[Federal Register Volume 72, Number 25 (Wednesday, February 7, 2007)]
[Proposed Rules]
[Pages 5654-5674]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-538]



[[Page 5654]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 061206324-6324-01; I.D. 112006I]
RIN 0648-AU48


Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Cod 
Allocations in the Bering Sea and Aleutian Islands Management Area

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS issues a proposed rule that would implement Amendment 85 
to the Fishery Management Plan for Groundfish of the Bering Sea and 
Aleutian Islands Management Area (FMP) and that would implement recent 
changes to the Magnuson-Stevens Fishery Conservation and Management Act 
(Magnuson-Stevens Act). If approved, Amendment 85 would modify the 
current allocations of Bering Sea and Aleutian Islands management area 
(BSAI) Pacific cod total allowable catch (TAC) among various harvest 
sectors and seasonal apportionments thereof. This action also would 
establish a hierarchy for reallocating projected unharvested amounts of 
Pacific cod from certain sectors to other sectors, revise catcher/
processor sector definitions, modify the management of Pacific cod 
incidental catch that occurs in other groundfish fisheries, eliminate 
the Pacific cod nonspecified reserve, adjust the seasonal allowances of 
Pacific cod, subdivide among sectors the annual prohibited species 
catch (PSC) limits currently apportioned to the Pacific cod trawl and 
nontrawl fisheries, and modify the sideboard restrictions for American 
Fisheries Act (AFA) catcher/processor (CP) vessels. In addition, this 
proposed rule would increase the percentage of the BSAI Pacific cod TAC 
apportioned to the Community Development Quota (CDQ) Program. Amendment 
85 is necessary to reduce uncertainty about the availability of yearly 
harvests within sectors caused by reallocations, and to maintain 
stability among sectors in the BSAI Pacific cod fishery. This would be 
accomplished by establishing allocations that more closely reflect 
historical use by sector than do current allocations while considering 
socioeconomic and community factors, thus reducing the need for 
reallocations during the fishing year (inseason). This proposed rule 
also is necessary to partially implement recent changes to the 
Magnuson-Stevens Act that require a total allocation of 10.7 percent of 
the TAC of each directed fishery to the CDQ Program starting January 1, 
2008. This action is intended to promote the goals and objectives of 
the Magnuson-Stevens Act, the FMP, and other applicable laws.

DATES: Comments must be received no later than March 26, 2007.

ADDRESSES: Send written comments to Sue Salveson, Assistant Regional 
Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, 
Attn: Ellen Sebastian, Records Officer. Comments may be submitted by:
     Hand delivery: 709 West 9th Street, Room 420A, Juneau, AK;
     E-mail: [email protected]. Include in the 
subject line the following document identifier: ``Pacific cod RIN 0648 
AU48.'' E-mail comments, with or without attachments, are limited to 5 
megabytes;
     Fax: 907-586-7557;
     Mail: P.O. Box 21668, Juneau, AK 99802-1668; or
     Webform at the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions at that site for 
submitting comments.
    Copies of Amendment 85 and the Environmental Assessment/Regulatory 
Impact Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) 
prepared for this action are available from NMFS at the above address 
or from the NMFS Alaska Region website at http://www.fakr.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Becky Carls, 907-586-7228 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 U.S. fisheries and implementing the FMP appear at 
50 CFR parts 600 and 679.
    The Council has submitted Amendment 85 for review by the Secretary 
of Commerce, and a notice of availability of the FMP amendment was 
published in the Federal Register on December 7, 2006, (71 FR 70943) 
with comments on the FMP amendment invited through February 5, 2007.

Background and Need for Action

    NMFS uses TACs to manage the harvest of groundfish species in the 
BSAI as one management tool to ensure sustainable fisheries. The FMP 
and its implementing regulations require NMFS, after consultation with 
the Council, to annually specify the TAC for each target species and 
for the ``other species'' category governed by the FMP. The Council 
develops TAC recommendations based on the acceptable biological catch 
(ABC) for each stock of fish and other socioeconomic factors. The ABC 
is based on the status of the stock, environmental conditions, and 
other ecological factors.
    The FMP requires a TAC to be less than or equal to the ABC for each 
fish stock. Between 1991 and 1994, between 1998 and 2001, and in 2005, 
the Pacific cod TACs were set equal to their ABCs. Thus, typically all 
the BSAI Pacific cod that is available for harvest in a particular 
fishing year is completely allocated. The Pacific cod TAC allocations 
and apportionments for 2006 and 2007 are listed in Table 5 of the 
groundfish specifications published March 3, 2006 (71 FR 10900), and 
may be changed as necessary during any fishing year pursuant to 50 CFR 
679.20(a)(7)(ii) and 679.25(a). Final 2006 and 2007 harvest 
specifications implemented a 2006 BSAI Pacific cod TAC of 194,000 mt, 
which equaled the 2006 ABC for Pacific cod. Shortly after publication, 
this TAC was adjusted downward to 188,180 mt (71 FR 13777, March 17, 
2006) to accommodate a new Pacific cod fishery in State of Alaska 
waters in the Aleutian Islands and to avoid exceeding the ABC.
    The current regulations provide for the overall TAC of BSAI Pacific 
cod, after subtraction of reserves, to be subdivided or allocated among 
eight non-CDQ fishing industry sectors based on the type of fishing 
gear used (50 CFR 679.20(a)(7)). Basically, these gear sectors include 
trawl gear, fixed gear (hook-and-line and pot), and jig gear. These 
basic allocations are further subdivided between catcher/processor 
vessels (CPs) that process their catch and catcher vessels (CVs) that 
catch fish but do not process it. Most allocations are further 
apportioned between seasons. The purpose of these allocations and 
apportionments is to prevent one industry sector from unfairly 
affecting the harvesting opportunities of other sectors and to ensure 
temporal dispersion of harvest to protect Steller sea lions (SSLs).
    Currently, the BSAI Pacific cod non-CDQ TAC is fully distributed 
among the

[[Page 5655]]

following eight competing harvest sectors: jig, fixed gear (pot and 
hook-and-line gear) CVs less than 60 ft (18.3 m) length overall 
(hereafter, <60 ft LOA), hook-and-line CVs greater than or equal to 60 
ft LOA (hereafter, [gteqt]60 ft LOA), hook-and-line CPs, pot CVs 
[gteqt]60 ft LOA, pot CPs, trawl CPs, and trawl CVs. Several FMP 
amendments, implemented beginning in 1994, have allocated Pacific cod 
among these sectors. The previous and current allocations, and those 
proposed under Amendment 85, are summarized in Table 1. The amendments 
are described in more detail below.

                      Table 1. Percent sector allocations by amendment and year implemented
----------------------------------------------------------------------------------------------------------------
                                       Amend. 24      Amend. 46      Amend. 64    Amend. 77 2004     Proposed
               Sector                     1994           1997          2000         (Current)        Amend. 85
----------------------------------------------------------------------------------------------------------------
Jig                                  2.0            2.0            2.0           2.0              1.4
----------------------------------------------------------------------------------------------------------------
Hook-and-line/pot CV <60 ft LOA      44.0           51.0           0.7           0.7              2.0
------------------------------------                              ----------------------------------------------
Hook-and-line CV [gteqt]60 ft LOA    .............  .............  0.2           0.2              0.2
------------------------------------                              ----------------------------------------------
Hook-and-line CP                     .............  .............  40.8          40.8             48.7
------------------------------------                              ----------------------------------------------
Pot CV [gteqt]60 ft LOA              .............  .............  9.3           7.6              8.4
------------------------------------                                            --------------------------------
Pot CP                               .............  .............  ............  1.7              1.5
----------------------------------------------------------------------------------------------------------------
AFA trawl CP                         54.0           23.5           23.5          23.5             2.3
------------------------------------                                                             ---------------
Non-AFA trawl CP                     .............  .............  ............  ...............  13.4
------------------------------------               -------------------------------------------------------------
Trawl CV                             .............  23.5           23.5          23.5             22.1
----------------------------------------------------------------------------------------------------------------

BSAI Pacific Cod Allocation History

    In the early years of the fishery, BSAI Pacific cod was an open 
access fishery prosecuted primarily by trawl gear. Under open access 
management, Pacific cod was not allocated among competing fishermen. As 
the market value of Pacific cod increased with the removal of foreign 
and joint venture fisheries in 1990, the domestic fixed gear sector 
(including pot and hook-and-line gear) began to increase its harvest of 
the TAC. Hook-and-line CPs, in particular, contributed to the growth of 
the fixed gear sector's use of Pacific cod TAC. Any consideration of 
rationalizing the Pacific cod fishery during the 1990s through 
individual fishing quotas (IFQs) or other market-based allocation 
schemes was strongly opposed by the fixed gear sector as its share of 
the Pacific cod TAC was growing. At this stage of the industry's 
development, sector allocations emerged as a policy more acceptable to 
the Pacific cod fleet than IFQs or similar rationalization policies.
    A sector allocation is based on the principle that good fences make 
good neighbors. The fence in this case is the division of the TAC among 
competing harvesting sectors. Each sector is allocated its own portion 
of the TAC that is protected from incursions by other sectors. Federal 
regulations require a sector to stop conducting directed fishing for 
Pacific cod when its allocation is exhausted, even if TAC allocated to 
other sectors remains unharvested. Although sector allocations do not 
prevent a race-for-fish by competing fishermen within a sector, they do 
bring some short-term stability and certainty to fishermen within the 
sectors as compared to having no sector allocations. This was the 
policy rationale for the Council's first recommendation for sector 
allocations of Pacific cod TAC in Amendment 24.
    In 1994, NMFS began to allocate the Pacific cod TAC with the 
implementation of BSAI Amendment 24 to the FMP (59 FR 4009, January 28, 
1994). The allocations roughly represented the harvests of the trawl 
and fixed gear sectors during 1991 through 1993. Although the 2.0 
percent jig sector allocation exceeded the historical harvest by this 
sector, it was intended to allow for growth in the sector. Competition 
within the trawl and fixed gear sectors eventually led to the Council 
recommending, in subsequent amendments, further subdivisions of the 
allocations to these sectors to provide the desired stability within 
the subdivided sectors.
    Amendment 46, implemented in 1997 (61 FR 59029, November 20, 1996), 
further split the trawl allocation equally between CVs and CPs. The 
action also included specific authority for NMFS to annually reallocate 
among the various sectors, if necessary, any portion of the Pacific cod 
allocations that were projected to remain unused.
    After Amendment 46 was implemented, members of the fishing industry 
asked the Council to further allocate Pacific cod in the BSAI among the 
various fixed gear sectors. The Council developed Amendment 64 which 
further apportioned the 51 percent allocated to the fixed gear sector 
into four new sectors (see Table 1). NMFS approved Amendment 64 and it 
was implemented September 1, 2000 (65 FR 51553, August 24, 2000). 
Because Amendment 64 was scheduled to expire at the end of 2003, 
Amendment 77 was initiated to continue or modify the fixed gear 
sectors' allocations beyond 2003.
    The current allocations are those that were adopted by the Council 
and approved by NMFS under Amendment 77 (68 FR 49416, August 18, 2003). 
Amendment 77 continued the same overall fixed gear sector allocations 
as under Amendment 64, except for a new apportionment between the pot 
gear CV and CP sectors. Currently, hook-and-line and pot CVs <60 ft LOA 
are allowed to fish under the general hook-and-line CV allocation and 
general pot CV allocation, respectively, when these fisheries are open. 
When these fisheries are closed, the <60 ft LOA sector harvest accrues 
to the <60 ft LOA hook-and-line and pot CV allocation.
    The harvest on which the percentage allocations were based under 
Amendments 64 and 77 in the fixed gear sectors excluded the harvest of 
Pacific cod that was reallocated from other gear sectors. Except for 
the pot gear sector split, the percentage allocations under Amendment 
77 closely represented the harvests for fixed gear in this fishery 
during 1995 through 1999, with an

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additional allocation for CVs <60 ft LOA, to allow for growth in the 
small boat sector. The pot gear sector allocations were based on 
harvests from 1998 through 2001.
    While the Council was considering adjustments to the Pacific cod 
allocations to the non-CDQ sectors under what became Amendment 64, the 
Council adopted and NMFS approved Amendment 39 in 1998 (63 FR 8356, 
February 19, 1998). Under Amendment 39, a percentage of various 
groundfish species including Pacific cod was allocated to the CDQ 
Program. From 1998 onward, 7.5 percent of the BSAI Pacific cod TAC was 
deducted for the CDQ reserve. The remainder of the TAC after the 
deduction for the CDQ reserve is referred to as the non-CDQ TAC. When 
the multispecies CDQ Program was implemented in 1998, the non-CDQ 
Pacific cod TAC was allocated in accordance with the percentages 
established by Amendment 46, and since then as further modified by 
Amendments 64 and 77.

History of Pacific Cod Reallocations

    Under the existing allocations, one or more sectors are typically 
unable to harvest their annual allocation of the Pacific cod TAC. 
Section 301(a)(1) of the Magnuson-Stevens Act, also known as National 
Standard 1, states, ``Conservation and management measures shall 
prevent overfishing while achieving, on a continuing basis, the optimum 
yield from each fishery for the United States fishing industry.'' Thus, 
to provide an opportunity for the full harvest of the BSAI Pacific cod 
non-CDQ TAC, existing allocations of Pacific cod that are projected to 
be unharvested by some sectors are annually reallocated by NMFS to 
other sectors. Current regulations governing the reallocation of BSAI 
Pacific cod are found at Sec.  679.20(a)(7)(ii).
    Since BSAI Pacific cod sector allocations have been in effect, NMFS 
has reallocated Pacific cod each year from the trawl and jig sectors to 
fixed gear sectors. In 2002 and in 2004, reallocations also were made 
from the pot gear sectors to the hook-and-line CP sector. Reallocations 
within gear types (e.g., trawl CPs to trawl CVs, or hook-and-line CVs 
to hook-and-line CPs) have occurred less frequently and in lower 
amounts. As shown in Table 2, the majority of reallocations, in terms 
of metric tons, have been from the trawl sectors to the hook-and-line 
CPs between 2000 and 2004. The starting point for this table is the 
year 2000 because that was the first year in which the fixed gear 
allocation was split among the hook-and-line CP, hook-and-line CV, pot 
gear, and <60 ft LOA fixed gear sectors.

                       Table 2. Average BSAI Pacific cod reallocation by sector, 2000-2004
----------------------------------------------------------------------------------------------------------------
                                                                                         Reallocation as percent
               Sector                Initial allocation (mt)      Reallocation (mt)       of initial allocation
----------------------------------------------------------------------------------------------------------------
Jig                                  3,715                    -3,309                    -89%
----------------------------------------------------------------------------------------------------------------
Hook-and-line/pot CV <60 ft LOA      1,312                    309                       24%
----------------------------------------------------------------------------------------------------------------
Hook-and-line CV [gteqt]60 ft LOA    283                      120                       42%
----------------------------------------------------------------------------------------------------------------
Hook-and-line CP                     75,006                   16,861                    22%
----------------------------------------------------------------------------------------------------------------
Pot gear                             17,244                   -739                      -4%
----------------------------------------------------------------------------------------------------------------
Trawl CP                             43,649                   -8,483                    -19%
----------------------------------------------------------------------------------------------------------------
Trawl CV                             43,649                   -4,760                    -11%
----------------------------------------------------------------------------------------------------------------

    Unused seasonal allowances specified for the jig sector are 
reallocated during each of its three seasons. All other gear sector 
reallocations usually occur in the fall because unused seasonal 
allowances that remain unharvested earlier in the year are rolled over 
to each sector's subsequent season. Typically, reallocations from trawl 
to fixed gear sectors occur in October and November, and always during 
the trawl C season (June 10 to November 1).
    NMFS reallocates unused Pacific cod allocations for a variety of 
reasons. Reallocations from the jig sector are primarily due to 
insufficient effort in that sector in the BSAI. Several reasons are 
commonly cited for trawl reallocations including closure of the 
directed trawl fisheries due to reaching the halibut PSC allowance, 
relatively high annual allocations in alternative trawl fisheries such 
as pollock (for AFA vessels), and high value alternative trawl 
fisheries such as yellowfin sole, rock sole, and flathead sole (for 
non-AFA trawl CPs). Additionally, under SSL mitigation measures which 
started in 2001, the creation of a 20 percent seasonal apportionment in 
the C season for trawl gear led to trawl reallocations. The trawl 
sectors' inability to harvest their total allocations resulted from the 
increased difficulty in catching Pacific cod with trawl gear later in 
the year when those fish are less aggregated (lower catch per unit 
effort). Prior to the SSL mitigation measures, the trawl gear sectors 
were allowed to harvest their total Pacific cod allocation earlier in 
the year.
    The increased difficulty in harvesting Pacific cod in the second 
half of the year is not unique to the trawl sector. All gear sectors 
have increased difficulty harvesting Pacific cod later in the year when 
those fish are less aggregated. Also, weather is a significant factor 
for the vessels in smaller CV sectors in the fall season. The hook-and-
line sectors are limited by halibut bycatch in the second half of the 
year. These sectors do not have a halibut bycatch allowance from June 
10 to August 15 under the annual harvest specifications which 
effectively closes directed fishing for Pacific cod during this period. 
The amount of Pacific cod the fixed gear sectors could harvest in the 
first half of the year was reduced in 2001 as part of the SSL 
protection measures. The hook-and-line sector would prefer to harvest 
its Pacific cod allocation earlier in the year when its incidental take 
of seabirds is lower.
    In developing Amendment 85, the Council determined that current 
allocations do not correspond with actual dependence and use by the 
existing sectors, as demonstrated by the need for annual reallocations. 
Reallocations maintain a level of uncertainty for some sectors 
regarding the amount of Pacific cod available for harvest. The Council 
expects that

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uncertainty to decrease due to the revisions to the Pacific cod non-CDQ 
allocations under this proposed rule.

