[Federal Register Volume 65, Number 165 (Thursday, August 24, 2000)]
[Rules and Regulations]
[Pages 51553-51559]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-21681]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

 50 CFR Part 679

[Docket No. 000511130-0237-02; I.D. 032900C]
RIN 0648-AN25


Fisheries of the Exclusive Economic Zone Off Alaska; Allocation 
of Pacific Cod among Vessels Using Hook-and-line or Pot Gear in the 
Bering Sea and Aleutian Islands

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

ACTION:  Final rule; revision of final 2000 harvest specifications; 
closure.

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SUMMARY: NMFS issues regulations to implement Amendment 64 to the 
Fishery Management Plan for the Groundfish Fishery of the Bering Sea 
and Aleutian Islands Area (FMP). NMFS also revises the 2000 harvest 
specifications for Pacific cod in the Bering Sea and Aleutian Islands 
management area (BSAI) to be consistent with these regulations and 
closes directed fishing for Pacific cod in the BSAI by hook-and-line 
catcher vessels over 60 ft length overall (LOA) and pot vessels over 60 
ft LOA. This closure is necessary to prevent exceeding the respective 
allocations of the hook-and-line and pot gear (fixed gear) Pacific cod 
total allowable catch (TAC) specified for each of these gear sectors in 
Amendment 64 and implemented by this final rule and the revised 
specifications. This final rule is necessary to implement Amendment 64 
and to respond to the fishing industry's socioeconomic needs that have 
been identified by the North Pacific Fishery Management Council 
(Council). It is intended to promote the goals and objectives of the 
FMP.

DATES: Final rule and revisions to the specifications are effective 
September 1, 2000; Closure is effective 1200 hrs, Alaska local time 
(A.l.t.), September 1, 2000, until 2400 hrs, A.l.t., December 31, 2000.

ADDRESSES: Copies of Amendment 64 and the Environmental Assessment/
Regulatory Impact Review/Initial Regulatory Flexibility Analysis (EA/
RIR/IRFA) and the supplementary Final Regulatory Flexibility Analysis 
(FRFA) prepared for this action are available from the Council at 605 
West 4th Avenue Suite 306, Anchorage, AK 99501, telephone 907-271-2809. 
Send comments on any ambiguity or unnecessary complexity arising from 
the language used in this final rule to Regional Administrator, 709 
West Ninth Street, Federal Office Building, Suite 453, National Marine 
Fisheries Service, Ju:neau, AK 99801.

FOR FURTHER INFORMATION CONTACT: James Hale, 907-586-7228.

SUPPLEMENTARY INFORMATION :  NMFS manages the groundfish fisheries in 
the Exclusive Economic Zone (3 to 200 miles offshore) of the BSAI 
pursuant to the FMP, which the Council prepared and NMFS approved in 
accordance with the Magnson-Stevens Fishery Conservation and Management 
Act, Pub. L. 94-265, 16 U.S.C. 1801 (Magnson-Stevens Act).
     The Council adopted Amendment 64 at its October 1999 meeting. NMFS 
published the Notice of Availability for the amendment in the Federal 
Register on April 11, 2000 (65 FR 19354), inviting public review and 
comment on the FMP amendment through June 12, 2000. NMFS approved 
Amendment 64 on July 12, 2000.
    NMFS published a proposed rule to implement Amendment 64 and revise 
the 2000 harvest specifications for Pacific cod in the Federal Register 
on May 26, 2000 (65 FR 34133). The public comment period on the 
proposed rule ended on July 10, 2000. NMFS received a total of 14 
letters of comment, 11 supporting the amendment and 3 opposing it. All 
comments are summarized and responded to under the Response to Comments 
section.

 Background and Need for Action

     Beginning in 1997, Amendment 46 to the FMP allocated the TAC for 
BSAI Pacific cod among vessels using jig gear, trawl gear, and fixed 
gear. Two percent of the TAC is reserved for jig gear, 47 percent for 
trawl gear, and 51 percent for fixed gear. The amendment further split 
the trawl allocation equally between catcher vessels and catcher/
processor vessels, but no split was adopted for the 51 percent 
allocated to hook-and-line and pot vessels.
    Increased prices for Pacific cod, reduced crab guideline harvest 
levels, and shortened or canceled crab seasons due to low resource 
abundance have resulted in increased harvests of Pacific cod by vessels 
using pot gear. Fishermen displaced from crab fisheries have expressed 
ongoing interest in fishing for Pacific cod, aggravating concerns by 
long-term Pacific cod fishermen about erosion of their gear harvest 
shares in the cod fishery in favor of new entrants using pot gear who, 
until very recently, focused harvest activity in the BSAI crab 
fisheries.

