[Federal Register Volume 59, Number 143 (Wednesday, July 27, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-18229]


[[Page Unknown]]

[Federal Register: July 27, 1994]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 672 and 675

[Docket No. 940413-4199; I.D. 032394C]
RIN 0648-AG59

 

Groundfish of the Gulf of Alaska; Groundfish Fishery of the 
Bering Sea and Aleutian Islands Area

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

ACTION: Final rule; final 1994 specification of Pacific halibut bycatch 
allowances.

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SUMMARY: NMFS implements regulations for several management measures to 
prevent certain Gulf of Alaska (GOA) trawl fisheries from taking an 
unnecessarily large share of the GOA halibut bycatch limit; amend the 
directed fishing standards to prohibit using retained amounts of 
arrowtooth flounder, or groundfish species that are closed to directed 
fishing, as a basis for calculating retainable amounts of other, more 
valuable groundfish species that are closed to directed fishing; change 
the opening date of the yellowfin sole and ``other flatfish'' fisheries 
in the Bering Sea and Aleutian Islands management area (BSAI) from May 
1 to January 1; and implement changes pertaining to the annual 
specification and management of GOA halibut prohibited species catch 
(PSC) limits. This action is necessary to reduce the likelihood that 
one sector of the Alaska trawl fleet will preempt others for a share of 
the Pacific halibut bycatch limit established for vessels using trawl 
gear in the GOA, and provide greater opportunity to harvest available 
groundfish under halibut bycatch restrictions in both the GOA and BSAI 
fisheries. This action is intended to further the objectives of the 
fishery management plans for the groundfish fisheries off Alaska.

EFFECTIVE DATE: August 9, 1994.

ADDRESSES: Individual copies of the environmental assessment/regulatory 
impact review (EA/RIR) prepared for this action may be obtained from 
the Fisheries Management Division, Alaska Region, NMFS, P.O. Box 21668, 
Juneau, AK 99802-1668.

FOR FURTHER INFORMATION CONTACT: Kaja Brix, 907-586-7228.

SUPPLEMENTARY INFORMATION:

Background

    The domestic groundfish fisheries in the exclusive economic zone 
(EEZ) of the GOA and the BSAI are managed by the Secretary of Commerce 
in accordance with the Fishery Management Plan (FMP) for Groundfish of 
the GOA and the FMP for the Groundfish Fishery of the BSAI. The FMPs 
were prepared by the North Pacific Fishery Management Council (Council) 
under the Magnuson Fishery Conservation and Management Act (Magnuson 
Act). Regulations authorized under the FMP that pertain to the U.S. 
groundfish fisheries appear at 50 CFR parts 672 and 675.
    Existing regulations provide a framework process for the annual 
specification of GOA halibut PSC limits for trawl and fixed gear 
fisheries and for apportioning these limits by season. Although these 
regulations limit the bycatch of Pacific halibut in the GOA groundfish 
trawl fisheries, they have resulted in conflict among and preemption of 
groundfish trawling operations in the GOA as different trawl fishery 
components compete for shares of the available halibut PSC limit. This 
results in the attainment of the halibut bycatch cap before some 
groundfish Total Allowable Catch (TAC) limits have been taken, causing 
a closure of trawling operations in the GOA, even though the full 
groundfish harvest amount has not been taken in some fisheries.
    This rule implements the following three measures to address the 
preemption of one trawl fishery sector by another.
    1. Establish two GOA trawl fishery categories for the purpose of 
apportioning the GOA halibut bycatch limit already established for the 
trawl gear fisheries (Sec. 672.20 (f)). These two categories are the 
following: (1) The shallow-water fishery complex (pollock, Pacific cod, 
Atka mackerel, shallow-water flatfish, flathead sole, and ``other 
species''); and (2) the deep-water fishery complex (the deep-water 
flatfish, rex sole, arrowtooth flounder, sablefish, and rockfish).
    2. Revise the method for calculating retainable amounts of 
groundfish species under directed fishing standards (Sec. 672.20(h) and 
Sec. 675.20(i)). Revised methods prohibit using retained amounts of 
arrowtooth flounder, or groundfish species that are closed to directed 
fishing, as a basis for calculating retainable amounts of other, more 
valuable groundfish species that are closed to directed fishing.
    3. Adjust the opening date for the BSAI yellowfin sole and ``other 
flatfish'' fisheries from May 1 to January 1. As a result of this 
season adjustment, directed fishing standards governing retainable 
amounts of flatfish species at Sec. 675.20(h)(2) also are revised.
    This final rule also implements editorial changes to regulatory 
language pertaining to the annual specification and management of GOA 
halibut PSC limits. In addition, NMFS apportions the 1994 GOA halibut 
trawl PSC limit among fisheries and seasons as set out below:

