Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Cod in the Bering Sea and Aleutian Islands, 78038-78045 [2020-26593]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 85, Number 233 (Thursday, December 3, 2020)]
[Rules and Regulations]
[Pages 78038-78045]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-26593]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 201125-0321]
RIN 0648-BJ59


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

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

ACTION: Final rule.

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SUMMARY: This final rule modifies Federal permit conditions and imposes 
participation requirements for certain federally permitted vessels when 
fishing for Pacific cod in state waters adjacent to the exclusive 
economic zone of the Bering Sea and Aleutian Islands during the State 
of Alaska's parallel Pacific cod fishery. This action is necessary to 
enhance Federal conservation, management, and catch accounting measures 
previously adopted by the North Pacific Fishery Management Council 
(Council) regarding license limitation, sector allocations, and catch 
reporting. This action is intended to promote the goals and objectives 
of the Magnuson-Stevens Fishery Conservation and Management Act, the 
Fishery Management Plan for Groundfish of the Bering Sea and Aleutian 
Islands Management Area, and other applicable law.

DATES: Effective January 4, 2021.

ADDRESSES: Electronic copies of the Categorical Exclusion and the 
Regulatory Impact Review (RIR) prepared for this action (referred to as 
the ``Analysis'') are available from https://www.regulations.gov or from 
the NMFS Alaska Region website at https://www/fisheries.noaa.gov/
region/alaska.

FOR FURTHER INFORMATION CONTACT: Kurt Iverson, 907-586-7210.

SUPPLEMENTARY INFORMATION:

Authority for Action

    NMFS manages the groundfish fisheries in the U.S. exclusive 
economic zone (EEZ) of the Bering Sea and Aleutian Islands (BSAI) under 
the Fishery Management Plan for Groundfish of the BSAI Management Area 
(FMP). The Council prepared, and NMFS approved, the FMP under the 
authority of the Magnuson-Stevens Fishery Conservation and Management 
Act (MSA), 16 U.S.C. 1801 et seq. Regulations governing U.S. fisheries 
and implementing the FMP appear at 50 CFR part 679. General regulations 
that pertain to U.S. fisheries appear at subpart H of 50 CFR part 600.
    NMFS published the proposed rule for these regulatory amendments in 
the Federal Register on September 18, 2020 (85 FR 58322). A summary of 
comments on the proposed rule and NMFS' responses are provided in the 
Comments and Responses section of this preamble.

Summary of This Action

    In this rule, NMFS modifies Federal permit conditions and imposes 
participation requirements for certain federally permitted vessels when 
fishing for Pacific cod in State of Alaska waters (state waters) 
adjacent to the Exclusive Economic Zone (EEZ) of the Bering Sea and 
Aleutian Islands (BSAI). The state waters portion of the Pacific cod 
fishery that runs concurrent with the Federal Pacific cod fishery is 
commonly known as the State's parallel fishery.
    Throughout this preamble, ``state waters'' refers to the maritime 
waters from 0 to 3 nautical miles off Alaska, and ``EEZ'' and ``Federal 
waters'' are used interchangeably and refer to the maritime waters from 
3 to 200 nautical miles off Alaska. In addition, ``parallel fisheries'' 
in this preamble refers to the state waters Pacific cod parallel 
fisheries in the State of Alaska Bering Sea-Aleutian Islands Area, 
which presently is in the Dutch Harbor Subdistrict of the Bering Sea 
and within the Aleutian Islands Subdistrict of the Aleutian Islands, 
respectively.
    This rule prohibits (1) a hook-and-line, pot, or trawl gear vessel 
named on a Federal Fisheries Permit (FFP) or License Limitation Program 
(LLP) license from being used to catch and retain BSAI Pacific cod in 
State of Alaska (State) waters adjacent to the BSAI during the State's 
parallel Pacific cod fishery unless the vessel is named on an FFP and 
LLP license that have the required endorsements; (2) a hook-and-

[[Page 78039]]

line, pot, or trawl gear vessel named on an FFP or LLP license from 
catching and retaining Pacific cod in state waters adjacent to the BSAI 
EEZ during the State's parallel fishery when NMFS has closed the EEZ to 
directed fishing for Pacific cod by the sector to which the vessel 
belongs; (3) the holder of an FFP with certain endorsements from 
modifying those endorsements during the effective period of the FFP; 
and (4) the reissuance of a surrendered FFP with certain endorsements 
for the remainder of the three-year term, or cycle, of FFPs.