[[Page 51554]]

     In response to these concerns, the Council initiated an analysis 
at its April 1999 meeting of the effects of splitting the fixed gear 
allocation of Pacific cod in the BSAI among hook-and-line catcher/
processor vessels, hook-and-line catcher vessels, and catcher vessels 
and catcher/processors using pot gear. At its June 1999 meeting, the 
Council reviewed the analysis and drafted the following problem 
statement to guide further analysis of alternatives for Amendment 64:
    The hook-and-line and pot fisheries for Pacific cod in the 
Bering Sea/Aleutian Islands are fully utilized. Competition for this 
resource has increased for a variety of reasons, including increased 
market value of cod products and a declining acceptable biological 
catch and total allowable catch. Longline and pot fishermen who have 
made significant long-term investments, have long catch histories, 
and are significantly dependent on the BSAI cod fisheries need 
protection from others who have little or limited history and wish 
to increase their participation in the fishery. This requires prompt 
action to promote stability in the BSAI fixed gear cod fishery until 
comprehensive rationalization is completed.
     The subsequent analysis reviewed, in addition to the status quo, 
alternatives for separate Pacific cod allocations for the different 
hook-and-line and pot gear users that approximate their historical 
catches over the past 4 years. The options analyzed determined those 
percentages based on catch histories from (1) 1996 and 1997, (2) 1997 
and 1998, (3) 1996 through 1998, and (4) 1995 through 1998. In general, 
the allocations that would result from these options ranged between 80 
and 85 percent to hook-and-line vessels and between 15 and 20 percent 
to pot vessels.
     At its October 1999 meeting, the Council adopted Amendment 64 to 
set Pacific cod directed fishing allowances for the different hook-and-
line and pot gear users (sectors) in the following percentages: Hook-
and-line catcher/processor vessels, 80 percent; hook-and-line catcher 
vessels, 0.3 percent; pot gear vessels, 18.3 percent; and hook-and-line 
or pot catcher vessels less than 60 ft LOA, 1.4 percent. These 
percentages represent divisions of the hook-and-line or pot gear TAC 
after a deduction of estimated incidental catch of Pacific cod in other 
groundfish hook-and-line or pot gear fisheries.
     Amendment 64 requires that specific provisions for the accounting 
of these directed fishing allowances and the transfer of unharvested 
amounts of these allowances to other vessels using hook-and-line or pot 
gear be set forth in regulations. This final rule sets forth these 
provisions.
     Harvests by pot and hook-and-line catcher vessels less than 60 ft 
LOA will accrue against the 1.4-percent allocation only after pot 
vessels and hook-and-line catcher vessels harvest the respective 18.3 
percent and 0.3 percent allocations. Managing the allocations in this 
manner will ensure that cod is available to the smaller catcher vessels 
even after the larger vessels in their gear sector have taken their 
allocation. Nevertheless, if the pot gear fishery lasts longer than the 
hook-and-line fishery, then the small hook-and-line catcher vessels 
could begin (and possibly finish) harvesting the 1.4-percent allocation 
before catcher vessels under 60 ft LOA using pot gear have an 
opportunity to harvest any of the 1.4-percent allocation set aside for 
smaller catcher vessels.
     Because a sector of the BSAI Pacific cod fishery may not be able 
to harvest its entire allocation in a year due to halibut bycatch 
constraints or, in the case of the jig fishery, insufficient effort in 
the fishery, the Council also provided direction on how projected 
unharvested amounts of a gear's directed fishing allowance may be 
transferred to a different user group. Unharvested amounts (roll-overs) 
from the jig or trawl gear allocations will be apportioned between 
catcher-processors using hook-and-line gear and vessels equal to or 
greater than 60 ft LOA using pot gear according to the actual harvest 
of roll-overs by these two sectors during the 3-year period from 1996 
to 1998. Projections based on information in the analysis for this 
action indicate that 94.7 percent of the cod will be allocated to the 
hook-and-line catcher-processor fleet and the remaining 5.3 percent to 
the pot fleet. In addition, any amounts of Pacific cod annually 
allocated to catcher vessels using hook-and-line gear or to vessels 
less than 60 ft LOA that are projected to remain unharvested will be 
rolled over to the hook-and-line catcher-processor fleet in September.
     The Pacific cod directed fishing allowances established by 
Amendment 64 for the different fixed gear sectors terminate on December 
31, 2003. Continuing the allocation percentages of Pacific cod set 
forth in Amendment 64 or changing them after that date will require 
Council adoption and NMFS' approval of a new FMP amendment. In adopting 
an expiration date for the proposed amendment, the Council reasoned 
that 3 years would be sufficient time to evaluate the impact of this 
action in light of other impending changes for the BSAI fixed-gear 
fishery, such as upcoming Amendment 67 to require Pacific cod and gear 
endorsements on permits issued under the License Limitation Program 
(LLP). Whereas Amendment 64 establishes allocations for different 
sectors of the fixed-gear fishery, upcoming Amendment 67 would limit 
the participants to those who meet certain historical criteria. Prior 
to the expiration date, the Council intends to reconsider the issue in 
light of other proposed changes impending for the BSAI Pacific cod 
groundfish fisheries, including proposed gear or species endorsements 
on permits issued under the license limitation program.
     In adopting Amendment 64, the Council recognized that a separate 
regulatory amendment would be needed to apportion the 900 mt Pacific 
halibut prohibited species mortality limit established for nontrawl 
gear in regulations at Sec. 679.21(e)(2) among catcher vessels and 
catcher/processor vessels fishing for Pacific cod using hook-and-line 
gear. Current regulations authorize only a separate Pacific halibut 
bycatch allowance to the ``Pacific cod hook-and-line fishery'' defined 
at Sec.  679.21(e)(4)(ii)(A). Thus, catcher/processor vessels using 
hook-and-line gear to fish for Pacific cod could attain amounts of 
halibut bycatch mortality that would result in prohibition of directed 
fishing for Pacific cod by all vessels using hook-and-line gear, 
including catcher vessels using this gear type under a separate Pacific 
cod directed fishing allowance.
     To respond to this concern, the Council has requested staff to 
develop an analysis of regulatory measures that would authorize further 
allocation of the Pacific halibut mortality limits among vessels using 
hook-and-line or pot gear. If the Council adopts such regulatory 
measures in the future, a proposed rule a proposed rule would be 
published for public review and comment.

