E9-22325. Fisheries off West Coast States; Pacific Coast Groundfish Fishery; Data Collection for the Trawl Rationalization Program

AGENCY:

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

ACTION:

Proposed rule; request for comments.

SUMMARY:

NMFS proposes to collect data to support implementation of a future trawl rationalization program under the Pacific Coast Groundfish Fishery Management Plan (FMP). NMFS proposes to collect ownership information from all potential participants in the trawl rationalization program. In addition, NMFS is notifying potential participants that the agency intends to use the Pacific States Marine Fisheries Commission's Pacific Fisheries Information Network (PacFIN) database and NMFS' Northwest Fisheries Science Center's Pacific whiting observer data from NORPAC (a database of North Pacific fisheries and Pacific whiting information) to determine initial allocation of quota share (QS) for the trawl rationalization program, if it is approved and implemented.

DATES:

Comments on this proposed rule must be received no later than 5 p.m., local time on October 16, 2009.

ADDRESSES:

You may submit comments, identified by RIN 0648-AX98 by any one of the following methods:

Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal http://www.regulations.gov.

Fax: [phone], Attn: Jamie Goen.

Mail: Barry Thom, Acting 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 (enter N/A in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, 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 and by e-mail to [e-mail] or fax to [phone].

FOR FURTHER INFORMATION CONTACT:

Jamie Goen, phone: [phone], fax: [phone], and e-mail [e-mail].

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 are available at the Pacific Fishery Management Council's website at http://www.pcouncil.org/​.

Background

Since 2003, the Pacific Fishery Management Council (Council) has been developing a trawl rationalization program, which would affect the limited entry trawl fishery of the Pacific Coast groundfish fishery. 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.

The Council has developed the trawl rationalization program through two amendments to the Groundfish FMP: (1) Amendment 20, the trawl rationalization program; and (2) Amendment 21, intersector allocation. Amendment 20 would create the structure and management details of the trawl rationalization program, while Amendment 21 would allocate the groundfish stocks between trawl and non-trawl fisheries. The Council took final action on Amendment 20 at their November 2008 meeting, with trailing actions at its March 2009, April 2009, and June 2009 meetings. The Council took final action on Amendment 21 at its April 2009 meeting. When the Council formally transmits those amendments to NMFS, the agency will publish a notice of availability (NOA) of an FMP amendment and a proposed rule in the Federal Register to announce a public comment period. Following the public comment period on the NOA and proposed rule, NMFS will announce its decision on whether or not to approve the amendments in a final rule published in the Federal Register. The FMP approval process and implementation, if appropriate, are expected to occur in 2010.

The trawl rationalization program would be a limited access privilege program (LAPP) under the Magnuson-Stevens Fishery Conservation and Management Act (MSA), 16 U.S.C.1851-1891d, as reauthorized in 2007. A LAPP is considered a grant of permission to the holder of the limited access privilege or QS to participate in the program and may be revoked, limited, or modified at any time. In other words, it is a conditional privilege, conveyed through QS or catch shares, to harvest a specified amount of fish. The MSA requires the Council or the Secretary of Commerce to ensure that limited access privilege holders do not acquire an excessive share of the total limited access privileges in the program and to establish a maximum share, expressed as a percentage that each limited access privilege holder may hold, acquire, or use. For the trawl rationalization program, the Council has adopted limits on the amount of pounds a vessel can hold, acquire, or use (i.e., vessel limits) and limits on the amount of QS that can be held, acquired, or used (i.e., control limits).

Trawl Rationalization Program Structure

The trawl rationalization program would consist of: (1) An individual fishing quota (IFQ) program for the shore-based trawl fleet; and (2) cooperative (co-op) programs for the at-sea trawl fleet. Under trawl rationalization, the shore-based trawl fleet would consist of IFQ participants who land groundfish to shore-based processors or first receivers. The at-sea trawl fleet would consist of fishery participants harvesting whiting with midwater trawl gear (i.e., whiting catcher/processor vessels, whiting motherships, and whiting catcher vessels associated with motherships). The co-op programs for the at-sea trawl fleet would be further divided as follows: (1) The whiting catcher/processor co-op; and (2) the whiting mothership co-ops. The mothership co-ops may consist of a single co-op or multiple co-ops where vessels pool their harvest together, or it may consist of vessels not associated with a particular mothership (i.e., “non-co-op” segment of the mothership fishery).

