Groundfish of the Gulf of Alaska; Groundfish Fishery of the Bering Sea and Aleutian Islands Area

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 672 and 675

[Docket No. 940413-4199; I.D. 032394C]

RIN 0648-AG59

Groundfish of the Gulf of Alaska; Groundfish Fishery of the

Bering Sea and Aleutian Islands Area

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule; final 1994 specification of Pacific halibut bycatch

allowances.

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SUMMARY: NMFS implements regulations for several management measures to

prevent certain Gulf of Alaska (GOA) trawl fisheries from taking an

unnecessarily large share of the GOA halibut bycatch limit; amend the

directed fishing standards to prohibit using retained amounts of

arrowtooth flounder, or groundfish species that are closed to directed

fishing, as a basis for calculating retainable amounts of other, more

valuable groundfish species that are closed to directed fishing; change

the opening date of the yellowfin sole and ``other flatfish'' fisheries

in the Bering Sea and Aleutian Islands management area (BSAI) from May

1 to January 1; and implement changes pertaining to the annual

specification and management of GOA halibut prohibited species catch

(PSC) limits. This action is necessary to reduce the likelihood that

one sector of the Alaska trawl fleet will preempt others for a share of

the Pacific halibut bycatch limit established for vessels using trawl

gear in the GOA, and provide greater opportunity to harvest available

groundfish under halibut bycatch restrictions in both the GOA and BSAI

fisheries. This action is intended to further the objectives of the

fishery management plans for the groundfish fisheries off Alaska.

EFFECTIVE DATE: August 9, 1994.

ADDRESSES: Individual copies of the environmental assessment/regulatory

impact review (EA/RIR) prepared for this action may be obtained from

the Fisheries Management Division, Alaska Region, NMFS, P.O. Box 21668,

Juneau, AK 99802-1668.

FOR FURTHER INFORMATION CONTACT: Kaja Brix, 907-586-7228.

SUPPLEMENTARY INFORMATION:

Background

The domestic groundfish fisheries in the exclusive economic zone

(EEZ) of the GOA and the BSAI are managed by the Secretary of Commerce

in accordance with the Fishery Management Plan (FMP) for Groundfish of

the GOA and the FMP for the Groundfish Fishery of the BSAI. The FMPs

were prepared by the North Pacific Fishery Management Council (Council)

under the Magnuson Fishery Conservation and Management Act (Magnuson

Act). Regulations authorized under the FMP that pertain to the U.S.

groundfish fisheries appear at 50 CFR parts 672 and 675.

Existing regulations provide a framework process for the annual

specification of GOA halibut PSC limits for trawl and fixed gear

fisheries and for apportioning these limits by season. Although these

regulations limit the bycatch of Pacific halibut in the GOA groundfish

trawl fisheries, they have resulted in conflict among and preemption of

groundfish trawling operations in the GOA as different trawl fishery

components compete for shares of the available halibut PSC limit. This

results in the attainment of the halibut bycatch cap before some

groundfish Total Allowable Catch (TAC) limits have been taken, causing

a closure of trawling operations in the GOA, even though the full

groundfish harvest amount has not been taken in some fisheries.

This rule implements the following three measures to address the

preemption of one trawl fishery sector by another.

1. Establish two GOA trawl fishery categories for the purpose of

apportioning the GOA halibut bycatch limit already established for the

trawl gear fisheries (Sec. 672.20 (f)). These two categories are the

following: (1) The shallow-water fishery complex (pollock, Pacific cod,

Atka mackerel, shallow-water flatfish, flathead sole, and ``other

species''); and (2) the deep-water fishery complex (the deep-water

flatfish, rex sole, arrowtooth flounder, sablefish, and rockfish).

2. Revise the method for calculating retainable amounts of

groundfish species under directed fishing standards (Sec. 672.20(h) and

Sec. 675.20(i)). Revised methods prohibit using retained amounts of

arrowtooth flounder, or groundfish species that are closed to directed

fishing, as a basis for calculating retainable amounts of other, more

valuable groundfish species that are closed to directed fishing.

3. Adjust the opening date for the BSAI yellowfin sole and ``other

flatfish'' fisheries from May 1 to January 1. As a result of this

season adjustment, directed fishing standards governing retainable

amounts of flatfish species at Sec. 675.20(h)(2) also are revised.