Summary of Management of the Fishery

    This section briefly describes the Federal BSAI Pacific cod 
fishery, including the Pacific cod fisheries that occur in BSAI state 
waters. More detailed descriptions, including a review of this rule and 
the rationale for the regulations, are provided in the preamble to the 
proposed rule (85 FR 58322, September 18, 2020) and in the Analysis 
(see ADDRESSES).
    Vessels that harvest Pacific cod in the BSAI use both trawl and 
non-trawl gear. Non-trawl gear includes hook-and-line, jig, and pot 
gear. Additionally, BSAI Pacific cod vessels operate as catcher vessels 
that harvest and deliver the fish for processing, or as catcher 
processors that harvest and process the catch on board. The amount of 
BSAI Pacific cod available for commercial harvest is determined through 
an annual harvest specifications process (e.g., 83 FR 13553, March 9, 
2020). This process accounts for Pacific cod harvested in guideline 
harvest level (GHL) fisheries that occur only within state waters and 
are managed by the State of Alaska. After deducting for harvests in the 
GHL fisheries, Pacific cod Total Allowable Catches (TACs) are set for 
the Federal fisheries in the Bering Sea and Aleutian Islands subareas.
    Once the Bering Sea and Aleutian Islands TACs are established, 
regulations at Sec.  679.20(a)(7)(i) allocate 10.7 percent of the 
Bering Sea Pacific cod TAC and 10.7 percent of the Aleutian Islands 
Pacific cod TAC to the Community Development Quota (CDQ) Program for 
exclusive harvest by Western Alaska CDQ groups. Section 305(i) of the 
MSA specifies the methods for allocating these harvest privileges. Once 
allocated, CDQ groups must ensure that they do not exceed their 
allocations.
    The portion that remains after subtraction of the CDQ allocation 
from each TAC is the initial TAC (ITAC) for the Bering Sea and Aleutian 
Islands. NMFS combines the Bering Sea ITAC and the Aleutian Islands 
ITAC into one, BSAI non-CDQ Pacific cod TAC. This combined BSAI non-CDQ 
Pacific cod TAC is then allocated among, and available for harvest by, 
nine non-CDQ fishery sectors. Regulations at Sec.  679.20(a)(7)(ii)(A) 
define the nine non-CDQ fishery sectors and specify the percentage of 
the BSAI non-CDQ Pacific cod TAC allocated to each. The non-CDQ fishery 
sectors are defined by a combination of gear type (e.g., trawl, hook-
and-line), operation type (i.e., catcher vessel or catcher/processor), 
and vessel size categories (e.g., vessels greater than or equal to 60 
feet (ft) in length overall or less than 60 ft in length overall). 
Through the annual harvest specifications process, NMFS allocates an 
amount of the BSAI non-CDQ Pacific cod TAC to each of the nine non-CDQ 
fishery sectors. The nine non-CDQ fishery sectors and the percentage of 
the BSAI non-CDQ Pacific cod TAC allocated to each sector are shown in 
Table 1 below.

 Table 1--Allocations of the BSAI Non-CDQ Pacific Cod TAC to the Non-CDQ
                             Fishery Sectors
------------------------------------------------------------------------
                                                            Percentage
                                                           allocation of
                 Non-CDQ fishery sector                    the BSAI non-
                                                              CDQ TAC
------------------------------------------------------------------------
Hook-and-line catcher vessels greater than or equal to               0.2
 60 ft length overall (LOA).............................
Jig gear................................................             1.4
Pot catcher/processors..................................             1.5
Hook-and-line and pot catcher vessels less than 60 ft                2.0
 LOA....................................................
American Fisheries Act (AFA) trawl catcher/processors...             2.3
Pot catcher vessels greater than or equal to 60 ft LOA..             8.4
Non-AFA trawl catcher/processors (Amendment 80 catcher/             13.4
 processors)............................................
Trawl catcher vessels...................................            22.1
Hook-and-line catcher processors........................            48.7
------------------------------------------------------------------------

    NMFS manages each of the fishery sectors to ensure harvest of 
Pacific cod does not exceed the sector's annual allocation. NMFS 
monitors harvests that occur by vessels being used to conduct directed 
fishing for Pacific cod (that is, participants who are specifically 
targeting and retaining Pacific cod above specific threshold levels) 
and harvests that occur by vessels being used to conduct directed 
fishing for other species and incidentally catching Pacific cod (e.g., 
the incidental catch of Pacific cod in the directed pollock fishery). 
Section 679.2 provides the regulatory definition of ``directed 
fishing.'' For the non-AFA trawl catcher/processor sector, also known 
as the Amendment 80 sector, NMFS allocates exclusive harvest privileges 
to participants within that sector that cannot be exceeded. For the 
other non-CDQ fishery sectors, NMFS carefully tracks both directed and 
incidental catch of Pacific cod. An allocation to a non-CDQ fishery 
sector may be harvested in either the Bering Sea or the Aleutian 
Islands, subject to the Pacific cod ITAC specified for the Bering Sea 
or the Aleutian Islands. NMFS takes appropriate management measures, 
such as closing directed fishing for a fishery sector, to ensure that 
total directed fishing and incidental fishing harvests do not exceed 
that sector's allocation. Section 2.7 of the Analysis describes NMFS' 
management of the non-CDQ fishery sectors.
    Allocations of Pacific cod to the CDQ Program and to the non-CDQ 
fishery sectors are further apportioned by season dates established at 
Sec.  679.23(e)(5). In general, regulations apportion CDQ and non-CDQ 
fishery sector allocations among three seasons that correspond to the 
early (A-season), middle (B-season), and late (C-season) portions of 
the year. The specific season dates established for the CDQ Program and 
each of the non-CDQ fishery sectors were provided in the final 2020 and 
2021 harvest specifications for groundfish of the BSAI (83 FR 13553, 
March 9, 2020). Depending on the specific CDQ Program or non-CDQ 
fishery sector allocation, between 40 percent and 70 percent of the 
Pacific

[[Page 78040]]

cod allocations are apportioned to the A-season, historically the most 
lucrative fishing season due to the presence of valuable roe in the 
fish and the good quality of the flesh during that time of year.
    The allocation of Pacific cod among the CDQ Program and the nine 
non-CDQ fishery sectors, as well as the seasonal apportionment of those 
allocations, create a large number of distinct sector and season 
allocations. The regulations allow NMFS to reallocate (rollover) any 
unused portion of a seasonal apportionment from any non-CDQ fishery 
sector (except the jig sector) to that sector's next season during the 
current fishing year, unless the Regional Administrator determines a 
non-CDQ fishery sector will not be able to harvest its allocation (see 
Sec.  679.20(a)(7)(iv)(B)).

Permits and Licenses

    To monitor compliance with harvest catch limits, prohibited species 
(non-retained) catch limits, and sideboard regulations that limit 
participation in other fisheries, NMFS requires various permits that 
authorize or restrict access to the groundfish fisheries in the Federal 
waters of the BSAI. The two most relevant permits associated with this 
final rule are FFPs and LLP licenses.

