[Federal Register Volume 72, Number 170 (Tuesday, September 4, 2007)]
[Rules and Regulations]
[Pages 50788-50818]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-17140]



[[Page 50787]]

-----------------------------------------------------------------------

Part IV





Department of Commerce





-----------------------------------------------------------------------



National Oceanic and Atmospheric Administration



-----------------------------------------------------------------------



50 CFR Part 679



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

  Federal Register / Vol. 72, No. 170 / Tuesday, September 4, 2007 / 
Rules and Regulations  

[[Page 50788]]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 0612242903-7445-03; 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: Final rule.

-----------------------------------------------------------------------

SUMMARY: NMFS issues a final rule to implement Amendment 85 to the 
Fishery Management Plan for Groundfish of the Bering Sea and Aleutian 
Islands Management Area (FMP) as partially approved by NMFS, and to 
implement recent changes to the Magnuson-Stevens Fishery Conservation 
and Management Act (Magnuson-Stevens Act). This final rule modifies 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, establishes a hierarchy 
for reallocating projected unharvested amounts of Pacific cod from 
certain sectors to other sectors, revises catcher/processor (CP) sector 
definitions, modifies the management of Pacific cod incidental catch 
that occurs in other groundfish fisheries, eliminates the Pacific cod 
nonspecified reserve, subdivides the annual prohibited species catch 
(PSC) limits currently apportioned to the Pacific cod hook-and-line 
gear fisheries between the catcher vessel (CV) and CP sectors, and 
modifies the sideboard restrictions for American Fisheries Act (AFA) CP 
vessels. In addition, this final rule increases the percentage of the 
BSAI Pacific cod TAC apportioned to the Community Development Quota 
(CDQ) Program. The proposed rule for Amendment 85 included regulations 
that would have subdivided the annual PSC limits currently apportioned 
to the Pacific cod trawl fisheries among trawl sectors. However, NMFS 
disapproved these regulations. Therefore, this final rule does not 
subdivide the annual PSC limits for Pacific cod trawl fisheries among 
trawl sectors. This final rule is necessary to implement Amendment 85 
and reduce uncertainty about the availability of yearly harvests within 
sectors caused by reallocations and maintain stability among sectors in 
the BSAI Pacific cod fishery. This final 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 final rule is 
intended to promote the goals and objectives of the Magnuson-Stevens 
Act, the FMP, and other applicable laws.

DATES: Effective January 1, 2008.

ADDRESSES: Copies of Amendment 85 and the Environmental Assessment/
Regulatory Impact Review/Final Regulatory Flexibility Analysis (EA/RIR/
FRFA) prepared for this action are available by mail from NMFS, Alaska 
Region, P. O. Box 21668, Juneau, AK 99802-1668, Attn: Ellen Sebastian, 
Records Officer; in person at NMFS, Alaska Region, 709 West 9th Street, 
Room 420A, Juneau, AK; or via the Internet at 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.

Background

    Amendment 85 was adopted by the Council in April 2006 to modify the 
current allocations of BSAI Pacific cod among various harvesting 
sectors. Currently, the BSAI Pacific cod non-CDQ TAC is fully 
distributed among the following eight competing harvest sectors: jig, 
fixed gear (pot and hook-and-line gear) CVs less than 60 ft (<18.3 m) 
length overall (LOA), hook-and-line CVs greater than or equal to 60 ft 
([gteqt]18.3 m) LOA, hook-and-line catcher/processor vessels (CPs), pot 
CVs less than 60 ft ([gteqt]18.3 m) LOA, pot CPs, trawl CPs, and trawl 
CVs. Several FMP amendments, implemented beginning in 1994, have 
allocated Pacific cod among these sectors. Additional background on the 
prior history of Pacific cod allocations among different fishery 
sectors and the development of Amendment 85 is contained in the 
preamble to the proposed rule (72 FR 5654; February 7, 2007).
    Amendment 85 modifies the non-CDQ sector allocations currently in 
place to better reflect historical dependency and use by sector of the 
Pacific cod resource. The allocations were based in part on each 
sector's historical retained catch in addition to socioeconomic and 
community concerns. One of the fundamental issues identified in the 
Council's problem statement was the need to revise the existing 
allocations to better reflect historical retained 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. However, the allocations 
to the small boat sectors are intended to expand entry-level, local 
opportunities in the BSAI Pacific cod fishery. Other than providing for 
this expansion, the allocations of Pacific cod non-CDQ TAC are intended 
to formally institutionalize the historical pattern of utilization of 
this resource.
    Amendment 85 and the proposed rule to implement Amendment 85 as 
originally submitted by the Council included provisions for the CDQ 
Program that allocated 10 percent of the Pacific cod TAC to the CDQ 
Program as a directed fishing allocation, created an incidental catch 
allowance of Pacific cod for the CDQ Program, and referred to the Coast 
Guard and Maritime Transportation Act of 2006, Public Law 109-241 
(Coast Guard Act) as the basis for changes to the CDQ Program Pacific 
cod allocation. These provisions were consistent with requirements set 
forth in the Magnuson-Stevens Act, as amended by the Coast Guard Act, 
at the time Amendment 85 was submitted by the Council for Secretarial 
review. The Notice of Availability (NOA) for Amendment 85 was published 
in the Federal Register on December 7, 2006 (71 FR 70943), with a 60-
day comment period that ended February 5, 2007.
    During review by the Secretary of Commerce (Secretary) of Amendment 
85, the CDQ provisions in the Magnuson-Stevens Act were amended once 
again by the Magnuson-Stevens Fishery Conservation and Management 
Reauthorization Act, Public Law 109-479 (Magnuson-Stevens 
Reauthorization Act), enacted on January 11, 2007. The Magnuson-Stevens 
Act now requires that 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,'' and that the total 
allocation may not be exceeded. As a result of the Magnuson-Stevens 
Reauthorization Act, the portions of Amendment 85 to the FMP that 
addressed the CDQ Program provisions were no longer consistent with the

[[Page 50789]]

Magnuson-Stevens Act. On March 7, 2007, the Secretary partially 
approved Amendment 85, disapproving the CDQ Program provisions as 
inconsistent with the Magnuson-Stevens Act. As approved, Amendment 85 
revised the current BSAI Pacific cod allocations of TAC among various 
non-CDQ harvest sectors (Table 1), changed incidental catch allowances, 
removed the groundfish reserve for Pacific cod, and added a new 
appendix to the FMP.
    Shortly after enactment of the Magnuson-Stevens Reauthorization 
Act, NMFS determined that the CDQ portions of the proposed rule as 
submitted by the Council were inconsistent with the newly amended 
Magnuson-Stevens Act, and returned the rule to the Council for revision 
pursuant to section 304(b) of the Magnuson-Stevens Act. The Council 
revised the CDQ portions of the proposed rule for Amendment 85 to 
incorporate the changes brought about by the Magnuson-Stevens 
Reauthorization Act, including a 10.7-percent allocation of Pacific cod 
to the CDQ Program. The Council submitted the revised proposed rule to 
NMFS, and it was published in the Federal Register on February 7, 2007 
(72 FR 5654). The 45-day comment period on the proposed rule ended 
March 26, 2007. NMFS received a total of 16 letters on Amendment 85 and 
the proposed rule that contained 79 unique comments. A summary of these 
comments and the responses by NMFS are provided under Response to 
Comments below.

Elements of the Final Rule

    A detailed review of the provisions of Amendment 85 and its 
implementing rule is provided in the preamble to the proposed rule (72 
FR 5654; February 7, 2007), and is not repeated here. The proposed rule 
is available via the Internet and from NMFS (see ADDRESSES). The 
following provides a list and brief review of the regulatory changes 
made by this final rule to the management of the BSAI Pacific cod 
fishery. NMFS' rationale for approving portions of Amendment 85 and the 
regulatory provisions in this final rule is contained in the agency's 
response to comments.
     Increase the percentage of the BSAI Pacific cod TAC 
apportioned to the CDQ Program to 10.7 percent;
     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 ectors;
     Adjust the seasonal allowances of Pacific cod to various 
sectors;
     Subdivide among sectors the annual PSC limits apportioned 
to the Pacific cod 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; and
     Revise the definition for AFA trawl CP and add definitions 
for hook-and-line CP, non-AFA trawl CP, and pot CP.
    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, effective January 1, 2008. 
The 10.7 percent Pacific cod allocation to the CDQ reserve will be 
established annually in the harvest specifications process required 
under Sec.  79.20(c). The CDQ reserve will continue to be deducted from 
the Pacific cod TAC before the remaining Pacific cod TAC is allocated 
to the other fishing sectors. All catch of Pacific cod by any vessel 
that is groundfish CDQ fishing, and by any vessel [gteqt]60 ft (18.3 m) 
LOA that is 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.
    Nine individual non-CDQ sectors will receive separate BSAI Pacific 
cod allocations. The allocations to the identified sectors were 
selected using retained legal catch history, including fishmeal, from 
1995 through 2003, and other socioeconomic and community 
considerations. The allocations better reflect historical dependency 
and use by each sector, with specific consideration to allow for 
additional growth in the small boat, entry-level sectors. These 
allocations are listed in Table 1. Because Pacific cod has been 
harvested by the current sectors since the beginning of 2007 under the 
current allocation scheme, and the number of sectors and the overall 
amount of Pacific cod available to those sectors as an allocation and 
by season will change with this amendment, the Amendment 85 sector 
allocations cannot be implemented mid-year. Therefore, the allocations, 
and the final rule implementing Amendment 85, will be effective January 
1, 2008. NMFS will amend the 2007-2008 harvest specifications to 
reflect the changes to the Pacific cod TAC allocations.

     Table 1. Percent sector allocations of Pacific cod non-CDQ TAC
------------------------------------------------------------------------
                   Sector                            % Allocation
------------------------------------------------------------------------
Jig vessels                                  1.4
------------------------------------------------------------------------
Hook-and-line/pot CV <60 ft (18.3 m) LOA     2.0
------------------------------------------------------------------------
Hook-and-line CV [gteqt]60 ft (18.3 m) LOA   0.2
------------------------------------------------------------------------
Hook-and-line CP                             48.7
------------------------------------------------------------------------
Pot CV [gteqt]60 ft (18.3 m) LOA             8.4
------------------------------------------------------------------------
Pot CP                                       1.5
------------------------------------------------------------------------
AFA trawl CP                                 2.3
------------------------------------------------------------------------
(8) Non AFA trawl CP                         13.4
------------------------------------------------------------------------
Trawl CV                                     22.1
------------------------------------------------------------------------

    Currently, NMFS sets aside an amount of Pacific cod from some 
sectors' allocations as an incidental catch allowance for use by those 
sectors when they are directed fishing for groundfish other than 
Pacific cod. NMFS establishes an incidental catch allowance either 
through the annual harvest specifications process or inseason. Under 
this final rule, an incidental catch allowance for the fixed gear 
sectors will continue to be established at the beginning of the fishing 
year by the Regional Administrator during the annual harvest 
specifications process. The incidental catch allowance for the fixed 
gear sectors typically has been set at 500 mt. The trawl sectors 
currently do not have an incidental catch allowance established at the 
beginning of the fishing year. NMFS has not specified an incidental 
catch allowance for Pacific cod in the trawl fisheries in the recent 
past because the trawl sectors typically do not catch an amount of 
Pacific cod that would necessitate a directed fishing prohibition. 
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. 
However, because NMFS anticipates that the trawl sectors will fully 
harvest the Pacific cod allocations under Amendment 85, NMFS also 
anticipates it will need to establish an incidental catch allowance for 
each trawl sector. Under this final rule, each trawl sector will have a 
separate incidental catch allowance so that no trawl sector can erode 
another trawl sector's total allocation and NMFS will develop 
incidental catch

[[Page 50790]]

allowances for the trawl sectors on an inseason basis, rather than 
through the annual harvest specification process. Determining 
incidental catch needs inseason as fisheries progress will provide NMFS 
with more flexibility to adjust incidental catch needs for each trawl 
sector as a trawl sector's needs change.
    Current regulations for the annual harvest specifications process 
require that 15 percent of the BSAI TAC for Pacific cod be placed in 
the nonspecified reserve. Half of the nonspecified reserve, or 7.5 
percent of TAC, is apportioned to the groundfish CDQ reserve. NMFS 
typically apportions the remainder of the Pacific cod reserve back to 
the non-CDQ Pacific cod TAC because U.S. fishing vessels have 
demonstrated the capacity to catch the full TAC allocation. The Council 
and NMFS determined that the Pacific cod reserve is no longer needed 
because a direct allocation to the CDQ reserve is specified, and 
because the Pacific cod TAC is fully allocated among CDQ and non-CDQ 
harvesting sectors and is fully harvested. Therefore, this final rule 
removes regulations requiring that 15 percent of the Pacific cod TAC be 
placed in the nonspecified reserve during a fishing year.
    Under current regulations, if the Regional Administrator determines 
that a sector will be unable to harvest the entire amount of Pacific 
cod allocated to that sector, NMFS reallocates the projected unused 
amount of Pacific cod to other sectors to obtain optimum yield from the 
BSAI Pacific cod fishery. This procedure will continue under this final 
rule, but reallocation decisions will be based in part on the new 
reallocation hierarchy established in this final rule, and also will 
take into account the capability of a sector to harvest an additional 
amount of Pacific cod. The reallocation hierarchy is fully described in 
the proposed rule and in the regulatory text below; therefore, that 
description is not repeated here. In general, NMFS will reallocate 
projected unused allocations in any inshore sector (i.e., CV sectors) 
primarily to other inshore sectors before reallocating that amount to 
any offshore sector (i.e., CP sectors) and, secondarily, within a gear 
type before reallocating that amount to another gear type. This 
reallocation hierarchy is consistent with the Council's decision to 
increase harvest opportunities for fleets delivering shoreside and 
represents a reasonable balance of National Standard 4, that 
allocations should be fair and equitable to all fishermen, and National 
Standard 8, to consider the importance of fishery resources to fishing 
communities. Although the intent of Amendment 85 is to revise sector 
allocations to better reflect historic dependence and use by sector and 
thus reduce the frequency and amount of inseason reallocations, the 
Council and the public noted that some reallocations are likely to 
continue.
    Under existing regulations, Pacific cod allocations are further 
apportioned by season for most gear sectors to protect prey 
availability for Steller sea lions (SSLs). 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. Because this final rule modifies non-CDQ sector 
allocations, this final rule also modifies the seasonal allowances 
applicable to these sectors 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. Therefore, this 
final rule adjusts the seasonal allowances for each sector in response 
to the changes in sector allocations. This final rule also changes the 
jig sector seasonal allowances from 40-20-40 to 60-20-20. For the 
Pacific cod allocation to the CDQ Program, this final rule adds a 
prohibition to Sec.  679.7(d) to clarify the current management measure 
that the CDQ groups are prohibited from exceeding the seasonal 
allowances of Pacific cod that are appropriate for the gear types that 
they use to catch Pacific cod CDQ. Also, the regulations regarding CDQ 
trawl seasonal allowances are revised to maintain the division between 
trawl CP and trawl CV that exists in the current regulations. The 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 2.

     Table 2. Seasonal allowances of BSAI Pacific cod expressed as a
              percentage of each sector=s total allocation
------------------------------------------------------------------------
          Gear Type               A season      B season      C season
------------------------------------------------------------------------
CDQ Trawl                      60%            20%           20%
------------------------------------------------------------------------
  CDQ Trawl CV                 70%            10%           20%
------------------------------------------------------------------------
  CDQ Trawl CP                 50%            30%           20%
------------------------------------------------------------------------
Non-CDQ trawl CV               74%            11%           15%
------------------------------------------------------------------------
Non-CDQ trawl CP               75%            25%           0%
------------------------------------------------------------------------
CDQ Hook-and-line CP, and      60%            40%           no C season
 hook-and-line CV [gteqt]60
 ft (18.3 m) LOA
------------------------------------------------------------------------
Non-CDQ hook-and-line CP,      51%            49%           no C season
 hook-and-line CV [gteqt]60
 ft (18.3 m) LOA, pot CP, and
 pot CV [gteqt]60 ft (18.3 m)
 LOA
------------------------------------------------------------------------
CDQ jig vessels                40%            20%           40%
------------------------------------------------------------------------
Non-CDQ jig vessels            60%            20%           20%
------------------------------------------------------------------------
All other nontrawl vessels     no seasonal    no seasonal   no seasonal
                                allowance      allowance     allowance
------------------------------------------------------------------------


Total non-CDQ percentage        1/1 - 6/10 = 68%     6/10 - 12/31 = 32%
------------------------------------------------------------------------
Total CDQ and non-CDQ           1/1 - 6/10 = 67%     6/10 - 12/31 = 33%
 percentage
------------------------------------------------------------------------


[[Page 50791]]

    Any unused portion of a seasonal allowance of Pacific cod from any 
sector other than the jig sector will continue to be reallocated to 
that sector's remaining seasons during the current fishing year. The 
Regional Administrator will continue to reallocate any projected unused 
portion of a seasonal allowance of Pacific cod from the jig sector to 
the <60 ft (18.3 m) LOA fixed gear CV sector. Under this final rule, 
NMFS will reallocate a projected unused portion of the seasonal 
allowance for the jig sector C season on or about September 1 of each 
year, if possible, to provide the last rollover from the jig sector 
when the <60 ft (18.3 m) LOA fixed gear CV sector may still be on the 
fishing grounds.
    The total amount of nontrawl halibut PSC for the non-CDQ fisheries 
currently is 833 mt of mortality. Typically, 775 mt is apportioned to 
the hook-and-line Pacific cod fishery and 58 mt to other nontrawl 
groundfish fisheries. This final rule does not change the total amount 
of nontrawl halibut PSC mortality allocated to the hook-and-line 
Pacific cod sectors or to the other nontrawl groundfish fisheries.
    Currently, the annual Pacific cod hook-and-line halibut PSC 
allowance is apportioned among three seasons. A seasonal halibut PSC 
allowance in the second season has not been specified in recent years; 
thus, a hook-and-line directed fishery for Pacific cod has not operated 
in the summer months. Halibut bycatch rates are typically high during 
the second season. The hook-and-line CP sector generally supports not 
providing a halibut PSC limit in the second season because the high 
halibut bycatch rates could close the directed Pacific cod fishery 
prior to the allocation being fully harvested. However, the hook-and-
line CV sector, which 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. 
To enable the hook-and-line CVs to fish for Pacific cod in the summer 
months when the weather is more favorable for these smaller vessels, 
this final rule divides 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 (18.3 m) LOA and CVs <60 ft (18.3 m) LOA combined). NMFS 
can provide varying amounts of halibut PSC by season to each sector, 
tailoring PSC limits to suit the needs and timing of each sector. NMFS 
decision to disapprove the proposed subdivision of annual PSC limits 
apportioned to the Pacific cod trawl gear fisheries is explained below.
    Sideboards are harvesting and processing restrictions that were 
placed on AFA trawl CVs and AFA trawl CPs operating in the BSAI pollock 
fishery to protect the interests of other fishermen and processors that 
did not benefit directly from the AFA. This final rule removes the 
sideboard limits of BSAI Pacific cod for the AFA trawl CPs. The 
establishment of a separate Pacific cod allocation to this sector 
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 trawl CP vessels. For the same reason, BSAI Pacific cod is added to 
the list of exceptions to the groundfish species or species groups for 
which sideboard harvest limits are calculated for the listed AFA trawl 
CPs. The halibut and crab PSC sideboard limits for both AFA sectors are 
maintained as currently specified in regulations.
    This final rule modifies or adds definitions for CPs in accordance 
with the Consolidated Appropriations Act, 2005 (Public Law 108-447). 
This final rule revises the definition for AFA trawl CP and adds new 
definitions for hook-and-line CP, non-AFA trawl CP (also known as the 
head-and-gut sector), and pot CP. The new definition for hook-and-line 
CP is substantively consistent with the Consolidated Appropriations 
Act's definition for the longline CP subsector. Also, the definition 
for ``CDQ reserve'' is revised to change and update terms and to 
generalize the cross reference. All of the various housekeeping 
revisions described in the proposed rule also are made by this final 
rule.

