Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea and Aleutian Islands Management Area; American Fisheries Act; Amendment 113, 84434-84458 [2016-28152]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 81, Number 226 (Wednesday, November 23, 2016)]
[Rules and Regulations]
[Pages 84434-84458]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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 https://www.regulations.gov 
or from the NMFS Alaska Region Web site at https://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 
OIRA_Submission@omb.eop.gov; 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

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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

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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 
(nmfs.akr.inseason@noaa.gov) 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 https://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 
OIRA_Submission@omb.eop.gov, 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: https://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 
nmfs.akr.inseason@noaa.gov. 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]
 BILLING CODE 3510-22-P