1. Federal Fisheries Permit

    All vessels that retain BSAI Pacific cod in the EEZ are required to 
have an FFP on board the vessel at all times (Sec.  679.4(b)(1)). An 
FFP authorizes a vessel owner to deploy a vessel to conduct fishing 
operations in the EEZ of the BSAI in accordance with the endorsements 
on the FFP. An FFP includes many endorsements, such as type of gear 
(e.g., pot, hook-and-line, and trawl), vessel operation category 
(catcher vessel, catcher/processor, mothership, tender vessel, or 
support vessel), and regulatory area of operation (e.g., BSAI) in which 
a permitted vessel is eligible to fish. In some fisheries, a species 
endorsement is also required. For example, the owners and operators of 
harvesting vessels that participate in the directed BSAI Pacific cod 
fisheries, except vessels using jig gear, are required to have an FFP 
endorsement for Pacific cod, along with endorsements for the gear type 
used to fish for Pacific cod, the vessel operation type, and the 
regulatory area(s) in which the fishery is prosecuted. All CDQ vessels 
and all non-jig vessels listed in Table 1 are required to have an FFP 
onboard that is endorsed for Pacific cod. A vessel may not be operated 
in a category other than what is specified on the FFP.
    The operators of harvesting vessels that possess an FFP are 
required to comply with NMFS observer coverage requirements (Sec.  
679.50(a)). In addition, FFP holders participating in a pollock, Atka 
mackerel, or Pacific cod fishery in the BSAI are required to have on 
board the vessel a transmitting vessel monitoring system (VMS) (Sec.  
679.28(f)(6)). A VMS consists of a NMFS-approved transmitter that 
automatically determines a vessel's position and transmits that 
information to NMFS. While Pacific cod directed fisheries are open, all 
harvesting vessels with an FFP endorsed with a hook-and-line, pot, or 
trawl Pacific cod endorsement are required to have an operational VMS, 
regardless of where the vessel is fishing at the time or what the 
vessel is targeting. Thus, a VMS is required of all vessels with an FFP 
endorsed for Pacific cod hook-and-line, pot, or trawl gear while 
fishing in state waters (0 to 3 nm) adjacent to the BSAI. However, 
because these Federal requirements apply as a condition of being issued 
an FFP, operators of vessels that have not been issued an FFP and that 
fish exclusively in state waters are not required to possess an FFP or 
have an FFP on board the vessel, and such vessels are not subject to 
Federal observer, VMS, or recordkeeping and reporting requirements 
unless specified by the State.
    FFPs are valid for three years and, unless revoked, suspended, or 
surrendered, are in effect from the date of issuance through the end of 
the three-year cycle. The current cycle of FFPs issued for vessels that 
operate in Alaska waters is January 1, 2018, through December 31, 2020. 
A vessel operator with an FFP can surrender the permit at any time and 
have NMFS reissue the FFP any number of times within the three-year 
cycle.
    While any vessel owner can apply for an FFP with any combination of 
vessel operation, area, gear, or species endorsements, an FFP, by 
itself, does not necessarily authorize the FFP holder or the vessel 
named on the FFP to participate in the Federal Pacific cod fisheries. 
Most of the vessels that are used to participate in the Federal Pacific 
cod fisheries in the BSAI are also are required to have a groundfish 
LLP license.

2. License Limitation Program (LLP) License

    A groundfish LLP license authorizes a vessel to be used in a 
directed fishery for groundfish in the BSAI in accordance with the 
specific area and species endorsements, the vessel and gear 
designations, the maximum length overall (MLOA) specified on the 
license, and any exemption from the MLOA specified on the license. Most 
vessel operators fishing for groundfish in the BSAI must have an LLP 
license on board at all times when the vessel is engaged in fishing 
activities (Sec.  679.4(k)). LLP licenses are issued by NMFS to 
qualified persons. Exemptions to the LLP license requirement in the 
BSAI are listed at Sec.  679.4(k)(2), including an exemption for any 
vessel that does not exceed 32 ft (9.8 m) length overall (LOA), and an 
exemption for jig vessels less than or equal to 60 ft (18.3 m) LOA that 
use a maximum of 5 jig machines, one line per jig machine, and a 
maximum of 15 hooks per line.
    In order to participate in the BSAI Pacific cod fisheries, several 
endorsements are required to be specified on an LLP license, such as 
vessel operation type, area, gear designation, and maximum length 
overall (MLOA). The endorsements for operation type on LLP licenses are 
either catcher vessel or catcher/processor. A catcher vessel 
endorsement allows a vessel to harvest but not process fish on board. A 
catcher/processor endorsement allows both harvesting and onboard 
processing, and also allows a vessel to deliver the catch to a separate 
processor. Area endorsements on BSAI groundfish LLP licenses authorize 
a vessel to fish in either the Bering Sea, the Aleutian Islands, or 
both areas. Gear endorsements for BSAI groundfish LLP licenses are 
either for trawl, non-trawl, or both gear types. For groundfish vessels 
with non-trawl endorsed licenses, NMFS implemented regulations in 2002 
that require a Pacific cod endorsement for hook-and-line and pot gear 
LLP licenses on catcher/processor vessels and catcher vessels that are 
60 ft (18.3 m) LOA or greater and that are used to participate in the 
BSAI Pacific cod fisheries (67 FR 18130, April 15, 2002). Catcher 
vessels less than 60 ft (18.3 m) are exempt from the required Pacific 
cod endorsement on their LLP license.
    Groundfish LLP licenses also identify whether the license is 
associated with the Amendment 80, American Fisheries Act, or Gulf of 
Alaska Rockfish license limitation programs. BSAI groundfish LLP 
licenses further specify whether the license is restricted by 
regulatory sideboards from being used in other fisheries.
    In general, a vessel is authorized to use only the gear that is 
designated on the LLP license. Unlike the FFP, the endorsements on an 
LLP license are not generally severable and an LLP license, with its 
associated endorsements, can be

[[Page 78041]]

reassigned to a different vessel only once per year. Like FFPs, 
operators of vessels that have not been issued an LLP license and that 
fish exclusively in state waters fisheries are not required to comply 
with Federal requirements for LLP licenses.

