Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea and Aleutian Islands; Final 2009 and 2010 Harvest Specifications for Groundfish

AGENCY:

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

ACTION:

Final rule; closures.

SUMMARY:

NMFS announces final 2009 and 2010 harvest specifications and prohibited species catch allowances for the groundfish fishery of the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary to establish harvest limits for groundfish during the 2009 and 2010 fishing years and to accomplish the goals and objectives of the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP). The intended effect of this action is to conserve and manage the groundfish resources in the BSAI in accordance with the Magnuson-Stevens Fishery Conservation and Management Act.

DATES:

Effective from 1200 hrs, Alaska local time (A.l.t.), February 17, 2009, through 2400 hrs, A.l.t., December 31, 2010.

ADDRESSES:

Copies of the Final Alaska Groundfish Harvest Specifications Environmental Impact Statement (EIS), Record of Decision (ROD), Supplementary Information Report (SIR) to the EIS, and Final Regulatory Flexibility Analysis (FRFA) prepared for this action are available on the Alaska Region Web site at http://www.alaskafisheries.noaa.gov. Printed copies can be obtained from the Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802, Attn: Ellen Sebastian. Copies of the 2008 Stock Assessment and Fishery Evaluation (SAFE) report for the groundfish resources of the Bering Sea and Aleutian Islands management area (BSAI) dated November 2008, are available from the North Pacific Fishery Management Council, West 4th Avenue, Suite 306, Anchorage, AK 99510-2252, phone 907-271-2809, or from its Web site at http://www.alaskafisheries.noaa.gov/npfmc.

FOR FURTHER INFORMATION CONTACT:

Steve Whitney, 907-586-7269, or e-mail steven.whitney@noaa.gov.

SUPPLEMENTARY INFORMATION:

Federal regulations at 50 CFR part 679 implement the FMP and 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 governing U.S. fisheries also appear at 50 CFR part 600.

The FMP and its implementing regulations require NMFS, after consultation with the Council, to specify the total allowable catch (TAC) for each target species and for the “other species” category, and the sum must be within the optimum yield (OY) range of 1.4 million to 2.0 million metric tons (mt) (see § 679.20(a)(1)(i)). NMFS also must specify apportionments of TACs, prohibited species catch (PSC) allowances, and prohibited species quota (PSQ) reserves established by § 679.21, seasonal allowances of pollock, Pacific cod, and Atka mackerel TAC, Amendment 80 allocations, and Community Development Quota (CDQ) reserve amounts established by § 679.20(b)(1)(ii). The final harvest specifications set forth in Tables 1 through 16 of this action satisfy these requirements. The sum of TACs for 2009 is 1,681,586 mt and for 2010 is 2,000,000 mt.

Section 679.20(c)(3) further requires NMFS to consider public comment on the proposed annual TACs and apportionments thereof and the proposed PSC allowances, and to publish final harvest specifications in the Federal Register. The proposed 2009 and 2010 harvest specifications and PSC allowances for the groundfish fishery of the BSAI were published in the Federal Register on December 10, 2008 (73 FR 75059). Comments were invited and accepted through January 9, 2009. NMFS received three letters with 30 comments on the proposed harvest specifications. These comments are summarized and responded to in the Response to Comments section of this rule. NMFS consulted with the Council on the final 2009 and 2010 harvest specifications during the December 2008 Council meeting in Anchorage, AK. After considering public comments, as well as biological and economic data that were available at the Council's December meeting, NMFS is implementing the final 2009 and 2010 harvest specifications as recommended by the Council.

Acceptable Biological Catch (ABC) and TAC Harvest Specifications

The final ABC levels are based on the best available biological and socioeconomic information, including projected biomass trends, information on assumed distribution of stock biomass, and revised technical methods used to calculate stock biomass. In general, the development of ABCs and overfishing levels (OFLs) involves sophisticated statistical analyses of fish populations. The FMP specifies a series of six tiers based on the level of reliable information available to fishery scientists. Tier one represents the highest level of information quality available while tier six represents the lowest level of information quality available.

In December 2008, the Scientific and Statistical Committee (SSC), Advisory Panel (AP), and Council reviewed current biological information about the condition of the BSAI groundfish stocks. The Council's Plan Team compiled and presented this information in the 2008 SAFE report for the BSAI groundfish fisheries, dated November 2008. The SAFE report contains a review of the latest scientific analyses and estimates of each species' biomass and other biological parameters, as well as summaries of the available information on the BSAI ecosystem and the economic condition of groundfish fisheries off Alaska. The SAFE report is available for public review (see ADDRESSES). From these data and analyses, the Plan Team estimates an OFL and ABC for each species or species category.

In December 2008, the SSC, AP, and Council reviewed the Plan Team's recommendations. Except for BSAI Pacific cod and Aleutian Islands pollock, the SSC, AP, and Council endorsed the Plan Team's ABC recommendations. For 2009 and 2010, the SSC recommended higher Pacific cod OFLs and ABCs than the OFLs and ABCs recommended by the Plan Team. The Plan Team chose values between the two best performing models. However, the SSC chose the best performing model, and did not see a need to adjust that model's estimates downward. For Aleutian Island pollock, the Plan Team adopted recommendations from the Center of Independent Experts to include survey data east of Adak. The SSC concluded that this data should be included. This was due to uncertainties in the spatial stock structure in the region, the variation of length compositions across the area, the concentration of survey data along the eastern edge of the region in the early survey years, and additional evidence that these pollock may be from the Bogoslof or EBS stocks, rather than the Aleutian Island stock. The elimination of this survey data resulted in higher OFL and ABC values. The Council adopted the ABCs recommended by the SSC.

The Plan Team, SSC, AP, and Council recommended that total removals of Pacific cod from the BSAI not exceed ABC recommendations. In 2007, the Board of Fisheries for the State of Alaska (State) established a guideline harvest level (GHL) west of 170 degrees west longitude in the AI subarea equal to 3 percent of the Pacific cod ABC in the BSAI. Accordingly, the Council recommended that the 2009 and 2010 Pacific cod TACs be adjusted downward from the ABCs by amounts equal to the 2009 and 2010 GHLs.

