[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