[Federal Register Volume 66, Number 45 (Wednesday, March 7, 2001)]
[Rules and Regulations]
[Pages 13672-13678]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-5558]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

 50 CFR Part 679

[Docket No. 000629198-1038-02; I.D. 051500D]
RIN 0648-AM72


Fisheries of the Exclusive Economic Zone Off Alaska; Western 
Alaska Community Development Quota Program

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

ACTION: Final rule.

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SUMMARY: NMFS issues a final rule implementing Amendment 66 to the 
Fishery Management Plan for the Groundfish Fishery of the Bering Sea 
and Aleutian Islands Area (FMP) and defining directed fishing for 
pollock CDQ. Amendment 66 removes the allocation of squid to the 
Western Alaska Community Development Quota (CDQ) Program to prevent the 
catch of squid from limiting the catch of pollock CDQ. The regulatory 
amendment defining directed fishing for pollock CDQ implements the 
intent of the American Fisheries Act (AFA) that only pollock caught 
while directed fishing for pollock CDQ accrue against the pollock CDQ 
allocation. Pollock caught incidentally in other groundfish CDQ 
fisheries will accrue against the pollock incidental catch allowance 
(ICA) established under the AFA. In addition, this definition allows 
NMFS to enforce closures to directed fishing for pollock CDQ in areas 
such as Steller Sea Lion conservation area or the Chinook Salmon 
Savings Area. This action is necessary to implement Amendment 66 and 
the CDQ Program-related provisions of the AFA. NMFS expects it to 
further the goals and objectives of the FMP.

DATES: Effective April 6, 2001.

ADDRESSES: Copies of Amendment 66 to the FMP, the two Environmental 
Assessment/Regulatory Impact Review/Initial Regulatory Flexibility 
Analyses (EA/RIR/IRFA), or the single Final Regulatory Flexibility 
Analysis (FRFA) prepared for these actions are available

[[Page 13673]]

from NMFS, Sustainable Fisheries Division, Alaska Region, NMFS, P.O. 
Box 21668, Juneau, AK 99802, or by calling the Alaska Region, NMFS, at 
907-586-7228. Send comments on any ambiguity or unnecessary complexity 
arising from the language used in this final rule to the Administrator, 
Alaska Region, P.O. Box 21668, Juneau, AK 99802-1668.

FOR FURTHER INFORMATION CONTACT: Sally Bibb, 907-586-7389, 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    NMFS manages fishing for groundfish by U.S. vessels in the 
exclusive economic zone of the Bering Sea and Aleutian Islands 
management area (BSAI) according to the FMP. The North Pacific Fishery 
Management Council (Council) prepared the FMP under authority of the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act). Regulations governing fishing by U.S. vessels appear at 
50 CFR parts 600 and 679.
    Amendment 66 was approved by NMFS on August 30, 2000. This 
amendment removes the allocation of 7.5 percent of the BSAI squid total 
allowable catch (TAC) to the CDQ Program to prevent the catch of squid 
CDQ from limiting the catch of pollock CDQ. Amendment 66 was adopted by 
the Council at its June 1999 meeting without objection. NMFS published 
a notice of availability of the FMP amendment at 65 FR 34434, May 30, 
2000, and invited comments on the FMP amendment through July 31, 2000. 
One letter of comment was received on the FMP amendment. The comments 
from this letter are summarized below in ``Response to Comments.'' NMFS 
published a proposed rule to implement Amendment 66 and to define 
``directed fishing for pollock CDQ'' on July 17, 2000 (65 FR 44018). 
Public comments were requested through August 31, 2000. No comments 
were received on the proposed rule.
    NMFS proposed a method for determining whether a vessel operator 
was directed fishing for pollock CDQ to implement the intent of the AFA 
with respect to pollock CDQ accounting. The AFA establishes the pollock 
CDQ allocation as a ``directed fishing allowance,'' which means that 
only pollock caught while directed fishing for pollock CDQ accrue 
against the pollock CDQ allocation. Pollock caught by vessels CDQ 
fishing, but not directed fishing for pollock CDQ, accrue against the 
pollock ICA. Based on the recommendation of the Council, NMFS proposed 
that the determination of whether a vessel operator was directed 
fishing for pollock CDQ would be based on the percent of pollock in 
each haul by a catcher/processor and each delivery by a catcher vessel. 
Hauls and deliveries in which pollock represented 60 percent or more of 
the total weight of groundfish would be considered directed fishing for 
pollock CDQ. In this final rule, NMFS revises the basis of determining 
directed fishing for pollock CDQ by catcher vessels from the definition 
that was included in the proposed rule. The revision is explained below 
in the section titled ``Changes from the Proposed Rule.''
    Additional information about the objective of, and the impacts of 
Amendment 66 and the specific method for determining whether a vessel 
operator is directed fishing for pollock CDQ are described in the 
Classification section of this final rule and in the proposed rule (65 
FR 44018, July 17, 2000).

