Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea and Aleutian Islands Area; Interim 2004 Harvest Specifications for Groundfish

AGENCY:

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

ACTION:

Interim final rule.

SUMMARY:

NMFS issues interim 2004 total allowable catch (TAC) amounts for each category of groundfish, Community Development Quota (CDQ) reserve amounts, American Fisheries Act (AFA) pollock allocations and sideboard amounts, and prohibited species catch (PSC) allowances and prohibited species quota (PSQ) reserves for the groundfish fisheries of the Bering Sea and Aleutian Islands management area (BSAI). The intended effect is to conserve and manage the groundfish resources in the BSAI.

EFFECTIVE DATE:

The interim harvest specifications are effective from 0001 hours, Alaska local time (A.l.t.), January 1, 2004, until the effective date of the final 2004 harvest specifications for BSAI groundfish, which will be published in the Federal Register.

ADDRESSES:

Copies of the Environmental Assessment (EA) prepared for this action, the final 2002 Stock Assessment and Fishery Evaluation (SAFE) report, dated November 2002, and the final 2003 SAFE report, dated November 2003, are available from the North Pacific Fishery Management Council, West 4th Avenue, Suite 306, Anchorage, AK 99510-2252 (907-271-2809) or from its home page at http://www.fakr.noaa.gov/npfmc.

FOR FURTHER INFORMATION CONTACT:

Mary Furuness, 907-586-7228, or mary.furuness@noaa.gov.

SUPPLEMENTARY INFORMATION:

Background

Federal regulations at 50 CFR part 679 implementing the Fishery Management Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area (FMP) govern the groundfish fisheries in the BSAI. The North Pacific Fishery Management Council (Council) prepared the FMP, and NMFS approved it under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). General regulations that also pertain to the U.S. fisheries appear at subpart H of 50 CFR part 600.

The Council met in October 2003 to review scientific information concerning groundfish stocks including the 2002 SAFE report and the EA (see ADDRESSES) and recommended proposed 2004 specifications. The Council recommended a proposed total acceptable biological catch (ABC) of 3,127,003 metric tons (mt) and a proposed total TAC of 1,998,443 mt for the 2004 fishing year. The proposed TAC amounts for each species were based on the best available biological and socioeconomic information.

Under § 679.20(c)(1), NMFS published in the Federal Register proposed harvest specifications for groundfish in the BSAI for the 2004 fishing year (68 FR 67642, December 3, 2003). That document contains a detailed discussion of the proposed 2004 TACs, initial TACs (ITACs) and related apportionments, CDQ reserves, ABC amounts, overfishing levels, PSC allowances, PSQ reserve amounts, and associated management measures of the BSAI groundfish fishery.

This action provides interim harvest specifications and apportionments thereof for the 2004 fishing year that will become available on January 1, 2004, and remain in effect until superseded by the final 2004 harvest specifications. Background information concerning the 2004 groundfish harvest specification process on which this interim action is based is provided in the above mentioned proposed specification document.

Establishment of Interim TACs

Regulations at § 679.20(b)(1)(i) require that 15 percent of the TAC for each target species or species group, except for pollock and the hook-and-line and pot gear allocation of sablefish, be placed in a non-specified reserve. The AFA supersedes this provision for pollock by requiring that the TAC for this species be fully allocated among the CDQ program, incidental catch allowance (ICA), and inshore, catcher/processor, and mothership directed fishery allowances.

Regulations at § 679.20(b)(1)(iii) require that one half of each TAC amount placed in the non-specified reserve, with the exception of squid, be allocated to the groundfish CDQ reserve and that 20 percent of the hook-and-line and pot gear allocation of sablefish be allocated to the fixed gear sablefish CDQ reserve. Regulations at § 679.20(a)(5)(i)(A) require that 10 percent of the pollock TAC be allocated to the pollock CDQ reserve. With the exception of the hook-and-line and pot gear sablefish CDQ reserve, the CDQ reserves are not further apportioned by gear. Regulations at § 679.21(e)(1)(i) also require that 7.5 percent of each PSC limit, with the exception of herring, be withheld as a PSQ reserve for the CDQ fisheries. Regulations governing the management of the CDQ and PSQ reserves are set forth at §§ 679.30 and 679.31.

Regulations at § 679.20(c)(2) require interim specifications to be effective at 0001 hours, A.l.t., January 1, and remain in effect until superseded by the final groundfish harvest specifications. Regulations at § 679.20(c)(2)(ii) provide that the interim specifications will be established as one-fourth of each proposed ITAC amount and apportionment thereof (not including pollock, Pacific cod, Atka mackerel, and the hook-and-line and pot gear allocation of sablefish), one-fourth of each proposed PSQ reserve and PSC allowance established at § 679.21, and the proposed first seasonal allowance of pollock, Pacific cod and Atka mackerel TAC. As stated in the proposed specifications (68 FR 67642, December 3, 2003), no harvest of groundfish is authorized before the effective date of this action implementing the interim specifications.

