A pair of halibut regulatory actions once intended to take effect in 2012 are winding their way through the council process with an uncertain future.
Reductions in halibut bycatch by trawlers and longliners were once envisioned to be put in place this year, as was the controversial catch sharing plan, or CSP, that would divide the annual halibut harvest as a percentage between commercial and charter fishermen.
Both actions hit snags with National Marine Fisheries Service, or NMFS, which is responsible for implementing the actions taken by the North Pacific Fishery Management Council.
The CSP proposed rule was published last July 22, and a fierce wave of opposition from charter operators over the next few months led NMFS to inform the council at its October 2011 meeting in Dutch Harbor that it could not move forward with publishing a final rule in time for the 2012 season.
The council passed the CSP by a 10-1 vote in October 2008, and will consider new information at its upcoming meeting beginning later this month in Anchorage with the goal to get the plan in place by 2013.
Also at the October 2011 meeting, NMFS told the council that cutting the allowable bycatch of halibut by trawlers and longliners through the annual quota-setting process was not feasible. The current proposed cuts ranging from 5 percent to 15 percent are scheduled for a vote at the June council meeting in Kodiak.
Trawlers are allocated 4.4 million pounds of halibut bycatch each year; non-halibut longliners are allocated 661,000 pounds.
Although they haven’t been adjusted for trawlers since 1986 and for longliners since 1995, these bycatch amounts can be changed each year under the current management plan.
However, NMFS told the council that complying with the Administrative Procedures Act would delay bycatch reductions and the final issuance of harvest levels based on the large amount of comment anticipated requiring responses from the agency. The council elected to instead amend the fishery management plan with the belief that the bycatch cuts could take effect at some point in 2013.
That hope was squashed at the council’s February meeting in Seattle, when NMFS told the members that even a final vote at that meeting would not allow for implementation until 2014 at the earliest.
NMFS cited the Jan. 19 order by U.S. Alaska District Judge Timothy Burgess that found the agency violated the National Environmental Policy Act when establishing wide-ranging fishing closures for Pacific cod and Atka mackerel in the western Aleutian Islands to protect food sources for endangered Steller sea lions.
The State of Alaska and a coalition of fishing groups sued to overturn the closures after NMFS published the interim final rule in December 2010.
While allowing the restrictions to stand, Burgess intends to require NMFS to prepare an environmental impact statement, or EIS, to support its action, a time-consuming process the agency unlawfully avoided as it rushed to put the closures in place to start the 2011 fishing seasons.
Burgess has since ordered the agency to complete the EIS by March 2, 2014, and will require quarterly progress updates to make sure NMFS stays on track with his order.
NMFS was also hit with two more lawsuits Jan. 23 and Jan. 24 challenging the revised Gulf rockfish catch share program passed by the council in June 2010 set to take effect this May
Loughbeg Fisheries Inc., of Kodiak, filed suit Jan. 23 in the U.S. Alaska District alleging the company will be short-changed on quota shares because agency failed to properly write the regulations regarding “entry level” catch from 2007 to 2009.
On Jan. 24, Trident Seafoods, Ocean Beauty, Westward Seafoods, North Pacific Seafoods and International Seafoods of Alaska sued NMFS in the U.S. Western District of Washington to overturn the new program set to take effect this May.
Depending on how the analysis shakes out in April, whether the CSP could be in place for 2013 will hinge on any modifications suggested by the council being logical outgrowths of the proposed rule.
Under the Administrative Procedures Act, or APA, changes to the final rule must be “logical outgrowths” of the proposed rule to satisfy requirements that the public was fully informed on issues when making comments to NMFS.
For instance, the council may be able to tweak the management matrix for bag or size limits at low levels of abundance, but it may not be able to add a measure such as an annual bag limit or reverse slot limit that were not included in the proposed rule.
Charter operators urged the council to drop the provisions for leasing pounds from commercial quota holders as unworkable, but the council motion passed Dec. 12, 2011, affirms that part of the rule. Eliminating the GAF provision would most likely not be a logical outgrowth of the proposed rule, and the council could not remove it without triggering APA requirements.
If the council is able to satisfactorily address the NMFS issues at the April meeting, the council input would be incorporated into the publication of the final rule to allow the CSP to take effect in 2013. If the council cannot provide the information NMFS needs to respond to public comment in the final rule, the CSP would likely not be in place in 2013.