule --the ``program
components'' rule which provides additional details, including: program
components applicable to IFQ gear switching, observer programs,
retention requirements, equipment requirements, catch monitors, catch
weighing requirements, coop permits/agreements, first receiver site
licenses, quota share accounts, vessel quota pound accounts, further
tracking and monitoring components, and economic data collection
requirements. Revenue and landings data in the RIR/IRFA have been
updated based on recent analysis by the Council (Appendix F: Historical
Landings and Revenue in Groundfish Fisheries; Agenda Item B.3.a,
Attachment 3, June 2010). The Council analysis provides revenue trends
based on inflation adjusted dollars where estimates are adjusted to
current (2009) dollars. The RIR/IRFA was also revised based on comments
received on the initial issuance rule and includes a discussion of the
other alternatives considered by the Council. This revised RIR/IRFA
will also be revised again to address the future ``cost-recovery''
rule, based on a recommended methodology yet to be developed by the
Council. A summary of the revised RIR/IRFA follows.
Although other alternatives were examined, the RIR/IRFA focuses on
the two key alternatives--the No-Action Alternative and the Preferred
Alternative. The EISs include an economic analysis of the impacts of
all the alternatives and the RIR/IRFA incorporates this analysis. For
the Amendment 20 EIS, the alternatives ranged from status quo (no
action), to IFQ for all trawl sectors, IFQ for the non-whiting sector
and coops for all whiting sectors, and IFQ for the shorebased sector
and coops for the at-sea sectors (preferred). Various elements were
part of each of these alternatives and varied among them, including
initial qualifications and allocations, accumulation limits,
grandfathering, processor shares, species covered, number of sectors,
adaptive management, area management, and carryover provisions. The
preferred alternative is a blending of components from the other
alternatives analyzed in the EIS. For the Amendment 21 EIS,
alternatives were provided for 6 decision points: (1) Limited entry
trawl allocations for Amendment 21 species, (2) shoreside trawl sector
allocations, (3) trawl sector allocations of trawl-dominant overfished
species, (4) at-sea whiting trawl sector set-asides, (5) Pacific
halibut total bycatch limits, and (6) formal allocations in the FMP.
For most of these decision points, the alternatives within them were
crafted around approximately maintaining historical catch levels by the
sectors or, in some cases, increasing opportunity for the non-trawl
sector.
By focusing on the two key alternatives in the RIR/IRFA (no action
and preferred), it encompasses parts of the other alternatives and
informs the reader of these proposed regulations. The analysis of the
no action alternative describes what is likely to occur in the absence
of the proposed action. It provides a benchmark against which the
incremental effects of the proposed action can be compared. Under the
no action alternative, the current, primary management tool used to
control the Pacific coast groundfish trawl catch includes a system of
two month cumulative landing limits for most species and season
closures for Pacific whiting. This management program would continue
under the no action alternative. Only long-term, fixed allocations for
Pacific whiting and sablefish north of 36[deg] N. lat. would exist. All
other groundfish species would not be formally allocated between the
trawl and non-trawl sectors. Allocating the available harvest of
groundfish species and species complexes would occur in the Council
process of deciding biennial harvest specifications and management
measures and, as such, would be considered short term allocations.
The analysis of the preferred alternative describes what is likely
to occur as a result of the proposed action. Under the preferred
alternative, the existing shore-based whiting and shore-based non-
whiting sectors of the Pacific Coast groundfish limited entry trawl
fishery would be managed as one sector under a system of IFQs, and the
at-sea whiting sectors of the fishery (i.e., catcher-processor sector
and mothership sector, which includes motherships and catcher vessels)
would be managed under a system of sector-specific harvesting
cooperatives (co-ops). The catcher-processor sector would continue to
operate under the existing, self-developed co-op program entered into
voluntarily by that sector. A distinct set of groundfish species and
Pacific halibut would be covered by the rationalization program.
Amendment 20 would include a tracking and monitoring program to assure
that all catch (including discards) would be documented and matched
against QP. The Council specified that observers would be required on
all vessels and shore-based monitoring (catch monitors) would be
required during all off-loading (100 percent coverage). Compared to
status quo monitoring, this would be a monitoring and observer coverage
level increase for a large portion of the trawl fleet, particularly for
non-whiting shorebased vessels.
The limited entry trawl fishery is divided into two broad sectors:
a multi-species trawl fishery, which most often uses bottom trawl gear
(hereafter called the non-whiting fishery), and the Pacific whiting
fishery, which uses midwater trawl gear. Over the 2005-2009 period,
these fisheries when combined have average annual inflation adjusted
revenues of about $57 million and total landings of about 215,000 tons.
The non-whiting fishery is principally managed through 2-month
cumulative landing limits along with closed areas to limit overfished
species bycatch. Fishery participants target the range of species
described above with the exception of Pacific whiting. By weight, the
vast majority of trawl vessel groundfish is caught in the Pacific
whiting fishery. In contrast, the non-whiting fishery accounts for the
majority of limited entry trawl fishery ex-vessel revenues. On average,
for the period 2005-2009, Pacific whiting accounted for about 90
percent of the quantity of groundfish landed in the limited entry trawl
fishery, but only 44 percent of the value due to their relatively low
ex-vessel price.
[[Page 53398]]
Non-whiting trawl vessels deliver their catch to shoreside
processors and buyers located along the coasts of Washington, Oregon,
and California, and tend to have their homeports located in towns
within the same general area where they make deliveries, though there
are several cases of vessels delivering to multiple ports during a
year. Some Pacific whiting trawl vessels are catcher-processors, which,
as their name implies, process their catch on-board, while other
vessels in this sector deliver their catch to shoreside processors or
motherships that receive Pacific whiting for processing but do not
directly harvest the fish.
Over time, landings in the limited entry trawl fishery have
fluctuated, especially on a species-specific basis. Pacific whiting has
grown in importance, especially in recent years. Through the 1990s, the
volume of Pacific whiting landed in the fishery increased. In 2002 and
2003, landings of Pacific whiting declined due to information showing
the stock was depleted and the subsequent regulations that restricted
harvest in order to rebuild the species. Over the years 2005-2009,
estimated Pacific whiting ex-vessel revenues averaged about $25 million
(figures have been adjusted to 2009 dollars to account for inflation).
In 2008, these participants harvested about 216,000 tons of whiting
worth about $51 million in ex-vessel revenues, based on shore-based ex-
vessel prices of $235 per ton, the highest ex-vessel revenues and
prices on record. In comparison, the 2007 fishery harvested about
214,000 tons worth $29 million at an average ex-vessel price of about
$137 per ton while the 2009 non-Tribal fishery harvested about 99,000
tons worth about $12 million at a price of $120 per ton.
While the Pacific whiting fishery has grown in importance in recent
years, harvests in the non-whiting component of the limited entry trawl
fishery have declined steadily since the 1980s. Non-whiting trawl ex-
vessel revenues (adjusted for inflation) in the fishery peaked in the
mid 1990s of about $40 million. Following the passage of the
Sustainable Fisheries Act (1996) and the listing of several species as
overfished, harvests became increasingly restricted and landings and
revenues declined steadily until 2002. Over the period 2005 to 2009,
inflation adjusted ex-vessel revenues from groundfish in the non-
whiting trawl sector have averaged $27 million annually; ranging from
$24 million (2005) to $32 million (2008). The 2009 fishery earned $30
million in ex-vessel revenues. Under the trawl rationalization program,
shorebased whiting sector will be joined with the shorebased non-
whiting sector. For perspective, when these fisheries are combined,
their total ex-vessel revenues have averaged about $36 million annually
over the last five years.
Expected Effects of Amendment 21--Intersector Allocation
The allocation of harvest opportunity between sectors under the
proposed regulation does not differ significantly from the allocation
made biennially under the no action alternative. The primary economic
effect of the long-term allocation under the proposed regulations is to
provide more certainty in future trawl harvest opportunities, which
would enable better business planning for participants in the
rationalized fishery. As described elsewhere, the trawl rationalization
program could create an incentive structure and facilitate more
comprehensive monitoring to allow bycatch reduction and effective
management of the groundfish fisheries. In support of the trawl
rationalization program, the main socioeconomic impact of Amendment 21
allocations is longer term stability for the trawl industry. While the
preferred Amendment 21 allocations do not differ significantly from
status quo ad hoc allocations made biennially, there is more certainty
in future trawl harvest opportunities, which enables better business
planning for participants in the rationalized fishery. This is the main
purpose for the Amendment 21 actions. The economic effects of Amendment
21 arise from the impacts on current and future harvests. The need to
constrain groundfish harvests to address overfishing has had
substantial socioeconomic impacts. The groundfish limited entry trawl
sector has experienced a large contraction, spurred in part by a
partially Federally-subsidized vessel and permit buyback program
implemented in 2005. This $46 million buyback program was financed by a
Congressional appropriation of $10 million and an industry loan of $36
million. Approximately 240 groundfish, crab, and shrimp permits were
retired from State and Federal fisheries, and there was a 35 percent
reduction in the groundfish trawl permits. To repay the loan,
groundfish, shrimp and crab fisheries are subject to landings fees.
Follow-on effects of the buyback have been felt in coastal communities
where groundfish trawlers comprise a large portion of the local fleet.
As the fleet size shrinks and ex-vessel revenues decline, income and
employment in these communities is affected. Fishery-related businesses
in the community may cease operations because of lost business. This
can affect non-groundfish fishery sectors that also depend on the
services provided by these businesses, such as providing ice and buying
fish. An objective to the trawl rationalization program is to mitigate
some of these effects by increasing revenues and profits within the
trawl sector. However, because further fleet consolidation is expected,
the resulting benefits are likely to be unevenly distributed among
coastal communities. Some communities may see their groundfish trawl
fleet shrink further as the remaining vessels concentrate in a few
major ports. Species subject to Amendment 21 allocations would be:
Lingcod, Pacific cod, sablefish south of 36[deg] N. lat., Pacific ocean
perch, widow rockfish, chilipepper rockfish, splitnose rockfish,
yellowtail rockfish north of 40[deg]10' N. lat., shortspine thornyhead
(north and south of 34[deg]27' N. lat.), longspine thornyhead north of
34[deg]27' N. lat., darkblotched rockfish, minor slope rockfish (north
and south of 40[deg]10' N. lat.), Dover sole, English sole, petrale
sole, arrowtooth flounder, starry flounder, and Other Flatfish. While
the preferred Amendment 21 allocations of these species do not differ
significantly from status quo ad hoc allocations made biennially, there
is more certainty in future trawl harvest opportunities, which enables
better business planning for participants in the rationalized fishery.
This is the main purpose for the Amendment 21 actions.
Based on ex-vessel revenue projections, Table 4-18 (ISA DEIS) shows
the potential 2010 yield to trawl and non-trawl (including
recreational) sectors under the Amendment 21 alternatives and the
potential 2010 value of alternative trawl allocations. Under the status
quo option Alternative 1, the projected ex-vessel value of the trawl
allocation is $56 million while the projected ex-vessel value of the
Council's preferred alternative is $54 million, indicating a potential
increase to the non-trawl sectors and a potential decrease to the trawl
sector.
In addition to the species above, halibut would also be
specifically allocated to the trawl fishery. The proposed regulations
include a halibut trawl bycatch reduction program in phases to provide
sufficient time to establish a baseline of trawl halibut bycatch and
for harvesters to explore methods (e.g., adjustments to time and/or
area fished, gear modifications) to reduce halibut bycatch and bycatch
mortality. Pacific halibut are currently not allowed to be retained in
any U.S. or Canadian trawl fisheries per the policy of the IPHC. The
Council's intent on setting a total catch limit of Pacific
[[Page 53399]]
halibut in Area 2A trawl fisheries is to limit the bycatch and
progressively reduce the bycatch to provide more benefits to directed
halibut fisheries. The program establishes a limit for total Pacific
halibut bycatch mortality (legal-sized and sublegal fish) through the
use of an individual bycatch quota in the trawl fishery. The initial
amount for the first two years of the trawl rationalization program
would be calculated by taking 15% of the Area 2A Total Constant
Exploitation Yield (CEY) as set by the International Pacific Halibut
Commission (IPHC) for the previous year, not to exceed 130,000 lbs per
year for total mortality. For example, if the trawl rationalization
program went into effect in 2013, the trawl halibut IBQ would be set at
15% of the Area 2A CEY adopted for 2012 or 130,000 lbs per year,
whichever is less, for 2013 and 2014 (years 1 and 2 of the program).
Beginning with the third year of implementation, the maximum amount set
aside for the trawl rationalization program would be reduced to 100,000
lbs per year for total mortality. This amount may be adjusted downward
through the biennial specifications process for future years.
Currently there are no total catch limits of Pacific halibut
specified for the west coast trawl fishery. Trawl bycatch of Pacific
halibut, therefore, does not limit the trawl fishery. A phased in,
halibut bycatch reduction program, would provide sufficient time to
establish a baseline of trawl halibut bycatch under the new
rationalization program and for harvesters to explore methods (e.g.,
adjustments to time and/or area fished, gear modifications) to reduce
both halibut bycatch and bycatch mortality. By limiting the bycatch of
Pacific halibut in the LE trawl fisheries, Amendment 21 would control
bycatch and could provide increased benefits to Washington, Oregon, and
California fishermen targeting Pacific halibut. Reducing the trawl
limit would also provide more halibut to those who participate in the
directed Tribal, commercial and recreational halibut fisheries.
Effects of Amendment 20--Trawl Rationalization
An overall comprehensive model that simultaneously captures changes
in fishermen's behavior, changes in the markets, and changes in
communities was not feasible because of lack of data and empirical
analyses that show needed relationships. Instead, a set of models
designed to focus on specific issues was developed. For example, models
were used to: Analyze the effects of the initial allocation of QS in
the trawl IFQ program; project geographic shifts in fishery patterns;
and illustrate the potential for reducing bycatch, increasing target
catch, and increasing revenues. To illustrate the benefits of the IFQ
program, a model projecting the expected amount of fleet consolidation
in the shore-based non-whiting fishery was developed. This model
illustrates the potential for the fleet to reduce bycatch and
potentially increase the amount of target species harvested. This model
is primarily based on bycatch reduction experiences in the Pacific
whiting fishery and under an Exempted Fishing Permit carried out in the
arrowtooth flounder fishery. The model accounts for the fact that
trawlers harvest many species (multiple outputs). The model also uses
fish ticket data and the data from the recently completed West Coast
Limited Entry Cost Earnings Survey sponsored by the NMFS Northwest
Fisheries Science Center. (For the other sectors, similar models could
not be developed because the appropriate cost data was unavailable.)
Estimates of potential economic benefits are generated based on the
predicted harvesting practices from the first step analysis. Because
the west coast nonwhiting groundfish fishery is not a derby fishery, it
is expected that economic benefits will come through cost reductions
and increased access to target species that arise from modifications in
fishing behavior (overfished species avoidance). The key output of this
analysis is an estimate of post-rationalization equilibrium harvesting
cost.
Changes in harvesting costs can arise from three sources. First,
the total fixed costs incurred by the groundfish trawl fleet change as
the size of the fleet changes. Since many limited entry trawlers incur
annual fixed costs of at least $100,000, reductions in fleet size can
result in substantial cost savings. In other words, a fewer number of
vessels in the fishery will lead to decreased costs through a decrease
in annual fixed costs. Second, costs may change as fishery
participation changes and no longer incur diseconomies of scope (such
as the costs of frequently switching gear for participating in multiple
fisheries). Third, costs may change as vessels are able to buy and sell
quota to take advantage of economies of scale and operate at the
minimum point on their long-run average cost curve (i.e. the strategy
that minimizes the cost of harvesting).
The major conclusions of this model suggest that (with landings
held at 2004 levels), the current groundfish fleet (non-whiting
component) which consisted of 117 vessels in 2004, will be reduced by
roughly 50% to 66%, or 40-60 vessels under an IFQ program. The
reduction in fleet size implies cost savings of $18-$22 million for the
year 2004 (most recent year of the data). Vessels that remain active
will, on average, be more cost efficient and will benefit from
economies of scale that are currently unexploited under controlled
access regulations in the fishery. The cost savings estimates are
significant, amounting to approximately half of the costs incurred
currently, suggesting that IFQ management may be an attractive option
for the Pacific Coast Groundfish Fishery. Assuming a 10% annual return
to the vessel capital investment, estimates indicate that the 2004
groundfish fleet incurred a total cost of $39 million. The PacFIN data
indicate fleetwide revenue (this includes groundfish, crab, and other
species) at roughly $36 million in 2004, and, therefore, fleetwide
losses of about $3 million occurred in 2004. Based on a lower 5% return
to vessel capital, the results suggest that the groundfish fleet merely
broke even in 2004; i.e., dockside revenues were offset by the
fleetwide harvesting costs. The results also suggest a switch from the
current controlled access management program to IFQs could yield a
significant increase in resource rents in the Pacific Coast Groundfish
fishery. For instance, the analysis finds that the 2004 groundfish
catch generated zero resource rent. Instead, it could have yielded a
substantial positive rent at about $14 million.
As the model was based on the 2004 fishery, it may be useful to
show current trends in the fishery. In 2004, the shorebased non-whiting
trawl fishery generated about $21 million in groundfish ex-vessel
revenues (inflation adjusted). But according to cost estimates
discussed above, this fishery was at best breaking even or perhaps
suffering a loss of up to $2 million. Since 2004, shorebased non-
whiting trawl fisheries have increased their revenues to about $30
million. The increase in shorebased revenues have come from increased
landings of flatfish and sablefish and significant increase in
sablefish ex-vessel prices. Sablefish now accounts for almost 40
percent of the trawl fleet's revenues. While revenues were increasing,
so were fuel prices. Fuel costs now account for approximately 30 to 40
percent of the vessels' revenues. The average 2005-2009 revenues were
about $27 million, or 29 percent greater than 2004. The average 2005-
2009 fuel price was about $2.81 per gallon, 70% greater than that
[[Page 53400]]
of 2004. Therefore, it appears that the profitability of the 2009
fishery may not be that much improved over that of 2004.
Ex-vessel revenues for the non-whiting sector of the limited entry
trawl fishery are projected to be approximately $30-40 million per year
under the preferred alternative, compared to $22-25 million under the
no action alternative. These projections yield a potential range in
increased revenues of 20 to 80 percent. This revenue increase is
expected to occur in a rationalized fishery, because target species
quotas can be more fully utilized. Currently, in the non-whiting
sector, cumulative landing limits for target species have to be set
lower because the bycatch of overfished species cannot be directly
controlled. Introducing accountability at the individual vessel level
by means of IFQs provides a strong incentive for bycatch avoidance
(because of the actual or implicit cost of quota needed to cover
bycatch species) and prevents the bycatch of any one vessel from
affecting the harvest opportunities of others. In addition, under the
preferred alternative, the non-whiting sector would have control over
harvest timing over the whole calendar year. Nonwhiting harvesters
currently operate under 2-month cumulative landing limits, which allow
greater flexibility in terms of harvest timing between 2-month periods
but less flexibility within periods (because any difference between
actual limits and the period limit cannot be carried over to the next
period). In contrast, under the IFQ program harvesters will have
control over harvest timing over the whole calendar year. However, in
terms of any influence on price, this increased flexibility is unlikely
to have a noticeable effect. Finally, the ability for vessels managed
under IFQs to use other types of legal groundfish gear could allow some
increases in revenue by targeting higher-value line or pot gear caught
fish. This opportunity would mainly relate to sablefish, which are
caught in deeper water, rather than nearshore species where State level
regulatory constraints apply.
Costs for the non-whiting sector of the limited entry trawl fishery
are expected to decrease under the preferred alternative because of
productivity gains related to fleet consolidation. Productivity gains
would be achieved through lower capital requirements and a move to more
efficient vessels. Operating costs for the non-whiting sector are
predicted to decrease by as much as 60 percent annually. Based on
estimates of current costs, this percentage decrease represents a $13.8
million cost reduction relative to the no action alternative.
The accumulation limits considered under the preferred alternative
are not expected to introduce cost inefficiencies in the non-whiting
sector, provided that current prices and harvest volumes do not
decrease. However, the preferred alternative would impose new costs on
the non-whiting sector that would not be incurred under the no action
alternative. First, a landings fee of up to 3 percent of the ex-vessel
value of fish harvested would be assessed under the preferred
alternative to recover management costs, such as maintenance of the
system of QS accounts. Second, new at-sea observer requirements would
be introduced, and vessels would have to pay the costs of complying
with these requirements, estimated at $500 a day if independent
contractors are hired. The daily observer cost could place a
disproportionate adverse economic burden on small businesses because
such costs would comprise a larger portion of small vessels costs than
that of larger vessels.
The increase in profits that commercial harvesters are expected to
experience under the preferred alternative may render them better able
to sustain the costs of complying with the new reporting and monitoring
requirements. The improved harvesting cost efficiency under the
preferred alternative may allow the non-whiting sector to realize
profits of $14-23 million compared to $0 or less under the no action
alternative. In addition, a provision that allows vessels managed under
the IFQ program to use other legal gear (gear switching) would allow
sablefish allocated to the trawl sector to be sold at a higher price
per pound, possibly contributing to increased profits. The imposition
of accumulation limits could reduce the expected increase in the
profitability of the non-whiting sector by restricting the amount of
expected cost savings, and the costs of at-sea observers may reduce
profits by about $2.2 million, depending on the fee structure. However,
the profits earned by the non-whiting sector would still be
substantially higher under the preferred alternative than under the no
action alternative.
New entrants are likely to face a barrier to entry in the Pacific
Coast groundfish limited entry trawl fishery in the form of the cost of
acquiring QS (or a co-op share in the case of the at-sea whiting
sector). This disadvantages them in comparison to those entities that
receive an initial allocation of harvest privileges. Small entities may
be particularly disadvantaged to the degree that they may find it more
difficult to finance such quota purchases. Among the goals the Council
identified for the adaptive management program was to use the reserved
non-whiting QS to facilitate new entry into the fishery. In addition,
the Council identified, as a trailing action, a framework to allow the
establishment and implementation of Community Fishing Associations as
part of the adaptive management program. These entities could
facilitate entry into the fishery by leasing QS at below market rates,
thereby leveling the playing field in terms of costs between initial
recipients of QS and new entrants.
The incremental effects of the preferred alternative on buyers and
processors of trawl caught groundfish are detailed Sections 4.9-4.10 of
the Rationalization of the Amendment 20 Pacific Coast Groundfish
Limited Entry Trawl Fishery DEIS. Even though processors may have to
pay fishermen higher ex-vessel prices, processors may see cost savings
under the preferred alternative to the degree that rationalization
allows greater processors and fishermen greater ability to plan the
timing, location, and species mix of landings. Processors could use
current plant capacity more efficiently, because available information
suggests that processing facilities are currently underutilized. Fleet
consolidation in the non-whiting sector could also provide cost savings
for processors if landings occur in fewer locations, thereby reducing
the need for facilities and/or transport. The preferred alternative
would also impose new costs on processors that would not be incurred
under the no action alternative. Processors would be required to pay
some or all of the costs of plant monitors, who would verify landings.
Similar to at-sea observers, these monitors would be independent
contractors rather than direct employees of the processing firm.
In the non-whiting processing industry, harvest volumes may
increase because of a decrease in constraining species bycatch and a
subsequent increase in under-utilized target species catch. This boost
in target species catch may increase utilization of processing capital
and processing activity. (It should be noted that if under the current
system bycatch has been underreported, with 100 percent observer
coverage under the new system, the gains in increased target catches
may be less than expected.) Consequently, the possibility of capital
consolidation in the non-whiting shorebased sector may be less than in
the shore-based whiting sector.
[[Page 53401]]
However, shifts in the distribution of landings across ports as a
result of fleet consolidation, industry agglomeration, and the
comparative advantage of ports (a function of bycatch rates in the
waters constituting the operational area for the port, differences in
infrastructure, and other factors) could lead to consolidation in
processing activity at a localized or regional scale and an expansion
in processing activity elsewhere. To mitigate harm to adversely
impacted non-whiting shoreside processors, the adaptive management
program provides a mechanism to distribute non-whiting QS to
processors, thereby ensuring that some processors receive greater
landings of groundfish than would otherwise be the case.
As noted above, the preferred alternative may reduce the power of
non-whiting shoreside processors to negotiate ex-vessel prices with
harvesters. The larger harvest volume due to bycatch avoidance may
lower processor average costs, which could offset the negative effects
on non-whiting shoreside processors of a shift in bargaining power. In
addition, QS could be purchased by processors over the long term,
thereby increasing processors' negotiation power. However, the
accumulation limits included in the preferred alternative would limit
the ability of processors to purchase substantial quantities of QS.
Alternatively, the adaptive management provision could be used to
allocate QS to non-whiting shoreside processors, thereby providing them
additional leverage when negotiating terms with harvesters.
The allocation of 20 percent of the initial shore-based whiting QS
to the shoreside processor portion of the groundfish fishery would give
these processors more influence in negotiations over ex-vessel prices
and would tend to offset the gains in bargaining power for harvesters.
For example, a processor could use QS to induce a harvester that is
short of quota pounds for a Pacific whiting trip to make deliveries
under specified conditions and prices. However, because of a reduction
in peak harvest volume, fewer processing companies and/or facilities
may be necessary to handle harvest volumes of Pacific whiting, meaning
some companies may find themselves without enough product to continue
justifying processing operations of Pacific whiting. Revenues from
harvesting and processing trawl-caught groundfish are expected to
increase. Revenues in the non-whiting trawl sector are projected to
increase by 20 to 80 percent in a rationalized fishery, depending on
bycatch rate reductions and stock status. Revenue increases are mainly
expected because under rationalized fisheries, target species quotas
can be more fully utilized. Currently, in the nonwhiting sector,
cumulative landing limits for target species have to be set lower
because the bycatch of overfished species cannot be directly
controlled. Introducing accountability at the individual vessel level
provides a strong incentive for bycatch avoidance (because of the
actual or implicit cost of quota needed to cover bycatch species) and
prevents the bycatch of any one vessel from affecting the harvest
opportunity of others. Whiting fisheries are more directly managed
through quotas, and in recent years, by limits on bycatch. Beginning in
2009, bycatch limits have been established for each of the three
whiting sectors. For the shore-based and mothership whiting sectors,
the fishery can potentially close before the whiting allocation is
fully harvested because a bycatch cap is reached. (The catcher-
processor sector currently operates as a voluntary co-op and is
therefore better able to coordinate harvest strategy to avoid reaching
bycatch limits.) However, in general, the whiting sectors have been
able to harvest their sector allocations. Whiting vessels could
increase revenues due to improved product recovery as a result of the
ability to better control harvest timing. As mentioned above, the
ability for vessels managed under IFQs to use other types of legal
groundfish gear could allow some increases in revenue by targeting
higher-value line or pot gear caught fish.
Harvester and possibly processor costs are expected to decrease
because of productivity gains related to fleet consolidation. Cost
savings would be due to lower capital requirements and a move to more
efficient vessels in the nonwhiting sector. Costs are predicted to
decrease by as much as 60 percent annually, which based on estimates of
current operating costs would represent a $13.8 million decrease.
Similar levels of consolidation are expected for shorebased and
mothership catcher vessels. Proposed mitigation measures could reduce
these costs savings. For example, a 1 percent quota share accumulation
limit could reduce cost savings by as much as 20 percent. But the
accumulation limits considered in the alternatives are not expected to
introduce higher costs at current prices and harvest volume. The
proposed action would introduce some new costs. First, up to 3 percent
of the value of landings may be assessed to cover administrative and
management costs. Second, new at-sea observer requirements would be
introduced and vessels would have to pay the cost, estimated at $350-
$500 a day.
Processors may see cost-savings to the degree that rationalization
allows greater control over the timing and location of landings.
Processors could use current plant capacity more efficiently, because
available information suggests that processing facilities are currently
underutilized. Fleet consolidation could also drive some cost savings
on the part of processors if landings occur in fewer locations. This
would reduce the need for facilities and/or transport. Under the
proposed action, processors would be required to pay the costs of plant
monitors, who would verify landings. These monitors would not be
directly employed by the processing firm but, similar to at-sea
observers, be independent contractors.
Rationalization of the groundfish trawl sector is expected to free
up capital and labor because of increases in productivity. (Since the
basic input, trawl-caught fish, is subject to an underlying constraint
due to biological productivity, increases in labor and capital
productivity are expected to reduce the amount of those inputs needed.)
However, from a national net benefit perspective these effects are
neutral since capital and labor can be put to some productive use
elsewhere in the broader economy. Also, current groundfish fishery
participants that receive QS (trawl limited entry trawl permit holders
and eligible shoreside processors) are compensated to the degree that
the asset value of the QS covers capital losses.
It was noted in the RIR/IRFA associated with the initial issuance
rule that tracking and monitoring costs of this program will be
provided in more detail with this rule. The program details associated
with this rule do not change; however, the RIR/IRFA now presents an
explicit range of costs based on different daily observer cost rates.
What follows is a summary of those estimates--these estimates are
focused on the shorebased non-whiting fishery so that it is compared to
the results of the NWFSC economic model of this fishery. After a
transition period, for the shore-based fishery, the initial estimates
of the annual Federal and State agency costs to run this program are
about $5 million; and after the transition period, these costs could
fall to $4.0 million. Based on the observer cost of $500 per day, the
annual costs to the vessel of observer monitoring is about $4 million.
Based on $350 per day, the annual costs
[[Page 53402]]
of compliance monitors is just over $1 million. These figures add up to
about $10 million. From a cost-benefit viewpoint, if consolidation
leads to $14 million savings from reduced harvesting costs and the new
program increases the tracking and monitoring costs of $10 million,
there is a projected net gain of about $4 million. These estimates do
not take into account expectations that agency, observer and compliance
costs are likely to be reduced due to consolidation or the expected
increases in revenues discussed above. Better planning by the industry
and companies that provide the observers and compliance monitors should
further reduce costs. Recent analyses developed for the North Pacific
Council and for the New England Council were reviewed. The New England
analysis includes observer cost estimates associated with the Canadian
Pacific Groundfish fishery. Based on a review of these analyses, a
daily observer rate of $350 a day is feasible. If so, the annual
shoreside non-whiting costs of observers and catch monitors will add up
to about $3.5 million.
In contrast to the shoreside non-whiting fishery, the effect of the
preferred alternative on revenues and costs in the whiting sector of
the limited entry trawl fishery can only be discussed qualitatively, as
there is no economic model because of lack of cost data. The lower
motivation to ``race for fish'' due to coop harvest privileges is
expected to result in improved product quality, slower-paced harvest
activity, increased yield (which should increase exvessel prices), and
enhanced flexibility and ability for business planning. The overall
effect of these changes would be higher revenues and profits for
harvesters in the shoreside and mothership portions of the whiting
fishery in comparison to the no action alternative. Under the preferred
alternative, some consolidation may occur in the shoreside and
mothership sectors of the Pacific whiting fishery, though the magnitude
of consolidation is expected to be less than in the non-whiting sector.
The existing catcher-processor coop would continue under the preferred
alternative, with effects on the catcher-processor sector that look
similar, or identical, to those of the no action alternative. However,
the change from a vessel-based limit under Amendment 15 to the permit-
based limit of Amendment 21 will provide additional flexibility that
currently does not exist in the catcher-processor fishery. Using
estimates of $350 per day for observers and compliance monitors, the
total annual costs of observers and catch monitors for the whiting
sector (shoreside harvesters, processors, mothership processors,
mothership catcher vessels, and catcher-processors) is about $1.5
million. Additional agency costs associated with managing these whiting
fisheries are included in the estimates provided in the above
discussion on shore-based non-whiting costs.
This proposed rule would regulate businesses that harvest
groundfish and processors that wish to process limited entry trawl
groundfish. Under the RFA, the term ``small entities'' includes small
businesses, small organizations, and small governmental jurisdictions.
For small businesses, the SBA has established size criteria for all
major industry sectors in the U.S., including fish harvesting and fish
processing businesses. A business involved in fish harvesting is a
small business if it is independently owned and operated and not
dominant in its field of operation (including its affiliates) and if it
has combined annual receipts not in excess of $4.0 million for all its
affiliated operations worldwide. A seafood processor is a small
business if it is independently owned and operated, not dominant in its
field of operation, and employs 500 or fewer persons on a full time,
part time, temporary, or other basis, at all its affiliated operations
worldwide. A business involved in both the harvesting and processing of
seafood products is a small business if it meets the $4.0 million
criterion for fish harvesting operations. A wholesale business
servicing the fishing industry is a small business if it employs 100 or
fewer persons on a full time, part time, temporary, or other basis, at
all its affiliated operations worldwide. For marinas and charter/party
boats, a small business is one with annual receipts not in excess of
$7.0 million. The RFA defines a small organization as any nonprofit
enterprise that is independently owned and operated and is not dominant
in its field. The RFA defines small governmental jurisdictions as
governments of cities, counties, towns, townships, villages, school
districts, or special districts with populations of less than 50,000.
NMFS makes the following conclusions based primarily on analyses
associated with fish ticket data and limited entry permit data,
available employment data provided by processors, information on the
charterboat and Tribal fleets, and available industry responses
industry to on-going survey on ownership. Entities were analyzed as to
whether they were only affected by the Amendment 21 allocation
processes (non-trawl), or if they were affected by both Amendment 20
and 21 (trawl).
The non-trawl businesses are associated with the following fleets:
limited entry fixed gear (approximately 150 companies), open access
groundfish (1,100), charterboats (465), and the Tribal fleet (four
Tribes with 66 vessels). Available information on average revenue per
vessel suggests that all the entities in this group can be considered
small.
For the trawl sector, there are 177 permit holders. Nine limited
entry trawl permits are associated with the catcher-processing vessels
which are considered ``large'' companies. Of the remaining 168 limited
entry permits, 25 limited entry trawl permits are either owned or
closely associated with a ``large'' shore-based processing company or
with a non-profit organization who considers itself a ``large''
organization. Nine other permit owners indicated that they were large
``companies.'' Almost all of these companies are associated with the
shorebased and mothership whiting fisheries. The remaining 134 limited
entry trawl permits are projected to be held by ``small'' companies.
Three of the six mothership processors are ``large'' companies. Within
the 14 shorebased whiting first receivers/processors, there are four
``large'' companies. Including the shorebased whiting first receivers,
in 2008, there were 75 first receivers that purchased limited entry
trawl groundfish. There were 36 small purchasers (less than $150,000);
26 medium purchasers (purchases greater than $150,000 but less than
$1,000,000); and 13 large purchasers (purchases greater than $1.0
million). Because of the costs of obtaining a ``processor site
license'', procuring and scheduling a catch monitor, and installing and
using the electronic fish ticket software, these ``small'' purchasers
will likely opt out of buying groundfish, or make arrangements to
purchase fish from another company that has obtained a processing site
license.
The major impacts of this rule appear to be on three groups:
Shoreside processors which are a mix of large and small processors; and
shore-based trawlers which are also a mix of large and small companies.
The non-whiting shore-based trawlers are currently operating at a loss
or at best are ``breaking even.'' The new rationalization program would
lead to profitability, but only with a reduction of about 60 percent of
the fleet. This program would lead to major changes in the fishery. To
help mitigate against these changes, as discussed above, the agency has
announced its intent, subject to available Federal funding, that
[[Page 53403]]
participants would initially be responsible for 10 percent of the cost
of hiring observers and catch monitors. The industry proportion of the
costs of hiring observers and catch monitors would be increased every
year so that by 2014, once the fishery has transitioned to the
rationalization program, the industry would be responsible for 100
percent of the cost of hiring the observers and catch monitors. NMFS
believes that an incrementally reduced subsidy to industry funding
would enhance the observer and catch monitor program's stability,
ensure 100 percent observer and catch monitor coverage, and facilitate
the industries' successful transition to the new quota system. In
addition, to help mitigate against the negative impacts of this
program, the Council has adopted an Adaptive Management Program where
starting in year 3 of the program, 10 percent of non-whiting QS would
be set aside every year to address community impacts and industry
transition needs. After reviewing the initial effects of ITQ programs
in other parts of the world, the council had placed a short term QS
trading prohibition so that fishermen can learn from their experiences
and not make premature sales of their QS. The Council is also
envisioning future regulatory processes that would allow community
fisheries associations to be established to help aid communities and
fishermen.
A summary of the proposed action is as follows. The proposed action
is to replace the current, primary management tool used to control the
West Coast groundfish trawl catch--a system of 2-month cumulative
landing limits for most species and season closures for whiting--with a
system requiring more individual accountability by the assignment of
limited access privileges (LAPs). LAPs are a form of output control
whereby an individual fisherman, community, or other entity is granted
the privilege to catch a specified portion of the total allowable catch
(TAC). The alternatives include (1) a catch-based IFQ system where all
groundfish catch (landings plus bycatch) by LE trawl vessels would
count against a vessel's IFQ holdings, which could be applied to the
whole groundfish trawl fishery or selected trawl sectors; and (2) a
system of coops that would be applied to one or more of the fishery
sectors that target Pacific whiting. The status quo alternative (no
action) could also be considered for application to one or more trawl
fishery sectors even if one or both action alternatives (IFQs or coops)
are chosen for the other trawl sectors.
The description of purpose and need in section 1.2 of the Amendment
20 DEIS also outlines the objectives of the proposed action. The
introductory paragraph in Chapter 1 and section 1.3 of the DEIS,
background to the purpose and need, provide information on the legal
basis for the proposed action (proposed rule). The Council articulated
the following goal for the trawl rationalization program: ``Create and
implement a capacity rationalization plan that increases net economic
benefits, creates individual economic stability, provides for full
utilization of the trawl sector allocation, considers environmental
impacts, and achieves individual accountability of catch and bycatch.''
The objectives supporting this goal are: Provide a mechanism for total
catch accounting; provide for a viable, profitable, and efficient
groundfish fishery; promote practices that reduce bycatch and discard
mortality, and minimize ecological impacts; increase operational
flexibility; minimize adverse effects from an IFQ program on fishing
communities and other fisheries to the extent practical; promote
measurable economic and employment benefits through the seafood
catching, processing, distribution elements, and support sectors of the
industry; provide quality product for the consumer; and increase safety
in the fishery.
As part of the proposed action, NMFS would place observers and/or
cameras on board all catcher vessels in the shore-based sector (which
combines the current shore-based whiting and non-whiting trawl
sectors). Existing requirements for motherships, catcher vessels in the
MS sector, and C/Ps would continue. Independently contracted processing
plant monitors would track landings. Also, there would be new reporting
requirements related to the tracking of QS and QP in the shore-based
fishery.
No Federal rules have been identified that duplicate, overlap, or
conflict with the alternatives. Public comment is hereby solicited,
identifying such rules. A copy of this analysis is available from NMFS
(see ADDRESSES).
This proposed rule contains a collection-of-information requirement
subject to review and approval by OMB under the Paperwork Reduction Act
(PRA). This requirement has been submitted to OMB for approval. Public
reporting burden for the Economic Data Collection survey is estimated
to average 8 hours per response (268 responses). Public reporting
burden for QS Permit Renewal Application is estimated to average 0.33
hour per response (120 responses), First Receiver Site License Initial
Issuance/Renewal Application is estimated to average 0.5 hour per
response (80 responses), MS Renewal Application is estimated to average
0.33 hour per response (6 responses), MS Transfer Application is
estimated to average 0.5 hour per response (3 responses) C/P Coop
Permit Transfer Application is estimated to average 3 hours per
response (1 response), MS Coop Permit Application is estimated to
average 3 hours per response (1 response), Change in vessel fishing for
coop form is estimated to average 0.33 hours per response (3
responses), Material Change form is estimated to average 2 hours per
response (3 responses), MS Withdrawal/Mutual Exception form is
estimated to average 2 hours per response (2 responses), Ownership
Interest Form Renewal is estimated to average 0.5 hour per response
(156 responses), Ownership Interest Form Transfer, is estimated to
average 0.5 hour per response (20 responses), Vessel Account
Registration (Initial) is estimated to average 0.5 hour per response
(120 responses), Vessel Account Registration (ongoing) is estimated to
average 0.5 hour per response (10 responses), Vessel Account Renewal
(annual), is estimated to average 0.33 hour per response (30
responses), QS Account Registration is estimated to average 1 hour per
response (1 response), QS/QP transfer from QS account to vessel account
is estimated to average 0.25 hour per response (180 responses), QP
Transfer from vessel account to vessel account is estimated to average
0.25 hour per response (600 responses), Transaction Dispute Request is
estimated to average 1 hour per response (10 responses). Public
reporting burden for the catch monitor providers, Application
preparation & submission is estimated to average 10 hours per response
(3 responses), Training registration is estimated to average 1 hour per
response (3 responses), Exit Interview registration is estimated to
average 10 minutes per response (3 responses), Appeals--written
response & submission is estimated to average 4 hours per response (1
response). Public reporting burden for the catch monitors application
appeals--written response & submission is estimated to average 4 hours
per response (5 responses). Public reporting burden for the catch
monitoring plans, Preparation & submission is estimated to average 4
hours per response (80 responses), Inspection, is estimated to average
2 hours per response (80 responses), inseason scale testing is
estimated to average 1 hour per response (80 responses), reports are
estimated to
[[Page 53404]]
average 10 minutes per response (2400 responses). Public reporting
burden for electronic fish tickets are estimated to average 10 minutes
per response (400 responses). Public reporting burden for the changes
to the declaration reporting system and the changes to the observer
program are not expected to change the public reporting burden. These
estimates include the time for reviewing instructions, searching
existing data sources, gathering and maintaining the data needed, and
completing and reviewing the collection information.
Public comment is sought regarding: Whether this proposed
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information shall
have practical utility; the accuracy of the burden estimate; ways to
enhance the quality, utility, and clarity of the information to be
collected; and ways to minimize the burden of the collection of
information, including through the use of automated collection
techniques or other forms of information technology. Send comments on
these or any other aspects of the collection of information to NMFS,
Northwest Region, at the ADDRESSES section above; e-mail to [email protected]; or fax to 202-395-7285.
Notwithstanding any other provision of the law, no person is
required to respond to, and no person shall be subject to 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.
NMFS issued Biological Opinions under the Endangered Species Act
(ESA) on August 10, 1990, November 26, 1991, August 28, 1992, September
27, 1993, May 14, 1996, and December 15, 1999 pertaining to the effects
of the Pacific Coast groundfish FMP fisheries on Chinook salmon (Puget
Sound, Snake River spring/summer, Snake River fall, upper Columbia
River spring, lower Columbia River, upper Willamette River, Sacramento
River winter, Central Valley spring, California coastal), coho salmon
(Central California coastal, southern Oregon/northern California
coastal), chum salmon (Hood Canal summer, Columbia River), sockeye
salmon (Snake River, Ozette Lake), and steelhead (upper, middle and
lower Columbia River, Snake River Basin, upper Willamette River,
central California coast, California Central Valley, south/central
California, northern California, southern California). These biological
opinions have concluded that implementation of the FMP for the Pacific
Coast groundfish fishery was not expected to jeopardize the continued
existence of any endangered or threatened species under the
jurisdiction of NMFS, or result in the destruction or adverse
modification of critical habitat.
