81_FR_84660 81 FR 84434 - Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea and Aleutian Islands Management Area; American Fisheries Act; Amendment 113

81 FR 84434 - Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea and Aleutian Islands Management Area; American Fisheries Act; Amendment 113

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration

Federal Register Volume 81, Issue 226 (November 23, 2016)

Page Range84434-84458
FR Document2016-28152

NMFS issues this final rule to implement Amendment 113 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP). This final rule modifies the management of Bering Sea and Aleutian Islands (BSAI) Pacific cod fishery to set aside a portion of the Aleutian Islands Pacific cod total allowable catch for harvest by vessels directed fishing for Aleutian Islands Pacific cod and delivering their catch for processing to a shoreside processor located on land west of 170[deg] W. longitude in the Aleutian Islands (``Aleutian Islands shoreplant''). The harvest set-aside applies only if specific notification and performance requirements are met, and only during the first few months of the fishing year. This harvest set-aside provides the opportunity for vessels, Aleutian Islands shoreplants, and the communities where Aleutian Islands shoreplants are located to receive benefits from a portion of the Aleutian Islands Pacific cod fishery. The notification and performance requirements preserve an opportunity for the complete harvest of the BSAI Pacific cod resource if the set-aside is not fully harvested. This final rule is intended to promote the goals and objectives of Amendment 113, the FMP, the Magnuson-Stevens Fishery Conservation and Management Act, and other applicable laws.

Federal Register, Volume 81 Issue 226 (Wednesday, November 23, 2016)
[Federal Register Volume 81, Number 226 (Wednesday, November 23, 2016)]
[Rules and Regulations]
[Pages 84434-84458]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-28152]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 902

50 CFR Part 679

[Docket No. 151113999-6999-02]
RIN 0648-BF54


Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea 
and Aleutian Islands Management Area; American Fisheries Act; Amendment 
113

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

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to implement Amendment 113 to the 
Fishery Management Plan for Groundfish of the Bering Sea and Aleutian 
Islands Management Area (FMP). This final rule modifies the management 
of Bering Sea and Aleutian Islands (BSAI) Pacific cod fishery to set 
aside a portion of the Aleutian Islands Pacific cod total allowable 
catch for harvest by vessels directed fishing for Aleutian Islands 
Pacific cod and delivering their catch for processing to a shoreside 
processor located on land west of 170[deg] W. longitude in the Aleutian 
Islands (``Aleutian Islands shoreplant''). The harvest set-aside 
applies only if specific notification and performance requirements are 
met, and only during the first few months of the fishing year. This 
harvest set-aside provides the opportunity for vessels, Aleutian 
Islands shoreplants, and the communities where Aleutian Islands 
shoreplants are located to receive benefits from a portion of the 
Aleutian Islands Pacific cod fishery. The notification and performance 
requirements preserve an opportunity for the complete harvest of the 
BSAI Pacific cod resource if the set-aside is not fully harvested. This 
final rule is intended to promote the goals and objectives of Amendment 
113, the FMP, the Magnuson-Stevens Fishery Conservation and Management 
Act, and other applicable laws.

DATES: Effective on November 23, 2016.

ADDRESSES: Electronic copies of Amendment 113 to the FMP, the 
Environmental Assessment (EA), Regulatory Impact Review (RIR), Initial 
Regulatory Flexibility Analysis (IRFA), and Finding of No Significant 
Impact (FONSI) prepared for this action, collectively ``the Analysis,'' 
and the proposed rule may be obtained from http://www.regulations.gov 
or from the NMFS Alaska Region Web site at http://alaskafisheries.noaa.gov.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
rule may be submitted to 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; by email to 
[email protected]; or by fax to (202) 395-5806.

FOR FURTHER INFORMATION CONTACT: Julie Scheurer, 907-586-7228.

SUPPLEMENTARY INFORMATION:

Background

    NMFS manages the groundfish and Pacific cod fisheries in the 
Exclusive Economic Zone of the BSAI under the FMP. The North Pacific 
Fishery Management Council (Council) prepared, and the Secretary of 
Commerce approved, the FMP pursuant to the Magnuson-Stevens Fishery

[[Page 84435]]

Conservation and Management Act (Magnuson-Stevens Act) and other 
applicable laws. Regulations implementing the FMP appear at 50 CFR part 
679. General regulations that pertain to U.S. fisheries appear at 50 
CFR part 600.
    NMFS published the Notice of Availability of Amendment 113 on July 
19, 2016 (81 FR 46883), with comments invited through September 19, 
2016. NMFS published the proposed rule to implement Amendment 113 on 
August 1, 2016 (81 FR 50444), with comments invited through August 31, 
2016. The Secretary approved Amendment 113 on October 17, 2016. NMFS 
received 35 unique comments on Amendment 113 and the proposed rule from 
16 different commenters. A summary of these comments and the responses 
by NMFS are provided under the heading ``Responses to Comments'' below. 
These comments resulted in two minor changes from the proposed rule. 
One additional change to this final rule is not in response to 
comments, but is an administrative change that NMFS deemed necessary 
for timely implementation of this final rule.
    A detailed review of the BSAI Pacific cod fishery, provisions of 
Amendment 113, the proposed regulations to implement Amendment 113, and 
the rationale for these regulations is provided in the preamble to the 
proposed rule (81 FR 50444, August 1, 2016) and is not repeated here. 
The preamble to this final rule briefly reviews the regulatory changes 
made by this final rule.
    This final rule modifies the BSAI Pacific cod fishery to set aside 
a portion of the Aleutian Islands Pacific cod total allowable catch 
(TAC) for harvest by vessels directed fishing for Aleutian Islands 
Pacific cod and delivering their catch to Aleutian Islands shoreplants 
for processing. The harvest set-aside applies only if specific 
notification and performance requirements are met, and only during the 
first few months of the fishing year.
    Table 3 in the proposed rule preamble (81 FR 50444, August 1, 2016) 
describes the Overfishing Levels (OFLs), the Acceptable Biological 
Catches (ABCs), TACs, the Western Alaska Community Development Quota 
(CDQ) and non-CDQ fishery sector allocations, and seasonal 
apportionments of BSAI Pacific cod in 2017, the first year of 
implementation of this final rule. Each of these terms is described in 
the preamble to the proposed rule. Table 3 of the proposed rule 
preamble includes data from Tables 2 and 9 in the 2016 and 2017 final 
harvest specifications for the BSAI groundfish fisheries (81 FR 14773, 
March 18, 2016).

Harvesting and Processing of Pacific Cod in the Aleutian Islands

    A variety of vessels using a variety of gear types harvest the 
Aleutian Islands Pacific cod TAC each year. Trawl catcher vessels (CVs) 
and trawl catcher processors (CPs) have been among the most active 
participants in the Aleutian Islands Pacific cod fishery. Hook-and-line 
CPs have consistently participated in the Aleutian Islands Pacific cod 
fishery. Non-trawl CVs have harvested only a very small portion of the 
Pacific cod from the Aleutian Islands. The proposed rule and Section 
2.6.6 of the Analysis provide additional detail on the types of vessels 
harvesting Pacific cod in the Aleutian Islands.
    Trawl CVs deliver their catch of Aleutian Islands Pacific cod to 
several types of processors in the Aleutian Islands: CPs acting as 
motherships (vessels that process Pacific cod delivered by trawl CVs); 
stationary floating processors anchored in specific locations that 
receive and process catch on board but do not harvest and process their 
own catch; and shoreside processing facilities that are physically 
located on land west of 170[deg] W. longitude in the Aleutian Islands 
(defined as ``Aleutian Islands shoreplant'' in this final rule).
    Currently, Aleutian Islands shoreplants that may be capable of 
receiving Aleutian Islands Pacific cod from CVs are located in the 
communities of Adak and Atka. Although the Atka shoreplant has not 
received and processed Aleutian Islands Pacific cod, the shoreplant in 
Adak has received and processed relatively large amounts of Pacific 
cod. The proposed rule and Section 2.7.1 of the Analysis have 
additional detail on the delivery and processing of Aleutian Islands 
Pacific cod.
    Since 2008, trawl CVs have primarily delivered their catch of 
Aleutian Islands Pacific cod to a small group of CPs that operate as 
motherships. As deliveries of Aleutian Islands Pacific cod harvest from 
trawl CVs to CPs operating as motherships have increased in recent 
years, the amount of trawl CV harvest delivered to Aleutian Islands 
shoreplants has decreased. Additionally, CPs operating as motherships 
have demonstrated the capacity to process the entire TAC of Pacific cod 
in the Aleutian Islands in years when no Aleutian Islands shoreplant is 
in operation. This final rule is intended in part to mitigate the risk 
that CVs, Aleutian Islands shoreplants, and the communities in which 
they are located will be preempted from participating in the Aleutian 
Islands Pacific cod fishery by CPs.
    The proposed rule and Section 2.6 of the Analysis provide 
additional description of the factors that have affected the harvesting 
and processing of Pacific cod in the Aleutian Islands.

Need for This Final Rule

    A thorough description of the history and need for this action is 
provided in the proposed rule and the Analysis prepared for this action 
and is not repeated here. The Council adopted its preferred alternative 
for Amendment 113 at its October 2015 meeting.
    Since 2008, Aleutian Islands fishing communities, and specifically 
the community of Adak and its shoreplant, have seen a decrease in the 
amount of Pacific cod being harvested and delivered. The amount of 
Pacific cod delivered to Aleutian Islands shoreplants has been highly 
variable, which is not conducive to stable shoreside operations. 
Several factors have contributed to this instability, and therefore the 
need for this action, including decreased Pacific cod biomass in the 
Aleutian Islands subarea; the establishment of separate OFLs, ABCs, and 
TACs for Pacific cod in the Bering Sea and the Aleutian Islands; 
changing Steller sea lion protection measures; and changing fishing 
practices in part resulting from rationalization programs that allocate 
catch to specific fishery participants.
    This rule establishes a harvest set-aside in which a portion of the 
Aleutian Islands Pacific cod TAC will be available for harvest by 
vessels directed fishing for Aleutian Islands Pacific cod and 
delivering their catch to Aleutian Islands shoreplants for processing. 
This harvest set-aside applies only if specific notification and 
performance requirements are met, and only during the first few months 
of the fishing year.
    The Council determined and NMFS agrees that a harvest set-aside is 
needed for several reasons: The TAC for Aleutian Islands Pacific cod 
has been significantly lower than predicted so that less Pacific cod is 
available for harvest; the rationalization programs, and particularly 
the Amendment 80 Program, have allowed an influx of processing capacity 
into the Aleutian Islands Pacific cod fishery; and the Aleutian Islands 
communities and shoreplants (Adak) have received almost all of their 
total first wholesale gross revenue from Aleutian Islands Pacific cod.
    This final rule strikes a balance between providing protections for

[[Page 84436]]

fishing communities and ensuring that the fishery sectors have a 
meaningful opportunity to fully harvest their BSAI Pacific cod 
allocations by including several thresholds to prevent a portion of the 
Aleutian Islands Pacific cod TAC from being unharvested. This final 
rule will provide social and economic benefits to, and promote 
stability in, fishery-dependent fishing communities in the Aleutian 
Islands and is responsive to changes in management of the Aleutian 
Islands Pacific cod fishery such as rationalization programs, 
decreasing biomass of Pacific cod, and Steller sea lion protection 
measures that necessitate putting protections in place to protect other 
non-rationalized fisheries.
    This final rule does not modify existing harvest allocations of 
BSAI Pacific cod to participants in the CDQ Program. This final rule 
does not modify existing harvest allocations of BSAI Pacific cod made 
to the nine non-CDQ fishery sectors defined in Sec.  
679.20(a)(7)(ii)(A). Although the nine non-CDQ sectors will continue to 
receive their existing harvest allocations of BSAI Pacific cod, each 
sector's ability to harvest a portion of its BSAI Pacific cod 
allocation in the Aleutian Islands may be affected by this rule.
    The Aleutian Islands shoreplants in Adak and Atka currently are not 
processing Aleutian Islands Pacific cod. However, the protection 
measures and harvest set-aside in this final rule will minimize the 
risk of exclusion from, and maintain opportunities for participation 
in, the Aleutian Islands Pacific cod fishery by Aleutian Islands 
harvesters, shoreplants, and communities when those Aleutian Islands 
communities are able to accept deliveries of and process Aleutian 
Islands Pacific cod.
    This final rule revises regulations to provide additional 
opportunities for harvesters to deliver Aleutian Islands Pacific cod to 
Aleutian Islands shoreplants. Recent Aleutian Islands Pacific cod TACs 
have not been sufficient to allow all sectors to prosecute the Aleutian 
Islands Pacific cod fishery at their historical levels. Without 
protections, Aleutian Islands harvesters, shoreplants, and fishing 
communities may be preempted from the fishery by harvests by CPs, or by 
harvests from CVs delivering their catch to CPs.
    Because of their remote location and limited economic alternatives, 
Aleutian Islands communities rely on harvesting and processing of the 
nearby fishery resources to support and sustain the social and economic 
welfare of their communities. This final rule is intended to be 
directly responsive to National Standard 8 of the Magnuson-Stevens Act 
that states conservation and management measures shall take into 
account the importance of fishery resources to fishing communities in 
order to provide for the sustained participation of such communities, 
and to the extent practicable, minimize adverse economic impacts on 
such communities (16 U.S.C. 1851(a)(8)).

Overview of Measures Implemented by This Rule

    This final rule modifies several aspects of the BSAI Pacific cod 
fishery. This final rule sets aside a portion of the Aleutian Islands 
Pacific cod non-CDQ TAC for harvest by vessels directed fishing for 
Aleutian Islands Pacific cod and delivering their catch to Aleutian 
Islands shoreplants. However, the harvest set-aside applies only if 
specific notification and performance requirements are met, and only 
during the first few months of the fishing year.
    In order to implement Amendment 113, this final rule:
     Defines the term ``Aleutian Islands shoreplant'' in 
regulation;
     Calculates and defines the amount of the Aleutian Islands 
Pacific cod TAC that will be available as a directed fishing allowance 
(DFA) and the amount that will be available as an incidental catch 
allowance (ICA);
     Limits the amount of early season (from January 20 until 
April 1), also known as A-season, Pacific cod that may be harvested by 
the trawl CV sector in the Bering Sea prior to March 21 (Bering Sea 
Trawl CV A-Season Sector Limitation);
     Sets aside some or all of the Aleutian Islands Pacific cod 
non-CDQ DFA for harvest by vessels directed fishing for Aleutian 
Islands Pacific cod and delivering their catch for processing by 
Aleutian Islands shoreplants from January 1 to March 15 (Aleutian 
Islands CV Harvest Set-Aside);
     Requires that either the City of Adak or the City of Atka 
annually notify NMFS of its intent to process Aleutian Islands Pacific 
cod during the upcoming fishing year in order for the Aleutian Islands 
CV Harvest Set-Aside and the Bering Sea Trawl CV A-Season Sector 
Limitation to be effective in the upcoming fishing year; and
     Removes the Bering Sea Trawl CV A-Season Sector Limitation 
and the Aleutian Islands CV Harvest Set-Aside if less than 1,000 metric 
tons (mt) of the harvest set-aside is delivered to (i.e., landed at) 
Aleutian Islands shoreplants on or before February 28, or if the 
harvest set-aside is fully taken before March 15.
    The following sections provide further explanation of the 
regulatory changes made by this rule. Additional detail about the 
rationale for and effect of the regulatory changes in this rule is 
provided in the preamble to the proposed rule and in the Analysis for 
this action.

Summary of Regulatory Changes

Revisions to Definitions at Sec.  679.2

    This final rule adds a definition to Sec.  679.2 for ``Aleutian 
Islands shoreplant'' to mean a processing facility that is physically 
located on land west of 170[deg] W. longitude within the State of 
Alaska (State). This definition is needed because the existing term 
``shoreside processor'' in Sec.  679.2 can include processing vessels 
that are moored or otherwise fixed in a location (i.e., stationary 
floating processors), but not necessarily located on land. This new 
definition provides a clear and consistent term for referencing the 
processors located on land within the Aleutian Islands.

Revisions to General Limitations at Sec.  679.20

    This final rule adds a new paragraph (viii) to Sec.  679.20(a)(7). 
This new paragraph includes the primary regulatory provisions of this 
final rule. The preamble to the proposed rule provides examples to aid 
the reader in understanding how this final rule will apply using 2017 
harvest specifications for BSAI Pacific cod (81 FR 14773, March 18, 
2016). For the remainder of this preamble, unless otherwise specified, 
all references to allocations and apportionments of BSAI Pacific cod 
refer to non-CDQ allocations and apportionments of BSAI Pacific cod.

Calculation of the Aleutian Islands Pacific Cod ICA and DFA

    NMFS will annually specify an ICA and a DFA derived from the 
Aleutian Islands Pacific cod non-CDQ TAC. Each year, during the annual 
harvest specifications process described at Sec.  679.20(c), NMFS will 
specify an amount of Aleutian Islands Pacific cod that NMFS estimates 
will be taken as incidental catch when directed fishing for non-CDQ 
groundfish other than Pacific cod in the Aleutian Islands. This amount 
will be the Aleutian Islands ICA and will be deducted from the Aleutian 
Islands non-CDQ TAC. The amount of the Aleutian Islands non-CDQ TAC 
remaining after subtraction of the Aleutian Islands ICA will be the 
Aleutian Islands DFA.
    NMFS will specify the Aleutian Islands ICA and DFA so that NMFS can

[[Page 84437]]

clearly establish the amount of Aleutian Islands Pacific cod that will 
be used to determine the amount of the Aleutian Islands CV Harvest Set-
Aside described in the following sections of this preamble. The 
specification will also provide the public with notification of the 
amount of the Aleutian Islands non-CDQ TAC that is available for 
directed fishing prior to the start of the fishing season to aid in the 
planning of fishery operations. The Aleutian Islands DFA is the maximum 
amount of Pacific cod available for directed fishing by all non-CDQ 
fishery sectors in all seasons in the Aleutian Islands.
    Although the amount of the Aleutian Islands ICA may vary from year 
to year, NMFS specifies an Aleutian Islands ICA of 2,500 mt for 2017. 
NMFS determined that this amount will be needed to support incidental 
catch of Pacific cod in other Aleutian Islands non-CDQ directed 
groundfish fisheries. In future years, NMFS will specify the Aleutian 
Islands ICA in the annual harvest specifications based on recent and 
anticipated incidental catch of Aleutian Islands Pacific cod in other 
Aleutian Islands non-CDQ directed groundfish fisheries.
Bering Sea Trawl CV A-Season Sector Limitation
    This final rule establishes the Bering Sea Trawl CV A-Season Sector 
Limitation to restrict the amount of the trawl CV sector's A-season 
allocation that can be harvested in the Bering Sea subarea prior to 
March 21. The Bering Sea Trawl CV A-Season Sector Limitation ensures 
that some of the trawl CV sector's A-season allocation remains 
available for harvest in the Aleutian Islands subarea by trawl catcher 
vessels that deliver their catch of Aleutian Islands Pacific cod to 
Aleutian Islands shoreplants for processing. On March 21, the 
restriction on Bering Sea harvest by the trawl CV sector will be lifted 
and the remainder, if any, of the BSAI trawl CV sector's A-season 
allocation can be harvested in either the Bering Sea or the Aleutian 
Islands (if still open to directed fishing for Pacific cod) for 
delivery to any eligible processor for processing.
    The Bering Sea Trawl CV A-Season Sector Limitation will equal the 
lesser of either the Aleutian Islands DFA or 5,000 mt. The Bering Sea 
Trawl CV A-Season Sector Limitation will be equivalent to the Aleutian 
Islands CV Harvest Set-Aside, as discussed in the following section of 
the preamble. The amount of the trawl CV sector's A-season allocation 
that may be harvested in the Bering Sea prior to March 21 will be the 
amount of Pacific cod that remains after deducting the Bering Sea Trawl 
CV A-Season Sector Limitation from the BSAI trawl CV sector A-season 
allocation listed in the annual harvest specifications (and as 
determined at Sec.  679.20(a)(7)(iv)(A)(1)(i)). NMFS will annually 
specify in the annual harvest specifications the Bering Sea Trawl CV A-
Season Sector Limitation and the amount of the trawl CV sector's A-
season allocation that may be harvested in the Bering Sea prior to 
March 21.
    The preamble to the proposed rule provides additional background on 
the factors that the Council and NMFS considered when determining the 
amount and timing of the Bering Sea Trawl CV A-Season Sector Limitation 
and is not repeated here.
Aleutian Islands Catcher Vessel Harvest Set-Aside
    This final rule requires that some or all of the Aleutian Islands 
DFA be set aside for harvest by vessels directed fishing for Aleutian 
Islands Pacific cod and delivering their catch to Aleutian Islands 
shoreplants for processing. This Aleutian Islands CV Harvest Set-Aside 
will be available for harvest by vessels using any authorized gear type 
and that deliver their directed catch of Aleutian Islands Pacific cod 
to Aleutian Islands shoreplants for processing. NMFS will account for 
harvest and processing of Aleutian Islands Pacific cod under the 
Aleutian Islands CV Harvest Set-Aside separate from, and in addition 
to, its accounting of Aleutian Islands Pacific cod catch by the nine 
non-CDQ fishery sectors established in Sec.  679.20(a)(7)(ii). Because 
of this separate accounting, the Aleutian Islands CV Harvest Set-Aside 
will not increase or decrease the amount of BSAI Pacific cod allocated 
to any of the non-CDQ fishery sectors. The Aleutian Islands CV Harvest 
Set-Aside will apply from January 1 until March 15 of each year if 
certain notification and performance measures, described in the 
following section of the preamble, are satisfied.
    The amount of the Aleutian Islands CV Harvest Set-Aside will be 
calculated as described above for the Bering Sea Trawl CV A-Season 
Sector Limitation. It will be an amount equal to the lesser of either 
the Aleutian Islands DFA or 5,000 mt. NMFS will notify the public of 
the Aleutian Islands CV Harvest Set-Aside through the annual harvest 
specifications process.
    When the Aleutian Islands CV Harvest Set-Aside is set equal to the 
Aleutian Islands DFA and the set-aside is in effect, directed fishing 
for Pacific cod in the Aleutian Islands may only be conducted by 
vessels that deliver their catch of Aleutian Islands Pacific cod to 
Aleutian Islands shoreplants for processing. Vessels that do not want 
to deliver their directed catch of Aleutian Islands Pacific cod to 
Aleutian Islands shoreplants for processing will be prohibited from 
directed fishing for Pacific cod in the Aleutian Islands when the 
Aleutian Islands CV Harvest Set-Aside is in effect. These vessels will 
be permitted to conduct directed fishing for groundfish other than 
Pacific cod in the Aleutian Islands when the Aleutian Islands CV 
Harvest Set-Aside is in effect, and their incidental harvests of 
Pacific cod will accrue toward the Aleutian Islands ICA. CPs will be 
permitted to conduct directed fishing for Pacific cod in the Aleutian 
Islands when the Aleutian Islands CV Harvest Set-Aside side is in 
effect as long as they act only as CVs and deliver their directed catch 
of Aleutian Islands Pacific cod to Aleutian Islands shoreplants for 
processing. CPs also will be permitted to retain and process Aleutian 
Islands Pacific cod that is caught as incidental catch while directed 
fishing for groundfish other than Pacific cod, and those incidental 
harvests of Pacific cod will accrue toward the Aleutian Islands ICA.
    When the Aleutian Islands DFA is greater than 5,000 mt, and 
therefore the Aleutian Islands CV Harvest Set-Aside is set equal to 
5,000 mt, the difference between the DFA and the Aleutian Islands CV 
Harvest Set-Aside will be available for directed fishing by all non-CDQ 
fishery sectors with sufficient A-season allocations and may be 
processed by any eligible processor. This difference is called the 
``Aleutian Islands Unrestricted Fishery.'' In years when there is both 
an Aleutian Islands CV Harvest Set-Aside and an Aleutian Islands 
Unrestricted Fishery, vessels may conduct directed fishing for Pacific 
cod in the Aleutian Islands and deliver their catch to Aleutian Islands 
shoreplants or to any eligible processor for processing as long as the 
Aleutian Islands Unrestricted Fishery is open to directed fishing. CPs 
will be permitted to conduct directed fishing for Pacific cod in the 
Aleutian Islands and process that directed catch as long as the 
Aleutian Islands Unrestricted Fishery is open to directed fishing. NMFS 
will determine whether the Aleutian Islands Unrestricted Fishery is 
sufficient to support a directed fishery and will notify the public 
through a notice in the Federal Register.
    While the Aleutian Islands CV Harvest Set-Aside is in effect, NMFS 
will account for Aleutian Islands Pacific cod caught by vessels against 
the appropriate fishery sector allocation, the ICA or the DFA, and the 
Aleutian

[[Page 84438]]

Islands CV Harvest Set-Aside. Examples illustrating this accounting are 
provided in the preamble of the proposed rule.
    If certain notification and performance measures are met, the 
Aleutian Islands CV Harvest Set-Aside will be in effect from January 1 
until March 15 of each year. If the entire set-aside is harvested and 
delivered prior to March 15, NMFS will lift the Bering Sea Trawl CV A-
Season Sector Limitation and Aleutian Islands CV Harvest Set-Aside as 
soon as possible. The Aleutian Islands CV Harvest Set-Aside will end at 
noon on March 15 even if the entire set-aside has not been harvested 
and delivered to Aleutian Islands shoreplants.
    When the set-aside ends, any remaining Aleutian Islands DFA may be 
harvested by any non-CDQ fishery sector with remaining A-season 
allocation, and the harvest may be delivered to any eligible processor. 
If a vessel has been directed fishing for Aleutian Islands Pacific cod, 
but has not yet delivered that Pacific cod for processing when the 
harvest set-aside is lifted, that vessel may deliver its Pacific cod to 
any eligible processor. If a vessel has been directed fishing for 
Aleutian Islands Pacific cod, but has not yet delivered that Pacific 
cod for processing when the Aleutian Islands Unrestricted Fishery 
closes, but the Aleutian Islands CV Harvest Set-Aside is still in 
effect, it will be required to deliver that Pacific cod to an Aleutian 
Islands shoreplant for processing or be in violation of the directed 
fishing closure.
    The preamble to the proposed rule provides additional background on 
the factors that the Council and NMFS considered when determining the 
amount and timing of the Aleutian Islands CV Harvest Set-Aside and is 
not repeated here.
Measures To Prevent Stranding of Aleutian Islands Non-CDQ Pacific Cod 
TAC
    Stranding is a term sometimes used to describe TAC that remains 
unharvested due to regulations. This final rule includes performance 
measures intended to prevent the stranding of Aleutian Islands non-CDQ 
Pacific cod TAC if the set-aside is not requested, if limited 
processing occurs at Aleutian Islands shoreplants, or if the Aleutian 
Islands CV Harvest Set-Aside is taken before March 15.
    The first performance measure requires that either the City Manager 
of the City of Adak or the City Administrator of the City of Atka 
notify NMFS of the city's intent to process Aleutian Islands Pacific 
cod in the upcoming fishing year. If neither city notifies NMFS in 
accordance with regulatory requirements described below, the Bering Sea 
Trawl CV A-Season Sector Limitation and the Aleutian Islands CV Harvest 
Set-Aside will not be in effect for the upcoming fishing year.
    This final rule requires annual notification to NMFS in the form of 
a letter or memorandum signed by the City Manager of Adak or the City 
Administrator of Atka stating the city's intent to process Aleutian 
Islands Pacific cod in the upcoming fishing year. This signed letter or 
memorandum is the official notification of intent. The official 
notification of intent must be postmarked no later than December 8, 
2016, and no later than October 31 for each year after 2016. The 
official notification of intent must be submitted to the NMFS Alaska 
Regional Administrator by certified mail through the United States 
Postal Service. The City Manager of Adak or City Administrator of Atka 
must also submit an electronic copy of the official notification of 
intent and the certified mail receipt with postmark via email to NMFS 
([email protected]) no later than December 8, 2016, and no 
later than October 31 for each year after 2016. Email submission of 
electronic copies of the official notification of intent and the 
certified mail receipt with postmark will provide NMFS with the timely 
information it needs to manage the upcoming fisheries. Email 
notification is in addition to notification via certified U.S. Mail and 
does not replace the requirement for notification through the U.S. 
Postal Service.
    A city's notification of intent to process Aleutian Islands Pacific 
cod must contain the following information: Date, name of city, a 
statement of intent to process Aleutian Islands Pacific cod, statement 
of calendar year during which the city intends to process Aleutian 
Islands Pacific cod, and the signature of and contact information for 
the City Manager or City Administrator of the city whose shoreplant is 
intending to process Aleutian Islands Pacific cod.
    On or shortly after December 8, 2016, and November 1 for each year 
after 2016, the Regional Administrator will send a signed and dated 
letter either confirming receipt of the city's notification of their 
intent to process Aleutian Islands Pacific cod, or informing the city 
that notification was not received by the deadline.
    While this final rule will make the set-aside available for 
processing by any shoreplant west of 170[deg] W. longitude in the 
Aleutian Islands, the notification requirement is required from either 
Adak or Atka and not another city that might have an Aleutian Islands 
shoreplant in the future. The Council and NMFS's rationale for this is 
provided in the preamble of the proposed rule.
    The second performance measure removes the Bering Sea Trawl CV A-
Season Sector Limitation and the Aleutian Islands CV Harvest Set-Aside 
for the remainder of the A-season if less than 1,000 mt of the Aleutian 
Islands CV Harvest Set-Aside is delivered to Aleutian Islands 
shoreplants by February 28. This performance measure will lift the 
Aleutian Islands CV Harvest Set-Aside and make any remaining amount of 
the set-aside available to all participants if Aleutian Islands 
shoreplants are unable to process Pacific cod or if too few or no 
vessels decide to participate in the set-aside fishery.
    The third performance measure suspends the Bering Sea Trawl CV A-
Season Sector Limitation for the remainder of the year if the entire 
Aleutian Islands CV Harvest Set-Aside (5,000 mt in 2017) is fully 
harvested and delivered to Aleutian Islands shoreplants before March 
15.
    The preamble to the proposed rule provides additional background on 
the factors considered by the Council and NMFS when establishing these 
performance standards and is not repeated here.

Harvest Specifications Process To Announce BSAI A-Season Pacific Cod 
Limits Implemented by Amendment 113

    During the annual harvest specifications process described in the 
proposed rule, NMFS will publish in the proposed harvest specifications 
the amounts for the Aleutian Islands ICA, DFA, CV Harvest Set-Aside, 
and Unrestricted Fishery, as well as the Bering Sea Trawl CV A-Season 
Sector Limitation, and the amount available for harvest by trawl CVs in 
the Bering Sea while the set-aside is in effect. These amounts will be 
published in a separate table to supplement the table in the harvest 
specifications that describes the final gear shares and allowances of 
the BSAI Pacific cod TAC for the upcoming year.
    NMFS also will publish a notice in the Federal Register shortly 
after December 8, 2016, and November 1 for each year after 2016, 
announcing whether the Aleutian Islands CV Harvest Set-Aside and Bering 
Sea Trawl CV A-Season Sector Limitation will be in effect for the 
upcoming fishing year, and whether the harvest limits in the 
supplemental table will apply. If necessary, NMFS will publish in the 
Federal Register an adjustment of the BSAI A-season Pacific cod limits 
for the

[[Page 84439]]

upcoming year after the Council adopts the harvest specifications in 
December.

Amendment of the 2017 Final Harvest Specifications for the Groundfish 
Fishery of the BSAI

    With this final rule, NMFS amends the 2017 final harvest 
specifications for the groundfish fishery of the BSAI by adding the 
following Table 8a, which specifies the Aleutian Islands ICA, DFA, CV 
Harvest Set-Aside, and Unrestricted Fishery, as well as the Bering Sea 
Trawl CV A-Season Sector Limitation. If NMFS receives timely 
notification of intent to process from either Adak or Atka, the harvest 
limits in Table 8a will be in effect in 2017.

   Table 8a--2017 BSAI A-Season Pacific Cod Limits if Aleutian Islands
                Shoreplants Intend To Process Pacific Cod
------------------------------------------------------------------------
 2017 Allocations under Aleutian Islands CV Harvest Set-
                          Aside                            Amount  (mt)
------------------------------------------------------------------------
AI non-CDQ TAC..........................................          11,465
AI ICA..................................................           2,500
AI DFA..................................................           8,965
BS non-CDQ TAC..........................................         213,141
BSAI Trawl CV A-Season Allocation.......................          36,732
BSAI Trawl CV A-Season Allocation minus Sector                    31,732
 Limitation \1\.........................................
BS Trawl CV A-Season Sector Limitation..................           5,000
AI CV Harvest Set-Aside.................................           5,000
AI Unrestricted Fishery.................................           3,965
------------------------------------------------------------------------
\1\ This is the amount of the BSAI trawl CV A-season allocation that may
  be harvested in the Bering Sea prior to March 21.

Changes From the Proposed Rule

    NMFS made three changes to the regulatory text from the proposed 
rule. Two of these changes are in response to comments received on the 
proposed rule, and one change is made to address administration of this 
final rule in 2016.
    First, this final rule modifies Sec.  679.20(a)(7)(viii)(E)(4) in 
response to Comment 8. The words ``prior to'' are changed to ``on or 
before'' to reflect the Council's intent. See the response to Comment 8 
for the complete justification for this change.
    Second, this final rule modifies Sec.  679.20(a)(7)(viii)(D) and 
(E) to specify that the City Manager of Adak and the City Administrator 
of Atka are the individuals responsible for notifying NMFS of their 
city's intent to process Pacific cod in the upcoming year. See the 
response to Comment 5 for the complete justification for this change.
    Third, this final rule modifies Sec.  679.20(a)(7)(viii) to include 
a separate notification deadline for 2016 for the City Manager of Adak 
or the City Administrator of Atka to notify NMFS of the intent to 
process Aleutian Islands Pacific cod in 2017. This final rule requires 
that the official notification of intent to process for 2017 be 
postmarked and emailed no later than December 8, 2016. This final rule 
clarifies that for all years after 2016, this annual notification must 
be postmarked and emailed no later than October 31.
    This change is required to ensure that NMFS provides an opportunity 
for the City of Adak and the City of Atka to notify NMFS of their 
intent to process after this final rule has published. Because this 
final rule will publish and become effective after October 31, 2016, 
the City of Adak and the City of Atka could not provide timely 
notification to NMFS of their intent to process in 2017 without this 
change in the notification deadline. This change enables the cities of 
Adak and Atka, and vessels delivering to Aleutian Island shoreplants, 
to receive the benefits of this final rule in 2017 that would otherwise 
be foregone without this change. NMFS is providing 15 days after the 
publication of this rule for the City of Adak or the City of Atka to 
notify NMFS so that the cities have adequate time after the publication 
of this final rule to prepare and submit their official notification of 
intent.
    NMFS determined that this change will not affect participants in 
the Aleutian Islands Pacific cod fishery in ways not previously 
considered and analyzed. The 2016 deadline for submitting notification 
of intent to process falls between the two dates considered by the 
Council: Prior to November 1 or prior to December 15. In considering 
the effect these notification deadlines, the Analysis focuses on the 
ability of the industry to react if there are no Aleutian Islands 
shoreplants operating in the upcoming fishing year, stating that 
selection of the earlier deadline would provide more time for the 
industry to make the necessary arrangements to harvest and process the 
non-CDQ Aleutian Islands Pacific cod DFA, and that in general, more 
notification concerning processing of Aleutian Islands Pacific cod in 
the upcoming fishing year will help to reduce the risk of unharvested 
non-CDQ Aleutian Islands Pacific cod TAC. Even so, the Analysis 
concludes that both date options would give fishery participants 
sufficient time to plan and prepare before the A-season begins and that 
ideally notice of intent to process would be provided to NMFS by a date 
near the end of the December Council meeting. NMFS continues to agree 
with the Council that October 31 is the preferred deadline of the two 
dates considered, and this final rule establishes October 31 as the 
deadline for submission of notification of intent for each fishing year 
after 2016. However, NMFS has determined that the notification deadline 
for 2016 will allow Adak and Atka an opportunity to submit notification 
prior to the start of the 2017 fishing year, thus providing an 
opportunity for the set-aside to be effective in 2017, rather than 
having to wait an additional year. Additionally, the 2016 notification 
deadline will provide fishery participants with sufficient time to plan 
and prepare before the A-season begins because NMFS will be able to 
notify fishery participants as to whether the set-aside will be in 
effect for 2017 prior to December 15 and prior to the end of the 
December Council meeting. In addition, this change is applicable only 
for the first year of implementation of this final rule, and will 
therefore have a limited and temporary effect.

Responses to Comments

    NMFS received 35 unique comments on Amendment 113 and the proposed 
rule in 18 comment letters from 16 different commenters. The 16 
commenters consisted of 2 individuals; 7 companies representing CPs; 
the

[[Page 84440]]

Alaska Department of Fish and Game; 1 fish processing company; 1 CDQ 
group; 2 community development corporations, 1 Aleutian Islands 
municipal government; and 1 non-profit conservation organization. Of 
the 16 commenters, 9 explicitly supported adoption of the proposed 
harvest set-aside. Opponents were companies representing CPs whose 
vessels could be restricted by this action.
    In responding to these comments, when NMFS refers to Amendment 113, 
unless otherwise noted, NMFS means Amendment 113 and this final rule 
implementing Amendment 113.

