[Federal Register: September 4, 2007 (Volume 72, Number 170)]
[Rules and Regulations]
[Page 50787-50818]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04se07-4]
[[Page 50787]]
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Part IV
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 679
Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Cod
Allocations in the Bering Sea and Aleutian Islands Management Area;
Final Rule
[[Page 50788]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 0612242903-7445-03; I.D. 112006I]
RIN 0648-AU48
Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Cod
Allocations in the Bering Sea and Aleutian Islands Management Area
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce
ACTION: Final rule.
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SUMMARY: NMFS issues a final rule to implement Amendment 85 to the
Fishery Management Plan for Groundfish of the Bering Sea and Aleutian
Islands Management Area (FMP) as partially approved by NMFS, and to
implement recent changes to the Magnuson-Stevens Fishery Conservation
and Management Act (Magnuson-Stevens Act). This final rule modifies the
current allocations of Bering Sea and Aleutian Islands management area
(BSAI) Pacific cod total allowable catch (TAC) among various harvest
sectors and seasonal apportionments thereof, establishes a hierarchy
for reallocating projected unharvested amounts of Pacific cod from
certain sectors to other sectors, revises catcher/processor (CP) sector
definitions, modifies the management of Pacific cod incidental catch
that occurs in other groundfish fisheries, eliminates the Pacific cod
nonspecified reserve, subdivides the annual prohibited species catch
(PSC) limits currently apportioned to the Pacific cod hook-and-line
gear fisheries between the catcher vessel (CV) and CP sectors, and
modifies the sideboard restrictions for American Fisheries Act (AFA) CP
vessels. In addition, this final rule increases the percentage of the
BSAI Pacific cod TAC apportioned to the Community Development Quota
(CDQ) Program. The proposed rule for Amendment 85 included regulations
that would have subdivided the annual PSC limits currently apportioned
to the Pacific cod trawl fisheries among trawl sectors. However, NMFS
disapproved these regulations. Therefore, this final rule does not
subdivide the annual PSC limits for Pacific cod trawl fisheries among
trawl sectors. This final rule is necessary to implement Amendment 85
and reduce uncertainty about the availability of yearly harvests within
sectors caused by reallocations and maintain stability among sectors in
the BSAI Pacific cod fishery. This final rule also is necessary to
partially implement recent changes to the Magnuson-Stevens Act that
require a total allocation of 10.7 percent of the TAC of each directed
fishery to the CDQ Program starting January 1, 2008. This final rule is
intended to promote the goals and objectives of the Magnuson-Stevens
Act, the FMP, and other applicable laws.
DATES: Effective January 1, 2008.
ADDRESSES: Copies of Amendment 85 and the Environmental Assessment/
Regulatory Impact Review/Final Regulatory Flexibility Analysis (EA/RIR/
FRFA) prepared for this action are available by mail from NMFS, Alaska
Region, P. O. Box 21668, Juneau, AK 99802-1668, Attn: Ellen Sebastian,
Records Officer; in person at NMFS, Alaska Region, 709 West 9th Street,
Room 420A, Juneau, AK; or via the Internet at the NMFS Alaska Region
website at http://www.fakr.noaa.gov.
FOR FURTHER INFORMATION CONTACT: Becky Carls, 907-586-7228 or
becky.carls@noaa.gov.
SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fisheries in the
exclusive economic zone of the BSAI under the FMP. The North Pacific
Fishery Management Council (Council) prepared the FMP under the
authority of the Magnuson-Stevens Act, 16 U.S.C. 1801 et seq.
Regulations governing U.S. fisheries and implementing the FMP appear at
50 CFR parts 600 and 679.
Background
Amendment 85 was adopted by the Council in April 2006 to modify the
current allocations of BSAI Pacific cod among various harvesting
sectors. Currently, the BSAI Pacific cod non-CDQ TAC is fully
distributed among the following eight competing harvest sectors: jig,
fixed gear (pot and hook-and-line gear) CVs less than 60 ft (< 18.3 m)
length overall (LOA), hook-and-line CVs greater than or equal to 60 ft
([gteqt]18.3 m) LOA, hook-and-line catcher/processor vessels (CPs), pot
CVs less than 60 ft ([gteqt]18.3 m) LOA, pot CPs, trawl CPs, and trawl
CVs. Several FMP amendments, implemented beginning in 1994, have
allocated Pacific cod among these sectors. Additional background on the
prior history of Pacific cod allocations among different fishery
sectors and the development of Amendment 85 is contained in the
preamble to the proposed rule (72 FR 5654; February 7, 2007).
Amendment 85 modifies the non-CDQ sector allocations currently in
place to better reflect historical dependency and use by sector of the
Pacific cod resource. The allocations were based in part on each
sector's historical retained catch in addition to socioeconomic and
community concerns. One of the fundamental issues identified in the
Council's problem statement was the need to revise the existing
allocations to better reflect historical retained catch by sector, thus
reducing the need for frequent and significant reallocations of quota
toward the end of the year from sectors that are unable or otherwise do
not intend to harvest their entire allocation. However, the allocations
to the small boat sectors are intended to expand entry-level, local
opportunities in the BSAI Pacific cod fishery. Other than providing for
this expansion, the allocations of Pacific cod non-CDQ TAC are intended
to formally institutionalize the historical pattern of utilization of
this resource.
Amendment 85 and the proposed rule to implement Amendment 85 as
originally submitted by the Council included provisions for the CDQ
Program that allocated 10 percent of the Pacific cod TAC to the CDQ
Program as a directed fishing allocation, created an incidental catch
allowance of Pacific cod for the CDQ Program, and referred to the Coast
Guard and Maritime Transportation Act of 2006, Public Law 109-241
(Coast Guard Act) as the basis for changes to the CDQ Program Pacific
cod allocation. These provisions were consistent with requirements set
forth in the Magnuson-Stevens Act, as amended by the Coast Guard Act,
at the time Amendment 85 was submitted by the Council for Secretarial
review. The Notice of Availability (NOA) for Amendment 85 was published
in the Federal Register on December 7, 2006 (71 FR 70943), with a 60-
day comment period that ended February 5, 2007.
During review by the Secretary of Commerce (Secretary) of Amendment
85, the CDQ provisions in the Magnuson-Stevens Act were amended once
again by the Magnuson-Stevens Fishery Conservation and Management
Reauthorization Act, Public Law 109-479 (Magnuson-Stevens
Reauthorization Act), enacted on January 11, 2007. The Magnuson-Stevens
Act now requires that allocations to the CDQ Program, including Pacific
cod, increase to ``a total allocation (directed and nontarget combined)
of 10.7 percent effective January 1, 2008,'' and that the total
allocation may not be exceeded. As a result of the Magnuson-Stevens
Reauthorization Act, the portions of Amendment 85 to the FMP that
addressed the CDQ Program provisions were no longer consistent with the
[[Page 50789]]
Magnuson-Stevens Act. On March 7, 2007, the Secretary partially
approved Amendment 85, disapproving the CDQ Program provisions as
inconsistent with the Magnuson-Stevens Act. As approved, Amendment 85
revised the current BSAI Pacific cod allocations of TAC among various
non-CDQ harvest sectors (Table 1), changed incidental catch allowances,
removed the groundfish reserve for Pacific cod, and added a new
appendix to the FMP.
Shortly after enactment of the Magnuson-Stevens Reauthorization
Act, NMFS determined that the CDQ portions of the proposed rule as
submitted by the Council were inconsistent with the newly amended
Magnuson-Stevens Act, and returned the rule to the Council for revision
pursuant to section 304(b) of the Magnuson-Stevens Act. The Council
revised the CDQ portions of the proposed rule for Amendment 85 to
incorporate the changes brought about by the Magnuson-Stevens
Reauthorization Act, including a 10.7-percent allocation of Pacific cod
to the CDQ Program. The Council submitted the revised proposed rule to
NMFS, and it was published in the Federal Register on February 7, 2007
(72 FR 5654). The 45-day comment period on the proposed rule ended
March 26, 2007. NMFS received a total of 16 letters on Amendment 85 and
the proposed rule that contained 79 unique comments. A summary of these
comments and the responses by NMFS are provided under Response to
Comments below.
Elements of the Final Rule
A detailed review of the provisions of Amendment 85 and its
implementing rule is provided in the preamble to the proposed rule (72
FR 5654; February 7, 2007), and is not repeated here. The proposed rule
is available via the Internet and from NMFS (see ADDRESSES). The
following provides a list and brief review of the regulatory changes
made by this final rule to the management of the BSAI Pacific cod
fishery. NMFS' rationale for approving portions of Amendment 85 and the
regulatory provisions in this final rule is contained in the agency's
response to comments.
Increase the percentage of the BSAI Pacific cod TAC
apportioned to the CDQ Program to 10.7 percent;
Revise the allocations of BSAI Pacific cod non-CDQ TAC
among various gear sectors;
Modify the management of Pacific cod incidental catch that
occurs in other groundfish fisheries;
Eliminate the Pacific cod nonspecified reserve;
Establish a hierarchy for the reallocation of projected
unused sector allocations to other ectors;
Adjust the seasonal allowances of Pacific cod to various
sectors;
Subdivide among sectors the annual PSC limits apportioned
to the Pacific cod hook-and-line gear fisheries;
Modify the sideboard restrictions for Pacific cod that are
applied to the CP vessels listed as eligible under the AFA; and
Revise the definition for AFA trawl CP and add definitions
for hook-and-line CP, non-AFA trawl CP, and pot CP.
As described above, the Magnuson-Stevens Act now requires that 10.7
percent of the annual Pacific cod TAC be allocated to the CDQ reserve
for directed and nontarget fishing combined, effective January 1, 2008.
The 10.7 percent Pacific cod allocation to the CDQ reserve will be
established annually in the harvest specifications process required
under Sec. 79.20(c). The CDQ reserve will continue to be deducted from
the Pacific cod TAC before the remaining Pacific cod TAC is allocated
to the other fishing sectors. All catch of Pacific cod by any vessel
that is groundfish CDQ fishing, and by any vessel [gteqt]60 ft (18.3 m)
LOA that is halibut CDQ fishing, will continue to accrue against the
CDQ group's annual allocation of Pacific cod and the CDQ groups will
continue to be prohibited from exceeding their annual allocations of
Pacific cod.
Nine individual non-CDQ sectors will receive separate BSAI Pacific
cod allocations. The allocations to the identified sectors were
selected using retained legal catch history, including fishmeal, from
1995 through 2003, and other socioeconomic and community
considerations. The allocations better reflect historical dependency
and use by each sector, with specific consideration to allow for
additional growth in the small boat, entry-level sectors. These
allocations are listed in Table 1. Because Pacific cod has been
harvested by the current sectors since the beginning of 2007 under the
current allocation scheme, and the number of sectors and the overall
amount of Pacific cod available to those sectors as an allocation and
by season will change with this amendment, the Amendment 85 sector
allocations cannot be implemented mid-year. Therefore, the allocations,
and the final rule implementing Amendment 85, will be effective January
1, 2008. NMFS will amend the 2007-2008 harvest specifications to
reflect the changes to the Pacific cod TAC allocations.
Table 1. Percent sector allocations of Pacific cod non-CDQ TAC
------------------------------------------------------------------------
Sector % Allocation
------------------------------------------------------------------------
Jig vessels 1.4
------------------------------------------------------------------------
Hook-and-line/pot CV < 60 ft (18.3 m) LOA 2.0
------------------------------------------------------------------------
Hook-and-line CV [gteqt]60 ft (18.3 m) LOA 0.2
------------------------------------------------------------------------
Hook-and-line CP 48.7
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Pot CV [gteqt]60 ft (18.3 m) LOA 8.4
------------------------------------------------------------------------
Pot CP 1.5
------------------------------------------------------------------------
AFA trawl CP 2.3
------------------------------------------------------------------------
(8) Non AFA trawl CP 13.4
------------------------------------------------------------------------
Trawl CV 22.1
------------------------------------------------------------------------
Currently, NMFS sets aside an amount of Pacific cod from some
sectors' allocations as an incidental catch allowance for use by those
sectors when they are directed fishing for groundfish other than
Pacific cod. NMFS establishes an incidental catch allowance either
through the annual harvest specifications process or inseason. Under
this final rule, an incidental catch allowance for the fixed gear
sectors will continue to be established at the beginning of the fishing
year by the Regional Administrator during the annual harvest
specifications process. The incidental catch allowance for the fixed
gear sectors typically has been set at 500 mt. The trawl sectors
currently do not have an incidental catch allowance established at the
beginning of the fishing year. NMFS has not specified an incidental
catch allowance for Pacific cod in the trawl fisheries in the recent
past because the trawl sectors typically do not catch an amount of
Pacific cod that would necessitate a directed fishing prohibition.
Also, the seasonal apportionments to the trawl sectors have ensured
that a sufficient amount of Pacific cod is left for incidental catch in
groundfish trawl fisheries other than Pacific cod later in the year.
However, because NMFS anticipates that the trawl sectors will fully
harvest the Pacific cod allocations under Amendment 85, NMFS also
anticipates it will need to establish an incidental catch allowance for
each trawl sector. Under this final rule, each trawl sector will have a
separate incidental catch allowance so that no trawl sector can erode
another trawl sector's total allocation and NMFS will develop
incidental catch
[[Page 50790]]
allowances for the trawl sectors on an inseason basis, rather than
through the annual harvest specification process. Determining
incidental catch needs inseason as fisheries progress will provide NMFS
with more flexibility to adjust incidental catch needs for each trawl
sector as a trawl sector's needs change.
Current regulations for the annual harvest specifications process
require that 15 percent of the BSAI TAC for Pacific cod be placed in
the nonspecified reserve. Half of the nonspecified reserve, or 7.5
percent of TAC, is apportioned to the groundfish CDQ reserve. NMFS
typically apportions the remainder of the Pacific cod reserve back to
the non-CDQ Pacific cod TAC because U.S. fishing vessels have
demonstrated the capacity to catch the full TAC allocation. The Council
and NMFS determined that the Pacific cod reserve is no longer needed
because a direct allocation to the CDQ reserve is specified, and
because the Pacific cod TAC is fully allocated among CDQ and non-CDQ
harvesting sectors and is fully harvested. Therefore, this final rule
removes regulations requiring that 15 percent of the Pacific cod TAC be
placed in the nonspecified reserve during a fishing year.
Under current regulations, if the Regional Administrator determines
that a sector will be unable to harvest the entire amount of Pacific
cod allocated to that sector, NMFS reallocates the projected unused
amount of Pacific cod to other sectors to obtain optimum yield from the
BSAI Pacific cod fishery. This procedure will continue under this final
rule, but reallocation decisions will be based in part on the new
reallocation hierarchy established in this final rule, and also will
take into account the capability of a sector to harvest an additional
amount of Pacific cod. The reallocation hierarchy is fully described in
the proposed rule and in the regulatory text below; therefore, that
description is not repeated here. In general, NMFS will reallocate
projected unused allocations in any inshore sector (i.e., CV sectors)
primarily to other inshore sectors before reallocating that amount to
any offshore sector (i.e., CP sectors) and, secondarily, within a gear
type before reallocating that amount to another gear type. This
reallocation hierarchy is consistent with the Council's decision to
increase harvest opportunities for fleets delivering shoreside and
represents a reasonable balance of National Standard 4, that
allocations should be fair and equitable to all fishermen, and National
Standard 8, to consider the importance of fishery resources to fishing
communities. Although the intent of Amendment 85 is to revise sector
allocations to better reflect historic dependence and use by sector and
thus reduce the frequency and amount of inseason reallocations, the
Council and the public noted that some reallocations are likely to
continue.
Under existing regulations, Pacific cod allocations are further
apportioned by season for most gear sectors to protect prey
availability for Steller sea lions (SSLs). The overall BSAI Pacific cod
fishery is limited to seasonal percentages of TAC of no more than 70
percent between January 1 and June 10, and 30 percent between June 10
and December 31. Because this final rule modifies non-CDQ sector
allocations, this final rule also modifies the seasonal allowances
applicable to these sectors to maintain the overall 70/30 seasonal
split for all gear types combined and to maintain, to the extent
possible, the current percentage of the Pacific cod TAC harvested in
the first half of the year by the non-CDQ sectors. Therefore, this
final rule adjusts the seasonal allowances for each sector in response
to the changes in sector allocations. This final rule also changes the
jig sector seasonal allowances from 40-20-40 to 60-20-20. For the
Pacific cod allocation to the CDQ Program, this final rule adds a
prohibition to Sec. 679.7(d) to clarify the current management measure
that the CDQ groups are prohibited from exceeding the seasonal
allowances of Pacific cod that are appropriate for the gear types that
they use to catch Pacific cod CDQ. Also, the regulations regarding CDQ
trawl seasonal allowances are revised to maintain the division between
trawl CP and trawl CV that exists in the current regulations. The BSAI
Pacific cod sector allowances for each sector, including CDQ, by
season, as those seasons are specified under Sec. 679.23(e)(5), are
listed in Table 2.
Table 2. Seasonal allowances of BSAI Pacific cod expressed as a
percentage of each sector=s total allocation
------------------------------------------------------------------------
Gear Type A season B season C season
------------------------------------------------------------------------
CDQ Trawl 60% 20% 20%
------------------------------------------------------------------------
CDQ Trawl CV 70% 10% 20%
------------------------------------------------------------------------
CDQ Trawl CP 50% 30% 20%
------------------------------------------------------------------------
Non-CDQ trawl CV 74% 11% 15%
------------------------------------------------------------------------
Non-CDQ trawl CP 75% 25% 0%
------------------------------------------------------------------------
CDQ Hook-and-line CP, and 60% 40% no C season
hook-and-line CV [gteqt]60
ft (18.3 m) LOA
------------------------------------------------------------------------
Non-CDQ hook-and-line CP, 51% 49% no C season
hook-and-line CV [gteqt]60
ft (18.3 m) LOA, pot CP, and
pot CV [gteqt]60 ft (18.3 m)
LOA
------------------------------------------------------------------------
CDQ jig vessels 40% 20% 40%
------------------------------------------------------------------------
Non-CDQ jig vessels 60% 20% 20%
------------------------------------------------------------------------
All other nontrawl vessels no seasonal no seasonal no seasonal
allowance allowance allowance
------------------------------------------------------------------------
Total non-CDQ percentage 1/1 - 6/10 = 68% 6/10 - 12/31 = 32%
------------------------------------------------------------------------
Total CDQ and non-CDQ 1/1 - 6/10 = 67% 6/10 - 12/31 = 33%
percentage
------------------------------------------------------------------------
[[Page 50791]]
Any unused portion of a seasonal allowance of Pacific cod from any
sector other than the jig sector will continue to be reallocated to
that sector's remaining seasons during the current fishing year. The
Regional Administrator will continue to reallocate any projected unused
portion of a seasonal allowance of Pacific cod from the jig sector to
the < 60 ft (18.3 m) LOA fixed gear CV sector. Under this final rule,
NMFS will reallocate a projected unused portion of the seasonal
allowance for the jig sector C season on or about September 1 of each
year, if possible, to provide the last rollover from the jig sector
when the < 60 ft (18.3 m) LOA fixed gear CV sector may still be on the
fishing grounds.
The total amount of nontrawl halibut PSC for the non-CDQ fisheries
currently is 833 mt of mortality. Typically, 775 mt is apportioned to
the hook-and-line Pacific cod fishery and 58 mt to other nontrawl
groundfish fisheries. This final rule does not change the total amount
of nontrawl halibut PSC mortality allocated to the hook-and-line
Pacific cod sectors or to the other nontrawl groundfish fisheries.
Currently, the annual Pacific cod hook-and-line halibut PSC
allowance is apportioned among three seasons. A seasonal halibut PSC
allowance in the second season has not been specified in recent years;
thus, a hook-and-line directed fishery for Pacific cod has not operated
in the summer months. Halibut bycatch rates are typically high during
the second season. The hook-and-line CP sector generally supports not
providing a halibut PSC limit in the second season because the high
halibut bycatch rates could close the directed Pacific cod fishery
prior to the allocation being fully harvested. However, the hook-and-
line CV sector, which is constrained by the same PSC limit, is
comprised of smaller vessels with slower catch rates and a relatively
small Pacific cod allocation compared to the hook-and-line CP sector.
To enable the hook-and-line CVs to fish for Pacific cod in the summer
months when the weather is more favorable for these smaller vessels,
this final rule divides the halibut PSC allowance annually specified
for the hook-and-line Pacific cod fishery between two fishery sectors:
the hook-and-line CP sector and the hook-and-line CV sector (CVs
[gteqt]60 ft (18.3 m) LOA and CVs < 60 ft (18.3 m) LOA combined). NMFS
can provide varying amounts of halibut PSC by season to each sector,
tailoring PSC limits to suit the needs and timing of each sector. NMFS
decision to disapprove the proposed subdivision of annual PSC limits
apportioned to the Pacific cod trawl gear fisheries is explained below.
Sideboards are harvesting and processing restrictions that were
placed on AFA trawl CVs and AFA trawl CPs operating in the BSAI pollock
fishery to protect the interests of other fishermen and processors that
did not benefit directly from the AFA. This final rule removes the
sideboard limits of BSAI Pacific cod for the AFA trawl CPs. The
establishment of a separate Pacific cod allocation to this sector
negates the need for the BSAI Pacific cod sideboard which protects the
historic share of the non-AFA trawl CP sector from being eroded by the
AFA trawl CP vessels. For the same reason, BSAI Pacific cod is added to
the list of exceptions to the groundfish species or species groups for
which sideboard harvest limits are calculated for the listed AFA trawl
CPs. The halibut and crab PSC sideboard limits for both AFA sectors are
maintained as currently specified in regulations.
This final rule modifies or adds definitions for CPs in accordance
with the Consolidated Appropriations Act, 2005 (Public Law 108-447).
This final rule revises the definition for AFA trawl CP and adds new
definitions for hook-and-line CP, non-AFA trawl CP (also known as the
head-and-gut sector), and pot CP. The new definition for hook-and-line
CP is substantively consistent with the Consolidated Appropriations
Act's definition for the longline CP subsector. Also, the definition
for ``CDQ reserve'' is revised to change and update terms and to
generalize the cross reference. All of the various housekeeping
revisions described in the proposed rule also are made by this final
rule.
Element of the Proposed Rule Not Approved
NMFS did not approve one regulatory change recommended by the
Council and included in the proposed rule. For reasons explained below,
NMFS did not approve the Council's recommendation to further apportion
the Pacific cod trawl fishery crab and halibut PSC allowances among the
trawl sectors.
PSC regulations pertain to certain species caught in the process of
fishing for groundfish that must be accounted for, but cannot be
retained unless the vessel participates in the halibut and salmon
donation program at Sec. 679.26. Regulations at Sec. 679.21 establish
PSC limits for Pacific halibut, three species of crab, salmon, and
herring in the BSAI trawl groundfish fisheries, and a separate Pacific
halibut PSC limit for nontrawl gear. These regulations also establish
allocations of each PSC limit between the CDQ and non-CDQ fisheries and
a process for apportioning PSC among non-CDQ fisheries.
Currently, the total amount of halibut PSC mortality for trawl gear
in the non-CDQ fisheries is apportioned in the annual harvest
specifications process among four fisheries, including the Pacific cod
fishery. The current process of fishery apportionment will continue
under this final rule. Generally, about 1,400 mt of halibut PSC
mortality is apportioned annually to the BSAI Pacific cod trawl
fishery, but this amount and actual use can vary from year to year.
Crab PSC limits fluctuate as resource abundance fluctuates.
In recent years, the trawl CV and trawl CP sectors' directed
Pacific cod fisheries have closed most often (1) due to reaching the
seasonal TAC, (2) to avoid exceeding specified halibut PSC allowances,
or (3) because a fishing season has ended. Reaching a crab PSC limit
results in closure of a specific area to directed fishing. Unlike
reaching a halibut PSC limit, reaching a crab PSC limit typically does
not close BSAI Pacific cod trawl fisheries, although occasional crab
PSC closures have occurred in the past.