Pollock Catch in the 2000 CDQ Fisheries

    In 2000, 113,900 mt of pollock and 148 mt of squid were allocated 
to the CDQ Program. Through December 18, 2000, approximately 113,554 mt 
of pollock accrued against the pollock CDQ allocation because they were 
caught in hauls or deliveries in which pollock represented 60 percent 
or more of the catch. Approximately 469 mt of pollock accrued against 
the pollock ICA because they were caught in hauls or deliveries in 
which pollock represented less than 60 percent of the total catch. NMFS 
allocated approximately 51,255 mt of pollock to the 2000 pollock ICA 
for pollock caught incidentally in the CDQ and non-CDQ groundfish 
fisheries. Therefore, the incidental catch of pollock in the CDQ 
fisheries has, thus far in 2000, represented less than 1 percent of the 
amount of pollock available in the ICA.
    Approximately 51 mt of squid have been caught in the CDQ fisheries 
through December 18, 2000. This amount represents about 34 percent of 
the 2000 squid CDQ allocation of 148 mt.

Response to Comments

    NMFS received one letter of comment on Amendment 66 from the Center 
for Marine Conservation (CMC). Although the CMC does not specifically 
recommend that NMFS disapprove Amendment 66, it raises several concerns 
about the rationale for Amendment 66 and the management of squid in 
general.
    Comment 1: The CMC questions NMFS' apparent interpretation that 
section 206(a) of the AFA requires NMFS to ensure that the CDQ groups 
harvest their 10 percent allocation of the pollock TAC. The CMC 
believes that NMFS is inappropriately prioritizing full harvest of the 
pollock CDQ allocations over the Magnuson-Stevens Act requirements to 
minimize bycatch. Furthermore, the CMC asserts that Amendment 66 sets a 
bad precedent by removing an allocation of a species from the CDQ 
Program to prevent the bycatch of that species from limiting the CDQ 
groups' harvest of a target species.
    Response: The CMC correctly states that NMFS and the Council have 
interpreted that when Congress increased the allocation of pollock to 
the CDQ Program under the AFA, it intended that the CDQ groups harvest 
this increased allocation. In light of the increased allocation of 
pollock CDQ under the AFA, the Council re-evaluated the impact of the 
strict quota accountability requirements of the CDQ Program increasing 
the pollock CDQ allocation, which increased the chance that the 7.5 
percent squid CDQ allocation would be reached before the pollock CDQ 
allocation was caught. In doing so, the Council and NMFS considered the 
trade-offs between the amount of squid bycatch in the CDQ fisheries and 
the importance of the pollock CDQ allocation in achieving the goals of 
the CDQ Program.
    Section 301 of the Magnuson-Stevens Act requires that fishery 
management plans and their amendments be consistent with the national 
standards. As the CMC stated, national standard 9 requires that 
conservation and management measures shall, to the extent practicable, 
minimize bycatch and the mortality of such bycatch. Squid is a bycatch 
species in the BSAI groundfish fisheries and is caught primarily in the 
pollock fisheries. Removing squid as a CDQ species could, under some 
circumstances, result in a higher total catch of squid in the CDQ 
fisheries than would have occurred under the status quo. However, under 
both Amendment 66 and the status quo, the total catch of squid in the 
CDQ and non-CDQ fisheries combined is limited by the squid TAC, 
acceptable biological catch (ABC), and overfishing level (OFL). The 
total catch of squid in the CDQ and non-CDQ fisheries has been below 
the squid TAC since 1997, when new OFL definitions were implemented.
    NMFS believes that Amendment 66 is consistent with the Magnuson-
Stevens Act section 301 requirement that fishery management plans be 
consistent with all national standards, including

[[Page 13674]]