The IFQ program for the shore-based fleet would require an initial allocation of harvest QS to individual participants based on historic participation in the fishery, specifically to limited entry trawl permit owners and shore-based whiting processors who meet the eligibility requirements. In order to comply with the MSA, NMFS would be required to determine and track ownership interest in QS to determine if individuals are within set limits, both at the initial allocation stage and during the operation of the program. In Amendment 20, the Council has adopted limits (by species group and area) on the amount of QS an individual can control (control limits).

The Council has adopted different program structures for the whiting catcher/processor co-ops and whiting mothership co-ops, based on how these co-ops have operated in the past. The structure of the co-ops will be described in more detail in the proposed rule to implement Amendment 20, which is expected in 2010. The catcher/processor co-op would not require an initial allocation of QS to individual vessels, provided a co-op is established.

QS for the at-sea mothership fleet (called “catch history assignments” in Council documents) would initially be allocated to the individual whiting catcher vessels associated with the mothership fishery, and would be non-transferable amounts associated with the vessel. The QS allocated to individual vessels would reflect that individual vessel's contribution to the total amount of fish its mothership co-op can harvest. However, an individual vessel in the co-op could harvest more than its at-sea quota, within the restrictions on individual vessel harvest and mothership co-op limits. Similar to the shore-based IFQ program, NMFS would be required to track ownership interest in QSs to determine if individuals are within set limits. In addition, ownership interest in the co-op programs (both the catcher/processor and mothership) and IFQ program would be tracked at the individual level to monitor crossover of participants and ownership interest among the programs.

Collection of Ownership Information

Pursuant to section 402(a)(2) of the MSA, if the Secretary of Commerce determines that additional information is necessary for developing or implementing an FMP, the Secretary may, by regulation, implement an information collection program requiring submission of additional information for the fishery. In this proposed rule, ownership information would be collected from the potential participants in the trawl rationalization program, including the at-sea fleet (whiting motherships, whiting mothership catcher vessels, and whiting catcher/processors), the shore-based fleet (whiting and non-whiting permit owners and holders) and the shore-based whiting processors. Ownership information would be collected to support and facilitate the timely implementation of the potential future trawl rationalization program under the Groundfish FMP.

Similar to current NMFS requirements to collect ownership information from the limited entry fixed gear sablefish fleet, the primary purpose of collecting ownership interest information from the trawl fleet is to allow NMFS to monitor control of the groundfish resource in the trawl fishery to ensure participants remain within the accumulation limits, or control limits on QS, recommended by the Council in Amendment 20 to the FMP. Initially, NMFS would use the ownership information collected under this rule as the first step in the application process to determine which potential QS holders might be over their accumulation limits as individuals or as members of a business entity. By collecting ownership information from potential participants in advance of the FMP amendment approval process, NMFS would expedite the QS initial issuance process, which is expected to take place in the fall of 2010. After ownership interest forms from this rulemaking are completed early in 2010, NMFS intends to provide pre-filled ownership interest forms with the initial issuance application package in the fall of 2010, thereby reducing the burden on potential participants and shortening the application process. If the collection of the ownership information requested as part of this rulemaking is not completed at the time NMFS provides these forms, NMFS may delay implementation of the trawl rationalization program or the issuance of an eligible participant's QS due to the additional time needed to gather the ownership information and determine if an eligible participant is within the accumulation limits.

In addition, the ownership information collected would create a baseline of ownership information to evaluate the trawl rationalization program during periodic reviews of the program, as required by the MSA. It would allow NMFS to better understand the relationship between processors, permit owners, and the entities owning the vessel registered to the permit (i.e., permit holders). In other words, it would allow NMFS to better understand who will control QS and which individuals will potentially use quota pounds (QP). Moreover, the ownership information would allow NMFS to better understand potential vessel accounts for QP and to better understand the ownership of vessels that crossover between different sectors in the trawl fishery. For example, it would allow NMFS to better understand the ownership of vessels that participate in both the whiting shore-based and the mothership fisheries.