BSAI State Waters Pacific Cod Fisheries

    As mentioned above, catch limits for the Federal Pacific cod 
fisheries include the sum of harvests that come from BSAI Federal 
waters and from the concurrent state parallel Pacific cod fisheries. 
Under the authority of Alaska statutes and regulations, the Alaska 
Department of Fish and Game (ADF&G) manages two parallel Pacific cod 
fisheries and three GHL fisheries in the state waters adjacent to the 
BSAI EEZ. Two of the GHL fisheries are held in the State's Dutch Harbor 
Subdistrict of the Bering Sea; the third is within the Aleutian Islands 
Subdistrict of the Aleutian Islands.

Parallel Pacific Cod Fisheries

    During the Federal BSAI Pacific cod fisheries in the EEZ, the State 
creates concurrent, or parallel, Pacific cod fisheries in state waters 
by generally adopting NMFS management actions for state waters. The 
initial Federal BSAI Pacific cod season (``A-Season'') opens January 1 
for vessels using hook-and-line, pot, and jig gear, and January 20 for 
vessels using trawl gear. Unless specifically prohibited by State 
regulation, (e.g., nonpelagic trawl gear is prohibited in state waters 
by 5 AAC 39.164 (4)), the State authorizes the same gear types, 
seasons, and bycatch limits that apply in the adjacent Federal BSAI 
Pacific cod season during a parallel fishery. In addition, during these 
State parallel Pacific cod fisheries, vessels using longline gear may 
not exceed 58 feet in overall length (OAL) (5 AAC 28.690(c)). Except 
for vessels using mechanical jigging machines, State regulations 
require all vessels that participate in a parallel Pacific cod fishery 
to have an activated VMS (5 AAC 28.087(c)).
    Although the State adopts many of the management measures 
applicable to vessels participating in the Federal BSAI Pacific cod 
fisheries in the EEZ, the State does not require vessels that 
participate in the State's parallel Pacific cod fisheries to possess an 
FFP or an LLP license. Effective January 1, 2012, NMFS implemented 
regulations at Sec.  679.7 that prohibit federally permitted catcher/
processor pot and catcher/processor hook-and-line vessels from being 
used to catch and retain Pacific cod in state waters during the State's 
parallel fisheries unless the vessel is designated on an FFP and an LLP 
license that have the required endorsements (76 FR 73513, November 29, 
2011). Additionally, regulations at Sec.  679.7 require Federal permit 
holders who operate vessels in these two catcher/processor sectors to 
adhere to the Federal BSAI Pacific cod opening and closing periods when 
they participate in the State's parallel fisheries. At this time, 
vessels in other non-CDQ fishery sectors may participate in the State's 
Pacific cod parallel fisheries without having an FFP, an LLP license, 
and endorsements necessary to participate in the Federal fishery.
    As mentioned above, Pacific cod harvested during the State's 
parallel fisheries accrue toward the Federal Pacific cod TAC. The State 
closes a parallel Pacific cod fishery by gear sector when NMFS 
determines the TAC for a Federal fishery sector using that gear type 
has been reached or when incidental species allowances are met.
    Section 2.7 of the Analysis and the preamble to the proposed rule 
provide specific details on the number of vessels that have 
participated in the State's BSAI Pacific cod parallel fisheries, by 
vessel sector, over the 2010-2019 period. For all sectors combined, the 
total number of participating vessels in the BSAI Pacific cod parallel 
fisheries has ranged from 13 to 39 vessels per year. The proportion of 
Pacific cod that those vessels have caught in state waters during the 
concurrent BSAI Federal waters and State parallel fisheries varies by 
sector, but for all sectors combined has ranged from 2 percent to 5 
percent of their total BSAI Pacific cod catch over the 2010-2019 
period.

GHL Fisheries

    State GHL fisheries for Pacific cod are also prosecuted in state 
waters, but occur when fishing by specific Pacific cod sectors in the 
Federal and parallel fisheries is closed. The State currently manages 
GHL fisheries adjacent to both the BSAI subareas. The GHL fisheries may 
re-open and close as needed to coordinate with Federal fishery 
openings.
    The Alaska Board of Fisheries (BOF) established the Dutch Harbor 
Subdistrict (DHS) state waters Pacific cod GHL fishery in 2013 (5 AAC 
28.648). Pot and jig gear are the only legal gear types. In the 
Aleutian Islands Subdistrict GHL fishery (5 AAC 28.647), state 
regulations allow trawl, longline, pot, and jig gear vessels. More 
information on the GHL fisheries in the Dutch Harbor and Aleutian 
Islands Subdistricts can be found in section 2.6 of the Analysis and in 
the preamble to the proposed rule.

