[Federal Register Volume 67, Number 72 (Monday, April 15, 2002)]
[Rules and Regulations]
[Pages 18129-18140]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-8961]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 010914227-2063-02; I.D. 080201E]
RIN 0648-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: Final rule.

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SUMMARY: NMFS issues a final 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 hook-and-line and pot 
gears in the Bering Sea and Aleutian Islands Area (BSAI). This will be 
accomplished by issuing endorsements for exclusive participation in the 
hook-and-line and pot gear BSAI Pacific cod fisheries by long-time 
participants. This final rule also adds a new definition for directed 
fishing for Community Development Quota (CDQ) fisheries and clarifies 
discard provisions for the individual fishing quota (IFQ) and CDQ 
fisheries. 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: Effective May 15, 2002, except for Sec. 679.4(k)(9)(i), which 
will be effective on January 1, 2003.

ADDRESSES: Copies of the Environmental Assessment/Regulatory Impact 
Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) and the 
Final Regulatory Flexibility Analysis (FRFA) are available from the 
Alaska Region, NMFS, P.O. Box 21668, Juneau, AK, 99802, Attn: Lori 
Gravel-Durall, or Room 413-1 on the fourth floor of the Federal 
Building, 709 West 9th Street, Juneau, AK.

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

SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fisheries in the 
exclusive economic zone in the BSAI off Alaska under the Fishery 
Management

[[Page 18130]]

Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands 
Area (FMP). The North Pacific Fishery Management Council (Council) 
prepared the FMP under the authority of the Magnuson-Stevens Act. 
Regulations governing U.S. fisheries and implementing the FMP appear at 
50 CFR parts 600 and 679.

Background of Amendment 67

    Amendment 67 to the FMP was recommended by the Council in April 
2000 to address the concern that fishermen who have made significant 
long-term investments and have long catch histories in the hook-and-
line or pot gear BSAI Pacific cod fisheries needed protection from 
fishermen who have no or limited history in those fisheries. This 
concern increased after implementation of Amendment 64 to the FMP, 
which divided a portion of the BSAI Pacific cod total allowable catch 
(TAC) among the hook-and-line and pot gear sectors (i.e., catcher 
vessels and catcher/processors). The specific provisions of that action 
can be found in the final rule implementing Amendment 64 (65 FR 51553, 
August 24, 2000).
    Amendment 67 is a continuation of the License Limitation Program 
(LLP). The LLP was recommended by the Council and approved and 
implemented by NMFS to address concerns of excess fishing capacity in 
the groundfish and crab fisheries off Alaska. More information on the 
purpose and objectives of the LLP can be found in the final rule 
implementing the original provisions of the LLP (63 FR 52642, October 
1, 1998).
    A proposed rule to implement Amendment 67 was published in the 
Federal Register with a 45-day public comment period (66 FR 49908, 
October 1, 2001). NMFS received 9 letters of comment on the proposed 
rule which are summarized and responded to in the Response to Comments, 
below.
    Amendment 67 establishes Pacific cod species endorsements and the 
qualifications for those endorsements. A Pacific cod endorsement, 
specific to the non-trawl gear used by the vessel, must be specified on 
a person's LLP groundfish license for that person to participate in the 
hook-and-line or pot gear BSAI Pacific cod fisheries. The following 
provides summary information on general and specific eligibility 
requirements for Pacific cod endorsements and will be the Small Entity 
Compliance Guide for purposes of the Regulatory Flexibility Act (as 
amended by the Small Business Regulatory Enforcement Fairness Act). 
More information on the eligibility requirements, including the 
rationale for specific provisions, is in the proposed rule implementing 
Amendment 67 (66 FR 49908, October 1, 2001).

Small Entity Compliance Guide for Amendment 67

General Information on Eligibility

    1. All qualifying amounts are in round weight.
    2. Pacific cod that was harvested for the commercial bait fishery 
and properly documented will be applied toward the qualifying amount.
    3. Pacific cod harvested for personal use bait will not be applied 
toward the qualifying amount.
    4. Pacific cod harvested in the Bering Sea Subarea or the Aleutian 
Islands Subarea will be applied toward the qualifying amount. However, 
a license holder will be authorized to participate only in an area for 
which he or she has an area endorsement.
    5. Pacific cod that was caught and discarded will not be applied 
toward the qualifying amount.

Specific Information on Eligibility

    1. To receive a hook-and-line gear Pacific cod endorsement for use 
on a catcher/processor, a license holder must have:
    A. An LLP groundfish license with a catcher/processor designation;
    B. Harvested at least 270 metric tons (mt) round weight of Pacific 
cod with hook-and-line gear in the directed commercial BSAI Pacific cod 
fishery in any one of the years 1996, 1997, 1998, or 1999; and
    C. Harvested the qualifying amount on the vessel that was used as 
the basis of eligibility for the license holder's LLP groundfish 
license.
    2. To receive a pot gear Pacific cod endorsement for use on a 
catcher/processor, a license holder must have:
    A. An LLP groundfish license with a catcher/processor designation;
    B. Harvested at least 300,000 pounds (lb) (136 mt) round weight of 
Pacific cod with pot gear in the directed commercial BSAI Pacific cod 
fishery in each of any two of the years 1995, 1996, 1997, or 1998; and
    C. Harvested the qualifying amount on the vessel that was used as 
the basis of eligibility for the license holder's LLP groundfish 
license.
    3. To receive a hook-and-line gear Pacific cod endorsement for use 
on a catcher vessel, a license holder must have:
    A. An LLP groundfish license with a catcher vessel designation;
    B. Harvested at least 7.5 mt round weight of Pacific cod with hook-
and-line gear or jig gear in the directed commercial BSAI Pacific cod 
fishery in any one of the years 1995, 1996, 1997, 1998, or 1999; and
    C. Harvested the qualifying amount on the vessel that was used as 
the basis of eligibility for the license holder's LLP groundfish 
license.
    4. To receive a pot gear Pacific cod endorsement for use on a 
catcher vessel, a license holder must have:
    A. An LLP groundfish license with a catcher vessel designation;
    B. 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 two of the years 1995, 1996, 1997, 1998, or 
1999; and
    C. Harvested the qualifying amount on the vessel that was used as 
the basis of eligibility for the license holder's LLP groundfish 
license.

Exemptions to the Pacific Cod Endorsement

    Except as provided 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 gear or 
pot gear, including Pacific cod harvested for the commercial bait 
fishery. Furthermore, the license holder would have to use the specific 
non-trawl gear designated with the Pacific cod endorsement.
    1. Catcher vessels less than 60 ft (18.3 mt) length overall (LOA) 
are exempted from the requirement to have a Pacific cod endorsement.
    2. Vessels exempted from the requirements of the LLP (see 
Sec. 679.4(k)(2)) are exempted from the requirement to have a Pacific 
cod endorsement.
    3. Vessels harvesting Pacific cod for personal use bait are 
exempted from the requirement to have a Pacific cod endorsement.

Other Provisions--Combining Catch Histories

    A license holder can combine the catch history of a vessel that 
sank with the catch history of a replacement vessel to meet eligibility 
requirements if:
    1. The vessel that sank was used as the basis of eligibility for 
the original LLP groundfish license;
    2. That vessel sank after January 1, 1995; and
    3. The sunken vessel was replaced with a vessel by December 31 of 
the year that was two years after the vessel sank.
    This is the only exception to the single catch history (i.e., a 
catch history earned on one vessel) requirement for eligibility.

