[Federal Register Volume 65, Number 3 (Wednesday, January 5, 2000)]
[Rules and Regulations]
[Pages 380-390]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-34065]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 991228352-9352-01; I.D. 121099C]
RIN 0648-AM83
Fisheries of the Exclusive Economic Zone Off Alaska; Permit
Requirements for Vessels, Processors, and Cooperatives Wishing to
Participate in the Bering Sea and Aleutian Islands Pollock Fishery
Under the American Fisheries Act
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Emergency interim rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: NMFS issues an emergency interim rule to implement permit
requirements for vessels, processors, and cooperatives wishing to
participate in the Bering Sea and Aleutian Islands management area
(BSAI) pollock fishery under the American Fisheries Act (AFA). This
emergency interim rule is necessary to provide participants in the BSAI
pollock fishery with the opportunity to apply for permits to
participate in the BSAI pollock fishery prior to the scheduled start of
the fishery on January 20, and to implement sideboard restrictions to
protect other Alaska fisheries from negative impacts as a result of
fishery cooperatives formed under the AFA.
DATES: Effective December 30, 1999 through June 27, 2000. Comments on
the emergency rule must be received by January 20, 2000.
ADDRESSES: Comments must be sent to Sue Salveson, Assistant
Administrator, Sustainable Fisheries Division, NMFS, Alaska Region,
P.O. Box 21668, Juneau, AK 99802, Attn: Lori Gravel. Comments also may
be sent via facsimile (fax) to 907-586-7465. Comments will not be
accepted if submitted via e-mail or Internet. Courier or hand delivery
of comments may be made to NMFS in the Federal Building, Room 453, 709
West 9th Street, Juneau, AK 99801, and marked Attn: Lori
Gravel.
Copies of the Environmental Assessment/ Regulatory Impact Review/
Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) prepared for
Amendments 61/61/13/8 and for this action may be obtained from North
Pacific Fishery Management Council, 605 West 4th Ave, Suite 306,
Anchorage, AK 99501, 907-271-2809. Send comments on collection-of-
information requirements to the NMFS, Alaska Region, and to the Office
of Information and Regulatory Affairs, Office of Management and Budget
(OMB), Washington, DC 20503, Attn: NOAA Desk Officer.
FOR FURTHER INFORMATION CONTACT: Kent Lind, 907-586-7228 or
kent.lind@noaa.gov
SUPPLEMENTARY INFORMATION:
NMFS manages the U.S. groundfish fisheries in the exclusive
economic zone of the BSAI and Gulf of Alaska (GOA) under the fishery
management plans for the groundfish fisheries of the BSAI and GOA
(FMPs). With Federal oversight, the State of Alaska manages the FMPs
for Commercial King Crab and Tanner Crab fisheries in the BSAI and the
Scallop Fishery off Alaska. The North Pacific Fishery Management
Council (Council) prepared, and NMFS approved, the FMPs under the
authority of the Magnuson-Stevens Fishery Conservation and Management
Act (Magnuson-Stevens Act). Regulations implementing the FMPs appear at
50 CFR part 679. General regulations governing U.S. fisheries also
appear at 50 CFR 600.
American Fisheries Act--Background Information
The AFA made profound changes in the management of the groundfish
fisheries of the BSAI and, to a lesser extent, the groundfish fisheries
of the
[[Page 381]]
GOA and crab fisheries of the BSAI. With respect to the groundfish and
crab fisheries off Alaska, the AFA established a new allocation scheme
for BSAI pollock thatallocates 10 percent of the BSAI pollock total
allowable catch (TAC) to the Western Alaska Community Development Quota
(CDQ) Program and, after allowance for incidental catch of pollock in
other fisheries, allocates the remaining TAC as follows: 50 percent to
vessels harvesting pollock for processing by inshore processors, 40
percent to vessels harvesting pollock for processing by catcher/
processors, and 10 percent to vessels harvesting pollock for processing
by motherships;provided for the buyout and scrapping of nine pollock
catcher/processors through a combination of $20 million in Federal
appropriations and $75 million in direct loan obligations; established
a fee of six-tenths (0.6) of one cent for each pound round weight of
pollock harvested by catcher vessels delivering to inshore processors
for the purpose of repaying the $75 million direct loan obligation;
listed by name and/or provided qualifying criteria for those vessels
and processors eligible to participate in the non-CDQ portion of the
BSAI pollock fishery; increased observer coverage and scale
requirements for AFA catcher/processors; established limitations for
the creation of fishery cooperatives in the catcher/processor,
mothership, and inshore industry sectors; required that NMFS grant
individual allocations of the inshore BSAI pollock TAC to inshore
catcher vessel cooperatives which form around a specific inshore
processor and agree to deliver the bulk of their catch to that
processor; required harvesting and processing restrictions (commonly
known as ``sideboards'') on fishermen and processors who have received
exclusive harvesting or processing privileges under the AFA to protect
the interests of fishermen and processors who have not directly
benefitted from the AFA; and established excessive share harvesting
caps for BSAI pollock and directed the Council to develop excessive
share caps for BSAI pollock processing and for the harvesting and
processing of other groundfish.
Since the passage of the AFA in October 1998, NMFS has begun to
implement specific provisions of the AFA through a variety of
mechanisms. For the 1999 fishing year, NMFS implemented the new AFA
pollock allocations and harvest restrictions on catcher/processors
through the interim and final BSAI harvest specifications (64 FR 50,
January 4, 1999; and 64 FR 12103, March 11, 1999). Required changes to
the CDQ program were implemented through an emergency interim rule (64
FR 3877, January 26, 1999; extended at 64 FR 34743, June 29, 1999). The
increase in observer coverage levels for pollock catcher/processors and
regulatory authority to manage AFA catcher/processor sideboard limits
through directed fishing closures were implemented through a separate
emergency interim rule (64 FR 3435, January 22, 1999; corrected at 64
FR 7814, February 17, 1999; and extended at 64 FR 33425, June 6, 1999).
In December 1998, NMFS administered the buyout of the nine catcher/
processors declared ineligible under the AFA, and is currently
overseeing the scrapping of the eight vessels scheduled for scrapping
under the AFA.
The Council has taken an active role in the development of
management measures to implement the various provisions of the AFA. The
Council began consideration of the implications of the AFA during a
special meeting in November 1998, during which it began consideration
of AFA-related actions that were required for the 1999 fishing year. At
its December 1998 meeting, the Council voted to recommend approval of
the two emergency rules cited here, recommended AFA-related provisions
to the 1999 BSAI harvest specifications for groundfish, and began an
analysis of a suite of AFA-related management measures that
subsequently became known as Amendments 61/61/13/8 to the FMPs for the
BSAI groundfish fishery, GOA groundfish fishery, BSAI king and Tanner
crab fishery, and Alaska scallop fishery, respectively. The Council
conducted an initial review of Amendments 61/61/13/8 and related AFA
measures at its April 1999 meeting, and took final action on these
amendments at its June 1999 meeting.
The suite of permit requirements in this emergency interim rule
duplicates, and would give immediate effect to, the permit requirements
proposed under Amendments 61/61/13/8. NMFS is issuing this emergency
interim rule to give immediate effect to all AFA-related permit
requirements so that the fishing industry has the opportunity to apply
for and receive AFA-related fishing permits prior to the start of the
2000 fishing year. An emergency rule is necessary to provide an
opportunity for inshore catcher vessels to form cooperatives for the
2000 fishing year. Inshore sector cooperatives will provide the inshore
industry with the ability to more effectively meet the temporal and
spatial dispersion objectives of NMFS' Steller sea lion conservation
measures that are being published in separate rulemakings. Without this
emergency interim rule, the inshore sector of the BSAI pollock industry
would be unable to form cooperatives prior to the start of the 2000
fishing year as provided for in the AFA, and would lose a valuable
method of meeting the temporal and spatial dispersion objectives of
NMFS' Steller sea lion conservation measures. In addition, this
emergency action is necessary to implement section 211(c)(1) of the AFA
which mandates sideboard restrictions to prevent AFA catcher vessels
from exceeding ``in the aggregate the traditional harvest levels of
such vessels in other fisheries under the authority of the North
Pacific Council as a result of fishery cooperatives in the directed
pollock fishery, [and] protect processors not eligible to participate
in the directed pollock fishery from adverse effects as a result of the
AFA or fishery cooperatives in the directed pollock fishery.'' Such
sideboard protections must be implemented prior to January 1, 2000, to
prevent adverse economic impacts on the participants of other
groundfish and crab fisheries that open January 2000.
