[Federal Register Volume 68, Number 230 (Monday, December 1, 2003)]
[Rules and Regulations]
[Pages 67086-67093]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-29826]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 030804191-3286-02; I.D. 071603A]
RIN 0648-AR31


Fisheries of the Exclusive Economic Zone Off Alaska; Allocation 
of Pacific Cod Among Fixed Gear Sectors

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 77 to the 
Fishery Management Plan for the Groundfish Fishery of the Bering Sea 
and Aleutian Islands Area (FMP). This

[[Page 67087]]

action apportions the fixed gear portion of the Bering Sea and Aleutian 
Islands Management Area (BSAI) Pacific cod total allowable catch (TAC) 
among the fixed gear sectors. In addition, this action further splits 
the pot sector share of the TAC between pot catcher/processors and pot 
catcher vessels and changes how the 2 percent annual BSAI Pacific cod 
allocation to jig gear is seasonally apportioned and how unused 
portions are reallocated to other gear types. Amendment 77 and its 
implementing regulations are necessary to maintain the stability of the 
fixed gear Pacific cod fishery. This action is intended to promote the 
goals and objectives of the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act), the FMP, and other applicable 
laws.

DATES: Effective January 1, 2004.

ADDRESSES: Copies of the Environmental Assessment/Regulatory Impact 
Review/Final Regulatory Flexibility Analysis (EA/RIR/FRFA) prepared for 
this action may be obtained from the Alaska Region, NMFS, P.O. Box 
21668, Juneau, AK, 99802, Attn: Lori Durall; or by calling 907-586-
7247.

FOR FURTHER INFORMATION CONTACT: Nina Mollett, 907-586-7462 or 
[email protected].

SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fisheries in the 
exclusive economic zone of the BSAI under the FMP. The North Pacific 
Fishery Management Council (Council) prepared the FMP under the 
authority of the Magnuson-Stevens Act, 16 U.S.C. 1801, et seq. 
Regulations governing the groundfish fishery of the BSAI appear at 50 
CFR part 679. General regulations governing U.S. fisheries also appear 
at 50 CFR part 600.

Background

    The Council submitted Amendment 77 to NMFS for review and a Notice 
of Availability of the FMP amendment was published in the Federal 
Register on July 22, 2003 (68 FR 43342), with comments on the FMP 
amendment invited through September 22, 2003. The Secretary of Commerce 
approved Amendment 77 on October 20, 2003. The proposed rule to 
implement Amendment 77 was published on August 18, 2003 (68 FR 49416). 
The public comment period on the proposed rule ended on October 2, 
2003. NMFS received letters from ten persons on either the FMP 
amendment, the proposed rule, or both. NMFS responds to these letters 
in ``Response to Comments,'' below.
    Allocation of the BSAI Pacific cod TAC among gear types began in 
1994, with the passage of Amendment 24 to the FMP. Amendment 24, and 
subsequently Amendment 46, allocated the Pacific cod TAC among vessels 
using jig gear, trawl gear, and fixed gear (hook-and-line and pot.) 
Under Amendment 46, which was implemented in 1997, 2 percent of the TAC 
was reserved for jig gear, 51 percent for fixed gear, and 47 percent 
for trawl gear. The amendment further split the trawl apportionment 
equally between catcher vessels and catcher/processors, but the fixed 
gear allocation was not split among the fixed gear sectors until 
passage of Amendment 64 in 2000 (65 FR 51553, August 24, 2000). 
Amendment 64 and its implementing regulations are scheduled to expire 
on January 1, 2004.
    Amendment 64 allocated the fixed gear portion of the BSAI Pacific 
cod TAC among its four sectors as follows:
    [sbull] 80.0 percent to hook-and-line catcher/processors;
    [sbull] 0.3 percent to hook-and-line catcher vessels;
    [sbull] 18.3 percent to pot vessels; and