Element of the Proposed Rule Not Approved

    NMFS did not approve one regulatory change recommended by the 
Council and included in the proposed rule. For reasons explained below, 
NMFS did not approve the Council's recommendation to further apportion 
the Pacific cod trawl fishery crab and halibut PSC allowances among the 
trawl sectors.
    PSC regulations pertain to certain species caught in the process of 
fishing for groundfish that must be accounted for, but cannot be 
retained unless the vessel participates in the halibut and salmon 
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.
    Currently, the total amount of halibut PSC mortality for trawl gear 
in the non-CDQ fisheries is apportioned in the annual harvest 
specifications process among four fisheries, including the Pacific cod 
fishery. The current process of fishery apportionment will continue 
under this final rule. Generally, about 1,400 mt of halibut PSC 
mortality is apportioned annually to the BSAI Pacific cod trawl 
fishery, but this amount and actual use can vary from year to year. 
Crab PSC limits fluctuate as resource abundance fluctuates.
    In recent years, the trawl CV and trawl CP sectors' directed 
Pacific cod fisheries have closed most often (1) due to reaching the 
seasonal TAC, (2) to avoid exceeding specified halibut PSC allowances, 
or (3) because a fishing season has ended. Reaching a crab PSC limit 
results in closure of a specific area to directed fishing. Unlike 
reaching a halibut PSC limit, reaching a crab PSC limit typically does 
not close 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 
that would be apportioned to each trawl sector for the Pacific cod 
trawl fishery under this action be proportional to each sector's 
percentage of Pacific cod harvested in the Pacific cod target fishery 
from 1999 through 2003, including Pacific cod retained for meal 
production. Accordingly, the proposed rule divided the annual PSC 
allowance of halibut and crab specified for the Pacific cod trawl 
fishery category 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 should 
receive combined halibut and crab PSC allowances.
    The Council intended the apportionment of halibut and crab PSC 
among the trawl gear sectors that target Pacific cod 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. Because the Council's apportionment of halibut and crab PSC was 
proportional to a trawl sector's harvest of Pacific cod in a target 
fishery, those sectors that harvested Pacific cod primarily as a target 
species, rather than as a species caught incidentally in other 
groundfish fisheries, would have received proportionally higher PSC 
allowances. Under this apportionment,

[[Page 50792]]

the trawl CV and AFA trawl CP sectors would have received higher PSC 
allowances than they have historically used or needed, and the non-AFA 
trawl CP sector would have received significantly less PSC than it has 
historically used or needed to optimize groundfish harvest under 
current PSC limits.
    During its deliberation on adoption of Amendment 85, the Council 
understood and acknowledged that the percentage of halibut and crab PSC 
apportioned to the non-AFA trawl CP sector could be constraining 
compared to average historic use, but chose not to modify its decision. 
The Council determined that the amount of PSC that would be apportioned 
to the non-AFA trawl CP sector would fall within the range of what this 
sector has caught historically.
    Under the Council's recommendation and the proposed rule, the non-
AFA trawl CP sector would have received 22 percent less halibut PSC and 
37 percent less Zone 1 bairdi (Chionoecetes bairdi) crab PSC than it 
has used historically to prosecute its directed Pacific cod fishery and 
only about the average amount of opilio (Chionoecetes opilio) crab PSC. 
Conversely, the AFA trawl CP and the trawl CV sectors would have 
received about 200 percent and 40 percent more halibut PSC, 19 percent 
and 116 percent more bairdi crab PSC, and 3,144 percent and 20,904 
percent more opilio crab PSC, respectively, than these sectors have 
used historically.
    Regulations implementing the FMP must be consistent with the 
Magnuson-Stevens Act, including the national standards, and other 
applicable law. NMFS determined that further apportionment of halibut 
and crab PSC among Pacific cod trawl sectors as proposed by the Council 
is inconsistent with National Standards 1, 4, and 9 of the Magnuson-
Stevens Act. National Standard 1 requires that fishery management 
measures prevent overfishing while maintaining optimum yield from each 
fishery, National Standard 4 requires allocations to be fair and 
equitable among affected fishermen, and National Standard 9 requires 
that bycatch and the mortality of any bycatch be minimized to the 
extent practicable. Under the existing open access management of the 
non-AFA Pacific cod trawl fishery, NMFS determined that the non-AFA 
trawl CP sector is unlikely to be able to harvest its entire allocation 
of Pacific cod with the significant reductions in the proposed amount 
of halibut and crab PSC as detailed above. This would result in a de 
facto reduction in the non-AFA trawl CP Pacific cod allocation and 
would likely reduce this sector's ability to harvest other targeted 
species. The Council did not provide any explanation as to why an 
additional reduction in this sector's harvest of Pacific cod and other 
target species not the subject of this final rule is appropriate or 
consistent with National Standard 4 or other applicable law. 
Additionally, because the amount of PSC allocated to the AFA trawl CP 
and the trawl CV sectors is so much greater than their historical 
needs, the proposed PSC allocations to these sectors may create a 
disincentive for these sectors to minimize their bycatch of prohibited 
species, which is not consistent with National Standard 9. Finally, 
because the non-AFA trawl CP sector harvests a significant majority of 
species other than pollock and Pacific cod, an inconsistency with 
National Standard 1 exists. The non-AFA trawl CP sector would likely 
not have PSC remaining from its Pacific cod fishery that could then be 
used to achieve optimum yield from its other BSAI groundfish fisheries.
    Based on the reasons discussed above, therefore, NMFS disapproved 
the apportionment of the annual PSC allowances of halibut and crab 
mortality among the Pacific cod trawl gear sectors. Regulations 
pertaining to this element are not included in this final rule. These 
apportionments will continue to be specified during the annual harvest 
specifications process.
    NMFS notes that a separate amendment to the FMP, Amendment 80, was 
approved by the Secretary on July 26, 2007. Amendment 80 primarily 
allocates several BSAI non-pollock trawl groundfish fisheries, halibut 
PSC, and crab PSC among fishing sectors, and facilitates the formation 
of harvesting cooperatives in the non-AFA trawl CP sector. The proposed 
rule to implement Amendment 80 was published in the Federal Register on 
May 30, 2007 (72 FR 30052) and was available for public comment until 
June 29, 2007.

Changes in Regulations from the Proposed Rule to the Final Rule

    NMFS made several changes to the proposed regulatory text in this 
final rule. First, NMFS has removed proposed Sec.  679.21(e)(3)(v) from 
the final rule. Proposed Sec.  679.21(e)(3)(v) included the proposed 
PSC allowances for the trawl sector which NMFS disapproved for the 
reasons explained above. Proposed Sec.  679.21(e)(3)(vi) reverts back 
to Sec.  679.21(e)(3)(v) in this final rule as a result of removing 
proposed Sec.  679.21(e)(3)(v). NMFS also has removed references to 
proposed Sec.  679.21(e)(3)(v) from the final rule.
    Second, the proposed regulatory text at Sec.  679.20(a)(7)(i)(B)(1) 
regarding CDQ seasonal allowances combined all CDQ trawl vessels into 
one group. This final rule revises the proposed regulatory text to 
maintain the division between trawl CP and trawl CV that exists in the 
current regulations. No changes to the CDQ Program seasonal allowances 
were intended by the Council.
    Last, the proposed regulatory text at Sec.  679.20(a)(7)(iii)(B) 
inadvertently included the heading ``trawl catcher/processor sectors.'' 
This heading is changed in this final rule to ``trawl gear sectors'' 
because this part of the reallocation hierarchy applies to all trawl 
gear sectors, not just the trawl CP sectors.

Response to Comments

    As mentioned above, NMFS received 16 letters containing 79 unique 
comments during the public comment periods. Two non-industry letters 
were received and 14 letters were received from the fishing industry. A 
summary of those comments, grouped by subject matter, and NMFS' 
responses follow.

Comment on the Intent of Amendment 85

    Comment 1: One commenter supports the intent of Amendment 85 to 
modify the allocations of Pacific cod by codifying the fishery as it is 
actually occurring with the goal of reducing inseason adjustments 
(reallocations) from the trawl sectors to the hook-and-line sectors. 
Another commenter supports the intent of Amendment 85 to modify the 
allocations of Pacific cod to various sectors to better reflect 
historic usage.
    Response: NMFS notes the support for Amendment 85 and clarifies 
that one intention of this action is to better reflect historic use, 
not current use, as noted in this excerpt from the Council's problem 
statement: ``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.''

Comments on Data Used

    Comment 2: The catch history information used in Amendment 85 was 
based on the best scientific information available (1995-2003 WPR 
(Weekly Production Report) and fish ticket data for retained catch). 
Preliminary data from 2004 and 2005 were also considered. It is 
appropriate to use WPR data to calculate catch history by sector for 
the CPs because it is the only data set common to all CP vessels. The 
use of WPR data was well noticed to the

[[Page 50793]]

public. The non-inclusion of fishmeal was consistent with all previous 
Council actions involving allocation.
    Response: NMFS agrees that the catch history information used to 
develop Amendment 85 and presented in the proposed rule was based on 
the best scientific information available, consistent with National 
Standard 2 of the Magnuson-Stevens Act. Only legally retained catch was 
used in determining harvest history to avoid rewarding sectors with a 
high discard rate of Pacific cod. However, data presented in the EA/
RIR/initial regulatory flexibility analysis (IRFA) and considered by 
NMFS in its decision to approve the non-CDQ allocations in Amendment 85 
did include cod destined for fishmeal production because it is legally 
retained catch. The analysis used data from Federal WPRs, which include 
fishmeal data, and the Alaska Department of Fish and Game (ADF&G) fish 
tickets to calculate sector specific harvest history. These databases 
were used because they are consistent across all sectors and every 
sector's production of Pacific cod is weighed and reported on WPRs and/
or fish tickets.
    Total harvest was calculated based on retained legal harvest 
(including Pacific cod that was turned into fishmeal as the primary 
product) from WPRs and ADF&G fish tickets. In addition, total harvest 
(retained and discarded cod, including fishmeal) from NMFS blend data, 
and the catch accounting database was provided in Section 3.3.5 (Table 
3-24) of the analysis. The NMFS blend data and data from the catch 
accounting database (used since 2003) utilize observer data, shoreside 
processor landings data, and fish tickets. In the cod target fishery, 
blend data are calculated from partial haul samples, including 
discards. Observer estimates are extrapolated for some sectors because 
of varying levels of observer coverage. Because the AFA trawl CP sector 
is 100 percent observed, the best information available for that sector 
would be the blend data. However, not all sectors would be treated 
equally if blend data were used because not all sectors are 100 percent 
observed. Therefore, the decision by NMFS to use WPR data and ADF&G 
fish tickets, and to include cod destined for fishmeal in the 
determination of harvest history is fair and equitable, and is 
consistent with National Standards 2 and 4 of the Magnuson-Stevens Act.
    Comment 3: The range of dates selected seriously over-weighted the 
pre-Amendment 46 period, an inept historical analogue to the current 
fishery and a period of time for which Amendment 85 was explicitly 
designed to supersede in order to better reflect current use and 
dependence. The express purpose of Amendment 85 is to conform 
allocations to existing realities. The years most relevant to existing 
realities are the most recent years and the Council failed to consider 
those years.
    Current allocations are based on historical usage prior to 1997, 
and the Council's problem statement seeks to address the fact that 
``the current allocations do not correspond with actual dependency and 
use by sectors.'' Allocations set in 1997 closely tracked actual usage 
at that time to determine what are now the current allocations. 
Therefore, any history prior to 1997 should not be used because it is 
different from the ``actual use'' which Amendment 85 is intended to 
reflect.
    Beginning in 1998, Pacific cod had to be retained by all vessels as 
long as directed fishing was open; no sector should be penalized for 
discarded fish that were legally discarded prior to that. Comparing 
sectors that only target cod with sectors that both target and have 
incidental catches of cod is not comparing apples to apples. The 
Council considered data that contained only retained catch, so they 
understate the amount of Pacific cod the non-AFA trawl CPs needed to 
prosecute other fisheries in the years prior to 1998. Under the current 
regulatory scheme that fish would be retained and counted.
    In 1999, the AFA identified a number of AFA vessels and granted 
them exclusive access to BSAI pollock. The non-AFA trawl CPs were 
excluded from targeting pollock and increased their harvest share of 
Pacific cod. All but one of the AFA trawl CPs ceased to target Pacific 
cod.
    Rewarding one sector over the other for legal discard activity from 
10 years prior to final Council action does not correspond to 
dependencies developed in light of the current management era, which 
began with a new cod allocation in 1997, 100 percent mandatory 
retention in 1998, and the AFA in 1999 which preempted the head-and-gut 
(H&G) fleet from the largest groundfish fishery in North America. 
Therefore, earlier years do not indicate ``present participation'' or 
``actual use.''
    Response: As stated in the response to Comment 1, the allocations 
established by Amendment 85 and this final rule are intended to better 
reflect a sector's historic use, not current use. In referencing the 
Council's problem statement, the commenter appears to equate ``actual'' 
with current, but this is not what the Council meant by ``actual.'' The 
problem statement also states, ``The basis for determining sector 
allocations will be catch history as well as consideration of socio-
economic and community factors.'' One year or just a few recent years 
is not reflective of catch history and dependence over time. No one 
year in the history from 1995 to 2003 was given more weight than any 
other.
    The Council had several options available in setting the allocation 
percentages, including the harvest histories from several specific set 
of years, and an option to select direct allocation percentages from 
within the range of analyzed percentages. The Council chose to select 
allocations for the non-CDQ sectors that were within the range of 
analyzed percentages, and that more closely represent an average of 
retained catch for most sectors from 1995 through 2003.
    Harvest history for each sector was based on annual retained catch. 
The data presented in the EA/RIR/FRFA include historic harvest from 
1995 through 2003 as the primary basis for determining historic use of 
Pacific cod by sector, although data from 2004 to 2005 are provided as 
well. The starting year of 1995 was chosen because it includes data 
from the early years of sector allocations of Pacific cod TAC that 
began in 1994 with the implementation of BSAI Amendment 24 to the FMP 
(59 FR 4009, January 28, 1994). This set of years also includes changes 
in Pacific cod harvest due to impacts beginning in 1998 from 
implementation of improved retention/improved utilization measures to 
reduce discards, from AFA legislation in 1999, and from Steller sea 
lion protection measures beginning in 2001, all of which had impacts on 
all sectors to varying degrees. Pacific cod has been a valuable species 
for a long time, therefore, it is important to also consider the time 
period before these major legislative and regulatory programs to 
determine historic dependence and use. Also, consideration of just 
three or four recent years does not show dependency by the sectors over 
time and may be unduly biased because of increased market demand for 
Pacific cod in recent years for some products, potential decreased 
participation due to BSAI crab rationalization, and the likelihood of 
competition for Pacific cod among sectors in anticipation of this 
action.
    At the time the Amendment 85 analysis was initiated by the Council 
in late 2004, the data from 2003 were the most recent available. Rather 
than continually adding years as the action progressed, the data 
analyzed for the allocation options stopped with the data from 2003. 
The Council and NMFS

[[Page 50794]]

considered more recent (2004 and 2005) harvest data from the NMFS catch 
accounting database in reviewing harvest history to illustrate recent 
harvest trends as that information became available, but it was not 
available in the same format as the data from 1995 through 2003. 
However, for the reasons stated above, this two-year data set was not 
used as the sole basis for the allocations. Additionally, the data 
showed that some sectors increased their harvest of Pacific cod during 
the recent past, compared to their 1995 through 2003 harvest, and were 
not constrained by their allocation in doing so because they did not 
harvest their entire allocation. Not all sectors had the advantage of 
such flexibility. Therefore, based upon all these reasons, focusing on 
more recent years does not provide an equitable standard upon which to 
assess the dependence of Pacific cod by all sectors. The use of data 
from 1995 through 2003 provides a more appropriate basis to determine 
historic harvest share.
    In 1994 under Amendment 24, the trawl sectors were allocated 54 
percent of the Pacific cod TAC, the fixed gear sectors received 44 
percent, and the jig gear sector received 2 percent. This allocation 
was approximately equal to the average percent of Pacific cod taken 
with trawl gear or fixed gear between 1991 and 1993. In 1997 under 
Amendment 46, the allocation to the trawl sector was reduced to 47 
percent and then equally divided between trawl CPs and trawl CVs. The 
reduced allocation to the trawl sector was determined by an industry 
negotiating committee and closely represented the harvest percentages 
taken by trawl and fixed gear at that time while retaining the 2-
percent allocation for jig gear. The split between trawl CVs and trawl 
CPs was agreed upon by a separate negotiation between representatives 
of the trawl sectors to maintain a directed fishery for trawl CVs which 
were more dependent on directed fishing for Pacific cod. These basic 
trawl and fixed gear percentage allocations of Pacific cod TAC have 
remained unchanged since 1997. The fixed gear sectors were divided in 
2000 and the pot sectors in 2004, but the overall split between trawl 
and fixed gear sectors and between trawl CPs and trawl CVs did not 
change.
    The high discard rates of Pacific cod is an issue that the Council 
has been addressing for some time. The problem statement for Amendment 
46 states: ``Management measures are needed to ensure that the Pacific 
cod TAC is harvested in a manner which reduces discards in the target 
fisheries, reduces PSC mortality, reduces nontarget bycatch of Pacific 
cod and other groundfish species, takes into account the social and 
economic aspects of variable allocations and addresses impacts of the 
fishery on habitat.''
    The Council's intent under Amendment 85 was to calculate historic 
catch by using retained harvest of Pacific cod, because Pacific cod is 
required to be retained (in both the directed fishery, and up to the 
maximum retainable allowance when the directed Pacific cod fishery is 
closed) and it was not the intent to ``reward'' sectors that have 
higher discards of Pacific cod. This is why discarded Pacific cod was 
not included in the harvest history data. All of the harvest data 
provided were considered in the allocation decision by the Council and 
by NMFS. Most sectors have incidental catch of Pacific cod in their 
fisheries. The exceptions are the jig and pot gear sectors. By using 
historic catch over the same set of years and using the same data set 
for all sectors (see response to Comment 2), all sectors were treated 
fairly and equitably, consistent with National Standard 4 of the 
Magnuson-Stevens Act.
    Comment 4: The use of WPRs to calculate the round weight of cod 
harvested by the AFA trawl CP sector for the years after 1998 is a 
significant source of error in the catch history tables set forth in 
the draft analysis. The use of observer reports and scale weights is 
universally recognized as a more accurate way of calculating a vessel's 
total catch than the somewhat antiquated WPR approach. The use of WPR 
data as a basis for the AFA trawl CP catch history is inconsistent with 
the requirement that management measures be based on ``the best 
scientific evidence available.'' The draft analysis should be revised 
to clarify that observer data (not WPRs) represent the best available 
data for the post-1998 catch history of the AFA trawl CP sector.
    Response: The Council's and NMFS' use of WPR data rather than NMFS 
blend data and the catch accounting database, which both use observer 
data as one component, is explained in the response to Comment 2. WPR 
data and blend data estimate catch using different methods. WPR data 
represents a consistent database across all sectors; every sector's 
product is weighed, and landed weights are converted to round weights. 
The blend data estimate catch based on vessel catch reports augmented 
by observer data, and are used for in-season management. The blend data 
use observer estimates of discards, which affect the total catch 
estimates. In the cod target fishery, observer estimates are based 
primarily on partial haul sampling. In general, CPs <125 ft (38.1 m) 
LOA are observed 30 percent of the time, and blend data use WPR data 
when there are no observer data available. Finally, during the years 
considered to establish allocations (1995 2003), the more accurate flow 
scales were used more extensively in the AFA CP sector than in other 
sectors. Because the AFA trawl CP sector is 100 percent observed, the 
best information available for that sector would be the blend data. 
However, blend data are not available by vessel length for the CV 
sectors, which primarily affects the <60 ft (18.3 m) fixed gear CVs. 
Also, the non-AFA trawl CPs <125 ft (38.1 m) LOA are observed 30 
percent of the time, so WPR data are used when there are no observer 
data available. These two datasets rely on different estimation methods 
and do not provide identical estimates of catch by sector. Use of blend 
data for some sectors and WPR data for other sectors would be 
problematic because any estimation error among sectors could be 
exacerbated if different datasets are used to determine sector specific 
allocations. Therefore, the best available data when comparing Pacific 
cod harvests among all sectors for the determination of harvest history 
is WPR data and ADF&G fish tickets (see response to Comment 2). 
Acknowledging that observer data are used to monitor catch for this one 
sector because it is 100 percent observed would not change the decision 
on the amendment. Therefore, no changes will be made to the analysis 
concerning this subject.
    Comment 5: The data used in the draft analysis excludes Pacific cod 
utilized in the production of meal from the AFA trawl CP's catch 
history. It is inappropriate for the draft analysis to exclude or 
otherwise discount Pacific cod used for meal production from any of the 
tables used to depict catch history for the AFA trawl CP sector. There 
is no justification for excluding the official catch data from an 
analysis that purportedly reflects the catch history of this sector. 
The combined effect of using WPR-based catch accounting to calculate 
the AFA trawl CP catch history and excluding the catch used to make 
meal results in an inaccurate estimate of the sector's catch history 
that understates the AFA trawl CP sector's historic use and dependency 
on cod. The draft analysis should be revised to clarify that meal is a 
``legally retainable product'' insofar as that term is used in 
connection with Amendment 85 and other regulations governing the BSAI 
groundfish fishery; and that all legally retained cod taken as bycatch 
in