NMFS reinitiated a formal section 7 consultation under the ESA in
2005 for both the Pacific whiting midwater trawl fishery and the
groundfish bottom trawl fishery. The December 19, 1999, Biological
Opinion had defined an 11,000 Chinook incidental take threshold for the
Pacific whiting fishery. During the 2005 Pacific whiting season, the
11,000 fish Chinook incidental take threshold was exceeded, triggering
reinitiation. Also in 2005, new data from the West Coast Groundfish
Observer Program became available, allowing NMFS to complete an
analysis of salmon take in the bottom trawl fishery.
NMFS prepared a Supplemental Biological Opinion dated March 11,
2006, which addressed salmon take in both the Pacific whiting midwater
trawl and groundfish bottom trawl fisheries. In its 2006 Supplemental
Biological Opinion, NMFS concluded that catch rates of salmon in the
2005 whiting fishery were consistent with expectations considered
during prior consultations. Chinook bycatch has averaged about 7,300
fish over the last 15 years and has only occasionally exceeded the
reinitiation trigger of 11,000 fish.
Since 1999, annual Chinook bycatch has averaged about 8,450 fish.
The Chinook ESUs most likely affected by the whiting fishery has
generally improved in status since the 1999 section 7 consultation.
Although these species remain at risk, as indicated by their ESA
listing, NMFS concluded that the higher observed bycatch in 2005 does
not require a reconsideration of its prior ``no jeopardy'' conclusion
with respect to the fishery. For the groundfish bottom trawl fishery,
NMFS concluded that incidental take in the groundfish fisheries is
within the overall limits articulated in the Incidental Take Statement
of the 1999 Biological Opinion. The groundfish bottom trawl limit from
that opinion was 9,000 fish annually. NMFS will continue to monitor and
collect data to analyze take levels. NMFS also reaffirmed its prior
determination that implementation of the Groundfish FMP is not likely
to jeopardize the continued existence of any of the affected ESUs.
Lower Columbia River coho (70 FR 37160, June 28, 2005) were
recently listed and Oregon Coastal coho (73 FR 7816, February 11, 2008)
were recently relisted as threatened under the ESA. The 1999 biological
opinion concluded that the bycatch of salmonids in the Pacific whiting
fishery were almost entirely Chinook salmon, with little or no bycatch
of coho, chum, sockeye, and steelhead. The Southern Distinct Population
Segment (DPS) of green sturgeon (71 FR 17757, April 7, 2006) and the
southern DPS of Pacific eulachon (75 FR 13012, March 18, 2010) were
also recently listed as threatened under the ESA. As a consequence,
NMFS has reinitiated its Section 7 consultation on the PFMC's
Groundfish FMP.
After reviewing the available information, NMFS concluded that, in
keeping with Sections 7(a)(2) and 7(d) of the ESA, the proposed action
would not result in any irreversible or irretrievable commitment of
resources that would have the effect of foreclosing the formulation or
implementation of any reasonable and prudent alternative measures.
This proposed rule was developed after meaningful consultation and
collaboration with the Tribal representative on the Council who has
agreed with the provisions that apply to Tribal vessels.
List of Subjects in 50 CFR Part 660
Fisheries, Fishing, and Indian fisheries.
Dated: August 20, 2010.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons stated in the preamble, 50 CFR Chapter VI, as
proposed to be amended at 75 FR 32994, June 10, 2010, is further
proposed to be amended as follows:
50 CFR Chapter VI
PART 660--FISHERIES OFF WEST COAST STATES
1. The authority citation for part 660 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq. and 16 U.S.C. 773 et seq.
2. In Sec. 660.11, the definitions for ``processing or to
process'' and ``processor'' are revised to read as follows:
Sec. 660.11 General definitions.
* * * * *
Processing or to process means the preparation or packaging of
groundfish to render it suitable for human consumption, retail sale,
industrial uses or long-term storage, including, but not limited to,
cooking, canning, smoking, salting, drying, filleting, freezing, or
[[Page 53405]]
rendering into meal or oil, but does not mean heading and gutting
unless additional preparation is done. (Also see an exception to
certain requirements at Sec. 660.131(a), subpart D pertaining to
Pacific whiting shoreside vessels 75-ft (23-m) or less LOA that, in
addition to heading and gutting, remove the tails and freeze catch at
sea.)
(1) At-sea processing means processing that takes place on a vessel
or other platform that floats and is capable of being moved from one
location to another, whether shore-based or on the water.
(2) Shorebased processing or processing means processing that takes
place at a facility that is permanently fixed to land. (Also see the
definition for shoreside processing at Sec. 660.140, subpart D which
defines shoreside processing for the purposes of qualifying for a
Shorebased IFQ Program QS permit.) For the purposes of economic data
collection in the Shorebased IFQ Program, shorebased processing means
either of the following:
(i) Any activity that takes place shoreside; and that involves:
Cutting groundfish into smaller portions; or freezing, cooking,
smoking, drying groundfish; or packaging that groundfish for resale
into 100 pound units or smaller; for sale or distribution into a
wholesale or retail market.
(ii) The purchase and redistribution in to a wholesale or retail
market of live groundfish from a harvesting vessel.
Processor means a person, vessel, or facility that engages in
commercial processing; or receives live groundfish directly from a
fishing vessel for retail sale without further processing. (Also see
the definition for processors at Sec. 660.140, subpart D which defines
processor for the purposes of qualifying for initial issuance of QS in
the Shorebased IFQ Program.)
(1) For the purposes of economic data collection in the Shorebased
IFQ Program, shorebased processor means a person that engages in
commercial processing, that is an operation working on U.S. soil or
permanently fixed to land, that takes delivery of fish that has not
been subject to at-sea processing or shorebased processing; and that
thereafter engages that particular fish in shorebased processing; and
excludes retailers, such as grocery stores and markets, which receive
whole or headed and gutted fish that are then filleted and packaged for
retail sale. At Sec. 660.114(b), trawl fishery--economic data
collection program, the definition of processor is further refined to
describe which shorebased processors are required to submit their
economic data collection forms.
(2) [Reserved]
* * * * *
3. In Sec. 660.12, paragraph (e)(7) and (e)(8) are revised,
paragraph (f) is redesignated as paragraph (g), and a new paragraph (f)
is added to read as follows:
Sec. 660.12 General groundfish prohibitions.
* * * * *
(e) * * *
(7) Fail to provide departure or cease fishing reports specified at
Sec. Sec. 660.140, 660.150, 660.160, subpart D; Sec. 660.216, subpart
E; or Sec. 660.316, subpart F.
(8) Fail to meet the vessel responsibilities specified at
Sec. Sec. 660.140, 660.150, 660.160, subpart D; Sec. 660.216, subpart
E; or Sec. 660.316, subpart F.
(f) Groundfish catch monitor program. (1) Forcibly assault, resist,
oppose, impede, intimidate, harass, sexually harass, bribe, or
interfere with a catch monitor.
(2) Interfere with or bias the monitoring procedure employed by a
catch monitor, including either mechanically or manually sorting or
discarding catch before its monitored.
(3) Tamper with, destroy, or discard a catch monitor's collected
samples, equipment, records, photographic film, papers, or personal
effects.
(4) Harass a catch monitor by conduct that:
(i) Has sexual connotations,
(ii) Has the purpose or effect of interfering with the catch
monitor's work performance, and/or
(iii) Otherwise creates an intimidating, hostile, or offensive
environment. In determining whether conduct constitutes harassment, the
totality of the circumstances, including the nature of the conduct and
the context in which it occurred, will be considered. The determination
of the legality of a particular action will be made from the facts on a
case-by-case basis.
(5) Receive, purchase, or take custody, control, or possession of a
delivery without catch monitor coverage when such coverage is required
under Sec. 660.140, subpart D.
(6) Fail to allow the catch monitor unobstructed access to catch
sorting, processing, catch counting, catch weighing, or electronic or
paper fish tickets.
(7) Fail to provide reasonable assistance to the catch monitor.
(8) Require, pressure, coerce, or threaten a catch monitor to
perform duties normally performed by employees of the first receiver,
including, but not limited to duties associated with the receiving of
landing, processing of fish, sorting of catch, or the storage of the
finished product.
* * * * *
4. In Sec. 660.13, paragraph (d)(5)(iv) introductory text,
paragraph (d)(5)(iv)(A) introductory text, and paragraphs
(d)(5)(iv)(A)(1) through (4), and (6) through (8) are revised to read
as follows:
Sec. 660.13 Recordkeeping and reporting.
* * * * *
(d) * * *
(5) * * *
(iv) Declaration reports will include: the vessel name and/or
identification number, and gear type (as defined in paragraph
(d)(5)(iv)(A) of this section). Upon receipt of a declaration report,
NMFS will provide a confirmation code or receipt to confirm that a
valid declaration report was received for the vessel. Retention of the
confirmation code or receipt to verify that a valid declaration report
was filed and the declaration requirement was met is the responsibility
of the vessel owner or operator. Vessels using nontrawl gear may
declare more than one gear type with the exception of vessels
participating in the Shorebased IFQ Program (i.e. gear switching),
however, vessels using trawl gear may only declare one of the trawl
gear types listed in paragraph (d)(5)(iv)(A) of this section on any
trip and may not declare nontrawl gear on the same trip in which trawl
gear is declared.
(A) One of the following gear types or sectors must be declared:
(1) Limited entry fixed gear, not including shorebased IFQ fishery,
(2) Limited entry groundfish non-trawl, shorebased IFQ,
(3) Limited entry midwater trawl, non-whiting shorebased IFQ,
(4) Limited entry midwater trawl, Pacific whiting shorebased IFQ,
* * * * *
(6) Limited entry midwater trawl, Pacific whiting mothership sector
(catcher vessel or mothership),
(7) Limited entry bottom trawl, shorebased IFQ, not including
demersal trawl,
(8) Limited entry demersal trawl, shorebased IFQ,
* * * * *
5. In Sec. 660.14, paragraph (b)(1) is revised to read as follows:
Sec. 660.14 Vessel Monitoring System (VMS) requirements.
* * * * *
(b) * * *
(1) Any vessel registered for use with a limited entry ``A''
endorsed permit (i.e., not a MS permit) that fishes in State or Federal
waters seaward of the
[[Page 53406]]
baseline from which the territorial sea is measured off the States of
Washington, Oregon or California (0-200 nm offshore).
* * * * *
6. Section 660.15 is revised to read as follows:
Sec. 660.15 Equipment requirements.
(a) Applicability. This section contains the equipment and
operational requirements for scales used to weigh catch at sea, scales
used to weigh catch at IFQ first receivers, computer hardware for
electronic fish ticket software, and computer hardware for electronic
logbook software. Unless otherwise specified by regulation, the
operator or manager must retain, for 3 years, a copy of all records
described in this section and make available the records upon request
of NMFS staff or authorized officer.
(b) Scales used to weigh catch at sea--performance and technical
requirements. (1) Scales approved by NMFS for MS and C/P Coop Programs.
A scale used to weigh catch in the MS and C/P Coop Programs must meet
the type evaluation and initial inspection requirements set forth in 50
CFR 679.28(b)(1) and (2), and must be approved by NMFS.
(2) Annual inspection. Once a scale is installed on a vessel and
approved by NMFS for use, it must be inspected annually as described in
50 CFR 679.28(b).
(3) Daily testing. Each scale must be tested daily and meet the
maximum permissible error (MPE) requirements described at described at
paragraph (b)(4) of this section.
(4) At-sea scale tests. To verify that the scale meets the maximum
permissible errors (MPEs) specified in this paragraph, the vessel
operator must ensure that vessel crew test each scale used to weigh
catch at least one time during each 24-hour period when use of the
scale is required. The vessel owner must ensure that these tests are
performed in an accurate and timely manner.
(i) Belt scales. The MPE for the daily at-sea scale test is plus or
minus 3 percent of the known weight of the test material. The scale
must be tested by weighing at least 400 kg (882 lb) of fish or an
alternative material supplied by the scale manufacturer on the scale
under test. The known weight of the fish or test material must be
determined by weighing it on a platform scale approved for use under 50
CFR 679.28 (b)(7).
(ii) Platform scales used for observer sampling on MSs and C/Ps. A
platform scale used for observer sampling must be tested at 10, 25, and
50 kg (or 20, 50, and 100 lb if the scale is denominated in pounds)
using approved test weights. The MPE for the daily at-sea scale test is
plus or minus 0.5 percent.
(iii) Approved test weights. Each test weight must have its weight
stamped on or otherwise permanently affixed to it. The weight of each
test weight must be annually certified by a National Institute of
Standards and Technology approved metrology laboratory or approved for
continued use by the NMFS authorized inspector at the time of the
annual scale inspection.
(iv) Requirements for all at-sea scale tests. The vessel operator
must ensure that vessel crew:
(A) Notify the observer at least 15 minutes before the time that
the test will be conducted, and conduct the test while the observer is
present.
(B) Conduct the scale test and record the following information on
the at-sea scale test report form:
(1) Vessel name;
(2) Month, day, and year of test;
(3) Time test started to the nearest minute;
(4) Known weight of test weights;
(5) Weight of test weights recorded by scale;
(6) Percent error as determined by subtracting the known weight of
the test weights from the weight recorded on the scale, dividing that
amount by the known weight of the test weights, and multiplying by 100;
and
(7) Sea conditions at the time of the scale test.
(C) Maintain the test report form on board the vessel until the end
of the fishing year during which the tests were conducted, and make the
report forms available to observers, NMFS staff, or authorized
officers. In addition, the vessel owner must retain the scale test
report forms for 3 years after the end of the fishing year during which
the tests were performed. Each scale test report form must be signed by
the vessel operator immediately following completion of each scale
test.
(5) Scale maintenance. The vessel owner must ensure that the vessel
operator maintains the scale in proper operating condition throughout
its use, that adjustments made to the scale are made so as to bring the
performance errors as close as practicable to a zero value, and that no
adjustment is made that will cause the scale to weigh inaccurately.
(6) Printed reports from the scale. The vessel owner must ensure
that the printed reports are provided to NMFS as required by this
paragraph. Printed reports from the scale must be maintained on board
the vessel until the end of the year during which the reports were
made, and be made available to NMFS staff or authorized officers. In
addition, the vessel owner must retain printed reports for 3 years
after the end of the year during which the printouts were made.
(i) Reports of catch weight and cumulative weight. Reports must be
printed at least once every 24 hours. Reports must also be printed
before any information stored in the scale computer memory is replaced.
Scale weights must not be adjusted by the scale operator to account for
the perceived weight of water, slime, mud, debris, or other materials.
Scale printouts must show:
(A) The vessel name and Federal vessel permit number;
(B) The date and time the information was printed;
(C) The haul number;
(D) The total weight of the haul; and
(E) The total cumulative weight of all fish and other material
weighed on the scale since the last annual inspection.
(ii) Printed report from the audit trail. The printed report must
include the information specified in sections 2.3.1.8, 3.3.1.7, and
4.3.1.8 of appendix A to 50 CFR part 679. The printed report must be
provided to the authorized scale inspector at each scale inspection and
must also be printed at any time upon request of NMFS staff or other
authorized officer.
(iii) Platform scales used for observer sampling. A platform scale
used for observer sampling is not required to produce a printed record.
(c) Scales used to weigh catch at IFQ first receivers--performance
and technical requirements. Scale requirements in this paragraph are in
addition to those requirements set forth by the State in which the
scale is located, and nothing in this paragraph may be construed to
reduce or supersede the authority of the State to regulate, test, or
approve scales within the State. Scales used to weigh catch that are
also required to be approved by the State must meet the following
requirements:
(1) Verification of approval. The scale must display a valid
sticker indicating that the scale is currently approved in accordance
with the laws of the State where the scale is located.
(2) Visibility. NMFS staff, NMFS-authorized personnel, or
authorized officers must be allowed to observe the weighing of catch on
the scale and be allowed to read the scale display at all times.
(3) Printed scale weights. (i) An IFQ first receiver must ensure
that printouts of the scale weight of each delivery or
[[Page 53407]]
offload are made available to NMFS staff, to NMFS-authorized personnel,
or to authorized officers at the time printouts are generated. An IFQ
first receiver must maintain printouts on site until the end of the
fishing year during which the printouts were made and make them
available upon request by NMFS staff, NMFS-authorized personnel, or
authorized officers for 3 years after the end of the fishing year
during which the printout was made.
(ii) All scales identified in a catch monitoring plan (see Sec.
660.140(f)(3), subpart D) must produce a printed record for each
delivery, or portion of a delivery, weighed on that scale, unless
specifically exempted by NMFS. NMFS may exempt, as part of the NMFS-
accepted catch monitoring plan, scales not designed for automatic bulk
weighing from part or all of the printed record requirements. For
scales that must produce a printed record, the printed record must
include:
(A) The IFQ first receiver's name;
(B) The weight of each load in the weighing cycle;
(C) The total weight of fish in each landing, or portion of the
landing that was weighed on that scale;
(D) The date the information is printed; and
(E) The name and vessel registration or documentation number of the
vessel making the delivery. The scale operator may write this
information on the scale printout in ink at the time of printing.
(4) Inseason scale testing. IFQ first receivers must allow, and
provide reasonable assistance to NMFS staff, NMFS-authorized personnel,
and authorized officers to test scales used to weigh IFQ catch. A scale
that does not pass an inseason test may not be used to weigh IFQ catch
until the scale passes an inseason test or is approved for continued
use by the weights and measures authorities of the State in which the
scale is located.
(i) Inseason testing criteria. To pass an inseason test, NMFS staff
or authorized officers must be able to verify that:
(A) The scale display and printed information are clear and easily
read under all conditions of normal operation;
(B) Weight values are visible on the display until the value is
printed;
(C) The scale does not exceed the maximum permissible errors
specified in the following table:
------------------------------------------------------------------------
Maximum error
Test load in scale divisions in scale
divisions
------------------------------------------------------------------------
(1) 0-500.............................................. 1
(2) 501-2,000.......................................... 2
(3) 2,001-4,000........................................ 3
(4) >4,000............................................. 4
------------------------------------------------------------------------
(D) Automatic weighing systems. An automatic weighing system must
be provided and operational that will prevent fish from passing over
the scale or entering any weighing hopper unless the following criteria
are met:
(1) No catch may enter or leave a weighing hopper until the
weighing cycle is complete;
(2) No product may be cycled and weighed if the weight recording
element is not operational; and
(3) No product may enter a weighing hopper until the prior weighing
cycle has been completed and the scale indicator has returned to a
zero.
(ii) [Reserved]
(d) Electronic fish tickets. IFQ first receivers using the
electronic fish ticket software provided by Pacific States Marine
Fisheries Commission are required to meet the hardware and software
requirements below. Those IFQ first receivers who have NMFS-approved
software compatible with the standards specified by Pacific States
Marine Fisheries Commission for electronic fish tickets are not subject
to any specific hardware or software requirements.
(1) Hardware and software requirements. (i) A personal computer
with Pentium 75-MHz or higher. Random Access Memory (RAM) must have
sufficient megabyte (MB) space to run the operating system, plus an
additional 8 MB for the software application and available hard disk
space of 217 MB or greater. A CD-ROM drive with a Video Graphics
Adapter (VGA) or higher resolution monitor (super VGA is recommended).
(ii) Microsoft Windows 2000 (64 MB or greater RAM required),
Windows XP (128 MB or greater RAM required), or later operating system.
(iii) Microsoft Access 2003 or newer.
(2) NMFS approved software standards and Internet access. The IFQ
first receiver is responsible for obtaining, installing, and updating
electronic fish tickets software either provided by Pacific States
Marine Fisheries Commission, or compatible with the data export
specifications specified by Pacific States Marine Fisheries Commission
and for maintaining Internet access sufficient to transmit data files
via e-mail. Requests for data export specifications can be submitted
to: Attn: Electronic Fish Ticket Monitoring, National Marine Fisheries
Service, Northwest Region, Sustainable Fisheries Division, 7600 Sand
Point Way NE., Seattle, WA 98115.
(3) Maintenance. The IFQ first receiver is responsible for ensuring
that all hardware and software required under this subsection are fully
operational and functional whenever they receive, purchase, or take
custody, control, or possession of an IFQ landing.
(4) Improving data quality. Vessel owners and operators, IFQ first
receivers, or shoreside processor owners, or managers may contact NMFS
in writing to request assistance in improving data quality and
resolving issues. Requests may be submitted to: Attn: Electronic Fish
Ticket Monitoring, National Marine Fisheries Service, Northwest Region,
Sustainable Fisheries Division, 7600 Sand Point Way NE., Seattle, WA
98115.
7. Section 660.16 is revised to read as follows:
Sec. 660.16 Groundfish observer program.
(a) General. Vessel owners, operators, and managers are jointly and
severally responsible for their vessel's compliance with observer
requirements specified in this section and within Sec. Sec. 660.140,
660.150, 660.160, subpart D; Sec. 660.216, subpart E; Sec. 660.316,
subpart F; or subpart G.
(b) Purpose. The purpose of the Groundfish Observer Program is to
collect fisheries data necessary and appropriate for, among other
relevant purposes, management, compliance monitoring, and research in
the groundfish fisheries and for the conservation of living marine
resources.
(c) Observer coverage requirements. The following table provides
references to the paragraphs in the Pacific coast groundfish subparts
that contain fishery specific requirements. Observer coverage required
for the Shorebased IFQ Program, MS Coop Program, or C/P Coop Program
shall not be used to comply with observer coverage requirements for any
other Pacific coast groundfish fishery in which that vessel may also
participate.
------------------------------------------------------------------------
West coast groundfish fishery Regulation section
------------------------------------------------------------------------
(1) Shorebased IFQ Program--Trawl Sec. 660.140, subpart D.
Fishery.
(2) MS Coop Program--Whiting At- Sec. 660.150, subpart D.
sea Trawl Fishery.
[[Page 53408]]
(3) C/P Coop Program--Whiting At- Sec. 660.160, subpart D.
sea Trawl Fishery.
(4) Fixed Gear Fisheries......... Sec. 660.216, subpart E.
(5) Open Access Fisheries........ Sec. 660.316, subpart F.
------------------------------------------------------------------------
8. Section 660.17 is added to read as follows:
Sec. 660.17 Catch monitors and catch monitor providers.
(a) Catch monitor certification. Catch monitor certification
authorizes an individual to fulfill duties as specified by NMFS while
under the employ of a certified catch monitor provider.
(b) Catch monitor certification requirements. NMFS may certify
individuals who:
(1) Are employed by a certified catch monitor provider at the time
of the issuance of the certification and qualified, as described at
paragraph (e)(1)(i) through (viii) of this section and have provided
proof of qualifications to NMFS, through the certified catch monitor
provider.
(2) Have successfully completed NMFS-approved training.
(i) Successful completion of training by an applicant consists of
meeting all attendance and conduct standards issued in writing at the
start of training; meeting all performance standards issued in writing
at the start of training for assignments, tests, and other evaluation
tools; and completing all other training requirements established by
NMFS.
(ii) If a candidate fails training, he or she will be notified in
writing on or before the last day of training. The notification will
indicate: The reasons the candidate failed the training; whether the
candidate can retake the training, and under what conditions.
(3) Have not been decertified as an observer or catch monitor under
provisions in Sec. Sec. 660.18, 660.140(h)(6), 660.150(g)(6), and
660.160(g)(6).
(4) Existing catch monitors as of 2010. A catch monitor who has
completed sampling or monitoring activities in 2010 in NMFS-managed
West Coast groundfish fisheries, and has not had his or her
certification revoked during or after that time, will be considered to
have met his or her certification requirements under this section.
These catch monitors will be issued a new catch monitor certification
prior to their first deployment to a first receiver after December 31,
2010, unless NMFS determines that he or she has not completed any
additional training required for this program.
(c) Catch monitor standards of behavior. Catch monitors must do the
following:
(1) Perform authorized duties as described in training and
instructional manuals or other written and oral instructions provided
by NMFS.
(2) Accurately record and submit the required data, which includes
fish species composition, identification, sorting, and weighing
information.
(3) Write complete reports, and report accurately any observations
of suspected violations of regulations.
(4) Keep confidential and not disclose data and observations
collected at the processing facility to any person except, NMFS staff
or authorized officers or others as specifically authorized by NMFS.
(d) Catch monitor provider certification. Persons seeking to
provide catch monitor services under this section must obtain a catch
monitor provider certification from NMFS.
(1) Applications. Persons seeking to provide catch monitor services
must submit a completed application by mail to the NMFS Northwest
Region, Permits Office, Attn: Catch Monitor Coordinator, 7600 Sand
Point Way NE., Seattle, WA 98115. An application for a catch monitor
provider permit shall consist of a narrative that contains the
following:
(i) Identification of the management, organizational structure, and
ownership structure of the applicant's business, including
identification by name and general function of all controlling
management interests in the company, including but not limited to
owners, board members, officers, authorized agents, and staff. If the
applicant is a corporation, the articles of incorporation must be
provided. If the applicant is a partnership, the partnership agreement
must be provided.
(ii) Contact information. (A) The owner's permanent mailing
address, telephone, and fax numbers.
(B) The business mailing address, including the physical location,
e-mail address, telephone and fax numbers.
(C) Any authorized agent's mailing address, physical location, e-
mail address, telephone and fax numbers. An authorized agent means a
person appointed and maintained within the United States who is
authorized to receive and respond to any legal process issued in the
United States to an owner or employee of a catch monitor provider.
(iii) Prior experience. A statement identifying prior relevant
experience in recruiting, hiring, deploying, and providing support for
individuals in marine work environments in the groundfish fishery or
other fisheries of similar scale.
(iv) Ability to perform or carry out responsibilities of a catch
monitor provider. A description of the applicant's ability to carry out
the responsibilities of a catch monitor provider is set out under
paragraph (e) of this section.
(v) A statement describing any criminal convictions of each owner
and board member, officer, authorized agent, and staff; a list of
Federal contracts held and related performance ratings; and, a
description of any previous decertification actions that may have been
taken while working as an observer or observer provider.
(vi) A statement describing each owner and board member, officer,
authorized agent, and staff indicating that they are free from conflict
of interest as described under Sec. 660.18(d).
(2) Application review. (i) The certification official, described
in Sec. 660.18(a), may issue catch monitor provider certifications
upon determination that the application submitted by the candidate
meets all requirements specified in paragraph (d)(2)(ii) of this
section.
(ii) Issuance of the certification will, at a minimum, be based on
the completeness of the application, as well as the following criteria:
(A) The applicant's ability to carry out the responsibilities and
relevant experience;
(B) Satisfactory performance ratings on any Federal contracts held
by the applicant.
(C) Absence of a conflict of interest.
(D) Absence of relevant criminal convictions.
(3) Agency determination. The certification official will make a
determination to approve or deny the application and notify the
applicant by letter via certified return receipt mail, within 60 days
of receipt of the application. Additional certification procedures are
specified in Sec. 660.18, subpart C.
(4) Existing catch monitor providers as of 2010. NMFS-certified
providers
[[Page 53409]]
who deployed catch monitors in a NMFS-managed West Coast groundfish
fishery or observers under the North Pacific Groundfish Program in
2010, are exempt from the requirement to apply for a permit for 2011
and will be issued a catch monitor provider permit effective through
December 31, 2011, except that a change in ownership of an existing
catch monitor provider or observer provider after January 1, 2011,
requires a new permit application under this section. To receive catch
monitor certification for 2012 and beyond, these exempted catch monitor
providers must follow application procedures otherwise set forth in
this section.
(e) Catch monitor provider responsibilities. (1) Provide qualified
candidates to serve as catch monitors. To be qualified a candidate
must:
(i) Be a U.S. citizen or have authorization to work in the United
States;
(ii) Be at least 18 years of age;
(iii) Have a high school diploma and;
(A) At least two years of study from an accredited college with a
major study in natural resource management, natural sciences, earth
sciences, natural resource anthropology, law enforcement/police
science, criminal justice, public administration, behavioral sciences,
environmental sociology, or other closely related subjects pertinent to
the management and protection of natural resources, or;
(B) One year of specialized experience performing duties which
involved communicating effectively and obtaining cooperation,
identifying and reporting problems or apparent violations of
regulations concerning the use of protected or public land areas, and
carrying out policies and procedures within a recreational area or
natural resource site.
(iv) Computer skills that enable the candidate to work competently
with standard database software and computer hardware.
(v) Have a current and valid driver's license.
(vi) Have had a background investigation and been found to have had
no criminal or civil convictions that would affect their performance or
credibility as a catch monitor.
(vii) Have had health and physical fitness exams and been found to
be fit for the job duties and work conditions;
(A) Physical fitness exams shall be conducted by a medical doctor
who has been provided with a description of the job duties and work
conditions and who provides a written conclusion regarding the
candidate's fitness relative to the required duties and work
conditions; and
(B) Physical exams may include testing for illegal drugs;
(viii) Have signed a statement indicating that they are free from
conflict of interest as described under Sec. 660.18(c); and
(ix) Priority shall be given to qualified candidates who have and
show proof of their knowledge of West Coast marine fish species,
ability to effectively communicate in writing and orally, and have
technical expertise in weights and measures.
(2) Standards. Provide to the candidate a copy of the standards of
conduct, responsibilities, conflict of interest standards and drug and
alcohol policy.
(3) Contract. Provide to the candidate a copy of a written contract
signed by the catch monitor and catch monitor provider that shows among
other factors the following provisions for employment:
(i) Compliance with the standards of conduct, responsibilities,
conflict of interest standards and drug and alcohol policy;
(ii) Willingness to complete all responsibilities of current
deployment prior to performing jobs or duties which are not part of the
catch monitor responsibilities.
(iii) Commitment to return all sampling or safety equipment issued
for the deployment.
(4) Catch monitors provided to a first receiver.
(i) Must have a valid catch monitor certification;
(ii) Must not have informed the provider prior to the time of
assignment that he or she is experiencing a mental illness or a
physical ailment or injury developed since submission of the
physician's statement, as required in paragraph (e)(1)(vii)(A) of this
section that would prevent him or her from performing his or her
assigned duties; and
(iii) Must have successfully completed all NMFS required training
and briefing before assignment.
(5) Respond to industry requests for catch monitors. A catch
monitor provider must provide a catch monitor for assignment pursuant
to the terms of the contractual relationship with the first receiver to
fulfill first receiver requirements for catch monitor coverage under
paragraph (e)(10)(i)(C)(1)(ii) of this section. An alternate catch
monitor must be supplied in each case where injury or illness prevents
the catch monitor from performing his or her duties or where the catch
monitor resigns prior to completion of his or her duties. If the catch
monitor provider is unable to respond to an industry request for catch
monitor coverage from a first receiver for whom the provider is in a
contractual relationship due to the lack of available catch monitors,
the provider must report it to NMFS at least 4 hours prior to the
expected assignment time.
(6) Ensure that catch monitors complete duties in a timely manner.
Catch monitor providers must ensure that catch monitors employed by
that provider do the following in a complete and timely manner:
(i) Submit to NMFS all data, logbooks and reports as required under
the catch monitor program deadlines.
(ii) Report for his or her scheduled debriefing and complete all
debriefing responsibilities.
(7) Provide catch monitor salaries and benefits. A catch monitor
provider must provide to its catch monitor employees salaries and any
other benefits and personnel services in accordance with the terms of
each catch monitor's contract.
(8) Provide catch monitor assignment logistics.
(i) A catch monitor provider must ensure each of its catch monitors
under contract:
(A) Has an individually assigned mobile or cell phones, in working
order, for all necessary communication. A catch monitor provider may
alternatively compensate catch monitors for the use of the catch
monitor's personal cell phone or pager for communications made in
support of, or necessary for, the catch monitor's duties.
(B) Has Internet access for catch monitor program communications
and data submission.
(C) Remains available to NOAA Office for Law Enforcement and the
catch monitor program until the completion of the catch monitors'
debriefing.
(D) Receives all necessary transportation, including arrangements
and logistics, of catch monitors to the location of assignment, to all
subsequent assignments during that assignment, and to the debriefing
location when an assignment ends for any reason; and
(E) Receives lodging, per diem, and any other services necessary to
catch monitors assigned to first receivers, as specified in the
contract between the catch monitor and catch monitor provider.
(F) While under contract with a permitted catch monitor provider,
catch monitor shall be provided with accommodations in accordance with
the contract between the catch monitor and the catch monitor provider.
If the catch monitor provider is responsible for providing
accommodations under the contract with the catch monitor, the
[[Page 53410]]
accommodations must be at a licensed hotel, motel, bed and breakfast,
or other accommodations that has an assigned bed for each catch monitor
that no other person may be assigned to for the duration of that catch
monitor's stay.
(ii) [Reserved]
(9) Catch monitor assignment limitations and workload.
(i) Not assign a catch monitor to the same first receiver for more
than 90 calendar days in a 12-month period, unless otherwise authorized
by NMFS.
(ii) Not exceed catch monitor assignment limitations and workload
as outlined in Sec. 660.140(i)(3)(ii), subpart D.
(10) Maintain communications with catch monitors. A catch monitor
provider must have an employee responsible for catch monitor activities
on call 24 hours a day to handle emergencies involving catch monitors
or problems concerning catch monitor logistics, whenever catch monitors
are assigned, or in transit, or awaiting first receiver reassignment.
(11) Maintain communications with the catch monitor program office.
A catch monitor provider must provide all of the following information
by electronic transmission (e-mail), fax, or other method specified by
NMFS.
(i) Catch monitor training, briefing, and debriefing registration
materials. This information must be submitted to the catch monitor
program at least 7 business days prior to the beginning of a scheduled
catch monitor certification training or briefing session.
(A) Training registration materials consist of the following:
(1) Date of requested training;
(2) A list of catch monitor candidates that includes each
candidate's full name (i.e., first, middle and last names), date of
birth, and gender;
(3) A copy of each candidate's academic transcripts and resume;
(4) A statement signed by the candidate under penalty of perjury
which discloses the candidate's criminal convictions;
(5) Projected candidate assignments. Prior to the completion of the
training session, the catch monitor provider must submit to the catch
monitor program a statement of projected catch monitor assignments that
includes each catch monitor's name and length of catch monitor's
contract.
(B) Briefing registration materials consist of the following:
(1) Date and type of requested briefing session;
(2) List of catch monitors to attend the briefing session, that
includes each catch monitor's full name (first, middle, and last
names);
(3) Projected catch monitor assignments. Prior to the catch
monitor's completion of the briefing session, the catch monitor
provider must submit to the catch monitor program a statement of
projected catch monitor assignments that includes each catch monitor's
name and length of observer contract.
(C) Debriefing. The catch monitor program will notify the catch
monitor provider which catch monitors require debriefing and the
specific time period the provider has to schedule a date, time, and
location for debriefing. The catch monitor provider must contact the
catch monitor program within 5 business days by telephone to schedule
debriefings.
(1) Catch monitor providers must immediately notify the catch
monitor program when catch monitors end their contract earlier than
anticipated.
(2) [Reserved]
(ii) Catch monitor provider contracts. If requested, catch monitor
providers must submit to the catch monitor program a completed and
unaltered copy of each type of signed and valid contract (including all
attachments, appendices, addendums, and exhibits incorporated into the
contract) between the catch monitor provider and those entities
requiring catch monitor services under Sec. 660.140(i)(1), subpart D.
Catch monitor providers must also submit to the catch monitor program
upon request, a completed and unaltered copy of the current or most
recent signed and valid contract (including all attachments,
appendices, addendums, and exhibits incorporated into the contract and
any agreements or policies with regard to catch monitor compensation or
salary levels) between the catch monitor provider and the particular
entity identified by the catch monitor program or with specific catch
monitors. The copies must be submitted to the catch monitor program via
e-mail, fax, or mail within 5 business days of the request. Signed and
valid contracts include the contracts a catch monitor provider has
with:
(A) First receivers required to have catch monitor coverage as
specified at paragraph Sec. 660.140(i)(1), subpart D; and
(B) Catch monitors.
(iii) Change in catch monitor provider management and contact
information. A catch monitor provider must submit to the catch monitor
program any change of management or contact information submitted on
the provider's permit application under paragraph (d)(1) of this
section within 30 days of the effective date of such change.
(iv) Catch monitor status report. Each Tuesday, catch monitor
providers must provide NMFS with an updated list of contact information
for all catch monitors that includes the catch monitor's name, mailing
address, e-mail address, phone numbers, first receiver assignment for
the previous week and whether or not the catch monitor is ``in
service'', indicating when the catch monitor has requested leave and/or
is not currently working for the provider.
(v) Informational materials. Providers must submit to NMFS, if
requested, copies of any information developed and used by the catch
monitor providers and distributed to first receivers, including, but
not limited to, informational pamphlets, payment notification, and
description of catch monitor duties.
(vi) Other reports. Reports of the following must be submitted in
writing to the catch monitor program by the catch monitor provider via
fax or e-mail address designated by the catch monitor program within 24
hours after the catch monitor provider becomes aware of the
information:
(A) Any information regarding possible catch monitor harassment;
(B) Any information regarding any action prohibited under Sec.
660.12(f);
(C) Any catch monitor illness or injury that prevents the catch
monitor from completing any of his or her duties described in the catch
monitor manual; and
(D) Any information, allegations or reports regarding catch monitor
conflict of interest or breach of the standards of behavior described
in catch monitor provider policy.
(12) Replace lost or damaged gear. A catch monitor provider must
replace all lost or damaged gear and equipment issued by NMFS to a
catch monitor under contract to that provider.
(13) Confidentiality of information. A catch monitor provider must
ensure that all records on individual catch monitor performance
received from NMFS under the routine use provision of the Privacy Act
or as otherwise required by law remain confidential and are not further
released to anyone outside the employ of the catch monitor provider
company to whom the catch monitor was contracted except with written
permission of the catch monitor.
9. Section 660.18 is revised to read as follows:
Sec. 660.18 Certification and decertification procedures for catch
monitors and catch monitor providers.
(a) Certification official. The Regional Administrator (or a
designee) will designate a NMFS catch monitor certification official
who will make decisions on whether to issue or deny catch monitor or
catch monitor provider
[[Page 53411]]
certification pursuant to the regulations at Sec. Sec. 660.17 and
660.18, subpart C.
(b) Agency determinations on certifications. (1) Issuance of
certifications--Certification may be issued upon determination by the
certification official that the candidate has successfully met all
requirements for certification as specified in:
(i) Sec. 660.17(b) for catch monitors; and
(ii) Sec. 660.17(d) for catch monitor providers.
(2) Denial of a certification. The NMFS certification official will
issue a written determination identifying the reasons for denial of a
certification.
[Alternative 1 for paragraph (c) (Council-deemed)]
(c) Limitations on conflict of interest for catch monitors. (1)
Catch monitors must not have a direct financial interest in the first
receivers at which they serve as catch monitors or vessels that deliver
to those first receivers, other than the provision of observer or catch
monitor services.
(2) Must not solicit or accept, directly or indirectly, any
gratuity, gift, favor, entertainment, loan, or anything of monetary
value from anyone who either conducts activities that are regulated by
NMFS or has interests that may be substantially affected by the
performance or nonperformance of the catch monitor's official duties.
(3) May not serve as a catch monitor at any shoreside or floating
stationary processing facility owned or operated where a person was
previously employed in the last two years.
(4) May not solicit or accept employment as a crew member or an
employee of a vessel, or shoreside processor while employed by a catch
monitor provider.
(5) Provisions for remuneration of catch monitors under this
section do not constitute a conflict of interest.
[Alternative 2 for paragraph (c) (NMFS-proposed)]
(c) Limitations on conflict of interest for catch monitors. (1)
Catch monitors must not have a direct financial interest, other than
the provision of observer or catch monitor services, in a North Pacific
fishery managed pursuant to an FMP for the waters off the coast of
Alaska, Alaska State waters, or in a Pacific Coast fishery managed by
either the State or Federal governments in waters off Washington,
Oregon, or California, including but not limited to:
(i) Any ownership, mortgage holder, or other secured interest in a
vessel, shore-based or floating stationary processor facility involved
in the catching, taking, harvesting or processing of fish,
(ii) Any business involved with selling supplies or services to any
vessel, shore-based or floating stationary processing facility; or
(iii) Any business involved with purchasing raw or processed
products from any vessel, shore-based or floating stationary processing
facilities.
(2) Must not solicit or accept, directly or indirectly, any
gratuity, gift, favor, entertainment, loan, or anything of monetary
value from anyone who either conducts activities that are regulated by
NMFS or has interests that may be substantially affected by the
performance or nonperformance of the catch monitor's official duties.
(3) May not serve as a catch monitor at any shoreside or floating
stationary processing facility owned or operated where a person was
previously employed in the last two years.
(4) May not solicit or accept employment as a crew member or an
employee of a vessel, or shoreside processor while employed by a catch
monitor provider.
(5) Provisions for remuneration of catch monitors under this
section do not constitute a conflict of interest.
(d) Limitations on conflict of interest for catch monitor
providers. Catch monitor providers must not have a direct financial
interest, other than the provision of observer or catch monitor
services, in a North Pacific fishery managed pursuant to an FMP for the
waters off the coast of Alaska, Alaska State waters, or in a Pacific
Coast fishery managed by either the State or Federal governments in
waters off Washington, Oregon, or California, including but not limited
to:
(1) Any ownership, mortgage holder, or other secured interest in a
vessel, shore-based or floating stationary processor facility involved
in the catching, taking, harvesting or processing of fish,
(2) Any business involved with selling supplies or services to any
vessel, shore-based or floating stationary processing facility; or
(3) Any business involved with purchasing raw or processed products
from any vessel, shore-based or floating stationary processing
facilities.
(e) Decertification. (1) Decertification review official--The
Regional Administrator (or a designee) will designate a decertification
review official(s), who will have the authority to review
certifications and issue IADs of decertification.
(2) Causes for decertification. The decertification official may
initiate decertification proceedings when it is alleged that any of the
following acts or omissions have been committed:
(i) Failed to satisfactorily perform the specified duties and
responsibilities;
(ii) Failed to abide by the specified standards of conduct;
(iii) Upon conviction of a crime or upon entry of a civil judgment
for:
(A) Commission of fraud or other violation in connection with
obtaining or attempting to obtain certification, or in performing the
duties and responsibilities specified in this section;
(B) Commission of embezzlement, theft, forgery, bribery,
falsification or destruction of records, making false statements, or
receiving stolen property;
(C) Commission of any other offense indicating a lack of integrity
or honesty that seriously and directly affects the fitness of catch
monitors.
(3) Issuance of IAD. Upon determination that decertification is
warranted under Sec. 660.17(c) or (e), the decertification official
will issue a written IAD. The IAD will identify the specific reasons
for the action taken. Decertification is effective 30 days after the
date of issuance, unless there is an appeal.
(4) Appeals. Pursuant to Sec. 679.43, a catch monitor who receives
an IAD that revokes certification may appeal within 30 days of the
determination revoking the certification.