The Council recommended that the amount of halibut and crab PSC
that would be apportioned to each trawl sector for the Pacific cod
trawl fishery under this action be proportional to each sector's
percentage of Pacific cod harvested in the Pacific cod target fishery
from 1999 through 2003, including Pacific cod retained for meal
production. Accordingly, the proposed rule divided the annual PSC
allowance of halibut and crab specified for the Pacific cod trawl
fishery category among the trawl sectors as follows: 70.7 percent for
trawl CVs; 4.4 percent for AFA trawl CPs; and 24.9 percent for non-AFA
trawl CPs. Because the AFA and non-AFA trawl CVs would share a Pacific
cod allocation, the Council decided that this sector also should
receive combined halibut and crab PSC allowances.
The Council intended the apportionment of halibut and crab PSC
among the trawl gear sectors that target Pacific cod to allow each
sector to better plan its operations by being able to manage its PSC
use during the fishing year without its PSC being eroded by another
sector. Because the Council's apportionment of halibut and crab PSC was
proportional to a trawl sector's harvest of Pacific cod in a target
fishery, those sectors that harvested Pacific cod primarily as a target
species, rather than as a species caught incidentally in other
groundfish fisheries, would have received proportionally higher PSC
allowances. Under this apportionment,
[[Page 50792]]
the trawl CV and AFA trawl CP sectors would have received higher PSC
allowances than they have historically used or needed, and the non-AFA
trawl CP sector would have received significantly less PSC than it has
historically used or needed to optimize groundfish harvest under
current PSC limits.
During its deliberation on adoption of Amendment 85, the Council
understood and acknowledged that the percentage of halibut and crab PSC
apportioned to the non-AFA trawl CP sector could be constraining
compared to average historic use, but chose not to modify its decision.
The Council determined that the amount of PSC that would be apportioned
to the non-AFA trawl CP sector would fall within the range of what this
sector has caught historically.
Under the Council's recommendation and the proposed rule, the non-
AFA trawl CP sector would have received 22 percent less halibut PSC and
37 percent less Zone 1 bairdi (Chionoecetes bairdi) crab PSC than it
has used historically to prosecute its directed Pacific cod fishery and
only about the average amount of opilio (Chionoecetes opilio) crab PSC.
Conversely, the AFA trawl CP and the trawl CV sectors would have
received about 200 percent and 40 percent more halibut PSC, 19 percent
and 116 percent more bairdi crab PSC, and 3,144 percent and 20,904
percent more opilio crab PSC, respectively, than these sectors have
used historically.
Regulations implementing the FMP must be consistent with the
Magnuson-Stevens Act, including the national standards, and other
applicable law. NMFS determined that further apportionment of halibut
and crab PSC among Pacific cod trawl sectors as proposed by the Council
is inconsistent with National Standards 1, 4, and 9 of the Magnuson-
Stevens Act. National Standard 1 requires that fishery management
measures prevent overfishing while maintaining optimum yield from each
fishery, National Standard 4 requires allocations to be fair and
equitable among affected fishermen, and National Standard 9 requires
that bycatch and the mortality of any bycatch be minimized to the
extent practicable. Under the existing open access management of the
non-AFA Pacific cod trawl fishery, NMFS determined that the non-AFA
trawl CP sector is unlikely to be able to harvest its entire allocation
of Pacific cod with the significant reductions in the proposed amount
of halibut and crab PSC as detailed above. This would result in a de
facto reduction in the non-AFA trawl CP Pacific cod allocation and
would likely reduce this sector's ability to harvest other targeted
species. The Council did not provide any explanation as to why an
additional reduction in this sector's harvest of Pacific cod and other
target species not the subject of this final rule is appropriate or
consistent with National Standard 4 or other applicable law.
Additionally, because the amount of PSC allocated to the AFA trawl CP
and the trawl CV sectors is so much greater than their historical
needs, the proposed PSC allocations to these sectors may create a
disincentive for these sectors to minimize their bycatch of prohibited
species, which is not consistent with National Standard 9. Finally,
because the non-AFA trawl CP sector harvests a significant majority of
species other than pollock and Pacific cod, an inconsistency with
National Standard 1 exists. The non-AFA trawl CP sector would likely
not have PSC remaining from its Pacific cod fishery that could then be
used to achieve optimum yield from its other BSAI groundfish fisheries.
Based on the reasons discussed above, therefore, NMFS disapproved
the apportionment of the annual PSC allowances of halibut and crab
mortality among the Pacific cod trawl gear sectors. Regulations
pertaining to this element are not included in this final rule. These
apportionments will continue to be specified during the annual harvest
specifications process.
NMFS notes that a separate amendment to the FMP, Amendment 80, was
approved by the Secretary on July 26, 2007. Amendment 80 primarily
allocates several BSAI non-pollock trawl groundfish fisheries, halibut
PSC, and crab PSC among fishing sectors, and facilitates the formation
of harvesting cooperatives in the non-AFA trawl CP sector. The proposed
rule to implement Amendment 80 was published in the Federal Register on
May 30, 2007 (72 FR 30052) and was available for public comment until
June 29, 2007.
Changes in Regulations from the Proposed Rule to the Final Rule
NMFS made several changes to the proposed regulatory text in this
final rule. First, NMFS has removed proposed Sec. 679.21(e)(3)(v) from
the final rule. Proposed Sec. 679.21(e)(3)(v) included the proposed
PSC allowances for the trawl sector which NMFS disapproved for the
reasons explained above. Proposed Sec. 679.21(e)(3)(vi) reverts back
to Sec. 679.21(e)(3)(v) in this final rule as a result of removing
proposed Sec. 679.21(e)(3)(v). NMFS also has removed references to
proposed Sec. 679.21(e)(3)(v) from the final rule.
Second, the proposed regulatory text at Sec. 679.20(a)(7)(i)(B)(1)
regarding CDQ seasonal allowances combined all CDQ trawl vessels into
one group. This final rule revises the proposed regulatory text to
maintain the division between trawl CP and trawl CV that exists in the
current regulations. No changes to the CDQ Program seasonal allowances
were intended by the Council.
Last, the proposed regulatory text at Sec. 679.20(a)(7)(iii)(B)
inadvertently included the heading ``trawl catcher/processor sectors.''
This heading is changed in this final rule to ``trawl gear sectors''
because this part of the reallocation hierarchy applies to all trawl
gear sectors, not just the trawl CP sectors.
Response to Comments
As mentioned above, NMFS received 16 letters containing 79 unique
comments during the public comment periods. Two non-industry letters
were received and 14 letters were received from the fishing industry. A
summary of those comments, grouped by subject matter, and NMFS'
responses follow.
Comment on the Intent of Amendment 85
Comment 1: One commenter supports the intent of Amendment 85 to
modify the allocations of Pacific cod by codifying the fishery as it is
actually occurring with the goal of reducing inseason adjustments
(reallocations) from the trawl sectors to the hook-and-line sectors.
Another commenter supports the intent of Amendment 85 to modify the
allocations of Pacific cod to various sectors to better reflect
historic usage.
Response: NMFS notes the support for Amendment 85 and clarifies
that one intention of this action is to better reflect historic use,
not current use, as noted in this excerpt from the Council's problem
statement: ``To reduce uncertainty and provide stability, allocations
should be adjusted to better reflect historic use by sector. The basis
for determining sector allocations will be catch history as well as
consideration of socio-economic and community factors.''
Comments on Data Used
Comment 2: The catch history information used in Amendment 85 was
based on the best scientific information available (1995-2003 WPR
(Weekly Production Report) and fish ticket data for retained catch).
Preliminary data from 2004 and 2005 were also considered. It is
appropriate to use WPR data to calculate catch history by sector for
the CPs because it is the only data set common to all CP vessels. The
use of WPR data was well noticed to the
[[Page 50793]]
public. The non-inclusion of fishmeal was consistent with all previous
Council actions involving allocation.
Response: NMFS agrees that the catch history information used to
develop Amendment 85 and presented in the proposed rule was based on
the best scientific information available, consistent with National
Standard 2 of the Magnuson-Stevens Act. Only legally retained catch was
used in determining harvest history to avoid rewarding sectors with a
high discard rate of Pacific cod. However, data presented in the EA/
RIR/initial regulatory flexibility analysis (IRFA) and considered by
NMFS in its decision to approve the non-CDQ allocations in Amendment 85
did include cod destined for fishmeal production because it is legally
retained catch. The analysis used data from Federal WPRs, which include
fishmeal data, and the Alaska Department of Fish and Game (ADF&G) fish
tickets to calculate sector specific harvest history. These databases
were used because they are consistent across all sectors and every
sector's production of Pacific cod is weighed and reported on WPRs and/
or fish tickets.
Total harvest was calculated based on retained legal harvest
(including Pacific cod that was turned into fishmeal as the primary
product) from WPRs and ADF&G fish tickets. In addition, total harvest
(retained and discarded cod, including fishmeal) from NMFS blend data,
and the catch accounting database was provided in Section 3.3.5 (Table
3-24) of the analysis. The NMFS blend data and data from the catch
accounting database (used since 2003) utilize observer data, shoreside
processor landings data, and fish tickets. In the cod target fishery,
blend data are calculated from partial haul samples, including
discards. Observer estimates are extrapolated for some sectors because
of varying levels of observer coverage. Because the AFA trawl CP sector
is 100 percent observed, the best information available for that sector
would be the blend data. However, not all sectors would be treated
equally if blend data were used because not all sectors are 100 percent
observed. Therefore, the decision by NMFS to use WPR data and ADF&G
fish tickets, and to include cod destined for fishmeal in the
determination of harvest history is fair and equitable, and is
consistent with National Standards 2 and 4 of the Magnuson-Stevens Act.
Comment 3: The range of dates selected seriously over-weighted the
pre-Amendment 46 period, an inept historical analogue to the current
fishery and a period of time for which Amendment 85 was explicitly
designed to supersede in order to better reflect current use and
dependence. The express purpose of Amendment 85 is to conform
allocations to existing realities. The years most relevant to existing
realities are the most recent years and the Council failed to consider
those years.
Current allocations are based on historical usage prior to 1997,
and the Council's problem statement seeks to address the fact that
``the current allocations do not correspond with actual dependency and
use by sectors.'' Allocations set in 1997 closely tracked actual usage
at that time to determine what are now the current allocations.
Therefore, any history prior to 1997 should not be used because it is
different from the ``actual use'' which Amendment 85 is intended to
reflect.
Beginning in 1998, Pacific cod had to be retained by all vessels as
long as directed fishing was open; no sector should be penalized for
discarded fish that were legally discarded prior to that. Comparing
sectors that only target cod with sectors that both target and have
incidental catches of cod is not comparing apples to apples. The
Council considered data that contained only retained catch, so they
understate the amount of Pacific cod the non-AFA trawl CPs needed to
prosecute other fisheries in the years prior to 1998. Under the current
regulatory scheme that fish would be retained and counted.
In 1999, the AFA identified a number of AFA vessels and granted
them exclusive access to BSAI pollock. The non-AFA trawl CPs were
excluded from targeting pollock and increased their harvest share of
Pacific cod. All but one of the AFA trawl CPs ceased to target Pacific
cod.
Rewarding one sector over the other for legal discard activity from
10 years prior to final Council action does not correspond to
dependencies developed in light of the current management era, which
began with a new cod allocation in 1997, 100 percent mandatory
retention in 1998, and the AFA in 1999 which preempted the head-and-gut
(H&G) fleet from the largest groundfish fishery in North America.
Therefore, earlier years do not indicate ``present participation'' or
``actual use.''
Response: As stated in the response to Comment 1, the allocations
established by Amendment 85 and this final rule are intended to better
reflect a sector's historic use, not current use. In referencing the
Council's problem statement, the commenter appears to equate ``actual''
with current, but this is not what the Council meant by ``actual.'' The
problem statement also states, ``The basis for determining sector
allocations will be catch history as well as consideration of socio-
economic and community factors.'' One year or just a few recent years
is not reflective of catch history and dependence over time. No one
year in the history from 1995 to 2003 was given more weight than any
other.
The Council had several options available in setting the allocation
percentages, including the harvest histories from several specific set
of years, and an option to select direct allocation percentages from
within the range of analyzed percentages. The Council chose to select
allocations for the non-CDQ sectors that were within the range of
analyzed percentages, and that more closely represent an average of
retained catch for most sectors from 1995 through 2003.
Harvest history for each sector was based on annual retained catch.
The data presented in the EA/RIR/FRFA include historic harvest from
1995 through 2003 as the primary basis for determining historic use of
Pacific cod by sector, although data from 2004 to 2005 are provided as
well. The starting year of 1995 was chosen because it includes data
from the early years of sector allocations of Pacific cod TAC that
began in 1994 with the implementation of BSAI Amendment 24 to the FMP
(59 FR 4009, January 28, 1994). This set of years also includes changes
in Pacific cod harvest due to impacts beginning in 1998 from
implementation of improved retention/improved utilization measures to
reduce discards, from AFA legislation in 1999, and from Steller sea
lion protection measures beginning in 2001, all of which had impacts on
all sectors to varying degrees. Pacific cod has been a valuable species
for a long time, therefore, it is important to also consider the time
period before these major legislative and regulatory programs to
determine historic dependence and use. Also, consideration of just
three or four recent years does not show dependency by the sectors over
time and may be unduly biased because of increased market demand for
Pacific cod in recent years for some products, potential decreased
participation due to BSAI crab rationalization, and the likelihood of
competition for Pacific cod among sectors in anticipation of this
action.
At the time the Amendment 85 analysis was initiated by the Council
in late 2004, the data from 2003 were the most recent available. Rather
than continually adding years as the action progressed, the data
analyzed for the allocation options stopped with the data from 2003.
The Council and NMFS
[[Page 50794]]
considered more recent (2004 and 2005) harvest data from the NMFS catch
accounting database in reviewing harvest history to illustrate recent
harvest trends as that information became available, but it was not
available in the same format as the data from 1995 through 2003.
However, for the reasons stated above, this two-year data set was not
used as the sole basis for the allocations. Additionally, the data
showed that some sectors increased their harvest of Pacific cod during
the recent past, compared to their 1995 through 2003 harvest, and were
not constrained by their allocation in doing so because they did not
harvest their entire allocation. Not all sectors had the advantage of
such flexibility. Therefore, based upon all these reasons, focusing on
more recent years does not provide an equitable standard upon which to
assess the dependence of Pacific cod by all sectors. The use of data
from 1995 through 2003 provides a more appropriate basis to determine
historic harvest share.
In 1994 under Amendment 24, the trawl sectors were allocated 54
percent of the Pacific cod TAC, the fixed gear sectors received 44
percent, and the jig gear sector received 2 percent. This allocation
was approximately equal to the average percent of Pacific cod taken
with trawl gear or fixed gear between 1991 and 1993. In 1997 under
Amendment 46, the allocation to the trawl sector was reduced to 47
percent and then equally divided between trawl CPs and trawl CVs. The
reduced allocation to the trawl sector was determined by an industry
negotiating committee and closely represented the harvest percentages
taken by trawl and fixed gear at that time while retaining the 2-
percent allocation for jig gear. The split between trawl CVs and trawl
CPs was agreed upon by a separate negotiation between representatives
of the trawl sectors to maintain a directed fishery for trawl CVs which
were more dependent on directed fishing for Pacific cod. These basic
trawl and fixed gear percentage allocations of Pacific cod TAC have
remained unchanged since 1997. The fixed gear sectors were divided in
2000 and the pot sectors in 2004, but the overall split between trawl
and fixed gear sectors and between trawl CPs and trawl CVs did not
change.
The high discard rates of Pacific cod is an issue that the Council
has been addressing for some time. The problem statement for Amendment
46 states: ``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.''
The Council's intent under Amendment 85 was to calculate historic
catch by using retained harvest of Pacific cod, because Pacific cod is
required to be retained (in both the directed fishery, and up to the
maximum retainable allowance when the directed Pacific cod fishery is
closed) and it was not the intent to ``reward'' sectors that have
higher discards of Pacific cod. This is why discarded Pacific cod was
not included in the harvest history data. All of the harvest data
provided were considered in the allocation decision by the Council and
by NMFS. Most sectors have incidental catch of Pacific cod in their
fisheries. The exceptions are the jig and pot gear sectors. By using
historic catch over the same set of years and using the same data set
for all sectors (see response to Comment 2), all sectors were treated
fairly and equitably, consistent with National Standard 4 of the
Magnuson-Stevens Act.
Comment 4: The use of WPRs to calculate the round weight of cod
harvested by the AFA trawl CP sector for the years after 1998 is a
significant source of error in the catch history tables set forth in
the draft analysis. The use of observer reports and scale weights is
universally recognized as a more accurate way of calculating a vessel's
total catch than the somewhat antiquated WPR approach. The use of WPR
data as a basis for the AFA trawl CP catch history is inconsistent with
the requirement that management measures be based on ``the best
scientific evidence available.'' The draft analysis should be revised
to clarify that observer data (not WPRs) represent the best available
data for the post-1998 catch history of the AFA trawl CP sector.
Response: The Council's and NMFS' use of WPR data rather than NMFS
blend data and the catch accounting database, which both use observer
data as one component, is explained in the response to Comment 2. WPR
data and blend data estimate catch using different methods. WPR data
represents a consistent database across all sectors; every sector's
product is weighed, and landed weights are converted to round weights.
The blend data estimate catch based on vessel catch reports augmented
by observer data, and are used for in-season management. The blend data
use observer estimates of discards, which affect the total catch
estimates. In the cod target fishery, observer estimates are based
primarily on partial haul sampling. In general, CPs < 125 ft (38.1 m)
LOA are observed 30 percent of the time, and blend data use WPR data
when there are no observer data available. Finally, during the years
considered to establish allocations (1995 2003), the more accurate flow
scales were used more extensively in the AFA CP sector than in other
sectors. Because the AFA trawl CP sector is 100 percent observed, the
best information available for that sector would be the blend data.
However, blend data are not available by vessel length for the CV
sectors, which primarily affects the < 60 ft (18.3 m) fixed gear CVs.
Also, the non-AFA trawl CPs < 125 ft (38.1 m) LOA are observed 30
percent of the time, so WPR data are used when there are no observer
data available. These two datasets rely on different estimation methods
and do not provide identical estimates of catch by sector. Use of blend
data for some sectors and WPR data for other sectors would be
problematic because any estimation error among sectors could be
exacerbated if different datasets are used to determine sector specific
allocations. Therefore, the best available data when comparing Pacific
cod harvests among all sectors for the determination of harvest history
is WPR data and ADF&G fish tickets (see response to Comment 2).
Acknowledging that observer data are used to monitor catch for this one
sector because it is 100 percent observed would not change the decision
on the amendment. Therefore, no changes will be made to the analysis
concerning this subject.
Comment 5: The data used in the draft analysis excludes Pacific cod
utilized in the production of meal from the AFA trawl CP's catch
history. It is inappropriate for the draft analysis to exclude or
otherwise discount Pacific cod used for meal production from any of the
tables used to depict catch history for the AFA trawl CP sector. There
is no justification for excluding the official catch data from an
analysis that purportedly reflects the catch history of this sector.
The combined effect of using WPR-based catch accounting to calculate
the AFA trawl CP catch history and excluding the catch used to make
meal results in an inaccurate estimate of the sector's catch history
that understates the AFA trawl CP sector's historic use and dependency
on cod. The draft analysis should be revised to clarify that meal is a
``legally retainable product'' insofar as that term is used in
connection with Amendment 85 and other regulations governing the BSAI
groundfish fishery; and that all legally retained cod taken as bycatch
in
[[Page 50795]]
the directed pollock fishery will be included in the AFA trawl CP
sector's catch history for purposes of Amendment 85.
Response: The concern about fishmeal not being included in
calculations of harvest history was a result of some commenters relying
on a draft analysis distributed prior to the April 2006 Council
meeting. As explained in the response to Comment 2, WPR data represent
the best available information for comparing Pacific cod catch across
and among sectors. WPR data include Pacific cod destined for fishmeal.
However, in the early development of the Amendment 85 analysis, data
for Pacific cod destined for fishmeal were removed from the WPR data
and Council analytical documents up to the April 2006 Council meeting
continued to exclude fishmeal data. At the April 2006 Council meeting,
in light of public comment, WPR data that included fishmeal data was
provided for Council consideration. As explained in response to Comment
2, the history considered in setting non-CDQ allocation percentages in
Amendment 85 included Pacific cod that was turned into fishmeal as the
primary product. Several tables that incorporated fishmeal in the
harvest history were presented to the Council in April 2006 for its
consideration and similar tables were included in the Secretarial
review draft analysis issued in January 2007. The analysis was not
revised in light of this comment because the data on fishmeal were
considered and included in setting the Pacific cod allocation to the
AFA trawl CP sector and the historic catch data including fishmeal are
presented in the analysis.
Comment 6: The H&G sector allocation of 13.4 percent is 0.2 percent
less than the sector's straight 95-03 average. The action was taken in
2006, however the last year considered was 2003. This sector's
``historic use'' and ``actual dependency'' are not adequately reflected
if 2004 and 2005 are not taken into consideration for a final action
taken in 2006. The Magnuson-Stevens Act instructs that recency must be
considered as well. By allocating the H&G sector an amount of cod less
than its average harvest for the historical period of 1995 to 2003, the
Council simply ignored the present participation consideration.
Response: NMFS disagrees that the non-AFA trawl CP sector was
allocated an amount of Pacific cod that is less than its average
historic harvest for the period 1995 to 2003 (average historic
harvest). NMFS believes that the commenter's reference to 13.6 percent
is likely based on data in the analysis that excludes fishmeal in the
calculation of average sector harvest share (see Table 3-11 in the EA/
RIR/FRFA). The Council and NMFS included fishmeal in determining
historic harvest. When fishmeal is included in the calculation, the
head-and-gut (non-AFA trawl CP) sector average historic harvest from
1995 to 2003 is 13.4 percent. The non-AFA trawl CP sector received
exactly its 1995 to 2003 average historic harvest as its allocation
under Amendment 85. The Council and NMFS also considered more recent
participation in 2004 and 2005, but for reasons provided in the
response to Comment 3, chose not to include more recent participation
in determining historic use and dependence.
Comment 7: The draft analysis should be revised to include at least
one table (based on official catch data and including fish utilized in
meal production) that clearly shows the total retained catch of cod by
the AFA trawl CP sector during the period following adoption of the AFA
(e.g., the years 1999-2003).
Response: Appendix G of the analysis prepared for Amendment 85 and
this rulemaking (see ADDRESSES) includes Pacific cod catch data,
including fishmeal, for the AFA trawl CP sector for the years 1995
through 2003. Therefore, NMFS does not need to revise the analysis to
include this table.
Comment 8: Neither the EA/RIR/IRFA before the Council nor the
Secretarial draft had simply one table which showed the complete
picture of each sectors' history. It takes three tables to complete the
1995-2005 picture.
Response: Table 3-24 in the Secretarial review draft of the EA/RIR/
IRFA gives the data for BSAI Pacific cod non-CDQ allocations, catch and
reallocations by sector from 1995 through 2005. The proposed rule
purposely used two tables and the Secretarial review draft analysis
used three to present the historical catch data as the average share of
the retained Pacific cod harvest over various time periods. Table 3-9
in the EA/RIR/IRFA was used to show the complete picture of each
sector's history for the years under consideration for allocations
(1995 - 2003), and Table 3-12 shows the catch history for 2004 and 2005
in a two-part table. The data from 1995 through 2003 used in Table 3 in
the proposed rule were from a different source than the data for 2004
and 2005 used in Table 4. Separate tables were used to help draw
attention to this fact in the proposed rule and for the same reason in
the EA/RIR/FRFA.
Comment 9: The proposed allocation to the H&G sector cannot be
justified by the fact that the H&G sector had a lower harvest share in
1995-1998, nine to twelve years ago and prior to the implementation of
several significant regulatory changes culminating in the AFA that
fundamentally changed the dynamics of the fishery, and that as a result
its ``average historical'' retained catch was 13.4 percent. The
sector's performance in those earlier years is of no relevance to the
goal that the Council was seeking to achieve.