[[Page 50795]]

the directed pollock fishery will be included in the AFA trawl CP 
sector's catch history for purposes of Amendment 85.
    Response: The concern about fishmeal not being included in 
calculations of harvest history was a result of some commenters relying 
on a draft analysis distributed prior to the April 2006 Council 
meeting. As explained in the response to Comment 2, WPR data represent 
the best available information for comparing Pacific cod catch across 
and among sectors. WPR data include Pacific cod destined for fishmeal. 
However, in the early development of the Amendment 85 analysis, data 
for Pacific cod destined for fishmeal were removed from the WPR data 
and Council analytical documents up to the April 2006 Council meeting 
continued to exclude fishmeal data. At the April 2006 Council meeting, 
in light of public comment, WPR data that included fishmeal data was 
provided for Council consideration. As explained in response to Comment 
2, the history considered in setting non-CDQ allocation percentages in 
Amendment 85 included Pacific cod that was turned into fishmeal as the 
primary product. Several tables that incorporated fishmeal in the 
harvest history were presented to the Council in April 2006 for its 
consideration and similar tables were included in the Secretarial 
review draft analysis issued in January 2007. The analysis was not 
revised in light of this comment because the data on fishmeal were 
considered and included in setting the Pacific cod allocation to the 
AFA trawl CP sector and the historic catch data including fishmeal are 
presented in the analysis.
    Comment 6: The H&G sector allocation of 13.4 percent is 0.2 percent 
less than the sector's straight 95-03 average. The action was taken in 
2006, however the last year considered was 2003. This sector's 
``historic use'' and ``actual dependency'' are not adequately reflected 
if 2004 and 2005 are not taken into consideration for a final action 
taken in 2006. The Magnuson-Stevens Act instructs that recency must be 
considered as well. By allocating the H&G sector an amount of cod less 
than its average harvest for the historical period of 1995 to 2003, the 
Council simply ignored the present participation consideration.
    Response: NMFS disagrees that the non-AFA trawl CP sector was 
allocated an amount of Pacific cod that is less than its average 
historic harvest for the period 1995 to 2003 (average historic 
harvest). NMFS believes that the commenter's reference to 13.6 percent 
is likely based on data in the analysis that excludes fishmeal in the 
calculation of average sector harvest share (see Table 3-11 in the EA/
RIR/FRFA). The Council and NMFS included fishmeal in determining 
historic harvest. When fishmeal is included in the calculation, the 
head-and-gut (non-AFA trawl CP) sector average historic harvest from 
1995 to 2003 is 13.4 percent. The non-AFA trawl CP sector received 
exactly its 1995 to 2003 average historic harvest as its allocation 
under Amendment 85. The Council and NMFS also considered more recent 
participation in 2004 and 2005, but for reasons provided in the 
response to Comment 3, chose not to include more recent participation 
in determining historic use and dependence.
    Comment 7: The draft analysis should be revised to include at least 
one table (based on official catch data and including fish utilized in 
meal production) that clearly shows the total retained catch of cod by 
the AFA trawl CP sector during the period following adoption of the AFA 
(e.g., the years 1999-2003).
    Response: Appendix G of the analysis prepared for Amendment 85 and 
this rulemaking (see ADDRESSES) includes Pacific cod catch data, 
including fishmeal, for the AFA trawl CP sector for the years 1995 
through 2003. Therefore, NMFS does not need to revise the analysis to 
include this table.
    Comment 8: Neither the EA/RIR/IRFA before the Council nor the 
Secretarial draft had simply one table which showed the complete 
picture of each sectors' history. It takes three tables to complete the 
1995-2005 picture.
    Response: Table 3-24 in the Secretarial review draft of the EA/RIR/
IRFA gives the data for BSAI Pacific cod non-CDQ allocations, catch and 
reallocations by sector from 1995 through 2005. The proposed rule 
purposely used two tables and the Secretarial review draft analysis 
used three to present the historical catch data as the average share of 
the retained Pacific cod harvest over various time periods. Table 3-9 
in the EA/RIR/IRFA was used to show the complete picture of each 
sector's history for the years under consideration for allocations 
(1995 - 2003), and Table 3-12 shows the catch history for 2004 and 2005 
in a two-part table. The data from 1995 through 2003 used in Table 3 in 
the proposed rule were from a different source than the data for 2004 
and 2005 used in Table 4. Separate tables were used to help draw 
attention to this fact in the proposed rule and for the same reason in 
the EA/RIR/FRFA.
    Comment 9: The proposed allocation to the H&G sector cannot be 
justified by the fact that the H&G sector had a lower harvest share in 
1995-1998, nine to twelve years ago and prior to the implementation of 
several significant regulatory changes culminating in the AFA that 
fundamentally changed the dynamics of the fishery, and that as a result 
its ``average historical'' retained catch was 13.4 percent. The 
sector's performance in those earlier years is of no relevance to the 
goal that the Council was seeking to achieve.
    Response: NMFS disagrees. The reasons why data from 1995 through 
1998 are included in the calculation of average historic harvest are 
explained in the response to Comment 3. While the data may represent a 
period of time when the non-AFA trawl CP sector was not maximizing its 
retained harvest of Pacific cod, it does represent a period of time 
when other sectors were maximizing their harvest. The Council's goal 
was to adjust allocations ``to better reflect historic use by sector.'' 
NMFS determined that the years selected by the Council are consistent 
with that goal.
    Comment 10: The Council was not required to use one particular set 
of ``correct'' years in conforming the allocations to existing reality, 
but the allocation to the non-AFA trawl CP sector was clearly beyond 
any rational assessment of ``actual use.'' Within the range of options 
presented to the Council in the Amendment 85 document (April draft), 
the period from 2000 to 2003 clearly was most reflective of actual 
current participation in the fishery. Under that approach, the non-AFA 
trawl CP sector averaged 16.2 percent. At the other extreme, under the 
option least reflective of actual current participation, from 1995 to 
2002, the non-AFA trawl CP sector average 13.2 percent. Incredibly, the 
Council chose to allocate an even smaller share to the non-AFA trawl CP 
sector than the 1995-2003 average of 13.6 percent. The Council's 
proposal of 13.4 percent does not reflect the non-AFA trawl CP sector's 
current or even its relevant recent participation in this fishery. This 
reduction was not part of an across-the-board cut that treated all 
sectors equitably. Some sectors received an increase above their actual 
use and the non-AFA trawl CP sector received the largest decrease.
    Response: See the response to Comment 3 for a discussion of the 
years considered to determine average historic harvest. The non-AFA 
trawl CP sector catch history from 1995 through 2003 is 13.6 percent 
only if fishmeal is not included. However, the Council's allocation 
recommendation included Pacific cod that was turned into fishmeal as 
the primary product when

[[Page 50796]]

developing the Pacific cod sector allocations because Pacific cod 
destined for fishmeal production is legally retained catch (see 
response to Comment 2). Table 3-119 of the EA/RIR/FRFA shows that when 
fishmeal is included in the calculation, which the Council did in 
taking final action, the non-AFA trawl CP sector's average from 1995 
through 2003 matches exactly the new allocation: 13.4 percent of the 
non-CDQ Pacific cod TAC. Some sectors received allocations that are 
greater than their historic harvest during 1995 through 2003 and others 
less, but the non-AFA trawl CP sector was the only sector to receive 
exactly its average share of the retained harvest from 1995 through 
2003.
    Comment 11: Comparing the harvest information from 2004 and 2005 
with the Amendment 85 allocations reveals that the non-AFA trawl CP 
sector suffered nearly an order of magnitude loss greater than any 
other sector (most of which received allocations at or above their 
2004-2005 average). Comparing the Amendment 85 allocation to the 
average of 1998-2003 (a range from when cod became a 100-percent 
retention species to the last year of data the Council had when making 
their decision), the non-AFA trawl CP fleet still lost far more than 
any other sector going from an average of 15.7 percent to 13.4 percent 
(relative loss of 14.5 percent).
    Response: The Council had harvest data from 2004 and 2005 available 
when it took final action on Amendment 85. It was not available in the 
same format as the years from 1995 through 2003, but it was considered 
by the Council. The non-AFA trawl CP sector allocation is exactly its 
catch history from 1995 through 2003. As stated previously (see 
responses to Comments 2 and 3), the Council chose to look at history 
and dependency over a number of years, not just one or two recent 
years. Although the non-AFA trawl CP sector's retention of Pacific cod 
has increased over the last several years, that sector always had the 
opportunity to retain Pacific cod in higher amounts than they 
historically did. For various reasons, the sector chose to focus on 
other species as a business decision. The Council determined that the 
new allocations were needed to better reflect historic use and chose 
not to define historic use as just the last two or three years.

Comments on Allocation Issues

    Comment 12: The increase in allocation percentage to fixed gear 
from trawl gear is consistent with the historic trend in the way the 
BSAI cod fishery is prosecuted as well as with previous Council actions 
regarding BSAI cod allocations in Amendments 24 and 46. Stabilizing the 
increased historic proportion of fixed gear harvest via allocation of 
BSAI Pacific cod in Amendment 85 will ensure the continued experience 
of reduced halibut and crab bycatch, improved product quality, and 
reduced benthic impacts associated with fixed gear cod fisheries as 
compared to trawl cod fisheries.
    Response: Amendment 85 is intended to better reflect historic usage 
by the various harvest sectors while addressing coastal community 
needs. The Pacific cod allocations to the trawl and fixed gear sectors 
set in 1994 under Amendment 24 (54 percent and 44 percent, 
respectively), were approximately equal to the average percentage of 
Pacific cod taken with these gear types during 1991 through 1993, with 
a 2-percent allocation for jig gear. The Pacific cod allocations set in 
1996 under Amendment 46 were arrived at by industry negotiation and 
were chosen to represent more closely the harvest percentage taken by 
trawl and fixed gear sectors at that time (47 percent and 51 percent, 
respectively), while maintaining the 2-percent allocation for jig gear. 
Under Amendment 85, if the harvest sectors were similarly grouped, the 
allocations would be 37.8 percent for trawl gear, 60.8 percent for 
fixed gear, and 1.4 percent for jig gear. NMFS has determined that the 
sector allocations proposed under Amendment 85 better reflect the 
historic use by the various harvest sectors as a whole than do the 
current sector allocations, and has approved them. NMFS notes the 
second comment.
    Comment 13: All sectors received amounts that reflect recent 
participation, except the AFA CPs which received more, and the small 
boat fleets which also received much more than their history, as a 
policy decision. Only the H&G fleet has suffered a set back so large 
that both its directed fishery and its non-cod directed fisheries are 
jeopardized, while the other sectors' annual fish plans were not 
affected.
    Response: NMFS approved the non-CDQ sector allocation percentages 
in Amendment 85. The following is NMFS' rationale for that decision. 
Amendment 85 will separate trawl CPs into two sectors, AFA and non-AFA, 
for purposes of Pacific cod allocations. The AFA trawl CP fleet will be 
restricted to a separate allocation slightly greater than its historic 
catch from 1995 through 2003, but 62.3 percent below its current 
sideboard limit for catch of Pacific cod. Separating the two sectors 
will protect the historic catch of the non-AFA trawl CPs better than 
leaving these two sectors combined with a lower shared allocation that 
reflects their combined history, but with the same AFA sideboard limit. 
Although the AFA trawl CP sector decreased its average harvest share 
between 2000 and 2003, this fleet is a cooperative that more likely 
will catch its Pacific cod allocation in a manner that minimizes the 
bycatch of non-target species. Bycatch is a consideration under 
National Standards 4, 5, and 9 of the Magnuson-Stevens Act. Because the 
allocation to the AFA trawl CP sector is slightly higher than this 
sector's historic catch, it should be sufficient for this sector to 
cooperatively manage its allocation and maintain a directed fishery, in 
addition to meeting its needs for incidental catch in its pollock and 
yellowfin sole fisheries. This ability to maintain the opportunity for 
these few directed fisheries is important because AFA sideboard 
provisions restrict this sector's ability to participate in other BSAI 
fisheries and AFA trawl CPs are prohibited from fishing in the Gulf of 
Alaska.
    Only the non-AFA trawl CP sector will receive an allocation equal 
to its exact average historic harvest share from 1995 through 2003. The 
allocation to this sector is reflective of its dependence on the 
Pacific cod fishery over many years. About half of its historic Pacific 
cod harvest occurs as incidental catch in flatfish (primarily yellowfin 
sole and rock sole), Atka mackerel, and rockfish fisheries. The BSAI 
flatfish fisheries are the primary revenue source for this sector and 
often incur high incidental catches of Pacific cod. Note that the trawl 
CP sectors combined have contributed 49.1 percent on average to the 
total annual reallocations of Pacific cod to other non-trawl sectors 
between 2000 and 2004. Based on environmental considerations, the 
nature of these sectors' fisheries, average historic harvest, and to 
protect the non-AFA trawl CP harvest, NMFS determined that the 
allocations under Amendment 85 to the trawl CP sectors are a reasonable 
balance of the National Standards under the Magnuson Act.
    The hook-and-line CV [gteqt]60 ft (18.3 m) LOA sector will receive 
an allocation above its average historic harvest, and this allocation 
will no longer be shared with the hook-and-line CV <60 ft (18.3 m) LOA 
sector. This will allow Pacific cod to remain open to directed fishing 
for a longer period of time. Existing regulations governing bycatch 
require that all Pacific cod be retained when directed fishing is open. 
Thus, discard of Pacific cod by the hook-and-line CV

[[Page 50797]]

[gteqt]60 ft (18.3 m) LOA sector should be reduced when targeting other 
species, particularly Pacific halibut, and to a lesser extent in its 
sablefish and rockfish fisheries, an important consideration under 
National Standards 4, 5, and 9.
    The allocations are not based solely on historic harvest share, but 
also are based on socioeconomic considerations, consistent with 
National Standard 8. For this reason, the allocations are higher than 
the average historic harvest for the jig sector and the fixed gear CV 
<60 ft (18.3 m) LOA sector. Under National Standard 8, NMFS must take 
into account the importance of fishery resources to fishing communities 
to provide for the sustained participation of such communities. By 
maintaining allocations above the average harvest history for these two 
entry level sectors, Amendment 85 maintains and expands local 
opportunities for resident fishermen in small, coastal communities near 
the fishing grounds to participate in the BSAI Pacific cod fishery.
    The increase in the allocation to the fixed gear CV <60 ft (18.3 m) 
LOA sector from 0.7 to 2.0 percent of the non-CDQ Pacific cod TAC is 
fair and equitable. This sector has been successfully harvesting part 
of the allocation to the general hook-and line CV and pot CV 
allocations, all of its allocation since 2002, and reallocations from 
the jig sector since 2004. Its share of the harvest in 2004 and 2005 
averaged 1.7 percent. The small CV sectors have been favored in 
previous allocation measures for BSAI Pacific cod to encourage growth 
in this entry level sector. Such actions have been successful as 
illustrated by the steadily increasing harvests by this small boat 
sector. The allocation of 2.0 percent to the fixed gear CV <60 ft (18.3 
m) LOA sector is necessary to provide sufficient Pacific cod for this 
sector to harvest under its own direct allocation, separate from the 
hook-and-line and pot CV [gteqt]60 ft (18.3 m) LOA sector allocations 
these small boats currently may fish under, and to allow continued 
growth in this small boat sector.
    Although the jig sector allocation of 1.4 percent of the Pacific 
cod TAC is 14 times higher than its historic harvest share, it is a 
reduction from it current allocation of 2.0 percent. The intent of this 
allocation is to provide for an entry level fishery. The reduced 
allocation to the jig sector still allows for growth in this sector and 
is closer to its historic harvest share than its current allocation. 
Additionally, this allocation serves as a ``bank'' for anticipated 
growth in the harvest of Pacific cod in all catcher vessel sectors 
given that unused portions of the jig gear allocation are annually 
reallocated first to the fixed gear <60 ft (18.3 m) LOA sector (another 
small boat, entry-level sector), and then to other CV fleets that 
deliver to fishing communities. Also, under Amendment 85, reallocations 
from the jig sector will be available to the fixed gear <60 ft (18.3 m) 
LOA sector earlier in the year. Being able to harvest the fish earlier 
in the year when the weather is preferable for these small boats 
(safety is a consideration under National Standard 10), should enable 
this sector to harvest more of the reallocated fish than it does 
currently. Therefore, in light of the likelihood of reallocations of 
any unused allocations to the <60 ft (18.3 m) LOA fixed gear sector, 
and to other CV fleets that deliver shoreside to fishing communities, 
the allocation of 1.4 percent of the Pacific cod TAC to the jig sector 
is fair and equitable and meets the purpose and need of the action to 
consider socio-economic and community factors.
    For the small boat sectors to receive allocations above their 
average historic harvest, some sectors must receive less than their 
average historic harvest. The four sectors that will receive lower 
allocations than their average historic harvests are the pot CV 
[gteqt]60 ft (18.3 m) LOA, hook-and-line CP, pot CP, and trawl CV 
sectors. Their allocations represent a reasonable balancing of 
Magnuson-Stevens Act National Standard requirements while also meeting 
the purpose and need of the action. The pot CV [gteqt]60 ft (18.3 m) 
LOA sector and the hook-and-line CP sector will receive allocations 
that are closer to their average historic harvests than are their 
current allocations and are only slightly less than their average 
historic harvests. Because the small boat sectors will receive 
allocations above their historic harvest it is expected that the pot CV 
[gteqt]60 ft (18.3 m) LOA sector and the hook-and-line CP sector also 
may receive reallocations toward the end of the fishing year, which 
will make their share of the TAC closer to their historic share of the 
harvest. Additionally, the pot CV [gteqt]60 ft (18.3 m) LOA and trawl 
CV sectors may receive reallocations of Pacific cod from other CVs or 
from CPs of the same gear type. Also, the pot sectors are primarily 
dependent on crab fisheries rather than on the Pacific cod fishery. The 
pot CP and trawl CV sectors are the only sectors, other than the fixed 
gear <60 ft (18.3 m) LOA sector, that will receive allocations that are 
less reflective of their average historic harvests between 1995 and 
2003. Recent trends demonstrate that the pot CP and the trawl CV 
sectors' harvest shares have decreased in recent years, such that the 
allocations under Amendment 85 better reflect these sectors' average 
harvest shares between 2000 and 2003 than do the current allocations. 
The AFA trawl CP sector was the only other sector that decreased its 
average harvest share between 2000 and 2003, but was not selected to 
fund the increases in other sector allocations for the reasons stated 
above. The allocation to the pot CP sector is fair and equitable 
because of its more recent decreased harvest share and its greater 
dependence on the crab fisheries. Although the trawl CV sector 
allocation is reduced, a combined allocation of Pacific cod to the AFA 
and non-AFA trawl CVs will take advantage of the existing AFA inshore 
cooperative structure for discussion and agreement concerning access to 
fishing grounds and harvesting activities in a manner that optimizes 
the allocation to this sector for all CVs. Additionally, public 
testimony at the April 2006 Council meeting requested that the two 
trawl CV sectors remain combined. A combined allocation also is larger 
than separate allocations to either the non-AFA or AFA CVs, thus 
providing some protection in the event that trawl vessels that have not 
historically participated in the fishery choose to do so.
    Comment 14: The AFA trawl sectors would receive the largest 
aggregate increased share of the Pacific cod fishery under the Council 
proposal - 1.2 percent over the combined AFA trawl CP and trawl CV 
history from 1999 through 2005.
    Response: The data presented in the analysis include historic 
harvest from 1995 through 2003 as the primary basis for determining 
historic use of Pacific cod by sector, although data from 2004 to 2005 
are presented as well. The Council did not make its proposal based on 
catch history from 1999 through 2005 based on reasons given in response 
to Comment 3. The trawl CV and AFA trawl CP sectors do not receive a 
combined allocation. The AFA trawl CP sector will receive a share of 
the non-CDQ Pacific cod TAC that is 0.1 percent higher than its 
historic share from 1995 through 2003. The AFA trawl CV sector will 
receive an allocation in combination with the non-AFA CV sector. That 
allocation will be 1.9 percent less than its historic share from 1995 
through 2003. Combining the AFA trawl CP sector with the trawl CV 
sector results in a combined decreased share of 1.8 percent of the non-
CDQ Pacific cod TAC.
    Comment 15: The proposed allocation of 13.4 percent to the non-AFA 
trawl CP sector is significantly less than this sector's actual 
dependence and use. The allocation scheme proposed by

[[Page 50798]]

Amendment 85 will put the H&G sector in an economically precarious 
position, slashing its recent usage of cod by up to 30 percent based on 
its harvest in 2004. The APA requires agency actions, such as Amendment 
85, to bear a rational relationship to the problems they are intended 
to address. Reducing the non-AFA trawl CP's allocation so substantially 
below its actual harvest levels over the past seven years does not 
serve the Council's ``primary objective'' of reducing the need for 
annual reallocations. The Notice of Proposed Rulemaking relies upon 
figures that clearly demonstrate this point. The Notice of Proposed 
Rulemaking specifically points out that the non-AFA trawl CP sector's 
retained harvest ``has not been less than 15.3 percent since 2000.'' 
There is no rational basis in the record to justify the reduction in 
cod TAC suffered by the H&G sector in this Council recommendation.
    Response: The allocations were based on long-term dependence and 
catch history over many years. The harvest history was not based on 
just one or two years of harvest by a particular sector (see responses 
to Comments 3 and 13). The Council had the option to select from six 
sets of specific years or to select percentages for the Pacific cod 
allocations that fall within the range of percentages analyzed. The 
Council chose the latter course of action. Thus, as the information was 
presented in the analysis, the focus was on Pacific cod harvest history 
from the years 1995 through 2003. NMFS recognizes that the selection of 
certain year sets will be more beneficial to some sectors than the 
selection of other year sets. In setting the percentages, the Council 
made a reasonable balance of the National Standards under the Magnuson-
Stevens Act, particularly National Standards 4 and 8 which deal with 
allocations and community considerations respectively. In examining the 
Council's action, NMFS determined that the allocations reasonably 
reflect the historic harvest of Pacific cod by each sector between 1995 
and 2003. NMFS determined that consideration of the earlier years (1995 
through 1998) is reasonable and that calculating harvest history 
through 2003, rather than 2004 or 2005, is reasonable for the reasons 
given in response to Comment 3.
    As stated in the proposed rule, the primary objective of the 
Council 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. Annual reallocations are expected to 
be reduced under Amendment 85, and are thus related to the revised 
allocations to each sector that more closely reflect historic use by 
most sectors than do current allocations, while considering 
socioeconomic and community factors. As noted in the response to 
Comment 13, nearly half of the annual reallocations between 2000 and 
2004 have come from the trawl CP sectors and those reallocations 
averaged 19.4 percent of the initial trawl CP sector allocation.
    Comment 16: National Standard 4 provides that ``If it becomes 
necessary to allocate or assign fishing privileges among various U.S. 
fishermen, such allocation shall be...fair and equitable to all such 
fishermen...'' Elaboration of this requirement under Sec.  
600.325(c)(3)(i)(A) requires that the particular allocation chosen be 
``rationally connected to the achievement of OY [optimum yield] or the 
furtherance of a legitimate FMP objective...'' and that ``the motive 
for making a particular allocation should be justified in terms of the 
objectives of the FMP; otherwise, the disadvantaged user groups or 
individuals would suffer without cause.'' In this case, the objective 
to conform allocations to current usage (to reduce late-year 
reallocations of unharvested fish) and dependency cannot be rationally 
served by reducing the non-AFA trawl CP sector allocation to one-
quarter to one-fifth below its actual recent harvest levels or by 
allocating more than recent harvest levels to other sectors. Under 
National Standard 4, an allocation may impose a hardship on one group 
if it is outweighed by the total benefits received by another group or 
groups. The Council would have had to make an estimate of the benefits 
and hardships imposed by the allocation and compare them to those of 
alternative allocation schemes, including the status quo. The Council 
did not do that.
    Response: NMFS has determined that the allocations are fair and 
equitable to all sectors. Between the two quotes from the Code of 
Federal Regulations is the sentence ``Inherent in an allocation is the 
advantaging of one group to the detriment of another.'' This action 
also is designed to increase the Pacific cod allocation to the small 
boat sectors which is a legitimate FMP objective. The management 
objectives in the FMP include promoting sustainable fisheries and 
communities. Because the small boat sectors deliver to fishing 
communities, increasing allocations to these sectors should promote 
these fishing communities. This action also will decrease the amount of 
Pacific cod that is reallocated to other sectors later in the season, 
facilitating these sectors' ability to achieve optimum yield by better 
planning their fishing year and operating more efficiently. The 
response to Comment 3 provides NMFS' rationale for why the years 1995 
through 2003 are a reasonable, fair, and equitable set of years for 
determining the average historic share of the retained Pacific cod 
harvest. Using that set of years, the non-AFA trawl CP sector received 
a fair and equitable allocation which is exactly its average historic 
harvest share from 1995 through 2003. Please see the response to 
Comment 13 for a discussion of all sectors' allocations.
    Comment 17: Every sector was allocated its target and incidental 
cod needs, except the H&G sector. This discrepancy is not specifically 
highlighted in the draft Secretarial Review. The H&G fleet was 
allocated an insufficient amount for accommodating both a directed 
fishery and incidental catch needs and, by inference, was given a 
choice: target or bycatch, but not both. This violates National 
Standard 4, that allocations be fair and equitable to all fishermen. 
When one sector must decide between its target fishery and its other 
groundfish fisheries, while others have been allocated in excess of or 
close to their recent harvests, it is neither fair nor equitable, 
particularly in light of the fact that it was never addressed in the 
EA/RIR/IRFA.
    In economic terms, NMFS' inseason manager estimates that under 
Amendment 85, the H&G sector would lose about 10,000 metric tons of cod 
in 2007 compared to expected harvest under the status quo. NMFS' in-
season manager also estimates that in order to account for the 
incidental catch needs of the fleet for its flatfish and other 
fisheries, the agency will only be able to allow for a directed fishery 
of 10 or 11 days, whereas currently, the directed cod fishery is seldom 
closed. Owners, employees, observer providers, support companies, and 
the ports the vessels call on may suffer economic hardship under 
Amendment 85. We respectfully request that the Secretary disapprove the 
allocations.
    Response: NMFS has approved the non-CDQ allocations of Pacific cod 
under Amendment 85. Every sector, except the small boat sector, was 
allocated an amount of Pacific cod that reflects its average historic 
harvest and dependence over many years that included target and 
incidental catch to the extent that incidental catch was retained. 
Information on the historic harvest share for the non-AFA trawl CP 
sector was provided in the EA/RIR/FRFA, just as it was for all the 
other sectors. The non-AFA trawl CP sector's allocation of 13.4 percent 
of the Pacific cod non-CDQ TAC is 100 percent of its average historic 
harvest between 1995