[[Page 18131]]

Unavoidable Circumstances

    A license holder can receive a Pacific cod endorsement, even if he 
or she does not meet the eligibility requirements, if that license 
holder was prevented from meeting the eligibility requirements by 
unavoidable circumstances. To qualify for a Pacific cod endorsement 
under the unavoidable circumstances provision a license holder must 
demonstrate that:
    1. But for the unavoidable circumstances, he or she could have made 
sufficient landings to meet the requirements for a particular Pacific 
cod endorsement from the vessel that was the basis for eligibility for 
his or her LLP groundfish license;
    2. He or she had the specific intent to use that vessel to conduct 
directed fishing for Pacific cod in the BSAI during the relevant time 
period and that the vessel had the capability to have made harvests 
sufficient to meet the eligibility requirements;
    3. His or her specific intent was thwarted by circumstances that 
were unavoidable, unique to the person or vessel, unforeseen, and 
reasonably unforseeable;
    4. He or she took all reasonable steps to overcome the 
circumstances; and
    5. He or she harvested any amount of Pacific cod in the BSAI with 
non-trawl gear after the vessel that was used as the basis of 
eligibility for the license holder's groundfish license was prevented 
from participating by the unavoidable circumstances but before April 
16, 2000.

Species Endorsements in the 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 will be prohibited from directed fishing for 
Pacific cod CDQ. However, because NMFS regulations do not currently 
define directed fishing for Pacific cod in the CDQ fisheries, a new 
definition and other changes are provided to give effect to the 
Council's recommendation.
    Through the CDQ program, NMFS allocates 10 percent of pollock and 
7.5 percent of the BSAI groundfish, prohibited species, halibut, and 
crab total allowable catch (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 closes directed fishing for that species 
but allows 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 a basis for 
calculating the maximum retainable bycatch (MRB). These regulations 
were implemented because 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 requires that the existing regulations be 
amended as follows: First, revise the definition of directed fishing in 
Sec. 679.2 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 final rule, directed 
fishing for Pacific cod in the CDQ fisheries would be defined following 
the same procedure as the non-CDQ fisheries. Second, allow the use of 
CDQ species as basis species for calculating retainable amounts of 
other CDQ species. This revision is necessary to determine whether a 
vessel is directed fishing for Pacific cod in the CDQ fisheries and, 
therefore, would be required to have a species endorsement. Third, 
allow regulatory discards of Pacific cod by vessels that do not have a 
Pacific cod species endorsement. This revision is necessary so that 
vessel operators who do not have a Pacific cod species endorsement can 
comply with the MRB amounts of Pacific cod.
    This action also clarifies the existing CDQ regulations by 
specifically allowing the regulatory discard of sablefish when their 
retention is prohibited by other regulations.

Changes From the Proposed Rule

    1. New paragraphs (F) and (G) are added at Sec. 679.4(k)(9)(iii). 
These paragraphs clarify eligibility requirements specified in the 
preamble to the proposed rule and recommended by the Council in April 
2000. Paragraph (F) provides that only harvests made from the vessel 
that was used as the basis of eligibility for the license holder's LLP 
groundfish license will count toward eligibility amounts. This 
provision was recommended by the Council to ensure that a person would 
not use more than one vessel's fishing history to qualify for a Pacific 
cod endorsement, except under the combination of landings provision at 
Sec. 679.4(k)(9)(v)(A). Paragraph (G) provides that, except as 
specified at Sec. 679.4(k)(9)(iii)(D), only harvests made in the 
directed fishery for Pacific cod will count toward eligibility amounts. 
This provision is consistent with FMP amendment language provided by 
the Council and approved by NMFS.
    2. Language at Sec. 679.4(k)(9)(v)(B)(4) regarding hardship 
provisions is revised in response to concerns in a comment (see 
Response to Comments). Accordingly, any amount of BSAI Pacific cod 
harvested on a replacement vessel after the vessel that was used as the 
basis of eligibility for a person's groundfish license was prevented 
from participating but before April 16, 2000, will be sufficient to 
meet the requirement for a landing. A person will not be required to 
demonstrate that a landing was made during the endorsement period to be 
considered eligible for a Pacific cod endorsement under the unavoidable 
circumstances provision.
    3. Language at Sec. 679.7 and Sec. 679.20 is revised because the 
new requirements for the CDQ Program under Amendment 67 that were in 
the proposed rule were impacted by an emergency interim rule that 
provided management measures to protect Steller sea lions (67 FR 956, 
January 8, 2002):
    A. The revision of Sec. 679.7(d)(16) supersedes the suspension of 
this paragraph published in the emergency interim rule (67 FR 956, 
January 8, 2002). No changes were made to the language in paragraph 
(d)(16) as proposed. This final rule merely replaces the suspended 
paragraph (d)(16) with an effective paragraph (d)(16);
    B. The revision of Sec. 679.7(d)(23) supersedes the suspension of 
this paragraph published in the emergency interim rule at 67 FR 956, 
January 8, 2002. Language in paragraph (d)(23) was revised to 
specifically indicate the regulatory provision that would prevent 
retention of sablefish. Also, this final rule replaces the suspended 
paragraph (d)(23) with an effective paragraph (d)(23);
    C. Section 679.7(d)(26) is deleted. This paragraph was added by the 
emergency interim rule (67 FR 956, January 8, 2002), to replace the 
suspended paragraph (d)(16). However,

[[Page 18132]]

with the revision of Sec. 679.7(d)(16) in this final rule, paragraph 
(d)(26) is no longer necessary;
    D. The revision of Sec. 679.20(f)(2) supersedes the suspension of 
this paragraph published in the emergency interim rule at 67 FR 956, 
January 8, 2002. No changes were made to the language in paragraph 
(f)(2) as proposed. This final rule merely replaces the suspended 
paragraph (f)(2) with an effective paragraph (f)(2);
    E. The proposed revision to Sec. 679.20(f)(3) is not implemented by 
this final rule. This proposed revision, which revised how directed 
fishing would be determined under the CDQ Program, is not implemented 
because it would conflict with management measures designed to protect 
Steller sea lions and implemented by the emergency interim rule at 67 
FR 956, January 8, 2002; and
    F. Section 679.20(f)(4) is removed. This paragraph was added by the 
emergency interim rule at 67 FR 956, January 8, 2002, to replace the 
suspended paragraph (f)(2). However, with the revision of 
Sec. 679.20(f)(2) in this final rule, paragraph (f)(4) is no longer 
necessary.
    4. Language at Sec. 679.7(f)(8) is revised to clarify the discard 
requirements pursuant to the IFQ Program now that Pacific cod 
endorsements are necessary on a person's LLP groundfish license and a 
person's Federal Fishery Permit to harvest Pacific cod in a directed 
fishery. Currently, IFQ fishermen are prohibited from discarding 
Pacific cod caught when IFQ halibut or IFQ sablefish are on board. The 
revision of Sec. 679.7(f)(8) will specify that IFQ fishermen will need 
to comply with Pacific cod endorsement requirements for the LLP when 
retaining Pacific cod above the retainable amounts authorized for the 
BSAI as specified in Table 11 of this part and Pacific cod endorsement 
requirements for Steller sea lion management measures when retaining 
Pacific cod above the retainable amounts authorized for the BSAI as 
specified in Table 11 of this part and above the retainable amount 
authorized for the GOA as specified in Table 10 of this part.
    5. Language at Sec. 679.32(c)(1)(i), (c)(2)(i)(A), (c)(2)(ii)(A), 
and (f)(4) is revised to clarify retention and discard requirements for 
participants in the CDQ Program now that directed fishing requirements 
apply to the CDQ Program. These revisions specify the paragraphs or 
subparts to which a person must refer to comply with retention or 
discard requirements.