Response: NMFS disagrees. The reasons why data from 1995 through
1998 are included in the calculation of average historic harvest are
explained in the response to Comment 3. While the data may represent a
period of time when the non-AFA trawl CP sector was not maximizing its
retained harvest of Pacific cod, it does represent a period of time
when other sectors were maximizing their harvest. The Council's goal
was to adjust allocations ``to better reflect historic use by sector.''
NMFS determined that the years selected by the Council are consistent
with that goal.
Comment 10: The Council was not required to use one particular set
of ``correct'' years in conforming the allocations to existing reality,
but the allocation to the non-AFA trawl CP sector was clearly beyond
any rational assessment of ``actual use.'' Within the range of options
presented to the Council in the Amendment 85 document (April draft),
the period from 2000 to 2003 clearly was most reflective of actual
current participation in the fishery. Under that approach, the non-AFA
trawl CP sector averaged 16.2 percent. At the other extreme, under the
option least reflective of actual current participation, from 1995 to
2002, the non-AFA trawl CP sector average 13.2 percent. Incredibly, the
Council chose to allocate an even smaller share to the non-AFA trawl CP
sector than the 1995-2003 average of 13.6 percent. The Council's
proposal of 13.4 percent does not reflect the non-AFA trawl CP sector's
current or even its relevant recent participation in this fishery. This
reduction was not part of an across-the-board cut that treated all
sectors equitably. Some sectors received an increase above their actual
use and the non-AFA trawl CP sector received the largest decrease.
Response: See the response to Comment 3 for a discussion of the
years considered to determine average historic harvest. The non-AFA
trawl CP sector catch history from 1995 through 2003 is 13.6 percent
only if fishmeal is not included. However, the Council's allocation
recommendation included Pacific cod that was turned into fishmeal as
the primary product when
[[Page 50796]]
developing the Pacific cod sector allocations because Pacific cod
destined for fishmeal production is legally retained catch (see
response to Comment 2). Table 3-119 of the EA/RIR/FRFA shows that when
fishmeal is included in the calculation, which the Council did in
taking final action, the non-AFA trawl CP sector's average from 1995
through 2003 matches exactly the new allocation: 13.4 percent of the
non-CDQ Pacific cod TAC. Some sectors received allocations that are
greater than their historic harvest during 1995 through 2003 and others
less, but the non-AFA trawl CP sector was the only sector to receive
exactly its average share of the retained harvest from 1995 through
2003.
Comment 11: Comparing the harvest information from 2004 and 2005
with the Amendment 85 allocations reveals that the non-AFA trawl CP
sector suffered nearly an order of magnitude loss greater than any
other sector (most of which received allocations at or above their
2004-2005 average). Comparing the Amendment 85 allocation to the
average of 1998-2003 (a range from when cod became a 100-percent
retention species to the last year of data the Council had when making
their decision), the non-AFA trawl CP fleet still lost far more than
any other sector going from an average of 15.7 percent to 13.4 percent
(relative loss of 14.5 percent).
Response: The Council had harvest data from 2004 and 2005 available
when it took final action on Amendment 85. It was not available in the
same format as the years from 1995 through 2003, but it was considered
by the Council. The non-AFA trawl CP sector allocation is exactly its
catch history from 1995 through 2003. As stated previously (see
responses to Comments 2 and 3), the Council chose to look at history
and dependency over a number of years, not just one or two recent
years. Although the non-AFA trawl CP sector's retention of Pacific cod
has increased over the last several years, that sector always had the
opportunity to retain Pacific cod in higher amounts than they
historically did. For various reasons, the sector chose to focus on
other species as a business decision. The Council determined that the
new allocations were needed to better reflect historic use and chose
not to define historic use as just the last two or three years.
Comments on Allocation Issues
Comment 12: The increase in allocation percentage to fixed gear
from trawl gear is consistent with the historic trend in the way the
BSAI cod fishery is prosecuted as well as with previous Council actions
regarding BSAI cod allocations in Amendments 24 and 46. Stabilizing the
increased historic proportion of fixed gear harvest via allocation of
BSAI Pacific cod in Amendment 85 will ensure the continued experience
of reduced halibut and crab bycatch, improved product quality, and
reduced benthic impacts associated with fixed gear cod fisheries as
compared to trawl cod fisheries.
Response: Amendment 85 is intended to better reflect historic usage
by the various harvest sectors while addressing coastal community
needs. The Pacific cod allocations to the trawl and fixed gear sectors
set in 1994 under Amendment 24 (54 percent and 44 percent,
respectively), were approximately equal to the average percentage of
Pacific cod taken with these gear types during 1991 through 1993, with
a 2-percent allocation for jig gear. The Pacific cod allocations set in
1996 under Amendment 46 were arrived at by industry negotiation and
were chosen to represent more closely the harvest percentage taken by
trawl and fixed gear sectors at that time (47 percent and 51 percent,
respectively), while maintaining the 2-percent allocation for jig gear.
Under Amendment 85, if the harvest sectors were similarly grouped, the
allocations would be 37.8 percent for trawl gear, 60.8 percent for
fixed gear, and 1.4 percent for jig gear. NMFS has determined that the
sector allocations proposed under Amendment 85 better reflect the
historic use by the various harvest sectors as a whole than do the
current sector allocations, and has approved them. NMFS notes the
second comment.
Comment 13: All sectors received amounts that reflect recent
participation, except the AFA CPs which received more, and the small
boat fleets which also received much more than their history, as a
policy decision. Only the H&G fleet has suffered a set back so large
that both its directed fishery and its non-cod directed fisheries are
jeopardized, while the other sectors' annual fish plans were not
affected.
Response: NMFS approved the non-CDQ sector allocation percentages
in Amendment 85. The following is NMFS' rationale for that decision.
Amendment 85 will separate trawl CPs into two sectors, AFA and non-AFA,
for purposes of Pacific cod allocations. The AFA trawl CP fleet will be
restricted to a separate allocation slightly greater than its historic
catch from 1995 through 2003, but 62.3 percent below its current
sideboard limit for catch of Pacific cod. Separating the two sectors
will protect the historic catch of the non-AFA trawl CPs better than
leaving these two sectors combined with a lower shared allocation that
reflects their combined history, but with the same AFA sideboard limit.
Although the AFA trawl CP sector decreased its average harvest share
between 2000 and 2003, this fleet is a cooperative that more likely
will catch its Pacific cod allocation in a manner that minimizes the
bycatch of non-target species. Bycatch is a consideration under
National Standards 4, 5, and 9 of the Magnuson-Stevens Act. Because the
allocation to the AFA trawl CP sector is slightly higher than this
sector's historic catch, it should be sufficient for this sector to
cooperatively manage its allocation and maintain a directed fishery, in
addition to meeting its needs for incidental catch in its pollock and
yellowfin sole fisheries. This ability to maintain the opportunity for
these few directed fisheries is important because AFA sideboard
provisions restrict this sector's ability to participate in other BSAI
fisheries and AFA trawl CPs are prohibited from fishing in the Gulf of
Alaska.
Only the non-AFA trawl CP sector will receive an allocation equal
to its exact average historic harvest share from 1995 through 2003. The
allocation to this sector is reflective of its dependence on the
Pacific cod fishery over many years. About half of its historic Pacific
cod harvest occurs as incidental catch in flatfish (primarily yellowfin
sole and rock sole), Atka mackerel, and rockfish fisheries. The BSAI
flatfish fisheries are the primary revenue source for this sector and
often incur high incidental catches of Pacific cod. Note that the trawl
CP sectors combined have contributed 49.1 percent on average to the
total annual reallocations of Pacific cod to other non-trawl sectors
between 2000 and 2004. Based on environmental considerations, the
nature of these sectors' fisheries, average historic harvest, and to
protect the non-AFA trawl CP harvest, NMFS determined that the
allocations under Amendment 85 to the trawl CP sectors are a reasonable
balance of the National Standards under the Magnuson Act.
The hook-and-line CV [gteqt]60 ft (18.3 m) LOA sector will receive
an allocation above its average historic harvest, and this allocation
will no longer be shared with the hook-and-line CV < 60 ft (18.3 m) LOA
sector. This will allow Pacific cod to remain open to directed fishing
for a longer period of time. Existing regulations governing bycatch
require that all Pacific cod be retained when directed fishing is open.
Thus, discard of Pacific cod by the hook-and-line CV
[[Page 50797]]
[gteqt]60 ft (18.3 m) LOA sector should be reduced when targeting other
species, particularly Pacific halibut, and to a lesser extent in its
sablefish and rockfish fisheries, an important consideration under
National Standards 4, 5, and 9.
The allocations are not based solely on historic harvest share, but
also are based on socioeconomic considerations, consistent with
National Standard 8. For this reason, the allocations are higher than
the average historic harvest for the jig sector and the fixed gear CV
< 60 ft (18.3 m) LOA sector. Under National Standard 8, NMFS must take
into account the importance of fishery resources to fishing communities
to provide for the sustained participation of such communities. By
maintaining allocations above the average harvest history for these two
entry level sectors, Amendment 85 maintains and expands local
opportunities for resident fishermen in small, coastal communities near
the fishing grounds to participate in the BSAI Pacific cod fishery.
The increase in the allocation to the fixed gear CV < 60 ft (18.3 m)
LOA sector from 0.7 to 2.0 percent of the non-CDQ Pacific cod TAC is
fair and equitable. This sector has been successfully harvesting part
of the allocation to the general hook-and line CV and pot CV
allocations, all of its allocation since 2002, and reallocations from
the jig sector since 2004. Its share of the harvest in 2004 and 2005
averaged 1.7 percent. The small CV sectors have been favored in
previous allocation measures for BSAI Pacific cod to encourage growth
in this entry level sector. Such actions have been successful as
illustrated by the steadily increasing harvests by this small boat
sector. The allocation of 2.0 percent to the fixed gear CV < 60 ft (18.3
m) LOA sector is necessary to provide sufficient Pacific cod for this
sector to harvest under its own direct allocation, separate from the
hook-and-line and pot CV [gteqt]60 ft (18.3 m) LOA sector allocations
these small boats currently may fish under, and to allow continued
growth in this small boat sector.
Although the jig sector allocation of 1.4 percent of the Pacific
cod TAC is 14 times higher than its historic harvest share, it is a
reduction from it current allocation of 2.0 percent. The intent of this
allocation is to provide for an entry level fishery. The reduced
allocation to the jig sector still allows for growth in this sector and
is closer to its historic harvest share than its current allocation.
Additionally, this allocation serves as a ``bank'' for anticipated
growth in the harvest of Pacific cod in all catcher vessel sectors
given that unused portions of the jig gear allocation are annually
reallocated first to the fixed gear < 60 ft (18.3 m) LOA sector (another
small boat, entry-level sector), and then to other CV fleets that
deliver to fishing communities. Also, under Amendment 85, reallocations
from the jig sector will be available to the fixed gear < 60 ft (18.3 m)
LOA sector earlier in the year. Being able to harvest the fish earlier
in the year when the weather is preferable for these small boats
(safety is a consideration under National Standard 10), should enable
this sector to harvest more of the reallocated fish than it does
currently. Therefore, in light of the likelihood of reallocations of
any unused allocations to the < 60 ft (18.3 m) LOA fixed gear sector,
and to other CV fleets that deliver shoreside to fishing communities,
the allocation of 1.4 percent of the Pacific cod TAC to the jig sector
is fair and equitable and meets the purpose and need of the action to
consider socio-economic and community factors.
For the small boat sectors to receive allocations above their
average historic harvest, some sectors must receive less than their
average historic harvest. The four sectors that will receive lower
allocations than their average historic harvests are the pot CV
[gteqt]60 ft (18.3 m) LOA, hook-and-line CP, pot CP, and trawl CV
sectors. Their allocations represent a reasonable balancing of
Magnuson-Stevens Act National Standard requirements while also meeting
the purpose and need of the action. The pot CV [gteqt]60 ft (18.3 m)
LOA sector and the hook-and-line CP sector will receive allocations
that are closer to their average historic harvests than are their
current allocations and are only slightly less than their average
historic harvests. Because the small boat sectors will receive
allocations above their historic harvest it is expected that the pot CV
[gteqt]60 ft (18.3 m) LOA sector and the hook-and-line CP sector also
may receive reallocations toward the end of the fishing year, which
will make their share of the TAC closer to their historic share of the
harvest. Additionally, the pot CV [gteqt]60 ft (18.3 m) LOA and trawl
CV sectors may receive reallocations of Pacific cod from other CVs or
from CPs of the same gear type. Also, the pot sectors are primarily
dependent on crab fisheries rather than on the Pacific cod fishery. The
pot CP and trawl CV sectors are the only sectors, other than the fixed
gear < 60 ft (18.3 m) LOA sector, that will receive allocations that are
less reflective of their average historic harvests between 1995 and
2003. Recent trends demonstrate that the pot CP and the trawl CV
sectors' harvest shares have decreased in recent years, such that the
allocations under Amendment 85 better reflect these sectors' average
harvest shares between 2000 and 2003 than do the current allocations.
The AFA trawl CP sector was the only other sector that decreased its
average harvest share between 2000 and 2003, but was not selected to
fund the increases in other sector allocations for the reasons stated
above. The allocation to the pot CP sector is fair and equitable
because of its more recent decreased harvest share and its greater
dependence on the crab fisheries. Although the trawl CV sector
allocation is reduced, a combined allocation of Pacific cod to the AFA
and non-AFA trawl CVs will take advantage of the existing AFA inshore
cooperative structure for discussion and agreement concerning access to
fishing grounds and harvesting activities in a manner that optimizes
the allocation to this sector for all CVs. Additionally, public
testimony at the April 2006 Council meeting requested that the two
trawl CV sectors remain combined. A combined allocation also is larger
than separate allocations to either the non-AFA or AFA CVs, thus
providing some protection in the event that trawl vessels that have not
historically participated in the fishery choose to do so.
Comment 14: The AFA trawl sectors would receive the largest
aggregate increased share of the Pacific cod fishery under the Council
proposal - 1.2 percent over the combined AFA trawl CP and trawl CV
history from 1999 through 2005.
Response: The data presented in the analysis include historic
harvest from 1995 through 2003 as the primary basis for determining
historic use of Pacific cod by sector, although data from 2004 to 2005
are presented as well. The Council did not make its proposal based on
catch history from 1999 through 2005 based on reasons given in response
to Comment 3. The trawl CV and AFA trawl CP sectors do not receive a
combined allocation. The AFA trawl CP sector will receive a share of
the non-CDQ Pacific cod TAC that is 0.1 percent higher than its
historic share from 1995 through 2003. The AFA trawl CV sector will
receive an allocation in combination with the non-AFA CV sector. That
allocation will be 1.9 percent less than its historic share from 1995
through 2003. Combining the AFA trawl CP sector with the trawl CV
sector results in a combined decreased share of 1.8 percent of the non-
CDQ Pacific cod TAC.
Comment 15: The proposed allocation of 13.4 percent to the non-AFA
trawl CP sector is significantly less than this sector's actual
dependence and use. The allocation scheme proposed by
[[Page 50798]]
Amendment 85 will put the H&G sector in an economically precarious
position, slashing its recent usage of cod by up to 30 percent based on
its harvest in 2004. The APA requires agency actions, such as Amendment
85, to bear a rational relationship to the problems they are intended
to address. Reducing the non-AFA trawl CP's allocation so substantially
below its actual harvest levels over the past seven years does not
serve the Council's ``primary objective'' of reducing the need for
annual reallocations. The Notice of Proposed Rulemaking relies upon
figures that clearly demonstrate this point. The Notice of Proposed
Rulemaking specifically points out that the non-AFA trawl CP sector's
retained harvest ``has not been less than 15.3 percent since 2000.''
There is no rational basis in the record to justify the reduction in
cod TAC suffered by the H&G sector in this Council recommendation.
Response: The allocations were based on long-term dependence and
catch history over many years. The harvest history was not based on
just one or two years of harvest by a particular sector (see responses
to Comments 3 and 13). The Council had the option to select from six
sets of specific years or to select percentages for the Pacific cod
allocations that fall within the range of percentages analyzed. The
Council chose the latter course of action. Thus, as the information was
presented in the analysis, the focus was on Pacific cod harvest history
from the years 1995 through 2003. NMFS recognizes that the selection of
certain year sets will be more beneficial to some sectors than the
selection of other year sets. In setting the percentages, the Council
made a reasonable balance of the National Standards under the Magnuson-
Stevens Act, particularly National Standards 4 and 8 which deal with
allocations and community considerations respectively. In examining the
Council's action, NMFS determined that the allocations reasonably
reflect the historic harvest of Pacific cod by each sector between 1995
and 2003. NMFS determined that consideration of the earlier years (1995
through 1998) is reasonable and that calculating harvest history
through 2003, rather than 2004 or 2005, is reasonable for the reasons
given in response to Comment 3.
As stated in the proposed rule, the primary objective of the
Council was to reduce the level and frequency of annual reallocations,
and thus enhance stability so each sector may better plan its fishing
year and operate more efficiently. Annual reallocations are expected to
be reduced under Amendment 85, and are thus related to the revised
allocations to each sector that more closely reflect historic use by
most sectors than do current allocations, while considering
socioeconomic and community factors. As noted in the response to
Comment 13, nearly half of the annual reallocations between 2000 and
2004 have come from the trawl CP sectors and those reallocations
averaged 19.4 percent of the initial trawl CP sector allocation.
Comment 16: National Standard 4 provides that ``If it becomes
necessary to allocate or assign fishing privileges among various U.S.
fishermen, such allocation shall be...fair and equitable to all such
fishermen...'' Elaboration of this requirement under Sec.
600.325(c)(3)(i)(A) requires that the particular allocation chosen be
``rationally connected to the achievement of OY [optimum yield] or the
furtherance of a legitimate FMP objective...'' and that ``the motive
for making a particular allocation should be justified in terms of the
objectives of the FMP; otherwise, the disadvantaged user groups or
individuals would suffer without cause.'' In this case, the objective
to conform allocations to current usage (to reduce late-year
reallocations of unharvested fish) and dependency cannot be rationally
served by reducing the non-AFA trawl CP sector allocation to one-
quarter to one-fifth below its actual recent harvest levels or by
allocating more than recent harvest levels to other sectors. Under
National Standard 4, an allocation may impose a hardship on one group
if it is outweighed by the total benefits received by another group or
groups. The Council would have had to make an estimate of the benefits
and hardships imposed by the allocation and compare them to those of
alternative allocation schemes, including the status quo. The Council
did not do that.
Response: NMFS has determined that the allocations are fair and
equitable to all sectors. Between the two quotes from the Code of
Federal Regulations is the sentence ``Inherent in an allocation is the
advantaging of one group to the detriment of another.'' This action
also is designed to increase the Pacific cod allocation to the small
boat sectors which is a legitimate FMP objective. The management
objectives in the FMP include promoting sustainable fisheries and
communities. Because the small boat sectors deliver to fishing
communities, increasing allocations to these sectors should promote
these fishing communities. This action also will decrease the amount of
Pacific cod that is reallocated to other sectors later in the season,
facilitating these sectors' ability to achieve optimum yield by better
planning their fishing year and operating more efficiently. The
response to Comment 3 provides NMFS' rationale for why the years 1995
through 2003 are a reasonable, fair, and equitable set of years for
determining the average historic share of the retained Pacific cod
harvest. Using that set of years, the non-AFA trawl CP sector received
a fair and equitable allocation which is exactly its average historic
harvest share from 1995 through 2003. Please see the response to
Comment 13 for a discussion of all sectors' allocations.
Comment 17: Every sector was allocated its target and incidental
cod needs, except the H&G sector. This discrepancy is not specifically
highlighted in the draft Secretarial Review. The H&G fleet was
allocated an insufficient amount for accommodating both a directed
fishery and incidental catch needs and, by inference, was given a
choice: target or bycatch, but not both. This violates National
Standard 4, that allocations be fair and equitable to all fishermen.
When one sector must decide between its target fishery and its other
groundfish fisheries, while others have been allocated in excess of or
close to their recent harvests, it is neither fair nor equitable,
particularly in light of the fact that it was never addressed in the
EA/RIR/IRFA.
In economic terms, NMFS' inseason manager estimates that under
Amendment 85, the H&G sector would lose about 10,000 metric tons of cod
in 2007 compared to expected harvest under the status quo. NMFS' in-
season manager also estimates that in order to account for the
incidental catch needs of the fleet for its flatfish and other
fisheries, the agency will only be able to allow for a directed fishery
of 10 or 11 days, whereas currently, the directed cod fishery is seldom
closed. Owners, employees, observer providers, support companies, and
the ports the vessels call on may suffer economic hardship under
Amendment 85. We respectfully request that the Secretary disapprove the
allocations.
Response: NMFS has approved the non-CDQ allocations of Pacific cod
under Amendment 85. Every sector, except the small boat sector, was
allocated an amount of Pacific cod that reflects its average historic
harvest and dependence over many years that included target and
incidental catch to the extent that incidental catch was retained.
Information on the historic harvest share for the non-AFA trawl CP
sector was provided in the EA/RIR/FRFA, just as it was for all the
other sectors. The non-AFA trawl CP sector's allocation of 13.4 percent
of the Pacific cod non-CDQ TAC is 100 percent of its average historic
harvest between 1995
[[Page 50799]]
and 2003, an exact reflection of its historic use and reflective of
this sector's dependence on the resource over many years. Its recent
increase in directed fishing for Pacific cod does not reflect a long-
term dependence on the fishery. NMFS acknowledges that accommodating
target and incidental catch may be more difficult for the non-AFA trawl
CP sector when compared to its most recent few years' harvest.
The economic impacts of Amendment 85 were analyzed in the RIR and
IRFA. Because this action is principally designed to reapportion access
to the Pacific cod resource among current user groups, it represents
tradeoffs (i.e., some entities are negatively affected while others are
positively affected). The estimates referred to by the commenter were
provided by NMFS a few weeks after the April 2006 Council meeting as a
worst case scenario using lower acceptable biological catch (ABC) and
TAC levels than actually were established for 2007 and assuming that
the non-AFA trawl CP sector would continue conducting its fisheries as
it does currently. Revising the estimates for 2007 based on the actual
TAC and with a CDQ allocation of 10.7 percent would yield an estimate
of 19 to 20 days of directed fishing under current non-AFA trawl CP
fishing practices. If incidental catch rates of Pacific cod in other
groundfish fisheries are reduced below the current rates, the non-AFA
trawl CP sector should be able to maintain a directed fishery for
Pacific cod for an even longer period of time. As stated in the EA/RIR/
FRFA on pages 294 and 295: ``With a lower potential allocation compared
to recent years, this sector will likely need to determine how much of
its cod allocation will be used as incidental catch to other target
fisheries versus to fund the directed cod fishery,'' and ``Absent a
cooperative structure as approved [by the Council] in [proposed]
Amendment 80, it is expected that compliance with the groundfish
retention standards and management of a lower Pacific cod allocation to
serve both directed and incidental catch needs, will be substantially
more difficult.'' See response to Comment 16 regarding consistency of
Amendment 85 and this final rule with National Standard 4.
Comment 18: The loss of a directed cod fishery leaves the H&G fleet
with no fishery from the end of the yellowfin sole fishery (which ended
in mid-April of 2006) until July, when the ``B'' season starts. No
other fleet will see its current operations disrupted by Amendment 85
the way that the H&G sector will.
Response: Under existing regulations, Pacific cod allocations are
further apportioned by season for most gear sectors to protect prey
availability for Steller sea lions. Currently, the trawl CPs, AFA and
non-AFA combined, receive 50 percent of their allocation in the A
season, 30 percent in the B season, and 20 percent in the C season. See
the proposed rule for more details on seasonal allowances. Beginning in
2004, the trawl CP sector Pacific cod fishery has closed in mid-March
due to reaching it's a season allowance. The B season for trawl CPs
opens on April 1 and closes on June 10. More than half the incidental
catch of Pacific cod by trawl CPs occurs after March. Amendment 85
changed the seasonal allowances for the trawl CP sectors so that 75
percent of the allocation may be harvested in the A season, with the
remaining 25 percent harvested in the B season. This was done to
maintain to the extent possible the current percentage of non-CDQ
Pacific cod TAC available for harvest in the early part of the year
when fishing for Pacific cod is more advantageous. If incidental catch
rates of Pacific cod in other fisheries are kept low, the non-AFA trawl
CP sector should be able to maintain a directed fishery for Pacific
cod.
