[Federal Register Volume 61, Number 106 (Friday, May 31, 1996)]
[Rules and Regulations]
[Pages 27308-27312]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13594]
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DEPARTMENT OF COMMERCE
50 CFR Part 672
[Docket No. 960228053-6142-02; I.D. 022296E]
RIN 0648-AI56
Groundfish of the Gulf of Alaska; Pollock Seasonal Allowances
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 45 to the
Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP).
This rule combines the third and fourth quarterly allowances for
pollock in the three statistical areas of the combined Western and
Central (W/C) Regulatory Area into single seasonal allowances that will
become available on September 1 of each fishing year. Changes to the
final 1996 harvest specifications of Gulf of Alaska (GOA) pollock are
also made to reflect the revised seasonal allowances. These measures
are necessary to address management problems that have been identified
by the fishing industry. They are intended to further the management
objectives of the FMP.
EFFECTIVE DATE: May 30, 1996.
ADDRESSES: Copies of Amendment 45 and the Environmental Assessment/
Regulatory Impact Review (EA/RIR) prepared for Amendment 45 may be
obtained from the North Pacific Fishery Management Council, 605 W. 4th
Ave. Suite #306, Anchorage, AK 99501.
FOR FURTHER INFORMATION CONTACT: Kent Lind, (907) 586-7228.
SUPPLEMENTARY INFORMATION: The pollock fishery in the exclusive
economic zone of the GOA is managed by NMFS under the FMP. The FMP was
prepared by the North Pacific Fishery Management Council (Council)
under the Magnuson Fishery Conservation and Management Act (Magnuson
Act) and is implemented by regulations found at 50 CFR part 672.
General regulations governing U.S. fisheries are also found at 50 CFR
part 620.
Background
Amendment 45 removes the requirement that the total allowable catch
(TAC) specified for pollock in three statistical areas of the W/C
Regulatory Area be divided into four equal quarterly allowances and
replaces it with more flexible language requiring that the TACs be
divided into seasonal allowances rather than quarterly allowances.
Amendment 45 authorizes NMFS to establish the number and timing of
seasonal allowances in regulation. The Council's objective in adopting
Amendment 45 was to allow NMFS to combine by regulatory amendment the
third quarter (July 1) and fourth quarter (October 1) allowances for
pollock in the statistical areas of the W/C Regulatory Area into single
seasonal allowances that would become available in September or
October.
The action has the following objectives: (1) Reduced chum salmon
bycatch, which has been high during the third quarter (July 1) opening;
(2) reduced scheduling conflicts with summer salmon processing
activities; (3) reduced operating costs for industry; and (4) reduced
risk of harvest overruns during extremely short openings. Additional
information on this action may be found in the preamble to the proposed
rule published in the Federal Register on March 12, 1996 (61 FR 9972)
and the EA/RIR prepared for this action. Public comment on the proposed
action was invited through April 22, 1996. NMFS received 11 written
letters of comment. The comments are summarized and responded to below
in the response to comments section.
The only change from the proposed rule is a modification in the
opening date for the Western Regulatory Area from October 1 to
September 1 for the reasons stated below. This change is reflected in
Sec. 672.23(e), which establishes fishing seasons, and section 4 and
table 3 of the final 1996 harvest specifications.
At its January 1996 meeting, the Council considered opening date
options of September 1, September 15, and October 1 that would apply to
the third season in both the W/C Regulatory Areas. However, the Council
subsequently recommended that NMFS implement a modified proposal that
would establish separate third season opening dates of September 1 in
the Central Regulatory Area and October 1 in the Western Regulatory
Area. This modified proposal was submitted to the Council by a
coalition of Bering Sea-based processors and fishermen with the intent
of preserving the ability of Bering Sea-based vessels to fish in the
Western Regulatory Area after the closure of the Bering Sea pollock
non-roe season. The proposed rule included these separate opening dates
as recommended by the Council.
Based on changing circumstances in the pollock fishery and
information submitted during the comment period on the proposed rule,
NMFS has changed the final rule from the proposed rule to reflect a
single opening date of September 1 for both the W/C Regulatory Areas.