General Comments

    Comment 1: This action is unnecessary. When Adak has an operational 
plant, it received a significant portion of the Aleutian Islands 
Pacific cod catch without delivery requirements.
    Response 1: In February 2015, the Council identified in a modified 
problem statement the purpose and need for protections for Aleutian 
Islands communities as a result of the implementation of 
rationalization programs, the BSAI Pacific cod TAC split, and 
relatively low Pacific cod abundance in the Aleutian Islands, among 
other factors (Section 2.2 of the Analysis). The Council stated that 
these factors have ``. . . increased the risk that the historical share 
of BSAI cod of other industry participants and communities that depend 
on shoreplant processing in the region may be diminished.'' The 
Council's rationale for its preferred alternative stated that this 
action ``. . . would provide benefits and stability to fishery 
dependent communities in the Aleutian Islands and is responsive to 
changes in management regimes like rationalization programs that 
necessitate putting protections in place to protect other non-
rationalized fisheries'' (Section 2.4.3 of the Analysis). The Council's 
purpose and need statement, the proposed rule, and the Analysis 
describe the range of factors that have affected delivery patterns in 
the Aleutian Islands that could limit opportunities for Aleutian 
Islands shoreplants, harvesters delivering to Aleutian Islands 
shoreplants, and the communities in the Aleutian Islands. Thorough 
descriptions of the factors necessitating this action, and the 
Council's rationale are provided in the ``Need for This Proposed Rule'' 
section of the proposed rule and the Analysis and are not repeated 
here.
    In years when the Adak shoreplant was not operational, the offshore 
processing sector (primarily CPs) was able to process the entire 
Aleutian Islands TAC (Section 2.7.1.2 of the Analysis), demonstrating 
that the offshore sector is capable of fully harvesting available catch 
and preempting the onshore sector's access to the fishery. Table 2-32 
of the Analysis shows that prior to 2008, the majority of the Aleutian 
Islands Pacific cod processed by the offshore sector originated from CP 
harvest, but after 2008, CV deliveries of Aleutian Islands Pacific cod 
to CPs played a more prominent role in the offshore processing of 
Aleutian Islands Pacific cod. Although Aleutian Islands shoreplants 
operating in Adak have received Pacific cod without a harvest set-aside 
in the past, NMFS and the Council determined that this action is 
necessary to minimize the risk of diminished share of Aleutian Islands 
Pacific cod to Aleutian Islands communities dependent on the fishery 
and to provide additional stability to promote and sustain Aleutian 
Islands shoreplants, harvesters delivering to Aleutian Islands 
shoreplants, and the communities in the Aleutian Islands.
    Comment 2: The proposed rule assumes that the increase in offshore 
processing since the implementation of rationalization programs was a 
major cause of instability in onshore processing in the Aleutian 
Islands, but this is not true. There have been long-standing challenges 
to the viability of shore-based processing in the Aleutian Islands such 
as ownership changes of Aleutian Islands shoreplants, Steller sea lion 
protection measures, plant insolvency, energy costs, employment 
challenges, market conditions, and product transportation difficulties.
    Response 2: As explained in the ``Need for This Proposed Rule'' 
section of the preamble to the proposed rule and in Section 2.2 of the 
Analysis, the Council and NMFS recognize that several factors have 
contributed to instability in processing operations in the Aleutian 
Islands, including decreased Pacific cod biomass in the Aleutian 
Islands subarea; the establishment of separate OFLs, ABCs, and TACs for 
Pacific cod in the Bering Sea and the Aleutian Islands (referred to as 
the ``BSAI TAC split''); changing Steller sea lion protection measures; 
historical volatility in the Aleutian Islands shoreplant processing 
sector; and changing fishing practices in part resulting from 
rationalization programs. The Council, NMFS and this rule do not assume 
that rationalization programs are the primary cause of this 
instability, but rather, one of many contributing factors.
    Comment 3: This is a wipe-out plan for cod. It will wipe out cod 
just as this agency did in Maine. Some other system has to be set up 
for economic sustainability for people in the area. Stop this plan now.
    Response 3: NMFS disagrees that Amendment 113 will wipe out Pacific 
cod. This action will not change the TAC for Aleutian Islands Pacific 
cod, or conservation and management measures that ensure that harvests 
of Aleutian Islands Pacific cod do not exceed established OFL, ABC, or 
TAC limits. Aleutian Islands Pacific cod is managed to a TAC that is 
set at or below the ABC and the stock is neither overfished nor 
approaching an overfished condition (see Section 3.3 of the Analysis).
    Comment 4: There is no provision in the proposed rule to remove the 
Aleutian Islands CV Harvest Set-Aside from the FMP and Federal 
regulations if no on-shore processing activity occurs for a number of 
years. Does the set-aside continue indefinitely? What would prompt 
Council re-examination?
    Response 4: The commenter is correct; there is no provision in 
Amendment 113 or this rule that would end, or sunset, the Aleutian 
Islands CV Harvest Set-Aside if Aleutian Islands shoreplants are not 
operational for a specified number of years. However, under the 
performance measures established by this final rule, the Aleutian 
Islands CV Harvest Set-Aside is effective in a fishing year only if 
timely and complete notification of intent to process from the City of 
Adak or the City of Atka is received by NMFS. Presumably, if there is 
not likely to be an operational Aleutian Islands shoreplant in the 
upcoming fishing year, these cities would not submit a notification to 
NMFS. Also, in order for the set-aside to continue to be effective 
after February 28, a minimum of 1,000 mt of Aleutian Islands Pacific 
cod must be delivered to Aleutian Islands shoreplants on or before 
February 28. If, in the future, it appears that the Aleutian Islands CV 
Harvest Set-Aside is not being used, or Aleutian Islands shoreplants 
cannot meet the demand, the Council could consider and, if warranted, 
initiate an action to revise or remove the provisions of Amendment 113 
and its implementing regulations.
    Comment 5: The proposed rule grants de facto fishery management 
authority to municipal officials, by requiring them to provide notice 
to NMFS of the Aleutian Islands shoreplants intent to process Pacific 
cod in the upcoming year. NMFS is surrendering the determination of 
whether a shore plant is prepared to process Pacific cod to a community 
representative who is not a regulated participant in the fishery. This 
is granting too much power to one

[[Page 84441]]

individual. The city manager could use this authority to undermine 
certain businesses or to grant favors. Additionally, Atka does not have 
a city manager.
    Response 5: The Council specified that the City of Adak or the City 
of Atka should be the entity to provide official notification to NMFS 
of the community's intent to process Pacific cod, but it did not 
specify who from Adak or Atka should provide such notification (Section 
2.7.2.4 of the Analysis). The Analysis describes that if the 
notification requirement is implemented, NMFS could specify the person 
representing the city who should provide the notification.
    The commenter notes that the City of Atka does not have a city 
manager. Technically, that is accurate: Atka has a city administrator. 
Title 29 of the Alaska Statutes explains the distinctions between a 
city manager and a city administrator. In the manager form of 
municipality, the city manager is the chief executive. In a strong-
mayor form of municipality, the mayor is the chief executive and the 
city administrator can exercise powers or duties only as delegated by 
the mayor and city council. In either case, the role of the manager or 
administrator is to represent the interests of the city, city council, 
and mayor. The language in the final rule has been changed to reflect 
that the city administrator is the person responsible for providing 
notification to NMFS for Atka.
    This type of designation is not unprecedented. For example, in an 
action to create Community Quota Entities (CQE) for the Halibut and 
Sablefish Individual Fishing Quota Program (Amendment 66 to the Gulf of 
Alaska FMP, 69 FR 23681, April 30, 2004), NMFS specified which 
governing body would be responsible for proposing a potential CQE to 
NMFS, depending on the governance structure of the particular 
community. For communities incorporated as municipalities, the 
governing body identified was the city council. In communities 
represented by tribal governments, the governing body was the non-
profit entity. In similar fashion, and as described in the proposed 
rule for this action, NMFS determined that the city manager or 
administrator would be the appropriate person responsible for 
submitting the required notification to NMFS.
    While ownership and management of fish processing facilities may 
change, it is likely that there will always be someone performing the 
role of city manager or administrator for Adak and Atka. As elected or 
appointed officials, these representatives are bound by oath of office 
to uphold the wishes of their constituents. Currently, both the City of 
Adak and the City of Atka execute, in good faith, waivers for the 
delivery requirement for Western Aleutian Islands golden king crab when 
sufficient processing capacity does not exist in those communities. 
These cities issue the waiver knowing that it is not in the 
communities' best interests to strand the crab resource. The 
notification requirement under Amendment 113 is similar, and it is not 
clear how the requirement to notify NMFS of the communities' intent to 
process Pacific cod grants too much power to the city manager or 
administrator. NMFS expects that the city manager or administrator will 
be in communication with the shoreplant manager and local fishing fleet 
prior to the notification deadline to ensure that the shoreplant will 
be able to accept deliveries of Pacific cod once the set-aside goes 
into effect. If, for some reason, the shoreplant does not operate as 
anticipated, the 1,000 mt minimum processing performance measure would 
not be met by February 28 and the set-aside would be lifted.
    NMFS does not consider the notification requirement to be a de 
facto grant of fishery management authority to the city manager or 
administrator. The Council and NMFS have established the fishery 
management policy with regard to Aleutian Islands Pacific cod. The 
intent of the Council and NMFS with Amendment 113 and this final rule 
is to have an Aleutian Islands CV Harvest Set-Aside in place for 
Aleutian Islands fishing communities, and the harvesters and 
shoreplants that are part of those communities, to utilize. Recognizing 
that there may be years when Aleutian Islands shoreplants may not be 
operational, the notification provision was a fishery management 
decision by the Council and NMFS to provide for an orderly start to the 
fishing year and as a way to prevent the set-aside from becoming 
effective if neither city intends to process in the upcoming fishing 
year. The city manager or administrator is the person from whom NMFS 
will expect to receive notification of the city's intent to process 
Pacific cod and to whom NMFS will confirm that notification has been 
received. Under this final rule, the city manager or administrator is 
providing information to NMFS on anticipated processing activities 
based on knowledge gained from Aleutian Islands shoreplants in their 
communities. City managers and administrators are not delegated any 
authority to open or close fisheries, assess catch amounts, or take 
other actions provided in regulation. Notification is not to be 
confused with an active role in administering regulations. NMFS is 
ultimately responsible for taking any management actions once a 
notification has been received.
    Comment 6: If this rule is implemented, NMFS will notify Adak or 
Atka city managers if they have not received their notifications of 
intent to process. This seems at odds with other programs that have 
notification dates, such as submission of annual cooperative 
notifications to NMFS. There is no regulatory language that provides 
for NMFS to notify the entity or person that it has not received 
cooperative information regarding the next year's intent to process.
    Response 6: The commenter is referring to the regulatory language 
at (a)(7)(viii)(D)(3) which explains how NMFS will provide confirmation 
to the City Manager of the City of Adak or the City Administrator of 
the City of Atka if their notification of intent to process Aleutian 
Islands Pacific cod has been received or not. This confirmation is to 
let the city know that the set-aside will or will not be in effect for 
the upcoming year. Similarly, NMFS will publish a notice in the Federal 
Register to inform the public whether the set-aside will be in effect. 
NMFS will not offer these cities additional time to provide 
notification if it was not received by the deadline and according to 
the requirements stated in regulations.
    Comment 7: NMFS received 11 comment letters from 9 different 
entities in support of Amendment 113 and its implementing regulations. 
In general, the comments emphasized that three interacting issues have 
affected the viability of shoreside operations in the Aleutian Islands: 
the BSAI Pacific cod biomass estimates and TAC split, Steller sea lion 
protection measures, and rationalization programs. The commenters noted 
that fish processing is the core economic driver for the communities of 
Adak and Atka and that these communities have been negatively impacted 
by prior management actions. They stressed that Aleutian Islands 
communities, Adak and Atka in particular, need the kind of protections 
that the Council has provided to communities in the Gulf of Alaska 
(GOA) and Bering Sea for pollock, and to GOA communities for Pacific 
cod by limiting the amount that can be delivered either inshore or 
offshore. These commenters considered stable access to at least 5,000 
mt of Aleutian Islands Pacific cod from the Federal

[[Page 84442]]

fishery essential for maintaining viable communities in Adak and Atka. 
These commenters concluded that this final rule provides community 
protections for shorebased processing in the Aleutian Islands 
management area that are critical to the survival of Aleutian Islands 
communities.
    Response 7: NMFS acknowledges the comments in support of Amendment 
113. The Secretary, through her designee, the Assistant Administrator 
for Fisheries, approved Amendment 113 on October 17, 2016, and 
implements Amendment 113 with this final rule. The Secretary concluded 
that the Aleutian Islands CV Harvest Set-Aside in Amendment 113 is 
consistent with the Magnuson-Stevens Act, including the National 
Standards, and other applicable law.
    Comment 8: The proposed regulatory language for the minimum 
Aleutian Islands shoreplant landing requirement at Sec.  
679.20(a)(7)(viii)(E)(4) states that ``if less than 1,000 mt of the 
Aleutian Islands Catcher Vessel Harvest Set-Aside is landed at Aleutian 
Islands shoreplants prior to February 28, then paragraphs 
(a)(7)(viii)(E)(1) for the Bering Sea Trawl CV A-season Sector 
Limitation and (2) for the Aleutian Islands CV Harvest Set-Aside will 
not apply for the remainder of the fishing year.'' However, the 
preamble to the proposed rule and the Council motion clearly state that 
this performance measure must be met ``by'' February 28. This change in 
the proposed regulatory language from the Council's motion would give 
Aleutian Islands shoreplants one less day to fulfill the minimum 
delivery requirements. This one-day difference is not insignificant to 
Aleutian Islands shoreplants. An average of 178 mt of Pacific cod was 
landed at Adak on February 28 from 2002 through 2009. Landings on 
February 28 represent a substantial portion of the proposed 1,000-mt 
minimum landing requirement performance measure. The commenters request 
that the proposed regulatory language at Sec.  679.20(a)(7)(viii)(E)(4) 
be changed so that landings made ``on or before'' February 28 will 
count toward the performance measure threshold.
    Response 8: NMFS agrees. The Council motion, the preamble to the 
proposed rule, the Analysis, the FMP amendment text, and the notice of 
availability for the FMP amendment all state that 1,000 mt must be 
landed ``by,'' not ``prior to,'' February 28. The proposed regulatory 
language was inadvertently written in a way that contradicts the 
Council's intent for this performance measure. Inclusion of February 28 
in the minimum landings period is important and necessary. As noted in 
Section 2.7.2.5 of the Analysis, Aleutian Islands Pacific cod tend to 
aggregate in late February to early March, and these aggregations are 
optimal for efficient trawl fishing. NMFS has changed Sec.  
679.20(a)(7)(viii)(E)(4) to clarify that landings made ``on or before'' 
February 28, rather than ``prior to'' February 28, will be used to 
determine whether the minimum landings requirement has been met.
    Comment 9: As a longtime, small boat, Aleutian Islands fisherman, 
it is vital to my longline operation and to other small and entry level 
vessel owners to have a stable shoreside processing facility in the 
Aleutian Islands. Amendment 113 will create numerous opportunities for 
small boats and the community of Adak.
    Response 9: NMFS acknowledges the support for this action.
    Comment 10: We support solutions that optimize and create 
sustainable social, economic, and conservation outcomes. Amendment 113 
and this final rule will help the economic sustainability of Adak and 
Atka and will help the aspirations of the Aleut people to repopulate 
some of the islands of the western Aleutians. Amendment 113 and this 
final rule may also improve the conservation and ecosystem 
sustainability of the area. Giving the local inhabitants a larger 
financial stake in the sustainability of the local ecosystem is an 
important step in a long process leading to better conservation. We 
firmly believe that where local, and particularly Alaska Natives, have 
more control over resource extraction, the conservation outcome is 
likely to be better.
    Response 10: NMFS acknowledges the comment and the support for 
Amendment 113 and this final rule.
    Comment 11: Trawl vessels catch large quantities of vulnerable deep 
sea corals and sponges in the area. Shifting to other gear types in the 
Aleutian Islands Pacific cod fishery may help protect these vulnerable 
species.
    Response 11: NMFS acknowledges the comment but notes that this 
final rule does not modify the areas or types of gear that can be used 
to harvest fishery resources in the Aleutian Islands.
    Comment 12: There is an error in the fourth row of Table 4 in the 
preamble of the proposed rule. The fourth row in Table 4 refers to the 
``BSAI non-CDQ TAC.'' This row should have read ``BS non-CDQ TAC.''
    Response 12: NMFS agrees that the fourth row in Table 4 of the 
proposed rule preamble should have read ``BS non-CDQ TAC.'' The amount 
of Pacific cod proposed for the BS non-CDQ TAC in the fourth row of 
Table 4 was accurate. This final rule modifies the final 2016 and 2017 
harvest specifications to add a supplemental table, Table 8a, that 
provides the 2017 catch limits for Pacific cod under Amendment 113 and 
this final rule. NMFS will publish a notice in the Federal Register in 
December 2016 if there will be any changes to these amounts. NMFS will 
also publish a notice in the Federal Register to inform the public if 
the Aleutian Islands CV Harvest Set-Aside and Bering Sea Trawl Catcher 
Vessel Sector Limitation will be in effect in 2017. Table 8a displays 
the correct name of the allocation and the correct amount. No changes 
to the regulatory text are necessary in response to this comment.
    Comment 13: The agency has not followed the requisite process under 
the National Environmental Policy Act (NEPA). In particular, an 
environmental impact statement (EIS) should have been completed. The 
action is clearly controversial, as it has been under consideration for 
over 8 years in the Council process. A more thorough review might have 
compelled NMFS to reject this action.
    Response 13: According to NEPA and Council on Environmental Quality 
(CEQ) regulations at 40 CFR 1502.3, an EIS is required when a fishery 
management action may significantly affect the quality of the human 
environment. Determining whether an action may significantly affect the 
quality of the human environment requires considerations of both 
context and intensity, and regulations at 40 CFR 1508.27(b) list 
several factors that are to be considered in evaluating the intensity 
of an action. One of these factors is the degree to which the effects 
on the quality of the human environment are likely to be highly 
controversial (40 CFR 1508.27(b)(4)). Before deciding whether to 
complete an EIS, agencies may prepare an EA to determine whether an EIS 
must be prepared or a finding of no significant impact (FONSI) can be 
made (40 CFR 1501.3 and 1508.9). If the EA results in a FONSI, an EIS 
is not needed.
    Courts have held that an action is ``highly controversial'' when 
there is a substantial dispute about the size, nature, or effect of the 
action, or when substantial questions are raised as to whether a 
proposed action may cause significant degradation of some human 
environmental factor. Courts have also held that the existence of 
opposition to an action does not raise the level of controversy to the 
point that an EIS is required. Additionally, as stated in 40

[[Page 84443]]

CFR 1508.14 and in Section 3 of the Analysis, economic and social 
impacts by themselves are not sufficient to require the preparation of 
an EIS.
    In accordance with NEPA and the CEQ regulations, the Council and 
NMFS appropriately prepared an EA for this action, which analyzes the 
potential effects of the action on individual resource components, as 
well as the potential cumulative effects. The EA was prepared using the 
best available scientific information. Using the information and 
analysis in the EA, the Council and NMFS reviewed the potential impacts 
of this action on the human environment as required under NEPA. After 
reviewing the impacts of this action, the Regional Administrator 
prepared and signed a FONSI, determining that the action will not 
result in significant impacts to the quality of the human environment, 
and further analysis in an EIS is not needed. NMFS determined that the 
action will make relatively minor changes to the timing and location of 
fishing for Pacific cod by vessels in the BSAI and that no significant 
changes in total harvests or when, where, and how fishing occurs are 
expected with the action.
    The commenter implies that the length of time it took the Council 
to consider and take final action on Aleutian Islands community 
protection measures makes Amendment 113 and the regulations inherently 
controversial and therefore requires the preparation of an EIS. NMFS 
disagrees that the mere length of time this action was under 
consideration by the Council is indicative of a level of controversy 
that requires the preparation of an EIS. The implementation of several 
rationalization programs, Steller sea lion protection measures, the 
BSAI TAC split, and decreasing biomass of Aleutian Islands Pacific cod, 
all of which occurred while the Council was considering community 
protection measures for the Aleutian Islands, considerably changed the 
way in which the BSAI Pacific cod fishery was managed and conducted by 
participants. The Council reasonably wanted to examine and understand 
the effects these changes would have on the BSAI Pacific cod fishery 
before taking final action. After examining the effects of these 
changes on Aleutian Islands communities, the Council determined that 
the community protections that will be implemented by Amendment 113 and 
this final rule are warranted and necessary. The effects of this action 
on the quality of the human environment are not in dispute. To the 
extent that there has been controversy over, or opposition to, the 
action, the controversy or opposition has been largely related to 
potential economic and social impacts which do not require the 
preparation of an EIS.

Comments Related to the Magnuson-Stevens Act and the National Standards

    Comment 14: National Standard 4 of the Magnuson-Steven Act states, 
``Conservation and management measures shall not discriminate between 
residents of different states. If it becomes necessary to allocate or 
assign fishing privileges among various United States fishermen, such 
allocation shall be (A) fair and equitable to all such fishermen; (B) 
reasonably calculated to promote conservation; and (C) carried out in 
such manner that no particular individual, corporation, or other entity 
acquires an excessive share of such privileges.'' Amendment 113 and 
this final rule violate National Standard 4. In fact, a 2009 letter 
from Acting Regional Administrator Mecum to North Pacific Fishery 
Management Council Chair Olson noted that the proposed set-aside could 
violate National Standard 4's requirements that allocations be fair and 
equitable and do not create excessive shares. They are not fair and 
equitable, do not promote conservation, and would allocate an excessive 
share to a particular entity. The plant in Atka has never processed cod 
and has no historical dependency on the Federal non-CDQ Aleutian 
Islands Pacific cod fishery. Adak is the sole entity that will benefit 
from this action. Adak would receive an excessive share, i.e., the 
entire Aleutian Islands CV Harvest Set-Aside, which is a de facto 
processor share not authorized by the Magnuson-Stevens Act.
    Response 14: NMFS has determined that this action is consistent 
with National Standard 4. Amendment 113 and this final rule do not 
include any measures that discriminate between residents of different 
states. While Amendment 113 and this final rule establish the set-aside 
for vessels that deliver their catch of Aleutian Islands Pacific cod to 
Aleutian Islands shoreplants for processing, any properly permitted and 
licensed vessel, operated by any resident of any community or state, 
can participate in the Aleutian Islands CV Harvest Set-Aside. 
Participation in the set-aside or in the Unrestricted Fishery is not 
premised on residency in a particular state. Participation in the BSAI 
Pacific cod fishery is governed by regulations that were determined to 
be consistent with National Standard 4 and neither Amendment 113 nor 
this final rule change the permitting and licensing requirements 
currently in place. This final rule does not preclude residents of any 
state from participation in any fishery in the Aleutian Islands as 
either a harvester or operator of an Aleutian Islands shoreplant. 
Appropriately licensed and endorsed vessels will still have the 
opportunity to prosecute the fishery, and any person wishing to operate 
a processing facility with the appropriate license in the area may 
still do so.
    Amendment 113 and this final rule establish a set-aside that 
allocates the Aleutian Islands non-CDQ Pacific cod DFA during a portion 
of the A-season among those harvesting vessels that conduct directed 
fishing for Aleutian Islands Pacific cod and deliver their catch to 
Aleutian Islands shoreplants for processing and those harvesting 
vessels that conduct directed fishing for Aleutian Islands Pacific cod 
and deliver their catch for processing to any eligible processor other 
than Aleutian Islands shoreplants. Therefore, this allocation must be 
fair and equitable to all such fishermen, reasonably calculated to 
promote conservation, and carried out in such manner that no particular 
individual, corporation, or other entity acquires an excessive share of 
such privileges, consistent with National Standard 4. For the reasons 
provided below, NMFS has determined that Amendment 113 and this final 
rule are consistent with National Standard 4's requirements for 
allocations.
    NMFS has determined that the set-aside is fair and equitable to all 
participants in the BSAI Pacific cod fishery. Vessels from all non-CDQ 
sectors can participate in the set-aside and each sector will continue 
to have access to its entire BSAI Pacific cod allocation. This action 
also addresses an inequity that has occurred, in part, from the 
establishment of rationalization programs and minimizes the risk of 
future inequities in the prosecution of the Aleutian Islands Pacific 
cod fishery. The Council and NMFS determined that the protections in 
Amendment 113 and this final rule are necessary to mitigate the effects 
of previous Council actions. Offshore processing activity has taken an 
increasing proportion of the Aleutian Islands Pacific cod fishery in 
some recent years due to a variety of factors described in the preamble 
to the proposed rule and in the Analysis. At the same time, the 
historical share of the BSAI Pacific cod fishery delivered to Aleutian 
Islands shoreplants has decreased.
    The maximum cap of 5,000 mt for set-aside is representative of the 
long-term average annual amount of Pacific cod processed by Aleutian 
Islands shoreplants that includes years both

[[Page 84444]]

before and after significant changes in the BSAI Pacific cod fishery 
occurred. Establishing a maximum amount, rather than a percentage, for 
the set-aside will protect Aleutian Islands fishing communities during 
years of relatively low Aleutian Islands Pacific cod TAC, will ensure 
the set-aside remains representative of past participation levels by 
Aleutian Islands fishing communities, and will benefit those who do not 
participate in the set-aside fishery during years of relatively high 
Aleutian Islands Pacific cod TAC by allowing the amount allocated to 
the Unrestricted Fishery to increase with increases in TAC.
    This action is also fair and equitable because the set-aside will 
be in effect only when the Aleutian Islands fishing communities it is 
intended to benefit are prepared and actively engaged in participation. 
When Aleutian Islands communities are unable to accept deliveries of 
Pacific cod for processing, there are mechanisms built into the final 
rule that will lift the set-aside and allow others to have access to 
the remaining harvest.
    NMFS also has determined that the set-aside is reasonably 
calculated to promote conservation. Amendment 113 and this final rule 
do not modify the process for specifying OFLs, ABCs, or TACs for the 
Bering Sea and Aleutian Islands Pacific cod fishery, the allocation of 
BSAI Pacific cod to CDQ and non-CDQ fishery participants that is 
established in existing regulations, or the allocation of BSAI Pacific 
cod among non-CDQ fishery participants. NMFS will continue to manage 
the fishery so that harvests stay within specified and allocated 
amounts. Additionally, Amendment 113 and this final rule continue to 
promote and do not undermine the conservation measures established 
under the Steller sea lion protection measures, Amendment 85 
allocations, and Amendment 80 rationalization.
    Finally, NMFS determined that the set-aside will be carried out in 
such manner that no particular individual, corporation, or other entity 
acquires an excessive share of the Aleutian Islands Pacific cod 
fishery. NOAA's guidance on National Standard 4 states that ``only 
those measures that result in direct distributions of fishing 
privileges will be judged against the allocation requirements of 
Standard 4'' (Sec.  600.325(c)(1)). This final rule establishes a set-
aside for any otherwise eligible vessel that conducts directed fishing 
for Aleutian Islands Pacific cod and delivers its catch to any Aleutian 
Islands shoreplant for processing. No particular individual, 
corporation, or other entity participating in either the set-aside or 
the Unrestricted Fishery will be able to acquire an excessive share of 
the Aleutian Islands Pacific cod fishery under Amendment 113 and this 
final rule. All vessels will continue to have catch attributed to their 
sector, and Amendment 113 and this final rule do not create any new 
allocations to particular individuals, corporations, or other entities 
fishing for Aleutian Islands Pacific cod. Additionally, Amendment 113 
and this final rule do not limit participation in the set-aside to a 
discreet subset of vessels that meet certain criteria. As explained 
earlier, any properly permitted and licensed vessel, operated by any 
resident of any community or state, within any BSAI Pacific cod non-CDQ 
sector can participate in the Aleutian Islands CV Harvest Set-Aside.
    The commenter asserts that Adak will receive an excessive share in 
violation of National Standard 4 because the shoreplant in Adak is the 
only processor in the Aleutian Islands that has processed Pacific cod 
and it therefore will receive the entire Aleutian Islands CV Harvest 
Set-Aside. Section 2.6.8 of the Analysis describes the two shoreplants 
currently in the Aleutian Islands--one in Adak and one in Atka. 
Although Atka has not processed Pacific cod and Adak has processed 
Pacific cod, this final rule does not provide a specific allocation of 
fishing privileges to either of these Aleutian Islands shoreplants. 
Amendment 113 does not provide Adak or Atka with fishing privileges in 
the Aleutian Islands Pacific cod fishery.
    The commenter also asserts that Amendment 113 and this final rule 
establish a processor share or exclusive processing privilege for Adak 
which is not authorized by the Magnuson-Stevens Act. This aspect of 
Comment 14 is also expressed in Comment 18. NMFS refers the reader to 
its detailed response to this comment in its response to Comment 18.
    Finally, the commenter refers to a letter dated January 28, 2009, 
from Robert D. Mecum, Acting Administrator, Alaska Region, NMFS, to 
Eric Olsen, then Chairman of the Council. According to the commenter, 
NMFS noted in this letter that the proposed set-aside could violate 
National Standard 4's requirement that allocations be fair and 
equitable and not create excessive shares. While NMFS acknowledges the 
letter, NMFS disagrees that the letter provides support for the claim 
that Amendment 113 and this final rule are inconsistent with National 
Standard 4.
    The action under consideration by the Council when NMFS sent the 
letter was not the set-aside action in Amendment 113 but a different 
action that would have established processing sideboards on processing 
vessels eligible under the AFA, BSAI crab rationalization program, and 
BSAI Amendment 80 program that received deliveries of Pacific cod 
harvested in the Eastern and Central Aleutian Islands (Areas 541 and 
542). Under that action, CPs, floating processors, and motherships in 
these programs would have been limited in the amount of CV deliveries 
they could receive of Pacific cod harvested in Area 541 and/or 542 on 
an annual basis, or prohibited from taking deliveries prior to a 
specific date. The 2009 letter from NMFS encourages the Council to pay 
particular attention to National Standard 4's prohibition against 
allocation of excessive shares of fishing privileges and requirement 
that allocation actions be reasonably calculated to promote 
conservation. NMFS advised the Council that if it chose to proceed with 
the action under consideration at that time, it would need to provide a 
rationale that clearly demonstrated that the action was consistent with 
these aspects of National Standard 4. However, NMFS also stated, 
``Based on our discussions with NOAA GC, these issues do not appear to 
preclude the proposed action . . . .''
    In developing Amendment 113, the Council considered the advice 
provided by NMFS and modified the action to address inordinate control 
concerns by conditioning the set-aside on the achievement of certain 
performance measures which, if not satisfied, will lift the set-aside; 
by capping the maximum amount of the set-aside at a level that will 
provide the protections and stability the Council wanted to create for 
Aleutian Islands fishing communities, particularly in times of 
relatively low Aleutian Islands Pacific cod TAC, and that will allow 
for the continued participation of the offshore sector; and by allowing 
any vessel and any Aleutian Islands shoreplant to participate in the 
set-aside. The Council also designed Amendment 113 and this final rule 
to promote conservation and to prohibit acquisition of an excessive 
share of fishing privileges as explained earlier in this response.
    Comment 15: This action was reasonably calculated to promote 
conservation as required under National Standard 4 because it will 
reduce the amount of halibut prohibited species catch (PSC).
    Response 15: NMFS acknowledges the comment. NMFS believes that the

[[Page 84445]]

commenter is referring to data that indicate that halibut PSC rates are 
much lower in the Aleutian Islands Pacific cod fishery than in the 
Bering Sea Pacific cod fishery (Section 2.7.2.2 of the Analysis). The 
commenter seems to suggest that if more fishing occurs in the Aleutian 
Islands relative to the Bering Sea because of this final rule, overall 
halibut PSC usage in the BSAI could potentially decrease. NMFS cannot 
predict how halibut PSC rates or overall use may change in response to 
this final rule, if at all. NMFS notes that this final rule will not 
affect the total maximum permissible amount of halibut PSC established 
for BSAI groundfish fisheries. As stated in the response to Comment 14, 
Amendment 113 and this final rule continue to promote and do not 
undermine the conservation measures established under existing 
regulations.
    Comment 16: The proposed rule will result in TAC being ``stranded'' 
in the Aleutian Islands Pacific cod fishery and it therefore violates 
National Standard 1 of the Magnuson-Stevens Act because it does not 
promote achievement of optimal yield. The proposed rule suggests that 
performance measures, such as the 1,000-mt minimum landings 
requirement, would prevent the stranding of Aleutian Islands Pacific 
cod because other sectors would have access to the fishery once the 
harvest restrictions and delivery requirements are lifted. However, the 
fleet cannot adjust in the time frames proposed. The midseason 
announcements intended to prevent stranding a portion of the Aleutian 
Islands Pacific cod TAC cannot possibly be effective, given that 
vessels will be fishing at that time and will likely need to interrupt 
that fishing to prepare gear for the Aleutian Islands Pacific cod 
fishery. These vessels would then need to transit to the area from the 
Bering Sea or Gulf of Alaska. Additionally, delays between when catch 
is landed and reported to NMFS, and when NMFS can reopen the fishery 
may further reduce the amount of time available to harvest the 
remaining TAC while the desirable aggregations of Pacific cod are still 
available.
    Response 16: The Council and NMFS determined that Amendment 113 and 
this final rule are consistent with National Standard 1. Optimum yield, 
as defined in the Magnuson-Stevens Act, is that amount of fish which 
``will provide the greatest overall benefit to the Nation, particularly 
with respect to food production and recreational opportunities, and 
taking into account the protection of marine ecosystems'' and the 
amount of fish which ``is prescribed as such on the basis of the 
maximum sustainable yield from the fishery, as reduced by any relevant 
economic, social, or ecological factor'' (16 U.S.C. 1802(33)(A) and 
(B)). Amendment 113 and this final rule do not change the optimum yield 
of the BSAI groundfish fisheries, which is specified in regulations as 
a range from 1.4 million to 2.0 million mt (Sec.  679.20(a)(1)(i)(A)). 
NMFS notes that optimum yield refers to a broad range of harvest 
spanning all species within the BSAI groundfish fisheries, not the TAC 
for a given species and area in a year. Even if the entire Aleutian 
Islands Pacific cod TAC were not harvested in a year, optimum yield 
could still be achieved, consistent with National Standard 1.
    The Aleutian Islands Pacific cod OFL, ABC, and TAC, and the process 
by which NMFS manages the fishery to stay within those limits, will not 
change as a result of this action. Specifically, this final rule 
includes several provisions to prevent stranded Pacific cod TAC in the 
Aleutian Islands and should ensure full harvest of the Aleutian Islands 
Pacific cod DFA, thus promoting the achievement of optimum yield in the 
Bering Sea and Aleutian Islands groundfish fisheries. As noted in the 
response to Comment 14, this final rule does not limit or constrain the 
proportion of the TAC allocated to CDQ or non-CDQ fishery participants.
    NMFS expects that vessel operators will adapt their fishing plans 
in a variety of ways to accommodate the Aleutian Islands CV Harvest 
Set-Aside, and expects that sufficient catch monitoring already exists, 
and notification requirements will be put into effect with this final 
rule, for vessel operators to predict when and if they should gear up 
and transit to the Aleutian Islands to fish for Pacific cod. For 
example, if NMFS has not received notification prior to November 1 of 
an Aleutian Islands city's intent to process Pacific cod, the A-season 
Pacific cod fishery will be available to all participants and those 
participants will have more than two months to prepare. In years with 
sufficient TAC for an Unrestricted Fishery to commence, vessels may 
already be fishing in the Aleutian Islands when the Aleutian Islands CV 
Harvest Set-Aside is lifted. In years when the Aleutian Islands TAC is 
low and an Unrestricted Fishery will not be available, vessel operators 
may choose to only fish in the Bering Sea. NMFS posts weekly landing 
reports by fishery to help the agency and fishery participants project 
when fisheries will open and close.
    NMFS disagrees that delays in catch accounting will further shorten 
the time available for the fleet to harvest the remaining Aleutian 
Islands TAC if the 1,000-mt performance standard is not met on or 
before February 28 or if the full Aleutian Islands CV Harvest Set-Aside 
is harvested allowing the fishery to be opened to all participants. 
NMFS tracks harvests and projects when catch limits will be reached so 
that the announcement can be prepared and the fishery can be opened or 
closed, as applicable, on the appropriate date. NMFS expects to open 
the Aleutian Islands Pacific cod fishery as soon as necessary. For 
example, if Aleutian Islands shoreplants have not met the 1,000-mt 
performance measure by February 28, NMFS would have anticipated that in 
advance and be prepared to open the fishery to all eligible 
participants promptly on March 1 (or February 29, if a leap year). 
Likewise, NMFS would be prepared to lift the Bering Sea Trawl CV A-
Season Sector Limitation if the full set-aside were harvested prior to 
March 15. The Council considered NMFS' Catch Accounting and Inseason 
Management protocols when selecting dates for the set-aside.
    Comment 17: This final rule promotes conservation and should be 
viewed as a ``trailing amendment'' to the actions to establish separate 
Aleutian Islands and Bering Sea Pacific cod OFLs, ABCs, and TACs, and 
to implement new Steller sea lion protection measures. Both of these 
actions were implemented for conservation purposes and the Council 
chose to wait to enact community protections until they could determine 
what the effects of those actions on Aleutian Islands communities would 
be.
    Response 17: NMFS acknowledges the comment. As stated in the 
response to Comment 14, Amendment 113 and this final rule continue to 
promote and do not undermine the conservation measures established 
under existing regulations, such as the BSAI TAC split and Steller sea 
lion protection measures.
    Comment 18: This action is a violation of National Standard 8. 
National Standard 8 does not constitute a basis for allocating 
resources to a specific fishing community nor for providing 
preferential treatment based on residence in a fishing community. 
National Standard 8 applies to allocation of fishing, not processing, 
privileges.
    Response 18: Because of their remote location and limited economic 
alternatives, Aleutian Islands communities rely on harvesting and 
processing of the nearby fishery resources to support and sustain their 
communities. National Standard 8 requires that conservation and

[[Page 84446]]

management measures take into account the importance of fishery 
resources to fishing communities by utilizing economic and social data 
that meet the requirements of National Standard 2 in order to provide 
for the sustained participation of such communities, and to the extent 
practicable, minimize adverse economic impacts on such communities (16 
U.S.C. 1851(a)(8)). National Standard 8 guidelines recommend that ``. . 
. where two alternatives achieve similar conservation goals, the 
alternative that provides the greater potential for sustained 
participation of such communities and minimizes the adverse economic 
impacts on such communities would be the preferred alternative'' (50 
CFR 600.345(b)(1)). The guidelines further state that ``fishing 
community'' means a community that is substantially dependent on or 
substantially engaged in the harvest or processing of fishery resources 
to meet social and economic needs, and includes fishing vessel owners, 
operators, and crew, and fish processors that are based in such 
communities. A fishing community is a social or economic group whose 
members reside in a specific location and share a common dependency on 
commercial, recreational, or subsistence fishing or on directly related 
fisheries-dependent services and industries (for example, boatyards, 
ice suppliers, tackle shops) (50 CFR 600.345(b)(3)). The Council and 
NMFS considered the importance of fishery resources to Aleutian Islands 
fishing communities such as Adak and Atka and determined that community 
protections were necessary to provide for the sustained participation 
of these communities in the Aleutian Islands Pacific cod fishery. The 
Council and NMFS determined that Amendment 113 and this final rule are 
therefore consistent with National Standard 8.
    As discussed in the preamble to the proposed rule and in the 
Analysis, this final rule does not allocate processing privileges. This 
final rule allocates fishing privileges for Aleutian Islands Pacific 
cod through the establishment of a set-aside for a portion of the 
Aleutian Islands Pacific cod TAC available for harvest by vessels 
directed fishing for Aleutian Islands Pacific cod and that deliver 
their catch to Aleutian Islands shoreplants for a portion of the year 
and only if specific notification and performance requirements are met. 
This final rule does not change any percentage allocations of Pacific 
cod established under Amendment 85 to the FMP and existing regulations 
for the CDQ or non-CDQ fishery sectors as described in Sec.  
679.20(a)(7). This final rule does not allocate exclusive fishing 
privileges to a specific harvester, community, processor, or to 
residents of a specific community.
    Under this final rule, any properly permitted and licensed vessel, 
operated by any resident of any community or state, can harvest the 
portion of the Aleutian Islands Pacific cod TAC in the Aleutian Islands 
CV Harvest Set-Aside. Under this final rule, catch harvested from the 
set-aside can be delivered to any Aleutian Islands shoreplant in any 
Aleutian Islands community, and no exclusive opportunity to receive any 
portion of the set-aside is provided to an Aleutian Islands shoreplant 
or to a person based on residency in an Aleutian Islands community. As 
explained in the response to Comments 14 and 19, Amendment 113 and this 
final rule do not create a processing privilege.
    As described in the Analysis, the preamble to the proposed rule, 
and in public testimony provided at Council meetings, Aleutian Islands 
Pacific cod is an important component of the socioeconomic health of 
the community of Adak, and may become a more critical piece of the 
processing in Atka. In Adak, the Aleutian Islands Pacific cod fishery 
provides income to harvesters, processors, and other businesses 
providing support services. Section 2.6.8 of the Analysis suggests that 
without the set-aside, it is very likely that the processing plant in 
Adak will not be capable of sustained participation in the future (see 
also Comment 1). Although Atka has not historically participated in the 
Aleutian Islands Pacific cod fishery, the Aleutian Pribilof Islands 
Community Development Association (APICDA) has been working with 
investors to make substantial infrastructure improvements to their 
harbor to enhance the local fishing fleet and to the shoreplant so it 
may operate year-round. Comments submitted by APICDA indicate that 
harvesting and processing Aleutian Islands Pacific cod are critical to 
the success of these developments in this remote community. Additional 
information about Atka is provided in Section 2.6.8 of the Analysis.
    The Aleutian Islands Pacific cod fishery is a pulse fishery that 
operates for several weeks in late February and March. This pulse is 
the most profitable time of the season for Pacific cod in the region. 
These few weeks of the Federal-waters Pacific cod fishery are a 
critical part of these remote operations.
    This action is consistent with the management objectives in the FMP 
and the Programmatic Supplemental Environmental Impact Statement 
(available at https://alaskafisheries.noaa.gov/node/33552). 
Specifically, NMFS refers the reader to objectives related to potential 
societal benefits, such as providing socially and economically viable 
fisheries for the well-being of fishing communities and balancing many 
competing uses of marine resources and different social and economic 
goals for sustainable fishery management, including protection of the 
long-term health of the resource and the optimization of yield.
    Comment 19: This action should have been analyzed as a limited 
access privilege program. The eligibility requirements to grant limited 
access privileges to communities under the Magnuson-Stevens Act were 
not followed.
    Response 19: Amendment 113 and this final rule do not create a 
limited access privilege as defined in the Magnuson-Stevens Act (16 
U.S.C. 1802(26)). The Magnuson-Stevens Act defines ``limited access 
privilege'' as a Federal permit, issued as part of a limited access 
system under section 303A to harvest a quantity of fish expressed by a 
unit or units representing a portion of the total allowable catch of 
the fishery that may be received or held for exclusive use by a person, 
and includes an individual fishing quota, but does not include 
community development quotas as described in section 305(i). As stated 
in responses to previous comments, this final rule does not provide any 
person a portion of the Aleutian Islands Pacific cod TAC that may be 
received or held for exclusive use. Amendment 113 and this final rule 
do not assign the Aleutian Islands CV Harvest Set-Aside, in whole or in 
part, to any one person, Aleutian Islands shoreplant, or community for 
harvesting or delivery. All harvesters have access to the Aleutian 
Islands CV Harvest Set-Aside if they are willing to deliver their catch 
to an Aleutian Islands shoreplant. Any Aleutian Islands shoreplant can 
accept deliveries from the Aleutian Islands CV Harvest Set-Aside. While 
the practical effect of Amendment 113 and this final rule may be that 
harvesters in the Aleutian Islands CV Harvest Set-Aside may have only 
one Aleutian Islands shoreplant to deliver their catch (Adak), one or 
more Aleutian Islands shoreplants could become operational at any time 
and accept deliveries from harvesters in the Aleutian Islands CV 
Harvest Set-Aside, reducing the amount that Adak could receive. 
Therefore, Adak is not provided an exclusive processing privilege under 
Amendment 113 or this final rule (see also response to Comments 14 and 
18).

[[Page 84447]]

Amendment 113 and this final rule set-aside a portion of the Aleutian 
Islands DFA during the A-season for vessels that conduct directed 
fishing for Aleutian Islands Pacific cod and deliver their catch to 
Aleutian Islands shoreplants for processing. Because Amendment 113 and 
this final rule do not establish a limited access privilege, Amendment 
113 and this final rule do not create a limited access privilege 
program and the eligibility requirements for limited access privilege 
programs in the Magnuson-Stevens Act at section 303A (16 U.S.C. 1853a) 
do not apply to Amendment 113 and this final rule.
    Comment 20: National Standard 5 states that ``Conservation and 
management measures shall, where practicable, consider efficiency in 
the utilization of fishery resources; except that no such measure shall 
have economic allocation as its sole purpose.'' This action is 
inconsistent with National Standard 5 because it fosters inefficiency 
and has no purpose other than economic allocation. The Draft Analysis 
acknowledged that the set-aside ``could potentially lead to a lower 
price for catch and reduce efficient utilization,'' and it is uncertain 
that this action would benefit Aleutian Islands communities. Adak 
serves as a port of embarkation and provides goods and services to the 
fleet. By reducing the number of port visits by CPs during a critical 
part of the year, this action may actually result in lost economic 
activity for Adak.
    Response 20: Amendment 113 and this final rule set aside a portion 
of the Aleutian Islands Pacific cod fishery for harvest by certain 
vessels. The primary objective of this action is to provide Aleutian 
Islands communities with access to and sustained participation in the 
Aleutian Islands Pacific cod fishery, and to minimize the adverse 
impacts of a range of management actions on those communities. This 
objective is consistent with the goals of the FMP and with National 
Standard 8 (see response to Comment 18 for additional explanation of 
consistency with National Standard 8).
    The Council and NMFS have determined that Amendment 113 and this 
final rule are also consistent with National Standard 5. According to 
the National Standard 5 guidelines, the term ``utilization'' 
encompasses harvesting, processing, marketing, and non-consumptive uses 
of the resource, since management decisions affect all sectors of the 
industry (Sec.  600.330(b)(1)). National Standard 5 does not refer 
exclusively to harvesting. While rationalization programs increased 
efficiency of harvesting the resource, they did so in part at the 
expense of Aleutian Islands communities. The Council and NMFS can, and 
must, implement conservation and management measures that are 
consistent with all of the National Standards.
    Section 2.6.2.2 of the Analysis examines some of the potential 
gains and losses in efficiency that may result from Amendment 113. The 
Analysis acknowledges that there may be some losses to communities 
resulting from fewer port visits by CPs. On the other hand, 
efficiencies may be gained by having a local fishing fleet that can 
fish closer to shore. Public comments submitted in support for 
Amendment 113 and this final rule suggest that the communities believe 
the benefits of this action to Aleutian Islands outweigh any potential 
losses (see Comment 7). While the efficiency of utilizing shoreplant 
processing in remote parts of the Aleutian Islands can be debated, the 
social and economic benefits the shoreplants provide to the communities 
in which they are located are tangible.
    In this particular case, the Council and NMFS have sought to 
balance the objectives of efficiency under National Standard 5 with the 
social and economic considerations of Aleutian Island communities under 
National Standard 8. This type of balance is contemplated in the 
National Standard 5 guidelines which note, ``Unless the use of 
inefficient techniques or the creation of redundant fishing capacity 
contributes to the attainment of other social or biological objectives, 
an FMP may not contain management measures that impede the use of cost-
effective techniques of harvesting, processing, or marketing, and 
should avoid creating strong incentives for excessive investment in 
private sector fishing capital and labor'' (Sec.  600.330(b)(2)(ii)). 
In this case, the Council and NMFS considered a range of social factors 
in addition to efficiency, including providing socially and 
economically viable fisheries for the well-being of Aleutian Islands 
fishing communities. Consistent with the National Standard 5 
guidelines, the Council and NMFS have prepared an analysis and 
rulemaking that justify these measures ``in light of the biological, 
ecological, and social objectives of the FMP, as well as the economic 
objectives'' (Sec.  600.330(e)).