  Apportionment of the 2,000 Metric Ton (MT) Halibut Bycatch Mortality  
  Limit Established for the 1994 GOA Trawl Fisheries Among the Shallow- 
           and Deep-water Trawl Fishery Complexes and Seasons           
 [Seasons open and close at 12 noon, Alaska local time (A.l.t.), except 
     that the last season ends at 12 midnight, A.l.t., December 31.]    
------------------------------------------------------------------------
                                          Shallow      Deep             
                Season                    complex    complex     Total  
------------------------------------------------------------------------
Jan. 20-Mar. 31........................        500        100        600
Mar. 31-Jun. 30........................        100        300        400
Jun. 30-Sep. 30........................        200        400        600
Sep. 30-Dec. 31........................      (\1\)      (\1\)        400
------------------------------------------------------------------------
\1\No apportionment.                                                    

    An emergency rule implementing these measures was published on 
February 10, 1994 (59 FR 6222), under section 305(c) of the Magnuson 
Act. At its April 1994 meeting the Council voted to extend the 
emergency rule for another 90 days (59 FR 24965, May 13, 1994). A 
proposed rule to implement these measures was published in the Federal 
Register on May 4, 1994 (59 FR 23044). A complete description of, and 
justification for, the management measures, including editorial changes 
to regulations addressing GOA halibut bycatch amounts, was discussed in 
the preamble to the proposed rule. Additional information also is 
available in the EA/RIR (see ADDRESSES).
    Public comment on the proposed rule was invited through May 31, 
1994. One letter of comments was received within the comment period and 
is summarized and responded to below in the Response to Comments 
section.

Response to Comments

    Comment 1: Splitting the halibut bycatch limit between the shallow-
water fishery complex and the deep-water fishery complex splits the 
limit between a well-observed fleet with 100-percent observer coverage 
(mainly in the deep-water fisheries) and a poorly observed fleet with 
30-percent observer coverage (mainly in the shallow-water fisheries). 
Because the 30-percent boats have greater latitude to take an observer, 
the bycatch data collected for the shallow-water fisheries would be 
biased and, therefore, less accurate than the data collected for the 
deep-water fisheries, thus jeopardizing the management of the halibut 
bycatch limits. This action would degrade the scientific basis for 
halibut bycatch management and is contrary to national standard 2.
    Response: Consistent with national standard 2, NMFS continues to 
monitor the groundfish fishery using the best information available. 
Opportunities do exist in the 30-percent observer coverage fleet for 
vessel operators to manipulate observer coverage to reduce or increase 
coverage in different fisheries. However, NMFS has taken measures to 
increase observer coverage in the groundfish fleet to improve the 
accuracy of catch monitoring. A recent amendment to the Observer Plan 
(59 FR 22133, April 29, 1994) changed observer coverage requirements 
for vessels required to obtain 30-percent observer coverage. The 
amendment to the Observer Plan limits the manipulation of observer 
coverage by requiring vessels to carry an observer during at least 30 
percent of their fishing days in each calendar quarter in which the 
vessels participate for more than 3 fishing days in a directed fishery 
for groundfish. These vessels are also required to have an observer on 
board the vessel during one trip in each fishery, as defined in the 
Observer Plan amendment, in which they participate. These measures 
should reduce the potential for manipulation of observer coverage and 
increase the amount of observer data available for the management of 
the specific fisheries.
    Comment 2: Processors are not required to report harvests such that 
NMFS can reasonably attribute shoreside catch to a given target with 
its appropriate bycatch. Currently, one target species is assigned per 
week, even though vessels delivering to a plant may have targeted 
several different species. This system cannot be used to monitor 
scientifically a separate shallow-water fisheries halibut bycatch limit 
and is inconsistent with national standard 2.
    Response: For purposes of attributing halibut bycatch, NMFS assigns 
a target fishery based on maximum retained amounts (except midwater 
pollock, for which pollock must comprise 95 percent or more of the 
total catch) and estimates halibut bycatch for each unique combination 
of processor, gear type, and reporting area, on a weekly basis. Halibut 
bycatch is attributed to one of the two fishery categories for which a 
trawl halibut bycatch allowance is made. Bycatch from the bottom 
pollock, Pacific cod, shallow-water flatfish, flathead sole, Atka 
mackerel, or ``other species'' fisheries is attributed to the shallow-
water species complex. Bycatch from the sablefish, rockfish, deep-water 
flatfish, and arrowtooth flounder fisheries is attributed to the deep-
water species complex. NMFS does not have the ability to assign target 
fisheries based on vessel hauls or individual vessel deliveries. Given 
this procedure, NMFS does monitor bycatch consistent with the intent of 
the regulations and based on the best available scientific information.
    Comment 3: The NMFS Alaska Fisheries Science Center should review 
this rule and concur that it will provide the best available scientific 
data to monitor the halibut bycatch limit.
    Response: Regulations that are drafted by the NMFS Alaska Regional 
Office are developed in consultation with the Alaska Fisheries Science 
Center.