Interim 2004 BSAI Groundfish Harvest Specifications

Table 1 provides interim TAC and CDQ amounts and apportionments thereof. Amendment 77 to the FMP, approved by the Secretary of Commerce on October 20, 2003, provides for apportioning the BSAI Pacific cod TAC among hook-and-line and pot gear sectors. A final rule implementing Amendment 77 was published on December 1, 2003 (68 FR 67086), and will be effective by January 1, 2004. Amendment 77 will allocate the 18.3 percent pot gear allocation as: 15 percent to pot catcher vessels and 3.3 percent to pot catcher processors. Regulations at § 679.20(c)(2)(ii) do not provide for an interim specification for the hook-and-line and pot gear allocations of sablefish for the CDQ reserve or for sablefish managed under the Individual Fishing Quota (IFQ) program. As a result, directed fishing for the hook-and-line and pot gear allocations of CDQ sablefish and IFQ sablefish is prohibited until the effective date of the final 2004 groundfish specifications.

Interim Allocation of PSC Limits for Crab, Halibut, and Herring

Under § 679.21(e), annual PSC limits are specified for red king crab, Chionoecetes bairdi Tanner crab, and C. opilio crab in applicable Bycatch Limitation Zones (see § 679.2) of the Bering Sea subarea, and for Pacific halibut and Pacific herring throughout the BSAI. Regulations at § 679.21(e) authorize the apportionment of each PSC limit into PSC allowances for specified fishery categories. Under § 679.21(e)(1)(i), 7.5 percent of each PSC limit specified for halibut, crab, and salmon is reserved as a PSQ reserve for use by the groundfish CDQ program.

Regulations at § 679.20(c)(2)(ii) provide that one-fourth of each proposed PSQ reserve and PSC allowance be made available on an interim basis for harvest at the beginning of the fishing year, until superseded by the final harvest specifications. The PSQ reserves and fishery specific interim PSC allowances for halibut and crab are specified in Table 2 and are in effect at 0001 hours, A.l.t., January 1, 2004.

Directed Fishing Closures

In accordance with § 679.20(d)(1)(i), if the Administrator, NMFS, Alaska Region (Regional Administrator) determines that any allocation or apportionment of a target species or “other species” category has been or will be reached, the Regional Administrator may establish a directed fishing allowance for that species or species group. If the Regional Administrator establishes a directed fishing allowance, and that allowance is or will be reached before the end of the fishing year, NMFS will prohibit directed fishing for that species or species group in the specified subarea or district (§ 697.20(d)(1)(iii)). Similarly, under regulations at § 679.21(e), if the Regional Administrator determines that a fishery category's bycatch allowance of halibut, red king crab, C. bairdi crab or C. opilio crab for a specified area has been reached, the Regional Administrator will prohibit directed fishing for each species in that category in the specified area.

The Regional Administrator has determined that the remaining allocation amounts in Table 3 will be necessary as incidental catch to support other anticipated groundfish fisheries for the 2004 fishing year.

Consequently, in accordance with § 679.20(d)(1)(i), the Regional Administrator establishes the directed fishing allowances for the above species or species groups as zero.

Therefore, in accordance with § 679.20(d)(1)(iii), NMFS is immediately prohibiting directed fishing for these species in the specified areas. These closures will remain in effect from 0001 hrs, A.l.t., January 1, 2004, until superseded by the final 2004 harvest specifications for BSAI groundfish.

In addition, the BSAI Zone 1 annual red king crab allowance specified for the trawl rockfish fishery (§ 679.21(e)(3)(iv)(D)) is 0 mt and the BSAI first seasonal halibut bycatch allowance specified for the trawl rockfish fishery is 0 mt. The BSAI annual halibut bycatch allowance specified for the trawl Greenland turbot/arrowtooth flounder/sablefish fishery categories is 0 mt (§ 679.21(e)(3)(iv)(c)). Therefore, in accordance with § 679.21(e)(7)(ii) and (v), NMFS is prohibiting directed fishing for rockfish by vessels using trawl gear in Zone 1 of the BSAI and directed fishing for Greenland turbot/arrowtooth flounder/sablefish by vessels using trawl gear in the BSAI from 0001 hrs., A.l.t., January 1, 2004, until superseded by the final 2004 harvest specifications for BSAI groundfish. NMFS is also prohibiting directed fishing for rockfish outside Zone 1 in the BSAI until 1200 hrs, A.l.t, July 4, 2004.