Amendment 85 History

    Amendment 85 is the most recent action by the Council in a long 
history of actions to allocate BSAI Pacific cod TAC among competing 
sectors as described above and in Table 1. The development of Amendment 
85 began in October 2002 when the Council initiated discussions 
regarding the allocation of certain BSAI groundfish species to the non-
AFA trawl CP sector. In February 2003, the Council considered a vastly 
expanded program for this sector, known as Amendment 80, to establish a 
multispecies cooperative intended to facilitate greater retention 
improvements, allocate PSC, and address a number of sector allocation 
issues that would arise from a stand-alone allocation and cooperative 
(for the non-AFA trawl CP sector). In April 2003, the Council further 
expanded Amendment 80 to include allocations of non-pollock species and 
PSC to ten sectors operating in the BSAI as a means to minimize 
potential impacts on sectors that might arise from any direct 
allocations and cooperatives provided to the non-AFA trawl CP sector 
alone.
    Growing demand for Pacific cod, a fully exploited fishery, and 
other distributional concerns among sectors led the Council to consider 
a separate action to revise allocations of Pacific cod among the many 
BSAI groundfish sectors. After further consideration, public testimony, 
and preliminary analyses, the Council simplified Amendment 80 in 
October 2004 to provide allocations only to the non-AFA trawl CP sector 
and removed allocation of Pacific cod from that proposed program. The 
intent of the Council was to streamline Amendment 80 and shift it back 
to its original intent, to provide the non-AFA trawl CP sector with a 
tool to reduce groundfish and PSC discards and improve retention. The 
Council then initiated a new plan amendment, which became Amendment 85, 
to alter the current BSAI Pacific cod allocations.
    In December 2004, the Council reviewed a discussion paper outlining 
prior Council actions regarding BSAI Pacific cod allocations, the 
relevant problem statements associated with these past actions, and 
potential decision points related to structuring new alternatives and 
options for analysis. Upon review of the discussion paper, the Council 
approved a problem statement and a document outlining draft components 
and options for the new amendment. The problem statement and suite of 
alternatives and options have been revised several times since that 
initial discussion. The Council's final problem statement focuses on 
revising the BSAI Pacific cod allocations to all sectors (trawl, jig, 
hook-and-line, pot, and CDQ):

    The BSAI Pacific cod fishery is fully utilized and has been 
allocated among gear groups and to sectors within gear groups. The 
current allocations among trawl, jig, and fixed gear were 
implemented in 1997 (Amendment 46) and the CDQ allocation was 
implemented in 1998. These allocations are overdue for review. 
Harvest patterns have varied significantly among the sectors 
resulting in annual inseason reallocations of TAC. As a result, the 
current allocations do not correspond with actual dependency and use 
by sectors.
    Participants in the BSAI Pacific cod fishery who have made 
significant investments and have a long-term dependence on the 
resource need stability in the allocations to the trawl, jig, fixed 
gear, and CDQ sectors. To reduce uncertainty and provide stability, 
allocations should be adjusted to better reflect historic use by 
sector. The basis for determining sector allocations will be catch 
history as well as consideration of socio-economic and community 
factors.
    As other fisheries in the BSAI and GOA are incrementally 
rationalized, historical participants in the BSAI Pacific cod 
fishery may be put at a disadvantage. Each sector in the BSAI 
Pacific cod fishery currently has different degrees of license 
requirements and levels of participation. Allocations to the sector 
level are a necessary step on the path towards comprehensive 
rationalization. Prompt action is needed to maintain stability in 
the BSAI Pacific cod fisheries.

    While the FMP does not have a sunset provision nor regulatory 
requirement to review or modify the sector allocations, the Council's 
motion on Amendment 46 included a provision to review the overall gear 
sector allocations four years after implementation. That review, 
originally intended at the end of 2000, occurred with Amendment 85.

Description of the Proposed Action

    This amendment is intended by the Council to modify the sector 
allocations currently in place to better reflect actual dependency and 
use by sector, in part by basing the allocations on each sector's 
historical retained catch. One of the fundamental issues identified in 
the Council's problem statement is the need to revise the existing 
allocations to better reflect actual historical catch by sector, thus 
reducing the need for frequent and significant reallocations of quota 
toward the end of the year from sectors that are unable or otherwise do 
not intend to harvest their entire allocation. Thus, the catch history 
on which the proposed allocations were partially based included Pacific 
cod that was reallocated from one sector to another due to the first 
sector's projected inability to harvest its entire allocation by the 
end of the year. The intent of the Council under Amendment 85 is to 
establish direct allocations for each specified sector in the BSAI 
Pacific cod fishery, in order to protect the relative historical catch 
distribution among those sectors.
    However, there are noted exceptions to basing the allocations 
solely on catch history. The problem statement asserts that in addition 
to catch history, socioeconomic and community concerns should be the 
basis for determining sector allocations. Amendment 85 would establish 
BSAI Pacific cod allocations to the jig sector, the <60 ft LOA fixed 
gear CV sector, and the CDQ sector that are based on identified 
percentages of the TAC, and not actual catch history. This action would 
establish allocations to both the jig sector and to the <60 ft LOA 
fixed gear CV sector that are greater than those sectors' average catch 
histories. The allocations to the small boat sectors are intended by 
the Council to expand entry-level, local opportunities in the BSAI 
Pacific cod fishery. In general, however, the Council's proposed 
allocations of Pacific cod non-CDQ TAC are intended to formally 
institutionalize the historical pattern of utilization of this 
resource.
    The Council also considered more refined allocations to the BSAI 
Pacific cod sectors, by evaluating the potential for establishing 
separate and distinct allocations for the non-AFA trawl CP and AFA 
trawl CP sector and the non-AFA trawl CV and AFA trawl CV sectors. The 
trawl CP sectors currently have a combined BSAI Pacific cod allocation 
of 23.5 percent of the non-CDQ BSAI Pacific cod TAC, as do the trawl CV 
sectors. Thus, all trawl gear combined currently receives 47 percent of 
the non-CDQ BSAI Pacific cod TAC.
    The Council adopted Amendment 85 in April 2006. If approved by the 
Secretary of Commerce, Amendment 85 would modify the following 
provisions in the FMP: (a) sector allocations of BSAI Pacific cod TAC, 
(b) TAC deductions for incidental catch allowances of Pacific cod in 
other target fisheries, (c) the groundfish reserve for Pacific cod, (d) 
the Pacific cod allocation to the CDQ Program, and (e) the appendices 
of the FMP by adding a new appendix that summarizes applicable 
provisions of the Consolidated Appropriations Act of 2005 (Public Law 
108-447). Because the Amendment 85 sector allocations cannot be 
implemented mid-year, the

[[Page 5658]]

final rule implementing Amendment 85, if approved, would be effective 
the following January 1st. Thus, the earliest effective date for the 
rule implementing Amendment 85 would be January 1, 2008.
    This proposed rule would make the following changes in regulations 
for the management of the BSAI directed Pacific cod fishery:
     Increase the percentage of the BSAI Pacific cod TAC 
apportioned to the CDQ Program.
     Revise the allocations of BSAI Pacific cod non-CDQ TAC 
among various gear sectors.
     Modify the management of Pacific cod incidental catch that 
occurs in other groundfish fisheries.
     Eliminate the Pacific cod nonspecified reserve.
     Establish a hierarchy for the reallocation of projected 
unused sector allocations to other sectors.
     Adjust the seasonal allowances of Pacific cod to various 
sectors.
     Subdivide among sectors the annual PSC limits apportioned 
to the Pacific cod trawl and hook-and-line gear fisheries.
     Modify the sideboard restrictions for Pacific cod that are 
applied to the CP vessels listed as eligible under the AFA.
     Revise the definition for AFA trawl catcher/processor and 
add definitions for hook-and-line catcher/processor, non-AFA trawl 
catcher/processor, and pot catcher/processor.
    In developing Amendment 85, the Council considered dividing the 
Pacific cod TAC in the BSAI between the Bering Sea (BS) and Aleutian 
Islands (AI) subareas. At its April 2006 meeting, the Council voted to 
remove this action from Amendment 85 and initiate a new analysis that 
would examine additional alternative approaches to apportioning sector 
allocations between the two subareas. If conservation of the Pacific 
cod resource requires separate TACs for the BS and AI subareas before 
the Council adopts and NMFS approves a different approach to 
apportioning Pacific cod sector allocations between the two subareas, 
NMFS would apply the same percentages of the sector allocations to each 
subarea as in the overall BSAI allocations in existence at that time.

Recent Legislation Affecting the Proposed Rule

    On December 8, 2004, the President signed into law the Consolidated 
Appropriations Act, 2005 (Public Law 108-447)(Act). With respect to 
fisheries off Alaska, the Act establishes catcher processor sector 
definitions for participation in (1) the catcher processor subsectors 
of the BSAI non-pollock groundfish fisheries, and (2) the BSAI Catcher 
Processor Capacity Reduction Program. The following subsectors are 
defined in section 219(a) of the Act: AFA trawl catcher processor; non-
AFA trawl catcher processor; longline catcher processor; and pot 
catcher processor.
    Section 219(a) of the Act also defines the ``non-pollock groundfish 
fishery'' as target species of Atka mackerel, flathead sole, Pacific 
cod, Pacific ocean perch, rock sole, turbot, or yellowfin sole 
harvested in the BSAI. Thus, the Act provides the qualification 
criteria that each participant in the CP subsectors must meet in order 
to operate as a CP in the BSAI non-pollock groundfish fishery, or 
participate in the BSAI Catcher Processor Capacity Reduction Program, 
or both.
    Because Amendment 85 would allocate Pacific cod (a non-pollock 
groundfish fishery under the Act) to CPs operating in the BSAI, this 
proposed rule includes new or revised definitions for AFA trawl CP, 
hook-and-line CP, non-AFA trawl CP, and pot CP, consistent with the 
provisions of the Act.
    The Act includes numerous provisions that are not related to the 
management of groundfish and crab fisheries off Alaska. Therefore, this 
proposed rule includes in regulatory text only those portions of the 
Act related to eligibility in catcher processor subsectors. The 
portions of the Act authorizing and governing the development of the 
BSAI Catcher Processor Capacity Reduction Program are not provided in 
the proposed rule.
    On July 11, 2006, the President signed into law the Coast Guard and 
Maritime Transportation Act of 2006 (Public Law 109-241), that, among 
other things, completely revised the CDQ Program statutory text at 
section 305(i)(1) of the Magnuson-Stevens Act. Specifically, section 
305(i)(1)(B)(ii)(I) required that most of the allocations to the CDQ 
Program, including Pacific cod, increase from 7.5 percent of the TAC to 
a 10 percent directed fishing allocation upon the establishment of 
certain types of fishery management programs, including sector 
allocations in a fishery. Because Amendment 85, if approved, would 
establish sector allocations in the BSAI Pacific cod fishery, the 
proposed FMP amendment language and the proposed rule for Amendment 85 
submitted to the Secretary by the Council included provisions 
consistent with the requirements of section 305(i)(1)(B)(ii)(I). As 
noted earlier, NMFS published the notice of availability for Amendment 
85 in the Federal Register on December 7, 2006.
    On January 12, 2007, the President signed into law the Magnuson-
Stevens Fishery Conservation and Management Reauthorization Act of 2006 
(Magnuson-Stevens Reauthorization Act) (Public Law 109-479) that, among 
other things, amended section 305(i)(1)(B)(ii)(I). This section now 
requires that most of the allocations to the CDQ Program, including 
Pacific cod, increase to ``a total allocation (directed and nontarget 
combined) of 10.7 percent effective January 1, 2008.'' Section 
305(i)(1)(B)(ii) also states that the total allocations under section 
305(i)(1)(B)(ii)(I) may not be exceeded.
    Because of the changes to the CDQ Program allocations brought about 
by the Magnuson-Stevens Reauthorization Act, NMFS determined that the 
proposed rule for Amendment 85 as originally submitted by the Council 
was no longer consistent with the Magnuson-Stevens Act. On January 17, 
2006, NMFS notified the Council in writing of the inconsistencies and 
provided the Council with recommendations on revisions that would make 
the proposed rule consistent with the new provisions of the Magnuson-
Stevens Act. The Council revised the proposed rule and submitted it to 
NMFS for reevaluation on January 19, 2007. This proposed rule reflects 
the revisions made by the Council in its January 19, 2007, submission.
    Additional information on the proposed changes to the CDQ Program 
follow.

Allocation of Pacific Cod to the CDQ Program

    The Western Alaska CDQ Program was implemented in November 1992 as 
part of the inshore/offshore allocations of pollock in the BSAI. 
Originally, the CDQ Program established a CDQ reserve to which one half 
of the non-specific reserve of 15 percent of the pollock TAC was 
allocated. Hence, the original CDQ reserve was 7.5 percent of the BSAI 
pollock TAC. The CDQ Program has since been amended several times and 
now, in addition to pollock, the CDQ reserve includes allocations of 
halibut, crab, and most of the remaining groundfish species in the 
BSAI, including Pacific cod. The 7.5 percent allocation of BSAI Pacific 
cod to the CDQ reserve was established when the multispecies CDQ 
reserves were implemented in 1998. The current percentages of TAC 
allocated to the CDQ reserves are as follows: 10 percent of pollock; 10 
percent of crab species (with the exception of Norton Sound red king 
crab at 7.5 percent); 20 percent of fixed gear sablefish; a range of 20 
percent to 100 percent of halibut,

[[Page 5659]]

depending on the area; and 7.5 percent of most groundfish species and 
species groups, including Pacific cod. Pro-rata shares of prohibited 
species are also allocated to the prohibited species quota, or PSQ, 
reserve. Under the adjusted March 2006 Pacific cod TAC, 14,114 mt of 
Pacific cod, the equivalent of 7.5 percent of the Pacific cod TAC, was 
allocated to the CDQ reserve.
    Six non-profit corporations, known as CDQ groups, were formed by 
the 65 communities eligible to participate in the CDQ Program to manage 
and administer the CDQ allocations, investments, and economic 
development projects. Each of the six CDQ groups is allocated an amount 
of Pacific cod at the beginning of each year that equals its 
proportional share of the amount of Pacific cod allocated to the CDQ 
reserve. Currently, all catch of Pacific cod by any vessel fishing for 
groundfish CDQ, and by any vessel [gteqt]60 ft LOA fishing for halibut 
CDQ, accrues against a CDQ group's allocation of Pacific cod. The CDQ 
groups are prohibited by regulations at Sec.  679.7(d)(5) from 
exceeding any of their CDQ allocations. Therefore, reaching a CDQ 
allocation for one species constrains the ability of a CDQ group to 
continue to fish for other groundfish CDQ species, except for reaching 
the CDQ allocation of pollock, because the CDQ incidental catch of 
pollock is deducted from the general pollock incidental catch 
allowance.
    When Amendment 85 was adopted in April 2006, the Council 
recommended that the Pacific cod CDQ reserve remain at 7.5 percent, but 
recognized that proposed Congressional legislation could change this 
percentage. As described above, the Magnuson-Stevens Act now requires 
that 10.7 percent of the annual Pacific cod TAC be allocated to the CDQ 
reserve for directed and nontarget fishing combined. The 10.7 percent 
Pacific cod allocation to the CDQ reserve would be established annually 
in the harvest specifications process required under Sec.  679.20(c). 
Currently, the CDQ reserve is deducted from the Pacific cod TAC before 
the remaining Pacific cod TAC is allocated to the other fishing 
sectors. As intended by the Council, this would be continued under 
Amendment 85.
    Each CDQ group would decide how to manage its CDQ fisheries and how 
to allocate its portion of the Pacific cod TAC among its vessels and 
target fisheries. The CDQ groups must continue to manage their 
fisheries within the seasonal allowances currently specified to comply 
with SSL protection measures, as described in more detail under 
``Seasonal Allowances.'' All catch of Pacific cod by any vessel 
groundfish CDQ fishing, and by any vessel [gteqt]60 ft LOA halibut CDQ 
fishing, will continue to accrue against the CDQ group's annual 
allocation of Pacific cod and the CDQ groups will continue to be 
prohibited from exceeding their annual allocations of Pacific cod.