Comment 19: The AFA trawl CP sector was funded with more than their
recent (99-05) usage of 1.9 percent. That sector has its pollock
fishery cod bycatch needs met at the all time high 1.5 million mt
pollock TAC level, even as the pollock biomass and TAC are on a
downward trend. With a 2.3-percent allocation, and lower pollock TAC,
more cod can be used to enhance their directed fishery, which is
essentially an IFQ [individual fishing quota] since only one vessel is
used in the fleet to directed fish on cod. That vessel is also an AFA
eligible CP, and while on the record it was stated that it has nowhere
to go other than cod, the vessel has access to the yellowfin sole
sideboard and the directed pollock fishery of the AFA CPs. It is the
vessel owner's decision not to fish pollock or yellowfin sole with that
vessel.
Response: The AFA trawl CP sector will receive an allocation that
is 0.1 percent above its average historic share of 2.2 percent of the
Pacific cod harvest. NMFS provided the agency's explanation for
approving the AFA trawl CP Pacific cod allocation in the response to
Comment 13. NMFS agrees that it is each vessel owner's decision whether
or not to harvest fish in the fisheries open to that particular vessel.
However, it is a goal of this amendment to allocate Pacific cod to
specific sectors based on average historic harvest, not to determine
what fisheries are open to specific vessels or to establish other
vessel-specific provisions for access to Pacific cod or other
groundfish. Also, the AFA trawl CP sector allocation is less than its
current sideboard limit for harvesting Pacific cod (see response to
Comment 13).
Comment 20: The reduced ability to target Pacific cod during the A
season for the CP trawl sector has resulted in more rollovers to fixed
gear; the cod that would have been caught in March when the fish are
most aggregated, has not been caught. The fishery in the last two years
has closed in early-mid March due to the 50 percent season limit and
reduced cod TACs. This has benefitted the fixed gear sector which gets
the rollover in the C season, at the end of the year. The Steller sea
lion management measures drastically altered cod fishing patterns and
harvests. The patterns were altered because of the seasonal
apportionments, not because of changed priorities or reduced dependency
on the part of the harvesters.
Response: Almost all gear types, excluding < 60 ft (18.3 m) LOA
fixed gear, are restricted in their amount of Pacific cod catch in the
first half of the year because of SSL protection measures, not just the
trawl CP sector. A goal of Amendment 85 is to reduce the amount of
reallocations due to unharvested Pacific cod left toward the end of the
fishing year. The trawl CP sectors have not harvested their entire
allocation in any year since that sector began receiving a separate
Pacific cod allocation in 1997. The jig sector is the only other sector
that has also had Pacific cod reallocated from it in every year it has
received a Pacific cod allocation. Beginning in 2004, NMFS has closed
the trawl CP sector Pacific cod fishery in mid-March due to reaching
its ``A'' season allowance. The B season opens on April 1 and closes on
June 10. In 2005, NMFS closed the trawl CP sector Pacific cod directed
fishery on August 18 because it had reached its halibut PSC mortality
limit. In 2006, NMFS closed the trawl CP sector Pacific cod directed
fishery on June 8 (just before the end of the B season), opened it on
July 19, and closed it on August 31 due to halibut PSC mortality
considerations. So in the last two years, the trawl CP sector Pacific
cod directed fishery has been closed during the C season due to
reaching its halibut PSC mortality limit. Halibut PSC mortality limits
and seasonal allowances to protect SSLs have affected most sectors to
varying degrees. It is up to each sector to try to keep its Pacific cod
incidental catch rates and PSC catch rates low if it wants to maintain
a directed fishery for Pacific cod. Also note that the seasonal
[[Page 50800]]
allowance percentages have changed under Amendment 85 (see response to
Comment 22).
Comment 21: The State waters Pacific cod fishery has taken 3
percent of the Pacific cod ABC for the past two years, to fund a
fishery in Adak which is closed to trawl CPs over 100 ft. This reduces
the BSAI Pacific cod TAC by 3 percent. While this is calculated by NMFS
to be taken ``off the top,'' if one looks at the allocations to each
sector, it can be argued that it's really the H&G sector that took the
hit. The H&G sector's 2004-2005 harvest (Table 3-12 - retained, incl.
meal) was 17.7 percent. The H&G allocation is 13.4 percent. The
cumulative effect of the increased CDQ and State waters fishery, is a
further reduction in TAC of 6.2 percent. The original ITAC was 92.5
percent of TAC, now it will be 86.3 percent of TAC. This reduction is
spread disproportionately among sectors.
Response: NMFS disagrees. The Council is free to choose how much of
the Federal Pacific cod TAC it allocates to small vessels regardless of
the existence of a State of Alaska-managed Pacific cod fishery in State
waters. The State waters Pacific cod fishery is not within the
Council's or NMFS' jurisdiction and can be modified by the State at any
time. The amount of Pacific cod set aside for the State waters fishery
has not and will not come from the non-AFA trawl CP sector allocation
alone. Additionally, all trawl CPs >100 ft (>30.5 m) do not have access
to the State waters Pacific cod fishery, not just the non-AFA trawl
CPs.
The process followed by NMFS in setting the allocations for Pacific
cod each year in the annual specifications process is to first deduct
the amount of Pacific cod for the State waters fishery from the ABC.
The remainder is the TAC for a particular year. NMFS then deducts the
amount of Pacific cod allocated to the CDQ Program. Finally, the
remaining non-CDQ TAC is divided among the sectors. The reductions are
taken before allocations are made to the non-CDQ sectors and, thus,
affect all sectors proportionately.
Comment 22: The EA/RIR/IRFA analyzed the impact of reallocating cod
from trawl to fixed gear and determined that the trawl CP sector would
have no C season cod, unless it rolled from within the sector's B
season. Even with no cod TAC reductions, the trawl CPs will be severely
constrained with the 50 percent limit for the A season, and this will
filter through to the end of the year. The other trawl and fixed gear
fleets that were well funded are in no worse position than they were
prior to the Amendment 85 action.
Response: The Council directed that allocations for the A and B
seasons for trawl gear and the A season for fixed gear sectors be
calculated to maintain the current seasonal percentage of the non-CDQ
TAC that is allocated to those sectors. This was done to allow directed
fishing for Pacific cod earlier in the year when there is less PSC
bycatch, Pacific cod harvest rates are highest, and to maintain SSL
protection measures. Under this action, the A season allowance for the
non-CDQ trawl CP sectors will increase from 50 percent to 75, with the
remaining 25 percent seasonal allowance available in the B season. That
is why there would be a C season harvest only if seasonal allowances
roll over from the A or B seasons to the C season.
Comment 23: The non-AFA trawl CP fleet makes important economic
contributions to remote Alaskan communities that the Council's reduced
allocation to that sector may well jeopardize. The non-AFA trawl CP
fleet fishes year round, using support services and relying on vendors
which would normally be closed in the late spring/summer months were it
not for this fleet's activities. The State of Alaska assesses all fish
landed in Alaska, regardless of gear or sector designation. Whether
harvested by CVs or CPs, the same landing taxes would be generated, and
given back to the communities in which the fish would be offloaded. Any
suggestion that community impacts support imposing the burden of
funding the increased small-boat allocations solely (or even primarily)
upon the non-AFA CP fleet is not based in fact or supported by the
record.
Response: NMFS acknowledges that the non-AFA trawl CP fleet makes
economic contributions to the communities visited by vessels in that
sector. Based on the EA/RIR/FRFA, NMFS does not expect a significant
impact on remote Alaskan communities due to the non-AFA trawl CP
allocation under Amendment 85. Any potential negative effects on remote
Alaskan communities are likely to be outweighed by the positive impacts
of the increased allocations to the small boat sectors, which are based
primarily out of Alaskan communities. See response to Comment 13
regarding the ``funding'' of the allocations to the small boat sectors.
Comment 24: A separate section of the Magnuson-Stevens Act, 16
U.S.C. 1853(b)(6) requires the Council and the Secretary to consider a
certain set of relevant factors as a condition to establishing a
limited access system for a fishery.
Response: NMFS agrees that section 303(b)(6) of the Magnuson-
Stevens Act (16 U.S.C. 1853(b)(6)) requires the Council and NMFS to
take into account several factors when establishing a limited access
system. However, Amendment 85 does not establish a limited access
system for the Pacific cod fishery because it does not affect existing
participation requirements for the BSAI Pacific cod fishery. Therefore,
section 303(b)(6) is not applicable to Amendment 85.
Comment 25: NMFS should approve Amendment 85 with a Pacific cod
allocation for the AFA trawl CP sector significantly greater than the
2.3 percent proposed by the Council. Appropriately calculated, the
retained legal catch of the AFA trawl CP sector averaged approximately
2.5 percent of the total retained legal catch of BSAI cod between 1999
and 2003, the relevant years following passage of the AFA in 1998. The
2.3-percent allocation recommended by the Council and contained in the
proposed amendment represents the absolute minimum amount necessary to
fund both the bycatch needs of the AFA trawl CP pollock fishery and the
relatively small directed fishery that at least one of the AFA trawl CP
vessels has been conducting in the BSAI for many years. Ultimately, the
way the incidental catch allowance is established and managed will
determine the extent to which these objectives can be accomplished.
Response: The AFA trawl CP sector will receive an allocation that
is slightly higher than its average historic harvest from 1995 to 2003,
one of only two non-small boat sectors to do so. About 44 percent of
the Pacific cod harvested by the AFA trawl CP sector during that time
period was taken incidentally when these vessels were targeting BSAI
pollock. See the response to Comment 3 for why these years of
historical harvest are appropriate. The allocation to the AFA trawl CP
sector should be sufficient for this sector to cooperatively manage its
allocation and maintain a directed fishery in addition to meeting its
incidental catch needs in other fisheries. The incidental catch
allowance for the AFA trawl CPs will be established inseason with the
intent of maintaining a directed Pacific cod fishery.
Comment 26: We support the proposed rule's plan to manage each of
the trawl sector incidental catch allowances on an inseason basis. The
proposed amendment should be revised to direct NMFS to manage any
incidental catch allowance established in connection with the AFA trawl
CP sector's Pacific cod allocation to
[[Page 50801]]
facilitate, to the maximum extent practicable, the prosecution of an
early season directed Pacific cod fishery without jeopardizing the need
to retain sufficient Pacific cod for bycatch in the directed pollock
fishery later in the year.
Response: NMFS notes the support for establishing trawl sector
incidental catch allowances on an inseason basis. NMFS' existing policy
for establishing incidental catch allowances is to facilitate, to the
extent practicable, directed fisheries while retaining amounts needed
as incidental catch in other directed fisheries. NMFS does not need
regulatory authority to continue this policy, so no regulatory changes
are necessary.
Comment 27: Tables 3 and 8 of the proposed rule are inaccurate and
understate the legally retained BSAI Pacific cod catch history of the
AFA trawl CP sector. Table 3 does not use the ``best available data''
to calculate the AFA trawl CP sector's catch history for the years
after 1998. In Table 8, the range for the AFA trawl CP sector includes
a lower end point of 0.9 percent. That number is misleading for several
reasons: first, it is derived by excluding fish utilized in the
production of meal; and second, it is generated by using a WPR approach
to calculate retained catch. This is inaccurate and prejudicial in that
it suggests a level of usage and dependency that is significantly lower
than accurately calculated catch would indicate.
Response: Regarding Table 3 in the proposed rule, the response to
Comment 2 explains why WPR data were used instead of observer data to
calculate catch history. The purpose of including Table 8 was to
demonstrate the wide range of allocations that were considered by the
Council. The allocation to the AFA trawl CP sector is slightly above
its catch history as calculated from WPR data from 1995 through 2003.
Also see responses to Comments 13 and 25.
Comment 28: We prefer to purchase all of the Pacific cod for our
restaurant chain from a particular AFA trawl CP because of the high
quality of the product. If the amount of Pacific cod available for that
vessel to harvest were to decline, we would likely be forced to
purchase lower quality processed cod from foreign commodity markets.
Response: Under Amendment 85 and this final rule, the AFA trawl CP
sector will receive an allocation of Pacific cod that is slightly above
its historic harvest. Because the AFA trawl CP sector operates as a
cooperative and has the ability to control its harvest, NMFS
anticipates that the amount of Pacific cod allocated to the AFA trawl
CP sector will be sufficient to maintain the sector's directed fishery
while meeting its incidental catch needs in other fisheries.
Comments on Dependency on the Pacific Cod Fishery
Comment 29: The non-AFA trawl CP sector asserted that the Pacific
cod allocation they received will be insufficient to prosecute their
flatfish fisheries. However, that does not appear to be the case. From
1999 to 2003, the non-AFA trawl CP sector took 54 percent of their
Pacific cod in directed Pacific cod fishing and 46 percent incidentally
while targeting other species (flatfish, etc.). In 2003, 63 percent of
the non-AFA trawl CP sector Pacific cod was taken in directed Pacific
cod fishing and 37 percent was taken incidentally. The allocation the
non-AFA trawl CP sector received is 90 percent of its 1997 to 2003
average catch history. For comparison, the pot CP sector received an
allocation that is 88 percent of its 1997 to 2003 catch history. The
trawl CV sector allocation was 97 percent of its 1997 to 2003 catch
history. The hook-and-line CP sector received an allocation that is 97
percent of its 1997 to 2003 catch history. However the hook-and-line CP
sector's dependency on BSAI Pacific cod is four times that of the non-
AFA trawl CP sector and more than twice that of the pot CP sector and
the trawl CV sector.
Response: Please see the EA/RIR/FRFA for the best available data on
the BSAI Pacific cod fishery. All the sectors are dependent on the BSAI
Pacific cod resource, albeit to varying degrees. Based on the average
annual estimated total first wholesale revenue from groundfish products
between 1999 and 2003, the hook-and-line CP sector is more dependent
than the other sectors on the BSAI Pacific cod resource.
Comment 30: The proposed allocations do not correlate with actual
dependency and use by sector. The non-AFA trawl CP sector is highly
dependent on Pacific cod as a directed fishery and as an incidentally
caught species in every target fishery the sector prosecutes. The H&G
fleet will lose most of its directed cod fishery under the Amendment 85
allocation because almost half of the cod harvested by the H&G fleet is
incidental cod in other groundfish fisheries. This fishery now
represents over a quarter of all non-AFA trawl CP sector revenues. This
aggregate figure, as large as it is, masks the fact that Pacific cod
accounts for well over half of the revenues for particular non-AFA
trawl CP vessels, particularly the smaller vessels in the fleet. If the
Amendment 85 allocation and CDQ increases took place in 2007, and
assuming a harvest equal to that of 2005, the fleet would shut down in
late May due to insufficient cod. The sector would lose 34 percent of
its annual 1999 to 2004 average revenues for the fleet.
Response: NMFS acknowledges that the non-AFA trawl CP sector
Pacific cod allocation under Amendment 85 is less than the percentage
harvested by the sector in very recent years and that this sector's
harvest has increased in recent years. However, the allocation is not
based on one or two recent years, but is reflective of long-term
dependence as evidenced by harvest over a longer period of time. The
Council decided that long-term dependence was appropriate and NMFS
determined that the record supports this approach (see response to
Comment 15). Based on recent fishing practices by the fleet, NMFS has
determined that this sector will maintain a directed Pacific cod
fishery and will be able to prosecute other fisheries (see response to
Comment 17).
Comment 31: The analysis does not address the issue of lost revenue
from low allocations on either the H&G fleet's other groundfish
fisheries or from loss of the target fishery itself. Stating that 21
percent of the annual revenues of the fleet are from cod oversimplifies
the picture. The information before the Council on Amendment 80 (June
2006 C-1 Supplemental to Amendment 80) states that the H&G sector's
revenues from cod are actually 25 percent (99-04 avg). However, we are
more realistically 100 percent dependent on cod because it is critical
to all our target fisheries. Not only will we lose some percentage
revenue from loss of a directed cod fishery, but we can lose the value
of the non-cod groundfish target fishery as well. The Council and the
analysis for Amendment 85 also failed to consider that the non-AFA
trawl CP sector is dependent on Pacific cod for incidental catch in its
flatfish, mackerel, and rockfish fisheries. The first real analysis of
the impact of the Council's decision upon the non-AFA trawl CP sector
was made by NMFS only several weeks later, and it found that impact to
be severe. Substantial bycatch of Pacific cod in these fisheries is
inevitable. This bycatch amounts to almost half of the non-AFA trawl CP
sector's harvest of Pacific cod. We are no less dependent on our cod
revenue than a cod longliner which does not engage in any other
groundfish fisheries. The reduction in the Pacific cod allocation to
the non-AFA trawl CP sector will affect its entire BSAI fishing effort.
Without cod, no one
[[Page 50802]]
in the H&G fleet can fish in any BSAI target.
Response: NMFS believes that the non-AFA trawl CP sector has a
sufficient Pacific cod allocation for a directed Pacific cod fishery.
The size of the directed Pacific cod fishery will depend on the
sector's need for Pacific cod as incidental catch in its other directed
groundfish fisheries. The EA/RIR/IRFA examined this issue and concluded
that the sector's directed fishery is likely to be affected by the
allocation. The EA/RIR/FRFA acknowledges the need for the allocation to
include incidental catch needs on page 279: ``The problem statement for
this amendment emphasizes that the Pacific cod allocations should be
adjusted in order to reduce uncertainty in, and provide stability to,
the sectors. Allocating appropriate amounts of incidentally caught cod,
so that each sector's directed fisheries can be harvested, is an
important concern when creating stability.'' Also stated on page 293:
``As mentioned above, the non-AFA trawl CP sector harvests a
significant portion of its BSAI Pacific cod as incidental catch in a
non-Pacific cod target fishery. Table 3-101 shows that the non-AFA
trawl CP sector harvested about 54 percent of its total retained cod
harvest in the target cod fishery on average during 1999 to 2003; the
remaining 46 percent was harvested as incidental to all other target
fisheries, primarily the flatfish fisheries (yellowfin sole, rock sole,
flathead sole, Atka mackerel, and Pacific ocean perch). With a lower
potential allocation compared to recent years, this sector will likely
need to determine how much of its cod allocation will be used as
incidental catch to other target fisheries versus to fund the directed
cod fishery.'' Also, see response to Comment 17.
What this sector is ``losing'' is the opportunity to harvest an
amount of Pacific cod that is larger than its historic use and
dependence. The trawl CP sector has not harvested its entire allocation
of Pacific cod since allocations began in 1994. The trawl CP sector has
been the largest contributor to the yearly reallocations that this
amendment is designed to reduce, therefore, the allocation to the trawl
CPs is justified. Also see response to Comment 30.
The commenter may be assuming there is hard cap management under
Amendment 85, but Amendment 85 does not include this provision (see
response to Comment 77).
Comment 32: Incidental catch of Pacific cod allows harvesters to
maximize the value of the other target species because it is in large
part the highest valued species in each of those non-AFA trawl CP
target fisheries.
Response: NMFS acknowledges that Pacific cod is a valuable species.
The non-AFA trawl CP sector will have to manage its Pacific cod
allocation to accommodate target and nontarget needs to optimize the
value of its harvest of BSAI groundfish.
Comment 33: Non-AFA vessels are excluded from any access to the
pollock fishery and now the Council is proposing to take away from them
a significant portion of the Pacific cod fishery that, over a
demonstrated period of years, they have used and are dependent upon,
while at the same time augmenting the fishing privileges of AFA trawl
CP vessels that have neither been using nor depending upon the cod
fishery at more than a minimal level during that same relevant period.
That proposal does not comport with this Council's obligation to
``protect other fisheries . . . and the participants in those fisheries
. . . from adverse impacts caused by [the AFA] or fishery cooperatives
in the directed pollock fishery.''
One final noteworthy recognition by the Notice of Proposed
Rulemaking is that the Council decided to ``maximize the opportunity
for a directed Pacific cod fishery'' for the AFA trawl CP sector, 72 FR
5662 (col. 1, top), but was content to underfund the non-AFA trawl CP
sector to such an extent that it ``may be constrained in its ability to
conduct a directed fishery for Pacific cod in order to have sufficient
Pacific cod available for incidental catch in its other fisheries.''
Id. (col. 1, bottom). This turns upside down the Council's obligations
under the AFA.
Response: Sideboards are intended to prevent a sector from using
advantages gained from a rationalized fishery in a fishery that is not
rationalized. The current AFA CP Pacific cod sideboard prevents AFA
trawl CPs from harvesting a larger share of Pacific cod than the sector
harvested before the AFA. Amendment 85 will separate the trawl CPs that
currently share one allocation into two sectors, AFA and non-AFA. The
AFA trawl CP sector will receive 0.1 percent of non-CDQ TAC above its
average harvest history under Amendment 85 and the non-AFA trawl CP
sector will receive exactly its average historic harvest. The AFA trawl
CP fleet will be restricted to a separate allocation slightly greater
than its historic catch from 1995 through 2003, but 62.3 percent below
its current sideboard limit for catch of Pacific cod. Although the non-
AFA vessels are excluded from the pollock fishery in the BSAI, AFA
sideboard provisions will continue to restrict those vessels from
participating in other BSAI fisheries, and AFA trawl CPs will continue
to be prohibited from fishing in the Gulf of Alaska. Therefore, NMFS
has determined that the AFA trawl CP allocation of Pacific cod under
Amendment 85 is consistent with the AFA. Also, separating the two
sectors will protect the historic catch of the non-AFA trawl CPs better
than leaving these two sectors combined with a lower shared allocation
that reflects their combined history, but with the same AFA sideboard.
NMFS believes the allocations of Pacific cod to the AFA and non-AFA
trawl CP sectors are sufficient for each sector's directed Pacific cod
fishery and for their incidental catch needs and that the allocation
for the non-AFA trawl CP sector will be better protected under
Amendment 85 than leaving the sectors combined.
Comment 34: To whatever extent the sector's total catch history is
not reflected in the initial allocation made under Amendment 85, there
will be insufficient fish in the AFA trawl CP sector's allocation to
meet the bycatch needs of the pollock fishery without depleting, at
least to some extent, the allocation that would otherwise be available
to our directed cod vessel. As a consequence, the directed cod fishery
that vessel has traditionally conducted during the early part of the
fishing year will likely be curtailed, if not eliminated.
Response: Given that the allocation to the AFA trawl CP sector
under Amendment 85 is slightly higher than its average historic
harvest, that allocation should be sufficient for this sector to
cooperatively manage its allocation and maintain a directed fishery in
addition to meeting its needs for incidental catch in its pollock and
yellowfin sole fisheries.
Comment 35: The Council increased the allocation to the AFA trawl
CP sector so that Pacific cod would not be a limiting factor in
prosecuting the BSAI pollock fishery. From 1999 to 2003, the AFA trawl
CP sector took 84 percent of its Pacific cod in directed Pacific cod
fishing and only 15 percent in the pollock fishery. The proposed rule
states that 44 percent of the Pacific cod taken by this sector occurs
incidentally in the pollock fishery. This is in contrast to the
analysis (15 percent), therefore the proposed rule must be including
fishmeal and other factors. Either way, it does not appear that the
allocation this sector received under Amendment 85 will be constraining
in the pollock fishery.
[[Page 50803]]
Response: As stated in the proposed rule, the allocation to the AFA
trawl CP sector was chosen to ``maximize the opportunity for a directed
Pacific cod fishery and to minimize the potential for an increase in
discards of Pacific cod if catch exceeds the MRA.'' The commenter
apparently relied on the April 2006 draft analysis and used Table 3-105
which excluded fishmeal. However, the information was revised before
submission to the Secretary. The EA/RIR/FRFA includes fishmeal in the
revised information in Table 3-101 and states on page 294 that, ``the
AFA CP sector harvested about 56 percent of its total retained cod
harvest in the target cod fishery on average during 1999-2003, the
remaining 44 percent was harvested as incidental to other target
fisheries, primarily pollock.'' Additionally, in the final Council
motion from April 2006, the Council explicitly noted that in order to
determine PSC, the percentage of Pacific cod harvested in the Pacific
cod target fishery by the trawl sectors should be calculated on the
basis of all cod catch from 1999 through 2003, including that
designated for fishmeal production.
