# Fisheries of the Exclusive Economic Zone Off Alaska; Allocating Gulf of Alaska Fishery Resources

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A06-9229

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** November 20, 2006
- **Citation:** 71 FR 67210

## Text

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 902
50 CFR Part 679
[Docket No. 060511126-6285-02; I.D. 050306E]
RIN 0648-AT71
Fisheries of the Exclusive Economic Zone Off Alaska; Allocating Gulf of Alaska Fishery Resources

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS issues a final rule to implement Amendment 68 to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP). This action implements statutory provisions for the Central Gulf of Alaska Rockfish Pilot Program (hereafter referred to as the Program). This action is necessary to enhance resource conservation and improve economic efficiency for harvesters and processors who participate in the Central Gulf of Alaska (GOA) rockfish fishery. This action is intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the FMP, and other applicable law.

DATES:

Effective on December 20, 2006.

ADDRESSES:

Copies of Amendment 68; the final Environmental Assessment (EA) and Regulatory Impact Review (RIR); Initial Regulatory Flexibility Analysis (IRFA); and Final Regulatory Flexibility Analysis (FRFA) for this action may be obtained from the NMFS Alaska Region, P.O. Box 21668, Juneau, AK 99802, Attn: Ellen Walsh, and on the NMFS Alaska Region website at
http://www.fakr.noaa.gov
. The proposed rule to implement Amendment 68 also may be accessed at this website.

Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this rule may be submitted to NMFS (at the above address, and by e-mail to
David_Rostker@omb.eop.gov
or by fax to 202-395-7285.

FOR FURTHER INFORMATION CONTACT:

Glenn Merrill, 907-586-7228 or
glenn.merrill@noaa.gov
.

SUPPLEMENTARY INFORMATION:

The groundfish fisheries in the GOA are managed under the FMP. The North Pacific Fishery Management Council (Council) prepared the FMP under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801
et seq.
Regulations implementing the FMP appear at 50 CFR part 679. General regulations governing U.S. fisheries also appear at 50 CFR part 600.

Congress granted NMFS additional specific statutory authority to manage rockfish fisheries under the FMP in Section 802 of the Consolidated Appropriations Act of 2004 (Public Law 108-199; Section 802). In Section 802, Congress required the Secretary in consultation with the Council to establish the Program with specific provisions. The Program was developed and recommended by the Council to meet the requirements of Section 802, which states:

SEC. 802. GULF OF ALASKA ROCKFISH DEMONSTRATION PROGRAM.

The Secretary of Commerce, in consultation with the North Pacific Fishery Management Council, shall establish a pilot program that recognizes the historic participation of fishing vessels (1996 to 2002, best 5 of 7 years) and historic participation of fish processors (1996 to 2000, best 4 of 5 years) for Pacific ocean perch, northern rockfish, and pelagic shelf rockfish harvested in Central Gulf of Alaska. Such a pilot program shall (1) provide for a set-aside of up to 5 percent for the total allowable catch of such fisheries for catcher vessels not eligible to participate in the pilot program, which shall be delivered to shore-based fish processors not eligible to participate in the pilot program; (2) establish catch limits for non-rockfish species and non-target rockfish species currently harvested with Pacific ocean perch, northern rockfish, and pelagic shelf rockfish, which shall be based on historical harvesting of such bycatch species. The pilot program will sunset when a Gulf of Alaska Groundfish comprehensive rationalization plan is authorized by the Council and implemented by the Secretary, or 2 years from date of implementation, whichever is earlier.

The Council adopted the proposed Program on June 6, 2005. NMFS published a notice of availability for Amendment 68 on May 15, 2006 (71 FR 27984). The public comment period on Amendment 68 ended on July 14, 2006. NMFS received one comment specific to Amendment 68. That comment has been addressed in our Response to Comment section for this rule. On June 7, 2006, NMFS published a proposed rule to implement the Program (71 FR 33040). The public comment period ended on July 24, 2006. NMFS received nine letters on the proposed rule, including the letter submitted during the Amendment 68 comment period. These letters contained a total of 120 unique comments. These comments are addressed in the Response to Comment section of this rule below. The Secretary approved Amendment 68 on August 11, 2006.

NOAA General Counsel reviewed Section 802 and in a February 3, 2005, legal opinion to the Council concluded that:

(1) Section 802 requires the Secretary of Commerce (Secretary) and the Council to recognize the historic participation of fishing vessels and fish processors for specific time periods, geographical areas, and rockfish species when establishing the [Program]; and (2) Section 802 does not authorize recognition of the historic participation of fishing vessels or processors in years other than those specified in Section 802. Further, Section 802 defines the range of years, but does not specify that a processor must have actually processed in each of those years in order to be eligible to participate in the [Program].

The opinion by NOAA General Counsel noted further that:

Section 802 authorizes the Council and Secretary to develop a program that would establish “[American Fisheries Act(AFA)]-style” cooperatives or a program that would establish limited entry licenses for processors in the [Central GOA] rockfish fishery. However, Section 802 does not authorize the establishment of processor shares since they are prohibited under Section 802 of the [Consolidated Appropriations Act of 2004]. The legislative history supports the position that the Council is authorized to consider a broad range of “appropriate” management schemes, including “AFA-style” cooperatives, which are specifically mentioned in the legislative history. . .

The Council considered the Congressional guidance in the development of the Program, particularly in the selection of specific years on which to base participation, and for the “recognition” of processor participation. While NMFS does not have specific authority under the Magnuson-Stevens Act to directly regulate on-shore groundfish processing activities, Section 802 requires NMFS to regulate on-shore processors under this Program.

Concurrent with the enactment of Public Law 108-199, Section 802, in 2004, industry representatives for harvesters and processors developed proposed management alternatives for the Program and submitted them to the Council for consideration. The Council and NMFS prepared an analytical document (EA/RIR/IRFA) for the Program that reviewed alternative methods to improve the economic efficiency in the Central GOA rockfish fisheries. These included (1) status quo management under the License Limitation Program (LLP); (2) the formation of harvester cooperatives each of which would receive an exclusive annual harvest privilege, with no

required linkage between the cooperative and a specific processor, and establishment of a limited number of eligible processors; and (3) the preferred alternative, the formation of harvester cooperatives each of which would receive an exclusive annual harvest privilege, with a required linkage between the cooperative and a qualified processor.

Currently, rockfish fisheries, and many other groundfish fisheries, are managed under the LLP. The LLP requires harvesters to possess an LLP license to participate in GOA groundfish fisheries, but does not provide specific exclusive harvest privileges to LLP holders. Harvesters with LLP licenses compete with each other for the total allowable catch (TAC) amounts annually specified for the fisheries. This competition creates economic inefficiencies. Harvesters increase the fishing capacity of their vessels to exceed that of other vessels resulting in an accelerated rate of fishing as fishermen race to harvest more fish than their competitors before TAC amounts or halibut mortality limits are reached and the fisheries are closed. Similarly, processors increase their processing capacity to outcompete other processors. These incentives to increase harvesting and processing capacity reduce the ability of harvesters and processors to extract additional value from the fishery products because the TACs are harvested and processed quickly. This rapid pace provides few opportunities to focus on quality or produce product forms that require additional time but yield greater value. Additionally, the rapid pace of the fishery makes management difficult.

Central GOA Rockfish Pilot Program Overview

A detailed overview of the Program is provided in the preamble to the proposed rule (71 FR 33040; June 6, 2006), and is not repeated here. The proposed rule is available via the internet and from NMFS (see
ADDRESSES
). The following section provides a brief overview of the Program.

Program development was initiated by trawl industry representatives, primarily from Kodiak, Alaska, in conjunction with catcher/processor representatives. They sought to improve the economic efficiency of the Central GOA rockfish fisheries by developing a program that establishes cooperatives that receive exclusive harvest privileges. These rockfish fisheries are almost exclusively harvested by trawl vessels in Federal waters.

The Program is authorized for two years, from January 1, 2007, until December 31, 2008. The Program provides exclusive harvesting and processing privileges for a specific set of rockfish species and for associated species harvested incidentally to those rockfish in the Central GOA-an area from 147° W. longitude to 159° W. longitude.

Exclusive harvesting and processing privileges are allocated under the Program for the primary rockfish species. The primary rockfish species are northern rockfish, Pacific ocean perch, and pelagic shelf rockfish. Secondary species are those species incidentally harvested during the harvest of primary rockfish species fisheries in the Central GOA. The secondary species for which exclusive harvesting and processing privileges are allocated include Pacific cod, rougheye rockfish, shortraker rockfish, sablefish, and thornyhead rockfish.

The Program allocates a portion of the total GOA halibut mortality limit annually specified under § 679.21 to participants based on historic halibut mortality rates in the primary rockfish species fisheries. Halibut is incidentally caught and killed in a number of the primary rockfish species and secondary species fisheries. Halibut caught by trawl gear is considered prohibited species catch (PSC) and may not be retained or sold commercially under regulations established under the authority of the Northern Pacific Halibut Act of 1982, or under regulations implementing the FMP at § 679.21. However, the Program provides participants a fixed amount of incidental halibut mortality through an allocation of halibut bycatch, specifically an allocation of the halibut mortality limit. To maintain consistency with terms currently used by NMFS and the fishing industry, this halibut mortality limit is called a halibut PSC limit.

The Program allocates harvest privileges to holders of LLP groundfish licenses with a history of legal Central GOA rockfish landings associated with those licenses. The allocation of legal landings to an LLP license allows the holder of that LLP license to participate in the Program and receive an exclusive harvest privilege under certain conditions. Specifically, the Program will:

1. Assign rockfish quota share (QS) for primary rockfish species to an LLP license with a trawl gear designation endorsed for the Central GOA. Under the Program, NMFS assigns Rockfish QS to an LLP license based on the legal landings of primary rockfish species associated with that LLP license. A person holding an LLP license can receive Rockfish QS if the LLP license had a history of primary rockfish species landings during a specific time period associated with the license and the person holding the LLP license meets other eligibility requirements. Once Rockfish QS is assigned to a specific LLP license it cannot be divided or transferred separately from that LLP license. On an annual basis, a LLP holder assigns the LLP license and Rockfish QS assigned to that LLP license for use in a rockfish cooperative, limited access fishery, or opt-out fishery.

2. Establish eligibility criteria for processors to have an exclusive privilege to receive and process primary rockfish species and secondary species allocated to harvesters in this Program.

3. Allow a person holding a LLP license with Rockfish QS to form a rockfish cooperative with other persons (i.e., harvesters) on an annual basis. Each rockfish cooperative receives an annual cooperative quota (CQ), which is an amount of primary rockfish species and secondary species dedicated to that rockfish cooperative for harvest in a given year. Each rockfish cooperative also receives an annual CQ that limits the amount of halibut PSC the cooperative can use while harvesting its primary rockfish species and secondary species CQ. The amount of CQ assigned to a cooperative is a portion of the annual TAC based on the sum of the Rockfish QS held by all the harvesters participating in the rockfish cooperative. A rockfish cooperative can form only under specific conditions. A person holding a LLP license that allows them to catch and process their catch at sea (catcher/processor vessel LLP license) can form a rockfish cooperative with other persons holding catcher/processor LLP licenses. A person holding a LLP license that allows them only to deliver their catch onshore (catcher vessel LLP license) can only form a rockfish cooperative with other persons holding catcher vessel LLP licenses and only in association with the processor to whom those persons have historically delivered most of their catch.

4. Allow rockfish cooperatives to transfer all or part of their CQ to other rockfish cooperatives, with some restrictions.

5. Provide an opportunity for a person not in a rockfish cooperative, but who holds an LLP license with Rockfish QS, to fish in a limited access fishery. NMFS will not allocate a specific amount of fish to a specific harvester in the limited access fishery. All harvesters in the

limited access fishery compete with all other such harvesters to catch the TAC assigned to the limited access fishery. The TAC assigned to the limited access fishery represents the total amount of fish assigned to all LLP licenses designated for the limited access fishery.

6. Establish a small entry level fishery for Central GOA rockfish for harvesters and processors not eligible to receive Rockfish QS under this Program.

7. Allow holders of catcher/processor LLP licenses to opt-out of the Program, with certain limitations.

8. Limit the ability of processors to process catch outside the communities in which they have traditionally processed primary rockfish species and associated secondary species.