NMFS would send a Trawl Identification of Ownership Interest Form to potential participants in the trawl rationalization program requiring the following information to be filled out: Type of entity; qualifying permit number; name of company or name of individuals owning the limited entry permit, vessel or processing plant; tax identification number (TIN) for each entity; date of birth (DOB) for each individual; state in which each business entity is registered; business mailing address; physical address for processing plants; business phone number, fax number and email; authorized representative's name; name of each individual having ownership interest in the limited entry permit, vessel or processing plant; the individual's business addresses; percentage of ownership by each entity (if there are multiple entities given as an owner of the permit, vessel, or processing plant) and each individual shareholder in each entity; printed name of authorized representative, their signature, and the date. The percentage of ownership of all shareholders must equal 100 percent. The form would also allow owners to certify whether or not they are a small business according to Small Business Administration (SBA) and the Regulatory Flexibility Act (RFA) standards.

For permits, the legal owner of the permit or authorized representative would be required to complete the form and provide all necessary information on the individual or entity owning each groundfish limited entry trawl permit. For vessels, the vessel owner would be required to complete the form and provide all necessary information on the individual or entity owning each vessel that is registered to a groundfish limited entry trawl permit (i.e., permit holder). For shore-based whiting processors or first receivers, the legal owner or authorized representative would be required to complete the form and provide all necessary information on the individual or entity owning each shore-based whiting processing or first receiver company. The individual signing the form would certify under penalty of perjury that the information provided is true and correct and the form would be required to be notarized by a notary public.

The form would be required even if the owner of the permit or potential participant in the trawl rationalization program is a person and not an entity. This form does NOT prequalify these persons for QS nor guarantee that they will qualify for QS under the future trawl rationalization program.

In addition to filling out the mandatory ownership interest form, potential trawl rationalization program participants may be required to submit additional documentation to NMFS. If the ownership interest in the permit, vessel, or potential QS includes a business entity, then additional documentation will be required. If there is an authorized representative for a business entity, then a corporate resolution would be required authorizing the person signing to do so on behalf of the entity. Business entities established under the laws of the United States or of any State would be required to provide proof of the establishment of their business and to verify that they are an active corporation. If an entity was not established under the laws of the United States or of any other State, this rule would not require the entity to become so established. However, an entity must be established under the laws of the United States or of any State in order to qualify for an initial allocation of QS, pursuant to section 303A(c)(1)(D) of the MSA. Providing the information at this stage will expedite the initial issuance process.

Additional documentation that NMFS may request after review of the completed Trawl Identification of Ownership Interest Form includes articles of incorporation, a contract, or any other credible documentation that substantiates those with ownership interests in the entity and their percent ownership. NMFS may require a certified copy of the current vessel document (United States Coast Guard or state) as evidence of vessel ownership. NMFS may also request or consider any other relevant, credible evidence.

NMFS would send out the Trawl Identification of Ownership Interest Form with instructions to the current address in NMFS records for potential participants in the trawl rationalization program. Completion of this form would be required only once in preparation for implementation of the trawl rationalization program. This form would be sent to the at-sea fleet (whiting motherships, whiting mothership catcher vessels, and whiting catcher/processors), the shore-based fleet (whiting and non-whiting permit owners and holders) and the shore-based whiting processors. Potential participants would have at least 60 days from the effective date of the Federal Register final rule for this action to return the completed form. The completed form must be returned to NMFS no later than May 1, 2010. In the future and if the trawl program is implemented under Amendment 20, the ownership interest form would likely be required during the permit or QS renewal process and during any permit or QS transfers.

Databases to be Used for Initial Allocation of Quota Share

Potential participants of the trawl rationalization program should be aware that the agency intends to use landings data from the Pacific States Marine Fisheries Commission's PacFIN database and NMFS' Northwest Fisheries Science Center's Pacific whiting observer data from NORPAC to determine initial allocations of QS for the trawl rationalization program. Landings data from state fish tickets, as provided by the states to the PacFIN database, would be used to determine initial allocation of IFQ QS for the shore-based whiting and nonwhiting harvesters and for the shore-based whiting processors. Landings data from the NORPAC database would be used to determine initial allocation of at-sea QS for the whiting mothership catcher vessels.

NMFS intends to “freeze” the databases for the purposes of initial allocation on the date the proposed rule proposing to implement Amendment 20 to the FMP is published in the Federal Register. This should allow time for NMFS to compile the dataset and cross check the data for any errors. “Freezing” the databases means that NMFS will extract a snapshot of the databases as of the proposed rule publication date and will use those for initial allocation of QS. “Freezing” the databases is necessary to hold them constant for use during qualification and initial issuance of the trawl rationalization program and to form an administrative record of the database at a given point in time. Following the “freezing” of the databases, any corrections to the “frozen” database would be made with NMFS through the processes set forth in future trawl rationalization rules. After NMFS extracts a copy of the databases, the PacFIN and NORPAC databases will continue to exist and be updated through their normal processes, but such updates may not be used for initial allocations of QS.