Need for this Action

    This final rule prohibits some federally permitted vessels from 
fishing for Pacific cod in the State of Alaska's parallel fisheries in 
the BSAI. Under current regulations, Federal FFPs and LLP licenses are 
only required for fishing activity in the EEZ. As a result, some 
vessels without an FFP or LLP license, and other vessels that have an 
FFP but with an LLP license that is not endorsed for Pacific cod 
fishing in the adjacent BSAI Federal waters, have participated in the 
State's parallel fisheries. Additionally, the State is legally 
constrained from allocating resources within a single fishery, and as a 
result does not recognize sector allocations based on operation types, 
such as catcher vessel versus catcher/processor designations. This 
circumstance has inadvertently allowed fishing in the State parallel 
fisheries by catcher vessels even when the Federal fishery sector for 
those vessels has fully achieved its Federal Pacific cod allocation. 
This has been most common among hook-and-line vessels. The Council 
determined, and NMFS agrees, that this fishing activity has negative 
effects on the Federal management regime for BSAI Pacific cod and must 
be curtailed to maintain the conservation and management benefits 
intended by the Council and implemented by NMFS.
    For example, the Federal Pacific cod seasons for the hook-and-line 
catcher/processor sector typically remain open to directed fishing for 
much of the year, whereas the seasons for hook-and-line catcher vessel 
sectors, which fish under much smaller allocations, normally close 
earlier in the year. Because the State does not recognize sector 
allocations based on operation types, the State parallel Pacific cod 
fishery remains open for much of the year, so long as the Federal 
catcher/processor hook-and-line season is open. Therefore, when the 
catcher vessel hook-and-line allocation has been achieved, and NMFS 
closes that sector's season in Federal waters, some of those vessels 
have continued to fish for Pacific cod in state waters. When this has 
occurred, NMFS has been obligated to reallocate Pacific cod from other 
sectors to prevent overharvest of the area TAC. The Council determined 
that this complicates Federal conservation and management measures that 
are intended to hold sectors to their allocations and it also 
undermines the intent of previous Council decisions regarding license 
limitation, sector allocations, and catch reporting.
    When evaluating these issues, the Council also considered the terms 
under

[[Page 78042]]

which FFPs are issued. Under current regulations, an FFP is issued in a 
three-year cycle, but within that period, a vessel operator can 
surrender the FFP at any time, then reapply for a reissuance of the 
permit any number of times within the three-year cycle. This would 
provide an opportunity for vessel operators to avoid the prohibitions 
in this rule. Lengthening the amount of time that must pass between the 
period when a person surrenders an FFP and later reapplies for a new 
FFP will create a disincentive for vessel owners to circumvent Federal 
regulations by temporarily surrendering the FFP. Similar concerns apply 
to FFP amendments.
    This final rule addresses these issues. The regulations in this 
final rule are similar to regulations implemented by NMFS in 2011 as 
part of Amendment 83 to the Fishery Management Plan for Groundfish of 
the Gulf of Alaska (76 FR 74670, December 1, 2011), and are also 
similar to regulations that apply to pot and hook-and-line catcher/
processors in the BSAI (76 FR 73513, November 29, 2011).

Description of the Final Rule and Effects

FFP Requirements and LLP License

    This rule prohibits a trawl, hook-and-line, or pot gear vessel that 
is named on an FFP or LLP license to catch and retain BSAI Pacific cod 
in state waters during the State's parallel Pacific cod fisheries 
unless the vessel is named on an FFP and LLP license that have the 
required endorsements. In addition, this rule prohibits a federally 
permitted hook-and-line, pot, or trawl gear vessel from catching and 
retaining BSAI Pacific cod in state waters during the State's parallel 
fisheries when NMFS has closed the corresponding sector to directed 
Pacific cod fishing in the EEZ. Through this permit condition, 
federally permitted vessels will be required to adhere to Federal 
seasonal Pacific cod closures and other management measures for their 
fishery sector when participating in the State's parallel fisheries.
    Additionally, the regulations implemented by this final rule limit 
the number of times in which a vessel owner may relinquish an FFP and 
then reapply for a new FFP. Specifically, if an FFP is issued to a pot 
or hook-and-line catcher vessel with a Bering Sea or Aleutian Islands 
Pacific cod endorsement, or to a trawl vessel with a Bering Sea or 
Aleutian Islands endorsement, and if the FFP for the vessel is 
surrendered, then the vessel will not be eligible to receive a new FFP 
until after the expiration date of the surrendered FFP.
    As noted above, the Council's intent for the regulatory amendments 
in this rule is to expand upon rules already in place for BSAI catcher/
processor vessels that fish for Pacific cod with pot or hook-and-line 
gear. Federal regulations currently require these two catcher/processor 
sectors to have an FFP and LLP license with correct Federal Pacific cod 
endorsements in order to fish in the parallel fisheries (76 FR 73513, 
November 29, 2011). The two Pacific cod catcher/processor sectors are 
also subject to the FFP relinquish and reapply rules mentioned above.
    The regulations in this final rule reflect the Council's intent and 
do not modify the regulatory requirements for vessels using jig gear in 
the BSAI. Additionally, this rule does not limit participation in the 
state waters GHL fisheries.
    Section 2.7.6 of the Analysis and the Final Regulatory Flexibility 
Analysis (FRFA) below provide details on the number and type of vessels 
that may potentially be affected by the regulations in this rule.

Amending, Surrendering, and Reissuing an FFP

    The regulations established in this rule also prohibit amendment of 
an FFP during its effective period and create a disincentive for a 
vessel operator to surrender, or relinquish, their FFP during its 
effective period. Under current regulations, an FFP holder could avoid 
vessel observer coverage, catch reporting, and FFP and LLP requirements 
by amending or surrendering their FFP to fish in the State's Pacific 
cod parallel fishery, and then requesting that NMFS amend or reissue 
the FFP so that the vessel can be used to resume fishing in the EEZ. 
Amending or surrendering an FFP in this fashion may degrade the quality 
of information available to NMFS to manage the Pacific cod fishery and 
provide an opportunity to undermine the intent of this rule. As noted 
above, FFPs are currently issued on a three-year cycle; however, a 
vessel operator with an FFP can amend or surrender the permit at any 
time and have the FFP reissued any number of times within the three-
year cycle. Prohibiting an amendment of an issued FFP during the three-
year cycle and lengthening the amount of time that must pass before a 
person can reapply for a surrendered FFP makes it more difficult for 
FFP holders to circumvent the regulations by temporarily amending or 
surrendering the FFP. The regulatory provisions in this final rule for 
FFPs will address situations where a vessel owner could choose to amend 
or surrender the FFP before fishing in the State parallel or GHL 
fisheries to avoid NMFS observer coverage or recordkeeping and 
reporting requirements, and then seek to amend or reissue the FFP for 
the opening of the Federal waters fishery.