Changes in the Final Rule From the Proposed Rule

    This final rule includes one editorial change in 
Sec. 672.20(f)(3)(i) to clarify an inconsistency with respect to 
paragraph (f)(1)(iv) of the same section. Section (f)(1)(iv) provides 
the authority to establish a separate halibut PSC allowance by 
regulatory area and district; however, Sec. 672.20(f)(3)(i) does not 
provide the authority for closures based on regulatory area or district 
once an allowance is reached. Language has been added to paragraph 
Sec. 672.20(f)(3)(i) to indicate that, upon attainment of a bycatch 
allowance for the entire Gulf of Alaska or the applicable regulatory 
area or district, a closure would be made.
    Upon reviewing the reasons for, and the comments on, this action, 
NMFS has determined that this rule is necessary for fishery 
conservation and management.

Classification

    The General Counsel of the Department of Commerce certified to the 
Small Business Administration that this rule, if adopted, would not 
have a significant economic impact on a substantial number of small 
entities. The reasons were published in the preamble to the proposed 
rule (59 FR 24965, May 5, 1994). As a result, a regulatory flexibility 
analysis was not prepared. NMFS prepared an analysis of the economic 
impact on small entities as part of the EA/RIR. A copy of the EA/RIR is 
available from NMFS (see ADDRESSES).
    This final rule has been determined to be not significant for 
purposes of E.O. 12866.
    NMFS has determined that delaying the effectiveness of this final 
rule for the entire 30 days under the Administrative Procedure Act, 5 
U.S.C. 552(d), is contrary to the public interest in orderly conduct of 
the fisheries in the EEZ. This rule supersedes the original emergency 
rule implementing these measures which expires August 9, 1994. The 
fishery has been operating under the emergency rule with a benefit to 
the fishery. To avoid an interruption in the fishery as it is currently 
being conducted under the emergency rule, NMFS is waiving a portion of 
the 30-day delayed effectiveness period for this rule to correspond 
with the expiration of the emergency rule.

List of Subjects in 50 CFR Parts 672 and 675

    Fisheries, Reporting and recordkeeping requirements.

    Dated: July 21, 1994.
Henry R. Beasley,
Acting Program Management Officer, National Marine Fisheries Service.
    For the reasons set out in the preamble, 50 CFR parts 672 and 675 
are amended as follows:

PART 672--GROUNDFISH FISHERY 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.

    2. In Sec. 672.20, paragraphs (f) and (h)(1) are revised to read as 
follows:


Sec. 672.20  General limitations.