national standard 9. The stipulation ``to the extent practicable'' in 
national standard 9 requires the Council to consider minimizing bycatch 
together with other objectives. In recommending approval of Amendment 
66, the Council and NMFS also considered consistency with all of the 
national standards. Specifically, national standard 1 requires that we 
prevent overfishing while achieving optimum yield and national standard 
8 requires that management measures take into account the importance of 
fishery resources to fishing communities. Amendment 66 will increase 
the ability of the CDQ groups to fully harvest their pollock CDQ 
allocation, which is consistent with the objective of achieving optimum 
yield of the pollock TAC and the allocations provided under the AFA. 
With respect to national standard 8, the primary purpose of the CDQ 
allocations is to assist residents of 65 fishing communities in western 
Alaska to develop fisheries-based economies. Royalties received by the 
CDQ groups from their pollock CDQ allocation represented approximately 
80 percent of the $25 million in royalties from the groundfish and crab 
CDQ allocations in 1999. Therefore, a management measure that increases 
the ability of the CDQ groups to fully harvest their pollock 
allocations is consistent with the objectives of national standard 8.
    Comment 2: The CMC states that the EA does not adequately address 
Endangered Species Act and Marine Mammal Protection Act considerations 
with respect to Steller sea lions and the impact of squid harvests on 
the ecosystem. In addition, the CMC believes that NMFS should use more 
precaution in the procedure for setting OFL, ABC, and TAC for squid.
    Response: The CMC's comments on the adequacy of the EA appear to be 
directed more toward the impact of the catch of the squid TAC in 
general than on Amendment 66. Amendment 66 addresses only the amount of 
squid that may be caught in the CDQ fisheries and the process used to 
account for squid catch in the CDQ and non-CDQ fisheries. Therefore, 
the CMC's concerns about the need for more information about squid, the 
process used to establish the squid TAC and OFL, the impact of squid 
harvests on Steller sea lions, or the impact on the ecosystem probably 
would not be alleviated by disapproval of Amendment 66. These concerns 
are more appropriately addressed in the annual specifications process 
through analysis documents required under the National Environmental 
Policy Act and the Endangered Species Act.
    NMFS recognizes that the comments about the inadequacy of the EA 
for Amendment 66 are related to the U.S. District Court's July 13, 
1999, remand order for the 1998 Final Supplemental Environmental Impact 
Statement (SEIS) NMFS prepared on setting TAC specifications and 
prohibited species catch limits. NMFS is preparing a programmatic SEIS 
for the GOA and BSAI groundfish fishery management plans in their 
entirety in accordance with the 1999 remand order. The EA prepared for 
Amendment 66 summarizes the biological and catch information for squid 
contained in the annual stock assessments documents and relies upon the 
information and conclusions of the 1998 SEIS for the groundfish 
fisheries off Alaska. The squid TAC, ABC, and OFL are determined 
annually through the groundfish specifications process. This process 
utilizes the best available scientific information on the status of the 
resource.
    The finding of no significant impact as a result of Amendment 66 is 
based on the determination that, although the catch of squid in the CDQ 
fisheries may increase in some years, the total catch of squid in the 
BSAI CDQ and non-CDQ groundfish fisheries combined will continue to be 
limited by the squid TAC, ABC, and OFL. In many years, Amendment 66 
will have no impact on the total catch of pollock or squid in the BSAI 
because the catch of squid in the CDQ fisheries will be less than 7.5 
percent of the squid TAC.
    On November 30, 2000, NMFS released a comprehensive biological 
opinion under the ESA (available from NMFS, see ADDRESSES). The 
biological opinion analyzed the impacts of the commercial groundfish 
fishery in the BSAI and GOA on Steller sea lions and other ESA listed 
species present in the area. In the biological opinion, NMFS determined 
that squid was an important component of the Steller sea lion diet. 
However, pollock, Pacific cod, and Atka mackerel were identified as the 
most important food sources. The fishery management measures 
recommended by NMFS to protect Steller sea lions focused on limiting 
the catch of pollock, Pacific cod, and Atka mackerel in critical 
habitat areas and during critical times of the year. Approximately 93 
percent of the 384 mt of squid caught in the Bering Sea and Aleutian 
Islands groundfish fisheries in 2000 were caught in directed fisheries 
for pollock. Therefore, any limitations imposed on the directed fishery 
for pollock to protect Steller sea lions will similarly affect the 
catch of squid in critical habitat areas or during critical times of 
the year.

Changes from the Proposed Rule

    In the final rule, NMFS is not implementing a stand-alone 
definition of directed fishing for pollock CDQ, as was proposed in the 
proposed rule. Rather, NMFS is adding a paragraph to the general 
definition of ``directed fishing'' in Sec.  679.2 to include a 
reference to the calculation of directed fishing for the CDQ fisheries 
under Sec.  679.20(f)(3). The specific method of calculating directed 
fishing for pollock CDQ using the 60 percent threshold is in this new 
paragraph Sec.  679.20(f)(3).
    This organization of the regulations is consistent with how 
directed fishing under the license limitation program and the American 
Fisheries Act fisheries is defined. NMFS expects to be required to 
define additional directed fisheries under the CDQ Program in future 
rulemakings. The organization established in this final rule provides a 
more logical regulatory base for adding new CDQ directed fishing 
calculations than having separate definitions in Sec.  679.2 for each 
CDQ directed fishery.
    The definition of directed fishing for pollock CDQ in the proposed 
rule was as follows:
    Directed fishing for pollock CDQ means, for purposes of 
determining whether pollock caught while CDQ fishing accrues against 
the pollock CDQ allocation or the pollock incidental catch 
allowance, a vessel operator using trawl gear is directed fishing 
for pollock CDQ if pollock represents 60 percent or more of the 
total catch of groundfish species by weight in a haul by a catcher/
processor or a delivery by a catcher vessel. The groundfish species 
used to calculate total catch includes all species categories 
defined in Table 1 of the annual BSAI specificatios.
    In the final rule, NMFS removes reference to ``for purposes of 
determining whether pollock caught while CDQ fishing accrues against 
the pollock CDQ allocation or the pollock incidental catch allowance.'' 
In addition, NMFS revises the wording of the calculation of directed 
fishing for pollock CDQ for catcher vessels. In the proposed rule, the 
calculation of directed fishing for pollock CDQ was based on the 
percent of pollock in the delivery by a catcher vessel. CDQ Program 
quota accounting for catcher vessels is done at the time of delivery. 
Therefore, the definition in the proposed rule accomplished the 
objective of the AFA to properly account for the catch of pollock 
against the pollock CDQ or the pollock ICA.
    In the time since the proposed rule was initiated, additional 
regulations have been implemented that require NMFS to be able to 
determine whether