10. In Sec. 660.25, paragraphs (b)(1)(i)(A) and (B) are removed;
paragraph (b)(4)(i)(F) is added; paragraphs (b)(4)(iv)(A),
(b)(4)(v)(A), (b)(4)(v)(C), (b)(4)(vi)(C), and (e) are revised to read
as follows:
Sec. 660.25 Permits.
* * * * *
(b) * * *
(4) * * *
(i) * * *
(F) A limited entry permit will not be renewed until a complete
economic data collection form is submitted as required under Sec.
660.113(b), (c) and (d), subpart D. The permit renewal will be marked
incomplete until the required information is submitted.
* * * * *
(iv) Changes in permit ownership and permit holder--(A) General.
The permit owner may convey the limited entry permit to a different
person. The new permit owner will not be authorized to use the permit
until the change in permit ownership has been registered with and
approved by the SFD. The SFD will not approve a change in permit
ownership for a limited entry permit with a sablefish endorsement that
does not meet the ownership requirements for such permit described at
paragraph (b)(3)(iv)(C) of this section. The SFD
[[Page 53412]]
will not approve a change in permit ownership for a limited entry
permit with a MS/CV endorsement or an MS permit that does not meet the
ownership requirements for such permit described at Sec.
660.150(g)(3), subpart D, and Sec. 660.150(f)(3), subpart D,
respectively. Change in permit owner and/or permit holder applications
must be submitted to SFD with the appropriate documentation described
at paragraph (b)(4)(vii) of this section. During the initial issuance
application period for the trawl rationalization program, NMFS will not
review or approve any request for a change in limited entry trawl
permit owner at any time during the application period as specified at
Sec. 660.140(d)(8)(viii) for QS applicants, at Sec.
660.150(g)(6)(vii) for MS/CV endorsement applicants, and at Sec.
660.160(d)(7)(vii) for C/P endorsement applicants.
* * * * *
(v) Changes in vessel registration- transfer of limited entry
permits and gear endorsements--(A) General. A permit may not be used
with any vessel other than the vessel registered to that permit. For
purposes of this section, a permit transfer occurs when, through SFD, a
permit owner registers a limited entry permit for use with a new
vessel. Permit transfer applications must be submitted to SFD with the
appropriate documentation described at paragraph (b)(4)(vii) of this
section. Upon receipt of a complete application, and following review
and approval of the application, the SFD will reissue the permit
registered to the new vessel. Applications to transfer limited entry
permits with sablefish endorsements will not be approved until SFD has
received complete documentation of permit ownership as described at
paragraph (b)(3)(iv)(C)(4) and as required under paragraph (b)(4)(vii)
of this section. Applications to transfer limited entry permits with
trawl endorsements or MS permits will not be approved until SFD has
received complete EDC forms as required under Sec. 660.114, subpart D.
* * * * *
(C) Effective date. Changes in vessel registration on permits will
take effect no sooner than the first day of the next major limited
entry cumulative limit period following the date that SFD receives the
signed permit transfer form and the original limited entry permit,
except for MS permits and C/P endorsed permits will take effect
immediately upon reissuance to the new vessel. No transfer is effective
until the limited entry permit has been reissued as registered with the
new vessel.
* * * * *
(vi) * * *
(C) Limited entry MS permits and limited entry permits with a MS/CV
or C/P endorsement. Limited entry MS permits and limited entry permits
with a MS/CV or C/P endorsement may be registered to another vessel up
to two times during the fishing season as long as the second transfer
is back to the original vessel. The original vessel is either the
vessel registered to the permit as of January 1, or if no vessel is
registered to the permit as of January 1, the original vessel is the
first vessel to which the permit is registered after January 1. After
the original vessel has been established, the first transfer would be
to another vessel, but any second transfer must be back to the original
vessel. For a MS/CV endorsed permit on the second transfer back to the
original vessel, that vessel must be used to fish exclusively in the MS
Coop Program described Sec. 660.150, and declare in to the limited
entry midwater trawl, Pacific whiting mothership sector as specified at
Sec. 660.13(d)(5)(iv).
* * * * *
(e) Coop permit--(1) MS coop permit. A MS coop permit conveys a
conditional privilege to an eligible coop entity to receive and manage
a coop's allocation of designated species and species groups. A MS coop
permit is not a limited entry permit. The provisions for the MS coop
permit, including eligibility, renewal, change of permit ownership,
fees, and appeals are described in the MS Coop Program at Sec.
660.150, subpart D.
(2) C/P coop permit. A C/P coop permit conveys a conditional
privilege to an eligible coop entity to receive and manage a coop's
allocation of designated species and species groups. A C/P coop permit
is not a limited entry permit. The provisions for the C/P coop permit,
including eligibility, renewal, change of permit ownership, fees, and
appeals are described in the C/P Coop Program at Sec. 660.160, subpart
D.
* * * * *
Sec. 660.26 [Removed]
11. Section 660.26 is removed.
12. In Sec. 660.55, paragraph (i)(2) is revised to read as
follows:
Sec. 660.55 Allocations.
* * * * *
(i) * * *
(2) The commercial harvest guideline for Pacific whiting is
allocated among three sectors, as follows: 34 percent for the C/P Coop
Program; 24 percent for the MS Coop Program; and 42 percent for the
Shorebased IFQ Program. No more than 5 percent of the Shorebased IFQ
Program allocation may be taken and retained south of 42[deg] N. lat.
before the start of the primary Pacific whiting season north of 42[deg]
N. lat. Specific sector allocations for a given calendar year are found
in Tables 1a and 2a of this subpart. Set asides for other species for
the at-sea whiting fishery for a given calendar year are found in
Tables 1d and 2d of this subpart.
* * * * *
13. In Sec. 660.60, paragraph (d)(1), paragraph (h)(2), and
paragraph (h)(5)(ii), (h)(5)(iii), and (h)(5)(iv) are revised; and
paragraphs (h)(5)(v) through (xii) are added to read as follows:
Sec. 660.60 Specifications and management measures.
* * * * *
(d) * * *
(1) Automatic actions are used in the Pacific whiting fishery to:
(i) Close an at-sea sector of the fishery when that sector's
Pacific whiting allocation is reached, or is projected to be reached;
(ii) Close all at-sea sectors or a single sector of the fishery
when a non-whiting groundfish species with allocations is reached or
projected to be reached;
(iii) Reapportion unused allocations of non-whiting groundfish
species from one at-sea sector of the Pacific whiting fishery to
another.
(iv) Implement the Ocean Salmon Conservation Zone, described at
Sec. 660.131(c)(3), subpart D, when NMFS projects the Pacific whiting
fishery may take in excess of 11,000 Chinook within a calendar year.
(v) Implement Pacific Whiting Bycatch Reduction Areas, described at
Sec. 660.131(c)(4) Subpart D, when NMFS projects a sector-specific
bycatch limit will be reached before the sector's whiting allocation.
* * * * *
(h) * * *
(2) Landing. As stated at Sec. 660.11, subpart C (in the
definition of ``Landing''), once the offloading of any species begins,
all fish aboard the vessel are counted as part of the landing and must
be reported as such. Transfer of fish at sea is prohibited under Sec.
660.12, subpart C, unless a vessel is participating in the primary
whiting fishery as part of the mothership or catcher/processor sectors,
as described at Sec. 660.131(a), subpart D. Catcher vessels in the
mothership sector must transfer all catch from a haul to the same
vessel registered to a MS permit prior to the gear being set for a
[[Page 53413]]
subsequent haul. Catch may not be transferred to a tender vessel.
* * * * *
(5) * * *
(ii) Weight limits and conversions. To determine the round weight,
multiply the processed weight times the conversion factor. For
participants in the Shorebased IFQ Program landing sorted catch, the
weight conversions are provided below for purposes of applying QP. For
participants in the limited entry fixed gear or open access fisheries,
the weight limit conversion factor established by the State where the
fish is or will be landed will be used to convert the processed weight
to round weight for purposes of applying the trip limit or other
allocation. Weight conversions provided herein are those conversions
currently in use by the States of Washington, Oregon, and California
and may be subject to change by those States. Fishery participants
should contact fishery enforcement officials in the State where the
fish will be landed to determine that State's official conversion
factor.
(iii) Sablefish. The following conversions apply:
(A) The following conversion applies to both the limited entry
fixed gear and open access fisheries: For headed and gutted
(eviscerated) sablefish the weight conversion factor is 1.6.
(B) The following conversion applies to vessels landing sorted
catch in the Shorebased IFQ Program: For headed and gutted
(eviscerated) sablefish the weight conversion factor is 1.47.
(iv) Lingcod. The following conversions apply:
(A) North of 42[deg] N. lat., for lingcod with the head removed,
the minimum size limit is 18 inches (46 cm), which corresponds to 22
inches (56 cm) total length for whole fish.
(B) South of 42[deg] N. lat., for lingcod with the head removed,
the minimum size limit is 19.5 inches (49.5 cm), which corresponds to
24 inches (61 cm) total length for whole fish.
(C) The following conversions apply in both limited entry fixed
gear and open access fisheries: For headed and gutted (eviscerated)
lingcod, the weight conversion factor is 1.5; for lingcod that has only
been gutted with the head on, the weight conversion factor is 1.1.
(D) The following conversions apply to vessels landing sorted catch
in the Shorebased IFQ Program: For headed and gutted (eviscerated), the
weight conversion factor is 1.43; for lingcod that has only been gutted
with the head on, the weight conversion factor is 1.1.
(v) Pacific whiting. The following conversion applies to vessels
landing sorted catch in the Shorebased IFQ Program: For headed and
gutted Pacific whiting (head removed just in front of the collar bone
and viscera removed), the weight conversion factor is 1.67; for headed
and gutted Pacific whiting with the tail removed the weight conversion
factor is 2.0.
(vi) Rockfish (including thornyheads), except POP. The following
conversions apply to vessels landing sorted catch in the Shorebased IFQ
Program: For headed and gutted (eviscerated), the weight conversion
factor is 1.75; for headed and gutted, western cut (head removed just
in front of the collar bone and viscera removed), the weight conversion
factor is 1.66; for headed and gutted, eastern cut (head removed just
in behind the collar bone and viscera removed,) the weight conversion
factor is 2.0.
(vii) Pacific ocean perch (POP). The following conversion applies
to vessels landing sorted catch in the Shorebased IFQ Program: For
headed and gutted (eviscerated), the weight conversion factor is 1.6.
(viii) Pacific cod. The following conversion applies to vessels
landing sorted catch in the Shorebased IFQ Program: For headed and
gutted (eviscerated), the weight conversion factor is 1.58.
(ix) Dover sole, English sole, and ``other flatfish''. The
following conversion applies to vessels landing sorted catch in the
Shorebased IFQ Program: For headed and gutted (eviscerated), the weight
conversion factor is 1.53.
(x) Petrale sole. The following conversion applies to vessels
landing sorted catch in the Shorebased IFQ Program: For headed and
gutted (eviscerated), the weight conversion factor is 1.51.
(xi) Arrowtooth flounder. The following conversion applies to
vessels landing sorted catch in the Shorebased IFQ Program: For headed
and gutted (eviscerated), the weight conversion factor is 1.35.
(xii) Starry flounder. The following conversion applies to vessels
landing sorted catch in the Shorebased IFQ Program: For headed and
gutted (eviscerated), the weight conversion factor is 1.49.
* * * * *
14. Section 660.100 is revised to read as follows:
Sec. 660.100 Purpose and scope.
This subpart covers the Pacific coast groundfish limited entry
trawl fishery. Under the trawl rationalization program, the limited
entry trawl fishery consists of the Shorebased IFQ Program, the MS Coop
Program, and the C/P Coop Program. Nothing in these regulations shall
be construed to modify, impair, or supersede the operation of any of
the antitrust laws. The trawl rationalization program creates limited
access privileges. These limited access privileges, including the QS or
IBQ, QP or IBQ pounds, and catch history assignments, may be revoked,
limited or modified at any time in accordance with the MSA--and do not
create any right of compensation to the holder of the limited access
privilege if it is revoked, limited, or modified. The trawl
rationalization program does not create any right, title, or interest
in or to any fish before the fish is harvested by the holder and shall
be considered a grant of permission to the holder of the limited access
privilege to engage in activities permitted by the trawl
rationalization program.
15. In Sec. 660.111, the following definitions are removed:
``Pacific whiting shoreside first receivers'', ``Pacific whiting
shoreside or shore-based fishery'', ``Pacific whiting shoreside
vessel,'' and ``Vessel limits''; ``Pacific whiting IFQ fishery'' is
revised; and new definitions are added in alphabetical order for:
``accumulation limits,'' ``charterer,'' ``complete economic data
collection (EDC) form,'' ``IFQ trip'', ``lessee,'' and ``Pacific
whiting IFQ trip''.
Sec. 660.111 Trawl fishery--definitions.
* * * * *
Accumulation limits mean the maximum extent of permissible
ownership, control or use of a privilege within the trawl
rationalization program, and include the following:
(1) Shorebased IFQ Program. (i) Control limits means the maximum
amount of QS that a person may own or control, as described at Sec.
660.140(d)(4).
(ii) Vessel limits means the maximum amount of QP a vessel can
hold, acquire, and/or use during a calendar year, and specify the
maximum amount of QP that may be registered to a single vessel during
the year (QP Vessel Limit) and, for some species, the maximum amount of
unused QP registered to a vessel account at any one time (Unused QP
Vessel Limit), as described at Sec. 660.140(e)(4).
(2) MS Coop Program. (i) MS permit usage limit means the maximum
amount of the annual mothership sector Pacific whiting allocation that
a person may cumulatively process, no more than 45 percent, as
described at Sec. 660.150(f)(3)(i).
(ii) MS/CV permit ownership limit means the maximum amount of catch
history assignment that a person may own, no more than 20 percent of
the MS
[[Page 53414]]
sector's allocation of Pacific whiting, as described at Sec.
660.150(g)(3)(i).
(iii) Catcher vessel usage limit means the maximum amount of the
annual mothership sector Pacific whiting allocation that a vessel may
catch, no more than 30 percent, as described at Sec.
660.150(g)(3)(ii).
* * * * *
Charterer means, for the purpose of economic data collection
program, a person, other than the owner of the vessel, who: Entered in
to any agreement or commitment by which the possession or services of
the vessel are secured for a period of time for the purposes of
commercially harvesting or processing fish. A long-term or exclusive
contract for the sale of all or a portion of the vessel's catch or
processed products is not considered a charter.
* * * * *
Complete economic data collection (EDC) form means that a response
is supplied for each question, sub-question, and answer-table cell. If
particular question or sub-question is not applicable, ``NA'', must be
entered in the appropriate space on the form. The form must also be
signed and dated to certify that the information is true and complete
to the best of the signatory's knowledge.
* * * * *
IFQ trip means a trip in which the vessel has a valid fishing
declaration for any of the following: Limited entry midwater trawl,
non-whiting shorebased IFQ; Limited entry midwater trawl, Pacific
whiting shorebased IFQ; Limited entry bottom trawl, shorebased IFQ, not
including demersal trawl; Limited entry demersal trawl, shorebased IFQ;
or Limited entry groundfish non-trawl, shorebased IFQ.
* * * * *
Lessee means, for the purpose of economic data collection program,
a person, other than the owner of the vessel or facility, who: Was
identified as the leaseholder, in a written lease, of the vessel or
facility, or paid expenses of the vessel or facility, or claimed
expenses for the vessel or facility as a business expense on a Federal
income tax return, or on a State income tax return.
* * * * *
Pacific whiting IFQ fishery means the Shorebased IFQ Program
fishery composed of vessels making Pacific whiting IFQ trips pursuant
to the requirements at Sec. 660.131 during the primary whiting season
fishery dates for the Shorebased IFQ Program.
Pacific whiting IFQ trip means a trip in which a vessel registered
to a limited entry permit uses legal midwater groundfish trawl gear
with a valid declaration for limited entry midwater trawl, Pacific
whiting shorebased IFQ, as specified at Sec. 660.13(d)(5)(iv)(A)
during the dates that the Pacific whiting IFQ fishery primary season.
* * * * *
16. In Sec. 660.112:
a. Paragraph (f) is removed;
b. Paragraph (a)(2) is added;
c. Paragraph (a)(3)(iii) is added;
d. Paragraph (a)(4) is redesignated as paragraph (a)(5), and a new
paragraph (a)(4) is added; and
e. Paragraphs (b) through (e) are added to read as follows:
Sec. 660.112 Trawl fishery--prohibitions.
* * * * *
(a) * * *
(2) Sorting. Fail to sort catch consistent with the requirements
specified at Sec. 660.130(d).
* * * * *
(3) * * *
(iii) Failure to submit a complete EDC form to NMFS as required by
Sec. 660.113.
* * * * *
(4) Observers. (i) Fish (including processing, as defined at Sec.
600.10 of this chapter) in the Shorebased IFQ Program, the MS Coop
Program, or the C/P Coop Program if NMFS determines the vessel is
unsafe for an observer.
(ii) Fish in the Shorebased IFQ Program, the MS Coop Program, or
the C/P Coop Program without observer coverage.
* * * * *
(b) Shorebased IFQ program--(1) General. (i) Own or control by any
means whatsoever an amount of QS that exceeds the Shorebased IFQ
Program accumulation limits.
(ii) Fish in the Shorebased IFQ Program with a vessel that does not
have a valid vessel account or that has a vessel account with a deficit
(negative balance) for any species/species group.
(iii) Have any IFQ species/species group catch (landings and
discards) from an IFQ trip not covered by QP for greater than 30 days
from the date the deficit (negative balance) from that trip is
documented, unless the deficit is within the limits of the carryover
provision specified at Sec. 660.140(e)(5), subpart D, in which case
the vessel has 30 days after the QP for the following year are issued
to eliminate the deficit.
(iv) Transfer the limited entry trawl endorsed permit to another
vessel or sell the limited entry trawl endorsed permit to another owner
if the vessel registered to the permit has an overage (catch not
covered by QP), until the overage is covered, regardless of the amount
of the overage.
(v) Use QP by vessels not registered to a limited entry trawl
permit with a valid vessel account.
(vi) Use QP in an area or for species/species groups other than
that for which it is designated.
(vii) Fish in more than one IFQ management area, specified at Sec.
660.140(c)(2), on the same trip.
(viii) Fish on a Pacific whiting IFQ trip with a gear other than
legal midwater groundfish trawl gear.
(ix) Fish on a Pacific whiting IFQ trip without a valid declaration
for limited entry midwater trawl, Pacific whiting shorebased IFQ, as
specified at Sec. 660.13(d)(5)(iv)(A), subpart C.
(x) Use midwater trawl gear to fish for Pacific whiting within an
RCA outside the Pacific whiting IFQ fishery primary season as specified
at Sec. 660.131(b)(2)(iii).
(xi) Bring a haul on board before all catch from the previous haul
has been stowed.
(xii) Process groundfish at-sea (``at-sea processing'') by vessels
in the Shorebased IFQ Program regardless of the type of gear used, with
the following exceptions:
(A) A vessel that is 75-ft (23-m) or less LOA that harvests whiting
and, in addition to heading and gutting, cuts the tail off and freezes
the whiting, is not considered to be a catcher/processor nor is it
considered to be processing fish, and
(B) A vessel that has a sablefish at-sea processing exemption,
defined at Sec. 660.25(b)(3)(iv)(D), subpart C may process sablefish
at-sea.
(xiii) Retain any IFQ species/species group onboard a vessel unless
the vessel has observer coverage. A vessel may deliver IFQ species/
species groups to more than one IFQ first receiver, but must maintain
observer coverage until all IFQ species from the trip are offloaded.
Once transfer of fish begins, all fish aboard the vessel are counted as
part of the same landing as defined at Sec. 660.11.
(xiv) Discard IFQ species/species group onboard a vessel unless
observer has documented the amount and species of the discards.
(2) IFQ first receivers. (i) Accept an IFQ landing without a valid
first receiver site license.
(ii) Fail to sort fish received from a IFQ landing prior to first
weighing after offloading as specified at Sec. 660.130(d)(2) for the
Shorebased IFQ Program, except the vessels declared in to the limited
entry midwater trawl, Pacific whiting shorebased IFQ at Sec.
660.13(d)(5)(iv)(A), subpart C may weigh catch on a bulk scale before
sorting as described at Sec. 660.140(j)(2).
[[Page 53415]]
(iii) Process, sell, or discard any groundfish received from an IFQ
landing that has not been weighed on a scale that is in compliance with
requirements at Sec. 660.15, subpart C.
(iv) Transport catch away from the point of landing before that
catch has been sorted and weighed by Federal groundfish species or
species group, and recorded for submission on an electronic fish
ticket. (If fish will be transported to a different location for
processing, all sorting and weighing to Federal groundfish species
groups must occur before transporting the catch away from the point of
landing).
(v) Receive an IFQ landing without coverage by a catch monitor when
one is required by regulations, unless NMFS has granted a written
waiver exempting the IFQ first receiver from the catch monitor coverage
requirements. On a case-by-case basis, a temporary written waiver may
be granted by the Assistant Regional Administrator or designee if he/
she determines that the failure to obtain coverage of a catch monitor
was due to circumstances beyond the control of the first receiver. The
duration of the waiver will be determined on a case-by-case basis.
(vi) Receive an IFQ landing without a NMFS-accepted catch
monitoring plan or not in accordance with their NMFS-accepted catch
monitoring plan.
(vii) Mix catch from more than one IFQ landing prior to the catch
being sorted and weighed.
(viii) Fail to comply with the IFQ first receiver responsibilities
specified at Sec. 660.140(b)(2).
(ix) Process, sell, or discard any groundfish received from an IFQ
landing that has not been accounted for on an electronic fish ticket
with the identification number for the vessel that delivered the fish.
(x) Fail to submit, or submit incomplete or inaccurate information
on any report, application, or statement required under this part.
(c) MS and C/P Coop Programs. (1) Process Pacific whiting in the
fishery management area during times or in areas where at-sea
processing is prohibited for the sector in which the vessel fishes,
unless:
(i) The fish are received from a member of a Pacific Coast treaty
Indian Tribe fishing under Sec. 660.50, subpart C;
(ii) The fish are processed by a waste-processing vessel according
to Sec. 660.131(h), subpart D; or
(iii) The vessel is completing processing of Pacific whiting taken
on board prior to the close of that vessel's primary season.
(2) During times or in areas where at-sea processing is prohibited,
take and retain or receive Pacific whiting, except as cargo or fish
waste, on a vessel in the fishery management area that already has
processed Pacific whiting on board. An exception to this prohibition is
provided if the fish are received within the Tribal U&A from a member
of a Pacific Coast treaty Indian Tribe fishing under Sec. 660.50,
subpart C.
(3) Operate as a waste-processing vessel within 48 hours of a
primary season for Pacific whiting in which that vessel operates as a
catcher/processor or mothership, according to Sec. 660.131(h), subpart
D.
(4) On a vessel used to fish for Pacific whiting, fail to keep the
trawl doors on board the vessel, when taking and retention is
prohibited under Sec. 660.131(b), subpart D.
(5) Sort or discard any portion of the catch taken by a catcher
vessel in the mothership sector before the catcher vessel observer
completes sampling of the catch, with the exception of minor amounts of
catch that are lost when the codend is separated from the net and
prepared for transfer.
(d) MS Coop Program (coop and non-coop fisheries). (1) Catch, take,
or harvest fish in the mothership non-coop fishery with a vessel that
is not registered to a current MS/CV-endorsed limited entry trawl
permit.
(2) Receive catch, process catch, or otherwise fish as a mothership
vessel if it is not registered to a current MS permit.
(3) Fish with a vessel in the mothership sector, if that vessel was
used to fish in the C/P fishery in the same calendar year.
(4) Catch, take, or harvest fish in the MS Coop Program with a
vessel that does not have a valid VMS declaration for limited entry
midwater trawl, Pacific whiting mothership sector, as specified at
Sec. 660.13(d)(5)(iv)(A), subpart C.
(5) Transfer catch to a vessel that is not registered to a MS
permit. (i.e. a tender vessel).
(6) Use a vessel registered to a limited entry permit with a trawl
endorsement (with or without a MS/CV endorsement) to catch more than 30
percent of the Pacific whiting allocation for the mothership sector.
(7) Process more than 45 percent of the annual mothership sector's
Pacific whiting allocation.
(8) Catch, take, or harvest fish before all catch from any previous
haul has been transferred to a single vessel registered to a MS permit.
(9) Transfer catch from a single haul to more than one permitted MS
vessel.
(10) Catch, take, or harvest fish for a MS coop with a vessel that
has not been identified by the coop as a vessel authorized to harvest
that coop's allocation.
(11) Catch, take, or harvest fish in the non-coop fishery with a
vessel registered to a MS/CV endorsed permit in the same year the MS/CV
endorsed permit was registered to a vessel that fished as a member of a
coop in the MS Coop Program.
(12) Sort or discard any portion of the catch taken by a catcher
vessel in the mothership sector before the catcher vessel observer
completes sampling of the catch, except for minor operational amounts
of catch lost by a catcher vessel provided the observer has accounted
for the discard (i.e., a maximized retention fishery).
(13) Mix catch from more than one haul before the observer
completes their collection of catch for sampling.
(14) Take deliveries without a valid scale inspection report signed
by an authorized scale inspector on board the vessel.
(15) Sort, process, or discard catch delivered to a mothership
before the catch is weighed on a scale that meets the requirements of
Sec. 660.15(b), including the daily test requirements.
(e) C/P Coop Program. (1) Fish with a vessel in the catcher/
processor sector that is not registered to a current C/P endorsed
limited entry trawl permit.
(2) Fish as a catcher/processor vessel in the same year that the
vessel fishes as a catcher vessel in the mothership fishery.
(3) Fish as a catcher/processor vessel in the same year that the
vessel operates as a mothership in the mothership fishery.
(4) Fish in the C/P Coop Program with a vessel that does not have a
valid VMS declaration for limited entry midwater trawl, Pacific whiting
catcher/processor sector, as specified at Sec. 660.13(d)(5)(iv)(A).
(5) Fish in the C/P Coop Program with a vessel that is not
identified in the C/P coop agreement.
(6) Fish in the C/P Coop Program without a valid scale inspection
report signed by an authorized scale inspector on board the vessel.
(7) Sort, process, or discard catch before the catch is weighed on
a scale that meets the requirements of Sec. 660.15(b), including the
daily test requirements.
(8) Discard any catch from the codend or net (i.e. bleeding) before
the observer has completed their data collection.
(9) Mix catch from more than one haul before the observer completes
their collection of catch for sampling.
17. In Sec. 660.113, paragraphs (a) through (c) are added, and
paragraph (d) is revised, to read as follows:
[[Page 53416]]
Sec. 660.113 Trawl fishery--recordkeeping and reporting.
* * * * *
(a) General requirements. (1) All records or reports required by
this paragraph must: Be maintained in English, be accurate, be legible,
be based on local time, and be submitted in a timely manner.
(2) Retention of Records. All records used in the preparation of
records or reports specified in this section or corrections to these
reports must be maintained for a period of not less than three years
after the date of landing and must be immediately available upon
request for inspection by NMFS or authorized officers or others as
specifically authorized by NMFS. Records used in the preparation of
required reports specified in this section or corrections to these
reports that are required to be kept include, but are not limited to,
any written, recorded, graphic, electronic, or digital materials as
well as other information stored in or accessible through a computer or
other information retrieval system; worksheets; weight slips;
preliminary, interim, and final tally sheets; receipts; checks;
ledgers; notebooks; diaries; spreadsheets; diagrams; graphs; charts;
tapes; disks; or computer printouts. All relevant records used in the
preparation of electronic fish ticket reports or corrections to these
reports must be maintained for a period of not less than three years
after the date and must be immediately available upon request for
inspection by NMFS or authorized officers or others as specifically
authorized by NMFS.
(b) Shorebased IFQ Program. (1) Economic data collection (EDC)
program. The following persons are required to submit an EDC form as
specified at Sec. 660.114:
(i) All owners, lessees, and charterers of a catcher vessel
registered to a limited entry trawl endorsed permit.
(ii) All owners of a first receiver site license.
(iii) All owners and lessees of a shorebased processor.
(2) Electronic vessel logbook. [Reserved]
(3) Gear switching declaration. Any person with a limited entry
trawl permit participating in the Shorebased IFQ Program using
groundfish non-trawl gear (i.e., gear switching) must submit a valid
gear declaration reporting such participation as specified in Sec.
660.13(d)(5)(iv)(A).
(4) Electronic fish ticket. The IFQ first receiver is responsible
for compliance with all reporting requirements described in this
paragraph.
(i) Required information. All IFQ first receivers must provide the
following types of information: Date of landing, vessel that made the
delivery, gear type used, catch area, first receiver, round weights of
species landed listed by species or species group including species
with no value, number of salmon by species, number of Pacific halibut,
and any other information deemed necessary by the Regional
Administrator as specified on the appropriate electronic fish ticket
form.
(ii) Submissions. The IFQ first receiver must:
(A) Include as part of each electronic fish ticket submission, the
actual scale weight for each groundfish species as specified by
requirements at Sec. 660.15(c) and the vessel identification number.
(B) Use for the purpose of submitting electronic fish tickets, and
maintain in good working order, computer equipment as specified at
Sec. 660.15(d)(1);
(C) Install, use, and update as necessary, any NMFS-approved
software described at Sec. 660.15(d)(3);
(D) Submit a completed electronic fish ticket for every IFQ landing
no later than 24 hours after the date the fish are received, unless a
waiver of this requirement has been granted under provisions specified
at paragraph (b)(4)(iv) of this section.
(iii) Revising a submission. In the event that a data error is
found, electronic fish ticket submissions may be revised by
resubmitting the revised form. Electronic fish tickets are to be used
for the submission of final data. Preliminary data, including estimates
of fish weights or species composition, shall not be submitted on
electronic fish tickets.
(iv) Waivers for submission. On a case-by-case basis, a temporary
written waiver of the requirement to submit electronic fish tickets may
be granted by the Assistant Regional Administrator or designee if he/
she determines that circumstances beyond the control of a first
receiver would result in inadequate data submissions using the
electronic fish ticket system. The duration of the waiver will be
determined on a case-by-case basis.
(v) Reporting requirements when a temporary waiver has been
granted. IFQ first receivers that have been granted a temporary waiver
from the requirement to submit electronic fish tickets must submit on
paper the same data as is required on electronic fish tickets within 24
hours of the date received during the period that the waiver is in
effect. Paper fish tickets must be sent by facsimile to NMFS, Northwest
Region, Sustainable Fisheries Division, 206-526-6736 or by delivering
it in person to 7600 Sand Point Way NE, Seattle, WA 98115. The
requirements for submissions of paper tickets in this paragraph are
separate from, and in addition to existing State requirements for
landing receipts or fish receiving tickets.
(c) MS Coop Program (coop and non-coop fisheries)--(1) Economic
data collection (EDC) program. The following persons are required to
submit a complete economic data collection form as specified at Sec.
660.114.
(i) All owners, lessees, and charterers of a catcher vessel
registered to a limited entry trawl MS/CV endorsed permit.
(ii) All owners, lessees, and charterers of a vessel registered to
a MS permit.
(2) NMFS-approved scales--(i) Scale test report form. Mothership
vessel operators are responsible for conducting scale tests and for
recording the scale test information on the at-sea scale test report
form as specified at Sec. 660.15(b), subpart C, for mothership
vessels.
(ii) Printed scale reports. Specific requirements pertaining to
printed scale reports and scale weight printouts are specified at Sec.
660.15(b), subpart C, for mothership vessels.
(iii) Retention of scale records and reports. The vessel must
maintain the test report form on board until the end of the fishing
year during which the tests were conducted, and make the report forms
available to observers, NMPS staff, or authorized officers. In
addition, the vessel owner must retain the scale test report forms for
3 years after the end of the fishing year during which the tests were
performed. All scale test report forms must be signed by the vessel
operator.
(3) Annual coop report--(i) The designed coop manager for the
mothership coop must submit an annual report to the Pacific Fishery
Management Council for their November meeting each year. The annual
coop report will contain information about the current year's fishery,
including:
(A) The mothership sector's annual allocation of Pacific whiting
and the permitted mothership coop allocation;
(B) The mothership coop's actual retained and discarded catch of
Pacific whiting, salmon, Pacific halibut, rockfish, groundfish, and
other species on a vessel-by-vessel basis;
(C) A description of the method used by the mothership coop to
monitor performance of coop vessels that participated in the fishery;
(D) A description of any actions taken by the mothership coop in
response to any vessels that exceed their allowed catch and bycatch;
and
[[Page 53417]]
(E) Plans for the next year's mothership coop fishery, including
the companies participating in the cooperative, the harvest agreement,
and catch monitoring and reporting requirements.
(ii) The annual coop report submitted to the Pacific Fishery
Management Council must be finalized to capture any additional fishing
activity that year and submitted to NMFS by March 31 of the following
year before a coop permit is issued for the following year.
(4) Cease fishing report. As specified at Sec. 660.150(c)(4)(ii),
the designated coop manager, or in the case of an inter-coop agreement,
all of the designated coop managers must submit a cease fishing report
to NMFS indicating that harvesting has concluded for the year.
(d) C/P Coop Program--(1) Economic data collection (EDC) program.
All owners, lessees, and charterers of a vessel registered to a C/P
endorsed limited entry trawl permit are required to submit a complete
economic data collection form as specified at Sec. 660.114.
(2) NMFS-approved scales--(i) Scale test report form. Catcher/
processor vessel operators are responsible for conducting scale tests
and for recording the scale test information on the at-sea scale test
report form as specified at Sec. 660.15(b), subpart C, for C/P
vessels.
(ii) Printed scale reports. Specific requirements pertaining to
printed scale reports and scale weight print outs are specified at
Sec. 660.15(b), subpart C, for C/P vessels.
(iii) Retention of scale records and reports. The vessel must
maintain the test report form on board until the end of the fishing
year during which the tests were conducted, and make the report forms
available to observers, NMFS staff, or authorized officers. In
addition, the vessel owner must retain the scale test report forms for
3 years after the end of the fishing year during which the tests were
performed. All scale test report forms must be signed by the vessel
operator.
(3) Annual coop report--(i) The designated coop manager for the C/P
coop must submit an annual report to the Pacific Fishery Management
Council for their November meeting each year. The annual coop report
will contain information about the current year's fishery, including:
(A) The C/P sector's annual allocation of Pacific whiting;
(B) The C/P coop's actual retained and discarded catch of Pacific
whiting, salmon, Pacific halibut, rockfish, groundfish, and other
species on a vessel-by-vessel basis;
(C) A description of the method used by the C/P coop to monitor
performance of cooperative vessels that participated in the fishery;
(D) A description of any actions taken by the C/P coop in response
to any vessels that exceed their allowed catch and bycatch; and
(E) Plans for the next year's C/P coop fishery, including the
companies participating in the cooperative, the harvest agreement, and
catch monitoring and reporting requirements.
(ii) The annual coop report submitted to the Pacific Fishery
Management Council must be finalized to capture any additional fishing
activity that year and submitted to NMFS by March 31 of the following
year before a coop permit is issued for the following year.
(4) Cease fishing report. As specified at Sec. 660.160(c)(5), the
designated coop manager must submit a cease fishing report to NMFS
indicating that harvesting has concluded for the year.
18. Section 660.114 is added to read as follows:
Sec. 660.114 Trawl fishery--economic data collection program.
(a) General. The economic data collection (EDC) program collects
mandatory economic data from participants in the trawl rationalization
program. NMFS requires submission of an EDC form to gather ongoing,
annual data for 2011 and beyond, as well as a onetime collection in
2011 of baseline economic data from 2009 through 2010.
(b) Economic data collection program requirements. The following
fishery participants in the limited entry groundfish trawl fisheries
are required to comply with the following EDC program requirements:
----------------------------------------------------------------------------------------------------------------
Consequence for failure
to submit (In addition to
Economic data Who is required to submit consequences listed
Fishery participant collection an EDC? below, failure to submit
an EDC may be a violation
of the MSA)
----------------------------------------------------------------------------------------------------------------
(1) Limited entry trawl catcher (i) Baseline (2009 All owners, lessees, and (A) For permit owner, a
vessels. and 2010) economic charterers of a catcher limited entry trawl
data. vessel registered to a permit application
limited entry trawl (including MS/CV
endorsed permit at any endorsed limited entry
time in 2009 or 2010. trawl permit) will not
be considered complete
until the required EDC
for that permit owner
associated with that
permit is submitted, as
specified at Sec.
660.25(b)(4)(i), subpart
C.
(B) For a vessel owner,
participation in the
groundfish fishery
(including, but not
limited to, changes in
vessel registration,
vessel account actions,
or if own QS permit,
issuance of annual QP)
will not be authorized
until the required EDC
for that owner for that
vessel is submitted, as
specified, in part, at
Sec. 660.25(b)(4)(v),
subpart C and Sec.
660.140(e), subpart D.
(C) For a vessel lessee
or charterer,
participation in the
groundfish fishery
(including, but not
limited to, issuance of
annual QP if own QS)
will not be authorized,
until the required EDC
for their operation of
that vessel is
submitted.
[[Page 53418]]
(ii) Annual/ongoing All owners, lessees, and (A) For permit owner, a
(2011 and beyond) charterers of a catcher limited entry trawl
economic data. vessel registered to a permit application
limited entry trawl (including MS/CV
endorsed permit at any endorsed limited entry
time in 2011 and beyond. trawl permit) will not
be considered complete
until the required EDC
for that permit owner
associated with that
permit is submitted, as
specified at Sec.
660.25(b)(4)(i), subpart
C.
(B) For a vessel owner,
participation in the
groundfish fishery
(including, but not
limited to, changes in
vessel registration,
vessel account actions,
or if own QS permit,
issuance of annual QP)
will not be authorized
until the required EDC
for that owner for that
vessel is submitted, as
specified, in part, at
Sec. 660.25(b)(4)(v),
subpart C and Sec.
660.140(e), subpart D.
(C) For a vessel lessee
or charterer,
participation in the
groundfish fishery
(including, but not
limited to, issuance of
annual QP if own QS)
will not be authorized,
until the required EDC
for their operation of
that vessel is
submitted.
(2) Motherships................... (i) Baseline (2009 All owners, lessees, and (A) For permit owner, a
and 2010) economic charterers of a MS permit application
data. mothership vessel that will not be considered
received whiting in 2009 complete until the
or 2010 as recorded in required EDC for that
NMFS' NORPAC database. permit owner associated
with that permit is
submitted, as specified
at Sec.
660.25(b)(4)(i), subpart
C.
(B) For a vessel owner,
participation in the
groundfish fishery
(including, but not
limited to, changes in
vessel registration)
will not be authorized
until the required EDC
for that owner for that
vessel is submitted, as
specified, in part, at
Sec. 660.25(b)(4)(v),
subpart C.
(C) For a vessel lessee
or charterer,
participation in the
groundfish fishery will
not be authorized, until
the required EDC for
their operation of that
vessel is submitted.
(ii) Annual/ongoing All owners, lessees, and (A) For permit owner, a
(2011 and beyond) charterers of a MS permit application
economic data. mothership vessel will not be considered
registered to a MS permit complete until the
at any time in 2011 and required EDC for that
beyond. permit owner associated
with that permit is
submitted, as specified
at Sec.
660.25(b)(4)(i), subpart
C.
(B) For a vessel owner,
participation in the
groundfish fishery
(including, but not
limited to, changes in
vessel registration)
will not be authorized
until the required EDC
for that owner for that
vessel is submitted, as
specified, in part, at
Sec. 660.25(b)(4)(v),
subpart C.
(C) For a vessel lessee
or charterer,
participation in the
groundfish fishery will
not be authorized, until
the required EDC for
their operation of that
vessel is submitted.
(3) Catcher processors............ (i) Baseline (2009 All owners, lessees, and (A) For permit owner, a C/
and 2010) economic charterers of a catcher P endorsed limited entry
data. processor vessel that trawl permit application
harvested whiting in 2009 will not be considered
or 2010 as recorded in complete until the
NMFS' NORPAC database. required EDC for that
permit owner associated
with that permit is
submitted, as specified
at Sec.
660.25(b)(4)(i), subpart
C.
(B) For a vessel owner,
participation in the
groundfish fishery
(including, but not
limited to, changes in
vessel registration)
will not be authorized
until the required EDC
for that owner for that
vessel is submitted, as
specified, in part, at
Sec. 660.25(b)(4)(v),
subpart C.
(C) For a vessel lessee
or charterer,
participation in the
groundfish fishery will
not be authorized, until
the required EDC for
their operation of that
vessel is submitted.
[[Page 53419]]
(ii) Annual/ongoing All owners, lessees, and (A) For permit owner, a C/
(2011 and beyond) charterers of a catcher P endorsed limited entry
economic data. processor vessel trawl permit application
registered to a catcher will not be considered
processor permit at any complete until the
time in 2011 and beyond. required EDC for that
permit owner associated
with that permit is
submitted, as specified
at Sec.
660.25(b)(4)(i), subpart
C.
(B) For a vessel owner,
participation in the
groundfish fishery
(including, but not
limited to, changes in
vessel registration)
will not be authorized
until the required EDC
for that owner for that
vessel is submitted, as
specified, in part, at
Sec. 660.25(b)(4)(v),
subpart C.
(C) For a vessel lessee
or charterer,
participation in the
groundfish fishery will
not be authorized, until
the required EDC for
their operation of that
vessel is submitted.
(4) First receivers/shorebased (i) Baseline (2009 All owners and lessees of A first receiver site
processors. and 2010) economic a shorebased processor license application for
data. and all buyers that a particular physical
received groundfish or location for processing
whiting harvested with a and buying will not be
limited entry trawl considered complete
permit as listed in the until the required EDC
PacFIN database in 2009 for the applying
or 2010. processor or buyer is
submitted, as specified
at Sec. 660.140(f)(3),
subpart D.
(ii) Annual/ongoing (A) All owners of a first A first receiver site
(2011 and beyond) receiver site license in license application will
economic data. 2011 and beyond. not be considered
(B) All owners and lessees complete until the
of a shore-based required EDC for that
processor (as defined license owner associated
under ``processor'' at with that license is
Sec. 660.11, subpart C, submitted, as specified
for purposes of EDC) that at Sec. 660.140(f)(3),
received round or headed- subpart D.
and-gutted IFQ species
groundfish or whiting
from a first receiver in
2011 and beyond.
----------------------------------------------------------------------------------------------------------------
(c) Submission of the EDC form and deadline--(1) Submission of the
EDC form. The complete, certified EDC form must be submitted to Attn:
Economic Data Collection Program (FRAM Division), NMFS, Northwest
Fisheries Science Center, 2725 Montlake Boulevard East, Seattle, WA
98112. A complete EDC form contains responses for all data fields,
which include but are not limited to costs, labor, earnings, activity
in a fishery, vessel or plant characteristics, value, quota,
operational information, location of expenditures and earnings,
ownership information and leasing information.