The reasons for this change are as follows: First, the Council at its
April 1996 meeting made a final recommendation that NMFS delay the
start of the Bering Sea pollock non-roe season from August 15 to
September 1 for both the inshore and offshore sectors. If approved,
this regulatory amendment would become effective for the 1996 pollock
non-roe season. In 1995 the inshore sector Bering Sea pollock non-roe
season lasted 39 days and NMFS expects the 1996 season to last
approximately as long. Delaying the Bering Sea pollock non-roe season
until September 1 is likely to extend the season into the first or
second week of October. Consequently, NMFS believes that an October 1
opening date for the Western Regulatory Area no longer holds any
particular advantage for the Bering Sea-based fleet, which was the only
sector of the industry that supported this particular opening date.
Second, NMFS has received extensive written comments from Western
Regulatory Area-based fishermen and processors who oppose an October 1
opening date for the Western Regulatory Area for safety reasons. This
sector of the industry suggests that because weather conditions are
likely to be worse in October, an October 1 opening date will pose
greater safety risks for
[[Page 27309]]
smaller vessels than would a September 1 opening date.
Third, NMFS has received extensive written comments from Western
Regulatory Area-based fishermen and processors who believe an October 1
opening date would cause them to be preempted by larger and more
numerous Bering Sea-based vessels. Although a delay in the Bering Sea
pollock non-roe season would largely eliminate these concerns, NMFS
believes that a compelling reason no longer exists to treat the Western
Regulatory Area separately from the rest of the GOA.
Finally, scheduling fisheries in various areas to operate
simultaneously will disperse effort resulting in more manageable
fisheries and a more equitable distribution of fishing opportunity. A
September 1 pollock opening date for the Western Regulatory Area would
bring the season for this area into line with the rest of the GOA, as
well as the Bering Sea if the Council's recommendation to delay the
pollock non-roe season is approved.
Regulatory Changes Made by This Action
This action combines the third and fourth quarterly allowances of
pollock TAC for the statistical areas of the W/C Regulatory Area into
single seasonal allowances equal to 50 percent of the annual pollock
TAC for each statistical area. This combined seasonal allowance will
become available on September 1. This action retains the requirements
that (1) within any fishing year, shortfalls in the harvest of one
seasonal allowance be proportionately added to subsequent seasonal
allowances, resulting in a sum for each seasonal allowance not to
exceed 150 percent of the original seasonal allowance; and (2) harvests
in excess of a seasonal allowance be deducted proportionately from
subsequent seasonal allowances.
Response to Comments
No comments opposed Amendment 45 in general (or supported retaining
the status quo of four quarterly allowances). Six letters of comment
from representatives for Western Regulatory Area-based pollock
fishermen and processors supported a September 1 opening date for this
area but opposed an October 1 opening date. One letter of comment from
a representative for Central Regulatory Area-based pollock fishermen
and processors supported a September 1 opening date for this area but
was neutral on the Western Regulatory Area opening date. No comments
were received that favored an October 1 opening date for the Western
Regulatory Area. The following paragraphs summarize and respond to the
comments received on the proposed rule.
Comment 1. Prior to the Council's decision at the January 1996
meeting to establish separate opening dates, no discussion or analysis
occurred of separate opening dates for the W/C Regulatory Areas. Both
the Council's Scientific and Statistical Committee and Advisory Panel
recommended that the Council establish a September 1 opening date for
both the W/C Regulatory Areas. In addition, no prior notice was
provided to the public that the Council was considering separate
opening dates. As a result, Western Regulatory Area-based fishermen did
not have adequate opportunity to comment on the effects of an October 1
opening date on their fleet.
Response. NMFS has changed the proposed rule to establish a single
opening date of September 1 for both the W/C Regulatory Areas.
Comment 2. Considerable support exists within the industry for
reconsidering the decision to separate the W/C Regulatory Area opening
dates, as evidenced by the 17 to 2 vote by the Advisory Panel at the
April 1996 Council meeting, in support of a simultaneous W/C Regulatory
opening date of September 1.