[[Page 50799]]

and 2003, an exact reflection of its historic use and reflective of 
this sector's dependence on the resource over many years. Its recent 
increase in directed fishing for Pacific cod does not reflect a long-
term dependence on the fishery. NMFS acknowledges that accommodating 
target and incidental catch may be more difficult for the non-AFA trawl 
CP sector when compared to its most recent few years' harvest.
    The economic impacts of Amendment 85 were analyzed in the RIR and 
IRFA. Because this action is principally designed to reapportion access 
to the Pacific cod resource among current user groups, it represents 
tradeoffs (i.e., some entities are negatively affected while others are 
positively affected). The estimates referred to by the commenter were 
provided by NMFS a few weeks after the April 2006 Council meeting as a 
worst case scenario using lower acceptable biological catch (ABC) and 
TAC levels than actually were established for 2007 and assuming that 
the non-AFA trawl CP sector would continue conducting its fisheries as 
it does currently. Revising the estimates for 2007 based on the actual 
TAC and with a CDQ allocation of 10.7 percent would yield an estimate 
of 19 to 20 days of directed fishing under current non-AFA trawl CP 
fishing practices. If incidental catch rates of Pacific cod in other 
groundfish fisheries are reduced below the current rates, the non-AFA 
trawl CP sector should be able to maintain a directed fishery for 
Pacific cod for an even longer period of time. As stated in the EA/RIR/
FRFA on pages 294 and 295: ``With a lower potential allocation compared 
to recent years, this sector will likely need to determine how much of 
its cod allocation will be used as incidental catch to other target 
fisheries versus to fund the directed cod fishery,'' and ``Absent a 
cooperative structure as approved [by the Council] in [proposed] 
Amendment 80, it is expected that compliance with the groundfish 
retention standards and management of a lower Pacific cod allocation to 
serve both directed and incidental catch needs, will be substantially 
more difficult.'' See response to Comment 16 regarding consistency of 
Amendment 85 and this final rule with National Standard 4.
    Comment 18: The loss of a directed cod fishery leaves the H&G fleet 
with no fishery from the end of the yellowfin sole fishery (which ended 
in mid-April of 2006) until July, when the ``B'' season starts. No 
other fleet will see its current operations disrupted by Amendment 85 
the way that the H&G sector will.
    Response: Under existing regulations, Pacific cod allocations are 
further apportioned by season for most gear sectors to protect prey 
availability for Steller sea lions. Currently, the trawl CPs, AFA and 
non-AFA combined, receive 50 percent of their allocation in the A 
season, 30 percent in the B season, and 20 percent in the C season. See 
the proposed rule for more details on seasonal allowances. Beginning in 
2004, the trawl CP sector Pacific cod fishery has closed in mid-March 
due to reaching it's a season allowance. The B season for trawl CPs 
opens on April 1 and closes on June 10. More than half the incidental 
catch of Pacific cod by trawl CPs occurs after March. Amendment 85 
changed the seasonal allowances for the trawl CP sectors so that 75 
percent of the allocation may be harvested in the A season, with the 
remaining 25 percent harvested in the B season. This was done to 
maintain to the extent possible the current percentage of non-CDQ 
Pacific cod TAC available for harvest in the early part of the year 
when fishing for Pacific cod is more advantageous. If incidental catch 
rates of Pacific cod in other fisheries are kept low, the non-AFA trawl 
CP sector should be able to maintain a directed fishery for Pacific 
cod.
    Comment 19: The AFA trawl CP sector was funded with more than their 
recent (99-05) usage of 1.9 percent. That sector has its pollock 
fishery cod bycatch needs met at the all time high 1.5 million mt 
pollock TAC level, even as the pollock biomass and TAC are on a 
downward trend. With a 2.3-percent allocation, and lower pollock TAC, 
more cod can be used to enhance their directed fishery, which is 
essentially an IFQ [individual fishing quota] since only one vessel is 
used in the fleet to directed fish on cod. That vessel is also an AFA 
eligible CP, and while on the record it was stated that it has nowhere 
to go other than cod, the vessel has access to the yellowfin sole 
sideboard and the directed pollock fishery of the AFA CPs. It is the 
vessel owner's decision not to fish pollock or yellowfin sole with that 
vessel.
    Response: The AFA trawl CP sector will receive an allocation that 
is 0.1 percent above its average historic share of 2.2 percent of the 
Pacific cod harvest. NMFS provided the agency's explanation for 
approving the AFA trawl CP Pacific cod allocation in the response to 
Comment 13. NMFS agrees that it is each vessel owner's decision whether 
or not to harvest fish in the fisheries open to that particular vessel. 
However, it is a goal of this amendment to allocate Pacific cod to 
specific sectors based on average historic harvest, not to determine 
what fisheries are open to specific vessels or to establish other 
vessel-specific provisions for access to Pacific cod or other 
groundfish. Also, the AFA trawl CP sector allocation is less than its 
current sideboard limit for harvesting Pacific cod (see response to 
Comment 13).
    Comment 20: The reduced ability to target Pacific cod during the A 
season for the CP trawl sector has resulted in more rollovers to fixed 
gear; the cod that would have been caught in March when the fish are 
most aggregated, has not been caught. The fishery in the last two years 
has closed in early-mid March due to the 50 percent season limit and 
reduced cod TACs. This has benefitted the fixed gear sector which gets 
the rollover in the C season, at the end of the year. The Steller sea 
lion management measures drastically altered cod fishing patterns and 
harvests. The patterns were altered because of the seasonal 
apportionments, not because of changed priorities or reduced dependency 
on the part of the harvesters.
    Response: Almost all gear types, excluding <60 ft (18.3 m) LOA 
fixed gear, are restricted in their amount of Pacific cod catch in the 
first half of the year because of SSL protection measures, not just the 
trawl CP sector. A goal of Amendment 85 is to reduce the amount of 
reallocations due to unharvested Pacific cod left toward the end of the 
fishing year. The trawl CP sectors have not harvested their entire 
allocation in any year since that sector began receiving a separate 
Pacific cod allocation in 1997. The jig sector is the only other sector 
that has also had Pacific cod reallocated from it in every year it has 
received a Pacific cod allocation. Beginning in 2004, NMFS has closed 
the trawl CP sector Pacific cod fishery in mid-March due to reaching 
its ``A'' season allowance. The B season opens on April 1 and closes on 
June 10. In 2005, NMFS closed the trawl CP sector Pacific cod directed 
fishery on August 18 because it had reached its halibut PSC mortality 
limit. In 2006, NMFS closed the trawl CP sector Pacific cod directed 
fishery on June 8 (just before the end of the B season), opened it on 
July 19, and closed it on August 31 due to halibut PSC mortality 
considerations. So in the last two years, the trawl CP sector Pacific 
cod directed fishery has been closed during the C season due to 
reaching its halibut PSC mortality limit. Halibut PSC mortality limits 
and seasonal allowances to protect SSLs have affected most sectors to 
varying degrees. It is up to each sector to try to keep its Pacific cod 
incidental catch rates and PSC catch rates low if it wants to maintain 
a directed fishery for Pacific cod. Also note that the seasonal

[[Page 50800]]

allowance percentages have changed under Amendment 85 (see response to 
Comment 22).
    Comment 21: The State waters Pacific cod fishery has taken 3 
percent of the Pacific cod ABC for the past two years, to fund a 
fishery in Adak which is closed to trawl CPs over 100 ft. This reduces 
the BSAI Pacific cod TAC by 3 percent. While this is calculated by NMFS 
to be taken ``off the top,'' if one looks at the allocations to each 
sector, it can be argued that it's really the H&G sector that took the 
hit. The H&G sector's 2004-2005 harvest (Table 3-12 - retained, incl. 
meal) was 17.7 percent. The H&G allocation is 13.4 percent. The 
cumulative effect of the increased CDQ and State waters fishery, is a 
further reduction in TAC of 6.2 percent. The original ITAC was 92.5 
percent of TAC, now it will be 86.3 percent of TAC. This reduction is 
spread disproportionately among sectors.
    Response: NMFS disagrees. The Council is free to choose how much of 
the Federal Pacific cod TAC it allocates to small vessels regardless of 
the existence of a State of Alaska-managed Pacific cod fishery in State 
waters. The State waters Pacific cod fishery is not within the 
Council's or NMFS' jurisdiction and can be modified by the State at any 
time. The amount of Pacific cod set aside for the State waters fishery 
has not and will not come from the non-AFA trawl CP sector allocation 
alone. Additionally, all trawl CPs >100 ft (>30.5 m) do not have access 
to the State waters Pacific cod fishery, not just the non-AFA trawl 
CPs.
    The process followed by NMFS in setting the allocations for Pacific 
cod each year in the annual specifications process is to first deduct 
the amount of Pacific cod for the State waters fishery from the ABC. 
The remainder is the TAC for a particular year. NMFS then deducts the 
amount of Pacific cod allocated to the CDQ Program. Finally, the 
remaining non-CDQ TAC is divided among the sectors. The reductions are 
taken before allocations are made to the non-CDQ sectors and, thus, 
affect all sectors proportionately.
    Comment 22: The EA/RIR/IRFA analyzed the impact of reallocating cod 
from trawl to fixed gear and determined that the trawl CP sector would 
have no C season cod, unless it rolled from within the sector's B 
season. Even with no cod TAC reductions, the trawl CPs will be severely 
constrained with the 50 percent limit for the A season, and this will 
filter through to the end of the year. The other trawl and fixed gear 
fleets that were well funded are in no worse position than they were 
prior to the Amendment 85 action.
    Response: The Council directed that allocations for the A and B 
seasons for trawl gear and the A season for fixed gear sectors be 
calculated to maintain the current seasonal percentage of the non-CDQ 
TAC that is allocated to those sectors. This was done to allow directed 
fishing for Pacific cod earlier in the year when there is less PSC 
bycatch, Pacific cod harvest rates are highest, and to maintain SSL 
protection measures. Under this action, the A season allowance for the 
non-CDQ trawl CP sectors will increase from 50 percent to 75, with the 
remaining 25 percent seasonal allowance available in the B season. That 
is why there would be a C season harvest only if seasonal allowances 
roll over from the A or B seasons to the C season.
    Comment 23: The non-AFA trawl CP fleet makes important economic 
contributions to remote Alaskan communities that the Council's reduced 
allocation to that sector may well jeopardize. The non-AFA trawl CP 
fleet fishes year round, using support services and relying on vendors 
which would normally be closed in the late spring/summer months were it 
not for this fleet's activities. The State of Alaska assesses all fish 
landed in Alaska, regardless of gear or sector designation. Whether 
harvested by CVs or CPs, the same landing taxes would be generated, and 
given back to the communities in which the fish would be offloaded. Any 
suggestion that community impacts support imposing the burden of 
funding the increased small-boat allocations solely (or even primarily) 
upon the non-AFA CP fleet is not based in fact or supported by the 
record.
    Response: NMFS acknowledges that the non-AFA trawl CP fleet makes 
economic contributions to the communities visited by vessels in that 
sector. Based on the EA/RIR/FRFA, NMFS does not expect a significant 
impact on remote Alaskan communities due to the non-AFA trawl CP 
allocation under Amendment 85. Any potential negative effects on remote 
Alaskan communities are likely to be outweighed by the positive impacts 
of the increased allocations to the small boat sectors, which are based 
primarily out of Alaskan communities. See response to Comment 13 
regarding the ``funding'' of the allocations to the small boat sectors.
    Comment 24: A separate section of the Magnuson-Stevens Act, 16 
U.S.C. 1853(b)(6) requires the Council and the Secretary to consider a 
certain set of relevant factors as a condition to establishing a 
limited access system for a fishery.
    Response: NMFS agrees that section 303(b)(6) of the Magnuson-
Stevens Act (16 U.S.C. 1853(b)(6)) requires the Council and NMFS to 
take into account several factors when establishing a limited access 
system. However, Amendment 85 does not establish a limited access 
system for the Pacific cod fishery because it does not affect existing 
participation requirements for the BSAI Pacific cod fishery. Therefore, 
section 303(b)(6) is not applicable to Amendment 85.
    Comment 25: NMFS should approve Amendment 85 with a Pacific cod 
allocation for the AFA trawl CP sector significantly greater than the 
2.3 percent proposed by the Council. Appropriately calculated, the 
retained legal catch of the AFA trawl CP sector averaged approximately 
2.5 percent of the total retained legal catch of BSAI cod between 1999 
and 2003, the relevant years following passage of the AFA in 1998. The 
2.3-percent allocation recommended by the Council and contained in the 
proposed amendment represents the absolute minimum amount necessary to 
fund both the bycatch needs of the AFA trawl CP pollock fishery and the 
relatively small directed fishery that at least one of the AFA trawl CP 
vessels has been conducting in the BSAI for many years. Ultimately, the 
way the incidental catch allowance is established and managed will 
determine the extent to which these objectives can be accomplished.
    Response: The AFA trawl CP sector will receive an allocation that 
is slightly higher than its average historic harvest from 1995 to 2003, 
one of only two non-small boat sectors to do so. About 44 percent of 
the Pacific cod harvested by the AFA trawl CP sector during that time 
period was taken incidentally when these vessels were targeting BSAI 
pollock. See the response to Comment 3 for why these years of 
historical harvest are appropriate. The allocation to the AFA trawl CP 
sector should be sufficient for this sector to cooperatively manage its 
allocation and maintain a directed fishery in addition to meeting its 
incidental catch needs in other fisheries. The incidental catch 
allowance for the AFA trawl CPs will be established inseason with the 
intent of maintaining a directed Pacific cod fishery.
    Comment 26: We support the proposed rule's plan to manage each of 
the trawl sector incidental catch allowances on an inseason basis. The 
proposed amendment should be revised to direct NMFS to manage any 
incidental catch allowance established in connection with the AFA trawl 
CP sector's Pacific cod allocation to

[[Page 50801]]

facilitate, to the maximum extent practicable, the prosecution of an 
early season directed Pacific cod fishery without jeopardizing the need 
to retain sufficient Pacific cod for bycatch in the directed pollock 
fishery later in the year.
    Response: NMFS notes the support for establishing trawl sector 
incidental catch allowances on an inseason basis. NMFS' existing policy 
for establishing incidental catch allowances is to facilitate, to the 
extent practicable, directed fisheries while retaining amounts needed 
as incidental catch in other directed fisheries. NMFS does not need 
regulatory authority to continue this policy, so no regulatory changes 
are necessary.
    Comment 27: Tables 3 and 8 of the proposed rule are inaccurate and 
understate the legally retained BSAI Pacific cod catch history of the 
AFA trawl CP sector. Table 3 does not use the ``best available data'' 
to calculate the AFA trawl CP sector's catch history for the years 
after 1998. In Table 8, the range for the AFA trawl CP sector includes 
a lower end point of 0.9 percent. That number is misleading for several 
reasons: first, it is derived by excluding fish utilized in the 
production of meal; and second, it is generated by using a WPR approach 
to calculate retained catch. This is inaccurate and prejudicial in that 
it suggests a level of usage and dependency that is significantly lower 
than accurately calculated catch would indicate.
    Response: Regarding Table 3 in the proposed rule, the response to 
Comment 2 explains why WPR data were used instead of observer data to 
calculate catch history. The purpose of including Table 8 was to 
demonstrate the wide range of allocations that were considered by the 
Council. The allocation to the AFA trawl CP sector is slightly above 
its catch history as calculated from WPR data from 1995 through 2003. 
Also see responses to Comments 13 and 25.
    Comment 28: We prefer to purchase all of the Pacific cod for our 
restaurant chain from a particular AFA trawl CP because of the high 
quality of the product. If the amount of Pacific cod available for that 
vessel to harvest were to decline, we would likely be forced to 
purchase lower quality processed cod from foreign commodity markets.
    Response: Under Amendment 85 and this final rule, the AFA trawl CP 
sector will receive an allocation of Pacific cod that is slightly above 
its historic harvest. Because the AFA trawl CP sector operates as a 
cooperative and has the ability to control its harvest, NMFS 
anticipates that the amount of Pacific cod allocated to the AFA trawl 
CP sector will be sufficient to maintain the sector's directed fishery 
while meeting its incidental catch needs in other fisheries.

