Amendment 85

BSAI Pacific Cod Allocation History

In the early years of the fishery, Bering Sea/Aleutian Islands (BSAI) Pacific cod was an open access fishery prosecuted primarily by trawl gear and was not allocated among competing fishermen.  As the market value of Pacific cod increased with the removal of foreign and joint venture fisheries in 1990, the domestic fixed gear sector (including pot and hook-and-line gear) began to increase its harvest of the total allowable catch (TAC) so any consideration of rationalizing the Pacific cod fishery during the 1990s through individual fishing quotas (IFQs) or other market-based allocation schemes was strongly opposed by the fixed gear sector. At this stage of the industry’s development, sector allocations, or the division of the TAC among competing harvesting sectors, emerged as a policy more acceptable to the Pacific cod fleet than IFQs or similar rationalization policies because each sector is allocated its own portion of the TAC that is protected from incursions by other sectors.

Federal regulations required a sector to stop conducting directed fishing for Pacific cod when its allocation is exhausted, even if TAC allocated to other sectors remains unharvested. Although sector allocations did not prevent a race-for-fish by competing fishermen within a sector, they did bring some short-term stability and certainty to fishermen within the sectors as compared to having no sector allocations. This was the policy rationale for the Council’s first recommendation for sector allocations of Pacific cod TAC in Amendment 24.

In 1994, the National Marine Fishery Service (NMFS) began to allocate the Pacific cod TAC with the implementation of BSAI Amendment 24. The allocations roughly represented the harvests of the trawl and fixed gear sectors during 1991 through 1993. Although the 2.0 percent jig sector allocation exceeded the historical harvest by this sector, it was intended to allow for growth in that sector. Competition within the trawl and fixed gear sectors eventually led to the Council recommending in subsequent amendments, further subdivisions of the allocations.

Amendment 46, implemented in 1997, further split the trawl allocation equally between catcher vessels (CVs) and catcher processors (CPs). The action also included specific authority for NMFS to annually reallocate among the various sectors, if necessary, any portion of the Pacific cod allocations that were projected to remain unused. After Amendment 46 was implemented, members of the fishing industry asked the Council to further allocate Pacific cod in the BSAI among the various fixed gear sectors. The Council developed Amendment 64 which further apportioned the 51 percent allocated to the fixed gear sector into four new sectors.

NMFS approved Amendment 64 and it was implemented September 1, 2000. Because Amendment 64 was scheduled to expire at the end of 2003, Amendment 77 was initiated to continue or modify the fixed gear sectors’ allocations beyond 2003.  Amendment 77 continued the same overall fixed gear sector allocations as under Amendment 64, except for a new apportionment between the pot gear CV and CP sectors. The harvest on which the percentage allocations were based under Amendments 64 and 77 in the fixed gear sectors excluded the harvest of Pacific cod that was reallocated from other gear sectors.

While the Council was considering adjustments to the Pacific cod allocations to the non-Community Development Quota (non-CDQ) sectors under Amendment 64, the Council adopted and NMFS approved Amendment 39 in 1998. Under this amendment, a percentage of various groundfish species including Pacific cod was allocated to the CDQ Program.  Thus, from 1998 onward, 7.5 percent of the BSAI Pacific cod TAC was deducted for the CDQ reserve and the remainder of the TAC after the deduction for the CDQ reserve became the non-CDQ TAC. When the multispecies CDQ Program was implemented in 1998, the non-CDQ Pacific cod TAC was allocated in accordance with the percentages established by Amendment 46, and further modified by Amendments 64 and 77.

History of Pacific Cod Reallocations

Under previous the allocations, one or more sectors were typically unable to harvest their annual allocation of the Pacific cod TAC.  Section 301(a)(1) of the Magnuson-Stevens Act (MSA), also known as National Standard 1 (NS1), states, ‘‘Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry.’’ Thus, to provide an opportunity for the full harvest of the BSAI Pacific cod non-CDQ TAC, existing allocations of Pacific cod that were projected to be unharvested by some sectors were annually reallocated by NMFS to other sectors. Since BSAI Pacific cod sector allocations were in effect, NMFS reallocated Pacific cod each year from the trawl and jig sectors to fixed gear sectors. In 2002 and in 2004, reallocations also were made from the pot gear sectors to the hook-and-line CP sector. Reallocations within gear types (e.g., trawl CPs to trawl CVs, or hook-and-line CVs to hook-and-line CPs) occurred less frequently and in lower amounts. Unused seasonal allowances specified for the jig sector were reallocated during each of its three seasons. All other gear sector reallocations usually occurred in the fall because unused seasonal allowances that remained unharvested earlier in the year were rolled over to each sector’s subsequent season. Typically, reallocations from trawl to fixed gear sectors occurred in October and November, and always during the trawl C season (June 10 to November 1).