 Incidental Catch Allowance (ICA)

     Pacific cod also are taken incidentally in directed fisheries 
using hook-and-line or pot gear for other species. To the extent 
practicable, NMFS credits this incidental harvest against the TAC to 
ensure that Pacific cod are not overharvested. This final rule requires 
the Regional Administrator of NMFS, Alaska Region, to annually 
establish an incidental catch allowance for Pacific cod taken in other 
directed hook-and-line and pot fisheries for groundfish. The incidental 
catch allowance will be deducted from the overall hook-and-line or pot 
gear allocation of the Pacific cod TAC before that allocation is 
divided among the different hook-and-line and pot gear user groups.
     The incidental catch of Pacific cod occurs in non-groundfish 
fisheries such

[[Page 51555]]

as the hook-and-line gear fishery for Pacific halibut or the crab pot 
gear fisheries. Sufficient data currently are not collected from these 
fisheries that would allow NMFS to extrapolate useful estimates of 
incidental catch for purposes of specifying the annual ICA and 
deducting these amounts from the Pacific cod TAC allocated to vessels 
using hook-and-line or pot gear as directed fishing allowances. The 
total IAC amount of Pacific cod in the crab and Pacific halibut 
fisheries likely exceeds several thousand mt based on (1) anecdotal 
information on the amount of incidentally caught Pacific cod used as 
bait in the crab fisheries, (2) the fact that the Pacific halibut 
fishery during summer months typically occurs in relatively shallow 
water where Pacific cod are prevalent, and (3) assumptions on amount of 
gear deployed and incidental catch rates. In the absence of the 
quantitative data needed to estimate incidental Pacific cod harvests in 
the halibut and crab fisheries, NMFS intends to estimate the ICA only 
on the basis of incidental catch estimated for the non-Pacific cod 
hook-and-line or pot gear groundfish fisheries.
     NMFS recognizes the potential biological significance of not 
accounting for all incidental catch of Pacific cod in non-trawl 
fisheries and intends to explore with the State of Alaska and the 
International Pacific Halibut Commission options to collect better 
information on incidental catch rates of non-target species in the crab 
and Pacific halibut fisheries. NMFS further anticipates that improved 
estimates of incidental catch amounts in these fisheries will be 
available to the Council when it reassesses BSAI Pacific cod allocation 
issues prior to the expiration date of Amendment 64. Until then, NMFS 
stock assessment scientists believe that, while the amounts of Pacific 
cod taken in the crab and Pacific halibut fisheries could exceed 
several thousand mt, this level of mortality does not pose significant 
concerns for overfishing or sustainable resource management of the 
Pacific cod resource given the conservative management of this species 
under the FMP. NMFS firmly believes that steps must be taken to collect 
the data necessary to obtain better estimates of overall mortality of 
Pacific cod in the non-groundfish fisheries.
     Subsequent to the Council's October 1999 adoption of Amendment 64, 
several owners of catcher/processor vessels using pot gear to 
participate in a directed fishery for Pacific cod petitioned the 
Council to initiate a separate FMP amendment that would authorize 
separate Pacific cod directed fishing allowances for catcher/processor 
vessels using pot gear and catcher vessels using pot gear. This 
petition was based on the assumptions that increased fishing effort for 
Pacific cod with pot gear is due primarily to catcher vessels using pot 
gear and that the historical harvest share of cod by catcher/processor 
vessels using pot gear is threatened. In response to these concerns, 
the Council requested staff to develop a separate FMP amendment that 
would authorize a further allocation of Pacific cod between these two 
sectors. If adopted by the Council in the future, the proposed 
amendment and a proposed rule to implement it would be published in the 
Federal Register for public review and comment.