This final rule also implements editorial changes to regulatory

language pertaining to the annual specification and management of GOA

halibut PSC limits. In addition, NMFS apportions the 1994 GOA halibut

trawl PSC limit among fisheries and seasons as set out below:

Apportionment of the 2,000 Metric Ton (MT) Halibut Bycatch Mortality

Limit Established for the 1994 GOA Trawl Fisheries Among the Shallow-

and Deep-water Trawl Fishery Complexes and Seasons

[Seasons open and close at 12 noon, Alaska local time (A.l.t.), except

that the last season ends at 12 midnight, A.l.t., December 31.]

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

Shallow Deep

Season complex complex Total

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

Jan. 20-Mar. 31........................ 500 100 600

Mar. 31-Jun. 30........................ 100 300 400

Jun. 30-Sep. 30........................ 200 400 600

Sep. 30-Dec. 31........................ (\1\) (\1\) 400

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

\1\No apportionment.

An emergency rule implementing these measures was published on

February 10, 1994 (59 FR 6222), under section 305(c) of the Magnuson

Act. At its April 1994 meeting the Council voted to extend the

emergency rule for another 90 days (59 FR 24965, May 13, 1994). A

proposed rule to implement these measures was published in the Federal

Register on May 4, 1994 (59 FR 23044). A complete description of, and

justification for, the management measures, including editorial changes

to regulations addressing GOA halibut bycatch amounts, was discussed in

the preamble to the proposed rule. Additional information also is

available in the EA/RIR (see ADDRESSES).

Public comment on the proposed rule was invited through May 31,

1994. One letter of comments was received within the comment period and

is summarized and responded to below in the Response to Comments

section.

Response to Comments

Comment 1: Splitting the halibut bycatch limit between the shallow-

water fishery complex and the deep-water fishery complex splits the

limit between a well-observed fleet with 100-percent observer coverage

(mainly in the deep-water fisheries) and a poorly observed fleet with

30-percent observer coverage (mainly in the shallow-water fisheries).

Because the 30-percent boats have greater latitude to take an observer,

the bycatch data collected for the shallow-water fisheries would be

biased and, therefore, less accurate than the data collected for the

deep-water fisheries, thus jeopardizing the management of the halibut

bycatch limits. This action would degrade the scientific basis for

halibut bycatch management and is contrary to national standard 2.

Response: Consistent with national standard 2, NMFS continues to

monitor the groundfish fishery using the best information available.

Opportunities do exist in the 30-percent observer coverage fleet for

vessel operators to manipulate observer coverage to reduce or increase

coverage in different fisheries. However, NMFS has taken measures to

increase observer coverage in the groundfish fleet to improve the

accuracy of catch monitoring. A recent amendment to the Observer Plan

(59 FR 22133, April 29, 1994) changed observer coverage requirements

for vessels required to obtain 30-percent observer coverage. The

amendment to the Observer Plan limits the manipulation of observer

coverage by requiring vessels to carry an observer during at least 30

percent of their fishing days in each calendar quarter in which the

vessels participate for more than 3 fishing days in a directed fishery

for groundfish. These vessels are also required to have an observer on

board the vessel during one trip in each fishery, as defined in the

Observer Plan amendment, in which they participate. These measures

should reduce the potential for manipulation of observer coverage and

increase the amount of observer data available for the management of

the specific fisheries.

Comment 2: Processors are not required to report harvests such that

NMFS can reasonably attribute shoreside catch to a given target with

its appropriate bycatch. Currently, one target species is assigned per

week, even though vessels delivering to a plant may have targeted

several different species. This system cannot be used to monitor

scientifically a separate shallow-water fisheries halibut bycatch limit

and is inconsistent with national standard 2.

Response: For purposes of attributing halibut bycatch, NMFS assigns

a target fishery based on maximum retained amounts (except midwater

pollock, for which pollock must comprise 95 percent or more of the

total catch) and estimates halibut bycatch for each unique combination

of processor, gear type, and reporting area, on a weekly basis. Halibut

bycatch is attributed to one of the two fishery categories for which a

trawl halibut bycatch allowance is made. Bycatch from the bottom

pollock, Pacific cod, shallow-water flatfish, flathead sole, Atka

mackerel, or ``other species'' fisheries is attributed to the shallow-

water species complex. Bycatch from the sablefish, rockfish, deep-water

flatfish, and arrowtooth flounder fisheries is attributed to the deep-

water species complex. NMFS does not have the ability to assign target

fisheries based on vessel hauls or individual vessel deliveries. Given

this procedure, NMFS does monitor bycatch consistent with the intent of

the regulations and based on the best available scientific information.