Response to Comments

    NMFS received a total of 23 letters on the decision to approve, 
disapprove, or partially approve Amendment 67 and the proposed rule 
implementing Amendment 67. Of the 14 letters on the decision to 
approve, disapprove, or partially approve Amendment 67, 7 were for 
approval, 4 were for partial approval, and 3 were for disapproval of 
Amendment 67. Of the 9 letters on the proposed rule, 4 were in support, 
4 suggested changes, and 1 was opposed to implementation of Amendment 
67 as proposed.
    NMFS policy prevents partial approval of fishery management plan 
amendments that establish a limited access system, because such an 
action would be tantamount to NMFS developing a limited access system 
without that system first being approved by a majority of the voting 
members of the appropriate fishery management council, an action 
prohibited by 16 U.S.C. 1854(c)(3) (Sec. 304(c)(3) of the Magnuson-
Stevens Act). Therefore, the 4 letters that were received on Amendment 
67 that recommended partial approval were considered letters for 
disapproval.
    The letters that recommended partial approval and disapproval of 
Amendment 67 (7 letters), or that were opposed to or suggested changes 
to the proposed rule implementing Amendment 67 (5 letters), had 
comments in five main areas of concern: (1) General comments, (2) 
comments on the national standards at 16 U.S.C. 1851(a) (Sec. 301(a) of 
the Magnuson-Stevens Act), (3) comments on the analytical requirements 
of the National Environmental Policy Act, (4) comments on the 
analytical requirements of the Regulatory Flexibility Act and E.O. 
12866, and (5) comments on the hardship and ``grandfather'' provisions. 
These comments are organized into those five topic areas for response 
by NMFS.

General Comments

    Comment 1: Approval of Amendment 67 was based on inaccurate 
information. Examples cited were: (1) Use of the 1998 Stock Assessment 
and Fishery Evaluation Report (SAFE); (2) overstating the number of 
potential participants and thereby overstating the magnitude of the 
problem; and (3) deciding on an alternative while other analytical 
documents were being developed.
    Response: NMFS disagrees that inaccurate information was used for 
approval of Amendment 67. First, the EA/RIR/IRFA for Amendment 67 was 
before the Council for initial review in April 1999. The 1998 SAFE 
Report was the most recent biological document available during the 
development of the EA/RIR/IRFA. The data presented in the EA/RIR/IRFA 
from the 1998 SAFE Report included information about the Eastern Bering 
Sea Pacific cod biomass and recruitment from 1978 through 1999; BSAI 
allowable biological catch (ABC), total allowable catch (TAC), and 
actual catch from 1980 through 1999; and projected biomass and ABC for 
Pacific cod age 3+ in the BSAI from 2000 through 2002. The Council was 
able to consider general trends and projections of the relevant Pacific 
cod biological data for over a 20-year time period. Amendment 67, as 
explained in the Problem Statement for the EA/RIR/IRFA, was recommended 
as an action because the Pacific cod resource in the BSAI was fully 
utilized. Concerns about declining ABC and TAC for Pacific cod was one 
of several reasons to consider action; other reasons included increased 
market value of cod products and increased competition from 
participants from other fisheries.
    Second, the Council's consideration of the approximately 365 
catcher vessels that appeared to qualify for a non-trawl gear 
designation did not overstate the problem. (Note: the exact number of 
catcher vessels with a non-trawl gear designation was not available at 
the time of Council consideration because the gear designation 
requirement was not effective until January 1, 2000). Without the 
Pacific cod endorsement requirement of Amendment 67, all of the 
approximately 365 vessels have the potential to participate in the BSAI 
Pacific cod hook-and-line and pot gear fisheries. The number of vessels 
suggested by one comment as a more accurate number to consider, 119 
vessels, was the highest number of catcher vessels that participated in 
the BSAI Pacific cod fishery using pot gear. This occurred in 1995. The 
comment further indicated that recency requirements implemented in 2000 
would make the vessel number of 119 more accurate than 365. This is not 
the case. Recency requirements that were implemented in 2000 only 
affected a person's LLP crab species license; the number of LLP 
groundfish licenses were not reduced by recency requirements. 
Therefore, the approximately 365 vessels was the appropriate number to 
use when considering potential impacts of the no action alternative.
    Third, the Council was cognizant that other actions and analyses 
were ongoing when it made its recommendation for Amendment 67. The 
Council and NMFS, when deciding whether to

[[Page 18133]]

approve, disapprove, or partially disapprove the Council's 
recommendation, must use the best scientific information available. The 
guidelines to the national standards at Sec. 300.315(b) states that 
``[t]he fact that scientific information concerning a fishery is 
incomplete does not prevent the preparation and implementation of an 
FMP.'' Further, paragraph (b)(2) of Sec. 300.315 states:

    FMPs must take into account the best scientific information 
available at the time of preparation. Between initial drafting of an 
FMP and its submission for final review, new information often 
becomes available. This information should be incorporated into the 
final FMP where practicable; but it is unnecessary to start the FMP 
process over again, unless the information indicates that drastic 
changes have occurred in the fishery that might require revision of 
the management objectives or measures.

    As indicated in this provision, the Council is not required to 
obtain perfect information before making a recommendation, nor is it 
prevented from making a recommendation until better information is 
available. If that were the case, the Council could rarely act. The 
Council is in the best position to determine whether the absence of 
information, or new information, provides a basis for a revision of 
management objectives or measures. Although this provision refers only 
to FMPs, NMFS believes it is reasonable to apply the same 
considerations to FMP amendments.
    Comment 2: The comment period for approval, disapproval, or partial 
approval of Amendment 67 ended prior to the ending of the comment 
period for the proposed rule to implement Amendment 67. This means that 
a person could have provided a comment to the proposed rule that would 
have not been considered for the decision to approve, disapprove, or 
partially approve Amendment 67.
    Response: The comment period to approve, disapprove, or partially 
approve FMP amendments, and the comment period for a proposed rule to 
implement an FMP amendment can run concurrently. However, the two 
comment periods have different purposes. The 60-day comment period for 
Amendment 67 (see Notice of Availability of Amendment 67, 66 FR 42833, 
Aug. 15, 2001) was intended to allow the public to comment on whether 
Amendment 67 should be approved, disapproved, or partially approved. 
The 45-day comment period for the proposed rule implementing Amendment 
67 (see Proposed Rule Implementing Amendment 67, 66 FR 49908, Oct. 1, 
2001) was intended to allow the public to comment on how NMFS planned 
to implement Amendment 67, if Amendment 67 was approved. The comment 
periods provided for Amendment 67 and the proposed rule to implement 
Amendment 67 are consistent with the requirements of the Magnuson-
Stevens Act and the Administrative Procedure Act.
    Comment 3: Amendment 67 made a disproportionate allocation to 
vessels that also qualified to fish for pollock under the American 
Fisheries Act (AFA).
    Response: The EA/RIR/IRFA included an analysis of the dependence of 
fishermen on the BSAI Pacific cod fishery. These alternatives were 
evaluated based on the requirements set forth at 16 U.S.C. 1853(b)(6) 
for limited access systems, including the capability for vessels to be 
used in other fisheries. Persons that met the eligibility criteria the 
Council chose to represent dependence on the fishery received a Pacific 
cod endorsement, notwithstanding other permits that person may have 
held. It is noteworthy that vessels use trawl gear to fish for pollock, 
a different gear than can be used with a Pacific cod endorsement, i.e., 
hook-and-line gear or pot gear. Furthermore, the comment only asserted 
that a disproportionate allocation went to vessels that also qualify to 
fish pollock under the AFA and did not provide any data to verify that 
assertion.
    Comment 4: Amendment 67 would have negative economic impacts on CDQ 
groups that depend on vessels to harvest their allocation of Pacific 
cod if those vessels do not receive Pacific cod endorsements.
    Response: The Council evaluated the impacts of implementing Pacific 
cod endorsements on all small entities, including CDQ groups, and 
determined that the recommended alternative best addressed the problem 
statement for this action. The EA/RIR/IRFA at section 4.5.4 (page 88) 
states:

    The current License Limitation Program does not treat CDQ 
vessels any differently than non-CDQ vessels. A CDQ vessel must have 
an LLP license to fish groundfish in the BS and/or AI using fixed 
gear. The Council has indicated that CDQ vessels will not be 
exempted from the proposed P[acific] cod endorsements; those CDQ 
vessels harvesting BSAI P[acific] cod with fixed gear will need to 
hold a P[acific] cod endorsement in addition to their LLP area 
endorsement to fish either CDQ P[acific] cod or P[acific] cod from 
the directed fixed gear fishery.

Comments on the National Standards in the Magnuson-Stevens Act

    Comment 1: None of the alternatives considered in the EA/RIR/IRFA 
has an impact under national standard 1, the prevention of overfishing. 
Thus, the prevention of overfishing provides no rationale for the 
proposed action.
    Response: The national standards are statutory principles that must 
be followed when developing a proposed action (see Sec. 600.305(a)(3)) 
but they are not necessarily the rationale or objective of a proposed 
action. In other words, a proposed action does not have to be based on 
national standards to be valid; instead it must state a management 
objective that is consistent with all the national standards to be 
valid. For example, Amendment 67 was proposed to establish management 
measures that would limit the entry of persons who have not 
participated in, or who have not participated at a level that 
constituted significant dependence on, the BSAI Pacific cod hook-and-
line and pot gear fisheries. The objective of Amendment 67 is to 
conserve Pacific cod resources through the reduction of 
overcapitalization, which leads to waste and inefficiencies in the use 
of resources.
    Comment 2: All of the alternatives to Amendment 67 that NMFS 
considered, including the status quo, used the same information. 
National standard 2 requires that management measures are to be based 
upon the best scientific information available. Use of best available 
information, therefore, does not establish a preferred alternative, and 
thus provides no rationale for Amendment 67. Furthermore, NMFS did not 
use the best scientific information available.
    Response: As explained in Response 1 to Comments on the National 
Standards in the Magnuson-Stevens Act, national standards are statutory 
principles that must be adhered to when developing management measures, 
but they do not necessarily provide a rationale for management 
measures. NMFS agrees that the same data were used when comparing the 
various alternatives. This methodology ensures a fair and objective 
weighting of all alternatives given the data available.
    NMFS disagrees with the comment that the best scientific 
information available was not used in developing Amendment 67. See 
Response 1 to General Comments for further discussion regarding the use 
of best scientific information available to make management decisions.
    Comment 3: None of the alternatives under consideration has an 
impact

[[Page 18134]]

under national standard 3. In other words, improved management under 
national standard 3 provides no rationale for approving Amendment 67.
    Response: Currently, the Pacific cod stock is managed as a unit 
throughout its range, i.e., ABCs and TACs are developed for the Bering 
Sea and Aleutian Islands Management Area. Amendment 67 does not affect 
that management. As for national standard 3 not providing a rationale 
for Amendment 67, see Response 1 to Comments on the National Standards 
in the Magnuson-Stevens Act.
    Comment 4: There is no support for the assertion of the fact in the 
EA/RIR/IRFA that the number of vessels expected to qualify under any of 
the alternatives should not allow an individual or entity to acquire an 
excessive share of the fixed gear cod fishery in the BSAI; therefore 
Amendment 67 does not comply with national standard 4.
    Response: The License Limitation Program, of which Amendment 67 is 
a part, limits the number of groundfish licenses that any one person 
can hold to 10 licenses (see Sec. 679.7(i)(1)(i)). A person is defined 
at Sec. 679.2 as ``any individual (whether or not a citizen of the 
United States), any corporation, partnership, association, or other 
entity (whether or not organized, or existing under the laws of any 
state), and any Federal, state, local, or foreign government or any 
entity of any such aforementioned governments.'' (Note: the definition 
of person was revised after the determination was made on Amendment 67; 
however, the definition of person included individuals, corporations, 
partnerships, and other entities before its revision). It was this 
limit and definition that was the basis for the determination that an 
excessive share of fishing privileges would not be acquired.
    Comment 5: The standards used to determine eligibility for a 
Pacific cod permit were not fair and equitable, in violation of 
national standard 4, because different requirements were used for 
different methods of catching Pacific cod.
    Response: The Council, when developing the eligibility criteria for 
Pacific cod endorsements, considered the historical practices in, and 
dependence on, the BSAI Pacific cod hook-and-line and pot gear 
fisheries, along with present participation patterns. Table 3.1 of the 
EA/RIR/IRFA (pg. 42) provided information on participation patterns in 
the BSAI Pacific cod hook-and-line and pot gear fisheries. Numbers of 
vessels that participated and the percentage of the Pacific cod TAC 
harvested by those vessels were provided by gear and processing 
capability sectors from 1992 through 1999. The Council reviewed the 
distribution of catch (section 3.1.2 of the EA/RIR/IRFA) and vessel 
participation patterns (tables 3.3 through 3.8 of the EA/RIR/IRFA) and 
compared these data to determine the minimum and maximum numbers of 
participants among the various sectors. This comparison also helped 
illustrate the impact different eligibility periods would have on the 
number of eligible persons.
    Cost data were not available to the Council, so it used harvest 
thresholds and average gross revenues as a proxy for traditional 
methods to determine the economics of the fishery. Various harvest 
thresholds were reviewed and a comparison was made on how many vessels 
achieved these different harvest thresholds (tables E.1 through E.4 of 
the EA/RIR/IRFA for pot vessels and tables 4.2, 4.3, 4.5, and 4.6 of 
the EA/RIR/IRFA for hook-and-line vessels). The Council, by comparing 
the change in the number of vessels as the level of harvest thresholds 
were increased, was able to surmise that certain levels of harvest 
thresholds correlated with consistent participation. Consistent 
participation, the Council determined, was a factor to consider for 
economic dependence. In other words, a person who had economic 
dependence on a fishery would have most likely participated more than 
one year.
    The Council then compared average revenues of vessels per sector 
(section 4.2.2 of the EA/RIR/IRFA). This information allowed the 
Council to determine the potential decreases to average revenues for 
vessels at different levels of harvest thresholds for each sector, 
i.e., the more vessels participating, the less each vessel would make 
on average. Each sector (catcher vessels using hook-and-line gear, 
catcher vessels using pot gear, catcher/processor vessels using hook-
and-line gear, and catcher/processor vessels using pot gear) was 
considered separately because changes in the qualifying years and 
minimum harvest thresholds had different impacts on different sectors. 
The Council, through Amendment 67, was trying to achieve a level of 
participation that reflected historical participation patterns for each 
of the sectors.
    The Council used all of this information for each sector to 
determine what eligibility requirements best reflected its 
understanding of the historical fishing practices and dependence of the 
BSAI Pacific cod hook-and-line and pot gear fisheries. The Council 
compared changes in average revenues based on changes in the number of 
eligible persons and used harvest levels and consistency of 
participation over time as a proxy for economic dependence. Eligibility 
requirements for each sector were chosen so that continued 
participation for economically dependent vessels was assured.
    For some sectors, such as catcher/processor vessels using hook-and-
line gear, varying the years of participation and the harvest 
thresholds had little impact on the number of qualifying vessels. This 
indicated to the Council that catcher/processor vessels using hook-and-
line gear, as a sector, had a long and consistent history. This was an 
important consideration when the Council chose its eligibility 
requirements for this sector. On the other hand, catcher vessels using 
pot gear had significant variance depending on which years and harvest 
thresholds were used. This indicated to the Council that catcher 
vessels using pot gear, when considered as a sector, did not have a 
long and consistent history. Therefore, for this sector, the Council 
chose eligibility criteria that would decrease the number of 
participants. This decrease was intended to ensure that vessels in the 
sector that had historical and consistent participation based on the 
Council's analysis of the available data would be allowed to continue 
to participate at a level that reflected what the Council determined to 
be economic dependence.
    Comment 6: Amendment 67 is predominately an economic allocation, in 
violation of national standard 5.
    Response: National standard 5 provides that ``[c]onservation and 
management measures shall, where practicable, consider efficiency in 
the utilization of fishery resources, except that no such measure shall 
have economic allocation as its sole purpose.'' Amendment 67, as a 
limited access action, is designed to limit units of effort in the BSAI 
Pacific cod hook-and-line and pot gear fisheries. The purpose of this 
limitation is to conserve Pacific cod resources through the reduction 
of overcapitalization, which leads to waste and inefficiencies in the 
use of resources. This purpose is accomplished partly through the 
mechanism of allocation. A secondary effect is the improvement of net 
economic return to persons who are eligible to participate. Although 
national standard 5 prohibits a measure that has economic allocation as 
its sole purpose, it does not prohibit actions that result in an 
economic allocation.

