Groundfish of the Bering Sea and Aleutian Islands Area

DEPARTMENT OF COMMERCE

50 CFR Part 675

[Docket No. 931075-4012; I.D. 100893A]

RIN 0648-AF47

Groundfish of the Bering Sea and Aleutian Islands Area

AGENCY: National Marine Fisheries Service (NMFS), NOAA, Commerce.

ACTION: Final rule; final apportionments of the 1994 Pacific cod total

allowable catch among gear types and seasons.

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SUMMARY: NMFS announces the approval of Amendment 24 to the Fishery

Management Plan (FMP) for the Groundfish Fishery of the Bering Sea and

Aleutian Islands Area (BSAI) and issues final regulations to implement

the amendment that allocates the Pacific cod total allowable catch

(TAC) among vessels using trawl, hook-and-line or pot gear, and jig

gear through 1996. These regulations also authorize seasonal

apportionments of the portion of Pacific cod TAC allocated to vessels

using hook-and-line or pot gear. Consistent with the regulations

implementing Amendment 24, NMFS also specifies 1994 gear allocations

and seasonal apportionments of the amount of the 1994 Pacific cod TAC

allocated to vessels using hook-and-line or pot gear through 1996. This

action is necessary to allocate Pacific cod among specified gear groups

to respond to socioeconomic needs of the fishing industry that have

been identified by the North Pacific Fishery Management Council

(Council). It is intended to promote management and conservation of

groundfish and other fish resources and to further the goals and

objectives contained in the FMP.

EFFECTIVE DATE: February 28, 1994.

ADDRESSES: Copies of Amendment 24 and the environmental assessment/

regulatory impact review/final regulatory impact analysis (EA/RIR/FRFA)

may be obtained from the North Pacific Fishery Management Council, P.O.

Box 103136, Anchorage, Alaska 99510 (telephone 907-271-2809).

FOR FURTHER INFORMATION CONTACT: Susan J. Salveson, Fisheries

Management Division, Alaska Region, NMFS at 907-586-7228.

SUPPLEMENTARY INFORMATION: The domestic groundfish fisheries in the

exclusive economic zone of the BSAI are managed by the Secretary of

Commerce (Secretary) in accordance with the FMP. The FMP was prepared

by the 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 620 and 675.

At its June 1993 meeting, the Council adopted Amendment 24 and

recommended that NMFS prepare rulemaking to implement the amendment. A

notice of availability of Amendment 24 was published in the Federal

Register on October 15, 1993 (58 FR 53497), and invited comment on the

amendment through December 7, 1993. No written comments were received.

A proposed rule to implement Amendment 24 was published in the Federal

Register October 27, 1993 (58 FR 57803). Comments on the proposed rule

were invited through December 6, 1993. Five letters addressing eight

comments were received and are summarized and responded to in the

Response to Comments section, below.

Amendment 24 was approved by the Secretary of Commerce on January

5, 1994, under section 304(b) of the Magnuson Act. This amendment

establishes FMP authority to allocate the Pacific cod TAC among vessels

using different gear types and to seasonally apportion gear allocations

of Pacific cod. Upon reviewing the reasons for Amendment 24, and the

comments on the proposed rule to implement it, NMFS has determined that

this action is necessary for fishery conservation and management and

implements the following three measures through December 31, 1996,

under authority of Amendment 24.

1. The BSAI Pacific cod total allowable catch (TAC) is allocated

annually among gear types as follows: 2 percent to vessels using jig

gear; 44 percent to vessels using hook-and-line or pot gear; and 54

percent to vessels using trawl gear. In monitoring the use of these

gear allocations, all cod catch and cod bycatch by each of the three

gear groups will be counted against its allocation;

2. The Secretary, after consultation with the Council, is

authorized to seasonally apportion the amount of the Pacific cod TAC

allocated to vessels using hook-and-line or pot gear. Seasonal

apportionments will be divided among three seasons of 4 months duration

each, and will be established through the annual September-December

specifications process (Sec. 675.20(a)). Any seasonal apportionments of

the amount of Pacific cod TAC allocated to vessels using hook-and-line

or pot gear must be based on the following information: (A) Seasonal

distribution of prohibited species; (B) seasonal distribution of

Pacific cod relative to prohibited species distribution; (C) expected

variations in Pacific halibut bycatch rates throughout the fishing

year; and (D) economic effects of any seasonal apportionment of Pacific

cod on the hook-and-line and pot gear fisheries.