9. Establish catch limits, commonly called “sideboards,” to limit the ability of participants eligible for this Program to harvest fish in fisheries other than the Central GOA rockfish fisheries. The Program provides certain economic advantages to harvesters. Harvesters could use this economic advantage to increase their participation in other fisheries, adversely affecting the participants in other fisheries. Sideboards limit the total amount of catch in other groundfish fisheries that can be taken by eligible harvesters to historic levels, including harvests made in the State of Alaska parallel groundfish fisheries. These are fisheries authorized by the State in its waters concurrent with the Federal fishery for which harvest amounts are deducted from the Federal TAC. Sideboards limit harvest in specific rockfish fisheries and the amount of halibut bycatch that can be used in certain flatfish fisheries. General sideboards apply to all vessels and LLP licenses with associated legal landings that can be used to generate Rockfish QS. Additionally, specific sideboards apply to certain catcher/processor and catcher vessels and LLP licenses.

10. Establish monitoring and enforcement provisions to ensure that harvesters maintain catches within annual allocations and do not exceed sideboard limits.

The Program provides greater security to harvesters in rockfish cooperatives by creating an exclusive harvest privilege. Although individual participants in the limited access fishery, opt-out fishery, and entry level fishery do not receive a guaranteed catch allocation, most harvesters are likely to participate in a rockfish cooperative that receives CQ. The Program is anticipated to result in a slower-paced fishery and enable the harvester to choose when to fish and therefore take advantage of market factors and avoid dangerous fishing conditions. The Program likely will provide greater stability for processors by spreading out production over a longer period. These changes will increase product quality in all sectors.

Cost Recovery and Fee Collection Provisions

Section 304(d)(2)(A) of the Magnuson-Stevens Act requires the Secretary to “collect a fee to recover the actual costs directly related to the management and enforcement of any...individual fishing quota program [or] community development quota program.” Any individual fishing quota (IFQ) program must follow the statutory provisions set forth by section 304(d)(2) of the Magnuson-Stevens Act and other provisions of the Magnuson-Stevens Act related to cost recovery and fee collection for IFQ programs. The Central GOA rockfish Program does not issue IFQ under the same criteria as current IFQ programs (i.e., the Halibut and Sablefish IFQ Program). Thus, the establishment of a cost recovery Program is not included in the final rule. However, NMFS and NOAA General Counsel are reviewing the applicability of the Magnuson-Stevens Act provisions on cost recovery and fee collection to fishery cooperative allocations and other more general limited access privilege programs. If subsequent review of the Magnuson-Stevens Act indicates that a fee collection provision is required for cooperative allocation privilege programs, and the Rockfish Program specifically, NMFS would implement any required provision in a subsequent regulatory amendment to the Program.

Summary of Regulation Changes in Response to Public Comments

This section provides a summary of the major changes made to the final rule in response to public comments on the proposed rule. All of the specific changes, and the reasons for making these changes, are contained under Response to Comments below. The changes are described by regulatory section.

In § 679.2, NMFS adopted a new term “cooperative quota (CQ),” to replace the term “cooperative fishing quota (CQ)” to reduce confusion with an acronym used by the Council in the GOA rationalization program under development. NMFS also clarified the definitions of an “Rockfish entry level harvester,” “Rockfish entry level processor,” “Rockfish limited access fishery,” and “Ten percent or greater direct or indirect ownership interest for purposes of the Rockfish Program.” Last, NMFS added the terms “aggregate forage fish,” “skates,” and “other rockfish” to the group of species defined under “Non-allocated secondary species.”

In § 679.4, NMFS clarified the circumstances under which a CQ permit assigned to a rockfish cooperative is valid, and the effect on a CQ permit once NMFS has approved a rockfish cooperative's termination of fishing declaration.

In § 679.5, NMFS made minor clarifications to the rockfish cooperative catch report requirement, and deleted a reference to a process for amending a CQ permit to select vessels that are eligible to fish under the CQ permit. NMFS also established a more flexible rockfish reporting system that allows a cooperative's designated representative to determine how and when vessels will fish under a CQ permit. Authorized cooperative representatives could “check-in” a vessel when it is fishing under a CQ permit during the rockfish cooperative fishing year, and “check-out” vessels no longer fishing under its CQ permit. For administrative efficiency, NMFS will constrain the number of times a vessel may check-in and check-out based on the number of LLP licenses assigned to that cooperative.

In § 679.7 NMFS made several modifications. NMFS clarified that an eligible rockfish harvester cannot assign their LLP license to more than one rockfish fishery in a year. NMFS also clarified that an eligible rockfish harvester or processor is prohibited from participating in the entry level fishery, detailed the prohibitions that apply for monitoring provisions in the opt-out fishery, and established provisions to complement a rockfish cooperative's designated representative ability to submit vessel check-in and check-out reports to designate fishing under a CQ permit. NMFS deleted the prohibition requiring retention of groundfish harvested while fishing under a sideboard limit. NMFS deleted prohibitions applicable to rockfish observer coverage and the catch monitoring control plan (CMCP) for rockfish entry level processors, and the prohibition on having primary rockfish species harvested under a CQ permit and rockfish incidentally retained in non-Program vessels aboard a catcher/processor vessel at the same time.

In § 679.21, NMFS inserted provisions to allow the reapportionment of halibut PSC CQ that is unused by rockfish cooperatives to the trawl sector after rockfish cooperatives have completed fishing.

In § 679.28, NMFS clarified that entry level processors are not required to have a CMCP.

In § 679.50, NMFS reduced observer coverage requirements for catcher/processor vessels fishing in the opt-out fishery, and clarified how observer coverage required under the Program affects processor facility observer coverage requirements in other non-Program groundfish fisheries.

In § 679.80, NMFS clarified that an LLP license is eligible to be assigned Rockfish QS only if a landing was made during the primary rockfish species qualifying periods in which rockfish were targeted (i.e., primary rockfish species were the predominant groundfish catch). Similarly, secondary species and halibut PSC is assigned to the catcher/processor or catcher vessel sector based on harvests or halibut PSC use attributed to specific landings in which primary rockfish species were targeted. Further, NMFS clarified that an onshore processing facility must be closed before the processing history associated with that facility may be transferred. NMFS made minor clarifications in the formula for determining a legal rockfish landing.

In § 679.81, NMFS made several modifications and changes in the process and formulas for allocating Rockfish QS among fishery participants, and the allocation of TAC for secondary species and halibut PSC between the catcher vessel and catcher/processor sectors. These changes clarified proposed regulatory text. NMFS extended the due date for the application to join a rockfish cooperative, limited access fishery, or opt-out fishery from December 1 of the year prior to fishing to March 1 of the year in which fishing occurs. NMFS clarified that CQ inter-cooperative transfers must be approved by the eligible rockfish processor with whom that rockfish cooperative is associated. NMFS made several clarifications on the process of forming a rockfish cooperative, specifically to requirements establishing the amount of Rockfish QS that must be assigned to a rockfish cooperative before it can form. NMFS specified the associations that can form between eligible rockfish harvesters and processors. NMFS deleted provisions concerning the transfer of processor eligibility, requirements on providing corporate ownership information on inter-cooperative CQ transfer forms, and provisions requiring modification of the CQ permit to add or delete the vessels fishing under that permit.

In § 679.82, NMFS clarified the calculation of use caps applicable to catcher vessel cooperatives and eligible rockfish processors; how transfers of CQ are attributed to eligible rockfish harvesters in a rockfish cooperative; and which fisheries are subject to closure once a sideboard limit is reached. NMFS inserted the BSAI Pacific cod sideboard limit that applies to the catcher vessel sector in a table with other sideboard limited species and deleted redundant text. NMFS established the halibut PSC sideboard limit as a use cap applying to the entire GOA, not to specific management areas in the GOA. Last, NMFS clarified the method for calculating the amount of groundfish and halibut PSC sideboard limits that are attributed to rockfish cooperatives, the rockfish limited access fishery, and catcher/processor sector opt-out fishery.

In § 679.84, NMFS made several modifications that designate the specific catch monitoring requirements that apply to catcher/processor vessels assigned to the opt-out fishery. Specifically, NMFS relieved requirements for scales and an observer sampling station. NMFS also clarified that groundfish harvested or halibut PSC used under a CQ permit is not debited against groundfish or halibut PSC sideboard limits in July.

In Table 28 to part 679, NMFS corrected the closure date for primary rockfish species in 1999. In Table 30 to part 679, NMFS corrected typographic errors in the maximum retainable amount (MRA) percentages for other species, clarified the rockfish fisheries to which the MRA percentages in this table apply, and added an MRA for thornyhead rockfish in the rockfish limited access fishery.

Response to Comments

Comment 1:
The use of the CFQ acronym for “cooperative fishing quota” is likely to be very confusing to the public because several Council actions under consideration refer to “community fisheries quota” as “CFQs.”

Response:
NMFS agrees and has changed Cooperative Fishing Quota (CFQ) to Cooperative Quota (CQ) to avoid confusion that may result from the use of the same abbreviation as has been used to describe“community fishing quotas.”

Comment 2:
Modify the definition in § 679.2 of “Eligible rockfish entry level harvester” to limit eligibility to harvesters not eligible to enter a rockfish cooperative.

Response:
NMFS agrees and has modified the definition of an eligible entry level rockfish harvester at § 679.2 and in § 679.80(b)(2) to explicitly exclude eligible rockfish harvesters.

Comment 3:
Modify the definition in § 679.2 of “Eligible rockfish entry level processor” to limit eligibility to processors not eligible to associate with a rockfish cooperative.

Response:
NMFS agrees and has modified the definition of an eligible entry level rockfish processor in § 679.2 to explicitly exclude eligible rockfish processors.

Comment 4:
Include skates, aggregate forage fish, and other rockfish in the definition in § 679.2 of “Non-allocated species.”

Response:
NMFS agrees and has changed the definition of “Rockfish Program species” to include these species. These species are not specifically allocated under the Program and should be included in the definition of non-allocated species.

Comment 5:
The definition of “Sideboard limit for purposes of the Rockfish Program” in § 679.2 includes primary rockfish, Pacific cod, and halibut. Is Pacific cod included because of the sideboard limit for the catcher vessel sector in the BSAI in July?

Response:
Yes. BSAI Pacific cod is included in the definition of Sideboard limit for purposes of the Rockfish Program under § 679.2 because it is subject to a sideboard limit in the catcher vessel sector.

Comment 6:
In the definition in § 679.2 of “Ten percent or greater direct or indirect ownership interest for purposes of the Rockfish Program,” NMFS uses the term “entity” to define a “person.” This creates a circular definition in the rule. “Person” is currently defined in § 679.2 as an individual, corporation, or other entity. The new definition of “entity” includes “persons.”

Response:
NMFS agrees. Although the existing definition of an “entity” contained within the definition of “Ten percent or greater direct or indirect ownership interest for purposes of the Rockfish Program” effectively includes the definition of a “person” as that term is currently defined in § 679.2, it may reduce confusion to use the term “person” rather than “entity.” NMFS notes that because the current definition of “person” in § 679.2 includes an “entity,” any of the descriptions of an “entity” provided in the proposed rule, specifically an association, partnership, joint-stock company, trust, or any other type of legal entity; any receiver, trustee in bankruptcy or similar official or liquidating agent; or any organized group of persons whether incorporated or not, is presumed to be included in the existing definition of a “person” in § 679.2.

Comment 7:
It has always been the vision of the Kodiak rockfish fishery participants that the linkages between eligible rockfish harvesters and processors may need to be modified somewhat. Thus, the rule needs to incorporate adequate flexibility to accommodate transfers of LLPs between cooperatives during initial cooperative formation and the time period afterwards, on the condition that the affiliated processor and the harvester members of the cooperative agree.

Response:
The linkages between the legal rockfish landings attributed to an LLP license to a specific eligible rockfish processor were specifically recommended by the Council. However, requiring a vessel to deliver to a specific processor when fishing under a CQ permit based on the LLP license used by that vessel may limit vessel operators from coordinating with specific processors.

The Program does not modify current provisions for the transfer of LLP licenses, nor were such provisions recommended by the Council. LLP license holders may continue to transfer LLP licenses to a new LLP holder under § 679.4(k)(7). Rockfish cooperatives do not hold LLP licenses, eligible rockfish harvesters do. LLP licenses are not transferred among rockfish cooperatives and transfers are not subject to approval by an eligible rockfish processor. However, the regulations do not require an eligible rockfish harvester to assign a vessel to the same rockfish cooperative as the LLP license.