While these closures are in effect, the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a fishing trip. These closures to directed fishing are in addition to closures and prohibitions found in regulations at 50 CFR part 679. Areas are defined in § 679.2. In the BSAI, “Other rockfish” includes Sebastes and Sebastolobus species except for Pacific ocean perch, shortraker, rougheye, and northern rockfish.

Bering Sea Subarea Inshore Pollock Allocations

Regulations at § 679.4 set forth procedures for AFA inshore catcher vessel pollock cooperatives to apply for and receive cooperative fishing permits and inshore pollock allocations. Table 4 lists the interim pollock allocations to the seven inshore catcher vessel pollock cooperatives for 2004. Allocations for cooperatives and vessels not participating in cooperatives are not made for the AI subarea because the Aleutian Islands (AI) subarea has been closed to directed fishing for pollock.

According to regulations at § 679.20(a)(5)(i)(a)(3), NMFS must subdivide the inshore allocation into allocations for cooperatives and vessels not fishing in a cooperative. In addition, according to regulations at § 679.22(a)(7)(vii), NMFS must establish harvest limits inside the Steller Sea Lion Conservation Area (SCA) and provides a set-aside so that catcher vessels less than or equal to 99 ft (30.2 m) LOA have the opportunity to operate entirely within the SCA during the A season. Accordingly, table 5 lists the interim apportionment of the Bering Sea subarea inshore pollock allocation into allocations for vessels fishing for an inshore cooperative and for vessels fishing for the inshore open access sector and establishes a cooperative sector SCA set-aside for AFA catcher vessels less than or equal to 99 ft (30.2 m) LOA. The SCA set-aside for catcher vessels less than or equal to 99 ft (30.2 m) LOA that are not participating in a cooperative will be established inseason based on actual participation levels and is not included in table 5.

Listed AFA Catcher/Processor Sideboards

In 2003, the formula for setting AFA catcher/processor sideboard limits for non-pollock groundfish changed from calculations made for sideboard limits in 2000 through 2002. The basis for these sideboard limits is described in detail in the final rule implementing major provisions of the AFA (67 FR 79692, December 30, 2002). The interim 2004 catcher/processor sideboard limits are set out in Table 6.

All non-pollock groundfish that is harvested by listed AFA catcher/processors, whether as targeted catch or incidental catch, will be deducted from the interim sideboard limits in Table 6. However, non-pollock groundfish that is delivered to listed catcher/processors by catcher vessels will not be deducted from the interim 2004 sideboard limits for the listed catcher/processors.

Regulations at § 679.64(a)(5) establish a formula for PSC sideboard limits for listed AFA catcher/processors. These amounts are equivalent to the percentage of PSC amounts taken in the non-pollock groundfish fisheries by the AFA catcher/processors listed in subsection 208(e) and section 209 of the AFA from 1995 through 1997. PSC amounts taken by listed catcher/processors in BSAI non-pollock groundfish fisheries from 1995 through 1997 are shown in Table 7. These data were used to calculate the PSC catch ratios for pollock catcher/processors shown in Table 7. The 2004 interim PSC limits available to trawl catcher/processors are multiplied by the ratios to determine the PSC sideboard limits for listed AFA catcher/processors in the 2004 interim non-pollock groundfish fisheries.

PSC that is caught by listed AFA catcher/processors participating in any non-pollock groundfish fishery listed in Table 7 will accrue against the interim 2004 PSC sideboard limits for the listed AFA catcher/processors. Regulations at § 679.21(e)(3)(v), authorize NMFS to close directed fishing for non-pollock groundfish for listed AFA catcher/processors once an interim 2004 PSC sideboard limit listed in Table 7 is reached.

Crab or halibut PSC that is caught by listed AFA catcher/processors while fishing for pollock will accrue against the bycatch allowances annually specified for either the midwater pollock or the pollock/Atka mackerel/other species fishery categories under regulations at § 679.21(e)(3)(iv).

AFA Catcher Vessel Sideboards Limits

Regulations at § 679.64(b) establish a formula for setting AFA catcher vessel groundfish and PSC sideboard limits for the BSAI. The basis for these sideboard limits is described in detail in the final rule implementing major provisions of the AFA (67 FR 79692, December 30, 2002). The interim 2004 AFA catcher vessel sideboard limits are shown in Tables 8 and 9.

All harvests of groundfish sideboard species made by non-exempt AFA catcher vessels, whether as targeted catch or incidental catch, will be deducted from the interim sideboard limits listed in Table 8.

The AFA catcher vessel PSC limit for halibut and each crab species in the BSAI for which a trawl bycatch limit has been established will be a portion of the PSC limit equal to the ratio of aggregate retained groundfish catch by AFA catcher vessels in each PSC target category from 1995 through 1997, relative to the retained catch of all vessels in that fishery from 1995 through 1997. For the BSAI, the interim PSC sideboard limits for AFA catcher vessels are listed in Table 9.