    [sbull] 1.4 percent to catcher vessels less than 60 ft (18.3 m) 
length overall (LOA), including pot and hook-and-line vessels 
(hereafter referred to as small catcher vessels).
    Additional background on the prior history of Pacific cod 
allocations among different fishery sectors and the development of 
Amendment 77 is contained in the preamble to the proposed rule. 
Amendment 77 and its implementing regulations supersede Amendment 64.
    This final rule allocates the fixed gear portion of the BSAI 
Pacific cod TAC among the fixed gear sectors. Vessels using hook-and-
line or pot gear receive 51 percent of the Pacific cod TAC in the BSAI, 
under existing regulations at Sec.  679.20(a)(7)(i)(A). Of this 51 
percent, this final rule will allocate the TAC as follows:
    [sbull] 80.0 percent to hook-and-line catcher/processors;
    [sbull] 0.3 percent to hook-and-line catcher vessels;
    [sbull] 3.3 percent to pot catcher/processors;
    [sbull] 15.0 percent to pot catcher vessels; and
    [sbull] 1.4 percent to small catcher vessels.
    This preserves the allocation implemented under Amendment 64, but 
splits the pot vessel share further between pot catcher/processors and 
pot catcher vessels.
    Amendment 77 directs that ``specific provisions for the accounting 
of these directed fishing allowances and the transfer of unharvested 
amounts of these allowances to other vessels using hook-and-line or pot 
gear will be set forth in regulations.''
    Hence, the final rule maintains status quo provisions, except for a 
change in the way the 2 percent annual BSAI Pacific cod allocation to 
the jig gear sector is seasonally apportioned and how unused portions 
of the jig gear share are reallocated (rolled over) to other gear 
types. The jig gear quota will be apportioned through the annual TAC-
setting process on a four-month basis, 40 percent, 20 percent, and 40 
percent respectively for the periods January through April, May through 
August, and September through December. Unused jig allocations in each 
four-month period will be reallocated to small catcher vessels. If the 
small catcher vessels are unable to harvest the rolled over jig 
allocation, NMFS may reallocate the unused TAC to the hook-and-line 
catcher/processor fleet under Sec.  679.20(a)(7)(ii)(B) of this final 
rule.
    This reallocation policy has been contentious because the previous 
policy was to reallocate all unused jig gear to the hook-and-line 
catcher/processors. The new rollover provision represents a partial 
reallocation of unused jig gear from the hook-and-line catcher/
processors to smaller catcher vessels. The new rollover provision was a 
compromise among the alternatives analyzed, because some or all of the 
allocation from the third four-month period probably will not be 
harvested by the small catcher vessels and will instead be reallocated 
to hook-and-line catcher/processors. The small boat fleet is most 
capable of fishing in the spring and summer when the weather is better 
than in the fall and winter. Also, the small pot catcher vessels only 
need a separate quota between the A and B seasons established under 
Steller sea lion protection measures (between June 10 and September 1), 
when the Pacific cod fishery is closed to pot vessels greater than or 
equal to 60 ft (18.3 m) LOA. At other times, the small pot catcher 
vessels can fish off the general 15 percent pot catcher vessel quota. 
Hook-and-line vessels of any size normally are prohibited from fishing 
for Pacific cod in the summer between June 10 and August 15, because 
they typically receive no halibut bycatch under the annual harvest 
specifications during this time period. Without a bycatch allowance, 
they cannot fish. Pot and jig gear vessels would be the only fixed gear 
vessels with access to the Pacific cod resource during this period.