Comments on Economic Effects

    Comment 21: Reduced competition means lower prices for harvesters. 
By creating an exclusive processing privilege for Aleutian Islands 
shoreplants, this action has the potential to cause uncompetitive acts. 
Creating and enforcing a single market for fish is devastating for 
harvesters who are not protected by any sort of price arbitration 
structure. Having only a single plant limits competition for landings 
and the seller has limited negotiating leverage. This drives down the 
prices paid to fishermen. Additionally, having only a single processor 
means that some CVs could be excluded if the lone processor does not 
want to do business with them.
    Response 21: As explained in the response to Comments 14, 18 and 
19, Amendment 113 and this final rule do not create an exclusive 
processing privilege for Aleutian Islands shoreplants. As acknowledged 
in Section 2.7.2.3 of the Analysis, under Amendment 113, CVs may have 
less ability to use processor competition for Aleutian Islands Pacific 
cod landings to leverage higher prices. However, the Analysis also 
acknowledges several ways that CVs may retain leverage in negotiating 
fair prices from Aleutian Islands shoreplants. To remain solvent, 
Aleutian Islands shoreplants will need to offer harvesters competitive 
prices or CVs could withhold delivery of catch to that shoreplant. CVs 
could choose not to participate in the Aleutian Islands CV Harvest Set-
Aside, wait until the set-aside has ended, or shift fishing operations 
to the Bering Sea. If Aleutian Islands shoreplants are not competitive, 
they likely will not be able to operate, and NMFS would not expect to 
receive notification from the City of Adak or the City of Atka by the 
annual deadline. If less than 1,000 mt of Aleutians Island Pacific cod 
have been delivered to Aleutian Islands shoreplants on or before 
February 28, the set-aside will be lifted and the fishery will be 
opened to all eligible participants for delivery to any eligible 
processor. This performance measure serves as an additional incentive 
for Aleutian Islands shoreplants to offer competitive prices to all 
interested harvesters so that harvesters do not wait until after 
February 28 for the opportunity to deliver to offshore processors. In 
addition, this final rule does not provide for only one Aleutian 
Islands shoreplant or prevent multiple Aleutian Islands shoreplants 
from operating at the same time. Even when the set-aside is in place, 
this final rule does not preclude CPs or stationary floating processors 
from receiving catch from CVs harvesting from the Aleutian Islands 
Unrestricted Fishery in years when the Aleutian Islands TAC is large 
enough for the Unrestricted Fishery to occur, or from operating after 
March 15. CPs and stationary floating processors present in the 
Aleutian Islands for the Unrestricted

[[Page 84448]]

Fishery could be ready to accept deliveries of Pacific cod if the set-
aside were lifted early.
    Comment 22: The Analysis does not consider the effects of the BSAI 
TAC split, and assumes the loss of Aleutian Islands Pacific cod can be 
made up in the Bering Sea, despite the fact that Bering Sea and 
Aleutian Islands cod are different fisheries with unique products.
    Response 22: Sections 2.2 and 2.6 of the Analysis describe some of 
the effects the BSAI TAC split has had on the amount of Pacific cod 
available for harvest in the Aleutian Islands. Likewise, the ``Need for 
This Proposed Rule'' section of the proposed rule identifies the BSAI 
TAC split and resulting relatively low TAC in the Aleutian Islands as 
just one of several factors prompting the need for the community 
protections in this rule. NMFS acknowledges that this action may result 
in losses to some participants in the Aleutian Islands Pacific cod 
fishery. Section 2.7.2 of the Analysis and the response to Comment 23 
discuss ways that shifting effort to the Bering Sea may mitigate the 
effects of Amendment 113 on participants.
    Comment 23: The Analysis supposes that the loss of Pacific cod 
harvest by the hook-and-line CP sector in the Aleutian Islands can be 
offset by shifting effort to the eastern Bering Sea; however, Aleutian 
Islands Pacific cod are typically larger and fetch a higher price in 
international markets than Bering Sea Pacific cod. Bering Sea Pacific 
cod cannot be substituted for Aleutian Islands Pacific cod.
    Response 23: The Council and NMFS recognize that Pacific cod 
fisheries and products differ between the Bering Sea and the Aleutian 
Islands. The Analysis does not suggest that the same product harvested 
and processed in the Aleutian Islands can be substituted by one 
harvested and processed in the Bering Sea and notes that harvesters 
generally fetch higher prices for Aleutian Islands Pacific cod because 
of their typically larger size (Section 2.7.2.2 of the Analysis). The 
Analysis further notes that moving to the Bering Sea to fish for 
Pacific cod may not be viable for all vessels because they may 
participate in other Aleutian Islands fisheries, or are subject to 
harvest sideboards in other fisheries as a result of their eligibility 
in rationalization programs. Additionally, vessels that formerly fished 
for Aleutian Islands Pacific cod that move to the Bering Sea to fish 
for Pacific cod will compete with vessels that have historically fished 
in the Bering Sea. The Council recognized these limitations on 
recuperating losses that may be incurred by some participants as a 
result of Amendment 113, but determined that CPs are better able to 
adapt to changing conditions in the Aleutian Islands Pacific cod 
fishery given their ability to move to different locations to fish and 
process their catch, than Aleutian Islands shoreplants and the vessels 
that deliver to them, which have less flexibility and adaptability.
    The Council and NMFS recognized that CP sectors will not be able to 
participate in the Aleutian Islands Pacific cod fishery unless the set-
aside is not in effect for that year, some of the set-aside remains 
available for harvest after the set-aside ends, or there is sufficient 
Aleutian Islands DFA for an Unrestricted Fishery during the set-aside 
period. The Council determined that in years of low TAC, when an 
Unrestricted Fishery will not occur, it was important to protect 
Aleutian Islands fishing communities that cannot easily participate in 
other fisheries or other areas to make up for lost revenue.
    The Council and NMFS recognized the participation of hook-and-line 
CPs in the Aleutians Islands Pacific cod fishery by capping the amount 
of Aleutian Islands Pacific cod that goes to the Aleutian Islands CV 
Harvest Set-Aside and by providing mechanisms to lift the set-aside if 
no Aleutian Islands city will be processing in the upcoming year or if 
deliveries do not meet established thresholds by certain dates. This 
final rule limits the amount of the Aleutian Islands CV Harvest Set-
Aside to 5,000 mt, which will allow the participation of all sectors in 
the Unrestricted Fishery except during years when the Aleutian Islands 
Pacific cod TAC is extremely low. The Council wanted to provide the 
Unrestricted Fishery so that vessels not participating in the Aleutian 
Islands CV Harvest Set-Aside can participate to some extent in the 
Aleutian Islands Pacific cod fishery and get some of the benefits from 
it. Additionally, because the Aleutian Islands CV Harvest Set-Aside is 
for a specific amount, rather than a percentage of TAC, the set-aside 
will not increase even if Aleutian Islands TAC increases, which will 
provide for an even greater amount in the Unrestricted Fishery.
    Comment 24: The proposed Aleutian Islands CV Harvest Set-Aside 
period is too long and would prevent others from accessing the fishery 
altogether. If the Adak plant is expected to be capable of processing 
more than 400 mt of Pacific cod per day, and the proposed Atka plant 
has a planned capacity of 180 mt per day, Aleutian Islands shoreplants 
could process the entire proposed set-aside in just 8 to 11 days.
    Response 24: If both of the existing Aleutian Islands shoreplants 
are operational, they may have the combined capacity to process 500 mt 
to 600 mt per day. However, if the Pacific cod have not yet arrived and 
aggregated on the fishing grounds, there would be no deliveries for 
them to process. To be effective, the Aleutian Islands CV Harvest Set-
Aside and Bering Sea Trawl CV A-Season Sector Limitation need to be in 
place long enough for the Pacific cod to aggregate on the fishing 
grounds, and for the fish to be harvested and delivered to Aleutian 
Islands shoreplants for processing. An earlier end date might mean that 
the peak fishery occurs after the Aleutian Islands CV Harvest Set-Aside 
and Bering Sea Trawl CV A-Season Sector Limitation have been lifted. 
Conversely, if the Aleutian Islands CV Harvest Set-Aside and Bering Sea 
Trawl CV A-Season Sector Limitation did not go into place until later 
during the A-season, the entire trawl CV allocation could be taken in 
the Bering Sea before the fishery begins in the Aleutian Islands.
    As discussed in the preamble of the proposed rule, the Council 
determined and NMFS agrees that March 15 is the preferred date for 
lifting the Aleutian Islands CV Harvest Set-Aside for several reasons. 
March 15 represents the average date of the peak of the Aleutian 
Islands Pacific cod fishery for CVs. During the period analyzed (2003 
through 2015), a significant portion of Aleutian Islands Pacific cod 
was not delivered shoreside until mid-March (see Table 2-37 of the 
Analysis). Establishing a date much earlier than March 15 to relieve 
the set-aside would not meet the Council's goals to provide access to 
and to sustain participation in the Aleutian Islands Pacific cod 
fishery by Aleutian Islands communities because the protections 
afforded by the set-aside would be lifted before the Pacific cod 
aggregated on the fishing grounds.
    The Council and NMFS considered earlier dates by which to lift 
these restrictions, but given historical harvesting and delivery 
patterns for Aleutian Islands Pacific cod, the longer the Aleutian 
Islands CV Harvest Set-Aside remains in effect during the A-season each 
year, the greater the opportunity for complete harvest and delivery of 
the Aleutian Islands CV Harvest Set-Aside. The March 15 date provides 
greater social and economic stability for Aleutian Islands fishing 
communities than earlier dates. Limiting the duration of the Aleutian 
Islands CV Harvest Set-Aside to March 15 also would provide an 
opportunity for CPs to harvest Pacific cod, and for

[[Page 84449]]

CVs to harvest and deliver Pacific cod to CPs or stationary floating 
processors, before the end of the A-season. The proposed March 15 date 
balances the opportunities for all participants. Additional information 
is provided in Section 2.7.2.4 of the Analysis.
    Comment 25: The proposed threshold of 5,000 mt for the Aleutian 
Islands CV Harvest Set-Aside exceeds the recent historical average of 
deliveries made to Aleutian Islands shoreplants. Excluding the years of 
no processing by Aleutian Islands shoreplants (2010, 2011, and 2015), 
the 2010 through 2015 average is 3,073 mt and the average proportion of 
the Federal Aleutian Islands Pacific cod fishery processed at the Adak 
and Atka shoreplants from 2003 through 2015 is 32 percent. Applying the 
historic average to the projected 2017 DFA of 8,965 mt would result in 
a 2017 set-aside of 2,869 mt. Therefore, a threshold of 3,000 mt would 
more accurately reflect the ``historical place'' of Aleutian Islands 
shoreplants in the federal Aleutian Islands Pacific cod fishery.
    Response 25: As discussed in the preamble to the proposed rule and 
in Section 2.7.1.2 of the Analysis, the Council examined harvest and 
landings data from 2003 through July 2015 and considered a range of 
options for the amount of the Aleutian Islands CV Harvest Set-Aside 
(and equivalent Bering Sea Trawl CV A-Season Sector Limitation). The 
average amount of non-CDQ Aleutian Islands Pacific cod processed by 
Aleutian Islands shoreplants during this period was 4,732 mt. The 
Council considered amounts for the Aleutian Islands CV Harvest Set-
Aside ranging from 3,000 to 7,000 mt. The Council determined and NMFS 
agrees that a maximum of 5,000 mt is the appropriate amount because it 
represents a large percentage of the total amount of Aleutian Islands 
Pacific cod available to the non-CDQ fishery sectors in recent years, 
and is in the range necessary to provide benefits to Aleutian Islands 
fishing communities, including shoreplant operations, when considered 
in combination with the State guideline harvest level (State GHL) A-
season harvest. Additionally, the Analysis shows that 5,000 mt is the 
approximate long-term average of the annual amount of Pacific cod 
processed at Aleutian Islands shoreplants between 2003 and 2015, when 
Aleutian Islands shoreplants were operational.
    The Council considered an option that would have reserved a 
percentage, rather than a fixed amount, of the Aleutian Islands TAC for 
the Aleutian Islands CV Harvest Set-Aside (see Section 2.7.2.5 of the 
Analysis). The Council chose a fixed amount (5,000 mt) so that more of 
the DFA would be available to Aleutian Islands fishing communities in 
years of low TAC, and so that more of the DFA would be available to all 
participants in the Unrestricted Fishery in years when the Aleutian 
Islands TAC is high, providing more opportunities for other 
participants. Further explanation for the Council's choice of years to 
examine in the Analysis is given in the response to Comment 27.
    Comment 26: The Aleutian Islands Pacific cod fishery is important 
for all hook-and-line CPs. While Amendment 113 will have negative 
impacts on all CPs with historical participation in the Aleutian 
Islands Pacific cod fishery, the negative effects are more profound on 
specific hook-and-line CP companies with a higher dependence on the 
Aleutian Islands Pacific cod fishery.
    Response 26: The Council and NMFS examined participation in the 
Aleutian Islands Pacific cod fishery by all sectors over a range of 
years that included years before major changes in the fishery occurred 
and years since those changes occurred. The Council recognized that to 
offer protections to Aleutian Islands communities, there could be some 
negative effects on other participants in the Aleutian Islands Pacific 
cod fishery, including the hook-and-line CP sector. In years when the 
TAC is low and the set-aside is in effect, it is likely that CPs will 
not have access to the Aleutian Islands Pacific cod fishery at all or 
at levels to which they are accustomed. To minimize those negative 
effects, the Council included several provisions that lift the 
restrictions if minimum performance measures are not met and prevent 
the stranding of Aleutian Islands Pacific cod. For 2017, the hook-and-
line CP sector will have access to 3,965 mt through the Aleutian 
Islands Unrestricted Fishery. The annual average targeted Aleutian 
Islands Pacific cod catch by the hook-and-line CP sector between 2003 
and 2015 was 2,399 mt (Table 2-34 of the Analysis). Excluding years 
that Aleutian Islands shoreplants did not operate, the annual average 
targeted Pacific cod catch by the hook-and-line CP sector was 2,311 mt 
(Table 2-34 of the Analysis). Even under current management, there is 
no guarantee that any sector will have access to the Aleutian Islands 
Pacific cod fishery because of the ability of one sector to harvest 
Pacific cod up to the Aleutian Islands TAC before other sectors arrive.
    NMFS and the Council acknowledge that the hook-and-line CP sector 
may have a higher dependence on the Aleutian Islands Pacific cod 
fishery than some other CP sectors; however, like other offshore 
sectors, the hook-and-line CP sector has the ability to react to 
changes in the fishery. The hook-and-line CP sector has formed a 
voluntary cooperative, which provides many of the benefits and 
flexibility of a rationalized fishery. In contrast, shoreside 
processors cannot move their operations in response to changing 
conditions or a low Aleutian Islands Pacific cod TAC. As discussed in 
the response to Comment 14, each sector continues to receive a 
percentage of the combined BSAI Pacific cod allocation as established 
in 2008 under Amendment 85, and can fish their allocations in either 
the Bering Sea or Aleutian Islands (and under this action shift effort 
to the Bering Sea or access the Aleutian Islands after a specified 
date). This action does not change the allocation to the hook-and-line 
CP sector.
    This final rule may provide a benefit to the hook-and-line CP 
sector in years when the Aleutian Islands DFA is large enough for the 
Aleutian Islands Unrestricted Fishery to occur. The A-season for hook-
and-line CPs and CVs opens on January 1, whereas the A-season for trawl 
CPs and CVs does not open until January 20. The hook-and-line CPs and 
CVs will have earlier access to the Aleutian Islands Unrestricted 
Fishery between January 1 and January 20.
    Comment 27: The historical participation of the hook-and-line CP 
sector in the Aleutian Islands Pacific cod fishery is significantly 
larger and longer than as stated in the proposed rule. The hook-and-
line CP sector has historically harvested more than 95 percent of the 
non-trawl harvest of Pacific cod in the Aleutian Islands. The hook-and-
line CP sector's proportion of the Aleutian Islands Pacific cod harvest 
was much higher before 2002, when Steller sea lion protection measures 
were first implemented.
    Response 27: NMFS acknowledges that the hook-and-line CP sector has 
consistently participated in the Aleutian Islands Pacific cod fishery 
annually, harvesting 14% of the Aleutian Islands Pacific cod on an 
average annual basis during 2003 through 2015 (Table 2-13 of the 
Analysis), and that the hook-and-line CP sector participated in the 
fishery prior to 2003. NMFS also acknowledges that the hook-and-line CP 
sector harvests a large percentage of the non-trawl harvest of Aleutian 
Islands Pacific cod, but also notes that the overall non-trawl harvest 
is a small proportion of the Aleutian Islands TAC. The Council chose to 
use 2003 as a starting point for the Analysis for this action for 
several reasons. First, data from years prior to 2003 is not compatible 
with data from

[[Page 84450]]

2003 to the present. NMFS implemented its Catch Accounting System in 
2003, which significantly changed the methodologies used to determine 
catch estimates (Section 2.5 of the Analysis). Second, data before 2003 
represent harvests made prior to the implementation of Steller sea lion 
protection measures, which substantively changed the management of, and 
the participation patterns in, the Aleutian Islands Pacific cod 
fishery. The Council determined and NMFS agrees that catch data prior 
to 2003 does not reflect how the fishery has been managed and 
prosecuted during the last 13 years (2003 through 2015) considered by 
NMFS and Council in developing Amendment 113 and this final rule. 
Third, the Council determined and NMFS agrees that it was important to 
consider data from the largest set of years both before and after the 
implementation of Steller Sea Lion measures, rationalization programs, 
and the BSAI TAC split to understand the effects of those actions on 
the Aleutian Islands Pacific cod fishery.
    Comment 28: The proposed action will further concentrate the 
Aleutian Islands Pacific cod harvest spatially and temporally in the 
Aleutian Islands with more harvest by the trawl sector. In the proposed 
rule for the 2014 Steller sea lion protection measures (available at 
https://alaskafisheries.noaa.gov/sites/default/files/79fr37486.pdf), 
NMFS stated that, ``Pacific cod hook-and-line and pot gear harvests 
occur in much smaller quantities and at slower rates for these gears 
than trawl gear. This makes it less likely that hook-and-line and pot 
gear harvests would result in localized depletion of Steller sea lion 
prey resources.'' The proposed action, combined with the BSAI TAC 
split, GHL fishery, and consequences of the Steller sea lion protection 
measures will further limit the hook-and-line CP sector's participation 
and increase trawl harvests of Aleutian Islands Pacific cod.
    Response 28: NMFS acknowledges that the Analysis predicts some 
spatial concentration of harvest because vessels participating in the 
set-aside are expected to be trawl CVs that will likely fish closer to 
shore and nearer to Adak and Atka, the Aleutian Islands communities 
that are most likely to receive Pacific cod deliveries under the set-
aside. The amount of Aleutian Islands Pacific cod harvest that might be 
caught closer to shore under a maximum set-aside amount of 5,000 mt 
that is roughly equivalent to the average annual amount of Pacific cod 
caught by CVs and delivered to Aleutian Islands shoreplants between 
2003 and 2015, which reduces the potential for spatial concentration 
(see Section 3.4 of the Analysis). Fishing closer to shore may increase 
efficiency in the fishery (Section 2.7.2.2 of the Analysis) by reducing 
transit times, allowing vessels to make more frequent offloads, and not 
having to coordinate fishing operations with an offshore processor 
(Section 2.7.2.2 of the Analysis). Allowing other participants to 
target the Aleutian Islands Unrestricted Fishery when the DFA is 
greater than 5,000 mt, and the performance measures that remove the 
set-aside if there is insufficient shoreplant processing will also 
limit spatial concentration. Finally, the Council and NMFS will 
continue to use the current harvest specifications process for setting 
the Aleutian Islands Pacific cod TAC and manage harvest within these 
limits. Any potential changes in harvest location as a result of the 
set-aside are not expected to impact Aleutian Islands Pacific cod stock 
status (see Section 3.3.1 of the Analysis), or have an impact on 
Steller sea lions in a manner not previously considered in previous 
consultations (see Section 3.4 of the Analysis).
    NMFS disagrees that Amendment 113 and this final rule will cause 
additional temporal concentration of the fishery. In the years since 
the BSAI TAC split, the Aleutian Islands Pacific cod fishery has closed 
on March 16, 2014, February 27, 2015, and June 8, 2016, so as not to 
exceed the Aleutian Islands Pacific cod TAC. Setting aside a maximum of 
5,000 mt of Aleutian Islands Pacific cod until March 21 may actually 
prolong the season for Aleutian Islands Pacific cod because CPs will 
not be able to harvest Pacific cod from the set-aside (unless they are 
delivering their catch to Aleutian Islands shoreplants for processing) 
or process any Aleutian Islands Pacific cod remaining from the set-
aside until after the conclusion of the Aleutian Islands CV Harvest 
Set-Aside on March 15.
    As examined in the FONSI (Section 3.6 of the Analysis), Amendment 
113 and this final rule will not adversely affect endangered or 
threatened species, marine mammals, or critical habitat of these 
species in any manner not considered in prior consultations on the BSAI 
groundfish fisheries. While this action may increase the harvest of 
Pacific cod nearshore in the Aleutian Islands subarea, the harvest of 
Pacific cod will continue to occur within the limits established in the 
annual groundfish harvest specifications by vessels the same as or 
similar to those currently fishing for Pacific cod in the BSAI.
    The vessels affected by this action will continue to be required to 
comply with all Steller sea lion protection measures including no-
transit areas, closed areas, and the requirement to carry vessel 
monitoring systems (50 CFR part 679). Therefore, Amendment 113 and this 
rule will result in no substantial change to the actions analyzed in 
the biological opinion dated April 2, 2014, in which NMFS found that 
the groundfish fisheries in the BSAI are not likely to jeopardize the 
continued existence of the western distinct population segment of 
Steller sea lions or destroy or adversely modify its designated 
critical habitat (Section 3.4 of the Analysis).
    Comment 29: The hook-and-line CP sector's proportion of the 
Aleutian Islands Pacific cod harvest has been reduced since the 
establishment of the State Pacific cod GHL fishery, which is designed 
for harvest by CVs that deliver to Aleutian Islands communities. The 
State GHL fishery sets aside 28 percent of the Aleutian Islands Pacific 
cod TAC for fishing in State waters, which is essentially an allocation 
to shore-based processors. The State GHL fishery cannot be harvested by 
CPs and is not prosecutable by the Federal offshore sector. The State 
GHL fishery has resulted in considerable stranded Pacific cod. A large 
proportion of the State GHL fishery has remained unharvested and 
unavailable to the Federal fisheries because there is no rollover 
provision. Adak and Atka have unique access to processing the State GHL 
fishery, but have chosen not to participate in this fishery in recent 
years.
    Response 29: The State GHL fishery for Aleutian Islands Pacific cod 
is managed exclusively by the State within State waters. This final 
rule does not modify the State GHL fishery. Management of the State GHL 
fishery is outside of the scope of this final rule. Absent preemption 
under section 306(b) of the Magnuson-Stevens Act, NMFS does not have 
authority to determine catch amounts or the types of gear or vessels 
used in the Aleutian Islands Pacific cod State GHL fishery.
    The State established two GHL fisheries for Pacific cod in 2006; 
one in the Bering Sea and one in the Aleutian Islands. The Aleutian 
Islands State GHL fishery is currently set at a harvest limit 
equivalent to 27 percent of the Aleutian Islands Pacific cod ABC, not 
28 percent of the Aleutian Islands Pacific cod TAC as stated by the 
commenter. The harvest limit may be increased (or decreased) in the 
following fishing year depending on how much of the State GHL fishery 
is harvested, and the harvest limit can increase to a maximum of 39 
percent of the Aleutian Islands Pacific cod ABC if

[[Page 84451]]

the harvest limit continues to be fully harvested each year. In 
addition, the Aleutian Islands State GHL fishery is capped at a maximum 
of 15 million pounds (6,804 mt). Therefore, if 27 percent of the 
Aleutian Islands Pacific cod ABC represents an amount that is greater 
than 15 million pounds in some future year, the State GHL fishery for 
that year would be 15 million pounds. The Aleutian Islands State GHL 
for 2016 is 4,752 mt.
    The amount of the Aleutian Islands State GHL fishery is deducted 
from the Aleutian Islands Pacific cod ABC to calculate the Aleutian 
Islands Pacific cod TAC. While the establishment of the State GHL 
fishery in 2006 reduced the Aleutian Islands TAC, it did not change the 
hook-and-line CP sector's allocation of 48.7 percent of the combined 
BSAI Pacific cod TAC. The reduction in the Aleutian Islands TAC 
resulting from the State GHL fishery is distributed proportionately 
across all sectors, and is not borne by the hook-and-line CP sector 
alone.
    NMFS assumes that the commenter is concluding that setting aside an 
additional amount of Aleutian Islands Pacific cod for Aleutian Islands 
communities is not warranted because these communities are not 
processing the full amount of what has already been allocated to them 
through the State GHL fishery. The commenter is correct that the full 
amount of the Aleutian Islands State GHL fishery has not been harvested 
every year; however, it is incorrect to state that Adak has chosen not 
to participate in the fishery in recent years. As noted in Table 2-31 
in the Analysis, Aleutian Islands shoreplants have processed over 4,000 
mt of Pacific cod from Federal and State GHL fisheries each year from 
2012 through 2014. On average, Aleutian Islands shoreplants processed 
2,046 mt of Pacific cod from the State GHL fishery annually since the 
inception of the Aleutian Islands Pacific cod State GHL fishery in 
2006. The Council determined that the State GHL fishery alone was 
inadequate to sustain Aleutian Islands communities and shoreplants. 
Based on information received in public testimony, the Council 
determined that Aleutian Islands communities need about 9,000 mt of 
Pacific cod annually to support shoreplant operations. The Council 
selected a set-aside amount that in combination with the State GHL 
fishery would give Aleutian Islands communities access to at least 
9,000 mt of Pacific cod annually. See also the response to Comment 25.
    Comment 30: The data presented in the Analysis do not reflect CP 
participation and dependence in the Aleutian Islands Pacific cod 
fishery. Processing by the offshore sector has also declined since 
rationalization programs were implemented. This rule will cause 
economic harm to CPs that are invested and have historically 
participated in the Aleutian Islands Pacific cod fishery. This rule 
also harms CVs that cannot make onshore landings and must deliver to 
CPs.
    Response 30: NMFS and the Council recognize, and the Analysis 
shows, that CPs have a history of participation in the Aleutian Islands 
Pacific cod fishery (Sections 2.6.6.1 through 2.6.6.3 of the Analysis), 
that the average annual amount of Aleutian Islands Pacific cod 
processed by the offshore sector has declined since 2011 (coinciding 
with the BSAI TAC split, Table 2-31 of the Analysis), and that this 
rule may cause some economic losses to CPs. The Council also recognized 
that the amount of Pacific cod harvested by trawl CPs, and the number 
of participating trawl CPs, have declined since 2003 (Table 2-10 in the 
Analysis). However, Aleutian Islands Pacific cod represents only a 
small portion of the total landings and revenue by the trawl CP fleet 
(Table 2-11 in the Analysis). The declining biomass and BSAI TAC split 
have resulted in reduced Pacific cod catches in the Aleutian Islands 
for all participants in both the onshore and offshore sectors. The 
Council and NMFS have chosen to set aside a portion of the harvest for 
vessels delivering their catch to Aleutian Islands shoreplants because 
these Aleutian Islands fishing communities do not have the flexibility 
available to offshore sector participants to redeploy into other BSAI 
or GOA groundfish fisheries, move their operations to the Bering Sea, 
or participate in rationalization programs that grant greater 
flexibility (Section 2.7.2.2 of the Analysis). The Council and NMFS 
have determined that the onshore sector had a greater dependence on the 
Aleutian Islands Pacific cod fishery than the offshore sector. Section 
2.7.2.2 of the Analysis discusses some of the ways trawl CPs, trawl 
CVs, and hook-and-line CPs may respond to the restrictions imposed by 
this rule.
    The Council and NMFS recognize that some trawl CVs that have 
historically participated in the Aleutian Islands Pacific cod fishery 
lack the ability to make onshore deliveries. These vessels will likely 
experience a loss of economic activity from this action (Section 
2.7.2.3 of the Analysis), particularly in years of low Aleutian Islands 
Pacific cod TAC. The options for mitigating losses incurred by this 
action on trawl CVs are the same as for other sectors that may be 
excluded from the fishery during the set-aside: they may fish in the 
Bering Sea, fish the Aleutian Islands Unrestricted Fishery, or wait for 
the set-aside to be lifted.
    Comment 31: The F/V Katie Ann, a trawl CP, is one of the earliest 
and most consistent participants in the Aleutian Islands Pacific cod 
fishery. The F/V Katie Ann is more dependent on the Aleutian Islands 
Pacific cod fishery than any other CP. Participation by the F/V Katie 
Ann predates the American Fisheries Act and the first entry of any 
shorebased processor in the Aleutian Islands. The intermittent entry 
into the fishery by the Adak shoreplant has harmed the ability of the 
F/V Katie Ann to harvest and process its long-term historical share of 
the Aleutian Islands Pacific cod fishery. Amendment 113, if 
implemented, threatens to destroy one of the only remaining viable 
fishing operations for the F/V Katie Ann.
    Response 31: The Council and NMFS recognized the long history of 
participation in the Aleutian Islands Pacific cod fishery by the F/V 
Katie Ann as Amendment 113 was being developed and considered. The 
Council considered an option that would have allowed CPs that had 
processed Pacific cod in the Aleutian Islands management area in at 
least 12 years between 2000 and 2014, such as the F/V Katie Ann, to be 
exempt from restrictions on processing for up to 2,000 mt of Pacific 
cod. Ten CPs that harvested and processed both targeted and incidental 
catch of Pacific cod during that period would have qualified for this 
exemption. The F/V Katie Ann is the only vessel that operated as a 
mothership processing targeted Pacific cod during this period.
    The Council did not select this option for an exemption for the F/V 
Katie Ann or other qualified CPs. The 2,000-mt exemption would have 
represented 40 percent of the 5,000-mt set-aside. The Council 
determined, and NMFS agrees, that this amount would have substantially 
reduced the amount available to vessels delivering to Aleutian Islands 
shoreplants and could have undermined the efficacy of Amendment 113. 
The primary objective of Amendment 113 and this final rule is to 
provide access to and promote sustained participation in the Aleutian 
Islands Pacific cod fishery by Aleutian Islands fishing communities in 
this remote area, especially at very low TAC levels. At TACs larger 
than 5,000 mt, CPs and motherships may participate in the Aleutian 
Islands Unrestricted Fishery. The Council considered historical 
participation of the offshore sector, including the F/V Katie Ann, but 
determined that the fishery cannot

[[Page 84452]]

support historical levels of effort by all sectors (Section 2.7.2.5 of 
the Analysis). The Council selected a maximum level of 5,000 mt for the 
set-aside to provide continued access to the Aleutian Islands Pacific 
cod fishery by the offshore sector when the Aleutian Islands TAC is at 
a level that can accommodate both the needs of the inshore fishery and 
Aleutian Islands fishing communities, as well as offshore fishery 
participants. See also the response to Comment 33.
    Comment 32: In any fishery management plan that awards fishing 
privileges to one group and takes them away from another, there are 
certain to be winners and losers; however, the benefits to the winners 
must be balanced against the harm to the losers. Amendment 113 fails to 
achieve the required balance. There is little to no evidence that the 
harm that will be suffered by historical participants will be offset by 
any net benefits to either Adak or Atka. History has shown that it may 
be impossible to operate a viable shoreplant in Adak, and there is 
currently no one committed to future operations of the existing plant 
in Adak.
    Response 32: Amendment 113 and this final rule provide access to 
and sustained participation in the Aleutian Islands Pacific cod fishery 
by Aleutian Islands fishing communities, especially during periods when 
the Pacific cod TAC in the Aleutian Islands is relatively low. This is 
an appropriate action for the Council and NMFS to take, in recognition 
of the dependence on the Pacific cod fishery by Aleutian Islands 
fishing communities, the lack of protections for Aleutian Island 
harvesters and communities seeking to establish viable community-based 
fishing operations under the status quo, and the lack of opportunity 
for Aleutian Islands shoreplants and CVs to expand to other areas and 
fisheries.
    While it is accurate that the Aleutian Islands shoreplants in Adak 
or Atka did not process Pacific cod during the 2015 or 2016 fishing 
years, comments received during public testimony to the Council and the 
public comment period for the proposed rule state that investors and 
processors are planning to process Pacific cod in one or both 
communities if this final rule is implemented. The commenters believe 
that without the Aleutian Islands CV Harvest Set-Aside, it is doubtful 
that any operator will have a viable opportunity to process Pacific cod 
in Adak or Atka, and the inshore sector will continue to be preempted 
from the fishery. Public comments in favor of the action also state 
that there will be considerable social and economic benefits to 
Aleutian Islands communities as a result of this action that offset the 
expected costs to other participants.
    The Council included provisions to mitigate the costs of the set-
aside on other participants by providing access to the fishery by other 
participants if the Aleutian Islands shoreplants do not submit a 
notification of their intent to process Pacific cod in the upcoming 
year or if those shoreplants do not meet the minimum processing 
requirement of 1,000 mt on or before February 28. Additionally, 
historical participants who cannot participate in the set-aside may 
participate in the Aleutian Islands Unrestricted Fishery, when 
available, or fish in the Aleutian Islands for Pacific cod when the 
set-aside is lifted (see also the response to Comment 16).
    Comment 33: This action would significantly impact the revenue and 
operations of Amendment 80 CPs that also have a history of dependence 
on the Aleutian Islands Pacific cod fishery. These CPs take deliveries 
from CVs that are unable to deliver to shore.
    Response 33: Amendment 113 and this rule do not prohibit Amendment 
80 CPs and CVs delivering to Amendment 80 CPs from participating in the 
A-season Pacific cod fishery in the Aleutian Islands; those vessels may 
participate in the Aleutian Islands Unrestricted Fishery, when 
available, and may harvest any remaining BSAI non-CDQ Pacific cod up to 
the Aleutian Islands DFA after the set-aside is lifted. In addition, if 
NMFS does not receive timely notification from the City of Adak or the 
City of Atka, there will be no Aleutian Islands CV Harvest Set-Aside, 
and no additional regulatory harvesting or delivery limitations imposed 
on these vessels.
    When the Aleutian Islands DFA is greater than 5,000 mt, the 
difference between the DFA and the Aleutian Islands CV Harvest Set-
Aside is available as the ``Aleutian Islands Unrestricted Fishery'' for 
directed fishing by all non-CDQ fishery sectors with sufficient A-
season allocation and may be processed by any eligible processor, 
including Amendment 80 CPs and CVs making deliveries to them. The 
amount of the Aleutian Islands Unrestricted Fishery will be published 
in the BSAI Harvest Specifications. Given the current 2017 harvest 
specifications for Aleutian Islands Pacific cod, 3,965 mt of Pacific 
cod will be available for the Aleutian Islands Unrestricted Fishery.
    The Aleutian Islands CV Harvest Set-Aside will only be in effect 
for a portion of the A-season. The set-aside will be lifted if the 
entire amount of the set-aside has been delivered to Aleutian Islands 
shoreplants, or on March 15, whichever comes first. Additionally, if 
Aleutian Islands shoreplants do not meet certain performance 
requirements, the harvest and delivery restrictions will be lifted and 
the Aleutian Islands Pacific cod DFA can be harvested by any eligible 
vessel for delivery to any eligible processor. For example, if Aleutian 
Islands shoreplants have not processed at least 1,000 mt of Pacific cod 
by February 28, the set-aside will be lifted. Any amount of the set-
aside remaining after that date, plus the remainder of the Aleutian 
Islands DFA, will be available for harvest by any eligible vessel for 
delivery to any eligible processor. Likewise, if the entire set-aside 
is harvested prior to March 15, the harvest and delivery restrictions 
will be lifted immediately. At the latest, the harvest set-aside will 
be lifted on March 15, and any amount of the set-aside remaining will 
be added to the remaining Aleutian Islands DFA for harvest by any 
eligible vessel for delivery to any eligible processor.
    Comment 34: Section 2.7.2 of the Analysis states that the set-aside 
``would preclude the future participation of other participants that 
may benefit or have historically benefitted from the harvesting and 
processing of Aleutian Islands Pacific cod unless Aleutian Islands 
shoreplants are unable to process the Aleutian Islands Pacific cod 
received from catcher vessels.'' The justification for this is 
presented as the Council having made inshore-offshore allocations 
previously. This, however, is not an inshore-offshore allocation; this 
is pre-emption of the offshore sector to the benefit of the onshore 
sector.
    Response 34: The sentence that follows the material quoted by the 
commenter states, ``The Council and NMFS have allocated fishery 
resources between inshore and offshore participants in the past, 
consistent with the purpose and need for the action, the National 
Standards and other provisions of the MSA [Magnuson-Stevens Act].'' 
This sentence simply refers to past actions taken by the Council and 
NMFS that allocate fishery resources between inshore and offshore 
participants and does not represent the Council's and NMFS' 
justification for recommending and approving the Aleutian Islands 
Pacific cod harvest set-aside. The justification and rationale for 
establishing the set-aside is provided generally in the administrative 
record for Amendment 113, and specifically in Section 2.4.3 of the 
Analysis, in the preamble of the proposed rule, and in the preamble of 
this final rule.
    Although the Aleutian Islands Pacific cod set-aside is not 
identical to other inshore-offshore allocation actions the

[[Page 84453]]

Council and NMFS have implemented, the set-aside does allocate Aleutian 
Islands Pacific cod among an inshore sector (those vessels that deliver 
their catch to Aleutian Islands shoreplants for processing) and an 
offshore sector (those vessels that process their catch at sea or that 
deliver their catch to offshore processors for processing), making it a 
type of inshore-offshore allocation. Another type of inshore-offshore 
allocation was the Gulf of Alaska (GOA) pollock and Pacific cod 
inshore-offshore allocations under Amendment 23 to the Fishery 
Management Plan for Groundfish of the GOA (GOA FMP). Under Amendment 
23, 100 percent of the GOA pollock TAC was allocated to vessels 
delivering their catch of pollock to onshore processors. In the 
preamble of the final rule implementing Amendment 23, NMFS stated, 
``The allocation of 100 percent of the GOA pollock TAC to the inshore 
sector proposed by the Council and approved by the Secretary slightly 
exceeds the harvest rates of the inshore sector in recent years and 
results in a redistribution of the pollock resource from the offshore 
sector to the inshore sector. The Secretary determined that this 
redistribution was appropriate based on the social and other benefits 
that would be derived from implementation of the allocation'' (57 FR 
23321, June 3, 1992). In contrast to the inshore-offshore allocation of 
GOA pollock under Amendment 23 to the GOA FMP, the Aleutian Islands 
Pacific cod CV Harvest Set-aside will allow the offshore sector to 
participate in the Aleutian Islands Pacific cod fishery in years when 
the Aleutian Islands Pacific cod DFA provides for the Unrestricted 
Fishery, and in years when no Aleutian Islands shoreplant is processing 
Pacific cod or participating vessels fail to deliver 1,000 mt of 
Aleutian Islands Pacific cod to Aleutian Islands shoreplants by 
February 28.
    Comment 35: This action would create an exclusive processing 
privilege for Adak under the assumption that shore-based processors are 
entitled to an allocated share of processing privileges. The Council 
and NMFS have attempted to disguise an exclusive processing allocation 
to Adak by defining qualifying participants as ``Aleutian Islands 
shoreplants'' within a specified geographic region. However, the 
shoreplant in Atka has never processed Pacific cod and has no 
historical dependence on the fishery and it is unlikely that competing 
processing will be developed in the region in the foreseeable future. 
Therefore, this action is an exclusive allocation to Adak, whose 
shoreplant has a dubious track record for paying fisherman and has had 
numerous operational difficulties.
    The Magnuson-Stevens Act does not allow a fishery management 
council to allocate fishery privileges to shore-based processors. The 
express Federal prohibition of creating such a privilege was 
acknowledged by NOAA General Counsel (GC) in a letter from Lisa 
Lindeman to the Council Chair in 2009. Section 303A of the Magnuson-
Stevens Act specifies that limited access privilege programs authorized 
under this act pertain to fish harvesting. Had Congress intended to 
create an individual processor quota, it could have done so, as it did 
for the crab fisheries in the BSAI. No such congressional grant of 
authority applies to shore-based processors operating in the Aleutian 
Islands Pacific cod fishery.
    Response 35: In a memorandum dated September 30, 2009, from Lisa 
Lindeman, Regional Counsel for the Alaska Region of NOAA General 
Counsel, to Eric Olsen (then Chairman) and Chris Oliver (Executive 
Director) of the Council, NOAA GC provided the Council with legal 
advice in response to four questions posed by the Council. Questions 1, 
2, and 4 of the 2009 memorandum are relevant in responding to this 
comment. In response to the first question, NOAA GC advised that except 
for the authority provided at section 313(j) for the Crab 
Rationalization Program (16 U.S.C. 1862(j)), the Magnuson-Stevens Act 
does not provide the Council or NMFS with the authority to require 
fixed linkages between harvesters and shore-based processors. In fixed 
linkages, a harvester is required to deliver his or her catch to a 
specific shore-based processor. NOAA GC explained that requiring fixed 
linkages between harvesters and shore-based processors is similar to 
issuing processor quota, which is not authorized by the Magnuson-
Stevens Act except for the Crab Rationalization Program. Therefore, 
with the exception of the Crab Rationalization Program, NMFS 
acknowledges that the Council and NMFS do not have authority under the 
Magnuson-Stevens Act to require fixed linkages between harvesters and 
processors or to establish exclusive processing privileges or processor 
quota.
    In response to the second question, NOAA GC advised that the 
Magnuson-Stevens Act does authorize allocation of harvesting privileges 
to shore-based processors if other requirements of the Magnuson-Stevens 
Act are met. Therefore, NMFS generally disagrees with the commenter's 
assertion that the Magnuson-Stevens Act does not allow a fishery 
management council to allocate fishery privileges to shore-based 
processors. Finally, in response to the fourth question, whether the 
Magnuson-Stevens Act authorizes the Council to establish an exclusive 
class of shore-based processors that would be the recipients of all, or 
a specific portion of all, landings from a fishery, NOAA GC advised 
that the answer is dependent on the purpose of the action and the 
record developed by the Council. NOAA GC stated, ``The Magnuson-Stevens 
Act does not authorize placing a limit on the number of shore-based 
processing sites if the purpose is to allocate shore-based processing 
privileges. . . . However, if the Council developed an adequate record 
demonstrating that an action, which had the practical effect of 
limiting the number of sites to which deliveries could be made, was 
necessary for legitimate management or conservation objectives (e.g., . 
. . protection of fishing communities that depend on the fisheries) and 
not a disguised limited entry program, then there could be a legal 
basis for such an action.''
    NMFS disagrees that this action creates an exclusive processing 
privilege for Adak or a disguised processing allocation to Adak. No 
aspect of this action establishes exclusivity. This final rule does not 
provide a specific allocation of processing privileges to either 
Aleutian Islands shoreplant. Nothing in Amendment 113 or this final 
rule prevents the Atka shoreplant from processing Aleutian Islands 
Pacific cod and reducing the amount of Pacific cod that is delivered to 
Adak by vessels participating in the set-aside, prevents other Aleutian 
Islands shoreplants from processing Aleutian Islands Pacific cod in 
Adak or Atka, or prevents a shoreplant in any other onshore location 
west of 170[deg] W. longitude from processing Aleutian Islands Pacific 
cod. The fact that the set-aside will be lifted if notification of 
intent to process is not provided, or if less than 1,000 mt of Aleutian 
Islands Pacific cod is processed by February 28, is directly contrary 
to exclusive privileges that permit the holder of the privilege 
exclusive access to the resource without diminishment by other 
participants or revocation without procedural due process. As explained 
throughout this final rule, the Council and NMFS have articulated 
legitimate management and conservation objectives for the Aleutian 
Islands CV Harvest Set-Aside to protect Aleutian Islands fishing 
communities that depend on access to and sustained participation in the 
fisheries for the socioeconomic benefits and stability

[[Page 84454]]

provided by that access and participation. Therefore, Amendment 113 and 
this final rule do not create an exclusive processing privilege for 
Adak.