For example, if an LLP license holder wished to assign the Rockfish QS to a specific rockfish cooperative, that eligible rockfish harvester would submit an application for CQ as described in § 679.81(e)(4). If that same eligible rockfish harvester wished to have his vessel named on a different LLP license as one of the vessels eligible to harvest fish under the CQ for another cooperative, that eligible rockfish harvester could list the vessel under a CQ permit for another cooperative and deliver catch harvested by that vessel to a different eligible rockfish processor. The vessel would continue to be subject to existing requirements to maintain a valid LLP license onboard the vessel. This arrangement would allow eligible rockfish harvesters to separate vessel operations from the rockfish cooperative to which an LLP license is assigned. This provides considerable flexibility for vessel operators.

Comment 8:
Paragraph (n) of § 679.4 suggests that quota is for “primary or secondary species” and “halibut PSC” and that the permit is no longer valid if the primary or secondary species or PSC is fully fished. Modify the section in two ways. First, if quota is issued it will always be for “primary species, secondary species, and halibut PSC.” Under no circumstances will quota be issued for one of these without the other (modify (n)(1)(i)). And, second, the permit should remain valid until all amounts of all species are fully fished. Quotas are tradable and any amount should remain usable, if it is not fished (modify (n)(1)(ii)(B) and (C)).

Response:
NMFS agrees. The intent of this provision is to ensure that a CQ permit is valid until the amounts of primary species, secondary species, and halibut PSC have been fully used by the rockfish cooperative holding that CQ permit. The regulations at § 679.4(n)(1)(ii)(B) have been modified to more clearly state that a CQ permit is valid until all amounts of all primary species, secondary species, and halibut PSC CQ have been fully used. This modification ensures that the CQ permit for all species is not invalidated because the CQ amount for one species has been reached. This modification does not relieve restrictions at § 679.7(n)(7)(i) that prohibit a rockfish cooperative from exceeding its CQ amount for any species. Section 679.4(n)(1)(ii)(C) has been removed and the contents of § 679.4(n)(1)(ii)(D) have been combined with § 679.4(n)(1)(ii)(B). Sections 679.4(n)(1)(ii)(D) through (G) have been renumbered accordingly as § 679.4(n)(1)(ii)(C) through (E).

Comment 9:
Section 679.4(n)(2) allows a rockfish cooperative to extinguish its CQ permit by submitting a declaration of termination of fishing form to NMFS, which has to be reviewed and approved. How long will this take and what happens in the meanwhile? If the CQ permit is still active, do the sideboard restrictions and monitoring and enforcement requirements still apply? Please expedite this process so vessels are not stuck with unnecessary limits when they are done with the cooperative fishery?

Response:
NMFS intends to process all termination of fishing declarations in a timely manner. Processing times for the declarations will be short, several days at the most. Until the application is approved, the vessel fishing under a CQ permit will continue to be subject to the sideboards and necessary monitoring and enforcement requirements. As is noted under the response to Comment 50, cooperative representatives may choose to check a vessel out at the end of a fishing trip. Once a vessel is checked out, if no other vessel is checked in, vessels assigned to a rockfish cooperative would not be subject to monitoring and enforcement requirements that apply while fishing under a CQ permit. However, those vessels would still be subject to monitoring and enforcement provisions applicable for sideboard management in July. Cooperative managers may wish to ensure that all vessels assigned to that rockfish cooperative are checked out prior to submitting the termination of fishing declaration.

Comment 10:
Section 679.4(n)(2)(v) notes that all CQ on the permit is set to zero when the termination of fishing declaration is approved. If this occurs before the residual CQ is transferred, does the rockfish cooperative lose their CQ allocation?

Response:
Yes. If a rockfish cooperative submits and NMFS approves its declaration to terminate fishing prior to NMFS approving an inter-cooperative transfer submitted by that rockfish cooperative, the CQ amount remaining is extinguished. If a rockfish cooperative wishes to transfer CQ, it should submit its transfer application prior to its declaration to terminate fishing.

Comment 11:
Section 679.5(r)(7)(i) incorrectly cites § 679.4(m). This citation refers to the Aleutian Island pollock fishery.

Response:
NMFS agrees and has corrected the citation in § 679.5(r)(7)(i) from § 679.4(m) to § 679.4(n) to refer to the Program.

Comment 12:
Section 679.5(r)(7)(i) requires all vessel operators under the Program to file rockfish cooperative catch reports. This provision should apply only to vessels assigned to rockfish cooperatives.

Response:
NMFS agrees and has modified § 679.5(r)(7)(i) to clearly indicate that only vessel operators whose vessels are designated to receive catch under a CQ permit are required to submit a rockfish cooperative catch report.

Comment 13:
Section 679.5(r)(8)(ii)(B) notes that annual rockfish cooperative reports are due by December 15
th
. Is the time estimated for completing the report consistent with AFA and Crab Rationalization Program requirements?

Response:
Yes, the time required to complete the annual rockfish cooperative report is similar to that under the AFA and Crab Rationalization Program. The information collected in the report is similar to that required under the AFA and Crab Rationalization Program annual cooperative report.

Comment 14:
Section 679.7(n)(1)(iv) requires full retention of any groundfish caught by a vessel that is subject to a sideboard limit as described at § 679.82(d) through (h), as applicable, if

directed fishing for that groundfish species in that area is authorized. Does this require full retention of sideboarded species? Why is this broad statement even in the rule?

Response:
The intent of this provision was to ensure that groundfish subject to a sideboard limit under § 679.82(d) through (h) are retained and counted against the sideboard limit. The groundfish subject to a sideboard limit are listed in § 679.82(d)(6) and include rockfish species in the Western GOA and West Yakutat District, and Pacific cod in the BSAI for vessels in the catcher vessel sector. Flatfish that are harvested in the GOA are not subject to a groundfish limit; rather, the harvest of flatfish is restricted by halibut PSC sideboard limits established under § 679.82(d)(8). This provision does not require vessels to retain all flatfish harvested during July.

This provision was intended to ensure that NMFS accurately accounts for the total catch in a sideboard limited groundfish fishery. Full retention would ensure that all catch is fully counted. However, NMFS can obtain information from groundfish discard rates using observer data. All vessels subject to sideboard limits in July will have observer coverage. This observer coverage is sufficient to monitor any amount of discards of groundfish and include discard estimates in the total harvest of a groundfish species subject to a sideboard limit. Thus, NMFS is not requiring the full retention of groundfish harvested that are subject to a sideboard limit by deleting the prohibition in § 679.7(n)(1)(iv) and renumbering § 679.7(n)(1)(v) through § 679.7(n)(1)(vii) as § 679.7(n)(1)(iv) through § 679.7(n)(1)(vi).

Comment 15:
Section 679.7(n)(1)(iv) states that vessel operators must retain any groundfish caught by a vessel that is subject to a sideboard limit as described § 679.81(d) through (h) if directed fishing for that groundfish species in that area is authorized. It is unclear in this provision whether retention is required only for GOA rockfish species and BSAI Pacific cod which are catch side-boarded, or if this provision also applies to flatfish species since they are side-boarded via deep and shallow halibut sideboards caps.

Response:
NMFS has addressed this comment in the response to Comment 14.

Comment 16:
Section 679.7(n)(1)(v) prohibits use of an LLP license in “any fishery” other than the rockfish fishery to which it is assigned. To the extent that this prevents a rockfish vessel from fishing other species, this is inconsistent with the analysis. The analysis suggests that trip-by-trip declarations are made to ensure proper accounting of catch and adequate monitoring. Declared rockfish trips would be subject to different accounting and monitoring.

Response:
NMFS agrees in part. NMFS has modified this prohibition to clearly state that an LLP license may not be used in “any Rockfish Program fishery” other than the Rockfish Program fishery to which that LLP license was originally assigned. The intent of this prohibition was not to limit the ability of Program participants from engaging in non-Program fisheries. This modification makes clear the intent of this provision is to limit the ability of an eligible rockfish harvester to use his LLP license to fish in more than one Rockfish Program fishery in a calendar year (i.e., fishing under a CQ permit for a rockfish cooperative, limited access fishery, opt-out fishery, entry level trawl fishery, or entry level longline gear fishery). Fishing in more than one of these fisheries would undermine the ability of NMFS to effectively manage cooperatives and the limited access fishery because Rockfish QS must be assigned to specific fisheries at the start of each fishing season to properly allocate fishery catch limits.

The portion of the comment relating to catch accounting of vessels on a trip-by-trip basis is addressed in response to Comment 50.

Comment 17:
Section 679.7(n)(1)(v) appears to prevent a non-trawl entry level vessel from fishing in fisheries other than the Rockfish Program fishery from January 1 until the entry level fishery closes (possibly in November). This provision will make the entry level fishery impracticable for all non-trawl vessels. Managers should be able to account catch against the non-trawl entry level TAC in a manner similar to that currently used. Additionally, § 679.7(n)(1)(v) seems overly broad with respect to trawl entry level and trawl limited access vessels. Those fisheries open in May and July respectively and will likely close shortly after opening. This provision seems to limit the ability of those vessels to participate in any other fishery during the year. In addition, a vessel should be able to withdraw from these fisheries at any time with notice to the agency.

Response:
Under the clarification made in response to Comment 16, NMFS will only require that if a vessel is directed fishing in a specific Rockfish Program fishery as defined in § 679.2 (e.g., entry level longline gear fishery), it cannot directed fish in another Rockfish Program fishery (e.g., entry level trawl fishery) in the same calendar year.

Comment 18:
Paragraph (n) of § 679.7 does not appear to be a clear prohibition on eligible harvesters participating in the entry level fishery, or eligible processors taking deliveries from the entry level fishery. The provision in § 679.7(n)(5) suggests that eligible processors can take deliveries from the entry level fishery. Only ineligible processors can take entry level deliveries. These prohibitions could be included here.

Response:
NMFS agrees. Although the definitions of an “eligible entry level rockfish harvester” and “eligible entry level rockfish processor” in § 679.2 have been modified to more explicitly exclude “eligible rockfish harvesters” and “eligible rockfish processors,” respectively, from participating in the entry level fishery as detailed in § 679.83, a prohibition would further clarify this issue. This prohibition would also be consistent with the description of the eligibility to participate in the entry level Rockfish Program fishery in the preamble to the proposed rule at 71 FR 33064, which states that “the Program would establish an entry level fishery for all persons who are not eligible rockfish harvesters or processors.”

These new prohibitions are inserted in § 679.7(n)(1)(vi) and (vii) and state that it is prohibited to receive any primary rockfish species harvested in the entry level rockfish fishery if that person is an eligible rockfish processor, or harvest any primary rockfish species in the entry level rockfish fishery if that person is an eligible rockfish harvester.

Comment 19:
Section 679.7(n)(2)(ii) requires a catcher/processor vessel in the limited access fishery to meet the all monitoring and enforcement requirements from July 1 until directed fishing for all primary rockfish targets for the limited access fishery are closed. Catcher/processor vessels with less than 5 percent of the aggregate Pacific ocean perch Rockfish QS allocation can fish in the Bering Sea or in other GOA fisheries. Those catcher/processor vessels should be able to forego the monitoring and enforcement requirements if they are not fishing in the Program.

Response:
Nothing in the FMP or Council motion recommending this action indicates that catcher/processor vessels using LLP licenses with less than 5 percent of the Pacific ocean perch Rockfish QS in the catcher/processor sector are relieved of the monitoring and enforcement requirements that apply to other catcher/processor vessels. If a catcher/processor vessel is fishing in the limited access fishery, or fishing in July and

subject to a sideboard limit, that vessel is subject to the monitoring and enforcement requirements established for that sector (See § 679.82(d) through (h)).

Comment 20:
Section 679.7(n)(7)(i) prohibits exceeding the amount of CQ assigned to a rockfish cooperative. Can the CQ amount assigned to a rockfish cooperative be amended by a documented transfer from another rockfish cooperative?

Response:
Yes. Rockfish cooperatives can increase or decrease the amount of CQ held by engaging in inter-cooperative transfers. See § 679.81(i)(4)(iii) for additional details.