The final TAC recommendations were based on the ABCs as adjusted for other biological and socioeconomic considerations, including maintaining the sum of the TACs within the required OY range of 1.4 million to 2.0 million mt. The Council adopted the AP's 2009 and 2010 TAC recommendations. None of the Council's recommended TACs for 2009 or 2010 exceeds the final 2009 or 2010 ABCs for any species category. The 2009 and 2010 harvest specifications approved by the Secretary of Commerce (Secretary) are unchanged from those recommended by the Council and are consistent with the preferred harvest strategy alternative in the EIS. NMFS finds that the Council's recommended OFLs, ABCs, and TACs are consistent with the biological condition of groundfish stocks as described in the 2008 SAFE report that was approved by the Council.

Other Actions Potentially Affecting the 2009 and 2010 Harvest Specifications

The final rule implementing Amendment 73 to the FMP was published in the Federal Register on December 31, 2008 (73 FR 80307). Amendment 73 removes dark rockfish from the “other rockfish” category in the FMP in order to allow the State of Alaska (State) to assume management of dark rockfish. This action is necessary to allow the State to implement more responsive, regionally based management measures than are currently possible under the FMP. Based on the approval of Amendment 73, the Council recommended final 2009 and 2010 harvest specifications for BSAI groundfish.

The Council is considering a proposal that would allocate the Pacific cod TAC by Bering Sea subarea and Aleutian Islands (AI) subarea instead of a combined BSAI TAC, although associated fishery management implications would require more time to assess and resolve. As a result, a Pacific cod split between subareas has not been established for 2009 or 2010. Additional proposals being developed by the Plan Team for Council consideration would separate some species from the “other species” category so that individual OFLs, ABCs, and TACs may be established for these species. Another would allocate the ABC for rougheye rockfish by Bering Sea subarea and Aleutian Islands (AI) subarea instead of a combined BSAI ABC.

Changes From the Proposed 2009 and 2010 Harvest Specifications in the BSAI

In October 2008, the Council made its recommendations for the proposed 2009 and 2010 harvest specifications (73 FR 75059, December 10, 2008) based largely on information contained in the 2007 SAFE report for the BSAI groundfish fisheries. The 2008 SAFE report, which was not available when the Council made its recommendations in October 2008, contains the best and most recent scientific information on the condition of the groundfish stocks. In December 2008, the Council considered the 2008 SAFE report in making its recommendations for the final 2009 and 2010 harvest specifications. Based on the 2008 SAFE report, the sum of the 2009 and 2010 recommended final TACs for the BSAI (1,681,586 mt for 2009 and 2,000,000 mt for 2010) is lower than the sum of the proposed 2009 TACs and higher than the sum of the proposed 2010 TACs (1,824,204 mt each year). Compared to the proposed 2009 TACs, the Council's final TAC recommendations increase for species when sufficient information supports a larger TAC. This increases fishing opportunities for fishermen and adds economic benefits to the nation. These species include BSAI Atka mackerel, flathead sole, Pacific cod, rock sole, and Greenland turbot. The Council reduced TAC levels to provide greater protection for several species including Bering Sea subarea pollock, yellowfin sole, “other flatfish,” and Pacific ocean perch.

The largest TAC reduction was for Bering Sea subarea pollock. The 2009 Bering Sea subarea pollock ABC and the corresponding TAC were reduced 185,000 mt below the proposed rule due to the addition of new survey and catch data incorporated into the pollock assessment models after the Council recommended the proposed harvest specifications. The reduction in the 2009 ABC and corresponding TAC is a consequence of low recruitment in the years 2002 through 2005. The assessment model remains unchanged and the stock still is in tier 1, as recommended by the SSC. Conversely, the new survey data increased the 2010 Bering Sea subarea pollock ABC and TAC by 230,000 mt. This increase is due to the recruitment of the 2006 year class, which has now appeared strong in two different surveys.

The changes in the final rule from the proposed rule are based on the most recent scientific information and implement the harvest strategy described in the proposed rule for the harvest specifications and are compared in the following table:

The final 2009 and 2010 TAC recommendations for the BSAI are within the OY range established for the BSAI and do not exceed the ABC for any single species or complex. Table 1 lists the final 2009 and 2010 OFL, ABC, TAC, initial TAC (ITAC), and CDQ reserve amounts of the BSAI groundfish. The apportionment of TAC amounts among fisheries and seasons is discussed below.

As mentioned in the proposed 2009 and 2010 harvest specifications, NMFS is apportioning the amounts shown in Table 2 from the non-specified reserve to increase the ITAC of several target species.

Reserves and the Incidental Catch Allowance (ICA) for Pollock, Atka Mackerel, Flathead Sole, Rock Sole, Yellowfin Sole, and Aleutian Islands Pacific Ocean Perch

Section 679.20(b)(1)(i) requires the placement of 15 percent of the TAC for each target species or “other species” category, except for pollock, the hook-and-line and pot gear allocation of sablefish, and the Amendment 80 species, in a non-specified reserve. Section 679.20(b)(1)(ii)(B) requires that 20 percent of the hook-and-line and pot gear allocation of sablefish be allocated to the fixed gear sablefish CDQ reserve. Section 679.20(b)(1)(ii)(D) requires allocation of 7.5 percent of the trawl gear allocations of sablefish and 10.7 percent of the Bering Sea Greenland turbot and arrowtooth flounder TACs to the respective CDQ reserves. Section 679.20(b)(1)(ii)(C) requires allocation of 10.7 percent of the TACs for Atka mackerel, Aleutian Islands Pacific ocean perch, yellowfin sole, rock sole, flathead sole, and Pacific cod be allocated to the CDQ reserves. Sections 679.20(a)(5)(i)(A) and 679.31(a) also require the allocation of 10 percent of the BSAI pollock TACs to the pollock CDQ directed fishing allowance (DFA). The entire Bogoslof District pollock TAC is allocated as an ICA (see § 679.20(a)(5)(ii)). With the exception of the hook-and-line and pot gear sablefish CDQ reserve, the regulations do not further apportion the CDQ allocations by gear. Section 679.21(e)(3)(i)(A) requires withholding 7.5 percent of the Chinook salmon PSC limit, 10.7 percent of the crab and non-Chinook salmon PSC limits, and 343 (mt) of halibut PSC as PSQ reserves for the CDQ fisheries. Sections 679.30 and 679.31 set forth regulations governing the management of the CDQ and PSQ reserves, respectively.