Comments on Dependency on the Pacific Cod Fishery

    Comment 29: The non-AFA trawl CP sector asserted that the Pacific 
cod allocation they received will be insufficient to prosecute their 
flatfish fisheries. However, that does not appear to be the case. From 
1999 to 2003, the non-AFA trawl CP sector took 54 percent of their 
Pacific cod in directed Pacific cod fishing and 46 percent incidentally 
while targeting other species (flatfish, etc.). In 2003, 63 percent of 
the non-AFA trawl CP sector Pacific cod was taken in directed Pacific 
cod fishing and 37 percent was taken incidentally. The allocation the 
non-AFA trawl CP sector received is 90 percent of its 1997 to 2003 
average catch history. For comparison, the pot CP sector received an 
allocation that is 88 percent of its 1997 to 2003 catch history. The 
trawl CV sector allocation was 97 percent of its 1997 to 2003 catch 
history. The hook-and-line CP sector received an allocation that is 97 
percent of its 1997 to 2003 catch history. However the hook-and-line CP 
sector's dependency on BSAI Pacific cod is four times that of the non-
AFA trawl CP sector and more than twice that of the pot CP sector and 
the trawl CV sector.
    Response: Please see the EA/RIR/FRFA for the best available data on 
the BSAI Pacific cod fishery. All the sectors are dependent on the BSAI 
Pacific cod resource, albeit to varying degrees. Based on the average 
annual estimated total first wholesale revenue from groundfish products 
between 1999 and 2003, the hook-and-line CP sector is more dependent 
than the other sectors on the BSAI Pacific cod resource.
    Comment 30: The proposed allocations do not correlate with actual 
dependency and use by sector. The non-AFA trawl CP sector is highly 
dependent on Pacific cod as a directed fishery and as an incidentally 
caught species in every target fishery the sector prosecutes. The H&G 
fleet will lose most of its directed cod fishery under the Amendment 85 
allocation because almost half of the cod harvested by the H&G fleet is 
incidental cod in other groundfish fisheries. This fishery now 
represents over a quarter of all non-AFA trawl CP sector revenues. This 
aggregate figure, as large as it is, masks the fact that Pacific cod 
accounts for well over half of the revenues for particular non-AFA 
trawl CP vessels, particularly the smaller vessels in the fleet. If the 
Amendment 85 allocation and CDQ increases took place in 2007, and 
assuming a harvest equal to that of 2005, the fleet would shut down in 
late May due to insufficient cod. The sector would lose 34 percent of 
its annual 1999 to 2004 average revenues for the fleet.
    Response: NMFS acknowledges that the non-AFA trawl CP sector 
Pacific cod allocation under Amendment 85 is less than the percentage 
harvested by the sector in very recent years and that this sector's 
harvest has increased in recent years. However, the allocation is not 
based on one or two recent years, but is reflective of long-term 
dependence as evidenced by harvest over a longer period of time. The 
Council decided that long-term dependence was appropriate and NMFS 
determined that the record supports this approach (see response to 
Comment 15). Based on recent fishing practices by the fleet, NMFS has 
determined that this sector will maintain a directed Pacific cod 
fishery and will be able to prosecute other fisheries (see response to 
Comment 17).
    Comment 31: The analysis does not address the issue of lost revenue 
from low allocations on either the H&G fleet's other groundfish 
fisheries or from loss of the target fishery itself. Stating that 21 
percent of the annual revenues of the fleet are from cod oversimplifies 
the picture. The information before the Council on Amendment 80 (June 
2006 C-1 Supplemental to Amendment 80) states that the H&G sector's 
revenues from cod are actually 25 percent (99-04 avg). However, we are 
more realistically 100 percent dependent on cod because it is critical 
to all our target fisheries. Not only will we lose some percentage 
revenue from loss of a directed cod fishery, but we can lose the value 
of the non-cod groundfish target fishery as well. The Council and the 
analysis for Amendment 85 also failed to consider that the non-AFA 
trawl CP sector is dependent on Pacific cod for incidental catch in its 
flatfish, mackerel, and rockfish fisheries. The first real analysis of 
the impact of the Council's decision upon the non-AFA trawl CP sector 
was made by NMFS only several weeks later, and it found that impact to 
be severe. Substantial bycatch of Pacific cod in these fisheries is 
inevitable. This bycatch amounts to almost half of the non-AFA trawl CP 
sector's harvest of Pacific cod. We are no less dependent on our cod 
revenue than a cod longliner which does not engage in any other 
groundfish fisheries. The reduction in the Pacific cod allocation to 
the non-AFA trawl CP sector will affect its entire BSAI fishing effort. 
Without cod, no one

[[Page 50802]]

in the H&G fleet can fish in any BSAI target.
    Response: NMFS believes that the non-AFA trawl CP sector has a 
sufficient Pacific cod allocation for a directed Pacific cod fishery. 
The size of the directed Pacific cod fishery will depend on the 
sector's need for Pacific cod as incidental catch in its other directed 
groundfish fisheries. The EA/RIR/IRFA examined this issue and concluded 
that the sector's directed fishery is likely to be affected by the 
allocation. The EA/RIR/FRFA acknowledges the need for the allocation to 
include incidental catch needs on page 279: ``The problem statement for 
this amendment emphasizes that the Pacific cod allocations should be 
adjusted in order to reduce uncertainty in, and provide stability to, 
the sectors. Allocating appropriate amounts of incidentally caught cod, 
so that each sector's directed fisheries can be harvested, is an 
important concern when creating stability.'' Also stated on page 293: 
``As mentioned above, the non-AFA trawl CP sector harvests a 
significant portion of its BSAI Pacific cod as incidental catch in a 
non-Pacific cod target fishery. Table 3-101 shows that the non-AFA 
trawl CP sector harvested about 54 percent of its total retained cod 
harvest in the target cod fishery on average during 1999 to 2003; the 
remaining 46 percent was harvested as incidental to all other target 
fisheries, primarily the flatfish fisheries (yellowfin sole, rock sole, 
flathead sole, Atka mackerel, and Pacific ocean perch). With a lower 
potential allocation compared to recent years, this sector will likely 
need to determine how much of its cod allocation will be used as 
incidental catch to other target fisheries versus to fund the directed 
cod fishery.'' Also, see response to Comment 17.
    What this sector is ``losing'' is the opportunity to harvest an 
amount of Pacific cod that is larger than its historic use and 
dependence. The trawl CP sector has not harvested its entire allocation 
of Pacific cod since allocations began in 1994. The trawl CP sector has 
been the largest contributor to the yearly reallocations that this 
amendment is designed to reduce, therefore, the allocation to the trawl 
CPs is justified. Also see response to Comment 30.
    The commenter may be assuming there is hard cap management under 
Amendment 85, but Amendment 85 does not include this provision (see 
response to Comment 77).
    Comment 32: Incidental catch of Pacific cod allows harvesters to 
maximize the value of the other target species because it is in large 
part the highest valued species in each of those non-AFA trawl CP 
target fisheries.
    Response: NMFS acknowledges that Pacific cod is a valuable species. 
The non-AFA trawl CP sector will have to manage its Pacific cod 
allocation to accommodate target and nontarget needs to optimize the 
value of its harvest of BSAI groundfish.
    Comment 33: Non-AFA vessels are excluded from any access to the 
pollock fishery and now the Council is proposing to take away from them 
a significant portion of the Pacific cod fishery that, over a 
demonstrated period of years, they have used and are dependent upon, 
while at the same time augmenting the fishing privileges of AFA trawl 
CP vessels that have neither been using nor depending upon the cod 
fishery at more than a minimal level during that same relevant period. 
That proposal does not comport with this Council's obligation to 
``protect other fisheries . . . and the participants in those fisheries 
. . . from adverse impacts caused by [the AFA] or fishery cooperatives 
in the directed pollock fishery.''
    One final noteworthy recognition by the Notice of Proposed 
Rulemaking is that the Council decided to ``maximize the opportunity 
for a directed Pacific cod fishery'' for the AFA trawl CP sector, 72 FR 
5662 (col. 1, top), but was content to underfund the non-AFA trawl CP 
sector to such an extent that it ``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.'' 
Id. (col. 1, bottom). This turns upside down the Council's obligations 
under the AFA.
    Response: Sideboards are intended to prevent a sector from using 
advantages gained from a rationalized fishery in a fishery that is not 
rationalized. The current AFA CP Pacific cod sideboard prevents AFA 
trawl CPs from harvesting a larger share of Pacific cod than the sector 
harvested before the AFA. Amendment 85 will separate the trawl CPs that 
currently share one allocation into two sectors, AFA and non-AFA. The 
AFA trawl CP sector will receive 0.1 percent of non-CDQ TAC above its 
average harvest history under Amendment 85 and the non-AFA trawl CP 
sector will receive exactly its average historic harvest. The AFA trawl 
CP fleet will be restricted to a separate allocation slightly greater 
than its historic catch from 1995 through 2003, but 62.3 percent below 
its current sideboard limit for catch of Pacific cod. Although the non-
AFA vessels are excluded from the pollock fishery in the BSAI, AFA 
sideboard provisions will continue to restrict those vessels from 
participating in other BSAI fisheries, and AFA trawl CPs will continue 
to be prohibited from fishing in the Gulf of Alaska. Therefore, NMFS 
has determined that the AFA trawl CP allocation of Pacific cod under 
Amendment 85 is consistent with the AFA. Also, separating the two 
sectors will protect the historic catch of the non-AFA trawl CPs better 
than leaving these two sectors combined with a lower shared allocation 
that reflects their combined history, but with the same AFA sideboard. 
NMFS believes the allocations of Pacific cod to the AFA and non-AFA 
trawl CP sectors are sufficient for each sector's directed Pacific cod 
fishery and for their incidental catch needs and that the allocation 
for the non-AFA trawl CP sector will be better protected under 
Amendment 85 than leaving the sectors combined.
    Comment 34: To whatever extent the sector's total catch history is 
not reflected in the initial allocation made under Amendment 85, there 
will be insufficient fish in the AFA trawl CP sector's allocation to 
meet the bycatch needs of the pollock fishery without depleting, at 
least to some extent, the allocation that would otherwise be available 
to our directed cod vessel. As a consequence, the directed cod fishery 
that vessel has traditionally conducted during the early part of the 
fishing year will likely be curtailed, if not eliminated.
    Response: Given that the allocation to the AFA trawl CP sector 
under Amendment 85 is slightly higher than its average historic 
harvest, that allocation should be sufficient for this sector to 
cooperatively manage its allocation and maintain a directed fishery in 
addition to meeting its needs for incidental catch in its pollock and 
yellowfin sole fisheries.
    Comment 35: The Council increased the allocation to the AFA trawl 
CP sector so that Pacific cod would not be a limiting factor in 
prosecuting the BSAI pollock fishery. From 1999 to 2003, the AFA trawl 
CP sector took 84 percent of its Pacific cod in directed Pacific cod 
fishing and only 15 percent in the pollock fishery. The proposed rule 
states that 44 percent of the Pacific cod taken by this sector occurs 
incidentally in the pollock fishery. This is in contrast to the 
analysis (15 percent), therefore the proposed rule must be including 
fishmeal and other factors. Either way, it does not appear that the 
allocation this sector received under Amendment 85 will be constraining 
in the pollock fishery.

[[Page 50803]]

    Response: As stated in the proposed rule, the allocation to the AFA 
trawl CP sector was chosen 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 commenter 
apparently relied on the April 2006 draft analysis and used Table 3-105 
which excluded fishmeal. However, the information was revised before 
submission to the Secretary. The EA/RIR/FRFA includes fishmeal in the 
revised information in Table 3-101 and states on page 294 that, ``the 
AFA CP sector harvested about 56 percent of its total retained cod 
harvest in the target cod fishery on average during 1999-2003, the 
remaining 44 percent was harvested as incidental to other target 
fisheries, primarily pollock.'' Additionally, in the final Council 
motion from April 2006, the Council explicitly noted that in order to 
determine PSC, the percentage of Pacific cod harvested in the Pacific 
cod target fishery by the trawl sectors should be calculated on the 
basis of all cod catch from 1999 through 2003, including that 
designated for fishmeal production.
    Comment 36: Only the hook-and-line CP sector has a large and 
primary dependence on BSAI Pacific cod; it is the sector with the most 
dependence on the BSAI Pacific cod resource. Over 80 percent of the 
wholesale revenues of the hook-and-line CP sector come from BSAI cod.
    Response: NMFS agrees that the hook-and-line CP sector is the 
sector that has the highest portion of its income from its Pacific cod 
fishery. However, other sectors also depend on Pacific cod for a 
significant portion of their income.
    Comment 37: The H&G sector's Pacific cod use and dependence must be 
considered and accommodated by Amendment 85, just as was that of the 
hook-and-line CP sector.
    Response: The non-AFA trawl CP sector will receive exactly its 1995 
to 2003 average historic harvest under Amendment 85. The hook-and-line 
CP sector will receive 48.7 percent of the non-CDQ Pacific cod TAC 
under Amendment 85, which is closer to its average historic harvest 
than its current allocation of 40.8 percent. The hook-and-line CP 
sector's new allocation is less in all cases than its share of the 
retained harvest under various year groupings: from 1995 through 2003, 
from 2000 through 2003, and from 2004 and 2005 (see Amendment 85 
proposed rule Tables 3 and 4). However, its history is much larger than 
its current allocation due to reallocations of unused Pacific cod from 
other sectors, primarily the trawl CP sector. Amendment 85 was designed 
to reduce the amount and frequency of these reallocations to increase 
stability for all sectors.
    Comment 38: Amendment 85 will provide increased stability to the 
sectors with the most dependence on Pacific cod by removing the 
uncertainty of the amount of the potential annual harvest for each 
sector (i.e., reduce annual rollovers). This stability will promote 
efficiency and planning for those same sectors. For example, the 
increased stability of the BSAI Pacific cod allocation may facilitate 
the formation of a hook-and-line CP cooperative that can result in 
increased utilization and efficiency.
    Response: NMFS agrees that Amendment 85 will increase stability in 
the BSAI Pacific cod fishery.
    Comment 39: The Council was consistent with past allocation actions 
by not including fishmeal when considering dependency on the resource.
    Response: Contrary to the commenter's conclusion, the record for 
Amendment 85 and this final rule clearly demonstrate that the Council 
not only considered fishmeal data, but included fishmeal in the 
calculation of catch history for the AFA trawl CP sector allocation. 
When vessels directly affected by a proposed allocation action process 
fishmeal, it has been considered. It depends on what sectors or vessels 
are affected by an action as to whether fishmeal has been included or 
excluded. Fishmeal was not particularly relevant other past allocation 
actions. In current and proposed actions, fishmeal was excluded in the 
preliminary analysis for Gulf rationalization, which has been tabled. 
There is now an option to exclude fishmeal in the Gulf of Alaska 
Pacific cod sector-split analysis. However, these actions exclude the 
AFA trawl CPs, which are the primary producers of fishmeal. Therefore 
it is consistent to include fishmeal in considering a sector's 
dependency on Pacific cod under Amendment 85.

Comments on Groundfish Retention Standard Under Amendment 79

    Comment 40: The allocation to the H&G fleet affects the Amendment 
79 groundfish retention standard (GRS) which the H&G fleet must meet, 
starting in 2008. Once Pacific cod is closed to directed fishing, and 
is taken as an incidental catch in other fisheries, it is subject to a 
maximum retainable amount of 20 percent of the total groundfish catch 
aboard a vessel. This will make compliance with the groundfish 
retention standards of Amendment 79 very difficult for most vessels. 
The Aleutian Island cod fishery is a very high retention fishery, and 
it essentially is no longer an option for us. According to NMFS 
inseason managers, the fleet will only have enough fish to fund an 
early directed cod fishery, which is essential as it occurs 
simultaneous to the rock sole fishery. The loss of our Aleutian Islands 
cod target is going to pose a retention hardship for two reasons: one, 
we lose our March cod target fishery in lieu of bycatch needs for the 
rest of the year, and two, the H&G fleet's cod will be on bycatch 
status for the majority of the year. So the reduced allocation has put 
the fleet in a position of mandatory discards of a mandatory retention 
species, until or unless the sector is able to form cooperatives under 
Amendment 80.
    Response: As explained in the response to Comment 17, based on the 
actual TAC for 2007, but with the larger CDQ allocation of 10.7 
percent, NMFS estimates there would be 19 to 20 days of directed 
fishing under the current practices of the non-AFA trawl CP sector. If 
the sector reduces its incidental catch needs for Pacific cod in its 
other directed fisheries, its Pacific cod directed fishery could last 
longer. Typically, the non-AFA trawl CP sector targets Atka mackerel, 
rock sole, yellowfin sole and Pacific cod in January and the Pacific 
cod fishery peaks in March. The non-AFA trawl CP sector usually catches 
80 percent of its Pacific cod allocation in the first two seasons, 
which is its seasonal allowance. To meet the GRS after their directed 
Pacific cod fishery is closed, the non-AFA trawl CPs will need to fish 
in a manner that maintains incidental catch rates at levels that 
minimize regulatory discards. Therefore, meeting the GRS under 
Amendment 85 may be more difficult for the non-AFA trawl CP sector.
    If directed fishing for Pacific cod has not been closed to the non-
AFA trawl CP sector, then this sector has had to keep their entire 
catch of Pacific cod, which improves their retention rate. But if the 
non-AFA trawl CP Pacific cod directed fishery will now be closed most 
of the year, the non-AFA trawl CP sector must retain up to the MRA. Any 
catch over the MRA must be discarded and those discards will count in 
the retention calculation under the GRS, potentially making it more 
difficult to comply with the GRS.
    However, compliance with the GRS should be easier for the vessels 
that join a cooperative under Amendment 80, which was approved by the 
Secretary on July 26, 2007. The non-AFA trawl CPs may form harvesting 
cooperatives by the

[[Page 50804]]

start of 2008 if Amendment 80 is implemented by January 1, 2008, which 
also is the effective date for this final rule to implement Amendment 
85. Additionally, the Council has adopted a regulatory amendment that 
would adjust the accounting period for MRA amounts for particular 
species including Pacific cod. If approved by the Secretary, this 
adjustment also would be effective by January 1, 2008, and would reduce 
regulatory discards and facilitate compliance with the GRS under 
Amendment 79 to the FMP.
    Comment 41: The revised Secretarial review EA/RIR/IRFA (October 
2006) merely references the Groundfish Retention Standard (GRS) in one 
sentence that acknowledges that Pacific cod, as a highly retained 
species, is important to the non-AFA trawl CP sector in meeting the 
GRS. Neither Section 2.3.9 (Cumulative Effects) nor Section 2.3.9.1 
(Past and Present Actions) mentions the Amendment 79 GRS in relation to 
the sector's cod allocation and what the loss of its directed fishery 
and lowered allocation will do to the sector's ability to meet the 
retention standard. There is no attempt to estimate the impact of a 
reduced allocation on the ability of the sector, or small vessels in 
particular, to meet the GRS scheduled for implementation in 2008. The 
analysis should have considered the impact of the non-AFA trawl CP 
sector's Amendment 85 allocation on the ability of this sector to 
function under status quo management (no harvesting cooperatives) when 
the GRS is imposed in 2008. The tipping point on meeting the GRS with 
regard to this action is the reduced cod allocation, not the open 
access race for fish.
    Response: The Secretarial review draft EA/RIR/IRFA does discuss the 
cumulative effects of Amendment 85 in conjunction with the GRS and 
Amendment 80 in Section 2.3.9 ``Cumulative Effects'' under section 
2.3.9.2 ``Recent and Reasonably Foreseeable Future Actions.'' Improved 
retention rates are the intended effect of the GRS action under 
Amendment 79. Implementation of Amendments 79, 80, and 85 are planned 
for 2008. The GRS would be phased in over a four-year period.
    The reduced allocation to the non-AFA trawl CP sector likely will 
reduce its directed fishery, but the vessels still will be retaining 
Pacific cod to comply with improved retention/improved utilization 
requirements up to the 20 percent MRA percentage established for 
Pacific cod after the directed fishery is closed. The catch of Pacific 
cod beyond the 20 percent MRA threshold must be discarded. However, a 
vessel's total catch of Pacific cod still would be included in the 
calculation used by NMFS to assess compliance with the annual GRS ratio 
of retained catch to total catch. Thus, NMFS expects the GRS program 
would provide an incentive for the sector to fish for its other 
targeted groundfish species in a manner that reduces the incidental 
catch of Pacific cod to the extent practicable. In 2008, the GRS will 
be at a relatively low level to reflect fleet-wide status quo. As the 
GRS ratio steps up over the next four years, NMFS anticipates that it 
will parallel other new proposed management measures that provide 
additional opportunity for retention of groundfish, including proposed 
adjustments to the MRA accounting period for some species and Amendment 
80.
    The EA/RIR/FRFA recognizes that compliance with the GRS by the non-
AFA trawl CP fleet with its new Pacific cod allocation under Amendment 
85 will be more difficult. However, the purpose of Amendment 85 was to 
allocate Pacific cod based on historical retained catch in addition to 
socioeconomic and community concerns, not to allocate Pacific cod in a 
manner that would facilitate compliance with the GRS. There are other 
ways the fleet can improve its retention rates of Pacific cod without 
the allocation it has had in the past. For example, by avoiding fishing 
in areas with high bycatch rates of Pacific cod.
    Regarding the estimation of economic impacts, the Secretarial 
review draft analysis stated ``The Groundfish PSEIS [Programmatic 
Supplemental Environmental Impact Statement] noted that the 
availability and consistency of data limits the ability to analyze the 
effects of past actions on the economic condition of selected sectors 
of the Alaska groundfish fishery. According to the Groundfish PSEIS, 
analyses are also limited by the difficulty of delineating the cause-
and-effect relationships between multiple factors and the resultant 
economic effects. Many factors substantially affect the economic status 
of the Alaska groundfish fishery. Changes in markets, biological 
conditions and fishery management regulations can result in changes in 
the revenues and operating costs of firms participating in the 
fisheries and changes in fleet size and composition. Isolating the 
effects of a single factor is seldom possible.''
    Amendment 80 will provide target allocations of Atka mackerel, 
flathead sole, Pacific ocean perch, rock sole, and yellowfin sole to 
the non-AFA trawl CP sector and allows the formation of harvest 
cooperatives. Sector allocations and associated cooperatives will allow 
participants to focus less on harvest maximization and more on 
optimizing harvest. The Secretarial review draft analysis further notes 
that, ``Absent a cooperative structure as approved (by the Council) in 
Amendment 80, it is expected that compliance with the groundfish 
retention standards and management of a lower Pacific cod allocation to 
serve both directed and incidental catch needs, will be substantially 
more difficult.'' Note that the GRS pertains only to non-AFA trawl CP 
vessels that are [gteqt]125 ft (38.1 m) LOA, not to smaller vessels. 
However, under Amendment 80, the GRS will apply to all non-AFA trawl CP 
vessels regardless of length.

Comments on Cumulative Effects

    Comment 42: By applying the 13.4-percent allocation to, and 
deducting the 3 percent State water set-aside and 10.7 percent CDQ 
allocation from, the 2005 TAC for Pacific cod, the H&G fleet allocation 
would have been 23,911 mt, a loss of 6,000 mt from the H&G actual 
harvest in 2005. This represents a loss of $11 million in Pacific cod 
alone. The H&G fleet fully harvested 23,911 mt of Pacific cod by mid-
June in 2005. The fleet would have been unable to harvest its other 
directed fisheries after June 11th and lost $43 million in its second 
half of the year target fisheries. In comparing the losses of different 
fleets, if the longline fleet lost 6,095 mt, that would be a loss of 
$11 million. The same fish represents a loss of $54 million to the H&G 
fleet, or, roughly 35 percent of its annual revenues. This was not 
analyzed in any Amendment 85 document.
    Response: The non-AFA trawl CP fleet will have less Pacific cod 
available than it does under the current allocations, however, this 
scenario would not happen under Amendment 85. Because NMFS anticipates 
that the trawl sectors will fully harvest the Pacific cod allocations 
under Amendment 85, NMFS also anticipates it will need to establish an 
incidental catch allowance for each trawl sector. Under this final 
rule, NMFS will develop incidental catch allowances for each trawl 
sector on an inseason basis, rather than through the annual harvest 
specification process. The directed fishery for the non-AFA trawl CP 
sector will likely be shorter than in the past, thus the possible loss, 
but under Amendment 85 the other non-AFA trawl CP fisheries will be 
managed with the intent of avoiding closures for lack of sufficient 
Pacific cod. Also, under this final rule, the non-AFA trawl CP

[[Page 50805]]

sector will continue to be managed under a soft cap for incidental 
catch of Pacific cod.
    Comment 43: The non-AFA CP fleet has not received representative 
allocations. We see that if these allocations were in effect in 2005, 
the fleet would have shut down in June, losing 35 percent of its annual 
revenues. This incurs economic harm not only to our fleet but also to 
remote communities that depend on the activities of the non-AFA CP 
fleet. As the sole harvesters of target fisheries that will be left in 
the water because of an inadequate cod allocation, communities will not 
receive landing tax revenues from that fish, and support service 
revenues from that fleet. Amendment 80 allocates 90 percent of the Atka 
mackerel and Pacific ocean perch to the H&G fleet. However, we saw that 
if Amendment 85, the State water fishery and the increased CDQ were in 
effect in 2005, half of the Atka mackerel would have been left in the 
water and all of the Pacific ocean perch, from a June 11th closure. 
This directly harms the residents of Atka and Adak. Stranding fish is 
not obtaining optimum yield.
    Response: Under this action, an incidental catch allowance of 
Pacific cod will be established for use in the other non-AFA trawl CP 
sector directed fisheries. See response to Comment 42.
    Comment 44: Effective 2007, the Central Gulf of Alaska Rockfish 
Pilot Program goes into effect. Originally a two-year program, it was 
recently extended to five years under the Magnuson-Stevens Act 
reauthorization. That program limits participation in the Central Gulf 
rockfish fisheries to 15 H&G vessels. As with Gulf cod, and BSAI 
pollock, entry into other fisheries by the H&G fleet, and therefore 
other options, is becoming more restricted. These fisheries would have 
provided relief in the event that the lowered cod allocation shuts down 
the H&G fisheries prematurely.
    Response: Amendment 85 does not contain measures that would prevent 
the non-AFA trawl CP sector from prosecuting its target fisheries. NMFS 
agrees that participation in Gulf of Alaska and BSAI fisheries is 
becoming more restricted as participation in these fisheries becomes 
more restricted. See response to Comment 42.