Non-CDQ Sector Allocations

    Under Amendment 85, the Council selected nine individual non-CDQ 
sectors to receive separate BSAI Pacific cod allocations. The 
allocations to the identified sectors were selected using catch history 
from 1995 through 2003 and other socioeconomic and community 
considerations. The Council concluded that the adopted allocations 
better reflected actual dependency and use by each sector, with 
specific consideration to allow for additional growth in the small 
boat, entry-level sectors. The primary objective of the Council in 
revising the BSAI Pacific cod non-CDQ TAC allocations to each sector 
was to reduce the level and frequency of annual reallocations, and thus 
enhance stability so each sector may better plan its fishing year and 
operate more efficiently.
    This action proposes to allocate the BSAI TAC of Pacific cod among 
the nine non-CDQ sectors, after subtraction of the CDQ reserve. The 
current and proposed allocations of BSAI Pacific cod non-CDQ TAC 
compared to average harvest share (average of each sector's percent of 
the total harvest each year, including harvest of reallocated amounts 
of Pacific cod) between 1995 and 2003 and between 2000 and 2003 are 
presented in Table 3.

  Table 3. Current and proposed allocations of BSAI Pacific cod non-CDQ
            TAC and average harvest share by sector (percent)
------------------------------------------------------------------------
                                                       Average   Average
                                                      share of  share of
                                                      retained  retained
                                                       harvest   harvest
           Sectors             Amend. 77   Amend. 85    1995-     2000-
                               (Current)  (Proposed)    2003      2003
                                                      (average   (recent
                                                      historic   average
                                                      harvest)  harvest)
------------------------------------------------------------------------
Jig                            2.0        1.4         0.1       0.1
------------------------------------------------------------------------
Hook-and-line/pot CV <60 ft    0.7        2.0         0.4       0.7
 LOA
------------------------------------------------------------------------
Hook-and-line CV [gteqt]60 ft  0.2        0.2         0.1       0.3
 LOA
------------------------------------------------------------------------
Hook-and-line CP               40.8       48.7        49.1      49.4
------------------------------------------------------------------------
Pot CV [gteqt]60 ft LOA        7.6        8.4         8.6       9.0
------------------------------------------------------------------------
Pot CP                         1.7        1.5         2.1       1.4
------------------------------------------------------------------------
AFA trawl CP                   23.5       2.3         2.2       1.5
------------------------------           -------------------------------
Non AFA trawl CP               .........  13.4        13.4      16.0
------------------------------------------------------------------------
Trawl CV                       23.5       22.1        24.0      21.6
------------------------------------------------------------------------

    The average harvest shares from 1995 through 2003 shown in Table 3 
were calculated using weekly production reports and Alaska Department 
of Fish and Game fishtickets, and included Pacific cod retained for 
fishmeal production. Table 4 shows average harvest share in 2004 to 
2005 using data from the NMFS catch accounting database. The NMFS 
accounting database, which uses observer estimates of retained catch, 
included Pacific cod destined for fishmeal production on CPs [gteqt]125 
feet (38.1 m) LOA with 100 percent observer coverage rather than weekly 
production reports.

[[Page 5660]]



     Table 4. Average share (percent) of retained harvest 2004-2005
------------------------------------------------------------------------
                    Sector                            Average share
------------------------------------------------------------------------
Jig                                             0.1
------------------------------------------------------------------------
Hook-and-line/pot CV <60 ft LOA                 1.7
------------------------------------------------------------------------
Hook-and-line CV [gteqt]60 ft LOA               0.01
------------------------------------------------------------------------
Hook-and-line CP                                50.6
------------------------------------------------------------------------
Pot CV [gteqt]60 ft LOA                         6.0
------------------------------------------------------------------------
Pot CP                                          1.7
------------------------------------------------------------------------
AFA trawl CP                                    2.2
------------------------------------------------------------------------
Non-AFA trawl CP                                17.7
------------------------------------------------------------------------
Trawl CV                                        20.0
------------------------------------------------------------------------

    While the two data sets in Tables 3 and 4 are not exactly 
comparable due to the different data sources, the data in Table 4 
generally indicate that the overall BSAI harvest shares by sector in 
2004 to 2005 are within the range of what occurred during 1995 to 2003, 
with a few exceptions. The <60 ft LOA fixed gear (pot and hook-and-line 
gear) share of the BSAI Pacific cod harvest increased in the past two 
years compared to the 1995 to 2003 average, likely due to additional 
quota reallocated from the jig sector starting in 2004. Table 4 shows 
that this sector harvested about 1.7 percent of the BSAI Pacific cod 
harvest from 2004 to 2005, compared to an average retained harvest 
share of 0.4 percent during 1995 to 2003.
    Another notable exception is the non-AFA trawl CP sector. This 
sector's average harvest share from 2004 to 2005 was 17.7 percent. 
While the harvest share of this sector has not been less than 15.3 
percent since 2000, its much lower harvest shares during 1995 to 1998 
resulted in an overall harvest share during 1995 to 2003 of 13.4 
percent.
    The [gteqt]60 ft LOA pot CV sector's share of Pacific cod harvest 
decreased in the past two years compared to all but one year during 
1995 [dash] 2003. The pot CP share, while greater in 2004 and 2005 (1.7 
percent) than in 2002 and 2003 (1.0 percent), was still lower than the 
average retained harvest share of 2.1 percent during 1995 to 2003.
    All sectors, with the exception of the <60 ft LOA fixed gear CV 
sector and the non-AFA trawl CP sector, had harvests in 2004 and 2005 
that fell within the range of their respective catch shares during 1995 
to 2003. Thus, although the data in Table 4 are not truly comparable to 
the retained harvest data in Table 3 due to the use of a different data 
set, they provide a general view of the fishery in the two most recent 
years.
    The Council based the proposed allocations on historical catch as 
adjusted by its decision to increase the harvest opportunities for the 
fleets delivering shoreside, which include some of the small boat 
sectors. Therefore, for the most part, proposed changes in allocations 
represent changes in a sector's opportunity to harvest. Before 
recommending this action, the Council heard extensive public testimony 
from members of each sector, indicating their desire to maintain or 
increase their allocations. In its allocation decision, the Council 
considered all of the harvest data provided to it by Council staff and 
comments received from the public.
    For most sectors the allocations recommended by the Council under 
Amendment 85 more closely represent a sector's average harvest share 
over several years, as opposed to one or two recent years, than do the 
current allocations, as shown in Table 3. The allocations recommended 
by the Council were within the range of allocation options presented in 
the EA/RIR/IRFA for Amendment 85 (see Table 8 below). The Council did 
not select a specific series of years, but instead selected direct 
allocation percentages.
    The Council examined information on retained harvest history from 
1995 to 2005, and information on total catch, which included Pacific 
cod that was discarded. However, the Council chose from a range of 
percentage allocations that were based on retained legal harvest of 
Pacific cod, not total catch. Pacific cod is required to be retained 
when the directed fishery is open. When the directed Pacific cod 
fishery is closed, Pacific cod must be retained up to the maximum 
retainable amount (MRA); the rest of the Pacific cod that is caught 
must be discarded. For example, about 1.2 percent of the total Pacific 
cod harvest was discarded in 2004. It was not the Council's intent to 
``reward'' sectors that have high discards of Pacific cod when the 
directed fishery for Pacific cod is closed.
    The proposed allocation to jig vessels and the <60 ft LOA fixed 
gear CVs is greater than those sectors' catch histories due to 
socioeconomic and community considerations. The proposed allocations to 
these two small-boat sectors are intended by the Council to maintain 
and expand entry-level, local opportunities in the BSAI Pacific cod 
fishery. These fleets, primarily CVs, typically are comprised of 
residents of small, coastal communities near the fishing grounds. 
Public comments specifically supported allocations of 2.0 percent each 
to the jig sector and to the <60 ft LOA fixed gear sector, which the 
Council took into consideration in making the allocations to these two 
sectors.
    The following paragraphs provide additional information on the 
Council's recommended allocation of Pacific cod to each non-CDQ sector.
Jig Gear Sector
    The allocation to the jig sector of the BSAI Pacific cod non-CDQ 
TAC would be reduced from the current 2.0 percent to a proposed 
allocation of 1.4 percent. The jig sector's average annual share of the 
retained Pacific cod harvest from 1995 through 2003 (average historic 
harvest) is only about 0.1 percent, which represents about 5 percent of 
its current total allocation. The jig sector's more recent average 
annual share of the retained Pacific cod harvest, from 2000 through 
2003 (recent average harvest), also is about 0.1 percent. This same 
trend continued in 2004 and 2005. As a result of this low harvest 
percentage, the unused jig sector allocation has been reallocated to 
other sectors, usually late in the fishing year. The Council determined 
that, although the proposed allocation is lower than this sector's 
current allocation, the proposed allocation would still allow for 
growth in this entry-level sector, while reducing the amount of Pacific 
cod that may need to be reallocated to other sectors. Any reallocations 
that would occur would first consider the other small boat sector (<60 
ft LOA fixed gear CVs).
    The Council's preferred alternative designated the jig sector as 
``jig CV sector.'' The Council's intent, however, was that this sector 
include all vessels using jig gear to harvest BSAI Pacific cod, whether 
CVs or CPs, as is the case under current regulations. While the jig 
sector is typically comprised only of CVs, one jig vessel has operated 
as a CP in the BSAI Pacific cod fishery. All harvest by all jig vessels 
was included in the jig sector harvest history considered under the 
allocation determination. Further, the jig sector would continue to 
include CVs and CPs given the small harvest, relative to their 
allocation, of Pacific cod by vessels using jig gear and the absence of 
competition for available Pacific cod between CVs and CPs.
Less Than 60 ft LOA Hook-and-line or Pot CV Sector
    Under the proposed rule, the allocation to the <60 ft LOA fixed 
gear CV sector of the BSAI Pacific cod non-CDQ TAC would increase from 
its current amount of 0.7 percent to a

[[Page 5661]]

proposed allocation of 2.0 percent. This sector's average historic 
harvest is 0.4 percent, and its recent average harvest is 0.7 percent. 
The <60 ft LOA fixed gear CV sector's percent share of the overall 
Pacific cod harvest has grown steadily in recent years from 0.2 percent 
in 2000 to about 1.7 percent in 2004 and in 2005. This sector has 
harvested its entire allocation of 0.7 percent for several years, and 
started receiving reallocations from the jig sector in 2004. The 
Council chose to increase the allocation to this small-boat sector to 
encourage its increased growth.
    Currently, the <60 ft LOA hook-and-line CVs also fish from the 
general hook-and-line CV sector allocation of 0.2 percent, and the <60 
ft LOA pot CVs also fish from the general pot CV sector allocation of 
8.4 percent until those fisheries close. Under Amendment 85, the <60 ft 
LOA fixed gear CV sector would fish only from its own proposed direct 
allocation of 2.0 percent.
Greater Than or Equal to 60 ft LOA Hook-and-line CV Sector
    The current allocation of 0.2 percent of the BSAI Pacific cod non-
CDQ TAC to the [gteqt]60 ft LOA hook-and-line CV sector would not 
change under this proposed rule. The [gteqt]60 ft LOA hook-and-line CV 
sector's average historic harvest is 0.1 percent, and its recent 
average harvest is 0.3 percent. This sector harvested 0.01 percent of 
the total retained harvest in 2004 and in 2005. The majority of the 
overall hook-and-line CV allocation typically has been harvested by the 
<60 ft LOA hook-and-line CVs. However, as stated above, the <60 ft LOA 
hook-and-line CV sector would no longer fish from the general hook-and-
line CV sector allocation, but would fish only from its proposed direct 
allocation. The proposed allocation is intended by the Council to 
represent the historical retained catch of Pacific cod by this sector. 
The Council also considered socioeconomic and community factors, such 
as the greater benefit brought to Bering Sea coastal communities by 
CVs, which deliver shoreside, versus the CPs that provide a smaller 
benefit to these coastal communities.
Hook-and-line CP Sector
    The proposed allocation to the hook-and-line CP sector would 
increase the current allocation from 40.8 percent to 48.7 percent of 
the BSAI Pacific cod non-CDQ TAC. This sector's average historic 
harvest is 49.1 percent, and its recent average harvest is 49.4 
percent. This sector harvested an average of 50.6 percent of the total 
retained harvest in 2004 and 2005. The Council chose to increase the 
hook-and-line CP sector's allocation to more closely reflect the 
sector's actual harvest including reallocations. This sector's average 
retained catch has been nearly 50 percent of the total BSAI non-CDQ 
Pacific cod harvest since 1995, due to its harvest of Pacific cod that 
is reallocated from other gear sectors toward the end of the year. By 
moving this reallocated amount into the sector's initial allocation, 
the sector is expected to be able to plan its fishing year with more 
certainty than is currently afforded, and harvest more of its Pacific 
cod allocation earlier in the second half of the fishing year. The 
Council also expects this sector to continue to benefit from 
reallocations from other sectors, so their total yearly catch should be 
close to their average historic harvest.
Greater Than or Equal to 60 ft LOA Pot CV Sector
    The proposed allocation to the [gteqt]60 ft LOA pot CV sector would 
increase the current allocation from 7.6 percent to 8.4 percent of the 
BSAI Pacific cod non-CDQ TAC. The [gteqt]60 ft LOA pot CV sector's 
average historic harvest is 8.6 percent, and its recent average harvest 
is 9.0 percent. This sector harvested an average of 6.0 percent of the 
total retained harvest in 2004 and 2005. In the past, less than 1.0 
percent of the overall pot CV allocation has been harvested by the <60 
ft LOA pot CVs. However, as stated above, the <60 ft LOA pot CV sector 
would no longer fish from the general pot CV sector allocation, but 
would fish only from its proposed direct allocation. The Council chose 
to increase the [gteqt]60 ft LOA pot CV sector's allocation to more 
closely reflect the sector's average historic harvest of Pacific cod 
including reallocations while considering socioeconomic and community 
factors, such as the greater benefit brought to Bering Sea coastal 
communities by CVs, which deliver shoreside, versus the CPs that 
provide a smaller benefit to these coastal communities. The Council 
also considered public testimony that supported an increase in the 
allocation to this pot sector because its catch has generally been 
increasing and its bycatch rate is very low compared to some other 
sectors.
Pot CP Sector
    The pot CP sector is the only fixed gear sector that would receive 
a reduction in its BSAI Pacific cod allocation, from the current level 
of 1.7 percent to a proposed allocation of 1.5 percent of the BSAI 
Pacific cod non-CDQ TAC. This sector's average historic harvest is 2.1 
percent, and its recent average harvest is 1.4 percent. This sector 
harvested an average of 1.7 percent of the total retained harvest in 
2004 and 2005. The number of vessels participating in this sector has 
declined over the past several years, from 13 in 1999, to 10 in 2000, 5 
in 2001 and 2002, 3 in 2003 and 2004, and 2 in 2005. Anecdotal evidence 
and public testimony suggest that some vessels have focused their 
efforts on the crab fisheries in recent years, and some vessels have 
not found it economically viable to fish for Pacific cod. The Council 
used this information in combination with the data on the historical 
retained catch of Pacific cod by the pot CP sector in arriving at its 
proposed allocation. The Council also considered socioeconomic and 
community factors, such as the greater benefit brought to Bering Sea 
coastal communities by CVs, which deliver shoreside, versus the CPs 
that provide a smaller benefit to these coastal communities.
Trawl CP Sector
    Under this proposed rule, the current single trawl CP sector would 
be split into AFA and non-AFA trawl CP sectors. The combined trawl CP 
sector currently has an allocation of 23.5 percent of the BSAI Pacific 
cod non-CDQ TAC, which would be reduced to a total of 15.7 percent for 
the two trawl CP sectors. The intent of the Council in dividing the 
allocation between the two sectors was that each trawl CP sector would 
be better able to manage its own exclusive Pacific cod allocation under 
the cooperative systems either in place (for the AFA CP sector) or 
proposed (for the non-AFA trawl CP sector under Amendment 80 discussed 
previously).
    AFA trawl CP sector. The AFA trawl CP sector's proposed allocation 
is 2.3 percent of the BSAI Pacific cod non-CDQ TAC. This sector's 
average historic harvest, including Pacific cod retained for fishmeal 
production, is 2.2 percent. The AFA trawl CP sector's recent average 
harvest is 1.5 percent, and it harvested an average of 2.2 percent of 
the total retained harvest in 2004 and 2005. The AFA trawl CPs, unlike 
the non-AFA trawl CPs, have meal plants onboard. Thus, Pacific cod meal 
is a primary product for only this sector. The history of nine trawl 
CPs was extinguished by section 209 of the AFA, and it was excluded by 
the Council in determining the proposed allocation to the AFA trawl CP 
sector. The proposed allocation is intended by the Council to represent 
the historical retained catch of Pacific cod by the AFA trawl CP sector 
while considering socioeconomic and community factors. Public testimony