* * * * *
    (f) Halibut PSC limits. (1) Notification of proposed halibut PSC 
limits. NMFS will publish annually in the Federal Register proposed and 
final halibut PSC limits and apportionments thereof authorized under 
this paragraph (f), in the notification required under paragraph (c) of 
this section. Public comment will be accepted by NMFS on the proposed 
halibut PSC limits, and apportionments thereof, for a period of 30 days 
after publication in the Federal Register. NMFS will consider comments 
received on proposed halibut limits and, after consultation with the 
Council, will publish notification in the Federal Register specifying 
the final halibut PSC limits and apportionments thereof.
    (i) Trawl gear fisheries. (A) After consultation with the Council, 
NMFS will publish notification in the Federal Register specifying the 
proposed halibut PSC limit for vessels using trawl gear. The halibut 
PSC limit specified for vessels using trawl gear may be further 
apportioned as bycatch allowances to the fishery categories listed in 
paragraph (f)(1)(i)(B) of this section, based on each category's 
proportional share of the anticipated halibut bycatch mortality during 
a fishing year and the need to optimize the amount of total groundfish 
harvest under the halibut PSC limit. The sum of all bycatch allowances 
will equal the halibut PSC limit established under this paragraph 
(f)(1)(i).
    (B) For purposes of apportioning the trawl halibut PSC limit among 
fisheries, the following fishery categories are specified and defined 
in terms of round-weight equivalents of those groundfish species for 
which a TAC has been specified under paragraphs (a) and (c) of this 
section:
    (1) Shallow-water species fishery. Fishing with trawl gear during 
any weekly reporting period that results in a retained aggregate catch 
of pollock, Pacific cod, shallow-water flatfish, flathead sole, Atka 
mackerel, and ``other species'' that is greater than the retained 
aggregate amount of other groundfish species or species group.
    (2) Deep-water species fishery. Fishing with trawl gear during any 
weekly reporting period that results in a retained catch of groundfish 
and is not a shallow-water species fishery as defined under paragraph 
(f)(1)(i)(B)(1) of this section.
    (ii) Hook-and-line and pot gear fisheries. After consultation with 
the Council, NMFS will publish notification in the Federal Register 
specifying the proposed halibut PSC limits for the hook-and-line gear 
fisheries. The notification also may specify a halibut PSC limit for 
the pot gear fisheries. The proposed halibut PSC limit for hook-and-
line gear fisheries may be further apportioned, as bycatch allowances, 
to the directed fishery for demersal shelf rockfish in the Southeast 
Outside District of the Eastern Regulatory Area and to all other hook-
and-line gear fisheries.
    (iii) Seasonal apportionments. (A) NMFS, after consultation with 
the Council, may apportion each halibut PSC limit or bycatch allowance 
specified under this paragraph (f) on a seasonal basis. NMFS will base 
any seasonal apportionment of a halibut PSC limit or bycatch allowance 
on the following types of information:
    (1) Seasonal distribution of halibut;
    (2) Seasonal distribution of target groundfish species relative to 
halibut distribution;
    (3) Expected halibut bycatch needs, on a seasonal basis, relative 
to changes in halibut biomass and expected catches of target groundfish 
species;
    (4) Expected variations in bycatch rates throughout the fishing 
year;
    (5) Expected changes in directed groundfish fishing seasons;
    (6) Expected start of fishing effort; and
    (7) Economic effects of establishing seasonal halibut allocations 
on segments of the target groundfish industry.
    (B) Unused seasonal apportionments of halibut PSC limits specified 
for trawl, hook-and-line, or pot gear will be added to the respective 
seasonal apportionment for the next season during a current fishing 
year.
    (C) If a seasonal apportionment of a halibut PSC limit specified 
for trawl, hook-and-line, or pot gear is exceeded, the amount by which 
the seasonal apportionment is exceeded will be deducted from the 
respective apportionment for the next season during a current fishing 
year.
    (iv) Apportionment among regulatory areas and districts. Each 
halibut PSC limit specified under this paragraph (f) also may be 
apportioned among the regulatory areas and districts of the Gulf of 
Alaska.
    (2) NMFS, by notification in the Federal Register, may change the 
halibut PSC limits during the year for which they were specified, based 
on new information of the types set forth in paragraph (f)(1) of this 
section.
    (3) Attainment of a halibut PSC limit or bycatch allowance.
    (i) Trawl gear fisheries. If, during the fishing year, the Regional 
Director determines that U.S. fishing vessels participating in either 
of the trawl fishery categories listed in paragraph (f)(1)(i)(B) of 
this section will catch the Pacific halibut bycatch allowance, or 
apportionments thereof, specified for that fishery category under 
paragraph (f)(1) of this section, NMFS will publish notification in the 
Federal Register closing the entire Gulf of Alaska or the applicable 
regulatory area or district to directed fishing with trawl gear for 
each species and/or species group that comprises that fishing category; 
provided, however, that when the halibut bycatch allowance, or seasonal 
apportionment thereof, specified for the shallow-water species fishery 
is reached, fishing for pollock by vessels using pelagic trawl gear may 
continue, consistent with other provisions of this part.
    (ii) Hook-and-line fisheries. (A) Groundfish other than demersal 
shelf rockfish in the Southeast Outside District. If, during the year, 
the Regional Director determines that the catch of halibut by operators 
of vessels using hook-and-line gear in groundfish fisheries other than 
the directed fishery for demersal shelf rockfish in the Southeast 
Outside District will reach the halibut bycatch allowance, or seasonal 
apportionment thereof, specified for hook-and-line gear under paragraph 
(f)(1) of this section, NMFS will publish notification in the Federal 
Register prohibiting directed fishing for groundfish, other than 
demersal shelf rockfish in the Southeast Outside District, by vessels 
using hook-and-line gear for the remainder of the season to which the 
halibut bycatch allowance or seasonal apportionment thereof applies.
    (B) Demersal shelf rockfish in the Southeast Outside District. If, 
during the year, the Regional Director determines that the catch of 
halibut by operators of vessels using hook-and-line gear in the 
directed fishery for demersal shelf rockfish in the Southeast Outside 
District will reach the halibut bycatch allowance, or seasonal 
apportionment thereof, specified for this fishery under paragraph 
(f)(1) of this section, NMFS will publish notification in the Federal 
Register prohibiting directed fishing for demersal shelf rockfish in 
the Southeast Outside District by vessels using hook-and-line gear for 
the remainder of the season to which the halibut bycatch allowance or 
seasonal apportionment thereof applies.
    (iii) Pot gear fisheries. If, during the fishing year, the Regional 
Director determines that the catch of halibut by operators of vessels 
using pot gear to participate in a directed fishery for groundfish will 
reach the halibut PSC limit, or seasonal apportionment thereof, 
provided for under paragraph (f)(1) of this section, NMFS will publish 
notification in the Federal Register prohibiting directed fishing for 
groundfish by vessels using pot gear for the remainder of the season to 
which the halibut PSC limit or seasonal apportionment applies.
    (4) When the vessels to which a halibut PSC limit applies have 
caught an amount of halibut equal to that PSC, the Regional Director 
may, by notification in the Federal Register, allow some or all of 
those vessels to continue to fish for groundfish using nonpelagic trawl 
gear under specified conditions, subject to the other provisions of 
this part. In authorizing and conditioning such continued fishing with 
bottom-trawl gear, the Regional Director will take into account the 
following considerations, and issue relevant findings:
    (i) The risk of biological harm to halibut stocks and of socio-
economic harm to authorized halibut users posed by continued bottom 
trawling by these vessels;
    (ii) The extent to which these vessels have avoided incidental 
halibut catches up to that point in the year;
    (iii) The confidence of the Regional Director in the accuracy of 
the estimates of incidental halibut catches by these vessels up to that 
point in the year;
    (iv) Whether observer coverage of these vessels is sufficient to 
assure adherence to the prescribed conditions and to alert the Regional 
Director to increases in their incidental halibut catches; and
    (v) The enforcement record of owners and operators of these 
vessels, and the confidence of the Regional Director that adherence to 
the prescribed conditions can be assured in light of available 
enforcement resources.
* * * * *
    (h) * * *
    (1) Calculations. (i) In making any determination concerning 
directed fishing under paragraph (g) of this section, the amount or 
percentage of any species, species group, or any fish or fish products 
will be calculated in round-weight equivalents.
    (ii) Arrowtooth flounder, or any groundfish species for which 
directed fishing is closed, may not be used to calculate retainable 
amounts of other groundfish species under paragraph (g) of this 
section.
* * * * *