(2) Deadline. Complete, certified EDC forms must be mailed and
postmarked by or hand-delivered to NMFS NWFSC no later than September
1, 2011, for baseline data, and, for the annual/ongoing data collection
beginning September 1, 2012, September 1 each year for the prior year's
data.
(d) Confidentiality of information. Information received on an EDC
form will be considered confidential under applicable law and guidance.
(e) EDC audit procedures--(1) NMFS reserves the right to conduct
verification of economic data with the submitter of the form. NMFS may
employ a third party agent to conduct the audits.
(2) The submitter of the EDC form must respond to any inquiry by
NMFS or a NMFS agent within 20 days of the date of issuance of the
inquiry, unless an extension is granted by NMFS.
(3) The submitter of the form must provide copies of additional
data to facilitate verification by NMFS or NMFS' agent upon request.
The NMFS auditor may review and request copies of additional data
provided by the submitter, including but not limited to, previously
audited or reviewed financial statements, worksheets, tax returns,
invoices, receipts, and other original documents substantiating the
economic data submitted.
Sec. 660.116 [Removed]
19. Section 660.116 is removed.
20. In Sec. 660.130, paragraphs (a) and (d) are revised to read as
follows:
Sec. 660.130 Trawl fishery--management measures.
(a) General. Limited entry trawl vessels are those vessels
registered to a limited entry permit with a trawl endorsement and those
vessels registered to a MS permit. Most species taken in limited entry
trawl fisheries will be managed with quotas (see Sec. 660.140),
allocations or set-asides (see Sec. 660.150 or Sec. 660.160), or
cumulative trip limits (see trip limits in Tables 1 (North) and 1
(South) of this subpart), size limits (see Sec. 660.60 (h)(5), subpart
C), seasons (see Pacific whiting at Sec. 660.131(b), subpart D), gear
restrictions (see paragraph (b) of this section) and closed areas (see
paragraph (e) of this section and Sec. Sec. 660.70 through 660.79,
subpart C). The trawl fishery has gear requirements and harvest limits
that differ by the type of trawl gear on board and the area fished.
Groundfish vessels operating south of Point Conception must adhere to
CCA restrictions (see paragraph (e)(1) of this section and Sec.
660.70, subpart C). The trip limits in Tables 1 (North) and 1 (South)
of this subpart apply to vessels participating in the limited entry
groundfish trawl fishery and may not be exceeded. Federal commercial
groundfish regulations are not intended to supersede any more
restrictive State commercial groundfish regulations relating to
Federally-managed groundfish.
* * * * *
(d) Sorting. Under Sec. 660.12(a)(8), subpart C, it is unlawful
for any person to ``fail to sort, prior to the first weighing after
offloading, those groundfish species or species groups for which there
is a trip limit, size limit, scientific
[[Page 53420]]
sorting designation, quota, harvest guideline, or OY, if the vessel
fished or landed in an area during a time when such trip limit, size
limit, scientific sorting designation, quota, harvest guideline, or OY
applied.'' The States of Washington, Oregon, and California may also
require that vessels record their landings as sorted on their State
landing receipt.
(1) Species and areas--(i) Coastwide. Widow rockfish, canary
rockfish, darkblotched rockfish, yelloweye rockfish, shortbelly
rockfish, black rockfish, blue rockfish, minor nearshore rockfish,
minor shelf rockfish, minor slope rockfish, shortspine and longspine
thornyhead, Dover sole, arrowtooth flounder, petrale sole, starry
flounder, English sole, other flatfish, lingcod, sablefish, Pacific
cod, spiny dogfish, other fish, longnose skate, and Pacific whiting;
(ii) North of 40[deg]10' N. lat. POP, yellowtail rockfish;
(iii) South of 40[deg]10' N. lat. Minor shallow nearshore rockfish,
minor deeper nearshore rockfish, California scorpionfish, chilipepper
rockfish, bocaccio rockfish, splitnose rockfish, Pacific sanddabs,
cowcod, bronzespotted rockfish and cabezon.
(2) Sorting requirements for the Shorebased IFQ Program--(i) First
receivers. Fish landed at IFQ first receivers (including shoreside
processing facilities and buying stations that intend to transport
catch for processing elsewhere) must be sorted, prior to first weighing
after offloading from the vessel and prior to transport away from the
point of landing, except the vessels declared in to the limited entry
midwater trawl, Pacific whiting shorebased IFQ at Sec.
660.13(d)(5)(iv)(A), subpart C, may weigh catch on a bulk scale before
sorting as described at Sec. 660.140(j)(2).
(ii) Catcher vessels. All catch must be sorted to the species
groups specified in paragraph (d)(1) of this section for vessels with
limited entry permits, except those retaining all catch during a
Pacific whiting IFQ trip. The catch must not be discarded from the
vessel and the vessel must not mix catch from hauls until the observer
has sampled the catch. Prohibited species must be sorted according to
the following species groups: Dungeness crab, Pacific halibut, Chinook
salmon, other salmon. Non-groundfish species must be sorted as required
by the State of landing.
(3) Sorting requirements for the at-sea sectors of the Pacific
whiting fishery.
(i) Pacific whiting at-sea processing vessels may use an accurate
in-line conveyor or hopper type scale to derive an accurate total catch
weight prior to sorting. Immediately following weighing of the total
catch, the catch must be sorted to the species groups specified in
paragraph (d)(1) of this section and all incidental catch (groundfish
and non-groundfish species) must be accurately accounted for and the
weight of incidental catch deducted from the total catch weight to
derive the weight of target species.
(ii) Catcher vessels in the MS sector. If sorting occurs on the
catcher vessel, the catch must not be discarded from the vessel and the
vessel must not mix catch from hauls until the observer has sampled the
catch.
* * * * *
21. In Sec. 660.131:
a. Paragraphs (a) and (b), the introductory text of paragraph (c),
and paragraphs (e) and (f) are revised;
b. Paragraphs (g), (h), and (k) are removed;
c. Paragraphs (i) and (j) are redesignated as paragraphs (g) and
(h); and
d. The newly redesignated paragraph (g) is revised to read as
follows:
Sec. 660.131 Pacific whiting fishery management measures.
* * * * *
(a) Sectors--(1) The catcher/processor sector, or C/P Coop Program,
is composed of catcher/processors registered to a limited entry permit
with a C/P endorsement.
(2) The mothership sector, or MS Coop Program, is composed of
motherships and catcher vessels that harvest Pacific whiting for
delivery to motherships. Motherships are vessels registered to a MS
permit, and catcher vessels are vessels registered to a limited entry
permit with a MS/CV endorsement or vessels registered to a limited
entry permit without a MS/CV endorsement if the vessel is authorized to
harvest the coop's allocation.
(3) The Pacific whiting IFQ fishery is composed of vessels that
harvest Pacific whiting for delivery shoreside to IFQ first receivers
during the primary season.
(b) Pacific whiting seasons--(1) Primary seasons. The primary
seasons for the Pacific whiting fishery are:
(i) For the Shorebased IFQ Program, Pacific whiting IFQ fishery,
the period(s) of the large-scale target fishery is conducted after the
season start date;
(ii) For catcher/processors, the period(s) when catching and at-sea
processing is allowed for the catcher/processor sector(after the season
closes at-sea processing of any fish already on board the processing
vessel is allowed to continue); and
(iii) For vessels delivering to motherships, the period(s) when
catching and at-sea processing is allowed for the mothership sector
(after the season closes, at-sea processing of any fish already on
board the processing vessel is allowed to continue).
(2) Different primary season start dates. North of 40[deg]30' N.
lat., different starting dates may be established for the catcher/
processor sector, the mothership sector, and in the Pacific whiting IFQ
fishery for vessels delivering to IFQ first receivers north of 42[deg]
N. lat. and vessels delivering to IFQ first receivers between 42[deg]
and 40[deg]30' N. lat.
(i) Procedures. The primary seasons for the whiting fishery north
of 40[deg]30' N. lat. generally will be established according to the
procedures of the PCGFMP for developing and implementing harvest
specifications and apportionments. The season opening dates remain in
effect unless changed, generally with the harvest specifications and
management measures.
(ii) Criteria. The start of a primary season may be changed based
on a recommendation from the Council and consideration of the following
factors, if applicable: Size of the harvest guidelines for whiting and
bycatch species; age/size structure of the whiting population; expected
harvest of bycatch and prohibited species; availability and stock
status of prohibited species; expected participation by catchers and
processors; the period between when catcher vessels make annual
processor obligations and the start of the fishery; environmental
conditions; timing of alternate or competing fisheries; industry
agreement; fishing or processing rates; and other relevant information.
(iii) Primary whiting season start dates and duration. After the
start of a primary season for a sector of the whiting fishery, the
season remains open for that sector until the sector allocation of
whiting or non-whiting groundfish (with allocations) is reached or
projected to be reached and the fishery season for that sector is
closed by NMFS. The starting dates for the primary seasons for the
whiting fishery are as follows:
(A) Catcher/processor sector--May 15.
(B) Mothership sector--May 15.
(C) Shorebased IFQ program, Pacific whiting IFQ fishery.
(1) North of 42[deg] N. lat.-- June 15;
(2) Between 42[deg] and 40[deg]30' N. lat.-- April 1; and
(3) South of 40[deg]30' N. lat.--April 15.
(3) Trip limits in the whiting fishery. The ``per trip'' limit for
whiting before the regular (primary) season for the shorebased sector
is announced in Table
[[Page 53421]]
1 of this subpart, and is a routine management measure under Sec.
660.60(c). This trip limit includes any whiting caught shoreward of
100-fm (183-m) in the Eureka, CA area. The ``per trip'' limit for other
groundfish species are announced in Table 1 (North) and Table 1 (South)
of this subpart and apply as follows:
(i) During the groundfish cumulative limit periods both before and
after the primary whiting season, vessels may use either small and/or
large footrope gear, but are subject to the more restrictive trip
limits for those entire cumulative periods.
(ii) If, during a primary whiting season, a whiting vessel harvests
a groundfish species other than whiting for which there is a midwater
trip limit, then that vessel may also harvest up to another footrope-
specific limit for that species during any cumulative limit period that
overlaps the start or end of the primary whiting season.
(c) Closed areas. Vessels fishing in the Pacific whiting primary
seasons for the Shorebased IFQ Program, MS Coop Program, or C/P Coop
Program shall not target Pacific whiting with midwater trawl gear in
the following portions of the fishery management area:
* * * * *
(e) At-sea processing. Whiting may not be processed at sea south of
42[deg]00' N. lat. (Oregon-California border), unless by a waste-
processing vessel as authorized under paragraph (g) of this section.
(f) Time of day. Vessels fishing in the Pacific whiting primary
seasons for the Shorebased IFQ Program, MS Coop Program or C/P Coop
Program shall not target Pacific whiting with midwater trawl gear in
the fishery management area south of 42[deg]00' N. lat. between 0001
hours to one-half hour after official sunrise (local time). During this
time south of 42[deg]00' N. lat., trawl doors must be on board any
vessel used to fish for whiting and the trawl must be attached to the
trawl doors. Official sunrise is determined, to the nearest 5[deg]
lat., in The Nautical Almanac issued annually by the Nautical Almanac
Office, U.S. Naval Observatory, and available from the U.S. Government
Printing Office.
(g) Bycatch reduction and full utilization program for at-sea
processors (optional). If a catcher/processor or mothership in the
whiting fishery carries more than one NMFS-approved observer for at
least 90 percent of the fishing days during a cumulative trip limit
period, then groundfish trip limits may be exceeded without penalty for
that cumulative trip limit period, if the conditions in paragraph
(g)(1) of this section are met. For purposes of this program, ``fishing
day'' means a 24-hour period, from 0001 hours through 2400 hours, local
time, in which fishing gear is retrieved or catch is received by the
vessel, and will be determined from the vessel's observer data, if
available. Changes to the number of observers required for a vessel to
fish under in the bycatch reduction program will be announced prior to
the start of the fishery, generally concurrent with the harvest
specifications and management measures. Groundfish consumed on board
the vessel must be within any applicable trip limit and recorded as
retained catch in any applicable logbook or report. [Note: For a
mothership, non-whiting groundfish landings are limited by the
cumulative landings limits of the catcher vessels delivering to that
mothership.]
(1) Conditions. Conditions for participating in the voluntary full
utilization program are as follows:
(i) All catch must be made available to the observers for sampling
before it is sorted by the crew.
(ii) Any retained catch in excess of cumulative trip limits must
either be: Converted to meal, mince, or oil products, which may then be
sold; or donated to a bona fide tax-exempt hunger relief organization
(including food banks, food bank networks or food bank distributors),
and the vessel operator must be able to provide a receipt for the
donation of groundfish landed under this program from a tax-exempt
hunger relief organization immediately upon the request of an
authorized officer.
(iii) No processor or catcher vessel may receive compensation or
otherwise benefit from any amount in excess of a cumulative trip limit
unless the overage is converted to meal, mince, or oil products.
Amounts of fish in excess of cumulative trip limits may only be sold as
meal, mince, or oil products.
(iv) The vessel operator must contact the NMFS enforcement office
nearest to the place of landing at least 24 hours before landing
groundfish in excess of cumulative trip limits for distribution to a
hunger relief agency. Cumulative trip limits and a list of NMFS
enforcement offices are found on the NMFS, Northwest Region homepage at
http://www.nwr.noaa.gov.
(v) If the meal plant on board the whiting processing vessel breaks
down, then no further overages may be retained for the rest of the
cumulative trip limit period unless the overage is donated to a hunger
relief organization.
(vi) Prohibited species may not be retained.
(vii) Donation of fish to a hunger relief organization must be
noted in the transfer log (Product Transfer/Offloading Log (PTOL)), in
the column for total value, by entering a value of ``0'' or
``donation,'' followed by the name of the hunger relief organization
receiving the fish. Any fish or fish product that is retained in excess
of trip limits under this rule, whether donated to a hunger relief
organization or converted to meal, must be entered separately on the
PTOL so that it is distinguishable from fish or fish products that are
retained under trip limits. The information on the Mate's Receipt for
any fish or fish product in excess of trip limits must be consistent
with the information on the PTOL. The Mate's Receipt is an official
document that states who takes possession of offloaded fish, and may be
a Bill of Lading, Warehouse Receipt, or other official document that
tracks the transfer of offloaded fish or fish product. The Mate's
Receipt and PTOL must be made available for inspection upon request of
an authorized officer throughout the cumulative limit period during
which such landings occurred and for 15 days thereafter.
* * * * *
22. In Sec. 660.140:
a. Paragraphs (a), (d)(1), (d)(4)(iv), and (d)(5) are revised;
b. Paragraph (i) is removed and paragraphs (j) through (m) are
redesignated as paragraphs (i) through (l), and text is added to the
newly redesignated paragraphs (i) through (l);
c. Paragraph (c) heading is revised, paragraph (c)(2) is
redesignated as paragraph (c)(3) and a new paragraph (c)(2) is added,
and the newly redesignated paragraph (c)(3)(vi) is revised; and
d. Paragraphs (b), (c)(3)(vii), (d)(2), (d)(3), and (e) through (h)
are added, and paragraph (d)(7) is added and reserved, to read as
follows:
Sec. 660.140 Shorebased IFQ Program.
* * * * *
(a) General. The Shorebased IFQ Program requirements in this
section will be effective beginning January 1, 2011, except for
paragraphs (d)(4), (d)(6), and (d)(8) of this section, which are
effective immediately. The Shorebased IFQ Program applies to qualified
participants in the Pacific Coast Groundfish fishery and includes a
system of transferable QS for most groundfish species or species groups
(and transferable IBQ for Pacific halibut) and trip limits or set-
asides for the remaining groundfish species or species groups. NMFS
will issue a QS permit to eligible participants and will establish a QS
account for each QS permit owner
[[Page 53422]]
to track the amount of QS or IBQ and QP or IBQ pounds owned by that
owner. QS permit owners may own QS or IBQ for IFQ species, expressed as
a percent of the allocation to the Shorebased IFQ Program for that
species. NMFS will issue QP or IBQ pounds to QS permit owners,
expressed in pounds, on an annual basis, to be deposited in the
corresponding QS account. NMFS will establish a vessel account for each
eligible vessel owner participating in the Shorebased IFQ Program,
which is independent of the QS permit and QS account. In order to use
QP or IBQ pounds, a QS permit owner must transfer the QP or IBQ pounds
from the QS account in to the vessel account for the vessel to which
the QP or IBQ pounds is to be assigned. Harvests of IFQ species may
only be delivered to an IFQ first receiver with a first receiver site
license. In addition to the requirements of this section, the
Shorebased IFQ Program is subject to the following groundfish
regulations of subparts C and D:
(1) Regulations set out in the following sections of subpart C:
Sec. 660.11 Definitions, Sec. 660.12 Prohibitions, Sec. 660.13
Recordkeeping and reporting, Sec. 660.14 VMS requirements, Sec.
660.15 Equipment requirements, Sec. 660.16 Groundfish observer
program, Sec. 660.20 Vessel and gear identification, Sec. 660.25
Permits, Sec. 660.55 Allocations, Sec. 660.60 Specifications and
management measures, Sec. 660.65 Groundfish harvest specifications,
and Sec. Sec. 660.70 through 660.79 Closed areas.
(2) Regulations set out in the following sections of subpart D:
Sec. 660.111 Trawl fishery definitions, Sec. 660.112 Trawl fishery
prohibitions, Sec. 660.113 Trawl fishery recordkeeping and reporting,
Sec. 660.120 Trawl fishery crossover provisions, Sec. 660.130 Trawl
fishery management measures, and Sec. 660.131 Pacific whiting fishery
management measures.
(3) The shorebased IFQ fishery may be restricted or closed as a
result of projected overages within the Shorebased IFQ Program, the MS
Coop Program, or the C/P Coop Program. As determined necessary by the
Regional Administrator, area restrictions, season closures, or other
measures will be used to prevent the trawl sector in aggregate or the
individual trawl sectors (Shorebased IFQ, MS Coop, or C/P Coop) from
exceeding an OY, or formal allocation specified in the PCGFMP or
regulation at Sec. 660.55, subpart C, or Sec. Sec. 660.140, 660.150,
or 660.160, subpart D.
(b) Participation requirements and responsibilities--(1) IFQ
vessels. (i) Vessels must be registered to a groundfish limited entry
permit, endorsed for trawl gear with no C/P endorsement.
(ii) To start a trip in the Shorebased IFQ Program, a vessel and
its owner(s) (as described on the USCG documentation) must be
registered to the same vessel account established by NMFS with no
deficit (negative balance) for any species/species group.
(iii) All IFQ species/species group catch (landings and discards)
must be covered by QP or IBQ pounds. Any deficit (negative balance in a
vessel account) must be cured within 30 days from the date the deficit
from that trip is documented in the vessel account, unless the deficit
is within the limits of the carryover provision at paragraph (e)(5) of
this section, in which case the vessel may declare out of the IFQ
fishery for the year in which the deficit occurred and must cure the
deficit within 30 days after the issuance of QP or IBQ pounds for the
following year.
(iv) Any vessel with a deficit (negative balance) in its vessel
account is prohibited from fishing that is within the scope of the
Shorebased IFQ Program until sufficient QP or IBQ pounds are
transferred in to the vessel account to remove any deficit, regardless
of the amount of the deficit.
(v) A vessel account may not have QP or IBQ pounds (used and unused
combined) in excess of the QP Vessel Limit in any year, and for species
covered by Unused QP Vessel Limit, may not have QP or IBQ pounds in
excess of the Unused QP Vessel Limit at any time. These amounts are
specified at paragraph (e)(4) of this section.
(vi) Vessels must use either trawl gear as specified at Sec.
660.130(b), or a legal non-trawl groundfish gear under the gear
switching provisions as specified at Sec. 660.140(k).
(vii) Vessels that are registered to MS/CV endorsed permits may be
used to fish in the Shorebased IFQ Program provided that the vessel is
registered to a valid Shorebased IFQ Program vessel account.
(viii) In the same calendar year, a vessel registered to a trawl
endorsed limited entry permit with no MS/CV or C/P endorsements may be
used to fish in the Shorebased IFQ Program if the vessel has a valid
vessel account, and to fish in the mothership sector for a permitted MS
coop as authorized by the MS coop.
(ix) Vessels that are registered to C/P endorsed permits may not be
used to fish in the Shorebased IFQ Program.
(2) IFQ first receivers. The IFQ first receiver must:
(i) Ensure that all catch removed from a vessel making an IFQ
delivery is weighed on a scale or scales meeting the requirements
described in Sec. 660.15(c), subpart C;
(ii) Ensure that all catch is landed, sorted, and weighed in
accordance with a valid catch monitoring plan as described in Sec.
660.140(f)(3)(iii), subpart D.
(iii) Ensure that all catch is sorted, prior to first weighing, by
species or species groups as specified at Sec. 660.130(d), except the
vessels declared in to the limited entry midwater trawl, Pacific
whiting shorebased IFQ at Sec. 660.13(d)(5)(iv)(A), subpart C may
weigh catch on a before sorting as described at Sec. 660.140(j)(2).
(iv) Provide uninhibited access to all areas where fish are or may
be sorted or weighed to NMFS staff, NMFS-authorized personnel, or
authorized officer at any time when a delivery of IFQ species, or the
processing of those species, is taking place.
(v) Ensure that each scale produces a complete and accurate printed
record of the weight of all catch in a delivery, unless exempted in the
NMFS-accepted catch monitoring plan.
(vi) Retain and make available to NMFS staff, NMFS-authorized
personnel, or an authorized officer, all printed output from any scale
used to weigh catch, and any hand tally sheets, worksheets, or notes
used to determine the total weight of any species.
(vii) Ensure that each delivery of IFQ catch is monitored by a
catch monitor and that the catch monitor is on site the entire time the
delivery is being weighed or sorted.
(viii) Ensure that sorting and weighing is completed prior to catch
leaving the area that can be monitored from the observation area.
* * * * *
(c) IFQ species, management areas, and allocations. * * *
(2) IFQ management areas. A vessel participating in the Shorebased
IFQ Program may not fish in more than one IFQ management area during a
trip. IFQ management areas are as follows:
(i) Between the U.S./Canada border and 40[deg]10' N. lat.,
(ii) Between 40[deg]10' N. lat. and 36[deg] N. lat.,
(iii) Between 36[deg] N. lat. and 34[deg]27' N. lat., and
(iv) Between 34[deg]27' N. lat. and the U.S./Mexico border.
* * * * *
(3) * * *
(vi) For each IFQ species, NMFS will determine annual sub-
allocations to individual QS accounts by multiplying the percent of QS
or IBQ registered to the account by the amount of each
[[Page 53423]]
respective IFQ species allocated to the Shorebased IFQ Program for that
year. For each IFQ species, NMFS will issue QP or IBQ pounds to the
respective QS account in the amount of each sub-allocation determined.
(vii) Reallocations--(A) Reallocation with changes in management
areas.
(1) Area subdivision. If at any time after the initial allocation,
an IFQ species/species group is geographically subdivided, those
holding QS for the species/species group being subdivided will receive
an amount of QS for each newly created area that is equivalent to the
amount they held for the area before it was subdivided.
(2) Area recombination. When two areas are combined, the QS held by
individuals in each area will be adjusted proportionally such that:
(i) The total QS for the area sums to 100 percent, and
(ii) A person holding QS in the newly created area will receive the
same amount of total QP as they would if the areas had not been
combined.
(3) Area line movement. When a management area boundary line is
moved, the QS held by individuals in each area will be adjusted
proportionally such that they each maintain their same share of the
trawl allocation on a coastwide basis (a fishing area may expand or
decrease, but the individual's QP for both areas combined wouldn't
change because of the change in areas). In order to achieve this end,
the holders of QS in the area being reduced will receive QS for the
area being expanded, such that the total QP they would be issued will
not be reduced as a result of the area reduction. Those holding QS in
the area being expanded will have their QS reduced such that the total
QP they receive in the year of the line movement will not increase as a
result of the expansion (nor will it be reduced).
(B) Reallocation with subdivision of a species group. If at any
time after the initial allocation an IFQ species group is subdivided,
those holding QS for the species group being subdivided will receive an
amount of QS for each newly created IFQ species/species group that is
equivalent to the amount they held for the species group before it was
subdivided. For example, if a person holds one percent of a species
group before the subdivision, that person will hold one percent of the
QS for each species or species group resulting from the subdivision.
* * * * *
(d) QS permits and QS accounts--(1) General. In order to obtain QS,
a person must apply for a QS permit. NMFS will determine if the
applicant is eligible to acquire QS in compliance with the accumulation
limits found at paragraph (d)(4) of this section. For those persons
that are found to be eligible for a QS permit, NMFS will issue QS and
establish a QS account. On or about January 1 each year, QS permit
owners will be notified, via the IFQ Web site and their QS account of
their QP or IBQ pound allocations, for each of the IFQ species/species
groups, for the upcoming fishing year. These updated QS/QP values will
reflect the results of: changed OYs, carryover adjustments, and any
redistribution of QS (resulting from nonrenewal or permanent revocation
of applicable permits, subject to accumulation limits). QS permit
owners can monitor the status of their QS and QP allocations throughout
the year via the IFQ Web site. QP will be issued to the nearest whole
pound using standard rounding rules (i.e. decimal amounts from zero up
to 0.5 round down and 0.5 up to 1.0 round up), except that initial
allocations of QP for overfished species greater than zero but less
than one pound will be rounded up to one pound in the first year of the
trawl rationalization program. QS owners must transfer their QP from
their QS account to a vessel account in order for those QP to be
fished. QP must be transferred in whole pounds (i.e. no fraction of a
QP can be transferred). All QP in a QS account must be transferred to a
vessel account by September 1 of each year.
(2) Eligibility and registration--(i) Eligibility. Only the
following persons are eligible to own QS permits:
(A) A United States citizen, that is eligible to own and control a
U.S. fishing vessel with a fishery endorsement pursuant to 46 USC 12113
(general fishery endorsement requirements and 75 percent citizenship
requirement for entities);
(B) A permanent resident alien, that is eligible to own and control
a U.S. fishing vessel with a fishery endorsement pursuant to 46 USC
12113 (general fishery endorsement requirements and 75 percent
citizenship requirement for entities); or
(C) A corporation, partnership, or other entity established under
the laws of the United States or any State, that is eligible to own and
control a U.S. fishing vessel with a fishery endorsement pursuant to 46
USC 12113 (general fishery endorsement requirements and 75 percent
citizenship requirement for entities). However, there is an exception
for any entity that owns a mothership that participated in the west
coast groundfish fishery during the allocation period and is eligible
to own or control that U.S. fishing vessel with a fishery endorsement
pursuant to sections 203(g) and 213(g) of the AFA.
(ii) Registration. A QS account will be established by NMFS with
the issuance of a QS permit. The administrative functions associated
with the Shorebased IFQ Program (e.g., account registration, landing
transactions, and transfers) are designed to be accomplished online;
therefore, a participant must have access to a computer with Internet
access and must set up an appropriate QS account to participate. The
computer must have Internet browser software installed (e.g. Internet
Explorer, Netscape, Mozilla Firefox); as well as the Adobe Flash Player
software version 9.0 or greater. NMFS will mail initial QS permit
owners instructions pertinent to setting up an online QS account. Each
IFQ participant must monitor his/her online QS account and all
associated messages and comply with all online reporting requirements.
(3) Renewal, change of permit ownership, and transfer--(i) Renewal.
(A) QS permits expire at the end of each calendar year, and must be
renewed between October 1 and November 30 of each year in order to
remain in force the following year. A complete QS permit renewal
package must be received by SFD no later than November 30 to be
accepted by NMFS.
(B) Notification to renew QS permits will be issued by SFD prior to
September 1 each year to the QS permit owner's most recent address in
the SFD record. The permit owner shall provide SFD with notice of any
address change within 15 days of the change.
(C) Any QS permit for which SFD does not receive a QS permit
renewal request by November 30 will have its QS account inactivated by
NMFS at the end of the calendar year and the QS permit will not be
renewed by NMFS for the following year. NMFS will not issue QP or IBQ
pounds to the inactivated QS account associated with the non-renewed QS
permit. Any QP or IBQ pounds derived from the QS in the inactivated QS
account will be redistributed among all other QS permit owners that
renewed their permit by the deadline. Redistribution to QS permit
owners will be proportional to the QS or IBQ for each IFQ species. A
non-renewed QS permit may be renewed in a subsequent year by submission
of a complete QS permit renewal package during the permit renewal
period for that year.
(D) QS permits will not be renewed until SFD has received a
complete application for a QS permit renewal, which includes payment of
required
[[Page 53424]]
fees, complete documentation of QS permit ownership on the Trawl
Identification of Ownership Interest Form as required under (d)(4)(iv)
of this section, and a complete economic data collection form if
required under Sec. 660.114, subpart D. The QS permit renewal will be
marked incomplete until the required information is submitted.
(E) Effective Date. A QS permit is effective on the date given on
the permit and remains in effective until the end of the calendar year.
(F) IAD and appeals. QS permit renewals are subject to the permit
appeals process specified at Sec. 660.25(g), subpart C.
(ii) Change of permit ownership and transfer restrictions--(A)
Restriction on the transfer of ownership for QS permits. A QS permit
cannot be transferred to another individual or entity. The QS permit
owner cannot change or add additional individuals or entities as owners
of the permit (i.e., cannot change the registered permit owners as
given on the permit). Any change to the owner of the QS permit requires
the new owner(s) to apply for a QS permit, and is subject to
accumulation limits and approval by NMFS.
(B) Transfer of QS or IBQ. Transfers of QS or IBQ must be
accomplished online via the IFQ Web site. To make a transfer, a QS
permit owner must initiate a transfer request by logging onto the IFQ
Web site. Following the instructions provided on the Web site, the QS
permit owner must enter pertinent information regarding the transfer
request including, but not limited to: amount of QS, IBQ, QP or IBQ
pounds to be transferred; name and any other identifier of the eligible
transferee (e.g., account number); and the value of the transferred QS,
IBQ, QP, or IBQ pounds. If the information is not accepted, the online
system will send the QS permit owner an electronic message explaining
the reason(s). During the year there may be situations where NMFS deems
it necessary to prohibit transfers (i.e., account reconciliation,
system maintenance, or for emergency fishery management reasons). If
the information is accepted, the online system will send the transferee
an electronic message regarding the pending transfer. The transferee
must approve the transfer by electronic signature. If the transferee
approves the transfer, the online system will send a transfer
transaction confirmation notice to both the QS permit owner and the
vessel account owner confirming the transaction. If the transaction
itself is incorrectly recorded, either party can contact the NMFS NWR
for instructions on how to request a correction. NMFS will review and
make a determination on whether to make a correction based on the
request and available information.
(1) Transfer of QS or IBQ between QS accounts. After the second
year of the trawl rationalization program, QS permit owners may
transfer QS or IBQ to another QS permit owner, subject to accumulation
limits and approval by NMFS. QS or IBQ is transferred as a percent,
divisible to one-thousandth of a percent (i.e., greater than or equal
to 0.001%). QP or IBQ pounds may not be transferred with the QS or IBQ.
During the first 2 years after implementation of the program, QS or IBQ
cannot be transferred to another QS permit owner, except under U.S.
court order and as approved by NMFS. QS or IBQ may not be transferred
between December 1 through December 31.
(2) Transfer of QP or IBQ pounds from a QS account to a vessel
account. QP or IBQ pounds must be transferred in whole pounds (i.e. no
fraction of a QP can be transferred). QP or IBQ pounds must be
transferred to a vessel account in order to be used. Transfers of QP or
IBQ pounds from a QS account are subject to vessel accumulation limits
and NMFS' approval. All QP or IBQ pounds from a QS account must be
transferred to one or more vessel accounts by September 1 each year.
Once QP or IBQ pounds are transferred from a QS account to a vessel
account, they cannot be transferred back to a QS account and may only
be transferred to another vessel account. QP or IBQ pounds may not be
transferred from one QS account to another QS account.
(C) Effective date--(1) Transfer of QS or IBQ between QS accounts
is effective on the date approved by NMFS.
(2) Transfer of QP or IBQ pounds from a QS account to a vessel
account is effective on the date approved by NMFS.
(E) IAD and appeals. Transfers are subject to the permit appeals
process specified at Sec. 660.25 (g), subpart C.
* * * * *
(4) * * *
(iv) Trawl identification of ownership interest form. Any person
that owns a limited entry trawl permit and that is applying for or
renewing a QS permit shall document those persons that have an
ownership interest in the limited entry trawl or QS permit greater than
or equal to 2 percent. This ownership interest must be documented with
the SFD via the Trawl Identification of Ownership Interest Form. For
renewal, if the limited entry trawl permit and QS permit have identical
ownership interest, only one form need be submitted attesting to such
ownership. SFD will not issue a QS Permit unless the Trawl
Identification of Ownership Interest Form has been completed. Further,
if SFD discovers through review of the Trawl Identification of
Ownership Interest Form that a person owns or controls more than the
accumulation limits and is not authorized to do so under paragraph
(d)(4)(v) of this section, the person will be notified and the QS
permit will be issued up to the accumulation limit specified in the QS
Control Limit table from paragraph (d)(4)(i) of this section. NMFS may
request additional information of the applicant as necessary to verify
compliance with accumulation limits.
* * * * *
(5) Appeals. An appeal to a QS permit or QS account action follows
the same process as the general permit appeals process is defined at
Sec. 660.25(g), subpart C.
* * * * *
(7) Cost recovery. [Reserved]
* * * * *
(e) Vessel account--(1) General. QP or IBQ pounds will have the
same species/species groups and area designations as the QS or IBQ from
which it was issued. Annually, QS or IBQ (expressed as a percent) are
converted to QP or IBQ pounds (expressed as a weight) in a QS account.
QP or IBQ pounds may only be transferred from a QS account to a vessel
account. QP or IBQ pounds are required to cover catch (landings and
discards) by limited entry trawl vessels of all IFQ species/species
groups, except for:
(i) Gear exception. Vessels with a limited entry trawl permit using
the following gears would not be required to cover groundfish catch
with QP or Pacific halibut catch with IBQ pounds: non-groundfish trawl,
gear types defined in the coastal pelagic species FMP, gear types
defined in the highly migratory species FMP, salmon troll, crab pot,
and limited entry fixed gear when the vessel also has a limited entry
permit endorsed for fixed gear and has declared that they are fishing
in the limited entry fixed gear fishery.
(ii) Species exception. QP are not required for the following
species, longspine thornyheads south of 34[deg]27 N. lat., minor
nearshore rockfish (north and south), black rockfish (coastwide),
California scorpionfish, cabezon, kelp greenling, shortbelly rockfish,
and ``other fish'' (as defined at Sec. 660.11, subpart C, under the
definition of ``groundfish''). For these species, trip
[[Page 53425]]
limits remain in place as specified in the trip limit tables at Table 1
(North) and Table 1 (South) of this subpart.
(2) Eligibility and registration--(i) Eligibility. To have a
registered vessel account, a person must own a vessel and that vessel
must be registered to a groundfish limited entry permit endorsed for
trawl gear.
(ii) Registration. A vessel account must be registered with the
NMFS SFD Permits Office. A vessel account may be established at any
time during the year. An eligible vessel owner must request in writing
that NMFS establish a vessel account. The request must include the
vessel name; USCG vessel registration number (as given on USCG Form
1270); all vessel owner names (as given on USCG Form 1270); if the
vessel owner is a business entity, then include the name of the
authorized vessel account manager that may act on behalf of the entity;
business contact information, including: address, phone number, fax
number, and e-mail. Applications for a vessel account must also include
the following information: a complete economic data collection form as
required under Sec. 660.113(b), (c) and (d), subpart D, and a complete
Trawl Identification of Ownership Interest Form as required under
paragraph (e)(4)(ii) of this section. The application for a vessel
account will be marked incomplete until the required information is
submitted. Any change in the legal name of the vessel owner(s) will
require the new owner to register with NMFS for a vessel account.
(3) Renewal, change of account ownership, and transfer of QP or IBQ
pounds--(i) Renewal. (A) Vessel accounts expire at the end of each
calendar year, and must be renewed between October 1 and November 30 of
each year in order to remain in force the following year. A complete
vessel account renewal package must be received by SFD no later than
November 30 to be accepted by NMFS.
(B) Notification to renew vessel accounts will be issued by SFD
prior to September 1 each year to the vessel account owner's most
recent address in the SFD record. The vessel account owner shall
provide SFD with notice of any address change within 15 days of the
change.
(C) Any vessel account for which SFD does not receive a vessel
account renewal request by November 30 will have its vessel account
inactivated by NMFS at the end of the calendar year. NMFS will not
issue QP or IBQ pounds to the inactivated vessel account. Any QP or IBQ
pounds in the vessel account will expire and surplus QP or IBQ pounds
will not be available for carryover. A non-renewed vessel account may
be renewed in a subsequent year by submission of a complete vessel
account renewal package.
(D) Vessel accounts will not be renewed until SFD has received a
complete application for a vessel account renewal, which includes
payment of required fees, a complete documentation of permit ownership
on the Trawl Identification of Ownership Interest Form as required
under (e)(4)(ii) of this section, and a complete economic data
collection form as required under Sec. 660.114, subpart D. The vessel
account renewal will be marked incomplete until the required
information is submitted.
(E) Effective Date. A vessel account is effective on the date
issued by NMFS and remains effective until the end of the calendar
year.
(F) IAD and appeals. Vessel account renewals are subject to the
appeals process specified at Sec. 660.25 (g), subpart C.
(ii) Change in vessel account ownership. Vessel accounts are non-
transferable and ownership of a vessel account cannot change. If the
owner of a vessel changes, then a new vessel account must be opened.
(iii) Transfer of QP or IBQ pounds--(A) General. QP or IBQ pounds
may only be transferred from a QS account to a vessel account or
between vessel accounts. QP or IBQ pounds cannot be transferred from a
vessel account to a QS account. QP or IBQ pounds transfers are subject
to accumulation limits. QP or IBQ pounds in a vessel account may only
be transferred to another vessel account. QP or IBQ pounds must be
transferred in whole pounds (i.e. no fraction of a QP can be
transferred).
(B) Transfer procedures. QP or IBQ pound transfers from one vessel
account to another vessel account must be accomplished online via the
IFQ Web site. A vessel account owner must initiate a transfer request
by logging onto the IFQ Web site. Following the instructions provided
on the Web site, the vessel account owner must enter pertinent
information regarding the transfer request including, but not limited
to: Amount of QP or IBQ pounds to be transferred (in whole pound
increments); name and any other identifier (e.g., vessel account
number) of the eligible vessel account receiving the transfer; and
value of the transferred QPs or IBQ pounds. The online system will
verify the information entered. If the information is not accepted, the
online system will send the both parties an electronic message
explaining the reason(s). If the information is accepted, the online
system will send the transferee receiving the QP or IBQ pounds an
electronic message of the pending transfer. The transferee must approve
the transfer by electronic signature. If the transferee approves the QP
or IBQ pound transfer, the online system will send a transfer
transaction confirmation notice to both the vessel account owner that
made the transfer and transferee receiving the QP or IBQ pounds. Once
this confirmation is received, this transaction is final. If the
transaction itself is incorrectly recorded, either party can contact
the NMFS NWR for instructions on how to request a correction. NMFS will
review and make a determination on whether to make a correction based
on the request and available information. QP or IBQ pounds may be
transferred to vessel accounts at any time during the year unless
otherwise notified by NMFS. During the year there may be situations
where NMFS deems it necessary to prohibit transfers because of account
reconciliation purposes, system maintenance, or for emergency fishery
management reasons.
(4) Accumulation limits--(i) Vessel limits. Vessel accounts may not
have QP or IBQ pounds in excess of the QP Vessel Limit in any year, and
for species covered by Unused QP Vessel Limits, may not have QP or IBQ
pounds in excess of the Unused QP Vessel Limit at any time. These
amounts are as follows:
------------------------------------------------------------------------
Unused QP Vessel
Species category QP Vessel limit limit (daily
(annual limit) % limit) %
------------------------------------------------------------------------
Nonwhiting Groundfish Species..... 3.2 .................
Lingcod--coastwide................ 3.8 .................
Pacific Cod....................... 20.0 .................
Pacific whiting (shoreside)....... 15.0 .................
Sablefish:
[[Page 53426]]
N. of 36[deg] (Monterey north) 4.5 .................
S. of 36[deg] (Conception 15.0 .................
area)........................
PACIFIC OCEAN PERCH............... 6.0 4.0
WIDOW ROCKFISH \1\................ 8.5 5.1
CANARY ROCKFISH................... 10.0 4.4
Chilipepper Rockfish.............. 15.0 .................
BOCACCIO.......................... 15.4 13.2
Splitnose Rockfish................ 15.0 .................
Yellowtail Rockfish............... 7.5 .................
Shortspine Thornyhead:
N. of 34[deg]27'.............. 9.0 .................
S. of 34[deg]27'.............. 9.0 .................
Longspine Thornyhead:
N. of 34[deg]27'.............. 9.0 .................
COWCOD............................ 17.7 17.7
DARKBLOTCHED...................... 6.8 4.5
YELLOWEYE......................... 11.4 5.7
Minor Rockfish North:
Shelf Species................. 7.5 .................
Slope Species................. 7.5 .................
Minor Rockfish South:
Shelf Species................. 13.5 .................
Slope Species................. 9.0 .................
Dover sole........................ 3.9 .................
English Sole...................... 7.5 .................
Petrale Sole...................... 4.5 .................
Arrowtooth Flounder............... 20.0 .................
Starry Flounder................... 20.0 .................
Other Flatfish.................... 15.0 .................
Pacific Halibut................... 14.4 5.4
------------------------------------------------------------------------
\1\ If widow rockfish is rebuilt before initial allocation of QS, the
vessel limit will be set at 1.5 times the control limit.
(ii) Trawl identification of ownership interest form. Any person
that owns a vessel registered to a limited entry trawl permit and that
is applying for or renewing a vessel account shall document those
persons that have an ownership interest in the vessel greater than or
equal to 2 percent. This ownership interest must be documented with the
SFD via the Trawl Identification of Ownership Interest Form. SFD will
not issue a vessel account unless the Trawl Identification of Ownership
Interest Form has been completed. NMFS may request additional
information of the applicant as necessary to verify compliance with
accumulation limits.
(5) Carryover. The carryover provision allows a limited amount of
surplus QP or IBQ pounds in a vessel account to be carried over from
one year to the next or allows a deficit in a vessel account in one
year to be covered with QP or IBQ pounds from a subsequent year, up to
a carryover limit. The carryover limit is calculated by multiplying the
carryover percentage by the cumulative total of QP or IBQ pounds (used
and unused) in a vessel account for the base year, less any transfers
out of the vessel account or any previous carryover amounts. The
percentage used for the carryover provision may be changed during the
biennial specifications and management measures process.
(i) Surplus QP or IBQ pounds. A vessel account with a surplus of QP
or IBQ pounds (unused QP or IBQ pounds) for any IFQ species at the end
of the fishing year may carryover for use in the immediately following
year an amount of unused QP or IBQ pounds up to its carryover limit.