Pursuant to § 679.20(a)(5)(i)(A)(1), NMFS allocates a pollock ICA of 4 percent of the Bering Sea subarea pollock TAC after subtraction of the 10 percent CDQ reserve. This allowance is based on NMFS' examination of the pollock incidental catch, including the incidental catch by CDQ vessels, in target fisheries other than pollock from 1999 through 2008. During this 9-year period, the pollock incidental catch ranged from a low of 2.4 percent in 2006 to a high of 5 percent in 1999, with a 10-year average of 3 percent. Pursuant to § 679.20(a)(5)(iii)(B)(2)(i) and (ii), NMFS establishes a pollock ICA of 1,600 mt for the AI subarea after subtraction of the 10 percent CDQ DFA. This allowance is based on NMFS' examination of the pollock incidental catch, including the incidental catch by CDQ vessels, in target fisheries other than pollock from 2003 through 2008. During this 6-year period, the incidental catch of pollock ranged from a low of 5 percent in 2006 to a high of 10 percent in 2003, with a 6-year average of 6 percent.

Pursuant to § 679.20(a)(8) and (10), NMFS allocates ICAs of 4,500 mt of flathead sole, 5,000 mt of rock sole, 2,000 mt of yellowfin sole, 10 mt of Western Aleutian District Pacific ocean perch, 10 mt of Central Aleutian District Pacific ocean perch, 100 mt of Eastern Aleutian District Pacific ocean perch, 20 mt of Western Aleutian District Atka mackerel, 20 mt of Central Aleutian District Atka mackerel, and 200 mt of Eastern Aleutian District and Bering Sea subarea Atka mackerel TAC after subtraction of the 10.7 percent CDQ reserve. These allowances are based on NMFS' examination of the incidental catch in other target fisheries from 2003 through 2008.

The regulations do not designate the remainder of the non-specified reserve by species or species group. Any amount of the reserve may be apportioned to a target species or to the “other species” category during the year, providing that such apportionments do not result in overfishing (see § 679.20(b)(1)(ii)). The Regional Administrator has determined that the ITACs specified for the species listed in Table 2 need to be supplemented from the non-specified reserve because U.S. fishing vessels have demonstrated the capacity to catch the full TAC allocations. Therefore, in accordance with § 679.20(b)(3), NMFS is apportioning the amounts shown in Table 2 from the non-specified reserve to increase the ITAC for northern rockfish, shortraker rockfish, rougheye rockfish, and Bering Sea “other rockfish” by 15 percent of the TAC in 2009 and 2010.

Allocation of Pollock TAC Under the American Fisheries Act (AFA)

Section 679.20(a)(5)(i)(A) requires that the pollock TAC apportioned to the Bering Sea subarea, after subtraction of the 10 percent for the CDQ program and the 4 percent for the ICA, be allocated as a DFA as follows: 50 percent to the inshore sector, 40 percent to the catcher/processor sector, and 10 percent to the mothership sector. In the Bering Sea subarea, 40 percent of the DFA is allocated to the A season (January 20-June 10), and 60 percent of the DFA is allocated to the B season (June 10-November 1). The AI directed pollock fishery allocation to the Aleut Corporation is the amount of pollock remaining in the AI subarea after subtracting 1,900 mt for the CDQ DFA (10 percent) and 1,600 mt for the ICA. In the AI subarea, 40 percent of the DFA is allocated to the A season and the remainder of the directed pollock fishery is allocated to the B season. Table 3 lists these 2009 and 2010 amounts.

Section 679.20(a)(5)(i)(A)(4) also includes several specific requirements regarding Bering Sea pollock allocations. First, 8.5 percent of the pollock allocated to the catcher/processor sector will be available for harvest by AFA catcher vessels with catcher/processor sector endorsements, unless the Regional Administrator receives a cooperative contract that provides for the distribution of harvest among AFA catcher/processors and AFA catcher vessels in a manner agreed to by all members. Second, AFA catcher/processors not listed in the AFA are limited to harvesting not more than 0.5 percent of the pollock allocated to the catcher/processor sector. Table 3 lists the 2009 and 2010 allocations of pollock TAC. Tables 11 through 15 list the AFA catcher/processor and catcher vessel harvesting sideboard limits. The tables for the pollock allocations to the Bering Sea subarea inshore pollock cooperatives and open access sector will be posted on the Alaska Region Web site at http://www.alaskafisheries.noaa.gov .

Table 3 also lists seasonal apportionments of pollock and harvest limits within the Steller Sea Lion Conservation Area (SCA). The harvest within the SCA, as defined at § 679.22(a)(7)(vii), is limited to 28 percent of the annual DFA until April 1. The remaining 12 percent of the 40 percent annual DFA allocated to the A season may be taken outside the SCA before April 1 or inside the SCA after April 1. If less than 28 percent of the annual DFA is taken inside the SCA before April 1, the remainder will be available to be taken inside the SCA after April 1. The A season pollock SCA harvest limit will be apportioned to each sector in proportion to each sector's allocated percentage of the DFA. Table 3 lists by sector these 2009 and 2010 amounts.

Allocation of the Atka Mackerel TACs

Section 679.20(a)(8)(ii) allocates the Atka mackerel TACs, after subtraction of the CDQ reserves, jig gear allocation, and ICAs for the BSAI trawl limited access sector and non-trawl gear, to the Amendment 80 and BSAI trawl limited access sectors. The allocation of the ITAC for Atka mackerel to the Amendment 80 and BSAI trawl limited access sectors is established in Table 33 to part 679 and § 679.91.