The permitting requirements contained in this emergency interim
rule will be repeated in the proposed rule to implement Amendments 61/
61/13/8 to provide the public an opportunity to comment on AFA permit
requirements before they are made effective on a permanent basis. If
Amendments 61/61/13/8 are approved by NMFS, then this emergency interim
rule would be superseded by the final rule to implement the amendments.
This emergency interim rule establishes new permit requirements for
AFA catcher/processors, AFA catcher vessels, AFA motherships, AFA
inshore processors, and AFA inshore cooperatives. Any vessel used to
engage in directed fishing for a non-CDQ allocation of pollock in the
BSAI and any processor that receives pollock harvested in a non-CDQ
directed pollock fishery in the BSAI is required to maintain a valid
AFA permit onboard the vessel or at the plant location at all times
while non-CDQ pollock is being harvested or processed. These new AFA
permits do not exempt a vessel operator, vessel owner, or pollock
processor from any other applicable permit or licensing requirements
required by State or Federal regulations. However, vessels fishing for
BSAI pollock under the CDQ program and processors processing pollock
harvested under the CDQ program are not required to have AFA permits in
order to participate in the CDQ fishery.
This emergency interim rule does not establish an application
deadline for
[[Page 382]]
vessel or processor permits. However, once issued, AFA vessel and
processor permits are valid until December 31, 2004. AFA vessel and
processor permits may not be used on or transferred to another vessel
or processor, except under the replacement vessel provisions outlined
here. However, AFA permits may be amended to reflect any change in the
ownership of the vessel or processor. In contrast to vessel and
processor permits, AFA inshore cooperative permits are valid only for
the fishing year for which they are issued, but are renewable on an
annual basis.
AFA Permit Applications
Application forms for all AFA permits are available upon request
from the NMFS Alaska Region (see ADDRESSES) and are available for
downloading on the NMFS Alaska Region home page (http://
www.fakr.noaa.gov). AFA vessel and processor permits will be issued to
the current owner of a qualifying vessel or processor if he/she submits
to the Regional Administrator a completed AFA permit application that
is subsequently approved. This emergency interim rule also establishes
an appeals process under which applicants may appeal the NMFS
determinations related to AFA permits and AFA inshore cooperative
allocations. The appeals process for AFA permits is similar to the
process currently in place for the individual fishing quota program and
license limitation program (LLP) appeals.
AFA Catcher/Processor Permits
Under the AFA, the statutory list of qualified catcher/processors
took effect on January 1, 1999, and NMFS has already issued AFA
catcher/processor permits to the owners of all qualified catcher/
processors. Under this emergency interim rule, currently permitted AFA
catcher/processors will be issued new AFA permits that will be valid
until December 31, 2004. NMFS will reissue AFA catcher/processor
permits automatically, and the owners of AFA catcher/processors are not
required to re-submit AFA permit applications. Two categories of AFA
catcher/processor permits will be issued: Vessels listed by name in
sections 208(e)(1) through (20) of the AFA will be reissued
unrestricted AFA catcher/processor permits; vessels qualifying for AFA
catcher/processor permits under section 208(e)(21) will be reissued
restricted AFA catcher/processor permits, which limits them, in the
aggregate, to harvesting no more than 0.5 percent of the catcher/
processor sector TAC allocation.
AFA Catcher Vessel Permits
Under the AFA, a catcher vessel is qualified to fish for BSAI
pollock if it is listed by name in the AFA or if its history of
participation in the BSAI pollock fishery meets certain criteria set
out in the AFA. Under this emergency interim rule, AFA catcher vessel
permits may be endorsed to authorize directed fishing for pollock for
delivery to catcher/processors, AFA inshore processors, and/or AFA
motherships. Under the AFA, a catcher vessel may be authorized to
engage in directed fishing for pollock for delivery to both AFA inshore
processors and AFA motherships, depending on its qualifying catch
history. However, a vessel that is eligible to deliver to catcher/
processors is ineligible for an endorsement to deliver to inshore
processors or motherships. An applicant for an AFA catcher vessel
permit is required to indicate the sector endorsement(s) for which the
vessel qualifies. NMFS is establishing an official AFA record that
includes the relevant catch histories of all potentially qualifying
vessels and will review for verification all claims of endorsement
qualification against the official AFA record.
AFA Catcher Vessel Crab Sideboard Endorsements
Under section 211(c)(1)(A) of the AFA, the Council is required to
recommend measures to limit the participation of AFA catcher vessels in
BSAI crab fisheries. Section 211(c)(2)(C) of the AFA also prohibits
section 208(b) catcher vessels (i.e., AFA catcher vessels eligible to
deliver to catcher/processors) ``from participating in a directed
fishery for any species of crab in the Bering Sea and Aleutian Islands
Management Area unless the catcher vessel harvested crab in the
directed fishery for that species of crab in such Area during 1997.''
In June 1999, the Council developed final recommendations for limits on
the participation of AFA catcher vessels in BSAI crab fisheries in
order to comply with these two provisions of the AFA.
NMFS will implement these catcher vessel crab sideboard limits
recommended by the Council through crab sideboard endorsements on the
AFA catcher vessel permits. The owner of a catcher vessel who wishes to
participate in any BSAI crab fishery must apply for and receive a
sideboard endorsement for that crab species on the vessel's AFA catcher
vessel permit. AFA catcher vessel permits may be endorsed for the
Bristol Bay Red King Crab, St. Matthew Island blue king crab, Pribilof
Island red or blue king crab, Aleutian Islands brown king crab,
Aleutian Islands red king crab, Opilio Tanner crab, and Bairdi Tanner
crab fisheries based on a vessel's history of participation in each of
those fisheries. The specific qualifying years for each fishery are set
out in Sec. 679.4(l)(3)(ii)(D) of this emergency interim rule. While
the Council's recommended qualifying years for some crab fisheries are
different from the 1997 qualifying year specified in the AFA for
section 208(b) catcher vessels, the practical effects of the Council's
recommended qualifying years are the same as those specified in the AFA
because the same set of subsection 208(b) of the AFA catcher vessels
would qualify for crab sideboard endorsements under either the
Council's recommended qualification criteria, or the criteria set out
in section 211(c)(2)(C) of the AFA. Therefore, the Council's
recommended qualifying criteria are consistent with those set forth in
section 211(c)(2)(C) of the AFA.
The Council based some of its crab sideboard recommendations on
whether a particular vessel is ``LLP qualified'' for a particular crab
fishery. To implement this recommendation, the AFA catcher vessel
permit application contains questions related to vessel catch history
using the same qualifying years as the LLP program. This rule requires
applicants for AFA catcher vessel permits to indicate on the permit
application which AFA crab sideboard endorsements the vessel qualifies
for based on the qualifying criteria set out in this rule. NMFS will
review for verification all claims of qualification.
Owners of catcher vessels should be aware that qualification for a
crab sideboard endorsement does not in and of itself provide sufficient
authorization to participate in a BSAI crab fishery. Existing
regulations require the vessel also to have a valid LLP permit for that
fishery. To participate in a BSAI crab fishery, the operator of an AFA
catcher vessel must have a valid LLP license for that crab fishery as
well as an AFA catcher vessel permit containing an endorsement for that
crab fishery.