Response to Comments

    With one exception, all of the letters received by NMFS commenting 
on

[[Page 67088]]

Amendment 77 or the proposed rule focused on the Council's action to 
change the way unharvested jig gear quota is reallocated. Six 
commenters wrote in support of that change, and three in opposition. 
The comments otherwise were generally supportive of Amendment 77 and 
the proposed rule implementing it. The tenth commenter did not address 
the provisions of Amendment 77 but criticized fishing in the North 
Pacific more generally. No comments were received on the proposed TAC 
split between pot catcher vessels and pot catcher processors. The 
comments on the proposed change in jig gear reallocation have been 
grouped by subject matter. Some of the arguments were made by more than 
one respondent.

Comments on Economic and Equity Issues and Compliance With National 
Standards

    Comment 1: The proposed reallocation of unharvested jig quota is 
inconsistent with national standard 5: ``Conservation 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.''
    Many measures that the Council has adopted include reallocations, 
but such measures have usually also provided improved ease of 
management or an increased conservation benefit. In this case, the 
proposed rollover provisions complicate management and have potential 
adverse risk in regards to Steller sea lions.
    Response: The main purpose of Amendment 77 is to maintain stability 
in the Pacific cod BSAI fishery by maintaining the TAC allocations for 
fixed gear sectors that have been in effect since September 1, 2000. 
The relatively modest reallocation of unused jig gear TAC to small 
catcher vessels is consistent with that goal. It maintains the 
Council's original intent to support coastal fisheries through an 
allocation that will benefit a group of vessels with similarities to 
the jig gear sector for which the quota was originally intended.
    In addition, this action will support biological conservation 
objectives of the FMP, because the vessels potentially receiving unused 
Pacific cod TAC from the jig gear sector primarily will be vessels less 
than 60 ft (18.3 m) LOA that use pot gear. These vessels have a 
relatively low bycatch rate for halibut, most groundfish, and most 
other marine species. Hence, NMFS finds that this action is consistent 
with National Standard 5.
    The final rule implementing Amendment 77 will slightly increase the 
complexity of inseason management because of the seasonal 
apportionments of the jig gear quota and associated rollover provisions 
for the unharvested amounts. Staff resources are available, however, to 
accommodate this fairly routine adjustment in management of the Pacific 
cod TAC.
    The action does not change the Steller sea lion protection measures 
that are currently in place; any change in the potential risk to 
Steller sea lions is discussed in the response to Comments 16 to 19.
    Comment 2: The proposed rollover of unharvested jig quota is 
inconsistent with National Standard 10: ``Conservation and management 
measures shall, to the extent practicable, promote the safety of human 
life at sea.'' Reallocation of TAC to small boats would pose safety at 
sea considerations. Fishing in the Bering Sea can be dangerous, which 
is why ``small boat participation in the directed Pacific-cod fishery 
has been minimal in this region even during the years of unrestricted 
open access.
    Response: The Pacific cod TAC allocations created by this action 
are assigned to categories of vessels and gear types. Several potential 
new rollover provisions were considered, and the selected provision was 
specifically developed to provide additional cod for the small catcher 
vessel sector during the months when these vessels prefer to fish, for 
safety reasons. Without the additional opportunity to harvest cod 
during the summer months, the small catcher vessel sector would be more 
likely to continue to compete for the portion of the cod TAC allocated 
to the general pot catcher vessel sector and general hook-and-line 
catcher vessel sector (available to vessels of all lengths) during the 
late winter and early spring. Providing for a reallocation of jig quota 
to the small catcher vessel sector may encourage these vessels to delay 
fishing until the summer months, when it is considered most safe for 
smaller vessels in the BSAI.
    Comment 3: The proposal for the new rollover provision was 
initiated not by a pot vessel but a jig fisherman from Dutch Harbor, 
whose stated reasons included both safety and ecological concerns. From 
a safety perspective, this action would encourage the presence of other 
small vessels nearshore, which would enhance safety for the small 
number of jig vessels participating in the BSAI jig gear fishery.
    Response: To the extent that this action increases the number of 
vessels available to provide aid to a vessel in need, this final rule 
could enhance safety during the summer months. Also see response to 
comment 2.
    Comment 4: The proposed rollover of unharvested Pacific cod TAC 
from jig gear supports the National Standard 1 requirement to provide 
``optimum yield from each fishery.'' The RIR analysis shows that the 
highest average value per metric ton of round cod is inshore deliveries 
from fixed gear catcher vessels (p 79).
    Response: The Council did not attempt to determine which sector is 
most efficient in making its decision on unused jig gear cod 
allocations. The jig gear cod allocation amounts to only 2 percent of 
the total BSAI Pacific cod quota. The Council's action was intended to 
roughly maintain the status quo, while enhancing an opportunity for 
relatively small catcher vessels to continue participating in the 
fishery.
    Comment 5: Freezer-longliners are highly efficient, producing 
frozen product of the highest quality and value. By contrast, cod kept 
on ice and processed long after harvest are of a lower quality and 
command a lower price.
    Response: Please see the response to Comment 4.
    Comment 6: The freezer-longliner sector has received the jig 
rollovers for 10 years and has grown dependent on them. The small 
catcher vessel fleet has not taken the rollovers, and is in no way 
dependent on them. The proposed reallocation of a portion of these 
rollovers to a fleet that 'needs room to grow' is not consistent with 
the problem statement.
    The proposed rollover provisions would take TAC from the freezer 
longliners with a historic long-term dependency on the resource and the 
jig rollovers, and give the TAC to a sector with considerably less 
dependency on the resource. Of 125 vessels that qualify for the less 
than 60 ft (18.3 m) sector, only 32 have ever made a directed landing; 
in 2002, only 19 of them made a directed landing.
    Response: The Council and NMFS' intent in allocating 2 percent of 
the total BSAI Pacific cod quota to jig gear in Amendment 64 (65 FR 
51553, August 24, 2000) was to foster limited development of a small, 
low-impact coastal fishery. If the jig fleet were to harvest its entire 
quota, consistent with the intent of Amendment 64, the alleged 
``dependency'' of the catcher processor fleet on the unused jig TAC 
would be moot.
    Because the jig fleet has been unable to catch as much of its quota 
as expected or even as much as it had been

[[Page 67089]]