[[Page 18135]]

    A limited access system, by design, limits participation in the 
affected fishery. Marginal participants and future potential 
participants often are precluded from the limited access fishery, 
making most limited access systems an economic allocation between those 
that are found eligible and those that are not. However, the purposes 
of Amendment 67, and the LLP, go beyond mere economic allocation. As 
stated above, the LLP was designed to provide stability in the fishing 
industry--through limits on capitalization and capacity--while the 
Council took action to further rationalize the fisheries under its 
authority.
    Overcapitalization, excess harvest capacity, and economic waste in 
a fishery are economic inefficiencies. The LLP and Amendment 67 were 
designed as steps toward reducing those inefficiencies while enhancing 
the ability for NMFS to manage the fishery to achieve optimum yield. 
Therefore, although economic allocation is one of the results of 
Amendment 67, it is not its sole purpose.
    Comment 7: Amendment 67 does not comport with national standard 6 
because it does not allow fishermen to respond to contingencies and 
variations in stocks and efforts and excludes on purely economic 
grounds many fishermen who are thereby forced to rely more on 
overfished crab stocks.
    Response: The comment misinterprets the meaning of national 
standard 6. National standard 6 provides that ``[c]onservation and 
management measures shall take into account and allow for variations 
among, and contingencies in, fisheries, fishery resources, and 
catches.'' The guidelines to national standard 6 at Sec. 600.335(b) 
provide that ``[e]ach fishery exhibits unique uncertainties. The phrase 
``conservation and management'' implies the wise use of fishery 
resources through a management regime that includes protection against 
these uncertainties.'' National standard 6 is not intended to require 
that management measures provide a means for fishermen to respond to 
contingencies and variations, but is intended to require that 
management measures ensure that variations and contingencies in 
fisheries, fishery resources, and catches do not cause conservation 
problems.
    Review of the descriptions of variations and contingencies and 
examples to guard against those variations and contingencies found in 
Sec. 600.335 indicate that the resource, and not the resource users, is 
the primary concern of national standard 6.
    Comment 8: Amendment 67 fails to meet the legal requirements of 
national standard 7 because the preferred alternative is not compared 
to the status quo.
    Response: Throughout the EA/RIR/IRFA the preferred alternative with 
its several options for each sector is compared to the status quo 
alternative. Ex-vessel revenue values are compared with expected 
revenues under the preferred alternative for each sector, and average 
gross revenues per vessel are provided for each alternative.
    The EA/RIR/IRFA does not contain qualitative cost/benefit analysis. 
The authors cite the unavailability of cost data for the harvesting and 
processing sectors as the reason for its absence. However, guidelines 
for national standard 7 at Sec. 600.340(d) provide that ``[i]f 
quantitative estimates are not possible, qualitative estimates will 
suffice.''
    Comment 9: The EA/RIR/IRFA discussion in section 6.1 does not 
adequately analyze the impacts of Amendment 67 on fishing communities 
in violation of national standard 8.
    Response: Section 6.1 of the EA/RIR/IRFA summarizes information 
provided in chapter 3 of the EA/RIR/IRFA. The following data were used 
to make determinations on Amendment 67 and evaluate potential impacts: 
(1) Harvest levels by vessels in each sector; (2) price and revenues 
resulting from that harvest; (3) locations of deliveries for processing 
(catcher vessels) or first wholesale (catcher/processor vessels); and 
(4) home port of vessels engaged in the BSAI Pacific cod hook-and-line 
and pot gear fisheries. The analysts indicated in the EA/RIR/IRFA that 
certain data could not be provided in detail due to confidentiality 
restrictions. However, the data provided were summarized qualitatively 
for the Council. This provided the Council with information on the 
relative importance of the Pacific cod fisheries on fishing 
communities.
    In general, the socioeconomic impacts of Amendment 67 are more 
considerable to the individual operation than to fishing communities 
because the value of Pacific cod harvested with hook-and-line and pot 
gear in the BSAI is small in comparison to the value of other 
groundfish and crab species harvested. Also, although some operations 
will be eliminated from the hook-and-line and pot gear BSAI Pacific cod 
fisheries, these eliminations are dispersed and do not unduly impact 
particular communities over others.
    Many of the coastal communities in Alaska and the Pacific Northwest 
participate in the crab and the groundfish fisheries as fishing vessel 
ports and as home to fisheries processors and fisheries support 
businesses. By protecting long-term participants, Amendment 67 also 
protects the fishing communities that are home ports, processing 
centers, and the location of support businesses for these long-term 
participants.
    Comment 10: National standard 9 provides that ``[c]onservation and 
management measures shall, to the extent practicable, (A) minimize 
bycatch and (B) to the extent bycatch cannot be avoided, minimize the 
mortality of such bycatch.'' The EA/RIR/IRFA provides no support or 
rationale for Amendment 67 based on this national standard.
    Response: Bycatch information is provided in section 3.6 of the EA/
RIR/IRFA. The specific gears in the BSAI Pacific cod hook-and-line and 
pot gear fisheries have different bycatch rates for different species. 
For example, hook-and-line gear takes more halibut as bycatch than pot 
gear. The converse is true for crab, with pot gear taking more than 
hook-and-line gear. The analysis concludes that bycatch rates are low 
overall in the Pacific cod hook-and-line and pot gear fisheries 
compared to other fisheries and that such rates will only improve with 
further reductions in the ``race for fish'' through limited access 
measures. The ``race for fish'' is a term used to describe what occurs 
when too many vessels are fishing for a limited resource. Amendment 67 
is a limited access system designed to reduce vessel numbers so that 
the ``race for fish'' is reduced or eliminated. Also, national standard 
9 is not the rationale for Amendment 67. See Response 1 to ``Comments 
on the National Standards in the Magnuson-Stevens Act'' for a 
discussion on the objectives of Amendment 67 and the purposes of the 
national standards.
    Comment 11: The EA/RIR/IRFA provides no support or rationale for 
Amendment 67 under national standard 10, which provides that 
``[c]onservation and management measures shall, to the extent 
practicable, promote the safety of human life at sea.''
    Response: National standard 10 is not the rationale for Amendment 
67. See Response 1 to Comments on the ``National Standards in the 
Magnuson-Stevens Act'' for a discussion on the objectives of Amendment 
67 and the purposes of the national standards. However, to the extent 
that Amendment 67 reduces the ``race for fish'' through limited access 
measures, it satisfies the objectives set by national standard 10.
    This is illustrated through the review of Senator Murray's 
statement on behalf

