[Federal Register Volume 66, Number 190 (Monday, October 1, 2001)]
[Proposed Rules]
[Pages 49908-49914]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-24518]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 010914227-1227-01; I.D. 080201E]
RIN 0468-AM40


Fisheries of the Exclusive Economic Zone Off Alaska; License 
Limitation Program for Groundfish of the Bering Sea and Aleutian 
Islands Area

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS issues a proposed rule to implement Amendment 67 to the 
Fishery Management Plan for the Groundfish Fishery of the Bering Sea 
and Aleutian Islands Area. This action is necessary to stabilize fully 
utilized Pacific cod resources harvested with non-trawl gear in the 
Bering Sea and Aleutian Islands Area (BSAI). This would be accomplished 
by issuing endorsements for exclusive participation in the Pacific cod 
non-trawl fishery in the BSAI by long-time participants. The intended 
effect of this action is to conserve and manage the Pacific cod 
resources in the BSAI in accordance with the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act).

DATES: Comments must be received by November 15, 2001.

ADDRESSES: Comments may be sent to Sue Salveson, Assistant Regional 
Administrator for Sustainable Fisheries, Alaska Region, NMFS, P.O. Box 
21668, Juneau, AK 99802, Attn: Lori Gravel, or delivered to room 401 of 
the Federal Building, 709 West 9th Street, Juneau, AK. Comments will 
not be accepted if submitted via e-mail or Internet. Copies of the 
Environmental Assessment/Regulatory Impact Review/Initial Regulatory 
Flexibility Analysis (analysis) prepared for Amendment 67 are available 
from the North Pacific Fishery Management Council, 605 West Avenue, 
Suite 306, Anchorage, AK 99501; telephone 907-271-2809. Specifically, 
NMFS requests comments on the findings of the analysis, such as more 
information about the number of small entities adversely affected by 
this proposed rule and the magnitude of any such adverse effects.

FOR FURTHER INFORMATION CONTACT: John Lepore, 907-586-7228 or email at 
[email protected].

SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fisheries in the 
exclusive economic zone off Alaska under the Fishery Management Plan 
for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area. 
The North Pacific Fishery Management Council (Council) prepared this 
fishery management plan (FMP) under the authority of the Magnuson-
Stevens Act. Regulations governing U.S. fisheries and implementing this 
FMP appear at 50 CFR parts 600 and 679.

Background of Amendment 67

    The Council recommended, and NMFS approved, the License Limitation 
Program (LLP) to address concerns of excess fishing capacity in the 
groundfish and crab fisheries off Alaska. The LLP replaced the Vessel 
Moratorium Program, a program implemented by NMFS to impose a temporary 
moratorium on the entry of new capacity in the groundfish fisheries off 
Alaska and crab fisheries in the BSAI and to define the class of 
entities that would be eligible for licenses under the LLP. The Vessel 
Moratorium Program expired on December 31, 1999, and fishing under the 
LLP began on January 1, 2000. More information on the specifics of the 
LLP and the problems it was designed to resolve can be found in the 
final rule implementing the LLP (63 FR 52642, October 1, 1998).
    The LLP, as implemented on January 1, 2000, was always considered 
by the Council and NMFS as an initial stage in a multi-staged process 
designed to reduce fishing capacity in the affected fisheries. The LLP 
is a limited access system authorized under the Magnuson-Stevens Act 
that requires a person to hold a license in order to participate in the 
groundfish fishery. Under the original provisions of the LLP, an LLP 
groundfish license was specific as to the area in which a person could 
participate, but not as to gear or species. The Council fully 
anticipated that specific fisheries within the LLP complex of fisheries 
would need further management controls to fully respond to the effects 
of excess fishing capacity. One such fishery is BSAI Pacific cod 
harvested with non-trawl gear.
    In 1996, the Council recommended Amendment 46 to the BSAI FMP. 
Amendment 46 allocated the total allowable catch (TAC) for BSAI Pacific 
cod among participants who used jig gear (2 percent), trawl gear (47 
percent), and fixed gear (or hook-and-line gear and pot gear)(51 
percent). Amendment 46 further split the trawl gear allocation equally 
between catcher vessels and catcher/processor vessels. Amendment 46 was 
approved by NMFS, and implemented in January 1997 (61 FR 59029, 
November 20, 1996).
    Although Amendment 46 initiated a process to address issues 
surrounding the allocation of BSAI Pacific cod fisheries among various 
participants, it did not address all of the issues, including increased 
prices for Pacific cod; reduced crab guideline harvest levels; and 
shortened or cancelled crab seasons due to low resource abundance, 
which intensified the use of Pacific cod resources by participants 
using pot gear. This intensified use prompted the concern of long-time 
Pacific cod fishermen who use non-trawl gear about the potential 
erosion of historical harvest trends in the BSAI Pacific cod fishery in 
favor of more recent participants. Also, the entrance of new 
participants in the fisheries has raised concerns regarding the 
increase of competition for a fully utilized resource.
    In response to this concern, the Council recommended Amendment 64. 
This amendment, approved by NMFS and implemented by final rule in 
September 2000 (65 FR 51553, August 24, 2000), further divided the 51 
percent of the TAC for BSAI Pacific cod allocated to hook-and-line gear 
and pot gear as follows: 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