OMB Revisions to PRA References in 15 CFR 902.1(b)

    Section 3507(c)(B)(i) of the Paperwork Reduction Act (PRA) requires 
that agencies inventory and display a current control number assigned 
by the Director of the Office of Management and Budget (OMB), for each 
agency's information collection. Section 902.1(b) identifies the 
location of NOAA regulations for which OMB approval numbers have been 
issued. Because this final rule revises and adds data elements within a 
collection-of-information for recordkeeping and reporting requirements, 
15 CFR 902.1(b) is revised to reference correctly the sections 
resulting from this final rule.

Classification

    The NMFS Assistant Administrator, Alaska Region, NMFS, determined 
that Amendment 113 to the FMP and this rule are necessary for the 
conservation and management of the groundfish fishery and that they are 
consistent with the Magnuson-Stevens Act and other applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.

Administrative Procedure Act

    The NMFS Assistant Administrator finds good cause under 5 U.S.C. 
553(d)(3) to waive the 30-day delay in effectiveness for this final 
rule. This finding is based on the need to provide the City of Adak and 
the City of Atka with sufficient time to submit a notification of 
intent to process that complies with the regulatory requirements after 
the notification requirements are effective; to provide NMFS with 
sufficient time to notify the general public and the affected industry 
as to whether the Aleutian Islands CV Harvest Set-Aside will be in 
effect for 2017; and to provide the affected industry with sufficient 
time to adequately prepare for the start of the 2017 fishing year on 
January 1, 2017.
    NMFS has determined that it must give the City of Adak and the City 
of Atka 15 days after the effective date of the notification of intent 
to process regulations to take all necessary steps to prepare, sign, 
and submit a notification of intent to process that complies with the 
regulatory requirements at Sec.  679.20(a)(7)(viii)(D). Because these 
cities are aware of this action, have been anticipating its approval, 
and support its implementation in time for the 2017 fishing year, NMFS 
has determined that 15 days will provide the cities with enough time to 
comply with the notification requirements in 2016. Without waiver of 
the 30-day delay in effectiveness, the deadline for submission of a 
notification of intent to process would occur 45 days after publication 
of the final rule in the Federal Register, which means the deadline 
would occur very late in December 2016 or in early January 2017. A 
deadline in late December would not provide NMFS with adequate time to 
notify the industry as to whether the set-aside will be in effect on 
January 1, 2017, or provide the affected industry with sufficient time 
to prepare for the fishery which begins on January 1 for some 
participants in the Aleutian Islands Pacific cod fishery. Because NMFS 
must receive a notification of intent prior to the start of the fishing 
year to provide for an orderly start to the fishing year and to ensure 
the appropriate specifications are in place before fishing occurs on 
January 1, any notification deadline for 2016 that would occur after 
December 31, 2016, renders the set-aside meaningless for the 2017 
fishing year. For reasons set forth in the Analysis and the preambles 
of the proposed rule and this final rule, the Council and NMFS have 
determined that the Aleutian Islands CV Harvest Set-Aside will provide 
important socioeconomic benefits and stability to Aleutian Islands 
fishing communities that intend to process Aleutian Islands Pacific cod 
in the upcoming fishing year. Waiving the 30-day delay in effectiveness 
will provide Aleutian Islands fishing communities with an opportunity 
to realize those benefits starting with the 2017 fishing year; failure 
to waive the delay in effectiveness will postpone that opportunity for 
an entire fishing year until 2018. One Aleutian Islands shoreplant has 
already informally notified NMFS that it intends to process Aleutian 
Islands Pacific cod in 2017.
    Additionally, as explained earlier in this final rule, the Analysis 
determined that the affected fishing industry would have sufficient 
time to prepare for the upcoming fishing year if notification of intent 
to process was received from Adak or Atka prior to December 15. Waiving 
the delay in effectiveness for these regulations provides for a 
submission deadline that will occur before December 15, thus providing 
NMFS with sufficient time to notify the public and affected industry as 
to whether the set-aside will be in effect, and for the affected 
industry, including vessels that deliver their catch to Aleutian 
Islands shoreplants and those that deliver their catch to at-sea 
processors, to prepare for the start of the fishing year with that 
knowledge. As explained above, failure to waive the delay in 
effectiveness could result in a notification deadline that occurs in 
late December, which would not provide NMFS or the affected industry 
with sufficient time to prepare for the upcoming fishery that starts on 
January 1, 2017.
    For these reasons, the NMFS Assistant Administrator finds good 
cause to waive the 30-day delay in effectiveness for this final rule.

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 Final Regulatory Flexibility 
Analysis, 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 preambles to 
the proposed rule and this final rule serve as the small entity 
compliance guide. This action does not require any additional 
compliance from small entities that is not described in the preambles. 
Copies of the proposed rule and this final rule are available from the 
NMFS Web site at http://alaskafisheries.noaa.gov.

Final Regulatory Flexibility Analysis

    Section 604 of the Regulatory Flexibility Act (RFA) requires that, 
when an agency promulgates a final rule under section 553 of Title 5 of 
the U.S. Code, after being required by that section or any other law to 
publish a general notice of proposed rulemaking, the agency shall 
prepare a FRFA. Section 604 describes the required contents of a FRFA: 
(1) A statement of the need for and objectives of the rule; (2) a 
statement of the significant issues raised by the public comments in 
response to the initial regulatory flexibility analysis, a statement of 
the assessment of the agency of such issues, and a statement of any 
changes made in the proposed rule as a result of such comments; (3) the 
response of the agency to any comments filed by the Chief Counsel for 
Advocacy of the U.S. Small Business Administration (SBA) in response to 
the proposed rule, and a detailed statement of any change made to the 
proposed rule in the final rule as a result of the comments; (4) a 
description of and an estimate of the number of small entities to which 
the rule will apply or an explanation of why

[[Page 84455]]

no such estimate is available; (5) a description of the projected 
reporting, recordkeeping, and other compliance requirements of the 
rule, including an estimate of the classes of small entities which will 
be subject to the requirement and the type of professional skills 
necessary for preparation of the report or record; and (6) 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.
(1) Need for and Objectives of This Final Rule
    A statement of the need for and objectives of this rule is 
contained earlier in the preamble and is not repeated here. This FRFA 
incorporates the IRFA (see ADDRESSES) and the summary of the IRFA in 
the proposed rule (81 FR 50444, August 1, 2016), a summary of the 
significant issues raised by the public comments, NMFS' responses to 
those comments, and a summary of the analyses completed to support the 
action.
(2) Summary of Significant Issues Raised During Public Comment Period
    No comments were received that raised significant issues in 
response to the IRFA specifically; therefore, no changes were made to 
this rule as a result of comments on the IRFA. However, several 
comments were received on the economic impacts of Amendment 113 on the 
Amendment 80 trawl CP and hook-and-line CP sectors. For a summary of 
the comments received and NMFS' responses, refer to the section above 
titled ``Responses to Comments.''
(3) Public and Chief Counsel for Advocacy Comments on the IRFA
    NMFS published the proposed rule on August 1, 2016 (81 FR 50444), 
with comments invited through August 31, 2016. An IRFA was prepared and 
summarized in the ``Classification'' section of the preamble to the 
proposed rule. NMFS received 18 letters of public comment on the 
proposed rule and Amendment 113 to the FMP. The Chief Counsel for 
Advocacy of the SBA did not file any comments on the proposed rule.
(4) Description and Number of Directly Regulated Small Entities
    This final rule directly regulates three groups of entities. This 
final rule will directly regulate trawl CVs harvesting Pacific cod in 
the BSAI because it limits how much Pacific cod those trawl CVs may 
harvest in the Bering Sea, and it may prohibit trawl CVs from 
participating in the Aleutian Islands Pacific cod fishery if they do 
not deliver their Pacific cod catch to Aleutian Islands shoreplants. It 
also directly regulates all non-trawl CVs who are harvesting Pacific 
cod in the Aleutian Islands because it will prohibit those non-trawl 
CVs from participating in the Aleutian Islands Pacific cod fishery if 
they do not deliver their Pacific cod catch to Aleutian Islands 
shoreplants. Finally, this final will directly regulate all CPs 
harvesting Pacific cod in the Aleutian Islands because it limits how 
much Pacific cod those CPs can harvest and process in the Aleutian 
Islands. This rule does not directly regulate the City of Adak or the 
City of Atka because it does not impose a requirement on those cities. 
This rule does not directly regulate entities participating in the 
harvesting and processing of Pacific cod managed under State GHL 
fisheries in State waters in the Bering Sea or Aleutian Islands.
    The SBA has established size standards for all major industry 
sectors in the United States. For RFA purposes only, NMFS has 
established a small business size standard for businesses, including 
their affiliates, whose primary industry is commercial fishing (see 50 
CFR 200.2). A business primarily engaged in commercial fishing (NAICS 
code 114111) is classified as a small business if it is independently 
owned and operated, is not dominant in its field of operation 
(including its affiliates), and has combined annual receipts not in 
excess of $11 million for all its affiliated operations worldwide.
    Based on the best available and most recent complete data from 2012 
through 2014, between 10 and 16 CPs, and an estimated 43 CVs (trawl and 
non-trawl) will be directly regulated by this action in the BSAI. Of 
these, no CP is estimated to be a small entity, while 6 trawl CVs and 
26 non-trawl CVs are estimated to be small entities based on the best 
available data on the gross receipts from these entities and their 
known affiliates. Therefore, a total of 32 vessels considered to be 
small entities will be directly regulated by this action. The IRFA 
assumes that each vessel is a unique entity; therefore, the total 
number of directly regulated entities may be an overestimate because 
some vessels are likely affiliated through common ownership. These 
potential affiliations are not known with the best available data and 
cannot be predicted.
(5) Recordkeeping, Reporting, and Other Compliance Requirements
    This final rule adds a recordkeeping and reporting requirement to 
notify NMFS of an Aleutian Islands shoreplant's intent to process 
Aleutian Islands Pacific cod in the upcoming year; therefore, the 
recordkeeping, reporting, and other compliance requirements are 
increased slightly under this final rule. This final rule contains a 
new requirement for the City of Adak or the City of Atka to notify NMFS 
of its intent to process Aleutian Islands Pacific cod in the upcoming 
fishing year in order for the Bering Sea Trawl CV A-Season Sector 
Limitation and the Aleutian Islands CV Harvest Set-Aside to go into 
effect in the upcoming fishing year. The City Manager of Adak or the 
City Administrator of Atka is required to provide NMFS with an official 
notification of intent prior to December 8, 2016, and no later than 
October 31 for each year after 2016, for the harvest set-aside to go 
into effect in the upcoming year. The professional skills necessary to 
provide this notice include writing, sending email, and access to a 
U.S. Post Office.
(6) Description of Significant Alternatives Considered to the Final 
Action That Minimize Adverse Impacts on Small Entities
    The RFA requires identification of any significant alternatives to 
the final rule that accomplish the stated objectives of the final 
action, consistent with applicable statutes, and that would minimize 
any significant economic impact of the final rule on small entities. 
The Council considered a status quo alternative and one action 
alternative with several options and suboptions. The combination of 
options and suboptions under the action alternative effectively 
provided a broad range of potential alternative approaches to status 
quo management. Under the status quo, there would have been a continued 
risk that fishing communities in the Aleutian Islands would not be able 
to sustainably participate in the Aleutian Islands Pacific cod fishery. 
The action alternative does not affect any non-CDQ fishery sector's 
Pacific cod allocation, or the TAC of Aleutian Islands Pacific cod. The 
action alternative accomplishes the stated objectives of prioritizing a 
portion of the Aleutian Islands Pacific cod TAC for harvest by vessels 
that deliver their

[[Page 84456]]

catch to Aleutian Islands shoreplants for processing, while minimizing 
adverse economic impacts on small entities and the potential for 
stranding a portion of the Aleutian Islands Pacific cod TAC.
    The Council considered a range of dates, varying amounts of 
Aleutian Islands Pacific cod for the harvest set-aside and Bering Sea 
sector limitation, and a suite of mechanisms to relieve the Bering Sea 
Trawl CV A-Season Sector Limitation and the Aleutian Islands CV Harvest 
Set-Aside under the action alternative. The Council recommended the 
final combination of dates, harvest set-aside amounts, harvest 
limitations, and provisions to relieve the Bering Sea Trawl CV A-Season 
Sector Limitation and the Aleutian Islands CV Harvest Set-Aside that 
would give fishery participants sufficient opportunity to harvest and 
deliver Aleutian Islands Pacific cod to the benefit of Aleutian Islands 
communities and shoreplants without stranding the trawl CV sector 
allocation or the Aleutian Islands Pacific cod TAC. The Council 
recommended and NMFS is implementing selected options in the action 
alternative such that if specific notification or minimum harvest and 
processing requirements are not met by a specific date, the Bering Sea 
Trawl CV A-Season Sector Limitation and the Aleutian Islands CV Harvest 
Set-Aside will either not go into effect in the upcoming year, or they 
will be lifted for the remainder of the year.
    The Council considered and rejected two options under the action 
alternative. One option would have required that if less than 50 
percent of the Aleutian Islands CV Harvest Set-Aside had been landed at 
an Aleutian Islands shoreplant by a given date, ranging from February 
28 to March 15, the Bering Sea Trawl CV A-Season Sector Limitation and 
the Aleutian Islands CV Harvest Set-Aside would be lifted. Instead, the 
Council selected an option that requires a minimum weight (1,000 mt) 
rather than a minimum percentage of the Aleutian Islands CV Harvest 
Set-Aside that must be landed at an Aleutian Islands shoreplant for 
processing by a given date (February 28) for the Bering Sea Trawl CV A-
Season Sector Limitation and the Aleutian Islands CV Harvest Set-Aside 
to remain in place.
    The Council also considered and rejected an option that would have 
exempted certain processing vessels with a history of processing 
Aleutian Islands Pacific cod in at least 12 out of 15 recent years from 
the final restrictions on processing and would have allowed them to 
process up to 2,000 mt of Aleutian Islands Pacific cod while the set-
aside was in effect. This option could have allowed up to 10 processing 
vessels to continue to process Pacific cod during the A-season, 
limiting the effectiveness of this final rule to minimize the risk of a 
diminished historical share of Aleutian Islands Pacific cod being 
delivered to Aleutian Islands shoreplants and the communities where 
those shoreplants are located.
Federal Rules That May Duplicate, Overlap, or Conflict With the Final 
Action
    NMFS has not identified any duplication, overlap, or conflict 
between this final action and existing Federal rules.

Collection-of-Information Requirements

    This final rule contains a collection-of-information requirement 
subject to the PRA and which has been approved by OMB under control 
number 0648-0743.
    Public reporting burden for Notification of Intent to Process 
Aleutian Islands Pacific cod is estimated to average 30 minutes per 
individual response, including the time for reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed, and completing and reviewing the collection of information.
    Send comments regarding this data collection, or any other aspect 
of this data collection, including suggestions for reducing the burden, 
to NMFS Alaska Region (see ADDRESSES), and by email to 
[email protected], or fax to (202) 395-5806.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number. All currently approved NOAA 
collections of information may be viewed at: http://www.cio.noaa.gov/services_programs/prasubs.html.

List of Subjects

15 CFR Part 902

    Reporting and recordkeeping requirements.

50 CFR Part 679

    Alaska, Fisheries, Reporting and recordkeeping requirements.

    Dated: November 14, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, NMFS amends 15 CFR part 
902 and 50 CFR part 679 as follows:

Title 15--Commerce and Foreign Trade

PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE 
PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS

0
1. The authority citation for part 902 continues to read as follows:

    Authority: 44 U.S.C. 3501 et seq.


0
2. In Sec.  902.1, in the table in paragraph (b), under the entry ``50 
CFR'', add an entry for ``679.20(a)(7)(viii)'' to read as follows:


Sec.  902.1   OMB control numbers assigned pursuant to the Paperwork 
Reduction Act.

* * * * *
    (b) * * *

------------------------------------------------------------------------
                                                            Current OMB
                                                          control number
  CFR part or section where the information collection      (all numbers
                 requirement is located                     begin with
                                                              0648-)
------------------------------------------------------------------------
 
                                * * * * *
50 CFR:
 
                                * * * * *
679.20(a)(7)(viii)......................................           -0743
 
                                * * * * *
------------------------------------------------------------------------

* * * * *

Title 50--Wildlife and Fisheries

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

0
3. The authority citation for 50 CFR part 679 continues to read as 
follows:

    Authority: 16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.; 
Pub. L. 108-447; Pub. L. 111-281.


0
4. In Sec.  679.2, add a definition for ``Aleutian Islands shoreplant'' 
in alphabetical order to read as follows:


Sec.  679.2  Definitions.

* * * * *
    Aleutian Islands shoreplant means a processing facility that is 
physically located on land west of 170[deg] W. longitude within the 
State of Alaska.
* * * * *

0
5. In Sec.  679.20, add paragraph (a)(7)(viii) to read as follows:

[[Page 84457]]

Sec.  679.20  General limitations.

* * * * *
    (a) * * *
    (7) * * *
    (viii) Aleutian Islands Pacific Cod Catcher Vessel Harvest Set-
Aside Program--(A) Calculation of the Aleutian Islands Pacific cod non-
CDQ ICA and DFA. Each year, during the annual harvest specifications 
process set forth at paragraph (c) of this section, NMFS will specify 
the Aleutian Islands Pacific cod non-CDQ incidental catch allowance and 
directed fishing allowance from the Aleutian Islands Pacific cod non-
CDQ TAC as follows. Shortly after completion of the process set forth 
in paragraph (a)(7)(viii)(D) of this section, NMFS will announce 
through notice in the Federal Register whether the ICA and DFA will be 
in effect for the upcoming fishing year.
    (1) Aleutian Islands Pacific cod non-CDQ incidental catch 
allowance. Each year, during the annual harvest specifications process 
set forth at paragraph (c) of this section, NMFS will specify an amount 
of Aleutian Islands Pacific cod that NMFS estimates will be taken as 
incidental catch in non-CDQ directed fisheries for groundfish other 
than Pacific cod in the Aleutian Islands. This amount will be the 
Aleutian Islands Pacific cod non-CDQ incidental catch allowance and 
will be deducted from the aggregate portion of Pacific cod TAC annually 
allocated to the non-CDQ sectors identified in paragraph (a)(7)(ii)(A) 
of this section.
    (2) Aleutian Islands Pacific cod non-CDQ directed fishing 
allowance. Each year, during the annual harvest specifications process 
set forth at paragraph (c) of this section, NMFS will specify the 
Aleutian Islands Pacific cod non-CDQ directed fishing allowance. The 
Aleutian Islands Pacific cod non-CDQ directed fishing allowance will be 
the amount of the Aleutian Islands Pacific cod TAC remaining after 
subtraction of the Aleutian Islands Pacific cod CDQ reserve and the 
Aleutian Islands Pacific cod non-CDQ incidental catch allowance.
    (B) Calculation of the Aleutian Islands CV Harvest Set-Aside and 
Aleutian Islands Unrestricted Fishery. Each year, during the annual 
harvest specifications process set forth at paragraph (c) of this 
section, NMFS will specify the Aleutian Islands CV Harvest Set-Aside 
and the Aleutian Islands Unrestricted Fishery. The Aleutian Islands CV 
Harvest Set-Aside will be an amount of Pacific cod equal to the lesser 
of either the Aleutian Islands Pacific cod non-CDQ directed fishing 
allowance as determined in paragraph (a)(7)(viii)(A)(2) of this section 
or 5,000 mt. The Aleutian Islands Unrestricted Fishery will be the 
amount of Pacific cod that remains after deducting the Aleutian Islands 
CV Harvest Set-Aside from the Aleutian Islands Pacific cod non-CDQ 
directed fishing allowance as determined in paragraph 
(a)(7)(viii)(A)(2) of this section. Shortly after completion of the 
process set forth in paragraph (a)(7)(viii)(D) of this section, NMFS 
will announce through notice in the Federal Register whether the 
Aleutian Islands CV Harvest Set-Aside and the Aleutian Islands 
Unrestricted Fishery will be in effect for the upcoming fishing year.
    (C) Calculation of the Bering Sea Trawl CV A-Season Sector 
Limitation. Each year, during the annual harvest specifications process 
set forth at paragraph (c) of this section, NMFS will specify the 
Bering Sea Trawl CV A-Season Sector Limitation and the amount of the 
trawl CV sector's A-season allocation that could be harvested in the 
Bering Sea subarea prior to March 21. The Bering Sea Trawl CV A-Season 
Sector Limitation will be an amount of Pacific cod equal to the lesser 
of either the Aleutian Islands Pacific cod non-CDQ directed fishing 
allowance as determined in paragraph (a)(7)(viii)(A)(2) of this section 
or 5,000 mt. The amount of the trawl CV sector's A-season allocation 
that could be harvested in the Bering Sea subarea prior to March 21 
will be the amount of Pacific cod that remains after deducting the 
Bering Sea Trawl CV A-Season Sector Limitation from the amount of BSAI 
Pacific cod allocated to the trawl CV sector A-season as determined in 
paragraph (a)(7)(iv)(A)(1)(i) of this section. Shortly after completion 
of the process set forth in paragraph (a)(7)(viii)(D) of this section, 
NMFS will announce through notice in the Federal Register whether the 
Bering Sea Trawl CV A-Season Sector Limitation will be in effect for 
the upcoming fishing year.
    (D) Annual notification of intent to process Aleutian Islands 
Pacific cod--(1) Submission of notification. The provisions of 
paragraph (a)(7)(viii)(E) of this section will apply if the either the 
City Manager of the City of Adak or the City Administrator of the City 
of Atka submits to NMFS a timely and complete notification of its 
intent to process Aleutian Islands Pacific cod during the upcoming 
fishing year. This notification must be submitted annually to NMFS 
using the methods described below.
    (2) Submittal method. An official notification of intent to process 
Aleutian Islands Pacific cod during the upcoming fishing year in the 
form of a letter or memorandum signed by the City Manager of the City 
of Adak or the City Administrator of the City of Atka must be submitted 
by certified mail through the United States Postal Service to: NMFS 
Alaska Region, Attn: Regional Administrator, P. O. Box 21668, Juneau, 
AK 99802. The City Manager or City Administrator must also submit an 
electronic copy of the official notification of intent and the 
certified mail receipt with postmark via email to 
[email protected]. Email submission is in addition to 
submission via U.S. Postal Service; email submission does not replace 
the requirement to submit an official notification of intent via U.S. 
Postal Service.
    (3) NMFS confirmation. On or shortly after December 8, 2016, or 
November 1 for each year after 2016, the Regional Administrator will 
send a signed and dated letter to the City Manager of the City of Adak 
or the City Administrator of the City of Atka either confirming NMFS' 
receipt of its official notification of intent to process Aleutian 
Islands Pacific cod, or informing the city that NMFS did not receive 
notification by the deadline.
    (4) Deadline. The official notification of intent to process 
Aleutian Islands Pacific cod for the upcoming fishing year must be 
postmarked no later than December 8, 2016, or October 31 for each year 
after 2016, in order for the provisions of paragraph (a)(7)(viii)(E) of 
this section to apply during the upcoming fishing year. Notifications 
of intent postmarked on or after December 9, 2016, or November 1 for 
each year after 2016, will not be accepted by the Regional 
Administrator. The electronic copy of the official notification of 
intent and certified mail receipt with postmark must be submitted to 
NMFS via email dated no later than December 8, 2016, or no later than 
October 31 for each year after 2016, in order for the provisions of 
paragraph (a)(7)(viii)(E) of this section to apply during the upcoming 
fishing year.
    (5) Contents of notification. A notification of intent to process 
Aleutian Islands Pacific cod for the upcoming fishing year must contain 
the following information:
    (i) Date,
    (ii) Name of city,
    (iii) Statement of intent to process Aleutian Islands Pacific cod,
    (iv) Identification of the fishing year during which the city 
intends to process Aleutian Island Pacific cod, and
    (v) Signature of and contact information for the City Manager or 
City Administrator of the city intending to process Aleutian Islands 
Pacific cod.
    (E) Aleutian Islands community protections for Pacific cod. If the 
City Manager of the City of Adak or the City

[[Page 84458]]

Administrator of the City of Atka submits a timely and complete 
notification in accordance with paragraph (a)(7)(viii)(D) of this 
section, then the following provisions will apply for the fishing year 
following the submission of the timely and complete notification:
    (1) Bering Sea Trawl CV A-Season Sector Limitation. Prior to March 
21, the harvest of Pacific cod by the trawl CV sector in the Bering Sea 
subarea is limited to an amount equal to the trawl CV sector A-season 
allocation as determined in paragraph (a)(7)(iv)(A)(1)(i) of this 
section minus the Bering Sea Trawl CV A-Season Sector Limitation as 
determined in paragraph (a)(7)(viii)(C) of this section. If, after the 
start of the fishing year, the provisions of paragraphs 
(a)(7)(viii)(E)(4) or (5) of this section are met, this paragraph 
(a)(7)(viii)(E)(1) will not apply for the remainder of the fishing 
year.
    (2) Aleutian Islands Catcher Vessel Harvest Set-Aside. Prior to 
March 15, only catcher vessels that deliver their catch of Aleutian 
Islands Pacific cod to Aleutian Islands shoreplants for processing may 
directed fish for that portion of the Aleutian Islands Pacific cod non-
CDQ directed fishing allowance that is specified as the Aleutian 
Islands Catcher Vessel Harvest Set-Aside in paragraph (a)(7)(viii)(B) 
of this section. If, after the start of the fishing year, the 
provisions of paragraph (a)(7)(viii)(E)(4) of this section are met, 
this paragraph (a)(7)(viii)(E)(2) will not apply for the remainder of 
the fishing year.
    (3) Aleutian Islands Unrestricted Fishery. Prior to March 15, 
vessels otherwise authorized to directed fish for Pacific cod in the 
Aleutian Islands may directed fish for that portion of the Aleutian 
Islands Pacific cod non-CDQ directed fishing allowance that is 
specified as the Aleutian Islands Unrestricted Fishery as determined in 
paragraph (a)(7)(viii)(B) of this section and may deliver their catch 
to any eligible processor.
    (4) Minimum Aleutian Islands shoreplant landing requirement. If 
less than 1,000 mt of the Aleutian Islands Catcher Vessel Harvest Set-
Aside is landed at Aleutian Islands shoreplants on or before February 
28, then paragraphs (a)(7)(viii)(E)(1) and (2) of this section will not 
apply for the remainder of the fishing year.
    (5) Harvest of Aleutian Islands Catcher Vessel Harvest Set-Aside. 
If the Aleutian Islands Catcher Vessel Harvest Set-Aside is fully 
harvested prior to March 15, then paragraph (a)(7)(viii)(E)(1) of this 
section will not apply for the remainder of the fishing year.
* * * * *
[FR Doc. 2016-28152 Filed 11-22-16; 8:45 am]
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                                                84434        Federal Register / Vol. 81, No. 226 / Wednesday, November 23, 2016 / Rules and Regulations

                                                delivered the fish and the port sampler,                composition, shall not be submitted on                Islands (BSAI) Pacific cod fishery to set
                                                if one is present.                                      electronic fish tickets.                              aside a portion of the Aleutian Islands
                                                   (C) After review, the receiver and the                  (4) Waivers for submission. On a case-             Pacific cod total allowable catch for
                                                vessel operator must sign a printed hard                by-case basis, a temporary written                    harvest by vessels directed fishing for
                                                copy of the electronic fish ticket or, if               waiver of the requirement to submit                   Aleutian Islands Pacific cod and
                                                the landing occurs outside of business                  electronic fish tickets may be granted by             delivering their catch for processing to
                                                hours, the original dock ticket.                        the Assistant Regional Administrator or               a shoreside processor located on land
                                                   (D) Prior to submittal, three copies of              designee if he/she determines that                    west of 170° W. longitude in the
                                                the signed electronic fish ticket must be               circumstances beyond the control of a                 Aleutian Islands (‘‘Aleutian Islands
                                                produced by the receiver and a copy                     receiver would result in inadequate data              shoreplant’’). The harvest set-aside
                                                provided to each of the following:                      submissions using the electronic fish                 applies only if specific notification and
                                                   (1) The vessel operator,                             ticket system. The duration of the                    performance requirements are met, and
                                                   (2) The state of origin if required by               waiver will be determined on a case-by-               only during the first few months of the
                                                state regulations, and                                  case basis.                                           fishing year. This harvest set-aside
                                                   (3) The first receiver.                                 (5) Reporting requirements when a                  provides the opportunity for vessels,
                                                   (E) After review and signature, the                  temporary waiver has been granted.                    Aleutian Islands shoreplants, and the
                                                electronic fish ticket must be submitted                Receivers that have been granted a                    communities where Aleutian Islands
                                                within 24 hours after the date of                       temporary waiver from the requirement                 shoreplants are located to receive
                                                landing, as specified in paragraph                      to submit electronic fish tickets must                benefits from a portion of the Aleutian
                                                (f)(2)(ii) of this section.                             submit on paper the same data as is                   Islands Pacific cod fishery. The
                                                   (iv) If electronic fish tickets will be              required on electronic fish tickets                   notification and performance
                                                submitted after transport, follow these                 within 24 hours of the date of landing                requirements preserve an opportunity
                                                process and submittal requirements:                     during the period that the waiver is in               for the complete harvest of the BSAI
                                                   (A) The vessel name and the                          effect. Paper fish tickets must be sent by            Pacific cod resource if the set-aside is
                                                electronic fish ticket number must be                   facsimile to NMFS, West Coast Region,                 not fully harvested. This final rule is
                                                recorded on each dock ticket related to                 Sustainable Fisheries Division, 206–                  intended to promote the goals and
                                                that landing.                                           526–6736 or by delivering it in person                objectives of Amendment 113, the FMP,
                                                   (C) Upon completion of the dock                      to 7600 Sand Point Way NE., Seattle,                  the Magnuson-Stevens Fishery
                                                ticket, but prior to transfer of the offload            WA 98115. The requirements for                        Conservation and Management Act, and
                                                to another location, the dock ticket                    submissions of paper tickets in this                  other applicable laws.
                                                information that will be used to                        paragraph are separate from, and in                   DATES: Effective on November 23, 2016.
                                                complete the electronic fish ticket must                addition to existing state requirements               ADDRESSES: Electronic copies of
                                                be reviewed by the vessel operator who                  for landing receipts or fish receiving
                                                delivered the fish.                                                                                           Amendment 113 to the FMP, the
                                                                                                        tickets.                                              Environmental Assessment (EA),
                                                   (D) After review, the first receiver and
                                                the vessel operator must sign the                       [FR Doc. 2016–28153 Filed 11–22–16; 8:45 am]          Regulatory Impact Review (RIR), Initial
                                                original copy of each dock ticket related               BILLING CODE 3510–22–P                                Regulatory Flexibility Analysis (IRFA),
                                                to that landing.                                                                                              and Finding of No Significant Impact
                                                   (E) Prior to submittal of the electronic                                                                   (FONSI) prepared for this action,
                                                fish ticket, three copies of the signed                 DEPARTMENT OF COMMERCE                                collectively ‘‘the Analysis,’’ and the
                                                dock ticket must be produced by the                                                                           proposed rule may be obtained from
                                                                                                        National Oceanic and Atmospheric                      http://www.regulations.gov or from the
                                                first receiver and a copy provided to                   Administration
                                                each of the following:                                                                                        NMFS Alaska Region Web site at http://
                                                   (1) The vessel operator,                                                                                   alaskafisheries.noaa.gov.
                                                                                                        15 CFR Part 902                                          Written comments regarding the
                                                   (2) The state of origin if required by
                                                state regulations, and                                                                                        burden-hour estimates or other aspects
                                                                                                        50 CFR Part 679                                       of the collection-of-information
                                                   (3) The first receiver.
                                                   (F) Based on the information                         [Docket No. 151113999–6999–02]                        requirements contained in this rule may
                                                contained in the signed dock ticket, the                                                                      be submitted to NMFS Alaska Region,
                                                                                                        RIN 0648–BF54                                         P.O. Box 21668, Juneau, AK 99802–
                                                electronic fish ticket must be completed
                                                and submitted within 24 hours of the                                                                          1668, Attn: Ellen Sebastian, Records
                                                                                                        Fisheries of the Exclusive Economic
                                                date of landing, as specified in                                                                              Officer; in person at NMFS Alaska
                                                                                                        Zone Off Alaska; Bering Sea and
                                                paragraph (f)(2)(ii) of this section.                                                                         Region, 709 West 9th Street, Room
                                                                                                        Aleutian Islands Management Area;
                                                   (G) Three copies of the electronic fish                                                                    420A, Juneau, AK; by email to OIRA_
                                                                                                        American Fisheries Act; Amendment
                                                ticket must be produced by the first                                                                          Submission@omb.eop.gov; or by fax to
                                                                                                        113
                                                receiver and a copy provided to each of                                                                       (202) 395–5806.
                                                the following:                                          AGENCY:  National Marine Fisheries                    FOR FURTHER INFORMATION CONTACT: Julie
                                                   (1) The vessel operator,                             Service (NMFS), National Oceanic and                  Scheurer, 907–586–7228.
                                                   (2) The state of origin if required by               Atmospheric Administration (NOAA),                    SUPPLEMENTARY INFORMATION:
                                                state regulations, and                                  Commerce.
                                                   (3) The first receiver.                                                                                    Background
                                                                                                        ACTION: Final rule.
                                                   (3) Revising a submission. In the event                                                                      NMFS manages the groundfish and
mstockstill on DSK3G9T082PROD with RULES




                                                that a data error is found, electronic fish             SUMMARY:  NMFS issues this final rule to              Pacific cod fisheries in the Exclusive
                                                ticket submissions must be revised by                   implement Amendment 113 to the                        Economic Zone of the BSAI under the
                                                resubmitting the revised form                           Fishery Management Plan for                           FMP. The North Pacific Fishery
                                                electronically. Electronic fish tickets are             Groundfish of the Bering Sea and                      Management Council (Council)
                                                to be used for the submission of final                  Aleutian Islands Management Area                      prepared, and the Secretary of
                                                data. Preliminary data, including                       (FMP). This final rule modifies the                   Commerce approved, the FMP pursuant
                                                estimates of fish weights or species                    management of Bering Sea and Aleutian                 to the Magnuson-Stevens Fishery


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                                                             Federal Register / Vol. 81, No. 226 / Wednesday, November 23, 2016 / Rules and Regulations                                         84435

                                                Conservation and Management Act                         the BSAI groundfish fisheries (81 FR                  which they are located will be
                                                (Magnuson-Stevens Act) and other                        14773, March 18, 2016).                               preempted from participating in the
                                                applicable laws. Regulations                                                                                  Aleutian Islands Pacific cod fishery by
                                                                                                        Harvesting and Processing of Pacific
                                                implementing the FMP appear at 50                                                                             CPs.
                                                                                                        Cod in the Aleutian Islands                              The proposed rule and Section 2.6 of
                                                CFR part 679. General regulations that
                                                pertain to U.S. fisheries appear at 50                     A variety of vessels using a variety of            the Analysis provide additional
                                                CFR part 600.                                           gear types harvest the Aleutian Islands               description of the factors that have
                                                   NMFS published the Notice of                         Pacific cod TAC each year. Trawl                      affected the harvesting and processing
                                                Availability of Amendment 113 on July                   catcher vessels (CVs) and trawl catcher               of Pacific cod in the Aleutian Islands.
                                                19, 2016 (81 FR 46883), with comments                   processors (CPs) have been among the
                                                                                                        most active participants in the Aleutian              Need for This Final Rule
                                                invited through September 19, 2016.
                                                NMFS published the proposed rule to                     Islands Pacific cod fishery. Hook-and-                   A thorough description of the history
                                                implement Amendment 113 on August                       line CPs have consistently participated               and need for this action is provided in
                                                1, 2016 (81 FR 50444), with comments                    in the Aleutian Islands Pacific cod                   the proposed rule and the Analysis
                                                invited through August 31, 2016. The                    fishery. Non-trawl CVs have harvested                 prepared for this action and is not
                                                Secretary approved Amendment 113 on                     only a very small portion of the Pacific              repeated here. The Council adopted its
                                                                                                        cod from the Aleutian Islands. The                    preferred alternative for Amendment
                                                October 17, 2016. NMFS received 35
                                                                                                        proposed rule and Section 2.6.6 of the                113 at its October 2015 meeting.
                                                unique comments on Amendment 113
                                                                                                        Analysis provide additional detail on                    Since 2008, Aleutian Islands fishing
                                                and the proposed rule from 16 different                                                                       communities, and specifically the
                                                commenters. A summary of these                          the types of vessels harvesting Pacific
                                                                                                        cod in the Aleutian Islands.                          community of Adak and its shoreplant,
                                                comments and the responses by NMFS                                                                            have seen a decrease in the amount of
                                                                                                           Trawl CVs deliver their catch of
                                                are provided under the heading                                                                                Pacific cod being harvested and
                                                                                                        Aleutian Islands Pacific cod to several
                                                ‘‘Responses to Comments’’ below. These                                                                        delivered. The amount of Pacific cod
                                                                                                        types of processors in the Aleutian
                                                comments resulted in two minor                                                                                delivered to Aleutian Islands
                                                                                                        Islands: CPs acting as motherships
                                                changes from the proposed rule. One                                                                           shoreplants has been highly variable,
                                                                                                        (vessels that process Pacific cod
                                                additional change to this final rule is                 delivered by trawl CVs); stationary                   which is not conducive to stable
                                                not in response to comments, but is an                  floating processors anchored in specific              shoreside operations. Several factors
                                                administrative change that NMFS                         locations that receive and process catch              have contributed to this instability, and
                                                deemed necessary for timely                             on board but do not harvest and process               therefore the need for this action,
                                                implementation of this final rule.                      their own catch; and shoreside                        including decreased Pacific cod biomass
                                                   A detailed review of the BSAI Pacific                processing facilities that are physically             in the Aleutian Islands subarea; the
                                                cod fishery, provisions of Amendment                    located on land west of 170° W.                       establishment of separate OFLs, ABCs,
                                                113, the proposed regulations to                        longitude in the Aleutian Islands                     and TACs for Pacific cod in the Bering
                                                implement Amendment 113, and the                        (defined as ‘‘Aleutian Islands                        Sea and the Aleutian Islands; changing
                                                rationale for these regulations is                      shoreplant’’ in this final rule).                     Steller sea lion protection measures; and
                                                provided in the preamble to the                            Currently, Aleutian Islands                        changing fishing practices in part
                                                proposed rule (81 FR 50444, August 1,                   shoreplants that may be capable of                    resulting from rationalization programs
                                                2016) and is not repeated here. The                     receiving Aleutian Islands Pacific cod                that allocate catch to specific fishery
                                                preamble to this final rule briefly                     from CVs are located in the                           participants.
                                                reviews the regulatory changes made by                  communities of Adak and Atka.                            This rule establishes a harvest set-
                                                this final rule.                                        Although the Atka shoreplant has not                  aside in which a portion of the Aleutian
                                                   This final rule modifies the BSAI                    received and processed Aleutian Islands               Islands Pacific cod TAC will be
                                                Pacific cod fishery to set aside a portion              Pacific cod, the shoreplant in Adak has               available for harvest by vessels directed
                                                of the Aleutian Islands Pacific cod total               received and processed relatively large               fishing for Aleutian Islands Pacific cod
                                                allowable catch (TAC) for harvest by                    amounts of Pacific cod. The proposed                  and delivering their catch to Aleutian
                                                vessels directed fishing for Aleutian                   rule and Section 2.7.1 of the Analysis                Islands shoreplants for processing. This
                                                Islands Pacific cod and delivering their                have additional detail on the delivery                harvest set-aside applies only if specific
                                                catch to Aleutian Islands shoreplants for               and processing of Aleutian Islands                    notification and performance
                                                processing. The harvest set-aside                       Pacific cod.                                          requirements are met, and only during
                                                applies only if specific notification and                  Since 2008, trawl CVs have primarily               the first few months of the fishing year.
                                                performance requirements are met, and                   delivered their catch of Aleutian Islands                The Council determined and NMFS
                                                only during the first few months of the                 Pacific cod to a small group of CPs that              agrees that a harvest set-aside is needed
                                                fishing year.                                           operate as motherships. As deliveries of              for several reasons: The TAC for
                                                   Table 3 in the proposed rule preamble                Aleutian Islands Pacific cod harvest                  Aleutian Islands Pacific cod has been
                                                (81 FR 50444, August 1, 2016) describes                 from trawl CVs to CPs operating as                    significantly lower than predicted so
                                                the Overfishing Levels (OFLs), the                      motherships have increased in recent                  that less Pacific cod is available for
                                                Acceptable Biological Catches (ABCs),                   years, the amount of trawl CV harvest                 harvest; the rationalization programs,
                                                TACs, the Western Alaska Community                      delivered to Aleutian Islands                         and particularly the Amendment 80
                                                Development Quota (CDQ) and non-                        shoreplants has decreased.                            Program, have allowed an influx of
                                                CDQ fishery sector allocations, and                     Additionally, CPs operating as                        processing capacity into the Aleutian
                                                seasonal apportionments of BSAI Pacific                 motherships have demonstrated the                     Islands Pacific cod fishery; and the
mstockstill on DSK3G9T082PROD with RULES




                                                cod in 2017, the first year of                          capacity to process the entire TAC of                 Aleutian Islands communities and
                                                implementation of this final rule. Each                 Pacific cod in the Aleutian Islands in                shoreplants (Adak) have received almost
                                                of these terms is described in the                      years when no Aleutian Islands                        all of their total first wholesale gross
                                                preamble to the proposed rule. Table 3                  shoreplant is in operation. This final                revenue from Aleutian Islands Pacific
                                                of the proposed rule preamble includes                  rule is intended in part to mitigate the              cod.
                                                data from Tables 2 and 9 in the 2016                    risk that CVs, Aleutian Islands                          This final rule strikes a balance
                                                and 2017 final harvest specifications for               shoreplants, and the communities in                   between providing protections for


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                                                84436        Federal Register / Vol. 81, No. 226 / Wednesday, November 23, 2016 / Rules and Regulations