Comment 36: Only the hook-and-line CP sector has a large and
primary dependence on BSAI Pacific cod; it is the sector with the most
dependence on the BSAI Pacific cod resource. Over 80 percent of the
wholesale revenues of the hook-and-line CP sector come from BSAI cod.
Response: NMFS agrees that the hook-and-line CP sector is the
sector that has the highest portion of its income from its Pacific cod
fishery. However, other sectors also depend on Pacific cod for a
significant portion of their income.
Comment 37: The H&G sector's Pacific cod use and dependence must be
considered and accommodated by Amendment 85, just as was that of the
hook-and-line CP sector.
Response: The non-AFA trawl CP sector will receive exactly its 1995
to 2003 average historic harvest under Amendment 85. The hook-and-line
CP sector will receive 48.7 percent of the non-CDQ Pacific cod TAC
under Amendment 85, which is closer to its average historic harvest
than its current allocation of 40.8 percent. The hook-and-line CP
sector's new allocation is less in all cases than its share of the
retained harvest under various year groupings: from 1995 through 2003,
from 2000 through 2003, and from 2004 and 2005 (see Amendment 85
proposed rule Tables 3 and 4). However, its history is much larger than
its current allocation due to reallocations of unused Pacific cod from
other sectors, primarily the trawl CP sector. Amendment 85 was designed
to reduce the amount and frequency of these reallocations to increase
stability for all sectors.
Comment 38: Amendment 85 will provide increased stability to the
sectors with the most dependence on Pacific cod by removing the
uncertainty of the amount of the potential annual harvest for each
sector (i.e., reduce annual rollovers). This stability will promote
efficiency and planning for those same sectors. For example, the
increased stability of the BSAI Pacific cod allocation may facilitate
the formation of a hook-and-line CP cooperative that can result in
increased utilization and efficiency.
Response: NMFS agrees that Amendment 85 will increase stability in
the BSAI Pacific cod fishery.
Comment 39: The Council was consistent with past allocation actions
by not including fishmeal when considering dependency on the resource.
Response: Contrary to the commenter's conclusion, the record for
Amendment 85 and this final rule clearly demonstrate that the Council
not only considered fishmeal data, but included fishmeal in the
calculation of catch history for the AFA trawl CP sector allocation.
When vessels directly affected by a proposed allocation action process
fishmeal, it has been considered. It depends on what sectors or vessels
are affected by an action as to whether fishmeal has been included or
excluded. Fishmeal was not particularly relevant other past allocation
actions. In current and proposed actions, fishmeal was excluded in the
preliminary analysis for Gulf rationalization, which has been tabled.
There is now an option to exclude fishmeal in the Gulf of Alaska
Pacific cod sector-split analysis. However, these actions exclude the
AFA trawl CPs, which are the primary producers of fishmeal. Therefore
it is consistent to include fishmeal in considering a sector's
dependency on Pacific cod under Amendment 85.
Comments on Groundfish Retention Standard Under Amendment 79
Comment 40: The allocation to the H&G fleet affects the Amendment
79 groundfish retention standard (GRS) which the H&G fleet must meet,
starting in 2008. Once Pacific cod is closed to directed fishing, and
is taken as an incidental catch in other fisheries, it is subject to a
maximum retainable amount of 20 percent of the total groundfish catch
aboard a vessel. This will make compliance with the groundfish
retention standards of Amendment 79 very difficult for most vessels.
The Aleutian Island cod fishery is a very high retention fishery, and
it essentially is no longer an option for us. According to NMFS
inseason managers, the fleet will only have enough fish to fund an
early directed cod fishery, which is essential as it occurs
simultaneous to the rock sole fishery. The loss of our Aleutian Islands
cod target is going to pose a retention hardship for two reasons: one,
we lose our March cod target fishery in lieu of bycatch needs for the
rest of the year, and two, the H&G fleet's cod will be on bycatch
status for the majority of the year. So the reduced allocation has put
the fleet in a position of mandatory discards of a mandatory retention
species, until or unless the sector is able to form cooperatives under
Amendment 80.
Response: As explained in the response to Comment 17, based on the
actual TAC for 2007, but with the larger CDQ allocation of 10.7
percent, NMFS estimates there would be 19 to 20 days of directed
fishing under the current practices of the non-AFA trawl CP sector. If
the sector reduces its incidental catch needs for Pacific cod in its
other directed fisheries, its Pacific cod directed fishery could last
longer. Typically, the non-AFA trawl CP sector targets Atka mackerel,
rock sole, yellowfin sole and Pacific cod in January and the Pacific
cod fishery peaks in March. The non-AFA trawl CP sector usually catches
80 percent of its Pacific cod allocation in the first two seasons,
which is its seasonal allowance. To meet the GRS after their directed
Pacific cod fishery is closed, the non-AFA trawl CPs will need to fish
in a manner that maintains incidental catch rates at levels that
minimize regulatory discards. Therefore, meeting the GRS under
Amendment 85 may be more difficult for the non-AFA trawl CP sector.
If directed fishing for Pacific cod has not been closed to the non-
AFA trawl CP sector, then this sector has had to keep their entire
catch of Pacific cod, which improves their retention rate. But if the
non-AFA trawl CP Pacific cod directed fishery will now be closed most
of the year, the non-AFA trawl CP sector must retain up to the MRA. Any
catch over the MRA must be discarded and those discards will count in
the retention calculation under the GRS, potentially making it more
difficult to comply with the GRS.
However, compliance with the GRS should be easier for the vessels
that join a cooperative under Amendment 80, which was approved by the
Secretary on July 26, 2007. The non-AFA trawl CPs may form harvesting
cooperatives by the
[[Page 50804]]
start of 2008 if Amendment 80 is implemented by January 1, 2008, which
also is the effective date for this final rule to implement Amendment
85. Additionally, the Council has adopted a regulatory amendment that
would adjust the accounting period for MRA amounts for particular
species including Pacific cod. If approved by the Secretary, this
adjustment also would be effective by January 1, 2008, and would reduce
regulatory discards and facilitate compliance with the GRS under
Amendment 79 to the FMP.
Comment 41: The revised Secretarial review EA/RIR/IRFA (October
2006) merely references the Groundfish Retention Standard (GRS) in one
sentence that acknowledges that Pacific cod, as a highly retained
species, is important to the non-AFA trawl CP sector in meeting the
GRS. Neither Section 2.3.9 (Cumulative Effects) nor Section 2.3.9.1
(Past and Present Actions) mentions the Amendment 79 GRS in relation to
the sector's cod allocation and what the loss of its directed fishery
and lowered allocation will do to the sector's ability to meet the
retention standard. There is no attempt to estimate the impact of a
reduced allocation on the ability of the sector, or small vessels in
particular, to meet the GRS scheduled for implementation in 2008. The
analysis should have considered the impact of the non-AFA trawl CP
sector's Amendment 85 allocation on the ability of this sector to
function under status quo management (no harvesting cooperatives) when
the GRS is imposed in 2008. The tipping point on meeting the GRS with
regard to this action is the reduced cod allocation, not the open
access race for fish.
Response: The Secretarial review draft EA/RIR/IRFA does discuss the
cumulative effects of Amendment 85 in conjunction with the GRS and
Amendment 80 in Section 2.3.9 ``Cumulative Effects'' under section
2.3.9.2 ``Recent and Reasonably Foreseeable Future Actions.'' Improved
retention rates are the intended effect of the GRS action under
Amendment 79. Implementation of Amendments 79, 80, and 85 are planned
for 2008. The GRS would be phased in over a four-year period.
The reduced allocation to the non-AFA trawl CP sector likely will
reduce its directed fishery, but the vessels still will be retaining
Pacific cod to comply with improved retention/improved utilization
requirements up to the 20 percent MRA percentage established for
Pacific cod after the directed fishery is closed. The catch of Pacific
cod beyond the 20 percent MRA threshold must be discarded. However, a
vessel's total catch of Pacific cod still would be included in the
calculation used by NMFS to assess compliance with the annual GRS ratio
of retained catch to total catch. Thus, NMFS expects the GRS program
would provide an incentive for the sector to fish for its other
targeted groundfish species in a manner that reduces the incidental
catch of Pacific cod to the extent practicable. In 2008, the GRS will
be at a relatively low level to reflect fleet-wide status quo. As the
GRS ratio steps up over the next four years, NMFS anticipates that it
will parallel other new proposed management measures that provide
additional opportunity for retention of groundfish, including proposed
adjustments to the MRA accounting period for some species and Amendment
80.
The EA/RIR/FRFA recognizes that compliance with the GRS by the non-
AFA trawl CP fleet with its new Pacific cod allocation under Amendment
85 will be more difficult. However, the purpose of Amendment 85 was to
allocate Pacific cod based on historical retained catch in addition to
socioeconomic and community concerns, not to allocate Pacific cod in a
manner that would facilitate compliance with the GRS. There are other
ways the fleet can improve its retention rates of Pacific cod without
the allocation it has had in the past. For example, by avoiding fishing
in areas with high bycatch rates of Pacific cod.
Regarding the estimation of economic impacts, the Secretarial
review draft analysis stated ``The Groundfish PSEIS [Programmatic
Supplemental Environmental Impact Statement] noted that the
availability and consistency of data limits the ability to analyze the
effects of past actions on the economic condition of selected sectors
of the Alaska groundfish fishery. According to the Groundfish PSEIS,
analyses are also limited by the difficulty of delineating the cause-
and-effect relationships between multiple factors and the resultant
economic effects. Many factors substantially affect the economic status
of the Alaska groundfish fishery. Changes in markets, biological
conditions and fishery management regulations can result in changes in
the revenues and operating costs of firms participating in the
fisheries and changes in fleet size and composition. Isolating the
effects of a single factor is seldom possible.''
Amendment 80 will provide target allocations of Atka mackerel,
flathead sole, Pacific ocean perch, rock sole, and yellowfin sole to
the non-AFA trawl CP sector and allows the formation of harvest
cooperatives. Sector allocations and associated cooperatives will allow
participants to focus less on harvest maximization and more on
optimizing harvest. The Secretarial review draft analysis further notes
that, ``Absent a cooperative structure as approved (by the Council) in
Amendment 80, it is expected that compliance with the groundfish
retention standards and management of a lower Pacific cod allocation to
serve both directed and incidental catch needs, will be substantially
more difficult.'' Note that the GRS pertains only to non-AFA trawl CP
vessels that are [gteqt]125 ft (38.1 m) LOA, not to smaller vessels.
However, under Amendment 80, the GRS will apply to all non-AFA trawl CP
vessels regardless of length.
Comments on Cumulative Effects
Comment 42: By applying the 13.4-percent allocation to, and
deducting the 3 percent State water set-aside and 10.7 percent CDQ
allocation from, the 2005 TAC for Pacific cod, the H&G fleet allocation
would have been 23,911 mt, a loss of 6,000 mt from the H&G actual
harvest in 2005. This represents a loss of $11 million in Pacific cod
alone. The H&G fleet fully harvested 23,911 mt of Pacific cod by mid-
June in 2005. The fleet would have been unable to harvest its other
directed fisheries after June 11th and lost $43 million in its second
half of the year target fisheries. In comparing the losses of different
fleets, if the longline fleet lost 6,095 mt, that would be a loss of
$11 million. The same fish represents a loss of $54 million to the H&G
fleet, or, roughly 35 percent of its annual revenues. This was not
analyzed in any Amendment 85 document.
Response: The non-AFA trawl CP fleet will have less Pacific cod
available than it does under the current allocations, however, this
scenario would not happen under Amendment 85. Because NMFS anticipates
that the trawl sectors will fully harvest the Pacific cod allocations
under Amendment 85, NMFS also anticipates it will need to establish an
incidental catch allowance for each trawl sector. Under this final
rule, NMFS will develop incidental catch allowances for each trawl
sector on an inseason basis, rather than through the annual harvest
specification process. The directed fishery for the non-AFA trawl CP
sector will likely be shorter than in the past, thus the possible loss,
but under Amendment 85 the other non-AFA trawl CP fisheries will be
managed with the intent of avoiding closures for lack of sufficient
Pacific cod. Also, under this final rule, the non-AFA trawl CP
[[Page 50805]]
sector will continue to be managed under a soft cap for incidental
catch of Pacific cod.
Comment 43: The non-AFA CP fleet has not received representative
allocations. We see that if these allocations were in effect in 2005,
the fleet would have shut down in June, losing 35 percent of its annual
revenues. This incurs economic harm not only to our fleet but also to
remote communities that depend on the activities of the non-AFA CP
fleet. As the sole harvesters of target fisheries that will be left in
the water because of an inadequate cod allocation, communities will not
receive landing tax revenues from that fish, and support service
revenues from that fleet. Amendment 80 allocates 90 percent of the Atka
mackerel and Pacific ocean perch to the H&G fleet. However, we saw that
if Amendment 85, the State water fishery and the increased CDQ were in
effect in 2005, half of the Atka mackerel would have been left in the
water and all of the Pacific ocean perch, from a June 11th closure.
This directly harms the residents of Atka and Adak. Stranding fish is
not obtaining optimum yield.
Response: Under this action, an incidental catch allowance of
Pacific cod will be established for use in the other non-AFA trawl CP
sector directed fisheries. See response to Comment 42.
Comment 44: Effective 2007, the Central Gulf of Alaska Rockfish
Pilot Program goes into effect. Originally a two-year program, it was
recently extended to five years under the Magnuson-Stevens Act
reauthorization. That program limits participation in the Central Gulf
rockfish fisheries to 15 H&G vessels. As with Gulf cod, and BSAI
pollock, entry into other fisheries by the H&G fleet, and therefore
other options, is becoming more restricted. These fisheries would have
provided relief in the event that the lowered cod allocation shuts down
the H&G fisheries prematurely.
Response: Amendment 85 does not contain measures that would prevent
the non-AFA trawl CP sector from prosecuting its target fisheries. NMFS
agrees that participation in Gulf of Alaska and BSAI fisheries is
becoming more restricted as participation in these fisheries becomes
more restricted. See response to Comment 42.
Comments on Small Boat Sector Allocations
Comment 45: The allocation process was reasonably fair and
equitable. The jig and < 60 ft (18.3 m) LOA fixed gear CV sectors
received allocations larger than their respective catch histories.
Accordingly, the majority of the other sectors then received
allocations smaller than their respective catch histories to offset and
``fund'' those increases. However, the allocations in Amendment 85 were
the result of a fair and equitable process and did not discriminate by
residency.
Response: Comment noted.
Comment 46: Other considerations given to the small boat sectors
under Amendment 85 include (1) adjusting the jig trimester
apportionment to put more fish in the A season, (2) establishing a new
hook-and-line CV halibut PSC category that enables longline CVs to fish
in the summer months, and (3) a new hierarchy of potential rollovers.
The Council felt these considerations and the resulting allocations in
Amendment 85 amply addressed National Standard 8.
Response: Comment noted.
Comment 47: We support the principle of adequately funding small
boat, entry-level fisheries.
Response: Comment noted.
Comment 48: Allocations to the jig and < 60 ft (18.3 m) LOA fixed
gear sectors were made without consideration of either the Alaska State
waters fishery in which such vessels could participate or the
likelihood that those Pacific cod allocations will, in fact, be
utilized. A result of this over-allocation is that much of the cod non-
CDQ TAC allocated to these sectors will rollover, first through various
inshore fisheries, including to the trawl catcher vessel fleet; none,
however, will likely ever roll back to the H&G sector. Such a result is
at odds with the Amendment 85 goal of minimizing rollovers.
Response: NMFS disagrees. The State waters Pacific cod fishery was
considered by the Council when the allocations to sectors were made.
This fishery was established by the State to meet local needs in the
area of Adak, Alaska, in the Aleutian Islands and is not readily
accessible to small boat operators fishing in other coastal areas of
the Bering Sea. Additionally, the purpose of Amendment 85 is to revise
the allocations to the various sectors to more closely reflect historic
harvest; a goal of the amendment is to decrease rollovers, not
eliminate them. The Council's purpose in giving the small boat sectors
allocations greater than their histories was to encourage the growth of
these entry-level sectors in accordance with National Standard 8. Since
2001, the < 60 ft (18.3 m) LOA fixed gear CV sector has harvested all of
its allocation and since 2002 has harvested increasing amounts of
rollovers from the jig sector, including in 2006, the first year of the
State waters fishery. The allocation to the jig sector is reduced under
Amendment 85. Also, the amount of the reallocations from the small boat
sectors is historically much smaller than the amount of the
reallocations from the trawl sectors, thus supporting the Council's
goal of increasing stability.
Comment 49: The non-AFA trawl CP sector was cut in order to fund a
4 percent small boat fishery. When asked by another Council member what
was the rationale for the H&G allocation of 13.2 percent (as originally
introduced) rather than the mid-point years' average, the maker of the
motion stated ``It was really how to fund that 4 percent and make the
numbers work and that is my rationale for that number.'' While creating
room and incentives for growth in the small hook-and-line and pot
catcher vessel and jig fisheries was a goal of Amendment 85, the cost
for doing so should not fall on only one of the most cod-dependent
sectors. Shifting of cod from one of the most dependent sectors (non-
AFA trawl CP) to perhaps the least runs counter to the objective of
matching cod allocations with use and historical dependence.
During Council discussion on Amendment 85, the maker of the motion
stated that the trawl sector should fund the jig set-aside since the
fixed gear sector had been doing that in the past. This was given as
the justification for so dramatically decreasing the non-AFA trawl
catcher-processor allocation (from recent use above 18 percent to an
allocation of only 13.4 percent). The record does not support the
assertion that the fixed gear fleet and not the trawl fleet had
historically funded increases for the small boat sector. It is not
clear from the record that the (proposed) jig allocation actually came
from any one sector; however, if the assumption was that the new
allocation percentages represented a shift in the responsibility for
the jig set-aside from fixed gear to the trawl sector, then all trawl
sectors should have been similarly assessed.
There was no consideration or analysis of the possibility,
appropriateness, or impact of imposing the burden of funding those
increases unequally. The Secretarial review draft analysis expressly
acknowledges this, stating that the extra allocations to the small
sector were ``deducted . . . principally from the non-AFA sector
amounts.'' It is not fair and equitable to impose the burden on the
non-AFA sectors and not on the AFA sectors, particularly given the
AFA's mandate to the Council to protect the non-AFA fleet from AFA
encroachment in fisheries other than pollock. There was no separate
analysis, or vote, on spreading
[[Page 50806]]
the burden of the small boat incentives unequally. What is clear is
that no rationale has ever been given for disadvantaging either the
non-AFA sectors generally (which the Secretarial review draft analysis
asserts is the group that the Council disadvantaged) or the H&G sector
in particular.
The estimated cost, at 2007 TAC and 2005 harvest rates, to the H&G
fleet of an estimated $46 million, or 34 percent of their annual
revenues, far outweighs the benefit to a small boat fleet which has
historically never harvested its allocation. We have no quarrel with
the Council's decision to make those adjustments. There is no
justification, however, for imposing the burden of funding them
entirely or primarily upon the H&G sector.
Response: Neither the non-AFA trawl CP sector nor any other sector
exclusively funded the allocation to the small boat sectors. Despite
the remarks made by the Council member and based on the average
historic harvest from 1995 to 2003, it would appear that neither the
AFA trawl CP sector nor the non-AFA trawl CP sector funded the small
boat sector allocations because the former will receive slightly above
its average historic harvest and the latter will receive exactly its
average historic harvest. There is nothing in the Secretarial review
draft analysis addressing the impact on other sectors because there
were no specific amounts taken from any particular sector to fund the
small boat sectors.
For the small boat sectors to receive allocations above their
average historic harvest, four sectors will receive less than their
1995 to 2003 average historic harvests: pot CV [gteqt]60 ft (18.3 m)
LOA, hook-and-line CP, pot CP, and trawl CV (see paragraph seven of the
response to Comment 13). The trawl CV sector is comprised of AFA and
non-AFA vessels, so considering all the sectors that will receive an
allocation below their average historic harvest, most of them are non-
AFA sectors. The non-AFA sectors are not disadvantaged, they merely
outnumber the AFA sectors by a ratio of eight to one.
Comment 50: The Council made a policy decision to deviate from its
stated goal of conforming actual use and dependency by allocating to
the jig and < 60 ft (18.3 m) LOA fixed gear CV sectors a combined 2.4
percent above their historic harvest of the Pacific cod TAC. Assuming
that the Council would be justified in shifting that 2.4 percent to
those sectors because of the predicted salutary impact on coastal
communities and related economic and social consequences, it is not
legitimate to take that 2.4 percent entirely from other non-AFA
sectors. In the analysis for Amendment 85, the potential impact of
providing the small boat sectors with an allocation above their actual
use and dependency was limited to a scenario in which the extra shares
needed to fund that incentive were taken from all other sectors
proportionally; no analysis was made of the disproportionate impacts
that would result from the scenario, eventually chosen by the Council,
of taking that extra 2.4 percent exclusively from non-AFA sectors.
Response: The Pacific cod allocations for the jig and < 60 ft (18.3
m) LOA fixed gear sectors did not come exclusively from any particular
sectors. As explained in the response to Comment 49, several sectors
received less than their 1995 to 2003 average historic harvest of
Pacific cod to fund the small boat sectors.
Comments on Reallocations
Comment 51: Amendment 85 will not resolve the reallocation issues
raised in the problem statement created by the Council for the action.
By over-allocating cod to small, shore-based fisheries that have a
history of under-fishing current allocations, and ignoring the
important aspect of Alaska's creation of a state waters fishery, this
action insures continued rollovers at or above current levels.
Response: The problem statement does not seek to eliminate inseason
reallocations, but to decrease them by adjusting Pacific cod
allocations to better reflect historic use by sector. Historically,
76.6 percent of the reallocations between 2000 and 2004 resulted from
the trawl sectors not harvesting their entire allocations, with a much
smaller amount of unharvested Pacific cod coming from the small, shore-
based fisheries. Based on this information, NMFS determined that the
new allocations to the sectors will reduce reallocations in the future.
Also, see response to Comment 48.
Comment 52: NMFS will likely set the incidental catch allowance for
the non-AFA trawl CP sector higher than the anticipated need, to ensure
that there is enough Pacific cod available to fund other sector
fisheries. The cod which is not used in the incidental catch allowance
will probably not be enough to fund a separate (late-season) directed
fishery, so will roll over to another sector. This will continue the
very situation (rollovers) which Amendment 85 was supposed to fix. In
effect, the H&G sector loses cod allocation well beyond the amounts
that were rolling over in the past, and the allocation scheme ensures
that more fish will roll over in the future.
Response: As explained in response to Comment 48, Amendment 85 was
not intended to eliminate rollovers. Under this final rule, NMFS will
create an incidental catch allowance for the non-AFA trawl CP sector to
use for Pacific cod caught incidentally in its other directed
fisheries. Because the non-AFA trawl CP sector tends to target Pacific
cod early in the year, NMFS will estimate an incidental catch allowance
early in the year in order to close the sector's directed fishery while
there is enough of the sector's Pacific cod allocation remaining for
incidental catch in the other non-AFA trawl CP groundfish fisheries.
Whether the allowance is set too high will depend on how well the non-
AFA trawl CP sector can avoid Pacific cod incidental catch in its other
fisheries. If the sector can lower its incidental catch rate, the
directed fishery will have more Pacific cod available for its target
fishery. Pacific cod still may be harvested and retained once the
directed fishery is closed, albeit at the lower rate of 20 percent
under MRA regulations. A large portion of the Pacific cod harvest in
this sector historically has been taken as incidental catch. This trend
is expected to continue until vessels are able to form cooperatives and
opportunities to change fishing strategies present themselves.
The commenter presents only one scenario. NMFS anticipates that
without cooperatives, the Pacific cod fishery will be prosecuted much
as it has been in the past. NMFS will do its best to ensure that each
trawl sector can fully harvest its allocation. If the non-AFA trawl CP
sector can reduce its incidental catch of Pacific cod, it may be that
the incidental catch amount will be greater than the sector's needs,
but not large enough for another directed fishery.