The carryover limit for the surplus is calculated as 10 percent of the
cumulative total QP or IBQ pounds (used and unused, less any transfers
or any previous carryover amounts) in the vessel account at the end of
the year. NMFS will credit the carryover amount to the vessel account
in the immediately following year. If there is a decline in the OY
between the base year and the following year in which the QP or IBQ
pounds would be carried over, the carryover amount will be reduced in
proportion to the reduction in the OY. Surplus QP or IBQ pounds may not
be carried over for more than one year. Any amount of QP or IBQ pounds
in a vessel account and in excess of the carryover amount will expire
on December 31 each year and will not be available for any future use.
(ii) Deficit QP or IBQ pounds. A vessel account with a deficit
(negative balance) of QP or IBQ pounds for any IFQ species in the
current year may cover that deficit with QP or IBQ pounds from the
following year without incurring a violation if the following
conditions are met:
(A) The vessel declares out of the shorebased IFQ fishery for the
year in which the deficit occurred (If the deficit occurs less than 30
days before the end of the calendar year, then declaring out for the
year is not required.);
(B) The amount of QP or IBQ pounds required to cover the deficit
from the current fishing year is less than or equal to the vessel's
carryover limit for a deficit. The carryover limit for a deficit is
calculated as 10 percent of the total cumulative QP or IBQ pounds (used
and unused, less any transfers or any previous carryover amounts) in
the vessel account 30 days after the date the deficit is documented;
and
(C) Sufficient QP or IBQ pounds are transferred in to the vessel
account to cure the deficit within 30 days of NMFS' issuance of QP or
IBQ pounds to QS accounts in the following year.
(6) Appeals. An appeal to a vessel account action follows the
appeals process defined at Sec. 660.25(g), subpart C.
(7) Fees. The Regional Administrator is authorized to charge fees
for administrative costs associated with the
[[Page 53427]]
vessel accounts consistent with the provisions given at Sec.
660.25(f), subpart C.
(8) Cost recovery. [Reserved]
(f) First receiver site license--(1) General. Any IFQ first
receiver that receives IFQ landings must hold a valid first receiver
site license. The first receiver site license authorizes the holder to
receive, purchase, or take custody, control, or possession of an IFQ
landing at a specific physical site onshore directly from a vessel.
Once the trawl rationalization program is implemented, a temporary,
interim first receiver site license will be available by application to
NMFS and will be valid until June 30, 2011, or until an application for
a first receiver site license as specified in paragraph (f)(3) of this
section is approved by NMFS, whichever comes first. An application for
an interim first receiver site license is subject to all of the
requirements in this paragraph (f) including the submission of a catch
monitoring plan, except that the catch monitoring plan in paragraph
(f)(3)(iii) does not have to have been previously accepted by NMFS and
the site does not have to have been previously inspected.
(2) Issuance. (i) First receiver site licenses will only be issued
to a person registered to a valid license issued by the State of
Washington, Oregon, or California, and that authorizes the person to
receive fish from a catcher vessel.
(ii) A first receiver may apply for a first receiver site license
at any time during the calendar year.
(iii) A first receiver site license is valid for one year from the
date it was issued by NMFS, or until the State license required by
paragraph (f)(2)(i) of this section is no longer effective, whichever
occurs first. IFQ first receivers must reapply for a first receiver
site license each year and whenever a change in the ownership occurs.
(3) Application process. Persons interested in being licensed as an
IFQ first receiver must submit a complete application for a first
receiver site license. NMFS will only consider complete applications
for approval. A complete application includes:
(i) State license. A copy of a valid license issued by the State in
which they operate which allows the person to receive fish from a
catcher vessel.
(ii) Contact information. (A) The name of the first receiver,
(B) The physical location of the first receiver, including the
street address where the IFQ landings will be received and/or
processed.
(C) The name and phone number of the plant manager and any other
authorized representative who will serve as a point of contact with
NMFS.
(iii) A NMFS-accepted catch monitoring plan. All IFQ first
receivers must prepare and operate under a NMFS-accepted catch
monitoring plan. NMFS will not issue a first receiver site license to a
processor that does not have a current, NMFS-accepted catch monitoring
plan.
(A) Catch monitoring plan review process. NMFS will accept a catch
monitoring plan if it meets all the requirements specified in paragraph
(f)(3)(iii)(C) of this section. The site must be inspected by NMFS
staff or a NMFS designated inspector prior to acceptance to ensure that
the first receiver conforms to the elements addressed in the catch
monitoring plan. NMFS will complete its review of the catch monitoring
plan within 14 working days of receiving a complete catch monitoring
plan and conducting a monitoring plan inspection. If NMFS does not
accept a catch monitoring plan for any reason, a new or revised catch
monitoring plan may be submitted.
(B) Arranging an inspection. The time and place of a monitoring
plan inspection must be arranged by submitting a written request for an
inspection to NMFS at NMFS, Northwest Region, Permits Office, Attn:
Catch Monitor Coordinator, Bldg. 1, 7600 Sand Point Way NE., Seattle,
WA 98115. NMFS will schedule an inspection within ten working days
after receiving a complete application for an inspection. The
inspection request must include:
(1) Name and signature of the person submitting the application and
the date of the application;
(2) Address, telephone number, fax number, and e-mail address (if
available) of the person submitting the application;
(3) A proposed catch monitoring plan detailing how the IFQ first
receiver will meet each of the performance standards in paragraph
(f)(3)(iii)(C) of this section.
(C) Contents of a catch monitoring plan. The catch monitoring plan
must:
(1) Catch sorting. Describe the amount and location of all space
used for sorting catch, the number of staff assigned to catch sorting,
and the maximum rate that catch will flow through the sorting area.
(2) Monitoring for complete sorting. Detail how IFQ first receiver
staff will ensure that sorting is complete; what steps will be taken to
prevent unsorted catch from entering the factory or other areas beyond
the location where catch sorting and weighing can be monitored from the
observation area; and what steps will be taken if unsorted catch enters
the factory or other areas beyond the location where catch sorting and
weighing can be monitored from the observation area.
(3) Scales used for weighing IFQ landings. Identify each scale that
will be used to weigh IFQ landings by the type and capacity and
describe where it is located and what it will be used for. Each scale
must be appropriate for its intended use.
(4) Printed record. Identify all scales that will be used to weigh
IFQ landings that cannot produce a complete printed record as specified
at Sec. 660.15(c), subpart C. State how the scale will be used, and
how the plant intends to produce a complete and accurate record of the
total weight of each delivery.
(5) Weight monitoring. Detail how the IFQ first receiver will
ensure that all catch is weighed and the process used to meet the catch
weighing requirements specified at paragraph (j) of this section. If a
catch monitoring plan proposes the use of totes in which IFQ species
will be weighed, or a deduction for the weight of ice, the catch
monitoring plan must detail how the process will accurately account for
the weight of ice and/or totes.
(6) Delivery points. Identify specific delivery points where catch
is removed from an IFQ vessel. The delivery point is the first location
where fish removed from a delivering catcher vessel can be sorted or
diverted to more than one location. If the catch is pumped from the
hold of a catcher vessel or a codend, the delivery point will be the
location where the pump first discharges the catch. If catch is removed
from a vessel by brailing, the delivery point normally will be the bin
or belt where the brailer discharges the catch.
(7) Observation area. Designate and describe the observation area.
The observation area is a location where a catch monitor may monitor
the flow of fish during a delivery, including: access to the
observation area, the flow of fish, and lighting used during periods of
limited visibility. Standards for the observation area are specified at
paragraph (i)(4)(ii) of this section.
(8) Lockable cabinet. Identify the location of a secure, dry, and
lockable cabinet or locker with the minimum interior dimensions of two
feet wide by two feet tall by two feet deep for the exclusive use of
the catch monitor, NMFS staff, or authorized officers.
(9) Plant liaison. Identify the designated plant liaison. The plant
liaison responsibilities are specified at paragraph (i)(6) of this
section.
[[Page 53428]]
(10) First receiver diagram. The catch monitoring plan must be
accompanied by a diagram of the plant showing:
(i) The delivery point(s);
(ii) The observation area;
(iii) The lockable cabinet;
(iv) The location of each scale used to weigh catch; and
(v) Each location where catch is sorted.
(D) Catch monitoring plan acceptance period and changes. NMFS will
accept a catch monitoring plan if it meets the performance standards
specified in paragraph (f)(3)(iii)(C) of this section. For the first
receiver site license to remain in effect through the calendar year, an
owner or manager must notify NMFS in writing of any and all changes
made in IFQ first receiver operations or layout that do not conform to
the catch monitoring plan.
(E) Changing a NMFS-accepted catch monitoring plan. An owner and
manager may change an accepted catch monitoring plan by submitting a
plan addendum to NMFS. NMFS will accept the modified catch monitoring
plan if it continues to meet the performance standards specified in
paragraph (f)(3)(iii)(C) of this section. Depending on the nature and
magnitude of the change requested, NMFS may require an additional catch
monitoring plan inspections. A catch monitoring plan addendum must
contain:
(1) Name and signature of the person submitting the addendum;
(2) Address, telephone number, fax number and e-mail address (if
available) of the person submitting the addendum;
(3) A complete description of the proposed catch monitoring plan
change.
(iv) Completed EDC form. A first receiver site license application
must include a complete economic data collection form as required under
Sec. 660.113(b), subpart D. The application for a first receiver site
license will be marked incomplete until the required information is
submitted.
(4) Initial administrative determination. For all complete
applications, NMFS will issue an IAD that either approves or
disapproves the application. If approved, the IAD will include a first
receiver site license. If disapproved, the IAD will provide the reasons
for this determination.
(5) Effective date. The first receiver site license is effective
upon approval and issuance by NMFS and will be effective for one year
from the date of NMFS issuance.
(6) Reissuance in subsequent years. Existing license holders must
reapply annually. If the existing license holder fails to reapply, the
first receiver's site license will expire one year from the date of
NMFS issuance of the license. The first receiver will not be authorized
to receive or process groundfish IFQ species if their first receiver
site license has expired.
(7) Change in ownership of an IFQ first receiver. If there are any
changes to the owner of a first receiver registered to a first receiver
site license during a calendar year, the first receiver site license is
void. The new owner of the first receiver must apply to NMFS for a
first receiver site license. A first receiver site license is not
transferrable by the license holder to any other person.
(8) Fees. The Regional Administrator is authorized to charge fees
for administrative costs associated with processing the application
consistent with the provisions given at Sec. 660.25(f), subpart C.
(9) Appeals. If NMFS does not accept the first receiver site
license application through an IAD, the applicant may appeal the IAD
consistent with the general permit appeals process defined at Sec.
660.25(g), subpart C.
(g) Retention requirements (whiting and non-whiting vessels)--(1)
Non-whiting vessels. Vessels participating in the Shoreside IFQ Program
other than vessels participating in the Pacific whiting IFQ fishery
(non-whiting vessels) may discard IFQ species/species groups, provided
such discards are accounted for and deducted from QP in the vessel
account. Non-whiting vessels must discard Pacific halibut and the
discard mortality must be accounted for and deducted from IBQ pounds in
the vessel account. Non-whiting vessels may discard non-IFQ species and
non-groundfish species. The sorting of catch, the weighing and
discarding of any IBQ and IFQ species, and the retention of IFQ species
must be monitored by the observer.
(2) Whiting maximized retention vessels. Maximized retention
vessels participating in the Pacific whiting IFQ fishery are prohibited
from discarding any IFQ species/species group and nongroundfish
species.
(3) Whiting vessels sorting at-sea. Vessels participating in the
Pacific whiting IFQ fishery that sort their catch at sea (whiting
vessels sorting at-sea) may discard IFQ species/species groups,
provided such discards are accounted for and deducted from QP in the
vessel account. Whiting vessels sorting at sea must discard Pacific
halibut and such discard mortality must be accounted for and deducted
from IBQ pounds in the vessel account. Whiting vessels sorting at-sea
may discard non-IFQ species and non-groundfish species. The sorting of
catch, weighing and discarding of any IFQ or IBQ species must be
monitored by the observer.
(h) Observer requirements--(1) Coverage requirements. (i) Any
vessel participating in the Shorebased IFQ Program must carry a NMFS-
certified observer during any trip until all fish from that trip have
been offloaded. If a vessel delivers fish from an IFQ trip to more than
one IFQ first receiver, the observer must remain onboard the vessel
during any transit between delivery points.
(ii) The observer deployment limitations and workload. Observer
must not be deployed for more than 22 calendar days in a calendar
month. The observer program may issue waivers to allow observers to
work more than 22 calendar days per month when it's anticipated one
trip will last over 20 days or for issues with observer availability
due to illness or injury of other observers.
(A) If an observer is unable to perform their duties for any
reason, the vessel is required to be in port within 36 hours of the
last haul sampled by the observer.
(B) [Reserved]
(iii) Any boarding refusal on the part of the observer or vessel is
immediately reported to the observer program and NOAA OLE by the
observer provider. The observer must be available for an interview with
the observer program or NOAA OLE if necessary.
(2) Vessel responsibilities--(i) Accommodations and food. (A)
Accommodations and food for trips less than 24 hours must be equivalent
to those provided for the crew.
(B) Accommodations and food for trips of 24 hours or more must be
equivalent to those provided for the crew and must include berthing
space, a space that is intended to be used for sleeping and is provided
with installed bunks and mattresses. A mattress or futon on the floor
or a cot is not acceptable if a regular bunk is provided to any crew
member, unless other arrangements are approved in advance by the
Regional Administrator or their designee.
(ii) Safe conditions. (A) Maintain safe conditions on the vessel
for the protection of observers including adherence to all U.S. Coast
Guard and other applicable rules, regulations, statutes, and guidelines
pertaining to safe operation of the vessel, including, but not limited
to rules of the road, vessel stability, emergency drills, emergency
equipment, vessel maintenance, vessel general condition and port bar
crossings. An observer may refuse boarding or reboarding a vessel and
may request a vessel to return to
[[Page 53429]]
port if operated in an unsafe manner or if unsafe conditions are
identified.
(B) Have on board: A valid Commercial Fishing Vessel Safety Decal
that certifies compliance with regulations found in 33 CFR Chapter I
and 46 CFR Chapter I, a certificate of compliance issued pursuant to 46
CFR 28.710 or a valid certificate of inspection pursuant to 46 U.S.C.
3311.
(iii) Computer hardware and software. [Reserved]
(iv) Vessel position. Allow observer(s) access to the vessel's
navigation equipment and personnel, on request, to determine the
vessel's position.
(v) Access. Allow observer(s) free and unobstructed access to the
vessel's bridge, trawl or working deck, holding bins, sorting areas,
cargo hold, and any other space that may be used to hold, process,
weigh, or store fish at any time.
(vi) Prior notification. Notify observer(s) at least 15 minutes
before fish are brought on board to allow sampling the catch.
(vii) Records. Allow observer(s) to inspect and copy any state or
Federal logbook maintained voluntarily or as required by regulation.
(viii) Assistance. Provide all other reasonable assistance to
enable observer(s) to carry out their duties, including, but not
limited to:
(A) Measuring decks, codends, and holding bins.
(B) Providing a designated working area on deck for the observer(s)
to collect, sort and store catch samples.
(C) Collecting samples of catch.
(D) Collecting and carrying baskets of fish.
(E) Allowing the observer(s) to collect biological data and
samples.
(F) Providing adequate space for storage of biological samples.
(G) Providing time between hauls to sample and record all catch.
(H) Sorting retained and discarded catch into quota pound
groupings.
(I) Stowing all catch from a haul before the next haul is brought
aboard.
(ix) Sampling station. To allow the observer to carry out the
required duties, the vessel owner must provide an observer sampling
station that is:
(A) Accessible. The observer sampling station must be available to
the observer at all times.
(B) Limits hazards. To the extent possible, the area should be free
and clear of hazards including, but not limited to, moving fishing
gear, stored fishing gear, inclement weather conditions, and open
hatches.
(x) Transfers at sea. Transfers at-sea are prohibited.
(3) Procurement of observer services--(i) Owners of vessels
required to carry observers under paragraph (a)(1) of this section must
arrange for observer services from a permitted observer provider,
except that:
(A) Vessels are required to procure observer services directly from
NMFS when NMFS has determined and given notification that the vessel
must carry NMFS staff or an individual authorized by NMFS in lieu of an
observer provided by a permitted observer provider.
(B) Vessels are required to procure observer services directly from
NMFS and a permitted observer provider when NMFS has determined and
given notification that the vessel must carry NMFS staff and/or
individuals authorized by NMFS, in addition to an observer provided by
a permitted observer provider.
(ii) [Reserved]
(4) Application to become an observer provider. Any observer
provider holding a valid permit issued by the North Pacific observer
program in 2010 can supply observer services to the west coast trawl
fishery and will be issued a West Coast Groundfish Observer Program
permit.
(5) Observer provider responsibilities. Observer providers must:
(i) Provide qualified candidates to serve as observers.
(A) To be qualified, a candidate must have:
(1) A Bachelor's degree or higher from an accredited college or
university with a major in one of the natural sciences;
(2) Successfully completed a minimum of 30 semester hours or
equivalent in applicable biological sciences with extensive use of
dichotomous keys in at least one course;
(3) Successfully completed at least one undergraduate course each
in math and statistics with a minimum of 5 semester hours total for
both; and
(4) Computer skills that enable the candidate to work competently
with standard database software and computer hardware.
(ii) Prior to hiring an observer candidate, the observer provider
must:
(A) Provide the candidate a copy of NMFS-provided pamphlets,
information and other literature describing observer duties, for
example, the West Coast Groundfish Observer Program's sampling manual.
Observer job information is available from the Observer Program
Office's Web site at http://www.nwfsc.noaa.gov/research/divisions/fram/observer/index.cfm.
(B) For each observer employed by an observer provider, have a
written contract or a written contract addendum signed by the observer
and observer provider prior to the observer's deployment with the
following clauses:
(1) That all the observer's in-season catch messages between the
observer and NMFS are delivered to the Observer Program Office as
specified by the Observer Program instructions;
(2) That the observer inform the observer provider prior to the
time of embarkation if he or she is experiencing any new mental illness
or physical ailments or injury since submission of the physician's
statement as required as a qualified observer candidate that would
prevent him or her from performing their assigned duties; and
(3) That every observer completes a basic cardiopulmonary
resuscitation/first aid course prior to the end of the NMFS West Coast
Groundfish Observer Training class.
(iii) Ensure that observers complete duties in a timely manner.
Observer providers must ensure that observers employed by that observer
provider do the following in a complete and timely manner:
(A) Submit to NMFS all data, logbooks and reports and biological
samples as required under the observer program policy deadlines.
(B) Report for his or her scheduled debriefing and complete all
debriefing responsibilities; and
(C) Return all sampling and safety gear to the Observer Program
Office at the termination of their contract.
(iv) Observers provided to vessel.
(A) Must have a valid West Coast Groundfish observer certification;
(B) Must not have informed the provider prior to the time of
embarkation that he or she is experiencing a mental illness or a
physical ailment or injury developed since submission of the
physician's statement, as required in paragraph (h)(5)(xi)(B) of this
section that would prevent him or her from performing his or her
assigned duties; and
(C) Must have successfully completed all NMFS required training and
briefing before deployment.
(v) Respond to industry requests for observers. An observer
provider must provide an observer for deployment pursuant to the terms
of the contractual relationship with the vessel to fulfill vessel
requirements for observer coverage under paragraphs (h)(5)(xi)(D) of
this section. An alternate observer must be supplied in each case where
injury or illness prevents the observer from performing his or her
duties or where the observer resigns prior to completion of his or her
duties. If the observer provider is unable to respond to an industry
request for observer coverage from a vessel for whom the
[[Page 53430]]
provider is in a contractual relationship due to the lack of available
observers by the estimated embarking time of the vessel, the provider
must report it to NMFS at least 4 hours prior to the vessel's estimated
embarking time.
(vi) Provide observer salaries and benefits. An observer provider
must provide to its observer employees salaries and any other benefits
and personnel services in accordance with the terms of each observer's
contract.
(vii) Provide observer deployment logistics. (A) An observer
provider must ensure each of its observers under contract:
(1) Has an individually assigned mobile or cell phones, in working
order, for all necessary communication. An observer provider may
alternatively compensate observers for the use of the observer's
personal cell phone or pager for communications made in support of, or
necessary for, the observer's duties.
(2) Calls into the NMFS deployment hotline upon departing and
arriving into port for each trip to leave the following information:
observer name, phone number, vessel departing on, expected trip end
date and time.
(3) Remains available to NOAA Office for Law Enforcement and the
Observer Program until the conclusion of debriefing.
(4) Receives all necessary transportation, including arrangements
and logistics, of observers to the initial location of deployment, to
all subsequent vessel assignments during that deployment, and to the
debriefing location when a deployment ends for any reason; and
(5) Receives lodging, per diem, and any other services necessary to
observers assigned to fishing vessels.
(i) An observer under contract may be housed on a vessel to which
he or she is assigned: prior to their vessel's initial departure from
port; for a period not to exceed twenty-four hours following the
completion of an offload when the observer has duties and is scheduled
to disembark; or for a period not to exceed twenty-four hours following
the vessel's arrival in port when the observer is scheduled to
disembark.
(ii) During all periods an observer is housed on a vessel, the
observer provider must ensure that the vessel operator or at least one
crew member is aboard.
(iii) Otherwise, each observer between vessels, while still under
contract with a permitted observer provider, shall be provided with
accommodations in accordance with the contract between the observer and
the observer provider. If the observer provider is responsible for
providing accommodations under the contract with the observer, the
accommodations must be at a licensed hotel, motel, bed and breakfast,
or other shoreside accommodations that has an assigned bed for each
observer that no other person may be assigned to for the duration of
that observer's stay. Additionally, no more than four beds may be in
any room housing observers at accommodations meeting the requirements
of this section.
(viii) Observer deployment limitations and workload. (A) Not deploy
an observer on the same vessel more than 90 calendar days in a 12-month
period, unless otherwise authorized by NMFS.
(B) Not exceed observer deployment limitations and workload as
outlined in paragraph (h)(1)(ii) of this section.
(ix) Verify vessel's safety decal. An observer provider must verify
that a vessel has a valid USCG safety decal as required under paragraph
(h)(2)(ii)(B) of this section before an observer may get underway
aboard the vessel. One of the following acceptable means of
verification must be used to verify the decal validity:
(A) An employee of the observer provider, including the observer,
visually inspects the decal aboard the vessel and confirms that the
decal is valid according to the decal date of issuance; or
(B) The observer provider receives a hard copy of the USCG
documentation of the decal issuance from the vessel owner or operator.
(x) Maintain communications with observers. An observer provider
must have an employee responsible for observer activities on call 24
hours a day to handle emergencies involving observers or problems
concerning observer logistics, whenever observers are at sea, in
transit, or in port awaiting vessel reassignment.
(xi) Maintain communications with the observer program office. An
observer provider must provide all of the following information by
electronic transmission (e-mail), fax, or other method specified by
NMFS.
(A) Observer training, briefing, and debriefing registration
materials. This information must be submitted to the Observer Program
Office at least 7 business days prior to the beginning of a scheduled
West Coast groundfish observer certification training or briefing
session.
(1) Training registration materials consist of the following:
(i) Date of requested training;
(ii) A list of observer candidates that includes each candidate's
full name (i.e., first, middle and last names), date of birth, and
gender;
(iii) A copy of each candidate's academic transcripts and resume;
(iv) A statement signed by the candidate under penalty of perjury
which discloses the candidate's criminal convictions;
(v) Projected observer assignments. Prior to the observer's
completion of the training or briefing session, the observer provider
must submit to the Observer Program Office a statement of projected
observer assignments that include that includes each observer's name,
current mailing address, e-mail address, phone numbers and port of
embarkation (``home port''); and
(vi) Length of observers contract.
(2) Briefing registration materials consist of the following:
(i) Date and type of requested briefing session;
(ii) List of observers to attend the briefing session, that
includes each observer's full name (first, middle, and last names);
(iii) Projected observer assignments. Prior to the observer's
completion of the training or briefing session, the observer provider
must submit to the Observer Program Office a statement of projected
observer assignments that includes each observer's name, current
mailing address, e-mail address, phone numbers and port of embarkation
(``home port''); and
(iv) Length of observer contract.
(3) Debriefing. The West Coast Groundfish Observer Program will
notify the observer provider which observers require debriefing and the
specific time period the provider has to schedule a date, time, and
location for debriefing. The observer provider must contact the West
Coast Groundfish Observer program within 5 business days by telephone
to schedule debriefings.
(i) Observer providers must immediately notify the observer program
when observers end their contract earlier than anticipated.
(ii) [Reserved]
(B) Physical examination. A signed and dated statement from a
licensed physician that he or she has physically examined an observer
or observer candidate. The statement must confirm that, based on that
physical examination, the observer or observer candidate does not have
any health problems or conditions that would jeopardize that
individual's safety or the safety of others while deployed, or prevent
the observer or observer candidate from performing his or her duties
satisfactorily. The statement must declare that, prior to the
examination, the physician was made aware of the duties of the observer
and the
[[Page 53431]]
dangerous, remote, and rigorous nature of the work by reading the NMFS-
prepared information. The physician's statement must be submitted to
the Observer Program Office prior to certification of an observer. The
physical exam must have occurred during the 12 months prior to the
observer's or observer candidate's deployment. The physician's
statement will expire 12 months after the physical exam occurred. A new
physical exam must be performed, and accompanying statement submitted,
prior to any deployment occurring after the expiration of the
statement.
(C) Certificates of insurance. Copies of ``certificates of
insurance'', that names the NMFS Observer Program leader as the
``certificate holder'', shall be submitted to the Observer Program
Office by February 1 of each year. The certificates of insurance shall
verify the following coverage provisions and state that the insurance
company will notify the certificate holder if insurance coverage is
changed or canceled.
(1) Maritime Liability to cover ``seamen's'' claims under the
Merchant Marine Act (Jones Act) and General Maritime Law ($1 million
minimum).
(2) Coverage under the U.S. Longshore and Harbor Workers'
Compensation Act ($1 million minimum).
(3) States Worker's Compensation as required.
(4) Commercial General Liability.
(D) Observer provider contracts. If requested, observer providers
must submit to the Observer Program Office a completed and unaltered
copy of each type of signed and valid contract (including all
attachments, appendices, addendums, and exhibits incorporated into the
contract) between the observer provider and those entities requiring
observer services under paragraph (h)(1)(i) of this section. Observer
providers must also submit to the Observer Program Office upon request,
a completed and unaltered copy of the current or most recent signed and
valid contract (including all attachments, appendices, addendums, and
exhibits incorporated into the contract and any agreements or policies
with regard to observer compensation or salary levels) between the
observer provider and the particular entity identified by the Observer
Program or with specific observers. The copies must be submitted to the
Observer Program Office via e-mail, fax, or mail within 5 business days
of the request. Signed and valid contracts include the contracts an
observer provider has with:
(1) Vessels required to have observer coverage as specified at
paragraph (h)(1)(i) of this section; and
(2) Observers.
(E) Change in observer provider management and contact information.
An observer provider must submit to the Observer Program office any
change of management or contact information submitted on the provider's
permit application under paragraphs (h)(4) of this section within 30
days of the effective date of such change.
(F) Biological samples. The observer provider must ensure that
biological samples are stored/handled properly prior to delivery/
transport to NMFS.
(G) Observer status report. Each Tuesday, observer providers must
provide NMFS with an updated list of contact information for all
observers that includes the observer's name, mailing address, e-mail
address, phone numbers, port of embarkation (``home port''), fishery
deployed the previous week and whether or not the observer is ``in
service'', indicating when the observer has requested leave and/or is
not currently working for the provider.
(H) Providers must submit to NMFS, if requested, copies of any
information developed and used by the observer providers distributed to
vessels, such as informational pamphlets, payment notification,
description of observer duties, etc.
(I) Other reports. Reports of the following must be submitted in
writing to the West Coast Groundfish Observer Program Office by the
observer provider via fax or e-mail address designated by the Observer
Program Office within 24 hours after the observer provider becomes
aware of the information:
(1) Any information regarding possible observer harassment;
(2) Any information regarding any action prohibited under Sec.
660.112 or Sec. 600.725(o), (t) and (u);
(3) Any concerns about vessel safety or marine casualty under 46
CFR 4.05-1 (a)(1) through (7);
(4) Any observer illness or injury that prevents the observer from
completing any of his or her duties described in the observer manual;
and
(5) Any information, allegations or reports regarding observer
conflict of interest or breach of the standards of behavior described
in observer provider policy.
(xii) Replace lost or damaged gear. An observer provider must
replace all lost or damaged gear and equipment issued by NMFS to an
observer under contract to that provider. All replacements must be in
accordance with requirements and procedures identified in writing by
the Observer Program Office.
(xiii) Maintain confidentiality of information. An observer
provider must ensure that all records on individual observer
performance received from NMFS under the routine use provision of the
Privacy Act or as otherwise required by law remain confidential and are
not further released to anyone outside the employ of the observer
provider company to whom the observer was contracted except with
written permission of the observer.
(xiv) Must meet limitations on conflict of interest. Observer
providers:
(A) Must not have a direct financial interest, other than the
provision of observer services, in the North Pacific or Pacific coast
fishery managed under an FMP for the waters off the coasts of Alaska,
Washington, Oregon, and California, including, but not limited to,
(1) Any ownership, mortgage holder, or other secured interest in a
vessel, or shoreside processors facility involved in the catching,
taking, harvesting or processing of fish,
(2) Any business involved with selling supplies or services to any
vessel or shoreside processors participating in a fishery managed
pursuant to an FMP in the waters off the coasts of Alaska, California,
Oregon, and Washington, or
(3) Any business involved with purchasing raw or processed products
from any vessel or shoreside processor participating in a fishery
managed pursuant to an FMP in the waters off the coasts of Alaska,
California, Oregon, and Washington.
(B) Must assign observers without regard to any preference by
representatives of vessels other than when an observer will be
deployed.
(C) Must not solicit or accept, directly or indirectly, any
gratuity, gift, favor, entertainment, loan, or anything of monetary
value except for compensation for providing observer services from
anyone who conducts fishing or fish processing activities that are
regulated by NMFS in the Pacific coast or North Pacific regions, or who
has interests that may be substantially affected by the performance or
nonperformance of the official duties of observer providers.
(xv) Must develop and maintain a policy addressing observer conduct
and behavior for their employees that serve as observers.
(A) The policy shall address the following behavior and conduct
regarding:
(1) Observer use of alcohol;
(2) Observer use, possession, or distribution of illegal drugs and;
(3) Sexual contact with personnel of the vessel or processing
facility to which the observer is assigned, or with any vessel or
processing plant personnel who may be substantially affected by the
performance or non-performance of the observer's official duties.
[[Page 53432]]
(B) An observer provider shall provide a copy of its conduct and
behavior policy to each observer candidate and to the Observer Program
by February 1 of each year.
(xvi) Refuse to deploy an observer on a requesting vessel if the
observer provider has determined that the requesting vessel is
inadequate or unsafe pursuant to those described at Sec. 600.746 or
U.S. Coast Guard and other applicable rules, regulations, statutes, or
guidelines pertaining to safe operation of the vessel.
(6) Observer certification and responsibilities--(i) Applicability.
Observer certification authorizes an individual to fulfill duties as
specified in writing by the NMFS Observer Program Office while under
the employ of a NMFS-permitted observer provider and according to
certification requirements as designated under paragraph (h)(6)(iii) of
this section.
(ii) Observer certification official. The Regional Administrator
will designate a NMFS observer certification official who will make
decisions for the Observer Program Office on whether to issue or deny
observer certification.
(iii) Certification requirements--(A) Initial certification. NMFS
may certify individuals who, in addition to any other relevant
considerations:
(1) Are employed by an observer provider company permitted pursuant
to Sec. 660.140(h) at the time of the issuance of the certification;
(2) Have provided, through their observer provider:
(i) Information identified by NMFS at Sec. 660.140(h) regarding an
observer candidate's health and physical fitness for the job;
(ii) Meet all observer candidate education and health standards as
specified in Sec. 660.140(h); and
(iii) Have successfully completed NMFS-approved training as
prescribed by the West Coast Groundfish Observer Program.
(B) Successful completion of training by an observer applicant
consists of meeting all attendance and conduct standards issued in
writing at the start of training; meeting all performance standards
issued in writing at the start of training for assignments, tests, and
other evaluation tools; and completing all other training requirements
established by the Observer Program.
(C) Have not been decertified under paragraph (h)(6)(ix) of this
section.
(iv) Denial of Certification. The NMFS observer certification
official will issue a written determination denying observer
certification if the candidate fails to successfully complete training,
or does not meet the qualifications for certification for any other
relevant reason.
(v) Issuance of an observer certification. An observer
certification may be issued upon determination by the observer
certification official that the candidate has successfully met all
requirements for certification as specified at paragraph (h)(6)(iii) of
this section. The following endorsements must be obtained in addition
to observer certification, in order for an observer deploy.
(A) West Coast Groundfish Observer Program training certification
endorsement. A training certification endorsement signifies the
successful completion of the training course required to obtain
observer certification. This endorsement expires when the observer has
not been deployed and performed sampling duties as required by the
observer Program office for a period of time, specified by the Observer
Program, after his or her most recent debriefing. The observer can
renew the endorsement by successfully completing training once more.
(B) West Coast Groundfish Observer Program annual general
endorsement. Each observer must obtain an annual general endorsement to
their certification prior to his or her first deployment within any
calendar year subsequent to a year in which a training certification
endorsement is obtained. To obtain an annual general endorsement, an
observer must successfully complete the annual briefing, as specified
by the Observer Program. All briefing attendance, performance, and
conduct standards required by the Observer Program must be met.
(C) West Coast Groundfish Observer Program deployment endorsement.
Each observer who has completed an initial deployment after their
certification or annual briefing must receive a deployment endorsement
to their certification prior to any subsequent deployments for the
remainder of that year. An observer may obtain a deployment endorsement
by successfully completing all briefing requirements, when applicable.
The type of briefing the observer must attend and successfully complete
will be specified in writing by the Observer Program during the
observer's most recent debriefing.
(vi) Maintaining the validity of an observer certification. After
initial issuance, an observer must keep their certification valid by
meeting all of the following requirements specified below:
(A) Successfully perform their assigned duties as described in the
Observer Manual or other written instructions from the Observer Program
Office including calling into the NMFS deployment hotline upon
departing and arriving into port each trip to leave the following
information: observer name, phone number, vessel name departing on,
date and time of departure and date and time of expected return.
(B) Accurately record their sampling data, write complete reports,
and report accurately any observations of suspected violations of
regulations relevant to conservation of marine resources or their
environment.
(C) Not disclose collected data and observations made on board the
vessel or in the processing facility to any person except the owner or
operator of the observed vessel or an authorized officer or NMFS.
(D) Successfully complete NMFS-approved annual briefings as
prescribed by the West Coast Groundfish Observer Program.
(E) Successful completion of briefing by an observer applicant
consists of meeting all attendance and conduct standards issued in
writing at the start of training; meeting all performance standards
issued in writing at the start of training for assignments, tests, and
other evaluation tools; and completing all other briefing requirements
established by the Observer Program.
(F) Hold current basic cardiopulmonary resuscitation/first aid
certification as per American Red Cross Standards.
(G) Successfully meet all expectations in all debriefings including
reporting for assigned debriefings.
(H) Submit all data and information required by the observer
program within the program's stated guidelines.
(I) Meet the minimum annual deployment period of 3 months at least
once every 12 months.
[Alternative 1 for Paragraph (h)(6)(vii) (Council-Deemed)]
(vii) Limitations on conflict of interest. Observers:
(A) Must not have a direct financial interest in the vessels on
which the observers are stationed or in the first receivers to which
those vessels make deliveries, other than the provision of observer
services.
(B) Must not solicit or accept, directly or indirectly, any
gratuity, gift, favor, entertainment, loan, or anything of monetary
value from anyone who either conducts activities that are regulated by
NMFS in the Pacific coast or North Pacific regions or has interests
that may be substantially affected by the performance or nonperformance
of the observers' official duties.
[[Page 53433]]
(C) May not serve as observers on any vessel or at any shore-based
processor owned or operated by a person who employed the observer in
the last two years.
(D) May not solicit or accept employment as a crew member or an
employee of a vessel or shore-based processor while employed by an
observer provider.
(E) Provisions for remuneration of observers under this section do
not constitute a conflict of interest.
[Alternative 2 for Paragraph (h)(6)(vii) (NMFS-Proposed)]
(vii) Limitations on conflict of interest. Observers:
(A) Must not have a direct financial interest, other than the
provision of observer services, in a fishery managed pursuant to an FMP
for the waters off the coast of Alaska, or in a Pacific Coast fishery
managed by either the State or Federal governments in waters off
Washington, Oregon, or California, including but not limited to:
(1) Any ownership, mortgage holder, or other secured interest in a
vessel, shore-based or floating stationary processor facility involved
in the catching, taking, harvesting or processing of fish,
(2) Any business involved with selling supplies or services to any
vessel, shore-based or floating stationary processing facility; or
(3) Any business involved with purchasing raw or processed products
from any vessel, shore-based or floating stationary processing
facilities.
(B) Must not solicit or accept, directly or indirectly, any
gratuity, gift, favor, entertainment, loan, or anything of monetary
value from anyone who either conducts activities that are regulated by
NMFS in the Pacific coast or North Pacific regions or has interests
that may be substantially affected by the performance or nonperformance
of the observers' official duties.
(C) May not serve as observers on any vessel or at any shore-based
owned or operated by a person who employed the observer in the last two
years.
(D) May not solicit or accept employment as a crew member or an
employee of a vessel or shore-based processor while employed by an
observer provider.
(E) Provisions for remuneration of observers under this section do
not constitute a conflict of interest.
(viii) Standards of behavior. Observers must:
(A) Perform their duties as described in the Observer Manual or
other written instructions from the Observer Program Office.
(B) Report to the Observer Program office and the NOAA OLE any time
they refuse to board a vessel.
(C) Accurately record their sampling data, write complete reports,
and report accurately any observations of suspected violations of
regulations relevant to the conservation of marine resources of their
environment.
(D) Not disclose collected data and observations made on board the
vessel to any person except the owner or operator of the observed
vessel, an authorized officer, or NMFS.
(ix) Suspension and decertification--(A) Suspension and
decertification review official. The Regional Administrator (or a
designee) will designate an observer suspension and decertification
review official(s), who will have the authority to review observer
certifications and issue initial administrative determinations of
observer certification suspension and/or decertification.
(B) Causes for suspension or decertification. The suspension and
decertification official may initiate suspension or decertification
proceedings against an observer:
(1) When it is alleged that the observer has not met applicable
standards, including any of the following:
(i) Failed to satisfactorily perform duties as described or
directed by the observer program; or
(ii) Failed to abide by the standards of conduct for observers,
including conflicts of interest;
(2) Upon conviction of a crime or upon entry of a civil judgment
for:
(i) Commission of fraud or other violation in connection with
obtaining or attempting to obtain certification, or in performing the
duties as specified in writing by the NMFS Observer Program;
(ii) Commission of embezzlement, theft, forgery, bribery,
falsification or destruction of records, making false statements, or
receiving stolen property;
(iii) Commission of any other offense indicating a lack of
integrity or honesty that seriously and directly affects the fitness of
observers.
(C) Issuance of initial administrative determination. Upon
determination that suspension or decertification is warranted, the
suspension/decertification official will issue a written IAD to the
observer via certified mail at the observer's most current address
provided to NMFS. The IAD will identify whether a certification is
suspended or revoked and will identify the specific reasons for the
action taken.
(D) Appeals. A certified observer who receives an IAD that suspends
or revokes his or her observer certification may appeal within 30 of
issuance of the IAD to the Office of Administrative Appeals pursuant to
Sec. 679.43.
(i) Catch monitor requirements for IFQ first receivers--(1) Catch
monitor coverage requirements. A catch monitor is required be present
at each IFQ first receiver whenever an IFQ landing is received, unless
the first receiver has been granted a written waiver from the catch
monitor requirements by NMFS.
(2) Procurement of catch monitor services. Owners or managers of
each IFQ first receiver must arrange for catch monitor services from a
certified catch monitor provider prior to accepting IFQ landings. IFQ
first receivers are responsible for all associated costs including
training time, debriefing time, and lodging while deployed.
(3) Catch monitor safety. (i) Each IFQ first receiver must adhere
to all applicable rules, regulations, or statutes pertaining to safe
operation and maintenance of a processing and/or receiving facility.
(ii) The working hours of each individual catch monitor will be
limited as follows:
(A) An individual catch monitor shall not be required or permitted
to work more than 16 hours per calendar day, with maximum of 14 hours
being work other than the summary and submission of catch monitor data.
(B) Following monitoring shift of more than 10 hours, each catch
monitor must be provided with a minimum 6 hours break before they may
resume monitoring.
(4) Catch monitor access. (i) Each IFQ first receiver must allow
catch monitors free and unobstructed access to the catch throughout the
sorting process and the weighing process.
(ii) The IFQ first receiver must ensure that there is an
observation area available to the catch monitor that meets the
following standards:
(A) Access to the observation area. The observation area must be
freely accessible to NMFS staff, NMFS-authorized personnel, or
authorized officers at any time a valid catch monitoring plan is
required.
(B) Monitoring the flow of fish. The catch monitor must have an
unobstructed view or otherwise be able to monitor the entire flow of
fish between the delivery point and a location where all sorting has
takes place and each species has been weighed.
(C) Adequate lighting. Adequate lighting must be provided during
periods of limited visibility.
(iii) Each IFQ first receiver must allow catch monitors free and
unobstructed access to any documentation required
[[Page 53434]]
by regulation including fish tickets, scale printouts and scale test
results.
(iv) Each IFQ first receiver must provide the catch monitors free
and unobstructed access to a telephone line during the hours that
Pacific whiting is being processed at the facility and 30 minutes after
the processing of the last delivery each day.
(5) Lockable cabinet. Each IFQ first receiver must provide a
secure, dry, and lockable cabinet or locker with the minimum interior
dimensions of two feet wide by two feet tall by two feet deep for the
exclusive use the catch monitor and NMFS staff or NMFS-authorized
agents.
(6) Plant liaison for the catch monitor. Each IFQ first receiver
must designate a plant liaison. The plant liaison is responsible for:
(i) Orienting new catch monitors to the facility;
(ii) Assisting in the resolution of catch monitoring concerns; and
(iii) Informing NMFS if changes must be made to the catch
monitoring plan.
(7) Reasonable assistance. Each IFQ first receiver must provide
reasonable assistance to the catch monitors to enable each catch
monitor to carry out his or her duties. Reasonable assistance includes,
but is not limited to: Informing the monitor when bycatch species will
be weighed, and providing a secure place to store equipment and gear.
(j) Catch weighing requirements--(1) Catch monitoring plan. All
first receivers must operate under a NMFS-accepted catch monitoring
plan.