Revision of 2000 Harvest Specifications for Pacific Cod

     In December 1999, the Council recommended seasonal allowances for 
the 51 percent of the Pacific cod TAC allocated to the hook-and-line or 
pot gear fisheries. The seasonal allowances are authorized under Sec.  
679.20(a)(7)(iv) and are based on the criteria set forth at Sec.  
679.20(a)(7)(iv)(B). The final 2000 harvest specifications for BSAI 
groundfish were approved by NMFS and published in the Federal Register 
on February 18, 2000 (65 FR 8282).
    By this action NMFS also revises the final 2000 harvest 
specifications in concert with the hook-and-line and pot gear 
allocations in the amendment. The final 2000 harvest specifications set 
the hook-and-line or pot gear allocation of the 2000 Pacific cod TAC at 
91,048 mt. An incidental catch allowance of 500 mt, derived from 
estimates of incidental catch of Pacific cod in other groundfish 
fisheries from 1996-1999, will be deducted from the hook-and-line or 
pot gear allocation of the Pacific cod TAC before the allocation is 
apportioned to the separate gear sectors.
    As noted in the preamble to the proposed rule (65 FR 34133, May 26, 
2000), a mid-year implementation of Amendment 64 requires that any 
overage of a sector's annual allocation of Pacific cod be deducted 
proportionately from the other sectors' allocations remaining for the 
year. The directed fishery for Pacific cod by vessels using pot or 
hook-and-line gear was closed on March 10, 2000, when harvest amounts 
reached the first seasonal allowance of Pacific cod specified for these 
vessels. At that time, the pot-gear fishery had harvested 20.4 percent 
of the annual fixed gear directed fishing allowance. This amount 
represents 111 percent of the 2000 allocation for pot gear vessels 
(regardless of LOA) authorized by Amendment 64. Also, the hook-and-line 
catcher vessel fleet had harvested 0.35 percent of the directed fishing 
allowance for the fixed gear fleet, or 116 percent of the 2000 
allocation for all hook-and-line catcher vessels (regardless of LOA) 
authorized under Amendment 64. Because these allocations have been 
exceeded, this action also closes the hook-and-line catcher vessel and 
pot gear sectors to further directed fishing for Pacific cod in the 
BSAI in 2000.
     The Council intends that harvests by fixed gear sector vessels 
under 60 ft LOA only accrue against the allocation to fixed gear 
vessels under 60 ft LOA after the pot or longline catcher vessels 
harvested their 18.3 percent and 0.3 percent allocations, respectively. 
This set aside allocation provides that the smaller vessels will have 
Pacific cod available for harvest even after the larger vessels in 
their sector have taken their allocation. The hook-and-line catcher/
processor and small vessel sectors' allocations are adjusted downward 
to account for the overharvests by pot gear and hook-and-line catcher 
vessels. Table 1 lists the revisions to the final 2000 allocations and 
seasonal apportionments of the Pacific cod TAC.
    Consistent with Sec.  679.20(a)(7)(iv)(C), any portion of the first 
seasonal allowance of the catcher/processor hook-and-line gear 
allocation that is not harvested by the end of the first season will 
become available on September 1, the beginning of the third season. No 
seasonal apportionment of the amounts of Pacific cod allocated to 
catcher vessels or to vessels using pot gear is specified for 2000.

[[Page 51556]]



                Table 1.--YEAR 2000 GEAR SHARES AND SEASONAL APPORTIONMENTS OF THE BSAI PACIFIC COD HOOK-AND-LINE AND POT GEAR ALLOCATION
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                                                                           Harvest (mt)                              Seasonal apportionment\2\
                Gear Sector                    Percent      Share (mt)      as of 7/13/   Adjusted Share -----------------------------------------------
                                                                               2000           (mt)\1\                  Date                 Amount (mt)
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Hook-and-Line Catcher-Processors                      80          72,438          40,433          70,558   Jan 1-Apr 30.................          50,237
                                                                                                          May 1-Aug 31..................             ---
                                                                                                          Sept 1-Dec 31.................          20,321
Hook-and-Line Catcher-Vessels                        0.3             272             318              --  Jan 1-Dec 31..................             272
Pot Gear Vessels                                    18.3          16,570          18,442              --  Jan 1-Dec 31..................          16,570
Catcher Vessels under 60 feet LOA using              1.4           1,268  ..............           1,230  Jan 1-Dec 31..................           1,230
 Hook-and-line or Pot Gear
ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½
 
Total hook-and-line and pot gear allocation  ...........          91,048  ..............  ..............  ..............................          91,048
 of Pacific cod TAC
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\1\ Shares are adjusted proportionately to account for overages by the hook-and-line catcher vessel and pot gear sectors.
\2\ Any unused portion of the first seasonal Pacific cod allowance specified for catcher/processors using hook-and-line fishery will be reapportioned to
  the third seasonal allowance.