[[Page 49909]]

60 ft (18.3 m) length overall (LOA), 1.4 percent. Amendment 64 also 
contained specific provisions for the accounting of directed fishing 
allowances and the transfer of unharvested amounts of these allowances. 
Further information regarding these specific provisions can be found in 
the final rule that implemented Amendment 64.
    Amendments 46 and 64 established TAC allocations for different gear 
sectors of the BSAI Pacific cod fisheries. However, neither amendment 
prevented movement among those sectors or the entrance of new 
participants who hold an LLP groundfish license with a Bering Sea or 
Aleutian Islands area endorsement into BSAI Pacific cod fisheries, 
because these amendments did not require specific endorsements.
    In April 1999, the Council initiated an analysis of alternatives to 
add Pacific cod endorsements to LLP groundfish licenses. Pacific cod 
endorsements are designed to address the concern about new participants 
entering the Pacific cod fisheries and movement of Pacific cod 
fishermen among the various sectors that use non-trawl gear. This 
analysis contained the following Problem Statement:
    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 allowable biological 
catch/TAC.
    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 [non-trawl] cod fishery until comprehensive 
rationalization is completed.
    The analysis reviewed the status of Pacific cod stocks and catch, 
the history of Pacific cod allocations, and the economic, social, and 
environmental impacts of various limited access alternatives. A copy of 
this analysis can be obtained for review from the Council (see 
ADDRESSES).
    In April 2000, the Council recommended its preferred alternative 
for the BSAI Pacific cod non-trawl fisheries (Amendment 67). This 
recommendation is currently being reviewed by NMFS. The details of 
Amendment 67 are provided in the following section.

Details of Amendment 67

    As explained earlier, the BSAI Pacific cod fisheries are fully 
utilized. Therefore, any new participant increases the competition for 
an already fully utilized resource. Although new participants are often 
discouraged from entering such a fishery due to the costs of increased 
competition, the relatively high value of the Pacific cod and the 
depressed abundance of crab resources have provided incentives for new 
participants to enter the BSAI Pacific cod fisheries.
    The Council considered various alternatives to limit entry into the 
BSAI Pacific cod fishery by fishermen using non-trawl gear. These 
alternatives were designed to prevent a person who holds an LLP 
groundfish license, but who has not participated in the Pacific cod 
fisheries in the BSAI with non-trawl gear in the past, or who has not 
participated at a level that could constitute significant dependence on 
those fisheries, from participating in those fisheries in the future.
    After receiving public testimony concerning this action, the 
Council recommended the following eligibility requirements for Pacific 
cod endorsements:

Eligibility Requirements--General Information

    As used throughout this document, a license holder means the person 
to whom an LLP groundfish license was issued or the person authorized 
to use that license.
    Qualifying amounts are in round weight. Round weight is calculated 
by dividing the weight of the primary product made from the Pacific cod 
by the product recovery rate for that primary product as listed in 
Table 3 to 50 CFR part 679. Primary product can be processed or 
unprocessed.
    Pacific cod that was harvested for the commercial bait fishery and 
properly documented would be applied toward the qualifying amount. 
Properly documented means that the Pacific cod was landed in compliance 
with Federal and state commercial fishing regulations in effect at the 
time of landing. Pacific cod that was harvested for personal use bait 
would not be applied toward the qualifying amount. The Council reviewed 
the Pacific cod bait issue and determined that giving credit for 
commercial bait, but not personal bait, was consistent with a Pacific 
cod fishery that is commercial in nature.
    Pacific cod harvested in the Bering Sea Subarea or the Aleutian 
Islands Subarea would be applied toward the qualifying amount. However, 
a license holder would only be authorized to harvest Pacific cod in an 
area in which he or she had an area endorsement. This would be 
consistent with the overall goals and objectives of the LLP (i.e., a 
person had to participate in a management area during a specific period 
to qualify for an area endorsement). For example, a person who had an 
LLP groundfish license with only a Bering Sea area endorsement would 
not be authorized to harvest Pacific cod in the Aleutian Islands 
subarea, even though his or her Pacific cod endorsement was issued 
based on harvests in both the Bering Sea Subarea and the Aleutian 
Islands Subarea.
    Also, discarded Pacific cod would not be applied toward the 
qualifying amount. Discarded fish are often not reported and do not 
enter the stream of commerce; therefore, they are not considered 
commercial in nature.

Eligibility Requirements--Specific Information

    To receive a Pacific cod endorsement that authorizes an LLP 
groundfish license holder to harvest Pacific cod with hook-and-line 
gear in the BSAI but not process that Pacific cod, a person would need 
to have:
    1. An LLP groundfish license with a catcher vessel designation;
    2. Harvested at least 7.5 metric tons (mt) round weight of Pacific 
cod with hook-and-line gear or jig gear in the directed commercial BSAI 
Pacific cod fishery in any 1 of the years 1995, 1996, 1997, 1998, or 
1999; and
    3. Harvested the qualifying amount with the vessel that was used as 
the basis of eligibility for the license holder's LLP groundfish 
license.
    To receive a Pacific cod endorsement that authorizes an LLP 
groundfish license holder to harvest Pacific cod with hook-and-line 
gear in the BSAI and process that Pacific cod, a person would need to 
have:
    1. An LLP groundfish license with a catcher/processor vessel 
designation;
    2. Harvested at least 270 mt round weight of Pacific cod with hook-
and-line gear in the directed commercial BSAI Pacific cod fishery in 
any 1 of the years 1996, 1997, 1998, or 1999; and
    3. Harvested the qualifying amount with the vessel that was used as 
the basis of eligibility for the license holder's LLP groundfish 
license.
    To receive a Pacific cod endorsement that authorizes an LLP 
groundfish license holder to harvest Pacific cod with pot gear in the 
BSAI but not process that Pacific cod, a person would need to have:
    1. An LLP groundfish license with a catcher vessel designation;
    2. Harvested at least 100,000 lb (45 mt) round weight of Pacific 
cod with pot gear or jig gear in the directed commercial BSAI Pacific 
cod fishery in each of any 2 of the years 1995, 1996, 1997, 1998, or 
1999; and

[[Page 49910]]

    3. Harvested the qualifying amount with the vessel that was used as 
the basis of eligibility for the license holder's LLP groundfish 
license.
    To receive a Pacific cod endorsement that authorizes an LLP 
groundfish license holder to harvest Pacific cod with pot gear in the 
BSAI and process that Pacific cod, a person would need to have:
    1. An LLP groundfish license with a catcher/processor vessel 
designation;
    2. Harvested at least 300,000 lb (136 mt) round weight of Pacific 
cod with pot gear in the directed commercial BSAI Pacific cod fishery 
in each of any 2 of the years 1995, 1996, 1997, or 1998; and
    3. Harvested the qualifying amount with the vessel that was used as 
the basis of eligibility for the license holder's LLP groundfish 
license.
    Except as explained here, a license holder would need to have a 
Pacific cod endorsement on his or her LLP groundfish license to conduct 
directed fishing for Pacific cod in the BSAI with hook-and-line or pot 
gear(s) including Pacific cod harvested for the commercial bait 
fishery. The license holder would have to use the specific non-trawl 
gear designated with the Pacific cod endorsement.