(2) Sorting and weighing IFQ landings--(i) Approved scales. The
owner of an IFQ first receiver must ensure that all IFQ species
received from a vessel making an IFQ landing are weighed on a scale(s)
that meets the requirements specified at Sec. 660.15(c).
(ii) Printed record. All scales identified in the catch monitoring
plan accepted by NMFS during the first receiver site license
application process, must produce a printed record for each delivery,
or portion of a delivery, weighed on that scale, with the following
exception: If approved by NMFS as part of the catch monitoring plan,
scales not designed for automatic bulk weighing may be exempted from
part or all of the printed record requirements. The printed record must
include:
(A) The first receiver's name;
(B) The weight of each load in the weighing cycle;
(C) The total weight of fish in each landing, or portion of the
landing that was weighed on that scale;
(D) The date the information is printed; and
(E) The name and vessel registration or documentation number of the
vessel making the delivery. The scale operator may write this
information on the scale printout in ink at the time of printing.
(iii) Scales that may be exempt from printed report. An IFQ first
receiver that receives no more than 200,000 pounds of groundfish in any
calendar month will be exempt from the requirement to produce a printed
record provided that:
(A) The first receiver has not previously operated under a catch
monitoring plan where a printed record was required;
(B) The first receiver ensures that all catch is weighed; and
(C) The catch monitor, NMFS staff, or authorized officer can verify
that all catch is weighed.
(iv) Retention of printed records. An IFQ first receiver must
maintain printouts on site until the end of the fishing year during
which the printouts were made and make them available upon request by
NMFS staff or an authorized officer for 3 years after the end of the
fishing year during which the printout was made.
(v) Weight monitoring. An IFQ first receiver must ensure that it is
possible for the catch monitor, NMFS staff, or authorized officer to
verify the weighing of all catch.
(vi) Catch sorting. All fish delivered to the plant must be sorted
and weighed by species as specified at Sec. 660.130(d).
(vii) Complete sorting. Sorting and weighing must be completed
prior to catch leaving the area that can be monitored from the catch
monitor's observation area.
(viii) Pacific whiting. For Pacific Whiting taken with midwater
trawl gear, IFQ first receivers may use an in-line conveyor or hopper
type scale to derive an accurate total catch weight prior to sorting.
Immediately following weighing of the total catch and prior to
processing or transport away from the point of landing, the catch must
be sorted to the species groups specified at Sec. 660.130(d) and all
incidental catch (groundfish and non groundfish species) must be
accurately weighed and the weight of incidental catch deducted from the
total catch weight to derive the weight of target species.
(ix) For all other IFQ landings the following weighing standards
apply:
(A) A belt or automatic hopper scale may be used to weigh all of
the catch prior to sorting. All but a single predominant species must
then be reweighed.
(B) An in-line conveyor or automatic hopper scale may be used to
weigh the predominant species after catch has been sorted. Other
species must be weighed in a manner that facilitates tracking of the
weights of those species.
(C) IFQ species or species group may be weighed in totes on a
platform scale capable of printing a label or tag and recording the
label or tag information to memory for printing a report as specified
at Sec. 660.15. The label or tag must remain affixed to the tote until
the tote is emptied. The label or tag must show the following
information:
(1) The species or species group;
(2) The weight of the fish in the tote;
(3) The date the label or tag was printed; and
(4) The vessel name.
(D) Totes and ice. If a catch monitoring plan proposes the use of
totes in which fish will be weighed, or a deduction for the weight of
ice, the deduction must be accurately accounted for. No deduction may
be made for the weight of water or slime. This standard may be met by:
(1) Taring the empty or pre-iced tote on the scale prior to filling
with fish;
(2) Labeling each tote with an individual tare weight. This weight
must be accurate within 500 grams (1 pound if scale is denominated in
pounds) for any given tote and the average error for all totes may not
exceed 200 grams (8 ounces for scales denominated in pounds);
(3) An alternate approach approved by NMFS. NMFS will only approve
approaches that do not involve the estimation of the weight of ice or
the weight of totes and allow NMFS staff or an authorized officer to
verify that the deduction or tare weight is accurate.
(E) An alternate approach accepted by NMFS in the catch monitoring
plan.
(3) IFQ first receiver responsibilities relative to catch weighing
and monitoring of catch weighing. The owner of an IFQ first receiver
must:
(i) General. (A) Ensure that all IFQ landings are sorted and
weighed as specified at Sec. 660.130(d) and in accordance with an
approved catch monitoring plan.
(ii) Catch monitors, NMFS staff, and authorized officers. (A) Have
a catch monitor on site the entire time an IFQ landing is being
offloaded, sorted, or weighed.
(B) Notify the catch monitor of the offloading schedule.
(C) Provide catch monitors, NMFS staff, or an authorized officer
with unobstructed access to any areas where IFQ species are or may be
sorted or weighed at any time IFQ species are being landed or
processed.
(D) Allow catch monitors, NMFS staff, or an authorized officer to
observe the
[[Page 53435]]
weighing of catch on the scale and to read the scale display at any
time.
(E) Ensure that printouts of the scale weight of each delivery or
offload are made available to catch monitors, NMFS staff, or an
authorized officer at the time printouts are generated.
(4) Scale tests. (i) All testing must meet the scale test standards
specified at Sec. 660.15(c).
(ii) Inseason scale testing. First receivers must allow, and
provide reasonable assistance to a catch monitor, NMFS staff or an
authorized officer to test scales used to weigh IFQ catch. A scale that
does not pass an inseason test may not be used to weigh IFQ catch until
the scale passes an inseason test or is approved for continued use by
the weights and measures authorities of the State in which the scale is
located.
(k) Gear switching. (1) Participants in the Shorebased IFQ Program
may take IFQ species using any legal groundfish non-trawl gear (i.e.,
gear switching) and are exempt from the gear endorsements at Sec.
660.25(b)(3) for limited entry fixed gear permits, provided the
following requirements are met:
(i) The vessel must be registered to a limited entry trawl permit.
(ii) The vessel must be registered to a vessel account that is not
in deficit on any IFQ species.
(iii) The vessel operator must have submitted a valid gear
declaration for the trip that declares ``Limited entry groundfish non-
trawl, shorebased IFQ,'' as specified in Sec. 660.13(d)(5)(iv)(A), and
does not declare any other designation (a Shorebased IFQ Program trip
may not be combined with any other designation).
(iv) The vessel must comply with prohibitions applicable to limited
entry fixed gear fishery as specified at Sec. 660.212, gear
restrictions applicable to limited entry fixed gear as specified in
Sec. Sec. 660.219 and 660.230(b), and management measures specified in
Sec. 660.230(d), including restrictions on the fixed gear allowed
onboard, its usage, and applicable fixed gear groundfish conservation
area restrictions, except that the vessel will not be subject to
limited entry fixed gear trip limits when fishing in the Shorebased IFQ
Program.
(v) The vessel must comply with the limited entry trawl trip limits
for species/species groups not covered under the Shorebased IFQ Program
or whiting trip limits outside the primary season.
(vi) The vessel must comply with recordkeeping and reporting
requirements applicable to limited entry trawl gear as specified in
Sec. 660.113.
(vii) The vessel must comply with and observer requirements and all
other provisions of the Shoreside IFQ Program as specified in this
section.
(2) [Reserved]
(l) Adaptive management program--(1) General. The adaptive
management program (AMP) is a set-aside of 10 percent of the non-
whiting QS to address the following objectives:
(i) Community stability;
(ii) Processor stability;
(iii) Conservation;
(iv) Unintended/unforeseen consequences of IFQ management; or
(v) Facilitating new entrants.
(2) Years one and two. The 10 percent of non-whiting QS will be
reserved for the AMP during years one and two of the Shorebased IFQ
Program, but the resulting AMP QP will be issued to all QS permit
owners in proportion to their non-whiting QS during years one and two.
23. In Sec. 660.150;
a. Paragraph (g)(1) introductory text is revised, and paragraph
(g)(1)(v) is removed;
b. Paragraph (a) introductory text and paragraphs (a)(3), (a)(4),
(d), (f)(3), and (g)(3)(i)(C) are revised;
c. Paragraphs (b), (c), (e), (f)(2), (f)(4), (g)(1)(iv), (g)(2),
(g)(3)(ii), (g)(4), and (h) through (k) are added; and
d. Paragraph (l) is removed to read as follows:
Sec. 660.150 Mothership (MS) Coop Program.
(a) General. The MS Coop Program requirements in this section will
be effective beginning January 1, 2011, except for paragraphs (f)(3),
(f)(5), (f)(6), (g)(3), (g)(5), and (g)(6) of this section, which are
effective immediately. The MS Coop Program is a general term to
describe the limited access program that applies to eligible harvesters
and processors in the mothership sector of the Pacific whiting at-sea
trawl fishery. Eligible harvesters and processors, including coop and
non-coop fishery participants, must meet the requirements set forth in
this section of the Pacific Coast groundfish regulations. Each year a
vessel registered to a MS/CV-endorsed permit may fish in either the
coop or non-coop portion of the MS Coop Program, but not both. In
addition to the requirements of this section, the MS Coop Program is
subject to the following groundfish regulations of subparts C and D:
* * * * *
(3) Regulations set out in the following sections of subpart C:
Sec. 660.11 Definitions, Sec. 660.12 Prohibitions, Sec. 660.13
Recordkeeping and reporting, Sec. 660.14 VMS requirements, Sec.
660.15 Equipment requirements, Sec. 660.16 Groundfish Observer
Program, Sec. 660.20 Vessel and gear identification, Sec. 660.25
Permits, Sec. 660.55 Allocations, Sec. 660.60 Specifications and
management measures, Sec. 660.65 Groundfish harvest specifications,
and Sec. Sec. 660.70 through 660.79 Closed areas.
(4) Regulations set out in the following sections of subpart D:
Sec. 660.111 Trawl fishery definitions, Sec. 660.112 Trawl fishery
prohibitions, Sec. 660.113 Trawl fishery recordkeeping and reporting,
Sec. 660.120 Trawl fishery crossover provisions, Sec. 660.130 Trawl
fishery management measures, and Sec. 660.131 Pacific whiting fishery
management measures.
* * * * *
(b) Participation requirements and responsibilities--(1) Mothership
vessels. (i) Mothership vessel participation requirements. A vessel is
eligible to receive and process catch as a mothership in the MS Coop
Program if:
(A) The vessel is registered to a MS permit;
(B) The vessel is not used to fish as a catcher vessel in the
mothership sector of the Pacific whiting fishery in the same calendar
year; and
(C) The vessel is not used to fish as a C/P in the Pacific whiting
fishery in the same calendar year.
(ii) Mothership vessel responsibilities. The owner and operator of
a mothership vessel must:
(A) Recordkeeping and reporting. Maintain a valid declaration as
specified at Sec. 660.13(d), subpart C; and, maintain and submit all
records and reports specified at Sec. 660.113(c) including, economic
data, scale tests records, and cease fishing reports.
(B) Observers. As specified at paragraph (j) of this section,
procure observer services, maintain the appropriate level of coverage,
and meet the vessel responsibilities.
(C) Catch weighing requirements. The owner and operator of a MS
vessel must:
(1) Ensure that all catch is weighed in its round form on a NMFS-
approved scale that meets the requirements described in section Sec.
660.15(b), subpart C;
(2) Provide a NMFS-approved platform scale, belt scale, and test
weights that meet the requirements described in section Sec.
660.15(b), subpart C.
(2) Mothership catcher vessels--(i) Mothership catcher vessel
participation requirements--(A) A vessel is eligible to harvest in the
MS Coop Program if the following conditions are met:
(1) If the vessel is used to fish as a mothership catcher vessel
for a permitted MS coop, the vessel is
[[Page 53436]]
registered to a limited entry permit with a trawl endorsement and NMFS
has been notified that the vessel is authorized to fish for the coop.
(2) If the vessel is used to harvest fish in the non-coop fishery,
the vessel is registered to a MS/CV endorsed limited entry permit.
(3) The vessel is not used to harvest fish or process as a
mothership or catcher/processor vessel in the same calendar year.
(4) The vessel does not catch more than 30 percent of the Pacific
whiting allocation for the mothership sector.
(B) [Reserved]
(ii) Mothership catcher vessel responsibilities--(A) Observers. As
specified at paragraph (j) of this section, procure observer services,
maintain the appropriate level of coverage, and meet the vessel
responsibilities.
(B) Recordkeeping and reporting. Maintain a valid declaration as
specified at Sec. 660.13(d), subpart C; and, maintain and submit all
records and reports specified at Sec. 660.113(c) including, economic
data and scale tests records, if applicable.
(3) MS coops--(i) MS coop participation requirements. For a MS coop
to participate in the Pacific whiting mothership sector fishery it
must:
(A) Be issued a MS coop permit;
(B) Be composed of MS/CV endorsed limited entry permit owners;
(C) Be formed voluntarily;
(D) Be a legally recognized entity that represents its members;
(E) Designate an individual as a coop manager; and
(F) Include at least 20 percent of all MS/CV endorsed permits as
members. The coop membership percentage will be interpreted by rounding
to the nearest whole permit (i.e. zero up to 0.5 rounds down and 0.5 up
to 1.0 rounds up).
(ii) MS coop responsibilities. A MS coop is responsible for:
(A) Applying for and being registered to a MS coop permit;
(B) Organizing and coordinating harvest activities of vessels
authorized to fish for the coop;
(C) Reassigning catch history assignments for use by coop members;
(D) Organizing and coordinating the transfer and leasing of catch
allocations with other permitted coops through inter-coop agreements;
(E) Monitoring harvest activities and enforcing the catch limits of
coop members;
(F) Submitting an annual report.
(G) Having a designated coop manager. The designated coop manager
must:
(1) Serve as the contact person between NMFS, the Council, and
other coops;
(2) Be responsible for the annual distribution of catch and bycatch
allocations among coop members;
(3) Oversee reassignment of catch allocations within the coop;
(4) Oversee inter-coop catch allocation reassignments;
(5) Prepare and submit an annual report on behalf of the coop;
(6) Be authorized to receive or respond to any legal process in
which the coop is involved; and
(7) Notify NMFS if the coop dissolves.
(iii) MS coop compliance and joint/several liability. An MS coop
must comply with the provisions of this section. The MS coop, member
limited entry permit owners, and owners and operators of vessels
registered to member limited entry permits, are jointly and severally
responsible for compliance with the provisions of this section.
Pursuant to 15 CFR part 904, each MS coop, member permit owner, and
owner and operator of a vessel registered to a coop member permit may
be charged jointly and severally for violations of the provisions of
this section. For purposes of enforcement, an MS coop is a legal entity
that can be subject to NOAA enforcement action for violations of the
provisions of this section.
(c) MS Coop Program species and allocations--(1) MS Coop Program
species. MS Coop Program species are as follows:
(i) Species with formal allocations to the MS Coop Program are
Pacific whiting, canary rockfish, darkblotched rockfish, Pacific Ocean
perch, and widow rockfish;
(ii) Species with set-asides for the MS and C/P Coop Programs
combined, as described in Tables 1d and 2d, subpart C.
(2) Annual mothership sector sub-allocations. Annual allocation
amount(s) will be determined using the following procedure:
(i) MS/CV catch history assignments. Catch history assignments will
be based on catch history using the following methodology:
(A) Pacific whiting catch history assignment. For each MS/CV
endorsed limited entry permit, the permit's entire catch history
assignment of Pacific whiting will be annually allocated to a single
permitted MS coop or to the non-coop fishery. A MS/CV endorsed permit
owner cannot divide the permit's catch history assignment between more
than one MS coop or between a coop and the non-coop fishery for that
year. Once assigned to a permitted MS coop or to the non-coop fishery,
the permit's catch history assignment remains with that permitted MS
coop or non-coop fishery for that calendar year. When the mothership
sector allocation is established through the final Pacific whiting
specifications, the information for the conversion of catch history
assignment to pounds will be made available to the public through a
Federal Register announcement and/or public notice and/or the NMFS Web
site. The amount of whiting from the catch history assignment will be
issued to the nearest whole pound using standard rounding rules (i.e.
zero up to 0.5 rounds down and 0.5 up to 1.0 rounds up).
(B) Non-whiting groundfish species catch--(1) Non-whiting
groundfish species with a mothership sector allocation will be divided
annually between the permitted coops and the non-coop fishery. The
pounds associated with each permitted MS coop will be provided when the
coop permit is issued.
(2) Groundfish species with at-sea sector set-asides will be
managed on an annual basis unless there is a risk of a harvest
specification being exceeded, unforeseen impact on another fisheries,
or conservation concerns in which case inseason action may be taken.
Set asides may be adjusted through the biennial specifications and
management measures process as necessary.
(3) Groundfish species not addressed in paragraph (1) or (2) above,
will be managed on an annual basis unless there is a risk of a harvest
specification being exceeded, unforeseen impact on another fisheries,
or conservation concerns in which case inseason action may be taken.
(4) Halibut set-asides. Annually a specified amount of the Pacific
halibut will be held in reserve as a shared set-aside for bycatch in
the at-sea Pacific whiting fisheries and the shorebased trawl sector
south of 40[deg]10' N lat.
(ii) Annual coop allocations--(A) Pacific whiting. Each permitted
MS coop is authorized to harvest a quantity of Pacific whiting that is
based on the sum of the catch history assignments for each member MS/CV
endorsed permit identified in the NMFS-accepted coop agreement for a
given calendar year. Other limited entry permits registered to vessels
that will fish for the coop do not bring catch allocation to a
permitted MS coop.
(B) Non-whiting groundfish with allocations. Sub-allocations of
non-whiting groundfish species with allocations to permitted MS coops
will be in proportion to the Pacific whiting
[[Page 53437]]
catch history assignments assigned to each permitted MS coop.
(iii) Annual non-coop allocation--(A) Pacific whiting. The non-coop
whiting fishery is authorized to harvest a quantity of Pacific whiting
that is remaining in the mothership sector annual allocation after the
deduction of all coop allocations.
(B) Non-whiting groundfish with allocations. The sub-allocation to
the non-coop fishery will be in proportion to the mothership catcher
vessel Pacific whiting catch history assignments for the non-coop
fishery.
(C) Announcement of the non-coop fishery allocations. Information
on the amount of Pacific whiting and non-whiting groundfish with
allocations that will be made available to the non-coop fishery when
the final Pacific whiting specifications for the mothership sector is
established and will be announced to the public through a Federal
Register announcement and/or public notice and/or the NMFS Web site.
(3) Reaching an allocation or sub-allocation. When the mothership
sector Pacific whiting allocation, Pacific whiting sub-allocation, or
non-whiting groundfish catch allocation is reached or is projected to
be reached, the following action may be taken:
(i) Further harvesting, receiving or at-sea processing by a
mothership or catcher vessel in the mothership sector is prohibited
when the mothership sector Pacific whiting allocation or non-whiting
groundfish allocation is projected to be reached. No additional
unprocessed groundfish may be brought on board after at-sea processing
is prohibited, but a mothership may continue to process catch that was
on board before at-sea processing was prohibited. Pacific whiting may
not be taken and retained, possessed, or landed by a catcher vessel
participating in the mothership sector.
(ii) When a permitted MS coop sub-allocation of Pacific whiting or
non-whiting groundfish species is reached, further harvesting or
receiving of groundfish by vessels fishing in the permitted MS coop
must cease, unless the permitted MS coop is operating under an NMFS-
accepted inter-coop agreement.
(iii) When the non-coop fishery sub-allocation of Pacific whiting
or non-whiting groundfish species is projected to be reached, further
harvesting or receiving of groundfish by vessels fishing in under the
non-coop fishery must cease.
(4) Non-whiting groundfish species reapportionment. This paragraph
describes the process for reapportioning non-whiting groundfish species
with allocations between permitted MS coops and the catcher/processor
sector. Reapportionment of mothership sector allocations to the
catcher/processor will not occur until all permitted MS coops and the
non-coop fishery have been closed by NMFS or have informed NMFS that
they have ceased operations for the remainder of the calendar year.
(i) Within the mothership sector. The Regional Administrator may
make available for harvest to permitted coops and the non-coop fishery
that have not notified NMFS that they have ceased fishing for the year,
the amounts of a permitted MS coop's non-whiting catch allocation
remaining when a coop reaches its Pacific whiting allocation or when
the designated coop manager notifies NMFS that a permitted coop has
ceased fishing for the year. The reapportioned allocations will be in
proportion to their original allocations.
(ii) Between the mothership and catcher/processor sectors. The
Regional Administrator may make available for harvest to the catcher/
processor sector of the Pacific whiting fishery, the amounts of the
mothership sector's non-whiting catch allocation remaining when the
Pacific whiting allocation is reached or participants in the sector do
not intend to harvest the remaining allocation. The designated coop
manager, or in the case of an inter-coop, all of the designated coop
managers must submit a cease fishing report to NMFS indicating that
harvesting has concluded for the year. At any time after greater than
80 percent of the Mothership sector Pacific whiting allocation has been
harvested, the Regional Administrator may contact designated coop
managers to determine whether they intend to continue fishing. When
considering redistribution of non-whiting catch allocation, the
Regional Administrator will take in to consideration the best available
data on total projected fishing impacts. Reapportionment between
permitted MS coops and the non-coop fishery within the mothership
sector will be in proportion to their original coop allocations for the
calendar year.
(iii) Set-aside species. No inseason management actions are
associated with set asides.
(5) Announcements. The Regional Administrator will announce in the
Federal Register when the mothership sector or the allocation of
Pacific whiting or non-whiting groundfish with an allocation is
reached, or is projected to be reached, and specify the appropriate
action. In order to prevent exceeding an allocation and to avoid
underutilizing the resource, prohibitions against further taking and
retaining, receiving, or at-sea processing of Pacific whiting, or
reapportionment of non-whiting groundfish with allocations may be made
effective immediately by actual notice to fishers and processors, by e-
mail, Internet (http://www.nwr.noaa.gov/Groundfish-Halibut/Groundfish-Fishery-Management/Whiting-Management/index.cfm), phone, fax, letter,
press release, and/or USCG Notice to Mariners (monitor channel 16 VHF),
followed by publication in the Federal Register, in which instance
public comment will be sought for a reasonable period of time
thereafter.
(6) Redistribution of annual allocation--(i) Between permitted MS
coops (inter-coop). (A) Through an inter-coop agreement, the designated
coop managers of permitted MS coops may distribute Pacific whiting and
non-whiting groundfish allocations among one or more permitted MS
coops, provided the processor obligations at paragraph (c)(7) of this
section have been met or a mutual agreement exception at paragraph
(c)(7)(iv) of this section has been submitted to NMFS.
(B) In the case of a MS coop failure during the Pacific whiting
primary season for the mothership sector, unused allocation associated
with the catch history will not be available for harvest by the coop
that failed, by any former members of the coop that failed, or any
other MS coop for the remainder of that calendar year.
(ii) Between the MS coop and non-coop fisheries. Pacific whiting
may not be redistributed between the coop and non-coop fisheries.
(ii) Between Pacific whiting sectors. Pacific whiting may not be
redistributed between the mothership sector and catcher/processor
sector. Whiting may not be redistributed to the Shorebased IFQ Program.
(7) Processor obligation and mutual agreement exceptions--(i)
Processor obligation. Through the annual MS/CV endorsed limited entry
permit renewal process, the MS/CV endorsed permit owner must identify
to NMFS to which MS permit the MS/CV permit owner intends to obligate
the catch history assignment associated with that permit if they are
participating in the MS coop fishery. Only one MS permit may be
designated (the obligation may not be split among MS permits).
(ii) Expiration of a processor obligation. Processor obligations
expire at the end of each calendar year when the MS Coop Permit
expires.
(iii) Processor obligation when MS coop allocation is
redistributed. When a permitted MS coop redistributes Pacific whiting
allocation within the permitted
[[Page 53438]]
MS coop or from one permitted MS coop to another permitted MS coop
through an inter-coop agreement, such allocations must be delivered to
the mothership registered to the MS permit to which the allocation was
obligated under the processor obligation submitted to NMFS, unless a
mutual agreement exception has been submitted to NMFS.
(iv) Mutual agreement exception. A MS/CV endorsed permit's catch
history assignment can be released from a processor obligation through
a mutual agreement exception. The MS/CV endorsed permit owner must
submit a copy to NMFS of the written agreement that includes the
initial MS permit owner's acknowledgment of the release of the MS/CV
endorsed permit owner's processor obligation and the MS/CV endorsed
permit owner must identify a processor obligation for a new MS permit.
(v) MS permit withdrawal. If a MS permit withdraws from the
mothership fishery before the resulting amounts of catch history
assignment have been announced by NMFS, any MS/CV endorsed permit
obligated to the MS permit may elect to participate in the coop or non-
coop fishery. In such an event, the MS permit owner must provide
written notification of its withdrawal to NMFS and all MS/CV-endorsed
permits that are obligated to the MS permit, and the owner of each MS/
CV-endorsed permit obligated to the MS permit must provide written
notification to NMFS of their intent to either participate in the non-
coop fishery or the coop fishery, and if participating in the coop
fishery must identify a processor obligation for a new MS permit.
(vi) Submission of a mutual agreement exception or MS permit
withdrawal. Written notification of a mutual exception agreement or MS
permit withdrawal must be submitted to NMFS, Northwest Region, Permits
Office, Bldg. 1, 7600 Sand Point Way NE., Seattle, WA 98115.
(d) MS coop permit and agreement--(1) Eligibility and registration.
(i) Eligibility. To be an eligible coop entity a group of MS/CV
endorsed permit owners (coop members) must be a recognized entity under
the laws of the United States or the laws of a State and represent all
of the coop members.
(ii) Annual registration and deadline. Each year, a coop entity
intending to participate as a coop under the MS Coop Program must
submit an application for a MS coop permit between February 1 and March
31 of the year in which it intends to fish. NMFS will not consider any
applications received after March 31. A MS coop permit expires on
December 31 of the year in which it was issued.
(iii) Application for MS coop permit. The designated coop manager,
on behalf of the coop entity, must submit a complete application form
and include each of the items listed in paragraph (A) below. Only
complete applications will be considered for issuance of a MS coop
permit. An application will not be considered complete if any required
application fees and annual coop reports have not been received by
NMFS. NMFS may request additional supplemental documentation as
necessary to make a determination of whether to approve or disapprove
the application. Application forms and instruction are available on the
NMFS NWR Web site (http://www.nwr.noaa.gov) or by request from NMFS.
The designated coop manager must sign the application acknowledging the
responsibilities of a designated coop manager defined in paragraph
(b)(3) of this section.
(A) Coop agreement. Signed copies of the coop agreement must be
submitted to NMFS and the Council and available for public review
before the coop is authorized to engage in fishing activities. A coop
agreement must include all of the information listed in this paragraph
to be considered a complete coop agreement. NMFS will only review
complete coop agreements. A coop agreement will not be accepted unless
it includes all of the required information; the descriptive items
listed in this paragraph appear to meet the stated purpose; and
information submitted is correct and accurate.
(1) Coop agreement contents. Each coop agreement must be signed by
all of the coop members (MS/CV endorsed permit owners) and include the
following information:
(i) A list of all vessels, and permit holders participating in the
coop and their share of the allocated catch which must match the amount
distributed to individual permit owners by NMFS.
(ii) All MS/CV endorsed limited entry member permits identified by
permit number.
(iii) A processor obligation clause indicating that each MS/CV
endorsed permit has notified a specific MS permit by September 1 of the
previous year of that MS/CV endorsed permit's intent to obligate its
catch history assignment to that MS permit.
(iv) A clause indicting that each member MS/CV endorsed permit's
catch history assignment is based on the catch history assignment
calculation by NMFS used for distribution to the coop.
(v) A description of the coop's plan to adequately monitor and
account for the catch of Pacific whiting and non-whiting groundfish
allocations, and to monitor and account for the catch of prohibited
species.
(vi) A clause stating that if a permit is transferred during the
effective period of the coop agreement, any new owners of that member
permit would be coop members required to comply with membership
restrictions in the coop agreement.
(vii) A description of the coop's enforcement and penalty
provisions adequate to maintain catch of Pacific whiting and non-
whiting groundfish within the allocations.
(viii) A description of measures to reduce catch of overfished
species.
(ix) A clause describing the co-op manager's responsibility for
managing inter-coop reassignments of catch history assignment, should
any occur.
(x) A clause describing how the annual report will be produced to
document the coop's catch, bycatch data, inseason catch history
reassignments and any other significant activities undertaken by the
coop during the year, and the submission deadlines for that report.
(xi) Identification of the designated coop manager.
(xii) A requirement that agreement by at least a majority of the
members is required to dissolve the coop.
(xiii) Provisions that prohibit member permit owners that have
incurred legal sanctions that prevent them from fishing groundfish in
the Council region from fishing in the coop.
(2) Department of Justice correspondence. Each coop must submit a
letter to the Department of Justice requesting a business review letter
on the fishery coop. Copies of the letter and any correspondence with
the Department of Justice regarding the request must be included in the
application to NMFS for a MS Coop Permit.
(3) Inter-coop agreement. The coop entity must provide, at the time
of annual application, copies of any inter-coop agreement(s) into which
the coop has entered. Such agreements must incorporate and honor the
provisions of the individual coop agreements for each coop that is a
party to the inter-coop agreement. Inter-coop agreements are specified
at paragraph (e) of this section.
(B) Acceptance of a coop agreement--(1) If NMFS does not accept the
coop agreement, the coop permit application will be returned to the
applicant with a letter stating the reasons the coop agreement was not
accepted by NMFS.
[[Page 53439]]
(2) Coop agreements that are not accepted may be resubmitted for
review by sufficiently addressing the deficiencies identified in the
NMFS letter and resubmitting the entire coop permit application by the
date specified in the NMFS letter.
(3) An accepted coop agreement that was submitted with the MS coop
permit application and for which a MS coop permit was issued will
remain in place through the end of the calendar year. The designated
coop manager must resubmit a complete coop agreement to NMFS consistent
with the coop agreement contents described in paragraph
(d)(1)(iii)(A)(1) of this section if there is a material change to the
coop agreement.
(4) Within 7 calendar days following a material change, the
designated coop manager must notify NMFS of the material change. Within
30 calendar days, the designated coop manager must submit to NMFS the
revised coop agreement with a letter that describes such changes. NMFS
will review the material changes and provide a letter to the coop
manager that either accepts the changes as given or does not accept the
revised coop agreement with a letter stating the reasons that it was
not accepted by NMFS. The coop may resubmit the coop agreement with
further revisions to the material changes responding to NMFS concerns.
(iv) Effective date of MS coop permit. A MS coop permit will be
effective upon the date approved by NMFS and will allow fishing from
the start of the MS sector primary whiting season until the end of the
calendar year or until one or more of the following events occur,
whichever comes first:
(A) NMFS permanently closes the mothership sector fishing season
for the year or a specific MS coop or the designated coop manager
notifies NMFS that the coop has completed fishing for the calendar
year,
(B) The coop has reached its Pacific whiting allocation,
(C) A material change to the coop agreement has occurred and the
designated coop manager failed to notify NMFS within 7 calendar days of
the material change and submit to NMFS the revised coop agreement with
a letter that describes such changes within 30 calendar days, or
(D) NMFS has determined that a coop failure occurred.
(2) Initial administrative determination. For all complete
applications, NMFS will issue an IAD that either approves or
disapproves the application. If approved, the IAD will include a MS
coop permit. If disapproved, the IAD will provide the reasons for this
determination.
(3) Appeals. An appeal to a MS coop permit action follows the same
process as the general permit appeals process defined at Sec.
660.25(g), subpart C.
(4) Fees. The Regional Administrator is authorized to charge fees
for administrative costs associated with the issuance of a MS coop
permit consistent with the provisions given at Sec. 660.25(f), subpart
C.
(5) Cost recovery. [Reserved]
(e) Inter-coop agreements--(1) General. Permitted MS coops may
voluntarily enter into inter-coop agreements for the purpose of sharing
permitted MS coop allocations of Pacific whiting and allocated non-
whiting groundfish. If two or more permitted MS coops enter into an
inter-coop agreement, the inter-coop agreement must incorporate and
honor the provisions of each permitted MS coop subject to the inter-
coop agreement.
(3) Submission of inter-coop agreements. Inter-coop agreements must
be submitted to NMFS for acceptance.
(4) Inter-coop agreement review process. Each designated coop
manager must submit a copy of the inter-coop agreement signed by both
designated coop managers for review. Complete coop agreements
containing all items listed under paragraph (d)(1)(iii)(A)(1) will be
reviewed by NMFS.
* * * * *
(f) * * *
(2) Renewal, change of permit ownership, or vessel registration--
(i) Renewal. A MS permit must be renewed annually consistent with the
limited entry permit regulations given at Sec. 660.25(b)(4), subpart
C. If a vessel registered to the MS permit will operate as a mothership
in the year for which the permit is renewed, the permit owner must make
a declaration as part of the permit renewal that while participating in
the whiting fishery it will operate solely as a mothership during the
calendar year to which its limited entry permit applies. Any such
declaration is binding on the vessel for the calendar year, even if the
permit is transferred during the year, unless it is rescinded in
response to a written request from the permit owner. Any request to
rescind a declaration must be made by the permit holder and granted in
writing by the Regional Administrator before any unprocessed whiting
has been taken on board the vessel that calendar year.
(ii) Change of permit ownership. A MS permit is subject to the
limited entry permit change in permit ownership regulations given at
Sec. 660.25(b)(4), subpart C.
(iii) Change of vessel registration. A MS permit is subject to the
limited entry permit change of vessel registration regulations given at
Sec. 660.25(b)(4), subpart C.
(3) Accumulation limits--(i) MS permit usage limit. No person who
owns an MS permit(s) may register the MS permit(s) to vessels that
cumulatively process more than 45 percent of the annual mothership
sector Pacific whiting allocation. For purposes of determining
accumulation limits, NMFS requires that permit owners submit a complete
trawl ownership interest form for the permit owner as part of annual
renewal for the MS permit. An ownership interest form will also be
required whenever a new permit owner obtains a MS permit as part of a
permit transfer request. Accumulation limits will be determined by
calculating the percentage of ownership interest a person has in any MS
permit. Determination of ownership interest will subject to the
individual and collective rule.
(ii) Ownership--individual and collective rule. The ownership that
counts toward a person's accumulation limit will include:
(A) Any MS permit owned by that person, and
(B) A portion of any MS permit owned by an entity in which that
person has an interest, where the person's share of interest in that
entity will determine the portion of that entity's ownership that
counts toward the person's limit.
(iii) [Reserved]
(iv) Trawl identification of ownership interest form. Any person
that is applying for or renewing an MS permit shall document those
persons that have an ownership interest in the permit greater than or
equal to 2 percent. This ownership interest must be documented with the
SFD via the Trawl Identification of Ownership Interest Form. SFD will
not issue an MS Permit unless the Trawl Identification of Ownership
Interest Form has been completed. NMFS may request additional
information of the applicant as necessary to verify compliance with
accumulation limits.
(4) Appeals. An appeal to a MS permit action follows the same
process as the general permit appeals process defined at Sec.
660.25(g), subpart C.
* * * * *
(g) Mothership catcher vessel (MS/CV) endorsed permit--(1) General.
Any vessel that delivers whiting to a mothership processor in the
Pacific whiting fishery mothership sector must be registered to an MS/
CV-endorsed permit, except that a vessel registered to
[[Page 53440]]
limited entry trawl permit without an MS/CV or C/P endorsement may fish
for a coop if authorized by the coop. Within the MS Coop Program, an
MS/CV endorsed permit may participate in an MS coop or in the non-coop
fishery. A MS/CV endorsed permit is a limited entry permit and is
subject to the limited entry permit provisions given at Sec.
660.25(b), subpart C.
* * * * *
(iv) Restrictions on processing for MS/CV endorsed permits. A
vessel registered to an MS/CV-endorsed permit in a given year shall not
engage in processing of Pacific whiting during that year.
* * * * *
(2) Renewal, change of permit owner, vessel registration, or
combination--(i) Renewal. A MS/CV endorsed permit must be renewed
annually consistent with the limited entry permit regulations given at
Sec. 660.25(b)(4), subpart C. During renewal, all MS/CV endorsed
limited entry permit owners must make a preliminary declaration
regarding their intent to participate in the coop or non-coop portion
of the MS Coop Program for the following year. If the owner of the MS/
CV endorsed permit intends to participate in the coop portion of the MS
Coop Program, they must also declare which MS vessel to which they
intend to obligate the permit's catch history assignment. MS/CV
endorsed permits not obligated to a permitted MS coop by March 31 of
the fishing year will be assigned to the non-coop fishery. For an MS/CV
endorsed permit that is not renewed, the following occurs:
(A) For the first year after the permit is not renewed, the permit
will be extinguished, and the catch history assignment from that permit
will be assigned to the non-coop fishery.
(B) In the year after the permit is extinguished (the second year
after the permit is not renewed), the catch history assignment from
that permit will be redistributed proportionally to all valid MS/CV
endorsed permits.
(ii) Change of permit ownership. A MS/CV endorsed permit is subject
to the limited entry permit change in permit ownership regulations
given at Sec. 660.25(b)(4), subpart C.
(iii) Change of vessel registration. A MS/CV endorsed permit is
subject to the limited entry permit change of vessel registration
regulations given at Sec. 660.25(b)(4), subpart C.
(iv) Combination. An MS/CV endorsed permit may be combined with one
or more other limited entry trawl permits; the resulting permit will be
a single permit with an increased size endorsement. If the MS/CV
endorsed permit is combined with another limited entry trawl-endorsed
permit other than a C/P endorsed permit, the resulting permit will be
MS/CV endorsed. If a MS/CV endorsed permit is combined with a C/P
endorsed permit, the resulting permit will be exclusively a C/P
endorsed permit, and will not have an MS/CV endorsement. If a MS/CV
endorsed permit is combined with another MS/CV endorsed permit, the
combined catch history assignment of the permit(s) will be added to the
active permit (the permit remaining after combination) and the other
permit will be retired. NMFS will not approve a permit combination if
it results in a person exceeding the accumulation limits specified at
paragraph (g)(3) of this section. Any request to combine permits is
subject to the provision provided at Sec. 660.25(b), including the
combination formula for resulting size endorsements.
* * * * *
(3) * * *
(i) * * *
(C) Trawl identification of ownership interest form. Any person
that owns a limited entry trawl permit and that is applying for or
renewing an MS/CV endorsement shall document those persons that have an
ownership interest in the permit greater than or equal to 2 percent.
This ownership interest must be documented with the SFD via the Trawl
Identification of Ownership Interest Form. SFD will not issue an MS/CV
endorsement unless the Trawl Identification of Ownership Interest Form
has been completed. NMFS may request additional information of the
applicant as necessary to verify compliance with accumulation limits.
Further, if SFD discovers through review of the Trawl Identification of
Ownership Interest Form that a person owns or controls more than the
accumulation limits, the person will subject to divestiture provisions
specified in paragraph (g)(3)(i)(D) of this section.
* * * * *
(ii) Catcher vessel usage limit. No vessel may catch more than 30
percent of the mothership sector's whiting allocation.
(4) Appeals. An appeal to a MS/CV endorsed permit action follows
the same process as the general permit appeals process defined at Sec.
660.25(g), subpart C.
* * * * *
(h) Non-coop fishery--(1) Access to non-coop fishery allocation.
All vessels registered to the MS/CV endorsed permits assigned to the
non-coop fishery will have access to harvest and deliver the aggregate
catch history assignment of all MS/CV permits assigned to the non-coop
fishery.
(2) Non-coop fishery closure. The non-coop fishery will be closed
by automatic action as specified at Sec. 660.60(d) when the Pacific
whiting or non-whiting allocations to the non-coop fishery have been
reached or are projected to be reached.
(i) Retention requirements. Catcher vessels participating in the MS
Coop Program may discard minor operational amounts of catch at sea if
the observer has accounted for the discard (i.e., a maximized retention
fishery).
(j) Observer requirements--(1) Observer coverage requirements. (i)
Coverage. (A) Motherships. Any vessel registered to a MS permit 125 ft
(38.1 m) LOA or longer must carry two NMFS-certified observers, and any
vessel registered to a MS permit mothership shorter than 125 ft (38.1
m) LOA must carry one NMFS-certified observer, each day that the vessel
is used to take, retain, receive, land, process, or transport
groundfish.
(B) Catcher vessels. Any vessel delivering catch to any mothership
must carry one NMFS-certified observer each day that the vessel is used
to take groundfish.
(ii) Observer workload--(A) Motherships. The time required for the
observer to complete sampling duties must not exceed 12 consecutive
hours in each 24-hour period.
(B) Catcher vessels. If an observer is unable to perform their
duties for any reason, the vessel is required to be in port within 36
hours of the last haul sampled by the observer.
(iii) Refusal to board. Any boarding refusal on the part of the
observer or vessel is reported to the observer program and NOAA OLE by
the observer provider. The observer must be available for an interview
with the observer program or NOAA OLE if necessary.
(2) Vessel responsibilities. An operator and/or crew of a vessel
required to carry an observer must provide:
(i) Accommodations and food--(A) Motherships. Provide
accommodations and food that are equivalent to those provided for
officers, engineers, foremen, deck-bosses or other management level
personnel of the vessel.
(B) Catcher vessels--(1) Accommodations and food for trips less
than 24 hours must be equivalent to those provided for the crew.
(2) Accommodations and food for trips of 24 hours or more must be
[[Page 53441]]
equivalent to those provided for the crew and must include berthing
space, a space that is intended to be used for sleeping and is provided
with installed bunks and mattresses. A mattress or futon on the floor
or a cot is not acceptable if a regular bunk is provided to any crew
member, unless other arrangements are approved in advance by the
Regional Administrator or their designee.
(ii) Safe conditions. Motherships and Catcher Vessels must:
(A) Maintain safe conditions on the vessel for the protection of
observers including adherence to all U.S. Coast Guard and other
applicable rules, regulations, or statutes pertaining to safe operation
of the vessel including, but not limited to, rules of the road, vessel
stability, emergency drills, emergency equipment, vessel maintenance,
vessel general condition, and port bar crossings. An observer may
refuse boarding or reboarding a vessel and may request a vessel return
to port if operated in an unsafe manner or if unsafe conditions are
indentified.
(B) Have on board a valid Commercial Fishing Vessel Safety Decal
that certifies compliance with regulations found in 33 CFR Chapter I
and 46 CFR Chapter I, a certificate of compliance issued pursuant to 46
CFR 28.710 or a valid certificate of inspection pursuant to 46 U.S.C.
3311.
(iii) Computer hardware and software--(A) Motherships must:
(1) Provide hardware and software pursuant to regulations at
Sec. Sec. 679.50(g)(1)(iii)(B)(1) through 679.50(g)(1)(iii)(B)(3).
(2) Provide the observer(s) access to a computer required under
paragraph (j)(2)(iii)(A) of this section, and that is connected to a
communication device that provides a point-to-point connection to the
NMFS host computer.