Response. See response to comment 1.
Comment 3. The Council's adoption of different opening dates for
the W/C Regulatory Areas was extremely unfair to Western Regulatory
Area fishermen who have sought to increase their involvement in the
administrative process. The Council's action was taken without any
public notice, with little or no understanding of potential impacts on
small boat fishermen and communities, and with no public discussion of
this unanticipated alternative by Council members or NMFS. This action
can best be described as a ``sneak attack'' because Western Regulatory
Area fishermen were not given a reasonable opportunity to defend
themselves on this issue.
Response. See response to comment 1.
Comment 4. When the Council and NMFS make decisions that result in
allocations among fishermen, both fundamental fairness and the law
dictate a heightened level of public participation and a strong
administrative record. This process is necessary so that the Council,
NMFS, and the Secretary of Commerce are fully informed of the potential
impacts of the proposed actions. Although case law allows a tainted
administrative record to be cured by subsequent comments and internal
Agency analysis of the objections raised, this ``after the fact''
procedure does not cure the fundamentally unfair nature of this
particular decision by the Council. NMFS should not attempt to cure
this tainted administrative record simply to justify an improperly
motivated decision.
Response. This comment is mute in light of NMFS' decision to adopt
a single opening date of September 1 for both the Western and Central
Regulatory Areas.
Comment 5. The EA/RIR did not evaluate the impacts of an October 1
Western Regulatory Area opening date on resident small-boat fishermen
or the coastal communities of the Western GOA which are dependent on
the flow of fish products for employment and local tax revenues. Nor
did the analysis address the possible loss of the October 1 third
trimester release to all fishermen if NMFS believes that the vessel
capacity will exceed the quota. A separate October 1 date for the
Western Regulatory Area was beyond the scope of the EA/RIR, and we
seriously question the legality of adopting a measure that was not
subject to a proper analytical or public review.
Response. See response to comment 4.
Comment 6. The proposed October 1 opening date for the Western
Regulatory Area is a substantial reallocation of the pollock resource,
which treats local small-boat fishermen unfairly. National standard 4
requires that any allocation of fishing privileges be done in a manner
that is fair and equitable to all fishermen. An October 1 opening will
invite massive participation by the Bering Sea-based pollock fleet to
the disadvantage of smaller vessels based in the Western Regulatory
Area. In addition, eliminating the July opening would effectively
eliminate this small boat fleet's fishery, which has occurred primarily
in the third quarter and secondarily in the fourth quarter of each
year. These vessels have traditionally and almost exclusively fished in
the third quarter (July 1) opening in the Western Regulatory Area and
will face increased safety risks if required to fish this quota in
October. If the July allowance is combined with the fourth quarter
allowance and exposed to the escalating fishing pressure of the entire
Bering Sea and GOA fleet, the impact will be to reallocate the entire
third quarter fishery from a resident small-boat fleet to the Dutch
Harbor and Kodiak fleets. The majority of these small Western
Regulatory Area-based vessels will be unable to establish Kodiak
markets to participate in the September 1 Central Regulatory Area
[[Page 27310]]
opening and their small size makes it impossible for them to
participate in the Bering Sea pollock non-roe season.
Response. See response to comment 1.
Comment 7. Delaying the third seasonal allowance in the Western
Regulatory Area until October 1 when the Bering Sea pollock fishery is
closed will greatly increase effort in the Western Regulatory Area.
This will make the fishery more difficult to manage and is in conflict
with one of the stated objectives of Amendment 45, easing the effort in
the GOA pollock fisheries. No substantive justification exists for how
the October 1 opening date satisfies the third and critical objective
of the proposed amendment.
Response. The changes made in the final rule which establish a
single opening date of September 1 for both the Central and Western
Regulatory Areas and the Council's April 1996 recommendation to delay
the Bering Sea pollock non-roe season until September 1, if adopted,
would result in a single opening date of September 1 for both the
Bering Sea and GOA.
Comment 8. An October 1 start date in the Western Regulatory Area
is nothing more than punishment to Sand Point Boats for political
reasons. These boats are the smallest boats in the pollock fleet.