                                                fishing communities and ensuring that                   to be directly responsive to National                   The following sections provide
                                                the fishery sectors have a meaningful                   Standard 8 of the Magnuson-Stevens                    further explanation of the regulatory
                                                opportunity to fully harvest their BSAI                 Act that states conservation and                      changes made by this rule. Additional
                                                Pacific cod allocations by including                    management measures shall take into                   detail about the rationale for and effect
                                                several thresholds to prevent a portion                 account the importance of fishery                     of the regulatory changes in this rule is
                                                of the Aleutian Islands Pacific cod TAC                 resources to fishing communities in                   provided in the preamble to the
                                                from being unharvested. This final rule                 order to provide for the sustained                    proposed rule and in the Analysis for
                                                will provide social and economic                        participation of such communities, and                this action.
                                                benefits to, and promote stability in,                  to the extent practicable, minimize
                                                fishery-dependent fishing communities                                                                         Summary of Regulatory Changes
                                                                                                        adverse economic impacts on such
                                                in the Aleutian Islands and is                          communities (16 U.S.C. 1851(a)(8)).                   Revisions to Definitions at § 679.2
                                                responsive to changes in management of
                                                                                                        Overview of Measures Implemented by                     This final rule adds a definition to
                                                the Aleutian Islands Pacific cod fishery
                                                                                                        This Rule                                             § 679.2 for ‘‘Aleutian Islands
                                                such as rationalization programs,
                                                                                                           This final rule modifies several                   shoreplant’’ to mean a processing
                                                decreasing biomass of Pacific cod, and
                                                                                                        aspects of the BSAI Pacific cod fishery.              facility that is physically located on
                                                Steller sea lion protection measures that
                                                necessitate putting protections in place                This final rule sets aside a portion of the           land west of 170° W. longitude within
                                                to protect other non-rationalized                       Aleutian Islands Pacific cod non-CDQ                  the State of Alaska (State). This
                                                fisheries.                                              TAC for harvest by vessels directed                   definition is needed because the
                                                   This final rule does not modify                      fishing for Aleutian Islands Pacific cod              existing term ‘‘shoreside processor’’ in
                                                existing harvest allocations of BSAI                    and delivering their catch to Aleutian                § 679.2 can include processing vessels
                                                Pacific cod to participants in the CDQ                  Islands shoreplants. However, the                     that are moored or otherwise fixed in a
                                                Program. This final rule does not modify                harvest set-aside applies only if specific            location (i.e., stationary floating
                                                existing harvest allocations of BSAI                    notification and performance                          processors), but not necessarily located
                                                Pacific cod made to the nine non-CDQ                    requirements are met, and only during                 on land. This new definition provides a
                                                fishery sectors defined in                              the first few months of the fishing year.             clear and consistent term for referencing
                                                § 679.20(a)(7)(ii)(A). Although the nine                   In order to implement Amendment                    the processors located on land within
                                                non-CDQ sectors will continue to                        113, this final rule:                                 the Aleutian Islands.
                                                receive their existing harvest allocations                 • Defines the term ‘‘Aleutian Islands              Revisions to General Limitations at
                                                of BSAI Pacific cod, each sector’s ability              shoreplant’’ in regulation;                           § 679.20
                                                to harvest a portion of its BSAI Pacific                   • Calculates and defines the amount
                                                cod allocation in the Aleutian Islands                  of the Aleutian Islands Pacific cod TAC                 This final rule adds a new paragraph
                                                may be affected by this rule.                           that will be available as a directed                  (viii) to § 679.20(a)(7). This new
                                                   The Aleutian Islands shoreplants in                  fishing allowance (DFA) and the amount                paragraph includes the primary
                                                Adak and Atka currently are not                         that will be available as an incidental               regulatory provisions of this final rule.
                                                processing Aleutian Islands Pacific cod.                catch allowance (ICA);                                The preamble to the proposed rule
                                                However, the protection measures and                       • Limits the amount of early season                provides examples to aid the reader in
                                                harvest set-aside in this final rule will               (from January 20 until April 1), also                 understanding how this final rule will
                                                minimize the risk of exclusion from,                    known as A-season, Pacific cod that                   apply using 2017 harvest specifications
                                                and maintain opportunities for                          may be harvested by the trawl CV sector               for BSAI Pacific cod (81 FR 14773,
                                                participation in, the Aleutian Islands                  in the Bering Sea prior to March 21                   March 18, 2016). For the remainder of
                                                Pacific cod fishery by Aleutian Islands                 (Bering Sea Trawl CV A-Season Sector                  this preamble, unless otherwise
                                                harvesters, shoreplants, and                            Limitation);                                          specified, all references to allocations
                                                communities when those Aleutian                            • Sets aside some or all of the                    and apportionments of BSAI Pacific cod
                                                Islands communities are able to accept                  Aleutian Islands Pacific cod non-CDQ                  refer to non-CDQ allocations and
                                                deliveries of and process Aleutian                      DFA for harvest by vessels directed                   apportionments of BSAI Pacific cod.
                                                Islands Pacific cod.                                    fishing for Aleutian Islands Pacific cod              Calculation of the Aleutian Islands
                                                   This final rule revises regulations to               and delivering their catch for processing             Pacific Cod ICA and DFA
                                                provide additional opportunities for                    by Aleutian Islands shoreplants from
                                                harvesters to deliver Aleutian Islands                  January 1 to March 15 (Aleutian Islands                  NMFS will annually specify an ICA
                                                Pacific cod to Aleutian Islands                         CV Harvest Set-Aside);                                and a DFA derived from the Aleutian
                                                shoreplants. Recent Aleutian Islands                       • Requires that either the City of                 Islands Pacific cod non-CDQ TAC. Each
                                                Pacific cod TACs have not been                          Adak or the City of Atka annually notify              year, during the annual harvest
                                                sufficient to allow all sectors to                      NMFS of its intent to process Aleutian                specifications process described at
                                                prosecute the Aleutian Islands Pacific                  Islands Pacific cod during the upcoming               § 679.20(c), NMFS will specify an
                                                cod fishery at their historical levels.                 fishing year in order for the Aleutian                amount of Aleutian Islands Pacific cod
                                                Without protections, Aleutian Islands                   Islands CV Harvest Set-Aside and the                  that NMFS estimates will be taken as
                                                harvesters, shoreplants, and fishing                    Bering Sea Trawl CV A-Season Sector                   incidental catch when directed fishing
                                                communities may be preempted from                       Limitation to be effective in the                     for non-CDQ groundfish other than
                                                the fishery by harvests by CPs, or by                   upcoming fishing year; and                            Pacific cod in the Aleutian Islands. This
                                                harvests from CVs delivering their catch                   • Removes the Bering Sea Trawl CV                  amount will be the Aleutian Islands ICA
                                                to CPs.                                                 A-Season Sector Limitation and the                    and will be deducted from the Aleutian
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                                                   Because of their remote location and                 Aleutian Islands CV Harvest Set-Aside if              Islands non-CDQ TAC. The amount of
                                                limited economic alternatives, Aleutian                 less than 1,000 metric tons (mt) of the               the Aleutian Islands non-CDQ TAC
                                                Islands communities rely on harvesting                  harvest set-aside is delivered to (i.e.,              remaining after subtraction of the
                                                and processing of the nearby fishery                    landed at) Aleutian Islands shoreplants               Aleutian Islands ICA will be the
                                                resources to support and sustain the                    on or before February 28, or if the                   Aleutian Islands DFA.
                                                social and economic welfare of their                    harvest set-aside is fully taken before                  NMFS will specify the Aleutian
                                                communities. This final rule is intended                March 15.                                             Islands ICA and DFA so that NMFS can


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                                                             Federal Register / Vol. 81, No. 226 / Wednesday, November 23, 2016 / Rules and Regulations                                          84437

                                                clearly establish the amount of Aleutian                deducting the Bering Sea Trawl CV A-                  Aleutian Islands shoreplants for
                                                Islands Pacific cod that will be used to                Season Sector Limitation from the BSAI                processing. Vessels that do not want to
                                                determine the amount of the Aleutian                    trawl CV sector A-season allocation                   deliver their directed catch of Aleutian
                                                Islands CV Harvest Set-Aside described                  listed in the annual harvest                          Islands Pacific cod to Aleutian Islands
                                                in the following sections of this                       specifications (and as determined at                  shoreplants for processing will be
                                                preamble. The specification will also                   § 679.20(a)(7)(iv)(A)(1)(i)). NMFS will               prohibited from directed fishing for
                                                provide the public with notification of                 annually specify in the annual harvest                Pacific cod in the Aleutian Islands when
                                                the amount of the Aleutian Islands non-                 specifications the Bering Sea Trawl CV                the Aleutian Islands CV Harvest Set-
                                                CDQ TAC that is available for directed                  A-Season Sector Limitation and the                    Aside is in effect. These vessels will be
                                                fishing prior to the start of the fishing               amount of the trawl CV sector’s A-                    permitted to conduct directed fishing
                                                season to aid in the planning of fishery                season allocation that may be harvested               for groundfish other than Pacific cod in
                                                operations. The Aleutian Islands DFA is                 in the Bering Sea prior to March 21.                  the Aleutian Islands when the Aleutian
                                                the maximum amount of Pacific cod                          The preamble to the proposed rule                  Islands CV Harvest Set-Aside is in
                                                available for directed fishing by all non-              provides additional background on the                 effect, and their incidental harvests of
                                                CDQ fishery sectors in all seasons in the               factors that the Council and NMFS                     Pacific cod will accrue toward the
                                                Aleutian Islands.                                       considered when determining the                       Aleutian Islands ICA. CPs will be
                                                   Although the amount of the Aleutian                  amount and timing of the Bering Sea                   permitted to conduct directed fishing
                                                Islands ICA may vary from year to year,                 Trawl CV A-Season Sector Limitation                   for Pacific cod in the Aleutian Islands
                                                NMFS specifies an Aleutian Islands ICA                  and is not repeated here.                             when the Aleutian Islands CV Harvest
                                                of 2,500 mt for 2017. NMFS determined                                                                         Set-Aside side is in effect as long as they
                                                                                                        Aleutian Islands Catcher Vessel Harvest
                                                that this amount will be needed to                                                                            act only as CVs and deliver their
                                                                                                        Set-Aside
                                                support incidental catch of Pacific cod                                                                       directed catch of Aleutian Islands
                                                in other Aleutian Islands non-CDQ                          This final rule requires that some or              Pacific cod to Aleutian Islands
                                                directed groundfish fisheries. In future                all of the Aleutian Islands DFA be set                shoreplants for processing. CPs also will
                                                years, NMFS will specify the Aleutian                   aside for harvest by vessels directed                 be permitted to retain and process
                                                Islands ICA in the annual harvest                       fishing for Aleutian Islands Pacific cod              Aleutian Islands Pacific cod that is
                                                specifications based on recent and                      and delivering their catch to Aleutian                caught as incidental catch while
                                                anticipated incidental catch of Aleutian                Islands shoreplants for processing. This              directed fishing for groundfish other
                                                Islands Pacific cod in other Aleutian                   Aleutian Islands CV Harvest Set-Aside                 than Pacific cod, and those incidental
                                                Islands non-CDQ directed groundfish                     will be available for harvest by vessels              harvests of Pacific cod will accrue
                                                fisheries.                                              using any authorized gear type and that               toward the Aleutian Islands ICA.
                                                                                                        deliver their directed catch of Aleutian                 When the Aleutian Islands DFA is
                                                Bering Sea Trawl CV A-Season Sector                     Islands Pacific cod to Aleutian Islands               greater than 5,000 mt, and therefore the
                                                Limitation                                              shoreplants for processing. NMFS will                 Aleutian Islands CV Harvest Set-Aside
                                                   This final rule establishes the Bering               account for harvest and processing of                 is set equal to 5,000 mt, the difference
                                                Sea Trawl CV A-Season Sector                            Aleutian Islands Pacific cod under the                between the DFA and the Aleutian
                                                Limitation to restrict the amount of the                Aleutian Islands CV Harvest Set-Aside                 Islands CV Harvest Set-Aside will be
                                                trawl CV sector’s A-season allocation                   separate from, and in addition to, its                available for directed fishing by all non-
                                                that can be harvested in the Bering Sea                 accounting of Aleutian Islands Pacific                CDQ fishery sectors with sufficient
                                                subarea prior to March 21. The Bering                   cod catch by the nine non-CDQ fishery                 A-season allocations and may be
                                                Sea Trawl CV A-Season Sector                            sectors established in § 679.20(a)(7)(ii).            processed by any eligible processor.
                                                Limitation ensures that some of the                     Because of this separate accounting, the              This difference is called the ‘‘Aleutian
                                                trawl CV sector’s A-season allocation                   Aleutian Islands CV Harvest Set-Aside                 Islands Unrestricted Fishery.’’ In years
                                                remains available for harvest in the                    will not increase or decrease the amount              when there is both an Aleutian Islands
                                                Aleutian Islands subarea by trawl                       of BSAI Pacific cod allocated to any of               CV Harvest Set-Aside and an Aleutian
                                                catcher vessels that deliver their catch                the non-CDQ fishery sectors. The                      Islands Unrestricted Fishery, vessels
                                                of Aleutian Islands Pacific cod to                      Aleutian Islands CV Harvest Set-Aside                 may conduct directed fishing for Pacific
                                                Aleutian Islands shoreplants for                        will apply from January 1 until March                 cod in the Aleutian Islands and deliver
                                                processing. On March 21, the restriction                15 of each year if certain notification               their catch to Aleutian Islands
                                                on Bering Sea harvest by the trawl CV                   and performance measures, described in                shoreplants or to any eligible processor
                                                sector will be lifted and the remainder,                the following section of the preamble,                for processing as long as the Aleutian
                                                if any, of the BSAI trawl CV sector’s A-                are satisfied.                                        Islands Unrestricted Fishery is open to
                                                season allocation can be harvested in                      The amount of the Aleutian Islands                 directed fishing. CPs will be permitted
                                                either the Bering Sea or the Aleutian                   CV Harvest Set-Aside will be calculated               to conduct directed fishing for Pacific
                                                Islands (if still open to directed fishing              as described above for the Bering Sea                 cod in the Aleutian Islands and process
                                                for Pacific cod) for delivery to any                    Trawl CV A-Season Sector Limitation. It               that directed catch as long as the
                                                eligible processor for processing.                      will be an amount equal to the lesser of              Aleutian Islands Unrestricted Fishery is
                                                   The Bering Sea Trawl CV A-Season                     either the Aleutian Islands DFA or 5,000              open to directed fishing. NMFS will
                                                Sector Limitation will equal the lesser of              mt. NMFS will notify the public of the                determine whether the Aleutian Islands
                                                either the Aleutian Islands DFA or 5,000                Aleutian Islands CV Harvest Set-Aside                 Unrestricted Fishery is sufficient to
                                                mt. The Bering Sea Trawl CV A-Season                    through the annual harvest                            support a directed fishery and will
                                                Sector Limitation will be equivalent to                 specifications process.                               notify the public through a notice in the
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                                                the Aleutian Islands CV Harvest Set-                       When the Aleutian Islands CV                       Federal Register.
                                                Aside, as discussed in the following                    Harvest Set-Aside is set equal to the                    While the Aleutian Islands CV
                                                section of the preamble. The amount of                  Aleutian Islands DFA and the set-aside                Harvest Set-Aside is in effect, NMFS
                                                the trawl CV sector’s A-season                          is in effect, directed fishing for Pacific            will account for Aleutian Islands Pacific
                                                allocation that may be harvested in the                 cod in the Aleutian Islands may only be               cod caught by vessels against the
                                                Bering Sea prior to March 21 will be the                conducted by vessels that deliver their               appropriate fishery sector allocation, the
                                                amount of Pacific cod that remains after                catch of Aleutian Islands Pacific cod to              ICA or the DFA, and the Aleutian


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                                                84438        Federal Register / Vol. 81, No. 226 / Wednesday, November 23, 2016 / Rules and Regulations

                                                Islands CV Harvest Set-Aside. Examples                  notifies NMFS in accordance with                      might have an Aleutian Islands
                                                illustrating this accounting are provided               regulatory requirements described                     shoreplant in the future. The Council
                                                in the preamble of the proposed rule.                   below, the Bering Sea Trawl CV                        and NMFS’s rationale for this is
                                                   If certain notification and                          A-Season Sector Limitation and the                    provided in the preamble of the
                                                performance measures are met, the                       Aleutian Islands CV Harvest Set-Aside                 proposed rule.
                                                Aleutian Islands CV Harvest Set-Aside                   will not be in effect for the upcoming                  The second performance measure
                                                will be in effect from January 1 until                  fishing year.                                         removes the Bering Sea Trawl CV A-
                                                March 15 of each year. If the entire set-                  This final rule requires annual                    Season Sector Limitation and the
                                                aside is harvested and delivered prior to               notification to NMFS in the form of a                 Aleutian Islands CV Harvest Set-Aside
                                                March 15, NMFS will lift the Bering Sea                 letter or memorandum signed by the                    for the remainder of the A-season if less
                                                Trawl CV A-Season Sector Limitation                     City Manager of Adak or the City                      than 1,000 mt of the Aleutian Islands
                                                and Aleutian Islands CV Harvest Set-                    Administrator of Atka stating the city’s              CV Harvest Set-Aside is delivered to
                                                Aside as soon as possible. The Aleutian                 intent to process Aleutian Islands                    Aleutian Islands shoreplants by
                                                Islands CV Harvest Set-Aside will end at                Pacific cod in the upcoming fishing                   February 28. This performance measure
                                                noon on March 15 even if the entire set-                year. This signed letter or memorandum                will lift the Aleutian Islands CV Harvest
                                                aside has not been harvested and                        is the official notification of intent. The           Set-Aside and make any remaining
                                                delivered to Aleutian Islands                           official notification of intent must be               amount of the set-aside available to all
                                                shoreplants.                                            postmarked no later than December 8,                  participants if Aleutian Islands
                                                   When the set-aside ends, any                         2016, and no later than October 31 for                shoreplants are unable to process Pacific
                                                remaining Aleutian Islands DFA may be                   each year after 2016. The official                    cod or if too few or no vessels decide
                                                harvested by any non-CDQ fishery                        notification of intent must be submitted              to participate in the set-aside fishery.
                                                sector with remaining A-season                          to the NMFS Alaska Regional                             The third performance measure
                                                allocation, and the harvest may be                      Administrator by certified mail through               suspends the Bering Sea Trawl CV
                                                delivered to any eligible processor. If a               the United States Postal Service. The                 A-Season Sector Limitation for the
                                                vessel has been directed fishing for                    City Manager of Adak or City                          remainder of the year if the entire
                                                Aleutian Islands Pacific cod, but has not               Administrator of Atka must also submit                Aleutian Islands CV Harvest Set-Aside
                                                yet delivered that Pacific cod for                      an electronic copy of the official                    (5,000 mt in 2017) is fully harvested and
                                                processing when the harvest set-aside is                notification of intent and the certified              delivered to Aleutian Islands
                                                lifted, that vessel may deliver its Pacific             mail receipt with postmark via email to               shoreplants before March 15.
                                                cod to any eligible processor. If a vessel              NMFS (nmfs.akr.inseason@noaa.gov) no                    The preamble to the proposed rule
                                                has been directed fishing for Aleutian                  later than December 8, 2016, and no                   provides additional background on the
                                                Islands Pacific cod, but has not yet                    later than October 31 for each year after             factors considered by the Council and
                                                delivered that Pacific cod for processing               2016. Email submission of electronic                  NMFS when establishing these
                                                when the Aleutian Islands Unrestricted                  copies of the official notification of                performance standards and is not
                                                Fishery closes, but the Aleutian Islands                intent and the certified mail receipt                 repeated here.
                                                CV Harvest Set-Aside is still in effect, it             with postmark will provide NMFS with                  Harvest Specifications Process To
                                                will be required to deliver that Pacific                the timely information it needs to                    Announce BSAI A-Season Pacific Cod
                                                cod to an Aleutian Islands shoreplant                   manage the upcoming fisheries. Email                  Limits Implemented by Amendment 113
                                                for processing or be in violation of the                notification is in addition to notification
                                                directed fishing closure.                               via certified U.S. Mail and does not                     During the annual harvest
                                                   The preamble to the proposed rule                    replace the requirement for notification              specifications process described in the
                                                provides additional background on the                   through the U.S. Postal Service.                      proposed rule, NMFS will publish in
                                                factors that the Council and NMFS                          A city’s notification of intent to                 the proposed harvest specifications the
                                                considered when determining the                         process Aleutian Islands Pacific cod                  amounts for the Aleutian Islands ICA,
                                                amount and timing of the Aleutian                       must contain the following information:               DFA, CV Harvest Set-Aside, and
                                                Islands CV Harvest Set-Aside and is not                 Date, name of city, a statement of intent             Unrestricted Fishery, as well as the
                                                repeated here.                                          to process Aleutian Islands Pacific cod,              Bering Sea Trawl CV A-Season Sector
                                                                                                        statement of calendar year during which               Limitation, and the amount available for
                                                Measures To Prevent Stranding of                        the city intends to process Aleutian                  harvest by trawl CVs in the Bering Sea
                                                Aleutian Islands Non-CDQ Pacific Cod                    Islands Pacific cod, and the signature of             while the set-aside is in effect. These
                                                TAC                                                     and contact information for the City                  amounts will be published in a separate
                                                   Stranding is a term sometimes used to                Manager or City Administrator of the                  table to supplement the table in the
                                                describe TAC that remains unharvested                   city whose shoreplant is intending to                 harvest specifications that describes the
                                                due to regulations. This final rule                     process Aleutian Islands Pacific cod.                 final gear shares and allowances of the
                                                includes performance measures                              On or shortly after December 8, 2016,              BSAI Pacific cod TAC for the upcoming
                                                intended to prevent the stranding of                    and November 1 for each year after                    year.
                                                Aleutian Islands non-CDQ Pacific cod                    2016, the Regional Administrator will                    NMFS also will publish a notice in
                                                TAC if the set-aside is not requested, if               send a signed and dated letter either                 the Federal Register shortly after
                                                limited processing occurs at Aleutian                   confirming receipt of the city’s                      December 8, 2016, and November 1 for
                                                Islands shoreplants, or if the Aleutian                 notification of their intent to process               each year after 2016, announcing
                                                Islands CV Harvest Set-Aside is taken                   Aleutian Islands Pacific cod, or                      whether the Aleutian Islands CV
                                                before March 15.                                        informing the city that notification was              Harvest Set-Aside and Bering Sea Trawl
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                                                   The first performance measure                        not received by the deadline.                         CV A-Season Sector Limitation will be
                                                requires that either the City Manager of                   While this final rule will make the                in effect for the upcoming fishing year,
                                                the City of Adak or the City                            set-aside available for processing by any             and whether the harvest limits in the
                                                Administrator of the City of Atka notify                shoreplant west of 170° W. longitude in               supplemental table will apply. If
                                                NMFS of the city’s intent to process                    the Aleutian Islands, the notification                necessary, NMFS will publish in the
                                                Aleutian Islands Pacific cod in the                     requirement is required from either                   Federal Register an adjustment of the
                                                upcoming fishing year. If neither city                  Adak or Atka and not another city that                BSAI A-season Pacific cod limits for the


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                                                                   Federal Register / Vol. 81, No. 226 / Wednesday, November 23, 2016 / Rules and Regulations                                                                                                 84439

                                                upcoming year after the Council adopts                                       the groundfish fishery of the BSAI by                                        intent to process from either Adak or
                                                the harvest specifications in December.                                      adding the following Table 8a, which                                         Atka, the harvest limits in Table 8a will
                                                Amendment of the 2017 Final Harvest                                          specifies the Aleutian Islands ICA, DFA,                                     be in effect in 2017.
                                                Specifications for the Groundfish                                            CV Harvest Set-Aside, and Unrestricted
                                                Fishery of the BSAI                                                          Fishery, as well as the Bering Sea Trawl
                                                                                                                             CV A-Season Sector Limitation. If
                                                  With this final rule, NMFS amends                                          NMFS receives timely notification of
                                                the 2017 final harvest specifications for
                                                TABLE 8A—2017 BSAI A-SEASON PACIFIC COD LIMITS IF ALEUTIAN ISLANDS SHOREPLANTS INTEND TO PROCESS PACIFIC
                                                                                                  COD
                                                                                                                                                                                                                                                            Amount
                                                                                                   2017 Allocations under Aleutian Islands CV Harvest Set-Aside                                                                                              (mt)

                                                AI non-CDQ TAC .................................................................................................................................................................................               11,465
                                                AI ICA ..................................................................................................................................................................................................       2,500
                                                AI DFA .................................................................................................................................................................................................        8,965
                                                BS non-CDQ TAC ...............................................................................................................................................................................                213,141
                                                BSAI Trawl CV A-Season Allocation ...................................................................................................................................................                          36,732
                                                BSAI Trawl CV A-Season Allocation minus Sector Limitation 1 ..........................................................................................................                                         31,732
                                                BS Trawl CV A-Season Sector Limitation ...........................................................................................................................................                              5,000
                                                AI CV Harvest Set-Aside .....................................................................................................................................................................                   5,000
                                                AI Unrestricted Fishery ........................................................................................................................................................................                3,965
                                                   1 This    is the amount of the BSAI trawl CV A-season allocation that may be harvested in the Bering Sea prior to March 21.


                                                Changes From the Proposed Rule                                               become effective after October 31, 2016,                                     so, the Analysis concludes that both
                                                   NMFS made three changes to the                                            the City of Adak and the City of Atka                                        date options would give fishery
                                                regulatory text from the proposed rule.                                      could not provide timely notification to                                     participants sufficient time to plan and
                                                Two of these changes are in response to                                      NMFS of their intent to process in 2017                                      prepare before the A-season begins and
                                                comments received on the proposed                                            without this change in the notification                                      that ideally notice of intent to process
                                                rule, and one change is made to address                                      deadline. This change enables the cities                                     would be provided to NMFS by a date
                                                administration of this final rule in 2016.                                   of Adak and Atka, and vessels                                                near the end of the December Council
                                                   First, this final rule modifies                                           delivering to Aleutian Island                                                meeting. NMFS continues to agree with
                                                § 679.20(a)(7)(viii)(E)(4) in response to                                    shoreplants, to receive the benefits of                                      the Council that October 31 is the
                                                Comment 8. The words ‘‘prior to’’ are                                        this final rule in 2017 that would                                           preferred deadline of the two dates
                                                changed to ‘‘on or before’’ to reflect the                                   otherwise be foregone without this                                           considered, and this final rule
                                                Council’s intent. See the response to                                        change. NMFS is providing 15 days after                                      establishes October 31 as the deadline
                                                Comment 8 for the complete                                                   the publication of this rule for the City                                    for submission of notification of intent
                                                justification for this change.                                               of Adak or the City of Atka to notify                                        for each fishing year after 2016.
                                                   Second, this final rule modifies                                          NMFS so that the cities have adequate                                        However, NMFS has determined that
                                                § 679.20(a)(7)(viii)(D) and (E) to specify                                   time after the publication of this final                                     the notification deadline for 2016 will
                                                that the City Manager of Adak and the                                        rule to prepare and submit their official                                    allow Adak and Atka an opportunity to
                                                City Administrator of Atka are the                                           notification of intent.                                                      submit notification prior to the start of
                                                individuals responsible for notifying                                          NMFS determined that this change                                           the 2017 fishing year, thus providing an
                                                NMFS of their city’s intent to process                                       will not affect participants in the                                          opportunity for the set-aside to be
                                                Pacific cod in the upcoming year. See                                        Aleutian Islands Pacific cod fishery in                                      effective in 2017, rather than having to
                                                the response to Comment 5 for the                                            ways not previously considered and                                           wait an additional year. Additionally,
                                                complete justification for this change.                                      analyzed. The 2016 deadline for                                              the 2016 notification deadline will
                                                   Third, this final rule modifies                                           submitting notification of intent to                                         provide fishery participants with
                                                § 679.20(a)(7)(viii) to include a separate                                   process falls between the two dates                                          sufficient time to plan and prepare
                                                notification deadline for 2016 for the                                       considered by the Council: Prior to                                          before the A-season begins because
                                                City Manager of Adak or the City                                             November 1 or prior to December 15. In                                       NMFS will be able to notify fishery
                                                Administrator of Atka to notify NMFS of                                      considering the effect these notification                                    participants as to whether the set-aside
                                                the intent to process Aleutian Islands                                       deadlines, the Analysis focuses on the                                       will be in effect for 2017 prior to
                                                Pacific cod in 2017. This final rule                                         ability of the industry to react if there                                    December 15 and prior to the end of the
                                                requires that the official notification of                                   are no Aleutian Islands shoreplants                                          December Council meeting. In addition,
                                                intent to process for 2017 be postmarked                                     operating in the upcoming fishing year,                                      this change is applicable only for the
                                                and emailed no later than December 8,                                        stating that selection of the earlier                                        first year of implementation of this final
                                                2016. This final rule clarifies that for all                                 deadline would provide more time for                                         rule, and will therefore have a limited
                                                years after 2016, this annual notification                                   the industry to make the necessary                                           and temporary effect.
                                                must be postmarked and emailed no                                            arrangements to harvest and process the
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                                                                                                                             non-CDQ Aleutian Islands Pacific cod                                         Responses to Comments
                                                later than October 31.
                                                   This change is required to ensure that                                    DFA, and that in general, more                                                 NMFS received 35 unique comments
                                                NMFS provides an opportunity for the                                         notification concerning processing of                                        on Amendment 113 and the proposed
                                                City of Adak and the City of Atka to                                         Aleutian Islands Pacific cod in the                                          rule in 18 comment letters from 16
                                                notify NMFS of their intent to process                                       upcoming fishing year will help to                                           different commenters. The 16
                                                after this final rule has published.                                         reduce the risk of unharvested non-CDQ                                       commenters consisted of 2 individuals;
                                                Because this final rule will publish and                                     Aleutian Islands Pacific cod TAC. Even                                       7 companies representing CPs; the


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                                                84440        Federal Register / Vol. 81, No. 226 / Wednesday, November 23, 2016 / Rules and Regulations

                                                Alaska Department of Fish and Game; 1                   able to process the entire Aleutian                   agency did in Maine. Some other system
                                                fish processing company; 1 CDQ group;                   Islands TAC (Section 2.7.1.2 of the                   has to be set up for economic
                                                2 community development                                 Analysis), demonstrating that the                     sustainability for people in the area.
                                                corporations, 1 Aleutian Islands                        offshore sector is capable of fully                   Stop this plan now.
                                                municipal government; and 1 non-profit                  harvesting available catch and                           Response 3: NMFS disagrees that
                                                conservation organization. Of the 16                    preempting the onshore sector’s access                Amendment 113 will wipe out Pacific
                                                commenters, 9 explicitly supported                      to the fishery. Table 2–32 of the                     cod. This action will not change the
                                                adoption of the proposed harvest set-                   Analysis shows that prior to 2008, the                TAC for Aleutian Islands Pacific cod, or
                                                aside. Opponents were companies                         majority of the Aleutian Islands Pacific              conservation and management measures
                                                representing CPs whose vessels could be                 cod processed by the offshore sector                  that ensure that harvests of Aleutian
                                                restricted by this action.                              originated from CP harvest, but after                 Islands Pacific cod do not exceed
                                                   In responding to these comments,                     2008, CV deliveries of Aleutian Islands               established OFL, ABC, or TAC limits.
                                                when NMFS refers to Amendment 113,                      Pacific cod to CPs played a more                      Aleutian Islands Pacific cod is managed
                                                unless otherwise noted, NMFS means                      prominent role in the offshore                        to a TAC that is set at or below the ABC
                                                Amendment 113 and this final rule                       processing of Aleutian Islands Pacific                and the stock is neither overfished nor
                                                implementing Amendment 113.                             cod. Although Aleutian Islands                        approaching an overfished condition
                                                                                                        shoreplants operating in Adak have                    (see Section 3.3 of the Analysis).
                                                General Comments                                                                                                 Comment 4: There is no provision in
                                                                                                        received Pacific cod without a harvest
                                                   Comment 1: This action is                            set-aside in the past, NMFS and the                   the proposed rule to remove the
                                                unnecessary. When Adak has an                           Council determined that this action is                Aleutian Islands CV Harvest Set-Aside
                                                operational plant, it received a                        necessary to minimize the risk of                     from the FMP and Federal regulations if
                                                significant portion of the Aleutian                     diminished share of Aleutian Islands                  no on-shore processing activity occurs
                                                Islands Pacific cod catch without                       Pacific cod to Aleutian Islands                       for a number of years. Does the set-aside
                                                delivery requirements.                                  communities dependent on the fishery                  continue indefinitely? What would
                                                   Response 1: In February 2015, the                    and to provide additional stability to                prompt Council re-examination?
                                                Council identified in a modified                        promote and sustain Aleutian Islands                     Response 4: The commenter is
                                                problem statement the purpose and                       shoreplants, harvesters delivering to                 correct; there is no provision in
                                                need for protections for Aleutian Islands               Aleutian Islands shoreplants, and the                 Amendment 113 or this rule that would
                                                communities as a result of the                          communities in the Aleutian Islands.                  end, or sunset, the Aleutian Islands CV
                                                implementation of rationalization                          Comment 2: The proposed rule                       Harvest Set-Aside if Aleutian Islands
                                                programs, the BSAI Pacific cod TAC                      assumes that the increase in offshore                 shoreplants are not operational for a
                                                split, and relatively low Pacific cod                   processing since the implementation of                specified number of years. However,
                                                abundance in the Aleutian Islands,                      rationalization programs was a major                  under the performance measures
                                                among other factors (Section 2.2 of the                 cause of instability in onshore                       established by this final rule, the
                                                Analysis). The Council stated that these                processing in the Aleutian Islands, but               Aleutian Islands CV Harvest Set-Aside
                                                factors have ‘‘. . . increased the risk                 this is not true. There have been long-               is effective in a fishing year only if
                                                that the historical share of BSAI cod of                standing challenges to the viability of               timely and complete notification of
                                                other industry participants and                         shore-based processing in the Aleutian                intent to process from the City of Adak
                                                communities that depend on shoreplant                   Islands such as ownership changes of                  or the City of Atka is received by NMFS.
                                                processing in the region may be                         Aleutian Islands shoreplants, Steller sea             Presumably, if there is not likely to be
                                                diminished.’’ The Council’s rationale for               lion protection measures, plant                       an operational Aleutian Islands
                                                its preferred alternative stated that this              insolvency, energy costs, employment                  shoreplant in the upcoming fishing year,
                                                action ‘‘. . . would provide benefits and               challenges, market conditions, and                    these cities would not submit a
                                                stability to fishery dependent                          product transportation difficulties.                  notification to NMFS. Also, in order for
                                                communities in the Aleutian Islands                        Response 2: As explained in the                    the set-aside to continue to be effective
                                                and is responsive to changes in                         ‘‘Need for This Proposed Rule’’ section               after February 28, a minimum of 1,000
                                                management regimes like rationalization                 of the preamble to the proposed rule                  mt of Aleutian Islands Pacific cod must
                                                programs that necessitate putting                       and in Section 2.2 of the Analysis, the               be delivered to Aleutian Islands
                                                protections in place to protect other                   Council and NMFS recognize that                       shoreplants on or before February 28. If,
                                                non-rationalized fisheries’’ (Section                   several factors have contributed to                   in the future, it appears that the
                                                2.4.3 of the Analysis). The Council’s                   instability in processing operations in               Aleutian Islands CV Harvest Set-Aside
                                                purpose and need statement, the                         the Aleutian Islands, including                       is not being used, or Aleutian Islands
                                                proposed rule, and the Analysis                         decreased Pacific cod biomass in the                  shoreplants cannot meet the demand,
                                                describe the range of factors that have                 Aleutian Islands subarea; the                         the Council could consider and, if
                                                affected delivery patterns in the                       establishment of separate OFLs, ABCs,                 warranted, initiate an action to revise or
                                                Aleutian Islands that could limit                       and TACs for Pacific cod in the Bering                remove the provisions of Amendment
                                                opportunities for Aleutian Islands                      Sea and the Aleutian Islands (referred to             113 and its implementing regulations.
                                                shoreplants, harvesters delivering to                   as the ‘‘BSAI TAC split’’); changing                     Comment 5: The proposed rule grants
                                                Aleutian Islands shoreplants, and the                   Steller sea lion protection measures;                 de facto fishery management authority
                                                communities in the Aleutian Islands.                    historical volatility in the Aleutian                 to municipal officials, by requiring them
                                                Thorough descriptions of the factors                    Islands shoreplant processing sector;                 to provide notice to NMFS of the
                                                necessitating this action, and the                      and changing fishing practices in part                Aleutian Islands shoreplants intent to
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                                                Council’s rationale are provided in the                 resulting from rationalization programs.              process Pacific cod in the upcoming
                                                ‘‘Need for This Proposed Rule’’ section                 The Council, NMFS and this rule do not                year. NMFS is surrendering the
                                                of the proposed rule and the Analysis                   assume that rationalization programs are              determination of whether a shore plant
                                                and are not repeated here.                              the primary cause of this instability, but            is prepared to process Pacific cod to a
                                                   In years when the Adak shoreplant                    rather, one of many contributing factors.             community representative who is not a
                                                was not operational, the offshore                          Comment 3: This is a wipe-out plan                 regulated participant in the fishery. This
                                                processing sector (primarily CPs) was                   for cod. It will wipe out cod just as this            is granting too much power to one


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                                                             Federal Register / Vol. 81, No. 226 / Wednesday, November 23, 2016 / Rules and Regulations                                         84441

                                                individual. The city manager could use                  these representatives are bound by oath               authority to open or close fisheries,
                                                this authority to undermine certain                     of office to uphold the wishes of their               assess catch amounts, or take other
                                                businesses or to grant favors.                          constituents. Currently, both the City of             actions provided in regulation.
                                                Additionally, Atka does not have a city                 Adak and the City of Atka execute, in                 Notification is not to be confused with
                                                manager.                                                good faith, waivers for the delivery                  an active role in administering
                                                   Response 5: The Council specified                    requirement for Western Aleutian                      regulations. NMFS is ultimately
                                                that the City of Adak or the City of Atka               Islands golden king crab when sufficient              responsible for taking any management
                                                should be the entity to provide official                processing capacity does not exist in                 actions once a notification has been
                                                notification to NMFS of the                             those communities. These cities issue                 received.
                                                community’s intent to process Pacific                   the waiver knowing that it is not in the                 Comment 6: If this rule is
                                                cod, but it did not specify who from                    communities’ best interests to strand the             implemented, NMFS will notify Adak or
                                                Adak or Atka should provide such                        crab resource. The notification                       Atka city managers if they have not
                                                notification (Section 2.7.2.4 of the                    requirement under Amendment 113 is                    received their notifications of intent to
                                                Analysis). The Analysis describes that if               similar, and it is not clear how the                  process. This seems at odds with other
                                                the notification requirement is                         requirement to notify NMFS of the                     programs that have notification dates,
                                                implemented, NMFS could specify the                     communities’ intent to process Pacific                such as submission of annual
                                                person representing the city who should                 cod grants too much power to the city                 cooperative notifications to NMFS.
                                                provide the notification.                               manager or administrator. NMFS                        There is no regulatory language that
                                                   The commenter notes that the City of                 expects that the city manager or                      provides for NMFS to notify the entity
                                                Atka does not have a city manager.                      administrator will be in communication                or person that it has not received
                                                Technically, that is accurate: Atka has a               with the shoreplant manager and local                 cooperative information regarding the
                                                city administrator. Title 29 of the Alaska              fishing fleet prior to the notification               next year’s intent to process.
                                                Statutes explains the distinctions                      deadline to ensure that the shoreplant                   Response 6: The commenter is
                                                between a city manager and a city                       will be able to accept deliveries of                  referring to the regulatory language at
                                                administrator. In the manager form of                   Pacific cod once the set-aside goes into              (a)(7)(viii)(D)(3) which explains how
                                                municipality, the city manager is the                   effect. If, for some reason, the shoreplant           NMFS will provide confirmation to the
                                                chief executive. In a strong-mayor form                 does not operate as anticipated, the                  City Manager of the City of Adak or the
                                                of municipality, the mayor is the chief                 1,000 mt minimum processing                           City Administrator of the City of Atka if
                                                executive and the city administrator can                performance measure would not be met                  their notification of intent to process
                                                exercise powers or duties only as                       by February 28 and the set-aside would                Aleutian Islands Pacific cod has been
                                                delegated by the mayor and city council.                be lifted.                                            received or not. This confirmation is to
                                                In either case, the role of the manager                                                                       let the city know that the set-aside will
                                                or administrator is to represent the                       NMFS does not consider the                         or will not be in effect for the upcoming
                                                interests of the city, city council, and                notification requirement to be a de facto             year. Similarly, NMFS will publish a
                                                mayor. The language in the final rule                   grant of fishery management authority                 notice in the Federal Register to inform
                                                has been changed to reflect that the city               to the city manager or administrator.                 the public whether the set-aside will be
                                                administrator is the person responsible                 The Council and NMFS have                             in effect. NMFS will not offer these
                                                for providing notification to NMFS for                  established the fishery management                    cities additional time to provide
                                                Atka.                                                   policy with regard to Aleutian Islands                notification if it was not received by the
                                                   This type of designation is not                      Pacific cod. The intent of the Council                deadline and according to the
                                                unprecedented. For example, in an                       and NMFS with Amendment 113 and                       requirements stated in regulations.
                                                action to create Community Quota                        this final rule is to have an Aleutian                   Comment 7: NMFS received 11
                                                Entities (CQE) for the Halibut and                      Islands CV Harvest Set-Aside in place                 comment letters from 9 different entities
                                                Sablefish Individual Fishing Quota                      for Aleutian Islands fishing                          in support of Amendment 113 and its
                                                Program (Amendment 66 to the Gulf of                    communities, and the harvesters and                   implementing regulations. In general,
                                                Alaska FMP, 69 FR 23681, April 30,                      shoreplants that are part of those                    the comments emphasized that three
                                                2004), NMFS specified which governing                   communities, to utilize. Recognizing                  interacting issues have affected the
                                                body would be responsible for                           that there may be years when Aleutian                 viability of shoreside operations in the
                                                proposing a potential CQE to NMFS,                      Islands shoreplants may not be                        Aleutian Islands: the BSAI Pacific cod
                                                depending on the governance structure                   operational, the notification provision               biomass estimates and TAC split, Steller
                                                of the particular community. For                        was a fishery management decision by                  sea lion protection measures, and
                                                communities incorporated as                             the Council and NMFS to provide for an                rationalization programs. The
                                                municipalities, the governing body                      orderly start to the fishing year and as              commenters noted that fish processing
                                                identified was the city council. In                     a way to prevent the set-aside from                   is the core economic driver for the
                                                communities represented by tribal                       becoming effective if neither city                    communities of Adak and Atka and that
                                                governments, the governing body was                     intends to process in the upcoming                    these communities have been negatively
                                                the non-profit entity. In similar fashion,              fishing year. The city manager or                     impacted by prior management actions.
                                                and as described in the proposed rule                   administrator is the person from whom                 They stressed that Aleutian Islands
                                                for this action, NMFS determined that                   NMFS will expect to receive notification              communities, Adak and Atka in
                                                the city manager or administrator would                 of the city’s intent to process Pacific cod           particular, need the kind of protections
                                                be the appropriate person responsible                   and to whom NMFS will confirm that                    that the Council has provided to
                                                for submitting the required notification                notification has been received. Under                 communities in the Gulf of Alaska
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                                                to NMFS.                                                this final rule, the city manager or                  (GOA) and Bering Sea for pollock, and
                                                   While ownership and management of                    administrator is providing information                to GOA communities for Pacific cod by
                                                fish processing facilities may change, it               to NMFS on anticipated processing                     limiting the amount that can be
                                                is likely that there will always be                     activities based on knowledge gained                  delivered either inshore or offshore.
                                                someone performing the role of city                     from Aleutian Islands shoreplants in                  These commenters considered stable
                                                manager or administrator for Adak and                   their communities. City managers and                  access to at least 5,000 mt of Aleutian
                                                Atka. As elected or appointed officials,                administrators are not delegated any                  Islands Pacific cod from the Federal


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                                                84442        Federal Register / Vol. 81, No. 226 / Wednesday, November 23, 2016 / Rules and Regulations