Comment 21:
Paragraphs (n)(7)(iv) and (vi) of § 679.7 prohibit fishing with a CQ permit if there are non-CQ fish on board. This means a catcher/processor will have to offload prior to entering a Rockfish Program fishery, and prior to completing fishing under a Rockfish Program fishery and beginning fishing in a non-Program groundfish fishery. If a vessel chooses to leave and enter a Rockfish Program fishery multiple times it would be forced to offload repeatedly. Offloads require several days away from the grounds and several thousand dollars worth of fuel. The level of monitoring and enforcement required is more than adequate to determine what fish was landed while in the Program. Requiring the offload is expensive and unnecessary.

Response:
NMFS agrees, § 679.7(n)(7)(iv) is modified to apply only to catcher vessels, and § 679.7(n)(7)(vi) is removed. This effectively authorizes a catcher/processor vessel to have species harvested under a CQ permit and those not harvested under a CQ permit onboard the vessel at the same time. Therefore, if a catcher/processor vessel checked-out while at sea at the end of a week-ending date, it would not need to offload prior to fishing in other non-Program fisheries. This comment is more fully addressed in response to Comment 50.

Comment 22:
There should be a mechanism to make halibut PSC CQ unused by rockfish cooperatives available to other trawl target fisheries. Halibut PSC could be released back to the open access trawl fisheries either when the rockfish fishery closes on November 15, or when the CQ permit is revoked through an approved rockfish cooperative termination of fishing declaration. If the remaining halibut PSC were made available to the other trawl target fisheries, it would offer an incentive for the rockfish cooperatives to work toward minimizing halibut PSC CQ use and bearing the additional cost that comes with these bycatch reduction efforts.

Response:
NMFS agrees. If a rockfish cooperative has not fully used its allocation of halibut PSC CQ in a year, or if that rockfish cooperative submits a termination of fishing declaration, that portion of the halibut PSC not used in the Program could be reallocated for use in other non-rockfish fisheries. This is consistent with the overall goals of halibut PSC management to apportion halibut by gear type. To facilitate the management of this “roll-over” NMFS will allow halibut PSC remaining after November 15, or after a cooperative has submitted a declaration to terminate fishing, to be reallocated to the final seasonal apportionment of halibut PSC for use by trawl gear in the GOA. Currently, the final season for halibut PSC apportionment begins on October 1. NMFS will review termination of fishing declarations and allow halibut PSC remaining to be redistributed for general use beginning on October 1. After November 15, any remaining halibut PSC allocated to rockfish cooperatives will be available for general use by vessels using trawl gear. NMFS has modified regulations at § 679.21(d)(5)(iii) to allow this reapportionment of unused halibut PSC, and has modified regulations at § 679.4(n)(2)(v) to clarify that once a rockfish cooperative termination of fishing declaration has been submitted, the halibut PSC that was allocated as CQ, is reapportioned to the trawl sector according the provisions of the new § 679.21(d)(5)(iii)(B).

Comment 23:
The title of § 679.50 states that the Groundfish Observer Program is applicable through December 31, 2007. Is this the current expiration date of the Observer Program?

Response:
At its June, 2006 meeting, the Council recommended removing the December 31, 2007, expiration date. NMFS currently is drafting a proposed rule that would remove this expiration date. That rulemaking will be part of a separate action.

Comment 24:
There are several questions regarding the new requirements for plant observers:

Comment 24-1:
When are an observer's duties considered complete?

Response 24-1:
Daily observer coverage begins when the first rockfish delivery occurs and ends 12 hours later regardless of the nature of the deliveries (i.e., Program or non-Program deliveries) during that period. Program deliveries after that 12 hour time in the calendar day will require a second observer. Other non-Program deliveries may occur after this 12 hour period has lapsed and the observer may decide to sample those non-Program deliveries. This clarification does not modify the existing regulations.

Comment 24-2:
Present regulations require specific coverage levels based on processing volumes. For example, if a plant processes less than 500 mt of groundfish in a month, then no observer coverage is required. We are assuming that rockfish deliveries would not count towards the processing volume level and therefore would not trigger observer requirements for other groundfish deliveries. We also assume that rockfish observer coverage would not count towards meeting the observer requirements for other groundfish delivery requirements. Is this the agency intent?

Response 24-2:
The intent of the regulations is to ensure that non-Program deliveries count for non-Program coverage, but deliveries of Program groundfish would not be counted for purposes of meeting minimum observer coverage requirements for non-Program groundfish. Any non-Program deliveries that occur when the Program observer is present at that processing facility during that calendar day will be counted towards the non-Program observer coverage requirements for that month. NMFS has clarified the provisions of § 679.50(d)(7)(iv) to define the accounting of observer coverage.

Comment 24-3:
There may be times that a processor will not need a rockfish observer for an entire 12 hour period. Can the processor use this observer for other groundfish deliveries if the 12 hour limit has not been reached?

Response 24-3:
If a Program observer is not needed to observe Program deliveries during an entire 12 hour period, that processor may use this observer for other non-Program groundfish deliveries. During periods when an observer is monitoring both Program and non-Program deliveries, the observer coverage on non-Program catch may apply toward their observer requirements.

Comment 24-4:
Is it possible that the processor can use an observer for monitoring Program deliveries and after 12 hours use that same observer for other groundfish observer requirements?

Response 24-4:
Yes. At the end of a 12 hour period during a calendar day, a Program observer cannot observe any more Program deliveries until the next calendar day. However, that observer could monitor deliveries in other non-Program groundfish fisheries subject to existing observer coverage requirements.

Comment 24-5:
Is it the intent of the observer program to use vessel observers to monitor the entire vessel offload?

Response 24-5:
No. Program observers onboard vessels are limited to collating their at-sea sample data and transmitting these data to NMFS from shore.

Comment 25:
While industry understands that monitoring and enforcement of a quota share program is important for managers and conservation, the 100 percent observer coverage requirement for the vessels creates a large financial burden for them. The Program is complicated because of the number of QS species required to accommodate the mixed nature of the fishery. However, Program observer requirements are the highest standard ever imposed on a small catcher vessel fleet in the North Pacific and are more restrictive than the requirements for the halibut IFQ fleet and the AFA pollock fleet. Both industry and managers must develop creative solutions that meets monitoring and enforcement requirements but that are affordable for industry participants. The Program offers the appropriate environment to experiment with creative solutions to find a way to reduce the monitoring and enforcement costs for this and other quota programs.

Response:
NMFS agrees that the continued investigation of innovative solutions to the monitoring and enforcement issues associated with a complex quota-based program and suite of species such as rockfish is critical and we will continue to actively work with the fishing industry to investigate new approaches. However, at this time no feasible alternative to 100 percent observer coverage exists that can ensure that all catch is accounted for against the quotas. NMFS agrees that monitoring requirements, including observer coverage levels proposed for the Program, are more stringent than those imposed on either the halibut and sablefish IFQ fleets or the AFA pollock fleet. However, NMFS notes that neither of these programs are multispecies fisheries, nor is the ability to fully harvest quotas potentially constrained by the availability of halibut PSC. This constraint distinguishes the Program from all other quota-type programs developed to date and results in the need for the more rigorous monitoring and enforcement standards than have been imposed in previous programs.

Comment 26:
The rockfish fishery is probably one of the most complicated fisheries to observe for species identification and catch monitoring. We believe that lead level-two observers should be required for the shoreside vessels and processors, as is required for the catcher processor fleet.

Response:
NMFS disagrees. Level-two certified observers are trained in at-sea sample station requirements, at-sea motion compensated scale testing, and observer duties at-sea under the AFA and CDQ Program. Training for level-two observers does not include new duties for shoreside vessel and plant observers under the Program. Any shoreside duties for level-two observers are specific to CDQ Program requirements. Species identification and sampling methodologies for the shoreside component are covered during the three week training course that all certified observers receive.

Comment 27:
The preamble to the proposed rule (71 FR 33044) on pages 33065 and 33068, state that the observer coverage requirements for shoreside processors apply to those processors taking rockfish deliveries from all categories of harvesters, including those in the entry level fishery. However, the proposed modifications to § 679.50(c)(7)(ii) of the proposed rule listing the catcher vessel categories subject to additional shoreside processor observer coverage requirements does not include entry level harvesters. Entry level processors taking deliveries from entry level harvesters, particularly small longline gear vessels, should not be subject to these observer requirements added by the implementation of a Program for which they are not eligible.

Response:
NMFS agrees. Entry level processors are expected to only take a few deliveries that result from a modest amount of catch, and NMFS expects that current monitoring requirements will be sufficient to meet data needs. The page of the proposed rule preamble referenced in the comment (71 FR 33065) is inconsistent with the requirements of § 679.50(d)(7). Additionally, NMFS notes that without a dedicated rockfish observer present to monitor the sorting and weighing at the plant, a CMCP is not a functional monitoring tool. Therefore, NMFS removed the provisions at § 679.84(e) that require a CMCP for an rockfish entry level processor. NMFS modified § 679.7(n)(6) to limit this provision to catcher vessels delivering catch under a CQ permit, or in the rockfish limited access fishery. NMFS notes that these changes do not relieve processing facilities receiving entry level fishery catch from other monitoring and enforcement requirements that may apply to those facilities while receiving or processing fish in other fisheries.

Comment 28:
Section 679.80(b)(1)(i)(B) of the proposed rule provides that a landing of a primary species during a directed fishery opening qualifies an LLP license for the Program. The provision should provide that an LLP license is qualified to participate in the Program and receive Rockfish QS only if it has a targeted legal rockfish landing during a directed fishery, where a legal rockfish landing is considered to be targeted only if the catch of the primary species was the predominant catch in that trip.

Response:
NMFS agrees. Clarifying that an LLP license is eligible to participate in the Program and receive Rockfish QS only if primary rockfish species were the predominant catch in at least one legal rockfish landing will reduce any potential claims for assigning Rockfish QS to LLP licenses based on legal rockfish landings that are attributed to incidental harvest in other groundfish fisheries. This is also consistent with the intent of the Council as described in Section 3.3.1.1 of the Council motion recommending this action. Section 3.3.1.1 indicates that targeted catch should be used to determine whether an LLP license is eligible to be used to participate in the Program. NMFS has modified § 679.80(b)(1)(i)(B) to require that an LLP license is eligible to qualify to receive Rockfish QS only if it is assigned a legal rockfish landing of any primary rockfish species in which the sum of the catch of all primary rockfish species for that legal rockfish landing exceeded the catch of all other groundfish according to the official rockfish record.

NMFS modified the criteria for establishing eligibility to participate in the entry-level fishery under § 679.80(b)(2)(iii) to indicate that a person cannot participate in the entry level fishery if that person holds an LLP license with landings attributed to it that reflect a directed rockfish target fishery and that person is otherwise eligible to receive Rockfish QS.

This comment also indirectly addresses the allocation of secondary species and halibut PSC between the catcher/processor and catcher vessel sector by noting that targeted catch is the basis for determining eligibility to participate in the Program and receive allocations. NMFS has modified § 679.81(b)(2) and (b)(3) to allocate an amount of secondary species to the catcher/processor and catcher vessel sectors based on secondary species that were harvested during the directed fishing seasons for primary rockfish species in which the sum of the catch of all primary rockfish species for that legal rockfish landing exceeded the catch of all other groundfish. This modification is consistent with the Section 3.3.1.2 of the Council motion

recommending this action which states that “secondary species history is allocated based on retained catch over retained catch while targeting the primary rockfish species.” This clarification also is consistent with data presented in Table 27 in the final EA/RIR prepared for this action.

Similarly, NMFS has modified § 679.81(c)(2) and (c)(4) to allocate an amount of halibut PSC to the catcher/processor and catcher vessel sectors based on halibut PSC that was used during the directed fishing seasons for primary rockfish species in which the sum of the catch of all primary rockfish species for that legal rockfish landing exceeded the catch of all other groundfish. This modification is consistent with the Section 3.3.1.3 of the Council motion recommending this action which states that halibut PSC allocations between the catcher/processor and catcher vessel sector “will be based on historic average usage, calculated by dividing the total number of metric tons of halibut mortality in the CGOA rockfish target fisheries.” This clarification also is consistent with data presented in Table 28 in the final EA/RIR prepared for this action.