[[Page 13675]]

 a vessel is directed fishing for pollock CDQ at any time during a 
fishing trip. This determination is necessary to enforce closures of 
areas to directed fishing for pollock CDQ. Two areas that currently can 
be closed to directed fishing for pollock CDQ are the Steller sea lion 
conservation area (65 FR 3892; January 25, 2000) and the Chinook Salmon 
Savings Area (65 FR 60587; October 12, 2000). The definition in the 
proposed rule would have allowed the determination of whether a catcher 
vessel operator was directed fishing for pollock CDQ only at the time a 
delivery was made. It would not have allowed a determination to be made 
while the vessel was participating in a CDQ fishery, before it 
delivered its catch.
    In this final rule, NMFS bases the calculation of directed fishing 
for pollock CDQ by a catcher vessel on the percent of pollock in the 
total catch of groundfish onboard the vessel at any time. This revision 
allows the determination of whether an operator of a catcher vessel is 
directed fishing for pollock CDQ at any time during a fishing trip, 
including at the time of delivery. Thus, NMFS can use the 60 percent 
threshold for both quota accounting under the AFA and for determining 
whether a vessel is directed fishing for pollock CDQ for purposes of 
enforcing time and area closures implemented through other rulemaking.
    For catcher/processors, calculating directed fishing on the basis 
of the percent of pollock in a haul allows the determination of 
directed fishing at any time while the vessel operator is fishing or 
after fishing has been completed. Therefore, no revision is made to 
text from the proposed rule related to the method of calculating 
directed fishing for catcher/processors.
    The final rule adds Sec.  679.32(a)(2) and (e) with a minor change 
from the proposed rule to correct the reference to Sec.  679.20(f)(3). 
Section 679.32(a)(2) is a reference to the location of the pollock CDQ 
catch accounting regulations at paragraph (e). Section 679.32(e) 
contains the requirements that pollock caught while directed fishing 
for pollock CDQ accrue against the pollock CDQ allocation. All other 
catch of pollock in the CDQ fisheries accrue against the pollock ICA. 
Paragraph (e) also reiterates that 100 percent of all pollock caught in 
the groundfish CDQ fisheries, regardless of the percent of pollock in 
the haul or delivery, would be retained under the Improved Retention/
Improved Utilization (IR/IU) regulations at Sec.  679.27.
    The following regulatory amendments to 50 CFR part 679 are 
implemented by this final rule with no change from the proposed rule:
    1. In Sec.  679.20, paragraph (b)(1)(iii)(A) is revised to remove 
the allocation of 7.5 percent of the squid TAC to the CDQ Program.
     2. In Sec.  679.31(f), the reference to the squid CDQ is removed 
from the paragraph describing the non-specific CDQ reserve. Squid will 
no longer be allocated to the CDQ Program, so NMFS could not allocate a 
portion of the squid CDQ to each CDQ group's non-specific CDQ reserve.