catching for the previous several years, the Council decided to 
reallocate unused jig quota to a similar small-vessel sector. A 
substantial percentage of the unused jig quota, however, likely will 
continue to be reallocated to the hook-and-line catcher processor 
sector in the last few months of the year due to the seasonal 
allocations; the small boat sector is unlikely to be able to use quota 
later in the year. Hence, this action represents a compromise in which 
the interests of each sector with a stake in the outcome were taken 
into consideration.
    The RIR analyzed the change in the amount of TAC that the affected 
sectors would receive as a result of the change in rollover provisions. 
According to the analysis, since the implementation of Amendment 64, 
cod quota allocated from the jig sector has accounted for about 3.3 
percent of the hook-and-line catcher processors' total catch and 0.5 
percent of the pot sector's total catch. If unharvested jig gear quota 
is reallocated to the small catcher vessel sector, the RIR estimates 
the maximum annual potential loss from the hook-and-line sector at 3.7 
percent of their catch, and 0.9 percent from the pot sector. This 
additional quota would be more than twice the amount of quota the small 
catcher vessel sector has received under its 1.4 percent allocation 
under Amendment 64. This estimate of reduced catch for the hook-and-
line catcher-processors assumes that the small catcher vessel sector 
can harvest all of the unused TAC from the jig sector, which averaged 
3,671 mt during 1995--2001. However, that does not take into account 
the effect of the seasonal quotas implemented under the final rule, 
under which the entire 40 percent allocation for the last four-month 
period, and perhaps some of the second four-month period reallocation, 
will most likely be reallocated to the catcher-processors because the 
small catcher vessels will not be able to use it; in the last four-
month period, weather conditions likely would preempt the small boat 
fleet from operating. Furthermore, as of September 1, when the Pacific 
cod B season for pot catcher vessels greater than or equal to 60 ft 
(18.3 m) opens, small pot catcher vessels would be fishing, along with 
the larger catcher vessels, from the general pot catcher vessel 
allocation, which is 15 percent of the fixed gear TAC.
    Comment 7: The proposed reallocation of unused jig gear TAC is 
consistent with the Council's intent to develop economic stability for 
the small boat fleet in coastal communities that service that fleet, as 
demonstrated by establishing a special jig quota. However, the 
realities of markets, safety, weather and technology have supported 
little growth in the jig gear sector. Small pot gear boats and hook-
and-line gear boats support the same coastal communities that the jig 
quota was intended to benefit, with similar employment characteristics, 
harvest rates, discard performance, bycatch performance, coastal 
community ties and technology limitations. All of these smaller vessels 
support shore-based processors and the community of Dutch Harbor, and 
many of the same people working on small pot boats also work on the 
small jig vessels. The small boat fleet is more likely to employ 
Alaskan crew members who live in coastal communities and will spend 
dollars in those communities.
    The Council's rollover requirement is consistent with the original 
intent of the allocation to the jig sector, which was to develop 
economic stability for the small boat fleet in Alaska's coastal 
communities. The economic well being of the less than 60 ft (18.3 m) 
LOA hook-and-line and pot vessels is also important to Alaska's coastal 
communities, and the rollover provisions in Amendment 77 provide a fair 
allocation to those sectors.
    Response: NMFS agrees that the Council's intent in allotting 2 
percent of the Pacific cod quota to the jig fleet was to provide 
additional fishing opportunities for relatively small vessels and 
benefit the coastal communities where they are based. This action 
modifies the direction of the reallocation of unused jig quota, 
consistent with the Council's original intent to provide support for 
the small boat fleet.
    Comment 8: In adopting Amendment 77, the Council created a well-
structured compromise to distribute the unused portion of the jig 
sector's Pacific cod allocation between catcher vessels less than 60 ft 
(18.3 m) LOA and the hook-and-line catcher/processor fleet. Under the 
proposed requirements, vessels less than 60 ft (18.3 m) LOA will have 
the opportunity to harvest the unused jig gear allocation in the first 
eight months of the year. These small boats have limited fishing 
opportunities in the last four months due to weather and other factors, 
so a significant portion of the unused jig quota will be made available 
to the hook-and-line catcher/processor fleet during these months.
    Response: See response to Comment 7.
    Comment 9: The effect of this Council action is very minor in terms 
of the freezer longliner sector, less than 2 percent of their annual 
catch, but the benefit to the less than 60 ft (18.3 m) LOA fixed gear 
sector is of huge significance in providing enough quota for a viable 
fishery. This reallocation is supported in the draft EA and has the 
support of many small boat fishermen.
    Response: NMFS notes this position.
    Comment 10: The 2-percent jig quota was not designed to benefit all 
small vessels. Instead, it was meant to provide an entry-level 
opportunity for jig fishermen only; rollovers were to go to freezer-
longliners, as originally negotiated.
    Response: Regardless of prior negotiation among industry 
representatives, Council action on Amendment 77 recommended a change to 
the regulations governing the reallocation of unharvested jig gear TAC. 
The Council's recommended change has been approved by NMFS. The effect 
of this change is to provide increased potential benefits from unused 
jig gear TAC to small catcher vessels. Catcher processor vessels, 
however, may still enjoy some of the benefit from this reallocated jig 
TAC to the extent that small catcher vessels are not able to harvest 
all of it.
    Comment 11: Any increase to the allocation to the less than 60 ft 
(18.3 m) sector should occur with all gear groups under consideration 
and not just fixed gear. NMFS needs to continue current allocations as 
a means of maintaining stability for this fully utilized resource.
    Response: This action was not intended to reconsider the 
allocations among the trawl, fixed gear, and jig gear sectors of the 
BSAI Pacific cod fishery. Amendment 77 does not change the overall 
Pacific cod allocations that were established in Amendment 46, nor does 
it change the allocations to the hook-and-line catcher processor 
sector, hook-and-line catcher vessel sector, or combined pot gear 
sectors established in Amendment 64. The only changes are a further 
split between the two pot gear sectors, and a change in the 
reallocation of unused jig gear TAC during a fishing year. NMFS does 
not agree that a decision about the reallocation of this relatively 
small amount of TAC must reopen the question of all allocations for 
Pacific cod in the BSAI. Amendment 64 contained a sunset provision 
partly so that fixed gear allocation issues could be revisited. The EA/
RIR prepared for this action supports the contention that any of the 
options for reallocation of unused jig gear considered by the Council 
would maintain the desired stability.
    Comment 12: When Amendment 67 was adopted, the Council exempted 
catcher vessels less than 60 ft (18.3 m) LOA from the requirement of 
having made recent landings to qualify for

[[Page 67090]]