[[Page 18136]]

of national standard 10 (Cong. Rec., Sept. 18, 1996 at S10818):

    [T]his race for fish creates serious considerations in many 
fisheries. Under this race, fishers feel compelled to keep fishing 
even when the weather or conditions of the vessel or health of the 
captain or crew would suggest otherwise. Unless fishery management 
plans provide opportunities and incentives for fishers to sit out 
storms and return to port for repairs or medical attention, lives 
will continue to be lost.

Comments on National Environmental Policy Act (NEPA) Compliance

    Comment 1: The Council should have prepared an Environmental Impact 
Statement (EIS) for Amendment 67.
    Response: An EIS must be prepared for major Federal actions that 
would result in a significant impact on the human environment. For some 
Federal actions, an agency moves directly to an EIS. Alternatively, a 
method to determine whether a Federal action meets the level of 
significance necessary to require an EIS is through the development and 
review of an Environmental Assessment (EA). An EA must include a brief 
discussion of the need for the proposal, the alternative considered, 
the environmental impacts of the proposed action and the alternatives, 
and a list of document preparers. Based on an analysis of the relevant 
considerations in the EA, a determination is made whether an EIS must 
be prepared, or if a finding of no significant impact (FONSI) can be 
issued.
    A FONSI was issued for Amendment 67. The FONSI was based on the 
following determinations: (1) Amendment 67 would not change the TAC for 
Pacific cod, i.e., no changes to the impact on Pacific cod stocks; (2) 
Amendment 67 would not change the relative amounts of Pacific cod that 
would be harvested by the hook-and-line and pot gear sectors (gear 
allocations), resulting in no net gain in bycatch amounts, i.e., no 
changes to the impact on other groundfish and crab stocks; (3) 
Amendment 67 would not change overall location of the fishery, i.e., no 
increase in habitat impacts; and (4) Amendment 67 would not change the 
overall effort on, or the total catch of, any species, i.e, no changes 
in the biodiversity of the affected ecosystem. Based on those 
determinations, NMFS concluded that a FONSI, rather than development of 
an EIS, was appropriate.
    The EA portion of the EA/RIR/IRFA also included an analysis of 
endangered and threatened species pursuant to the Endangered Species 
Act and potential impacts to marine mammals pursuant to the Marine 
Mammal Protection Act.
    Comment 2: The EA/RIR/IRFA did not consider indirect effects of 
Amendment 67 or the cumulative effects that would result from the 
incremental impact of Amendment 67 when added to past, present, and 
reasonably foreseeable future actions.
    Response: Direct effects are effects caused by the alternatives and 
occur at the same time and place as an alternative. For example, the 
reduction in participants and impacts on Pacific cod stocks are direct 
effects of the preferred alternative for Amendment 67 because they 
directly result from the action taken. Indirect effects are reasonably 
foreseeable effects caused by the alternatives, but that occur later in 
time or that are further removed from an alternative. For example, 
bycatch impacts are indirect effects of the preferred alternative for 
Amendment 67 because they are further removed, i.e., indirectly result, 
from the action taken. Cumulative effects are effects that contribute 
to incremental impacts to the human environment when added to the 
effects of past, present, and reasonably foreseeable future actions. 
For example, impacts to essential fish habitat (EFH) are cumulative 
effects because they must be considered along with other actions that 
affect the same area because of the overlapping nature of EFH for 
different fish species. All of the examples were evaluated in the EA/
RIR/IRFA for Amendment 67.

Comments on Regulatory Flexibility Act (RFA) and Executive Order 
12866 Compliance

    Comment 1: The impacts of Amendment 67 were not analyzed pursuant 
to the Regulatory Flexibility Act.
    Response: Section 6.3 of the EA/RIR/IRFA is the Initial Regulatory 
Flexibility Analysis (IRFA). Section 6.3 outlines the issues that an 
IRFA is required to address and proceeds to address those issues. This 
includes the estimated number of affected entities that are considered 
small entities for this action (355 catcher vessels, 67 catcher/
processors, 5 shore-based processors, 6 communities where shore-based 
processors are located, and most of the communities where vessels are 
home-ported). Also included are the measures taken to reduce the 
impacts on small entities (excluding catcher vessels less than 60 ft 
(18.3 m) LOA from the requirement to have a Pacific cod endorsement and 
allowing catcher vessels of any length to use Pacific cod caught with 
jig gear for eligibility amounts). In section 6.3.9 of the EA/RIR/IRFA 
the IRFA concludes that:

    Most persons recently participating in the fishery impacted by 
the proposed rule are small entities, as this term is defined under 
the RFA. The ownership, affiliation, and contractual characteristics 
of vessels operating in the fishery have not been analyzed to 
determine if they are independently owned and operated or linked to 
a larger parent company. Furthermore, because NMFS cannot quantify 
the exact number of small entities that may be affected by this 
action, or quantify the magnitude of those potential effects, NMFS 
cannot make a definitive finding regarding the economic impact of 
this rule. However, because the proposed action(s) would result in 
``freezing'' the fleet sizes to those that have participated in the 
recent past, impacts would be expected to be minimal relative to the 
No Action alternative. Again, this assumes that vessels would 
participate in the fisheries they have in the past. Estimates of 
such a potential change in the absence of a limited entry program 
cannot be made, though indications are that given the current status 
of the opilio stocks, the number of pot vessels participating in the 
cod fishery would increase. In that case, a number of small entities 
could be adversely impacted by losing access to the BSAI cod 
fishery, though the magnitude of that impact cannot be determined. 
The adverse impacts to those vessels would be offset by other small 
entities not having their share of the cod harvest eroded by new 
entrants into the fishery. The measures discussed above as part of 
the preferred alternative are intended to protect small entities 
within the fishery, and to allow for new entry and flexibility in 
the 60' pot and longline catcher vessel fleets.