Compliance Guide for Small Entities

    The removal of the allocation of squid does not result in 
additional recordkeeping or reporting requirements that must be 
complied with by small entities or any other entity participating in 
the CDQ fisheries. Current CDQ recordkeeping and reporting requirements 
at Sec.  679.5(n) require the CDQ groups and shoreside processors to 
report the weight of all ``CDQ species'' on the CDQ catch report and 
CDQ delivery report. Squid will no longer be defined as a CDQ species, 
so squid will no longer be required to be reported on the CDQ catch 
report or the CDQ delivery report. However, no changes will be made to 
the recordkeeping and reporting requirements because these requirements 
do not refer to individual species but rather the general category of 
``CDQ species.'' The CDQ groups and shoreside processors can comply 
with the removal of squid from the CDQ Program by no longer reporting 
squid catch on their CDQ catch reports and CDQ delivery reports. They 
also may continue to report squid on the CDQ catch report and the CDQ 
delivery report if they wish to do so, although the CDQ catch 
accounting computer programs will disregard squid weights for purposes 
of CDQ catch accounting. Squid catch will continue to be reported by 
observers and by industry on their logbooks and in weekly production 
reports. The squid catch in the CDQ fisheries will be subtracted from 
the overall squid TAC through separate computer programs (the ``blend 
system'') that account for catch in the non-CDQ fisheries.
    Implementing a method for determining whether a vessel operator is 
directed fishing for pollock CDQ also will not result in any changes in 
the recordkeeping and reporting requirements. The CDQ groups and 
shoreside processors will continue to report the catch of all pollock 
while CDQ fishing. NMFS will use current computer programs to subtract 
only pollock that is caught in hauls or deliveries with 60 percent or 
more pollock from the CDQ groups' pollock CDQ allocations and to accrue 
the remainder of the pollock against the pollock ICA.

Classification

    The Administrator, Alaska Region, NMFS, determined that Amendment 
66 is necessary for the conservation and management of the BSAI 
groundfish fisheries and that it is consistent with the Magnuson-
Stevens Act and other applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS prepared a FRFA as required by the Regulatory Flexibility Act 
(RFA). A copy of this analysis is available from NMFS (see ADDRESSES) 
and is summarized below. The one letter of comment received on 
Amendment 66 did not address the IRFA or any issues associated with the 
impact of the action on small entities.
    The objective of Amendment 66 and its removal of squid as a CDQ 
species is elimination of the possibility that CDQ groups will be 
unable to harvest all of their pollock CDQ allocations because they 
catch their squid CDQ allocation first. The incidental catch of squid 
in the 1998 pollock CDQ fisheries indicated that, at least in some 
years, the CDQ groups would catch their squid CDQ allocation of 148 mt 
before they harvested the full amount of their pollock CDQ allocations. 
Under existing CDQ catch monitoring and accounting regulations, as long 
as squid remains a CDQ species, the CDQ groups will be prohibited from 
exceeding their squid CDQ allocation even if this amount of squid CDQ 
is caught before the CDQ groups harvest all of their pollock CDQ. If 
the CDQ groups continue to fish for pollock CDQ after they reach their 
squid CDQ allocation, they likely will catch additional squid and 
increase their squid CDQ overage. Therefore, to avoid facing 
enforcement action due to a squid CDQ overage, the CDQ groups would 
have to stop pollock CDQ fishing before they reached their pollock CDQ 
allocation. If the CDQ groups are unable to fully harvest their pollock 
CDQ allocations, returns to the CDQ group in pollock royalty revenues 
will decrease.
    The objective of the regulatory amendment to define directed 
fishing for pollock CDQ is to implement the intent of the AFA. The AFA 
requires that only pollock caught while directed fishing for pollock 
CDQ accrue against the pollock CDQ allocation. NMFS considered four 
alternatives for defining directed fishing for pollock CDQ. Alternative 
1 is the status quo, which would not distinguish between pollock

[[Page 13676]]