Exemptions

    A license holder would not need a Pacific cod endorsement on his or 
her LLP groundfish license to use a catcher vessel less than 60 ft 
(18.3 mt) LOA to conduct directed fishing for Pacific cod in the BSAI 
with non-trawl gear. The Council decided to exempt this class of 
vessels because of concern over the ability of these relatively small 
vessels to compete under the current fishery management regime. 
Amendment 64 allocates 1.4 percent of the BSAI Pacific cod non-trawl 
allocation to vessels less than 60 ft (18.3 m) LOA. In providing this 
exemption, the Council intended to ensure that the number of vessels in 
this vessel class would be sufficient to take advantage of the entire 
allocation.
    Exemptions to the LLP would apply to the Pacific cod endorsement. 
That means that a vessel that is exempt from the LLP would not need to 
comply with Pacific cod endorsement requirements proposed by this rule 
to conduct directed fishing for Pacific cod in the BSAI with non-trawl 
gear. These exemptions include (1) vessels less than 32 ft (7.5 m) LOA 
and (2) vessels less than 60 ft (18.3 m) LOA using a limited amount of 
jig gear. Specific information concerning these exemptions can be found 
at 50 CFR 679.4(k)(2).
    A Pacific cod endorsement would not be required to harvest Pacific 
cod for personal use bait.

Other Provisions

    The Council considered several provisions that would have allowed a 
person to combine the catch histories of more than one vessel to 
qualify for a Pacific cod endorsement. The Council recommended that a 
person be allowed to combine catch histories only when the vessel that 
was used as the basis of eligibility for the original LLP groundfish 
license sank and was replaced with another vessel by that person within 
a specified time period. The Council decided not to allow any other 
combining of landings (or catch histories) of multiple vessels because 
of the potential of increasing participation in a fishery in which 
excess capacity already is a recognized problem. The Council determined 
that allowing for the combining of landings in the limited 
circumstances of sunken vessels would not greatly increase the number 
of participants (the analysis identified approximately seven vessels 
that may qualify for this provision). However, it would provide 
equitable consideration to those persons who would have participated 
but for their vessel sinking.
    Specifically, a person could combine the landings of a sunken 
vessel with the landings of a replacement vessel to meet the 
eligibility criteria for a Pacific cod endorsement if:
    (1) The vessel that sank was used as the basis of eligibility for 
the original LLP groundfish license;
    (2) The vessel sank after January 1, 1995; and
    (3) The sunken vessel was replaced with a vessel by December 31 of 
the year 2 years after the vessel sank. This time period was chosen by 
the Council because it corresponds with the time period used by the 
Internal Revenue Service for tax purposes. For example, if a vessel 
sank any time during 1996, replacement of that vessel had to occur 
before December 31, 1998.
    Another provision recommended by the Council concerns unavoidable 
circumstances. This hardship provision is similar to one provided for 
general LLP eligibility and would enable a person to receive a Pacific 
cod endorsement even though that person would not qualify for an 
endorsement based on landings. The requirements for eligibility under 
the hardship provision would be very specific. First, a person would 
have to be an LLP groundfish license holder and owner of the vessel 
that, but for the unavoidable circumstances, would have had sufficient 
landings to meet the requirements for a Pacific cod endorsement. 
Second, that person would have to demonstrate a specific intent to use 
that vessel to conduct directed fishing for Pacific cod in the BSAI 
during the relevant time period and the capability to have made 
harvests sufficient to meet the eligibility criteria. Third, the 
specific intent would have to have been thwarted by a circumstance that 
was unavoidable, unique to the person or unique to the vessel, and 
unforeseen and reasonably unforeseeable to the person. Fourth, under 
the circumstances, the person would have to have taken all reasonable 
steps to overcome the circumstances. Fifth, any amount of Pacific cod 
would have to have been harvested on the vessel in the BSAI with non-
trawl gear during the period of eligibility for the specific Pacific 
cod endorsement desired but after the vessel was prevented from 
participating by the unavoidable circumstance.