Comment 3: The NMFS Alaska Fisheries Science Center should review

this rule and concur that it will provide the best available scientific

data to monitor the halibut bycatch limit.

Response: Regulations that are drafted by the NMFS Alaska Regional

Office are developed in consultation with the Alaska Fisheries Science

Center.

Changes in the Final Rule From the Proposed Rule

This final rule includes one editorial change in

Sec. 672.20(f)(3)(i) to clarify an inconsistency with respect to

paragraph (f)(1)(iv) of the same section. Section (f)(1)(iv) provides

the authority to establish a separate halibut PSC allowance by

regulatory area and district; however, Sec. 672.20(f)(3)(i) does not

provide the authority for closures based on regulatory area or district

once an allowance is reached. Language has been added to paragraph

Sec. 672.20(f)(3)(i) to indicate that, upon attainment of a bycatch

allowance for the entire Gulf of Alaska or the applicable regulatory

area or district, a closure would be made.

Upon reviewing the reasons for, and the comments on, this action,

NMFS has determined that this rule is necessary for fishery

conservation and management.

Classification

The General Counsel of the Department of Commerce certified to the

Small Business Administration that this rule, if adopted, would not

have a significant economic impact on a substantial number of small

entities. The reasons were published in the preamble to the proposed

rule (59 FR 24965, May 5, 1994). As a result, a regulatory flexibility

analysis was not prepared. NMFS prepared an analysis of the economic

impact on small entities as part of the EA/RIR. A copy of the EA/RIR is

available from NMFS (see ADDRESSES).

This final rule has been determined to be not significant for

purposes of E.O. 12866.

NMFS has determined that delaying the effectiveness of this final

rule for the entire 30 days under the Administrative Procedure Act, 5

U.S.C. 552(d), is contrary to the public interest in orderly conduct of

the fisheries in the EEZ. This rule supersedes the original emergency

rule implementing these measures which expires August 9, 1994. The

fishery has been operating under the emergency rule with a benefit to

the fishery. To avoid an interruption in the fishery as it is currently

being conducted under the emergency rule, NMFS is waiving a portion of

the 30-day delayed effectiveness period for this rule to correspond

with the expiration of the emergency rule.

List of Subjects in 50 CFR Parts 672 and 675

Fisheries, Reporting and recordkeeping requirements.

Dated: July 21, 1994.

Henry R. Beasley,

Acting Program Management Officer, National Marine Fisheries Service.

For the reasons set out in the preamble, 50 CFR parts 672 and 675

are amended as follows:

PART 672--GROUNDFISH FISHERY OF THE GULF OF ALASKA

1. The authority citation for part 672 continues to read as

follows:

Authority: 16 U.S.C. 1801 et seq.

2. In Sec. 672.20, paragraphs (f) and (h)(1) are revised to read as

follows:

Sec. 672.20 General limitations.

* * * * *

(f) Halibut PSC limits. (1) Notification of proposed halibut PSC

limits. NMFS will publish annually in the Federal Register proposed and

final halibut PSC limits and apportionments thereof authorized under

this paragraph (f), in the notification required under paragraph (c) of

this section. Public comment will be accepted by NMFS on the proposed

halibut PSC limits, and apportionments thereof, for a period of 30 days

after publication in the Federal Register. NMFS will consider comments

received on proposed halibut limits and, after consultation with the

Council, will publish notification in the Federal Register specifying

the final halibut PSC limits and apportionments thereof.

(i) Trawl gear fisheries. (A) After consultation with the Council,

NMFS will publish notification in the Federal Register specifying the

proposed halibut PSC limit for vessels using trawl gear. The halibut

PSC limit specified for vessels using trawl gear may be further

apportioned as bycatch allowances to the fishery categories listed in

paragraph (f)(1)(i)(B) of this section, based on each category's

proportional share of the anticipated halibut bycatch mortality during

a fishing year and the need to optimize the amount of total groundfish

harvest under the halibut PSC limit. The sum of all bycatch allowances

will equal the halibut PSC limit established under this paragraph

(f)(1)(i).