A goal of Amendment 85 is to reduce reallocations, not eliminate
them. NMFS has determined that the allocations will result in lower
amounts of reallocations from all sectors. If Amendment 80 is
implemented by January 1, 2008, NMFS will manage Pacific cod for the
non-AFA trawl CP sector in accordance with Amendment 80.
Comment 53: The current allocations (from the 1995 action) do not
reflect actual catch by sectors of BSAI Pacific cod, principally due to
rollovers of uncaught allocations from the trawl and jig sectors. The
trawl sectors consistently have not caught their allocation which has
resulted in rollovers from the trawl sectors to the fixed gear sectors
every year since 1995 - both before and after SSL mitigation measures.
The average rollover from the trawl sectors has been 16,765 mt per
[[Page 50807]]
year (1995 - 2005). At the same time, the freezer-longliners are the
only sector that consistently caught their entire allocation on an
annual basis. Since 1995, the freezer-longliners have also been
catching the majority of the rollover from the trawl sectors and
uncaught allocations from other sectors as well (jig, pot, etc.).
Response: The EA/RIR/FRFA contains the data concerning this issue
in Table 3-24 and it represents the best scientific information
available on the subject.
Comment 54: The increasing trend in the fixed gear allocation is a
reflection of trawl rollovers. Trawl sectors have not caught their
allocations for a number of reasons, one of which is halibut PSC
mortality. From 1995 to 2005, the combined trawl sectors caught a
decreasing amount of Pacific cod while increasing the rate of halibut
PSC mortality by 47 percent (mt halibut PSC per mt Pacific cod). During
the same time period, the hook-and-line sectors were catching an
increasing amount of Pacific cod while decreasing the rate of halibut
PSC mortality by 31 percent. In 2005, the trawl rate was 3.4 times
higher than the hook-and-line rate (mt halibut PSC per mt Pacific cod).
Response: The EA/RIR/FRFA examines reallocation among gear types in
Section 3.3.5.7 and it represents the best scientific information
available on the subject.
Comment 55: NMFS should disapprove the rollover (reallocation)
hierarchy contained in the proposed rule because the inshore sectors
already have healthy allocations and would be first in line for the
rollovers. NMFS should send this portion of Amendment 85 back to the
Council with instructions to give non-AFA trawl CPs priority access to
the rollovers from the jig and < 60 ft (18.3 m) LOA fixed gear sectors.
Response: NMFS has determined that the reallocation hierarchy
proposed by the Council is consistent with the purpose and need for
Amendment 85 and that it is consistent with the Magnuson-Stevens Act
and other applicable law and has approved it with this final rule. This
reallocation hierarchy is consistent with the Council's decision to
increase the harvest opportunities for the fleets that deliver
shoreside to coastal fishing communities, a consideration under
National Standard 8.
Comment 56: Prioritizing rollovers to the AFA trawl CP sector would
help accomplish the Council's goal of ``maximizing to the extent
practicable'' the opportunity for the AFA trawl CP sector to conduct
its directed cod fishery at the beginning of the year. Knowing that the
surplus ``C season'' cod that has traditionally rolled over from the
AFA trawl CP sector during the last half of the fishing year would be
available to support nontarget needs in the AFA trawl CP sector during
the pollock A and B seasons would help facilitate inseason incidental
catch management so as to permit full funding of the directed cod
fishery that one AFA trawl CP vessel conducts early in the year.
Response: See response to Comment 55 which is applicable to the AFA
CP sector as well as the non-AFA CP sector. Also see the responses to
Comments 13 and 25 for more information regarding the AFA trawl CP
sector allocations.
Comments on Process Followed for Adoption of Amendment 85
Comment 57: The Council's action was taken too quickly for the
regulated community to provide informed public comment. The process for
consideration of Amendment 85 made it difficult, if not impossible, for
the public to comment effectively on, or the Council to understand the
impacts of, the decisions it was making. The Magnuson-Stevens Act
generally prescribes that a regional fishery management council will
hold public hearings in conjunction with the FMP amendment process. See
16 U.S.C. 1852(h)(3). The law also provides for a separate opportunity
for ``interested persons'' to make comment at ``business meetings of a
Council.''
Response: The public was provided ample notice and opportunity to
comment on Amendment 85 in accordance with APA and Magnuson-Stevens Act
procedures. The public had several opportunities to comment on Pacific
cod sector allocations at Council meetings prior to the Council's final
action in April 2006 and during the comment period on the FMP
amendment. The December 2004 Council meeting was the first opportunity
the public had to comment specifically on Amendment 85 at the first
presentation of the discussion paper for Amendment 85. Amendment 85 was
on the agenda of every Council meeting from December 2004 until final
action in April of 2006, for a total of eight Council meetings. The
Federal Register notice for the April 2006 Council meeting included a
statement that final action would be taken on Amendment 85. A draft
analysis of Amendment 85 was prepared by the Council and made available
for public review prior to the Council taking action. The analysis was
then further refined to reflect the effects of the Council's action
prior to submission for Secretarial review.
Comment 58: The non-AFA trawl CP sector lacked the opportunity to
discern and explain the implications of the Council's actions before
the Council's final decision making. As a result, the non-AFA trawl CP
fleet focused its public testimony in support of options that best
mirrored the sector's recent use and dependence. The first indication
that the Council was developing an option that included a non-AFA trawl
CP sector allocation that was at the lowest end of the range under
consideration and heavily weighted pre-full retention and pre-AFA
years, came when the Council began their deliberations. No further
public comment was allowed before final action, however. The non-AFA
trawl CP sector has no representation on the Council. Without the
benefit of an H&G representative on the Council to participate in the
deliberations, the Council members cannot and clearly did not fully
realize the impact of their actions. The result was the non-AFA trawl
CP fleet was denied a reasonable opportunity to discern and explain the
implications of the Council's proposed action before final action was
taken.
Response: There were many opportunities for the public to comment
on Amendment 85 (see the response to Comment 57). Several allocation
options were presented in the draft analysis that was released to the
public in March 2006. These options included allocations to the non-AFA
trawl CP sector that ranged from 12.7 to 16.2 percent of the non-CDQ
BSAI Pacific cod TAC. The April draft of the EA/RIR/IRFA presented the
Council with the information it needed to make the allocation decisions
in various tables, with more information on fishmeal presented to the
Council and the public at the April Council meeting before public
testimony and final action by the Council. After receiving public
comment, the Council chose the option to select percentages for Pacific
cod allocated to each sector that fell within the range of percentages
analyzed. Please see the response to Comment 3 for an explanation of
the consideration of catch history from 1995 through 2003. No year was
weighted more heavily than any other. Only the first three years of
history out of a total of nine years considered were before full
retention and the AFA. Not having a representative on the Council
should not negatively impact a sector. The Council members take a sworn
oath to manage in the best interests of all and are to act impartially.
Comment 59: No preliminary preferred alternative was identified by
the Council. As a result, the analysts,
[[Page 50808]]
public, and the Council did not have the opportunity to fully
understand, comment on, and evaluate the impacts of Amendment 85.
Identifying a preliminary preferred alternative before final action may
not be required, but for complicated actions it should be.
Response: As the commenter notes, the Council was not required to
identify a preliminary preferred alternative before taking final action
on Amendment 85. The analysis before the Council in April 2006 provided
the Council and the public with the information necessary for final
action on Amendment 85. Each option under consideration for each
component was fully analyzed and when an option in one component may
have affected options under consideration in another component, those
impacts were identified and explained in such a way that the Council
and the public could understand the impacts of its decision. For
example, seasonal allowances were changed to maintain to the extent
possible the current percentage of non-CDQ Pacific cod TAC available
for harvest in the early part of the year when fishing for Pacific cod
is more advantageous. NMFS notes the commenter's statement that a
preliminary preferred alternative should be identified by the Council
prior to taking final actions that are complicated.
Comment 60: The Amendment 85 decision making process was rushed,
its analyses were inadequate, and the impacts of the Council decision
were not well understood. When the Council chose the ``mix and match''
approach instead of a ``packaged alternative'' and moved directly to
final action, rather than selecting its desired allocation as a
preliminary preferred alternative for further analysis and public
comment, the Council basically acted without understanding the impacts
of this decision. When one aggrieved stakeholder was able to convince
Council members that it suffered from certain unintended consequences,
the Council took the matter up again to institute a discrete fix for
one vessel. However, the law requires that all members of the public
have an opportunity to understand the impacts of a proposed action and
an equal opportunity to be heard in the process.
As originally passed, the Council recommended that Amendment 85
allocate the H&G sector an amount of Pacific cod that was just over its
average harvest, 13.7 percent during the 1995-2003 period. The telling
fact that this process devolved into a matter of political compromise
rather than informed decision making, in violation of National Standard
2, was that the Council decided to reconsider final action upon
discovery of an ``unintended consequence.'' Expressing concern that the
1.5-percent allocation chosen for the AFA catcher-processor sector
might disproportionately impact the one vessel in that sector that
targets cod (notwithstanding the recent use of that sector in the range
of 1 percent), the Council voted to increase the AFA catcher-processor
sector's allocation to 2.3 percent. Part of the Pacific cod that went
to ``fund'' that increase came from the H&G sector, which ended up with
a reduced allocation of just 13.4 percent.
This action should also have been analyzed in light of the
statutory protections the American Fisheries Act grants to non-pollock
fisheries. Such weighing and analysis was lacking in this instance.
There was no opportunity for public input during the reconsideration
and the Amendment 85 allocation was made without the Council having
made a reasonable record of how the allocation it chose for the AFA
sector ``protects'' the non-AFA fleets. Further, this allocation
exceeds the AFA catcher-processor sector's current use (i.e., since
2001) by as much as 90 percent. It was incumbent upon the Council to
make a good-faith effort to examine and fulfill its duties to the non-
AFA sectors that funded this reallocation. That was not done. The
stated rationale for the revision was the (highly questionable) bycatch
needs of the AFA trawl CP sector. At the very least the non-AFA trawl
CP fleet had far greater bycatch needs that were ignored not only in
Amendment 85 and in Council discussion but were exacerbated once a
table using fishmeal was presented during the Council discussion, but
not analyzed in the EA/RIR/IRFA, surfaced. But no opportunity was
allowed for public comment at that point, and there is no non-AFA trawl
CP sector representative on the Council who would have been in a
position to alert Council members to the disparity.
We support full Secretarial disapproval of the amendment based on
lack of adequate analysis which resulted in the Council not fully
understanding the impact of their actions, and based on the fact that
the Council action did not take the non-AFA trawl CP recent history
into consideration. The ultimate impact has been to jeopardize the
viability of the H&G fleet, in particular, the vessels which are
heavily reliant on cod.
Response: The public was notified that final action on Amendment 85
would be taken at the April 2006 Council meeting (see response to
Comment 57). A draft analysis was prepared prior to that meeting.
Because there were questions about including Pacific cod that was
turned into fishmeal as the primary product in the calculations of
retained legal harvest, tables showing that information were passed out
at the Council meeting (see response to Comment 2) prior to public
testimony and the Council's deliberation, so the public had an
opportunity to respond to the information. The fishmeal data were
included in the Secretarial review draft analysis. The Council and NMFS
consider fishmeal to be part of the retained legal harvest for Pacific
cod. Fishmeal is the primary product from the AFA trawl CP sector's
incidental catch of Pacific cod. To exclude it from the AFA sector's
history would be equivalent to excluding the non-AFA trawl CP's
sector's incidental catch history from its other fisheries. Excluding
fishmeal from the AFA trawl CP sector's harvest would result in a
harvest share of 0.8 percent, or 65 percent below this sector's new
allocation, not 90 percent. Catch history was calculated over a number
of years, not just one or two recent years. The Council chose
allocations from the within the range of percentages analyzed to
balance catch history with consideration of socioeconomic and community
factors, including allocations to the small boat sectors that were
above their average historic harvest. Members of all sectors and the
public at large have had an equal opportunity to comment on the
Council's allocation decision, and their opinions have been considered,
as evidenced by this response to comments section of the final rule. No
procedural irregularity occurred during the development of Amendment
85. The information presented in the Secretarial review draft analysis
for this action represents the most current, comprehensive set of
information available, recognizing that some information, such as
operational costs, is unavailable.
The original proposal before the Council was to allocate 13.2
percent of the non-CDQ Pacific cod TAC to the non-AFA trawl CP sector.
In a later motion, the jig sector allocation was cut from 2.0 percent
to 1.5 percent and the non-AFA trawl CP sector allocation was increased
to 13.7 percent, partly in consideration of the State waters Pacific
cod fishery. This clearly shows that there were advocates on the
Council for the allocation needs of the non-AFA trawl CP sector. The
following day, the Council voted to reconsider its action because the
AFA trawl CP ``allocation of
[[Page 50809]]
1.5 percent was not reflective of the historic usage and that it would
better lie somewhere between 2 and 2.5 percent'' and ``not to provide
for a directed fishery for any one vessel because there is no guarantee
that there will be ongoing directed fishing by any one vessel with
these allocations.'' The increased allocation to the AFA trawl CP
sector this second day resulted in a deduction from several sectors:
0.3 percent from the non-AFA trawl CP sector, 0.3 percent from the
hook-and-line CP sector, 0.1 percent from the jig sector, and 0.1
percent from the pot CV sector. As explained in previous responses,
NMFS has determined that these allocations are fair and meet the goals
of the problem statement.
Council members are to act impartially and in the best interests of
all. In fact, several members of the Council spoke on behalf of the
non-AFA trawl CP sector during the Council deliberations on Amendment
85. This is one reason the original proposal of a 13.2-percent
allocation to the non-AFA trawl CP was initially increased to 13.7
percent. Again, the final allocation of 13.4 percent is exactly the
non-AFA trawl CP sector's average historic harvest from 1995 through
2003. Amendment 85 ``protects'' the non-AFA trawl CP fleet in part by
separating the trawl CPs into two sectors. Also see responses to
Comments 13, and 33, and 58.
Comment 61: No detailed or legally sufficient impacts analysis of
the alternatives was ever prepared. Amendment 85 and its supporting
analyses were simply not ready for final decision at the April 2006
meeting. Rather, they should have been further developed and a
preliminary preferred alternative specified. By choosing a set of
percentages in the manner that the Council did, and taking final action
in the same meeting, there was no opportunity for development of a
legally sufficient analysis of the likely impacts of the hybrid
alternative.
The Council reserved itself the option of simply setting
allocations for each sector within the range of percentages correlated
with one of the baseline periods for a particular sector. However, the
RIR and IRFA contained no detailed analysis of the tangible, practical
impacts of these proposed allocations on the H&G fleet's fisheries and
fishing strategies as they are legally required to be, and that NMFS
inseason management was able to ascertain after the Council's vote on
Amendment 85. The Council's deliberations regarding the factors the
Magnuson-Stevens Act requires it to consider in allocation decisions
was not (nor could it have been), informed by objective analysis.
The allocation and its management to the H&G sector does not meet
the objectives of the Problem Statement, and the effects were not
adequately analyzed in either the Amendment 85 EA/RIR/IRFA (March
draft) or the Secretarial Review Draft. Nowhere is the impact of any
allocation, under any year option, analyzed as to its real operational
impact on the sector: the sector's need to balance target versus
incidental cod, and loss of the ability to target cod or prosecute
flatfish fisheries with such a reduced allocation. With the H&G sector
receiving such different treatment than other sectors, or different
from what was presented in the analysis, it was virtually impossible
for the sector to provide appropriate public comment. Council members
did not realize the impact that such a low allocation had or the
instability placed on the fleet from losing their directed fishery. Nor
did they know the effect on the sector's ability to attain certain
groundfish retention levels. These changes happened in the Council
deliberations, so the sector could not comment. Without such analysis,
and without H&G representation on the Council, Council members did not
make an informed decision.
The CDQ Pacific cod allocation increase from 7.5 percent to 10.7
percent and the State of Alaska 3 percent share of the ABC will affect
Amendment 85's ability to minimize reallocations, and to correlate each
sector's allocation with dependency and use. The amendment should be
only partially approved or there should be a mandate to review the
action in the near future to determine how well the problem statement
was addressed.
Response: As is the normal procedure, a draft EA/RIR/IRFA was
prepared prior to the April Council meeting and was made available to
the Council and the public prior to the Council taking action on
Amendment 85. The analysis was then further refined to reflect the
effects of the Council's action prior to submission for Secretarial
review. Impacts on the non-AFA trawl CP sector and all the other
sectors were well analyzed prior to Council's final action and expanded
upon in the analyses that were released for public comment with the FMP
and the proposed rule. The analysis and other materials provided to the
Council before it took final action were more than adequate and the
Secretarial review draft analysis is legally sufficient. As stated in
the IRFA, ``Because this action is principally designed to
'reapportion' access to the cod resource among current user groups (at
the 'sector level'), by definition, it represents tradeoffs.''
The Secretarial review draft analysis expects that ``management of
a lower Pacific cod allocation [to the non-AFA trawl CP sector] to
serve both directed and incidental catch needs, will be substantially
more difficult,'' without a cooperative structure as approved in
Amendment 80. The non-AFA trawl CP sector will receive exactly its
average historic harvest. This is lower than its more recent harvests,
so if the sector reduces incidental catch of Pacific cod in other
directed fisheries, it will have more Pacific cod available for its
directed fisheries. However, the non-AFA trawl CP sector did not
receive ``different treatment than other sectors, or different from
what was presented in the analysis'' beyond dealing with issues unique
to its sector, all of which was presented in the Secretarial review
draft analysis. In determining the average historic harvest of the AFA
trawl CP sector, the Council chose not to include the history of nine
AFA vessels (AFA 9) that were bought out under the AFA, the history of
which was included when its Pacific cod sideboard was created.
Therefore, under Amendment 85, the AFA trawl CP sector will have an
allocation that is substantially below its former Pacific cod sideboard
allocation that included AFA 9 history. By excluding from consideration
the AFA 9 history, which was extinguished by section 209 of the AFA,
and by separating the two sectors, Amendment 85 protects the non-AFA
trawl CPs. These two sectors will no longer be sharing a single
allocation that would be lower under Amendment 85 if the sectors were
left together with the same sideboard for the AFA trawl CPs.
The Council took note of a possible legislated increase in the
Pacific cod allocation to the CDQ Program (see response to Comments 74
and 75) and of the State waters Pacific cod fishery (see response to
Comment 48) when it took final action. NMFS has determined that the
problem statement was well addressed by the Council.
Comment 62: Because the analytical and public comment processes
were short-circuited, the Council's decision was uninformed and
arbitrary, based more on compromise than a reasoned consideration of
the relevant Magnuson-Stevens Act factors and the purposes which the
Amendment was intended to serve. The analysis available to the Council
at the time of decision making, as well as the decision making record,
is devoid of any empirical, analytical linkage between the allocation
scheme chosen and the Magnuson-Stevens Act standards Congress requires
a council to
[[Page 50810]]
consider when allocating fishing privileges. The Magnuson-Stevens Act
and Amendment 85 itself specify goals and requirements for this Pacific
cod allocation scheme but the Council's cursory and flawed deliberative
process on Amendment 85 failed to connect the Council's choices with
these goals and requirements. Accordingly, the action taken by the
Council on Amendment 85 represents arbitrary and capricious decision
making, in violation of the Magnuson-Stevens Act and the APA. The
Magnuson-Stevens Act establishes standards with respect to the relevant
criteria a fishery management council must consider when, as here, it
makes resource allocations. Specifically that sectors of industry are
treated equally, that residents of different States are treated
equally, that socioeconomic concerns are taken into consideration, that
fisheries are managed to optimum yield, that allocations are for the
net benefit of the Nation, current participation, historical use,
dependence on the fishery, and other factors. The APA requires that the
impacts of Federal regulations be understood and considered at the time
decisions are made. The Council's cursory and flawed deliberative
process on Amendment 85 failed to connect the Council's choices with
these goals and requirements (under administrative law precepts).
Accordingly, the action taken by the Council on Amendment 85 would be
arbitrary and capricious decision making if implemented.
Response: The analytical and public comment processes for Amendment
85 and this final rule were not short-circuited, as explained in
response to Comment 57. The Council discussed its action in some depth
with various allocation amounts presented before final action was
taken, including how the Magnuson-Stevens Act National Standards were
met by Amendment 85. The impacts of Amendment 85 were discussed in the
analysis available to the Council and to the public before the April
2006 Council meeting. The Council's decisions were guided by its
problem statement which specified the factors that would be considered
in its allocation decisions. The draft EA/RIR/IRFA addressed the
Magnuson-Stevens Act requirements and the Council fulfilled these
requirements. The allocations chosen were within the options considered
in the draft analysis. Decisions by NMFS on FMP amendments and proposed
regulations recommended by the Council must be consistent with the
Magnuson-Stevens Act and APA. NMFS has determined that Amendment 85
meets all APA and Magnuson-Stevens Act requirements (see response to
Comment 57).
Comment 63: The EA/RIR/IRFA states that the non-AFA trawl CP fleet
does not target on pollock because the headed and gutted pollock sells
for less than the cost of production. This is inaccurate. While the
price of H&G pollock has been low in the past, there were several H&G
vessels that had a viable pollock target and market prior to the AFA.
Since the AFA, the value of H&G pollock has increased dramatically and
the fleet has suffered from not having access to this vast and valuable
resource, which comprised 75 percent of the total allowable 2 million
mt catch in the BSAI in 2006.
Response: The statement in the EA/RIR/IRFA was in reference to the
fleet in the GOA. Given the comment, NMFS determined the statement was
confusing and revised the final analysis by removing the statement.
Comment 64: The Amendment 85 package provided for Secretarial
review not only inadequately estimates the impact on the non-AFA trawl
CP fleet of its dramatically reduced allocation but primarily cites
Amendment 80 cooperative provisions as the tool that will help mitigate
the adverse impacts of Amendment 85 and allow the sector to gain the
most value out of its reduced Pacific cod allocations. This seems to
violate the principal of evaluating the impacts and providing the
rationale for the current proposed amendment without relying on a
future action not yet implemented.
Response: NMFS cannot find support for the commenter's assertion
that the Amendment 85 package submitted to the Secretary primarily
cites Amendment 80 cooperative provisions as justification for approval
of Amendment 85. The response to Comment 13 explains how the analysis
for Amendment 85 and this final rule adequately present information
concerning the impacts of the action on all sectors, including the non-
AFA trawl CP sector. NMFS partially approved Amendment 85 based on the
record for Amendment 85 and not on any possible future actions that
might mitigate its impacts.
Comment 65: NMFS cannot now substitute post hoc rationalizations
for the absent Council deliberation based on informed public
participation on these central issues. The Council's decisional record
for Amendment 85 lacks the required support for the recommendations the
Council made.
Response: NMFS is required to examine and consider the entire
record before making a decision whether to approve, disapprove, or
partially approve an action recommended by a council. After considering
the entire record developed for Amendment 85 and the proposed rule,
NMFS decided to partially approve Amendment 85 and partially approve
the proposed rule for reasons provided in this preamble.
Comment 66: By allocating cod based on rates of harvest that
stretch back as far as 1995, while ignoring current use and dependence
of the H&G sector, Amendment 85, as recommended by the Council,
violates the substantive provisions of the Magnuson-Stevens Act
(factors to take into account when allocating fishing privileges).
Response: National Standard 4 requires allocations to be (1) fair
and equitable, (2) reasonably calculated to promote conservation, and
(3) carried out in such manner than no particular individual,
corporation, or other entity acquires an excessive share. In compliance
with the requirement that the allocation be fair and equitable, the
Council used catch history from 1995 through 2003. The Council also
considered more recent catch history from 2004 and 2005, but chose not
to develop allocations including that history. (See response to Comment
3.) The Council took into account current use and dependence of the
non-AFA trawl CP sector, and all other sectors, in making its
allocation recommendations, but ultimately did not use them
exclusively. Nothing in the Magnuson-Stevens Act or other applicable
law requires the Council or NMFS to develop allocations that include
present participation, just that the information be considered and a
reasonable explanation provided if it is excluded. Socioeconomic
considerations and community factors, such as favoring the small boat
fisheries, also were considered. Also see responses to Comments 3 and
48.