Response to Comments

    NMFS received a total of 14 letters of comment, all of which are 
summarized and responded to in this section. Of the total, the 11 
letters that support the amendment and make essentially the same 
comment are summarized under comment 1. Of the three letters opposing 
the amendment, the two signed by a single author, make the same 
objections to the amendment and are summarized under comment 2; the 
third letter is summarized under comment 3.
    Comment 1. Amendment 64 is necessary to the stability and overall 
rationalization of the fixed gear Pacific cod fishery in the BSAI, 
especially with the likely increase of fishing effort by vessels 
formerly targeting crab. All comment writers encourage prompt 
implementation of the amendment, and six letters explicitly entreat 
NMFS to implement the amendment by September 1.
    Response. NMFS agrees and is expediting implementation of the 
amendment.
    Comment 2. Amendment 64 and its implementing rule are opposed for 
the following four reasons: (1) The Initial Regulatory Flexibility 
Analysis (IRFA) for Amendment 64 does not satisfy the requirements of 
the Regulatory Flexibility Act (RFA) because the IRFA estimates the 
number of small entities impacted by this action, rather than 
specifying their exact number. (2) Because the exact number of affected 
small entities is unknown, NMFS could not adequately consider measures 
that would minimize any impacts on small entities. (3) For purposes of 
the RFA, pot vessels constitute the ``universe of small entities'' 
potentially impacted by this action and should, therefore, be the sole 
focus of any measures to mitigate this action's impact on small 
entities. (4) Amendment 64 does not adhere to the conservation and 
community goals of the Magnson-Stevens Act, as required by national 
standard 4 (allocations shall be fair and equitable), national standard 
5 (conservation and management measures shall consider efficiency, but 
not have economic allocation as their sole purpose), and national 
standard 8 (conservation and management measures shall provide for the 
sustained participation of fishing communities and minimize adverse 
impacts on such communities).
    Response. Section 603(b)(3) of the RFA requires that an IRFA 
contain ``a description of and, where feasible, an estimate of the 
number of small entities'' to which an action will apply. The IRFA and 
supplemental IRFA for Amendment 64 contain such a description and a 
reasonable estimate of the number of affected small entities, as 
defined by the RFA (see Classification for a summary of the IRFA and 
the estimated numbers of affected small entities).
     For purposes of the RFA, a small entity is defined as a business 
that is independently owned and operated, is not dominant in its field 
of operation, and has combined annual receipts not in excess of $3 
million. The IRFA identifies such entities in the BSAI fixed gear 
Pacific cod fishery, many of which are not pot vessels. Construing pot 
vessels alone as the entire ``universe'' of affected small entities 
would fail to satisfy the agency's requirements under the RFA. Those 
requirements are met by considering all small entities as the 
``universe of small entities'' potentially impacted by the action.
    The EA/RIR/IRFA for Amendment 64 presented alternatives with 
different percentage allocations, each of which represented tradeoffs 
in terms of impacts. Some small entities may be negatively impacted, 
and others positively impacted. Amendment 64, the Council's preferred 
alternative, represents the Council's deliberate intent to minimize 
impacts on small entities by allocating more cod to catcher vessels 
delivering to shore-based processors than they have historically 
harvested. That allocation will tend to benefit small entities. 
Conversely, the freezer longline fleet, with the highest percentage of 
large entities, will receive a smaller allocation to balance the 
increase given to small entities.
     Amendment 64 is consistent with all the national standards, 
including 4, 5, and 8 under the Magnson-Stevens Act. National standard 
4 requires that conservation and management measures not discriminate 
between residents of different states and that allocations be fair and 
equitable, be reasonably calculated to promote conservation, and 
implemented in such a manner that no entity receive an excessive share 
of fishing privileges. The allocations in Amendment 64 are made based 
on gear sectors and do not result in the acquisition of any particular 
share of the privilege by any individual entity.
    These allocations reflect historical gear shares of the Pacific cod 
annually harvested by vessels using hook-and-line or pot gear. As such, 
NMFS believes that these allocations reflect historical participation 
in the fishery, promote stability within the Pacific cod fishery,

[[Page 51557]]

and are fair, equitable, and calculated to promote conservation.
    While considering economic efficiency in the utilization of fishery 
resources, national standard 5 requires that management measures not 
have economic allocation as their sole purpose. The goal of Amendment 
64 is to stabilize the Pacific cod fixed-gear fishery in a way that 
preserves the historical character of the fishery. Hence, its purpose 
extends beyond economics to prevent the negative social impacts caused 
by over-utilization by fishing communities historically dependent on 
the resource, and ensuing impacts on the resource.
     National standard 8 requires that management measures recognize 
the importance of fishery resources to fishing communities and provide 
for the sustained participation of such communities and to the extent 
practicable, minimize adverse economic impacts on such communities. By 
basing the allocations on historical harvests by the respective gear 
sectors, the Council intends the amendment to stabilize the historical 
character of the fishery and its dependent communities.
     Comment 3.  Amendment 64 defies the conservation and community 
goals of the Magnson-Stevens Act by prioritizing gear sectors that have 
higher bycatch rates and by laying the groundwork for a subsequent FMP 
amendment (the Council's proposed Amendment 67) to reduce the number of 
vessels eligible to fish for Pacific cod. These actions will 
disenfranchise smaller size vessels. By creating a limited allocation 
for pot vessels, Amendment 64 will increase effort in the Gulf of 
Alaska and in Alaska state waters by vessels displaced from the crab 
fishery by decreasing crab stocks. This will increase the potential for 
localized depletion inside the 3-mile limit and has already forced the 
Alaska State Board of Fisheries to establish a separate allocation and 
management plan for Pacific cod in State waters.
    Response.  NMFS disagrees. Amendment 64 neither prioritizes nor 
disenfranchises any gear sector. Rather, it establishes allocations 
based on historical shares of the Pacific cod harvest by the respective 
gear sectors. The intent of the amendment is to stabilize the fishery 
against increasing competition until such time as comprehensive 
rationalization is completed. As the authors of the comment 
acknowledge, their comment is directed more properly at the Council's 
upcoming Amendment 67, which would require area and gear endorsements 
for the fixed gear Pacific cod fishery as part of the License 
Limitation Program. Amendment 67 has not yet been submitted to NMFS for 
review. When it is submitted and NMFS determines it to be adequate for 
public review and comment, NMFS will initiate the public process that 
would more appropriately focus on the issue raised in comment 3.
     The final rule makes no changes in the regulations as published in 
the proposed rule.