(B) For purposes of apportioning the trawl halibut PSC limit among

fisheries, the following fishery categories are specified and defined

in terms of round-weight equivalents of those groundfish species for

which a TAC has been specified under paragraphs (a) and (c) of this

section:

(1) Shallow-water species fishery. Fishing with trawl gear during

any weekly reporting period that results in a retained aggregate catch

of pollock, Pacific cod, shallow-water flatfish, flathead sole, Atka

mackerel, and ``other species'' that is greater than the retained

aggregate amount of other groundfish species or species group.

(2) Deep-water species fishery. Fishing with trawl gear during any

weekly reporting period that results in a retained catch of groundfish

and is not a shallow-water species fishery as defined under paragraph

(f)(1)(i)(B)(1) of this section.

(ii) Hook-and-line and pot gear fisheries. After consultation with

the Council, NMFS will publish notification in the Federal Register

specifying the proposed halibut PSC limits for the hook-and-line gear

fisheries. The notification also may specify a halibut PSC limit for

the pot gear fisheries. The proposed halibut PSC limit for hook-and-

line gear fisheries may be further apportioned, as bycatch allowances,

to the directed fishery for demersal shelf rockfish in the Southeast

Outside District of the Eastern Regulatory Area and to all other hook-

and-line gear fisheries.

(iii) Seasonal apportionments. (A) NMFS, after consultation with

the Council, may apportion each halibut PSC limit or bycatch allowance

specified under this paragraph (f) on a seasonal basis. NMFS will base

any seasonal apportionment of a halibut PSC limit or bycatch allowance

on the following types of information:

(1) Seasonal distribution of halibut;

(2) Seasonal distribution of target groundfish species relative to

halibut distribution;

(3) Expected halibut bycatch needs, on a seasonal basis, relative

to changes in halibut biomass and expected catches of target groundfish

species;

(4) Expected variations in bycatch rates throughout the fishing

year;

(5) Expected changes in directed groundfish fishing seasons;

(6) Expected start of fishing effort; and

(7) Economic effects of establishing seasonal halibut allocations

on segments of the target groundfish industry.

(B) Unused seasonal apportionments of halibut PSC limits specified

for trawl, hook-and-line, or pot gear will be added to the respective

seasonal apportionment for the next season during a current fishing

year.

(C) If a seasonal apportionment of a halibut PSC limit specified

for trawl, hook-and-line, or pot gear is exceeded, the amount by which

the seasonal apportionment is exceeded will be deducted from the

respective apportionment for the next season during a current fishing

year.

(iv) Apportionment among regulatory areas and districts. Each

halibut PSC limit specified under this paragraph (f) also may be

apportioned among the regulatory areas and districts of the Gulf of

Alaska.

(2) NMFS, by notification in the Federal Register, may change the

halibut PSC limits during the year for which they were specified, based

on new information of the types set forth in paragraph (f)(1) of this

section.

(3) Attainment of a halibut PSC limit or bycatch allowance.

(i) Trawl gear fisheries. If, during the fishing year, the Regional

Director determines that U.S. fishing vessels participating in either

of the trawl fishery categories listed in paragraph (f)(1)(i)(B) of

this section will catch the Pacific halibut bycatch allowance, or

apportionments thereof, specified for that fishery category under

paragraph (f)(1) of this section, NMFS will publish notification in the

Federal Register closing the entire Gulf of Alaska or the applicable

regulatory area or district to directed fishing with trawl gear for

each species and/or species group that comprises that fishing category;

provided, however, that when the halibut bycatch allowance, or seasonal

apportionment thereof, specified for the shallow-water species fishery

is reached, fishing for pollock by vessels using pelagic trawl gear may

continue, consistent with other provisions of this part.

(ii) Hook-and-line fisheries. (A) Groundfish other than demersal

shelf rockfish in the Southeast Outside District. If, during the year,

the Regional Director determines that the catch of halibut by operators

of vessels using hook-and-line gear in groundfish fisheries other than

the directed fishery for demersal shelf rockfish in the Southeast

Outside District will reach the halibut bycatch allowance, or seasonal

apportionment thereof, specified for hook-and-line gear under paragraph

(f)(1) of this section, NMFS will publish notification in the Federal

Register prohibiting directed fishing for groundfish, other than

demersal shelf rockfish in the Southeast Outside District, by vessels

using hook-and-line gear for the remainder of the season to which the

halibut bycatch allowance or seasonal apportionment thereof applies.