                                                fishery essential for maintaining viable                period is important and necessary. As                 cod proposed for the BS non-CDQ TAC
                                                communities in Adak and Atka. These                     noted in Section 2.7.2.5 of the Analysis,             in the fourth row of Table 4 was
                                                commenters concluded that this final                    Aleutian Islands Pacific cod tend to                  accurate. This final rule modifies the
                                                rule provides community protections for                 aggregate in late February to early                   final 2016 and 2017 harvest
                                                shorebased processing in the Aleutian                   March, and these aggregations are                     specifications to add a supplemental
                                                Islands management area that are                        optimal for efficient trawl fishing.                  table, Table 8a, that provides the 2017
                                                critical to the survival of Aleutian                    NMFS has changed                                      catch limits for Pacific cod under
                                                Islands communities.                                    § 679.20(a)(7)(viii)(E)(4) to clarify that            Amendment 113 and this final rule.
                                                   Response 7: NMFS acknowledges the                    landings made ‘‘on or before’’ February               NMFS will publish a notice in the
                                                comments in support of Amendment                        28, rather than ‘‘prior to’’ February 28,             Federal Register in December 2016 if
                                                113. The Secretary, through her                         will be used to determine whether the                 there will be any changes to these
                                                designee, the Assistant Administrator                   minimum landings requirement has                      amounts. NMFS will also publish a
                                                for Fisheries, approved Amendment 113                   been met.                                             notice in the Federal Register to inform
                                                on October 17, 2016, and implements                        Comment 9: As a longtime, small                    the public if the Aleutian Islands CV
                                                Amendment 113 with this final rule.                     boat, Aleutian Islands fisherman, it is               Harvest Set-Aside and Bering Sea Trawl
                                                The Secretary concluded that the                        vital to my longline operation and to                 Catcher Vessel Sector Limitation will be
                                                Aleutian Islands CV Harvest Set-Aside                   other small and entry level vessel                    in effect in 2017. Table 8a displays the
                                                in Amendment 113 is consistent with                     owners to have a stable shoreside                     correct name of the allocation and the
                                                the Magnuson-Stevens Act, including                     processing facility in the Aleutian                   correct amount. No changes to the
                                                the National Standards, and other                       Islands. Amendment 113 will create                    regulatory text are necessary in response
                                                applicable law.                                         numerous opportunities for small boats                to this comment.
                                                   Comment 8: The proposed regulatory                   and the community of Adak.                               Comment 13: The agency has not
                                                language for the minimum Aleutian                          Response 9: NMFS acknowledges the                  followed the requisite process under the
                                                Islands shoreplant landing requirement                  support for this action.                              National Environmental Policy Act
                                                at § 679.20(a)(7)(viii)(E)(4) states that ‘‘if             Comment 10: We support solutions                   (NEPA). In particular, an environmental
                                                less than 1,000 mt of the Aleutian                      that optimize and create sustainable                  impact statement (EIS) should have
                                                Islands Catcher Vessel Harvest Set-                     social, economic, and conservation                    been completed. The action is clearly
                                                Aside is landed at Aleutian Islands                     outcomes. Amendment 113 and this                      controversial, as it has been under
                                                shoreplants prior to February 28, then                  final rule will help the economic                     consideration for over 8 years in the
                                                paragraphs (a)(7)(viii)(E)(1) for the                   sustainability of Adak and Atka and will              Council process. A more thorough
                                                Bering Sea Trawl CV A-season Sector                     help the aspirations of the Aleut people              review might have compelled NMFS to
                                                Limitation and (2) for the Aleutian                     to repopulate some of the islands of the              reject this action.
                                                Islands CV Harvest Set-Aside will not                   western Aleutians. Amendment 113 and                     Response 13: According to NEPA and
                                                apply for the remainder of the fishing                  this final rule may also improve the                  Council on Environmental Quality
                                                year.’’ However, the preamble to the                    conservation and ecosystem                            (CEQ) regulations at 40 CFR 1502.3, an
                                                proposed rule and the Council motion                    sustainability of the area. Giving the                EIS is required when a fishery
                                                clearly state that this performance                     local inhabitants a larger financial stake            management action may significantly
                                                measure must be met ‘‘by’’ February 28.                 in the sustainability of the local                    affect the quality of the human
                                                This change in the proposed regulatory                  ecosystem is an important step in a long              environment. Determining whether an
                                                language from the Council’s motion                      process leading to better conservation.               action may significantly affect the
                                                would give Aleutian Islands shoreplants                 We firmly believe that where local, and               quality of the human environment
                                                one less day to fulfill the minimum                     particularly Alaska Natives, have more                requires considerations of both context
                                                delivery requirements. This one-day                     control over resource extraction, the                 and intensity, and regulations at 40 CFR
                                                difference is not insignificant to                      conservation outcome is likely to be                  1508.27(b) list several factors that are to
                                                Aleutian Islands shoreplants. An                        better.                                               be considered in evaluating the
                                                average of 178 mt of Pacific cod was                       Response 10: NMFS acknowledges the                 intensity of an action. One of these
                                                landed at Adak on February 28 from                      comment and the support for                           factors is the degree to which the effects
                                                2002 through 2009. Landings on                          Amendment 113 and this final rule.                    on the quality of the human
                                                February 28 represent a substantial                        Comment 11: Trawl vessels catch                    environment are likely to be highly
                                                portion of the proposed 1,000-mt                        large quantities of vulnerable deep sea               controversial (40 CFR 1508.27(b)(4)).
                                                minimum landing requirement                             corals and sponges in the area. Shifting              Before deciding whether to complete an
                                                performance measure. The commenters                     to other gear types in the Aleutian                   EIS, agencies may prepare an EA to
                                                request that the proposed regulatory                    Islands Pacific cod fishery may help                  determine whether an EIS must be
                                                language at § 679.20(a)(7)(viii)(E)(4) be               protect these vulnerable species.                     prepared or a finding of no significant
                                                changed so that landings made ‘‘on or                      Response 11: NMFS acknowledges the                 impact (FONSI) can be made (40 CFR
                                                before’’ February 28 will count toward                  comment but notes that this final rule                1501.3 and 1508.9). If the EA results in
                                                the performance measure threshold.                      does not modify the areas or types of                 a FONSI, an EIS is not needed.
                                                   Response 8: NMFS agrees. The                         gear that can be used to harvest fishery                 Courts have held that an action is
                                                Council motion, the preamble to the                     resources in the Aleutian Islands.                    ‘‘highly controversial’’ when there is a
                                                proposed rule, the Analysis, the FMP                       Comment 12: There is an error in the               substantial dispute about the size,
                                                amendment text, and the notice of                       fourth row of Table 4 in the preamble                 nature, or effect of the action, or when
                                                availability for the FMP amendment all                  of the proposed rule. The fourth row in               substantial questions are raised as to
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                                                state that 1,000 mt must be landed ‘‘by,’’              Table 4 refers to the ‘‘BSAI non-CDQ                  whether a proposed action may cause
                                                not ‘‘prior to,’’ February 28. The                      TAC.’’ This row should have read ‘‘BS                 significant degradation of some human
                                                proposed regulatory language was                        non-CDQ TAC.’’                                        environmental factor. Courts have also
                                                inadvertently written in a way that                        Response 12: NMFS agrees that the                  held that the existence of opposition to
                                                contradicts the Council’s intent for this               fourth row in Table 4 of the proposed                 an action does not raise the level of
                                                performance measure. Inclusion of                       rule preamble should have read ‘‘BS                   controversy to the point that an EIS is
                                                February 28 in the minimum landings                     non-CDQ TAC.’’ The amount of Pacific                  required. Additionally, as stated in 40


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                                                             Federal Register / Vol. 81, No. 226 / Wednesday, November 23, 2016 / Rules and Regulations                                         84443

                                                CFR 1508.14 and in Section 3 of the                     controversy or opposition has been                    final rule does not preclude residents of
                                                Analysis, economic and social impacts                   largely related to potential economic                 any state from participation in any
                                                by themselves are not sufficient to                     and social impacts which do not require               fishery in the Aleutian Islands as either
                                                require the preparation of an EIS.                      the preparation of an EIS.                            a harvester or operator of an Aleutian
                                                   In accordance with NEPA and the                                                                            Islands shoreplant. Appropriately
                                                CEQ regulations, the Council and NMFS                   Comments Related to the Magnuson-
                                                                                                                                                              licensed and endorsed vessels will still
                                                appropriately prepared an EA for this                   Stevens Act and the National Standards
                                                                                                                                                              have the opportunity to prosecute the
                                                action, which analyzes the potential                       Comment 14: National Standard 4 of                 fishery, and any person wishing to
                                                effects of the action on individual                     the Magnuson-Steven Act states,                       operate a processing facility with the
                                                resource components, as well as the                     ‘‘Conservation and management                         appropriate license in the area may still
                                                potential cumulative effects. The EA                    measures shall not discriminate                       do so.
                                                was prepared using the best available                   between residents of different states. If                Amendment 113 and this final rule
                                                scientific information. Using the                       it becomes necessary to allocate or                   establish a set-aside that allocates the
                                                information and analysis in the EA, the                 assign fishing privileges among various               Aleutian Islands non-CDQ Pacific cod
                                                Council and NMFS reviewed the                           United States fishermen, such allocation              DFA during a portion of the A-season
                                                potential impacts of this action on the                 shall be (A) fair and equitable to all such           among those harvesting vessels that
                                                human environment as required under                     fishermen; (B) reasonably calculated to               conduct directed fishing for Aleutian
                                                NEPA. After reviewing the impacts of                    promote conservation; and (C) carried                 Islands Pacific cod and deliver their
                                                this action, the Regional Administrator                 out in such manner that no particular                 catch to Aleutian Islands shoreplants for
                                                prepared and signed a FONSI,                            individual, corporation, or other entity              processing and those harvesting vessels
                                                determining that the action will not                    acquires an excessive share of such                   that conduct directed fishing for
                                                result in significant impacts to the                    privileges.’’ Amendment 113 and this                  Aleutian Islands Pacific cod and deliver
                                                quality of the human environment, and                   final rule violate National Standard 4. In            their catch for processing to any eligible
                                                further analysis in an EIS is not needed.               fact, a 2009 letter from Acting Regional              processor other than Aleutian Islands
                                                NMFS determined that the action will                    Administrator Mecum to North Pacific                  shoreplants. Therefore, this allocation
                                                make relatively minor changes to the                    Fishery Management Council Chair                      must be fair and equitable to all such
                                                timing and location of fishing for Pacific              Olson noted that the proposed set-aside               fishermen, reasonably calculated to
                                                cod by vessels in the BSAI and that no                  could violate National Standard 4’s                   promote conservation, and carried out
                                                significant changes in total harvests or                requirements that allocations be fair and             in such manner that no particular
                                                when, where, and how fishing occurs                     equitable and do not create excessive                 individual, corporation, or other entity
                                                are expected with the action.                           shares. They are not fair and equitable,              acquires an excessive share of such
                                                   The commenter implies that the                       do not promote conservation, and                      privileges, consistent with National
                                                length of time it took the Council to                   would allocate an excessive share to a                Standard 4. For the reasons provided
                                                consider and take final action on                       particular entity. The plant in Atka has              below, NMFS has determined that
                                                Aleutian Islands community protection                   never processed cod and has no                        Amendment 113 and this final rule are
                                                measures makes Amendment 113 and                        historical dependency on the Federal                  consistent with National Standard 4’s
                                                the regulations inherently controversial                non-CDQ Aleutian Islands Pacific cod                  requirements for allocations.
                                                and therefore requires the preparation of               fishery. Adak is the sole entity that will               NMFS has determined that the set-
                                                an EIS. NMFS disagrees that the mere                    benefit from this action. Adak would                  aside is fair and equitable to all
                                                length of time this action was under                    receive an excessive share, i.e., the                 participants in the BSAI Pacific cod
                                                consideration by the Council is                         entire Aleutian Islands CV Harvest Set-               fishery. Vessels from all non-CDQ
                                                indicative of a level of controversy that               Aside, which is a de facto processor                  sectors can participate in the set-aside
                                                requires the preparation of an EIS. The                 share not authorized by the Magnuson-                 and each sector will continue to have
                                                implementation of several                               Stevens Act.                                          access to its entire BSAI Pacific cod
                                                rationalization programs, Steller sea lion                 Response 14: NMFS has determined                   allocation. This action also addresses an
                                                protection measures, the BSAI TAC                       that this action is consistent with                   inequity that has occurred, in part, from
                                                split, and decreasing biomass of                        National Standard 4. Amendment 113                    the establishment of rationalization
                                                Aleutian Islands Pacific cod, all of                    and this final rule do not include any                programs and minimizes the risk of
                                                which occurred while the Council was                    measures that discriminate between                    future inequities in the prosecution of
                                                considering community protection                        residents of different states. While                  the Aleutian Islands Pacific cod fishery.
                                                measures for the Aleutian Islands,                      Amendment 113 and this final rule                     The Council and NMFS determined that
                                                considerably changed the way in which                   establish the set-aside for vessels that              the protections in Amendment 113 and
                                                the BSAI Pacific cod fishery was                        deliver their catch of Aleutian Islands               this final rule are necessary to mitigate
                                                managed and conducted by participants.                  Pacific cod to Aleutian Islands                       the effects of previous Council actions.
                                                The Council reasonably wanted to                        shoreplants for processing, any properly              Offshore processing activity has taken
                                                examine and understand the effects                      permitted and licensed vessel, operated               an increasing proportion of the Aleutian
                                                these changes would have on the BSAI                    by any resident of any community or                   Islands Pacific cod fishery in some
                                                Pacific cod fishery before taking final                 state, can participate in the Aleutian                recent years due to a variety of factors
                                                action. After examining the effects of                  Islands CV Harvest Set-Aside.                         described in the preamble to the
                                                these changes on Aleutian Islands                       Participation in the set-aside or in the              proposed rule and in the Analysis. At
                                                communities, the Council determined                     Unrestricted Fishery is not premised on               the same time, the historical share of the
                                                that the community protections that will                residency in a particular state.                      BSAI Pacific cod fishery delivered to
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                                                be implemented by Amendment 113                         Participation in the BSAI Pacific cod                 Aleutian Islands shoreplants has
                                                and this final rule are warranted and                   fishery is governed by regulations that               decreased.
                                                necessary. The effects of this action on                were determined to be consistent with                    The maximum cap of 5,000 mt for set-
                                                the quality of the human environment                    National Standard 4 and neither                       aside is representative of the long-term
                                                are not in dispute. To the extent that                  Amendment 113 nor this final rule                     average annual amount of Pacific cod
                                                there has been controversy over, or                     change the permitting and licensing                   processed by Aleutian Islands
                                                opposition to, the action, the                          requirements currently in place. This                 shoreplants that includes years both


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                                                84444        Federal Register / Vol. 81, No. 226 / Wednesday, November 23, 2016 / Rules and Regulations

                                                before and after significant changes in                 other entity participating in either the                 The action under consideration by the
                                                the BSAI Pacific cod fishery occurred.                  set-aside or the Unrestricted Fishery                 Council when NMFS sent the letter was
                                                Establishing a maximum amount, rather                   will be able to acquire an excessive                  not the set-aside action in Amendment
                                                than a percentage, for the set-aside will               share of the Aleutian Islands Pacific cod             113 but a different action that would
                                                protect Aleutian Islands fishing                        fishery under Amendment 113 and this                  have established processing sideboards
                                                communities during years of relatively                  final rule. All vessels will continue to              on processing vessels eligible under the
                                                low Aleutian Islands Pacific cod TAC,                   have catch attributed to their sector, and            AFA, BSAI crab rationalization
                                                will ensure the set-aside remains                       Amendment 113 and this final rule do                  program, and BSAI Amendment 80
                                                representative of past participation                    not create any new allocations to                     program that received deliveries of
                                                levels by Aleutian Islands fishing                      particular individuals, corporations, or              Pacific cod harvested in the Eastern and
                                                communities, and will benefit those                     other entities fishing for Aleutian                   Central Aleutian Islands (Areas 541 and
                                                who do not participate in the set-aside                 Islands Pacific cod. Additionally,                    542). Under that action, CPs, floating
                                                fishery during years of relatively high                 Amendment 113 and this final rule do                  processors, and motherships in these
                                                Aleutian Islands Pacific cod TAC by                     not limit participation in the set-aside to           programs would have been limited in
                                                allowing the amount allocated to the                    a discreet subset of vessels that meet                the amount of CV deliveries they could
                                                Unrestricted Fishery to increase with                   certain criteria. As explained earlier,               receive of Pacific cod harvested in Area
                                                increases in TAC.                                       any properly permitted and licensed                   541 and/or 542 on an annual basis, or
                                                   This action is also fair and equitable               vessel, operated by any resident of any               prohibited from taking deliveries prior
                                                because the set-aside will be in effect                 community or state, within any BSAI                   to a specific date. The 2009 letter from
                                                only when the Aleutian Islands fishing                  Pacific cod non-CDQ sector can                        NMFS encourages the Council to pay
                                                communities it is intended to benefit are               participate in the Aleutian Islands CV                particular attention to National
                                                prepared and actively engaged in                        Harvest Set-Aside.                                    Standard 4’s prohibition against
                                                participation. When Aleutian Islands                       The commenter asserts that Adak will               allocation of excessive shares of fishing
                                                communities are unable to accept                        receive an excessive share in violation               privileges and requirement that
                                                deliveries of Pacific cod for processing,               of National Standard 4 because the                    allocation actions be reasonably
                                                there are mechanisms built into the final               shoreplant in Adak is the only processor              calculated to promote conservation.
                                                rule that will lift the set-aside and allow             in the Aleutian Islands that has                      NMFS advised the Council that if it
                                                others to have access to the remaining                  processed Pacific cod and it therefore                chose to proceed with the action under
                                                harvest.                                                will receive the entire Aleutian Islands              consideration at that time, it would
                                                   NMFS also has determined that the                                                                          need to provide a rationale that clearly
                                                                                                        CV Harvest Set-Aside. Section 2.6.8 of
                                                set-aside is reasonably calculated to                                                                         demonstrated that the action was
                                                                                                        the Analysis describes the two
                                                promote conservation. Amendment 113                                                                           consistent with these aspects of
                                                                                                        shoreplants currently in the Aleutian
                                                and this final rule do not modify the                                                                         National Standard 4. However, NMFS
                                                                                                        Islands—one in Adak and one in Atka.
                                                process for specifying OFLs, ABCs, or                                                                         also stated, ‘‘Based on our discussions
                                                                                                        Although Atka has not processed Pacific
                                                TACs for the Bering Sea and Aleutian                                                                          with NOAA GC, these issues do not
                                                Islands Pacific cod fishery, the                        cod and Adak has processed Pacific cod,
                                                                                                        this final rule does not provide a                    appear to preclude the proposed
                                                allocation of BSAI Pacific cod to CDQ                                                                         action . . . .’’
                                                and non-CDQ fishery participants that is                specific allocation of fishing privileges
                                                                                                                                                                 In developing Amendment 113, the
                                                established in existing regulations, or                 to either of these Aleutian Islands
                                                                                                                                                              Council considered the advice provided
                                                the allocation of BSAI Pacific cod                      shoreplants. Amendment 113 does not
                                                                                                                                                              by NMFS and modified the action to
                                                among non-CDQ fishery participants.                     provide Adak or Atka with fishing
                                                                                                                                                              address inordinate control concerns by
                                                NMFS will continue to manage the                        privileges in the Aleutian Islands Pacific            conditioning the set-aside on the
                                                fishery so that harvests stay within                    cod fishery.                                          achievement of certain performance
                                                specified and allocated amounts.                           The commenter also asserts that                    measures which, if not satisfied, will lift
                                                Additionally, Amendment 113 and this                    Amendment 113 and this final rule                     the set-aside; by capping the maximum
                                                final rule continue to promote and do                   establish a processor share or exclusive              amount of the set-aside at a level that
                                                not undermine the conservation                          processing privilege for Adak which is                will provide the protections and
                                                measures established under the Steller                  not authorized by the Magnuson-                       stability the Council wanted to create
                                                sea lion protection measures,                           Stevens Act. This aspect of Comment 14                for Aleutian Islands fishing
                                                Amendment 85 allocations, and                           is also expressed in Comment 18. NMFS                 communities, particularly in times of
                                                Amendment 80 rationalization.                           refers the reader to its detailed response            relatively low Aleutian Islands Pacific
                                                   Finally, NMFS determined that the                    to this comment in its response to                    cod TAC, and that will allow for the
                                                set-aside will be carried out in such                   Comment 18.                                           continued participation of the offshore
                                                manner that no particular individual,                      Finally, the commenter refers to a                 sector; and by allowing any vessel and
                                                corporation, or other entity acquires an                letter dated January 28, 2009, from                   any Aleutian Islands shoreplant to
                                                excessive share of the Aleutian Islands                 Robert D. Mecum, Acting Administrator,                participate in the set-aside. The Council
                                                Pacific cod fishery. NOAA’s guidance                    Alaska Region, NMFS, to Eric Olsen,                   also designed Amendment 113 and this
                                                on National Standard 4 states that ‘‘only               then Chairman of the Council.                         final rule to promote conservation and
                                                those measures that result in direct                    According to the commenter, NMFS                      to prohibit acquisition of an excessive
                                                distributions of fishing privileges will                noted in this letter that the proposed                share of fishing privileges as explained
                                                be judged against the allocation                        set-aside could violate National                      earlier in this response.
                                                requirements of Standard 4’’                            Standard 4’s requirement that                            Comment 15: This action was
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                                                (§ 600.325(c)(1)). This final rule                      allocations be fair and equitable and not             reasonably calculated to promote
                                                establishes a set-aside for any otherwise               create excessive shares. While NMFS                   conservation as required under National
                                                eligible vessel that conducts directed                  acknowledges the letter, NMFS                         Standard 4 because it will reduce the
                                                fishing for Aleutian Islands Pacific cod                disagrees that the letter provides                    amount of halibut prohibited species
                                                and delivers its catch to any Aleutian                  support for the claim that Amendment                  catch (PSC).
                                                Islands shoreplant for processing. No                   113 and this final rule are inconsistent                 Response 15: NMFS acknowledges the
                                                particular individual, corporation, or                  with National Standard 4.                             comment. NMFS believes that the


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                                                             Federal Register / Vol. 81, No. 226 / Wednesday, November 23, 2016 / Rules and Regulations                                        84445

                                                commenter is referring to data that                     maximum sustainable yield from the                    available for the fleet to harvest the
                                                indicate that halibut PSC rates are much                fishery, as reduced by any relevant                   remaining Aleutian Islands TAC if the
                                                lower in the Aleutian Islands Pacific                   economic, social, or ecological factor’’              1,000-mt performance standard is not
                                                cod fishery than in the Bering Sea                      (16 U.S.C. 1802(33)(A) and (B)).                      met on or before February 28 or if the
                                                Pacific cod fishery (Section 2.7.2.2 of                 Amendment 113 and this final rule do                  full Aleutian Islands CV Harvest Set-
                                                the Analysis). The commenter seems to                   not change the optimum yield of the                   Aside is harvested allowing the fishery
                                                suggest that if more fishing occurs in the              BSAI groundfish fisheries, which is                   to be opened to all participants. NMFS
                                                Aleutian Islands relative to the Bering                 specified in regulations as a range from              tracks harvests and projects when catch
                                                Sea because of this final rule, overall                 1.4 million to 2.0 million mt                         limits will be reached so that the
                                                halibut PSC usage in the BSAI could                     (§ 679.20(a)(1)(i)(A)). NMFS notes that               announcement can be prepared and the
                                                potentially decrease. NMFS cannot                       optimum yield refers to a broad range of              fishery can be opened or closed, as
                                                predict how halibut PSC rates or overall                harvest spanning all species within the               applicable, on the appropriate date.
                                                use may change in response to this final                BSAI groundfish fisheries, not the TAC                NMFS expects to open the Aleutian
                                                rule, if at all. NMFS notes that this final             for a given species and area in a year.               Islands Pacific cod fishery as soon as
                                                rule will not affect the total maximum                  Even if the entire Aleutian Islands                   necessary. For example, if Aleutian
                                                permissible amount of halibut PSC                       Pacific cod TAC were not harvested in                 Islands shoreplants have not met the
                                                established for BSAI groundfish                         a year, optimum yield could still be                  1,000-mt performance measure by
                                                fisheries. As stated in the response to                 achieved, consistent with National                    February 28, NMFS would have
                                                Comment 14, Amendment 113 and this                      Standard 1.                                           anticipated that in advance and be
                                                final rule continue to promote and do                      The Aleutian Islands Pacific cod OFL,              prepared to open the fishery to all
                                                not undermine the conservation                          ABC, and TAC, and the process by                      eligible participants promptly on March
                                                measures established under existing                     which NMFS manages the fishery to                     1 (or February 29, if a leap year).
                                                regulations.                                            stay within those limits, will not change             Likewise, NMFS would be prepared to
                                                   Comment 16: The proposed rule will                   as a result of this action. Specifically,             lift the Bering Sea Trawl CV A-Season
                                                result in TAC being ‘‘stranded’’ in the                 this final rule includes several                      Sector Limitation if the full set-aside
                                                Aleutian Islands Pacific cod fishery and                provisions to prevent stranded Pacific                were harvested prior to March 15. The
                                                it therefore violates National Standard 1               cod TAC in the Aleutian Islands and                   Council considered NMFS’ Catch
                                                of the Magnuson-Stevens Act because it                  should ensure full harvest of the                     Accounting and Inseason Management
                                                does not promote achievement of                         Aleutian Islands Pacific cod DFA, thus                protocols when selecting dates for the
                                                optimal yield. The proposed rule                        promoting the achievement of optimum                  set-aside.
                                                suggests that performance measures,                     yield in the Bering Sea and Aleutian                     Comment 17: This final rule promotes
                                                such as the 1,000-mt minimum landings                   Islands groundfish fisheries. As noted in             conservation and should be viewed as a
                                                requirement, would prevent the                          the response to Comment 14, this final                ‘‘trailing amendment’’ to the actions to
                                                stranding of Aleutian Islands Pacific cod               rule does not limit or constrain the                  establish separate Aleutian Islands and
                                                because other sectors would have access                 proportion of the TAC allocated to CDQ                Bering Sea Pacific cod OFLs, ABCs, and
                                                to the fishery once the harvest                         or non-CDQ fishery participants.                      TACs, and to implement new Steller sea
                                                restrictions and delivery requirements                     NMFS expects that vessel operators                 lion protection measures. Both of these
                                                are lifted. However, the fleet cannot                   will adapt their fishing plans in a                   actions were implemented for
                                                adjust in the time frames proposed. The                 variety of ways to accommodate the                    conservation purposes and the Council
                                                midseason announcements intended to                     Aleutian Islands CV Harvest Set-Aside,                chose to wait to enact community
                                                prevent stranding a portion of the                      and expects that sufficient catch                     protections until they could determine
                                                Aleutian Islands Pacific cod TAC cannot                 monitoring already exists, and                        what the effects of those actions on
                                                possibly be effective, given that vessels               notification requirements will be put                 Aleutian Islands communities would be.
                                                will be fishing at that time and will                   into effect with this final rule, for vessel             Response 17: NMFS acknowledges the
                                                likely need to interrupt that fishing to                operators to predict when and if they                 comment. As stated in the response to
                                                prepare gear for the Aleutian Islands                   should gear up and transit to the                     Comment 14, Amendment 113 and this
                                                Pacific cod fishery. These vessels would                Aleutian Islands to fish for Pacific cod.             final rule continue to promote and do
                                                then need to transit to the area from the               For example, if NMFS has not received                 not undermine the conservation
                                                Bering Sea or Gulf of Alaska.                           notification prior to November 1 of an                measures established under existing
                                                Additionally, delays between when                       Aleutian Islands city’s intent to process             regulations, such as the BSAI TAC split
                                                catch is landed and reported to NMFS,                   Pacific cod, the A-season Pacific cod                 and Steller sea lion protection measures.
                                                and when NMFS can reopen the fishery                    fishery will be available to all                         Comment 18: This action is a
                                                may further reduce the amount of time                   participants and those participants will              violation of National Standard 8.
                                                available to harvest the remaining TAC                  have more than two months to prepare.                 National Standard 8 does not constitute
                                                while the desirable aggregations of                     In years with sufficient TAC for an                   a basis for allocating resources to a
                                                Pacific cod are still available.                        Unrestricted Fishery to commence,                     specific fishing community nor for
                                                   Response 16: The Council and NMFS                    vessels may already be fishing in the                 providing preferential treatment based
                                                determined that Amendment 113 and                       Aleutian Islands when the Aleutian                    on residence in a fishing community.
                                                this final rule are consistent with                     Islands CV Harvest Set-Aside is lifted.               National Standard 8 applies to
                                                National Standard 1. Optimum yield, as                  In years when the Aleutian Islands TAC                allocation of fishing, not processing,
                                                defined in the Magnuson-Stevens Act, is                 is low and an Unrestricted Fishery will               privileges.
                                                that amount of fish which ‘‘will provide                not be available, vessel operators may                   Response 18: Because of their remote
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                                                the greatest overall benefit to the Nation,             choose to only fish in the Bering Sea.                location and limited economic
                                                particularly with respect to food                       NMFS posts weekly landing reports by                  alternatives, Aleutian Islands
                                                production and recreational                             fishery to help the agency and fishery                communities rely on harvesting and
                                                opportunities, and taking into account                  participants project when fisheries will              processing of the nearby fishery
                                                the protection of marine ecosystems’’                   open and close.                                       resources to support and sustain their
                                                and the amount of fish which ‘‘is                          NMFS disagrees that delays in catch                communities. National Standard 8
                                                prescribed as such on the basis of the                  accounting will further shorten the time              requires that conservation and


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                                                84446        Federal Register / Vol. 81, No. 226 / Wednesday, November 23, 2016 / Rules and Regulations

                                                management measures take into account                   described in § 679.20(a)(7). This final               Environmental Impact Statement
                                                the importance of fishery resources to                  rule does not allocate exclusive fishing              (available at https://
                                                fishing communities by utilizing                        privileges to a specific harvester,                   alaskafisheries.noaa.gov/node/33552).
                                                economic and social data that meet the                  community, processor, or to residents of              Specifically, NMFS refers the reader to
                                                requirements of National Standard 2 in                  a specific community.                                 objectives related to potential societal
                                                order to provide for the sustained                         Under this final rule, any properly                benefits, such as providing socially and
                                                participation of such communities, and                  permitted and licensed vessel, operated               economically viable fisheries for the
                                                to the extent practicable, minimize                     by any resident of any community or                   well-being of fishing communities and
                                                adverse economic impacts on such                        state, can harvest the portion of the                 balancing many competing uses of
                                                communities (16 U.S.C. 1851(a)(8)).                     Aleutian Islands Pacific cod TAC in the               marine resources and different social
                                                National Standard 8 guidelines                          Aleutian Islands CV Harvest Set-Aside.                and economic goals for sustainable
                                                recommend that ‘‘. . . where two                        Under this final rule, catch harvested                fishery management, including
                                                alternatives achieve similar                            from the set-aside can be delivered to                protection of the long-term health of the
                                                conservation goals, the alternative that                any Aleutian Islands shoreplant in any                resource and the optimization of yield.
                                                provides the greater potential for                      Aleutian Islands community, and no                       Comment 19: This action should have
                                                sustained participation of such                         exclusive opportunity to receive any                  been analyzed as a limited access
                                                communities and minimizes the adverse                   portion of the set-aside is provided to an            privilege program. The eligibility
                                                economic impacts on such communities                    Aleutian Islands shoreplant or to a                   requirements to grant limited access
                                                would be the preferred alternative’’ (50                person based on residency in an                       privileges to communities under the
                                                CFR 600.345(b)(1)). The guidelines                      Aleutian Islands community. As                        Magnuson-Stevens Act were not
                                                further state that ‘‘fishing community’’                explained in the response to Comments                 followed.
                                                means a community that is substantially                 14 and 19, Amendment 113 and this                        Response 19: Amendment 113 and
                                                dependent on or substantially engaged                   final rule do not create a processing                 this final rule do not create a limited
                                                in the harvest or processing of fishery                 privilege.                                            access privilege as defined in the
                                                resources to meet social and economic                      As described in the Analysis, the                  Magnuson-Stevens Act (16 U.S.C.
                                                needs, and includes fishing vessel                      preamble to the proposed rule, and in                 1802(26)). The Magnuson-Stevens Act
                                                owners, operators, and crew, and fish                   public testimony provided at Council                  defines ‘‘limited access privilege’’ as a
                                                processors that are based in such                       meetings, Aleutian Islands Pacific cod is             Federal permit, issued as part of a
                                                communities. A fishing community is a                   an important component of the                         limited access system under section
                                                social or economic group whose                          socioeconomic health of the community                 303A to harvest a quantity of fish
                                                members reside in a specific location                   of Adak, and may become a more                        expressed by a unit or units
                                                                                                        critical piece of the processing in Atka.             representing a portion of the total
                                                and share a common dependency on
                                                                                                        In Adak, the Aleutian Islands Pacific                 allowable catch of the fishery that may
                                                commercial, recreational, or subsistence
                                                                                                        cod fishery provides income to                        be received or held for exclusive use by
                                                fishing or on directly related fisheries-
                                                                                                        harvesters, processors, and other                     a person, and includes an individual
                                                dependent services and industries (for
                                                                                                        businesses providing support services.                fishing quota, but does not include
                                                example, boatyards, ice suppliers, tackle
                                                                                                        Section 2.6.8 of the Analysis suggests                community development quotas as
                                                shops) (50 CFR 600.345(b)(3)). The
                                                                                                        that without the set-aside, it is very                described in section 305(i). As stated in
                                                Council and NMFS considered the
                                                                                                        likely that the processing plant in Adak              responses to previous comments, this
                                                importance of fishery resources to
                                                                                                        will not be capable of sustained                      final rule does not provide any person
                                                Aleutian Islands fishing communities
                                                                                                        participation in the future (see also                 a portion of the Aleutian Islands Pacific
                                                such as Adak and Atka and determined                    Comment 1). Although Atka has not                     cod TAC that may be received or held
                                                that community protections were                         historically participated in the Aleutian             for exclusive use. Amendment 113 and
                                                necessary to provide for the sustained                  Islands Pacific cod fishery, the Aleutian             this final rule do not assign the Aleutian
                                                participation of these communities in                   Pribilof Islands Community                            Islands CV Harvest Set-Aside, in whole
                                                the Aleutian Islands Pacific cod fishery.               Development Association (APICDA) has                  or in part, to any one person, Aleutian
                                                The Council and NMFS determined that                    been working with investors to make                   Islands shoreplant, or community for
                                                Amendment 113 and this final rule are                   substantial infrastructure improvements               harvesting or delivery. All harvesters
                                                therefore consistent with National                      to their harbor to enhance the local                  have access to the Aleutian Islands CV
                                                Standard 8.                                             fishing fleet and to the shoreplant so it             Harvest Set-Aside if they are willing to
                                                   As discussed in the preamble to the                  may operate year-round. Comments                      deliver their catch to an Aleutian
                                                proposed rule and in the Analysis, this                 submitted by APICDA indicate that                     Islands shoreplant. Any Aleutian
                                                final rule does not allocate processing                 harvesting and processing Aleutian                    Islands shoreplant can accept deliveries
                                                privileges. This final rule allocates                   Islands Pacific cod are critical to the               from the Aleutian Islands CV Harvest
                                                fishing privileges for Aleutian Islands                 success of these developments in this                 Set-Aside. While the practical effect of
                                                Pacific cod through the establishment of                remote community. Additional                          Amendment 113 and this final rule may
                                                a set-aside for a portion of the Aleutian               information about Atka is provided in                 be that harvesters in the Aleutian
                                                Islands Pacific cod TAC available for                   Section 2.6.8 of the Analysis.                        Islands CV Harvest Set-Aside may have
                                                harvest by vessels directed fishing for                    The Aleutian Islands Pacific cod                   only one Aleutian Islands shoreplant to
                                                Aleutian Islands Pacific cod and that                   fishery is a pulse fishery that operates              deliver their catch (Adak), one or more
                                                deliver their catch to Aleutian Islands                 for several weeks in late February and                Aleutian Islands shoreplants could
                                                shoreplants for a portion of the year and               March. This pulse is the most profitable              become operational at any time and
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                                                only if specific notification and                       time of the season for Pacific cod in the             accept deliveries from harvesters in the
                                                performance requirements are met. This                  region. These few weeks of the Federal-               Aleutian Islands CV Harvest Set-Aside,
                                                final rule does not change any                          waters Pacific cod fishery are a critical             reducing the amount that Adak could
                                                percentage allocations of Pacific cod                   part of these remote operations.                      receive. Therefore, Adak is not provided
                                                established under Amendment 85 to the                      This action is consistent with the                 an exclusive processing privilege under
                                                FMP and existing regulations for the                    management objectives in the FMP and                  Amendment 113 or this final rule (see
                                                CDQ or non-CDQ fishery sectors as                       the Programmatic Supplemental                         also response to Comments 14 and 18).