(3) Ensure that the mothership has installed the most recent
release of NMFS data entry software provided by the Regional
Administrator, or other approved software prior to the vessel
receiving, catching or processing IFQ species.
(4) Ensure that the communication equipment required in paragraph
(j)(2)(iii) of this section and that is used by observers to enter and
transmit data, is fully functional and operational. ``Functional''
means that all the tasks and components of the NMFS supplied, or other
approved, software described at paragraph (j)(2)(iii) of this section
and the data transmissions to NMFS can be executed effectively aboard
the vessel by the communications equipment.
(B) Catcher vessels. [Reserved]
(iv) Vessel position. Allow observer(s) access to the vessel's
navigation equipment and personnel, on request, to determine the
vessel's position.
(v) Access. Allow observer(s) free and unobstructed access to the
vessel's bridge, trawl or working decks, holding bins, processing
areas, freezer spaces, weight scales, cargo holds, and any other space
that may be used to hold, process, weigh, or store fish or fish
products at any time.
(vi) Prior notification. Notify observer(s) at least 15 minutes
before fish are brought on board, or fish and fish products are
transferred from the vessel, to allow sampling the catch or observing
the transfer.
(vii) Records. Allow observer(s) to inspect and copy any State or
Federal logbook maintained voluntarily or as required by regulation.
(viii) Assistance. Provide all other reasonable assistance to
enable observer(s) to carry out their duties, including, but not
limited to:
(A) Measuring decks, codends, and holding bins.
(B) Providing the observer(s) with a safe work area.
(C) Collecting samples of catch.
(D) Collecting and carrying baskets of fish.
(E) Allowing the observer(s) to collect biological data and
samples.
(F) Providing adequate space for storage of biological samples.
(ix) Sample station and operational requirements.
(A) Motherships. To allow the observer to carry out required
duties, the vessel owner must provide an observer sampling station that
meets the following requirements:
(1) Accessibility. The observer sampling station must be available
to the observer at all times.
(2) Location. The observer sampling station must be located within
4 m of the location from which the observer samples unsorted catch.
(3) Access. Unobstructed passage must be provided between the
observer sampling station and the location where the observer collects
sample catch.
(4) Minimum work space. The observer must have a working area of at
least 4.5 square meters, including the observer's sampling table, for
sampling and storage of fish to be sampled. The observer must be able
to stand upright and have a work area at least 0.9 m deep in the area
in front of the table and scale.
(5) Table. The observer sampling station must include a table at
least 0.6 m deep, 1.2 m wide and 0.9 m high and no more than 1.1 m
high. The entire surface area of the table must be available for use by
the observer. Any area for the observer sampling scale is in addition
to the minimum space requirements for the table. The observer's
sampling table must be secured to the floor or wall.
(6) Diverter board. The conveyor belt conveying unsorted catch must
have a removable board (``diverter board'') to allow all fish to be
diverted from the belt directly into the observer's sampling baskets.
The diverter board must be located downstream of the scale used to
weigh total catch. At least 1 m of accessible belt space, located
downstream of the scale used to weigh total catch, must be available
for the observer's use when sampling.
(7) Other requirements. The sampling station must be in a well-
drained area that includes floor grating (or other material that
prevents slipping), lighting adequate for day or night sampling, and a
hose that supplies fresh or sea water to the observer.
(8) Observer sampling scale. The observer sample station must
include a NMFS-approved platform scale (pursuant to requirements at
Sec. 679.28(j)(2)) with a capacity of at least 50 kg located within 1
m of the observer's sampling table. The scale must be mounted so that
the weighing surface is no more than 0.7 m above the floor.
(B) Catcher vessels. To allow the observer to carry out the
required duties, the vessel owner must provide an observer sampling
station that is:
(1) Accessible. The observer sampling station must be available to
the observer at all times.
(2) Limits hazards. To the extent possible, the area should be free
and clear of hazards including, but not limited to, moving fishing
gear, stored fishing gear, inclement weather conditions, and open
hatches.
(x) Transfer at-sea. Observers may be transferred at-sea between
motherships, between motherships and catcher-processors, or between a
mothership and a catcher vessel. Transfers at-sea between catcher
vessels is prohibited. For transfers, both vessels must:
(A) Ensure that transfers of observers at sea via small boat under
its own power are carried out during daylight hours, under safe
conditions, and with the agreement of observers involved.
(B) Notify observers at least 3 hours before observers are
transferred, such that the observers can finish any sampling work,
collect personal belongings, equipment, and scientific samples.
(C) Provide a safe pilot ladder and conduct the transfer to ensure
the safety of observers during transfers.
[[Page 53442]]
(D) Provide an experienced crew member to assist observers in the
small boat in which any transfer is made.
(3) Procurement of observer services--(i) Motherships--(A) Owners
of vessels required to carry observers under paragraph (j)(1)(i) of
this section must arrange for observer services from a permitted
observer provider, except that:
(1) Vessels are required to procure observer services directly from
NMFS when NMFS has determined and given notification that the vessel
must carry NMFS staff or an individual authorized by NMFS in lieu of an
observer provided by a permitted observer provider.
(2) Vessels are required to procure observer services directly from
NMFS and a permitted observer provider when NMFS has determined and
given notification that the vessel must carry NMFS staff and/or
individuals authorized by NMFS, in addition to an observer provided by
a permitted observer provider.
(B) [Reserved]
(ii) Catcher vessels--(A) Owners of vessels required to carry
observers under paragraph (j)(1)(i) of this section must arrange for
observer services from a permitted observer provider, except that:
(1) Vessels are required to procure observer services directly from
NMFS when NMFS has determined and given notification that the vessel
must carry NMFS staff or an individual authorized by NMFS in lieu of an
observer provided by a permitted observer provider.
(2) Vessels are required to procure observer services directly from
NMFS and a permitted observer provider when NMFS has determined and
given notification that the vessel must carry NMFS staff and/or
individuals authorized by NMFS, in addition to an observer provided by
a permitted observer provider.
(B) [Reserved]
(4) Application to become an observer provider--(i) Mothership
observers. Any observer provider holding a valid permit issued by the
North Pacific Groundfish Observer Program in 2010 can supply observer
services and will be issued a West Coast Groundfish Observer Program
permit.
(ii) Catcher vessel observers. [Reserved]
(5) Observer provider responsibilities--(i) Provide qualified
candidates to serve as observers. Observer providers must provide
qualified candidates to serve as observers. To be qualified, a
candidate must have:
(A) A Bachelor's degree or higher from an accredited college or
university with a major in one of the natural sciences;
(B) Successfully completed a minimum of 30 semester hours or
equivalent in applicable biological sciences with extensive use of
dichotomous keys in at least one course;
(C) Successfully completed at least one undergraduate course each
in math and statistics with a minimum of 5 semester hours total for
both; and
(D) Computer skills that enable the candidate to work competently
with standard database software and computer hardware.
(ii) Prior to hiring an observer candidate--(A) Motherships.
(1) The observer provider must provide the candidate a copy of
NMFS-provided pamphlets, information and other literature describing
observer duties (i.e. The At-Sea Hake Observer Program's Observer
Manual) prior to hiring the candidate. Observer job information is
available from the Observer Program Office's Web site at http://www.nwfsc.noaa.gov/research/divisions/fram/observer/atseahake.cfm.
(2) Observer contracts. The observer provider must have a written
contract or a written contract addendum that is signed by the observer
and observer provider prior to the observer's deployment with the
following clauses:
(i) That all the observer's catch reports required to be sent while
deployed are delivered to the Observer Program Office as specified by
written Observer Program instructions;
(ii) That the observer inform the observer provider prior to the
time of embarkation if he or she is experiencing any new mental illness
or physical ailments or injury that would prevent the candidate from
performing their assigned duties of an observer and which were not
documented in the physician's statement submitted by the candidate;
(iii) That the observer completes duties in a timely manner. An
observer provider must ensure that observers employed by that observer
provider do the following in a complete and timely manner: Once an
observer is scheduled for a final deployment debriefing, submit to NMFS
all data, reports required by the Observer Manual, and biological
samples from the observer's deployment by the completion of the
electronic vessel and/or processor survey(s); report for the scheduled
debriefing and complete all debriefing responsibilities; report to the
observer program office and the NOAA OLE any refusal to board an
assigned vessel.
(iv) That all sampling and safety gear will be returned to the
Observer Program Office.
(B) Catcher vessels--(1) Provide the candidate a copy of NMFS-
provided pamphlets, information and other literature describing
observer duties, for example, the West Coast Groundfish Observer
Program's sampling manual. Observer job information is available from
the Observer Program Office's Web site at http://www.nwfsc.noaa.gov/research/divisions/fram/observer/index.cfm.
(2) For each observer employed by an observer provider, have a
written contract or a written contract addendum that is signed by the
observer and observer provider prior to the observer's deployment with
the following clauses:
(i) That all of the observer's in-season catch messages and catch
reports between the observer and NMFS are delivered to the Observer
Program Office as specified by the Observer Program instructions;
(ii) That the observer inform the observer provider prior to the
time of embarkation if he or she is experiencing any new mental illness
or physical ailments or injury since submission of the physician's
statement as required as a qualified observer candidate that would
prevent him or her from performing their assigned duties;
(iii) That the observer completes a basic cardiopulmonary
resuscitation/first aid course prior to the end of the NMFS West Coast
Groundfish Observer Training class.
(iii) Observers provided to vessels--(A) Motherships. Observers
provided to mothership vessels:
(1) Must have a valid North Pacific groundfish observer
certification endorsements and an At-Sea Hake Observer Program
certification;
(2) Must not have not informed the provider prior to the time of
embarkation that he or she is experiencing a mental illness or a
physical ailment or injury developed since submission of the
physician's statement that would prevent him or her from performing his
or her assigned duties; and
(3) Must have successfully completed all NMFS required training and
briefing before deployment.
(B) Catcher vessels. Observers provided to catcher vessels:
(1) Must have a valid West Coast Groundfish observer certification;
(2) Must have not informed the provider prior to the time of
embarkation that he or she is experiencing a mental illness or a
physical ailment or injury developed since submission of the
physician's
[[Page 53443]]
statement, as required in paragraph (j)(5)(x)(B)(2) of this section
that would prevent him or her from performing his or her assigned
duties; and
(3) Must have successfully completed all NMFS required training and
briefing before deployment.
(iv) Respond to industry requests for observers. An observer
provider must provide an observer for deployment pursuant to the terms
of the contractual relationship with the vessel to fulfill vessel
requirements for observer coverage specified at paragraph (j)(1)(i) of
this section. An alternate observer must be supplied in each case where
injury or illness prevents the observer from performing his or her
duties or where the observer resigns prior to completion of his or her
duties. If the observer provider is unable to respond to an industry
request for observer coverage from a vessel for whom the provider is in
a contractual relationship due to lack of available observers by the
estimated embarking time of the vessel, the provider must report it to
the observer program at least 4 hours prior to the vessel's estimated
embarking time.
(v) Provide observer salaries and benefits. An observer provider
must provide to its observer employees salaries and any other benefits
and personnel services in accordance with the terms of each observer's
contract.
(vi) Provide observer deployment logistics--(A) Motherships. An
observer provider must provide to each of its observers under contract:
(1) All necessary transportation, including arrangements and
logistics, of observers to the initial location of deployment, to all
subsequent vessel assignments during that deployment, and to the
debriefing location when a deployment ends for any reason; and
(2) Lodging, per diem, and any other services necessary to
observers assigned to fishing vessels.
(3) An observer under contract may be housed on a vessel to which
he or she is assigned:
(i) Prior to their vessel's initial departure from port;
(ii) For a period not to exceed twenty-four hours following the
completion of an offload when the observer has duties and is scheduled
to disembark; or
(iii) For a period not to exceed twenty-four hours following the
vessel's arrival in port when the observer is scheduled to disembark.
(iv) During all periods an observer is housed on a vessel, the
observer provider must ensure that the vessel operator or at least one
crew member is aboard.
(v) An observer under contract who is between vessel assignments
must be provided with shoreside accommodations pursuant to the terms of
the contract between the observer provider and the observers. If the
observer provider is responsible for providing accommodations under the
contract with the observer, the accommodations must be at a licensed
hotel, motel, bed and breakfast, or other shoreside accommodations for
the duration of each period between vessel or shoreside assignments.
Such accommodations must include an assigned bed for each observer and
no other person may be assigned that bed for the duration of that
observer's stay. Additionally, no more than four beds may be in any
room housing observers at accommodations meeting the requirements of
this section.
(B) Catcher vessels. An observer provider must ensure each of its
observers under contract:
(1) Has an individually assigned mobile or cell phones, in working
order, for all necessary communication. An observer provider may
alternatively compensate observers for the use of the observer's
personal cell phone or pager for communications made in support of, or
necessary for, the observer's duties.
(2) Calls into the NMFS deployment hotline upon departing and
arriving into port for each trip to leave the following information:
Observer name, phone number, vessel departing on, expected trip end
date and time.
(3) Remains available to NOAA OLE and the Observer Program until
the conclusion of debriefing.
(4) Receives all necessary transportation, including arrangements
and logistics, of observers to the initial location of deployment, to
all subsequent vessel assignments during that deployment, and to the
debriefing location when a deployment ends for any reason; and
(5) Receives lodging, per diem, and any other services necessary to
observers assigned to fishing vessels.
(i) An observer under contract may be housed on a vessel to which
he or she is assigned: Prior to their vessel's initial departure from
port; for a period not to exceed 24 hours following the completion of
an offload when the observer has duties and is scheduled to disembark;
or for a period not to exceed twenty-four hours following the vessel's
arrival in port when the observer is scheduled to disembark.
(ii) During all periods an observer is housed on a vessel, the
observer provider must ensure that the vessel operator or at least one
crew member is aboard.
(iii) Otherwise, each observer between vessels, while still under
contract with a permitted observer provider, shall be provided with
accommodations in accordance with the contract between the observer and
the observer provider. If the observer provider is responsible for
providing accommodations under the contract with the observer, the
accommodations must be at a licensed hotel, motel, bed and breakfast,
or other shoreside accommodations that has an assigned bed for each
observer that no other person may be assigned to for the duration of
that observer's stay. Additionally, no more than four beds may be in
any room housing observers at accommodations meeting the requirements
of this section.
(vii) Observer deployment limitations--(A) Motherships. Unless
alternative arrangements are approved by the Observer Program Office,
an observer provider must not:
(1) Deploy an observer on the same vessel more than 90 days in a
12-month period;
(2) Deploy an observer for more than 90 days in a single
deployment;
(3) Include more than four vessels assignments in a single
deployment, or
(4) Disembark an observer from a vessel before that observer has
completed his or her sampling or data transmission duties.
(B) Catcher vessels. Not deploy an observer on the same vessel more
than 90 calendar days in a 12-month period.
(viii) Verify vessel's safety decal. An observer provider must
verify that a vessel has a valid USCG safety decal as required under
paragraph (j)(2)(ii)(B) of this section before an observer may get
underway aboard the vessel. One of the following acceptable means of
verification must be used to verify the decal validity:
(A) The observer provider or employee of the observer provider,
including the observer, visually inspects the decal aboard the vessel
and confirms that the decal is valid according to the decal date of
issuance; or
(B) The observer provider receives a hard copy of the USCG
documentation of the decal issuance from the vessel owner or operator.
(ix) Maintain communications with observers. An observer provider
must have an employee responsible for observer activities on call 24
hours a day to handle emergencies involving observers or problems
concerning observer logistics, whenever observers are at sea, in
transit, or in port awaiting vessel reassignment.
(x) Maintain Communications With The Observer Program Office. An
observer provider must provide all of
[[Page 53444]]
the following information by electronic transmission (e-mail), fax, or
other method specified by NMFS.
(A) Motherships--(1) Training and briefing registration materials.
The observer provider must submit training and briefing registration
materials to the Observer Program Office at least 5 business days prior
to the beginning of a scheduled observer at-sea hake training or
briefing session.
(i) Registration materials consist of the date of requested
training or briefing with a list of observers including each observer's
full name (i.e., first, middle and last names).
(ii) Projected observer assignments. Prior to the observer's
completion of the training or briefing session, the observer provider
must submit to the Observer Program Office a statement of projected
observer assignments that include the observer's name; vessel, gear
type, and vessel/processor code; port of embarkation; and area of
fishing.
(2) Observer debriefing registration. The observer provider must
contact the At-Sea Hake Observer Program within 5 business days after
the completion of an observer's deployment to schedule a date, time and
location for debriefing. Observer debriefing registration information
must be provided at the time of debriefing scheduling and must include
the observer's name, cruise number, vessel name(s) and code(s), and
requested debriefing date.
(3) Observer provider contracts. If requested, observer providers
must submit to the Observer Program Office a completed and unaltered
copy of each type of signed and valid contract (including all
attachments, appendices, addendums, and exhibits incorporated into the
contract) between the observer provider and those entities requiring
observer services under paragraph (j)(1)(i) of this section. Observer
providers must also submit to the Observer Program Office upon request,
a completed and unaltered copy of the current or most recent signed and
valid contract (including all attachments, appendices, addendums, and
exhibits incorporated into the contract and any agreements or policies
with regard to observer compensation or salary levels) between the
observer provider and the particular entity identified by the Observer
Program or with specific observers. The copies must be submitted to the
Observer Program Office via fax or mail within 5 business days of the
request. Signed and valid contracts include the contracts an observer
provider has with:
(i) Vessels required to have observer coverage as specified at
paragraph (j)(1)(i) of this section; and
(ii) Observers.
(4) Change in observer provider management and contact information.
Observer providers must submit notification of any other change to
provider contact information, including but not limited to, changes in
contact name, phone number, e-mail address, and address.
(5) Other reports. Reports of the following must be submitted in
writing to the At-Sea Hake Observer Program Office by the observer
provider via fax or e-mail address designated by the Observer Program
Office within 24 hours after the observer provider becomes aware of the
information:
(i) Any information regarding possible observer harassment;
(ii) Any information regarding any action prohibited under
Sec. Sec. 660.112 or 600.725(o), (t) and (u);
(iii) Any concerns about vessel safety or marine casualty under 46
CFR 4.05-1 (a)(1) through (7);
(iv) Any observer illness or injury that prevents the observer from
completing any of his or her duties described in the observer manual;
and
(v) Any information, allegations or reports regarding observer
conflict of interest or breach of the standards of behavior described
in observer provider policy.
(B) Catcher vessels. An observer provider must provide all of the
following information by electronic transmission (e-mail), fax, or
other method specified by NMFS.
(1) Observer training, briefing, and debriefing registration
materials. This information must be submitted to the Observer Program
Office at least 7 business days prior to the beginning of a scheduled
West Coast groundfish observer certification training or briefing
session.
(i) Training registration materials consist of the following: Date
of requested training; a list of observer candidates that includes each
candidate's full name (i.e., first, middle and last names), date of
birth, and gender; a copy of each candidate's academic transcripts and
resume; a statement signed by the candidate under penalty of perjury
which discloses the candidate's criminal convictions; projected
observer assignments--Prior to the observer's completion of the
training or briefing session, the observer provider must submit to the
Observer Program Office a statement of projected observer assignments
that include that includes each observer's name, current mailing
address, e-mail address, phone numbers and port of embarkation (``home
port''); and length of observers contract.
(ii) Briefing registration materials consist of the following: Date
and type of requested briefing session; list of observers to attend the
briefing session, that includes each observer's full name (first,
middle, and last names); projected observer assignments--Prior to the
observer's completion of the training or briefing session, the observer
provider must submit to the Observer Program Office a statement of
projected observer assignments that include that includes each
observer's name, current mailing address, e-mail address, phone numbers
and port of embarkation (``home port''); and length of observer
contract.
(iii) Debriefing. The West Coast Groundfish Observer Program will
notify the observer provider which observers require debriefing and the
specific time period the provider has to schedule a date, time, and
location for debriefing. The observer provider must contact the West
Coast Groundfish Observer program within 5 business days by telephone
to schedule debriefings. Observer providers must immediately notify the
observer program when observers end their contract earlier than
anticipated.
(2) Physical examination. A signed and dated statement from a
licensed physician that he or she has physically examined an observer
or observer candidate. The statement must confirm that, based on that
physical examination, the observer or observer candidate does not have
any health problems or conditions that would jeopardize that
individual's safety or the safety of others while deployed, or prevent
the observer or observer candidate from performing his or her duties
satisfactorily. The statement must declare that, prior to the
examination, the physician was made aware of the duties of the observer
and the dangerous, remote, and rigorous nature of the work by reading
the NMFS-prepared information. The physician's statement must be
submitted to the Observer Program Office prior to certification of an
observer. The physical exam must have occurred during the 12 months
prior to the observer's or observer candidate's deployment. The
physician's statement will expire 12 months after the physical exam
occurred. A new physical exam must be performed, and accompanying
statement submitted, prior to any deployment occurring after the
expiration of the statement.
(3) Certificates of insurance. Copies of ``certificates of
insurance,'' that names the NMFS Observer Program leader as the
``certificate holder'', shall be submitted to the Observer Program
Office by February 1 of each year. The
[[Page 53445]]
certificates of insurance shall verify the following coverage
provisions and state that the insurance company will notify the
certificate holder if insurance coverage is changed or canceled.
(i) Maritime Liability to cover ``seamen's'' claims under the
Merchant Marine Act (Jones Act) and General Maritime Law ($1 million
minimum).
(ii) Coverage under the U.S. Longshore and Harbor Workers'
Compensation Act ($1 million minimum).
(iii) States Worker's Compensation as required.
(iv) Commercial General Liability.
(4) Observer provider contracts. If requested, observer providers
must submit to the Observer Program Office a completed and unaltered
copy of each type of signed and valid contract (including all
attachments, appendices, addendums, and exhibits incorporated into the
contract) between the observer provider and those entities requiring
observer services under paragraph (j)(1)(i) of this section. Observer
providers must also submit to the Observer Program Office upon request,
a completed and unaltered copy of the current or most recent signed and
valid contract (including all attachments, appendices, addendums, and
exhibits incorporated into the contract and any agreements or policies
with regard to observer compensation or salary levels) between the
observer provider and the particular entity identified by the Observer
Program or with specific observers. The copies must be submitted to the
Observer Program Office via fax or mail within 5 business days of the
request. Signed and valid contracts include the contracts an observer
provider has with:
(i) Vessels required to have observer coverage as specified at
paragraph (j)(1)(i) of this section; and
(ii) Observers.
(5) Change in observer provider management and contact information.
An observer provider must submit to the Observer Program office any
change of management or contact information submitted on the provider's
permit application under paragraphs (j)(4) of this section within 30
days of the effective date of such change.
(6) Boarding refusals. The observer provider must report to NMFS
any trip that has been refused by an observer within 24 hours of the
refusal.
(7) Biological samples. The observer provider must ensure that
biological samples are stored/handled properly prior to delivery/
transport to NMFS.
(8) Observer status report. Each Tuesday, observer providers must
provide NMFS with an updated list of contact information for all
observers that includes the observer's name, mailing address, e-mail
address, phone numbers, port of embarkation (``home port''), fishery
deployed the previous week and whether or not the observer is ``in
service,'' indicating when the observer has requested leave and/or is
not currently working for the provider.
(9) Providers must submit to NMFS, if requested, copies of any
information developed and used by the observer providers distributed to
vessels, such as informational pamphlets, payment notification,
description of observer duties, etc.
(10) Other reports. Reports of the following must be submitted in
writing to the At-Sea Hake or West Coast Groundfish Observer Program
Office by the observer provider via fax or e-mail address designated by
the Observer Program Office within 24 hours after the observer provider
becomes aware of the information:
(i) Any information regarding possible observer harassment;
(ii) Any information regarding any action prohibited under
Sec. Sec. 660.112 or 600.725(o), (t) and (u);
(iii) Any concerns about vessel safety or marine casualty under 46
CFR 4.05-1 (a)(1) through (7);
(iv) Any observer illness or injury that prevents the observer from
completing any of his or her duties described in the observer manual;
and
(v) Any information, allegations or reports regarding observer
conflict of interest or breach of the standards of behavior described
in observer provider policy.
(xi) Replace lost or damaged gear. An observer provider must
replace all lost or damaged gear and equipment issued by NMFS to an
observer under contract to that provider. All replacements must be in
accordance with requirements and procedures identified in writing by
the Observer Program Office.
(xii) Maintain confidentiality of information. An observer provider
must ensure that all records on individual observer performance
received from NMFS under the routine use provision of the Privacy Act
or as otherwise required by law remain confidential and are not further
released to anyone outside the employ of the observer provider company
to whom the observer was contracted except with written permission of
the observer.
(xiii) Limitations on conflict of interest. Observer providers must
meet limitations on conflict of interest. Observer providers:
(A) Must not have a direct financial interest, other than the
provision of observer services, in the North Pacific or Pacific Coast
Groundfish fishery managed under an FMP for the waters off the coasts
of Alaska, Washington, Oregon, and California, including, but not
limited to,
(1) Any ownership, mortgage holder, or other secured interest in a
vessel, or shoreside processor facility involved in the catching,
taking, harvesting or processing of fish,
(2) Any business involved with selling supplies or services to any
vessel or shoreside processors participating in a fishery managed
pursuant to an FMP in the waters off the coasts of Alaska, California,
Oregon, and Washington, or
(3) Any business involved with purchasing raw or processed products
from any vessel or shoreside processor participating in a fishery
managed pursuant to an FMP in the waters off the coasts of Alaska,
California, Oregon, and Washington.
(B) Must assign observers without regard to any preference by
representatives of vessels other than when an observer will be
deployed.
(C) Must not solicit or accept, directly or indirectly, any
gratuity, gift, favor, entertainment, loan, or anything of monetary
value except for compensation for providing observer services from
anyone who conducts fishing or fish processing activities that are
regulated by NMFS, or who has interests that may be substantially
affected by the performance or nonperformance of the official duties of
observer providers.
(xiv) Observer conduct and behavior. Observer providers must
develop and maintain a policy addressing observer conduct and behavior
for their employees that serve as observers. The policy shall address
the following behavior and conduct regarding:
(A) Observer use of alcohol;
(B) Observer use, possession, or distribution of illegal drugs and;
(C) Sexual contact with personnel of the vessel or processing
facility to which the observer is assigned, or with any vessel or
processing plant personnel who may be substantially affected by the
performance or nonperformance of the observer's official duties.
(D) An observer provider shall provide a copy of its conduct and
behavior policy by February 1 of each year, to: Observers, observer
candidates and; the Observer Program Office.
(xv) Refusal to deploy an observer. Observer providers may refuse
to deploy an observer on a requesting vessel if the observer provider
has determined that the requesting vessel is inadequate or unsafe
pursuant to those regulations described at Sec. 600.746 or U.S. Coast
Guard and other applicable rules, regulations, statutes, or guidelines
[[Page 53446]]
pertaining to safe operation of the vessel.
(6) Observer certification and responsibilities.
(i) Applicability. Observer certification authorizes an individual
to fulfill duties as specified in writing by the NMFS Observer Program
Office while under the employ of a NMFS-permitted observer provider and
according to certification endorsements as designated under paragraph
(j)(6)(iii) of this section.
(ii) Observer certification official. The Regional Administrator
will designate a NMFS observer certification official who will make
decisions for the Observer Program Office on whether to issue or deny
observer certification.
(iii) Certification requirements.
(A) Initial certification. NMFS may certify individuals who, in
addition to any other relevant considerations:
(1) Are employed by an observer provider company permitted pursuant
to Sec. 679.50 at the time of the issuance of the certification;
(2) Have provided, through their observer provider:
(i) Information identified by NMFS at Sec. 679.50 regarding an
observer candidate's health and physical fitness for the job;
(ii) Meet all observer education and health standards as specified
in Sec. 679.50 and
(iii) Have successfully completed NMFS-approved training as
prescribed by the At-Sea Hake and/or the West Coast Groundfish Observer
Program. Successful completion of training by an observer applicant
consists of meeting all attendance and conduct standards issued in
writing at the start of training; meeting all performance standards
issued in writing at the start of training for assignments, tests, and
other evaluation tools; and completing all other training requirements
established by the Observer Program; and having not been decertified
under paragraph (j)(6)(ix) of this section, or pursuant to Sec.
679.50.
(B) [Reserved]
(iv) Denial of a certification. The NMFS observer certification
official will issue a written determination denying observer
certification if the candidate fails to successfully complete training,
or does not meet the qualifications for certification for any other
relevant reason.
(v) Issuance of an observer certification. An observer
certification will be issued upon determination by the observer
certification official that the candidate has successfully met all
requirements for certification as specified at paragraph (j)(6)(iii) of
this section. The following endorsements must be obtained, in addition
to observer certification, in order for an observer to deploy.
(A) Motherships--(1) North Pacific Groundfish Observer Program
certification training endorsement. A certification training
endorsement signifies the successful completion of the training course
required to obtain observer certification. This endorsement expires
when the observer has not been deployed and performed sampling duties
as required by the Observer Program Office for a period of time,
specified by the Observer Program, after his or her most recent
debriefing. The observer can renew the endorsement by successfully
completing certification training once more.
(2) North Pacific Groundfish Observer Program annual general
endorsements. Each observer must obtain an annual general endorsement
to their certification prior to his or her first deployment within any
calendar year subsequent to a year in which a certification training
endorsement is obtained. To obtain an annual general endorsement, an
observer must successfully complete the annual briefing, as specified
by the Observer Program. All briefing attendance, performance, and
conduct standards required by the Observer Program must be met.
(3) North Pacific Groundfish Observer Program deployment
endorsements. Each observer who has completed an initial deployment
after certification or annual briefing must receive a deployment
endorsement to their certification prior to any subsequent deployments
for the remainder of that year. An observer may obtain a deployment
endorsement by successfully completing all pre-cruise briefing
requirements. The type of briefing the observer must attend and
successfully complete will be specified in writing by the Observer
Program during the observer's most recent debriefing.
(4) At-Sea Hake Observer Program endorsements. A Pacific hake
fishery endorsement is required for purposes of performing observer
duties aboard vessels that process groundfish at sea in the Pacific
whiting fishery. A Pacific whiting fishery endorsement to an observer's
certification may be obtained by meeting the following requirements:
(i) Be a prior NMFS-certified observer in the groundfish fisheries
off Alaska;
(ii) Receive an evaluation by NMFS for his or her most recent
deployment that indicated that the observer's performance met Observer
Program expectations for that deployment; successfully complete a NMFS-
approved observer training and/or Pacific whiting briefing as
prescribed by the Observer Program; and comply with all of the other
requirements of this section.
(B) Catcher vessels. The following endorsements must be obtained in
addition to observer certification, in order for an observer to deploy.
(1) West Coast Groundfish Observer Program training certification
endorsement. A training certification endorsement signifies the
successful completion of the training course required to obtain
observer certification. This endorsement expires when the observer has
not been deployed and performed sampling duties as required by the
observer Program office for a period of time, specified by the Observer
Program, after his or her most recent debriefing. The observer can
renew the endorsement by successfully completing training once more.
(2) West Coast Groundfish Observer Program annual general
endorsement. Each observer must obtain an annual general endorsement to
their certification prior to his or her first deployment within any
calendar year subsequent to a year in which a training certification
endorsement is obtained. To obtain an annual general endorsement, an
observer must successfully complete the annual briefing, as specified
by the Observer Program. All briefing attendance, performance, and
conduct standards required by the Observer Program must be met.
(3) West Coast Groundfish Observer Program deployment endorsement.
Each observer who has completed an initial deployment after their
certification or annual briefing must receive a deployment endorsement
to their certification prior to any subsequent deployments for the
remainder of that year. An observer may obtain a deployment endorsement
by successfully completing all briefing requirements, when applicable.
The type of briefing the observer must attend and successfully complete
will be specified in writing by the Observer Program during the
observer's most recent debriefing.
(vi) Maintaining the validity of observer certification. After
initial issuance, an observer must keep their certification valid by
meeting all of the following requirements specified below:
(A) Motherships--(1) Successfully perform their assigned duties as
described in the Observer Manual or other written instructions from the
Observer Program Office including calling into the NMFS deployment
[[Page 53447]]
hotline upon departing and arriving into port each trip to leave the
following information: Observer name, phone number, vessel name
departing on, date and time of departure and date and time of expected
return.
(2) Accurately record their sampling data, write complete reports,
and report accurately any observations of suspected violations of
regulations relevant to conservation of marine resources or their
environment.
(3) Not disclose collected data and observations made on board the
vessel or in the processing facility to any person except the owner or
operator of the observed vessel or an authorized officer or NMFS.
(4) Successfully complete NMFS-approved annual briefings as
prescribed by the At-Sea Hake Observer Program.
(5) Successful completion of briefing by an observer applicant
consists of meeting all attendance and conduct standards issued in
writing at the start of training; meeting all performance standards
issued in writing at the start of training for assignments, tests, and
other evaluation tools; and completing all other briefing requirements
established by the Observer Program.
(6) Successfully meet all expectations in all debriefings including
reporting for assigned debriefings.
(7) Submit all data and information required by the observer
program within the program's stated guidelines.
(B) Catcher vessels. After initial issuance, an observer must keep
their certification valid by meeting all of the following requirements
specified below:
(1) Successfully perform their assigned duties as described in the
Observer Manual or other written instructions from the Observer Program
Office including calling into the NMFS deployment hotline upon
departing and arriving into port each trip to leave the following
information: Observer name, phone number, vessel name departing on,
date and time of departure and date and time of expected return.
(2) Accurately record their sampling data, write complete reports,
and report accurately any observations of suspected violations of
regulations relevant to conservation of marine resources or their
environment.
(3) Not disclose collected data and observations made on board the
vessel or in the processing facility to any person except the owner or
operator of the observed vessel or an authorized officer or NMFS.
(4) Successfully complete NMFS-approved annual briefings as
prescribed by the West Coast Groundfish Observer Program.
(5) Successful completion of briefing by an observer applicant
consists of meeting all attendance and conduct standards issued in
writing at the start of training; meeting all performance standards
issued in writing at the start of training for assignments, tests, and
other evaluation tools; and completing all other briefing requirements
established by the Observer Program.
(6) Hold current basic cardiopulmonary resuscitation/first aid
certification as per American Red Cross Standards.
(7) Successfully meet all expectations in all debriefings including
reporting for assigned debriefings.
(8) Submit all data and information required by the observer
program within the program's stated guidelines.
(9) Meet the minimum annual deployment period of 3 months at least
once every 12 months.
[Alternative 1 for paragraph (j)(6)(vii) (Council-deemed)]
(vii) Limitations on conflict of interest. Observers:
(A) Must not have a direct financial interest in the vessels on
which the observers are stationed, or in the vessels receiving
deliveries from or making deliveries to those vessels, other than the
provision of observer services.
(B) Must not solicit or accept, directly or indirectly, any
gratuity, gift, favor, entertainment, loan, or anything of monetary
value from anyone who either conducts activities that are regulated by
NMFS in the Pacific coast or North Pacific regions or has interests
that may be substantially affected by the performance or nonperformance
of the observers' official duties.
(C) May not serve as observers on any vessel owned or operated by a
person who employed the observer in the last two years.
(D) May not solicit or accept employment as a crew member or an
employee of a vessel or shoreside processor while employed by an
observer provider.
(E) Provisions for remuneration of observers under this section do
not constitute a conflict of interest.
[Alternative 2 for paragraph (j)(6)(vii) (NMFS-proposed)]
(vii) Limitations on conflict of interest. Observers:
(A) Must not have a direct financial interest, other than the
provision of observer services, in a fishery managed pursuant to an FMP
for the waters off the coast of Alaska, or in a Pacific Coast fishery
managed by either the State or Federal governments in waters off
Washington, Oregon, or California, including but not limited to:
(1) Any ownership, mortgage holder, or other secured interest in a
vessel, shore-based or floating stationary processor facility involved
in the catching, taking, harvesting or processing of fish,
(2) Any business involved with selling supplies or services to any
vessel, shore-based or floating stationary processing facility; or
(3) Any business involved with purchasing raw or processed products
from any vessel, shore-based or floating stationary processing
facilities.
(B) Must not solicit or accept, directly or indirectly, any
gratuity, gift, favor, entertainment, loan, or anything of monetary
value from anyone who either conducts activities that are regulated by
NMFS in the Pacific coast or North Pacific regions or has interests
that may be substantially affected by the performance or nonperformance
of the observers' official duties.
(C) May not serve as observers on any vessel or at any shore-based
owned or operated by a person who employed the observer in the last two
years.
(D) May not solicit or accept employment as a crew member or an
employee of a vessel or shore-based processor while employed by an
observer provider.
(E) Provisions for remuneration of observers under this section do
not constitute a conflict of interest.
(viii) Standards of behavior. (A) Observers must:
(1) Perform their assigned duties as described in the Observer
Manual or other written instructions from the Observer Program Office.
(2) Report to the observer program office and the NMFS OLE any time
they refuse to board.
(3) Accurately record their sampling data, write complete reports,
and report accurately any observations of suspected violations of
regulations relevant to conservation of marine resources or their
environment.
(4) Not disclose collected data and observations made on board the
vessel or in the processing facility to any person except the owner or
operator of the observed vessel or processing facility, an authorized
officer, or NMFS.
(B) [Reserved]
(ix) Suspension and decertification--(A) Suspension and
decertification review official. The Regional Administrator (or a
designee) will designate an observer suspension and decertification
review official(s), who will have the authority to review observer
certifications and issue initial administrative determinations of
[[Page 53448]]
observer certification suspension and/or decertification.
(B) Causes for suspension or decertification. The suspension/
decertification official may initiate suspension or decertification
proceedings against an observer:
(1) When it is alleged that the observer has not met applicable
standards, including any of the following:
(i) Failed to satisfactorily perform duties of observers as
specified in writing by the NMFS Observer Program; or
(ii) Failed to abide by the standards of conduct for observers,
including conflicts of interest;
(2) Upon conviction of a crime or upon entry of a civil judgment
for:
(i) Commission of fraud or other violation in connection with
obtaining or attempting to obtain certification, or in performing the
duties as specified in writing by the NMFS Observer Program;
(ii) Commission of embezzlement, theft, forgery, bribery,
falsification or destruction of records, making false statements, or
receiving stolen property;
(iii) Commission of any other offense indicating a lack of
integrity or honesty that seriously and directly affects the fitness of
observers.
(C) Issuance of initial administrative determination. Upon
determination that suspension or decertification is warranted, the
suspension/decertification official will issue a written IAD to the
observer via certified mail at the observer's most current address
provided to NMFS. The IAD will identify whether a certification is
suspended or revoked and will identify the specific reasons for the
action taken.
(D) Appeals. A certified observer who receives an IAD that suspends
or revokes his or her observer certification may appeal the IAD within
30 days of its issuance to the Office of Administrative Appeals
pursuant to Sec. 679.43.
(k) MS coop failure--(1) The Regional Administrator will determine
that a permitted MS coop is considered to have failed if:
(i) The coop members dissolve the coop, or
(ii) The coop membership falls below 20 percent of the MS/CV
endorsed limited entry permits, or
(iii) The coop agreement is no longer valid.
(2) If a permitted MS coop dissolves, the designated coop manager
must notify NMFS SFD in writing of the dissolution of the coop.
(3) In the event of a NMFS determined coop failure, or reported
failure, the designated coop manager will be notified in writing about
NMFS' determination. Upon notification of a coop failure, fishing under
the MS coop permit will no longer be allowed. Should a coop failure
determination be made during the Pacific whiting primary season for the
mothership sector, unused allocation associated with the catch history
will not be available for harvest by the coop that failed, by any
former members of the coop that failed, or any other MS coop for the
remainder of that calendar year.
24. In Sec. 660.160:
a. Paragraphs (a)(3) and (a)(4) are revised;
b. Paragraphs (g) and (h) are removed;
c. Paragraphs (b) through (f) are redesignated as paragraphs (c)
through (g);
d. A new paragraph (b) is added;
e. Text is added to the newly designated paragraph (c)(2);
f. New paragraphs (c)(3) through (c)(7), (d), and (e)(2) through
(e)(4) are added;
g. The newly designated paragraphs (e)(1) introductory text, and
(e)(5) are revised;
h. The newly designated paragraph (e)(7) is redesignated as
paragraph (e)(6);
i. Text is added to the newly designated paragraph (g); and
j. A new paragraph (h) is added to read as follows:
Sec. 660.160 Catcher/processor (C/P) Coop Program.
* * * * *
(a) * * *
(3) Regulations set out in the following sections of subpart C:
Sec. 660.11 Definitions, Sec. 660.12 Prohibitions, Sec. 660.13
Recordkeeping and reporting, Sec. 660.14 VMS requirements, Sec.
660.15 Equipment requirements, Sec. 660.16 Groundfish Observer
Program, Sec. 660.20 Vessel and gear identification, Sec. 660.25
Permits, Sec. 660.55 Allocations, Sec. 660.60 Specifications and
management measures, Sec. 660.65 Groundfish harvest specifications,
and Sec. Sec. 660.70 through 660.79 Closed areas.
(4) Regulations set out in the following sections of subpart D:
Sec. 660.111 Trawl fishery definitions, Sec. 660.112 Trawl fishery
prohibitions, Sec. 660.113 Trawl fishery recordkeeping and reporting,
Sec. 660.120 Trawl fishery crossover provisions, Sec. 660.130 Trawl
fishery management measures, and Sec. 660.131 Pacific whiting fishery
management measures.
* * * * *
(b) Participation requirements and responsibilities--(1) C/P
vessels--(i) C/P vessel participation requirements. A vessel is
eligible to fish as a catcher/processor in the C/P Coop Program if:
(A) The vessel is registered to a C/P endorsed limited entry trawl
permit.
(B) The vessel is not used to harvest fish as a catcher vessel in
the mothership coop program in the same calendar year.
(C) The vessel is not used to fish as a mothership in the MS Coop
Program in the same calendar year.
(ii) C/P vessel responsibilities. The owner and operator of a
catcher/processor vessel must:
(A) Recordkeeping and reporting. Maintain a valid declaration as
specified at Sec. 660.13(d), subpart C; and maintain and submit all
records and reports specified at Sec. 660.113(d) including, economic
data, scale tests records, and cease fishing reports.
(B) Observers. As specified at paragraph (g) of this section,
procure observer services, maintain the appropriate level of coverage,
and meet the vessel responsibilities.
(C) Catch weighing requirements. The owner and operator of a C/P
vessel must:
(1) Ensure that all catch is weighed in its round form on a NMFS-
approved scale that meets the requirements described in Sec.
660.15(b), subpart C;
(2) Provide a NMFS-approved platform scale, belt scale, and test
weights that meet the requirements described in Sec. 660.15(b),
subpart C.
(2) C/P coops--(i) C/P coop participation requirements. For a C/P
coop to participate in the catcher/processor sector of the Pacific
whiting fishery, the C/P coop must:
(A) Be issued a C/P coop permit;
(B) Be composed of all C/P endorsed limited entry permits and their
owners;
(C) Be formed voluntarily;
(D) Be a legally recognized entity that represents its members; and
(E) Designate an individual as a coop manager.