    As the foregoing indicates, the impacts of Amendment 67 were 
analyzed pursuant to the RFA given the data available to NMFS.
    Comment 2: A reasoned determination that the benefits of Amendment 
67 justify its costs was not performed pursuant to Executive Order 
12866.
    Response: Section 4.0 of the EA/RIR/IRFA is the Regulatory Impact 
Review (RIR), which responds in part to the analytical requirements of 
Executive Order 12866. The RIR provides details on the BSAI Pacific cod 
fisheries, including current fleet, description of the alternatives, 
impact of the alternatives on the current fleet sector by sector 
(vessels projected to qualify under the various options), average first 
wholesale revenues for catcher/processor vessels, average ex-vessel 
values for catcher vessels, other fishing opportunities, and the 
relationship between the alternatives and the Improved Retention/
Improved Utilization Program. Further information to respond to the 
analytical requirements of Executive Order 12866 can be found in 
section 3.0, Historical Fixed Gear Pacific Cod Fishery

[[Page 18137]]

Information, and in section 5.0, Council's Preferred Alternative.
    These three sections, along with the rest of the EA/RIR/IRFA, were 
used to determine that the costs associated with Amendment 67 were 
justified by the benefits.

Comment on the Hardship and ``Grandfather'' Provisions

    Comment: The hardship provision in the proposed rule implementing 
Amendment 67 is inconsistent with Council intent and other license 
limitation hardship provisions and a further exemption to the 
eligibility requirements should be provided notwithstanding the 
Council's motion (i.e., a ``grandfather'' provision for purchased 
vessels).
    Response: NMFS disagrees that the hardship provision in the 
proposed rule was inconsistent with Council intent and other hardship 
provisions under the LLP. The North Pacific Fishery Management Council 
News and Notes, April 2000 (April 2000 Newsletter), contained the 
Council's action on Amendment 67. The following is taken directly from 
that document under the heading ``Other Issues.''

    Grandfather provisions: The Council voted not to include the 
grandfather provision for catcher processor vessels that were 
purchased between July 1, 1997, and December 31, 1998. The Council 
approved the Advisory Panel recommendation that vessels that sank 
after January 1, 1995, would be allowed to combine the catch history 
of the vessel that sank with the history of the replacement vessel, 
as long as: (1) The sunken vessel was LLP qualified, (2) A sunken 
vessel is replaced with a qualified replacement vessel within the 
normal time allowed by the IRS, and (3) Owner of the replacement 
vessel after combining catch histories must meet the qualifying 
criteria for that gear sector. (Emphasis in the original).

    There is no further discussion of this decision in the April 2000 
Newsletter. However, the Council did discuss both ``grandfather'' 
provisions at length during its deliberations and, as indicated above, 
voted to adopt the second ``grandfather'' provision (i.e., for sunken 
vessels) and not the first ``grandfather'' provision (i.e., for 
purchased vessels). A fundamental difference is apparent between these 
two provisions. The ``grandfather'' provision recommended by the 
Council allows a person to combine the history of one vessel with the 
history of another vessel to meet the qualifying criteria if special 
circumstances exist (i.e., a vessel sank and was replaced). However, 
the person must meet the qualifying criteria to receive a Pacific cod 
endorsement. On the other hand, the ``grandfather'' provision reviewed 
by the Council but not recommended for approval would have totally 
exempted a vessel from the qualifying criteria.
    The Council also recommended a hardship provision that was designed 
to assist applicants to achieve eligibility if they were prevented from 
meeting all the eligibility requirements by circumstances beyond their 
control. However, a person must demonstrate that they intended to 
participate during the eligibility period at a level sufficient to meet 
the eligibility criteria. The commonality between the recommended 
``grandfather'' provision and the hardship provision is the importance 
of the eligibility criteria. To benefit from these provisions, a person 
would had to have met, or intended to meet, the eligibility criteria to 
be found eligible. The ``grandfather'' provision that the Council 
reviewed and did not recommend had no such requirement; a person would 
be found eligible based on ``reliance'' and ``investment.''
    Although the Council and NMFS are sensitive to investment-backed 
expectations, the Council is not under an obligation to provide for 
eligibility based on economic decisions. The Council reviewed the 
various proposals and decided to recommend exemptions that required a 
connection to the eligibility criteria.
    Finally, the comment requested that NMFS modify the hardship 
provision in this action to conform in substance with previous hardship 
provisions. NMFS, when crafting the language for the hardship provision 
in this action, was careful to try to maintain the Council's intent 
without making the language of the provision awkward. The April 2000 
Newsletter contained the following statement as the last requirement 
for consideration under the hardship provision:

    Any amount of BSAI Pacific cod was harvested on the vessel in 
the BSAI during the recency period for that vessel type and that 
such harvest of Pacific cod occurred after the vessel was prevented 
from participating by the unavoidable circumstance but before April 
16, 2000. (Emphasis added).

    NMFS looked at the phrases ``during the recency period'' and ``but 
before April 16, 2000.'' Seemingly, these statements reflect two 
consistent requirements. However, all recency periods end either on 
December 31, 1998, or December 31, 1999. Therefore, a person who meets 
the first requirement (i.e., harvesting any amount of BSAI Pacific cod 
during the recency period) automatically meets the second requirement 
(i.e., harvesting any amount of BSAI Pacific cod before April 16, 
2000). However, the converse is not true. A person could harvest 
Pacific cod before April 16, 2000, but not meet the first requirement.
    This result indicated to NMFS that including the requirement ``but 
before April 16, 2000,'' was not only unnecessary but confusing. During 
the proposed rule stage, NMFS eliminated the phrase ``but before April 
16, 2000'' because it was internally inconsistent. However, NMFS 
realizes that multiple interpretations can be derived from the same 
language. Therefore, in response to a letter that specifically 
requested that the phrase ``but before April 16, 2000'' be given effect 
and because the Council's use of both phrases created an ambiguity, 
NMFS will construe that ambiguity in favor of potential applicants. The 
new language in this final rule will reflect that any amount of Pacific 
cod harvested on the vessel in the BSAI after the vessel was prevented 
from participating but before April 16, 2000, will be sufficient to 
meet that requirement. A person will not be required to demonstrate 
that a landing was made during the endorsement period to be considered 
for eligibility under the unavoidable circumstances provision.