Comment 29:
Paragraphs (b)(3) through (b)(5) of § 679.80 should note that the assignment of legal rockfish landings for secondary species to the sector occurs only if the LLP license is eligible for the Program.

Response:
NMFS agrees. NMFS would only assign legal landings to an LLP license if that LLP license was eligible to be used in the Program under the criteria listed in § 679.80(b)(1). These criteria prevent NMFS from assigning a legal landing to an LLP license that is not held by an eligible person. For clarity, NMFS notes that an LLP license must be eligible to have legal landings attributed to it under § 679.80(b)(3), (b)(4)(ii), and (b)(5)(ii). The allocation of secondary species to the catcher/processor and catcher vessel sector is discussed further in the response to Comment 28.

Comment 30:
Paragraph (c) of § 679.80 should more clearly note that processing history transfers that are separate from the plant ownership only apply if the facility has closed and the purchaser remains in the same community. Paragraph (d)(4)(ii) of § 679.80 should limit the transfer of processing history. In general, a processing facility is eligible if it meets the processing criteria and its processing history remains attached to its originating facility, unless the facility is closed. If a facility is closed, the history can only be transferred to a facility in the community.

Response:
NMFS agrees. Section 5.4 of the Council motion notes that “[i]f a processing facility has closed down and another processing facility has acquired that processing history through purchase, the history belongs to the facility that purchased that history.”

The Council's intent is best met by limiting transfers of processing history to two cases: one in which the processing history can only be transferred with the sale of the processing facility at which that catch history was earned; and the other is to limit the transfer of processing history separate from the sale of the processing facility at which that history was earned only in the specific case in which the eligible processing facility at which that processing history was earned is closed. NMFS defines a “closed” facility as a facility which has not been issued a Federal Processor Permit (FPP). An FPP is required for any groundfish processing, and NMFS can easily ascertain whether a facility was operating by reviewing its records. Other definitions of a “closed” facility may be subject to greater uncertainty and interpretation and could create additional administrative burdens. NMFS clarifies that a facility remains closed if it did not receive an FPP at the time that the processing history had been transferred to another person through the express terms of a written contract.

NMFS has modified § 679.80(c)(2)(ii) to note that processing history, and therefore eligibility to participate as an eligible rockfish processor, must have been transferred by a clear and unambiguous contract, and that the processor from which this history was transferred must be closed. NMFS has modified § 679.80(d)(4)(ii) to note that any transfer of processing history must meet the requirements described at § 679.80(c)(2)(ii). Once transferred, any processing history, and resulting status as an eligible rockfish processor, must be used to receive and process groundfish under a CQ permit, or in the limited access fishery, in the community where the processing history was originally earned (see provisions at § 679.7(n)(6)). That community is designated on the application to participate in the Rockfish Program (see § 679.80(e)(4)(ii)(C)).

Comment 31:
For a processor to qualify for a processing permit they must have processed at least 250 mt of primary rockfish species for at least four years from 1996 through 2000. Additionally, a processor would determine the four of five years from 1996 through 2000 used to determine which LLP holders may form a rockfish cooperative in association with that processor. The four qualifying years for the permit could be different from the processing years chosen by the processor to determine fleet associations. The Council intended to provide processors the flexibility to use two different sets of years; one set of years to qualify as an eligible rockfish processor, and one set of years to determine which LLP licences may form rockfish cooperatives in association with that processor.

Response:
NMFS will compute whether a processor is an eligible rockfish processor by determining whether the minimum processing tonnage requirement is met in each of any four of five years from 1996 through 2000 as described under § 679.80(c)(1). This decision is not subject to the discretion of the eligible rockfish processor; either the minimum processing requirements are met or they are not. Once NMFS determines that a processor meets these requirements, the eligible rockfish processor may select the four of five years from 1996 through 2000 to establish how that processor may associate with a catcher vessel rockfish cooperative. These years may differ from those used by NMFS to determine the processor's eligibility to participate in the Program. The rule has not been modified.

Comment 32:
In § 679.80 paragraph (f)(3)(ii)(E) uses the phrase “multiplying the Percentage of the Total of the Total” which appears to be a typographic error.

Response:
NMFS agrees and has removed the second phrase “of the Total.” This is a minor typographical error that does not substantively affect this provision.

Comment 33:
Paragraph (f)(3)(ii) of § 679.80 refers to the calculation of Rockfish QS based on “a percentage of legal rockfish landings' in that sector”. This section should state the “Rockfish QS for a sector” is based on a percentage of legal rockfish landings in that sector.

Response:
NMFS agrees. NMFS has modified § 679.80(f)(3)(ii) to more clearly state that the amount of Rockfish QS issued for a sector is based on the percentage of legal landings of eligible harvesters in that sector. The provision that follows at § 679.80(f)(3)(iii) describes the process of deriving Rockfish QS from each eligible LLP license and allocating Rockfish QS to that sector.

Comment 34:
I do not understand the calculation in § 679.80(f)(3)(iii)(F). Should the total amount of Rockfish QS assigned to an LLP license in the catcher/processor sector be the sum of the Rockfish QS units, by species,

calculated for catcher/processor LLPs under § 679.80(f)(3)(iii)(E)?

Response:
No, the calculation in § 679.80(f)(3)(iii)(F) multiplies the percentage of the total legal landings for a specific LLP license in a specific primary rockfish species determined in § 679.80(f)(3)(iii)(E) by the initial Rockfish QS pool established in Table 29 to part 679. This calculation is necessary to derive the number of Rockfish QS units that will be assigned to an LLP license. No change to this provision has been made.

Comment 35:
Paragraph (f)(3)(iii)(F) of § 679.80 refers to the “five qualifying years” used to compute percentage of rockfish landings attributable to the catcher/processor sector. The Council motion states that a sector's allocation is based on the individual vessel histories with the “drop two years” provision applied at the vessel level. As a result, the sector allocation will consider more than five years, since different LLP holders will drop different years. For clarity, remove the word five, referencing instead qualified catch or landings. Paragraph (f)(3)(iii)(G) of § 679.80 makes the same reference to five qualifying years for the catcher vessel sector allocation. Drop the word “five”.

Response:
NMFS agrees and has removed the reference to “five” in these provisions. Although only five years are used in the calculation for the sum of harvests attributed to a specific LLP license in the catcher/processor sector, more than five years may be considered before that calculation is made.

Comment 36:
Paragraph (a)(3) of § 679.81 suggests that a sector's allocation is its Rockfish QS divided by the Rockfish QS of the sector—it should be all Rockfish QS in the pool (of both sectors). The formula accompanying the text appears to be correct. Revise text to say all Rockfish QS in the pool. Also, the result is not the “amount” of TAC, as written, but the “percent” of TAC.

Response:
NMFS agrees and had modified the text in this section to match the text provided in the algorithm that is part of this provision. The text clearly indicates that the denominator for this computation is the total Rockfish QS pool for a primary rockfish species. In addition, NMFS changed the word amount to percent in § 679.81(a)(3) to correctly note that the results of the calculations in this section are each a “percent” of the total TAC for a primary rockfish species, and not a specific amount.

Comment 37:
In § 679.81(a)(4)(ii), two issues arise from not making allocations of halibut PSC to the limited access fisheries. First, allowing the limited access fishery to use halibut PSC from the overall trawl halibut PSC limit could allow the limited access fishery to use far more halibut PSC than would be allocated as halibut PSC CQ had limited access vessels joined cooperatives. Second, a specific halibut PSC limit is not assigned to the limited access fishery. Either, allocate a specific halibut PSC limit to the limited access fishery to limit the amount of halibut PSC that may be used by those vessels, or if a specific halibut PSC limit is not allocated to the limited access fishery, then halibut PSC should be deducted from the overall trawl halibut PSC limit.

Response:
NMFS agrees in part. NMFS intends to deduct any halibut PSC assigned to the rockfish cooperatives as CQ and any halibut PSC used in the limited access fisheries from the third season halibut PSC allocation to the deep water complex. Prior to the Program, halibut PSC used in the rockfish fisheries and deep-water flatfish fisheries was deducted from the deep-water halibut PSC complex. NMFS will maintain a similar mechanism for the management of halibut PSC used for the limited access fishery. After reducing the third season halibut PSC allocation to the deep water complex to accommodate the CQ allocations, any remaining halibut PSC used in the limited access fishery would be deducted from the remaining third season allocation. This Program does not provide a specific allocation to the limited access fishery; any halibut PSC used by vessels not fishing under a CQ permit and in the deep-water fishery complex fisheries, or the limited access fishery would be deducted from this general halibut PSC account.

Comment 38:
Paragraph (a)(5)(ii)(A) of § 679.81 contains a typographical error. The word “cooperatives” should be singular, not plural.

Response:
NMFS agrees and has modified § 679.81(a)(5)(ii)(A) to correct the typographical error.

Comment 39:
In § 679.81(b)(2), the allocation of secondary species to the catcher/processor sector should be based on the catch of secondary species by eligible catcher/processors while those vessels were targeting rockfish (where targeting is defined as a landing in which primary rockfish species are the dominant species). The provision, as currently written, seems to include all catch of secondary species by catcher/processors during the directed fishery, regardless of whether a catcher/processor is targeting rockfish. In § 679.81(b)(3), the allocation of secondary species to the catcher vessel sector should be based on the catch of secondary species by eligible catcher vessels while those vessels were targeting rockfish. Include a targeting requirement.

Response:
NMFS agrees. To reduce inconsistency with the Council intent, specifically Section 3.3.1.4 of the Council motion recommending this action, NMFS has modified § 679.81(b)(2) to note that secondary species shall be allocated to the catcher/processor sector based on catch of secondary species that was retained during the directed rockfish species fisheries. Additionally, NMFS has modified § 679.81(b)(3) to note that secondary species shall be allocated to the catcher vessel sector based on catch that was retained during the directed primary rockfish species fisheries.

Comment 40:
According to the draft EA/RIR/IRFA, the sablefish allocation for catcher processors will be based on the cooperative's aggregate primary species Rockfish QS holdings within the sector, and the rougheye allocation will be 58.87 percent and the shortraker allocation will be 30.03 percent of the TAC. Table 3 in the preamble to the proposed rule title “Secondary species allocated to rockfish cooperatives in the Central GOA by fishery sector” has the wrong allocation scheme within the table and appears to have mismatched the secondary species categories with their corresponding row text for the catcher processor sector.

Response:
NMFS agrees that the preamble text in the table is inconsistent with the regulatory text in § 679.81(b)(2)(v) and (vi). The regulatory text is correct and the error in the preamble was a formatting error.

Comment 41:
Paragraphs (b)(2) and (3) of § 679.81 contain typographical errors. The phrase “during the directed fishery for any primary rockfish fishery,” should read “during the directed fishery for any primary rockfish species.”

Response:
NMFS agrees and has modified § 679.81(b)(2) and (3) to correct these typographical errors. NMFS has also made corrections in other sections of the rule to replace the term “primary rockfish fishery,” with the appropriate term “primary rockfish species.” These changes were made in § 679.2 under the definition of a “legal rockfish landing,” and in § 679.81(a)(3), and in the title to Table 28 to part 679.

Comment 42:
Revise paragraphs (b)(5)(i) and (c)(4)(i) of § 679.81 to omit Rockfish QS assigned to the opt-out fishery from the denominator. In § 679.81(b)(5)(i) and § 679.81(c)(4)(i), the allocation of secondary species and halibut PSC, respectively, to catcher/processor cooperatives is based on target rockfish histories of cooperative members. The allocations use all

catcher/processor Rockfish QS in the denominator. This denominator includes Rockfish QS attributed to vessels that opt-out of the Program. The denominator should exclude “opt-out QS,” as was done for primary species allocations in § 679.81(a)(5)(ii)(A).

Response:
NMFS agrees and has revised § 679.81(b)(5)(i) and § 679.81(c)(4)(i) to make these changes. The same allocation protocol for CQ that applies to primary rockfish species for the catcher/processor sector should apply for secondary species and halibut PSC. This would effectively reallocate secondary species and halibut PSC to cooperative participants as envisaged in Section 9.1 of the Council motion supporting this action that notes that “the history of [catcher/processor] vessels which opt-out will remain with the sector.” The algorithm for primary species allocations in § 679.81(a)(5)(ii)(A) does not consider the allocations that would be attributed to participants in the opt-out fishery as part of the denominator for allocating the primary rockfish species. This approach is also consistent with the approach described in the final EA/RIR prepared for this action.

