# Fisheries of the Exclusive Economic Zone off Alaska; Allocations of Pacific Cod in the Bering Sea and Aleutian Islands Area

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A96-21393

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** August 22, 1996
- **Citation:** 61 FR 43325

## Text

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 960815223-6223-01; I.D. 081296A]
RIN 0648-AI70

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

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

ACTION: Proposed rule; request for comments.

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

SUMMARY: NMFS proposes regulations to implement Amendment 46 to the
Fishery Management Plan for the Groundfish Fishery in the Bering Sea
and Aleutian Islands Area (FMP). Amendment 46 would allocate the Bering
Sea and Aleutian Islands Management Area (BSAI) Pacific cod total
allowable catch (TAC) among vessels using trawl gear, fixed gear (hook-
and-line and pot), and jig gear. This action also would provide
authority for the fixed gear allocation of Pacific cod to be divided
into seasonal allowances, and would allow any unused portion of one
gear's allocation to be reallocated to other gear types. This action is
necessary to respond to socioeconomic needs of the fishing industry
that have been identified by the North Pacific Fishery Management
Council (Council) and is intended to further the goals and objectives
of the FMP.

DATES: Comments must be received by October 3, 1996.

ADDRESSES: Comments must be sent to Ronald J. Berg, Chief, Fisheries
Management Division, Alaska Region, NMFS, P.O. Box 21668, Juneau, AK
99802, Attn: Lori J. Gravel. Copies of the proposed FMP amendment and
the Environmental Assessment/ Regulatory Impact Review (EA/RIR)
prepared for Amendment 46 may be obtained from the North Pacific
Fishery Management Council, 605 West Fourth Avenue, Suite 306,
Anchorage, AK 99501; telephone: 907-271-2809.

FOR FURTHER INFORMATION CONTACT: Kent Lind, 907-586-7228.

SUPPLEMENTARY INFORMATION:
The domestic groundfish fisheries in the exclusive economic zone of
the BSAI are managed by NMFS under the FMP. The FMP was prepared by the
Council under the Magnuson Fishery Conservation and Management Act
(Magnuson Act). Regulations governing the groundfish fishery of the
BSAI appear at 50 CFR parts 600 and 679.

Management Background and Need for Action

In 1994, NMFS implemented Amendment 24 to the FMP (59 FR 4009,
January 28, 1994), which allocated the BSAI Pacific cod TAC among
vessels using trawl gear, fixed gear (hook-and-line and pot) and jig
gear. The Council designed Amendment 24 as a 3-year measure that is
scheduled to expire at the end of 1996. The percentage allocations
established by Amendment 24 for the 1994-96 fishing seasons were: Trawl
gear, 54 percent; fixed gear, 44 percent; and jig gear, 2 percent.
These percentages represented, roughly, the existing harvest
percentages of the two major sectors, trawl, and hook-and-line, while
specifically allocating 2 percent to jig gear. The 2 percent allocation
to jig gear exceeded the existing harvest percentage taken by that gear
type and was intended to allow for growth in the jig sector.
Amendment 24 also authorized NMFS to divide the fixed gear
allocation of Pacific cod into three seasons of 4 months duration and
allocate the Pacific cod TAC among the three seasons in proportions
recommended by the Council. The Council took this action in response to
hook-and-line industry representatives who argued for a seasonal
allowance of the fixed gear allocation of Pacific cod to allow for a
first and third season fishery when halibut bycatch rates, product
quality, and markets are most advantageous. The second season (May 1
through August 31) is the least desirable period to harvest Pacific cod
with hook-and-line gear based on these same criteria. Trawl industry
representatives indicated that seasonal allowances were unnecessary for
the trawl sector, because relatively low Pacific halibut bycatch rates,
high catch-per-unit-of-effort, and stable market conditions early in
the year support the prosecution of the Pacific cod trawl fishery
during this period.
Lastly, Amendment 24 established authority for NMFS to reallocate
Pacific cod from vessels using trawl gear to vessels using fixed gear
and vise versa anytime during the fishing year the Director, Alaska
Region, NMFS (Regional Director), determined that one gear group or the
other would not be able to harvest its allocation of Pacific cod. Any
projected unused portion of the jig gear allocation was to be
reallocated to vessels using trawl and fixed gear on or about September
1 of each fishing year.
The intent of Amendment 24 was to provide stability in the trawl,
fixed, and jig gear fisheries by establishing designated allocations of
the Pacific cod TAC among vessels using these different gear types. The
Council believed that the stability provided through both gear type and
seasonal allocations of Pacific cod would enable each sector of the
industry to increase the net benefits received from the harvest of
Pacific cod.
In December 1995, the Council began analysis of Amendment 46, which
would extend the management measures authorized by Amendment 24 beyond
1996. Council staff prepared a draft EA/RIR for Amendment 46 to examine
a range of possible allocations of Pacific cod to each gear type with
specific attention to prohibited species catch (PSC) mortality, impacts
on habitat, and discards of Pacific cod by various industry sectors. To
guide the analysis of alternatives for Amendment 46, the Council
drafted the following problem statement:

The Bering Sea/Aleutian Islands Pacific cod fishery continues to
manifest many of the problems that led the Council to adopt
Amendment 24 in 1993. These problems include compressed fishing
seasons, periods of high bycatch, waste of resource, and new
entrants competing for the resource due to crossovers allowed under
the Council's moratorium program. Since the allocation of BSAI
Pacific cod TAC between fixed gear, jig, and trawl gear was
implemented in January 1994 when Amendment 24 went into effect, the
trawl, jig and fixed gear components have harvested the TAC with
demonstrably differing levels of PSC mortality, discards, and
bycatch of non-target species. Management measures are needed to
ensure that the Pacific cod TAC is harvested in a manner which
reduces discards in the target fisheries, reduces PSC mortality,
reduces nontarget bycatch of Pacific cod and other groundfish
species, takes into account the social and economic aspects of
variable allocations and addresses impacts of the fishery on
habitat. In addition, the amendment will continue to promote
stability in the fishery as the Council continues on the path
towards comprehensive rationalization.

After contentious testimony from representatives for different
sectors of the BSAI Pacific cod fishery during initial consideration of
Amendment 46 in April 1996, the Council named an industry negotiating
committee composed of representatives for the following sectors:
Freezer/longliner, catcher longliner, pot vessel, factory trawler,
shoreside delivery trawler, mothership delivery trawler, and shoreside
processor. This industry negotiating committee, which convened in May
1996, was given the task of

[[Page 43326]]

drafting an allocation to each gear type that would be acceptable to
all sectors of the BSAI Pacific cod fishery.
After 2 days of public meetings in Seattle, WA, the negotiating
committee arrived at the following percentages: Fixed gear, 51 percent;
trawl gear, 47 percent divided equally between catcher vessels and
catcher/processors; and jig gear, 2 percent. These percentages were
chosen because they closely represented the current harvest percentage
taken by the trawl and fixed gear types under current halibut PSC
limits while retaining the 2 percent allocation for jig gear.
The 50/50 split of the trawl gear allocation between catcher vessel
and catcher/processors was arrived at through a separate negotiation by
representatives for the different sectors of the trawl fleet. Catcher
vessel representatives argued that directed fishing for Pacific cod by
catcher/processors, as well as high levels of Pacific cod taken as
bycatch by catcher/processors engaged in other directed fisheries,
could preempt the catcher vessel sector, which is more dependent on
directed fishing for Pacific cod. A separate allocation of Pacific cod
to trawl catcher vessels would prevent preemption of catcher vessels by
the catcher/processor sector. From 1992 through 1995, catcher vessels
were responsible for 40 percent of the total trawl landings of Pacific
cod, but harvested 54 percent of the Pacific cod taken by trawl vessels
while engaged in directed fishing for Pacific cod. During the same time
period, catcher processors were responsible for 74 percent of the
Pacific cod taken as bycatch by trawl vessels while engaged in directed
fishing for other species.
Because both the trawl and hook-and-line sectors are constrained by
existing halibut PSC limits, the negotiating committee recognized that
it would be unlikely that vessels using both gear types could exploit
larger allocations of Pacific cod under their existing halibut PSC
limits. The negotiating committee expected that operators of vessels
using pot gear would be able to harvest the remaining TAC of Pacific
cod once vessels using trawl and hook-and-line gear reached their
halibut PSC limits.
At its June 1996 meeting, the Council approved unanimously the
allocation percentages proposed by the industry negotiating committee
as part of Amendment 46 to the FMP. The Council also extended without
modification the other management measures established by Amendment 24,
except for the date that any projected unused jig gear allocation would
be reallocated to other gear types. The Council recommended that NMFS
reallocate any projected unused jig allocation to fixed gear on
September 15 of each fishing year after hearing industry requests for a
predictable date for the reallocation of the projected unused jig gear
allocation. In contrast to Amendment 24, the Council chose not to
establish a sunset date for Amendment 46.