(ii) C/P coop responsibilities. A C/P coop is responsible for:
(A) Applying for and being registered to a C/P coop permit;
(B) Organizing and coordinating harvest activities of vessels that
fish for the coop;
(C) Allocating catch for use by specific coop members;
(D) Monitoring harvest activities and enforcing the catch limits of
coop members;
(E) Submitting an annual report.
(F) Having a designated coop manager. The designated coop manager
must:
(1) Serve as the contact person with NMFS and the Council;
(2) Be responsible for the annual distribution of catch and bycatch
allocations among coop members;
[[Page 53449]]
(3) Prepare and submit an annual report on behalf of the coop; and,
(4) Be authorized to receive or respond to any legal process in
which the coop is involved; and
(5) Notify NMFS if the coop dissolves.
(iii) C/P coop compliance and joint/several liability. A C/P coop
must comply with the provisions of this section. The C/P coop, member
limited entry permit owners, and owners and operators of vessels
registered to member limited entry permits, are jointly and severally
responsible for compliance with the provisions of this section.
Pursuant to 15 CFR part 904, each C/P coop, member permit owner, and
owner and operator of a vessel registered to a coop member permit may
be charged jointly and severally for violations of the provisions of
this section. For purposes of enforcement, a C/P coop is a legal entity
that can be subject to NOAA enforcement action for violations of the
provisions of this section.
* * * * *
(c) * * *
(2) C/P Coop Program annual allocations. The C/P Coop Program
allocation of Pacific whiting is equal to the catcher/processor sector
allocation. Only a single coop may be formed in the catcher/processor
sector with the one permitted coop receiving the catcher/processor
sector allocation.
(3) Non-whiting groundfish species--(i) Non-whiting groundfish
species with a catcher/processor sector allocation are established in
accordance with regulation at Sec. 660.55(i). The pounds associated
with each species will be provided when the coop permit is issued.
(ii) Groundfish species with at-sea sector set-asides will be
managed on an annual basis unless there is a risk of a harvest
specification being exceeded, unforeseen impact on another fisheries,
or conservation concerns in which case inseason action may be taken.
Set asides may be adjusted through the biennial specifications and
management measures process as necessary.
(iii) Groundfish species not addressed under paragraph (i) or (ii)
above, will be managed on an annual basis unless there is a risk of a
harvest specification being exceeded, unforeseen impact on another
fisheries, or conservation concerns in which case inseason action may
be taken.
(4) Halibut set-asides. Annually a specified amount of the Pacific
halibut will be held in reserve as a shared set-aside for bycatch in
the at-sea Pacific whiting fisheries and the shorebased trawl sector
south of 40[deg]10' N lat.
(5) Non-whiting groundfish species reapportionment. The Regional
Administrator may make available for harvest to the mothership sector
of the Pacific whiting fishery, the amounts of the catcher/processor
sector's non-whiting catch allocation remaining when the catcher/
processor sector reaches its Pacific whiting allocation or participants
in the catcher/processor sector do not intend to harvest the remaining
sector allocation. The designated coop manager must submit a cease
fishing report to NMFS indicating that harvesting has concluded for the
year. At any time after greater than 80 percent of the catcher/
processor sector Pacific whiting allocation has been harvested, the
Regional Administrator may contact the designated coop manager to
determine whether they intend to continue fishing. When considering
redistribution of non-whiting catch allocation, the Regional
Administrator will take into consideration the best available data on
total projected fishing impacts.
(6) Reaching the catcher/processor sector allocation. When the
catcher/processor sector allocation of Pacific whiting or non-whiting
groundfish catch allocation is reached or is projected to be reached,
further taking and retaining, receiving, or at-sea processing by a
catcher/processor is prohibited. No additional unprocessed groundfish
may be brought on board after at-sea processing is prohibited, but a
catcher/processor may continue to process catch that was on board
before at-sea processing was prohibited. The catcher/processor sector
will close when the allocation of any one species is reached or
projected to be reached.
(7) Announcements. The Regional Administrator will announce in the
Federal Register when the catcher/processor sector allocation of
Pacific whiting or non-whiting groundfish with an allocation is
reached, or is projected to be reached, and specify the appropriate
action. In order to prevent exceeding an allocation and to avoid
underutilizing the resource, prohibitions against further taking and
retaining, receiving, or at-sea processing of Pacific whiting, or
reapportionment of non-whiting groundfish with allocations may be made
effective immediately by actual notice to fishers and processors, by e-
mail, Internet (http://www.nwr.noaa.gov/Groundfish-Halibut/Groundfish-Fishery-Management/Whiting-Management/index.cfm), phone, fax, letter,
press release, and/or USCG Notice to Mariners (monitor channel 16 VHF),
followed by publication in the Federal Register, in which instance
public comment will be sought for a reasonable period of time
thereafter.
(d) C/P coop permit and agreement--(1) Eligibility and
registration--(i) Eligibility. To be an eligible coop entity a group of
C/P endorsed permit owners (coop members) must be a recognized entity
under the laws of the United States or the laws of a State and that
represents all of the coop members.
(ii) Annual registration and deadline. Each year, the coop entity
must submit a complete application to NMFS for a C/P coop permit. The
application must be submitted to NMFS by between February 1 and March
31 of the year in which it intends to participate. NMFS will not
consider any applications received after March 31. A C/P coop permit
expires on December 31 of the year in which it was issued.
(iii) Application for a C/P coop permit. The designated coop
manager, on behalf of the coop entity, must submit a complete
application form and include each of the items listed in paragraph
(d)(1)(iii)(A) of this section. Only complete applications will be
considered for issuance of a C/P coop permit. An application will not
be considered complete if any required application fees and annual coop
reports have not been received by NMFS. NMFS may request additional
supplemental documentation as necessary to make a determination of
whether to approve or disapprove the application. Application forms and
instruction are available on the NMFS NWR Web site (http://www.nwr.noaa.gov) or by request from NMFS. The designated coop manager
must sign the application acknowledging the responsibilities of a
designated coop manager defined in paragraph (b)(2) of this section.
(A) Coop agreement. Signed copies of the coop agreement must be
submitted to NMFS and the Council and available for public review
before the coop is authorized to engage in fishing activities. A coop
agreement must include all of the information listed in this paragraph
to be considered a complete coop agreement. NMFS will only review
complete coop agreements. A coop agreement will not be accepted unless
it includes all of the required information; the descriptive items
listed in this paragraph appear to meet the stated purpose; and
information submitted is correct and accurate.
(1) Coop agreement contents. The coop agreement must be signed by
the coop members (C/P endorsed permit owners) and include the following
information:
(i) A list of all vessels registered to C/P endorsed permits that
the member
[[Page 53450]]
permit owners intend to use for fishing under the C/P coop permit.
(ii) All C/P endorsed limited entry member permits identified by
permit number.
(iii) A description of the coop's plan to adequately monitor and
account for the catch of Pacific whiting and non-whiting groundfish
allocations, and to monitor and account for the catch of prohibited
species.
(iv) A clause stating that if a permit is transferred during the
effective period of the co-op agreement, any new owners of that member
permit would be coop members and are required to comply with membership
restrictions in the coop agreement.
(v) A description of the coop's enforcement and penalty provisions
adequate to maintain catch of Pacific whiting and non-whiting
groundfish within the allocations.
(vi) A description of measures to reduce catch of overfished
species.
(vii) A clause describing how the annual report will be produced to
document the coop's catch, bycatch data, and any other significant
activities undertaken by the coop during the year, and the submission
deadlines for that report.
(viii) Identification of the designated coop manager.
(2) Department of Justice correspondence. Each coop must submit a
letter to the Department of Justice requesting a business review letter
on the fishery coop. Copies of the letter and any correspondence with
the Department of Justice regarding the request must be included in the
application to NMFS for a C/P coop permit.
(B) Acceptance of a coop agreement--(1) If NMFS does not accept the
coop agreement, the coop permit application will be returned to the
applicant with a letter stating the reasons the coop agreement was not
accepted by NMFS.
(2) Coop agreements that are not accepted may be resubmitted for
review by sufficiently addressing the deficiencies identified in the
NMFS letter and resubmitting the entire coop permit application by the
date specified in the NMFS letter.
(3) An accepted coop agreement that was submitted with the C/P coop
permit application and for which a C/P coop permit was issued will
remain in place through the end of the calendar year. The designated
coop manager must resubmit a complete coop agreement to NMFS consistent
with the coop agreement contents described in this paragraph if there
is a material change to the coop agreement.
(4) Within 7 calendar days following a material change, the
designated coop manager must notify NMFS of the material change. Within
30 calendar days, the designated coop manger must submit to NMFS the
revised coop agreement with a letter that describes such changes. NMFS
will review the material changes and provide a letter to the coop
manager that either accepts the changes as given or does not accept the
revised coop agreement with a letter stating the reasons that it was
not accepted by NMFS. The coop may resubmit the coop agreement with
further revisions to the material changes responding to NMFS concerns.
(iv) Effective date of C/P coop permit. A C/P coop permit will be
effective on the date approved by NMFS and will allow fishing from the
start of the C/P sector primary whiting season until the end of the
calendar year or until one or more of the following events occur,
whichever comes first:
(A) NMFS closes the C/P sector fishing season for the year or the
designated coop manager notifies NMFS that the coop has completed
fishing for the calendar year,
(B) The C/P coop has reached its Pacific whiting allocation,
(C) A material change to the coop agreement has occurred and the
designated coop manager failed to notify NMFS within 7 calendar days of
the material change and submit to NMFS the revised coop agreement with
a letter that describes such changes within 30 calendar days, or
(D) NMFS has determined that a coop failure occurred.
(2) Initial administrative determination. For all complete
applications, NMFS will issue an IAD that either approves or
disapproves the application. If approved, the IAD will include a C/P
coop permit. If disapproved, the IAD will provide the reasons for this
determination.
(3) Appeals. An appeal to a C/P coop permit action follows the same
process as the general permit appeals process defined at Sec.
660.25(g), subpart C.
(4) Fees. The Regional Administrator is authorized to charge fees
for administrative costs associated with the issuance of a C/P coop
permit consistent with the provisions given at Sec. 660.25(f), subpart
C.
(5) Cost recovery. [Reserved]
(e) C/P endorsed permit--(1) General. Any vessel participating in
the C/P sector of the non-Tribal primary Pacific whiting fishery during
the season described at Sec. 660.131(b) of this subpart must be
registered to a valid limited entry permit with a C/P endorsement. A C/
P endorsed permit is a limited entry permit and is subject to the
limited entry permit provisions given at Sec. 660.25(b), subpart C.
* * * * *
(2) Renewal, change in permit ownership, vessel registration, or
combination.
(i) Renewal. A C/P endorsed permit must be renewed annually
consistent with the limited entry permit regulations given at Sec.
660.25(b)(4), subpart C. If a vessel registered to the C/P endorsed
permit will operate as a mothership in the year for which the permit is
renewed, the permit owner must make a declaration as part of the permit
renewal that while participating in the whiting fishery they will
operate solely as a mothership during the calendar year to which its
limited entry permit applies. Any such declaration is binding on the
vessel for the calendar year, even if the permit is transferred during
the year, unless it is rescinded in response to a written request from
the permit owner. Any request to rescind a declaration must be made by
the permit holder and granted in writing by the Regional Administrator
before any unprocessed whiting has been taken on board the vessel that
calendar year.
(ii) Change of permit ownership. A C/P endorsed permit is subject
to the limited entry permit change in permit ownership regulations
given at Sec. 660.25(b)(4), subpart C.
(iii) Change of vessel registration. A C/P endorsed permit is
subject to the limited entry permit change of vessel registration
regulations given at Sec. 660.25(b)(4), subpart C.
(iv) Combination. If two or more permits are combined, the
resulting permit is one permit with an increased size endorsement. A C/
P endorsed permit that is combined with another limited entry trawl-
endorsed permit that does not have a C/P endorsement will result in a
single trawl limited entry permit with a C/P endorsement with a larger
size endorsement. Any request to combine permits is subject to the
provisions provided at Sec. 660.25(b), including the combination
formula for resulting size endorsements.
(3) Appeals. An appeal to a C/P endorsed permit action follows the
same process as the general permit appeals process defined at Sec.
660.25(g), subpart C.
(4) Fees. The Regional Administrator is authorized to charge fees
for the administrative costs associated with review and issuance of a
C/P endorsement consistent with the provisions at Sec. 660.25(f),
subpart C.
(5) Cost recovery. [Reserved]
* * * * *
[[Page 53451]]
(g) Observer requirements--(1) Observer coverage requirements--(i)
Coverage. Any vessel registered to a C/P endorsed limited entry trawl
permit that is 125 ft (38.1 m) LOA or longer must carry two NMFS-
certified observers, and any vessel registered to a C/P endorsed
limited entry trawl permit that is shorter than 125 ft (38.1 m) LOA
must carry one NMFS-certified observer, each day that the vessel is
used to take, retain, receive, land, process, or transport groundfish.
(ii) Observer workload. The time required for the observer to
complete sampling duties must not exceed 12 consecutive hours in each
24-hour period.
(iii) Refusal to board. Any boarding refusal on the part of the
observer or vessel is reported to the observer program and NOAA OLE by
the observer provider. The observer must be available for an interview
with the observer program or NOAA OLE if necessary.
(2) Vessel responsibilities. An operator and/or crew of a vessel
required to carry an observer must provide:
(i) Accommodations and food. Provide accommodations and food that
are equivalent to those provided for officers, engineers, foremen,
deck-bosses or other management level personnel of the vessel.
(ii) Safe conditions--(A) Maintain safe conditions on the vessel
for the protection of observers including adherence to all U.S. Coast
Guard and other applicable rules, regulations, or statutes pertaining
to safe operation of the vessel, including but not limited to, rules of
the road, vessel stability, emergency drills, emergency equipment,
vessel maintenance, vessel general condition, and port bar crossings.
An observer may refuse boarding or reboarding a vessel and may request
a vessel to return to port if operated in an unsafe manner or if unsafe
conditions are identified.
(B) Have on board a valid Commercial Fishing Vessel Safety Decal
that certifies compliance with regulations found in 33 CFR Chapter I
and 46 CFR Chapter I, a certificate of compliance issued pursuant to 46
CFR 28.710 or a valid certificate of inspection pursuant to 46 U.S.C.
3311.
(iii) Computer hardware and software. Catcher/processor vessels
must:
(A) Provide hardware and software pursuant to regulations at
Sec. Sec. 679.50(g)(1)(iii)(B)(1) through 679.50(g)(1)(iii)(B)(3).
(B) Provide the observer(s) access to a computer required under
paragraph (g)(2)(iii) of this section that is connected to a
communication device that provides a point-to-point connection to the
NMFS host computer.
(C) Ensure that the catcher/processor has installed the most recent
release of NMFS data entry software provided by the Regional
Administrator, or other approved software prior to the vessel
receiving, catching or processing IFQ species.
(D) Ensure that the communication equipment required in paragraph
(g)(2)(iii) of this section and used by observers to enter and transmit
data, is fully functional and operational. ``Functional'' means that
all the tasks and components of the NMFS supplied, or other approved,
software described at paragraph (g)(2)(iii) of this section and the
data transmissions to NMFS can be executed effectively aboard the
vessel by the communications equipment.
(iv) Vessel position. Allow observer(s) access to, the vessel's
navigation equipment and personnel, on request, to determine the
vessel's position.
(v) Access. Allow observer(s) free and unobstructed access to the
vessel's bridge, trawl or working decks, holding bins, processing
areas, freezer spaces, weight scales, cargo holds, and any other space
that may be used to hold, process, weigh, or store fish or fish
products at any time.
(vi) Prior notification. Notify observer(s) at least 15 minutes
before fish are brought on board, or fish and fish products are
transferred from the vessel, to allow sampling the catch or observing
the transfer.
(vii) Records. Allow observer(s) to inspect and copy any State or
Federal logbook maintained voluntarily or as required by regulation.
(viii) Assistance. Provide all other reasonable assistance to
enable observer(s) to carry out their duties, including, but not
limited to:
(A) Measuring decks, codends, and holding bins.
(B) Providing the observer(s) with a safe work area.
(C) Collecting samples of catch when requested by the observer(s).
(D) Collecting and carrying baskets of fish when requested by the
observer(s).
(E) Allowing the observer(s) to collect biological data and
samples.
(F) Providing adequate space for storage of biological samples.
(ix) Sample Station and Operational Requirements for catcher/
processor vessels. This paragraph contains the requirements for
observer sampling stations. To allow the observer to carry out the
required duties, the vessel owner must provide an observer sampling
station that meets the following requirements:
(A) Accessibility. The observer sampling station must be available
to the observer at all times.
(B) Location. The observer sampling station must be located within
4 m of the location from which the observer samples unsorted catch.
(C) Access. Unobstructed passage must be provided between the
observer sampling station and the location where the observer collects
sample catch.
(D) Minimum work space. The observer must have a working area of at
least 4.5 square meters, including the observer's sampling table, for
sampling and storage of fish to be sampled. The observer must be able
to stand upright and have a work area at least 0.9 m deep in the area
in front of the table and scale.
(E) Table. The observer sampling station must include a table at
least 0.6 m deep, 1.2 m wide and 0.9 m high and no more than 1.1 m
high. The entire surface area of the table must be available for use by
the observer. Any area for the observer sampling scale is in addition
to the minimum space requirements for the table. The observer's
sampling table must be secured to the floor or wall.
(F) Diverter board. The conveyor belt conveying unsorted catch must
have a removable board (``diverter board'') to allow all fish to be
diverted from the belt directly into the observer's sampling baskets.
The diverter board must be located downstream of the scale used to
weigh total catch. At least 1 m of accessible belt space, located
downstream of the scale used to weight total catch, must be available
for the observer's use when sampling.
(G) Other Requirements. The sampling station must be in a well-
drained area that includes floor grating (or other material that
prevents slipping), lighting adequate for day or night sampling, and a
hose that supplies fresh or sea water to the observer.
(H) Observer Sampling Scale. The observer sample station must
include a NMFS-approved platform scale (pursuant to requirements at
Sec. 679.28(d)(5)) with a capacity of at least 50 kg located within 1
m of the observer's sampling table. The scale must be mounted so that
the weighing surface is no more than 0.7 m above the floor.
(x) Transfer At-sea. Observers may be transferred at-sea between
catcher-processors, between catcher-processors and motherships, or
between a catcher-processor and a catcher vessel. Transfers at-sea
between catcher vessels is prohibited. For transfers, both vessels
must:
[[Page 53452]]
(A) Ensure that transfers of observers at sea via small boat under
its own power are carried out during daylight hours, under safe
conditions, and with the agreement of observers involved.
(B) Notify observers at least 3 hours before observers are
transferred, such that the observers can finish any sampling work,
collect personal belongings, equipment, and scientific samples.
(C) Provide a safe pilot ladder and conduct the transfer to ensure
the safety of observers during transfers.
(D) Provide an experienced crew member to assist observers in the
small boat in which any transfer is made.
(3) Procurement of observer services--(i) Owners of vessels
required to carry observers under paragraph (g)(1) of this section must
arrange for observer services from a permitted observer provider,
except that:
(A) Vessels are required to procure observer services directly from
NMFS when NMFS has determined and given notification that the vessel
must carry NMFS staff or an individual authorized by NMFS in lieu of an
observer provided by a permitted observer provider.
(B) Vessels are required to procure observer services directly from
NMFS and a permitted observer provider when NMFS has determined and
given notification that the vessel must carry NMFS staff and/or
individuals authorized by NMFS, in addition to an observer provided by
a permitted observer provider.
(ii) [Reserved]
(4) Application to become an observer provider. Any observer
provider holding a valid permit issued by the North Pacific Groundfish
Observer Program in 2010 can supply observer services and will be
issued a West Coast Groundfish Observer Program permit.
(5) Observer provider responsibilities--(i) Provide qualified
candidates to serve as observers. Observer providers must provide
qualified candidates to serve as observers. To be qualified, a
candidate must have:
(A) A Bachelor's degree or higher from an accredited college or
university with a major in one of the natural sciences;
(B) Successfully completed a minimum of 30 semester hours or
equivalent in applicable biological sciences with extensive use of
dichotomous keys in at least one course;
(C) Successfully completed at least one undergraduate course each
in math and statistics with a minimum of 5 semester hours total for
both; and
(D) Computer skills that enable the candidate to work competently
with standard database software and computer hardware.
(ii) Prior to hiring observer candidate. The observer provider must
provide the candidate a copy of NMFS-provided pamphlets, information
and other literature describing observer duties (i.e. The At-Sea Hake
Observer Program's Observer Manual) prior to hiring an observer
candidate. Observer job information is available from the Observer
Program Office's Web site at http://www.nwfsc.noaa.gov/research/divisions/fram/observer/atseahake.cfm.
(iii) Observer contracts. The observer provider must have a written
contract or a written contract addendum that is signed by the observer
and observer provider prior to the observer's deployment with the
following clauses:
(A) That all the observer's catch reports required to be sent while
deployed are delivered to the Observer Program Office as specified by
written Observer Program instructions;
(B) That the observer inform the observer provider prior to the
time of embarkation if he or she is experiencing any new mental illness
or physical ailment or injury that would prevent the candidate from
performing the assigned duties of an observer and which were not
documented in the physician's statement submitted by the candidate;
(C) That the observer completes duties in a timely manner. An
observer provider must ensure that observers employed by that observer
provider do the following in a complete and timely manner:
(1) Once an observer is scheduled for a final deployment
debriefing, submit to NMFS all data, reports required by the Observer
Manual, and biological samples from the observer's deployment by the
completion of the electronic vessel and/or processor survey(s);
(2) Report for the scheduled debriefing and complete all debriefing
responsibilities;
(3) Report to the observer program office and the NOAA OLE any
refusal to board an assigned vessel, and
(4) Return all sampling and safety gear to the Observer Program
Office.
(iv) Observers provided to vessels. Observers provided to catcher
processors:
(A) Must have a valid North Pacific groundfish observer
certification endorsements and an At-Sea Hake Observer Program
certification;
(B) Must not have informed the provider prior to the time of
embarkation that he or she is experiencing a mental illness or a
physical ailment or injury developed since submission of the
physician's statement that would prevent him or her from performing his
or her assigned duties; and
(C) Must have successfully completed all NMFS required training and
briefing before deployment.
(v) Respond to industry requests for observers. An observer
provider must provide an observer for deployment as requested pursuant
to the contractual relationship with the vessel to fulfill vessel
requirements for observer coverage specified under paragraph (g)(1) of
this section. An alternate observer must be supplied in each case where
injury or illness prevents the observer from performing his or her
duties or where the observer resigns prior to completion of his or her
duties. If the observer provider is unable to respond to an industry
request for observer coverage from a vessel for whom the provider is in
a contractual relationship due to lack of available observers by the
estimated embarking time of the vessel, the provider must report it to
the observer program at least 4 hours prior to the vessel's estimated
embarking time.
(vi) Provide observer salaries and benefits. An observer provider
must provide to its observer employees salaries and any other benefits
and personnel services in accordance with the terms of each observer's
contract.
(vii) Provide observer deployment logistics. An observer provider
must provide to each of its observers under contract:
(A) All necessary transportation, including arrangements and
logistics, of observers to the initial location of deployment, to all
subsequent vessel assignments during that deployment, and to the
debriefing location when a deployment ends for any reason; and
(B) Lodging, per diem, and any other services necessary to
observers assigned to fishing vessels.
(1) An observer under contract may be housed on a vessel to which
he or she is assigned:
(i) Prior to their vessel's initial departure from port;
(ii) For a period not to exceed 24 hours following the completion
of an offload when the observer has duties and is scheduled to
disembark; or
(iii) For a period not to exceed twenty-four hours following the
vessel's arrival in port when the observer is scheduled to disembark.
(2) [Reserved]
(C) During all periods an observer is housed on a vessel, the
observer provider must ensure that the vessel operator or at least one
crew member is aboard.
[[Page 53453]]
(D) An observer under contract who is between vessel assignments
must be provided with shoreside accommodations in accordance with the
contract between the observer and the observer provider. If the
provider is providing accommodations, it must be at a licensed hotel,
motel, bed and breakfast, or other shoreside accommodations for the
duration of each period between vessel or shoreside assignments. Such
accommodations must include an assigned bed for each observer and no
other person may be assigned that bed for the duration of that
observer's stay. Additionally, no more than four beds may be in any
room housing observers at accommodations meeting the requirements of
this section.
(viii) Deployment limitations. An observer provider must not exceed
observer deployment limitations specified in this paragraph unless
alternative arrangements are approved by the Observer Program Office.
An observer provider must not:
(A) Deploy an observer on the same vessel for more than 90 days in
a 12-month period;
(B) Deploy an observer for more than 90 days in a single
deployment;
(C) Include more than four vessel assignments in a single
deployment, or
(D) Disembark an observer from a vessel before that observer has
completed his or her sampling or data transmission duties.
(ix) Verify vessel's safety decal. An observer provider must verify
that a vessel has a valid USCG safety decal as required under paragraph
(g)(2)(ii)(B) of this section before an observer may get underway
aboard the vessel. One of the following acceptable means of
verification must be used to verify the decal validity:
(A) The observer provider or employee of the observer provider,
including the observer, visually inspects the decal aboard the vessel
and confirms that the decal is valid according to the decal date of
issuance; or
(B) The observer provider receives a hard copy of the USCG
documentation of the decal issuance from the vessel owner or operator.
(x) Maintain communications with observers. An observer provider
must have an employee responsible for observer activities on call 24
hours a day to handle emergencies involving observers or problems
concerning observer logistics, whenever observers are at sea, in
transit, or in port awaiting vessel reassignment.
(xi) Maintain communications with the observer program. An observer
provider must provide all of the following information by electronic
transmission (e-mail), fax, or other method specified by NMFS.
(A) Observer training and briefing. Observer training and briefing
registration materials must be submitted to the Observer Program Office
at least 5 business days prior to the beginning of a scheduled observer
at-sea hake training or briefing session. Registration materials
consist of the following: The date of requested training or briefing
with a list of observers including each observer's full name (i.e.,
first, middle and last names).
(B) Projected observer assignments. Prior to the observer's
completion of the training or briefing session, the observer provider
must submit to the Observer Program Office a statement of projected
observer assignments that include the observer's name; vessel, gear
type, and vessel/processor code; port of embarkation; and area of
fishing.
(C) Observer debriefing registration. The observer provider must
contact the At-Sea Hake Observer Program within 5 business days after
the completion of an observer's deployment to schedule a date, time and
location for debriefing. Observer debriefing registration information
must be provided at the time of debriefing scheduling and must include
the observer's name, cruise number, vessel name(s) and code(s), and
requested debriefing date.
(D) Observer provider contracts. If requested, observer providers
must submit to the Observer Program Office a completed and unaltered
copy of each type of signed and valid contract (including all
attachments, appendices, addendums, and exhibits incorporated into the
contract) between the observer provider and those entities requiring
observer services under paragraph (g)(1) of this section. Observer
providers must also submit to the Observer Program Office upon request,
a completed and unaltered copy of the current or most recent signed and
valid contract (including all attachments, appendices, addendums, and
exhibits incorporated into the contract and any agreements or policies
with regard to observer compensation or salary levels) between the
observer provider and the particular entity identified by the Observer
Program or with specific observers. The copies must be submitted to the
Observer Program Office via fax or mail within 5 business days of the
request. Signed and valid contracts include the contracts an observer
provider has with:
(1) Vessels required to have observer coverage as specified at
paragraph (g)(1) of this section; and
(2) Observers.
(E) Change in observer provider management and contact information.
Observer providers must submit notification of any other change to
provider contact information, including but not limited to, changes in
contact name, phone number, e-mail address, and address.
(F) Other reports. Reports of the following must be submitted in
writing to the At-Sea Hake Observer Program Office by the observer
provider via fax or e-mail address designated by the Observer Program
Office within 24 hours after the observer provider becomes aware of the
information:
(1) Any information regarding possible observer harassment;
(2) Any information regarding any action prohibited under
Sec. Sec. 660.112 or 600.725(o), (t) and (u);
(3) Any concerns about vessel safety or marine casualty under 46
CFR 4.05-1 (a)(1) through (7);
(4) Any observer illness or injury that prevents the observer from
completing any of his or her duties described in the observer manual;
and
(5) Any information, allegations or reports regarding observer
conflict of interest or breach of the standards of behavior described
in observer provider policy.
(xii) Replace lost or damaged gear. An observer provider must
replace all lost or damaged gear and equipment issued by NMFS to an
observer under contract to that provider. All replacements must be in
accordance with requirements and procedures identified in writing by
the Observer Program Office.
(xiii) Maintain confidentiality of information. An observer
provider must ensure that all records on individual observer
performance received from NMFS under the routine use provision of the
Privacy Act or other applicable law remain confidential and are not
further released to anyone outside the employ of the observer provider
company to whom the observer was contracted except with written
permission of the observer.
(xiv) Conflict of interest. An observer provider must meet
limitations on conflict of interest. Observer providers:
(A) Must not have a direct financial interest, other than the
provision of observer services, in a fishery managed under an FMP for
the waters off the coasts of Alaska, Washington, Oregon, and
California, including, but not limited to,
(1) Any ownership, mortgage holder, or other secured interest in a
vessel or shoreside processor facility involved in the catching,
taking, harvesting or processing of fish,
[[Page 53454]]
(2) Any business involved with selling supplies or services to any
vessel or shoreside processors participating in a fishery managed
pursuant to an FMP in the waters off the coasts of Alaska, California,
Oregon, and Washington, or
(3) Any business involved with purchasing raw or processed products
from any vessel or shoreside processor participating in a fishery
managed pursuant to an FMP in the waters off the coasts of Alaska,
California, Oregon, and Washington.
(B) Must assign observers without regard to any preference by
representatives of vessels other than when an observer will be
deployed.
(C) Must not solicit or accept, directly or indirectly, any
gratuity, gift, favor, entertainment, loan, or anything of monetary
value except for compensation for providing observer services from
anyone who conducts fishing or fish processing activities that are
regulated by NMFS in the Pacific coast or North Pacific regions, or who
has interests that may be substantially affected by the performance or
nonperformance of the official duties of observer providers.
(xv) Observer conduct and behavior. An observer provider must
develop and maintain a policy addressing observer conduct and behavior
for their employees that serve as observers. The policy shall address
the following behavior and conduct:
(A) Observer use of alcohol;
(B) Observer use, possession, or distribution of illegal drugs and;
(C) Sexual contact with personnel of the vessel or processing
facility to which the observer is assigned, or with any vessel or
processing plant personnel who may be substantially affected by the
performance or non-performance of the observer's official duties.
(D) An observer provider shall provide a copy of its conduct and
behavior policy by February 1 of each year, to observers, observer
candidates, and the Observer Program Office.
(xvi) Refusal to deploy an observer. Observer providers may refuse
to deploy an observer on a requesting vessel if the observer provider
has determined that the requesting vessel is inadequate or unsafe
pursuant to those regulations described at Sec. 600.746 or U.S. Coast
Guard and other applicable rules, regulations, statutes, or guidelines
pertaining to safe operation of the vessel.
(6) Observer certification and responsibilities--(i) Observer
certification--(A) Applicability. Observer certification authorizes an
individual to fulfill duties as specified in writing by the NMFS
Observer Program Office while under the employ of a NMFS-permitted
observer provider and according to certification endorsements as
designated under paragraph (g)(6)(i)(C) of this section.
(B) Observer certification official. The Regional Administrator
will designate a NMFS observer certification official who will make
decisions for the Observer Program Office on whether to issue or deny
observer certification.
(C) Certification requirements. NMFS may certify individuals who,
in addition to any other relevant considerations:
(1) Are employed by an observer provider company holding a valid
North Pacific Groundfish Observer Program permit at the time of the
issuance of the certification to the observer;
(2) Have provided, through their observer provider:
(i) Information set forth at Sec. 679.50 regarding an observer
candidate's health and physical fitness for the job;
(ii) Meet all observer education and health standards as specified
in Sec. 679.50 and
(iii) Have successfully completed NMFS-approved training as
prescribed by the At-Sea Hake Observer Program. Successful completion
of training by an observer applicant consists of meeting all attendance
and conduct standards issued in writing at the start of training;
meeting all performance standards issued in writing at the start of
training for assignments, tests, and other evaluation tools; and
completing all other training requirements established by the Observer
Program.
(3) Have not been decertified under paragraph (g)(6)(i)(I) of this
section, or pursuant to Sec. 679.50.
(D) Denial of a certification. The NMFS observer certification
official will issue a written determination denying observer
certification if the candidate fails to successfully complete training,
or does not meet the qualifications for certification for any other
relevant reason.
(E) Issuance of an observer certification. An observer
certification may be issued upon determination by the observer
certification official that the candidate has successfully met all
requirements for certification as specified in paragraph (g)(6)(i)(C)
of this section. The following endorsements must be obtained, in
addition to observer certification, in order for an observer to deploy.
(1) North Pacific Groundfish Observer Program certification
training endorsement. A certification training endorsement signifies
the successful completion of the training course required to obtain
observer certification. This endorsement expires when the observer has
not been deployed and performed sampling duties as required by the
Observer Program Office for a period of time, specified by the Observer
Program, after his or her most recent debriefing. The observer can
renew the endorsement by successfully completing certification training
once more.
(2) North Pacific Groundfish Observer Program annual general
endorsements. Each observer must obtain an annual general endorsement
to their certification prior to his or her first deployment within any
calendar year subsequent to a year in which a certification training
endorsement is obtained. To obtain an annual general endorsement, an
observer must successfully complete the annual briefing, as specified
by the Observer Program. All briefing attendance, performance, and
conduct standards required by the Observer Program must be met.
(3) North Pacific Groundfish Observer Program deployment
endorsements. Each observer who has completed an initial deployment
after certification or annual briefing must receive a deployment
endorsement to their certification prior to any subsequent deployments
for the remainder of that year. An observer may obtain a deployment
endorsement by successfully completing all pre-cruise briefing
requirements. The type of briefing the observer must attend and
successfully complete will be specified in writing by the Observer
Program during the observer's most recent debriefing.
(4) At-Sea Hake Observer Program endorsements. A Pacific hake
fishery endorsement is required for purposes of performing observer
duties aboard vessels that process groundfish at sea in the Pacific
whiting fishery. A Pacific whiting fishery endorsement to an observer's
certification may be obtained by meeting the following requirements:
(i) Be a prior NMFS-certified observer in the groundfish fisheries
off Alaska, unless an individual with this qualification is not
available;
(ii) Receive an evaluation by NMFS for his or her most recent
deployment that indicated that the observer's performance met Observer
Program expectations for that deployment;
(iii) Successfully complete a NMFS-approved observer training and/
or Pacific whiting briefing as prescribed by the Observer Program; and
(iv) Comply with all of the other requirements of this section.
(F) Maintaining the validity of observer certification. After
initial issuance, an observer must keep their
[[Page 53455]]
certification valid by meeting all of the following requirements
specified below:
(1) Successfully perform their assigned duties as described in the
Observer Manual or other written instructions from the Observer Program
Office including calling into the NMFS deployment hotline upon
departing and arriving into port each trip to leave the following
information: observer name, phone number, vessel name departing on,
date and time of departure and date and time of expected return.
(2) Accurately record their sampling data, write complete reports,
and report accurately any observations of suspected violations of
regulations relevant to conservation of marine resources or their
environment.
(3) Not disclose collected data and observations made on board the
vessel or in the processing facility to any person except the owner or
operator of the observed vessel or an authorized officer or NMFS.
(4) Successfully complete NMFS-approved annual briefings as
prescribed by the At-Sea Hake Observer Program.
(5) Successful completion of briefing by an observer applicant
consists of meeting all attendance and conduct standards issued in
writing at the start of training; meeting all performance standards
issued in writing at the start of training for assignments, tests, and
other evaluation tools; and completing all other briefing requirements
established by the Observer Program.
(6) Successfully meet all expectations in all debriefings including
reporting for assigned debriefings.
(7) Submit all data and information required by the observer
program within the program's stated guidelines.
[Alternative 1 for paragraph (g)(6)(i)(G) (Council-deemed)]
(G) Limitations on conflict of interest. Observers:
(1) Must not have a direct financial interest in the vessels on
which the observers are stationed, other than the provision of observer
services.
(2) Must not solicit or accept, directly or indirectly, any
gratuity, gift, favor, entertainment, loan, or anything of monetary
value from anyone who either conducts activities that are regulated by
NMFS or has interests that may be substantially affected by the
performance or nonperformance of the observers' official duties.
(3) May not serve as observers on any vessel owned or operated by a
person who employed the observer in the last two years.
(4) May not solicit or accept employment as a crew member or an
employee of a vessel or shore-based processor while employed by an
observer provider.
(5) Provisions for remuneration of observers under this section do
not constitute a conflict of interest.
[Alternative 2 for paragraph (g)(6)(i)(G) (NMFS-proposed)]
(G) Limitations on conflict of interest. Observers:
(1) Must not have a direct financial interest, other than the
provision of observer services, in a fishery managed pursuant to an FMP
for the waters off the coast of Alaska, or in a Pacific Coast fishery
managed by either the State or Federal governments in waters off
Washington, Oregon, or California, including but not limited to:
(i) Any ownership, mortgage holder, or other secured interest in a
vessel, shore-based or floating stationary processor facility involved
in the catching, taking, harvesting or processing of fish,
(ii) Any business involved with selling supplies or services to any
vessel, shore-based or floating stationary processing facility; or
(iii) Any business involved with purchasing raw or processed
products from any vessel, shore-based or floating stationary processing
facilities.
(2) Must not solicit or accept, directly or indirectly, any
gratuity, gift, favor, entertainment, loan, or anything of monetary
value from anyone who either conducts activities that are regulated by
NMFS in the Pacific coast or North Pacific regions or has interests
that may be substantially affected by the performance or nonperformance
of the observers' official duties.
(3) May not serve as observers on any vessel or at any shore-based
owned or operated by a person who employed the observer in the last two
years.
(4) May not solicit or accept employment as a crew member or an
employee of a vessel or shore-based processor while employed by an
observer provider.
(5) Provisions for remuneration of observers under this section do
not constitute a conflict of interest.
(H) Standards of behavior. Observers must:
(1) Perform their assigned duties as described in the Observer
Manual or other written instructions from the Observer Program Office.
(2) Report to the observer program office and the NOAA Office of
Law Enforcement any time they refuse to board a vessel.
(3) Accurately record their sampling data, write complete reports,
and report accurately any observations of suspected violations of
regulations relevant to conservation of marine resources or their
environment.
(4) Not disclose collected data and observations made on board the
vessel or in the processing facility to any person except the owner or
operator of the observed vessel or processing facility, an authorized
officer, or NMFS.
(I) Suspension and decertification.
(1) Suspension and decertification review official. The Regional
Administrator (or a designee) will designate an observer suspension and
decertification review official(s), who will have the authority to
review observer certifications and issue initial administrative
determinations of observer certification suspension and/or
decertification.
(2) Causes for suspension or decertification. The suspension/
decertification official may initiate suspension or decertification
proceedings against an observer:
(i) When it is alleged that the observer has committed any acts or
omissions of any of the following: Failed to satisfactorily perform the
duties of observers as specified in writing by the NMFS Observer
Program; or failed to abide by the standards of conduct for observers
(including conflicts of interest);
(ii) Upon conviction of a crime or upon entry of a civil judgment
for: Commission of fraud or other violation in connection with
obtaining or attempting to obtain certification, or in performing the
duties as specified in writing by the NMFS Observer Program; commission
of embezzlement, theft, forgery, bribery, falsification or destruction
of records, making false statements, or receiving stolen property; or
commission of any other offense indicating a lack of integrity or
honesty that seriously and directly affects the fitness of observers.
(3) Issuance of initial administrative determination. Upon
determination that suspension or decertification is warranted, the
suspension/decertification official will issue a written IAD to the
observer via certified mail at the observer's most current address
provided to NMFS. The IAD will identify whether a certification is
suspended or revoked and will identify the specific reasons for the
action taken.
(4) Appeals. A certified observer who receives an IAD that suspends
or revokes the observer certification may appeal the determination
within 30 days of its issuance to the Office of Administrative Appeals
pursuant to Sec. 679.43.
(h) C/P coop failure--(1) The Regional Administrator will determine
that a permitted C/P coop is considered to
[[Page 53456]]
have failed if any one of the following occurs:
(i) Any current C/P endorsed limited entry trawl permit is not
identified as a C/P coop member in the coop agreement submitted to NMFS
during the C/P coop permit application process;
(ii) Any current C/P endorsed permit withdraws from the C/P coop
agreement;
(iii) The coop members voluntarily dissolve the coop; or
(iv) The coop agreement is no longer valid.
(2) If the permitted C/P coop dissolves, the designated coop
manager must notify NMFS SFD in writing of the dissolution of the coop.
(3) The Regional Administrator may make an independent
determination of a coop failure based on factual information collected
by or provided to NMFS.
(4) In the event of a NMFS-determined coop failure, or reported
failure, the designated coop manager will be notified in writing about
NMFS' determination.
(i) Upon notification of a coop failure, the C/P coop permit will
no longer be in effect.
(ii) The C/P sector will convert to an IFQ-based fishery beginning
the following calendar year after a coop failure, or a soon as
practicable thereafter. NMFS will develop additional regulations, as
necessary to implement an IFQ fishery for the C/P sector. Each C/P
endorsed permit would receive an equal distribution of QS from the
total IFQ for the catcher/processor sector allocation.
25. In Sec. 660.212, the introductory text, and paragraphs (a)(2)
and (c)(1), are revised to read as follows:
Sec. 660.212 Fixed gear fishery--prohibitions.
These prohibitions are specific to the limited entry fixed gear
fisheries and to the limited entry trawl fishery Shorebased IFQ Program
under gear switching. General groundfish prohibitions are found at
Sec. 660.12, subpart C. In addition to the general groundfish
prohibitions specified in Sec. 660.12, subpart C, it is unlawful for
any person to:
* * * * *
(a) * * *
(2) Take, retain, possess, or land more than a single cumulative
limit of a particular species, per vessel, per applicable cumulative
limit period, except for sablefish taken in the limited entry, fixed
gear sablefish primary season from a vessel authorized to fish in that
season, as described at Sec. 660.231, subpart E and except for IFQ
species taken in the Shorebased IFQ Program from a vessel authorized
under gear switching provisions as described at Sec. 660.140.
* * * * *
(c) Fishing in conservation areas--(1) Operate a vessel registered
to a limited entry permit with a longline, trap (pot), or trawl
endorsement and longline and/or trap gear onboard in an applicable GCA
(as defined at Sec. 660.230(d)), except for purposes of continuous
transiting, with all groundfish longline and/or trap gear stowed in
accordance with Sec. 660.212(a) or except as authorized in the
groundfish management measures at Sec. 660.230.
* * * * *
[FR Doc. 2010-21124 Filed 8-24-10; 11:15 am]
BILLING CODE 3510-22-P