Comment 43:
The provision in § 679.81(c) references a use limitation for halibut PSC in § 679.82. No use limits in that section apply to halibut PSC. Remove this incorrect reference.

Response:
NMFS agrees and has removed the reference to use caps in § 679.81(c)(1). Use caps are intended to apply only to the use of primary rockfish species and not to the use of halibut PSC that is assigned to a cooperative. The FMP and Section 6.2 of the Council motion recommending this action indicate that use caps should not apply to halibut PSC used by cooperatives.

Comment 44:
In § 679.81(c)(1), both secondary species and halibut PSC are allocated based on the LLP holder's rockfish history. Therefore, use caps only apply to the Rockfish QS. This suggests secondary species and halibut PSC are non-severable from the Rockfish QS, and are allocated on an annual basis. Secondary and halibut PSC CQ need to be fully transferable between cooperatives and also be separable from the originating Rockfish QS for these transfers to be effective. These species will most likely be the most restrictive for participants, and therefore they need to be used by industry efficiently.

Response:
This comment has been addressed in response to Comment 43. In addition, NMFS notes that the regulations concerning the transfer of CQ do not restrict the ability of a rockfish cooperative to transfer its halibut PSC CQ or secondary species CQ separate from the primary rockfish species CQ. NMFS has clarified the regulations at § 679.81(i)(4)(iii) to note that secondary species and halibut PSC CQ are not assigned to specific members of a rockfish cooperative. Additionally, NMFS has clarified regulations at § 679.82(a)(1) to note that use caps do not apply to secondary species and halibut PSC CQ.

Comment 45:
In paragraphs (c)(1) and (2) of § 679.81, the allocation of halibut PSC should be based on the use of halibut PSC by eligible catcher processors while targeting rockfish.

Response:
NMFS agrees. However, these comments address the proposed rule at paragraphs (c)(2)(i) and (c)(3)(i) of § 679.81 rather than paragraphs (c)(1) and (c)(2) of that section as noted by the commenter. The response to this comment is similar to that provided to Comment 39, but is specific to the amount of halibut PSC attributed to the catcher/processor and catcher vessel sectors. To reduce inconsistency with the Council intent, NMFS modified § 679.81(c)(2)(i) to note that halibut PSC shall be allocated between the catcher/processor and catcher vessel sectors based on the amount of halibut PSC that was “used during the directed fishery for any targeted primary rockfish species.”

Comment 46:
In paragraphs (c)(2) and (3) of § 679.81, the division of halibut between the sectors should be based on the relative aggregate qualified rockfish catch of the sectors. The proposed rule incorrectly bases the allocation on halibut use. Revise to base the division on sector rockfish history.

Response:
NMFS agrees. The allocation of halibut PSC between the catcher/processor and catcher vessel sectors is based on first determining the total amount of halibut PSC attributed to LLP licenses eligible for the Program. Second, the amount of halibut PSC used by these LLP licenses is divided between the catcher/processor and catcher vessel sectors based on the relative amount of primary species Rockfish QS assigned to these sectors.

To improve consistency with Council intent in Section 4.5 of the Council motion which notes that “each LLP holder will receive an allocation of halibut mortality equivalent to their proportion of the sector rockfish history,” and Amendment 68, NMFS modified § 679.81(c)(2) so that the maximum amount of halibut PSC that may be used by participants in the Program is based on the amount of halibut PSC used by all eligible LLP licenses as a percentage of the total halibut mortality used by all fishery participants during the seven year period from 1996 until 2002. This percentage of halibut mortality is then multiplied by the total GOA halibut mortality limit. This amount of halibut mortality is further divided between the catcher/processor and catcher vessel sectors based on the percentage of aggregate Rockfish QS assigned to each sector, with modifications made to accommodate LLP licenses assigned to the opt-out fishery in the catcher/processor sector. By making these changes, the regulations applicable to the catcher/processor and catcher vessel sectors have also been consolidated. The regulations at § 679.81(c)(2) include the allocation mechanism applicable to the catcher/processor and catcher vessel sectors and § 679.81(c)(3) has been deleted because those provisions are redundant with the revised § 679.81(c)(2). Accordingly, § 679.81(c)(4) and (5) of the final rule have been renumbered as § 679.81(c)(3) and (4).

Comment 47:
The Council motion notes that a vessel's operational status determines how Rockfish QS should be assigned between the catcher vessel and catcher/processor sectors. If a vessel with a catcher/processor LLP licence was not used to process the rockfish catch onboard the vessel, than the Rockfish QS derived from the landings on that vessel is assigned to the catcher vessel sector. The provisions in § 679.81(d)(2)(ii) and (d)(4)(ii) seem to dictate that Rockfish QS on a catcher/processor LLP license can only be allocated to the catcher/processor sector. Additionally, this suggests that a catcher/processor LLP license is only allowed to form cooperatives with other holders of catcher/processor LLP licenses and not with catcher vessel LLP license holders. The regulations need to allow catcher/processor LLP license holders that did not process on board to have that catch history assigned to the catcher vessel sector and be able to join catcher vessel cooperatives.

Response:
NMFS agrees. The commenter correctly notes that if a vessel has an LLP license with a catcher/processor endorsement but that vessel did not harvest and process primary rockfish species aboard that vessel, the Rockfish QS derived from the legal rockfish landings attributed to that LLP license would be assigned to the catcher vessel sector. This is indicated in § 679.80(b)(5)(i). However, the proposed regulatory text at § 679.81(d)(2)(ii) and (d)(4)(ii) stated that an eligible rockfish harvester may assign Rockfish QS to a rockfish cooperative in the catcher vessel sector if that Rockfish QS is associated with an

LLP license with a catcher vessel designation that is endorsed for trawl gear in the Central GOA trawl fishery. This proposed provision was inconsistent with the provisions of § 679.80(b)(5)(i), and would seemingly limit the ability of an eligible rockfish harvester, with a catcher/processor endorsed LLP license with Rockfish QS assigned to the catcher vessel sector, from using that Rockfish QS in a catcher vessel cooperative.

To correct this inconsistency, and allow the use of Rockfish QS assigned to the catcher vessel sector regardless of the type of LLP license on which that Rockfish QS is assigned, NMFS has made the following modifications. In § 679.81(b)(5), NMFS has modified § 679.81(b)(5)(ii) and added a new § 679.81(b)(5)(iii) to state that a legal rockfish landings is attributed to the catcher vessel sector if it is a legal rockfish landing but does not meet the criteria of being a legal rockfish landing for the catcher/processor sector.

NMFS has also modified § 679.81(d)(2)(ii) and (d)(2)(iii), which address the use of Rockfish QS in a rockfish cooperative, and § 679.81(d)(4)(ii) and (d)(4)(iii), which address the use of Rockfish QS in the limited access fishery. These modifications allow an eligible rockfish harvester to assign Rockfish QS to a rockfish cooperative or limited access fishery based on the sector to which those Rockfish QS are assigned, not based on the designation of the LLP license that gave rise to that Rockfish QS.

Comment 48:
Modify the language in the preamble on page 33045 to make it clear that Rockfish QS resulting from those legal landings made aboard a vessel with an LLP licence endorsed for catcher/processor activity but not processed onboard that vessel is assigned to the catcher vessel sector. Further clarify that there is at least one vessel which operated under the authority of a catcher/processor LLP license with legal rockfish landings that did not process catch that rockfish catch onboard.

Response:
NMFS notes the error in the preamble (71 FR 33045) to the proposed rule and has addressed the regulatory effects of this error in the response to Comment 47.

Comment 49:
In § 679.81(d)(5), specify that only catcher/processors can assign their Rockfish QS to the opt-out fishery.

Response:
NMFS agrees and has modified § 679.81(d)(5) to clearly state that only an eligible rockfish harvester with Rockfish QS assigned to the catcher/processor sector may choose to apply for the opt-out fishery.

Comment 50:
Revise § 679.81(e)(4)(i)(B) and § 679.81(e)(8) to allow trip declarations for moving from rockfish targets to other targets. In § 679.81(e)(4)(i)(B), at least one vessel must be designated to harvest the CQ assigned to a cooperative in the annual application for CQ. This provision forces a rockfish cooperative to devote one vessel exclusively to harvest under a CQ permit for that rockfish cooperative at all times, contravening the trip-by-trip method for accounting and monitoring rockfish activity as was discussed in Section 3.4.1 of the draft EA/RIR/IRFA that was under review by the Council at the time of final action. Rockfish cooperatives will require flexibility in determining how the CQ permit should be used.

Additionally, in § 679.81(e)(8), the requirement to amend an application for CQ to remove a vessel from the rockfish target fishery is inconsistent with the rockfish trip declaration contemplated by the analysis. Paragraph (i)(3)(xxii) in § 679.81 is also inconsistent with the draft EA/RIR/IRFA. It effectively creates “rockfish boats” that cannot fish in any fishery other than the Rockfish Program fishery after May 1 until the fishery is closed for the cooperative or the cooperative refiles its application for CQ. These provisions are completely unreasonable and remove most benefits from the Program. The analysis contemplates a trip declaration for entering the rockfish fishery to allow for adequate monitoring and accounting. This aspect of the Program is critical to achieving its intended benefits.

Response:
Neither Amendment 68 nor the Council motion recommending Amendment 68 address specific fishing plans by vessels that are assigned to a cooperative or the methods that NMFS should use to determine how a vessel's catch would be deducted from a CQ permit. Section 3.4.1 of the final EA/RIR prepared for the approval of Amendment 68 did review potential mechanisms of accounting for catch by vessels that are assigned to a rockfish cooperative. One of the mechanisms specifically mentioned was for NMFS to monitor vessels that were participating in the Program on a trip by trip basis in the catcher vessel sector, or on a haul-by-haul basis in the catcher/processor sector, with the assumption that this form of monitoring could be effectively provided within NMFS' management and funding constraints.

The final EA/RIR noted that “given the complexity of the [Program] and the limited time period for its effectiveness, NOAA Fisheries intends to manage the fishery to minimize costs and the complexity of quota management.” NMFS has attempted to develop a monitoring and enforcement program that is cost-effective, manageable, and effective. The final EA/RIR also notes that:

Share-based management programs can increase the incentive of participants to misreport and high grade catch, while at the same time increasing the burden on managers to provide highly defensible estimates of catch, especially when those estimates directly impact quota holders. NOAA Fisheries has dealt with these issues by clearly articulating goals for the management of share-based fisheries and imposing new and more stringent monitoring and observer requirements as these programs have been developed. All of these programs have been unique in terms of the fleet and fisheries rationalized, and interventions developed for the programs have varied as well. The Central Gulf of Alaska rockfish pilot program is no different in this regard and development of a suitable monitoring program will involve the development of new tools to ensure defensible catch data is collected to minimize unreported discard of allocated species catch.

The monitoring and enforcement provisions in the proposed rule were designed to meet the multiple objectives of NMFS' catch accounting and reporting needs. Paragraph (e)(4)(i)(B) of § 679.81 of the proposed rule did create a condition in which rockfish cooperatives would need to designate at least one vessel to fish the CQ permit for that cooperative effective on May 1. Paragraph (e)(8) of § 679.81 did provide a mechanism for cooperatives to modify their CQ permit to redesignate a specific vessel or vessel(s) to fish under a CQ permit. This mechanism differs somewhat from a specific trip-by-trip declaration of CQ permit and non-CQ permit fishing. However, providing trip-by-trip accounting dramatically increases the administrative burden to track each individual vessel, particularly if vessels frequently transit between CQ and non-CQ fishing. Check-in/check-out provisions quickly absorb staff resources to collect, monitor, and verify check-in/check-out reports with fish ticket data when discrepancies arise.