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                                                             Federal Register / Vol. 81, No. 226 / Wednesday, November 23, 2016 / Rules and Regulations                                         84447

                                                Amendment 113 and this final rule set-                  they did so in part at the expense of                 and enforcing a single market for fish is
                                                aside a portion of the Aleutian Islands                 Aleutian Islands communities. The                     devastating for harvesters who are not
                                                DFA during the A-season for vessels                     Council and NMFS can, and must,                       protected by any sort of price arbitration
                                                that conduct directed fishing for                       implement conservation and                            structure. Having only a single plant
                                                Aleutian Islands Pacific cod and deliver                management measures that are                          limits competition for landings and the
                                                their catch to Aleutian Islands                         consistent with all of the National                   seller has limited negotiating leverage.
                                                shoreplants for processing. Because                     Standards.                                            This drives down the prices paid to
                                                Amendment 113 and this final rule do                       Section 2.6.2.2 of the Analysis                    fishermen. Additionally, having only a
                                                not establish a limited access privilege,               examines some of the potential gains                  single processor means that some CVs
                                                Amendment 113 and this final rule do                    and losses in efficiency that may result              could be excluded if the lone processor
                                                not create a limited access privilege                   from Amendment 113. The Analysis                      does not want to do business with them.
                                                program and the eligibility requirements                acknowledges that there may be some                      Response 21: As explained in the
                                                for limited access privilege programs in                losses to communities resulting from                  response to Comments 14, 18 and 19,
                                                the Magnuson-Stevens Act at section                     fewer port visits by CPs. On the other                Amendment 113 and this final rule do
                                                303A (16 U.S.C. 1853a) do not apply to                  hand, efficiencies may be gained by                   not create an exclusive processing
                                                Amendment 113 and this final rule.                      having a local fishing fleet that can fish            privilege for Aleutian Islands
                                                   Comment 20: National Standard 5                      closer to shore. Public comments                      shoreplants. As acknowledged in
                                                states that ‘‘Conservation and                          submitted in support for Amendment                    Section 2.7.2.3 of the Analysis, under
                                                management measures shall, where                        113 and this final rule suggest that the              Amendment 113, CVs may have less
                                                practicable, consider efficiency in the                 communities believe the benefits of this
                                                                                                                                                              ability to use processor competition for
                                                utilization of fishery resources; except                action to Aleutian Islands outweigh any
                                                                                                                                                              Aleutian Islands Pacific cod landings to
                                                that no such measure shall have                         potential losses (see Comment 7). While
                                                                                                                                                              leverage higher prices. However, the
                                                economic allocation as its sole                         the efficiency of utilizing shoreplant
                                                                                                                                                              Analysis also acknowledges several
                                                purpose.’’ This action is inconsistent                  processing in remote parts of the
                                                                                                                                                              ways that CVs may retain leverage in
                                                with National Standard 5 because it                     Aleutian Islands can be debated, the
                                                                                                                                                              negotiating fair prices from Aleutian
                                                fosters inefficiency and has no purpose                 social and economic benefits the
                                                                                                                                                              Islands shoreplants. To remain solvent,
                                                other than economic allocation. The                     shoreplants provide to the communities
                                                                                                                                                              Aleutian Islands shoreplants will need
                                                Draft Analysis acknowledged that the                    in which they are located are tangible.
                                                                                                           In this particular case, the Council               to offer harvesters competitive prices or
                                                set-aside ‘‘could potentially lead to a
                                                lower price for catch and reduce                        and NMFS have sought to balance the                   CVs could withhold delivery of catch to
                                                efficient utilization,’’ and it is uncertain            objectives of efficiency under National               that shoreplant. CVs could choose not to
                                                that this action would benefit Aleutian                 Standard 5 with the social and                        participate in the Aleutian Islands CV
                                                Islands communities. Adak serves as a                   economic considerations of Aleutian                   Harvest Set-Aside, wait until the set-
                                                port of embarkation and provides goods                  Island communities under National                     aside has ended, or shift fishing
                                                and services to the fleet. By reducing the              Standard 8. This type of balance is                   operations to the Bering Sea. If Aleutian
                                                number of port visits by CPs during a                   contemplated in the National Standard                 Islands shoreplants are not competitive,
                                                critical part of the year, this action may              5 guidelines which note, ‘‘Unless the                 they likely will not be able to operate,
                                                actually result in lost economic activity               use of inefficient techniques or the                  and NMFS would not expect to receive
                                                for Adak.                                               creation of redundant fishing capacity                notification from the City of Adak or the
                                                   Response 20: Amendment 113 and                       contributes to the attainment of other                City of Atka by the annual deadline. If
                                                this final rule set aside a portion of the              social or biological objectives, an FMP               less than 1,000 mt of Aleutians Island
                                                Aleutian Islands Pacific cod fishery for                may not contain management measures                   Pacific cod have been delivered to
                                                harvest by certain vessels. The primary                 that impede the use of cost-effective                 Aleutian Islands shoreplants on or
                                                objective of this action is to provide                  techniques of harvesting, processing, or              before February 28, the set-aside will be
                                                Aleutian Islands communities with                       marketing, and should avoid creating                  lifted and the fishery will be opened to
                                                access to and sustained participation in                strong incentives for excessive                       all eligible participants for delivery to
                                                the Aleutian Islands Pacific cod fishery,               investment in private sector fishing                  any eligible processor. This performance
                                                and to minimize the adverse impacts of                  capital and labor’’ (§ 600.330(b)(2)(ii)).            measure serves as an additional
                                                a range of management actions on those                  In this case, the Council and NMFS                    incentive for Aleutian Islands
                                                communities. This objective is                          considered a range of social factors in               shoreplants to offer competitive prices
                                                consistent with the goals of the FMP                    addition to efficiency, including                     to all interested harvesters so that
                                                and with National Standard 8 (see                       providing socially and economically                   harvesters do not wait until after
                                                response to Comment 18 for additional                   viable fisheries for the well-being of                February 28 for the opportunity to
                                                explanation of consistency with                         Aleutian Islands fishing communities.                 deliver to offshore processors. In
                                                National Standard 8).                                   Consistent with the National Standard 5               addition, this final rule does not provide
                                                   The Council and NMFS have                            guidelines, the Council and NMFS have                 for only one Aleutian Islands shoreplant
                                                determined that Amendment 113 and                       prepared an analysis and rulemaking                   or prevent multiple Aleutian Islands
                                                this final rule are also consistent with                that justify these measures ‘‘in light of             shoreplants from operating at the same
                                                National Standard 5. According to the                   the biological, ecological, and social                time. Even when the set-aside is in
                                                National Standard 5 guidelines, the term                objectives of the FMP, as well as the                 place, this final rule does not preclude
                                                ‘‘utilization’’ encompasses harvesting,                 economic objectives’’ (§ 600.330(e)).                 CPs or stationary floating processors
                                                processing, marketing, and non-                                                                               from receiving catch from CVs
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                                                consumptive uses of the resource, since                 Comments on Economic Effects                          harvesting from the Aleutian Islands
                                                management decisions affect all sectors                   Comment 21: Reduced competition                     Unrestricted Fishery in years when the
                                                of the industry (§ 600.330(b)(1)).                      means lower prices for harvesters. By                 Aleutian Islands TAC is large enough
                                                National Standard 5 does not refer                      creating an exclusive processing                      for the Unrestricted Fishery to occur, or
                                                exclusively to harvesting. While                        privilege for Aleutian Islands                        from operating after March 15. CPs and
                                                rationalization programs increased                      shoreplants, this action has the potential            stationary floating processors present in
                                                efficiency of harvesting the resource,                  to cause uncompetitive acts. Creating                 the Aleutian Islands for the Unrestricted


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                                                84448        Federal Register / Vol. 81, No. 226 / Wednesday, November 23, 2016 / Rules and Regulations

                                                Fishery could be ready to accept                        a result of Amendment 113, but                           Response 24: If both of the existing
                                                deliveries of Pacific cod if the set-aside              determined that CPs are better able to                Aleutian Islands shoreplants are
                                                were lifted early.                                      adapt to changing conditions in the                   operational, they may have the
                                                   Comment 22: The Analysis does not                    Aleutian Islands Pacific cod fishery                  combined capacity to process 500 mt to
                                                consider the effects of the BSAI TAC                    given their ability to move to different              600 mt per day. However, if the Pacific
                                                split, and assumes the loss of Aleutian                 locations to fish and process their catch,            cod have not yet arrived and aggregated
                                                Islands Pacific cod can be made up in                   than Aleutian Islands shoreplants and                 on the fishing grounds, there would be
                                                the Bering Sea, despite the fact that                   the vessels that deliver to them, which               no deliveries for them to process. To be
                                                Bering Sea and Aleutian Islands cod are                 have less flexibility and adaptability.               effective, the Aleutian Islands CV
                                                different fisheries with unique products.                  The Council and NMFS recognized                    Harvest Set-Aside and Bering Sea Trawl
                                                   Response 22: Sections 2.2 and 2.6 of                 that CP sectors will not be able to                   CV A-Season Sector Limitation need to
                                                the Analysis describe some of the effects               participate in the Aleutian Islands                   be in place long enough for the Pacific
                                                the BSAI TAC split has had on the                       Pacific cod fishery unless the set-aside              cod to aggregate on the fishing grounds,
                                                amount of Pacific cod available for                     is not in effect for that year, some of the           and for the fish to be harvested and
                                                harvest in the Aleutian Islands.                        set-aside remains available for harvest               delivered to Aleutian Islands
                                                Likewise, the ‘‘Need for This Proposed                  after the set-aside ends, or there is                 shoreplants for processing. An earlier
                                                Rule’’ section of the proposed rule                     sufficient Aleutian Islands DFA for an                end date might mean that the peak
                                                identifies the BSAI TAC split and                       Unrestricted Fishery during the set-                  fishery occurs after the Aleutian Islands
                                                resulting relatively low TAC in the                     aside period. The Council determined                  CV Harvest Set-Aside and Bering Sea
                                                Aleutian Islands as just one of several                 that in years of low TAC, when an                     Trawl CV A-Season Sector Limitation
                                                factors prompting the need for the                      Unrestricted Fishery will not occur, it               have been lifted. Conversely, if the
                                                community protections in this rule.                     was important to protect Aleutian                     Aleutian Islands CV Harvest Set-Aside
                                                NMFS acknowledges that this action                      Islands fishing communities that cannot               and Bering Sea Trawl CV A-Season
                                                may result in losses to some participants               easily participate in other fisheries or              Sector Limitation did not go into place
                                                in the Aleutian Islands Pacific cod                     other areas to make up for lost revenue.              until later during the A-season, the
                                                fishery. Section 2.7.2 of the Analysis                                                                        entire trawl CV allocation could be
                                                                                                           The Council and NMFS recognized
                                                and the response to Comment 23                                                                                taken in the Bering Sea before the
                                                                                                        the participation of hook-and-line CPs
                                                discuss ways that shifting effort to the                                                                      fishery begins in the Aleutian Islands.
                                                Bering Sea may mitigate the effects of                  in the Aleutians Islands Pacific cod
                                                                                                                                                                 As discussed in the preamble of the
                                                Amendment 113 on participants.                          fishery by capping the amount of
                                                                                                                                                              proposed rule, the Council determined
                                                   Comment 23: The Analysis supposes                    Aleutian Islands Pacific cod that goes to
                                                                                                                                                              and NMFS agrees that March 15 is the
                                                that the loss of Pacific cod harvest by                 the Aleutian Islands CV Harvest Set-
                                                                                                                                                              preferred date for lifting the Aleutian
                                                the hook-and-line CP sector in the                      Aside and by providing mechanisms to
                                                                                                                                                              Islands CV Harvest Set-Aside for several
                                                Aleutian Islands can be offset by                       lift the set-aside if no Aleutian Islands
                                                                                                                                                              reasons. March 15 represents the
                                                shifting effort to the eastern Bering Sea;              city will be processing in the upcoming               average date of the peak of the Aleutian
                                                however, Aleutian Islands Pacific cod                   year or if deliveries do not meet                     Islands Pacific cod fishery for CVs.
                                                are typically larger and fetch a higher                 established thresholds by certain dates.              During the period analyzed (2003
                                                price in international markets than                     This final rule limits the amount of the              through 2015), a significant portion of
                                                Bering Sea Pacific cod. Bering Sea                      Aleutian Islands CV Harvest Set-Aside                 Aleutian Islands Pacific cod was not
                                                Pacific cod cannot be substituted for                   to 5,000 mt, which will allow the                     delivered shoreside until mid-March
                                                Aleutian Islands Pacific cod.                           participation of all sectors in the                   (see Table 2–37 of the Analysis).
                                                   Response 23: The Council and NMFS                    Unrestricted Fishery except during                    Establishing a date much earlier than
                                                recognize that Pacific cod fisheries and                years when the Aleutian Islands Pacific               March 15 to relieve the set-aside would
                                                products differ between the Bering Sea                  cod TAC is extremely low. The Council                 not meet the Council’s goals to provide
                                                and the Aleutian Islands. The Analysis                  wanted to provide the Unrestricted                    access to and to sustain participation in
                                                does not suggest that the same product                  Fishery so that vessels not participating             the Aleutian Islands Pacific cod fishery
                                                harvested and processed in the Aleutian                 in the Aleutian Islands CV Harvest Set-               by Aleutian Islands communities
                                                Islands can be substituted by one                       Aside can participate to some extent in               because the protections afforded by the
                                                harvested and processed in the Bering                   the Aleutian Islands Pacific cod fishery              set-aside would be lifted before the
                                                Sea and notes that harvesters generally                 and get some of the benefits from it.                 Pacific cod aggregated on the fishing
                                                fetch higher prices for Aleutian Islands                Additionally, because the Aleutian                    grounds.
                                                Pacific cod because of their typically                  Islands CV Harvest Set-Aside is for a                    The Council and NMFS considered
                                                larger size (Section 2.7.2.2 of the                     specific amount, rather than a                        earlier dates by which to lift these
                                                Analysis). The Analysis further notes                   percentage of TAC, the set-aside will not             restrictions, but given historical
                                                that moving to the Bering Sea to fish for               increase even if Aleutian Islands TAC                 harvesting and delivery patterns for
                                                Pacific cod may not be viable for all                   increases, which will provide for an                  Aleutian Islands Pacific cod, the longer
                                                vessels because they may participate in                 even greater amount in the Unrestricted               the Aleutian Islands CV Harvest Set-
                                                other Aleutian Islands fisheries, or are                Fishery.                                              Aside remains in effect during the A-
                                                subject to harvest sideboards in other                     Comment 24: The proposed Aleutian                  season each year, the greater the
                                                fisheries as a result of their eligibility in           Islands CV Harvest Set-Aside period is                opportunity for complete harvest and
                                                rationalization programs. Additionally,                 too long and would prevent others from                delivery of the Aleutian Islands CV
                                                vessels that formerly fished for Aleutian               accessing the fishery altogether. If the              Harvest Set-Aside. The March 15 date
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                                                Islands Pacific cod that move to the                    Adak plant is expected to be capable of               provides greater social and economic
                                                Bering Sea to fish for Pacific cod will                 processing more than 400 mt of Pacific                stability for Aleutian Islands fishing
                                                compete with vessels that have                          cod per day, and the proposed Atka                    communities than earlier dates.
                                                historically fished in the Bering Sea.                  plant has a planned capacity of 180 mt                Limiting the duration of the Aleutian
                                                The Council recognized these                            per day, Aleutian Islands shoreplants                 Islands CV Harvest Set-Aside to March
                                                limitations on recuperating losses that                 could process the entire proposed set-                15 also would provide an opportunity
                                                may be incurred by some participants as                 aside in just 8 to 11 days.                           for CPs to harvest Pacific cod, and for


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                                                             Federal Register / Vol. 81, No. 226 / Wednesday, November 23, 2016 / Rules and Regulations                                         84449

                                                CVs to harvest and deliver Pacific cod                  so that more of the DFA would be                      other offshore sectors, the hook-and-line
                                                to CPs or stationary floating processors,               available to Aleutian Islands fishing                 CP sector has the ability to react to
                                                before the end of the A-season. The                     communities in years of low TAC, and                  changes in the fishery. The hook-and-
                                                proposed March 15 date balances the                     so that more of the DFA would be                      line CP sector has formed a voluntary
                                                opportunities for all participants.                     available to all participants in the                  cooperative, which provides many of
                                                Additional information is provided in                   Unrestricted Fishery in years when the                the benefits and flexibility of a
                                                Section 2.7.2.4 of the Analysis.                        Aleutian Islands TAC is high, providing               rationalized fishery. In contrast,
                                                   Comment 25: The proposed threshold                   more opportunities for other                          shoreside processors cannot move their
                                                of 5,000 mt for the Aleutian Islands CV                 participants. Further explanation for the             operations in response to changing
                                                Harvest Set-Aside exceeds the recent                    Council’s choice of years to examine in               conditions or a low Aleutian Islands
                                                historical average of deliveries made to                the Analysis is given in the response to              Pacific cod TAC. As discussed in the
                                                Aleutian Islands shoreplants. Excluding                 Comment 27.                                           response to Comment 14, each sector
                                                the years of no processing by Aleutian                     Comment 26: The Aleutian Islands                   continues to receive a percentage of the
                                                Islands shoreplants (2010, 2011, and                    Pacific cod fishery is important for all              combined BSAI Pacific cod allocation as
                                                2015), the 2010 through 2015 average is                 hook-and-line CPs. While Amendment                    established in 2008 under Amendment
                                                3,073 mt and the average proportion of                  113 will have negative impacts on all                 85, and can fish their allocations in
                                                the Federal Aleutian Islands Pacific cod                CPs with historical participation in the              either the Bering Sea or Aleutian Islands
                                                fishery processed at the Adak and Atka                  Aleutian Islands Pacific cod fishery, the             (and under this action shift effort to the
                                                shoreplants from 2003 through 2015 is                   negative effects are more profound on                 Bering Sea or access the Aleutian
                                                32 percent. Applying the historic                       specific hook-and-line CP companies                   Islands after a specified date). This
                                                average to the projected 2017 DFA of                    with a higher dependence on the                       action does not change the allocation to
                                                8,965 mt would result in a 2017 set-                    Aleutian Islands Pacific cod fishery.                 the hook-and-line CP sector.
                                                aside of 2,869 mt. Therefore, a threshold                  Response 26: The Council and NMFS                     This final rule may provide a benefit
                                                of 3,000 mt would more accurately                       examined participation in the Aleutian                to the hook-and-line CP sector in years
                                                reflect the ‘‘historical place’’ of Aleutian            Islands Pacific cod fishery by all sectors            when the Aleutian Islands DFA is large
                                                Islands shoreplants in the federal                      over a range of years that included years             enough for the Aleutian Islands
                                                Aleutian Islands Pacific cod fishery.                   before major changes in the fishery                   Unrestricted Fishery to occur. The A-
                                                   Response 25: As discussed in the                     occurred and years since those changes                season for hook-and-line CPs and CVs
                                                preamble to the proposed rule and in                    occurred. The Council recognized that                 opens on January 1, whereas the A-
                                                Section 2.7.1.2 of the Analysis, the                    to offer protections to Aleutian Islands              season for trawl CPs and CVs does not
                                                Council examined harvest and landings                   communities, there could be some                      open until January 20. The hook-and-
                                                data from 2003 through July 2015 and                    negative effects on other participants in             line CPs and CVs will have earlier
                                                considered a range of options for the                   the Aleutian Islands Pacific cod fishery,             access to the Aleutian Islands
                                                amount of the Aleutian Islands CV                       including the hook-and-line CP sector.                Unrestricted Fishery between January 1
                                                Harvest Set-Aside (and equivalent                       In years when the TAC is low and the                  and January 20.
                                                Bering Sea Trawl CV A-Season Sector                     set-aside is in effect, it is likely that CPs            Comment 27: The historical
                                                Limitation). The average amount of non-                 will not have access to the Aleutian                  participation of the hook-and-line CP
                                                CDQ Aleutian Islands Pacific cod                        Islands Pacific cod fishery at all or at              sector in the Aleutian Islands Pacific
                                                processed by Aleutian Islands                           levels to which they are accustomed. To               cod fishery is significantly larger and
                                                shoreplants during this period was                      minimize those negative effects, the                  longer than as stated in the proposed
                                                4,732 mt. The Council considered                        Council included several provisions that              rule. The hook-and-line CP sector has
                                                amounts for the Aleutian Islands CV                     lift the restrictions if minimum                      historically harvested more than 95
                                                Harvest Set-Aside ranging from 3,000 to                 performance measures are not met and                  percent of the non-trawl harvest of
                                                7,000 mt. The Council determined and                    prevent the stranding of Aleutian                     Pacific cod in the Aleutian Islands. The
                                                NMFS agrees that a maximum of 5,000                     Islands Pacific cod. For 2017, the hook-              hook-and-line CP sector’s proportion of
                                                mt is the appropriate amount because it                 and-line CP sector will have access to                the Aleutian Islands Pacific cod harvest
                                                represents a large percentage of the total              3,965 mt through the Aleutian Islands                 was much higher before 2002, when
                                                amount of Aleutian Islands Pacific cod                  Unrestricted Fishery. The annual                      Steller sea lion protection measures
                                                available to the non-CDQ fishery sectors                average targeted Aleutian Islands Pacific             were first implemented.
                                                in recent years, and is in the range                    cod catch by the hook-and-line CP                        Response 27: NMFS acknowledges
                                                necessary to provide benefits to                        sector between 2003 and 2015 was 2,399                that the hook-and-line CP sector has
                                                Aleutian Islands fishing communities,                   mt (Table 2–34 of the Analysis).                      consistently participated in the Aleutian
                                                including shoreplant operations, when                   Excluding years that Aleutian Islands                 Islands Pacific cod fishery annually,
                                                considered in combination with the                      shoreplants did not operate, the annual               harvesting 14% of the Aleutian Islands
                                                State guideline harvest level (State GHL)               average targeted Pacific cod catch by the             Pacific cod on an average annual basis
                                                A-season harvest. Additionally, the                     hook-and-line CP sector was 2,311 mt                  during 2003 through 2015 (Table 2–13
                                                Analysis shows that 5,000 mt is the                     (Table 2–34 of the Analysis). Even                    of the Analysis), and that the hook-and-
                                                approximate long-term average of the                    under current management, there is no                 line CP sector participated in the fishery
                                                annual amount of Pacific cod processed                  guarantee that any sector will have                   prior to 2003. NMFS also acknowledges
                                                at Aleutian Islands shoreplants between                 access to the Aleutian Islands Pacific                that the hook-and-line CP sector
                                                2003 and 2015, when Aleutian Islands                    cod fishery because of the ability of one             harvests a large percentage of the non-
                                                shoreplants were operational.                           sector to harvest Pacific cod up to the               trawl harvest of Aleutian Islands Pacific
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                                                   The Council considered an option                     Aleutian Islands TAC before other                     cod, but also notes that the overall non-
                                                that would have reserved a percentage,                  sectors arrive.                                       trawl harvest is a small proportion of
                                                rather than a fixed amount, of the                         NMFS and the Council acknowledge                   the Aleutian Islands TAC. The Council
                                                Aleutian Islands TAC for the Aleutian                   that the hook-and-line CP sector may                  chose to use 2003 as a starting point for
                                                Islands CV Harvest Set-Aside (see                       have a higher dependence on the                       the Analysis for this action for several
                                                Section 2.7.2.5 of the Analysis). The                   Aleutian Islands Pacific cod fishery than             reasons. First, data from years prior to
                                                Council chose a fixed amount (5,000 mt)                 some other CP sectors; however, like                  2003 is not compatible with data from


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                                                84450        Federal Register / Vol. 81, No. 226 / Wednesday, November 23, 2016 / Rules and Regulations

                                                2003 to the present. NMFS implemented                   concentration (see Section 3.4 of the                 with all Steller sea lion protection
                                                its Catch Accounting System in 2003,                    Analysis). Fishing closer to shore may                measures including no-transit areas,
                                                which significantly changed the                         increase efficiency in the fishery                    closed areas, and the requirement to
                                                methodologies used to determine catch                   (Section 2.7.2.2 of the Analysis) by                  carry vessel monitoring systems (50 CFR
                                                estimates (Section 2.5 of the Analysis).                reducing transit times, allowing vessels              part 679). Therefore, Amendment 113
                                                Second, data before 2003 represent                      to make more frequent offloads, and not               and this rule will result in no
                                                harvests made prior to the                              having to coordinate fishing operations               substantial change to the actions
                                                implementation of Steller sea lion                      with an offshore processor (Section                   analyzed in the biological opinion dated
                                                protection measures, which                              2.7.2.2 of the Analysis). Allowing other              April 2, 2014, in which NMFS found
                                                substantively changed the management                    participants to target the Aleutian                   that the groundfish fisheries in the BSAI
                                                of, and the participation patterns in, the              Islands Unrestricted Fishery when the                 are not likely to jeopardize the
                                                Aleutian Islands Pacific cod fishery. The               DFA is greater than 5,000 mt, and the                 continued existence of the western
                                                Council determined and NMFS agrees                      performance measures that remove the                  distinct population segment of Steller
                                                that catch data prior to 2003 does not                  set-aside if there is insufficient                    sea lions or destroy or adversely modify
                                                reflect how the fishery has been                        shoreplant processing will also limit                 its designated critical habitat (Section
                                                managed and prosecuted during the last                  spatial concentration. Finally, the                   3.4 of the Analysis).
                                                13 years (2003 through 2015) considered                 Council and NMFS will continue to use                    Comment 29: The hook-and-line CP
                                                by NMFS and Council in developing                       the current harvest specifications                    sector’s proportion of the Aleutian
                                                Amendment 113 and this final rule.                      process for setting the Aleutian Islands              Islands Pacific cod harvest has been
                                                Third, the Council determined and                       Pacific cod TAC and manage harvest                    reduced since the establishment of the
                                                NMFS agrees that it was important to                    within these limits. Any potential                    State Pacific cod GHL fishery, which is
                                                consider data from the largest set of                   changes in harvest location as a result               designed for harvest by CVs that deliver
                                                years both before and after the                         of the set-aside are not expected to                  to Aleutian Islands communities. The
                                                implementation of Steller Sea Lion                      impact Aleutian Islands Pacific cod                   State GHL fishery sets aside 28 percent
                                                measures, rationalization programs, and                 stock status (see Section 3.3.1 of the                of the Aleutian Islands Pacific cod TAC
                                                the BSAI TAC split to understand the                    Analysis), or have an impact on Steller               for fishing in State waters, which is
                                                effects of those actions on the Aleutian                sea lions in a manner not previously                  essentially an allocation to shore-based
                                                Islands Pacific cod fishery.                            considered in previous consultations                  processors. The State GHL fishery
                                                   Comment 28: The proposed action                      (see Section 3.4 of the Analysis).                    cannot be harvested by CPs and is not
                                                will further concentrate the Aleutian                      NMFS disagrees that Amendment 113                  prosecutable by the Federal offshore
                                                Islands Pacific cod harvest spatially and               and this final rule will cause additional             sector. The State GHL fishery has
                                                temporally in the Aleutian Islands with                 temporal concentration of the fishery. In             resulted in considerable stranded
                                                more harvest by the trawl sector. In the                the years since the BSAI TAC split, the               Pacific cod. A large proportion of the
                                                proposed rule for the 2014 Steller sea                  Aleutian Islands Pacific cod fishery has              State GHL fishery has remained
                                                lion protection measures (available at                  closed on March 16, 2014, February 27,                unharvested and unavailable to the
                                                https://alaskafisheries.noaa.gov/sites/                 2015, and June 8, 2016, so as not to                  Federal fisheries because there is no
                                                default/files/79fr37486.pdf), NMFS                      exceed the Aleutian Islands Pacific cod               rollover provision. Adak and Atka have
                                                stated that, ‘‘Pacific cod hook-and-line                TAC. Setting aside a maximum of 5,000                 unique access to processing the State
                                                and pot gear harvests occur in much                     mt of Aleutian Islands Pacific cod until              GHL fishery, but have chosen not to
                                                smaller quantities and at slower rates for              March 21 may actually prolong the                     participate in this fishery in recent
                                                these gears than trawl gear. This makes                 season for Aleutian Islands Pacific cod               years.
                                                it less likely that hook-and-line and pot               because CPs will not be able to harvest                  Response 29: The State GHL fishery
                                                gear harvests would result in localized                 Pacific cod from the set-aside (unless                for Aleutian Islands Pacific cod is
                                                depletion of Steller sea lion prey                      they are delivering their catch to                    managed exclusively by the State within
                                                resources.’’ The proposed action,                       Aleutian Islands shoreplants for                      State waters. This final rule does not
                                                combined with the BSAI TAC split,                       processing) or process any Aleutian                   modify the State GHL fishery.
                                                GHL fishery, and consequences of the                    Islands Pacific cod remaining from the                Management of the State GHL fishery is
                                                Steller sea lion protection measures will               set-aside until after the conclusion of               outside of the scope of this final rule.
                                                further limit the hook-and-line CP                      the Aleutian Islands CV Harvest Set-                  Absent preemption under section 306(b)
                                                sector’s participation and increase trawl               Aside on March 15.                                    of the Magnuson-Stevens Act, NMFS
                                                harvests of Aleutian Islands Pacific cod.                  As examined in the FONSI (Section                  does not have authority to determine
                                                   Response 28: NMFS acknowledges                       3.6 of the Analysis), Amendment 113                   catch amounts or the types of gear or
                                                that the Analysis predicts some spatial                 and this final rule will not adversely                vessels used in the Aleutian Islands
                                                concentration of harvest because vessels                affect endangered or threatened species,              Pacific cod State GHL fishery.
                                                participating in the set-aside are                      marine mammals, or critical habitat of                   The State established two GHL
                                                expected to be trawl CVs that will likely               these species in any manner not                       fisheries for Pacific cod in 2006; one in
                                                fish closer to shore and nearer to Adak                 considered in prior consultations on the              the Bering Sea and one in the Aleutian
                                                and Atka, the Aleutian Islands                          BSAI groundfish fisheries. While this                 Islands. The Aleutian Islands State GHL
                                                communities that are most likely to                     action may increase the harvest of                    fishery is currently set at a harvest limit
                                                receive Pacific cod deliveries under the                Pacific cod nearshore in the Aleutian                 equivalent to 27 percent of the Aleutian
                                                set-aside. The amount of Aleutian                       Islands subarea, the harvest of Pacific               Islands Pacific cod ABC, not 28 percent
                                                Islands Pacific cod harvest that might be               cod will continue to occur within the                 of the Aleutian Islands Pacific cod TAC
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                                                caught closer to shore under a                          limits established in the annual                      as stated by the commenter. The harvest
                                                maximum set-aside amount of 5,000 mt                    groundfish harvest specifications by                  limit may be increased (or decreased) in
                                                that is roughly equivalent to the average               vessels the same as or similar to those               the following fishing year depending on
                                                annual amount of Pacific cod caught by                  currently fishing for Pacific cod in the              how much of the State GHL fishery is
                                                CVs and delivered to Aleutian Islands                   BSAI.                                                 harvested, and the harvest limit can
                                                shoreplants between 2003 and 2015,                         The vessels affected by this action                increase to a maximum of 39 percent of
                                                which reduces the potential for spatial                 will continue to be required to comply                the Aleutian Islands Pacific cod ABC if


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                                                             Federal Register / Vol. 81, No. 226 / Wednesday, November 23, 2016 / Rules and Regulations                                        84451

                                                the harvest limit continues to be fully                 Aleutian Islands Pacific cod fishery.                 fishery during the set-aside: they may
                                                harvested each year. In addition, the                   Processing by the offshore sector has                 fish in the Bering Sea, fish the Aleutian
                                                Aleutian Islands State GHL fishery is                   also declined since rationalization                   Islands Unrestricted Fishery, or wait for
                                                capped at a maximum of 15 million                       programs were implemented. This rule                  the set-aside to be lifted.
                                                pounds (6,804 mt). Therefore, if 27                     will cause economic harm to CPs that                     Comment 31: The F/V Katie Ann, a
                                                percent of the Aleutian Islands Pacific                 are invested and have historically                    trawl CP, is one of the earliest and most
                                                cod ABC represents an amount that is                    participated in the Aleutian Islands                  consistent participants in the Aleutian
                                                greater than 15 million pounds in some                  Pacific cod fishery. This rule also harms             Islands Pacific cod fishery. The F/V
                                                future year, the State GHL fishery for                  CVs that cannot make onshore landings                 Katie Ann is more dependent on the
                                                that year would be 15 million pounds.                   and must deliver to CPs.                              Aleutian Islands Pacific cod fishery than
                                                The Aleutian Islands State GHL for 2016                    Response 30: NMFS and the Council                  any other CP. Participation by the F/V
                                                is 4,752 mt.                                            recognize, and the Analysis shows, that               Katie Ann predates the American
                                                   The amount of the Aleutian Islands                   CPs have a history of participation in                Fisheries Act and the first entry of any
                                                State GHL fishery is deducted from the                  the Aleutian Islands Pacific cod fishery              shorebased processor in the Aleutian
                                                Aleutian Islands Pacific cod ABC to                     (Sections 2.6.6.1 through 2.6.6.3 of the              Islands. The intermittent entry into the
                                                calculate the Aleutian Islands Pacific                  Analysis), that the average annual                    fishery by the Adak shoreplant has
                                                cod TAC. While the establishment of the                 amount of Aleutian Islands Pacific cod                harmed the ability of the F/V Katie Ann
                                                State GHL fishery in 2006 reduced the                   processed by the offshore sector has                  to harvest and process its long-term
                                                Aleutian Islands TAC, it did not change                 declined since 2011 (coinciding with                  historical share of the Aleutian Islands
                                                the hook-and-line CP sector’s allocation                the BSAI TAC split, Table 2–31 of the                 Pacific cod fishery. Amendment 113, if
                                                of 48.7 percent of the combined BSAI                    Analysis), and that this rule may cause               implemented, threatens to destroy one
                                                Pacific cod TAC. The reduction in the                   some economic losses to CPs. The                      of the only remaining viable fishing
                                                Aleutian Islands TAC resulting from the                 Council also recognized that the amount               operations for the F/V Katie Ann.
                                                State GHL fishery is distributed                        of Pacific cod harvested by trawl CPs,                   Response 31: The Council and NMFS
                                                proportionately across all sectors, and is              and the number of participating trawl                 recognized the long history of
                                                not borne by the hook-and-line CP                       CPs, have declined since 2003 (Table 2–               participation in the Aleutian Islands
                                                sector alone.                                           10 in the Analysis). However, Aleutian                Pacific cod fishery by the F/V Katie Ann
                                                   NMFS assumes that the commenter is                   Islands Pacific cod represents only a                 as Amendment 113 was being
                                                concluding that setting aside an                        small portion of the total landings and               developed and considered. The Council
                                                additional amount of Aleutian Islands                   revenue by the trawl CP fleet (Table 2–               considered an option that would have
                                                Pacific cod for Aleutian Islands                        11 in the Analysis). The declining                    allowed CPs that had processed Pacific
                                                communities is not warranted because                    biomass and BSAI TAC split have                       cod in the Aleutian Islands management
                                                these communities are not processing                    resulted in reduced Pacific cod catches               area in at least 12 years between 2000
                                                the full amount of what has already                     in the Aleutian Islands for all                       and 2014, such as the F/V Katie Ann, to
                                                been allocated to them through the State                participants in both the onshore and                  be exempt from restrictions on
                                                GHL fishery. The commenter is correct                   offshore sectors. The Council and NMFS                processing for up to 2,000 mt of Pacific
                                                that the full amount of the Aleutian                    have chosen to set aside a portion of the             cod. Ten CPs that harvested and
                                                Islands State GHL fishery has not been                  harvest for vessels delivering their catch            processed both targeted and incidental
                                                harvested every year; however, it is                    to Aleutian Islands shoreplants because               catch of Pacific cod during that period
                                                incorrect to state that Adak has chosen                 these Aleutian Islands fishing                        would have qualified for this
                                                not to participate in the fishery in recent             communities do not have the flexibility               exemption. The F/V Katie Ann is the
                                                years. As noted in Table 2–31 in the                    available to offshore sector participants             only vessel that operated as a
                                                Analysis, Aleutian Islands shoreplants                  to redeploy into other BSAI or GOA                    mothership processing targeted Pacific
                                                have processed over 4,000 mt of Pacific                 groundfish fisheries, move their                      cod during this period.
                                                cod from Federal and State GHL                          operations to the Bering Sea, or                         The Council did not select this option
                                                fisheries each year from 2012 through                   participate in rationalization programs               for an exemption for the F/V Katie Ann
                                                2014. On average, Aleutian Islands                      that grant greater flexibility (Section               or other qualified CPs. The 2,000-mt
                                                shoreplants processed 2,046 mt of                       2.7.2.2 of the Analysis). The Council                 exemption would have represented 40
                                                Pacific cod from the State GHL fishery                  and NMFS have determined that the                     percent of the 5,000-mt set-aside. The
                                                annually since the inception of the                     onshore sector had a greater dependence               Council determined, and NMFS agrees,
                                                Aleutian Islands Pacific cod State GHL                  on the Aleutian Islands Pacific cod                   that this amount would have
                                                fishery in 2006. The Council determined                 fishery than the offshore sector. Section             substantially reduced the amount
                                                that the State GHL fishery alone was                    2.7.2.2 of the Analysis discusses some of             available to vessels delivering to
                                                inadequate to sustain Aleutian Islands                  the ways trawl CPs, trawl CVs, and                    Aleutian Islands shoreplants and could
                                                communities and shoreplants. Based on                   hook-and-line CPs may respond to the                  have undermined the efficacy of
                                                information received in public                          restrictions imposed by this rule.                    Amendment 113. The primary objective
                                                testimony, the Council determined that                     The Council and NMFS recognize that                of Amendment 113 and this final rule is
                                                Aleutian Islands communities need                       some trawl CVs that have historically                 to provide access to and promote
                                                about 9,000 mt of Pacific cod annually                  participated in the Aleutian Islands                  sustained participation in the Aleutian
                                                to support shoreplant operations. The                   Pacific cod fishery lack the ability to               Islands Pacific cod fishery by Aleutian
                                                Council selected a set-aside amount that                make onshore deliveries. These vessels                Islands fishing communities in this
                                                in combination with the State GHL                       will likely experience a loss of                      remote area, especially at very low TAC
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                                                fishery would give Aleutian Islands                     economic activity from this action                    levels. At TACs larger than 5,000 mt,
                                                communities access to at least 9,000 mt                 (Section 2.7.2.3 of the Analysis),                    CPs and motherships may participate in
                                                of Pacific cod annually. See also the                   particularly in years of low Aleutian                 the Aleutian Islands Unrestricted
                                                response to Comment 25.                                 Islands Pacific cod TAC. The options for              Fishery. The Council considered
                                                   Comment 30: The data presented in                    mitigating losses incurred by this action             historical participation of the offshore
                                                the Analysis do not reflect CP                          on trawl CVs are the same as for other                sector, including the F/V Katie Ann, but
                                                participation and dependence in the                     sectors that may be excluded from the                 determined that the fishery cannot


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                                                84452        Federal Register / Vol. 81, No. 226 / Wednesday, November 23, 2016 / Rules and Regulations

                                                support historical levels of effort by all              that offset the expected costs to other               whichever comes first. Additionally, if
                                                sectors (Section 2.7.2.5 of the Analysis).              participants.                                         Aleutian Islands shoreplants do not
                                                The Council selected a maximum level                       The Council included provisions to                 meet certain performance requirements,
                                                of 5,000 mt for the set-aside to provide                mitigate the costs of the set-aside on                the harvest and delivery restrictions will
                                                continued access to the Aleutian Islands                other participants by providing access to             be lifted and the Aleutian Islands
                                                Pacific cod fishery by the offshore sector              the fishery by other participants if the              Pacific cod DFA can be harvested by
                                                when the Aleutian Islands TAC is at a                   Aleutian Islands shoreplants do not                   any eligible vessel for delivery to any
                                                level that can accommodate both the                     submit a notification of their intent to              eligible processor. For example, if
                                                needs of the inshore fishery and                        process Pacific cod in the upcoming                   Aleutian Islands shoreplants have not
                                                Aleutian Islands fishing communities,                   year or if those shoreplants do not meet              processed at least 1,000 mt of Pacific
                                                as well as offshore fishery participants.               the minimum processing requirement of                 cod by February 28, the set-aside will be
                                                See also the response to Comment 33.                    1,000 mt on or before February 28.                    lifted. Any amount of the set-aside
                                                   Comment 32: In any fishery                           Additionally, historical participants                 remaining after that date, plus the
                                                management plan that awards fishing                     who cannot participate in the set-aside               remainder of the Aleutian Islands DFA,
                                                privileges to one group and takes them                  may participate in the Aleutian Islands               will be available for harvest by any
                                                away from another, there are certain to                 Unrestricted Fishery, when available, or              eligible vessel for delivery to any
                                                be winners and losers; however, the                     fish in the Aleutian Islands for Pacific              eligible processor. Likewise, if the entire
                                                benefits to the winners must be                         cod when the set-aside is lifted (see also            set-aside is harvested prior to March 15,
                                                balanced against the harm to the losers.                the response to Comment 16).                          the harvest and delivery restrictions will
                                                Amendment 113 fails to achieve the                         Comment 33: This action would                      be lifted immediately. At the latest, the
                                                required balance. There is little to no                 significantly impact the revenue and                  harvest set-aside will be lifted on March
                                                evidence that the harm that will be                     operations of Amendment 80 CPs that                   15, and any amount of the set-aside
                                                suffered by historical participants will                also have a history of dependence on                  remaining will be added to the
                                                be offset by any net benefits to either                 the Aleutian Islands Pacific cod fishery.             remaining Aleutian Islands DFA for
                                                Adak or Atka. History has shown that it                 These CPs take deliveries from CVs that               harvest by any eligible vessel for
                                                may be impossible to operate a viable                   are unable to deliver to shore.                       delivery to any eligible processor.
                                                shoreplant in Adak, and there is                           Response 33: Amendment 113 and                        Comment 34: Section 2.7.2 of the
                                                currently no one committed to future                    this rule do not prohibit Amendment 80                Analysis states that the set-aside ‘‘would
                                                operations of the existing plant in Adak.               CPs and CVs delivering to Amendment                   preclude the future participation of
                                                   Response 32: Amendment 113 and                       80 CPs from participating in the A-                   other participants that may benefit or
                                                this final rule provide access to and                   season Pacific cod fishery in the                     have historically benefitted from the
                                                sustained participation in the Aleutian                 Aleutian Islands; those vessels may                   harvesting and processing of Aleutian
                                                Islands Pacific cod fishery by Aleutian                 participate in the Aleutian Islands                   Islands Pacific cod unless Aleutian
                                                Islands fishing communities, especially                 Unrestricted Fishery, when available,                 Islands shoreplants are unable to
                                                during periods when the Pacific cod                     and may harvest any remaining BSAI                    process the Aleutian Islands Pacific cod
                                                TAC in the Aleutian Islands is relatively               non-CDQ Pacific cod up to the Aleutian                received from catcher vessels.’’ The
                                                low. This is an appropriate action for                  Islands DFA after the set-aside is lifted.            justification for this is presented as the
                                                the Council and NMFS to take, in                        In addition, if NMFS does not receive                 Council having made inshore-offshore
                                                recognition of the dependence on the                    timely notification from the City of                  allocations previously. This, however, is
                                                Pacific cod fishery by Aleutian Islands                 Adak or the City of Atka, there will be               not an inshore-offshore allocation; this
                                                fishing communities, the lack of                        no Aleutian Islands CV Harvest Set-                   is pre-emption of the offshore sector to
                                                protections for Aleutian Island                         Aside, and no additional regulatory                   the benefit of the onshore sector.
                                                harvesters and communities seeking to                   harvesting or delivery limitations                       Response 34: The sentence that
                                                establish viable community-based                        imposed on these vessels.                             follows the material quoted by the
                                                fishing operations under the status quo,                   When the Aleutian Islands DFA is                   commenter states, ‘‘The Council and
                                                and the lack of opportunity for Aleutian                greater than 5,000 mt, the difference                 NMFS have allocated fishery resources
                                                Islands shoreplants and CVs to expand                   between the DFA and the Aleutian                      between inshore and offshore
                                                to other areas and fisheries.                           Islands CV Harvest Set-Aside is                       participants in the past, consistent with
                                                   While it is accurate that the Aleutian               available as the ‘‘Aleutian Islands                   the purpose and need for the action, the
                                                Islands shoreplants in Adak or Atka did                 Unrestricted Fishery’’ for directed                   National Standards and other provisions
                                                not process Pacific cod during the 2015                 fishing by all non-CDQ fishery sectors                of the MSA [Magnuson-Stevens Act].’’
                                                or 2016 fishing years, comments                         with sufficient A-season allocation and               This sentence simply refers to past
                                                received during public testimony to the                 may be processed by any eligible                      actions taken by the Council and NMFS
                                                Council and the public comment period                   processor, including Amendment 80                     that allocate fishery resources between
                                                for the proposed rule state that investors              CPs and CVs making deliveries to them.                inshore and offshore participants and
                                                and processors are planning to process                  The amount of the Aleutian Islands                    does not represent the Council’s and
                                                Pacific cod in one or both communities                  Unrestricted Fishery will be published                NMFS’ justification for recommending
                                                if this final rule is implemented. The                  in the BSAI Harvest Specifications.                   and approving the Aleutian Islands
                                                commenters believe that without the                     Given the current 2017 harvest                        Pacific cod harvest set-aside. The
                                                Aleutian Islands CV Harvest Set-Aside,                  specifications for Aleutian Islands                   justification and rationale for
                                                it is doubtful that any operator will have              Pacific cod, 3,965 mt of Pacific cod will             establishing the set-aside is provided
                                                a viable opportunity to process Pacific                 be available for the Aleutian Islands                 generally in the administrative record
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                                                cod in Adak or Atka, and the inshore                    Unrestricted Fishery.                                 for Amendment 113, and specifically in
                                                sector will continue to be preempted                       The Aleutian Islands CV Harvest Set-               Section 2.4.3 of the Analysis, in the
                                                from the fishery. Public comments in                    Aside will only be in effect for a portion            preamble of the proposed rule, and in
                                                favor of the action also state that there               of the A-season. The set-aside will be                the preamble of this final rule.
                                                will be considerable social and                         lifted if the entire amount of the set-                  Although the Aleutian Islands Pacific
                                                economic benefits to Aleutian Islands                   aside has been delivered to Aleutian                  cod set-aside is not identical to other
                                                communities as a result of this action                  Islands shoreplants, or on March 15,                  inshore-offshore allocation actions the


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                                                             Federal Register / Vol. 81, No. 226 / Wednesday, November 23, 2016 / Rules and Regulations                                          84453