Exemptions to Catcher Vessel Groundfish Sideboards
NMFS through subsequent rulemaking will be implementing sideboard
measures to restrict AFA catcher vessels from exceeding, in the
aggregate, their historic harvests in other groundfish fisheries based
on recommendations made by the Council at its June 1999 meeting. These
groundfish sideboards will apply to all AFA catcher vessels in the
aggregate
[[Page 383]]
regardless of sector and regardless of participation in a cooperative
except that catcher vessels less than 125 ft whose annual BSAI pollock
landings averaged less than 1700 mt from 1995-1997 (i.e., landed less
than 5,100 mt of pollock over the 3-year period) are exempt from BSAI
Pacific cod sideboards if they made 30 or more legal landings of BSAI
Pacific cod in the BSAI directed fishery for Pacific cod. In addition,
AFA catcher vessels that meet the same vessel length and BSAI pollock
landing criteria and that made 40 or more legal landings of GOA
groundfish would be exempt from groundfish sideboards in the GOA.
In recommending these exemptions, the Council noted that many of
the AFA catcher vessels with relatively low catch histories of BSAI
pollock have traditionally targeted BSAI Pacific cod and GOA groundfish
during much of the year and may be only minor participants in the BSAI
pollock fishery. The Council believed that imposing aggregate
sideboards on such vessels in the BSAI Pacific cod fishery and GOA
groundfish fisheries could severely harm the owners of such vessels
given their historically high levels of participation in non-pollock
fisheries, and the fact that their historic dedication to fisheries
other groundfish fisheries may account for their lower catch histories
of BSAI pollock during the AFA qualifying years. The owners of vessels
who believe their vessel may be eligible for one or both of these
exemptions must apply for the sideboard exemption on their AFA catcher
vessel permit application form.
AFA Mothership Permits
Under subsection 208(d) of the AFA, three motherships are
authorized by vessel name to process pollock harvested in the BSAI
directed pollock fishery for delivery to motherships. Under this
emergency interim rule, NMFS will issue to the owner of a mothership an
AFA mothership permit if the mothership is listed by name in sections
208(d)(1) through (3) of the AFA. However, the owner of a mothership
wishing to process pollock harvested by a fishery cooperative also must
apply for and receive a cooperative processing endorsement on its AFA
mothership permit. This requirement is necessary because NMFS must
identify and place crab processing restrictions on any entity that owns
or controls an AFA mothership or an AFA inshore processor that receives
pollock harvested by a cooperative.
Subsection 211(c)(2)(A) of the AFA imposes crab processing
restrictions on the owners of AFA mothership and AFA inshore processors
that receive pollock from a fishery cooperative. Under the AFA, these
processing limits extend not only to the AFA processing facility
itself, but also to any entity that directly or indirectly owns or
controls a 10-percent or greater interest in the AFA mothership or in
the AFA inshore processor. To implement the crab processing
restrictions contained in subsection 211(c)(2)(A) of the AFA, NMFS is
requiring that applicants for AFA mothership and AFA inshore processor
permits disclose on their permit applications all entities directly or
indirectly owning or controlling a 10-percent or greater interest in
the AFA mothership or AFA inshore processor and the names of BSAI crab
processors in which such entities directly or indirectly own or control
a 10-percent or greater interest. An applicant for an AFA mothership or
an AFA inshore processor permit who does not disclose this crab
processor ownership information may receive an AFA mothership permit or
an AFA inshore processor permit but will be denied an endorsement
authorizing the processor to receive and process pollock harvested by a
fishery cooperative.
AFA Inshore Processor Permits
Under the AFA, inshore processors are authorized to receive and
process BSAI pollock harvested in the directed fishery, based on their
levels of processing in 1996 and 1997. NMFS will provide to an
applicant an unrestricted AFA inshore processor permit if the
Administrator, Alaska Region, NMFS (Regional Administrator) determines
that the inshore processing facility annually processed more than 2,000
metric tons (mt) round weight of pollock harvested in the inshore
directed pollock fishery in each of 1996 and 1997. NMFS will provide to
an applicant a restricted AFA inshore processor permit if the Regional
Administrator determines that the inshore processing facility processed
pollock harvested in the inshore directed pollock fishery during 1996
or 1997, but did not process annually more than 2,000 mt round weight
of pollock in each of 1996 and 1997. A restricted AFA inshore processor
permit will prohibit the inshore processing facility from processing
more than 2,000 mt round weight of BSAI pollock harvested in the
directed fishery in any one year.
The owner of an AFA inshore processor wishing to process pollock
harvested by a fishery cooperative must also have a cooperative
processing endorsement on the AFA inshore processing permit. The
requirements for an AFA inshore processor cooperative processing
endorsement are the same as those listed for AFA motherships above.
At its June 1999 meeting, the Council also recommended that each
AFA inshore processor be restricted to operating in the single
geographic location in which it operated in 1996 or 1997 when
processing pollock harvested in the BSAI directed pollock fishery.
However, at its December 1999 meeting, the Council changed its June
1999 recommendation and recommended instead that inshore processors be
held to a single geographic location during a fishing year. This
revised recommendation would allow a stationary floating processor to
change locations between fishing years instead of holding them to the
location in which they operated in 1996 or 1997.
The purpose of this recommendation is to implement section
210(f)(1)(A) of the AFA, which includes vessels in a single geographic
location in Alaska state waters. To implement this restriction, this
emergency rule limits shoreside (land-based) processors to operating in
the physical location in which the facility first processed pollock
during a fishing year. Stationary floating processors are restricted to
operating in a location within Alaska state waters that is within 5
nautical miles (nm) of the position in which the stationary floating
processor first processed BSAI pollock harvested in the BSAI directed
pollock fishery during a fishing year. NMFS believes that 5 nm is an
appropriate distance for this requirement because it allows the
operator of a floating processor some flexibility in choosing an
appropriate anchorage, but it still requires that the processor be
located in the same body of water for the duration of a fishing year.
Inshore Cooperative Fishing Permits
Under this emergency interim rule, NMFS will issue to an inshore
catcher vessel cooperative formed for the purpose of cooperatively
managing directed fishing for pollock during 2000 an AFA inshore
cooperative fishing permit if NMFS receives the cooperative's completed
application by December 31, 1999, and the Regional Administrator
approves it. Applications for an inshore cooperative fishing permit
must be accompanied by a copy of the cooperative contract itself and by
a copy of a letter from a party to the contract requesting a business
review letter on the fishery cooperative from the Department of Justice
and any response to such request. The Regional Administrator will not
approve applications for an inshore cooperative fishing permit that are
not received by
[[Page 384]]
the NMFS Alaska Region on or before December 31, 1999.
As part of the application for an inshore cooperative fishing
permit, the cooperative's designated representative, who is signing the
permit on behalf of the various members, is required to certify that:
(1) Each catcher vessel in the cooperative is a qualified catcher
vessel meaning that the vessel owner(s) has applied for an AFA catcher
vessel permit and has delivered more pollock harvested in the BSAI
pollock directed pollock fishery to the designated AFA inshore
processor than to any other AFA inshore processor during the year prior
to the year in which the cooperative fishing permit would be in effect,
(2) the cooperative contract was signed by the owners of at least 80
percent of the qualified catcher vessels that delivered pollock
harvested in the BSAI directed pollock fishery to the cooperative's
designated AFA inshore processor during the year prior to the year in
which the cooperative fishing permit would be in effect, (3) the
cooperative contract requires that the cooperative deliver at least 90
percent of its BSAI pollock catch to its designated AFA processor, and
(4) each member vessel is an AFA-eligible catcher vessel and has no
permit sanctions or other type of sanctions against it that would
prevent it from fishing for groundfish in the BSAI. A catcher vessel
that is ineligible to harvest BSAI pollock due to permit sanctions or
to lack of an AFA or other required permit may not be a member of an
inshore cooperative that receives an inshore cooperative fishing
permit. To add or subtract a qualified catcher vessel to or from a
cooperative fishing permit, the cooperative must submit a new
application prior to the December 31 deadline, and the new application
must be subsequently approved by the Regional Administrator. Inshore
cooperative fishing permits issued under this emergency interim rule
are valid for the 2000 fishing year only.