If potential participants in the trawl rationalization program have concerns over the accuracy of their data in the PacFIN database, they should contact the state in which they landed those fish to correct any errors. Any revisions to an entity's fish tickets would have to be approved by the state in order to be accepted. State contacts are as follows: (1) Washington - Carol Turcotte (360-902-2253, [e-mail]); (2) Oregon - Michelle Grooms (503-947-6247, [e-mail]); and (3) California - Gerry Kobylinski (916-323-1456, [e-mail]). For concerns over the accuracy of NORPAC data, contact Janell Majewski (206-860-3293, [e-mail]). NMFS urges potential QS owners to go directly to the source where fisheries data is entered in the database to get it corrected before NMFS extracts the data for initial issuance of QS.

Classification

Pursuant to section 402(a)(2) of the MSA, the NMFS Assistant Administrator, acting on behalf of the Secretary of Commerce, has determined that information collected under this proposed rule is necessary for developing and implementing the trawl rationalization program. The NMFS Assistant Administrator has also determined that this proposed rule is consistent with other applicable law, subject to further consideration after public comment.

This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

An initial regulatory flexibility analysis (IRFA) was prepared, as required by section 603 of the 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 the NMFS (see ADDRESSES). A summary of the analysis follows:

The proposed rule would allow NMFS to collect data to support implementation of a future trawl rationalization program, Amendment 20, to the Groundfish FMP. A separate Regulatory Impact Review/IRFA will be prepared for the full trawl rationalization program as part of the rulemaking for Amendment 20. This proposed rule would also announce that NMFS intends to use landings data from the PacFIN and NORPAC databases to determine initial allocations of QS for the trawl rationalization program. Section 402(a)(2) of the MSA gives the legal authority for the action. If the Secretary determines that additional information is necessary for developing or implementing an FMP, the Secretary may, by regulation, implement an information collection requiring submission of such additional information for the fishery.

The Council has recommended accumulation limits to comply with the MSA requirement to ensure that participants do not acquire an excessive share of the total limited access privileges in the trawl rationalization program. Initially, NMFS would use the ownership information collected as the first step in the application process to determine which potential QS holders might be over their accumulation limits as individuals or as members of a business entity. By collecting ownership information from potential participants in advance of the FMP amendment approval process, NMFS would expedite the initial issuance of QS, which is expected to take place in the fall of 2010. Also, NMFS could use the completed forms to troubleshoot any unforeseen data collection issues and to provide pre-filled ownership interest forms with the initial issuance package in the fall of 2010. Pre-filled forms would reduce the burden on potential participants and shorten the initial issuance and appeals process.

The IRFA considers three alternatives: (1) No action; (2) a blank form to collect ownership interest information; and (3) a partially pre-filled form to collect ownership information. The no action alternative would delay collecting any ownership interest information until the initial issuance and appeals process for the trawl rationalization program, which is expected to take place in the fall of 2010. Under the second alternative, NMFS would mail a blank Trawl Identification of Ownership Interest Form to potential participants in the trawl rationalization program. Under the third and selected alternative, NMFS would mail out a partially pre-filled Trawl Identification of Ownership Interest Form to potential participants in the trawl rationalization program. NMFS would use its Permit Office's database to pre-fill the permit and/or vessel owner's name of record and address. NMFS would also use this information to begin to fill out the names of participants with ownership interest.

Compared to the no action alternative, both alternatives would facilitate a timelier implementation of the trawl rationalization program. Additionally, the preferred alternative, partially pre-filled forms, would further expedite the trawl rationalization program implementation process and would be the most helpful to the person completing the form. This should aid the person completing the form by providing details on what information is needed and how NMFS database currently views the permit and/or vessel owner or owner of the whiting processor. While timely implementation of the trawl rationalization program benefits its participants, NMFS must also be aware that doing so is not too burdensome and costly to the potential trawl rationalization program participants. This proposed rule would establish a onetime mailing requesting ownership information. Filling out a Trawl Ownership Interest Form is expected to take approximately 30 minutes per response and cost approximately $19.15 per response (which includes the respondent's time ($8.51), mailing, photocopying, and notary fee). There is no fee for this form. There is an incentive to respond because this is the initial step by any business to gain ownership rights in the fishery that can, at a future time, be harvested, sold, leased, or combined with other businesses in fishing operations. The financial benefits of participating in the trawl rationalization program should far outweigh the minimal cost of time and effort to fill out a form. (Very preliminary Pacific Council estimates indicate that for the harvesting vessels, after taking into account the costs of having observer coverage, over time the fishery may increase annual profits (revenue minus costs) by $10 to $20 million.)