 caught while directed fishing for pollock CDQ from pollock caught 
incidentally to other groundfish CDQ fisheries. This alternative is not 
consistent with the AFA.
    Alternative 2 would define directed fishing for pollock CDQ in the 
same manner as was implemented under an emergency rule in 1999. Pollock 
caught in hauls by a catcher/processor or deliveries by a catcher 
vessel in which pollock represents 40 percent or more of the total 
groundfish catch by weight would accrue against the pollock CDQ (the 
``40-percent threshold''). Pollock caught in hauls or deliveries in 
which pollock represents less than 40 percent of the total groundfish 
catch would accrue against the pollock ICA.
    Alternative 3 is the same as Alternative 2 except that the 
threshold for defining directed fishing for pollock CDQ would be 
increased from 40 percent to 60 percent.
    Alternative 4 would use maximum retainable amounts to define 
directed fishing for pollock CDQ, which is the method used to define 
directed fishing in all non-CDQ groundfish fisheries. A vessel operator 
would be directed fishing for pollock CDQ if the weight of pollock CDQ 
retained onboard the vessel was 20 percent or more of the weight of all 
retained CDQ species onboard the vessel.
    Under Alternative 4, vessel operators could control whether they 
were directed fishing for pollock CDQ by discarding the amount of 
pollock that exceeded the maximum retainable amount. Under Alternatives 
2 and 3, vessel operators cannot discard pollock to control whether 
they are directed fishing for pollock CDQ because they are required to 
retain all of their pollock under IR/IU regulations.
    Amendment 66 and the accompanying regulatory amendments directly 
affect the six CDQ groups representing the 65 western Alaska 
communities that are eligible for the CDQ Program. The CDQ groups and 
the communities they represent all are small entities under the RFA.
     The action also directly affects the owners of 10 trawl catcher/
processors, one mothership, 22 trawl catcher vessels, and 3 shoreside 
processors that harvest and process pollock CDQ. None of these vessels 
or processors are small entities under the RFA for reasons explained 
more fully in the IRFAs and the FRFA.
    Removing squid as a CDQ species will provide significant benefits 
to the CDQ groups and western Alaska communities they represent. It 
will allow the CDQ groups to more fully harvest their pollock CDQ 
allocations in years of high squid bycatch. Without Amendment 66, some 
risk existed that the pollock CDQ fisheries would be constrained if the 
catch of squid in the CDQ fisheries reached the squid CDQ allocation. 
If this occurred, the CDQ groups would have lost the opportunity to 
harvest all of their pollock CDQ and the royalties associated with this 
pollock catch. Based on recent years' squid incidental catch rates, 
this potential loss to the CDQ groups could range from $0 to $8.4 
million annually. In addition to the loss of royalty revenue, the CDQ 
groups also would lose profit sharing and employment opportunities 
associated with full harvest of the pollock CDQ.
    NMFS expects no negative impacts on the small entities 
participating in the CDQ Program or on any small entities participating 
in the non-CDQ groundfish fisheries as a result of removing the 
allocation of squid to the CDQ Program. The only exception occurs if 
the overall squid catch reaches an overfishing level, in which case 
some CDQ and non-CDQ fisheries would have to be constrained to prevent 
overfishing. This is unlikely since, to date, no domestic groundfish 
fishery has been limited due to the catch of squid reaching TAC or 
overfishing.
    The regulatory amendment defining directed fishing for pollock CDQ 
also will directly affect the CDQ groups and CDQ communities. It will 
determine whether pollock caught in the CDQ fisheries will accrue 
against the pollock CDQ allocation or the pollock ICA. The CDQ groups 
benefit more from alternatives that maximize the amount of pollock that 
accrues against the pollock ICA. Of the four alternatives considered, 
Alternative 2 has the most negative impact on the CDQ groups because it 
would result in the largest amount of pollock accruing against the 
pollock CDQ allocations and the least amount accruing against the 
pollock ICA. Alternative 4 has the least negative impact on the CDQ 
groups because it would allow the groups to determine which vessels are 
directed fishing for pollock CDQ and would allow the catch of pollock 
by any other CDQ vessels to accrue against the ICA. The preferred 
alternative, with its 60 percent threshold for determining directed 
fishing for pollock CDQ, has less potential negative impacts on the CDQ 
groups than does Alternative 2, but more potential negative impacts 
than Alternative 4. NMFS estimates that the royalty value of the 
pollock CDQ allocation to the CDQ groups is about $22.1 million under 
Alternative 4. Depending on the value of the pollock CDQ harvested by 
vessels not intending to target on pollock under Alternative 2 and 
Alternative 3, NMFS estimates that the value of the pollock CDQ 
allocation could either (1) not change relative to the value under 
Alternative 4, or could (2) decrease up to $96,000 under Alternative 3 
and decrease up to $312,000 under Alternative 2.
    The definition of directed fishing for pollock CDQ also may 
indirectly affect up to 20 catcher/processors, 3 motherships, 8 
shoreside processors, and 120 catcher vessels that participate in the 
AFA pollock fisheries (the 10 trawl catcher/processors, 1 mothership, 
22 trawl catcher vessels, and 3 shoreside processors listed above as 
participating in the CDQ fisheries and directly affected by the 
alternatives are among the vessels and processors that also are 
indirectly affected by the alternatives). NMFS estimates that none of 
the catcher/processors, motherships, or shoreside processors are small 
entities for the reasons described above. However, approximately 40 of 
the 120 catcher vessels that participate in the AFA pollock fisheries 
are small entities based on information presented in the EA/RIR/IRFA 
prepared for Amendment 61 to the BSAI FMP - regulations implementing 
the AFA.
    The vessels and processors participating in the AFA fisheries are 
indirectly impacted by the definition of directed fishing for pollock 
CDQ. Any pollock from the CDQ fisheries that accrues against the 
pollock ICA reduces the pollock directed fishing allowances available 
to the inshore, offshore, and mothership sectors under the AFA.
    The status quo (not a viable alternative) would allow no accrual of 
pollock from the CDQ fisheries to the pollock ICA. Alternative 2 
increases potential costs to participants in the directed pollock 
fisheries because pollock in hauls or deliveries in which pollock is 
less than 40 percent of the total catch would accrue to the pollock ICA 
(estimated range of 807 mt to 5,040 mt of pollock would accrue to the 
pollock ICA). Alternative 3 further increases potential costs to the 
AFA fishery participants under the 60 percent threshold (estimated 
range of 937 mt to 6,120 mt of pollock). Among the alternatives 
considered, Alternative 4 would provide the maximum potential costs to 
the directed AFA fishery because it would allow the CDQ groups to 
identify which vessels were directed fishing for pollock and allow all 
pollock caught by other CDQ vessels to accrue to the pollock ICA 
(estimated range 1,018 mt to 6,600 mt).
    Both the pollock CDQ allocation and any pollock incidental catch 
from the other CDQ and non-CDQ groundfish fisheries are subtracted from 
the pollock TAC before pollock allocations are made