Pursuant to § 679.20(a)(8)(i), up to 2 percent of the Eastern Aleutian District and the Bering Sea subarea Atka mackerel ITAC may be allocated to jig gear. The amount of this allocation is determined annually by the Council based on several criteria, including the anticipated harvest capacity of the jig gear fleet. The Council recommended, and NMFS approves, a 0.5 percent allocation of the Atka mackerel ITAC in the Eastern Aleutian District and Bering Sea subarea to the jig gear in 2009 and 2010. Based on the 2009 TAC of 27,000 mt after subtractions of the CDQ reserve and ICA, the jig gear allocation would be 120 mt for 2009. Based on the 2010 TAC of 22,900 mt after subtractions of the CDQ reserve and ICA, the jig gear allocation would be 101 mt for 2010.

Section 679.20(a)(8)(ii)(A) apportions the Atka mackerel ITAC into two equal seasonal allowances. The first seasonal allowance is made available for directed fishing from January 1 (January 20 for trawl gear) to April 15 (A season), and the second seasonal allowance is made available from September 1 to November 1 (B season). The jig gear allocation is not apportioned by season.

Pursuant to § 679.20(a)(8)(ii)(C)(1), the Regional Administrator will establish a harvest limit area (HLA) limit of no more than 60 percent of the seasonal TAC for the Western and Central Aleutian Districts.

NMFS will establish HLA limits for the CDQ reserve and each of the three non-CDQ trawl sectors: the BSAI trawl limited access sector, the Amendment 80 limited access fishery, and an aggregate HLA limit applicable to all Amendment 80 cooperatives. NMFS will assign vessels in each of the three non-CDQ sectors that apply to fish for Atka mackerel in the HLA to an HLA fishery based on a random lottery of the vessels that apply (see § 679.20(a)(8)(iii)). There is no allocation of Atka mackerel to the BSAI trawl limited access sector in the Western Aleutian District. Therefore, no vessels in the BSAI trawl limited access sector will be assigned to the Western Aleutian District HLA fishery.

Each trawl sector will have a separate lottery. A maximum of two HLA fisheries will be established in Area 542 for the BSAI trawl limited access sector. A maximum of four HLA fisheries will be established for vessels assigned to Amendment 80 cooperatives: a first and second HLA fishery in Area 542, and a first and second HLA fishery in Area 543. A maximum of four HLA fisheries will be established for vessels assigned to the Amendment 80 limited access fishery: a first and second HLA fishery in Area 542, and a first and second HLA fishery in Area 543. NMFS will initially open fishing in the HLA for the first HLA fishery in all three trawl sectors at the same time. The initial opening of fishing in the HLA will be based on the first directed fishing closure of Atka mackerel for the Eastern Aleutian District and Bering Sea subarea for any one of the three trawl sectors allocated Atka mackerel TAC.

Table 4 lists these 2009 and 2010 amounts. The 2010 allocations for Atka mackerel between Amendment 80 cooperatives and the Amendment 80 limited access sector will not be known until eligible participants apply for participation in the program by November 1, 2009.

Allocation of the Pacific cod ITAC

Section 679.20(a)(7)(i) and (ii) allocates the Pacific cod TAC in the BSAI, after subtraction of 10.7 percent for the CDQ reserve, as follows: 1.4 percent to vessels using jig gear, 2.0 percent to hook-and-line and pot catcher vessels less than 60 ft (18.3 m) length overall (LOA), 0.2 percent to hook-and-line catcher vessels greater than or equal to 60 ft (18.3 m) LOA, 48.7 percent to hook-and-line catcher/processors, 8.4 percent to pot catcher vessels greater than or equal to 60 ft (18.3 m) LOA, 1.5 percent to pot catcher/processors, 2.3 percent to American Fisheries Act (AFA) trawl catcher/processors, 13.4 percent to non-AFA trawl catcher/processors, and 22.1 percent to trawl catcher vessels. The ICA for the hook-and-line and pot sectors will be deducted from the aggregate portion of Pacific cod TAC allocated to the hook-and-line and pot sectors. For 2009 and 2010, the Regional Administrator establishes an ICA of 500 mt based on anticipated incidental catch by these sectors in other fisheries. The allocation of the ITAC for Pacific cod to the Amendment 80 sector is established in Table 33 to part 679 and § 679.91. The 2010 allocations for Pacific cod between Amendment 80 cooperatives and the Amendment 80 limited access sector will not be known until eligible participants apply for participation in the program by November 1, 2009.

The Pacific cod ITAC is apportioned into seasonal allowances to disperse the Pacific cod fisheries over the fishing year (see §§ 679.20(a)(7) and 679.23(e)(5)). In accordance with § 679.20(a)(7)(iv)(B) and (C), any unused portion of a seasonal Pacific cod allowance will become available at the beginning of the next seasonal allowance.

Pursuant to §§ 679.20(a)(7)(i)(B) and 679.23(e)(5), the CDQ season allowances by gear are as follows: For hook-and-line catcher/processors and hook-and-line catcher vessels greater than or equal to 60 ft (18.3 m) LOA harvesting CDQ Pacific cod, the first seasonal allowance of 60 percent of the ITAC is available for directed fishing from January 1 to June 10, and the second seasonal allowance of 40 percent of the ITAC is available from June 10 to December 31. No seasonal harvest constraints are imposed on the CDQ Pacific cod fishery for pot gear or hook-and-line catcher vessels less than 60 ft (18.3 m) LOA. For vessels harvesting CDQ Pacific cod with trawl gear, the first seasonal allowance of 60 percent of the ITAC is available January 20 to April 1. The second seasonal allowance, April 1 to June 10, and the third seasonal allowance, June 10 to November 1, are each allocated 20 percent of the ITAC. The CDQ Pacific cod trawl catcher vessel allocation is further allocated as 70 percent of the first seasonal allowance, 10 percent in the second seasonal allowance, and 20 percent in the third seasonal allowance. The CDQ Pacific cod trawl catcher/processor allocation is 50 percent in the first seasonal allowance, 30 percent in the second seasonal allowance, and 20 percent in the third seasonal allowance. For jig gear, the first and third seasonal allowances are each allocated 40 percent of the ITAC and the second seasonal allowance is allocated 20 percent of the ITAC.