NMFS reallocated unused Pacific cod allocations for a variety of reasons. Reallocations from the jig sector were primarily due to insufficient effort in that sector in the BSAI. Trawl reallocations primarily occurred because of closure of the directed trawl fisheries due to reaching the halibut PSC allowance, or relatively high annual allocations in alternative trawl fisheries such as pollock for the American Fisheries Act (AFA) vessels, and high value alternative trawl fisheries such as yellowfin sole, rock sole, and flathead sole for non-AFA trawl CPs.  Additionally, under Stellar sea lion (SSL) mitigation measures which started in 2001, the creation of a 20 percent seasonal apportionment in the C season for trawl gear led to trawl reallocations. Furthermore, the trawl sectors’ inability to harvest their total allocations resulted from the increased difficulty in catching Pacific cod with trawl gear later in the year because the fish were less aggregated resulting in a lower catch per unit effort (CPUE).  Prior to the SSL mitigation measures, however, the trawl gear sectors were allowed to harvest their total Pacific cod allocation earlier in the year. The increased difficulty in harvesting Pacific cod in the second half of the year was not unique to the trawl sector.  All gear sectors had increased difficulty harvesting Pacific cod later in the year when those fish were less aggregated.

In developing Amendment 85, the Council determined that the allocations at the time, did not correspond with actual dependence and use by the existing sectors, as demonstrated by the need for annual reallocations.  Reallocations maintained a level of uncertainty for some sectors regarding the amount of Pacific cod available for harvest. The Council expected that uncertainty to decrease due to the revisions to the Pacific cod non-CDQ allocations under Amendment 85.

 Amendment 85 History

The development of Amendment 85 began in October 2002 when the Council initiated discussions regarding the allocation of certain BSAI groundfish species to the non-AFA trawl CP sector. In February 2003, the Council considered a vastly expanded program for this sector under Amendment 80, to establish a multispecies cooperative intended to facilitate greater retention improvements, allocate prohibited species catch (PSC), and address a number of sector allocation issues that would arise from a stand-alone allocation and cooperative for the non-AFA trawl CP sector. In April 2003, the Council further expanded Amendment 80 to include allocations of non-pollock species and PSC to ten sectors operating in the BSAI as a means to minimize potential impacts on sectors that might arise from any direct allocations and cooperatives provided to the non-AFA trawl CP sector alone. Growing demand for Pacific cod, a fully exploited fishery, and other distributional concerns among sectors led the Council to consider a separate action to revise allocations of Pacific cod among the many BSAI groundfish sectors. After further consideration, public testimony, and preliminary analyses, the Council simplified Amendment 80 in October 2004 to provide allocations only to the non-AFA trawl CP sector and removed the allocation of Pacific cod from that proposed program. The intent of the Council was to streamline Amendment 80 and shift it back to its original intent, to provide the non-AFA trawl CP sector with a tool to reduce groundfish and PSC discards and improve retention. The Council then initiated a new plan amendment, which became Amendment 85, to alter the current BSAI Pacific cod allocations.

Amendment 85 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 (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 MSA, as amended by the Coast Guard Act, at the time Amendment 85 was submitted by the Council for Secretarial review. During the Amendment 85 review by the Secretary of Commerce (Secretary), the CDQ provisions in the MSA were amended once again by the Magnuson-Stevens Reauthorization Act (MSRA), enacted on January 11, 2007, which now requires that allocations to the CDQ Program, including Pacific cod, increase to ‘‘a total allocation (directed and non-target combined) of 10.7 percent effective and that the total allocation may not be exceeded. As a result, the portions of Amendment 85 to the Fishery Management Plan (FMP) that addressed the CDQ Program provisions were no longer consistent with the MSA so on March 7, 2007, the Secretary partially approved Amendment 85, disapproving the CDQ Program provisions as inconsistent with the MSA. The Council thus revised the CDQ portions of the proposed rule for Amendment 85 to incorporate the changes brought about by the MSRA.  The Council submitted the revised proposed rule to NMFS, and it was published in the Federal Register on February 7, 2007.

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.

  • 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 non-specified reserve;
  • Establish a hierarchy for the reallocation of projected unused sector allocations to other sectors;
  • 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.

Amendment 85 Proposed Rule
Amendment 85 Final Rule