(B) Demersal shelf rockfish in the Southeast Outside District. If,

during the year, the Regional Director determines that the catch of

halibut by operators of vessels using hook-and-line gear in the

directed fishery for demersal shelf rockfish in the Southeast Outside

District will reach the halibut bycatch allowance, or seasonal

apportionment thereof, specified for this fishery under paragraph

(f)(1) of this section, NMFS will publish notification in the Federal

Register prohibiting directed fishing for demersal shelf rockfish in

the Southeast Outside District by vessels using hook-and-line gear for

the remainder of the season to which the halibut bycatch allowance or

seasonal apportionment thereof applies.

(iii) Pot gear fisheries. If, during the fishing year, the Regional

Director determines that the catch of halibut by operators of vessels

using pot gear to participate in a directed fishery for groundfish will

reach the halibut PSC limit, or seasonal apportionment thereof,

provided for under paragraph (f)(1) of this section, NMFS will publish

notification in the Federal Register prohibiting directed fishing for

groundfish by vessels using pot gear for the remainder of the season to

which the halibut PSC limit or seasonal apportionment applies.

(4) When the vessels to which a halibut PSC limit applies have

caught an amount of halibut equal to that PSC, the Regional Director

may, by notification in the Federal Register, allow some or all of

those vessels to continue to fish for groundfish using nonpelagic trawl

gear under specified conditions, subject to the other provisions of

this part. In authorizing and conditioning such continued fishing with

bottom-trawl gear, the Regional Director will take into account the

following considerations, and issue relevant findings:

(i) The risk of biological harm to halibut stocks and of socio-

economic harm to authorized halibut users posed by continued bottom

trawling by these vessels;

(ii) The extent to which these vessels have avoided incidental

halibut catches up to that point in the year;

(iii) The confidence of the Regional Director in the accuracy of

the estimates of incidental halibut catches by these vessels up to that

point in the year;

(iv) Whether observer coverage of these vessels is sufficient to

assure adherence to the prescribed conditions and to alert the Regional

Director to increases in their incidental halibut catches; and

(v) The enforcement record of owners and operators of these

vessels, and the confidence of the Regional Director that adherence to

the prescribed conditions can be assured in light of available

enforcement resources.

* * * * *

(h) * * *

(1) Calculations. (i) In making any determination concerning

directed fishing under paragraph (g) of this section, the amount or

percentage of any species, species group, or any fish or fish products

will be calculated in round-weight equivalents.

(ii) Arrowtooth flounder, or any groundfish species for which

directed fishing is closed, may not be used to calculate retainable

amounts of other groundfish species under paragraph (g) of this

section.

* * * * *

PART 675--GROUNDFISH FISHERY OF THE BERING SEA AND ALEUTIAN ISLANDS

AREA

3. The authority citation for part 675 continues to read as

follows:

Authority: 16 U.S.C. 1801 et seq.

4. In Sec. 675.20, paragraphs (h)(2) and (i)(1) are revised to read

as follows:

Sec. 675.20 General limitations.

* * * * *

(h) * * *

(2) Yellowfin sole, rock sole, arrowtooth flounder, or ``other

flatfish.'' The operator of a vessel is engaged in directed fishing for

yellowfin sole, rock sole, arrowtooth flounder, or ``other flatfish''

if he or she retains, at any time during a trip, an amount of one of

these species equal to or greater than 35 percent of the amount of the

other respective species retained at the same time on the vessel during

the same trip, plus 20 percent of any groundfish species other than

yellowfin sole, rock sole, or ``other flatfish'' retained at the same

time on the vessel during the same trip.

* * * * *

(i) * * *

(1) Calculations. (i) In making any determination concerning

directed fishing under paragraph (h) of this section, the amount or

percentage of any species, species group, or any fish or fish products

will be calculated in round-weight equivalents.

(ii) Arrowtooth flounder, or any groundfish species for which

directed fishing is closed, may not be used to calculate retainable

amounts of other groundfish species under paragraph (h) of this

section.

* * * * *

5. In Sec. 675.23, paragraph (c) is revised to read as follows:

Sec. 675.23 Seasons.

* * * * *

(c) Directed fishing for arrowtooth flounder and Greenland turbot

is authorized from 12:00 noon Alaska local time, May 1, through 12:00

midnight, Alaska local time, December 31, subject to the other

provisions of this part.

* * * * *

[FR Doc. 94-18229 Filed 7-26-94; 8:45 am]

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