Final Regulations

    This final rule amends paragraphs (b)(3)(ii)(B) and (b)(3)(iii)(B) 
in 50 CFR 679.4 by expanding the scope of the applicable FFP vessel 
operation types to include both catcher/processors and catcher vessels. 
The revisions also specify that the applicable FFP gear types include 
trawl, pot, and hook-and-line gears. Note this final rule explicitly 
excludes vessels using jig gear from these regulatory actions.
    This final rule amends paragraphs (c)(3) and (4) in 50 CFR 679.7 to 
expand the scope of vessels that are prohibited from participating in 
the BSAI parallel fisheries without properly endorsed LLP licenses. The 
former regulations that restrict fishing in the Pacific cod parallel 
fisheries applied only to catcher/processor vessels fishing pot or 
hook-and-line gear in the parallel waters of the BSAI. This action 
changes the regulations to identify both catcher/processor and catcher 
vessel operation types, and to include vessels using trawl, pot, and 
hook-and-line gear types in the regulations.
    Modifying the regulations currently at Sec.  679.7(c)(4)(i) to 
include trawl, pot, and hook-and-line gear types provides an 
opportunity to simplify the regulations by deleting paragraph 
(c)(4)(ii) in Sec.  679.7.
    Lastly, this final rule amends paragraph (b)(3)(i) in 50 CFR 679.4 
to specifically reference the three-year cycle NMFS uses for issuing 
FFPs. Regulations at Sec.  679.4(b) govern issuance of FFPs, and for 
many years specifically referenced the three-year cycle followed by 
NMFS for issuing FFPs. NMFS proposed to maintain the three-year cycle 
when it published a proposed rule to modify recordkeeping and reporting 
regulations in 2007 (72 FR 35747; June 29, 2007). However, the specific 
reference to the three-year cycle was inadvertently omitted in the 
supplemental proposed rule (73 FR 55368; September 24, 2008) and not 
included in the final rule for that action (73 FR 76136; December 15, 
2008). NMFS has continued to use a three-year cycle for issuing FFPs 
and this final rule will reinsert the specific reference to this cycle.

[[Page 78043]]

Changes From Proposed to Final Rule

    NMFS did not make any substantive changes to the regulatory text in 
this final rule from the regulatory text in the proposed rule.

Comments and Responses

    NMFS received and considered four unique, relevant comment letters 
on the proposed rule. All public comment letters submitted during the 
comment period may be obtained from www.regulations.gov. Three of the 
letters expressed support for the proposed regulations, and one letter 
did not support the proposed rule. None of the individual commenters 
identified themselves as direct participants in the BSAI Pacific cod 
fisheries. All three letters that supported the proposed rule were 
submitted anonymously, and NMFS cannot determine whether they were 
submitted by separate individuals. The letters and comments are 
grouped, summarized, and responded to below.
    Comment 1: The three comment letters that supported the proposed 
regulations each expressed the importance of avoiding overfishing. The 
letters mentioned the conservation and management benefits of enhancing 
proper catch accounting in the fisheries. Two of the comment letters 
recognized that Pacific cod in the BSAI are not overfished.
    Response: NMFS acknowledges these comments, and reiterates the 
benefits of this rule, which are to enhance the management of the 
Pacific cod fisheries and to reflect the intent of the Council 
regarding license limitation, vessel sector allocations of Pacific cod, 
and proper catch reporting. NMFS agrees that Pacific cod in the BSAI 
are currently not overfished.
    Comment 2: Two of the three supporting letters suggested the new 
regulations would assist NMFS by making it easier to discipline or 
punish persons who exceed the Pacific cod TAC.
    Response: NMFS agrees that keeping harvests within TAC limits is an 
essential element of effective management; however, the record that 
supports this final rule does not reflect concerns with the agency's 
current enforcement of overharvest limits or deterrence of regulatory 
violations.
    Comment 3: One comment did not support the proposed rule, and 
briefly expressed it would not be beneficial to American citizens or to 
the fish.
    Response: NMFS has determined that the final rule is consistent 
with the BSAI FMP, the MSA, and other applicable law and disagrees with 
the premise of the comment. Regulations similar to those adopted under 
this final rule have been in place since 2011 for the parallel Pacific 
cod fisheries in the Gulf of Alaska and for catcher/processor vessels 
that harvest Pacific cod in the BSAI. In each of these cases, the 
regulations have proven to be effective by enhancing the management of 
the fisheries. The regulations in this rule reflect the Council's and 
NMFS's intent to adopt similar regulations for Pacific cod catcher 
vessel operations in the BSAI.

Classification

    Pursuant to Section 304(b)(3) of the MSA, the NMFS Assistant 
Administrator has determined that this final rule is consistent with 
the BSAI FMP, other provisions of the MSA, and other applicable law.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This final rule is not an Executive Order 13771 regulatory action 
because this rule is not significant under Executive Order 12866.

Regulatory Impact Review

    An RIR was prepared to assess the costs and benefits of available 
regulatory alternatives. A copy of this analysis is available from NMFS 
(see ADDRESSES). NMFS has adopted the action alternative over the 
former status quo, and makes regulatory revisions in this final rule 
based on those measures that maximized net benefits to the Nation. 
Specific aspects of the economic analysis are discussed below in the 
Final Regulatory Flexibility Analysis (FRFA) section. More information 
is provided in the Analysis, as well as in the preamble to this rule 
and in the preamble to the proposed rule.