Comment 67: The commenter believes that Amendment 85 is consistent
with the National Standards of the Magnuson-Stevens Act and other
applicable law. The resulting sector allocations from Amendment 85 take
into account the catch history, historic dependence, and ability to
engage in other fisheries by each of the sectors. Consideration was
also given to the potential impacts and sustained participation of
coastal communities and small-boat fishermen.
Response: NMFS agrees that Amendment 85 as partially approved by
NMFS is consistent with the Magnuson-Stevens Act and other applicable
law. The remaining comments are noted.
Comment 68: The allocations in Amendment 85 were the result of a
fair
[[Page 50811]]
and equitable process and did not discriminate by residency.
Response: Comment noted.
Comment 69: Amendment 85 is consistent with the Problem Statement
and purpose of the action.
Response: Comment noted.
Comment 70: Keep the proposed rule/final rule process moving
forward on the regulatory track so that Amendment 85 can be implemented
prior by January 1, 2008 (i.e., in place for the 2008 season), because
revisions to the allocations are long overdue.
Response: This final rule will be published in sufficient time to
be effective on January 1, 2008.
Comments on Prohibited Species Catch Allowances
Comment 71: The Secretary should disapprove the PSC allocation
portion of Amendment 85. Amendment 85 would allocate PSC for Pacific
cod separately to each trawl sector for use only in the Pacific cod
fishery. Any sector which has PSC remaining after the cod fishery is
completed will be unable to use it anywhere else. Sectors with
sufficient PSC to harvest their cod allocation will have no incentive
to use it carefully; there would be little incentive for minimizing
bycatch rates in other sectors and could result in increased PSC use,
in violation of National Standards 1 and 9 of the Magnuson-Stevens Act.
After the H&G sector prosecutes its Amendment 85 directed cod fishery,
which NMFS estimates will last only about 10 or 11 days, there still
may not be enough cod and associated prohibited species catch (PSC) of
halibut and crab for the H&G sector to fully prosecute its other
directed groundfish fisheries. Non-AFA trawl CPs will not be able to
fund their PSC needs from other PSC allocations (e.g., from the
yellowfin sole fishery group) because there will not be enough
available. NMFS inseason management could re-allocate unused PSC to
other sectors, but that would occur late in the year when it clearly
was not going to be used, and would likely be too late for it to be
effectively used by other trawl sectors. NMFS can simply continue to
manage PSC in the trawl sectors as it does now to optimize the total
catch in all trawl fisheries.
Response: NMFS did not approve the proposed apportionment of
Pacific cod trawl fishery halibut and crab PSC allowances among the
trawl sectors for the reasons discussed above under the section
``Element of Proposed Rule Not Approved.'' NMFS did approve the hook-
and-line PSC apportionment. Additionally, a detailed response to
comments regarding the non-AFA trawl CP sector's directed Pacific cod
fishery and incidental catch of Pacific cod is provided in response to
Comments 13, 42, and 52.
Comment 72: The PSC sideboard allocation specified for the AFA
trawl CP sector's Pacific cod fishery should be treated as a ``cap'' or
``limit'' on PSC usage in the sector's directed Pacific cod fishery--
not as an allocation to that particular fishery. AFA CP sideboards on
PSC species are not currently apportioned among target species. None of
the AFA trawl CP PSC should be allocated in a way that might result in
any of that PSC allocation being ``stranded'' in a particular fishery
and unavailable to support other non-pollock target fisheries in which
the AFA trawl CP sector's vessels may want to participate (e.g.,
yellowfin sole).
Response: NMFS did not approve the proposed halibut and crab PSC
apportionments for the trawl sectors. Additional explanation for this
decision is provided earlier in the preamble under the section
``Element of Proposed Rule Not Approved.''
Comment 73: The Secretary should disapprove the PSC allocation
method contained in Amendment 85, instead allocating PSC using current
methodology or the allocation method contained in Amendment 80,
depending on the implementation date for Amendment 80.
Response: NMFS did not approve the proposed trawl PSC
apportionments. PSC will be allocated under the current regulatory
method until that method is changed by future rulemaking as described
in response to Comment 72. NMFS notes that the proposed rule for
Amendment 80 includes new provisions for PSC apportionments among trawl
sectors.
Comments on CDQ Allocation
Comment 74: After Amendment 85 was passed by the Council, the CDQ
allocation was modified by the Coast Guard Bill and subsequently by the
Magnuson-Stevens Reauthorization Act. The commenter assumes that the
10.7 percent total allocation to the CDQ Program will be analyzed in
the proposed rule.
Response: The 10.7-percent allocation to the CDQ Program was
analyzed in the EA/RIR/IRFA for the proposed rule and the EA/RIR/FRFA
for this final rule.
Comment 75: The Magnuson-Stevens Act now requires an allocation to
the CDQ Program of 10.7 percent. The Council's final action on
Amendment 85 adhered to the prior 7.5 percent CDQ allocation, and the
Council has taken no further action since that time. Accordingly, it is
not accurate to say that the ``Council'' proposed a 10 percent directed
fishing CDQ allowance in submitting Amendment 85 to NMFS. The only
proposal upon which the Council has voted chose to leave the CDQ
allowance at 7.5 percent. Council staff cannot revise the CDQ
allocation proposed by the Council to bring it into compliance with
existing law. The Magnuson-Stevens Act requires the Secretary under
such circumstances to remand the proposal to the Council, with an
explanation, so that the Council may consider what appropriate
corrective action to take. The proper course at this point to resolve
the problem is to decline to adopt the proposed rule and to remand the
sector and CDQ Program allocations to the Council for its consideration
and action pursuant to the law. A remand would permit the Council to
undertake a proper analysis of the unanalyzed impact of taking a larger
CDQ share, before the Council finalizes new allocations.
Response: The Council determined that no further action on
Amendment 85 was needed by the Council after the Coast Guard and
Maritime Transportation Act of 2006 (Public Law 109-241; Coast Guard
Act) was passed because its decision in April 2006 contemplated a
Congressional adjustment to the allocations of Pacific cod to the CDQ
Program. The Council's intent was that the CDQ allocation under
Amendment 85 would be either 7.5 percent of the Pacific cod TAC or
whatever allocation was Congressionally legislated when Amendment 85
was submitted to the Secretary for review. The Council voted to
maintain the status quo level of a 7.5 percent CDQ Pacific cod
allocation as its preferred alternative, but inherent in that vote was
the Council's acknowledgment that legislation likely would be enacted
in the coming months that would overrule whatever action the Council
took on the CDQ Program allocation at its April 2006 meeting. The
Council clearly recognized that legislation affecting the CDQ Program
was imminent and could be enacted subsequent to its decision but before
Secretarial review of Amendment 85. It was recognized during Council
discussion that the proposed rule would need to accommodate any
legislated increase in the CDQ allocation. The President signed the
Coast Guard Act into law on July 11, 2006, after the Council selected a
final preferred alternative for Amendment 85. The Coast Guard Act
amendments to the Magnuson-Stevens Act included a
[[Page 50812]]
change to make the CDQ Program Pacific cod allocation a directed
fishing allocation of 10 percent upon the establishment of sector
allocations (Section 305(i)(1)(B)(ii)(1)). NMFS notified the Council at
its October 2006 meeting that the increased CDQ allocations required
under the Coast Guard Act would have to be incorporated into Amendment
85 for it to be consistent with the Magnuson-Stevens Act, and that the
changes were being incorporated into the regulations implementing
Amendment 85. The Council asked about its ability to review the changes
being made to Amendment 85 to comply with the Coast Guard Act, and was
advised by NOAA General Counsel that because Amendment 85 had not yet
been submitted to the Secretary for review, the Council could request
further review it if desired. The Council did not request further
review of Amendment 85 at this meeting or at any other time prior to
its submission of Amendment 85 to the Secretary.
Subsequent to the Coast Guard Act, the Magnuson-Stevens Act was
reauthorized and signed into law on January 12, 2007. These more recent
changes to the Magnuson-Stevens Act increase the CDQ Program's Pacific
cod allocation to 10.7 percent (directed and nontarget combined)
effective January 1, 2008. (Note: A provision was also included to
trigger this increase in 2007 if a sector of the BSAI Pacific cod
fishery forms a fishing cooperative in 2007.) In accordance with
section 304(b)(1)(B) of the Magnuson-Stevens Act, NMFS determined that
the originally submitted proposed rule for Amendment 85 that contained
a 10 percent Pacific cod CDQ Program allocation with an additional
amount for incidental catch was inconsistent with the Magnuson-Stevens
Act, and returned it to the Council to be revised. Thus, the proposed
rule was revised to contain regulatory amendments to increase the CDQ
Pacific cod allocation to 10.7 percent to be consistent with the
Magnuson-Stevens Act. The increased allocation of Pacific cod to the
CDQ Program was within the allocations to the Program analyzed in the
March draft of the EA/RIR/IRFA.
Although the revised submission from the Council of the proposed
rule for Amendment 85 incorporated these new changes, the FMP language
could not be changed because it had already been published and was
available for public comment. Therefore, NMFS did not approve those
parts of the FMP amendment that are now inconsistent with the Magnuson-
Stevens Act and refer to a 10-percent allocation of Pacific cod TAC as
a directed fishing allowance to the CDQ Program, specify the creation
of an incidental catch allowance of Pacific cod for the CDQ Program, or
reference changes to the CDQ Program Pacific cod allocations through
the Coast Guard Act. Amendment 85 as approved by NMFS and the
regulations in this final rule rely on the Magnuson-Stevens Act
requirement for a 10.7-percent allocation of Pacific cod TAC to the CDQ
Program rather than a specific FMP provision.
See response to Comment 74 regarding the analysis of the 10.7-
percent allocation of Pacific cod to the CDQ Program.
Comment 76: The loss of Pacific cod TAC to the CDQ Program is felt
by all sectors, but it is not felt proportionately to recency or
dependency. Additionally, 93 percent of the CDQ cod is directed to
their freezer longline partners, and half of that fleet is involved in
harvesting CDQ. Therefore they get the bulk of it back as a sector, and
half the sector benefits.
Response: Because the CDQ Program allocation of Pacific cod is
subtracted from the Pacific cod TAC before any allocations are made to
the non-CDQ sectors, all non-CDQ sectors are affected proportionately
by the CDQ Program allocation. NMFS acknowledges that many of the same
hook-and-line CP vessels that fish the non-CDQ BSAI Pacific cod fishery
partner with the CDQ groups to prosecute the BSAI Pacific cod CDQ
fishery. While some participants in the hook-and-line CP sector will
have access to the increased CDQ cod quota and receive some benefit
from the harvest of CDQ cod, the cost of the royalty payment to the CDQ
groups, and other program requirements, such as 200 percent observer
coverage, reduce the benefit to the non-CDQ hook-and-line CP sector.
Comments on Hard Cap Management of Pacific Cod Incidental Catch
Allowances
Comment 77: We support NMFS's management of the trawl sector's
incidental catch allowance as outlined in the proposed rule, which is
that inseason management manages each trawl sector to a soft cap. The
non-AFA trawl CP sector testified in support of hard cap management,
however it did so in a truly different context. It was inconceivable
that the fleet would be so disenfranchised from its last seven years of
catch history share. We respectfully request disapproval of hard cap
management for the non-AFA trawl CP fleet and soft cap management of
Pacific cod H&G incidental catch allowance under both Amendment 85 and
Amendment 80.
Response: Although representatives of the non-AFA trawl CP sector
may have testified in support of hard cap management of their Pacific
cod allocation, the Council did not include such a requirement in their
final action on Amendment 85. Therefore, Amendment 85 and this final
rule do not include such a provision. NMFS will continue soft cap
management of incidental catch of Pacific cod for the non-AFA trawl CP
sector under this final rule. However, NMFS notes that Amendment 80 as
approved by the Secretary includes hard cap management requirements.
Comment 78: The non-AFA trawl CP sector allocation will be managed
more conservatively than other sector allocations, i.e., a ``hard cap''
allocation that when reached will prohibit further fishing in the BSAI.
The action on Amendment 85 should not be predicated on mitigation from
Amendment 80. The Secretary should disapprove that portion of Amendment
85 that specifies that the non-AFA trawl CPs will be managed under a
hard cap.
Response: Neither Amendment 85 nor this final rule require that the
non-AFA trawl CP sector's Pacific cod allocation be managed as a hard
cap. See response to Comment 77. Also see response to Comment 64 that
NMFS' Amendment 85 decision did not rely on Amendment 80 for
mitigation.
Comment on Commercial Fisheries
Comment 79: All quotas allocated should be cut in half this year
and all quotas should continue to be cut by 10 percent in each
succeeding year. The figures that show healthy stocks gained from the
commercial fishing profiteers are a conflict of interest for them
because they financially gain from telling this agency everything is
great. Ban bottom trawling entirely now.
Response: NMFS conservatively manages the BSAI Pacific cod fishery
based on the best scientific information available. To ensure
conservation of the resource, the status of the Pacific cod stock is
reviewed by NMFS and the Council each year through a public scientific
review process before the TAC is allocated. The commercial fishing
industry does not set the harvest levels. This action is intended to
allocate Pacific cod TAC among various gear groups. NMFS reviewed the
impacts of Amendment 85 in the EA/RIR/FRFA and concluded that it would
not result in a significant impact on the human environment. This
action is not intended to ban specific gear types. Banning trawling or
reducing harvests
[[Page 50813]]
are not the goals of this action and would need to be addressed in a
separate regulatory action developed through the Council process.
Classification
The Acting Administrator, Alaska Region, NMFS, determined that
Amendment 85 is necessary for the conservation and management of the
Pacific cod fishery and that it is consistent with the Magnuson-Stevens
Fishery Conservation and Management Act and other applicable laws.
This final rule has been determined to be not significant for the
purposes of Executive Order 12866.
A FRFA was prepared. The FRFA incorporates the IRFA, a summary of
the significant issues raised by the public comments in response to the
IRFA, NMFS' responses to those comments, and a summary of the analyses
completed to support the action. The need for and objectives of this
action are contained at the beginning of the preamble and in the
SUMMARY section of the preamble. The legal basis for this action is
also contained in the preamble. A summary of the FRFA follows. A copy
of this analysis is available from NMFS (see ADDRESSES).
No comments were received that raised significant issues in
response to the IRFA specifically, therefore, no changes were made to
the rule as a result of comments on the IRFA. However, several comments
were received on the economic impacts of Amendment 85 on different
sectors of the industry. For a summary of the comments received, refer
to the section above titled ``Comments and Responses.'' In response to
public comment, one sentence was removed from the RIR regarding the
non-AFA trawl CP sector targeting pollock because it was an ambiguous
statement that related to activity in the Gulf of Alaska and the
statement has no bearing on any decision in the analysis. Additionally,
NMFS did not approve the proposed regulatory change that would have
subdivided among trawl sectors the annual PSC limits apportioned to the
Pacific cod trawl gear fisheries. The reasons are discussed above under
the section ``Element of Proposed Rule Not Approved'' and include: (1)
the Council did not provide any explanation as to why an additional
reduction in this sector's harvest of Pacific cod and other target
species that would result from a reduction in its halibut and crab PSC
is appropriate or consistent with National Standard 4 or other
applicable law, (2) the amount of PSC allocated to the AFA trawl CP and
the trawl CV sectors is much greater than their historical needs and
may create a disincentive for these sectors to minimize their bycatch
of prohibited species, which is not consistent with National Standard
9, and (3) the non-AFA trawl CP sector harvests a significant majority
of species other than pollock and Pacific cod, and would likely not
have PSC remaining from its Pacific cod fishery to use to achieve
optimum yield from its other BSAI groundfish fisheries, an
inconsistency with National Standard 1.
Description and Estimate of Number of Small Entities to which the Rule
will Apply
For purposes of the Regulatory Flexibility Act, the Small Business
Administration (SBA) has established that a business involved in fish
harvesting is a small business if it is independently owned and
operated and not dominant in its field of operation (including its
affiliates) and if it has combined annual gross receipts not in excess
of $4.0 million for all its affiliated operations worldwide. A seafood
processor is a small business if it is independently owned and
operated, not dominant in its field of operation, and employs 500 or
fewer persons on a full-time, part-time, temporary, or other basis, at
all its affiliated operations worldwide.
Because the SBA does not have a size criterion for businesses that
are involved in both the harvesting and processing of seafood products,
NMFS has in the past applied and continues to apply SBA's fish
harvesting criterion for these businesses because CPs are first and
foremost fish harvesting businesses. Therefore, a business involved in
both the harvesting and processing of seafood products is a small
business if it meets the $4.0 million criterion for fish harvesting
operations. NMFS currently is reviewing its small entity size
classification for all CPs in the United States. However, until new
guidance is adopted, NMFS will continue to use the annual receipts
standard for CPs. NMFS plans to issue new guidance in the near future.
The FRFA used the most recent year of data available to conduct
this analysis (2003). As stated previously, the commercial entities
directly regulated by the action are divided into nine sectors for the
purpose of (non-CDQ) BSAI Pacific cod allocations, and the CDQ
allocation is considered a separate sector. A description of the
participants in, and the eligibility requirements for, each non-CDQ
sector and a description of the CDQ sector is provided in detail in the
RIR.
Vessels that were considered large entities, for purposes of the
FRFA, were those with individual annual gross receipts greater than
$4.0 million, or those affiliated under owners of multiple vessels,
contractual relationships, and/or affiliated through fishing
cooperative membership (e.g., AFA) that, when combined with earnings
from all such affiliated operations, had aggregate annual gross
revenues greater than $4.0 million. Insufficient documentation of
multiple and joint-ownership structures, contractual affiliations,
interlocking agreements, etc., among vessels in the various fleets of
interest, herein, exist with which to confidently estimate the number
of directly regulated small (and large) entities. Thus, the FRFA is
understood to likely overestimate the actual number of directly
regulated small entities subject to this action.
The majority of the CVs in all gear sectors can be considered small
entities under a conservative application of the existing threshold
criterion. In 2003 only the AFA trawl CVs were considered large
entities, as they are known to be party to a harvest cooperative
system. The remaining 138 CVs of all gear types appear to meet the
criterion for a small entity, as applied by evaluating the 2003 gross
revenue data on a per vessel basis. However, as just noted, little is
known about the ownership structure of the vessels in the fleets. Thus,
based on the best available data, the following vessels appear to meet
the application of the criterion above for a small entity in 2003: 25
hook-and-line and pot CVs < 60 ft (18.3 m) LOA; 22 non-AFA trawl CVs; 15
jig CVs; 6 hook-and-line CVs [gteqt]60 ft (18.3 m) LOA; and 70 pot CVs
[gteqt]60 ft (18.3 m) LOA.
In the CP sector, the available data indicate that fewer than half
meet the threshold for a small entity, as applied by evaluating the
2003 gross revenue on a per vessel basis. Thirty-one of the 81
participating vessels in 2003 had gross receipts not in excess of $4.0
million. Again, because little is known about the ownership structure
of the vessels in the fleets, it is likely that the FRFA overestimates
the number of small entities. Thus, based on the best available data,
the following vessels meet the application of the criterion above for a
small entity in 2003: 24 hook-and-line CPs; 4 non-AFA trawl CPs; and 3
pot CPs. In sum, of the 310 vessels participating in 2003, 169 vessels
are estimated to be small entities directly regulated by the action.
The six CDQ groups participating in the CDQ Program are not-for-
profit entities that are not dominant in the
[[Page 50814]]
overall BSAI fishing industry. Thus, the six CDQ groups directly
regulated by the action are considered small entities or ``small
organizations'' under the RFA. Therefore, under a conservative
application of the SBA criterion and the best available data, the total
number of small entities directly regulated by the action is estimated
as 175.
Recordkeeping and Reporting Requirements
This regulation does not impose new recordkeeping or reporting
requirements on the directly regulated small entities.
Description of Significant Alternatives
A FRFA should contain ``a description of the steps the agency has
taken to minimize the significant economic impact on small entities
consistent with the stated objectives of applicable statutes, including
a statement of the factual, policy, and legal reasons for selecting the
alternative adopted in the final rule and why each one of the other
significant alternatives to the rule considered by the agency which
affect the impact on small entities was rejected.''
The FRFA analyzed the ``no action'' alternative (Alternative 1) and
the selected action (Alternative 2). Each of these alternatives was
comprised of the same set of eight components, or issues. The eight
components are discussed in detail in the RIR. Alternative 1 would
continue the following: (1) the current overall gear allocations in the
BSAI Pacific cod fishery that were established under Amendment 46 in
1997; (2) the current CDQ allocation of 7.5 percent of the BSAI Pacific
cod TAC; and (3) the current apportionment of the fixed gear portion of
the BSAI Pacific cod non-CDQ TAC established under Amendment 77 in
2004. Alternative 1 also would continue a shared halibut PSC allowance
to the BSAI hook-and-line Pacific cod fishery category.
Before the Council made its decisions for Amendment 85, thus
forming Alternative 2, it considered several options under each of the
eight components. These many options are analyzed in the RIR. The
combination of these options resulted in the evaluation of a multitude
of potential alternatives. Amendment 85 is thus one derivation of many
possible options, reflecting an effort to balance the economic and
social objectives for the action against the potential burden placed on
directly regulated entities (especially those which are ``small''). One
option was selected under each of the eight components to comprise the
Council's final preferred alternative, or Alternative 2. Alternative 2
is described in detail in the RIR.
Alternative 2 was selected because it accomplishes the objective of
revising allocations of BSAI Pacific cod among various harvest sectors
that in general more closely reflect historical use by sector than do
current allocations, thus reducing the need for reallocations during
the fishing year. Alternative 2 also increases the allocation of
Pacific cod to the CDQ Program as required by recent changes in the
Magnuson-Stevens Act. The revised allocations will reduce uncertainty
about the availability of yearly harvests within sectors that is caused
by reallocations, and maintain stability among sectors in the BSAI
Pacific cod fishery.
Alternative 1, no regulatory change, would have no direct impact on
small entities. However, it also would not have increased the
allocation to the < 60 ft (18.3 m) LOA fixed gear sector, one of the
smallest of the small entities, whose allocation is increased under
Alternative 2. Alternative 1 would not revise allocations of BSAI
Pacific cod among various harvest sectors that more closely reflect
historical use by sector than do current allocations, thus the need for
reallocations during the fishing year would not be reduced. Alternative
1 also would not increase the allocation of Pacific cod to the CDQ
Program, contrary to new requirements in the Magnuson-Stevens Act.
Therefore, Alternative 1 would not meet the objectives of this action
and was rejected.
Steps Taken to Minimize the Significant Economic Impact on Small
Entities
Several measures are included in the rule that will reduce impacts
on small entities. Economic opportunity and stability are facilitated
for small entities participating in the Pacific cod fisheries by
establishing BSAI Pacific cod allocations for the smallest of the small
entities (jig vessels and the < 60 ft (18.3 m) LOA hook-and-line and pot
CVs) that represent a net increase over their catch history. This
provides for potential growth in those sectors. On average during 1995
to 2003, the combined harvest history by these sectors was about 0.5
percent of the retained BSAI Pacific cod harvest. However, in recent
years it appears that the < 60 ft (18.3 m) LOA fixed gear CV sector has
increased its participation in the BSAI Pacific cod fishery and could
benefit from additional quota, if it were made available.
The BSAI Pacific cod fisheries are currently managed through a
complex series of permits, gear and area endorsements, and licenses.
Many are predicated on historical participation and/or performance
thresholds (e.g., meeting or exceeding a specific threshold landing in
a specific series of seasons, etc.). Many of these requirements result
in extremely high entry costs and physical barriers for small vessels
and entry level operations. To relieve these burdens and obstacles to
participation, an important means of accommodating small entities can
be ``exemptions'' from these requirements such as acquiring some
specific permits, and/or meeting historical catch and participation
thresholds, that are extended to particularly vulnerable or
disproportionately burdened classes of smaller vessels. For example,
the < 60 ft (18.3 m) LOA fixed gear CV sector does not need a valid
licence limitation program licence to fish Pacific cod and is not
required to have a Pacific cod endorsement. Recognizing the opportunity
to facilitate and sustain small entity participation, the Council
incorporated a number of exemptions for small entities in the final
preferred action. Treatment of these provisions is provided in the RIR.