3. The Director, Alaska Region, NMFS (Regional Director) is

authorized to reallocate Pacific cod from vessels using trawl gear to

vessels using hook-and-line or pot gear, and vice versa, anytime during

the year the Regional Director determines that one gear group or the

other will not be able to harvest its allocation of Pacific cod. That

portion of the jig gear allocation that is expected to go unharvested

may be transferred to vessels using trawl and hook-and-line or pot gear

at the beginning of the third 4-month season.

The intent of the measures implemented under Amendment 24 is to

provide stability in the trawl gear and fixed gear (jig, hook-and-line

and pot) fisheries by establishing designated allocations of the

Pacific cod TAC among vessels using these different gear types. Further

explanation of, and reasons for, these measures are contained in the

preamble to the proposed rule (58 FR 57803, October 27, 1993).

1994 Specifications of the Pacific cod TAC

The Council recommended proposed 1994 gear allocations and seasonal

apportionments of the amount of Pacific cod allocated to vessels using

hook-and-line or pot gear at its September 1993 meeting. The proposed

specifications for the 1994 Pacific cod fishery were published in the

Federal Register for public review and comment as part of the proposed

rule implementing Amendment 24 (58 FR 57803, October 27, 1993). At its

December 1993 meeting, the Council reaffirmed its September

recommendations. NMFS concurs with the Council's recommendations and

has included the final specifications for the 1994 Pacific cod

fisheries in this action implementing Amendment 24 (Tables 1 and 2).

Consistent with regulations authorizing seasonal apportionments of

the amount of Pacific cod allocated to vessels using hook-and-line or

pot gear (Sec. 675.20(a)(2)(v)), a discussion of the seasonal

apportionments relative to the seasonal distribution of Pacific cod and

prohibited species, prohibited species bycatch rates, and economic

effects on the hook-and-line and pot gear fisheries is presented in the

preamble to the proposed rule implementing Amendment 24 (58 FR 57803,

October 27, 1993). In 1994, 1995, and 1996, the proposed and final

specifications for Pacific cod will be established through the annual

TAC specification process undertaken by NMFS and the Council during the

September and December Council meetings each year (Secs. 675.20(a)(2)

and 675.21(b)(3)).

Table 1.--1994 Gear Shares of the BSAI Pacific Cod Initial TAC

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

Percent

of Share of

Gear initial initial

TAC TAC (mt)

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

Jig............................................... 2.0 3,247

Hook-and-line or pot gear......................... 44.0 71,434

Trawl gear........................................ 54.0 87,669

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Total........................................... 100.0 162,350

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Table 2.--Final1994 Seasonal Apportionment of the Amount of Pacific Cod

Allocated to Vessels Using Hook-and-Line or Pot Gear

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

Percentage Amount of

Season of Pacific Pacific cod

cod (mt)

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

Jan. 01-Apr. 30............................... 90 64,291

May 01-Aug. 31................................ 10 7,143

Sep. 01-Dec. 31............................... Remainder Remainder

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Response to Comments

Five letters of comments were received within the comment period

that ended December 6, 1993. Four of the letters were supportive of

Amendment 24 and one letter opposed it. A summary of comments and

NMFS's response follow.

Comment 1. The rule implementing Amendment 24 should include a

prohibition against using both trawl and fixed gear onboard a vessel to

fish for groundfish during a year to prevent vessels that use one gear

type from gaining access to another gear type's Pacific cod allocation.

Response. Limitations on the use of trawl or fixed gear to fish for

Pacific cod or other groundfish species are beyond the scope of

Amendment 24 as adopted by the Council and approved by the Secretary.

Prohibitions against using more than one gear type to fish for Pacific

cod during a year would require a separate amendment to the FMP and

cannot be implemented at this time.

Comment 2. The proposed 1994 seasonal apportionment of the amount

of Pacific cod allocated to vessels using hook-and-line or pot gear is

supported.

Response. NMFS is implementing the seasonal apportionment of the

amount of Pacific cod TAC that is allocated to vessels using hook-and-

line or pot gear as proposed.

Comment 3. The regulations implementing Amendment 24 provide an

equitable way to manage the Pacific cod fishery to reduce waste,

periods of high bycatch, and gear conflicts. Allocation of Pacific cod

among gear types is an important management measure during the period

the Council is developing a comprehensive plan to manage the groundfish

fisheries. The implementation of the amendment should proceed without

delay.