Replacement Vessels
In the event of the actual total loss or constructive total loss of
an AFA catcher vessel, AFA mothership, or AFA catcher/processor, the
owner of such vessel may designate a replacement vessel that will be
eligible in the same manner as the original vessel after submission of
an application for an AFA replacement vessel that is subsequently
approved by NMFS. The AFA contains specific restrictions on replacement
vessels that are set out in detail in the emergency interim rule
regulatory text at Sec. 679.4(l)(7). In this emergency rule, NMFS has
made one change from the language of the statute. Section 208(g)(5) of
the AFA states that a vessel may be used as a replacement vessel for an
eligible AFA vessel if:
the eligible vessel is less than 165 feet in registered length,
of fewer than 750 gross registered tons, and has engines incapable
of producing less than 3,000 shaft horsepower, the replacement
vessel is less than each of such thresholds and does not exceed by
more than 10 percent the registered length, gross registered tons or
shaft horsepower of the eligible vessel;
NMFS believes that Congress intended this clause to apply to
eligible vessels with engines incapable of producing more than 3,000
shaft horsepower rather than engines incapable of producing less than
3,000 shaft horsepower because no catcher vessel operating in Alaska
has engines incapable of producing less than 3,000 shaft horsepower.
Any marine engine is capable of producing less than 3,000 shaft
horsepower at less than full throttle or at idle. Therefore, in this
emergency rule, the phrase ``incapable of producing more than 3,000
shaft horsepower'' is used to implement section 208(g)(5) of the AFA.
An existing AFA vessel may be designated as a replacement vessel
for a lost AFA vessel. In the event that an existing AFA catcher vessel
is designated as a replacement for a lost AFA catcher vessel, the catch
histories of the two vessels may be merged for the purpose of making
inshore cooperative allocations.
Official AFA Record and Appeals
In order to issue AFA permits, NMFS is compiling available
information about vessels and processors that were used to participate
in the BSAI pollock fisheries during the qualifying periods.
Information in the official AFA record will include vessel ownership
information, documented harvests made from vessels during AFA
qualifying periods, vessel characteristics, and documented amounts of
pollock processed by pollock processors during AFA qualifying periods.
The official AFA record is presumed to be correct for the purpose of
determining eligibility for AFA permits. An applicant for an AFA permit
has the burden of proving correct any information submitted in an
application that is inconsistent with the official record.
This rule also establishes an appeals process under which the
owners of vessels and processors may appeal NMFS determinations about
either AFA eligibility or inshore cooperative allocations. The appeals
process for AFA permits and inshore cooperative allocations is based on
the existing appeals process in place for the individual fishing quota
and license limitation programs.
Changes to Definitions
Under this emergency interim rule, new definitions are added for
``ADF&G processor code,'' ``AFA catcher/processor,'' ``AFA catcher
vessel,'' ``AFA inshore processor,'' ``AFA mothership,'' ``Designated
primary processor,'' ``Official AFA record,'' ``Restricted AFA catcher/
processor,'' ``Restricted AFA inshore processor,'' ``Stationary
floating processor,'' ``Unrestricted AFA catcher/processor,'' and
``Unrestricted AFA inshore processor'' to describe vessels and
processors permitted to participate in the BSAI pollock fishery under
the AFA. The definitions of ``AFA crab processor,'' and ``AFA inshore
and/or mothership entity'' are added to implement the crab processing
sideboard restrictions required under the AFA. The definition of
``Designated primary processor'' is added to describe the processor to
which an inshore fishery cooperative will deliver at least 90 percent
of its BSAI pollock. The definition for ``Official AFA record'' is
added to describe the relevant catch histories and other data relevant
to all potentially qualifying vessels and processors in the BSAI
pollock fisheries. The definition for ``Stationary floating processor''
is added to define a vessel of the United States operating solely as a
mothership in Alaska State waters that remains anchored or otherwise
remains stationary in a single geographic location while processing
groundfish harvested in the GOA or BSAI.
Classification
The Assistant Administrator for Fisheries, NOAA, has determined
that this rule is necessary to respond to an emergency situation and
that it is consistent with the Magnuson-Stevens Act, AFA, and other
applicable laws.
Because prior notice and opportunity for public comment are not
required for this rule by 5 U.S.C. 553, or any other law, the
analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601
et seq., are inapplicable.
This emergency interim rule has been determined to be significant
for the purposes of E.O. 12866.
NMFS finds that there is good cause to waive the requirement to
provide prior notice and an opportunity for public comment pursuant to
authority set forth at 5 U.S.C. 5(b)(B). This action is necessary to
implement the permit requirements of the AFA that authorize vessels and
processors to fish for and process pollock, and to provide an
[[Page 385]]
opportunity for inshore catcher vessels to form cooperatives for the
2000 fishing year. Inshore sector cooperatives will provide the inshore
industry with the ability to more effectively meet the temporal and
spatial dispersion objectives of NMFS's Steller sea lion conservation
measures that are being published separately from this emergency rule.
Delaying the effectiveness of this emergency interim rule to provide
prior notice and opportunity for comment would effectively deny the
inshore sector of the BSAI pollock industry the opportunity to form
cooperatives prior to the start of the 2000 fishing year as provided
for in the AFA. Therefore, this sector of the industry would lose a
valuable method of meeting the temporal and spatial dispersion
objectives of NMFS's Steller sea lion conservation measures. Delaying
the start date of the 2000 pollock fishery to accommodate delayed
permitting requirements would conflict with the investment-backed
expectations of the regulated community, could disrupt the supply of
seafood products to the United States and consequently, would be
contrary to the public interest. Likewise, the need to avoid delaying
the start of the pollock season constitutes good cause, pursuant to
authority set forth at 5 U.S.C. 553(d)(3), not to delay the effective
date of this rule for 30 days. In addition, the regulated community has
been aware since the June 1999 Council meeting that these new
requirements would be necessary and have had ample time to prepare for
compliance, making the 30-day delay in effective date unnecessary.
Notwithstanding any other provision of law, no person is required
to respond to nor shall a person be subject to a penalty for failure to
comply with a collection of information subject to the requirements of
the PRA unless that collection of information displays a currently
valid OMB control number.
This rule contains collection-of-information requirements subject
to the Paperwork Reduction Act (PRA) and that have been approved by OMB
under control number 0648-0393. Public reporting burden for these
collections of information is estimated to average as follows: For the
operator to complete the AFA catcher vessel permit application is 2
hours; for an operator of an AFA mothership or manager of an inshore
processor to complete the AFA mothership or inshore processor permit
application is 2 hours; for a co-operative representative to complete
the AFA inshore cooperative permit application is 2 hours; and for an
operator to complete the AFA permit application for a replacement
vessel is 30 minutes. The estimated response times shown include the
time for reviewing instructions, searching existing data sources,
gathering and maintaining the data needed, and completing and reviewing
the collections of information. Send comments regarding this burden
estimate or any other aspect of these collections of information,
including suggestions for reducing this burden, to NMFS and OMB (see
ADDRESSES).
The President has directed Federal agencies to use plain language
when communicating with the public, through regulations or otherwise.
Therefore, NMFS seeks public comment on any ambiguity or unnecessary
complexity arising from the language used in this emergency interim
rule.
List of Subjects in 50 CFR Part 679
Alaska, Fisheries, Recordkeeping and reporting requirements.
Dated: December 28, 1999.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set forth in the preamble, 50 CFR part 679 is
amended as follows:
PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
1. The authority citation for 50 CFR part 679 is revised to read as
follows:
Authority: Title II of Division C, Pub. L. 105-277, 112 Stat.