Asking operators of these boats to start their fishery on October 1 is
to invite injuries or worse.
Response. See response to comment 1.
Comment 9. The decision to delay the Western Regulatory Area
opening until October 1 means the difference between a multi-day
fishery and a fishery that may well be measured in hours. This means
that local boats will have taken away from them a reasonable
opportunity to make a living so that bigger Kodiak and Dutch Harbor
boats can swoop in for a one-tow event.
Response. See response to comment 1.
Comment 10. The proposed October 1 opening date for the Western
Regulatory Area isolates one area and subjects it to uncontrollable
fishing pressure. The Bering Sea fleet no longer has to choose among
the entire W/C Regulatory Area during the last release of pollock. The
Kodiak-based fleet of large trawl vessels will be able to fish in the
Central Regulatory Area in September and then shift to the Western
Regulatory Area in October. The Western Regulatory Area will face not
only the local small-boat trawl fleet in October but the combined
Bering Sea and Kodiak-based trawl fleet as well. Whenever possible,
fisheries in various areas should be scheduled to operate in the same
time period to disperse effort. This makes for more manageable
fisheries and a more equitable distribution of opportunity.
Response. NMFS concurs. See response to comment 7.
Comment 11. If the October 1 opening date is approved, operators of
Western GOA plants estimate they will lose from 11 percent to 15
percent of the pollock that has traditionally been delivered to them.
Under the status quo, most of the third quarter pollock fishery in
Statistical Areas 610 and 620 was delivered to Western GOA plants. If
this opening is shifted to October 1, much of this quota will be
harvested instead by Bering Sea-based vessels and delivered to Bering
Sea-based plants.
Response. See response to comment 1. Changes to 1996 Harvest
Specifications
Final 1996 harvest specifications for GOA pollock were published in
the Federal Register on February 5, 1996 (61 FR 4304). The change from
quarterly allowances to three seasonal allowances of pollock TAC
amounts specified for the statistical areas of the W/C Regulatory Area
requires that the final 1996 specifications be amended. First, footnote
2 to Table 1 is revised to read as follows: ``Pollock is apportioned to
three statistical areas in the combined Western/Central Regulatory
Area, each of which is further divided into three seasonal allowances
(Table 3). In the Eastern Regulatory Area, pollock is not divided into
seasonal allowances.''
Second, page 4308 of the final 1996 specifications, section 4,
``Apportionments of Pollock TAC Among Regulatory Areas, Season, and
Between Inshore and Offshore Components,'' and Table 3 is amended as
follows to reflect the new seasonal allowances of pollock:
4. Apportionments of Pollock TAC Among Regulatory Areas, Seasons, and
Between Inshore and Offshore Components
In the GOA, pollock is apportioned by area, season, and inshore/
offshore components. Regulations at Sec. 672.20(a)(2)(iv) require that
the TAC for pollock in the combined W/C GOA be apportioned among
statistical areas; Shumagin (610), Chirikof (620), and Kodiak (630) in
proportion to known distributions of the pollock biomass. This measure
was intended to provide spatial distribution of the pollock harvest as
a sea lion protection measure. Each statistical area apportionment
would be further divided into three seasonal allowances (Table 3).
Within any fishing year, any unharvested amount of any seasonal
allowance of pollock TAC would be added in equal proportions to the
subsequent seasonal allowances, resulting in a sum for each seasonal
allowance that does not exceed 150 percent of the original seasonal
allowance. Similarly, harvests in excess of a seasonal allowance of TAC
would be deducted in equal proportions from the remaining seasonal
allowances of that fishing year. Directed fishing for pollock in the W/
C Regulatory Area (Statistical Areas 610, 620, and 630) may be
authorized in seasonal allowances beginning on January 1, June 1, and
September 1. The Eastern Regulatory Area pollock TAC of 2,810 metric
tons (mt) is not allocated among smaller areas or seasonal allowances.