Response. NMFS concurs. Amendment 24 has been approved and

implementing regulations are issued under the schedule set forth under

section 305(a) of the Magnuson Act.

Comment 4. Preferential allocation of Pacific cod or other

groundfish species to the newly emergent longline freezer fleet in the

BSAI is opposed. The Bering Sea cod fishery was developed by the trawl

fleet and criteria historically applied by the Council in resource

allocation issues would favor the BSAI trawl fleet in any cod

allocation dispute with longline vessels. Although the trawl industry

generally believes that a 60-40 split of the Pacific cod TAC between

trawl and fixed gear would more closely reflect current utilization

levels, the fixed gear allocation implemented under Amendment 24 will

provide benefits from the stabilization of the trawl and fixed gear

fisheries for Pacific cod. Such stabilization will allow for better and

more efficient planning and will enable the trawl and fixed gear fleets

to assure their respective markets of a dependable and predictable

supply of product.

Response. NMFS recognizes that the development of Amendment 24 and

alternatives for allocating Pacific cod TAC among different gear groups

was a contentious issue that required significant input and effort by

the industry to help resolve problems addressed by the Council. NMFS

concurs that the fixed allocation of the Pacific cod TAC among gear

groups will provide stability to the Pacific cod fisheries during the

period the Council is developing a long-term comprehensive plan for the

management of the Alaska groundfish resources.

Comment 5. The annual apportionment of the halibut bycatch limit

established for BSAI fisheries and seasons should support the annual

seasonal apportionment of Pacific cod.

Response. Regulations implementing Amendment 24 do not govern how

Pacific halibut bycatch limits are apportioned among fisheries,

although gear specific allocations of Pacific cod will be considered

when apportioning prohibited species bycatch limits among fisheries and

seasons during the annual specification process (Sec. 675.21(b)(3)). As

required by regulations at Sec. 675.21(b)(3), NMFS will review the

seasonal apportionment of the amount of Pacific halibut bycatch

mortality specified for the Pacific cod fisheries when the agency makes

a final determination on the 1994 groundfish specifications.

Comment 6. The trawl industry generally supports Amendment 24 as a

management measure that will support the stabilization of the Pacific

cod fisheries provided that the annual process for apportioning the

Pacific halibut trawl bycatch mortality limit among trawl fisheries is

not used to undermine the intent of this amendment. Efforts by

representatives for the fixed gear fisheries to restrict the amount of

halibut annually apportioned to the Pacific cod trawl fishery would

prevent the trawl gear allocation of Pacific cod from being harvested

and result in a de facto preferential allocation of cod to the fixed

gear fleet. The Council and NMFS must ensure that the annual process

for the apportionment of PSC limits among trawl fisheries does not lead

to the instability that Amendment 24 is intended to avoid.

Response. NMFS acknowledges that significant flexibility exists on

how PSC limits are annually apportioned among fisheries and seasons.

The resulting apportionments must be justified based on regulatory

intent to optimize the harvest of available groundfish under a given

PSC limit (Sec. 675.21 (b)(1) and (b)(3)). NMFS believes that the

annual prohibited species bycatch allowances specified for the Pacific

cod trawl fishery should be based on anticipated prohibited species

bycatch needs. NMFS has advised the Council that it should consider PSC

limit apportionments among fisheries and seasons that are consistent

with regulations implementing Amendment 24. Nonetheless, the PSC limits

established for the BSAI trawl fisheries likely will continue to

constrain the ability of trawl fisheries to harvest available

groundfish.

Comment 7. Amendment 24, as adopted by the Council, did not

establish a fixed allocation of the BSAI trawl halibut bycatch limit to

the Pacific cod trawl fishery and the proposed rule did not rectify

this omission. This measure is necessary for reasons stated in Comment

6. The anticipated benefits under Amendment 24 in terms of fishery

stability will not be realized as long as the possibility exists for

fixed gear interests to continue to use the annual specification

process to constrain the amount of halibut bycatch apportioned to the

Pacific cod trawl fishery, thereby achieving a de facto preferential

allocation to the fixed gear fleet.