Pursuant to §§ 679.20(a)(7)(iv)(A) and 679.23(e)(5), the non-CDQ season allowances by gear are as follows. For hook-and-line and pot catcher/processors and hook-and-line and pot catcher vessels greater than or equal to 60 ft (18.3 m) LOA, the first seasonal allowance of 51 percent of the ITAC is available for directed fishing from January 1 to June 10, and the second seasonal allowance of 49 percent of the ITAC is available from June 10 (September 1 for pot gear) to December 31. No seasonal harvest constraints are imposed on the Pacific cod fishery for catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear. For trawl gear, the first seasonal allowance is January 20 to April 1, the second seasonal allowance is April 1 to June 10, and the third seasonal allowance is June 10 to November 1. The trawl catcher vessel allocation is further allocated as 74 percent in the first seasonal allowance, 11 percent in the second seasonal allowance, and 15 percent in the third seasonal allowance. The trawl catcher/processor allocation is allocated 75 percent in the first seasonal allowance, 25 percent in the second seasonal allowance, and zero percent in the third seasonal allowance. For jig gear, the first seasonal allowance is allocated 60 percent of the ITAC, and the second and third seasonal allowances are each allocated 20 percent of the ITAC. Table 5 lists the 2009 and 2010 allocations and seasonal apportionments of the Pacific cod TAC.

Sablefish Gear Allocation

Sections 679.20(a)(4)(iii) and (iv) require the allocation of sablefish TACs for the Bering Sea and AI subareas between trawl and hook-and-line or pot gear. Gear allocations of the TACs for the Bering Sea subarea are 50 percent for trawl gear and 50 percent for hook-and-line or pot gear and for the AI subarea are 25 percent for trawl gear and 75 percent for hook-and-line or pot gear. Section 679.20(b)(1)(iii)(B) requires apportionment of 20 percent of the hook-and-line and pot gear allocation of sablefish to the CDQ reserve. Additionally, § 679.20(b)(1)(ii)(D) requires apportionment of 7.5 percent of the trawl gear allocation of sablefish to the CDQ reserve. The Council recommended that only trawl sablefish TAC be established biennially. The harvest specifications for the hook-and-line gear and pot gear sablefish Individual Fishing Quota (IFQ) fisheries will be limited to the 2009 fishing year to ensure those fisheries are conducted concurrently with the halibut IFQ fishery. Concurrent sablefish and halibut IFQ fisheries reduces the potential for discards of halibut and sablefish in those fisheries. The sablefish IFQ fisheries will remain closed at the beginning of each fishing year until the final specifications for the sablefish IFQ fisheries are in effect. Table 6 lists the 2009 and 2010 gear allocations of the sablefish TAC and CDQ reserve amounts.

Allocation of the Aleutian Islands Pacific Ocean Perch, and BSAI Flathead Sole, Rock Sole, and Yellowfin Sole TACs

Sections 679.20(a)(10)(i) and (ii) require the allocation between the Amendment 80 sector and BSAI trawl limited access sector for Aleutian Islands Pacific ocean perch, and BSAI flathead sole, rock sole, and yellowfin sole TACs, after subtraction of 10.7 percent for the CDQ reserve and an ICA for the BSAI trawl limited access sector and vessels using non-trawl gear. The allocation of the ITAC for Aleutian Islands Pacific ocean perch, and BSAI flathead sole, rock sole, and yellowfin sole to the Amendment 80 sector is established in Tables 33 and 34 to part 679 and § 679.91. The 2010 allocations for Amendment 80 species between Amendment 80 cooperatives and limited access sector will not be known until eligible participants apply for participation in the program by November 1, 2009. Table 7 lists the 2009 and 2010 allocations of the Aleutian Islands Pacific ocean perch, and BSAI flathead sole, rock sole, and yellowfin sole TACs.

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

Section 679.21(e) sets forth the BSAI PSC limits. Pursuant to § 679.21(e)(1)(iv) and (e)(2), the 2009 and 2010 BSAI halibut mortality limits are 3,675 mt for trawl fisheries and 900 mt for the non-trawl fisheries. Sections 679.21(e)(3)(i)(A)(2) and (e)(4)(i)(A) allocates 276 mt in 2009 and 326 mt in 2010 of the trawl halibut mortality limit and 7.5 percent, or 67 mt, of the non-trawl halibut mortality limit as the PSQ reserve for use by the groundfish CDQ program. Section 679.21(e)(1)(vii) specifies 29,000 fish as the 2009 and 2010 Chinook salmon PSC limit for the Bering Sea subarea pollock fishery. Section 679.21(e)(3)(i)(A)(3)(i) allocates 7.5 percent, or 2,175 Chinook salmon, as the PSQ reserve for the CDQ program and allocates the remaining 26,825 Chinook salmon to the non-CDQ fisheries. Section 679.21(e)(1)(ix) specifies 700 fish as the 2009 and 2010 Chinook salmon PSC limit for the AI subarea pollock fishery. Section 679.21(e)(3)(i)(A)(3)(i) allocates 7.5 percent, or 53 Chinook salmon, as the AI subarea PSQ for the CDQ program and allocates the remaining 647 Chinook salmon to the non-CDQ fisheries. Section 679.21(e)(1)(viii) specifies 42,000 fish as the 2009 and 2010 non-Chinook salmon PSC limit. Section 679.21(e)(3)(i)(A)(3)(ii) allocates 10.7 percent, or 4,494 non-Chinook salmon, as the PSQ for the CDQ program and allocates the remaining 37,506 non-Chinook salmon to the non-CDQ fisheries.

PSC limits for crab and herring are specified annually based on abundance and spawning biomass.

The red king crab mature female abundance is estimated from the 2008 survey data at 35 million red king crabs, and the effective spawning biomass is estimated at 75 million lb (34,020 mt). Based on the criteria set out at § 679.21(e)(1)(ii), the 2009 and 2010 PSC limit of red king crab in Zone 1 for trawl gear is 197,000 animals. This limit derives from the mature female abundance of more than 8.4 million king crab and the effective spawning biomass estimate of more than 55 million lb (24,948 mt).