[[Page 5662]]

concerning the directed fishery and bycatch needs of this sector was 
also considered by the Council.
    About 44 percent of the Pacific cod harvested by the AFA trawl CP 
sector is taken incidentally when these vessels are targeting BSAI 
pollock. Only one AFA trawl CP vessel has targeted BSAI Pacific cod in 
the recent past. All sectors are required to retain all catch of 
Pacific cod when the directed fishery is open and up to the MRA when 
the directed Pacific cod fishery is closed. To maximize the opportunity 
for a directed Pacific cod fishery and to minimize the potential for an 
increase in discards of Pacific cod if catch exceeds the MRA, the 
Council determined that this sector should receive an allocation of 
Pacific cod that closely represents its average historic harvest of 
Pacific cod.
    Non-AFA trawl CP sector. The non-AFA trawl CP sector would receive 
an allocation of 13.4 percent of the BSAI Pacific cod non-CDQ TAC under 
the proposed rule, its average share of the historic harvest, which is 
13.4 percent. This proposed allocation is less than its recent average 
harvest share of 16.0 percent from 2000 through 2003, and less than its 
average of 17.7 percent of the total retained harvest in 2004 and 2005. 
The proposed allocation is intended by the Council to represent the 
historical retained catch of Pacific cod by the non-AFA trawl CP sector 
while considering socioeconomic and community factors.
    About 46 percent of the Pacific cod harvested by the non-AFA trawl 
CP sector is taken as incidental catch in non-Pacific cod target 
fisheries, primarily the flatfish fisheries. Concern has been expressed 
by this sector that its proposed allocation will be insufficient to 
support its target fishery. NMFS agrees that this sector may be 
constrained in its ability to conduct a directed fishery for Pacific 
cod in order to have sufficient Pacific cod available for incidental 
catch in its other fisheries.
Trawl CV Sector
    The proposed allocation to the trawl CV sector of the BSAI Pacific 
cod non-CDQ TAC would decrease the current allocation of 23.5 percent 
to 22.1 percent. This proposed allocation is less than this sector's 
average historic harvest of 24.0 percent. However, the proposed 
allocation is more than the trawl CV sector's recent average harvest of 
21.6 percent, and more than its average of 20.0 percent of the total 
retained harvest in 2004 and 2005. The proposed allocation is intended 
by the Council to represent the historical retained catch of Pacific 
cod by the trawl CV sector while considering socioeconomic and 
community factors. In contrast to the trawl CP sectors, the trawl CVs 
primarily harvest their Pacific cod in the directed fishery, with only 
6.9 percent taken as incidental catch in other target fisheries.
    The Council chose to maintain the AFA and non-AFA trawl CVs as one 
sector. Public testimony before the Council advocated to not divide the 
trawl CVs into AFA and non-AFA sectors, as is proposed for the trawl CP 
sector. The Council considered this testimony in determining that 
maintaining the combined trawl CV allocation would allow the AFA trawl 
CV sector to continue to operate under its cooperative agreement and 
coordinate prosecution of the Pacific cod fishery with non-AFA trawl CV 
fishery participants. This approach is favored by AFA and non-AFA 
participants until such time that more restrictive eligibility criteria 
for participation in the fishery are implemented. The proposed rule 
does not change the Pacific cod AFA trawl CV sideboards and exemptions 
because the Council determined that they should remain to protect the 
Pacific cod harvest share of the non-AFA trawl CVs and of the AFA trawl 
CVs that are exempt from the Pacific cod sideboard limitations. Also, 
some members of the trawl CV sector requested that the Council maintain 
the AFA trawl CV sideboards to avoid the necessity of renegotiating 
their inter-cooperative agreement.

Incidental Catch Allowances for Non-CDQ Sectors

    Under existing regulations, NMFS sets aside an amount of Pacific 
cod from some sectors' allocations as an incidental catch allowance. 
The incidental catch allowance is used by those sectors when directed 
fishing for groundfish other than Pacific cod. Under this proposed 
rule, incidental catch allowances would continue to be based on an 
estimated amount of Pacific cod that NMFS anticipates will be taken as 
incidental catch in directed fisheries for groundfish other than 
Pacific cod. As is the current practice, under the proposed rule, once 
a sector has harvested an amount of Pacific cod equal to the sector's 
directed fishing allowance, directed fishing for Pacific cod by vessels 
in that sector would be closed by NMFS.
    Under Amendment 85, incidental catch allowances would continue to 
be set as they are currently for the fixed gear sectors. An incidental 
catch allowance for the fixed gear sectors would be established 
annually by the Regional Administrator during the annual harvest 
specifications process, and typically has been 500 mt. This fixed gear 
incidental catch allowance would be deducted from the aggregate portion 
of Pacific cod TAC annually allocated to hook-and-line and pot gear 
sectors before directed fishing allowances are made to each sector.
    Under Amendment 85, an incidental catch allowance for each trawl 
sector would be developed on an inseason basis and would not be listed 
in the annual specifications. The trawl sectors currently do not have 
an incidental catch allowance established at the beginning of the year, 
as the fixed gear sectors do. NMFS currently has the regulatory 
authority to set directed fishing allowances and incidental catch 
allowances for Pacific cod within a particular sector during the 
fishing year. This system allows NMFS to close the directed trawl 
fishery for Pacific cod but allow other directed trawl fisheries to 
continue fishing under the incidental catch allowance. NMFS typically 
has not put the Pacific cod trawl fishery on bycatch status in the 
recent past, because the trawl sectors are not currently constrained by 
their Pacific cod allocations. Also, the seasonal apportionments to the 
trawl sectors have ensured that a sufficient amount of Pacific cod is 
left for incidental catch in groundfish trawl fisheries other than 
Pacific cod later in the year. Because of the reductions in the Pacific 
cod trawl sector allocations under Amendment 85, the Council proposed 
that an incidental catch allowance be established on an inseason basis 
for each trawl sector separately, rather than as a group, as the fixed 
gear sectors are, so that no trawl sector can erode another sector's 
total allocation, and to allow more flexibility to adjust incidental 
catch needs for each sector as these trawl fisheries change in the 
future.

Elimination of Pacific Cod Nonspecified Reserve

    Currently, during the annual harvest specifications process, 15 
percent of the BSAI TAC for each target species (except pollock and the 
hook-and-line and pot gear allocation for sablefish) and for the other 
species category is automatically placed in the nonspecified reserve as 
required at Sec.  679.20(b)(1). Half of the nonspecified reserve (7.5 
percent of TAC) for most species is then apportioned to the groundfish 
CDQ reserve. Historically, the half remaining in the reserve for 
Pacific cod, Atka mackerel, Pacific ocean perch, and several rockfish 
species is apportioned by NMFS to the non-CDQ TAC for their respective 
fisheries. This is done because the TAC for these fisheries is already 
fully

[[Page 5663]]

harvested; that is, U.S. fishing vessels have demonstrated the capacity 
to catch the full TAC allocations. NMFS uses the nonspecified reserve 
inseason to supplement the non-CDQ TAC for some species so that fishing 
operations can continue, or to account for catch in excess of allocated 
amounts.
    Under this proposed rule, Pacific cod would be exempt from having 
15 percent of the TAC placed in the nonspecified reserve. This 
deduction from Pacific cod TAC would no longer be needed under this 
proposed rule because a direct allocation to the CDQ reserve is 
specified. Additionally, the Pacific cod TAC is fully allocated among 
CDQ and non-CDQ harvesting sectors, and is fully harvested.

Reallocations of Pacific Cod Among Non-CDQ Sectors

    During the last fishing season of the year, NMFS considers whether 
one or more non-CDQ sectors will be unlikely to use its remaining BSAI 
Pacific cod allocation. To obtain optimum yield from the BSAI Pacific 
cod fishery, NMFS reallocates these projected unused allocations to 
other sectors. In the case of the jig sector, reallocations are made 
seasonally. NMFS considers whether a particular sector is still 
operating on the fishing grounds, and thus capable of harvesting any 
quota that is reallocated from another sector, when making reallocation 
decisions. Current regulations at Sec.  679.20(a)(7)(ii) outline the 
following system for reallocating projected unused allocations:
     Projected unused portions of a jig sector seasonal 
allowance are reallocated to the <60 ft LOA fixed gear CV sector.
     Projected unused hook-and-line CV sector and <60 ft LOA 
fixed gear sector allocations are reallocated to the hook-and-line CP 
sector.
     Projected unused trawl gear sector allocations are 
considered for reallocation to the other trawl gear sector (e.g., trawl 
CV to trawl CP) prior to being reallocated to another gear type (e.g. 
trawl gear to fixed gear).
     Remaining projected unused trawl allocations are 
reallocated 95 percent to the hook-and-line CP sector; 4.1 percent to 
the pot CV sector; and 0.9 percent to the pot CP sector.
    Although the intent of the Council under Amendment 85 is to revise 
sector allocations to better reflect actual catch history and thus 
reduce the frequency and amount of inseason reallocations, the Council 
and the public noted that some reallocations are likely to continue. 
Under this proposed rule, if, during a fishing year, the Regional 
Administrator determines that a sector would be unable to harvest the 
entire amount of Pacific cod allocated to that sector, NMFS would 
reallocate the projected unused amount of Pacific cod to other sectors. 
Reallocation decisions would be based in part on the hierarchy 
described below (in the sequence described), but also would take into 
account the capability of a sector to harvest the reallocated amount of 
Pacific cod. In general, under the proposed changes, projected unused 
allocations in any sector delivering inshore, i.e., CV sectors, would 
be reallocated primarily to other inshore sectors before being 
reallocated to any offshore, i.e., CP, sector, and, secondarily, within 
a gear type before being reallocated to another gear type.
    Under this proposed rule, the Regional Administrator would 
reallocate any projected unharvested amounts of Pacific cod TAC from 
any CV sector, first to the jig sector or to the <60 ft LOA fixed gear 
CV sector, or to both; then to the [gteqt]60 ft LOA fixed gear CV 
sectors; and then to the trawl CV sector. Any jig, <60 ft LOA fixed 
gear, or [gteqt]60 ft LOA hook-and-line CV sector allocation that is 
unlikely to be harvested through this hierarchy would be reallocated to 
the hook-and-line CP sector. Any [gteqt]60 ft LOA pot CV sector 
allocation that is unlikely to be harvested through this hierarchy will 
be reallocated to the pot CP sector as described below. Any trawl CV 
sector allocation that is unlikely to be harvested through this 
hierarchy will be reallocated to the other trawl sectors as described 
below.
    For any trawl CP sector, the Regional Administrator would 
reallocate any projected unharvested amounts of its Pacific cod TAC 
allocation to the other trawl CP sector and/or the trawl CV sector 
before unharvested amounts are reallocated to certain fixed gear 
sectors. Any reallocation to fixed gear sectors would be proportional 
to the proposed allocations for three fixed gear sectors as follows: 
83.1 percent to the hook-and-line CP sector, 2.6 percent to the pot CP 
sector, and 14.3 percent to the [gteqt]60 ft LOA pot CV sector.
    Any projected unharvested amounts of Pacific cod TAC allocated to 
the pot CP sector or to the [gteqt]60 ft LOA pot CV sector would be 
reallocated by the Regional Administrator to the other pot gear sector 
before it would be reallocated to the hook-and-line CP sector. Current 
Federal regulations do not explicitly mandate reallocation of Pacific 
cod between pot gear sectors, but do allow NMFS to reallocate unused 
pot CP or [gteqt]60 ft LOA pot CV allocations to the other pot gear 
sector before it is reallocated to other gear sectors. This action 
proposes to make pot gear sector reallocations explicit in regulation. 
This approach is consistent with the way the trawl sectors are 
addressed by the Council in this proposed rule. That is, Pacific cod 
would be reallocated within the same gear type before being reallocated 
to a different gear type.
    Two primary differences exist between the status quo and the 
reallocation hierarchy proposed under Amendment 85. The first 
difference is that NMFS would be required to consider reallocating 
within the inshore sectors before reallocating projected unused Pacific 
cod allocations from the inshore to the offshore sectors. This approach 
is consistent with the Council's decision to increase the harvest 
opportunities for the fleets delivering shoreside, which include some 
of the small boat sectors. The second difference is the relative 
reduction in the hook-and-line CP sector's share of the trawl 
reallocations compared to the status quo. The status quo is based on 
each of the specified fixed gear sector's share of the actual harvest 
of trawl reallocations between 1996 and 1998. However, under Amendment 
85, the Council chose to base the reallocations on each specified fixed 
gear sector's share of the overall BSAI Pacific cod non-CDQ TAC. 
Changing the reallocations to be proportional to the new fixed gear 
allocations is consistent with the problem statement, which states that 
allocations should be adjusted to better reflect historic use by 
sector. Because the new fixed gear allocations are based on catch 
history, with consideration for socioeconomic and community factors, 
basing reallocations on the same relative allocation among the 
specified fixed gear sectors is consistent with this objective.
    Note that, like the status quo, the Council only intends that NMFS 
consider the hierarchy proposed by this rule when making reallocation 
decisions. NMFS would take into account the intent of the rollover 
hierarchy, and the likelihood of a sector's capability to harvest 
reallocated quota prior to making the reallocation. The Council noted 
that it is important that NMFS retain this flexibility to determine how 
to reallocate projected unused sector allocations in order to avoid 
intermittent starting and stopping of the fishery and to reduce the 
risk of foregone harvest.

Seasonal Allowances

    Under existing regulations, Pacific cod allocations are further 
apportioned by season for most gear sectors to

[[Page 5664]]