Response. A separate amendment to the FMP would be needed to

establish a fixed allocation of the trawl halibut PSC limit to the BSAI

Pacific cod trawl fishery. This measure could not be implemented as a

regulatory amendment and included in the proposed rule to implement

Amendment 24. The response to Comment 6 further describes NMFS's

position on this issue. The Council may address this issue in the

future.

Comment 8. Pacific cod catch during the duration of Amendment 24

should not be considered in calculating quota shares under any

individual transferrable quota (ITQ) program the Council may adopt in

the future because gear allocations of Pacific cod under Amendment 24

may alter catch patterns or otherwise skew the proportion of Pacific

cod harvested by any gear type.

Response. ITQs are not the subject of this rulemaking. The Council

and the Secretary have not determined whether access to the fishery

will be controlled, or if a limited access system will be implemented.

Once such determinations are made, eligibility criteria for

participation in the fishery will be determined.

Classification

NMFS prepared a final regulatory flexibility analysis (FRFA), which

concludes that this rule could have a significant economic impact on a

substantial number of small entities. A copy of this analysis is

available from the Council (see ADDRESSES).

List of Subjects in 50 CFR part 675

Fisheries, Reporting and recordkeeping.

Dated: January 24, 1994.

Nancy Foster,

Deputy Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons set out in the preamble, 50 CFR part 675 is amended

as follows:

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

AREA

1. The authority citation for 50 CFR part 675 continues to read as

follows:

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

2. In Sec. 675.20, paragraphs (a)(2)(iv), (a)(2)(v), and (a)(3)(iv)

are added to read as follows:

Sec. 675.20 General limitations.

(a) * * *

(2) * * *

(iv) Applicable through December 31, 1996. (A) The TAC of Pacific

cod, after subtraction of reserves, will be allocated 2 percent to

vessels using jig gear, 44 percent to vessels using hook-and-line or

pot gear, and 54 percent to vessels using trawl gear. The Regional

Director may establish separate directed fishing allowances and

prohibitions authorized under paragraphs (a)(8) and (a)(9) of this

section for vessels harvesting Pacific cod using jig gear, hook-and-

line or pot gear, or trawl gear.

(B) If during a fishing year the Regional Director determines that

vessels using trawl gear or hook-and-line or pot gear will not be able

to harvest the entire amount of Pacific cod allocated to those vessels

under paragraph (a)(2)(iv) of this section, then NMFS may reallocate

the projected unused amount of Pacific cod to vessels harvesting

Pacific cod using the other gear type(s) through publication in the

Federal Register.

(C) On or about September 1 of each year, the Regional Director

will reallocate 45 percent of any unused amount of Pacific cod

allocated to vessels using jig gear to vessels using hook-and-line or

pot gear and 55 percent of any unused amount of Pacific cod allocated

to vessels using jig gear to vessels using trawl gear through

publication in the Federal Register.

(v) Applicable through December 31, 1996. In the publications of

proposed and final harvest limit specifications required under

Sec. 675.20(a) of this part, the Secretary, after consultation with the

Council, may seasonally apportion the amount of Pacific cod TAC

allocated to vessels using hook-and-line or pot gear under paragraph

(a)(2)(iv) of this section among the following three periods: January 1

through April 30; May 1 through August 31; and September 1 through

December 31. The Secretary will base any seasonal apportionment of the

Pacific cod allocation for vessels using hook-and-line or pot gear on

the following information:

(A) Seasonal distribution of Pacific cod relative to prohibited

species distribution;

(B) Expected variations in prohibited species bycatch rates

experienced in the Pacific cod fisheries throughout the fishing year;

and

(C) Economic effects of any seasonal apportionment of Pacific cod

on the hook-and-line and pot-gear fisheries.

(3) * * *

(iv) Applicable through December 31, 1996. Any amounts of the

nonspecific reserve that are apportioned to Pacific cod as provided by

paragraph (b) of this section must be apportioned between vessels using

jig, hook-and-line or pot, and trawl gear in the same proportion

specified in paragraph (a)(2)(iv)(A) of this section, unless the

Regional Director determines under paragraph (a)(2)(iv)(B) of this

section or paragraph (a)(2)(iv)(C) of this section that vessels using a

certain gear type will not be able to harvest the additional amount of

Pacific cod. In this case, the nonspecific reserve will be apportioned

to vessels using the other gear type(s).

* * * * *

[FR Doc. 94-1871 Filed 1-25-94; 2:15 pm]

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