Final Regulatory Flexibility Analysis (FRFA)

    A final regulatory flexibility analysis (FRFA) was prepared in this 
final rule. This FRFA incorporates the initial regulatory flexibility 
analysis (IRFA).
    Section 604 of the Regulatory Flexibility Act (RFA) (5 U.S.C. 604) 
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 IRFA, a statement of the assessment 
of the agency of such issues, and a statement of any changes made to 
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 
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 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 that 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 this 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.
    A description of this rule, along with the need for and objectives 
of the rule, are contained in the preamble herein and in the preamble 
to the proposed rule (85 FR 58322, September 18, 2020), and are not 
repeated here.
Public and Chief Counsel for Advocacy Comments on the IRFA
    NMFS published the proposed rule on September 18, 2020 (85 FR 
58322). An IRFA was prepared and included in the Classification section 
of the preamble to the proposed rule. The comment period on the 
proposed rule ended on October 19, 2020. None of the comments from the 
public directly or indirectly referenced the IRFA. The Chief Counsel 
for Advocacy of the SBA did not file any comments on the proposed rule.
Number and Description of Small Entities Regulated by This Final Rule
    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 11411) 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

[[Page 78044]]

of $11 million for all its affiliated operations worldwide.
    This final rule directly regulates individuals and entities that 
participate, or would seek to participate, in the BSAI Pacific cod 
parallel fisheries with federally permitted vessels using trawl, hook-
and-line, or pot gear. The Analysis indicates that 192 vessels have a 
history of participation in the BSAI targeted Pacific cod fisheries 
over the 2010-2019 period. Based upon the estimated ex-vessel earnings 
of these vessels, the Analysis also indicates that 71 of these vessels 
are considered small entities. Of the 30 vessels that are expected to 
be directly impacted by the regulations in this rule, 29 are considered 
small entities, based on SBA criteria.
    This rule, which prohibits certain federally permitted vessels from 
catching and retaining Pacific cod in the State's parallel fishery 
unless the vessel has the required permits, licenses, and endorsements, 
is intended to reflect the intent of previous recommendations by the 
Council regarding license limitation, vessel sector allocations of 
Pacific cod, and catch reporting. Additionally, this rule is expected 
to enhance the conservation and management of the fisheries by holding 
vessel sectors to their allocations and to promote the goals and 
objectives of the BSAI FMP for the Federal Pacific cod fishery. In 
2011, NMFS implemented provisions similar to this final rule as part of 
Amendment 83 to the Fishery Management Plan for Groundfish of the Gulf 
of Alaska. Regulations established by this final rule are also very 
similar to current regulations that control the participation of 
catcher/processor hook-and-line and pot gear vessels in the BSAI; the 
regulations in this rule effectively add BSAI hook-and-line catcher 
vessels, pot catcher vessels, and trawl gear vessels to the existing 
body of BSAI fishing regulations.
    The majority of the 30 vessel owners who are directly impacted by 
this rule currently have LLP licenses that allow them to participate in 
the parallel fisheries. Five of the 30 vessels currently do not have 
FFPs, which prevents them from fishing in Federal waters. Under this 
final rule, these vessels could continue to fish as they do now, solely 
in state waters. However, if the vessel owners choose to obtain an FFP, 
their vessels would have the flexibility to fish in both state and 
Federal waters during the directed Federal Pacific cod fishery for 
their sector. Also among the 30 directly impacted vessels, 15 other 
vessels are currently associated with FFPs and are linked to LLP 
licenses that allow them to continue to fish for Pacific cod in both 
Federal and state waters during the concurrent Federal and parallel 
fisheries; however, in previous years, an incremental portion of their 
participation has occurred in the parallel fishery when their sector 
was closed to fishing in Federal waters. Under this final rule, these 
vessels will no longer be able to circumvent seasonal closures for 
their sector by participating in the parallel fishery after their 
Federal sector has been closed. This ensures that their Pacific cod 
harvests will be attributed to the appropriate sector, as designated on 
their LLP license.
    Vessel owners most likely to be impacted by this final rule are 
those whose vessels have an FFP and participate in the parallel 
fishery, but who do not have the appropriate LLP license to fish for 
Pacific cod in the BSAI Federal waters. These vessels could either exit 
the parallel fishery and therefore the BSAI Pacific cod fishery 
entirely, or they could forfeit their FFP (and therefore fish solely in 
state waters, but also forfeit Federal fishing opportunities associated 
with their FFP), or they could obtain a valid LLP license that would 
allow them the flexibility to participate in both the Federal and 
parallel Pacific cod fisheries. Because LLP licenses are a transferable 
and marketable asset, the owners' decisions will likely be influenced 
by the cost and availability of an LLP license.
Recordkeeping, Reporting, and other Compliance Requirements
    Under this final rule, recordkeeping and reporting will not change 
for federally permitted catcher vessels that participate in the 
directed BSAI non-CDQ Pacific cod fisheries. The scope of this final 
rule modifies the conditions of Federal permits and imposes 
participation requirements for certain federally permitted vessels when 
fishing for Pacific cod in the parallel fisheries. This action also 
modifies the conditions under which existing permits may be used. Those 
specific requirements and the permit conditions are described in the 
preambles to this rule and to the proposed rule, and are not repeated 
here.
Duplicate, Overlapping, or Conflicting Federal Rules
    No duplication, overlap, or conflict between this final rule and 
existing Federal rules has been identified.
    Description of Significant Alternatives Considered to the Final 
Action That Minimize Adverse Impacts on Small Entities
    The Council and NMFS considered two alternatives. Among the two 
alternatives, Alternative 2 (the preferred, action alternative) 
promotes conservation, management, and catch accounting measures that 
were previously adopted by the North Pacific Fishery Management Council 
(Council) regarding license limitation, sector allocations, and catch 
reporting. As noted in the preamble to this rule, the Council's intent 
for the regulatory amendments of Alternative 2 is to expand upon rules 
already in place for BSAI catcher/processor vessels that fish for 
Pacific cod with pot or hook-and-line gear. Federal regulations 
currently require these two catcher/processor sectors to have an FFP 
and LLP license with correct Federal Pacific cod endorsements in order 
to fish in the parallel fisheries (76 FR 73513, November 29, 2011). 
These two Pacific cod catcher/processor sectors are also subject to the 
FFP relinquish and reapply rules implemented by this rule.
    Alternative 1 was the no action alternative. Under the status quo, 
the regulations inadvertently allow fishing in the State parallel 
fisheries by catcher vessels even when the Federal fishery sector for 
those vessels has fully achieved its Federal Pacific cod allocation, 
which is contrary to the Council's intent.
    The regulations in this final rule do not modify the regulatory 
requirements for vessels using jig gear in the BSAI. Additionally, this 
rule does not limit participation in the state waters GHL fisheries.
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 agency shall 
explain the actions a small entity is required to take to comply with a 
rule or group of rules. NMFS will publish on its website a summary of 
this rulemaking including compliance requirements that will serve as 
the small entity compliance guide. Copies of the proposed rule and this 
final rule are available from the NMFS website at https://
fisheries.noaa.gov/region/alaska.