Species Endorsements in the Community Development Quota (CDQ) 
Fisheries

    The Council recommended that the provisions of Amendment 67 apply 
to the CDQ fisheries. This means that vessels not authorized to harvest 
Pacific cod under the LLP would be prohibited from directed fishing for 
Pacific cod CDQ. However, NMFS regulations do not currently define 
directed fishing for Pacific cod in the CDQ fisheries.
    Through the CDQ program, NMFS allocates 10 percent of pollock and 
7.5 percent of the BSAI groundfish, prohibited species, halibut, and 
crab TAC to 65 eligible Western Alaska communities. The CDQ groups to 
which the TAC is allocated are expected to manage their allocations of 
CDQ and Prohibited Species Quota to account for bycatch as well as 
target catch. The CDQ groups are prohibited from exceeding any of their 
CDQ allocations, which prevents continued fishing for one groundfish 
species once the quota of another groundfish or halibut bycatch species 
is reached.
    In the non-CDQ fisheries, NMFS defines directed fisheries based on 
the amount of retained catch of a given species relative to the amount 
of other groundfish species on board the vessel. When a TAC amount for 
a species is approached, NMFS will close directed fishing for the 
species but allow fishing to continue in other fisheries in which the 
species is taken incidentally.
    Thus, in contrast to the non-CDQ fisheries, NMFS has traditionally 
not needed to define directed fishing within the CDQ program and 
current regulations prohibit the use of CDQ catch as the basis for 
calculating the maximum retainable bycatch. These regulations were 
implemented because

[[Page 49911]]

directed fishing closures did not apply to the CDQ fisheries. Further, 
because there are no provisions for regulatory discard, vessels engaged 
in CDQ fisheries are often required to retain all catch.
    Implementing Amendment 67 would require that the existing 
regulations be amended as follows: First, the definition of directed 
fishing in Sec. 679.2 would be revised, in order to remove specific 
reference to the CDQ fisheries. This reference was appropriate when the 
only directed fishery defined under the CDQ program was pollock. 
However, under this rule, directed fishing for Pacific cod in the CDQ 
fisheries would be defined following the same procedure as the non-CDQ 
fisheries. Second, the use of CDQ species as basis species for 
calculating retainable amounts of other CDQ species would be allowed. 
This revision would be necessary to determine whether a vessel is 
directed fishing for Pacific cod in the CDQ fisheries and would be 
required to have species endorsements. Third, regulatory discards of 
Pacific cod by vessels that do not have a Pacific cod species 
endorsement would be allowed. This revision would be necessary so that 
vessel operators who do not have a Pacific cod species endorsement 
could comply with the maximum retainable bycatch amounts of Pacific 
cod.
    This action would also clarify the existing CDQ regulations by 
specifically allowing the regulatory discard of sablefish when their 
retention is prohibited by other regulations.

Classification

    At this time, NMFS has not determined that Amendment 67 to the FMP 
for the Groundfish Fishery of the BSAI is consistent with the national 
standards of the Magnuson-Stevens Act and other applicable laws. In 
making that determination, NMFS will take into account the data, views, 
and comments received during the comment period on the amendment.
    The Council prepared an environmental assessment for FMP Amendment 
67 that analyzes the impacts on the environment as a result of this 
action. The assessment indicates that the individual and cumulative 
impacts of this action would not significantly affect the quality of 
the human environment. This action would reduce the number of eligible 
participants in the BSAI non-trawl Pacific cod fishery, as compared to 
the status quo. This reduction is not expected to adversely impact the 
targeted fishery stock, non-targeted fishery stocks, or the physical 
environment.
    The Council also prepared an initial regulatory flexibility 
analysis (IRFA). The IRFA was prepared by the Council because it was 
unable to make a definitive finding of non-significance under the 
Regulatory Flexibility Act. The IRFA indicates that the Council took 
this action under the Magnuson-Stevens Act, which authorizes the 
Council to recommend to the Secretary of Commerce limited access 
measures that are consistent with sound fishery management and 
conservation policies. The Council recommended Amendment 67 to further 
rationalize the Pacific cod fisheries in the BSAI in a manner 
consistent with the overall principles of LLP and to protect 
investment-backed expectations of long-term participants in the Pacific 
cod fisheries. Besides the proposed qualifying criteria, the Council 
considered other combinations of qualifying harvest amounts and 
qualifying years that could have allowed more small entities to 
participate; however, these alternative combinations failed to meet 
conservation and management goals for this fully utilized fishery.
    Approximately 365 catcher vessels, 67 catcher/processor vessels, 
and 5 shore-based processors were considered small entities for 
purposes of the IRFA. However, because little is known about the 
ownership structures of certain vessels (i.e., some vessels may be tied 
to corporations with revenues greater than $3 million), the IRFA may 
have overestimated the number of small entities. This action does not 
increase existing reporting, recordkeeping, or compliance requirements. 
Harvesting information necessary to determine eligibility for an 
endorsement is already available to NMFS. However, if a person feels 
that the information is in error, he or she would need to provide 
alternative information for review and verification. As this action 
creates a new endorsement under the LLP, it does not duplicate, overlap 
or conflict with any other relevant Federal regulations.
    To reduce the impacts of this recommendation on small entities the 
Council exempted catcher vessels less than 60 ft (18.3 m) from the 
endorsement requirement and allowed persons operating vessels greater 
than or equal to 60 ft (18.3 m) to use harvests of Pacific cod with jig 
gear to qualify for endorsements. The Council also included a general 
hardship exemption provision (details of which were already mentioned 
above) to further mitigate possible adverse effects to small entities 
that would not have otherwise qualified. NMFS requests comments on the 
IRFA from small entities and others who would be affected by this 
proposed rule. Specifically, NMFS requests more information about the 
number of small entities adversely affected by this proposed rule and 
the magnitude of any such adverse effects.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Reporting and recordkeeping requirements.