[[Page 13677]]

 to the AFA directed pollock fisheries. Therefore, the more pollock 
that is allowed as incidental catch in the CDQ fisheries, the larger 
the amount subtracted from the ICA, and the lower the amount available 
for the directed pollock fisheries. The 40 trawl catcher vessels (small 
entities) that participate in the BSAI pollock fisheries likely would 
prefer that no pollock CDQ allocations had been made. Instead, their 
preference would be that all of the BSAI pollock TAC were available to 
them as directed fisheries because direct harvest of pollock provides 
the highest net revenues to these vessels. However, the AFA authorizes 
some level of incidental pollock catch for the CDQ fisheries. The 
alternative that minimizes the amount of pollock that will accrue 
against the ICA (Alternative 2) results in the least negative impact on 
the 40 catcher vessels that participate in the AFA pollock fisheries, 
because it maximizes the amount of pollock available for the directed 
AFA fisheries. The preferred alternative provides a middle ground 
between Alternative 2, which minimizes the amount of pollock that 
accrues against the ICA and Alternative 4, which maximizes the amount 
of pollock that accrues against the ICA.
    NMFS is not aware of any alternatives to removing squid as a CDQ 
species that would accomplish the objectives of the action and further 
minimize the impact on small entities. This action removes squid as a 
CDQ species, which would no longer require that the CDQ groups (small 
entities) account for their catch of squid against a CDQ allocation and 
remove the risk that the incidental catch of squid in the CDQ fisheries 
would prevent the CDQ groups from harvesting their full pollock CDQ 
allocation. Therefore, the preferred alternative provides the maximum 
relaxation of the current regulations and maximum benefits to small 
entities.
    Alternatives increasing the amount of squid allocated to the CDQ 
Program are not practicable. Increasing the percentage of the TAC 
allocated to the CDQ reserve is not a viable alternative due to the 
moratorium on such increases at 16 U.S.C. 1855(i)(1)(c)(ii). Moreover, 
the option of increasing the squid TAC to provide more squid to the CDQ 
Program is not possible under the current process for setting OFLs, 
ABCs, and TACs, for the BSAI groundfish fisheries. Due to the lack of 
information about squid population dynamics and current biomass, the 
squid TAC is set based on the criteria in Tier 6 of the revised ABC and 
OFL definitions implemented through Amendment 44 to the BSAI FMP. Under 
this formula, the OFL for squid is the average catch from 1978 through 
1995, or 2,620 mt, and the ABC is 75 percent of the OFL, or 1,970 mt. 
The squid TAC is set equal to the ABC at 1,970 mt. No TAC can be set 
higher than its ABC. Therefore, the squid TAC cannot be increased above 
1,970 mt.
    NMFS believes that the EA/RIR/IRFA contains the range of reasonable 
alternatives that would accomplish the objective of the AFA to provide 
for some level of pollock incidental catch in the CDQ fisheries. The 
regulations implemented in this final rule meet the objectives of the 
AFA and the Magnuson-Stevens Act, to minimize any significant economic 
impact on small entities, and to balance the competing interests of two 
groups of small entities affected by the regulation - the CDQ groups 
and the small catcher vessels participating in the non-CDQ fisheries.
    The Council could have recommended a definition of directed fishing 
for pollock CDQ that further increased the amount of pollock catch in 
the CDQ fisheries that would accrue against the pollock ICA, thereby 
increasing the benefits to the small entities. Alternative 4 would have 
allowed the CDQ groups to catch as much pollock as they wished while 
CDQ fishing and to discard amounts of pollock above the maximum 
retainable amounts. This alternative was not preferred by the Council 
or the CDQ groups because it would require regulatory discards of 
pollock catch that exceed the maximum retainable amounts. In addition, 
this alternative would have increased the potential negative impacts to 
another group of small entities affected by the proposed action - the 
40 catcher vessels in the AFA pollock fisheries - because increases in 
the amount of pollock from the CDQ fisheries accruing against the 
pollock ICA would decrease the directed pollock allowance to the AFA 
fisheries.
    The Council also considered an alternative that could have further 
minimized negative economic impacts on the 40 catcher vessels in the 
AFA pollock fisheries. Under Alternative 2, the 40-percent threshold, 
less pollock from the CDQ fisheries would accrue against the pollock 
ICA than would accrue under the preferred alternative. However, the 
Council considered the trade-off in impacts to the participants in the 
AFA pollock fisheries and the CDQ fisheries and determined that the 
amount of pollock that would accrue against the pollock ICA under the 
preferred alternative was not likely to significantly affect the 40 
trawl catcher vessels or other participants in the AFA fisheries. They 
recommended Alternative 3, which balances the impacts to the CDQ groups 
with the impacts to the participants in the non-CDQ fisheries.
    The President has directed Federal agencies to use plain language 
in their communications 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 proposed 
rule. Such comments should be sent to the Administrator, Alaska Region 
(see ADDRESSES).