Closure

     Hook-and-line catcher vessels and pot gear vessels over 60 feet 
LOA have already exceeded the allocations of the fixed gear Pacific cod 
TAC that this action establishes as directed fishing allowances for 
those gear sectors: 272 mt and 16,570 mt, respectively.
     In accordance with Sec.  679.20(a)(7)(i)(C) and (D), the 
Administrator, Alaska Region, NMFS (Regional Administrator), has 
determined that the hook-and-line catcher vessel and pot gear vessel 
directed fishing allowances for Pacific cod in the BSAI have been 
exceeded. Therefore, the Regional Administrator is prohibiting directed 
fishing for Pacific cod by hook-and-line catcher vessels and pot gear 
vessels over 60 ft LOA in the BSAI.

Classification

     This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Council prepared an EA for this FMP amendment that discusses 
the impact on the environment as a result of this rule. A copy of this 
EA is available from the Council (see ADDRESSES).
    In compliance with the RFA, NMFS prepared a supplementary FRFA 
consisting of the IRFA, the FRFA, and the preamble to this final rule. 
A summary of the issues addressed by the supplementary FRFA follows.
     For purposes of the RFA, all catcher vessels fishing for Pacific 
cod using hook-and-line or pot gear are considered small businesses, 
with annual receipts of less than $3 million. Under upcoming Amendment 
60 to the BSAI Groundfish FMP, approximately 330 catcher vessels would 
be authorized under the license limitation program (LLP) to participate 
in the Bering Sea Pacific cod hook-and-line or pot gear fishery. Of the 
98 catcher-processor vessels potentially authorized under the LLP to 
fish for Pacific cod, approximately one-third could be considered small 
entities. Five of the ten shore-based plants and floating processors 
operating within Alaskan state waters and processing most of the 
Pacific cod harvested by hook-and-line or pot gear catcher vessels 
could be considered small businesses under RFA, processing less than 2 
percent of the total shoreside landings of Pacific cod by catcher 
vessels in 1998. Other small entities impacted by Amendment 64 are the 
three Alaskan communities that are home to processing plants that 
process limited amounts of BSAI Pacific cod: King Cove, Egegik, and 
Kenai.
     Amendment 64 allocates more Pacific cod to catcher vessels 
delivering to shore-based processors than such vessels have 
historically harvested, which will tend to benefit small entities. 
Conversely, the freezer longline fleet, with the highest proportion of 
large entities, will receive a smaller allocation to balance the 
increase given to catcher vessels.
     Amendment 64 allocates a portion of the Pacific cod resource away 
from the longline catcher-processor fleet and moves it to the catcher 
vessels delivering to shore-based processors or motherships. Because 
the longline catcher-processor fleet comprises the highest number of 
large entities of any sector fishing off Alaska, this allocation tends 
to favor small entities. By implementing the allocations by gear sector 
without limiting the number of vessels in any gear sector that may 
enter the fishery, this action may have the effect of increasing 
competition among users. However, the Council at its April 2000 meeting 
took final action to mitigate the effect of this action on competition 
within gear sectors by recommending for approval by NMFS a proposed 
amendment to require gear and species endorsements on licenses of those 
who wish to participate in the fixed gear BSAI Pacific cod fishery.
    The magnitude of the Amendment 64's impact cannot be conclusively 
determined with the data currently available. Most persons operating in 
the fishery impacted by the action are small entities given their 
expected annual gross revenues of less than $3 million, and revenues 
could potentially be decreased by more than 5 percent, but that depends 
on the level of catch that might be achieved in the absence of an 
allocation. Also, impacts of this action on potential revenues cannot 
be isolated from other factors, including price fluctuation, amount of 
effort exerted by latent permits, and such stock fluctuation as crab of 
alternative fisheries.
     As with many allocation-based management measures, this action 
involves a percentage allocation of the TAC among competing groups of 
vessels. Under the final rule, vessels in each group primarily are 
small entities representing a tradeoff in terms of