License Limitation Program (LLP) licenses, so that about 130 vessels in 
this category qualified under the LLP. Amendment 64 allocated 1.4 
percent of BSAI Pacific cod fixed gear TAC to small catcher vessels. At 
the time, the fact that 130 LLP-licensed vessels were eligible to 
participate, but could harvest only a very small percentage of the BSAI 
Pacific cod TAC, was identified as a problem that would present 
challenges at a later date.
    Response: The Council's reallocation of unharvested jig gear 
Pacific cod is partly an effort to provide an enhanced opportunity to 
vessels qualified to fish, but which have little quota to fish for.
    Comment 13: There is a limit on new boats able to enter the small 
boat fixed gear fishery for cod, so no new open access derby has been 
created.
    Response: Some vessels qualified to fish under the LLP may enter 
the fishery because of this action, which was designed partly to give 
the small vessel fleet enhanced opportunities to harvest cod during the 
months of the year when it is most preferable for small boats in the 
BSAI. However, any new ``derby'' or race-for-fish resulting from the 
expanded opportunity provided by rolled over jig gear quota would be 
limited by the limited access program, as well as the fact that the 
amount of fish in question is relatively small (see response to Comment 
6).
    Comment 14: The proposed change disrupts and destabilizes the 
fishery prior to the completion of comprehensive rationalization.
    Response: Please see the responses to Comments 7 and 13.
    Comment 15: Although the Council's decision was sensible, behind-
the-scenes lobbying by one sector might succeed in overturning it at 
the NMFS level; small vessel owners cannot afford lobbyists and 
lawyers.
    Response: The notice and comment provisions of the Magnuson-Stevens 
Act and the Administrative Procedure Act provide everyone an equal 
opportunity to submit oral or written comments during the 
decisionmaking process. NMFS considers all comments submitted and 
believes that all interested parties have had ample opportunity during 
the Council meetings and during the rulemaking process to make their 
views known and considered. The decision is based on the record.

Comments on Potential Impacts to Steller Sea Lions

    Comment 16: The proposed jig rollover regulations should consider 
cumulative impacts and should be examined in conjunction with similar 
proposed actions that could potentially move harvest from offshore into 
nearshore areas in the context of cumulative effects on Steller sea 
lions. These include Gulf of Alaska rationalization and State of Alaska 
2004 Board of Fisheries (BOF) proposals. BOF Proposal 177 would have 
the largest potential negative impacts for Steller sea lions. Proposal 
177 would allocate 10 to 15 percent of the BSAI federal Pacific cod TAC 
to a new state waters fishery to be taken only by pot, jig, and hand 
troll gear.
    The possibility also exists of creating a pollock fishery at Adak, 
or a rockfish test fishery in the Gulf of Alaska. No formal analysis of 
potential cumulative impacts has occurred.
    Response: NMFS is required by NEPA to analyze cumulative effects, 
and such an analysis is in the EA at Section 2.4. Such an analysis 
should consider actions that have occurred and actions that have not 
yet been taken, but have a high probability of occurring. In 
correspondence with the State of Alaska to develop a response to this 
comment, NMFS has learned that although several proposals have been 
made which would give the State management of part of the BSAI TAC of 
Pacific cod in State waters (the fraction of the TAC and the specific 
area involved vary among the proposals), due to budgetary constraints 
and to other priority items on the State Board of Fish agenda, it is 
unlikely that the board will be reviewing or considering any of those 
proposals at any time in the foreseeable future.
    The other actions mentioned are similarly speculative, and likely 
would require new statutory authority. Both the GOA Rationalization 
plan and the proposed rockfish test fishery would occur in the Gulf of 
Alaska rather than in the BSAI. If and when any of these actions are 
proposed in the form of concrete actions, the analyses for those 
actions will consider potential cumulative impacts on Steller sea 
lions.
    Comment 17: In regards to the 2001 Biological Opinion and its 2003 
supplement, the proposed jig rollover regulations pose more risk to 
Steller sea lions than the status quo jig rollover provisions which 
assign the unused quota to the hook-and-line catcher processor sector, 
which fishes further from shore. It would be prudent of NMFS to examine 
the potential redistribution of harvest to near shore areas 
particularly in light of the cumulative effects of pending similar 
actions.
    This action would reallocate Pacific cod from a predominantly 
offshore fishery (hook-and-line catcher processors) to a nearshore 
fishery (small catcher vessels) that has a high probability of 
increasing harvest in critical habitat, particularly inside of 10 
nautical miles (nm); and of increasing harvest inside 3-10 nm by the 
pot gear fishery.
    Response: In developing the proposed rule, NMFS conducted an 
informal consultation consistent with section 7 of the Endangered 
Species Act. This consultation determined that the catch of Pacific cod 
would likely increase inside Steller sea lion critical habitat during 
the spring and summer months. However, this increase would be 
relatively small and would remain within the overall goal of 
distributing the Pacific cod TAC by season. Additionally, that catch 
would likely go to fixed gear fisheries (pot and hook-and-line) which 
are likely to have less impacts on the prey field for Steller sea lions 
than trawl gear (see the 2001 Biological Opinion for more information). 
The conclusion of the informal consultation is that the reallocation of 
unharvested jig gear quota is not likely to adversely affect the 
western distinct population segment of Steller sea lions, or their 
critical habitat.
    In response to comments concerning Steller sea lions submitted on 
the proposed rule, NMFS enhanced the EA to clarify further the reasons 
for the conclusion of the informal consultation. Section 4.2.1 of the 
EA contains a detailed explanation of this issue.
    Comment 18: Statements were added to the EA, after the Council took 
action on Amendment 77, in regards to Steller sea lions that appear to 
be contradictory and inconsistent with the 2001 Biological Opinion and 
its 2003 supplement. This is ``revisionary history.'' The statements 
need to be amended. The proposed rule did not contain a discussion of 
Steller sea lions impacts. The proposed rule should address the 
potential impacts of the proposed rollover provisions on Steller sea 
lions. NMFS should correct the statement that vessels using pot gear 
are exempt from Steller sea lions measures because the rate of harvest 
is sufficiently slower than other gear types to be less of a factor: 
Pots are not exempt from NMFS' Steller sea lions protection measures. 
NMFS has concluded that they have little evidence to indicate which 
gear type is more or less likely to locally deplete prey. The hook-and-
line harvest is less concentrated than the pot harvest. There is no 
correlation between vessel size and local depletion. The EA supplies 
erroneous reasoning why the pot catcher vessels are exempt from the A 
and B season Pacific cod apportionments. The EA says the pot exemption 
is because of lower harvest