2681; Sec. 3027, Pub. L. 106-31, 113 Stat. 57 (16 U.S.C. 773 et
seq., 1801 et seq, and 3631 et seq.).
2. In Sec. 679.2, definitions of ``ADF&G processor code,'' ``AFA
catcher/processor,'' ``AFA catcher vessel,'' ``AFA crab facility,''
``AFA inshore or mothership entity,'' ``AFA inshore processor,'' ``AFA
mothership,'' ``Designated primary processor,'' ``Official AFA
record,'' ``Restricted AFA catcher/processor,'' ``Restricted AFA
inshore processor,'' ``Stationary floating processor,'' ``Unrestricted
AFA catcher/processor,'' and ``Unrestricted AFA inshore processor,''
are added in alphabetical order to read as follows:
Sec. 679.2 Definitions.
* * * * *
ADF&G processor code means State of Alaska Department of Fish &
Game (ADF&G) Intent to operate processor license number (example:
F12345).
AFA catcher/processor means a catcher/processor permitted to
harvest BSAI pollock under Sec. 679.4(l)(2).
AFA catcher vessel means a catcher vessel permitted to harvest
BSAI pollock under Sec. 679.4(l)(3).
AFA crab facility means a processing plant, catcher/processor,
mothership, floating processor or any other operation that processes
Bering Sea or Aleutian Island king or Tanner crab in which any
individual, corporation or other entity that is part of an AFA entity
either directly or indirectly owns a 10 percent or greater interest, or
exercises 10 percent or greater control.
(1) Indirect ownership standard. For purposes of this definition,
an indirect ownership interest is one that passes through one or more
intermediate entities. An entity's percentage of indirect interest is
equal to the entity's percentage of direct interest in an intermediate
entity multiplied by the intermediate entity's percentage of direct, or
indirect, interest in the crab processing facility.
(2) 10 percent control standard. Also for purposes of this
definition, an entity is deemed to exercise 10 percent or greater
control of a crab processing facility if the entity controls another
entity that directly or indirectly owns a 10 percent or greater
interest in the crab processing facility.
(i) The term ``control'' includes:
(A) Ownership of more than 50 percent of the entity;
(B) The right to direct the business of the entity;
(C) The right to limit the actions of or replace the chief
executive officer, a majority of the board of directors, any general
partner, or any person serving in a management capacity of the entity;
or
(D) The right to direct the operation or manning of the crab
processing facility.
(ii) The term ``control'' does not include the right to simply
participate in the above actions.
AFA inshore or mothership entity means an entity that owns a
mothership and/or inshore processor that processes pollock harvested in
the directed BSAI pollock fishery.
(1) 10-percent ownership standard. For purposes of this definition,
all individuals, corporations or other entities that either directly or
indirectly own a 10 percent or greater interest in the mothership and/
or inshore processor, as the case may be, are considered as comprising
a single AFA inshore or mothership entity. An indirect interest is one
that passes through one or more intermediate entities. An entity's
percentage of indirect interest is equal to the entity's percentage of
direct interest in an intermediate entity multiplied by the
intermediate entity's percentage of direct, or indirect, interest in
the mothership and/or inshore processor, as the case may be.
[[Page 386]]
(2) 10 percent control standard. Also for purposes of this
definition, any individual, corporation or other entity that controls
another entity that directly or indirectly owns a 10 percent or greater
interest in the mothership and/or inshore processor, as the case may
be, is considered a part of the same AFA inshore or mothership entity
of which the controlled entity is a part.
(i) The term ``control'' includes:
(A) Ownership of more than 50 percent of the entity;
(B) The right to direct the business of the entity;
(C) The right to limit the actions of or replace the chief
executive officer, a majority of the board of directors, any general
partner, or any person serving in a management capacity of the entity;
or
(D) The right to direct the operation or manning of the mothership
and/or inshore processor, as the case may be.
(ii) The term ``control'' does not include the right to simply
participate in the above actions.
AFA inshore processor means a shoreside processor or stationary
floating processor permitted to process BSAI pollock under
Sec. 679.4(l)(4).
AFA mothership means a mothership permitted to process BSAI pollock
under Sec. 679.4(l)(5).
* * * * *
Designated primary processor means an AFA inshore processor that is
designated by an inshore pollock cooperative as the AFA inshore
processor to which the cooperative will deliver at least 90 percent of
its annual BSAI pollock allocation during the year in which the AFA
inshore cooperative fishing permit is in effect.
* * * * *
Official AFA record means the information prepared by the Regional
Administrator about vessels and processors that were used to
participate in the BSAI pollock fisheries during the qualifying periods
specified in Sec. 679.4(l). Information in the official AFA record
includes vessel ownership information, documented harvests made from
vessels during AFA qualifying periods, vessel characteristics, and
documented amounts of pollock processed by pollock processors during
AFA qualifying periods. The official AFA record is presumed to be
correct for the purpose of determining eligibility for AFA permits. An
applicant for an AFA permit will have the burden of proving correct any
information submitted in an application that is inconsistent with the
official record.
* * * * *
Restricted AFA catcher/processor means an AFA catcher/processor
permitted to harvest BSAI pollock under Sec. 679.4(l)(2)(ii).
Restricted AFA inshore processor means an AFA inshore processor
permitted to harvest pollock under Sec. 679.4(l)(5)(i)(B).
* * * * *
Stationary floating processor means a vessel of the United States
operating as a processor in Alaska State waters that remains anchored
or otherwise remains stationary in a single geographic location while
receiving or processing groundfish harvested in the GOA or BSAI.
* * * * *
Unrestricted AFA catcher/processor means an AFA catcher/processor
permitted to harvest BSAI pollock under Sec. 679.4(l)(2)(i).
Unrestricted AFA inshore processor means an AFA inshore processor
permitted to harvest pollock under Sec. 679.4(l)(5)(i)(A).
* * * * *
3. In Sec. 679.4, a new paragraph (l) is added to read as follows:
Sec. 679.4 Permits.
* * * * *
(l) AFA permits (applicable through June 27, 2000)--(1) General--
(i) Applicability. In addition to any other permit and licensing
requirements set out in this part, any vessel used to engage in
directed fishing for a non-CDQ allocation of pollock in the BSAI and
any shoreside processor, stationary floating processor, or mothership
that receives pollock harvested in a non-CDQ directed pollock fishery
in the BSAI must have a valid AFA permit onboard the vessel or at the
facility location at all times while non-CDQ pollock is being harvested
or processed. An AFA permit does not exempt a vessel operator, vessel,
or processor from any other applicable permit or licensing requirement
required under this part or in other state or Federal regulations.
(ii) Duration. Except as provided in paragraph (l)(6)(iv) of this
section, and unless suspended or revoked, AFA vessel and processor
permits are valid until December 31, 2004.
(iii) Application for permit. NMFS will issue AFA vessel and
processor permits to the current owner(s) of a qualifying vessel or
processor if the owner(s) submits to the Regional Administrator a
completed AFA permit application that is subsequently approved.
(iv) Amended permits. AFA vessel and processor permits may not be
used on or transferred to any vessel or processor that is not listed on
the permit. However, AFA permits may be amended to reflect any change
in the ownership of the vessel or processor. An application to amend an
AFA permit must include the following:
(A) The original AFA permit to be amended, and
(B) A completed AFA permit application signed by the new vessel or
processor owner.