[[Page 51558]]

impacts (i.e., some small entities could be negatively impacted and 
other positively impacted). The Council's preferred alternative will 
allocate more cod to catcher vessels delivering to shore based 
processors and motherships than they have historically harvested. That 
allocation will tend to benefit small entities. The freezer longline 
fleet, with the highest proportion of large entities, will receive a 
smaller allocation to balance the increase given to small catcher 
vessels.
    A future action being considered by the Council may have mitigating 
effects to some degree. One of the points raised in opposition to the 
final rule is that considerable latent capacity exists in the pot fleet 
(many pot vessels are qualified under the LLP but to date have not 
participated to a great degree in the cod fisheries), and freezing that 
sectors' share of the cod quota will disadvantage those pot vessels 
that do participate significantly in the cod fishery. They will have 
potential competition for a relatively small quota from a relatively 
large number of qualified vessels. There are also longline vessels that 
represent potential latent capacity and could impact that sector in the 
same way, though the degree of that potential is relatively less for 
that sector. In any case, the Council has adopted a follow-up amendment 
that would create species and gear LLP endorsements for the cod 
fisheries, based on a minimum level of landings and years of 
participation. The intent of this amendment is to eliminate the latent 
capacity described above, and create a more stable operating 
environment for the remaining vessels in each of the fixed gear 
sectors.
     September 1, 2000, is the scheduled opening date of the third 
season of the 2000 fixed-gear fishery for Pacific cod. If this rule 
implementing Amendment 64's allocations is not effective by that date, 
vessels using pot gear could continue to fish for Pacific cod and 
further erode traditional hook-and-line shares. A delay in the 
effectiveness of this rule beyond September 1, 2000, would 
unnecessarily jeopardize the stability of the fishery. It would be 
contrary to the public interest not to make both the allocations in 
this rule, and the revised specifications implementing those 
allocations, effective by September 1, 2000. Therefore, pursuant to 
authority at 5 U.S.C. 553(d)(3), the Assistant Administrator for 
Fisheries, NOAA (AA) finds good cause not to delay for 30 days the 
effective date of this action and makes this rule effective on 
September 1, 2000.
     To date, in 2000, the pot gear fleet has harvested 20 percent of 
the directed fishing allowance for the fixed gear fleet, or 111 percent 
of the 2000 allocation that is authorized under Amendment 64. This 
action closes to further fishing in 2000 that sector of the pot gear 
fishery engaged in directed fishing for Pacific cod, with the exception 
of pot gear vessels under 60 ft LOA, which will be able to fish under 
the allocation set aside for hook-and-line catcher vessels and pot gear 
vessels under 60 ft LOA. This closure must be effective by the start of 
the third Pacific cod season on September 1, 2000, in order to prevent 
the further exceeding of Amendment 64's allocations. Providing prior 
notice and an opportunity for public comment on this closure is 
impracticable and contrary to the public interest, as further delay 
would result in further overharvest. Accordingly, the AA finds that 
there is good cause not to provide prior notice and an opportunity for 
public comment pursuant to authority set forth at 5 U.S.C. 553(b)(B). 
Likewise, delaying the effectiveness of this closure beyond September 
1, 2000, would allow vessels using pot gear to continue to fish for 
Pacific cod, further eroding traditional hook-and-line shares, and 
further exceeding the allocations in Amendment 64. Therefor, pursuant 
to authority at 5 U.S.C. 553(d)(3), the AA finds good cause not to 
delay for 30 days the effective date of this action and makes this 
closure effective on September 1, 2000. This action is required by 
Sec.  679.20 and is exempt from review under E.O. 12866.
     The President has directed Federal agencies to use plain language 
in their communication with the public, including regulations. To 
comply with this directive, we seek public comment on any ambiguity or 
unnecessary complexity arising from the language used in this final 
rule. Such comments should be sent to the Alaska Regional Administrator 
(see ADDRESSES).

List of Subjects in 50 CFR Part 679

     Alaska, Fisheries, Recordkeeping and reporting requirements.

    Dated: August 17, 2000.
Penelope D. Dalton,
 Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

     For the reasons set out in the preamble, 50 CFR part 679 is 
amended as follows:

PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

    1. The authority citation for 50 CFR part 679 continues to read as 
follows:

    Authority:  16 U.S.C. 773 et seq, 1801 et seq., and 3631 et seq.

     2. In Sec. 679.20, paragraph (a)(7)(i)(C) is redesignated as 
paragraph (a)(7)(i)(D), paragraph (a)(7)(ii)(B) is redesignated as 
paragraph (a)(7)(ii)(C), paragraph (a)(7)(iii) is removed, paragraph 
(a)(7)(iv) is redesignated as paragraph (a)(7)(iii), redesignated 
paragraphs (a)(7)(i)(D), (a)(7)(ii)(C), (a)(7)(iii)(A), and 
(a)(7)(iii)(C) and paragraph (b)(1)(v) are revised, and new paragraphs 
(a)(7)(i)(C) and (a)(7)(ii)(B) are added to read as follows:


Sec. 679.20  General limitations.