Regulations at Sec. 672.20(a)(2)(v)(A) require that the domestic
annual processing (DAP) apportionment for pollock in all regulatory
areas and all seasonal allowances thereof be divided into inshore and
offshore components. One hundred percent of the pollock DAP in each
regulatory area is apportioned to the inshore component after
subtraction of amounts that are determined by the Director, Alaska
Region, NMFS (Regional Director) to be necessary to support the bycatch
needs of the offshore component in directed fisheries for other
groundfish species. The amount of pollock available for harvest by
vessels in the offshore component is that amount actually taken as
bycatch during directed fishing for groundfish species other than
pollock, up to the maximum retainable bycatch amounts allowed under
regulations at Sec. 672.20(g).
[[Page 27311]]
Table 3.--Distribution of Pollock in the Western and Central Regulatory Areas of the Gulf of Alaska (W/C GOA).
ABC for the W/C GOA is 52,000 mt. Biomass Distribution is Based on 1993 Survey Data. TACs are Equal to ABC.
Inshore and Offshore Allocations of Pollock are not Shown. ABCs and TACs are Rounded to the Nearest 10 mt.
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Seasonal allowances \1\
Statistical Area Biomass 1996 TAC -----------------------------------
percent First Second Third
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Shumagin (610)...................................... 49.0 25,480 6,370 6,370 12,740
Chirikof (620)...................................... 24.7 12,840 3,210 3,210 6,420
Kodiak (630)........................................ 26.3 13,680 3,420 3,420 6,840
-----------------------------------------------------------
Total......................................... 100.0 52,000 13,000 13,000 26,000
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\1\ As established under paragraphs (e) and (f) of Sec. 672.23, the first, second, and third seasonal
allowances of W/C Regulatory Area pollock TAC amounts are available January 1 and June 1, and September 1,
respectively.
Classification
The Regional Director has determined that Amendment 45 is necessary
for the conservation and management of the groundfish fishery of the
GOA and that it is consistent with the Magnuson Act and other
applicable laws.
This rule has been determined to be not significant for the
purposes of E.O. 12866.
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce certified to the Chief Counsel for Advocacy of
the Small Business Administration when this rule was proposed that this
rule would not have a significant economic impact on a substantial
number of small entities. The reasons were published in the notice of
proposed rulemaking. As a result, a regulatory flexibility analysis was
not prepared.
Because NMFS would like to incorporate the text of this rule into a
comprehensive consolidation of the Federal regulations implementing the
Alaska fishery management plans expected to be published as a final
rule in the near future, NMFS is making this rule immediately
effective. This rule will not have any substantive impact until July 1,
1996. Consequently, under 5 U.S.C. 553(d)(3), it is unnecessary to
delay the effectiveness of it for 30 days.
List of Subjects in 50 CFR Part 672
Fisheries, Reporting and recordkeeping requirements.
Dated: May 23, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Serivce.
For the reasons set out in the preamble, 50 CFR part 672 is amended
as follows:
PART 672--GROUNDFISH OF THE GULF OF ALASKA
1. The authority citation for part 672 continues to read as
follows:
Authority: 16 U.S.C. 1801, et seq.
General Amendments
2. In Sec. 672.20, paragraph (a)(2)(iv); the first sentence of
paragraph (a)(2)(v)(A); and paragraph (c)(2) (i) and (ii) are revised
to read as follows:
Sec. 672.20 General limitations.
(a) * * *
(2) * * *
(iv) The TAC for pollock in the combined Western and Central
Regulatory Areas will be apportioned among Statistical Areas 610, 620,
and 630 in proportion to the distribution of the pollock biomass as
determined by the most recent NMFS surveys. Each apportionment will be
divided into three seasonal allowances of 25 percent, 25 percent, and
50 percent of the apportionment, respectively, corresponding to the
three fishing seasons defined at paragraph (e) of Sec. 672.23. Within
any fishing year, any unharvested amount of any seasonal allowance will
be added proportionately to all subsequent seasonal allowances,
resulting in a sum for each allowance not to exceed 150 percent of the
initial seasonal allowance. Within any fishing year, harvests in excess
of a seasonal allowance will be deducted proportionately from all
subsequent seasonal allowances.