    Dated: September 25, 2001.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For reasons set out in the preamble, 50 CFR part 679 is proposed to 
be amended to read 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.; 3631 et seq.; 
Title II of Division C, Pub. L. 105-277; sec. 3027, Pub. L. 106-31; 
113 Stat. 57; 16 U.S.C. 1540(f); and sec. 209, Pub. L. 106-554.


Sec. 679.2  [Amended]

    2. In Sec. 679.2, the definition of ``Directed fishing'' is amended 
by removing paragraph (5).

    3. In Sec. 679.4, paragraph (k)(1)(i) is revised and paragraph 
(k)(9) is added to read as follows:


Sec. 679.4  Permits.

* * * * *
    (k) * * *
    (1) * * *
    (i) In addition to the permit and licensing requirements of this 
part, and except as provided in paragraph (k)(2) of this section, each 
vessel within the GOA or the BSAI must have an LLP groundfish license 
on board at all times it is engaged in fishing activities defined in 
Sec. 679.2 as directed fishing for license limitation groundfish. This 
groundfish license, issued by NMFS to a qualified person, authorizes a 
license holder to deploy a vessel to conduct directed fishing for 
license limitation groundfish only in accordance with the specific area 
and species endorsements, the vessel and gear designations, and the 
MLOA specified on the license.
* * * * *
    (9) Pacific cod endorsements--(i) General. In addition to other 
requirements of this part, and unless specifically exempted in 
paragraph (k)(9)(iv) of this section, a license holder must have a 
Pacific cod endorsement on his or her groundfish license to conduct

[[Page 49912]]

directed fishing for Pacific cod with hook-and-line or pot gear in the 
BSAI. A license holder can only use the specific non-trawl gear(s) 
indicated on his or her license to conduct directed fishing for Pacific 
cod in the BSAI.
    (ii) Eligibility requirements for a Pacific cod endorsement. This 
table provides eligibility requirements for Pacific cod endorsements on 
an LLP groundfish license:

----------------------------------------------------------------------------------------------------------------
                                                         THEN THE LICENSE
                                      AND THE LICENSE       HOLDER MUST                           TO RECEIVE A
 IF A LICENSE HOLDER'S LICENSE HAS    HOLDER HARVESTED   DEMONSTRATE THAT                         PACIFIC COD
                A...                   PACIFIC COD IN        HE OR SHE            IN...         ENDORSEMENT THAT
                                      THE BSAI WITH...     HARVESTED AT                            AUTHORIZES
                                                             LEAST...                           HARVEST WITH...
----------------------------------------------------------------------------------------------------------------
(A) Catcher vessel designation       hook-and-line      7.5 mt of Pacific   in any 1 of the    hook-and-line
                                      gear or jig gear   cod in the BSAI     years 1995,        gear.
                                                                             1996, 1997,
                                                                             1998, or 1999
(B) Catcher vessel designation       pot gear or jig    100,000 lb of       in each of any 2   pot gear.
                                      gear               Pacific cod in      of the years
                                                         the BSAI            1995, 1996,
                                                                             1997, 1998, or
                                                                             1999
(C) Catcher/processor vessel         hook-and-line      270 mt of Pacific   in any 1 of the    hook-and-line
 designation                          gear               cod in the BSAI     years 1996,        gear.
                                                                             1997, 1998, or
                                                                             1999
(D) Catcher/processor vessel         pot gear           300,000 lb of       in each of any 2   pot gear.
 designation                                             Pacific cod in      of the years
                                                         the BSAI            1995, 1996,
                                                                             1997, or 1998
----------------------------------------------------------------------------------------------------------------