* * * * *
    (a) * * *
    (7) * * *
    (i) * * *
    (C) Allocations among vessels using hook-and-line or pot gear 
(Applicable through December 31, 2003).(1) The Regional Administrator 
annually will estimate the amount of Pacific cod taken as incidental 
catch in directed fisheries for groundfish other than Pacific cod by 
vessels using hook-and-line or pot gear and deduct that amount from the 
portion of Pacific cod TAC annually allocated to hook-and-line or pot 
gear under paragraph (a)(7)(i)(A) of this section. The remainder will 
be further allocated as directed fishing allowances as follows:
    (i) 80 percent to catcher/processor vessels using hook-and-line 
gear;
    (ii) 0.3 percent to catcher vessels using hook-and-line gear;
    (iii) 18.3 percent to vessels using pot gear; and
    (iv) 1.4 percent to catcher vessels less than 60 ft LOA that use 
either hook-and-line or pot gear.
    (2) Harvests of Pacific cod made by catcher vessels less than 60 ft 
LOA using pot gear will not accrue to the 1.4 percent allocation under 
paragraph (a)(7)(i)(C)(1)(iv) of this section until vessels using pot 
gear have harvested the 18.3 percent allocated to all vessels using pot 
gear under paragraph (a)(7)(i)(C)(1)(iii) of this section.
    (3) Harvests of Pacific cod made by catcher vessels less than 60 ft 
LOA using hook-and-line gear will not accrue to the 1.4 percent 
allocation under paragraph (a)(7)(i)(C)(1)(iv) of this section until 
catcher vessels using hook-and-line gear have harvested the 0.3 percent 
allocated to all catcher vessels using hook-and-line gear under

[[Page 51559]]

paragraph (a)(7)(i)(C)(1)(ii) of this section.
    (D) The Regional Administrator may establish separate directed 
fishing allowances and prohibitions authorized under paragraph (d) of 
this section for vessels harvesting Pacific cod using trawl gear, jig 
gear, hook-and-line gear, or pot gear.
    (ii) * * *
    (B) Reallocation among vessels using hook-and-line or pot gear.  
If, during a fishing year, the Regional Administrator determines that 
catcher vessels using hook-and-line gear or vessels less than 60 ft LOA 
using hook-and-line or pot gear will not be able to harvest the 
directed fishing allowance of Pacific cod allocated to those vessels 
under paragraphs (a)(7)(i)(C)(1)(ii) or (a)(7)(i)(C)(1)(iv) of this 
section, NMFS may reallocate the projected unused amount of Pacific cod 
as a directed fishing allowance to catcher/processor vessels using 
hook-and-line gear through notification in the Federal Register.
    (C) Reallocation between vessels using trawl or non-trawl gear. If, 
during a fishing year, the Regional Administrator determines that 
vessels using trawl gear, hook-and-line gear, pot gear or jig gear will 
not be able to harvest the entire amount of Pacific cod in the BSAI 
allocated to those vessels under paragraphs (a)(7)(i)(A), (a)(7)(i)(B) 
or (a)(7)(i)(C) of this section, NMFS may reallocate the projected 
unused amount of Pacific cod to vessels harvesting Pacific cod using 
the other gear type(s) through notification in the Federal Register, 
except as provided below:
    (1) Reallocation of TAC specified for jig gear. On September 15 of 
each year, the Regional Administrator will reallocate any projected 
unused amount of Pacific cod in the BSAI allocated to vessels using jig 
gear only to vessels using hook-and-line or pot gear through 
notification in the Federal Register.
    (2) Reallocation of TAC to catcher/processor vessels using hook-
and-line gear or vessels using pot gear. Any unharvested amounts of 
Pacific cod TAC that are reallocated from vessels using trawl or jig 
gear to catcher/processor vessels using hook-and-line gear or vessels 
using pot gear to increase directed allowances established under 
paragraphs (a)(7)(i)(C)(1)(i) or (a)(7)(i)(C)(1)(iii) of this section, 
will be apportioned so that catcher/processor vessels using hook-and-
line gear will receive 95 percent and vessels using pot gear will 
receive 5 percent of any such reallocation.
    (iii) * * *
    (A) Time periods. NMFS, after consultation with the Council, may 
divide the directed fishing allowances allocated to vessels using hook-
and-line or pot gear under paragraph (a)(7)(i)(C) of this section among 
the following three periods: January 1 through April 30, May 1 through 
August 31, and September 1 through December 31.
* * * * *
    (C) Unused seasonal allowances. Any unused portion of a seasonal 
allowance of Pacific cod allocated to vessels using hook-and-line or 
pot gear under paragraph (a)(7)(i)(C) will be reallocated to the 
remaining seasons during the current fishing year in a manner 
determined by NMFS, after consultation with the Council.
* * * * *
    (b) * * *
    (1) * * *
    (v) Pacific cod. Any amounts of the BSAI nonspecific reserve that 
are apportioned to Pacific cod as provided by paragraph (b)(1)(ii) of 
this section must be apportioned among vessels using jig, hook-and-line 
or pot, and trawl gear in the same proportion specified in paragraph 
(a)(7)(i) of this section, unless the Regional Administrator determines 
under paragraph (a)(7)(ii) of this section that vessels using a certain 
gear type will not be able to harvest the additional amount of Pacific 
cod. In this case, the nonspecific reserve will be apportioned to 
vessels using the other gear type(s).
* * * * *
[FR Doc. 00-21681 Filed 8-23-00; 8:45 am]
Billing Code: 3510-22-S