(v) * * * (A) The DAP apportionment of pollock in all regulatory
areas will be allocated entirely to vessels catching pollock for
processing by the inshore component after subtraction of an amount that
is projected by the Regional Director to be caught by, or delivered to,
the offshore component incidental to directed fishing for other
groundfish species. * * *
* * * * *
(c) * * *
(2) * * * (i) Applicable after December 31, 1998. If the Regional
Director determines that the amount of a target species or ``other
species'' category apportioned to a fishery is likely to be reached,
the Regional Director may establish a directed fishing allowance for
that species or species group. The amount of a species or species group
apportioned to a fishery is the amount identified in the notice of
specifications as provided in paragraph (c)(1) of this section as these
amounts are revised by inseason adjustments, for that species or
species group, as identified by regulatory area, district or
statistical area and as further identified according to any allocation
of total allowable level of fishing level (TALFF), the apportionment
for joint venture processing (JVP), the apportionment for DAP, the
seasonal allowance of pollock and, if applicable, as further identified
by gear type. In establishing a directed fishing allowance, the
Regional Director shall consider the amount of that species or species
group or seasonal allowance of pollock that will be taken as incidental
catch in directed fishing for other species in the same regulatory area
or district. If the Regional Director establishes a directed fishing
allowance and that allowance is, or will be, reached before the end of
the fishing year or, with respect to pollock, before the end of the
season, NMFS will prohibit directed fishing for that species or species
group in the specified regulatory area, district or statistical area.
If directed fishing for a species or species group is prohibited, any
amount of that species or species group greater than the maximum
retainable bycatch amount, as calculated under paragraph (g) of this
section, may not be retained and must be treated as a prohibited
species under paragraph (e) of this section.
(ii) Applicable through December 31, 1998. If the Regional Director
determines that the amount of a target species or ``other species''
category apportioned to a fishery is likely to be reached, the Regional
Director may establish a directed fishing allowance for that species or
species group. The
[[Page 27312]]
amount of a species or species group apportioned to a fishery is the
amount identified in the specifications as provided in paragraph (c)(1)
of this section. These amounts are revised by inseason adjustments, for
a given species or species group, as identified by regulatory area,
district or statistical area, and as further identified according to
any allocation of TALFF, the apportionment for JVP, the apportionment
for DAP, the seasonal allowance of pollock or, with respect to Pacific
cod, to an allocation to the inshore or offshore component and, if
applicable, as further identified by gear type. In establishing a
directed fishing allowance, the Regional Director should consider the
amount of that species group, seasonal allowance of pollock, or
allocation of Pacific cod to the inshore or offshore component that
will be taken as incidental catch in directed fishing for other species
in the same regulatory area, district or statistical area. If the
Regional Director establishes a directed fishing allowance and that
allowance is or will be reached before the end of the fishing year or,
with respect to pollock, before the end of the season, NMFS will
prohibit directed fishing for the species or species group in the
specified regulatory area, district or statistical area. If directed
fishing for a species or species group is prohibited, any amount of
that species or species group greater than the maximum retainable
bycatch amount, as calculated under paragraph (g) of this section, may
not be retained and must be treated as a prohibited species under
paragraph (e) of this section.
* * * * *
3. In Sec. 672.23, paragraph (e) is revised to read as follows:
Sec. 672.23 Seasons.
* * * * *
(e) Subject to other provisions of this part, directed fishing for
pollock in the Western and Central Regulatory Areas of the Gulf of
Alaska is authorized only during the three seasons:
(1) From 0001, A.l.t., January 1 through 12 noon, A.l.t., April 1;
(2) From 1200, A.l.t., June 1 through 1200, A.l.t., July 1; and
(3) From 1200, A.l.t., September 1 through 2359 A.l.t., December
31.
Nomenclature Amendments
Sec. 672.20 [Amended]
4. In addition to the amendments set out above, in Sec. 672.20, in
paragraph (c)(1), remove all occurrences of the word ``quarterly'' and
add in their place the word ``seasonal''.
[FR Doc. 96-13594 Filed 5-30-96; 8:45 am]
BILLING CODE 3510-22-W