protect prey availability for Steller sea lions (SSLs). Appendix A of 
the November 2001 Supplemental Environmental Impact Statement on SSL 
protection measures included the biological opinion on the effects of 
the pollock, Pacific cod, and Atka mackerel fisheries on SSLs and their 
designated critical habitat (2001 Biological Opinion). The 2001 
Biological Opinion requires temporal dispersion of harvest so that the 
overall BSAI Pacific cod fishery is limited to seasonal percentages of 
TAC of no more than 70 percent between January 1 and June 10, and 30 
percent between June 10 and December 31.
    Each sector's allocation is currently apportioned seasonally to 
meet this requirement (Sec.  679.20(a)(7)(iii)(A)). Currently, the 
trawl sectors receive 37.6 percent of the non-CDQ TAC in the first half 
of the year (28.2 percent in the A season and 9.4 percent in the B 
season) which is 80 percent of their allocations; the fixed gear 
sectors receive 30.2 percent of the non-CDQ TAC in the first half of 
the year (60 percent of their allocations), and the jig sector receives 
about 1.2 percent (about 60 percent of its allocation). In total, about 
69 percent of the total non-CDQ BSAI Pacific cod TAC is allowed to be 
harvested in the first half of the year. The <60 ft LOA fixed gear 
sector, which does not have its Pacific cod allocation apportioned by 
season, is excluded from this limitation and this exclusion would be 
maintained under Amendment 85 and this proposed rule.
    Because this proposed rule modifies non-CDQ sector allocations to 
decrease the amount of rollovers, if the same seasonal allowances were 
maintained, the fixed gear sectors could potentially harvest more 
Pacific cod in the first half of the year due to their overall 
increased share of the non-CDQ Pacific cod TAC. Similarly, the trawl 
sectors would have less of their Pacific cod allocation available in 
the first half of the year. However, the intent of the Council is to 
reflect the current fishery, to the extent possible, by maintaining 
each sector's current percentage of the non-CDQ TAC allocated in the 
first half of the year when fishing for Pacific cod is more 
advantageous.
    Therefore, to maintain the overall 70/30 seasonal split for all 
gear types combined and to maintain to the extent possible the current 
percentage of the Pacific cod TAC harvested in the first half of the 
year by the non-CDQ sectors, the proposed rule adjusts the seasonal 
allowances for each sector in response to the changes in sector 
allocations. The Council intent for this approach is to mirror the 
fishery as it is conducted today, and as it was evaluated in the 2001 
Biological Opinion.
    As proposed by the Council, the current percentage of the non-CDQ 
Pacific cod TAC harvested in the A season by trawl gear and by fixed 
gear would be maintained. The overall trawl allocation reduction would 
be applied first to the trawl C season, and any remaining reductions 
would be applied to the trawl B season. The increase in the overall 
fixed gear allocation would be applied only to its B season.
    Under this proposed rule, the jig sector seasonal allowance would 
change from 40-20-40 to 60-20-20. The jig sector has not successfully 
harvested its 40 percent allowance in the C season. Therefore, this 
change would allow for more harvest in the first season. Additionally, 
much of the jig sector's C season Pacific cod allocation is not 
available for reallocation to the <60 ft LOA fixed gear sector because 
this other small boat sector is no longer on the fishing grounds later 
in the year. Public testimony from the jig sector and coastal community 
representatives supported the proposed change in the jig gear seasonal 
allowance to 60-20-20. The Council took this testimony into 
consideration in making its decision to change the seasonal allowance 
for the jig sector to 60-20-20. Additionally, with a 60 percent 
seasonal allowance in the A season, the Council noted that any 
reallocated amounts of Pacific cod from the jig sector would roll over 
to the <60 ft LOA fixed gear sector when that small boat sector is 
still on the fishing grounds. This reallocation from the jig sector is 
also intended by the Council to help offset the proposed restriction 
that would prohibit the <60 ft LOA fixed gear sector from fishing off 
the allocations for the [gteqt]60 ft LOA pot CVs and the [gteqt]60 ft 
LOA hook-and-line CVs.
    Currently, the Pacific cod CDQ reserve is not apportioned by gear 
type. Therefore, the Pacific cod CDQ reserve cannot be apportioned 
seasonally by gear type at the beginning of the fishing year, as is 
done for the non-CDQ sectors. These seasonal allowances, currently 
specified at Sec.  679.20(a)(7)(iii)(A), apply to both the CDQ and non-
CDQ sectors. The Council did not change the approach for managing the 
seasonal catch of Pacific cod CDQ under Amendment 85 and the seasonal 
allowances for the CDQ Program would remain unchanged from the current 
percentages in this proposed rule (see Table 5). Because nearly all of 
the Pacific cod CDQ allocation is harvested with hook-and-line gear, 
the Council further assumed the seasonal apportionment of the Pacific 
cod CDQ allocation would continue to be 60 percent in the A season and 
40 percent in the B season. Additionally, the Magnuson-Stevens Act does 
not address the issue of seasonal allowances for the CDQ Program. 
Therefore, the proposed rule maintains the current seasonal allowances 
under the CDQ Program.
    Under this proposed rule, the CDQ groups must continue to manage 
their fisheries to keep their catch of Pacific cod within the seasonal 
allowances specified for the gear types they use to catch Pacific cod 
to comply with SSL protection measures. The proposed rule also would 
add a prohibition to Sec.  679.7(d) to clarify that the CDQ groups 
would be prohibited from exceeding the seasonal allowances of Pacific 
cod that are appropriate for the gear types that they use to catch 
Pacific cod CDQ.
    The proposed BSAI Pacific cod sector allowances for each sector, 
including CDQ, by season, as those seasons are specified under Sec.  
679.23(e)(5), are listed in Table 5.

                      Table 5. Seasonal Allowances
------------------------------------------------------------------------
                                  A season      B season      C season
                              ------------------------------------------
          Gear type                       A.            A.            A.
                                Current   85  Current   85  Current   85
------------------------------------------------------------------------
CDQ trawl                      60%       60%  20%      20%  20%      20%
------------------------------------------------------------------------
Non-CDQ trawl CV               70%       74%  10%      11%  20%      15%
------------------------------------------------------------------------
Non-CDQ trawl CP               50%       75%  30%      25%  20%      0%
------------------------------------------------------------------------

[[Page 5665]]

 
CDQ hook-and-line processors,  60%       60%  40%      40%   no C season
 hook-and-line [gteqt]60 ft
 LOA, pot gear vessels
 [gteqt]60 ft LOA
------------------------------------------------------------------------
Non-CDQ hook-and-line          60%       51%  40%      49%   no C season
 processors, hook-and-line
 [gteqt]60 ft LOA, pot gear
 vessels [gteqt]60 ft LOA
------------------------------------------------------------------------
CDQ jig vessels                40%       40%  20%      20%  40%      40%
------------------------------------------------------------------------
Non-CDQ jig vessels            40%       60%  20%      20%  40%      20%
------------------------------------------------------------------------
All other nontrawl vessels      no seasonal
                                  allowance
                                no seasonal
                                  allowance
                                no seasonal
                                  allowance
ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½
Total non-CDQ current             1/1 - 6/10 = 69%
 percentage
                                 6/10 - 12/31 = 31%
------------------------------------------------------------------------
Total non-CDQ proposed            1/1 - 6/10 = 68%
 percentage
                                 6/10 - 12/31 = 32%
------------------------------------------------------------------------
Total CDQ and non-CDQ             1/1 - 6/10 = 67%
 proposed percentage
                                 6/10 - 12/31 = 33%
------------------------------------------------------------------------

    To calculate the new seasonal allowance in the A season for a non-
CDQ sector, a simple ratio is used. A sector's seasonal percentage of 
the non-CDQ Pacific cod TAC is calculated by multiplying the current 
allocation (CA) by the current seasonal allowance (CSA). For a sector's 
seasonal percentage of the non-CDQ Pacific cod TAC to remain the same 
under Amendment 85, CA multiplied by CSA would equal the new allocation 
(NA) multiplied by the new seasonal allowance (NSA) (CA x CSA = NA x 
NSA). Solving the equation for NSA (which is unknown) yields NSA = (CA 
x CSA)/NA.
    The calculation of seasonal allowances for the trawl CP sectors is 
the most complicated, and is provided as an example. The current 
allocation for trawl CPs is 23.5 percent of the BSAI non-CDQ Pacific 
cod TAC. Multiplying the current allocation by the current A season 
allowance to the trawl CPs of 50 percent, equals 11.8 percent. Dividing 
11.8 percent by the combined new allocation to the trawl CP sectors of 
15.7 percent, yields a new A season allowance of 75 percent for the 
trawl CP sectors. The current seasonal percentages for the trawl CP 
sectors of the BSAI non-CDQ Pacific cod TAC is 11.8 percent in the A 
season, 7.1 percent in the B season and 4.7 percent in the C season. 
The overall allocation to the trawl CP sectors would decrease by 7.8 
percent of the non-CDQ Pacific cod TAC under the proposed rule. As 
proposed by the Council, these decreases would first be applied to the 
C season, resulting in a zero percent allowance in the C season, and 
then to the B season. This would result in the remaining 25 percent of 
the overall allocation to the trawl CP sectors being assigned to the 
trawl B season. The 7.8 percent decrease minus 4.7 percent from the C 
season leaves 3.1 percent which is subtracted from the B season 
allowance of 7.1 percent. The resulting 4.0 percent is divided by the 
overall allocation of 15.7 percent which equals 25 percent.
    Relative to current seasonal apportionments, less of the BSAI 
Pacific cod non-CDQ TAC would be allowed to be harvested in the first 
half of the year because of the proposed reductions in the trawl CP and 
jig sector allocations. This was determined by multiplying the proposed 
allocations by the seasonal allowances. The amount of the BSAI Pacific 
cod non-CDQ TAC that would be allowed to be harvested in the first half 
of the year (assuming the entire 2 percent allocation to the <60 ft LOA 
fixed gear sector is harvested in the first half of the year, to be the 
most conservative) would be 68 percent, which is less than the total 
current seasonal allowance of 69 percent of the TAC.
    Using a CDQ reserve for Pacific cod equal to 10.7 percent of the 
BSAI Pacific cod TAC, and using the current CDQ general seasonal 
allowances of 60 and 40 percent in the A and B seasons, respectively, 
the maximum A season harvest by all sectors (including the total 
allocation to the <60 ft LOA fixed gear sector allocation in the first 
half of the year) would be equal to about 67 percent of the BSAI 
Pacific cod TAC. This level is still below the SSL seasonal harvest 
limit of 70 percent of the TAC. Trawl gear is the only CDQ gear type 
that does not have a 60/40 split. However, in 2005 the CDQ groups 
harvested a total of 273 mt of Pacific cod with trawl gear, which 
equals 0.1 percent of the BSAI Pacific cod TAC. Therefore, the 
incidental catch of Pacific cod by CDQ trawl vessels is expected to 
have a negligible impact on the harvest of Pacific cod by season under 
this proposed rule.

Reallocation of Seasonal Allowances

    Any unused portion of a seasonal allowance of Pacific cod from any 
sector other than the jig sector, would continue to be reallocated to 
that sector's remaining seasons during the current fishing year. The 
Regional Administrator would continue to reallocate any projected 
unused portion of a seasonal allowance of Pacific cod from the jig 
sector to the <60 ft LOA fixed gear sector. Under this proposed rule, a 
projected unused portion of the seasonal allowance for the jig sector C 
season would be reallocated on or about September 1 of each year, if 
possible. The intent of the Council under this provision is to provide 
the last rollover from the jig sector when the <60 ft LOA fixed gear 
sector would still be on the fishing grounds.

Prohibited Species Catch

    Prohibited species catch (PSC) regulations pertain to certain 
species caught in the process of fishing for groundfish that must be 
accounted for but cannot be retained, except for halibut and salmon 
retained under the donation program at Sec.  679.26. Regulations at 
Sec.  679.21 establish PSC limits for Pacific halibut, three species of 
crab, salmon, and herring in the BSAI trawl groundfish fisheries, and a 
separate Pacific halibut PSC limit for nontrawl gear. These regulations 
also establish allocations of each PSC limit between the CDQ and non-
CDQ fisheries and a process for apportioning PSC among non-CDQ 
fisheries. The halibut PSC limit is set in regulation

[[Page 5666]]

and is not tied to population assessment for the halibut resource. The 
limits for the other PSC species are set to fluctuate as resource 
abundance fluctuates. Crab PSC limits are tied to PSC limitation zones 
for red king, bairdi (Chionoecetes bairdi), and opilio (C. opilio) 
crab, whereas the PSC limits for the other species are for the entire 
BSAI.
    Initially, 7.5 percent of each PSC limit, with the exception of 
herring, is set aside for the CDQ Program with the remainder of each 
PSC limit apportioned among specified fisheries as PSC allowances 
during the annual harvest specifications process. These PSC allowances 
are intended to optimize total groundfish harvest under established PSC 
limits, taking into consideration the anticipated amounts of incidental 
catch of prohibited species in each fishery. Depending on the 
prohibited species, reaching a PSC allowance results in closure of an 
area or a groundfish directed fishery, even if some of the groundfish 
TAC for that fishery remains unharvested.
    Under this proposed action, the Council recommended that the 
Pacific cod trawl fishery crab and halibut mortality PSC allowances be 
further apportioned among the trawl sectors. Similarly, the Pacific cod 
nontrawl halibut PSC allowances would be further apportioned between 
two hook-and-line sectors. Pot and jig sectors currently are exempt 
from halibut PSC limits due to very low bycatch rates in these sectors. 
The proposed rule would not change the process for establishing the 
annual PSC allowances to the CDQ Program and to the overall Pacific cod 
trawl and hook-and-line sectors as part of the annual harvest 
specifications.

Trawl Sector Halibut and Crab PSC Apportionments

    Currently, the total amount of halibut PSC mortality for trawl gear 
in the non-CDQ fisheries of 3,400 mt is apportioned in the annual 
harvest specifications process among the four following fisheries: (1) 
Pacific cod, (2) yellowfin sole, (3) rock sole/other flatfish/flathead 
sole, and (4) pollock/Atka mackerel/other fisheries. The current 
process to apportion the halibut PSC mortality for trawl gear among the 
non-CDQ fisheries would continue under the proposed action. Generally, 
about 1,400 mt of halibut PSC mortality is apportioned to the BSAI 
Pacific cod trawl fishery, but this amount and actual use can vary 
annually.
    As stated previously, the crab PSC limits fluctuate as resource 
abundance fluctuates, and limits are set by zone. The PSC limit 
(expressed in numbers of crab) in 2006 for zone 1 red king crab is 
182,225 crab for all trawl fisheries, with the Pacific cod trawl 
fisheries being allocated 26,563 crab of that total. The PSC limit in 
2006 for zone 1 bairdi crab is 906,500 crab for all BSAI trawl 
fisheries, with the Pacific cod trawl fisheries being allocated 183,112 
crab of that total. The 2006 PSC limit for zone 2 bairdi crab is 
2,747,250 crab for all BSAI trawl fisheries, with the Pacific cod trawl 
fisheries being allocated a relatively small proportion, 324,176 crab, 
of that total. The current PSC limit for opilio within the C. opilio 
bycatch limitation zone (COBLZ) is 4,494,569 crab for all BSAI trawl 
fisheries, with the Pacific cod trawl fisheries being allocated a 
relatively small proportion, 139,331 crab, of that total.
    In recent years, the trawl CV and trawl CP sectors' directed 
Pacific cod fisheries have closed most often due to reaching the 
seasonal TAC, to avoid exceeding the specified halibut PSC mortality 
limit, or because a fishing season has ended. Reaching a crab PSC limit 
results in closure of a specific area to directed fishing. Crab PSC 
typically does not limit the BSAI Pacific cod trawl fisheries, although 
occasional crab PSC closures have occurred in the past.
    The Council recommended that the amount of halibut and crab PSC 
mortality that would be apportioned to each Pacific cod trawl sector 
under this action be proportional to each sector's percentage of the 
Pacific cod harvested in the Pacific cod target fishery from 1999 
through 2003, including the Pacific cod retained for meal production. 
Accordingly, the annual PSC allowance of halibut and crab specified for 
the Pacific cod trawl fishery category would be divided among the trawl 
sectors as follows: 70.7 percent for trawl CVs; 4.4 percent for AFA 
trawl CPs; and 24.9 percent for non-AFA trawl CPs. Because the AFA and 
non-AFA trawl CVs would share a Pacific cod allocation, the Council 
decided that this sector also would receive combined PSC allowances of 
halibut and crab mortality.
    Halibut PSC mortality is attributed to a fishery based upon what 
the target fishery is. A significant amount of Pacific cod is taken 
incidentally in trawl fisheries for species other than Pacific cod. 
However, the halibut PSC mortality associated with that incidental 
Pacific cod harvest is attributed to a fishery other than the Pacific 
cod trawl fishery.
    The Council's intent for the proposed PSC apportionments among the 
trawl gear sectors that target Pacific cod was to allow each sector to 
better plan its operations by being able to manage its PSC use during 
the fishing year without its PSC being eroded by another sector. 
However, based on the directed Pacific cod trawl fishery's historical 
halibut and crab PSC use, the proposed percentage of the total halibut 
and crab PSC allowances to the Pacific cod trawl CV sector would 
increase disproportionately relative to the trawl CP sectors as a 
whole. This is because both trawl CP sectors caught a relatively high 
percentage of their Pacific cod while targeting on species other than 
Pacific cod. The trawl CV sector caught 6.9 percent of its Pacific cod 
in other fisheries, while the non-AFA CP sector caught 45.9 percent of 
its Pacific cod in other trawl fisheries, and the AFA CP sector caught 
44.2 percent of its Pacific cod in other trawl fisheries. The Council 
noted that the halibut and crab PSC allowances for the trawl fisheries 
that harvest Pacific cod incidentally would be apportioned under other 
trawl fishery categories based on the target groundfish species.
    Table 6 projects the amount of halibut and crab PSC mortality that 
would be apportioned to each trawl sector under Amendment 85 using the 
2006 PSC apportionments. Table 7 shows each sector's average historical 
use in the directed Pacific cod fishery from 1995-2003 for halibut and 
from 1995-2002 for crab. Under the proposed rule, each sector would be 
limited to using its PSC allowances in its directed Pacific cod 
fishery.