This final rule maintains the current reallocation process whereby
any unused jig quota is first considered for reallocation to the < 60 ft
(18.3 m) LOA fixed gear CV sector before being reallocated to any other
sector. The rule also changes the jig sector seasonal allowance such
that 20 percent more of the jig allocation is allowed to be harvested
in the first half of the year. Thus, more Pacific cod may potentially
be harvested by the < 60 ft (18.3 m) LOA fixed gear CV sector earlier in
the year, when the weather is preferable for this small boat sector.
The rule also specifies that the third trimester of the jig allocation,
if it is to be reallocated, should be available to the < 60 ft (18.3 m)
LOA fixed gear CV sector on or about September 1. The intent of this
provision is to reallocate quota between the small boat CV sectors as
early in the year as possible, in order for these sectors to have an
opportunity to harvest the quota under better weather conditions.
Not approving the proposed regulatory change that would have
subdivided among trawl sectors the annual PSC limits apportioned to the
Pacific cod trawl gear fisheries, will help minimize the effects of the
reduced allocation on the small entities that are members of the non-
AFA trawl CP sector by reducing the chance that the non-AFA trawl CP
sector's directed fishery for Pacific cod may be closed due to an
insufficient PSC allowance.
This action increases the BSAI Pacific cod allocation to the CDQ
Program from
[[Page 50815]]
7.5 percent of the Pacific cod TAC to 10.7 percent, as mandated by the
recent amendments to the Magnuson-Stevens Act. A tradeoff exists in
terms of impacts on the small entities in the non-CDQ sectors whose
allocations will be reduced (proportionally by 3.2 percent) by the
increase to the CDQ Program. However, the action represents a positive
effect on the six small entities that comprise the CDQ groups in terms
of potential revenues resulting from an increased allocation. This
increase in royalty payments is estimated as approximately $1.1
million. Nonetheless, efforts to minimize the burden on the smallest of
small entities, as discussed above, by exempting them from the most
onerous permit and recency requirements, and by allocating Pacific cod
TAC amounts in excess of their recent Pacific cod harvest levels,
reflect a sincere effort to address the needs of these small entities.
In sum, many vessels in each sector directly regulated by
Alternative 2 are small entities. Because this action is principally
designed to reapportion access to the cod resource among current user
groups, by definition, it represents tradeoffs (i.e., some small
entities could be negatively affected, while others are positively
affected). In addition, the six CDQ groups will receive an increased
allocation under this action.
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 FRFA, 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.
The preamble to this final rule serves as the small entity
compliance guide. This action does not require any additional
compliance from small entities that is not described in the preamble.
Copies of this final rule are available from NMFS (see ADDRESSES) and
at the following website: http://www.fakr.noaa.gov.
List of Subjects in 50 CFR Part 679
Alaska, Fisheries, Recordkeeping and reporting requirements.
Dated: August 23, 2007.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine
Fisheries Service.
0
For the reasons set out in the preamble, 50 CFR part 679 is amended 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.;
and Pub. L. 108 199, 118 Stat. 110.
0
2. In Sec. 679.2, remove the definition for ``AFA catcher/processor'',
revise the definition for ``CDQ reserve'', and add definitions for
``AFA trawl catcher/processor'', ``Hook-and-line catcher/processor'',
``Non-AFA trawl catcher/processor'', and ``Pot catcher/processor'' in
alphabetical order to read as follows:
Sec. 679.2 Definitions.
* * * * *
AFA trawl catcher/processor means:
(1) For purposes of BS pollock and all BSAI groundfish fisheries
other than Atka mackerel, flathead sole, Greenland turbot, Pacific cod,
Pacific ocean perch, rock sole, and yellowfin sole, a catcher/processor
that is permitted to harvest BS pollock under Sec. 679.4(l)(2).
(2) For purposes of BSAI Atka mackerel, flathead sole, Greenland
turbot, Pacific cod, Pacific ocean perch, rock sole, and yellowfin
sole, a catcher/processor that is permitted to harvest BS pollock and
that is listed under Sec. 679.4(l)(2)(i).
* * * * *
CDQ reserve means the amount of each groundfish TAC apportioned
under Sec. 679.20, the amount of each catch limit for halibut, or the
amount of TAC for crab that has been set aside for purposes of the CDQ
Program.
* * * * *
Hook-and-line catcher/processor means a catcher/processor vessel
that is named on a valid LLP license that is noninterim and
transferable, or that is interim and subsequently becomes noninterim
and transferable, and that is endorsed for Bering Sea or Aleutian
Islands catcher/processor fishing activity, catcher/processor, Pacific
cod, and hook-and-line gear.
* * * * *
Non-AFA trawl catcher/processor means, for purposes of BSAI Atka
mackerel, flathead sole, Greenland turbot, Pacific cod, Pacific ocean
perch, rock sole, and yellowfin sole, a catcher/processor vessel using
trawl gear and that:
(1) Is not an AFA trawl catcher/processor listed under Sec.
679.4(l)(2)(i);
(2) Is named on a valid LLP license that is endorsed for Bering Sea
or Aleutian Islands trawl catcher/processor fishing activity; and
(3) Was used to harvest with trawl gear in the BSAI and process not
less than a total of 150 mt of Atka mackerel, flathead sole, Greenland
turbot, Pacific cod, Pacific ocean perch, rock sole, or yellowfin sole
between January 1, 1997, and December 31, 2002.
* * * * *
Pot catcher/processor means a catcher/processor vessel that is
named on a valid LLP license that is noninterim and transferable, or
that is interim and subsequently becomes noninterim and transferable,
and that is endorsed for Bering Sea or Aleutian Islands catcher/
processor fishing activity, catcher/processor, Pacific cod, and pot
gear.
* * * * *
0
3. In Sec. 679.7, revise paragraph (d)(5) and add paragraph (d)(25) to
read as follows:
Sec. 679.7 Prohibitions.
* * * * *
(d) * * *
(5) For a CDQ group, exceed a CDQ or a halibut PSQ.
* * * * *
(25) For a CDQ group, exceed a seasonal allowance of Pacific cod
under Sec. 679.20(a)(7)(i)(B).
* * * * *
0
4. In Sec. 679.20, remove paragraph (b)(1)(iv) and revise the
section's introductory text and paragraph (a)(7) to read as follows:
Sec. 679.20 General limitations.
This section applies to vessels engaged in directed fishing for
groundfish in the GOA or the BSAI.
(a) * * *
(7) Pacific cod TAC, BSAI--(i) CDQ reserve and seasonal allowances.
(A) A total of 10.7 percent of the annual Pacific cod TAC will be
allocated to the CDQ Program in the annual harvest specifications
required under paragraph (c) of this section. The Pacific cod CDQ
allocation will be deducted from the annual Pacific cod TAC before
allocations to the non-CDQ sectors are made under paragraph (a)(7)(ii)
of this section.
(B) The BSAI Pacific cod CDQ gear allowances by season, as those
seasons are specified under Sec. 679.23(e)(5), are as follows:
[[Page 50816]]
------------------------------------------------------------------------
Gear Type A season B season C season
------------------------------------------------------------------------
(1) Trawl 60% 20% 20%
------------------------------------------------------------------------
(i) Trawl CV 70% 10% 20%
------------------------------------------------------------------------
(ii) Trawl CP 50% 30% 20%
------------------------------------------------------------------------
(2) Hook-and-line CP and hook- 60% 40% no C season
and-line CV [gteqt]60 ft
(18.3 m) LOA
------------------------------------------------------------------------
(3) Jig 40% 20% 40%
------------------------------------------------------------------------
(4) All other non-trawl gear no seasonal no seasonal no seasonal
allowance allowance allowance
------------------------------------------------------------------------
(ii) Non-CDQ allocations--(A) Sector allocations. The remainder of
the BSAI Pacific cod TAC after subtraction of the CDQ reserve for
Pacific cod will be allocated to non-CDQ sectors as follows:
------------------------------------------------------------------------
Sector % Allocation
------------------------------------------------------------------------
(1) Jig vessels 1.4
------------------------------------------------------------------------
(2) Hook-and-line/pot CV < 60 ft (18.3 m) 2
LOA
------------------------------------------------------------------------
(3) Hook-and-line CV [gteqt]60 ft (18.3 m) 0.2
LOA
------------------------------------------------------------------------
(4) Hook-and-line CP 48.7
------------------------------------------------------------------------
(5) Pot CV [gteqt]60 ft (18.3 m) LOA 8.4
------------------------------------------------------------------------
(6) Pot CP 1.5
------------------------------------------------------------------------
(7) AFA trawl CP 2.3
------------------------------------------------------------------------
(8) Non AFA trawl CP 13.4
------------------------------------------------------------------------
(9) Trawl CV 22.1
------------------------------------------------------------------------
(B) Incidental catch allowance. During the annual harvest
specifications process set forth at paragraph (c) of this section, the
Regional Administrator will specify an amount of Pacific cod that NMFS
estimates will be taken as incidental catch in directed fisheries for
groundfish other than Pacific cod by the hook-and-line and pot gear
sectors. This amount will be the incidental catch allowance and will be
deducted from the aggregate portion of Pacific cod TAC annually
allocated to the hook-and-line and pot gear sectors before the
allocations under paragraph (a)(7)(ii)(A) of this section are made to
these sectors.
(iii) Reallocation among non-CDQ sectors. If, during a fishing
year, the Regional Administrator determines that a non-CDQ sector will
be unable to harvest the entire amount of Pacific cod allocated to that
sector under paragraph (a)(7)(ii)(A) of this section, the Regional
Administrator will reallocate the projected unused amount of Pacific
cod to other sectors through notification in the Federal Register. Any
reallocation decision by the Regional Administrator will take into
account the capability of a sector to harvest the reallocated amount of
Pacific cod, and the following reallocation hierarchy:
(A) Catcher vessel sectors. The Regional Administrator will
reallocate projected unharvested amounts of Pacific cod TAC from a
catcher vessel sector as follows: first to the jig sector, or to the
less than 60 ft (18.3 m) LOA hook-and-line or pot catcher vessel
sector, or to both of these sectors; second, to the greater than or
equal to 60 ft (18.3 m) LOA hook-and-line or to the greater than or
equal to 60 ft (18.3 m) LOA pot catcher vessel sectors; and third to
the trawl catcher vessel sector. If the Regional Administrator
determines that a projected unharvested amount from the jig sector
allocation, the less than 60 ft (18.3 m) LOA hook-and-line or pot
catcher vessel sector allocation, or the greater than or equal to 60 ft
(18.3 m) LOA hook-and-line catcher vessel sector allocation is unlikely
to be harvested through this hierarchy, the Regional Administrator will
reallocate that amount to the hook-and-line catcher/processor sector.
If the Regional Administrator determines that a projected unharvested
amount from a greater than or equal to 60 ft (18.3 m) LOA pot catcher
vessel sector allocation is unlikely to be harvested through this
hierarchy, the Regional Administrator will reallocate that amount to
the pot catcher/processor sector in accordance with the hierarchy set
forth in paragraph (a)(7)(iii)(C) of this section. If the Regional
Administrator determines that a projected unharvested amount from a
trawl catcher vessel sector allocation is unlikely to be harvested
through this hierarchy, the Regional Administrator will reallocate that
amount to the other trawl sectors in accordance with the hierarchy set
forth in paragraph (a)(7)(iii)(B) of this section.
(B) Trawl gear sectors. The Regional Administrator will reallocate
any projected unharvested amounts of Pacific cod TAC from a trawl
sector (trawl catcher vessel, AFA trawl catcher/processor, and non-AFA
trawl catcher/processor sectors) to other trawl sectors before
unharvested amounts are reallocated and apportioned to specified gear
sectors as follows:
(1) 83.1 percent to the hook-and-line catcher/processor sector,
(2) 2.6 percent to the pot catcher/processor sector, and
(3) 14.3 percent to the greater than or equal to 60 ft (18.3 m) LOA
pot catcher vessel sector.
(C) Pot gear sectors. The Regional Administrator will reallocate
any projected unharvested amounts of Pacific cod TAC from the pot
catcher/processor sector to the greater than or equal to 60 ft (18.3 m)
LOA pot catcher vessel sector, and from the greater than or equal to 60
ft (18.3 m) LOA pot catcher vessel sector to the pot catcher/processor
sector before reallocating it to the hook-and-line catcher/processor
sector.
(iv) Non-CDQ seasonal allowances--(A) Seasonal allowances by
sector. The BSAI Pacific cod sector allowances are apportioned by
season, as those seasons are specified at Sec. 679.23(e)(5), as
follows:
----------------------------------------------------------------------------------------------------------------
Seasonal Allowances
Sector --------------------------------------------------------------------------
A season B season C season
----------------------------------------------------------------------------------------------------------------
(1) Trawl ....................... ....................... .......................
----------------------------------------------------------------------------------------------------------------
[[Page 50817]]
(i) Trawl CV 74 % 11 % 15 %
----------------------------------------------------------------------------------------------------------------
(ii) Trawl CP 75 % 25 % 0 %
----------------------------------------------------------------------------------------------------------------
(2) Hook-and-line CP, hook-and-line 51 % 49 % no C season
CV [gteqt]60 ft (18.3 m) LOA, and
pot gear vessels [gteqt]60 ft (18.3
m) LOA
----------------------------------------------------------------------------------------------------------------
(3) Jig vessels 60 % 20 % 20 %
----------------------------------------------------------------------------------------------------------------
(4) All other nontrawl vessels no seasonal allowance no seasonal allowance no seasonal allowance
----------------------------------------------------------------------------------------------------------------
(B) Unused seasonal allowances. Any unused portion of a seasonal
allowance of Pacific cod from any sector except the jig sector will be
reallocated to that sector's next season during the current fishing
year unless the Regional Administrator makes a determination under
paragraph (a)(7)(iii) of this section that the sector will be unable to
harvest its allocation.
(C) Jig sector. The Regional Administrator will reallocate any
projected unused portion of a seasonal allowance of Pacific cod for the
jig sector under this section to the less than 60 ft (18.3 m) LOA hook-
and-line or pot catcher vessel sector. The Regional Administrator will
reallocate the projected unused portion of the jig sector's C season
allowance on or about September 1 of each year.
* * * * *
0
5. In Sec. 679.21, remove paragraph (e)(1)(i), redesignate paragraphs
(e)(1)(ii) through (e)(1)(ix) as (e)(1)(i) through (e)(1)(viii), and
revise paragraphs (e)(2), (e)(3)(i), (e)(3)(v), and (e)(4), to read as
follows:
Sec. 679.21 Prohibited species bycatch management.
* * * * *
(e) * * *
(2) Nontrawl gear, halibut. The PSC limit of halibut caught while
conducting any nontrawl fishery for groundfish in the BSAI during any
fishing year is the amount of halibut equivalent to 900 mt of halibut
mortality.
(3) * * *
(i) General. (A) An amount equivalent to 7.5 percent of each PSC
limit set forth in paragraphs (e)(1)(i) through (iv) and paragraphs
(e)(1)(vi) through (viii) of this section is allocated to the
groundfish CDQ Program as PSQ reserve. The PSQ reserve is not
apportioned by gear or fishery.
(B) NMFS, after consultation with the Council and after subtraction
of the PSQ reserve, will apportion each PSC limit set forth in
paragraphs (e)(1)(i) through (vii) of this section into bycatch
allowances for the fishery categories defined in paragraph (e)(3)(iv)
of this section, based on each category's proportional share of the
anticipated incidental catch during a fishing year of prohibited
species for which a PSC limit is specified and the need to optimize the
amount of total groundfish harvested under established PSC limits.
* * * * *
(v) AFA prohibited species catch limitations. Halibut and crab PSC
limits for the AFA trawl catcher/processor sector and the AFA trawl
catcher vessel sector will be established according to the procedures
and formulas set out in Sec. 679.64(a) and (b) and managed through
directed fishing closures for the AFA trawl catcher/processor sector
and the AFA trawl catcher vessel sector in the groundfish fisheries for
which the PSC limit applies.
(4) Halibut apportionment to nontrawl fishery categories--(i)
General. (A) An amount equivalent to 7.5 percent of the nontrawl gear
halibut PSC limit set forth in paragraph (e)(2) of this section is
allocated to the groundfish CDQ Program as PSQ reserve. The PSQ reserve
is not apportioned by gear or fishery.
(B) NMFS, after consultation with the Council and after subtraction
of the PSQ reserve, will apportion the halibut PSC limit for nontrawl
gear set forth under paragraph (e)(2) of this section into bycatch
allowances for the nontrawl fishery categories defined under paragraph
(e)(4)(ii) of this section.
(C) Apportionment of the nontrawl halibut PSC limit among the
nontrawl fishery categories will be based on each category's
proportional share of the anticipated bycatch mortality of halibut
during a fishing year and the need to optimize the amount of total
groundfish harvested under the nontrawl halibut PSC limit.
(D) The sum of all bycatch allowances of any prohibited species
will equal its PSC limit.
(ii) Nontrawl fishery categories. For purposes of apportioning the
nontrawl halibut PSC limit among fisheries, the following fishery
categories are specified and defined in terms of round-weight
equivalents of those BSAI groundfish species for which a TAC has been
specified under Sec. 679.20.
(A) Pacific cod hook-and-line catcher vessel fishery. Catcher
vessels fishing with hook-and-line gear during any weekly reporting
period that results in a retained catch of Pacific cod that is greater
than the retained amount of any other groundfish species.
(B) Pacific cod hook-and-line catcher/processor fishery. Catcher/
processors fishing with hook-and-line gear during any weekly reporting
period that results in a retained catch of Pacific cod that is greater
than the retained amount of any other groundfish species.
(C) Sablefish hook-and-line fishery. Fishing with hook-and-line
gear during any weekly reporting period that results in a retained
catch of sablefish that is greater than the retained amount of any
other groundfish species.
(D) Groundfish jig gear fishery. Fishing with jig gear during any
weekly reporting period that results in a retained catch of groundfish.
(E) Groundfish pot gear fishery. Fishing with pot gear under
restrictions set forth in Sec. 679.24(b) during any weekly reporting
period that results in a retained catch of groundfish.
(F) Other nontrawl fisheries. Fishing for groundfish with nontrawl
gear during any weekly reporting period that results in a retained
catch of groundfish and does not qualify as a Pacific cod hook-and-line
catcher vessel fishery, a Pacific cod hook-and-line catcher/processor
fishery, a sablefish hook-and-line fishery, a jig gear fishery, or a
groundfish pot gear fishery as defined under this paragraph (e)(4)(ii).
* * * * *
Sec. 679.23 [Amended]
0
6. In Sec. 679.23, remove paragraphs (e)(6) and (e)(7).
[[Page 50818]]
0
7. In Sec. 679.64:
A. Remove paragraph (a)(1) introductory text.
B. Redesignate paragraph (a)(1)(i) as paragraph (a)(1) introductory
text.
C. Redesignate paragraph (a)(2) introductory text as paragraph
(a)(1)(i).
D. Redesignate paragraphs (a)(2)(i) and (ii) as paragraphs
(a)(1)(i)(A) and(B), respectively.
E. Redesignate paragraph (a)(3) introductory text as paragraph
(a)(1)(ii).
F. Redesignate paragraphs (a)(3)(i) through (iii) as paragraphs
(a)(1)(ii)(A) through (C), respectively.
G. Redesignate paragraph (a)(4) introductory text as paragraph
(a)(1)(iii).
H. Redesignate paragraphs (a)(4)(i) and (ii) as paragraphs
(a)(1)(iii)(A) and (B), respectively.
I. Redesignate paragraph (a)(5) as paragraph (a)(2).
J. Redesignate paragraph (a)(6) as paragraph (a)(3), and
K. Revise newly redesignated paragraphs (a)(1) introductory text
and (a)(3).
The revisions read as follows:
Sec. 679.64 Harvesting sideboards limits in other fisheries.
(a) * * *
(1) How will groundfish sideboard limits for AFA listed catcher/
processors be calculated? Except for Aleutian Islands pollock and BSAI
Pacific cod, the Regional Administrator will establish annual AFA
catcher/processor harvest limits for each groundfish species or species
group in which a TAC is specified for an area or subarea of the BSAI as
follows:
* * * * *
(3) How will AFA catcher/processor sideboard limits be managed? The
Regional Administrator will manage groundfish harvest limits and PSC
bycatch limits for AFA catcher/processors through directed fishing
closures in fisheries established under paragraph (a)(1) of this
section in accordance with the procedures set out in Sec. Sec.
679.20(d)(1)(iv) and 679.21(e)(3)(v).
* * * * *
Sec. Sec. 679.20, 679.21, 679.31, 679.32, 679.50, and 679.64 [Amended]
0
8. In the table below, for each of the paragraphs shown under the
``Paragraph'' column, remove the phrase indicated under the ``Remove''
column and replace it with the phrase indicated under the ``Add''
column for the number of times indicated in the ``Frequency'' column.
----------------------------------------------------------------------------------------------------------------
Paragraph(s) Remove Add Frequency
----------------------------------------------------------------------------------------------------------------
Sec. 679.20(b)(1)(i) except pollock and the except pollock, Pacific 2
cod, and the
----------------------------------------------------------------------------------------------------------------
Newly redesignated Sec. paragraphs (e)(1)(iii)(A) paragraphs (e)(1)(i)(A) 1
679.21(e)(1)(i) introductory text through through
----------------------------------------------------------------------------------------------------------------
Newly redesignated Sec. paragraphs (e)(1)(iii)(A) paragraphs (e)(1)(ii)(A) 1
679.21(e)(1)(ii) introductory text and and
----------------------------------------------------------------------------------------------------------------
Paragraph heading of newly Chinook salmon BS Chinook salmon 1
redesignated Sec. 679.21(e)(1)(vi)
----------------------------------------------------------------------------------------------------------------
Sec. 679.21(e)(3)(ii)(B)(2) paragraph (e)(1)(ii) of paragraph (e)(1)(i) of 1
----------------------------------------------------------------------------------------------------------------
Sec. 679.21(e)(7)(viii) paragraphs (e)(1)(vii) and paragraphs (e)(1)(vi) and 1
introductory text (e)(1)(ix) of (e)(1)(viii) of
----------------------------------------------------------------------------------------------------------------
Sec. 679.21(e)(7)(viii)(A) paragraph (e)(1)(vii) of paragraph (e)(1)(vi) of 1
introductory text
----------------------------------------------------------------------------------------------------------------
Sec. 679.21(e)(7)(viii)(B) paragraph (e)(1)(ix) of paragraph (e)(1)(viii) of 1
introductory text
----------------------------------------------------------------------------------------------------------------
Sec. 679.31(c) (See Sec. (See Sec. 1
679.20(b)(1)(iii)) 679.20(a)(7)(i) and
(b)(1)(iii).)
----------------------------------------------------------------------------------------------------------------
Sec. 679.31(e) (See Sec. (See Sec. 1
679.21(e)(1)(i) and 679.21(e)(3)(i)(A) and
(e)(2)(ii)). (e)(4)(i)(A).)
----------------------------------------------------------------------------------------------------------------
Sec. 679.32(b) under Sec. 679.21(e)(5) under Sec. 679.21(e)(4) 1
in in
----------------------------------------------------------------------------------------------------------------
Sec. 679.50(c)(1)(iii) under Sec. under Sec. 1
679.21(e)(7)(vi), or 679.21(e)(7)(vii), or
----------------------------------------------------------------------------------------------------------------
Newly redesignated Sec. paragraph (a)(2)(i) of paragraph (a)(1)(i)(A) of 1
679.64(a)(1)(i)(B)
----------------------------------------------------------------------------------------------------------------
Newly redesignated Sec. paragraphs (a)(1)(ii) paragraphs (a)(1)(i) 1
679.64(a)(1)(iii)(A) through (a)(3) of through (a)(1)(ii) of
----------------------------------------------------------------------------------------------------------------
Newly redesignated Sec. paragraph (a)(4)(i) of paragraph (a)(1)(iii)(A) 1
679.64(a)(1)(iii)(B) of
----------------------------------------------------------------------------------------------------------------
[FR Doc. E7-17140 Filed 8-31-07; 8:45 am]
BILLING CODE 3510-22-S