[[Page 67091]]

rates, but actually the exemption was due to the small magnitude of the 
allocation and the difficulty of splitting the allocation into an A and 
B season for that sector.
    Response: NMFS has made some corrections in the EA. Revisions to 
draft analytical documents during the process of Council and 
Secretarial decisionmaking are normal. The EA provided to the Council 
is a draft for Council review. A draft EA is subsequently released for 
public review and comment, with the proposed rule. Public comments on 
draft EAs are welcomed by the Council and NMFS and improve the 
information and analysis that ultimately inform the decision. NMFS 
appreciates and welcomes public comments on all draft NEPA documents.
    Comment 19: The commentator supports the final rule and notes that 
the small catcher vessel fleet is still under the same rules for 
Steller sea lions as all other vessels.
    Response: NMFS agrees that the small catcher vessel fleet must 
abide by the rules for Steller sea lions, as do all other vessels. 
However, catcher vessels less than 60 ft (18.3 m) LOA are not subject 
to the seasonal restrictions that apply to the fixed gear vessels 
greater than or equal to 60 ft (18.3 m) LOA.

Comments on Habitat and Bycatch Issues

    Comment 20: The reallocation of unharvested jig gear quota is 
consistent with national standard 9: ``Minimize bycatch, and to the 
extent bycatch cannot be avoided, minimize the mortality of such 
bycatch.''
    The jig fishery is a very low bycatch and low impact fishery, and 
therefore no bycatch standard or caps are required for the jig fishery. 
Similarly, no bycatch allocation has been made for pot vessels less 
than 60 ft (18.3 m) LOA because of the low bycatch. Reallocating unused 
jig quota to vessels less than 60 ft (18.3 m) will utilize the quota by 
giving it to the most comparable fishery in terms of low bycatch and 
low impact. This will maintain the highest compliance with national 
standard 9. Fishing on pot catcher vessels less than 60 ft (18.3 m) is 
done in an environmentally sensitive manner.
    The EA/RIR/IRFA showed no detrimental or serious adverse impacts 
from the action.
    Response: NMFS agrees that pot gear is a relatively selective gear 
type, and observer coverage on larger pot boats indicates relatively 
low incidental catch rates for pot gear for most species.

Comment on Commercial Fisheries

    Comment 21: Amendment 77 is wrong. NMFS should stop overfishing, 
should cut the total catch by 50 percent, and should read the Pew 
Report. The amendment should stop ALL of the fishing proposed by North 
Pacific Fishery Management Council, which is composed of commercial 
fishermen primarily interested in making money from fish stocks which 
are continually declining.
    Response: None of the groundfish fisheries managed by NMFS off 
Alaska are overfished, nor does NMFS allow overfishing to occur in the 
North Pacific groundfish fisheries. Each year, NMFS specifies 
overfishing levels for each fishery under its management. For the 
Pacific cod fishery in the BSAI, which is the fishery of concern in 
Amendment 77, NMFS specified an overfishing level of 324,000 mt in 
2003, but the TAC for 2003 was set at only 207,500 mt. National 
standard 1 of the Magnuson-Stevens Act requires that conservation and 
management measures prevent overfishing while achieving optimum yield 
from each fishery. The management of this fishery is fully in 
compliance with national standard 1 and all other provisions of the 
Magnuson-Stevens Act.

Changes From the Proposed Rule to the Final Rule

    One change has been made from the proposed rule to the final rule. 
In Sec.  679.20, paragraph (a)(7)(ii)(B), has been modified to clarify 
that if small catcher vessels that receive unused jig gear quota are 
unable to harvest any of that quota, NMFS may reallocate the 
unharvested amount as a directed fishing allowance to catcher/processor 
vessels using hook-and-line gear. The modification does not implement 
any change of policy from that presented for comment in the proposed 
rule but instead clarifies the sequence of reallocations of unused jig 
gear quota.