Section 679.21(e)(3)(ii)(B)(2) establishes criteria under which NMFS must specify an annual red king crab bycatch limit for the Red King Crab Savings Subarea (RKCSS). The regulations limit the RKCSS to up to 25 percent of the red king crab PSC limit based on the need to optimize the groundfish harvest relative to red king crab bycatch. In December 2008, the Council recommended, and NMFS approves, that the red king crab bycatch limit be equal to 25 percent of the red king crab PSC limit within the RKCSS (Table 8b).

Based on 2008 survey data, Tanner crab (Chionoecetes bairdi) abundance is estimated at 435 million animals. Given the criteria set out at § 679.21(e)(1)(iii), the calculated 2009 and 2010 C. bairdi crab PSC limit for trawl gear is 980,000 animals in Zone 1 and 2,970,000 animals in Zone 2. These limits are derived from the C. bairdi crab abundance estimate being in excess of the 400 million animal threshold specified in § 679.21(e)(1)(ii).

Pursuant to § 679.21(e)(1)(iv), the PSC limit for snow crab C. opilio) is based on total abundance as indicated by the NMFS annual bottom trawl survey. The C. opilio crab PSC limit is set at 0.1133 percent of the Bering Sea abundance index. Based on the 2008 survey estimate of 2.6 billion animals, the calculated limit is 4,350,000 animals.

Pursuant to § 679.21(e)(1)(vi), the PSC limit of Pacific herring caught while conducting any trawl operation for BSAI groundfish is 1 percent of the annual eastern Bering Sea herring biomass. The best estimate of 2009 and 2010 herring biomass is 169,675 mt. This amount was derived using 2008 survey data and an age-structured biomass projection model developed by the Alaska Department of Fish and Game. Therefore, the herring PSC limit for 2009 and 2010 is 1,697 mt for all trawl gear as presented in Tables 8a and b.

Section 679.21(e)(3) requires, after subtraction of PSQ reserves, that crab and halibut trawl PSC be apportioned between the BSAI trawl limited access and Amendment 80 sectors as presented in Table 8a. The amount of 2009 PSC limits assigned to the Amendment 80 sector is specified in Table 35 to part 679. Pursuant to § 679.21(e)(1)(iv) and § 679.91(d) through (f), crab and halibut trawl PSC assigned to the Amendment 80 sector is then sub-allocated to Amendment 80 cooperatives as PSC cooperative quota (CQ) and to the Amendment 80 limited access fishery as presented in Tables 8d and 8e. PSC CQ assigned to Amendment 80 cooperatives is not allocated to specific fishery categories. The 2010 PSC allocations between Amendment 80 cooperatives and the Amendment 80 limited access sector will not be known until eligible participants apply for participation in the program by November 1, 2009. Section 679.21(e)(3)(i)(B) requires the apportionment of each trawl PSC limit not assigned to Amendment 80 cooperatives into PSC bycatch allowances for seven specified fishery categories.

Section 679.21(e)(4)(i) authorizes the apportionment of the non-trawl halibut PSC limit into PSC bycatch allowances among six fishery categories. Table 8c lists the fishery bycatch allowances for the trawl and non-trawl fisheries.

Section 679.21(e)(4)(ii) authorizes the exemption of specified non-trawl fisheries from the halibut PSC limit. As in past years after consultation with the Council, NMFS exempts pot gear, jig gear, and the sablefish IFQ hook-and-line gear fishery categories from halibut bycatch restrictions because (1) The pot gear fisheries have low halibut bycatch mortality, (2) halibut mortality for the jig gear fleet is assumed to be negligible, and (3) the sablefish and halibut IFQ fisheries have low halibut bycatch mortality because the IFQ program requires legal-size halibut to be retained by vessels using hook-and-line gear if a halibut IFQ permit holder or a hired master is aboard and is holding unused halibut IFQ (subpart D of 50 CFR part 679). In 2008, total groundfish catch for the pot gear fishery in the BSAI was approximately 22,160 mt, with an associated halibut bycatch mortality of about 6 mt. The 2008 jig gear fishery harvested about 228 mt of groundfish. Most vessels in the jig gear fleet are less than 60 ft (18.3 m) LOA and thus are exempt from observer coverage requirements. As a result, observer data are not available on halibut bycatch in the jig gear fishery. However, a negligible amount of halibut bycatch mortality is assumed because of the selective nature of jig gear and the low mortality rate of halibut caught with jig gear and released.

Section 679.21(e)(5) authorizes NMFS, after consultation with the Council, to establish seasonal apportionments of PSC amounts for the BSAI trawl limited access and Amendment 80 limited access sectors in order to maximize the ability of the fleet to harvest the available groundfish TAC and to minimize bycatch. The factors to be considered are (1) Seasonal distribution of prohibited species, (2) seasonal distribution of target groundfish species, (3) PSC bycatch needs on a seasonal basis relevant to prohibited species biomass, (4) expected variations in bycatch rates throughout the year, (5) expected start of fishing effort, and (6) economic effects of seasonal PSC apportionments on industry sectors. The Council recommended and NMFS approves the seasonal PSC apportionments in Tables 8c and 8e to maximize harvest among gear types, fisheries, and seasons while minimizing bycatch of PSC based on the above criteria.

Halibut Discard Mortality Rates

To monitor halibut bycatch mortality allowances and apportionments, the Regional Administrator uses observed halibut bycatch rates, discard mortality rates (DMR), and estimates of groundfish catch to project when a fishery's halibut bycatch mortality allowance or seasonal apportionment is reached. The DMRs are based on the best information available, including information contained in the annual SAFE report.