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

    3. The authority citation for part 675 continues to read as 
follows:

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

    4. In Sec. 675.20, paragraphs (h)(2) and (i)(1) are revised to read 
as follows:


Sec. 675.20  General limitations.

* * * * *
    (h) * * *
    (2) Yellowfin sole, rock sole, arrowtooth flounder, or ``other 
flatfish.'' The operator of a vessel is engaged in directed fishing for 
yellowfin sole, rock sole, arrowtooth flounder, or ``other flatfish'' 
if he or she retains, at any time during a trip, an amount of one of 
these species equal to or greater than 35 percent of the amount of the 
other respective species retained at the same time on the vessel during 
the same trip, plus 20 percent of any groundfish species other than 
yellowfin sole, rock sole, or ``other flatfish'' retained at the same 
time on the vessel during the same trip.
* * * * *
    (i) * * *
    (1) Calculations. (i) In making any determination concerning 
directed fishing under paragraph (h) of this section, the amount or 
percentage of any species, species group, or any fish or fish products 
will be calculated in round-weight equivalents.
    (ii) Arrowtooth flounder, or any groundfish species for which 
directed fishing is closed, may not be used to calculate retainable 
amounts of other groundfish species under paragraph (h) of this 
section.
* * * * *
    5. In Sec. 675.23, paragraph (c) is revised to read as follows:


Sec. 675.23  Seasons.

* * * * *
    (c) Directed fishing for arrowtooth flounder and Greenland turbot 
is authorized from 12:00 noon Alaska local time, May 1, through 12:00 
midnight, Alaska local time, December 31, subject to the other 
provisions of this part.
* * * * *
[FR Doc. 94-18229 Filed 7-26-94; 8:45 am]
BILLING CODE 3510-22-W