  Table 6. Projected Pacific cod trawl PSC allowances for each trawl sector under Amendment 85 using 2006 total
                               Pacific cod trawl fishery group PSC apportionments
----------------------------------------------------------------------------------------------------------------
                                       Halibut PSC    Red king crab    Opilio PSC   Zone 1 bairdi  Zone 2 bairdi
                                      allowance (mt   PSC allowance    allowance    PSC allowance  PSC allowance
               Sector                    halibut      ( of  ( of  ( of  ( of
                                       mortality)         crab)          crab)          crab)          crab)
----------------------------------------------------------------------------------------------------------------
AFA Trawl CP                         63              1,169           6,131          8,057          14,264
----------------------------------------------------------------------------------------------------------------

[[Page 5667]]

 
Non-AFA Trawl CP                     357             6,614           34,693         45,595         80,720
----------------------------------------------------------------------------------------------------------------
Trawl CV                             1,014           18,780          98,507         129,460        229,192
----------------------------------------------------------------------------------------------------------------
Total 2006 PSC for Pacific cod       1,434           26,563          139,331        183,112        324,176
 trawl fishery
----------------------------------------------------------------------------------------------------------------


  Table 7. Pacific cod trawl PSC average annual mortality for each trawl sector from 1995-2003 for halibut and
                                             from 1995-2002 for crab
----------------------------------------------------------------------------------------------------------------
                                                   Red king crab  Opilio ( of    i> of crab)    ( of   ( of
                                         (mt)          crab)                           crab)           crab)
----------------------------------------------------------------------------------------------------------------
AFA Trawl CP                         21           166             189             469             1,685
----------------------------------------------------------------------------------------------------------------
Non-AFA Trawl CP                     459          4,730           34,645          72,391          25,546
----------------------------------------------------------------------------------------------------------------
Trawl CV                             737          1,114           6,768           59,810          19,376
----------------------------------------------------------------------------------------------------------------
Total                                1,216        6,010           41,602          132,670         46,607
----------------------------------------------------------------------------------------------------------------

    During its deliberation on adoption of Amendment 85, the Council 
understood and acknowledged that the potential impact of the percentage 
of Zone 1 bairdi crab PSC mortality apportioned to the non-AFA trawl CP 
sector could be constraining compared to historic use, but chose not to 
modify its decision. The Council determined that the amount of Zone 1 
bairdi crab that would be apportioned to the non-AFA trawl CP sector 
would fall within the range of what this sector has caught 
historically. NMFS is concerned that the Council's recommendation for 
Amendment 85 would provide substantially less halibut and Zone 1 bairdi 
crab PSC mortality to support the non-AFA trawl CP sector Pacific cod 
fishery than this sector has used historically, and only about the 
average amount of opilio crab PSC mortality. Thus, the proposed PSC 
apportionments could limit this sector's directed fishery for Pacific 
cod. The non-AFA trawl CP sector is concerned that it may already have 
its directed fishery limited by its proposed Pacific cod allocation 
under Amendment 85 which is less than its more recent history. 
Similarly, NMFS is concerned that the trawl CV sector would have 
greater PSC allowances than it has used historically and that such 
increases in PSC would not be needed to support this sector's proposed 
allocation of Pacific cod, which is less than its average historical 
catch. NMFS also is concerned that setting individual PSC sector 
percentage allowances in regulations is more constraining to the trawl 
sector than the more flexible method used to distribute halibut PSC 
mortality among the nontrawl gear sectors during the annual harvest 
specifications process.
    NMFS is seeking public comment regarding whether to continue with 
the status quo method of distributing the PSC allowance among the 
Pacific cod trawl sectors during the annual harvest specifications 
process, or to set individual PSC allowances for each trawl sector as 
proposed under Amendment 85 and this rule. NMFS notes that the Council 
has developed a separate amendment to the FMP, Amendment 80, to further 
restructure the trawl PSC apportionments among fishery categories. 
Amendment 80 would allocate specified groundfish species and PSC to the 
non-AFA trawl CP sector. That proposed action would supercede the trawl 
PSC allocations under Amendment 85, but has yet to be forwarded to the 
Secretary for review and approval.

Nontrawl Sector Halibut PSC Apportionment

    The total amount of nontrawl halibut PSC for the non-CDQ fisheries 
currently is 833 mt of mortality. This amount is typically apportioned 
between the Pacific cod hook-and-line fishery and other nontrawl 
fisheries during the annual harvest specifications process. Generally, 
775 mt is apportioned to the hook-and-line Pacific cod fishery and 58 
mt to other nontrawl groundfish fisheries (primarily the Greenland 
turbot target fishery). Between 1995 and 2003, the halibut mortality in 
the hook-and-line CP fishery averaged 684.9 mt per year, and the hook-
and-line CV averaged 5.9 mt per year, for a total of about 691 mt per 
year. This proposed rule would not change the total amount of halibut 
PSC mortality allocated to the hook-and-line Pacific cod sectors.
    Currently, the annual Pacific cod hook-and-line halibut PSC 
allowance is apportioned among three seasons: 320 mt (January 1 to June 
10); 0 mt (June 10 to August 15); and 455 mt (August 15 to December 
31). If a seasonal allowance of halibut PSC mortality is reached, 
directed fishing for BSAI Pacific cod by all vessels using hook-and-
line gear is closed for the remainder of the season. A seasonal halibut 
PSC allowance in the second season has not been specified in recent 
years because halibut bycatch rates during that season are relatively 
high. Thus, a hook-and-line directed fishery for Pacific cod has not 
operated in the summer months.
    The hook-and-line CP sector generally supports not providing a 
halibut PSC limit in the second season, because fishing when the 
halibut bycatch rates are high could risk closing the directed Pacific 
cod fishery prior to the allocation being fully harvested. However, the 
hook-and-line CV sector, which also is constrained by the same PSC 
limit, is comprised of smaller vessels with slower catch rates and a 
relatively small Pacific cod allocation compared to the hook-and-line 
CP sector. While the PSC limit has not been

[[Page 5668]]

constraining to these sectors in the recent past, the Council is of the 
opinion that the hook-and-line CV sector might benefit from a halibut 
PSC limit separate from the hook-and-line CP sector, and potentially, 
the ability to fish for Pacific cod in the summer months when the 
weather is more favorable for smaller vessels. This would be consistent 
with the Council's concept of establishing separate Pacific cod 
allocations and separate PSC limits for each trawl and nontrawl sector, 
such that no sector can impede another sector's Pacific cod fishery.
    Therefore, this proposed rule would divide the halibut PSC 
allowance annually specified for the hook-and-line Pacific cod fishery 
between two fishery sectors: the hook-and-line CP sector and the hook-
and-line CV sector (CVs [gteqt]60 ft LOA and CVs <60 ft LOA combined). 
The nontrawl halibut PSC allowance apportioned to these fishery sectors 
would be established annually during the harvest specifications 
process. The apportionment would be based on each sector's proportional 
share of the anticipated bycatch mortality of halibut during a fishing 
year, and the need to optimize the amount of total groundfish harvested 
under the nontrawl halibut PSC mortality limit.
    The Council's recommendation was to not fix the amount of halibut 
PSC apportioned to the hook-and-line BSAI Pacific cod fishery 
categories in regulation, but to continue making that determination in 
the annual harvest specifications process. The Council deliberations on 
this issue indicated that a halibut PSC allowance of 10 mt to the 
Pacific cod hook-and-line CV sector might be a starting point to guide 
the specifications process in this determination. The Council's intent 
was to allow NMFS flexibility to adjust these amounts if necessary in 
the future, rather than fix the amounts in Federal regulations. Under 
this action, NMFS could provide varying amounts of halibut PSC by 
season to each sector, tailoring PSC limits to suit the needs and 
timing of each sector.

Pacific Cod and PSC Sideboard Limits for AFA Sectors

    Sideboards are harvesting and processing restrictions that were 
placed on AFA CVs and AFA CPs operating in the BSAI pollock fishery. 
The basis for the sideboard limits is described in detail in the final 
rule implementing the AFA that was published December 30, 2002 (67 FR 
79692). To protect the interests of other fishermen and processors that 
did not benefit directly from the AFA, these sideboards restrict the 
ability of AFA vessels to participate in directed fisheries for non-
pollock groundfish species. For Pacific cod, these sideboards are based 
on the total amount of Pacific cod retained by the different AFA vessel 
sectors as a percentage of the non-CDQ TAC in 1997. Currently, the AFA 
trawl CP sector has a sideboard limit of 6.1 percent of the non-CDQ 
Pacific cod TAC, and the non-exempt AFA trawl CV sector (see the AFA 
final rule for an explanation of the non-exempt vessels) has a 
sideboard limit of 20.2 percent of the non-CDQ Pacific cod TAC.
    This action proposes to remove Sec.  679.64(a)(1)(ii) that 
specifies the sideboard limits of BSAI Pacific cod for the AFA trawl 
CPs. The establishment of a separate Pacific cod allocation to this 
sector under Sec.  679.20(a)(7) negates the need for the BSAI Pacific 
cod sideboard which protects the historic share of the non-AFA trawl CP 
sector from being eroded by the AFA CP vessels. For the same reason, 
BSAI Pacific cod would be added to the list of exceptions to the 
groundfish species or species groups for which sideboard harvest limits 
would be calculated for AFA listed CPs in the introductory text under 
Sec.  679.64(a)(1).
    The halibut and crab PSC sideboard limits for both AFA sectors 
would be maintained as set out in Sec.  679.64(a) and (b). These PSC 
sideboard limits would continue to be managed through directed fishing 
closures in the groundfish fisheries for which the PSC sideboard limit 
applies. The PSC sideboards for the AFA trawl CP sector would not be 
increased by this proposed rule, but a portion of the PSC sideboards 
would be set aside as an allocation for use in this sector's Pacific 
cod directed fishery. To continue protection of the non-AFA CVs, the 
Council proposed under Amendment 85 to continue the Pacific cod 
sideboards and the halibut and crab PSC sideboards for AFA CVs.

Other Revisions

    Four definitions for CPs would be modified or added to the 
regulations in accordance with the Consolidated Appropriations Act, 
2005, as noted earlier. This proposed rule includes a revised 
definition for AFA trawl CP and new definitions for hook-and-line CP, 
non-AFA trawl CP, and pot CP, consistent with the provisions of the 
Act. The proposed definition for hook-and-line CP is substantively 
consistent with the Act's definition for longline CP subsector.
    The definition for ``CDQ reserve'' would be revised to change and 
update terms and to generalize the cross reference. Under current 
regulations, ``CDQ reserve'' is defined ``as a percentage of each 
groundfish TAC apportioned under Sec.  679.20(b)(1)(iii), a percentage 
of a catch limit for halibut, or a percentage of a guideline harvest 
level for crab that has been set aside for purposes of the CDQ 
Program.'' The proposed definition would change the term 
``percentage,'' where it appears, to ``amount'' to more accurately 
reflect that the term ``CDQ reserve'' is used elsewhere in 50 CFR part 
679 to refer to the annual amounts of the allocations to the CDQ 
Program by weight for groundfish and halibut, and by numbers for crab. 
The term ``guideline harvest level'' for crab would be replaced with 
the term ``TAC'' to be consistent with the term used for annual crab 
quotas in 50 CFR part 680. The cross reference would be generalized 
because this is an overall definition of CDQ Program apportionments for 
various species allocated to the program. Regulations at Sec.  
679.20(b)(1)(iii) discuss the establishment of the CDQ reserve from the 
nonspecified reserve. Amendment 85 would remove Pacific cod from this 
process and direct that Pacific cod CDQ be allocated directly from the 
Pacific cod TAC, similar to the way that pollock and sablefish are 
allocated to the CDQ reserve. Thus, the paragraph cited is no longer an 
applicable reference for the CDQ reserve for pollock, sablefish, or 
Pacific cod. Stepping back the reference citation in the current 
definition from ``Sec.  679.20(b)(1)(iii)'' to the more general level 
of ``Sec.  679.20'' would include all the paragraphs that allocate 
groundfish to the CDQ reserve.
    The prohibition at Sec.  679.7(d)(5) would be revised to remove the 
term ``crab PSQ.'' The red king, bairdi, and opilio crab PSQs are 
managed with area closures under the prohibitions at Sec.  679.7(d)(6), 
(d)(7), and (d)(8) and should not also have been included in the 
prohibition at Sec.  679.7(d)(5).
    The introductory text of Sec.  679.20 would be revised to clarify 
that this section applies to vessels engaged in directed fishing for 
groundfish in the Gulf of Alaska (GOA) or the BSAI. Current text 
ambiguously states ``GOA and BSAI,'' which could be interpreted as 
meaning that the sections applies only to vessels that fish in both 
areas. However, vessels directed fishing for groundfish in either ``the 
GOA or the BSAI'' are affected by the regulations in this section.
    The information in Sec.  679.21(e)(1)(i) and (e)(2)(ii), concerning 
the reserves in the BSAI for the CDQ Program, would be moved to Sec.  
679.21(e)(3)(i)(A) and (e)(4)(i)(A) respectively. This regulatory text 
would be moved from the paragraphs allocating PSC by species, to the 
more appropriate location under the

[[Page 5669]]

paragraphs making PSC apportionments to the various fishery categories. 
The regulatory text from Sec.  679.21(e)(2)(i) would become the new 
regulatory text for Sec.  679.21(e)(2).
    This proposed rule would correct a typographical error in newly 
redesignated Sec.  679.21(e)(1)(i), which references red king crab, by 
revising the reference from Sec.  679.21(e)(1)(iii), which applies to 
tanner crab, to the newly redesignated Sec.  679.21(e)(1)(i), which 
applies to red king crab.
    The proposed rule would revise the heading of the newly 
redesignated paragraph at Sec.  679.21(e)(2)(vi) from ``Chinook 
salmon'' to ``BS Chinook salmon.'' This revision would clarify that 
only BS Chinook salmon is the subject of this paragraph and would 
better correlate with the heading of the newly redesignated paragraph 
at Sec.  679.21(e)(2)(viii) that is ``AI Chinook salmon.''
    For purposes of apportioning the hook-and-line halibut PSC limit 
among sectors, definitions would be added for the new Pacific cod hook-
and-line fishery categories at Sec.  679.21(e)(4)(ii)(A) and 
(e)(4)(ii)(B). ``Nontrawl fishery categories'' would be revised to 
replace ``Pacific cod hook-and-line fishery'' with ``Pacific cod hook-
and-line catcher vessel fishery'' and ``Pacific cod hook-and-line 
catcher/processor fishery'' to complement the previously noted division 
of this category. The regulations at Sec.  679.21(e)(4)(ii)(C) through 
(e)(4)(ii)(E) would be unchanged except for their redesignations due to 
adding a category for the Pacific cod hook-and-line CP fishery. The 
introductory text at Sec.  679.21(e)(4)(ii) would remain unchanged.
    In Sec.  679.23, paragraphs (e)(6) and (e)(7), applicable through 
December 31, 2002, would be removed because they are no longer in 
effect.
    This proposed rule would correct a typographical error at Sec.  
679.32(b), which references the halibut PSC limit for vessels using pot 
or jig gear, by revising the reference in the paragraph from Sec.  
679.21(e)(5), which applies to seasonal apportionments of bycatch 
allowances, to Sec.  679.21(e)(4), which applies to nontrawl halibut 
PSC apportionment.
    This proposed rule would correct a typographical error at Sec.  
679.50(c)(1)(iii), which references the chum salmon savings area, by 
revising the reference in the paragraph from Sec.  679.21(e)(7)(vi), 
which applies to Pacific herring, to Sec.  679.21(e)(7)(vii), which 
applies to chum salmon.