NMFS approves the halibut DMRs developed and recommended by the International Pacific Halibut Commission (IPHC) and the Council for the 2009 and 2010 BSAI groundfish fisheries for use in monitoring the 2009 and 2010 halibut bycatch allowances (see Tables 8a-e). The IPHC developed these DMRs for the 2009 and 2010 BSAI non-CDQ fisheries using the 10-year mean DMRs for those fisheries. The IPHC changed the DMRs for the 2009 and 2010 BSAI CDQ fisheries using the 1998 to 2007 DMRs for those fisheries. The IPHC will analyze observer data annually and recommend changes to the DMRs when a fishery DMR shows large variation from the mean. A copy of the document justifying these DMRs is available from the Council (see ADDRESSES), and the DMRs are discussed in the final 2008 SAFE report dated November 2008. Table 9 lists the 2009 and 2010 DMRs.

Directed Fishing Closures

In accordance with § 679.20(d)(1)(i), the Regional Administrator may establish a DFA for a species or species group if the Regional Administrator determines that any allocation or apportionment of a target species or “other species” category has been or will be reached. If the Regional Administrator establishes a DFA, 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 (see § 697.20(d)(1)(iii)). Similarly, pursuant to § 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 groundfish allocation amounts in Table 10 will be necessary as incidental catch to support other anticipated groundfish fisheries for the 2009 and 2010 fishing years. Consequently, in accordance with § 679.20(d)(1)(i), the Regional Administrator establishes the DFA for the species and species groups in Table 10 as zero. Therefore, in accordance with § 679.20(d)(1)(iii), NMFS is prohibiting directed fishing for these sectors and species in the specified areas effective at 1200 hrs, A.l.t., February 17, 2009, through 2400 hrs, A.l.t., December 31, 2010. Also, the BSAI trawl limited access and Amendment 80 limited access sectors bycatch allowances of halibut in Table 10 are zero mt and the bycatch allowances of red king crab, C. bairdi crab, and C. opilio crab in Table 10 are 0 animals. Therefore, in accordance with § 679.21(e)(7), NMFS is prohibiting directed fishing for these sectors and fishery categories in the specified areas effective at 1200 hrs, A.l.t., February 17, 2009, through 2400 hrs, A.l.t., December 31, 2010.

Closures implemented under the 2008 and 2009 Bering Sea and Aleutian Islands harvest specifications for groundfish (73 FR 10160, February 26, 2008) remain effective under authority of these final 2009 and 2010 harvest specifications, and are posted at the following Web sites: http://www.alaskafisheries.noaa.gov/index/infobulletins/infobulletins.asp?Yr=2009,, and http://www.alaskafisheries.noaa.gov/2009/status.htm. 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.

Central Gulf of Alaska Rockfish Pilot Program (Rockfish Program)

On June 6, 2005, the Council adopted the Rockfish Program to meet the requirements of Section 802 of the Consolidated Appropriations Act of 2004 (Pub. L. 108-199). The basis for the BSAI fishing prohibitions and the catcher vessel BSAI Pacific cod sideboard limits of the Rockfish Program are discussed in detail in the final rule to Amendment 68 to the Fishery Management Plan for groundfish of the Gulf of Alaska (71 FR 67210, November 20, 2006). Pursuant to § 679.82(d)(6)(i), the catcher vessel BSAI Pacific cod sideboard limit is 0.0 mt. Therefore, in accordance with § 679.82(d)(7)(ii), NMFS is prohibiting directed fishing for BSAI Pacific cod in July for catcher vessels under the Rockfish Program sideboard limitations.

Listed AFA Catcher/Processor Sideboard Limits

Pursuant to § 679.64(a), the Regional Administrator is responsible for restricting the ability of listed AFA catcher/processors to engage in directed fishing for groundfish species other than pollock to protect participants in other groundfish fisheries from adverse effects resulting from the AFA and from fishery cooperatives in the directed pollock fishery. The basis for these sideboard limits is described in detail in the final rules implementing the major provisions of the AFA (67 FR 79692, December 30, 2002) and Amendment 80 (72 FR 52668, September 14, 2007). Table 11 lists the 2009 and 2010 catcher/processor sideboard limits.

All catch of groundfish sideboard species by listed AFA catcher/processors, whether as targeted catch or incidental catch, will be deducted from the sideboard limits in Table 11. However, groundfish sideboard species that are delivered to listed catcher/processors by catcher vessels will not be deducted from the 2009 and 2010 sideboard limits for the listed AFA catcher/processors.

Section 679.64(a)(2) and Tables 40 and 41 of part 679 establish a formula for calculating PSC sideboard limits for listed AFA catcher/processors. The basis for these sideboard limits is described in detail in the final rules implementing the major provisions of the AFA (67 FR 79692, December 30, 2002) and Amendment 80 (72 FR 52668, September 14, 2007).

PSC species listed in Table 12 that are caught by listed AFA catcher/processors participating in any groundfish fishery other than pollock will accrue against the 2009 and 2010 PSC sideboard limits for the listed AFA catcher/processors. Section 679.21(e)(3)(v) authorizes NMFS to close directed fishing for groundfish other than pollock for listed AFA catcher/processors once a 2009 or 2010 PSC sideboard limit listed in Table 12 is reached.

Crab or halibut PSC 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 Sideboard Limits

Pursuant to § 679.64(a), the Regional Administrator is responsible for restricting the ability of AFA catcher vessels to engage in directed fishing for groundfish species other than pollock to protect participants in other groundfish fisheries from adverse effects resulting from the AFA and from fishery cooperatives in the directed pollock fishery. Section 679.64(b) establishes 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 rules implementing the major provisions of the AFA (67 FR 79692, December 30, 2002) and Amendment 80 (72 FR 52668, September 14, 2007). Tables 13 and 14 list the 2009 and 2010 AFA catcher vessel sideboard limits.

All catch of groundfish sideboard species made by non-exempt AFA catcher vessels, whether as targeted catch or incidental catch, will be deducted from the 2009 and 2010 sideboard limits listed in Table 13.