Comments on Small Boat Sector Allocations

    Comment 45: The allocation process was reasonably fair and 
equitable. The jig and <60 ft (18.3 m) LOA fixed gear CV sectors 
received allocations larger than their respective catch histories. 
Accordingly, the majority of the other sectors then received 
allocations smaller than their respective catch histories to offset and 
``fund'' those increases. However, the allocations in Amendment 85 were 
the result of a fair and equitable process and did not discriminate by 
residency.
    Response: Comment noted.
    Comment 46: Other considerations given to the small boat sectors 
under Amendment 85 include (1) adjusting the jig trimester 
apportionment to put more fish in the A season, (2) establishing a new 
hook-and-line CV halibut PSC category that enables longline CVs to fish 
in the summer months, and (3) a new hierarchy of potential rollovers. 
The Council felt these considerations and the resulting allocations in 
Amendment 85 amply addressed National Standard 8.
    Response: Comment noted.
    Comment 47: We support the principle of adequately funding small 
boat, entry-level fisheries.
    Response: Comment noted.
    Comment 48: Allocations to the jig and <60 ft (18.3 m) LOA fixed 
gear sectors were made without consideration of either the Alaska State 
waters fishery in which such vessels could participate or the 
likelihood that those Pacific cod allocations will, in fact, be 
utilized. A result of this over-allocation is that much of the cod non-
CDQ TAC allocated to these sectors will rollover, first through various 
inshore fisheries, including to the trawl catcher vessel fleet; none, 
however, will likely ever roll back to the H&G sector. Such a result is 
at odds with the Amendment 85 goal of minimizing rollovers.
    Response: NMFS disagrees. The State waters Pacific cod fishery was 
considered by the Council when the allocations to sectors were made. 
This fishery was established by the State to meet local needs in the 
area of Adak, Alaska, in the Aleutian Islands and is not readily 
accessible to small boat operators fishing in other coastal areas of 
the Bering Sea. Additionally, the purpose of Amendment 85 is to revise 
the allocations to the various sectors to more closely reflect historic 
harvest; a goal of the amendment is to decrease rollovers, not 
eliminate them. The Council's purpose in giving the small boat sectors 
allocations greater than their histories was to encourage the growth of 
these entry-level sectors in accordance with National Standard 8. Since 
2001, the <60 ft (18.3 m) LOA fixed gear CV sector has harvested all of 
its allocation and since 2002 has harvested increasing amounts of 
rollovers from the jig sector, including in 2006, the first year of the 
State waters fishery. The allocation to the jig sector is reduced under 
Amendment 85. Also, the amount of the reallocations from the small boat 
sectors is historically much smaller than the amount of the 
reallocations from the trawl sectors, thus supporting the Council's 
goal of increasing stability.
    Comment 49: The non-AFA trawl CP sector was cut in order to fund a 
4 percent small boat fishery. When asked by another Council member what 
was the rationale for the H&G allocation of 13.2 percent (as originally 
introduced) rather than the mid-point years' average, the maker of the 
motion stated ``It was really how to fund that 4 percent and make the 
numbers work and that is my rationale for that number.'' While creating 
room and incentives for growth in the small hook-and-line and pot 
catcher vessel and jig fisheries was a goal of Amendment 85, the cost 
for doing so should not fall on only one of the most cod-dependent 
sectors. Shifting of cod from one of the most dependent sectors (non-
AFA trawl CP) to perhaps the least runs counter to the objective of 
matching cod allocations with use and historical dependence.
    During Council discussion on Amendment 85, the maker of the motion 
stated that the trawl sector should fund the jig set-aside since the 
fixed gear sector had been doing that in the past. This was given as 
the justification for so dramatically decreasing the non-AFA trawl 
catcher-processor allocation (from recent use above 18 percent to an 
allocation of only 13.4 percent). The record does not support the 
assertion that the fixed gear fleet and not the trawl fleet had 
historically funded increases for the small boat sector. It is not 
clear from the record that the (proposed) jig allocation actually came 
from any one sector; however, if the assumption was that the new 
allocation percentages represented a shift in the responsibility for 
the jig set-aside from fixed gear to the trawl sector, then all trawl 
sectors should have been similarly assessed.
    There was no consideration or analysis of the possibility, 
appropriateness, or impact of imposing the burden of funding those 
increases unequally. The Secretarial review draft analysis expressly 
acknowledges this, stating that the extra allocations to the small 
sector were ``deducted . . . principally from the non-AFA sector 
amounts.'' It is not fair and equitable to impose the burden on the 
non-AFA sectors and not on the AFA sectors, particularly given the 
AFA's mandate to the Council to protect the non-AFA fleet from AFA 
encroachment in fisheries other than pollock. There was no separate 
analysis, or vote, on spreading

[[Page 50806]]

the burden of the small boat incentives unequally. What is clear is 
that no rationale has ever been given for disadvantaging either the 
non-AFA sectors generally (which the Secretarial review draft analysis 
asserts is the group that the Council disadvantaged) or the H&G sector 
in particular.
    The estimated cost, at 2007 TAC and 2005 harvest rates, to the H&G 
fleet of an estimated $46 million, or 34 percent of their annual 
revenues, far outweighs the benefit to a small boat fleet which has 
historically never harvested its allocation. We have no quarrel with 
the Council's decision to make those adjustments. There is no 
justification, however, for imposing the burden of funding them 
entirely or primarily upon the H&G sector.
    Response: Neither the non-AFA trawl CP sector nor any other sector 
exclusively funded the allocation to the small boat sectors. Despite 
the remarks made by the Council member and based on the average 
historic harvest from 1995 to 2003, it would appear that neither the 
AFA trawl CP sector nor the non-AFA trawl CP sector funded the small 
boat sector allocations because the former will receive slightly above 
its average historic harvest and the latter will receive exactly its 
average historic harvest. There is nothing in the Secretarial review 
draft analysis addressing the impact on other sectors because there 
were no specific amounts taken from any particular sector to fund the 
small boat sectors.
    For the small boat sectors to receive allocations above their 
average historic harvest, four sectors will receive less than their 
1995 to 2003 average historic harvests: pot CV [gteqt]60 ft (18.3 m) 
LOA, hook-and-line CP, pot CP, and trawl CV (see paragraph seven of the 
response to Comment 13). The trawl CV sector is comprised of AFA and 
non-AFA vessels, so considering all the sectors that will receive an 
allocation below their average historic harvest, most of them are non-
AFA sectors. The non-AFA sectors are not disadvantaged, they merely 
outnumber the AFA sectors by a ratio of eight to one.
    Comment 50: The Council made a policy decision to deviate from its 
stated goal of conforming actual use and dependency by allocating to 
the jig and <60 ft (18.3 m) LOA fixed gear CV sectors a combined 2.4 
percent above their historic harvest of the Pacific cod TAC. Assuming 
that the Council would be justified in shifting that 2.4 percent to 
those sectors because of the predicted salutary impact on coastal 
communities and related economic and social consequences, it is not 
legitimate to take that 2.4 percent entirely from other non-AFA 
sectors. In the analysis for Amendment 85, the potential impact of 
providing the small boat sectors with an allocation above their actual 
use and dependency was limited to a scenario in which the extra shares 
needed to fund that incentive were taken from all other sectors 
proportionally; no analysis was made of the disproportionate impacts 
that would result from the scenario, eventually chosen by the Council, 
of taking that extra 2.4 percent exclusively from non-AFA sectors.
    Response: The Pacific cod allocations for the jig and <60 ft (18.3 
m) LOA fixed gear sectors did not come exclusively from any particular 
sectors. As explained in the response to Comment 49, several sectors 
received less than their 1995 to 2003 average historic harvest of 
Pacific cod to fund the small boat sectors.
    Comments on Reallocations
    Comment 51: Amendment 85 will not resolve the reallocation issues 
raised in the problem statement created by the Council for the action. 
By over-allocating cod to small, shore-based fisheries that have a 
history of under-fishing current allocations, and ignoring the 
important aspect of Alaska's creation of a state waters fishery, this 
action insures continued rollovers at or above current levels.
    Response: The problem statement does not seek to eliminate inseason 
reallocations, but to decrease them by adjusting Pacific cod 
allocations to better reflect historic use by sector. Historically, 
76.6 percent of the reallocations between 2000 and 2004 resulted from 
the trawl sectors not harvesting their entire allocations, with a much 
smaller amount of unharvested Pacific cod coming from the small, shore-
based fisheries. Based on this information, NMFS determined that the 
new allocations to the sectors will reduce reallocations in the future. 
Also, see response to Comment 48.
    Comment 52: NMFS will likely set the incidental catch allowance for 
the non-AFA trawl CP sector higher than the anticipated need, to ensure 
that there is enough Pacific cod available to fund other sector 
fisheries. The cod which is not used in the incidental catch allowance 
will probably not be enough to fund a separate (late-season) directed 
fishery, so will roll over to another sector. This will continue the 
very situation (rollovers) which Amendment 85 was supposed to fix. In 
effect, the H&G sector loses cod allocation well beyond the amounts 
that were rolling over in the past, and the allocation scheme ensures 
that more fish will roll over in the future.
    Response: As explained in response to Comment 48, Amendment 85 was 
not intended to eliminate rollovers. Under this final rule, NMFS will 
create an incidental catch allowance for the non-AFA trawl CP sector to 
use for Pacific cod caught incidentally in its other directed 
fisheries. Because the non-AFA trawl CP sector tends to target Pacific 
cod early in the year, NMFS will estimate an incidental catch allowance 
early in the year in order to close the sector's directed fishery while 
there is enough of the sector's Pacific cod allocation remaining for 
incidental catch in the other non-AFA trawl CP groundfish fisheries. 
Whether the allowance is set too high will depend on how well the non-
AFA trawl CP sector can avoid Pacific cod incidental catch in its other 
fisheries. If the sector can lower its incidental catch rate, the 
directed fishery will have more Pacific cod available for its target 
fishery. Pacific cod still may be harvested and retained once the 
directed fishery is closed, albeit at the lower rate of 20 percent 
under MRA regulations. A large portion of the Pacific cod harvest in 
this sector historically has been taken as incidental catch. This trend 
is expected to continue until vessels are able to form cooperatives and 
opportunities to change fishing strategies present themselves.
    The commenter presents only one scenario. NMFS anticipates that 
without cooperatives, the Pacific cod fishery will be prosecuted much 
as it has been in the past. NMFS will do its best to ensure that each 
trawl sector can fully harvest its allocation. If the non-AFA trawl CP 
sector can reduce its incidental catch of Pacific cod, it may be that 
the incidental catch amount will be greater than the sector's needs, 
but not large enough for another directed fishery.
    A goal of Amendment 85 is to reduce reallocations, not eliminate 
them. NMFS has determined that the allocations will result in lower 
amounts of reallocations from all sectors. If Amendment 80 is 
implemented by January 1, 2008, NMFS will manage Pacific cod for the 
non-AFA trawl CP sector in accordance with Amendment 80.
    Comment 53: The current allocations (from the 1995 action) do not 
reflect actual catch by sectors of BSAI Pacific cod, principally due to 
rollovers of uncaught allocations from the trawl and jig sectors. The 
trawl sectors consistently have not caught their allocation which has 
resulted in rollovers from the trawl sectors to the fixed gear sectors 
every year since 1995 - both before and after SSL mitigation measures. 
The average rollover from the trawl sectors has been 16,765 mt per

[[Page 50807]]

year (1995 - 2005). At the same time, the freezer-longliners are the 
only sector that consistently caught their entire allocation on an 
annual basis. Since 1995, the freezer-longliners have also been 
catching the majority of the rollover from the trawl sectors and 
uncaught allocations from other sectors as well (jig, pot, etc.).
    Response: The EA/RIR/FRFA contains the data concerning this issue 
in Table 3-24 and it represents the best scientific information 
available on the subject.
    Comment 54: The increasing trend in the fixed gear allocation is a 
reflection of trawl rollovers. Trawl sectors have not caught their 
allocations for a number of reasons, one of which is halibut PSC 
mortality. From 1995 to 2005, the combined trawl sectors caught a 
decreasing amount of Pacific cod while increasing the rate of halibut 
PSC mortality by 47 percent (mt halibut PSC per mt Pacific cod). During 
the same time period, the hook-and-line sectors were catching an 
increasing amount of Pacific cod while decreasing the rate of halibut 
PSC mortality by 31 percent. In 2005, the trawl rate was 3.4 times 
higher than the hook-and-line rate (mt halibut PSC per mt Pacific cod).
    Response: The EA/RIR/FRFA examines reallocation among gear types in 
Section 3.3.5.7 and it represents the best scientific information 
available on the subject.
    Comment 55: NMFS should disapprove the rollover (reallocation) 
hierarchy contained in the proposed rule because the inshore sectors 
already have healthy allocations and would be first in line for the 
rollovers. NMFS should send this portion of Amendment 85 back to the 
Council with instructions to give non-AFA trawl CPs priority access to 
the rollovers from the jig and <60 ft (18.3 m) LOA fixed gear sectors.
    Response: NMFS has determined that the reallocation hierarchy 
proposed by the Council is consistent with the purpose and need for 
Amendment 85 and that it is consistent with the Magnuson-Stevens Act 
and other applicable law and has approved it with this final rule. This 
reallocation hierarchy is consistent with the Council's decision to 
increase the harvest opportunities for the fleets that deliver 
shoreside to coastal fishing communities, a consideration under 
National Standard 8.
    Comment 56: Prioritizing rollovers to the AFA trawl CP sector would 
help accomplish the Council's goal of ``maximizing to the extent 
practicable'' the opportunity for the AFA trawl CP sector to conduct 
its directed cod fishery at the beginning of the year. Knowing that the 
surplus ``C season'' cod that has traditionally rolled over from the 
AFA trawl CP sector during the last half of the fishing year would be 
available to support nontarget needs in the AFA trawl CP sector during 
the pollock A and B seasons would help facilitate inseason incidental 
catch management so as to permit full funding of the directed cod 
fishery that one AFA trawl CP vessel conducts early in the year.
    Response: See response to Comment 55 which is applicable to the AFA 
CP sector as well as the non-AFA CP sector. Also see the responses to 
Comments 13 and 25 for more information regarding the AFA trawl CP 
sector allocations.

Comments on Process Followed for Adoption of Amendment 85

    Comment 57: The Council's action was taken too quickly for the 
regulated community to provide informed public comment. The process for 
consideration of Amendment 85 made it difficult, if not impossible, for 
the public to comment effectively on, or the Council to understand the 
impacts of, the decisions it was making. The Magnuson-Stevens Act 
generally prescribes that a regional fishery management council will 
hold public hearings in conjunction with the FMP amendment process. See 
16 U.S.C. 1852(h)(3). The law also provides for a separate opportunity 
for ``interested persons'' to make comment at ``business meetings of a 
Council.''
    Response: The public was provided ample notice and opportunity to 
comment on Amendment 85 in accordance with APA and Magnuson-Stevens Act 
procedures. The public had several opportunities to comment on Pacific 
cod sector allocations at Council meetings prior to the Council's final 
action in April 2006 and during the comment period on the FMP 
amendment. The December 2004 Council meeting was the first opportunity 
the public had to comment specifically on Amendment 85 at the first 
presentation of the discussion paper for Amendment 85. Amendment 85 was 
on the agenda of every Council meeting from December 2004 until final 
action in April of 2006, for a total of eight Council meetings. The 
Federal Register notice for the April 2006 Council meeting included a 
statement that final action would be taken on Amendment 85. A draft 
analysis of Amendment 85 was prepared by the Council and made available 
for public review prior to the Council taking action. The analysis was 
then further refined to reflect the effects of the Council's action 
prior to submission for Secretarial review.
    Comment 58: The non-AFA trawl CP sector lacked the opportunity to 
discern and explain the implications of the Council's actions before 
the Council's final decision making. As a result, the non-AFA trawl CP 
fleet focused its public testimony in support of options that best 
mirrored the sector's recent use and dependence. The first indication 
that the Council was developing an option that included a non-AFA trawl 
CP sector allocation that was at the lowest end of the range under 
consideration and heavily weighted pre-full retention and pre-AFA 
years, came when the Council began their deliberations. No further 
public comment was allowed before final action, however. The non-AFA 
trawl CP sector has no representation on the Council. Without the 
benefit of an H&G representative on the Council to participate in the 
deliberations, the Council members cannot and clearly did not fully 
realize the impact of their actions. The result was the non-AFA trawl 
CP fleet was denied a reasonable opportunity to discern and explain the 
implications of the Council's proposed action before final action was 
taken.
    Response: There were many opportunities for the public to comment 
on Amendment 85 (see the response to Comment 57). Several allocation 
options were presented in the draft analysis that was released to the 
public in March 2006. These options included allocations to the non-AFA 
trawl CP sector that ranged from 12.7 to 16.2 percent of the non-CDQ 
BSAI Pacific cod TAC. The April draft of the EA/RIR/IRFA presented the 
Council with the information it needed to make the allocation decisions 
in various tables, with more information on fishmeal presented to the 
Council and the public at the April Council meeting before public 
testimony and final action by the Council. After receiving public 
comment, the Council chose the option to select percentages for Pacific 
cod allocated to each sector that fell within the range of percentages 
analyzed. Please see the response to Comment 3 for an explanation of 
the consideration of catch history from 1995 through 2003. No year was 
weighted more heavily than any other. Only the first three years of 
history out of a total of nine years considered were before full 
retention and the AFA. Not having a representative on the Council 
should not negatively impact a sector. The Council members take a sworn 
oath to manage in the best interests of all and are to act impartially.
    Comment 59: No preliminary preferred alternative was identified by 
the Council. As a result, the analysts,