Classification

    At this time, NMFS has not determined that the FMP amendment that 
this rule would implement is consistent with the national standards of 
the Magnuson-Stevens Act and other applicable laws. NMFS, in making 
that determination, will take into account the data, views, and 
comments received during the comment period.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    An IRFA was prepared, as required by section 603 of the Regulatory 
Flexibility Act (RFA). The IRFA describes the economic impact this 
proposed rule, if adopted, would have on small entities. A description 
of the action, the reasons why it is being considered, and a statement 
of the objectives of, and the legal basis for, this action are 
contained at the beginning of this section in the preamble and in the 
SUMMARY section of the preamble. A summary of the analysis follows. A 
copy of this analysis is available from NMFS (see ADDRESSES).
    The directly regulated entities are the commercial fishing entities 
operating vessels that participate in the BSAI Pacific cod directed 
fisheries and the six CDQ groups. Of the 310 vessels participating in 
2003, 169 vessels are estimated to be small entities directly regulated 
by the proposed action, as detailed below.
    For purposes of an IRFA, the Small Business Administration (SBA) 
has established that a business involved in fish harvesting is a small 
business if it is independently owned and operated and not dominant in 
its field of operation (including its affiliates) and if it has 
combined annual gross receipts not in excess of $4.0 million for all 
its affiliated operations worldwide. A seafood processor is a small 
business if it is independently owned and operated, not dominant in its 
field of operation, and employs 500 or fewer persons on a full-time, 
part-time, temporary, or other basis, at all its affiliated operations 
worldwide.
    Because the SBA does not have a size criterion for businesses that 
are involved in both the harvesting and processing of seafood products, 
NMFS has in the past applied and continues to apply SBA's fish 
harvesting criterion for these businesses because CPs are first and 
foremost fish harvesting businesses. Therefore, a business involved in 
both the harvesting and processing of seafood products is a small 
business if it meets the $4.0 million criterion for fish harvesting 
operations. NMFS currently is reviewing its small entity size 
classification for all CPs in the United States. However, until new 
guidance is adopted, NMFS will continue to use the annual receipts 
standard for CPs. NMFS plans to issue new guidance in the near future.
    This IRFA used the most recent year of data available to conduct 
this analysis (2003). As stated previously, the commercial entities 
directly regulated by the proposed action are divided into nine sectors 
for the purpose of (non-CDQ) BSAI Pacific cod allocations, and the CDQ 
allocation is considered a separate sector. A description of the 
participants in, and the eligibility requirements for, each non-CDQ 
sector is provided in detail above, as is a description of the CDQ 
sector.
    Vessels that were considered large entities, for purposes of the 
IRFA, were those with individual annual gross receipts greater than 
$4.0 million, or those affiliated under owners of multiple vessels, 
contractual relationships, and/or affiliated through fishing 
cooperative membership (e.g., AFA) that, when combined with earnings 
from all such affiliated operations, had aggregate annual gross 
revenues greater than $4.0 million. Insufficient documentation of 
multiple and joint-ownership structures, contractual affiliations, 
interlocking agreements, etc., among vessels in the various fleets of 
interest, herein, exist with which to confidently estimate the number 
of directly regulated small (and large) entities. Recognizing this, the 
IRFA is understood to likely overestimate the actual number of directly 
regulated small entities subject to this action.
    The majority of the CVs in all gear sectors can be considered small 
entities under a conservative application of the existing threshold 
criterion. In 2003, only the AFA trawl CVs were considered large 
entities, as they are known to be party to a harvest cooperative 
system. The remaining 138 CVs of all gear types appear to meet the 
criterion for a small entity, as applied by evaluating the 2003 gross 
revenue data on a per vessel basis. However, as just noted, little is 
known about the ownership structure of the vessels in the fleets. Thus, 
based on the best available data, the following vessels appear to meet 
the application of the criterion above for a small entity in 2003: 25 
hook-and-line and pot CVs <60 ft LOA; 22 non-AFA trawl CVs; 15 jig CVs; 
6 hook-and-line CVs [gteqt]60 ft LOA; and 70 pot CVs [gteqt]60 ft LOA.
    In the CP sector, the available data indicate that fewer than half 
meet the threshold for a small entity, as applied by evaluating the 
2003 gross revenue on

[[Page 5670]]

a per vessel basis. Thirty-one of the 81 participating vessels in 2003 
had gross receipts not in excess of $4.0 million. Again, because little 
is known about the ownership structure of the vessels in the fleets, it 
is likely that the IRFA overestimates the number of small entities. 
Thus, based on the best available data, the following vessels meet the 
application of the criterion above for a small entity in 2003: 24 hook-
and-line CPs; 4 non-AFA trawl CPs; and 3 pot CPs. In sum, of the 310 
vessels participating in 2003, 169 vessels are estimated as small 
entities directly regulated by the proposed action.
    The six CDQ groups participating in the CDQ Program are not-for-
profit entities that are not dominant in the overall BSAI fishing 
industry. Thus, the six CDQ groups directly regulated by the proposed 
action would be considered small entities or ``small organizations'' 
under the RFA. Thus, under a conservative application of the SBA 
criterion and the best available data, the total number of small 
entities directly regulated by the proposed action is estimated as 175.
    Within this universe of small entities impacts may accrue 
differentially; i.e., some small entities could be negatively affected 
and others positively affected. Therefore, the Council deliberately 
sought to provide considerable accommodation for the smallest of the 
small entities under this amendment. Thus, while the proposed action is 
distributional in nature, the overall impact to the smallest of the 
small entities is expected to be positive.
    This regulation does not impose new record keeping or reporting 
requirements on the directly regulated small entities.
    This proposed action does not duplicate, overlap, or conflict with 
other Federal rules.
    The IRFA analyzed the ``no action'' alternative (Alternative 1) and 
the proposed action (Alternative 2). Each of these alternatives was 
comprised of the same set of eight components, or issues. Alternative 1 
would continue the following: (1) the current overall gear allocations 
in the BSAI Pacific cod fishery that were established under Amendment 
46 in 1997; (2) the current CDQ allocation of 7.5 percent of the BSAI 
Pacific cod TAC; and (3) the current apportionment of the fixed gear 
portion of the BSAI Pacific cod non-CDQ TAC established under Amendment 
77 in 2004. Alternative 1 also would continue shared halibut and crab 
PSC allowances to the BSAI Pacific cod trawl fishery category, which 
would mean that halibut and crab PSC harvest by each trawl sector would 
accrue to the same PSC allowance. Similarly, Alternative 1 would 
continue a shared halibut PSC allowance to the BSAI hook-and-line 
Pacific cod fishery category.
    Before the Council made its decisions for Amendment 85, thus 
forming the proposed action, it considered several options under each 
of the eight components. These many options are analyzed in the RIR. 
The combination of these options resulted in the evaluation of a 
multitude of potential alternatives. For example, Table 8 provides a 
summary of the component concerning sector allocations, including the 
range of potential allocations to each non-CDQ sector considered by the 
Council, the current sector allocations, and the selections made under 
the preferred alternative.

                           Table 8. Percent non-CDQ sector allocations by alternative
----------------------------------------------------------------------------------------------------------------
                                                                 Range of allocations        Proposed action
              Sectors                 Current (alternative 1)     Council considered         (alternative 2)
----------------------------------------------------------------------------------------------------------------
Jig                                  2.0                       0.1 - 2.0                1.4
----------------------------------------------------------------------------------------------------------------
Hook-and-line/pot CV <60 ft LOA      0.7                       0.1 - 2.0                2.0
----------------------------------------------------------------------------------------------------------------
Hook-and-line CV [gteqt]60 ft LOA    0.2                       0.1 - 0.4                0.2
----------------------------------------------------------------------------------------------------------------
Hook-and-line CP                     40.8                      45.8 - 50.3              48.7
----------------------------------------------------------------------------------------------------------------
Pot CV [gteqt]60 ft (18.3 m) LOA     7.6                       7.3 - 9.2                8.4
----------------------------------------------------------------------------------------------------------------
Pot CP                               1.7                       1.4 - 2.3                1.5
----------------------------------------------------------------------------------------------------------------
AFA trawl CP                         23.5 (AFA CP sector       0.9 - 3.7                2.3
                                      subject to 6.1%
                                      sideboard)
------------------------------------                          --------------------------------------------------
Non AFA trawl CP                     ........................  12.7 - 16.2              13.4
----------------------------------------------------------------------------------------------------------------
AFA trawl CV                         23.5 (non-exempt AFA CV   17.8 - 24.4              22.1
                                      sector subject to 20.2%
                                      sideboard)
------------------------------------                          -------------------------
Non-AFA trawl CV                     ........................  0.5 - 3.1                ........................
----------------------------------------------------------------------------------------------------------------

    Amendment 85 is thus one derivation of many possible options, 
reflecting an effort to balance the economic and social objectives for 
the action against the potential burden placed on directly regulated 
entities (especially those which are ``small''). One option was 
selected under each of the eight components to comprise its final 
preferred alternative. The preferred alternative is described in detail 
in the RIR.
    Several measures are included in the proposed rule that would 
reduce impacts on small entities. A specific means to facilitate 
economic opportunity and stability for small entities participating in 
the Pacific cod fisheries would be to establish BSAI Pacific cod 
allocations for the smallest of the small entities (jig vessels and the 
<60 ft LOA hook-and-line and pot CVs) that represent a net increase 
over their actual catch history. This would provide for potential 
growth in those sectors. On average during 1995 to 2003, the combined 
harvest history by these sectors was about 0.5 percent of the retained 
BSAI Pacific cod harvest. However, in recent years it appears that the 
<60 ft LOA fixed gear CV sector has increased its participation in the 
BSAI

[[Page 5671]]

Pacific cod fishery and could benefit from additional quota, if it were 
made available. This specific accommodation for small entities is 
included in the proposed rule.
    The BSAI Pacific cod fisheries are currently managed through a 
complex series of permits, gear and area endorsements, and licenses. 
Many are predicated on historical participation and/or performance 
thresholds (e.g., meeting or exceeding a specific threshold landing in 
a specific series of seasons, etc.). Many of these requirements result 
in extremely high entry costs and physical barriers for small vessels 
and entry level operations. To relieve these burdens and obstacles to 
participation, an important means of accommodating small entities can 
be ``exemptions'' from, for example, requirements to acquire some 
specific permits, and/or meeting historical catch and participation 
thresholds, extended to particularly vulnerable or disproportionately 
burdened classes of smaller vessels.
    Recognizing the opportunity to facilitate and sustain small entity 
participation, the Council incorporated a number of exemptions for 
small entities in the action. The proposed rule would maintain the 
current reallocation process whereby any unused jig quota is first 
considered for reallocation to the <60 ft LOA fixed gear sector before 
being reallocated to any other sector. The proposed rule also would 
change the jig sector seasonal allowance such that 20 percent more of 
the jig allocation is allowed to be harvested in the first half of the 
year. Thus, more Pacific cod may potentially be harvested by the <60 ft 
LOA fixed gear sector earlier in the year, when the weather is 
preferable for this small boat sector. The proposed rule also would 
specify that the third trimester of the jig allocation, if it is to be 
reallocated, should be available to the <60 ft LOA fixed gear CV sector 
on or about September 1. The intent of this provision is to reallocate 
quota between the small boat CV sectors as early in the year as 
possible, in order for these sectors to have an opportunity to harvest 
the quota under better weather conditions.
    The proposed action also would increase the BSAI Pacific cod 
allocation to the CDQ Program. The proposed rule would increase the 
Pacific cod CDQ allocation from 7.5 percent of the Pacific cod TAC to 
10.7 percent, as mandated by the recent amendments to the Magnuson-
Stevens Act. Similar to the status quo, this allocation would fund all 
of the directed and nontarget catch of Pacific cod taken in the CDQ 
fisheries.
    A tradeoff would exist in terms of impacts on the small entities in 
the non-CDQ sectors whose allocations would be reduced (proportionally 
by 3.2 percent) by the increase to the CDQ Program. However, the 
proposed action represents a positive effect on the six small entities 
that comprise the CDQ groups in terms of potential revenues resulting 
from an increased allocation. This increase in royalty payments is 
estimated as approximately $1.1 million. Nonetheless, efforts to 
minimize the burden on the smallest of small entities, as discussed 
above, by exempting them from the most onerous permit and recency 
requirements, and by allocating Pacific cod TAC amounts in excess of 
their recent Pacific cod harvest levels, reflects a sincere effort to 
address the needs of these small entities.
    In sum, many vessels in each sector directly regulated by the 
proposed action are small entities. Because this action is principally 
designed to reapportion access to the cod resource among current user 
groups, by definition, it represents tradeoffs (i.e., some small 
entities could be negatively affected, while others are positively 
affected). In addition, the six CDQ groups would receive an increased 
allocation under the proposed action.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Recordkeeping and reporting requirements.

    Dated: February 1, 2007.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 679 is 
proposed to be amended as follows:

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

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

    Authority: 16 U.S.C. 773 et seq.; 1540(f); 1801 et seq.; 1851 
note; 3631 et seq.
    2. In Sec.  679.2, remove the definition for ``AFA catcher/
processor'', revise the definition for ``CDQ reserve'', and add 
definitions for ``AFA trawl catcher/processor'', ``Hook-and-line 
catcher/processor'', ``Non-AFA trawl catcher/processor'', and ``Pot 
catcher/processor'' in alphabetical order to read as follows:


Sec.  679.2  Definitions.

* * * * *
    AFA trawl catcher/processor means:
    (1) For purposes of BS pollock and all BSAI groundfish fisheries 
other than Atka mackerel, flathead sole, Greenland turbot, Pacific cod, 
Pacific ocean perch, rock sole, and yellowfin sole, a catcher/processor 
that is permitted to harvest BS pollock under Sec.  679.4(l)(2).
    (2) For purposes of BSAI Atka mackerel, flathead sole, Greenland 
turbot, Pacific cod, Pacific ocean perch, rock sole, and yellowfin 
sole, a catcher/processor that is permitted to harvest BS pollock and 
that is listed under Sec.  679.4(l)(2)(i).
* * * * *
    CDQ reserve means the amount of each groundfish TAC apportioned 
under Sec.  679.20, the amount of each catch limit for halibut, or the 
amount of TAC for crab that has been set aside for purposes of the CDQ 
Program.
* * * * *
    Hook-and-line catcher/processor means a catcher/processor vessel 
that is named on a valid LLP license that is noninterim and 
transferable, or that is interim and subsequently becomes noninterim 
and transferable, and that is endorsed for Bering Sea or Aleutian 
Islands catcher/processor fishing activity, catcher/processor, Pacific 
cod, and hook-and-line gear.
* * * * *
    Non-AFA trawl catcher/processor means, for purposes of BSAI Atka 
mackerel, flathead sole, Greenland turbot, Pacific cod, Pacific ocean 
perch, rock sole, and yellowfin sole, a catcher/processor vessel using 
trawl gear and that:
    (1) Is not an AFA trawl catcher/processor listed under Sec.  
679.4(l)(2)(i);
    (2) Is named on a valid LLP license that is endorsed for Bering Sea 
or Aleutian Islands trawl catcher/processor fishing activity; and
    (3) Was used to harvest with trawl gear in the BSAI and process not 
less than a total of 150 mt of Atka mackerel, flathead sole, Greenland 
turbot, Pacific cod, Pacific ocean perch, rock sole, or yellowfin sole 
between January 1, 1997, and December 31, 2002.
* * * * *
    Pot catcher/processor means a catcher/processor vessel that is 
named on a valid LLP license that is noninterim and transferable, or 
that is interim and subsequently becomes noninterim and transferable, 
and that is endorsed for Bering Sea or Aleutian Islands catcher/
processor fishing activity, catcher/processor, Pacific cod, and pot 
gear.
* * * * *
    3. In Sec.  679.7, revise paragraph (d)(5) and add paragraph 
(d)(25) to read as follows:

[[Page 5672]]

Sec.  679.7  Prohibitions

* * * * *
    (d) * * *
    (5) For a CDQ group, exceed a CDQ or a halibut PSQ.
* * * * *
    (25) For a CDQ group, exceed a seasonal allowance of Pacific cod 
under Sec.  679.20(a)(7)(i)(B).
* * * * *
    4. In Sec.  679.20, remove paragraph (b)(1)(iv) and revise the 
section's introductory text and paragraph (a)(7) to read as follows:


Sec.  679.20  General limitations.