(2) AFA catcher/processor permits --(i) Unrestricted. NMFS will
issue to an owner of a catcher/processor an unrestricted AFA catcher/
processor permit if the catcher/processor is one of the following (as
listed in AFA paragraphs 208(e)(1) through (20)):
AMERICAN DYNASTY (USCG documentation number 951307);
KATIE ANN (USCG documentation number 518441);
AMERICAN TRIUMPH (USCG documentation number 646737);
NORTHERN EAGLE (USCG documentation number 506694);
NORTHERN HAWK (USCG documentation number 643771);
NORTHERN JAEGER (USCG documentation number 521069);
OCEAN ROVER (USCG documentation number 552100);
ALASKA OCEAN (USCG documentation number 637856);
ENDURANCE (USCG documentation number 592206);
AMERICAN ENTERPRISE (USCG documentation number 594803);
ISLAND ENTERPRISE (USCG documentation number 610290);
KODIAK ENTERPRISE (USCG documentation number 579450);
SEATTLE ENTERPRISE (USCG documentation number 904767);
US ENTERPRISE (USCG documentation number 921112);
ARCTIC STORM (USCG documentation number 903511);
ARCTIC FJORD (USCG documentation number 940866);
NORTHERN GLACIER (USCG documentation number 663457);
PACIFIC GLACIER (USCG documentation number 933627);
HIGHLAND LIGHT (USCG documentation number 577044);
STARBOUND (USCG documentation number 944658).
(ii) Restricted. NMFS will issue to an owner of a catcher/processor
a restricted AFA catcher/processor permit if the catcher/processor is
not listed in Sec. 679.4(l)(2)(i) and is determined by the Regional
Administrator to have harvested more than 2,000 mt of pollock in the
1997 BSAI directed pollock fishery.
(3) AFA catcher vessel permits. NMFS will issue to an owner of a
catcher vessel an AFA catcher vessel permit containing sector
endorsements and sideboard restrictions upon receipt and approval of a
completed application for an AFA catcher vessel permit.
[[Page 387]]
(i) Qualifying criteria--(A) Catcher vessels delivering to catcher/
processors. NMFS will endorse an AFA catcher vessel permit to authorize
directed fishing for pollock for delivery to a catcher/processor if the
catcher vessel:
(1) Is one of the following (as listed in paragraphs 208(b)(1)
through (7) of the AFA):
AMERICAN CHALLENGER (USCG documentation number 633219);
FORUM STAR (USCG documentation number 925863);
MUIR MILACH (USCG documentation number 611524);
NEAHKAHNIE (USCG documentation number 599534);
OCEAN HARVESTER (USCG documentation number 549892);
SEA STORM (USCG documentation number 628959);
TRACY ANNE (USCG documentation number 904859); or
(2) Is not listed in Sec. 679.4(l)(3)(i)(A)(1) and is determined by
the Regional Administrator to have delivered at least 250 metric tons
and at least 75 percent of the pollock it harvested in the directed
BSAI pollock fishery in 1997 to catcher/processors for processing by
the offshore component.
(B) Catcher vessels delivering to AFA motherships. NMFS will
endorse an AFA catcher vessel permit to authorize directed fishing for
pollock for delivery to an AFA mothership if the catcher vessel:
(1) Is one of the following (as listed in paragraphs 208(c)(1)
through (19) and subsection 211(e) of the AFA):
ALEUTIAN CHALLENGER (USCG documentation number 603820);
ALYESKA (USCG documentation number 560237);
AMBER DAWN (USCG documentation number 529425);
AMERICAN BEAUTY (USCG documentation number 613847);
CALIFORNIA HORIZON (USCG documentation number 590758);
MAR-GUN (USCG documentation number 525608);
MARGARET LYN (USCG documentation number 615563);
MARK I (USCG documentation number 509552);
MISTY DAWN (USCG documentation number 926647);
NORDIC FURY (USCG documentation number 542651);
OCEAN LEADER (USCG documentation number 561518);
OCEANIC (USCG documentation number 602279);
PACIFIC ALLIANCE (USCG documentation number 612084);
PACIFIC CHALLENGER (USCG documentation number 518937);
PACIFIC FURY (USCG documentation number 561934);
PAPADO II (USCG documentation number 536161);
TRAVELER (USCG documentation number 929356);
VESTERAALEN (USCG documentation number 611642);
WESTERN DAWN (USCG documentation number 524423);
LISA MARIE (USCG documentation number 1038717); or
(2) Is not listed in Sec. 679.4(l)(3)(i)(B)(1) and is determined by
the Regional Administrator to have delivered at least 250 mt of pollock
for processing by motherships in the offshore component of the BSAI
directed pollock fishery in any one of the years 1996 or 1997, or
between January 1, 1998, and September 1, 1998, and is not eligible for
an endorsement to deliver pollock to catcher/processors under
Sec. 679.4(l)(3)(i)(A).
(C) Catcher vessels delivering to AFA inshore processors. NMFS will
endorse an AFA catcher vessel permit to authorize directed fishing for
pollock for delivery to an AFA inshore processor if the catcher vessel:
(1) Is the LISA MARIE (USCG documentation number 1038717); or
(2) Is not eligible for an endorsement to deliver pollock to
catcher/processors under Sec. 679.4(l)(3)(i)(A), and:
(i) Is determined by the Regional Administrator to have delivered
at least 250 mt of pollock harvested in the directed BSAI pollock
fishery for processing by the inshore component in any one of the years
1996 or 1997, or between January 1, 1998, and September 1, 1998; or
(ii) Is less than 60 ft (18.1 meters) LOA and is determined by the
Regional Administrator to have delivered at least 40 mt of pollock
harvested in the directed BSAI pollock fishery for processing by the
inshore component in any one of the years 1996 or 1997, or between
January 1, 1998 and September 1, 1998.
(ii) Application for AFA catcher vessel permit. A completed
application for an AFA catcher vessel permit must contain:
(A) Vessel information. The vessel name, ADF&G registration number,
USCG documentation number, vessel telephone number (if any), gross
tons, shaft horsepower, and registered length (in feet);
(B) Owner information. Owner name(s), tax ID number(s), business
mailing address(es), business telephone number(s), business fax
number(s), business e-mail address(es), and managing company (if any);
(C) Vessel AFA qualification information. AFA catcher vessel permit
endorsement(s) requested; and
(D) Vessel crab activity information required for crab sideboard
endorsements. The owner of an AFA catcher vessel wishing to participate
in any BSAI king or Tanner crab fishery must apply for a crab sideboard
endorsement authorizing the catcher vessel to retain that crab species.
An AFA catcher vessel permit may be endorsed for a crab species if the
owner requests a crab sideboard endorsement, provides supporting
documentation that the catcher vessel made the required legal
landing(s) of a crab species, and the Regional Administrator verifies
the legal landing(s) according to the following criteria:
(1) Bristol Bay Red King Crab (BBRKC): A legal landing of any BSAI
king or Tanner crab species in 1996, 1997, or on or before February 7,
1998. A BBRKC sideboard endorsement also authorizes a vessel to retain
Bairdi Tanner crab harvested during the duration of a BBRKC opening if
the vessel is otherwise authorized to retain Bairdi Tanner crab while
fishing for BBRKC under state and Federal regulations.
(2) St. Matthew Island blue king crab: A legal landing of St.
Matthew Island blue king crab in that fishery in 1995, 1996, or 1997.
(3) Pribilof Island red and blue king crab: A legal landing of
Pribilof Island blue or red king crab in that fishery in 1995, 1996, or
1997.
(4) Aleutian Islands (Adak) brown king crab: A legal landing of
Aleutian Islands brown king crab during in each of the 1997/1998 and
1998/1999 fishing seasons.
(5) Aleutian Islands (Adak) red king crab: A legal landing of
Aleutian Islands red king crab in each of the 1995/1996 and 1998/1999
fishing seasons.
(6) Opilio Tanner crab: A legal landing of Chionoecetes(C.) opilio
Tanner crab in each of 4 or more years from 1988 to 1997.
(7) Bairdi Tanner crab: A legal landing of C. bairdi Tanner crab in
1995 or 1996.
(E) Vessel exemptions from AFA catcher vessel groundfish sideboard
directed fishing closures. An AFA catcher vessel permit may contain
exemptions from certain groundfish sideboard directed fishing closures.