Vessels that check in and out of CQ permit fishing frequently could create potential confusion for observers that may be switching monitoring standards and protocols for each trip. A check-in/check-out procedure is required in the halibut and sablefish individual fishing quota (IFQ) program. However, under the halibut and sablefish IFQ program, the costs of monitoring and administering a check-in/check-out procedure are recoverable under Section 303(d)(2)(B) of the Magnuson-Stevens

Act. Section 304(d)(2)(A) of the Magnuson-Stevens Act requires the Secretary to “collect a fee to recover the actual costs directly related to the management and enforcement of any...individual fishing quota program [or] community development quota program.” Any IFQ program, must follow the statutory provisions set forth by section 304(d)(2) of the Magnuson-Stevens Act and other provisions of the Magnuson-Stevens Act related to cost recovery and fee collection for IFQ programs. NMFS and NOAA General Counsel are reviewing the applicability of the Magnuson-Stevens Act provisions on cost recovery and fee collection to the Program. Should subsequent analysis indicate that Section 303(d)(2)(B) of the Magnuson-Stevens Act applies to the Program, and a cost recovery program is implemented, more elaborate check-in/check-out procedures could become more affordable for NMFS and would warrant additional review.

The commenter appears to be most concerned about providing flexibility for cooperatives to designate specific vessels to fish under the CQ permits in a timely fashion, and redesignate vessels as necessary. NMFS has adopted several modifications to provide additional flexibility to cooperative members, while meeting existing catch accounting limitations and funding constraints.

First, NMFS has deleted provisions at § 679.81(e)(4)(i)(B) that required that if no vessels are designated to use the CQ issued to the rockfish cooperative on the application, then all vessels using LLP licenses assigned to the rockfish cooperative will be assumed to be designated to use the CQ.

Second, NMFS has deleted regulations in § 679.81(e)(8) that provide the mechanism for amending the CQ permit to add or delete vessels that are permitted to fish under a CQ permit for a cooperative. NMFS has also deleted references to the CQ permit amendment in paragraphs § 679.5(r)(1)(ii), and § 679.81(i)(3)(x).

Third, NMFS has provided a check-in procedure by inserting a new § 679.5(r)(10) that allows the designated representative of a cooperative to designate when a vessel will fish under a CQ permit for that rockfish cooperative. A vessel check-in must be submitted 48 hours prior to the beginning of a fishing trip by that vessel. This advance notice will provide NMFS time to adjust catch accounting procedures and accurately monitor catch. The designated representative can not submit more check-in reports in a calendar year than an amount equal to three times the number of LLP licenses that are assigned to that rockfish cooperative in that calendar year. This limit would reduce the number of check-in reports and vessels that must be tracked and reduce the chance that a specific vessel's catch is misapplied in NMFS' catch accounting system.

Fourth, NMFS, would include in § 679.5(r)(10) provisions that allow the designated representative of a cooperative to designate when a vessel will no longer fish under a CQ permit for that rockfish cooperative. The designated representative could submit no more check-out reports in a calendar year than an amount equal to three times the number of LLP licenses that are assigned to that rockfish cooperative in that calendar year. A vessel check-out is effective the earlier of:

• The end of a complete offload if that vessel is fishing under a CQ permit for a catcher vessel cooperative; or

• The end of the week-ending date as reported in the weekly production report if that vessel is fishing under a CQ permit for a catcher/processor cooperative; or

• The end of a complete offload if that vessel is fishing under a CQ permit for a catcher/processor cooperative.

A vessel check-out must be submitted within 6 hours after its effective date and time. This will ensure that catch is properly debited against a CQ account and reduces the risk that a subsequent trip would be misapplied to a CQ permit and have to be corrected.

Fifth, § 679.7(n)(7)(iii) is modified so that the designated representative of a rockfish cooperative would be responsible for submitting timely check-in/check-out reports for fishing under a CQ permit according to the provisions in § 679.4(n)(10).

Sixth, § 679.7(n)(7)(iv) is modified to apply only to catcher vessels, and § 679.7(n)(7)(vi) is removed. This effectively authorizes a catcher/processor vessel to have species harvested under a CQ permit and those not harvested under a CQ permit onboard the vessel at the same time. Therefore, if a catcher/processor vessel checked-out while at sea at the end of a week-ending date, it would not need to offload prior to fishing in other non-Program fisheries.

These modifications do not allow trip-by-trip or haul-by-haul designation of CQ and non-CQ harvests. That detailed level of catch accounting would require significant changes to the existing catch accounting system software, require additional resources to track a potentially large number of changes in accounting methods, and add a greater degree of complexity to an already complex Program that has a two-year duration. These modifications accommodate the requirements and limitations of NMFS and the desire for maximum flexibility proposed by the commenter. These modifications adopted by NMFS do allow vessels to be checked in to fish under a CQ permit when needed and without a potentially lengthy approval process. Designated representatives for cooperatives will need to coordinate fishing plans with their members to ensure that once a vessel is checked in, it is used to effectively harvest fish under the CQ permit and recognize that once a vessel is checked out it can no longer be used to fish for that cooperative's CQ unless checked in again. This will limit vessels to fishing under a CQ permit for a specific time period, but cooperative managers should be able to coordinate fishing schedules with their members to avoid subjecting them to monitoring and enforcement requirements beyond those required to effectively manage this complex multispecies quota Program. Alternatively, if a cooperative is unable to effectively arrange fishing schedules with their members, it may transfer its CQ to another cooperative, thereby relieving its members of the requirements for fishing under a CQ permit.

Comment 51:
How long will it take NMFS to process the application to amend vessels authorized to fish CQ under § 679.81(e)(8)(i)?

Response With the changes made in the response to Comment 50, this application no longer is required and the comment is no longer applicable.

Comment 52:
Although not explicit in the proposed rule, the preamble states that a vessel could not be redesignated to fish rockfish CQ, if any fish were onboard. This could be overly burdensome on catcher processors that would be forced to offload all products despite having adequately accommodated accounting and monitoring of catch under the Program and under sideboards.

Response:
Catcher/processors are not required to offload all products harvested prior to being designated to fish under a CQ permit. Likewise, a catcher/processor vessel would not be required to offload all products harvested under a CQ permit prior to fishing in a non-Program fishery. Changes to the provisions for designating vessels to harvest CQ are addressed in the response to Comment 50.

Comment 53:
Allow the rockfish cooperative vessels to declare, on a tow by tow basis as with CDQ fishing, whether they are fishing under a CQ permit or not. In May or June the vessel will declare a rockfish tow or an open

access tow. Nothing accrues to the rockfish allocation in May and June unless it's specifically rockfish harvested under a CQ permit. In July, the vessel will declare a rockfish tow or a sideboard tow (nothing accrues to open access in the month of July).

Response:
Aspects of this comment addressing tow-by-tow declarations of harvest to the Program have been addressed in the response to Comment 50. In addition, during the month of July, it is assumed that if a vessel is subject to a sideboard limit, than all catch made by that vessel in July, unless fishing under a CQ permit, is applied to the sideboard limit for that vessel. More generally, it should be noted that rockfish fisheries in the Central GOA differ substantially from CDQ rockfish fisheries in the BSAI and similar catch accounting and monitoring principles are not applicable to the Program. NMFS notes that the allocations of rockfish species to the CDQ Program are much smaller than the allocations of primary rockfish species under the Program, and those small allocations are rarely fully prosecuted. As an example, in 2005, the Pacific ocean perch allocation to the CDQ Program was approximately 950 mt for the BSAI. However, only approximately 100 mt of Pacific ocean perch, equivalent to roughly one day of harvest by a catcher/processor vessel, was taken in a directed CDQ rockfish fishery. NMFS expects that rockfish allocations under the Program will be fully prosecuted consistent with historic harvest patterns. This difference means that NMFS is likely to be tracking a much greater number of hauls in the Program than NMFS monitors currently in the CDQ multispecies fisheries.

Additionally, designating specific hauls as CDQ or non-CDQ hauls is largely limited to the pollock fisheries. Effectively, this means that vessels do not target CDQ multispecies fisheries at the same time that they are targeting non-CDQ multispecies fisheries. NMFS has limited experience with monitoring CDQ and non-CDQ multispecies harvests on a haul-by-haul basis. The primary advantage of haul-by-haul accounting in the CDQ pollock fishery is that it allows vessels to assign specific pollock hauls to either an AFA cooperative, or to the CDQ group's allocation. This benefits the CDQ groups and the AFA cooperatives, by allowing vessel operators to attribute hauls, the associated incidental catch, and halibut PSC to either the AFA cooperative or the CDQ group, maximizing the use of either the CDQ group or the AFA cooperative's allocation. Information reviewed by NMFS indicates that halibut PSC use in CDQ pollock fisheries differs from that in AFA directed pollock fisheries even through these fisheries are prosecuted by the same vessels simultaneously. This is likely due to the selective attribution of catches with higher halibut PSC rates to the AFA Program, which minimizes the use of halibut PSC quota allocated to CDQ groups.

Under the Program, attributing specific hauls to the Program or non-Program fisheries could create an incentive for vessel operators to attribute hauls with high incidental catch or halibut PSC to the non-rockfish fisheries. This could cause halibut PSC use rates in the non-Program fisheries to increase, and could constrain non-rockfish fisheries in the Central GOA limited by halibut PSC use, such as deep-water flatfish fisheries. As an example, a vessel operator could assess the species composition of hauls by making several hauls and designating hauls with lower quality rockfish or higher halibut PSC as non-Program hauls. This process of selectively attributing tows to a CQ permit or the rockfish limited access fishery could increase discarding of rockfish that are harvested in non-Program hauls to ensure that the rockfish harvested is below the MRA for the other species (e.g., flatfish) that are also harvested in these tows. Unlike pollock, rockfish species have life histories that may make them less resilient to fishing pressures. Given the TAC, allowable biological catch, and overfishing level of the primary rockfish fisheries, NMFS is cautious about potentially introducing additional incentives for high grading of catch which can occur in quota-based fisheries.

Finally, NMFS notes that the Program is intended, in part, as a two-year pilot project to provide additional information about quota management of a multispecies fishery. As with other aspects of this Program, changes in catch accounting can be initiated after NMFS and the industry have additional experience with the Program.

Comment 54:
Paragraphs (e)(5)(i)(E) and (e)(6)(i)(F) of § 679.81 require detailed ownership information from persons assigning their LLP license to the limited access or opt-out fisheries. These fisheries do not receive an individual allocation of primary rockfish species, so neither sector is subject to an ownership cap. The information is unnecessary and should not be required.

Response:
NMFS disagrees. The use caps that are established in § 679.82 are applicable to the amount of Rockfish QS that a person may hold, and the amount of CQ that may be used by a rockfish cooperative that is derived from an eligible rockfish harvester's holdings of Rockfish QS. Although an eligible rockfish harvester who assigns his LLP license and associated Rockfish QS to the limited access fishery or the opt-out fishery may not receive CQ in a given year, that person is still a holder of Rockfish QS. As such, NMFS must have a means for determining whether that eligible rockfish harvester exceeds the Rockfish QS use cap. Ownership data is collected on an annual basis and because the application for the rockfish limited access fishery and application to opt-out are due annually, these forms provide a means for NMFS to gather timely ownership information. The rule has not been modified.

Comment 55:
The estimated time line between the final regulation going into effect (November 1, 2006) and when a company must submit an application to participate in the Program (December 1, 2006) is unrealistic and simply not practical. The 30-day time period is inadequate to assemble and make a complete application as set forth in § 679.81(e). This application, which will likely bring together multiple companies to form a cooperative, is not a simple task. To form an entirely new “cooperative legal entity” that meets the multitude of administrative requirements in only 30 days is not practical.

Response:
NMFS agrees and has modified the due date to apply to participate in the Program in § 679.80(e)(3) from December 1, 2006, to January 2, 2007. NMFS also modified the due date for the application for CQ, application for the rockfish limited access fishery, application to opt-out, and Application for the entry level fishery in § 679.81(e)(3), from December 1 of the year prior to the year in which a person wishes to participate, to March 1 of the year in which that person wishes to participate. These changes will allow potentially eligible harvesters and processors to apply to participate in the Program and then have nearly 60 days to decide whether to participate in a cooperative, limited access fishery, or opt-out. During this time period, harvesters could coordinate with each other. This will also provide additional time for eligible rockfish harvesters in the catcher vessel sector who wish to form a rockfish cooperative to coordinate with the eligible rockfish processor with whom they may associate.

Comment 56:
In § 679.81(f), remove the statement concerning processor eligibility transfers because the Council motion makes no provision for the

transfer of processor licenses. Additionally, the provisions in paragraphs (f)(2) and (g)(1) of § 679.81 are inconsistent with the Council motion. Since the Program is short term, transfer of eligibility once the Program is implemented is not necessary. The Council motion makes no provision for the transfer of processor eligibility.