    (iii) Explanations for Pacific cod endorsements. (A) All 
eligibility amounts in the table at paragraph (k)(9)(ii) of this 
section will be determined based on round weight equivalents.
    (B) Discards will not count toward eligibility amounts in the table 
at paragraph (k)(9)(ii) of this section.
    (C) Pacific cod harvested for personal bait use will not count 
toward eligibility amounts in the table at paragraph (k)(9)(ii) of this 
section.
    (D) A legal landing of Pacific cod in the BSAI for commercial bait 
will count toward eligibility amounts in the table at paragraph 
(k)(9)(ii) of this section.
    (E) Landings within the BSAI will count toward eligibility amounts 
in the table at paragraph (k)(9)(ii) of this section; however, a 
license holder will only be able to harvest Pacific cod in the specific 
areas in the BSAI for which he or she has an area endorsement.
    (iv) Exemptions to Pacific cod endorsements. (A) Any vessel 
exempted from the License Limitation Program at paragraph (k)(2) of 
this section.
    (B) Any catcher vessel less than 60 ft (18.3 mt) LOA.
    (C) Any catch of Pacific cod for personal use bait.
    (v) Combination of landings and hardship provision. Notwithstanding 
the eligibility requirements in paragraph (k)(9)(ii) of this section, a 
license holder may be eligible for a Pacific cod endorsement by meeting 
the following criteria.

[[Page 49913]]

    (A) Combination of landings. A license holder may combine the 
landings of a sunken vessel and the landings of a vessel obtained to 
replace a sunken vessel to satisfy the eligibility amounts in the table 
at paragraph (k)(9)(ii) of this section only if he or she meets the 
requirements in paragraphs (k)(9)(v)(A)(1)--(4) of this section. No 
other combination of landings will satisfy the eligibility amounts in 
the table at paragraph (k)(9)(ii) of this section.
    (1) The sunken vessel was used as the basis of eligibility for the 
license holder's groundfish license;
    (2) The sunken vessel sank after January 1, 1995;
    (3) The vessel obtained to replace the sunken vessel was obtained 
by December 31 of the year 2 years after the sunken vessel sank; and
    (4) The length of the vessel obtained to replace the sunken vessel 
does not exceed the MLOA specified on the license holder's groundfish 
license.
    (B) Hardship provision. A license holder may be eligible for a 
Pacific cod endorsement because of unavoidable circumstances if he or 
she meets the requirements in paragraphs (k)(9)(v)(B)(1)--(4) of this 
section. For purposes of this hardship provision, the term license 
holder includes the person whose landings were used to meet the 
eligibility requirements for the license holder's groundfish license, 
if not the same person.
    (1) The license holder at the time of the unavoidable circumstance 
held a specific intent to conduct directed fishing for BSAI Pacific cod 
in a manner sufficient to meet the landing requirements in the table at 
paragraph (k)(9)(ii) of this section but this intent was thwarted by a 
circumstance that was:
    (i) Unavoidable;
    (ii) Unique to the license holder, or unique to the vessel that was 
used as the basis of eligibility for the license holder's groundfish 
license; and
    (iii) Unforeseen and reasonably unforeseeable to the license 
holder.
    (2) The circumstance that prevented the license holder from 
conducting directed fishing for BSAI Pacific cod in a manner sufficient 
to meet the landing requirements in paragraph (k)(9)(ii) actually 
occurred;
    (3) The license holder took all reasonable steps to overcome the 
circumstance that prevented the license holder from conducting directed 
fishing for BSAI Pacific cod in a manner sufficient to meet the landing 
requirements in paragraph (k)(9)(ii) of this section; and
    (4) Any amount of Pacific cod was harvested in the BSAI aboard the 
vessel that was used as the basis of eligibility for the license 
holder's groundfish license during the time period required for the 
Pacific cod endorsement but after the vessel was prevented from 
participating by the unavoidable circumstance.
* * * * *

    4. In Sec. 679.7, paragraph (d)(11), (d)(16) and (d)(23) are 
revised to read as follows:


Sec. 679.7  Prohibitions.