If a vessel owner is requesting an exemption from groundfish sideboard-
directed closures, the application must provide supporting
documentation that the catcher vessel qualifies for the exemption based
on the criteria set out below. The Regional Administrator will review
the vessel's catch history according to the following criteria:
(1) BSAI Pacific cod. For a catcher vessel to qualify for an
exemption from AFA catcher vessel sideboards in the BSAI Pacific cod
fishery, the catcher vessel must be less than 125 ft LOA,
[[Page 388]]
have harvested a combined total of less than 5,100 mt of BSAI pollock,
and have made 30 or more legal landings of Pacific cod in the BSAI
directed fishery for Pacific cod during the combined years 1995, 1996,
and 1997.
(2) GOA groundfish species. For a catcher vessel to qualify for an
exemption from AFA catcher vessel sideboards in the GOA groundfish
fisheries, the catcher vessel must be less than 125 ft LOA, have
harvested a combined total of less than 5,100 mt of BSAI pollock and
made 40 or more legal landings of GOA groundfish during the combined
years 1995, 1996, and 1997.
(F) Certification of notary and applicant. Owner signature(s), date
of signature, printed name(s), and stamp and signature of a notary
public.
(4) AFA mothership permits. NMFS will issue to an owner of a
mothership an AFA mothership permit if the mothership is one of the
following (as listed in paragraphs 208(d)(1) through (3) of the AFA):
EXCELLENCE (USCG documentation number 967502);
GOLDEN ALASKA (USCG documentation number 651041); and
OCEAN PHOENIX (USCG documentation number 296779).
(i) Cooperative processing endorsement. The owner of an AFA
mothership who wishes to process pollock harvested by a fishery
cooperative formed under Sec. 679.60 must apply for and receive a
cooperative processing endorsement on the vessel's AFA mothership
permit.
(ii) Application for AFA mothership permit. A completed application
for an AFA mothership permit must contain:
(A) Type of permit requested. Type of processor and whether
requesting an AFA co-operative endorsement.
(B) Mothership information. The mothership name, ADF&G processor
code, USCG documentation number, Federal fisheries permit number, gross
tons, shaft horsepower, and registered length (in feet).
(C) Owner information. Owner name(s), tax ID number(s), business
mailing address(es), business telephone number(s), business fax
number(s), business e-mail address(es), and managing company (if any);
(D) AFA crab facility ownership information. If the applicant is
applying for a cooperative pollock processing endorsement, the AFA
mothership application must list the name, type of facility, ADF&G
processor code, and percentage of ownership or control of each of each
AFA crab facility that is owned or controlled by the AFA mothership
entity that owns or controls the AFA mothership; and
(E) Certification of notary and applicant. Owner signature(s), date
of signature, printed name(s), and notary stamp and signature of a
notary public.
(5) AFA inshore processor permits. NMFS will issue to an owner of a
shoreside processor or stationary floating processor an AFA inshore
processor permit upon receipt and approval of a completed application.
(i) Qualifying criteria--(A) Unrestricted processors. NMFS will
issue an unrestricted AFA inshore processor permit to a shoreside
processor or stationary floating processor if the Regional
Administrator determines that the processor facility processed annually
more than 2,000 mt round-weight of pollock harvested in the inshore
component of the directed BSAI pollock fishery during each of 1996 and
1997.
(B) Restricted processors. NMFS will issue a restricted AFA inshore
processor permit to a shoreside processor or stationary floating
processor if the Regional Administrator determines that the facility
processed pollock harvested in the inshore component of the directed
BSAI pollock fishery during 1996 or 1997, but did not process annually
more than 2,000 mt round-weight of BSAI pollock during each of 1996 and
1997.
(ii) Cooperative processing endorsement. The owner of an AFA
inshore processor who wishes to process pollock harvested by a fishery
cooperative formed under Sec. 679.61 must apply for and receive a
cooperative processing endorsement on the AFA inshore processor permit.
(iii) Single geographic location requirement. An AFA inshore
processor permit authorizes the processing of pollock harvested in the
BSAI directed pollock fishery in only a single geographic location
during a fishing year. For the purpose of this paragraph, single
geographic location means:
(A) Shoreside processors. The physical location at which the land-
based shoreside processor first processed BSAI pollock harvested in the
BSAI directed pollock fishery during a fishing year;
(B) Stationary floating processors. A location within Alaska state
waters that is within 5 nm of the position in which the stationary
floating processor first processed BSAI pollock harvested in the BSAI
directed pollock fishery during a fishing year.
(iv) Application for permit. A completed application for an AFA
inshore processor permit must contain:
(A) Type of permit requested. Type of processor, whether requesting
an AFA cooperative endorsement, and amount of BSAI pollock processed in
1996 and 1997;
(B) Stationary floating processor information. The vessel name,
ADF&G processor code, USCG documentation number, Federal processor
permit number, gross tons, shaft horsepower, registered length (in
feet), and business telephone number, business FAX number, and business
E-mail address used onboard the vessel.
(C) Shoreside processor information. The processor name, Federal
processor permit number, ADF&G processor code, business street address;
business telephone and FAX numbers, and business e-mail address.
(D) Owner information. Owner name(s), tax ID number(s), business
mailing address(es), business telephone number(s), business fax
number(s), business e-mail address(es), and managing company (if any);
(E) AFA crab facility ownership information. If the applicant is
applying for a cooperative pollock processing endorsement, the AFA
inshore processor application must list the name, type of facility,
ADF&G processor code, and percentage of ownership or control of each of
each AFA crab facility that is owned or controlled by the AFA inshore
processor entity that owns or controls the AFA inshore processor; and
(F) Certification of notary and applicant. Owner signature(s), date
of signature, printed name(s), and notary stamp and signature of a
notary public.
(6) Inshore cooperative fishing permits--(i) General. NMFS will
issue to an inshore catcher vessel cooperative formed under section 1
of the Act of June 25, 1934 (15 U.S.C. 521) for the purpose of
cooperatively managing directed fishing for pollock for processing by
an AFA inshore processor an AFA inshore cooperative fishing permit upon
receipt and approval of a completed application.
(ii) Application for permit. A completed application for an inshore
cooperative fishing permit must contain the following information:
(A) Cooperative contact information. Name of cooperative; name of
cooperative representative; and business mailing address, business
telephone number, business fax number, and business e-mail address of
the cooperative;
(B) Designated cooperative processor. The name and physical
location of AFA Inshore Processor that is designated in the cooperative
contract as the processor to whom the cooperative has agreed to deliver
at least 90 percent of its BSAI pollock catch. If the processor is a
stationary floating processor, the single geographic location (latitude
and
[[Page 389]]
longitude) at which the processor will process BSAI pollock under the
AFA; and Federal processor permit number of the AFA inshore processor;
(C) Cooperative contract information. A copy of the cooperative
contract and a written certification that:
(1) The contract was signed by the owners of at least 80 percent of
the qualified catcher vessels. For the purpose of this paragraph, a
catcher vessel is a qualified catcher vessel if:
(i) it delivered more pollock harvested in the BSAI inshore
directed pollock fishery to the AFA inshore processor designated under
paragraph (l)(6)(ii)(B) of this section than to any other shoreside
processor or stationary floating processor during the year prior to the
year in which the cooperative fishing permit will be in effect; and
(ii) the owner(s) of the catcher vessel in question has submitted a
completed application for an AFA catcher vessel permit to the Regional
Administrator that was received on or before December 31, 1999 and
which is not subsequently denied.
(2) The cooperative contract requires that the cooperative deliver
at least 90 percent of its BSAI pollock catch to its designated AFA
processor; and
(3) Each catcher vessel in the cooperative is a qualified catcher
vessel and is otherwise eligible to fish for groundfish in the BSAI,
has an AFA catcher vessel permit with an inshore endorsement, and has
no permit sanctions or other type of sanctions against it that would
prevent it from fishing for groundfish in the BSAI;
(D) Business review letter. A copy of a letter from a party to the
contract requesting a business review letter on the fishery cooperative
from the Department of Justice, and any response to such request;
(E) Vessel information. For each cooperative catcher vessel member:
Vessel name, ADF&G registration number, USCG documentation number, AFA
permit number; and
(F) Certification of notary and applicant. Signature and printed
name of cooperative representative, date of signature, and notary stamp
or seal of a notary public.