This proposed rule would collect ownership information from approximately 250 potential participants who may receive initial allocation of QS, including the at-sea fleet (whiting motherships, whiting mothership catcher vessels, and whiting catcher/processors), the shore-based fleet (whiting and non-whiting permit owners and holders) and the shore-based whiting processors. Using SBA standards, most of the estimated 250 entities are considered small businesses, except for some catcher vessels that also fish off Alaska, some shoreside processors and all catcher-processors and motherships (fewer than 30) that are affiliated with larger processing companies or large international seafood companies. One of the purposes of this data collection is to have these entities certify that they are “small” or “large” entities based on SBA size and affiliation criteria.

This information collection would be requested of all potential participants in the trawl rationalization program, regardless of size, and would not have a disproportionate effect on small versus large entities. Nor would this information collection have any effect on profitability for small entities.

These changes will not duplicate, overlap or conflict with other laws or regulations. This proposed action is not expected to meet any of the RFA tests of having a “significant” economic impact on a “substantial number” of small entities. Nonetheless, NMFS has prepared an IRFA for this action. NMFS is requesting comments on this conclusion.

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. The public reporting burden for the Trawl Identification of Ownership Interest Form is estimated to average 30 minutes per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection information. This form is estimated to cost approximately $19.15 per response (which includes the respondent's time ($8.51), mailing, photocopying, and notary fee). There is no fee for this form.

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 (see ADDRESSES section), and by e-mail to [e-mail] or fax to [phone].

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.

List of Subjects in 50 CFR Part 660

• Fishing
• Fisheries, and Indian Fisheries

Dated: September 11, 2009.

Samuel D. Rauch III,

Deputy Assistant Administrator For Regulatory Programs, National Marine Fisheries Service.

For the reasons set out in the preamble, 50 CFR Part 660 is proposed to be amended as follows:

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.

2. A new § 660.337 is added to read as follows:

§ 660.337

Trawl rationalization program - data collection requirements.

(a) Ownership reporting requirements - (1) In 2010, NMFS will send a Trawl Identification of Ownership Interest Form to the current address on record requesting information from participants in the trawl fishery. Receipt of this form does NOT prequalify these persons for quota share nor does it guarantee that they will qualify for quota share under a future trawl rationalization program. The following participants in the trawl fishery must complete and return the form to NMFS:

(i) Owners of each limited entry permit endorsed for trawl gear;

(ii) Owners of each vessel registered to a limited entry permit endorsed for trawl gear (i.e., permit holder) if not identical to the permit owner covered by paragraph (a)(1)(i) of this section;

(iii) Owners of each vessel registered to a Pacific whiting vessel license that are not covered by paragraphs (a)(1)(i) and (ii) above; and

(iv) First receivers issued current Pacific whiting first receiver exempted fishing permits.

(2) Supporting documentation.

(i) Business entities completing the Trawl Identification of Ownership Interest Form are required to submit the following:

(A) A corporate resolution or any other credible documentation as proof of the authorized representative selected to act on behalf of the entity; and

(B) Proof that the business entity was established and is currently recognized as active under the laws of the United States or any State, if indeed they were.

(ii) After review of the Trawl Identification of Ownership Interest Form, NMFS may require the following additional documentation:

(A) Articles of incorporation, a notarized contract, or any other credible documentation that identifies each person who owns an interest in the entity and their percentage of ownership;

(B) A certified copy of the current vessel document (United States Coast Guard or state) as evidence of vessel ownership; or

(C) Such other relevant, credible evidence as the applicant may submit, or as the SFD or the Regional Administrator request or acquire.

(3) Deadline. Persons listed in paragraph (a)(1) will be provided at least 60 calendar days to submit completed forms. All forms must be completed and returned to NMFS with a postmark no later than the deadline date of May 1, 2010.

(b) [Reserved]