Classification

    The Administrator, Alaska Region, NMFS, determined that this final 
rule is necessary for the management of the BSAI groundfish fishery and 
that it is consistent with the Magnuson-Stevens Act and other 
applicable laws.
    This action has been determined to be not significant under 
Executive Order 12866. No new reporting, recordkeeping, or compliance 
requirements are imposed by this final rule.
    NMFS has prepared a FRFA, which analyzes the impacts of Amendment 
77 on small entities. A copy of this analysis is available from NMFS. 
The Initial Regulatory Flexibility Analysis (IRFA) is contained in 
section 4.3 of the EA/RIR/IRFA, and is also available from NMFS. A 
summary of the findings from the FRFA follows:
    A description of the reasons why this action is being considered, 
and the objectives of and legal basis for this action is contained in 
the preamble to the proposed rule.
    No comments were received specifically on the IRFA. However, 
several comments were received on the economic impacts of Amendment 77 
on different sectors of the industry. For a summary of the comments 
received, refer to the section above titled ``Comments and 
Responses.
    The directly regulated entities for Amendment 77 will be those 
vessels participating in the Pacific cod fixed gear fishery in the 
BSAI. A total of about 87 small entities will be directly regulated by 
this action: 55 pot vessels greater than or equal to 60 ft (18.3 m) 
LOA; 9 hook-and-line vessels greater than or equal to 60 ft (18.3 m) 
LOA; and 18 hook-and-line catcher vessels less than 60 ft (18.3 m) LOA.
    This regulation does not impose new recordkeeping or reporting 
requirements on the regulated small entities.
    NMFS considered four alternatives and adopted elements of its 
Alternatives 2 and 4. Because these alternatives often involved 
tradeoffs between different groups, and because all the groups affected 
included small entities, some groups of small entities might have 
experienced smaller adverse impacts under some of these alternatives, 
but these would have been accompanied by increased adverse impacts for 
other groups of small entities.
    Alternative 1 would allow the fleet allocations to expire. This 
would increase competition among gear groups for shares of the Pacific 
cod. This increased competition was expected to reduce the 
profitability of the fishery in general. Moreover, the heightened 
competition under this alternative was expected to impose a 
disproportionate burden on the smallest entities.
    Alternative 3 would modify the current BSAI Pacific cod 
allocations. Under one option, the allocation for catcher vessels less 
than 60 ft (18.3 m) LOA would either be removed, or would change from 
1.4 percent to 0.3 percent, to conform to actual historical catch 
history from 1995 to1999. Under another option, the allocation for 
small catcher vessels would be retained at 1.4 percent, but subtracted 
proportionally from other sectors and not just from hook-and-line 
catcher processors as occurred under Amendment 64. The

[[Page 67092]]

resulting BSAI Pacific cod fixed gear split would translate to slightly 
different allocations among the fixed gear sectors, depending on which 
option was chosen. All vessel groups include small entities, and 
therefore, any difference between the allocation under Alternative 2 
and the allocations under any of the options for Alternative 3 would 
adversely affect some groups with small entities and would have 
positive effects on other small entities. Thus, none of the Alternative 
3 options has less of an adverse impact on small entities than 
Alternative 2. The option under Alternative 3 to eliminate or decrease 
the allocation to hook-and-line and pot catcher vessels under 60 feet 
would adversely impact a group of operations that are relatively small 
compared to those in other affected sectors.
    NMFS adopted a suboption under Alternative 2, its preferred 
alternative, to reapportion the jig gear allocation (2 percent of the 
overall BSAI Pacific cod TAC) by four-month period, and reallocate 
unused jig quota to small catcher vessels. This option may have an 
adverse impact on the vessels in the hook-and-line catcher-processor 
and pot sectors which had formerly received 95 percent and 5 percent, 
respectively, of any jig rollovers. NMFS adopted this provision to 
benefit a group of small entities that were similar in socioeconomic 
profile to the jig fleet for which the quota was originally intended, 
and to benefit small coastal communities. The suboption chosen was 
added at the Council meeting and was a compromise. The last four-month 
period reallocation is unlikely to be used by catcher vessels less than 
60 ft (18.3 m) LOA, and is likely to be reallocated to the hook-and-
line catcher-processors which previously received any unused jig gear 
allocations.
    Alternative 4, which was part of the preferred alternative along 
with Alternative 2, splits the BSAI Pacific cod pot allocation between 
the pot catcher vessel sector and the pot catcher-processor sector on 
the basis of relative harvests in the years 1998-2001. NMFS chose 
Alternative 4, Option 3. Three other options would have allocated 
Pacific cod among the two pot gear sectors in different ways. Each of 
these other options would have had an adverse impact on one or the 
other of the two groups.
    Further analysis of the impacts of the alternatives on small 
entities is contained in the FRFA.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. This final 
rule serves as the small entity compliance guide. This action does not 
require any additional compliance from small entities. Copies of this 
final rule are available from NMFS (see ADDRESSES) and at the following 
website: http://www.fakr.noaa.gov/

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Recordkeeping and reporting requirements.

    Dated: November 24, 2003.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Services.

0
For reasons set out in the preamble, 50 CFR part 679 is amended as 
follows:

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

0
1. The authority citation for part 679 continues to read as follows:

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

0
2. In Sec.  679.20, paragraphs (a)(7)(i)(C), (a)(7)(ii)(B), 
(a)(7)(ii)(C), and (a)(7)(iii)(A) are revised to read as follows:


Sec.  679.20  General limitations.