* * * * *
    (d)* * *
    (11) For the operator of a catcher vessel using trawl gear or any 
vessel less than 60 ft (18.3 m) LOA that is groundfish CDQ fishing as 
defined at Sec. 679.2, discard any groundfish CDQ species or salmon PSQ 
before it is delivered to an eligible processor listed on an approved 
CDP unless discard of the groundfish CDQ is required under other 
provisions or, in waters within the State of Alaska, discard is 
required by laws of the State of Alaska.
* * * * *
    (16) Use any groundfish CDQ species as a basis species for 
calculating retainable amounts of non-CDQ species under Sec. 679.20.
* * * * *
    (23) For any person on a vessel using fixed gear that is fishing 
for a CDQ group with an allocation of fixed gear sablefish CDQ, discard 
sablefish harvested with fixed gear unless discard of sablefish is 
required under other provisions or, in waters within the State of 
Alaska, discard is required by laws of the State of Alaska.

    5. In Sec. 679.20, paragraph (f)(2) and (f)(3) are revised to read 
as follows:


Sec. 679.20  General limitations.

* * * * *
    (f) * * *
    (2) Retainable amounts. Except as provided in Table 10 to this 
part, arrowtooth flounder, or any groundfish species for which directed 
fishing is closed may not be used to calculate retainable amounts of 
other groundfish species. CDQ species may only be used to calculate 
retainable amounts of other CDQ species.
    (3) Directed fishing for pollock CDQ. Directed fishing for pollock 
CDQ is determined based on the species composition of the total catch 
of 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. 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.
* * * * *

    6. In Sec. 679.32, paragraphs (c)(1)(i), (c)(2)(i)(A), 
(c)(2)(ii)(A) and (f)(4) are revised to read as follows:


Sec. 679.32  Groundfish and halibut CDQ catch monitoring.

* * * * *
    (c) * * *
    (1) * * *
    (i) Operators of catcher vessels less than 60 ft (18.3 mt) LOA must 
retain all groundfish CDQ, halibut CDQ, and salmon PSQ until it is 
delivered to a processor that meets the requirements of paragraph 
(c)(3) or (c)(4) of this section unless discard of the groundfish CDQ 
species is required under other provisions or, in waters within the 
State of Alaska, discard is required by laws of the State of Alaska. 
Operators of catcher vessels using trawl gear must report the at-sea 
discards of halibut PSQ or crab PSQ on the CDQ delivery sheet (see 
Sec. 679.5(n)(1). Operators of catcher vessels using nontrawl gear must 
report the at-sea discards of halibut PSQ on the CDQ delivery report, 
unless exempted from the accounting for halibut PSQ under paragraph (b) 
of this section.
* * * * *
    (2) * * *
    (i) * * *
    (A) Retain all CDQ species and salmon PSQ until they are delivered 
to a processor that meets the requirements of paragraph (c)(3) or 
(c)(4) of this section unless discard of the groundfish CDQ species is 
required under other provisions or, in waters within the State of 
Alaska, discard is required by laws of the State of Alaska.
* * * * *
    (ii) * * *
    (A) Option 1: Retain all CDQ species. Retain all CDQ species until 
they are delivered to a processor that meets the requirements of 
paragraph (c)(3) or (c)(4) of this section unless discard of the 
groundfish CDQ or PSQ species is required under other provisions or, in 
waters within the State of Alaska, discard is required by laws of the 
State

[[Page 49914]]

of Alaska. Have all of the halibut PSQ counted by the CDQ observer and 
sampled for length or average weight; or
* * * * *
    (f) * * *
    (4) Groundfish CDQ retention requirements. Operators of vessels 
less than 60 ft (18.3 m) LOA are not required to retain and deliver 
groundfish CDQ species while halibut CDQ fishing, unless required to do 
so elsewhere in this part. Operators of vessels equal to or greater 
than 60 ft (18.3 m) LOA are required to comply with all groundfish CDQ 
and PSQ catch accounting requirements in paragraphs (b) through (d) of 
this section, including the retention of all groundfish CDQ, if option 
1 under Sec. 679.32(c)(2)(ii) is selected in the CDP. CDQ species may 
be discarded when required by other provisions or, in waters within the 
State of Alaska, when discard is required by laws of the State of 
Alaska.
* * * * *
[FR Doc. 01-24518 Filed 9-28-01; 8:45 am]
BILLING CODE 3510-22-S