[[Page 50808]]

public, and the Council did not have the opportunity to fully 
understand, comment on, and evaluate the impacts of Amendment 85. 
Identifying a preliminary preferred alternative before final action may 
not be required, but for complicated actions it should be.
    Response: As the commenter notes, the Council was not required to 
identify a preliminary preferred alternative before taking final action 
on Amendment 85. The analysis before the Council in April 2006 provided 
the Council and the public with the information necessary for final 
action on Amendment 85. Each option under consideration for each 
component was fully analyzed and when an option in one component may 
have affected options under consideration in another component, those 
impacts were identified and explained in such a way that the Council 
and the public could understand the impacts of its decision. For 
example, seasonal allowances were changed to maintain to the extent 
possible the current percentage of non-CDQ Pacific cod TAC available 
for harvest in the early part of the year when fishing for Pacific cod 
is more advantageous. NMFS notes the commenter's statement that a 
preliminary preferred alternative should be identified by the Council 
prior to taking final actions that are complicated.
    Comment 60: The Amendment 85 decision making process was rushed, 
its analyses were inadequate, and the impacts of the Council decision 
were not well understood. When the Council chose the ``mix and match'' 
approach instead of a ``packaged alternative'' and moved directly to 
final action, rather than selecting its desired allocation as a 
preliminary preferred alternative for further analysis and public 
comment, the Council basically acted without understanding the impacts 
of this decision. When one aggrieved stakeholder was able to convince 
Council members that it suffered from certain unintended consequences, 
the Council took the matter up again to institute a discrete fix for 
one vessel. However, the law requires that all members of the public 
have an opportunity to understand the impacts of a proposed action and 
an equal opportunity to be heard in the process.
    As originally passed, the Council recommended that Amendment 85 
allocate the H&G sector an amount of Pacific cod that was just over its 
average harvest, 13.7 percent during the 1995-2003 period. The telling 
fact that this process devolved into a matter of political compromise 
rather than informed decision making, in violation of National Standard 
2, was that the Council decided to reconsider final action upon 
discovery of an ``unintended consequence.'' Expressing concern that the 
1.5-percent allocation chosen for the AFA catcher-processor sector 
might disproportionately impact the one vessel in that sector that 
targets cod (notwithstanding the recent use of that sector in the range 
of 1 percent), the Council voted to increase the AFA catcher-processor 
sector's allocation to 2.3 percent. Part of the Pacific cod that went 
to ``fund'' that increase came from the H&G sector, which ended up with 
a reduced allocation of just 13.4 percent.
    This action should also have been analyzed in light of the 
statutory protections the American Fisheries Act grants to non-pollock 
fisheries. Such weighing and analysis was lacking in this instance. 
There was no opportunity for public input during the reconsideration 
and the Amendment 85 allocation was made without the Council having 
made a reasonable record of how the allocation it chose for the AFA 
sector ``protects'' the non-AFA fleets. Further, this allocation 
exceeds the AFA catcher-processor sector's current use (i.e., since 
2001) by as much as 90 percent. It was incumbent upon the Council to 
make a good-faith effort to examine and fulfill its duties to the non-
AFA sectors that funded this reallocation. That was not done. The 
stated rationale for the revision was the (highly questionable) bycatch 
needs of the AFA trawl CP sector. At the very least the non-AFA trawl 
CP fleet had far greater bycatch needs that were ignored not only in 
Amendment 85 and in Council discussion but were exacerbated once a 
table using fishmeal was presented during the Council discussion, but 
not analyzed in the EA/RIR/IRFA, surfaced. But no opportunity was 
allowed for public comment at that point, and there is no non-AFA trawl 
CP sector representative on the Council who would have been in a 
position to alert Council members to the disparity.
    We support full Secretarial disapproval of the amendment based on 
lack of adequate analysis which resulted in the Council not fully 
understanding the impact of their actions, and based on the fact that 
the Council action did not take the non-AFA trawl CP recent history 
into consideration. The ultimate impact has been to jeopardize the 
viability of the H&G fleet, in particular, the vessels which are 
heavily reliant on cod.
    Response: The public was notified that final action on Amendment 85 
would be taken at the April 2006 Council meeting (see response to 
Comment 57). A draft analysis was prepared prior to that meeting. 
Because there were questions about including Pacific cod that was 
turned into fishmeal as the primary product in the calculations of 
retained legal harvest, tables showing that information were passed out 
at the Council meeting (see response to Comment 2) prior to public 
testimony and the Council's deliberation, so the public had an 
opportunity to respond to the information. The fishmeal data were 
included in the Secretarial review draft analysis. The Council and NMFS 
consider fishmeal to be part of the retained legal harvest for Pacific 
cod. Fishmeal is the primary product from the AFA trawl CP sector's 
incidental catch of Pacific cod. To exclude it from the AFA sector's 
history would be equivalent to excluding the non-AFA trawl CP's 
sector's incidental catch history from its other fisheries. Excluding 
fishmeal from the AFA trawl CP sector's harvest would result in a 
harvest share of 0.8 percent, or 65 percent below this sector's new 
allocation, not 90 percent. Catch history was calculated over a number 
of years, not just one or two recent years. The Council chose 
allocations from the within the range of percentages analyzed to 
balance catch history with consideration of socioeconomic and community 
factors, including allocations to the small boat sectors that were 
above their average historic harvest. Members of all sectors and the 
public at large have had an equal opportunity to comment on the 
Council's allocation decision, and their opinions have been considered, 
as evidenced by this response to comments section of the final rule. No 
procedural irregularity occurred during the development of Amendment 
85. The information presented in the Secretarial review draft analysis 
for this action represents the most current, comprehensive set of 
information available, recognizing that some information, such as 
operational costs, is unavailable.
    The original proposal before the Council was to allocate 13.2 
percent of the non-CDQ Pacific cod TAC to the non-AFA trawl CP sector. 
In a later motion, the jig sector allocation was cut from 2.0 percent 
to 1.5 percent and the non-AFA trawl CP sector allocation was increased 
to 13.7 percent, partly in consideration of the State waters Pacific 
cod fishery. This clearly shows that there were advocates on the 
Council for the allocation needs of the non-AFA trawl CP sector. The 
following day, the Council voted to reconsider its action because the 
AFA trawl CP ``allocation of

[[Page 50809]]

1.5 percent was not reflective of the historic usage and that it would 
better lie somewhere between 2 and 2.5 percent'' and ``not to provide 
for a directed fishery for any one vessel because there is no guarantee 
that there will be ongoing directed fishing by any one vessel with 
these allocations.'' The increased allocation to the AFA trawl CP 
sector this second day resulted in a deduction from several sectors: 
0.3 percent from the non-AFA trawl CP sector, 0.3 percent from the 
hook-and-line CP sector, 0.1 percent from the jig sector, and 0.1 
percent from the pot CV sector. As explained in previous responses, 
NMFS has determined that these allocations are fair and meet the goals 
of the problem statement.
    Council members are to act impartially and in the best interests of 
all. In fact, several members of the Council spoke on behalf of the 
non-AFA trawl CP sector during the Council deliberations on Amendment 
85. This is one reason the original proposal of a 13.2-percent 
allocation to the non-AFA trawl CP was initially increased to 13.7 
percent. Again, the final allocation of 13.4 percent is exactly the 
non-AFA trawl CP sector's average historic harvest from 1995 through 
2003. Amendment 85 ``protects'' the non-AFA trawl CP fleet in part by 
separating the trawl CPs into two sectors. Also see responses to 
Comments 13, and 33, and 58.
    Comment 61: No detailed or legally sufficient impacts analysis of 
the alternatives was ever prepared. Amendment 85 and its supporting 
analyses were simply not ready for final decision at the April 2006 
meeting. Rather, they should have been further developed and a 
preliminary preferred alternative specified. By choosing a set of 
percentages in the manner that the Council did, and taking final action 
in the same meeting, there was no opportunity for development of a 
legally sufficient analysis of the likely impacts of the hybrid 
alternative.
    The Council reserved itself the option of simply setting 
allocations for each sector within the range of percentages correlated 
with one of the baseline periods for a particular sector. However, the 
RIR and IRFA contained no detailed analysis of the tangible, practical 
impacts of these proposed allocations on the H&G fleet's fisheries and 
fishing strategies as they are legally required to be, and that NMFS 
inseason management was able to ascertain after the Council's vote on 
Amendment 85. The Council's deliberations regarding the factors the 
Magnuson-Stevens Act requires it to consider in allocation decisions 
was not (nor could it have been), informed by objective analysis.
    The allocation and its management to the H&G sector does not meet 
the objectives of the Problem Statement, and the effects were not 
adequately analyzed in either the Amendment 85 EA/RIR/IRFA (March 
draft) or the Secretarial Review Draft. Nowhere is the impact of any 
allocation, under any year option, analyzed as to its real operational 
impact on the sector: the sector's need to balance target versus 
incidental cod, and loss of the ability to target cod or prosecute 
flatfish fisheries with such a reduced allocation. With the H&G sector 
receiving such different treatment than other sectors, or different 
from what was presented in the analysis, it was virtually impossible 
for the sector to provide appropriate public comment. Council members 
did not realize the impact that such a low allocation had or the 
instability placed on the fleet from losing their directed fishery. Nor 
did they know the effect on the sector's ability to attain certain 
groundfish retention levels. These changes happened in the Council 
deliberations, so the sector could not comment. Without such analysis, 
and without H&G representation on the Council, Council members did not 
make an informed decision.
    The CDQ Pacific cod allocation increase from 7.5 percent to 10.7 
percent and the State of Alaska 3 percent share of the ABC will affect 
Amendment 85's ability to minimize reallocations, and to correlate each 
sector's allocation with dependency and use. The amendment should be 
only partially approved or there should be a mandate to review the 
action in the near future to determine how well the problem statement 
was addressed.
    Response: As is the normal procedure, a draft EA/RIR/IRFA was 
prepared prior to the April Council meeting and was made available to 
the Council and the public prior to the Council taking action on 
Amendment 85. The analysis was then further refined to reflect the 
effects of the Council's action prior to submission for Secretarial 
review. Impacts on the non-AFA trawl CP sector and all the other 
sectors were well analyzed prior to Council's final action and expanded 
upon in the analyses that were released for public comment with the FMP 
and the proposed rule. The analysis and other materials provided to the 
Council before it took final action were more than adequate and the 
Secretarial review draft analysis is legally sufficient. As stated in 
the IRFA, ``Because this action is principally designed to 
'reapportion' access to the cod resource among current user groups (at 
the 'sector level'), by definition, it represents tradeoffs.''
    The Secretarial review draft analysis expects that ``management of 
a lower Pacific cod allocation [to the non-AFA trawl CP sector] to 
serve both directed and incidental catch needs, will be substantially 
more difficult,'' without a cooperative structure as approved in 
Amendment 80. The non-AFA trawl CP sector will receive exactly its 
average historic harvest. This is lower than its more recent harvests, 
so if the sector reduces incidental catch of Pacific cod in other 
directed fisheries, it will have more Pacific cod available for its 
directed fisheries. However, the non-AFA trawl CP sector did not 
receive ``different treatment than other sectors, or different from 
what was presented in the analysis'' beyond dealing with issues unique 
to its sector, all of which was presented in the Secretarial review 
draft analysis. In determining the average historic harvest of the AFA 
trawl CP sector, the Council chose not to include the history of nine 
AFA vessels (AFA 9) that were bought out under the AFA, the history of 
which was included when its Pacific cod sideboard was created. 
Therefore, under Amendment 85, the AFA trawl CP sector will have an 
allocation that is substantially below its former Pacific cod sideboard 
allocation that included AFA 9 history. By excluding from consideration 
the AFA 9 history, which was extinguished by section 209 of the AFA, 
and by separating the two sectors, Amendment 85 protects the non-AFA 
trawl CPs. These two sectors will no longer be sharing a single 
allocation that would be lower under Amendment 85 if the sectors were 
left together with the same sideboard for the AFA trawl CPs.
    The Council took note of a possible legislated increase in the 
Pacific cod allocation to the CDQ Program (see response to Comments 74 
and 75) and of the State waters Pacific cod fishery (see response to 
Comment 48) when it took final action. NMFS has determined that the 
problem statement was well addressed by the Council.
    Comment 62: Because the analytical and public comment processes 
were short-circuited, the Council's decision was uninformed and 
arbitrary, based more on compromise than a reasoned consideration of 
the relevant Magnuson-Stevens Act factors and the purposes which the 
Amendment was intended to serve. The analysis available to the Council 
at the time of decision making, as well as the decision making record, 
is devoid of any empirical, analytical linkage between the allocation 
scheme chosen and the Magnuson-Stevens Act standards Congress requires 
a council to

[[Page 50810]]

consider when allocating fishing privileges. The Magnuson-Stevens Act 
and Amendment 85 itself specify goals and requirements for this Pacific 
cod allocation scheme but the Council's cursory and flawed deliberative 
process on Amendment 85 failed to connect the Council's choices with 
these goals and requirements. Accordingly, the action taken by the 
Council on Amendment 85 represents arbitrary and capricious decision 
making, in violation of the Magnuson-Stevens Act and the APA. The 
Magnuson-Stevens Act establishes standards with respect to the relevant 
criteria a fishery management council must consider when, as here, it 
makes resource allocations. Specifically that sectors of industry are 
treated equally, that residents of different States are treated 
equally, that socioeconomic concerns are taken into consideration, that 
fisheries are managed to optimum yield, that allocations are for the 
net benefit of the Nation, current participation, historical use, 
dependence on the fishery, and other factors. The APA requires that the 
impacts of Federal regulations be understood and considered at the time 
decisions are made. The Council's cursory and flawed deliberative 
process on Amendment 85 failed to connect the Council's choices with 
these goals and requirements (under administrative law precepts). 
Accordingly, the action taken by the Council on Amendment 85 would be 
arbitrary and capricious decision making if implemented.
    Response: The analytical and public comment processes for Amendment 
85 and this final rule were not short-circuited, as explained in 
response to Comment 57. The Council discussed its action in some depth 
with various allocation amounts presented before final action was 
taken, including how the Magnuson-Stevens Act National Standards were 
met by Amendment 85. The impacts of Amendment 85 were discussed in the 
analysis available to the Council and to the public before the April 
2006 Council meeting. The Council's decisions were guided by its 
problem statement which specified the factors that would be considered 
in its allocation decisions. The draft EA/RIR/IRFA addressed the 
Magnuson-Stevens Act requirements and the Council fulfilled these 
requirements. The allocations chosen were within the options considered 
in the draft analysis. Decisions by NMFS on FMP amendments and proposed 
regulations recommended by the Council must be consistent with the 
Magnuson-Stevens Act and APA. NMFS has determined that Amendment 85 
meets all APA and Magnuson-Stevens Act requirements (see response to 
Comment 57).
    Comment 63: The EA/RIR/IRFA states that the non-AFA trawl CP fleet 
does not target on pollock because the headed and gutted pollock sells 
for less than the cost of production. This is inaccurate. While the 
price of H&G pollock has been low in the past, there were several H&G 
vessels that had a viable pollock target and market prior to the AFA. 
Since the AFA, the value of H&G pollock has increased dramatically and 
the fleet has suffered from not having access to this vast and valuable 
resource, which comprised 75 percent of the total allowable 2 million 
mt catch in the BSAI in 2006.
    Response: The statement in the EA/RIR/IRFA was in reference to the 
fleet in the GOA. Given the comment, NMFS determined the statement was 
confusing and revised the final analysis by removing the statement.
    Comment 64: The Amendment 85 package provided for Secretarial 
review not only inadequately estimates the impact on the non-AFA trawl 
CP fleet of its dramatically reduced allocation but primarily cites 
Amendment 80 cooperative provisions as the tool that will help mitigate 
the adverse impacts of Amendment 85 and allow the sector to gain the 
most value out of its reduced Pacific cod allocations. This seems to 
violate the principal of evaluating the impacts and providing the 
rationale for the current proposed amendment without relying on a 
future action not yet implemented.
    Response: NMFS cannot find support for the commenter's assertion 
that the Amendment 85 package submitted to the Secretary primarily 
cites Amendment 80 cooperative provisions as justification for approval 
of Amendment 85. The response to Comment 13 explains how the analysis 
for Amendment 85 and this final rule adequately present information 
concerning the impacts of the action on all sectors, including the non-
AFA trawl CP sector. NMFS partially approved Amendment 85 based on the 
record for Amendment 85 and not on any possible future actions that 
might mitigate its impacts.
    Comment 65: NMFS cannot now substitute post hoc rationalizations 
for the absent Council deliberation based on informed public 
participation on these central issues. The Council's decisional record 
for Amendment 85 lacks the required support for the recommendations the 
Council made.
    Response: NMFS is required to examine and consider the entire 
record before making a decision whether to approve, disapprove, or 
partially approve an action recommended by a council. After considering 
the entire record developed for Amendment 85 and the proposed rule, 
NMFS decided to partially approve Amendment 85 and partially approve 
the proposed rule for reasons provided in this preamble.
    Comment 66: By allocating cod based on rates of harvest that 
stretch back as far as 1995, while ignoring current use and dependence 
of the H&G sector, Amendment 85, as recommended by the Council, 
violates the substantive provisions of the Magnuson-Stevens Act 
(factors to take into account when allocating fishing privileges).
    Response: National Standard 4 requires allocations to be (1) fair 
and equitable, (2) reasonably calculated to promote conservation, and 
(3) carried out in such manner than no particular individual, 
corporation, or other entity acquires an excessive share. In compliance 
with the requirement that the allocation be fair and equitable, the 
Council used catch history from 1995 through 2003. The Council also 
considered more recent catch history from 2004 and 2005, but chose not 
to develop allocations including that history. (See response to Comment 
3.) The Council took into account current use and dependence of the 
non-AFA trawl CP sector, and all other sectors, in making its 
allocation recommendations, but ultimately did not use them 
exclusively. Nothing in the Magnuson-Stevens Act or other applicable 
law requires the Council or NMFS to develop allocations that include 
present participation, just that the information be considered and a 
reasonable explanation provided if it is excluded. Socioeconomic 
considerations and community factors, such as favoring the small boat 
fisheries, also were considered. Also see responses to Comments 3 and 
48.
    Comment 67: The commenter believes that Amendment 85 is consistent 
with the National Standards of the Magnuson-Stevens Act and other 
applicable law. The resulting sector allocations from Amendment 85 take 
into account the catch history, historic dependence, and ability to 
engage in other fisheries by each of the sectors. Consideration was 
also given to the potential impacts and sustained participation of 
coastal communities and small-boat fishermen.
    Response: NMFS agrees that Amendment 85 as partially approved by 
NMFS is consistent with the Magnuson-Stevens Act and other applicable 
law. The remaining comments are noted.
    Comment 68: The allocations in Amendment 85 were the result of a 
fair

[[Page 50811]]

and equitable process and did not discriminate by residency.
    Response: Comment noted.
    Comment 69: Amendment 85 is consistent with the Problem Statement 
and purpose of the action.
    Response: Comment noted.
    Comment 70: Keep the proposed rule/final rule process moving 
forward on the regulatory track so that Amendment 85 can be implemented 
prior by January 1, 2008 (i.e., in place for the 2008 season), because 
revisions to the allocations are long overdue.
    Response: This final rule will be published in sufficient time to 
be effective on January 1, 2008.

Comments on Prohibited Species Catch Allowances

    Comment 71: The Secretary should disapprove the PSC allocation 
portion of Amendment 85. Amendment 85 would allocate PSC for Pacific 
cod separately to each trawl sector for use only in the Pacific cod 
fishery. Any sector which has PSC remaining after the cod fishery is 
completed will be unable to use it anywhere else. Sectors with 
sufficient PSC to harvest their cod allocation will have no incentive 
to use it carefully; there would be little incentive for minimizing 
bycatch rates in other sectors and could result in increased PSC use, 
in violation of National Standards 1 and 9 of the Magnuson-Stevens Act. 
After the H&G sector prosecutes its Amendment 85 directed cod fishery, 
which NMFS estimates will last only about 10 or 11 days, there still 
may not be enough cod and associated prohibited species catch (PSC) of 
halibut and crab for the H&G sector to fully prosecute its other 
directed groundfish fisheries. Non-AFA trawl CPs will not be able to 
fund their PSC needs from other PSC allocations (e.g., from the 
yellowfin sole fishery group) because there will not be enough 
available. NMFS inseason management could re-allocate unused PSC to 
other sectors, but that would occur late in the year when it clearly 
was not going to be used, and would likely be too late for it to be 
effectively used by other trawl sectors. NMFS can simply continue to 
manage PSC in the trawl sectors as it does now to optimize the total 
catch in all trawl fisheries.
    Response: NMFS did not approve the proposed apportionment of 
Pacific cod trawl fishery halibut and crab PSC allowances among the 
trawl sectors for the reasons discussed above under the section 
``Element of Proposed Rule Not Approved.'' NMFS did approve the hook-
and-line PSC apportionment. Additionally, a detailed response to 
comments regarding the non-AFA trawl CP sector's directed Pacific cod 
fishery and incidental catch of Pacific cod is provided in response to 
Comments 13, 42, and 52.
    Comment 72: The PSC sideboard allocation specified for the AFA 
trawl CP sector's Pacific cod fishery should be treated as a ``cap'' or 
``limit'' on PSC usage in the sector's directed Pacific cod fishery--
not as an allocation to that particular fishery. AFA CP sideboards on 
PSC species are not currently apportioned among target species. None of 
the AFA trawl CP PSC should be allocated in a way that might result in 
any of that PSC allocation being ``stranded'' in a particular fishery 
and unavailable to support other non-pollock target fisheries in which 
the AFA trawl CP sector's vessels may want to participate (e.g., 
yellowfin sole).
    Response: NMFS did not approve the proposed halibut and crab PSC 
apportionments for the trawl sectors. Additional explanation for this 
decision is provided earlier in the preamble under the section 
``Element of Proposed Rule Not Approved.''
    Comment 73: The Secretary should disapprove the PSC allocation 
method contained in Amendment 85, instead allocating PSC using current 
methodology or the allocation method contained in Amendment 80, 
depending on the implementation date for Amendment 80.
    Response: NMFS did not approve the proposed trawl PSC 
apportionments. PSC will be allocated under the current regulatory 
method until that method is changed by future rulemaking as described 
in response to Comment 72. NMFS notes that the proposed rule for 
Amendment 80 includes new provisions for PSC apportionments among trawl 
sectors.