Response:
NMFS agrees. Although processor eligibility transfers are likely to be necessary should Congress provide additional authority to NMFS to extend this Program, the Council did not specifically recommend provisions to allow processors to transfer their eligibility to another processor. NMFS has deleted the provision concerning the transfer of processor eligibility in § 679.81(f) and (f)(2). In addition, NMFS has modified § 679.81(g)(1) to note that a person may not transfer their eligibility as a rockfish processor to another person except in the case when a person purchases a processing facility and the processing history associated with that facility. In this case, that person would be eligible to operate that facility and use the processing history associated with that facility.

Comment 57:
Paragraph (f)(1)(ii)(B) of § 679.81 requires the names of all persons with ownership interest in an LLP license upon the transfer of CQ. If NMFS already has this information from the annual application for CQ, it is not needed again when CQ is transferred.

Response:
NMFS agrees and has deleted this requirement in § 679.81(f)(1)(ii)(B). The requirement to collect ownership information of rockfish cooperative members is addressed under the annual application for CQ requirements in § 679.81(e)(4)(i)(B)(
2
) and is not required again.

Comment 58:
In § 679.81(f)(1), the permission of the affiliated processor is required for any CQ transfer by a catcher vessel cooperative.

Response:
NMFS agrees. The regulations at § 679.81(f)(1)(v) and (vi) provide that any transfer must be signed by an designated representative of the cooperative. NMFS had presumed that this designated representative would have the authority of the eligible rockfish processor with whom that rockfish cooperative is associated. NMFS has modified § 679.81(f)(1)(v) and (vi) to require that the designated representative provide explicit authorization signed by the applicant and the eligible rockfish processor with whom that rockfish cooperative is associated with any application. This modification is consistent with Section 5.4 of the Council motion recommending this action which states that rockfish cooperatives “may engage in inter-cooperative transfers of annual allocations to other cooperatives with agreement of the associated qualified processor.” An application will not be considered valid without this explicit authorization.

Comment 59:
The provisions in § 679.81(h) suggest that MRAs apply when rockfish boats are participating in non-rockfish fisheries. Since “opting out” has been defined as a fishery with applicable MRAs defined, it suggests that all fishing by a rockfish boat is subject to rockfish MRAs. Applying the Program MRAs to cooperatives fails to distinguish between vessels assigned to a rockfish cooperative and fishing under a CQ permit, and vessels assigned to a rockfish cooperative but not fishing under a CQ permit. A sentence could be added stating the fishing outside cooperatives and outside of the limited access rockfish fishery is subject to Table 10 MRAs.

Response:
NMFS agrees in part. The MRAs specific to the Program are applicable only when vessels are fishing in the Central GOA for primary rockfish species under a CQ permit, or in a limited access fishery. Fishing by vessels that are not fishing under a CQ permit or in the limited access fishery would continue to be subject to the MRAs applicable for non-Program fisheries. NMFS does agree that additional clarity is required in § 679.81(h)(1) to note that a vessel assigned to a rockfish cooperative and fishing under a CQ permit may harvest groundfish species not allocated as CQ up to the MRA for that species as established in Table 30 to this part. Any vessel assigned to a cooperative not fishing under a CQ permit (i.e., engaged in non-Program fisheries) will continue to be subject to MRA limits established under Table 10 to part 679.

Comment 60:
In § 679.81(i)(1), persons who leave a rockfish cooperative are bound by the allocation of CQ during the year. This should also state that any sideboards applicable to a catcher/processor rockfish cooperative continue to bind the person. Include a provision stating that sideboards continue to bind a person that leaves a cooperative.

Response:
NMFS agrees. Although § 679.82(f)(2) details those vessels and LLP licenses that are subject to sideboard limits for a catcher/processor sector, that section does not specifically state that once a vessel or LLP license is assigned to a rockfish cooperative it continues to be bound by the sideboard limits established for that rockfish cooperative. NMFS has modified § 679.82(f)(2), (f)(2)(i), (f)(2)(ii), and (f)(2)(iii) so it clearly states that once an LLP license of vessel has been assigned to a rockfish cooperative that LLP license and vessel continues to be subject to the sideboard limits established for that rockfish cooperative under § 679.82(d) and (f), for that calendar year.

Comment 61:
Paragraph (i)(3)(vi) of § 679.81 should note that 75 percent of the Rockfish QS eligible for the cooperative is necessary for cooperative formation.

Response:
NMFS agrees. Section 5.4 of the Council motion recommending this action notes that “75 percent of historical shares” (i.e., Rockfish QS) delivered to an eligible rockfish processor, must be assigned to a rockfish cooperative in order for a rockfish cooperative to form. NMFS has modified § 679.81(i)(3)(vi) to note that a rockfish cooperative can form only if it is assigned Rockfish QS that represents at least 75 percent of all the legal rockfish landings delivered to that eligible rockfish processor during the four years selected by that processor. Legal rockfish landings that do not yield Rockfish QS would not be considered in the calculation.

Comment 62:
In § 679.81(i)(3)(xii) the phrasing of the question and answer should be edited because the intent of this provision is not clear.

Response:
NMFS agrees. Although the intent of this provision has not been modified, NMFS rephrased § 679.81(i)(3)(xii) to note that sideboard limits assigned to a rockfish cooperative in the catcher/processor sector are limits applicable to a specific rockfish cooperative, and may not be transferred between rockfish cooperatives.

Comment 63:
Paragraph (i)(3)(xv) in § 679.81 is unclear and may deviate from the Council's intent. Specifically, if a company owns two qualified processing facilities, it could have two associated cooperatives (one for each plant). The intent of the processing history transfer provisions are two-fold. First, a processor can buy a facility and its associated processing history and operate that facility. This allows a processor to operate two plants with two distinct rockfish cooperatives. Second, the processor could buy the processing history of a closed facility. This processing history could be combined with the processing history at another facility, and that combined processing history would be used to form associations with a single plant (which must be in the same community as the plant from which history was purchased). In any case, the processor must stay under the use caps.

Response:
NMFS agrees and has modified § 679.81(i)(3)(xv) to more clearly note that an eligible rockfish processor will be issued a single eligible rockfish processor permit for the aggregate processing history based on (1) the holdings of processing history at a specific facility, and (2) acquired processing history from a shoreside processor or stationary floating processor that is closed. A person may only receive eligibility for processing history that is acquired without the purchase of the processing facility associated with that history if that person held that processing history prior to the end of the application period to be included in the Program. The eligible rockfish processor will select a single four year period applicable to the aggregate processing history held by that eligible rockfish processor for determining which eligible rockfish harvesters may form a rockfish cooperative in association with that eligible rockfish processor. Eligible rockfish harvesters are eligible for a rockfish cooperative in association with that processor, based on the aggregated processing history held by that processor. Once a rockfish cooperative associates with that eligible rockfish processor, that processor may receive rockfish delivered by that rockfish cooperative at a shoreside processor or stationary floating processor owned by that eligible rockfish processor, subject to any other restrictions that may apply.

NMFS has also modified § 679.81(i)(3)(v) to note that an eligible rockfish processor may select only one processor qualifying period (i.e., the four of five year period) that is applicable to the aggregated processing history held by that eligible rockfish processor.

If an eligible rockfish processor owns more than one processing facility, and therefore more than one processing history, that eligible rockfish processor would associate with one cooperative at one facility, and associate with another cooperative at another facility. As the commenter notes, any processing activity will continue to be subject to processing use caps.

Comment 64:
Paragraph (i)(4)(i) of § 679.81 should be revised to state that 75 percent of the eligible Rockfish QS that was initially delivered to that processor is necessary for rockfish cooperative formation.

Response:
NMFS agrees and has modified § 679.81(i)(4)(i) to clarify that if an eligible rockfish harvester has not delivered to an eligible rockfish processor, any Rockfish QS issued to that eligible rockfish harvester may not be considered as contributing to the amount of Rockfish QS necessary to meet a minimum of 75 percent of the legal rockfish landings required to form a rockfish cooperative. This change is consistent with the response to Comment 62.

Comment 65:
In § 679.81(i)(4)(ii) delete “for” from the second line which reads “a person fishing for CQ,” so it reads “a person fishing CQ.”

Response:
NMFS agrees and has corrected the typographic error in § 679.81(i)(4)(ii).

Comment 66:
Paragraph (i)(4)(iii) of § 679.81 should be revised to note that catcher vessel sector inter-cooperative transfers are required to be approved by the associated processor as is noted in section 5.4 in the Council motion recommending this action.

Response:
NMFS agrees. As noted in the response to Comment 58, NMFS will require that any inter-cooperative transfer include explicit authorization from the eligible rockfish processor with whom that rockfish cooperative is associated as part of an inter-cooperative transfer of CQ under § 679.81(f)(1)(v) and (vi). With that change, no modification is required in this section.

Comment 67:
Paragraph (i)(4)(iii)(F) of § 679.81 should prohibit transfers from a rockfish cooperative once that cooperative has submitted its termination of fishing declaration.

Response:
NMFS disagrees. The intent of the termination of fishing declaration is that after that date no transfers of CQ could be received by a rockfish cooperative. Once NMFS has approved a termination of fishing declaration submitted by a rockfish cooperative, the total amount of CQ held by that rockfish cooperative is set to zero (see § 679.4(n)(2)(v)). Therefore, a rockfish cooperative would not have any CQ available for transfer to another cooperative. These requirements effectively prevent a rockfish cooperative from transferring any CQ to or from another rockfish cooperative. No change is required.

Comment 68:
In § 679.81(i)(5)(ii)(A), delete “not” in the second to last line so that it reads, “No member of a cooperative may exceed. . .”

Response:
NMFS agrees and has removed the word “not” from § 679.81(i)(5)(ii)(A). This provision is intended to state that no member of a rockfish cooperative may exceed the CQ use cap applicable to that member. The word “not” negates that intent and is a typographical error.

Comment 69:
In paragraph (i)(5)(ii)(B) of § 679.81, the total CQ should be the amount assigned to the person from transfers and the amount initially held from Rockfish QS.

Response:
NMFS agrees and has clarified § 679.81(i)(5)(ii)(B) to provide that for purposes of CQ use cap calculation, the total amount of CQ held (used) by a person is equal to all pounds of CQ derived from the Rockfish QS held by that person and assigned to the rockfish cooperative, and all pounds of CQ assigned to that person by the rockfish cooperative from approved transfers. This change is consistent with the FMP and the intent of this provision as described on page 33054 of the preamble to the proposed rule (71 FR 33040).

Comment 70:
Since a cooperative holds CQ directly only, the application of the individual and collective rule for indirect holdings in § 679.82(a)(3) is unnecessary. Use of the individual and collective rule could have some unintended consequences, particularly if a person owns shares that are eligible for two different cooperatives.

Response:
NMFS agrees. A rockfish cooperative can only hold the CQ derived from the members of this cooperative. A rockfish cooperative cannot indirectly hold CQ and so the term “individual and collective” is not applicable and has been deleted from § 679.82(a)(3).

Comment 71:
Paragraphs (a)(3) and (a)(6) of § 679.82 should be revised to clearly note that a rockfish cooperative is precluded from exceeding 30 percent of the CQ issued to the catcher vessel sector unless that cooperative qualifies for a “grandfather” exemption. The current structure of these paragraphs does not meet the intent of the grandfather provisions. The exemption to the use cap should apply only if the cooperative is eligible to receive in excess of 30 percent of the initial allocation of catcher vessel Rockfish QS.

Response:
NMFS agrees. As worded, the provisions in the proposed rule at § 679.82(a)(3) would limit the ability of a rockfish cooperative to exceed 30 percent of the Rockfish QS pool allocated to the catcher vessel sector. This could inhibit the ability of a rockfish cooperative to form if the potentially eligible members of the rockfish cooperative held more than 30 percent of the Rockfish QS in the catcher vessel sector. To minimize the possibility of rockfish cooperatives being so limited, NMFS modified § 679.82(a)(3) to state that a rockfish cooperative may not hold or use an amount of CQ that is greater than the amount derived from 30.0 percent of the aggregate Rockfish QS initially assigned to the catcher vessel sector, unless the sum of the aggregate Rockfish QS held

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A06-9229. Public record. Not legal advice.