    This section applies to vessels engaged in directed fishing for 
groundfish in the GOA or the BSAI.
    (a) * * *
    (7) Pacific cod TAC, BSAI--(i) CDQ reserve and seasonal allowances. 
(A) A total of 10.7 percent of the annual Pacific cod TAC will be 
allocated to the CDQ Program in the annual harvest specifications 
required under paragraph (c) of this section. The Pacific cod CDQ 
allocation will be deducted from the annual Pacific cod TAC before 
allocations to the non-CDQ sectors are made under paragraph (a)(7)(ii) 
of this section.
    (B) The BSAI Pacific cod CDQ gear allowances by season, as those 
seasons are specified under Sec.  679.23(e)(5), are as follows:

------------------------------------------------------------------------
        Gear Type            A season        B season        C season
------------------------------------------------------------------------
(1) Trawl                 60%             20%             20%
------------------------------------------------------------------------
(2) Hook-and-line CP and  60%             40%             no C season
 hook-and-line CV
 [gteqt]60 ft (18.3 m)
 LOA
------------------------------------------------------------------------
(3) Jig                   40%             20%             40%
------------------------------------------------------------------------
(4) All other non-trawl   no seasonal     no seasonal     no seasonal
 gear                      allowance       allowance       allowance
------------------------------------------------------------------------

    (ii) Non-CDQ allocations--(A) Sector allocations. The remainder of 
the BSAI Pacific cod TAC after subtraction of the CDQ reserve for 
Pacific cod will be allocated to non-CDQ sectors as follows:

------------------------------------------------------------------------
                   Sector                            % Allocation
------------------------------------------------------------------------
(1) Jig vessels                               1.4
------------------------------------------------------------------------
(2) Hook-and-line/pot CV <60 ft (18.3 m) LOA  2.0
------------------------------------------------------------------------
(3) Hook-and-line CV [gteqt]60 ft (18.3 m)    0.2
 LOA
------------------------------------------------------------------------
(4) Hook-and-line CP                          48.7
------------------------------------------------------------------------
(5) Pot CV [gteqt]60 ft (18.3 m) LOA          8.4
------------------------------------------------------------------------
(6) Pot CP                                    1.5
------------------------------------------------------------------------
(7) AFA trawl CP                              2.3
------------------------------------------------------------------------
(8) Non-AFA trawl CP                          13.4
------------------------------------------------------------------------
(9) Trawl CV                                  22.1
------------------------------------------------------------------------

    (B) Incidental catch allowance. During the annual harvest 
specifications process set forth at paragraph (c) of this section, the 
Regional Administrator will specify an amount of Pacific cod that NMFS 
estimates will be taken as incidental catch in directed fisheries for 
groundfish other than Pacific cod by the hook-and-line and pot gear 
sectors. This amount will be the incidental catch allowance and will be 
deducted from the aggregate portion of Pacific cod TAC annually 
allocated to the hook-and-line and pot gear sectors before the 
allocations under paragraph (a)(7)(ii)(A) of this section are made to 
these sectors.
    (iii) Reallocation among non-CDQ sectors. If, during a fishing 
year, the Regional Administrator determines that a non-CDQ sector will 
be unable to harvest the entire amount of Pacific cod allocated to that 
sector under paragraph (a)(7)(ii)(A) of this section, the Regional 
Administrator will reallocate the projected unused amount of Pacific 
cod to other sectors through notification in the Federal Register. Any 
reallocation decision by the Regional Administrator will take into 
account the capability of a sector to harvest the reallocated amount of 
Pacific cod, and the following reallocation hierarchy:
    (A) Catcher vessel sectors. The Regional Administrator will 
reallocate projected unharvested amounts of Pacific cod TAC from a 
catcher vessel sector as follows: first to the jig sector, or to the 
less than 60 ft (18.3 m) LOA hook-and-line or pot catcher vessel 
sector, or to both of these sectors; second, to the greater than or 
equal to 60 ft (18.3 m) LOA hook-and-line or to the greater than or 
equal to 60 ft (18.3 m) LOA pot catcher vessel sectors; and third to 
the trawl catcher vessel sector. If the Regional Administrator 
determines that a projected unharvested amount from the jig sector 
allocation, the less than 60 ft (18.3 m) LOA hook-and-line or pot 
catcher vessel sector allocation, or the greater than or equal to 60 ft 
(18.3 m) LOA hook-and-line catcher vessel sector allocation is unlikely 
to be harvested through this hierarchy, the Regional Administrator will 
reallocate that amount to the hook-and-line catcher/processor sector. 
If the Regional Administrator determines that a projected unharvested 
amount from a greater than or equal to 60 ft (18.3 m) LOA pot catcher 
vessel sector allocation is unlikely to be harvested through this 
hierarchy, the Regional Administrator will reallocate that amount to 
the pot catcher/processor sector in accordance with the hierarchy set 
forth in paragraph (a)(7)(iii)(C) of this section. If the Regional 
Administrator determines that a projected unharvested amount from a 
trawl catcher vessel sector allocation is unlikely to be harvested 
through this hierarchy, the Regional Administrator will reallocate that 
amount to the other trawl sectors in accordance with the hierarchy set 
forth in paragraph (a)(7)(iii)(B) of this section.
    (B) Trawl catcher/processor sectors. The Regional Administrator 
will reallocate any projected unharvested amounts of Pacific cod TAC 
from a trawl sector (trawl catcher vessel, AFA trawl catcher/processor, 
and non-AFA trawl catcher/processor sectors) to other trawl sectors 
before unharvested amounts are reallocated and apportioned to specified 
gear sectors as follows:
    (1) 83.1 percent to the hook-and-line catcher/processor sector,
    (2) 2.6 percent to the pot catcher/processor sector, and
    (3) 14.3 percent to the greater than or equal to 60 ft (18.3 m) LOA 
pot catcher vessel sector.
    (C) Pot gear sectors. The Regional Administrator will reallocate 
any projected unharvested amounts of Pacific cod TAC from the pot 
catcher/processor sector to the greater than or equal to 60 ft (18.3 m) 
LOA pot catcher vessel sector, and from the greater than or equal to 60 
ft (18.3 m) LOA pot catcher vessel sector to the pot catcher/processor 
sector before reallocating it to the hook-and-line catcher/processor 
sector.
    (iv) Non-CDQ seasonal allowances--(A) Seasonal allowances by 
sector. The BSAI Pacific cod sector allowances are apportioned by 
season, as those seasons are specified at Sec.  679.23(e)(5), as 
follows:

------------------------------------------------------------------------
                                            Seasonal Allowances
              Sector              --------------------------------------
                                     A season     B season     C season
------------------------------------------------------------------------
(1) Trawl                          ...........  ...........  ...........
------------------------------------------------------------------------

[[Page 5673]]

 
(i) Trawl CV                       74 %         11 %         15 %
------------------------------------------------------------------------
(ii) Trawl CP                      75 %         25 %         0 %
------------------------------------------------------------------------
(2) Hook-and-line CP, hook-and-    51 %         49 %         no C season
 line CV [gteqt]60 ft (18.3 m)
 LOA, and pot gear vessels
 [gteqt]60 ft (18.3 m) LOA
------------------------------------------------------------------------
(3) Jig vessels                    60 %         20 %         20 %
------------------------------------------------------------------------
(4) All other nontrawl vessels     no seasonal  no seasonal  no seasonal
                                    allowance    allowance    allowance
------------------------------------------------------------------------

    (B) Unused seasonal allowances. Any unused portion of a seasonal 
allowance of Pacific cod from any sector except the jig sector will be 
reallocated to that sector's next season during the current fishing 
year unless the Regional Administrator makes a determination under 
paragraph (a)(7)(iii) of this section that the sector will be unable to 
harvest its allocation.
    (C) Jig sector. The Regional Administrator will reallocate any 
projected unused portion of a seasonal allowance of Pacific cod for the 
jig sector under this section to the less than 60 ft (18.3 m) LOA hook-
and-line or pot catcher vessel sector. The Regional Administrator will 
reallocate the projected unused portion of the jig sector's C season 
allowance on or about September 1 of each year.
* * * * *
    5. Section 679.21 is amended by:
    A. Removing paragraph (e)(1)(i).
    B. Redesignating paragraphs (e)(1)(ii) through (e)(1)(ix) as 
(e)(1)(i) through (e)(1)(viii), respectively.
    C. Adding paragraph (e)(3)(vi).
    D. Revising paragraphs (e)(2), (e)(3)(i), (e)(3)(v), and (e)(4).
    The additions and revisions read as follows:


Sec.  679.21  Prohibited species bycatch management.

* * * * *
    (e) * * *
    (2) Nontrawl gear, halibut. The PSC limit of halibut caught while 
conducting any nontrawl fishery for groundfish in the BSAI during any 
fishing year is the amount of halibut equivalent to 900 mt of halibut 
mortality.
    (3) * * *
    (i) General. (A) An amount equivalent to 7.5 percent of each PSC 
limit set forth in paragraphs (e)(1)(i) through (iv) and paragraphs 
(e)(1)(vi) through (e)(1)(viii) of this section is allocated to the 
groundfish CDQ Program as PSQ reserve. The PSQ reserve is not 
apportioned by gear or fishery.
    (B) NMFS, after consultation with the Council and after subtraction 
of the PSQ reserve, will apportion each PSC limit set forth in 
paragraphs (e)(1)(i) through (vii) of this section into bycatch 
allowances for the fishery categories defined in paragraph (e)(3)(iv) 
of this section, based on each category's proportional share of the 
anticipated incidental catch during a fishing year of prohibited 
species for which a PSC limit is specified and the need to optimize the 
amount of total groundfish harvested under established PSC limits.
* * * * *
    (v) PSC apportionment to Pacific cod trawl fisheries. The 
apportionment of the PSC allowance of halibut and crab to the Pacific 
cod trawl fishery category under paragraph (e)(3)(iv) of this section 
will be divided among the trawl sectors established at Sec.  
679.20(a)(7)(ii), as follows: 70.7 percent for the trawl catcher vessel 
sector; 4.4 percent for the AFA trawl catcher/processor sector; and 
24.9 percent for the non-AFA trawl catcher/processor sector.
    (vi) AFA prohibited species catch limitations. Halibut and crab PSC 
limits for the AFA trawl catcher/processor sector and the AFA trawl 
catcher vessel sector will be established according to the procedures 
and formulas set out in paragraph (e)(3)(v) of this section and in 
Sec.  679.64(a) and (b) and managed through directed fishing closures 
for the AFA trawl catcher/processor sector and the AFA trawl catcher 
vessel sector in the groundfish fisheries for which the PSC limit 
applies.
    (4) Halibut apportionment to nontrawl fishery categories--(i) 
General. (A) An amount equivalent to 7.5 percent of the nontrawl gear 
halibut PSC limit set forth in paragraph (e)(2) of this section is 
allocated to the groundfish CDQ Program as PSQ reserve. The PSQ reserve 
is not apportioned by gear or fishery.
    (B) NMFS, after consultation with the Council and after subtraction 
of the PSQ reserve, will apportion the halibut PSC limit for nontrawl 
gear set forth under paragraph (e)(2) of this section into bycatch 
allowances for the nontrawl fishery categories defined under paragraph 
(e)(4)(ii) of this section.
    (C) Apportionment of the nontrawl halibut PSC limit among the 
nontrawl fishery categories will be based on each category's 
proportional share of the anticipated bycatch mortality of halibut 
during a fishing year and the need to optimize the amount of total 
groundfish harvested under the nontrawl halibut PSC limit.
    (D) The sum of all bycatch allowances of any prohibited species 
will equal its PSC limit.
    (ii) Nontrawl fishery categories. For purposes of apportioning the 
nontrawl halibut PSC limit among fisheries, the following fishery 
categories are specified and defined in terms of round-weight 
equivalents of those BSAI groundfish species for which a TAC has been 
specified under Sec.  679.20.
    (A) Pacific cod hook-and-line catcher vessel fishery. Catcher 
vessels fishing with hook-and-line gear during any weekly reporting 
period that results in a retained catch of Pacific cod that is greater 
than the retained amount of any other groundfish species.
    (B) Pacific cod hook-and-line catcher/processor fishery. Catcher/
processors fishing with hook-and-line gear during any weekly reporting 
period that results in a retained catch of Pacific cod that is greater 
than the retained amount of any other groundfish species.
    (C) Sablefish hook-and-line fishery. Fishing with hook-and-line 
gear during any weekly reporting period that results in a retained 
catch of sablefish that is greater than the retained amount of any 
other groundfish species.
    (D) Groundfish jig gear fishery. Fishing with jig gear during any 
weekly reporting period that results in a retained catch of groundfish.
    (E) Groundfish pot gear fishery. Fishing with pot gear under 
restrictions set forth in Sec.  679.24(b) during any weekly reporting 
period that results in a retained catch of groundfish.
    (F) Other nontrawl fisheries. Fishing for groundfish with nontrawl 
gear during any weekly reporting period that results in a retained 
catch of groundfish and does not qualify as a Pacific cod hook-and-line 
catcher vessel fishery, a Pacific cod hook-and-line catcher/processor 
fishery, a sablefish hook-and-line fishery, a jig gear fishery, or a 
groundfish pot gear fishery as defined under this paragraph (e)(4)(ii).
* * * * *


Sec.  679.23  [Amended]

    6. In Sec.  679.23, remove paragraphs (e)(6) and (e)(7).
    7. Section 679.64 is amended by:
    A. Removing paragraph (a)(1) introductory text.
    B. Redesignating paragraph (a)(1)(i) as paragraph (a)(1) 
introductory text.
    C. Redesignating paragraph (a)(2) introductory text as paragraph 
(a)(1)(i).

[[Page 5674]]

    D. Redesignating paragraphs (a)(2)(i) and (ii) as paragraphs 
(a)(1)(i)(A) and(B), respectively.
    E. Redesignating paragraph (a)(3) introductory text as paragraph 
(a)(1)(ii).
    F. Redesignating paragraphs (a)(3)(i) through (iii) as paragraphs 
(a)(1)(ii)(A) through (C), respectively.
    G. Redesignating paragraph (a)(4) introductory text as paragraph 
(a)(1)(iii).
    H. Redesignating paragraphs (a)(4)(i) and (ii) as paragraphs 
(a)(1)(iii)(A) and (B), respectively.
    I. Redesignating paragraph (a)(5) as paragraph (a)(2).
    J. Redesignating paragraph (a)(6) as paragraph (a)(3).
    K. Revising newly redesignated paragraphs (a)(1) introductory text 
and (a)(3).
    The additions and revisions read as follows:


Sec.  679.64  Harvesting sideboards limits in other fisheries.

    (a) * * *
    (1) How will groundfish sideboard limits for AFA listed catcher/
processors be calculated? Except for Aleutian Islands pollock and BSAI 
Pacific cod, the Regional Administrator will establish annual AFA 
catcher/processor harvest limits for each groundfish species or species 
group in which a TAC is specified for an area or subarea of the BSAI as 
follows:
* * * * *
    (3) How will AFA catcher/processor sideboard limits be managed? The 
Regional Administrator will manage groundfish harvest limits and PSC 
bycatch limits for AFA catcher/processors through directed fishing 
closures in fisheries established under paragraph (a)(1) of this 
section in accordance with the procedures set out in Sec. Sec.  
679.20(d)(1)(iv) and 679.21(e)(3)(vi).
* * * * *


Sec. Sec.  679.20, 679.21, 679.31, 679.32, 679.50, and 
679.64  [Amended]

    8. In the table below, for each of the paragraphs shown under the 
``Paragraph'' column, remove the phrase indicated under the ``Remove'' 
column and replace it with the phrase indicated under the ``Add'' 
column for the number of times indicated in the ``Frequency'' column.

------------------------------------------------------------------------
         Paragraph(s)              Remove            Add       Frequency
------------------------------------------------------------------------
Sec.   679.20(b)(1)(i)         except pollock  except          2
                                and the         pollock,
                                                Pacific cod,
                                                and the
------------------------------------------------------------------------
Newly redesignated Sec.        paragraphs      paragraphs      1
 679.21(e)(1)(i) introductory   (e)(1)(iii)(A   (e)(1)(i)(A)
 text                           ) through       through
------------------------------------------------------------------------
Newly redesignated Sec.        paragraphs      paragraphs      1
 679.21(e)(1)(ii)               (e)(1)(iii)(A   (e)(1)(ii)(A)
 introductory text              ) and           and
------------------------------------------------------------------------
Paragraph heading of newly     Chinook salmon  BS Chinook      1
 redesignated Sec.                              salmon
 679.21(e)(1)(vi)
------------------------------------------------------------------------
Sec.   679.21(e)(3)(ii)(B)(2)  paragraph       paragraph       1
                                (e)(1)(ii) of   (e)(1)(i) of
------------------------------------------------------------------------
Sec.   679.21(e)(7)(viii)      paragraphs      paragraphs      1
 introductory text              (e)(1)(vii)     (e)(1)(vi)
                                and             and
                                (e)(1)(ix) of   (e)(1)(viii)
                                                of
------------------------------------------------------------------------
Sec.   679.21(e)(7)(viii)(A)   paragraph       paragraph       1
 introductory text              (e)(1)(vii)     (e)(1)(vi) of
                                of
------------------------------------------------------------------------
Sec.   679.21(e)(7)(viii)(B)   paragraph       paragraph       1
 introductory text              (e)(1)(ix) of   (e)(1)(viii)
                                                of
------------------------------------------------------------------------
Sec.   679.31(c)               (See Sec.       (See Sec.       1
                                679.20(b)(1)(   679.20(a)(7)(
                                iii))           i) and
                                                (b)(1)(iii))
------------------------------------------------------------------------
Sec.   679.31(e)               (See Sec.       (See Sec.       1
                                679.21(e)(1)(   679.21(e)(3)(
                                i) and          i)(A) and
                                (e)(2)(ii)).    (e)(4)(i)(A).
------------------------------------------------------------------------
Sec.   679.32(b)               under Sec.      under Sec.      1
                                679.21(e)(5)    679.21(e)(4)
                                in              in
------------------------------------------------------------------------
Sec.   679.50(c)(1)(iii)       under Sec.      under Sec.      1
                                679.21(e)(7)(   679.21(e)(7)(
                                vi), or         vii), or
------------------------------------------------------------------------
Newly redesignated Sec.        paragraph       paragraph       1
 679.64(a)(1)(i)(B)             (a)(2)(i) of    (a)(1)(i)(A)
                                                of
------------------------------------------------------------------------
Newly redesignated Sec.        paragraphs      paragraphs      1
 679.64(a)(1)(iii)(A)           (a)(1)(ii)      (a)(1)(i)
                                through         through
                                (a)(3) of       (a)(1)(ii) of
------------------------------------------------------------------------
Newly redesignated Sec.        paragraph       paragraph       1
 679.64(a)(1)(iii)(B)           (a)(4)(i) of    (a)(1)(iii)(A
                                                ) of
------------------------------------------------------------------------
Sec.   679.64(b)(5)            and (e)(3)(v).  and             1
                                                (e)(3)(vi).
------------------------------------------------------------------------

[FR Doc. 07-538 Filed 2-2-07; 2:22 pm]
BILLING CODE 3510-22-S