Comments on CDQ Allocation

    Comment 74: After Amendment 85 was passed by the Council, the CDQ 
allocation was modified by the Coast Guard Bill and subsequently by the 
Magnuson-Stevens Reauthorization Act. The commenter assumes that the 
10.7 percent total allocation to the CDQ Program will be analyzed in 
the proposed rule.
    Response: The 10.7-percent allocation to the CDQ Program was 
analyzed in the EA/RIR/IRFA for the proposed rule and the EA/RIR/FRFA 
for this final rule.
    Comment 75: The Magnuson-Stevens Act now requires an allocation to 
the CDQ Program of 10.7 percent. The Council's final action on 
Amendment 85 adhered to the prior 7.5 percent CDQ allocation, and the 
Council has taken no further action since that time. Accordingly, it is 
not accurate to say that the ``Council'' proposed a 10 percent directed 
fishing CDQ allowance in submitting Amendment 85 to NMFS. The only 
proposal upon which the Council has voted chose to leave the CDQ 
allowance at 7.5 percent. Council staff cannot revise the CDQ 
allocation proposed by the Council to bring it into compliance with 
existing law. The Magnuson-Stevens Act requires the Secretary under 
such circumstances to remand the proposal to the Council, with an 
explanation, so that the Council may consider what appropriate 
corrective action to take. The proper course at this point to resolve 
the problem is to decline to adopt the proposed rule and to remand the 
sector and CDQ Program allocations to the Council for its consideration 
and action pursuant to the law. A remand would permit the Council to 
undertake a proper analysis of the unanalyzed impact of taking a larger 
CDQ share, before the Council finalizes new allocations.
    Response: The Council determined that no further action on 
Amendment 85 was needed by the Council after the Coast Guard and 
Maritime Transportation Act of 2006 (Public Law 109-241; Coast Guard 
Act) was passed because its decision in April 2006 contemplated a 
Congressional adjustment to the allocations of Pacific cod to the CDQ 
Program. The Council's intent was that the CDQ allocation under 
Amendment 85 would be either 7.5 percent of the Pacific cod TAC or 
whatever allocation was Congressionally legislated when Amendment 85 
was submitted to the Secretary for review. The Council voted to 
maintain the status quo level of a 7.5 percent CDQ Pacific cod 
allocation as its preferred alternative, but inherent in that vote was 
the Council's acknowledgment that legislation likely would be enacted 
in the coming months that would overrule whatever action the Council 
took on the CDQ Program allocation at its April 2006 meeting. The 
Council clearly recognized that legislation affecting the CDQ Program 
was imminent and could be enacted subsequent to its decision but before 
Secretarial review of Amendment 85. It was recognized during Council 
discussion that the proposed rule would need to accommodate any 
legislated increase in the CDQ allocation. The President signed the 
Coast Guard Act into law on July 11, 2006, after the Council selected a 
final preferred alternative for Amendment 85. The Coast Guard Act 
amendments to the Magnuson-Stevens Act included a

[[Page 50812]]

change to make the CDQ Program Pacific cod allocation a directed 
fishing allocation of 10 percent upon the establishment of sector 
allocations (Section 305(i)(1)(B)(ii)(1)). NMFS notified the Council at 
its October 2006 meeting that the increased CDQ allocations required 
under the Coast Guard Act would have to be incorporated into Amendment 
85 for it to be consistent with the Magnuson-Stevens Act, and that the 
changes were being incorporated into the regulations implementing 
Amendment 85. The Council asked about its ability to review the changes 
being made to Amendment 85 to comply with the Coast Guard Act, and was 
advised by NOAA General Counsel that because Amendment 85 had not yet 
been submitted to the Secretary for review, the Council could request 
further review it if desired. The Council did not request further 
review of Amendment 85 at this meeting or at any other time prior to 
its submission of Amendment 85 to the Secretary.
    Subsequent to the Coast Guard Act, the Magnuson-Stevens Act was 
reauthorized and signed into law on January 12, 2007. These more recent 
changes to the Magnuson-Stevens Act increase the CDQ Program's Pacific 
cod allocation to 10.7 percent (directed and nontarget combined) 
effective January 1, 2008. (Note: A provision was also included to 
trigger this increase in 2007 if a sector of the BSAI Pacific cod 
fishery forms a fishing cooperative in 2007.) In accordance with 
section 304(b)(1)(B) of the Magnuson-Stevens Act, NMFS determined that 
the originally submitted proposed rule for Amendment 85 that contained 
a 10 percent Pacific cod CDQ Program allocation with an additional 
amount for incidental catch was inconsistent with the Magnuson-Stevens 
Act, and returned it to the Council to be revised. Thus, the proposed 
rule was revised to contain regulatory amendments to increase the CDQ 
Pacific cod allocation to 10.7 percent to be consistent with the 
Magnuson-Stevens Act. The increased allocation of Pacific cod to the 
CDQ Program was within the allocations to the Program analyzed in the 
March draft of the EA/RIR/IRFA.
    Although the revised submission from the Council of the proposed 
rule for Amendment 85 incorporated these new changes, the FMP language 
could not be changed because it had already been published and was 
available for public comment. Therefore, NMFS did not approve those 
parts of the FMP amendment that are now inconsistent with the Magnuson-
Stevens Act and refer to a 10-percent allocation of Pacific cod TAC as 
a directed fishing allowance to the CDQ Program, specify the creation 
of an incidental catch allowance of Pacific cod for the CDQ Program, or 
reference changes to the CDQ Program Pacific cod allocations through 
the Coast Guard Act. Amendment 85 as approved by NMFS and the 
regulations in this final rule rely on the Magnuson-Stevens Act 
requirement for a 10.7-percent allocation of Pacific cod TAC to the CDQ 
Program rather than a specific FMP provision.
    See response to Comment 74 regarding the analysis of the 10.7-
percent allocation of Pacific cod to the CDQ Program.
    Comment 76: The loss of Pacific cod TAC to the CDQ Program is felt 
by all sectors, but it is not felt proportionately to recency or 
dependency. Additionally, 93 percent of the CDQ cod is directed to 
their freezer longline partners, and half of that fleet is involved in 
harvesting CDQ. Therefore they get the bulk of it back as a sector, and 
half the sector benefits.
    Response: Because the CDQ Program allocation of Pacific cod is 
subtracted from the Pacific cod TAC before any allocations are made to 
the non-CDQ sectors, all non-CDQ sectors are affected proportionately 
by the CDQ Program allocation. NMFS acknowledges that many of the same 
hook-and-line CP vessels that fish the non-CDQ BSAI Pacific cod fishery 
partner with the CDQ groups to prosecute the BSAI Pacific cod CDQ 
fishery. While some participants in the hook-and-line CP sector will 
have access to the increased CDQ cod quota and receive some benefit 
from the harvest of CDQ cod, the cost of the royalty payment to the CDQ 
groups, and other program requirements, such as 200 percent observer 
coverage, reduce the benefit to the non-CDQ hook-and-line CP sector.

Comments on Hard Cap Management of Pacific Cod Incidental Catch 
Allowances

    Comment 77: We support NMFS's management of the trawl sector's 
incidental catch allowance as outlined in the proposed rule, which is 
that inseason management manages each trawl sector to a soft cap. The 
non-AFA trawl CP sector testified in support of hard cap management, 
however it did so in a truly different context. It was inconceivable 
that the fleet would be so disenfranchised from its last seven years of 
catch history share. We respectfully request disapproval of hard cap 
management for the non-AFA trawl CP fleet and soft cap management of 
Pacific cod H&G incidental catch allowance under both Amendment 85 and 
Amendment 80.
    Response: Although representatives of the non-AFA trawl CP sector 
may have testified in support of hard cap management of their Pacific 
cod allocation, the Council did not include such a requirement in their 
final action on Amendment 85. Therefore, Amendment 85 and this final 
rule do not include such a provision. NMFS will continue soft cap 
management of incidental catch of Pacific cod for the non-AFA trawl CP 
sector under this final rule. However, NMFS notes that Amendment 80 as 
approved by the Secretary includes hard cap management requirements.
    Comment 78: The non-AFA trawl CP sector allocation will be managed 
more conservatively than other sector allocations, i.e., a ``hard cap'' 
allocation that when reached will prohibit further fishing in the BSAI. 
The action on Amendment 85 should not be predicated on mitigation from 
Amendment 80. The Secretary should disapprove that portion of Amendment 
85 that specifies that the non-AFA trawl CPs will be managed under a 
hard cap.
    Response: Neither Amendment 85 nor this final rule require that the 
non-AFA trawl CP sector's Pacific cod allocation be managed as a hard 
cap. See response to Comment 77. Also see response to Comment 64 that 
NMFS' Amendment 85 decision did not rely on Amendment 80 for 
mitigation.

Comment on Commercial Fisheries

    Comment 79: All quotas allocated should be cut in half this year 
and all quotas should continue to be cut by 10 percent in each 
succeeding year. The figures that show healthy stocks gained from the 
commercial fishing profiteers are a conflict of interest for them 
because they financially gain from telling this agency everything is 
great. Ban bottom trawling entirely now.
    Response: NMFS conservatively manages the BSAI Pacific cod fishery 
based on the best scientific information available. To ensure 
conservation of the resource, the status of the Pacific cod stock is 
reviewed by NMFS and the Council each year through a public scientific 
review process before the TAC is allocated. The commercial fishing 
industry does not set the harvest levels. This action is intended to 
allocate Pacific cod TAC among various gear groups. NMFS reviewed the 
impacts of Amendment 85 in the EA/RIR/FRFA and concluded that it would 
not result in a significant impact on the human environment. This 
action is not intended to ban specific gear types. Banning trawling or 
reducing harvests

[[Page 50813]]

are not the goals of this action and would need to be addressed in a 
separate regulatory action developed through the Council process.

Classification

    The Acting Administrator, Alaska Region, NMFS, determined that 
Amendment 85 is necessary for the conservation and management of the 
Pacific cod fishery and that it is consistent with the Magnuson-Stevens 
Fishery Conservation and Management Act and other applicable laws.
    This final rule has been determined to be not significant for the 
purposes of Executive Order 12866.
    A FRFA was prepared. The FRFA incorporates the IRFA, a summary of 
the significant issues raised by the public comments in response to the 
IRFA, NMFS' responses to those comments, and a summary of the analyses 
completed to support the action. The need for and objectives of this 
action are contained at the beginning of the preamble and in the 
SUMMARY section of the preamble. The legal basis for this action is 
also contained in the preamble. A summary of the FRFA follows. A copy 
of this analysis is available from NMFS (see ADDRESSES).
    No comments were received that raised significant issues in 
response to the IRFA specifically, therefore, no changes were made to 
the rule as a result of comments on the IRFA. However, several comments 
were received on the economic impacts of Amendment 85 on different 
sectors of the industry. For a summary of the comments received, refer 
to the section above titled ``Comments and Responses.'' In response to 
public comment, one sentence was removed from the RIR regarding the 
non-AFA trawl CP sector targeting pollock because it was an ambiguous 
statement that related to activity in the Gulf of Alaska and the 
statement has no bearing on any decision in the analysis. Additionally, 
NMFS did not approve the proposed regulatory change that would have 
subdivided among trawl sectors the annual PSC limits apportioned to the 
Pacific cod trawl gear fisheries. The reasons are discussed above under 
the section ``Element of Proposed Rule Not Approved'' and include: (1) 
the Council did not provide any explanation as to why an additional 
reduction in this sector's harvest of Pacific cod and other target 
species that would result from a reduction in its halibut and crab PSC 
is appropriate or consistent with National Standard 4 or other 
applicable law, (2) the amount of PSC allocated to the AFA trawl CP and 
the trawl CV sectors is much greater than their historical needs and 
may create a disincentive for these sectors to minimize their bycatch 
of prohibited species, which is not consistent with National Standard 
9, and (3) the non-AFA trawl CP sector harvests a significant majority 
of species other than pollock and Pacific cod, and would likely not 
have PSC remaining from its Pacific cod fishery to use to achieve 
optimum yield from its other BSAI groundfish fisheries, an 
inconsistency with National Standard 1.

Description and Estimate of Number of Small Entities to which the Rule 
will Apply

    For purposes of the Regulatory Flexibility Act, 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.
    The FRFA used the most recent year of data available to conduct 
this analysis (2003). As stated previously, the commercial entities 
directly regulated by the 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 and a description of the CDQ sector is provided in detail in the 
RIR.
    Vessels that were considered large entities, for purposes of the 
FRFA, 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. Thus, the FRFA 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 (18.3 m) LOA; 22 non-AFA trawl CVs; 15 
jig CVs; 6 hook-and-line CVs [gteqt]60 ft (18.3 m) LOA; and 70 pot CVs 
[gteqt]60 ft (18.3 m) 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 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 FRFA 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 to be small entities directly regulated by the action.
    The six CDQ groups participating in the CDQ Program are not-for-
profit entities that are not dominant in the

[[Page 50814]]

overall BSAI fishing industry. Thus, the six CDQ groups directly 
regulated by the action are considered small entities or ``small 
organizations'' under the RFA. Therefore, under a conservative 
application of the SBA criterion and the best available data, the total 
number of small entities directly regulated by the action is estimated 
as 175.

Recordkeeping and Reporting Requirements

    This regulation does not impose new recordkeeping or reporting 
requirements on the directly regulated small entities.

Description of Significant Alternatives

    A FRFA should contain ``a description of the steps the agency has 
taken to minimize the significant economic impact on small entities 
consistent with the stated objectives of applicable statutes, including 
a statement of the factual, policy, and legal reasons for selecting the 
alternative adopted in the final rule and why each one of the other 
significant alternatives to the rule considered by the agency which 
affect the impact on small entities was rejected.''
    The FRFA analyzed the ``no action'' alternative (Alternative 1) and 
the selected action (Alternative 2). Each of these alternatives was 
comprised of the same set of eight components, or issues. The eight 
components are discussed in detail in the RIR. 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 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 Alternative 2, 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. 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 the 
Council's final preferred alternative, or Alternative 2. Alternative 2 
is described in detail in the RIR.
    Alternative 2 was selected because it accomplishes the objective of 
revising allocations of BSAI Pacific cod among various harvest sectors 
that in general more closely reflect historical use by sector than do 
current allocations, thus reducing the need for reallocations during 
the fishing year. Alternative 2 also increases the allocation of 
Pacific cod to the CDQ Program as required by recent changes in the 
Magnuson-Stevens Act. The revised allocations will reduce uncertainty 
about the availability of yearly harvests within sectors that is caused 
by reallocations, and maintain stability among sectors in the BSAI 
Pacific cod fishery.
    Alternative 1, no regulatory change, would have no direct impact on 
small entities. However, it also would not have increased the 
allocation to the <60 ft (18.3 m) LOA fixed gear sector, one of the 
smallest of the small entities, whose allocation is increased under 
Alternative 2. Alternative 1 would not revise allocations of BSAI 
Pacific cod among various harvest sectors that more closely reflect 
historical use by sector than do current allocations, thus the need for 
reallocations during the fishing year would not be reduced. Alternative 
1 also would not increase the allocation of Pacific cod to the CDQ 
Program, contrary to new requirements in the Magnuson-Stevens Act. 
Therefore, Alternative 1 would not meet the objectives of this action 
and was rejected.

Steps Taken to Minimize the Significant Economic Impact on Small 
Entities

    Several measures are included in the rule that will reduce impacts 
on small entities. Economic opportunity and stability are facilitated 
for small entities participating in the Pacific cod fisheries by 
establishing BSAI Pacific cod allocations for the smallest of the small 
entities (jig vessels and the <60 ft (18.3 m) LOA hook-and-line and pot 
CVs) that represent a net increase over their catch history. This 
provides 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 (18.3 m) LOA fixed gear CV sector has 
increased its participation in the BSAI Pacific cod fishery and could 
benefit from additional quota, if it were made available.
    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 these requirements such as acquiring some 
specific permits, and/or meeting historical catch and participation 
thresholds, that are extended to particularly vulnerable or 
disproportionately burdened classes of smaller vessels. For example, 
the <60 ft (18.3 m) LOA fixed gear CV sector does not need a valid 
licence limitation program licence to fish Pacific cod and is not 
required to have a Pacific cod endorsement. Recognizing the opportunity 
to facilitate and sustain small entity participation, the Council 
incorporated a number of exemptions for small entities in the final 
preferred action. Treatment of these provisions is provided in the RIR.
    This final rule maintains the current reallocation process whereby 
any unused jig quota is first considered for reallocation to the <60 ft 
(18.3 m) LOA fixed gear CV sector before being reallocated to any other 
sector. The rule also changes 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 (18.3 m) LOA fixed gear CV sector earlier in 
the year, when the weather is preferable for this small boat sector. 
The rule also specifies that the third trimester of the jig allocation, 
if it is to be reallocated, should be available to the <60 ft (18.3 m) 
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.
    Not approving the proposed regulatory change that would have 
subdivided among trawl sectors the annual PSC limits apportioned to the 
Pacific cod trawl gear fisheries, will help minimize the effects of the 
reduced allocation on the small entities that are members of the non-
AFA trawl CP sector by reducing the chance that the non-AFA trawl CP 
sector's directed fishery for Pacific cod may be closed due to an 
insufficient PSC allowance.
    This action increases the BSAI Pacific cod allocation to the CDQ 
Program from

[[Page 50815]]

7.5 percent of the Pacific cod TAC to 10.7 percent, as mandated by the 
recent amendments to the Magnuson-Stevens Act. A tradeoff exists in 
terms of impacts on the small entities in the non-CDQ sectors whose 
allocations will be reduced (proportionally by 3.2 percent) by the 
increase to the CDQ Program. However, the 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, 
reflect a sincere effort to address the needs of these small entities.
    In sum, many vessels in each sector directly regulated by 
Alternative 2 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 will receive an increased 
allocation under this action.

Small Entity Compliance Guide

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

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Recordkeeping and reporting requirements.

    Dated: August 23, 2007.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine 
Fisheries Service.

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

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

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

    Authority: 16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.; 
and Pub. L. 108 199, 118 Stat. 110.

0
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.
* * * * *

0
3. In Sec.  679.7, revise paragraph (d)(5) and add paragraph (d)(25) to 
read as follows:


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).
* * * * *

0
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:

[[Page 50816]]



------------------------------------------------------------------------
          Gear Type               A season      B season      C season
------------------------------------------------------------------------
(1) Trawl                      60%            20%           20%
------------------------------------------------------------------------
  (i) Trawl CV                 70%            10%           20%
------------------------------------------------------------------------
  (ii) Trawl CP                50%            30%           20%
------------------------------------------------------------------------
(2) Hook-and-line CP and hook- 60%            40%           no C season
 and-line CV [gteqt]60 ft
 (18.3 m) LOA
------------------------------------------------------------------------
(3) Jig                        40%            20%           40%
------------------------------------------------------------------------
(4) All other non-trawl gear   no seasonal    no seasonal   no seasonal
                                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)     2
 LOA
------------------------------------------------------------------------
(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 gear 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 50817]]

 
  (i) Trawl CV                         74 %                     11 %                     15 %
----------------------------------------------------------------------------------------------------------------
  (ii) Trawl CP                        75 %                     25 %                     0 %
----------------------------------------------------------------------------------------------------------------
(2) Hook-and-line CP, hook-and-line    51 %                     49 %                     no C season
 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 allowance    no seasonal allowance    no seasonal 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.
* * * * *

0
5. In Sec.  679.21, remove paragraph (e)(1)(i), redesignate paragraphs 
(e)(1)(ii) through (e)(1)(ix) as (e)(1)(i) through (e)(1)(viii), and 
revise paragraphs (e)(2), (e)(3)(i), (e)(3)(v), and (e)(4), to 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 (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) 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 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]

0
6. In Sec.  679.23, remove paragraphs (e)(6) and (e)(7).

[[Page 50818]]


0
7. In Sec.  679.64:
    A. Remove paragraph (a)(1) introductory text.
    B. Redesignate paragraph (a)(1)(i) as paragraph (a)(1) introductory 
text.
    C. Redesignate paragraph (a)(2) introductory text as paragraph 
(a)(1)(i).
    D. Redesignate paragraphs (a)(2)(i) and (ii) as paragraphs 
(a)(1)(i)(A) and(B), respectively.
    E. Redesignate paragraph (a)(3) introductory text as paragraph 
(a)(1)(ii).
    F. Redesignate paragraphs (a)(3)(i) through (iii) as paragraphs 
(a)(1)(ii)(A) through (C), respectively.
    G. Redesignate paragraph (a)(4) introductory text as paragraph 
(a)(1)(iii).
    H. Redesignate paragraphs (a)(4)(i) and (ii) as paragraphs 
(a)(1)(iii)(A) and (B), respectively.
    I. Redesignate paragraph (a)(5) as paragraph (a)(2).
    J. Redesignate paragraph (a)(6) as paragraph (a)(3), and
    K. Revise newly redesignated paragraphs (a)(1) introductory text 
and (a)(3).
    The 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)(v).
* * * * *

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

0
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 and the      except pollock, Pacific     2
                                                                    cod, and the
----------------------------------------------------------------------------------------------------------------
Newly redesignated Sec.                paragraphs (e)(1)(iii)(A)   paragraphs (e)(1)(i)(A)     1
 679.21(e)(1)(i) introductory text      through                     through
----------------------------------------------------------------------------------------------------------------
Newly redesignated Sec.                paragraphs (e)(1)(iii)(A)   paragraphs (e)(1)(ii)(A)    1
 679.21(e)(1)(ii) introductory text     and                         and
----------------------------------------------------------------------------------------------------------------
Paragraph heading of newly             Chinook salmon              BS Chinook salmon           1
 redesignated Sec.   679.21(e)(1)(vi)
----------------------------------------------------------------------------------------------------------------
Sec.   679.21(e)(3)(ii)(B)(2)          paragraph (e)(1)(ii) of     paragraph (e)(1)(i) of      1
----------------------------------------------------------------------------------------------------------------
Sec.   679.21(e)(7)(viii)              paragraphs (e)(1)(vii) and  paragraphs (e)(1)(vi) and   1
 introductory text                      (e)(1)(ix) of               (e)(1)(viii) of
----------------------------------------------------------------------------------------------------------------
Sec.   679.21(e)(7)(viii)(A)           paragraph (e)(1)(vii) of    paragraph (e)(1)(vi) of     1
 introductory text
----------------------------------------------------------------------------------------------------------------
Sec.   679.21(e)(7)(viii)(B)           paragraph (e)(1)(ix) of     paragraph (e)(1)(viii) of   1
 introductory text
----------------------------------------------------------------------------------------------------------------
Sec.   679.31(c)                       (See Sec.                   (See Sec.                   1
                                        679.20(b)(1)(iii))          679.20(a)(7)(i) and
                                                                    (b)(1)(iii).)
----------------------------------------------------------------------------------------------------------------
Sec.   679.31(e)                       (See Sec.                   (See Sec.                   1
                                        679.21(e)(1)(i) and         679.21(e)(3)(i)(A) and
                                        (e)(2)(ii)).                (e)(4)(i)(A).)
----------------------------------------------------------------------------------------------------------------
Sec.   679.32(b)                       under Sec.   679.21(e)(5)   under Sec.   679.21(e)(4)   1
                                        in                          in
----------------------------------------------------------------------------------------------------------------
Sec.   679.50(c)(1)(iii)               under Sec.                  under Sec.                  1
                                        679.21(e)(7)(vi), or        679.21(e)(7)(vii), or
----------------------------------------------------------------------------------------------------------------
Newly redesignated Sec.                paragraph (a)(2)(i) of      paragraph (a)(1)(i)(A) of   1
 679.64(a)(1)(i)(B)
----------------------------------------------------------------------------------------------------------------
Newly redesignated Sec.                paragraphs (a)(1)(ii)       paragraphs (a)(1)(i)        1
 679.64(a)(1)(iii)(A)                   through (a)(3) of           through (a)(1)(ii) of
----------------------------------------------------------------------------------------------------------------
Newly redesignated Sec.                paragraph (a)(4)(i) of      paragraph (a)(1)(iii)(A)    1
 679.64(a)(1)(iii)(B)                                               of
----------------------------------------------------------------------------------------------------------------

[FR Doc. E7-17140 Filed 8-31-07; 8:45 am]
BILLING CODE 3510-22-S