Halibut and crab PSC that is caught by AFA catcher vessels participating in any non-pollock groundfish fishery listed in Table 9 will accrue against the interim 2004 PSC sideboard limits for AFA catcher vessels. Regulations at § 679.21(d)(8) and (e)(3)(v) provide authority to close directed fishing for non-pollock groundfish for AFA catcher vessels once an interim 2004 PSC sideboard limit for the BSAI listed in Table 9 is reached. PSC that is caught by AFA catcher vessels while fishing for pollock in the BSAI will accrue against either the midwater pollock or the pollock/Atka mackerel/“other species” fishery categories under regulations at § 679.21(e).

AFA Catcher/Processor and Catcher Vessel Sideboard Directed Fishing Closures

The Regional Administrator has determined that many of the interim AFA catcher/processor and catcher vessel sideboard limits listed in Table 10 and 11 are necessary as incidental catch to support other anticipated groundfish fisheries for the 2004 fishing year. In accordance with § 679.20(d)(1)(iv), the Regional Administrator establishes the limits listed in Table 10 and 11 as directed fishing allowances. The Regional Administrator finds that many of these directed fishing allowances will be reached before the end of the year. Therefore, in accordance with § 679.20(d)(1)(iii), NMFS is prohibiting directed fishing by AFA catcher/processors for the species in the specified areas set out in Table 10 and directed fishing by non-exempt AFA catcher vessels for the species in the specified areas set out in Table 11.

Classification

This action is authorized under 50 CFR 679.20 and is exempt from review under Executive Order 12866.

Because this action is a final action by NMFS, analyses required under the Magnuson-Stevens Act must be completed and considered by the agency before promulgation of the interim harvest specifications.

Regulations at 50 CFR 679.20(c)(2) require NMFS to specify harvest specifications to be effective January 1 and to remain in effect until superceded by the final specifications. Without interim specifications in effect on January 1, the groundfish fisheries would not be able to open, resulting in disruption within the fishing industry. NMFS cannot publish interim specifications until proposed specifications are completed, because the interim specifications are derived from the proposed specifications, as required by regulations at 50 CFR 679.20(c)(2).

The proposed specifications are based on the preliminary recommendations of the Plan Team, which were reviewed by the Scientific and Statistical Committee, Advisory Panel, and Council in October, 2003 in projecting 2003 biomass amounts, as identified in the 2002 SAFE Report, for the proposed 2004 ABC, overfishing levels, and TAC amounts. The Plan Team recommendations incorporate the most current data available from a number of sources, including current-year industry catch levels, and current-year trawl and hydro-acoustic surveys. These data are not available in time for Council review prior to the October Council meeting, as the surveys are conducted during the summer months, and industry catch levels reflect current year activity. These updated data sources represent the best available scientific information. These data provide the basis for the proposed and interim specifications.

The proposed specifications, as required by regulations at 50 CFR 679.20(c)(1)(i)(A), must be published as soon as practicable after consultation with the Council, which occurs at the Council's October meeting. This requirement, along with the requirement of national standard 2 of the Magnuson-Stevens Act to use the best scientific information available, prevents NMFS from publishing the proposed specifications early enough to provide sufficient time to have a public comment period for the interim specifications, which are derived from the proposed specifications, and to have the interim specifications effective on January 1.

As stated above, disruption of the fishing industry, and consequent impacts to fishing communities and the public, would occur if the interim specifications were not effective January 1. Additionally, the public is provided an opportunity to comment on the proposed specifications, from which the interim specifications are derived. For these reasons, good cause exists under 5 U.S.C. 553(b)(B) to waive prior notice and opportunity for public comment on this action as such procedures would be impracticable and contrary to the public interest.

Likewise, the AA finds good cause to waive the 30-day delay in effectiveness date of the interim specifications. Regulations at 50 CFR 679.20(c)(2) requires NMFS to establish interim harvest specifications to be effective on January 1 and to remain in effect until superseded by the publication of final harvest specifications by the Office of the Federal Register. NMFS interprets regulations at § 679.20(c)(2) as requiring the filing of interim specifications with the Office of the Federal Register before any harvest of groundfish is authorized. The interim specifications are based on the proposed 2004 specifications.

The interim specifications rely on data used to propose the 2004 specifications, and those data are not available until the after summer surveys are conducted (see above). Without interim specifications in effect on January 1, the groundfish fisheries would not be able to open on that date, resulting in disruption of the fishing industry. These reasons constitute good cause pursuant to 5 U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness date.

Because these interim specifications are not required to be issued with prior notice and opportunity for public comment pursuant to 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act do not apply. Consequently, no regulatory flexibility analysis has been prepared for this action.

Authority:16 U.S.C. 773 et seq., 1801 et seq., and 3631 et seq.