* * * * *
    (a) * * *
    (7) * * *
    (i) * * *
    (C) Allocations among vessels using hook-and-line or pot gear. (1) 
The Regional Administrator annually will estimate the amount of Pacific 
cod taken as incidental catch in directed fisheries for groundfish 
other than Pacific cod by vessels using hook-and-line or pot gear and 
deduct that amount from the portion of Pacific cod TAC annually 
allocated to hook-and-line or pot gear under paragraph (a)(7)(i)(A) of 
this section. The remainder will be further allocated as directed 
fishing allowances as follows:
    (i) 80.0 percent to catcher/processor vessels using hook-and-line 
gear;
    (ii) 0.3 percent to catcher vessels using hook-and-line gear;
    (iii) 3.3 percent to catcher/processor vessels using pot gear;
    (iv) 15.0 percent to catcher vessels using pot gear; and
    (v) 1.4 percent to catcher vessels less than 60 ft (18.3 m) LOA 
that use either hook-and-line or pot gear.
    (2) Harvest of Pacific cod by catcher vessels less than 60 ft (18.3 
m) LOA using pot gear:
    (i) Will accrue against the 15 percent specified in paragraph 
(a)(7)(i)(C)(1)(iv) of this section when the directed fishery for 
Pacific cod by catcher vessels equal to or greater than 60 ft (18.3 m) 
LOA using pot gear is open.
    (ii) Will accrue against the 1.4 percent specified in paragraph 
(a)(7)(i)(C)(1)(v) of this section when the directed fishery for 
Pacific cod by catcher vessels equal to or greater than 60 ft (18.3 m) 
LOA using pot gear is closed.
* * * * *
    (ii) * * *
    (B) Reallocation among vessels using hook-and-line or pot gear. If, 
during a fishing year, the Regional Administrator determines that 
catcher vessels using hook-and-line gear or vessels less than 60 ft 
(18.3 m) LOA using hook-and-line or pot gear will not be able to 
harvest the directed fishing allowance of Pacific cod allocated to 
those vessels under paragraphs (a)(7)(i)(C)(1)(ii), 
(a)(7)(i)(C)(1)(iv), or (a)(7)(ii)(C)(1) of this section, NMFS may 
reallocate the projected unused amount of Pacific cod as a directed 
fishing allowance to catcher/processor vessels using hook-and-line gear 
through notification in the Federal Register.
    (C) Reallocation among vessels using trawl or non-trawl gear. If, 
during a fishing year, the Regional Administrator determines that 
vessels using trawl gear, hook-and-line gear, pot gear or jig gear will 
not be able to harvest the entire amount of Pacific cod in the BSAI 
allocated to those vessels under paragraphs (a)(7)(i)(A), (a)(7)(i)(B) 
or (a)(7)(i)(C) of this section, NMFS will reallocate the projected 
unused amount of Pacific cod to vessels harvesting Pacific cod using 
the other gear type(s) through notification in the Federal Register, 
subject to the provisions below:
    (1) Reallocation of TAC specified for jig gear. The Regional 
Administrator will reallocate any projected unused portion of a 
seasonal allowance of Pacific cod for vessels using jig gear under 
paragraphs (a)(7)(i)(A) and (a)(7)(iii)(A) of this section to catcher 
vessels less than 60 ft (18.3 m) LOA using hook-and-line or pot gear.
    (2) Reallocation of TAC specified for trawl gear. The Regional 
Administrator will reallocate any projected unharvested amounts of 
Pacific cod

[[Page 67093]]

TAC allocated to trawl gear under paragraph (a)(7)(i) of this section: 
95 percent to catcher/processor vessels using hook-and-line gear, 0.9 
percent to catcher/processor vessels using pot gear, and 4.1 percent to 
catcher vessels using pot gear.
* * * * *
    (iii) * * *
    (A) Seasonal apportionment and gear allocations. The BSAI Pacific 
cod gear allocations and apportionments by seasons, as specified in 
Sec.  679.23 (e)(5), are as follows:

----------------------------------------------------------------------------------------------------------------
              Gear Type                        A season                 B season                 C season
----------------------------------------------------------------------------------------------------------------
(1) trawl............................               60 percent               20 percent               20 percent
    (i) trawl CV.....................               70 percent               10 percent               20 percent
    (ii) trawl CP....................               50 percent               30 percent               20 percent
(2) hook-and-line processors, hook-                 60 percent               40 percent  .......................
 and-line [gteqt]60 ft (18.3 m)LOA,
 and non-CDQ pot vessels [gteqt]60 ft
 (18.3 m) LOA........................
(3) jig vessels......................               40 percent               20 percent               40 percent
(4) all other nontrawl vessels.......              no seasonal              no seasonal              no seasonal
                                                 apportionment            apportionment            apportionment
----------------------------------------------------------------------------------------------------------------

* * * * *

0
3. In Sec.  679.23, paragraph (e)(5)(i) introductory text is revised, 
and paragraph (e)(5)(iv) is added, to read as follows:


Sec.  679.23  Seasons.

* * * * *
    (e) * * *
    (5) * * *
    (i) Hook-and-line gear. Subject to other provisions of this part, 
directed fishing for CDQ and non-CDQ Pacific cod with vessels equal to 
or greater than 60 ft (18.3 m) LOA using hook-and-line gear is 
authorized only during the following two seasons:
* * * * *
    (iv) Jig gear. Subject to other provisions of this part, directed 
fishing for CDQ and non-CDQ Pacific cod with jig gear is authorized 
only during the following three seasons:
    (A) A season. From 0001 hours, A.l.t., January 1 through 1200 
hours, A.l.t., April 30;
    (B) B season. From 1200 hours, A.l.t., April 30 through 1200 hours, 
A.l.t., August 31;
    (C) C season. From 1200 hours, A.l.t., August 31 through 2400 
hours, A.l.t., December 31.
* * * * *
[FR Doc. 03-29826 Filed 11-25-03; 4:02 pm]
BILLING CODE 3510-22-S