Collection-of-Information Requirements

    This final rule does not contain a change to a collection of 
information requirement for purposes of the Paperwork Reduction Act of 
1995. The existing collection of information

[[Page 78045]]

requirements would continue to apply under the following OMB Control 
Numbers: 0648-0206, Alaska Region Permit Family of Forms (FFP), and 
0648-0334, Alaska License Limitation Program for Groundfish, Crab, and 
Scallops.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Reporting and recordkeeping requirements.

    Dated: November 25, 2020.
Samuel D. Rauch, III
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, NMFS amends 50 CFR part 
679 as follows:

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

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

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

0
2. In Sec.  679.4, revise paragraphs (b)(3)(i), (b)(3)(ii)(B), and 
(b)(3)(iii)(B) to read as follows:


Sec.  679.4   Permits.

* * * * *
    (b) * * *
    (3) * * * (i) Length of permit effectiveness. NMFS issues FFPs on a 
three-year cycle and an FFP is in effect from the effective date 
through the expiration date, as indicated on the FFP, unless the FFP is 
revoked, suspended, surrendered in accordance with paragraph (a)(9) of 
this section, or modified under Sec.  600.735 or Sec.  600.740 of this 
chapter.
    (ii) * * *
    (B) For the BSAI, NMFS will not reissue a surrendered FFP to the 
owner or authorized representative of a vessel named on an FFP that has 
been issued with endorsements for catcher/processor or catcher vessel 
operation type; trawl, pot, and/or hook-and-line gear type; and the 
BSAI area, until after the expiration date of the surrendered FFP as 
initially issued.
* * * * *
    (iii) * * *
    (B) In the BSAI, NMFS will not approve an application to amend an 
FFP to remove a catcher/processor or catcher vessel operation type 
endorsement, trawl gear type endorsement, pot gear type endorsement, 
hook-and-line gear type endorsement, or BSAI area endorsement from an 
FFP that has been issued with endorsements for catcher/processor or 
catcher vessel operation type, trawl, pot, or hook-and-line gear type, 
and the BSAI area.
* * * * *

0
3. In Sec.  679.7, revise paragraphs (c)(3) and (4) to read as follows:


Sec.  679.7   Prohibitions.

* * * * *
    (c) * * *
    (3) Parallel Pacific cod fisheries--participation requirements. Use 
a vessel named or required to be named on an FFP to catch and retain 
Pacific cod from State of Alaska waters adjacent to the BSAI, when 
Pacific cod caught by that vessel is deducted from the Federal TAC 
specified under Sec.  679.20(a)(7)(ii)(A)(2) through (9), unless:
    (i) That non-trawl vessel is designated on both:
    (A) An LLP license issued under Sec.  679.4(k), unless that vessel 
is using jig gear and exempt from the LLP license requirement under 
Sec.  679.4(k)(2)(iii). Each vessel required to have an LLP license 
must be designated with the following endorsements:
    (1) The BSAI area endorsement for the BSAI area adjacent to the 
parallel fishery where the harvest occurred; and
    (2) A BSAI catcher/processor Pacific cod hook-and-line endorsement, 
a BSAI catcher/processor Pacific cod pot endorsement, or a BSAI Pacific 
cod catcher vessel endorsement if that catcher vessel is 60 feet or 
greater length overall; and
    (B) An FFP issued under Sec.  679.4(b) with the following 
endorsements:
    (1) A catcher/processor or catcher vessel operation type 
endorsement;
    (2) A BSAI area endorsement; and
    (3) A pot or hook-and-line gear type endorsement.
    (ii) Or, that trawl vessel is designated on both:
    (A) An LLP license issued under Sec.  679.4(k) endorsed for trawl 
gear with the BSAI area endorsement for the BSAI area adjacent to the 
parallel fishery where the harvest occurred; and
    (B) An FFP issued under Sec.  679.4(b) with the following 
endorsements:
    (1) The BSAI area endorsement;
    (2) An operational type endorsement;
    (3) A trawl gear type endorsement; and
    (4) A Pacific cod gear type endorsement.
    (4) Parallel Pacific cod fisheries--closures. Use a vessel named or 
required to be named on an FFP to catch and retain Pacific cod with 
trawl, pot, or hook-and-line gear from State of Alaska waters adjacent 
to the BSAI when Pacific cod caught by that vessel is deducted from the 
Federal TAC specified under Sec.  679.20(a)(7)(ii)(A) for trawl, pot, 
or hook-and-line gear, if directed fishing for Pacific cod is not open 
for the sector to which the vessel belongs in Federal waters.
* * * * *
[FR Doc. 2020-26593 Filed 12-2-20; 8:45 am]
BILLING CODE 3510-22-P