                                                Council and NMFS have implemented,                      whose shoreplant has a dubious track                  fishery management council to allocate
                                                the set-aside does allocate Aleutian                    record for paying fisherman and has had               fishery privileges to shore-based
                                                Islands Pacific cod among an inshore                    numerous operational difficulties.                    processors. Finally, in response to the
                                                sector (those vessels that deliver their                   The Magnuson-Stevens Act does not                  fourth question, whether the Magnuson-
                                                catch to Aleutian Islands shoreplants for               allow a fishery management council to                 Stevens Act authorizes the Council to
                                                processing) and an offshore sector (those               allocate fishery privileges to shore-based            establish an exclusive class of shore-
                                                vessels that process their catch at sea or              processors. The express Federal                       based processors that would be the
                                                that deliver their catch to offshore                    prohibition of creating such a privilege              recipients of all, or a specific portion of
                                                processors for processing), making it a                 was acknowledged by NOAA General                      all, landings from a fishery, NOAA GC
                                                type of inshore-offshore allocation.                    Counsel (GC) in a letter from Lisa                    advised that the answer is dependent on
                                                Another type of inshore-offshore                        Lindeman to the Council Chair in 2009.                the purpose of the action and the record
                                                allocation was the Gulf of Alaska (GOA)                 Section 303A of the Magnuson-Stevens                  developed by the Council. NOAA GC
                                                pollock and Pacific cod inshore-offshore                Act specifies that limited access                     stated, ‘‘The Magnuson-Stevens Act
                                                allocations under Amendment 23 to the                   privilege programs authorized under                   does not authorize placing a limit on the
                                                Fishery Management Plan for                             this act pertain to fish harvesting. Had              number of shore-based processing sites
                                                Groundfish of the GOA (GOA FMP).                        Congress intended to create an                        if the purpose is to allocate shore-based
                                                Under Amendment 23, 100 percent of                      individual processor quota, it could                  processing privileges. . . . However, if
                                                the GOA pollock TAC was allocated to                    have done so, as it did for the crab                  the Council developed an adequate
                                                vessels delivering their catch of pollock               fisheries in the BSAI. No such                        record demonstrating that an action,
                                                to onshore processors. In the preamble                  congressional grant of authority applies              which had the practical effect of
                                                of the final rule implementing                          to shore-based processors operating in                limiting the number of sites to which
                                                Amendment 23, NMFS stated, ‘‘The                        the Aleutian Islands Pacific cod fishery.             deliveries could be made, was necessary
                                                allocation of 100 percent of the GOA                       Response 35: In a memorandum dated                 for legitimate management or
                                                pollock TAC to the inshore sector                       September 30, 2009, from Lisa                         conservation objectives (e.g., . . .
                                                proposed by the Council and approved                    Lindeman, Regional Counsel for the                    protection of fishing communities that
                                                by the Secretary slightly exceeds the                   Alaska Region of NOAA General                         depend on the fisheries) and not a
                                                harvest rates of the inshore sector in                  Counsel, to Eric Olsen (then Chairman)                disguised limited entry program, then
                                                recent years and results in a                           and Chris Oliver (Executive Director) of              there could be a legal basis for such an
                                                redistribution of the pollock resource                  the Council, NOAA GC provided the                     action.’’
                                                from the offshore sector to the inshore                 Council with legal advice in response to
                                                                                                        four questions posed by the Council.                     NMFS disagrees that this action
                                                sector. The Secretary determined that                                                                         creates an exclusive processing privilege
                                                                                                        Questions 1, 2, and 4 of the 2009
                                                this redistribution was appropriate                                                                           for Adak or a disguised processing
                                                                                                        memorandum are relevant in
                                                based on the social and other benefits                                                                        allocation to Adak. No aspect of this
                                                                                                        responding to this comment. In
                                                that would be derived from                                                                                    action establishes exclusivity. This final
                                                                                                        response to the first question, NOAA GC
                                                implementation of the allocation’’ (57                                                                        rule does not provide a specific
                                                                                                        advised that except for the authority
                                                FR 23321, June 3, 1992). In contrast to                                                                       allocation of processing privileges to
                                                                                                        provided at section 313(j) for the Crab
                                                the inshore-offshore allocation of GOA                                                                        either Aleutian Islands shoreplant.
                                                                                                        Rationalization Program (16 U.S.C.
                                                pollock under Amendment 23 to the                                                                             Nothing in Amendment 113 or this final
                                                                                                        1862(j)), the Magnuson-Stevens Act
                                                GOA FMP, the Aleutian Islands Pacific                                                                         rule prevents the Atka shoreplant from
                                                                                                        does not provide the Council or NMFS
                                                cod CV Harvest Set-aside will allow the                                                                       processing Aleutian Islands Pacific cod
                                                                                                        with the authority to require fixed
                                                offshore sector to participate in the                   linkages between harvesters and shore-                and reducing the amount of Pacific cod
                                                Aleutian Islands Pacific cod fishery in                 based processors. In fixed linkages, a                that is delivered to Adak by vessels
                                                years when the Aleutian Islands Pacific                 harvester is required to deliver his or               participating in the set-aside, prevents
                                                cod DFA provides for the Unrestricted                   her catch to a specific shore-based                   other Aleutian Islands shoreplants from
                                                Fishery, and in years when no Aleutian                  processor. NOAA GC explained that                     processing Aleutian Islands Pacific cod
                                                Islands shoreplant is processing Pacific                requiring fixed linkages between                      in Adak or Atka, or prevents a
                                                cod or participating vessels fail to                    harvesters and shore-based processors is              shoreplant in any other onshore location
                                                deliver 1,000 mt of Aleutian Islands                    similar to issuing processor quota,                   west of 170° W. longitude from
                                                Pacific cod to Aleutian Islands                         which is not authorized by the                        processing Aleutian Islands Pacific cod.
                                                shoreplants by February 28.                             Magnuson-Stevens Act except for the                   The fact that the set-aside will be lifted
                                                   Comment 35: This action would                        Crab Rationalization Program.                         if notification of intent to process is not
                                                create an exclusive processing privilege                Therefore, with the exception of the                  provided, or if less than 1,000 mt of
                                                for Adak under the assumption that                      Crab Rationalization Program, NMFS                    Aleutian Islands Pacific cod is
                                                shore-based processors are entitled to an               acknowledges that the Council and                     processed by February 28, is directly
                                                allocated share of processing privileges.               NMFS do not have authority under the                  contrary to exclusive privileges that
                                                The Council and NMFS have attempted                     Magnuson-Stevens Act to require fixed                 permit the holder of the privilege
                                                to disguise an exclusive processing                     linkages between harvesters and                       exclusive access to the resource without
                                                allocation to Adak by defining                          processors or to establish exclusive                  diminishment by other participants or
                                                qualifying participants as ‘‘Aleutian                   processing privileges or processor quota.             revocation without procedural due
                                                Islands shoreplants’’ within a specified                   In response to the second question,                process. As explained throughout this
                                                geographic region. However, the                         NOAA GC advised that the Magnuson-                    final rule, the Council and NMFS have
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                                                shoreplant in Atka has never processed                  Stevens Act does authorize allocation of              articulated legitimate management and
                                                Pacific cod and has no historical                       harvesting privileges to shore-based                  conservation objectives for the Aleutian
                                                dependence on the fishery and it is                     processors if other requirements of the               Islands CV Harvest Set-Aside to protect
                                                unlikely that competing processing will                 Magnuson-Stevens Act are met.                         Aleutian Islands fishing communities
                                                be developed in the region in the                       Therefore, NMFS generally disagrees                   that depend on access to and sustained
                                                foreseeable future. Therefore, this action              with the commenter’s assertion that the               participation in the fisheries for the
                                                is an exclusive allocation to Adak,                     Magnuson-Stevens Act does not allow a                 socioeconomic benefits and stability


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                                                84454        Federal Register / Vol. 81, No. 226 / Wednesday, November 23, 2016 / Rules and Regulations

                                                provided by that access and                             fishing year, NMFS has determined that                Aleutian Islands shoreplants and those
                                                participation. Therefore, Amendment                     15 days will provide the cities with                  that deliver their catch to at-sea
                                                113 and this final rule do not create an                enough time to comply with the                        processors, to prepare for the start of the
                                                exclusive processing privilege for Adak.                notification requirements in 2016.                    fishing year with that knowledge. As
                                                                                                        Without waiver of the 30-day delay in                 explained above, failure to waive the
                                                OMB Revisions to PRA References in 15
                                                                                                        effectiveness, the deadline for                       delay in effectiveness could result in a
                                                CFR 902.1(b)
                                                                                                        submission of a notification of intent to             notification deadline that occurs in late
                                                  Section 3507(c)(B)(i) of the Paperwork                process would occur 45 days after                     December, which would not provide
                                                Reduction Act (PRA) requires that                       publication of the final rule in the                  NMFS or the affected industry with
                                                agencies inventory and display a current                Federal Register, which means the                     sufficient time to prepare for the
                                                control number assigned by the Director                 deadline would occur very late in                     upcoming fishery that starts on January
                                                of the Office of Management and Budget                  December 2016 or in early January 2017.               1, 2017.
                                                (OMB), for each agency’s information                    A deadline in late December would not                    For these reasons, the NMFS Assistant
                                                collection. Section 902.1(b) identifies                 provide NMFS with adequate time to                    Administrator finds good cause to waive
                                                the location of NOAA regulations for                    notify the industry as to whether the set-            the 30-day delay in effectiveness for this
                                                which OMB approval numbers have                         aside will be in effect on January 1,                 final rule.
                                                been issued. Because this final rule                    2017, or provide the affected industry                Small Entity Compliance Guide
                                                revises and adds data elements within a                 with sufficient time to prepare for the
                                                collection-of-information for                           fishery which begins on January 1 for                   Section 212 of the Small Business
                                                recordkeeping and reporting                             some participants in the Aleutian                     Regulatory Enforcement Fairness Act of
                                                requirements, 15 CFR 902.1(b) is revised                Islands Pacific cod fishery. Because                  1996 states that, for each rule or group
                                                to reference correctly the sections                                                                           of related rules for which an agency is
                                                                                                        NMFS must receive a notification of
                                                resulting from this final rule.                                                                               required to prepare a Final Regulatory
                                                                                                        intent prior to the start of the fishing
                                                                                                                                                              Flexibility Analysis, the agency shall
                                                Classification                                          year to provide for an orderly start to the
                                                                                                                                                              publish one or more guides to assist
                                                                                                        fishing year and to ensure the
                                                   The NMFS Assistant Administrator,                                                                          small entities in complying with the
                                                                                                        appropriate specifications are in place
                                                Alaska Region, NMFS, determined that                                                                          rule, and shall designate such
                                                                                                        before fishing occurs on January 1, any
                                                Amendment 113 to the FMP and this                                                                             publications as ‘‘small entity
                                                                                                        notification deadline for 2016 that
                                                rule are necessary for the conservation                                                                       compliance guides.’’ The preambles to
                                                                                                        would occur after December 31, 2016,
                                                and management of the groundfish                                                                              the proposed rule and this final rule
                                                                                                        renders the set-aside meaningless for the
                                                fishery and that they are consistent with                                                                     serve as the small entity compliance
                                                                                                        2017 fishing year. For reasons set forth              guide. This action does not require any
                                                the Magnuson-Stevens Act and other                      in the Analysis and the preambles of the
                                                applicable laws.                                                                                              additional compliance from small
                                                                                                        proposed rule and this final rule, the                entities that is not described in the
                                                   This final rule has been determined to
                                                                                                        Council and NMFS have determined                      preambles. Copies of the proposed rule
                                                be not significant for purposes of
                                                                                                        that the Aleutian Islands CV Harvest                  and this final rule are available from the
                                                Executive Order 12866.
                                                                                                        Set-Aside will provide important                      NMFS Web site at http://
                                                Administrative Procedure Act                            socioeconomic benefits and stability to               alaskafisheries.noaa.gov.
                                                   The NMFS Assistant Administrator                     Aleutian Islands fishing communities
                                                finds good cause under 5 U.S.C.                         that intend to process Aleutian Islands               Final Regulatory Flexibility Analysis
                                                553(d)(3) to waive the 30-day delay in                  Pacific cod in the upcoming fishing                      Section 604 of the Regulatory
                                                effectiveness for this final rule. This                 year. Waiving the 30-day delay in                     Flexibility Act (RFA) requires that,
                                                finding is based on the need to provide                 effectiveness will provide Aleutian                   when an agency promulgates a final rule
                                                the City of Adak and the City of Atka                   Islands fishing communities with an                   under section 553 of Title 5 of the U.S.
                                                with sufficient time to submit a                        opportunity to realize those benefits                 Code, after being required by that
                                                notification of intent to process that                  starting with the 2017 fishing year;                  section or any other law to publish a
                                                complies with the regulatory                            failure to waive the delay in                         general notice of proposed rulemaking,
                                                requirements after the notification                     effectiveness will postpone that                      the agency shall prepare a FRFA.
                                                requirements are effective; to provide                  opportunity for an entire fishing year                Section 604 describes the required
                                                NMFS with sufficient time to notify the                 until 2018. One Aleutian Islands                      contents of a FRFA: (1) A statement of
                                                general public and the affected industry                shoreplant has already informally                     the need for and objectives of the rule;
                                                as to whether the Aleutian Islands CV                   notified NMFS that it intends to process              (2) a statement of the significant issues
                                                Harvest Set-Aside will be in effect for                 Aleutian Islands Pacific cod in 2017.                 raised by the public comments in
                                                2017; and to provide the affected                          Additionally, as explained earlier in              response to the initial regulatory
                                                industry with sufficient time to                        this final rule, the Analysis determined              flexibility analysis, a statement of the
                                                adequately prepare for the start of the                 that the affected fishing industry would              assessment of the agency of such issues,
                                                2017 fishing year on January 1, 2017.                   have sufficient time to prepare for the               and a statement of any changes made in
                                                   NMFS has determined that it must                     upcoming fishing year if notification of              the proposed rule as a result of such
                                                give the City of Adak and the City of                   intent to process was received from                   comments; (3) the response of the
                                                Atka 15 days after the effective date of                Adak or Atka prior to December 15.                    agency to any comments filed by the
                                                the notification of intent to process                   Waiving the delay in effectiveness for                Chief Counsel for Advocacy of the U.S.
                                                regulations to take all necessary steps to              these regulations provides for a                      Small Business Administration (SBA) in
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                                                prepare, sign, and submit a notification                submission deadline that will occur                   response to the proposed rule, and a
                                                of intent to process that complies with                 before December 15, thus providing                    detailed statement of any change made
                                                the regulatory requirements at                          NMFS with sufficient time to notify the               to the proposed rule in the final rule as
                                                § 679.20(a)(7)(viii)(D). Because these                  public and affected industry as to                    a result of the comments; (4) a
                                                cities are aware of this action, have been              whether the set-aside will be in effect,              description of and an estimate of the
                                                anticipating its approval, and support                  and for the affected industry, including              number of small entities to which the
                                                its implementation in time for the 2017                 vessels that deliver their catch to                   rule will apply or an explanation of why


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                                                             Federal Register / Vol. 81, No. 226 / Wednesday, November 23, 2016 / Rules and Regulations                                          84455

                                                no such estimate is available; (5) a                    (4) Description and Number of Directly                vessels are likely affiliated through
                                                description of the projected reporting,                 Regulated Small Entities                              common ownership. These potential
                                                recordkeeping, and other compliance                        This final rule directly regulates three           affiliations are not known with the best
                                                requirements of the rule, including an                  groups of entities. This final rule will              available data and cannot be predicted.
                                                estimate of the classes of small entities               directly regulate trawl CVs harvesting                (5) Recordkeeping, Reporting, and Other
                                                which will be subject to the requirement                Pacific cod in the BSAI because it limits             Compliance Requirements
                                                and the type of professional skills                     how much Pacific cod those trawl CVs
                                                necessary for preparation of the report                                                                          This final rule adds a recordkeeping
                                                                                                        may harvest in the Bering Sea, and it                 and reporting requirement to notify
                                                or record; and (6) a description of the                 may prohibit trawl CVs from
                                                steps the agency has taken to minimize                                                                        NMFS of an Aleutian Islands
                                                                                                        participating in the Aleutian Islands                 shoreplant’s intent to process Aleutian
                                                the significant economic impact on                      Pacific cod fishery if they do not deliver
                                                small entities consistent with the stated                                                                     Islands Pacific cod in the upcoming
                                                                                                        their Pacific cod catch to Aleutian                   year; therefore, the recordkeeping,
                                                objectives of applicable statutes,                      Islands shoreplants. It also directly
                                                including a statement of the factual,                                                                         reporting, and other compliance
                                                                                                        regulates all non-trawl CVs who are                   requirements are increased slightly
                                                policy, and legal reasons for selecting                 harvesting Pacific cod in the Aleutian                under this final rule. This final rule
                                                the alternative adopted in the final rule               Islands because it will prohibit those                contains a new requirement for the City
                                                and why each one of the other                           non-trawl CVs from participating in the               of Adak or the City of Atka to notify
                                                significant alternatives to the rule                    Aleutian Islands Pacific cod fishery if               NMFS of its intent to process Aleutian
                                                considered by the agency which affect                   they do not deliver their Pacific cod                 Islands Pacific cod in the upcoming
                                                the impact on small entities was                        catch to Aleutian Islands shoreplants.                fishing year in order for the Bering Sea
                                                rejected.                                               Finally, this final will directly regulate            Trawl CV A-Season Sector Limitation
                                                                                                        all CPs harvesting Pacific cod in the                 and the Aleutian Islands CV Harvest
                                                (1) Need for and Objectives of This Final
                                                                                                        Aleutian Islands because it limits how                Set-Aside to go into effect in the
                                                Rule
                                                                                                        much Pacific cod those CPs can harvest                upcoming fishing year. The City
                                                  A statement of the need for and                       and process in the Aleutian Islands.                  Manager of Adak or the City
                                                objectives of this rule is contained                    This rule does not directly regulate the              Administrator of Atka is required to
                                                earlier in the preamble and is not                      City of Adak or the City of Atka because              provide NMFS with an official
                                                repeated here. This FRFA incorporates                   it does not impose a requirement on                   notification of intent prior to December
                                                the IRFA (see ADDRESSES) and the                        those cities. This rule does not directly             8, 2016, and no later than October 31 for
                                                summary of the IRFA in the proposed                     regulate entities participating in the                each year after 2016, for the harvest set-
                                                rule (81 FR 50444, August 1, 2016), a                   harvesting and processing of Pacific cod              aside to go into effect in the upcoming
                                                summary of the significant issues raised                managed under State GHL fisheries in                  year. The professional skills necessary
                                                by the public comments, NMFS’                           State waters in the Bering Sea or                     to provide this notice include writing,
                                                responses to those comments, and a                      Aleutian Islands.                                     sending email, and access to a U.S. Post
                                                summary of the analyses completed to                       The SBA has established size                       Office.
                                                support the action.                                     standards for all major industry sectors
                                                                                                        in the United States. For RFA purposes                (6) Description of Significant
                                                (2) Summary of Significant Issues                       only, NMFS has established a small                    Alternatives Considered to the Final
                                                Raised During Public Comment Period                     business size standard for businesses,                Action That Minimize Adverse Impacts
                                                                                                        including their affiliates, whose primary             on Small Entities
                                                   No comments were received that                       industry is commercial fishing (see 50                   The RFA requires identification of
                                                raised significant issues in response to                CFR 200.2). A business primarily                      any significant alternatives to the final
                                                the IRFA specifically; therefore, no                    engaged in commercial fishing (NAICS                  rule that accomplish the stated
                                                changes were made to this rule as a                     code 114111) is classified as a small                 objectives of the final action, consistent
                                                result of comments on the IRFA.                         business if it is independently owned                 with applicable statutes, and that would
                                                However, several comments were                          and operated, is not dominant in its                  minimize any significant economic
                                                received on the economic impacts of                     field of operation (including its                     impact of the final rule on small
                                                Amendment 113 on the Amendment 80                       affiliates), and has combined annual                  entities. The Council considered a status
                                                trawl CP and hook-and-line CP sectors.                  receipts not in excess of $11 million for             quo alternative and one action
                                                For a summary of the comments                           all its affiliated operations worldwide.              alternative with several options and
                                                received and NMFS’ responses, refer to                     Based on the best available and most               suboptions. The combination of options
                                                the section above titled ‘‘Responses to                 recent complete data from 2012 through                and suboptions under the action
                                                Comments.’’                                             2014, between 10 and 16 CPs, and an                   alternative effectively provided a broad
                                                (3) Public and Chief Counsel for                        estimated 43 CVs (trawl and non-trawl)                range of potential alternative
                                                Advocacy Comments on the IRFA                           will be directly regulated by this action             approaches to status quo management.
                                                                                                        in the BSAI. Of these, no CP is                       Under the status quo, there would have
                                                  NMFS published the proposed rule on                   estimated to be a small entity, while 6               been a continued risk that fishing
                                                August 1, 2016 (81 FR 50444), with                      trawl CVs and 26 non-trawl CVs are                    communities in the Aleutian Islands
                                                comments invited through August 31,                     estimated to be small entities based on               would not be able to sustainably
                                                2016. An IRFA was prepared and                          the best available data on the gross                  participate in the Aleutian Islands
                                                summarized in the ‘‘Classification’’                    receipts from these entities and their                Pacific cod fishery. The action
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                                                section of the preamble to the proposed                 known affiliates. Therefore, a total of 32            alternative does not affect any non-CDQ
                                                rule. NMFS received 18 letters of public                vessels considered to be small entities               fishery sector’s Pacific cod allocation, or
                                                comment on the proposed rule and                        will be directly regulated by this action.            the TAC of Aleutian Islands Pacific cod.
                                                Amendment 113 to the FMP. The Chief                     The IRFA assumes that each vessel is a                The action alternative accomplishes the
                                                Counsel for Advocacy of the SBA did                     unique entity; therefore, the total                   stated objectives of prioritizing a portion
                                                not file any comments on the proposed                   number of directly regulated entities                 of the Aleutian Islands Pacific cod TAC
                                                rule.                                                   may be an overestimate because some                   for harvest by vessels that deliver their


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                                                84456        Federal Register / Vol. 81, No. 226 / Wednesday, November 23, 2016 / Rules and Regulations

                                                catch to Aleutian Islands shoreplants for               while the set-aside was in effect. This                 Dated: November 14, 2016.
                                                processing, while minimizing adverse                    option could have allowed up to 10                    Samuel D. Rauch III,
                                                economic impacts on small entities and                  processing vessels to continue to                     Deputy Assistant Administrator for
                                                the potential for stranding a portion of                process Pacific cod during the A-season,              Regulatory Programs, National Marine
                                                the Aleutian Islands Pacific cod TAC.                   limiting the effectiveness of this final              Fisheries Service.
                                                   The Council considered a range of                    rule to minimize the risk of a                          For the reasons set out in the
                                                dates, varying amounts of Aleutian                      diminished historical share of Aleutian               preamble, NMFS amends 15 CFR part
                                                Islands Pacific cod for the harvest set-                Islands Pacific cod being delivered to                902 and 50 CFR part 679 as follows:
                                                aside and Bering Sea sector limitation,                 Aleutian Islands shoreplants and the
                                                and a suite of mechanisms to relieve the                                                                      Title 15—Commerce and Foreign Trade
                                                                                                        communities where those shoreplants
                                                Bering Sea Trawl CV A-Season Sector
                                                                                                        are located.                                          PART 902—NOAA INFORMATION
                                                Limitation and the Aleutian Islands CV
                                                Harvest Set-Aside under the action                      Federal Rules That May Duplicate,                     COLLECTION REQUIREMENTS UNDER
                                                alternative. The Council recommended                                                                          THE PAPERWORK REDUCTION ACT:
                                                                                                        Overlap, or Conflict With the Final
                                                the final combination of dates, harvest                                                                       OMB CONTROL NUMBERS
                                                                                                        Action
                                                set-aside amounts, harvest limitations,
                                                and provisions to relieve the Bering Sea                  NMFS has not identified any                         ■ 1. The authority citation for part 902
                                                Trawl CV A-Season Sector Limitation                     duplication, overlap, or conflict                     continues to read as follows:
                                                and the Aleutian Islands CV Harvest                     between this final action and existing                    Authority: 44 U.S.C. 3501 et seq.
                                                Set-Aside that would give fishery                       Federal rules.                                        ■ 2. In § 902.1, in the table in paragraph
                                                participants sufficient opportunity to
                                                                                                        Collection-of-Information Requirements                (b), under the entry ‘‘50 CFR’’, add an
                                                harvest and deliver Aleutian Islands
                                                                                                                                                              entry for ‘‘679.20(a)(7)(viii)’’ to read as
                                                Pacific cod to the benefit of Aleutian                    This final rule contains a collection-              follows:
                                                Islands communities and shoreplants                     of-information requirement subject to
                                                without stranding the trawl CV sector                                                                         § 902.1 OMB control numbers assigned
                                                                                                        the PRA and which has been approved
                                                allocation or the Aleutian Islands                                                                            pursuant to the Paperwork Reduction Act.
                                                                                                        by OMB under control number 0648–
                                                Pacific cod TAC. The Council                                                                                  *       *    *           *        *
                                                recommended and NMFS is                                 0743.
                                                                                                                                                                  (b) * * *
                                                implementing selected options in the                      Public reporting burden for
                                                action alternative such that if specific                Notification of Intent to Process                                                                Current OMB
                                                notification or minimum harvest and                     Aleutian Islands Pacific cod is estimated                 CFR part or section where             control number
                                                processing requirements are not met by                  to average 30 minutes per individual                      the information collection             (all numbers
                                                a specific date, the Bering Sea Trawl CV                response, including the time for                            requirement is located                begin with
                                                                                                                                                                                                             0648–)
                                                A-Season Sector Limitation and the                      reviewing instructions, searching
                                                Aleutian Islands CV Harvest Set-Aside                   existing data sources, gathering and
                                                will either not go into effect in the                   maintaining the data needed, and                         *             *            *           *         *
                                                upcoming year, or they will be lifted for               completing and reviewing the collection               50 CFR:
                                                the remainder of the year.                              of information.
                                                   The Council considered and rejected                                                                           *         *              *             *         *
                                                two options under the action                              Send comments regarding this data                   679.20(a)(7)(viii) ....................           –0743
                                                alternative. One option would have                      collection, or any other aspect of this
                                                required that if less than 50 percent of                data collection, including suggestions                     *           *            *           *         *
                                                the Aleutian Islands CV Harvest Set-                    for reducing the burden, to NMFS
                                                Aside had been landed at an Aleutian                    Alaska Region (see ADDRESSES), and by                 *        *       *       *        *
                                                Islands shoreplant by a given date,                     email to OIRA_Submission@                             Title 50—Wildlife and Fisheries
                                                ranging from February 28 to March 15,                   omb.eop.gov, or fax to (202) 395–5806.
                                                the Bering Sea Trawl CV A-Season                          Notwithstanding any other provision                 PART 679—FISHERIES OF THE
                                                Sector Limitation and the Aleutian                      of the law, no person is required to                  EXCLUSIVE ECONOMIC ZONE OFF
                                                Islands CV Harvest Set-Aside would be                   respond to, nor shall any person be                   ALASKA
                                                lifted. Instead, the Council selected an                subject to a penalty for failure to comply
                                                option that requires a minimum weight                                                                         ■ 3. The authority citation for 50 CFR
                                                                                                        with, a collection of information subject             part 679 continues to read as follows:
                                                (1,000 mt) rather than a minimum                        to the requirements of the PRA, unless
                                                percentage of the Aleutian Islands CV                                                                           Authority: 16 U.S.C. 773 et seq.; 1801 et
                                                                                                        that collection of information displays a
                                                Harvest Set-Aside that must be landed                                                                         seq.; 3631 et seq.; Pub. L. 108–447; Pub. L.
                                                                                                        currently valid OMB control number.
                                                at an Aleutian Islands shoreplant for                                                                         111–281.
                                                processing by a given date (February 28)                All currently approved NOAA
                                                                                                        collections of information may be                     ■ 4. In § 679.2, add a definition for
                                                for the Bering Sea Trawl CV A-Season
                                                                                                        viewed at: http://www.cio.noaa.gov/                   ‘‘Aleutian Islands shoreplant’’ in
                                                Sector Limitation and the Aleutian
                                                                                                        services_programs/prasubs.html.                       alphabetical order to read as follows:
                                                Islands CV Harvest Set-Aside to remain
                                                in place.                                               List of Subjects                                      § 679.2       Definitions.
                                                   The Council also considered and                                                                            *     *       *    *     *
                                                rejected an option that would have                      15 CFR Part 902
                                                                                                                                                                 Aleutian Islands shoreplant means a
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                                                exempted certain processing vessels
                                                                                                          Reporting and recordkeeping                         processing facility that is physically
                                                with a history of processing Aleutian
                                                                                                        requirements.                                         located on land west of 170° W.
                                                Islands Pacific cod in at least 12 out of
                                                                                                                                                              longitude within the State of Alaska.
                                                15 recent years from the final                          50 CFR Part 679
                                                restrictions on processing and would                                                                          *     *       *    *     *
                                                have allowed them to process up to                        Alaska, Fisheries, Reporting and                    ■ 5. In § 679.20, add paragraph
                                                2,000 mt of Aleutian Islands Pacific cod                recordkeeping requirements.                           (a)(7)(viii) to read as follows:


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                                                             Federal Register / Vol. 81, No. 226 / Wednesday, November 23, 2016 / Rules and Regulations                                           84457

                                                § 679.20   General limitations.                         mt. The Aleutian Islands Unrestricted                 Administrator of the City of Atka must
                                                *      *     *     *     *                              Fishery will be the amount of Pacific                 be submitted by certified mail through
                                                   (a) * * *                                            cod that remains after deducting the                  the United States Postal Service to:
                                                   (7) * * *                                            Aleutian Islands CV Harvest Set-Aside                 NMFS Alaska Region, Attn: Regional
                                                   (viii) Aleutian Islands Pacific Cod                  from the Aleutian Islands Pacific cod                 Administrator, P. O. Box 21668, Juneau,
                                                Catcher Vessel Harvest Set-Aside                        non-CDQ directed fishing allowance as                 AK 99802. The City Manager or City
                                                Program—(A) Calculation of the                          determined in paragraph                               Administrator must also submit an
                                                Aleutian Islands Pacific cod non-CDQ                    (a)(7)(viii)(A)(2) of this section. Shortly           electronic copy of the official
                                                ICA and DFA. Each year, during the                      after completion of the process set forth             notification of intent and the certified
                                                annual harvest specifications process set               in paragraph (a)(7)(viii)(D) of this                  mail receipt with postmark via email to
                                                forth at paragraph (c) of this section,                 section, NMFS will announce through                   nmfs.akr.inseason@noaa.gov. Email
                                                NMFS will specify the Aleutian Islands                  notice in the Federal Register whether                submission is in addition to submission
                                                Pacific cod non-CDQ incidental catch                    the Aleutian Islands CV Harvest Set-                  via U.S. Postal Service; email
                                                allowance and directed fishing                          Aside and the Aleutian Islands                        submission does not replace the
                                                allowance from the Aleutian Islands                     Unrestricted Fishery will be in effect for            requirement to submit an official
                                                Pacific cod non-CDQ TAC as follows.                     the upcoming fishing year.                            notification of intent via U.S. Postal
                                                Shortly after completion of the process                    (C) Calculation of the Bering Sea                  Service.
                                                set forth in paragraph (a)(7)(viii)(D) of               Trawl CV A-Season Sector Limitation.                     (3) NMFS confirmation. On or shortly
                                                this section, NMFS will announce                        Each year, during the annual harvest                  after December 8, 2016, or November 1
                                                through notice in the Federal Register                  specifications process set forth at                   for each year after 2016, the Regional
                                                whether the ICA and DFA will be in                      paragraph (c) of this section, NMFS will              Administrator will send a signed and
                                                effect for the upcoming fishing year.                   specify the Bering Sea Trawl CV A-                    dated letter to the City Manager of the
                                                   (1) Aleutian Islands Pacific cod non-                Season Sector Limitation and the                      City of Adak or the City Administrator
                                                CDQ incidental catch allowance. Each                    amount of the trawl CV sector’s A-                    of the City of Atka either confirming
                                                year, during the annual harvest                         season allocation that could be                       NMFS’ receipt of its official notification
                                                specifications process set forth at                     harvested in the Bering Sea subarea                   of intent to process Aleutian Islands
                                                paragraph (c) of this section, NMFS will                prior to March 21. The Bering Sea Trawl               Pacific cod, or informing the city that
                                                specify an amount of Aleutian Islands                   CV A-Season Sector Limitation will be                 NMFS did not receive notification by
                                                Pacific cod that NMFS estimates will be                 an amount of Pacific cod equal to the                 the deadline.
                                                taken as incidental catch in non-CDQ                    lesser of either the Aleutian Islands                    (4) Deadline. The official notification
                                                directed fisheries for groundfish other                 Pacific cod non-CDQ directed fishing                  of intent to process Aleutian Islands
                                                than Pacific cod in the Aleutian Islands.               allowance as determined in paragraph                  Pacific cod for the upcoming fishing
                                                This amount will be the Aleutian                        (a)(7)(viii)(A)(2) of this section or 5,000           year must be postmarked no later than
                                                Islands Pacific cod non-CDQ incidental                  mt. The amount of the trawl CV sector’s               December 8, 2016, or October 31 for
                                                catch allowance and will be deducted                    A-season allocation that could be                     each year after 2016, in order for the
                                                from the aggregate portion of Pacific cod               harvested in the Bering Sea subarea                   provisions of paragraph (a)(7)(viii)(E) of
                                                TAC annually allocated to the non-CDQ                   prior to March 21 will be the amount of               this section to apply during the
                                                sectors identified in paragraph                         Pacific cod that remains after deducting              upcoming fishing year. Notifications of
                                                (a)(7)(ii)(A) of this section.                          the Bering Sea Trawl CV A-Season                      intent postmarked on or after December
                                                   (2) Aleutian Islands Pacific cod non-                Sector Limitation from the amount of                  9, 2016, or November 1 for each year
                                                CDQ directed fishing allowance. Each                    BSAI Pacific cod allocated to the trawl               after 2016, will not be accepted by the
                                                year, during the annual harvest                         CV sector A-season as determined in                   Regional Administrator. The electronic
                                                specifications process set forth at                     paragraph (a)(7)(iv)(A)(1)(i) of this                 copy of the official notification of intent
                                                paragraph (c) of this section, NMFS will                section. Shortly after completion of the              and certified mail receipt with postmark
                                                specify the Aleutian Islands Pacific cod                process set forth in paragraph                        must be submitted to NMFS via email
                                                non-CDQ directed fishing allowance.                     (a)(7)(viii)(D) of this section, NMFS will            dated no later than December 8, 2016,
                                                The Aleutian Islands Pacific cod non-                   announce through notice in the Federal                or no later than October 31 for each year
                                                CDQ directed fishing allowance will be                  Register whether the Bering Sea Trawl                 after 2016, in order for the provisions of
                                                the amount of the Aleutian Islands                      CV A-Season Sector Limitation will be                 paragraph (a)(7)(viii)(E) of this section to
                                                Pacific cod TAC remaining after                         in effect for the upcoming fishing year.              apply during the upcoming fishing year.
                                                subtraction of the Aleutian Islands                        (D) Annual notification of intent to                  (5) Contents of notification. A
                                                Pacific cod CDQ reserve and the                         process Aleutian Islands Pacific cod—                 notification of intent to process Aleutian
                                                Aleutian Islands Pacific cod non-CDQ                    (1) Submission of notification. The                   Islands Pacific cod for the upcoming
                                                incidental catch allowance.                             provisions of paragraph (a)(7)(viii)(E) of            fishing year must contain the following
                                                   (B) Calculation of the Aleutian                      this section will apply if the either the             information:
                                                Islands CV Harvest Set-Aside and                        City Manager of the City of Adak or the                  (i) Date,
                                                Aleutian Islands Unrestricted Fishery.                  City Administrator of the City of Atka                   (ii) Name of city,
                                                Each year, during the annual harvest                    submits to NMFS a timely and complete                    (iii) Statement of intent to process
                                                specifications process set forth at                     notification of its intent to process                 Aleutian Islands Pacific cod,
                                                paragraph (c) of this section, NMFS will                Aleutian Islands Pacific cod during the                  (iv) Identification of the fishing year
                                                specify the Aleutian Islands CV Harvest                 upcoming fishing year. This notification              during which the city intends to process
                                                Set-Aside and the Aleutian Islands                      must be submitted annually to NMFS                    Aleutian Island Pacific cod, and
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                                                Unrestricted Fishery. The Aleutian                      using the methods described below.                       (v) Signature of and contact
                                                Islands CV Harvest Set-Aside will be an                    (2) Submittal method. An official                  information for the City Manager or City
                                                amount of Pacific cod equal to the lesser               notification of intent to process Aleutian            Administrator of the city intending to
                                                of either the Aleutian Islands Pacific                  Islands Pacific cod during the upcoming               process Aleutian Islands Pacific cod.
                                                cod non-CDQ directed fishing allowance                  fishing year in the form of a letter or                  (E) Aleutian Islands community
                                                as determined in paragraph                              memorandum signed by the City                         protections for Pacific cod. If the City
                                                (a)(7)(viii)(A)(2) of this section or 5,000             Manager of the City of Adak or the City               Manager of the City of Adak or the City


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                                                84458        Federal Register / Vol. 81, No. 226 / Wednesday, November 23, 2016 / Rules and Regulations

                                                Administrator of the City of Atka                       apply for the remainder of the fishing                Merchandise Branch, Regulations and
                                                submits a timely and complete                           year.                                                 Rulings, Office of Trade, (202) 325–
                                                notification in accordance with                         *     *    *     *   *                                0215. For operational aspects, William
                                                paragraph (a)(7)(viii)(D) of this section,              [FR Doc. 2016–28152 Filed 11–22–16; 8:45 am]          R. Scopa, Branch Chief, Partner
                                                then the following provisions will apply                BILLING CODE 3510–22–P                                Government Agency Branch, Trade
                                                for the fishing year following the                                                                            Policy and Programs, Office of Trade,
                                                submission of the timely and complete                                                                         (202) 863–6554, William.R.Scopa@
                                                notification:                                           DEPARTMENT OF HOMELAND                                cbp.dhs.gov.
                                                   (1) Bering Sea Trawl CV A-Season                     SECURITY                                              SUPPLEMENTARY INFORMATION:
                                                Sector Limitation. Prior to March 21, the
                                                harvest of Pacific cod by the trawl CV                  U.S. Customs and Border Protection                    Background
                                                sector in the Bering Sea subarea is                                                                              Pursuant to the provisions of the 1970
                                                limited to an amount equal to the trawl                 DEPARTMENT OF THE TREASURY                            United Nations Educational, Scientific
                                                CV sector A-season allocation as                                                                              and Cultural Organization (UNESCO)
                                                determined in paragraph                                 19 CFR Part 12                                        Convention, implemented by the
                                                (a)(7)(iv)(A)(1)(i) of this section minus                                                                     Convention on Cultural Property
                                                the Bering Sea Trawl CV A-Season                        [CBP Dec. 16–21]
                                                                                                                                                              Implementation Act (Pub. L. 97–446, 19
                                                Sector Limitation as determined in                      RIN 1515–AE18                                         U.S.C. 2601 et seq.), the United States
                                                paragraph (a)(7)(viii)(C) of this section.                                                                    made a bilateral agreement with Greece,
                                                If, after the start of the fishing year, the            Extension of Import Restrictions                      which entered into force on November
                                                provisions of paragraphs                                Imposed on Certain Archaeological                     21, 2011, concerning the imposition of
                                                (a)(7)(viii)(E)(4) or (5) of this section are           and Ethnological Material From Greece                 import restrictions on archaeological
                                                met, this paragraph (a)(7)(viii)(E)(1) will                                                                   materials representing Greece’s cultural
                                                not apply for the remainder of the                      AGENCY:  Customs and Border Protection,
                                                                                                        Department of Homeland Security;                      heritage from the Upper Paleolithic
                                                fishing year.                                                                                                 (beginning approximately 20,000 B.C.)
                                                   (2) Aleutian Islands Catcher Vessel                  Department of the Treasury.
                                                                                                                                                              through the 15th century A.D., and
                                                Harvest Set-Aside. Prior to March 15,                   ACTION: Final rule.                                   ecclesiastical ethnological material
                                                only catcher vessels that deliver their                                                                       representing Greece’s Byzantine culture
                                                                                                        SUMMARY:     This document amends the
                                                catch of Aleutian Islands Pacific cod to                                                                      (approximately the 4th century through
                                                                                                        U.S. Customs and Border Protection
                                                Aleutian Islands shoreplants for                                                                              the 15th century A.D.). On December 1,
                                                                                                        (CBP) regulations to reflect the
                                                processing may directed fish for that                                                                         2011, CBP published CBP Dec. 11–25 in
                                                                                                        extension of import restrictions on
                                                portion of the Aleutian Islands Pacific                                                                       the Federal Register (76 FR 74691),
                                                                                                        certain archaeological and ethnological
                                                cod non-CDQ directed fishing allowance                                                                        which amended 19 CFR 12.104g(a) to
                                                                                                        material from the Hellenic Republic
                                                that is specified as the Aleutian Islands                                                                     indicate the imposition of these
                                                                                                        (Greece). The restrictions, which were
                                                Catcher Vessel Harvest Set-Aside in                                                                           restrictions and included a list
                                                                                                        originally imposed by CBP Decision
                                                paragraph (a)(7)(viii)(B) of this section.                                                                    designating the types of archaeological
                                                                                                        (CBP Dec.) 11–25, are due to expire on
                                                If, after the start of the fishing year, the                                                                  and ecclesiastical ethnological material
                                                                                                        November 21, 2016. The Assistant
                                                provisions of paragraph (a)(7)(viii)(E)(4)                                                                    covered by the restrictions.
                                                                                                        Secretary for Educational and Cultural
                                                of this section are met, this paragraph                                                                          Import restrictions listed in 19 CFR
                                                                                                        Affairs, United States Department of
                                                (a)(7)(viii)(E)(2) will not apply for the                                                                     12.104g(a) are effective for no more than
                                                                                                        State, has determined that factors
                                                remainder of the fishing year.                                                                                five years beginning on the date on
                                                                                                        continue to warrant the imposition of
                                                   (3) Aleutian Islands Unrestricted                                                                          which the agreement enters into force
                                                                                                        import restrictions and no cause for
                                                Fishery. Prior to March 15, vessels                                                                           with respect to the United States. This
                                                                                                        suspension exists. Accordingly, these
                                                otherwise authorized to directed fish for                                                                     period can be extended for additional
                                                                                                        import restrictions will remain in effect
                                                Pacific cod in the Aleutian Islands may                                                                       periods not to exceed five years if it is
                                                                                                        for an additional five years, and the CBP
                                                directed fish for that portion of the                                                                         determined that the factors which
                                                                                                        regulations are being amended to reflect
                                                Aleutian Islands Pacific cod non-CDQ                                                                          justified the initial agreement still
                                                                                                        this extension until November 21, 2021.
                                                directed fishing allowance that is                                                                            pertain and no cause for suspension of
                                                                                                        These restrictions are being extended
                                                specified as the Aleutian Islands                                                                             the agreement exists (19 CFR
                                                                                                        pursuant to determinations of the
                                                Unrestricted Fishery as determined in                                                                         12.104g(a)).
                                                                                                        United States Department of State made
                                                paragraph (a)(7)(viii)(B) of this section                                                                        On February 5, 2016, the Department
                                                                                                        under the terms of the Convention on
                                                and may deliver their catch to any                                                                            of State received a request by the
                                                                                                        Cultural Property Implementation Act
                                                eligible processor.                                                                                           Government of the Hellenic Republic to
                                                                                                        that implemented the United Nations
                                                   (4) Minimum Aleutian Islands                         Educational, Scientific and Cultural                  extend the Agreement. Subsequently,
                                                shoreplant landing requirement. If less                 Organization (UNESCO) Convention on                   the Department of State proposed to
                                                than 1,000 mt of the Aleutian Islands                   the Means of Prohibiting and Preventing               extend the Agreement. After considering
                                                Catcher Vessel Harvest Set-Aside is                     the Illicit Import, Export and Transfer of            the views and recommendation of the
                                                landed at Aleutian Islands shoreplants                  Ownership of Cultural Property. CBP                   Cultural Property Advisory Committee,
                                                on or before February 28, then                          Dec. 11–25 contains the Designated List               the Assistant Secretary for Educational
                                                paragraphs (a)(7)(viii)(E)(1) and (2) of                of archaeological and ecclesiastical                  and Cultural Affairs, United States
                                                this section will not apply for the                     ethnological material from Greece, to                 Department of State, determined that
mstockstill on DSK3G9T082PROD with RULES




                                                remainder of the fishing year.                          which the restrictions apply.                         the cultural heritage of Greece continues
                                                   (5) Harvest of Aleutian Islands                                                                            to be in jeopardy from pillage of
                                                                                                        DATES: Effective Date: November 21,
                                                Catcher Vessel Harvest Set-Aside. If the                                                                      archaeological materials representing
                                                Aleutian Islands Catcher Vessel Harvest                 2016.                                                 Greece’s cultural heritage from the
                                                Set-Aside is fully harvested prior to                   FOR FURTHER INFORMATION CONTACT:      For             Upper Paleolithic (beginning
                                                March 15, then paragraph                                legal aspects, Lisa L. Burley, Chief,                 approximately 20,000 B.C.) through the
                                                (a)(7)(viii)(E)(1) of this section will not             Cargo Security, Carriers and Restricted               15th century A.D., and ecclesiastical


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Document Created: 2016-11-23 05:30:03
Document Modified: 2016-11-23 05:30:03
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesEffective on November 23, 2016.
ContactJulie Scheurer, 907-586-7228.
FR Citation81 FR 84434 
RIN Number0648-BF54
CFR Citation15 CFR 902
50 CFR 679
CFR AssociatedReporting and Recordkeeping Requirements; Alaska and Fisheries

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