Regulations Proposed under Amendment 46

The following summarizes the regulations proposed under Amendment
46.
1. The BSAI Pacific cod TAC would be allocated among gear types as
follows: Fixed gear, 51 percent; trawl gear, 47 percent; and jig gear,
2 percent.
2. The BSAI Pacific cod TAC allocated to vessels using trawl gear
would be further allocated 50 percent to catcher vessels and 50 percent
to catcher/processors.
3. The authority for NMFS to divide the fixed gear allocation of
Pacific cod into three seasons of 4 months duration would continue
unchanged. The criteria to be used for determining the percentage of
fixed gear TAC allocated to each season include: The seasonal
distribution of prohibited species, the seasonal distribution of
Pacific cod relative to prohibited species distribution, the expected
variations in Pacific halibut bycatch rates throughout the fishing
year, and the economic effects of any seasonal allowance of Pacific cod
on the fixed gear fisheries.
4. The authority for NMFS to reallocate Pacific cod from vessels
using trawl gear to vessels using fixed gear and vice versa anytime
during the fishing year that the Regional Director determines that one
gear group or the other would not be able to harvest its allocation of
Pacific cod would continue unchanged.
5. Any portion of the Pacific cod TAC allocated to vessels using
jig gear and projected by NMFS to be unused by the end of the fishing
year would be reallocated to vessels using fixed gear on September 15
of each fishing year.
6. NMFS also proposes to implement a measure that would allow any
unused fixed gear seasonal allowance to be reallocated in a manner
determined by NMFS in annual consultation with the Council and that
promotes the goals and objectives of the FMP. This measure would, for
example, allow NMFS to reallocate unused fixed gear allocations from
the first season to the third season when halibut bycatch rates,
product quality, and markets are most advantageous.

Classification

Section 304(a)(1)(D) of the Magnuson Act requires that regulations
proposed by a council be published within 15 days of receipt of the FMP
amendment and regulations. At this time, NMFS has not determined that
the FMP amendment these rules would implement is consistent with the
national standards, other provisions of the Magnuson Act, and other
applicable laws. NMFS, in making that determination, will take into
account the data, views, and comments received during the comment
period.
The Council prepared an EA for this FMP amendment that discusses
the impact on the environment as a result of this rule. A copy of this
EA is available from the Council (see ADDRESSES). The EA concluded that
the distribution of fishing effort among different sectors of the
fishing industry, as well as the spatial and temporal distribution of
fishing effort within each sector of the industry, is unlikely to
change as a result of this rule. As a consequence, fishing under this
rule will not impact the environment to an extent and in a manner not
already considered in the EA prepared for the 1996 TAC specifications.
This proposed rule has been determined to be not significant for
the purposes of E.O. 12866.
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce certified to the Chief Counsel for Advocacy of
the Small Business Administration as follows:

I certify that the attached proposed rule issued under authority
of section 304(a) of the Magnuson Fishery Conservation and
Management Act will not have a significant economic impact on a
substantial number of small entities. The proposed rule would
allocate the BSAI Pacific cod total allowable catch among vessels
using trawl gear, fixed gear and jig gear. This action also would
provide authority for the fixed gear allocation to be divided into
seasonal allowances, and would allow any unused portion of one
gear's allocation to be reallocated to other gear types. This action
is necessary to replace the current Pacific cod allocations which
were established by Amendment 24 to the FMP and which are scheduled
to expire on January 1, 1997.
The percentage allocations in the proposed rule largely mirror
existing harvest patterns and would not result in a change of more
than 5 percent in overall gross revenues for any particular
operation relative to the status quo. This action is expected to
generate largely unquantifiable positive impacts including:
Prohibited species bycatch reductions, increased amounts of cod
available to cod target fisheries, allowances for growth of
relatively clean fishing gears (such as pot gear), and overall
stability

[[Page 43327]]

within and across industry sectors. The proposed rule would not
change compliance costs or impose any additional paperwork or
reporting requirements.

The Regional Director determined that fishing activities conducted
under this rule will not affect endangered and threatened species
listed or critical habitat designated pursuant to the Endangered
Species Act in any manner not considered in prior consultations on the
groundfish fisheries of the BSAI.

List of Subjects in 50 CFR Part 679

Fisheries, Reporting and recordkeeping requirements.

Dated: August 16, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 679 is
proposed to be amended as follows:

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

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

Authority 16 U.S.C. 773 et seq.; 1801 et seq.
2. In Sec. 679.20, paragraph (a)(7) is revised to read as follows:

Sec. 679.20 General limitations.

* * * * *
(a) * * *
(7) Pacific cod TAC, BSAI--(i) TAC by gear. (A) The BSAI TAC of
Pacific cod, after subtraction of reserves, will be allocated 2 percent
to vessels using jig gear, 51 percent to vessels using hook-and-line or
pot gear, and 47 percent to vessels using trawl gear.
(B) The portion of Pacific cod TAC allocated to trawl gear under
paragraph (a)(7)(i)(A) of this section will be further allocated 50
percent to catcher vessels and 50 percent to catcher/processors as
defined for the purposes of recordkeeping and reporting at Sec. 679.2.
(C) The Regional Director may establish separate directed fishing
allowances and prohibitions authorized under paragraph (d) of this
section for vessels harvesting Pacific cod using jig gear, hook-and-
line or pot gear, or trawl gear.
(ii) Unused gear allocation. 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 in the BSAI allocated to those vessels under paragraphs
(a)(7)(i) or (a)(7)(iii) of this section, NMFS may reallocate the
projected unused amount of Pacific cod to vessels harvesting Pacific
cod using the other gear type(s) through notification in the Federal
Register.
(iii) Reallocation of TAC specified for jig gear. On September 15
of each year, the Regional Director will reallocate any projected
unused amount of Pacific cod in the BSAI allocated to vessels using jig
gear to vessels using hook-and-line or pot gear through notification in
the Federal Register.
(iv) Seasonal allowances--(A) Time periods. NMFS, after
consultation with the Council, may divide the TAC allocated to vessels
using hook-and-line or pot gear under paragraph (a)(7)(i) of this
section among the following three periods: January 1 through April 30;
May 1 through August 31; and September 1 through December 31.
(B) Factors to be considered. NMFS will base any seasonal allowance
of the Pacific cod allocation to vessels using hook-and-line and pot
gear on the following information:
(1) Seasonal distribution of Pacific cod relative to prohibited
species distribution.
(2) Variations in prohibited species bycatch rates in the Pacific
cod fisheries throughout the fishing year.
(3) Economic effects of any seasonal allowance of Pacific cod on
the hook-and-line and pot-gear fisheries.
(C) Unused seasonal allowances. Any unused portion of a seasonal
allowance of Pacific cod to vessels using hook-and-line or pot gear
will be reallocated to the remaining seasonal allowances during a
current fishing year in a manner determined by NMFS, after consultation
with the Council.
* * * * *
[FR Doc. 96-21393 Filed 8-19-96; 1:41 pm]
BILLING CODE 3510-22-F

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A96-21393. Public record. Not legal advice.