Classification

    The Council prepared an environmental assessment for Amendment 67 
that analyzes the impacts on the environment as a result of this 
action. The assessment indicated that the individual and cumulative 
impacts of this action would not significantly affect the quality of 
the human environment and a finding of no significant impact (FONSI) 
was signed.
    An FRFA was prepared that describes the impacts this action may 
have on small entities. The analysis concluded that most persons who 
participate in the hook-and-line and pot gear BSAI Pacific cod 
fisheries are small entities, as this term is defined under the RFA. 
Implementation of Amendment 67 will limit fleet size by requiring a 
person to demonstrate that he or she achieved a specific level of 
participation in the past to be eligible for continued participation in 
the future. Impacts on participants who do not meet this criterion are 
expected to be minimal because their participation was below the level 
determined by the Council to be significant based on the available 
data. However, the Council considered two alternatives to counteract 
the adverse impacts to nominal or new participants who are small 
entities. These alternatives were: (1) The exemption of catcher vessels 
less than 60 ft (18.3 m) LOA from the requirement to have a Pacific cod 
endorsement; and (2) the ability to use jig gear landings and

[[Page 18138]]

commercial bait landings to meet the eligibility requirements for 
specific Pacific cod endorsements. The Council decided to adopt both 
alternatives to mitigate the adverse impacts to small entities to the 
greatest extent possible and still meet its goal to rationalize the 
BSAI Pacific cod longline and pot gear fisheries. Finally, NMFS cannot 
quantify the exact number of small entities that may be affected by 
this action, or quantify the exact magnitude of those potential 
effects. One comment was received regarding the analysis performed 
under the RFA. This comment was addressed in this rule (see Comment 1 
under Comments on Regulatory Flexibility Act (RFA) and Executive Order 
12866 Compliance) and summarized in the FRFA.
    This 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: April 5, 2002.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.


    For reasons set out in the preamble, 50 CFR part 679 is 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.


    2. In Sec. 679.2, the definition of ``Directed fishing'' is revised 
by removing paragraph (5) (Note: This removal supersedes the suspension 
of this paragraph published in the emergency interim rule at 67 FR 956, 
January 8, 2002).

    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 
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    holder harvested    demonstrate that                           Pacific cod
          has a . . .            Pacific cod in the       he or she           In . . .        endorsement that
                                   BSAI with . . .   harvested at least                      authorizes  harvest
                                                            . . .                                with . . .
----------------------------------------------------------------------------------------------------------------
(A) Catcher vessel designation.  Hook-and-line gear  7.5 mt of Pacific   In any one of the  Hook-and-line gear.
                                  or jig gear.        cod in the BSAI.    years 1995,
                                                                          1996, 1997,
                                                                          1998, or 1999.
(B) Catcher vessel designation.  Pot gear or jig     100,000 lb of       In each of any     Pot gear.
                                  gear.               Pacific cod in      two of the years
                                                      the BSAI.           1995, 1996,
                                                                          1997, 1998, or
                                                                          1999.
(C) Catcher/processor vessel     Hook-and-line gear  270 mt of Pacific   In any one of the  Hook-and-line gear.
 designation.                                         cod in the BSAI.    years 1996,
                                                                          1997, 1998, or
                                                                          1999.
(D) Catcher/processor vessel     Pot gear..........  300,000 lb of       In each of any     Pot gear.
 designation.                                         Pacific cod in      two 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) Harvests 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.
    (F) Harvests within the BSAI will count toward eligibility amounts 
in the table at paragraph (k)(9)(ii) of this section only if those 
harvests were made from the vessel that was used as the basis of 
eligibility for the license holder's LLP groundfish license.
    (G) Except as provided in paragraph 679.4(k)(iii)(D), only harvests 
of BSAI Pacific cod in the directed fishery will count toward 
eligibility amounts.
    (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 m) LOA.
    (C) Any catch of Pacific cod for personal use bait.

[[Page 18139]]

    (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.
    (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 that 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 after the vessel was prevented from 
participating by the unavoidable circumstance but before April 16, 
2000.
* * * * *

    4. In Sec. 679.7, paragraph (d)(26) is removed and paragraphs 
(d)(11), (d)(16), (d)(23), and (f)(8) are revised to read as follows 
(Note: Revisions to paragraphs (d)(16) and (d)(23) and deletion of 
paragraph (d)(26) supersede the suspension of paragraphs (d)(16) and 
(d)(23) and the addition of paragraph (d)(26) published in the 
emergency interim rule at 67 FR 956, January 8, 2002):


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 retention of sablefish is 
not authorized under 50 CFR 679.23(e)(4)(ii) or, in waters within the 
State of Alaska, discard is required by laws of the State of Alaska.
* * * * *
    (f) * * *
    (8) Discard:
    (i) In the GOA:
    (A) Rockfish that are taken when IFQ halibut or IFQ sablefish are 
on board unless rockfish are required to be discarded under subpart B 
of this part.
    (B) Pacific cod that are taken when IFQ halibut or IFQ sablefish 
are on board unless Pacific cod are required to be discarded under 
subpart B of this part, or Pacific cod are not authorized to be 
retained under subpart A of this part.
    (ii) In the BSAI:
    (A) Rockfish that are taken when IFQ halibut or IFQ sablefish are 
on board unless rockfish are required to be discarded under subpart B 
of this part.
    (B) Pacific cod that are taken when IFQ halibut or IFQ sablefish 
are on board according to the following table:

------------------------------------------------------------------------
      If the vessel operator . . .                  Then . . .
------------------------------------------------------------------------
(1) has an LLP groundfish license with   Pacific cod must not be
 a Pacific cod endorsement that meets     discarded unless Pacific cod
 the requirements of Sec.  679.4(k)(9).   are required to be discarded
                                          under subpart B of this part,
                                          or Pacific cod are not
                                          authorized to be retained
                                          under subpart A of this part.
(2) does not have an LLP groundfish      Pacific code must not be
 license with a Pacific cod endorsement   discarded up to the retainable
 that meets the requirements of Sec.      amount specified in Table 11
 679.4(k)(9).                             of this part unless Pacific
                                          cod are required to be
                                          discarded under subpart B of
                                          this part, or Pacific cod are
                                          not authorized to be retained
                                          under subpart A of this part.
------------------------------------------------------------------------

    (iii) In the waters within the State of Alaska:
    (A) Rockfish that are taken when IFQ halibut or IFQ sablefish are 
on board unless rockfish are required to be discarded by the laws of 
the State of Alaska.
    (B) Pacific cod that are taken when IFQ halibut or IFQ sablefish 
are on board unless Pacific cod are required to be discarded by the 
laws of the State of Alaska.
    5. In Sec. 679.20, paragraph (f)(4) is removed and paragraph (f)(2) 
is revised to read as follows (Note: Revision of paragraphs (f)(2) and 
removal of paragraph (f)(4) supersede the suspension of paragraph 
(f)(2) and the addition of paragraph (f)(4) published in the emergency 
interim rule at 67 FR 956, January 8, 2002):

[[Page 18140]]

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.
* * * * *

    6. In Sec. 679.32, the first sentence of paragraph (c)(1)(i), and 
paragraphs (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 m) 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 retention of groundfish CDQ 
species is not authorized under Sec. 679.4 of this part, discard of the 
groundfish CDQ species is required under subpart B of this part, or, in 
waters within the State of Alaska, discard is required by laws of the 
State of Alaska. * * *
* * * * *
    (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 retention of groundfish CDQ species is 
not authorized under Sec. 679.4 of this part, discard of the groundfish 
CDQ species is required under subpart B of this part, 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 retention of 
groundfish CDQ species is not authorized under Sec. 679.4 of this part, 
discard of the groundfish CDQ or PSQ species is required under subpart 
B of this part, or, in waters within the State of Alaska, discard is 
required by laws of the State 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 must 
be discarded when required by other provisions in subpart B of this 
part or, in waters within the State of Alaska, when discard is required 
by laws of the State of Alaska.
* * * * *
[FR Doc. 02-8961 Filed 4-12-02; 8:45 am]
BILLING CODE 3510-22-P