(iii) Duration of cooperative fishing permits. Inshore cooperative
fishing permits are valid for 1 calendar year.
(iv) Add or subtract vessels to a cooperative fishing permit. The
cooperative representative must submit a new application to add or
subtract a catcher vessel to or from an inshore cooperative fishing
permit to the Regional Administrator prior to the application deadline.
Upon approval by the Regional Administrator, NMFS will issue an amended
cooperative fishing permit.
(v) Application deadline. An inshore cooperative fishing permit
application and any subsequent contract amendments that add or subtract
vessels must be received by the Regional Administrator by December 31
prior to the year in which the inshore cooperative fishing permit will
be in effect. Inshore cooperative fishing permit applications or
amendments to inshore fishing cooperative permits received after
December 31 will not be accepted by the Regional Administrator for the
subsequent fishing year.
(7) Replacement vessels. (i) In the event of the actual total loss
or constructive total loss of an AFA catcher vessel, AFA mothership, or
AFA catcher/processor, the owner of such vessel may replace such vessel
with a replacement vessel. The replacement vessel will be eligible in
the same manner as the original vessel after submission and approval of
an application for an AFA replacement vessel provided that:
(A) Such loss was caused by an act of God, an act of war, a
collision, an act or omission of a party other than the owner or agent
of the vessel, or any other event not caused by the willful misconduct
of the owner or agent;
(B) The replacement vessel was built in the United States and if
ever rebuilt, was rebuilt in the United States;
(C) The USCG certificate of documentation with fishery endorsement
for the replacement vessel is issued within 36 months of the end of the
last year in which the eligible vessel harvested or processed pollock
in the directed pollock fishery;
(D) If the eligible vessel is greater than 165 ft (50.3 meters (m))
in registered length, or more than 750 gross registered tons, or has
engines capable of producing more than 3,000 shaft horsepower, the
replacement vessel is of the same or lesser registered length, gross
registered tons, and shaft horsepower;
(E) If the eligible vessel is less than 165 ft (50.3 m) in
registered length, of fewer than 750 gross registered tons, and has
engines incapable of producing more than 3,000 shaft horsepower, the
replacement vessel is less than each of such thresholds and does not
exceed by more than 10 percent the registered length, gross registered
tons or shaft horsepower of the eligible vessel; and
(F) If the replacement vessel is already an AFA catcher vessel, the
inshore cooperative catch history of both vessels may be merged in the
replacement vessel for the purpose of determining inshore cooperative
allocations except that a catcher vessel with an endorsement to deliver
pollock to AFA catcher/processors may not be simultaneously endorsed to
deliver pollock to AFA motherships or AFA inshore processors.
(ii) Application for permit. A completed application for an AFA
permit for replacement vessel must contain:
(A) Identification of lost AFA eligible vessel.
(1) Name, ADF&G vessel registration number, USCG documentation
number, AFA permit number, gross tons, shaft horsepower, and registered
length from USCG documentation of the vessel;
(2) Name(s), tax ID number(s), business mailing address(es),
telephone number(s), FAX number(s), and e-mail address(es) of owner(s);
(3) Last year in which this vessel harvested or processed pollock
in a BSAI directed pollock fishery; and
(4) Description of how the vessel was lost or destroyed. Attach a
USCG Form 2692 or insurance papers to verify the claim.
(B) Identification of replacement vessel.
(1) Name, ADF&G vessel registration number, USCG documentation
number, gross tons, shaft horsepower, registered length, net tons, and
length overall (in feet) from USCG documentation, and Federal Fisheries
Permit number of the vessel;
(2) Name(s), tax ID number(s), business mailing address(es),
business telephone number(s), business FAX number(s), and business e-
mail address(es) of the owner(s);
(3) YES or NO indication of whether the vessel was built in the
United States; and
(4) YES or NO indication of whether the vessel has ever been
rebuilt, and if so whether it was rebuilt in the United States.
(C) Certification of applicant and notary. Signature(s) and printed
name(s) of owner(s) and date of signature; signature, notary stamp or
seal of notary public, and date notary commission expires.
(8) Application evaluations and appeals--(i) Initial evaluation.
The Regional Administrator will evaluate an application for an AFA
fishing or processing permit submitted in accordance with this
paragraph (1) and compare all claims in the application with the
information in the official AFA record. Claims in the application that
are consistent with information in the official AFA record will be
accepted by the Regional Administrator. Inconsistent claims in the
application, unless supported by evidence, will not be
[[Page 390]]
accepted. An applicant who submits inconsistent claims or fails to
submit the information specified in the application for an AFA permit
will be provided a 60-day evidentiary period to submit the specified
information, submit evidence to verify the applicant's inconsistent
claims, or submit a revised application with claims consistent with
information in the official AFA record. An applicant who submits claims
that are inconsistent with information in the official AFA record has
the burden of proving that the submitted claims are correct.
(ii) Additional information and evidence. The Regional
Administrator will evaluate additional information or evidence to
support an applicant's inconsistent claims submitted within the 60-day
evidentiary period. If the Regional Administrator determines that the
additional information or evidence meets the applicant's burden of
proving that the inconsistent claims in his or her application are
correct, the official AFA record will be amended and the information
will be used in determining whether the applicant is eligible for an
AFA permit. However, if the Regional Administrator determines that the
additional information or evidence does not meet the applicant's burden
of proving that the inconsistent claims in his or her application is
correct, the applicant will be notified by an initial administrative
determination that the applicant did not meet the burden of proof to
change information in the official AFA record.
(iii) Sixty-day evidentiary period. The Regional Administrator will
specify by letter a 60-day evidentiary period during which an applicant
may provide additional information or evidence to support the claims
made in his or her application, or to submit a revised application with
claims consistent with information in the official AFA record, if the
Regional Administrator determines that the applicant did not meet the
burden of proving that the information on the application is correct
through evidence provided with the application. Also, an applicant who
fails to submit required information will have 60 days to provide that
information. An applicant will be limited to one 60-day evidentiary
period. Additional information or evidence, or a revised application
received after the 60-day evidentiary period specified in the letter
has expired will not be considered for the purposes of the initial
administrative determination.
(iv) Initial administrative determinations (IAD). The Regional
Administrator will prepare and send an IAD to the applicant following
the expiration of the 60-day evidentiary period if the Regional
Administrator determines that the information or evidence provided by
the applicant fails to support the applicant's claims and is
insufficient to rebut the presumption that the official AFA record is
correct, or if the additional information, evidence, or revised
application is not provided within the time period specified in the
letter that notifies the applicant of his or her 60-day evidentiary
period. The IAD will indicate the deficiencies in the application,
including any deficiencies with the information, the evidence submitted
in support of the information, or the revised application. The IAD also
will indicate which claims cannot be approved based on the available
information or evidence. An applicant who receives an IAD may appeal
under the appeals procedures set out at Sec. 679.43. An applicant who
avails himself or herself of the opportunity to appeal an IAD will
receive an interim AFA permit that authorizes a person to participate
in an AFA pollock fishery, and will have the specific endorsements and
designations based on the claims in his or her application. An interim
AFA permit will expire upon final agency action.
(v) Effect of cooperative allocation appeals. An AFA inshore
cooperative may appeal the pollock quota share issued to the
cooperative under Sec. 679.61; however, final agency action on the
appeal must occur prior to December 15 for the results of the appeal to
take effect during the subsequent fishing year.
[FR Doc. 99-34065 Filed 12-30-99; 9:50 am]
BILLING CODE 3510-22-F