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Recordkeeping and reporting requirements.

    Dated: February 28, 2001.
William T. Hogarth,
Acting 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 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. 679.2, in the definition for ``Directed fishing,'' a new 
paragraph (4) is added to read as follows:


Sec. 679.2  Definitions.

* * * * *
    Directed fishing * * *
    (4) With respect to the harvest of CDQ species, directed fishing as 
calculated under Sec. 679.20(f)(3).
* * * * *

    3. In Sec. 679.20, paragraph (b)(1)(iii)(A) is revised and a new 
paragraph (f)(3) is added to read as follows:


Sec. 679.20  General limitations.

* * * * *
    (b) * * *
    (1) * * *
    (iii) * * *
    (A) Groundfish CDQ Reserve. Except as limited by Sec.  679.31(a), 
one half of the nonspecified reserve established by paragraph (b)(1)(i) 
of this section for all species except squid is apportioned to the 
groundfish CDQ reserve.
* * * * *
    (f) * * *
    (3) CDQ fisheries--(i) General. Directed fishing in the CDQ 
fisheries is determined based on the species composition of the total 
catch of

[[Page 13678]]

 groundfish while harvesting groundfish CDQ species. For catcher/
processors, the species composition of each haul is assessed to 
determine the directed fishery. For catcher vessels, the species 
composition of the catch onboard the vessel at any time is assessed to 
determine the directed fishery. The groundfish species used to 
calculate total catch of groundfish includes all species categories 
defined in Table 1 of the annual BSAI specifications.
    (ii) Directed fishing for pollock CDQ. A vessel operator using 
trawl gear is directed fishing for pollock CDQ if pollock represents 60 
percent or more of the total catch of groundfish species by weight in a 
haul by a catcher/processor or 60 percent or more of the total catch of 
groundfish species by weight onboard the catcher vessel at any time.
* * * * *

    4. In Sec. 679.31, paragraph (f) is revised to read as follows:


Sec. 679.31  CDQ reserves.

* * * * *
    (f) Non-specific CDQ reserve. Annually, NMFS will apportion 15 
percent of each arrowtooth flounder and ``other species'' CDQ for each 
CDQ group to a non-specific CDQ reserve. A CDQ group's non-specific CDQ 
reserve must be for the exclusive use of that CDQ group. A release from 
the non-specific CDQ reserve to the CDQ group's arrowtooth flounder or 
``other species'' CDQ is a technical amendment to a community 
development plan as described in Sec. 679.30(g)(5). The technical 
amendment must be approved before harvests relying on CDQ transferred 
from the non-specific CDQ reserve may be conducted.

    5. In Sec. 679.32, paragraph (a)(2) is revised and paragraph (e) is 
added to read as follows:


Sec. 679.32  Groundfish and halibut CDQ catch monitoring.

    (a) * * *
    (2) Pollock CDQ. Requirements for the accounting of pollock while 
CDQ fishing are at paragraph (e) of this section.
* * * * *
    (e) Pollock CDQ--(1) Directed fishing for pollock CDQ. Owners and 
operators of vessels directed fishing for pollock CDQ as calculated 
under Sec.  679.20(f)(3) and processors taking deliveries from vessels 
directed fishing for pollock CDQ must comply with all applicable 
requirements of paragraphs (a) through (d) of this section. Pollock 
catch by vessels directed fishing for pollock CDQ will accrue against 
the pollock CDQ for the CDQ group.
    (2) Catch of pollock by vessels not directed fishing for pollock 
CDQ. Pollock catch by vessels groundfish CDQ fishing, but not directed 
fishing for pollock CDQ as calculated under Sec.  679.20(f)(3), will 
not accrue against the pollock CDQ for the CDQ group.
    (3) Operators of all vessels participating in any CDQ fishery must 
retain all pollock caught while CDQ fishing as required at Sec.  679.27 
(IR/IU).
* * * * *
[FR Doc. 01-5558 Filed 3-6-01; 8:45 am]
BILLING CODE 3510-22-S