Halibut and crab PSC limits listed in Table 14 that are caught by AFA catcher vessels participating in any groundfish fishery for groundfish other than pollock will accrue against the 2009 and 2010 PSC sideboard limits for the AFA catcher vessels. Sections 679.21(d)(8) and (e)(3)(v) authorize NMFS to close directed fishing for groundfish other than pollock for AFA catcher vessels once a 2009 or 2010 PSC sideboard limit listed in Table 14 is reached. The PSC that is caught by AFA catcher vessels while fishing for pollock in the BSAI 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/Processor and Catcher Vessel Sideboard Directed Fishing Closures

The Regional Administrator has determined that many of the AFA catcher/processor and catcher vessel sideboard limits listed in Tables 15 and 16 are necessary as incidental catch to support other anticipated groundfish fisheries for the 2009 fishing year. In accordance with § 679.20(d)(1)(iv), the Regional Administrator establishes the sideboard limits listed in Tables 15 and 16 as DFAs. The Regional Administrator finds that many of these DFAs will be reached before the end of the year. Therefore, in accordance with § 679.20(d)(1)(iii), NMFS is prohibiting directed fishing by listed AFA catcher/processors for the species in the specified areas set out in Table 15 and directed fishing by non-exempt AFA catcher vessels for the species in the specified areas set out in Table 16.

Response to Comments

NMFS received two letters of comment in support and one letter of comment opposed to the proposed 2009 and 2010 harvest specifications. NMFS has organized these letters into 30 comments. These comments are summarized and responded to below.

Comment 1: Adopt tier 3 designation for Eastern Bering Sea pollock.

Response: Groundfish fisheries are managed at tiers 1 through 6 based on the level of information available for determining maximum sustainable yield and biomass. Fisheries with more reliable information are managed at lower tier numbers. In November 2008, the Council's BSAI Plan Team reviewed the information available for the Bering Sea pollock fishery and recommended that the fishery should be managed at the tier 1b level. At the December 2008, Council meeting, the SSC concurred with the BSAI Plan Team and the stock assessment authors that the appropriate designation is tier 1b. The SSC further noted that there is sufficient information to determine B_msy and the probability density function for F_msy. Because of this, NMFS believes that it is appropriate for the Council to adopt an OFL and TAC based on tier 1b status for Eastern Bering Sea pollock.

Comment 2: Suspend fishing on spawning aggregations and restore Winter Halibut Savings Area closure.

Response: The Winter Halibut Savings Area (located to the north of the eastern Aleutian Islands) was established to protect juvenile halibut from the effects of trawling during the winter months. It was one of the earliest measures to implement fishing restrictions in the Alaska groundfish fisheries following passage of the Magnuson-Stevens Fishery Conservation and Management Act in 1976. This savings area was in effect as the Alaska groundfish fishery transitioned from a foreign fishery to a domestic fishery, but was superseded by more applicable management protection areas and fisheries closures as the domestic groundfish fisheries matured, including PSC limits for halibut. Current stock assessment models account for fishing mortality. Whether the fish is harvested in or out of the spawning season yields the same mortality upon the stock.

Comment 3: Develop proposals for creation of no-take marine reserves in order to serve as experimental control areas which will increase the understanding of climate impacts and fulfill the Council's obligations under the Steller sea lion (SSL) Recovery Plan.

Response: This comment is beyond the scope of the annual harvest specifications for groundfish in the Bering Sea and Aleutian Islands. No-take reserves are not warranted absent specific research projects. NMFS has and continues to fund, conduct, and coordinate numerous scientific studies and research projects in the Bering Sea, including ones associated with climate and ecosystem changes. We believe the SSL recovery plan has been appropriately implemented, and NMFS continues to assess the recovery status of the western SSL population.

Ongoing research efforts such as that undertaken by the Alaska Fisheries Science Center and the Bering Sea Integrated Ecosystem Research Program ( http://bsierp.nprb.org ) are studying many focal areas of this ecosystem, including a range of oceanographic, climate, and atmospheric studies. As additional data about the effects of climate or other ecosystem changes on fish becomes available, it will be integrated into NMFS' stock assessment efforts.

Comment 4: A council member dismissed the significance of a letter from the public. This indicates a greater need for NMFS oversight.

Response: NMFS is not responsible for, and does not have the authority to regulate the opinions of individual Council members who are not NMFS employees. However, the Secretary of Commerce does have the responsibility to review Council actions to ensure compliance with the Magnuson-Stevens Act (MSA) and other applicable public laws. NMFS carries out these reviews on behalf of the Secretary of Commerce. The opinion of an individual Council member will not influence the Secretary of Commerce in conducting the required and appropriate oversight of Council actions.

Comment 5: Pollock catch limits may have effects upon other species (including pinnipeds) and the ecosystem as a whole.

Response: NMFS agrees that the removal of pollock from the marine ecosystem may have impacts on parts of the ecosystem dependent on pollock (e.g., marine mammals), and includes ecosystem considerations in the annual stock assessments used for determining catch limits. NMFS analyzed the impacts of the federal groundfish fisheries on the North Pacific ecosystem in the Alaska Groundfish Harvest Specifications Final Environmental Impact Statement (January 2007). NMFS is also involved in comprehensive Bering Sea ecosystem studies (see comment 3). Furthermore, in the 2008 SAFE, a large section is devoted to ecosystem considerations. As these endeavors produce scientifically valid information, it is applied to catch limits, and other applicable management measures.

Comment 6: Eastern Bering Sea pollock stocks declined about 20 percent per year between 2003 and 2007.

Response: NMFS concurs that this is true between 2004 and 2007 for estimates of biomass for age 3+ fish. This has resulted in a reduction of OFL and ABC levels in recent years. It should be noted that when the 2006 recruitment year of pollock reaches the age of 3, the age 3+ biomass estimate is expected to rapidly increase.

Comment 7: The 2008 hydroacoustic survey showed a roughly 50 percent drop in Eastern Bering Sea pollock from 2007.

Response: NMFS agrees with this statement. This is one factor in the models that produced lower OFL and ABC levels in 2009 compared to previous years. However, as the 2006 year class matures, the biomass, OFLs, and ABCs are expected to increase (see comment 6).

Comment 8: The 2008 bottom trawl survey has the second lowest catch of Eastern Bering Sea pollock on record.

Response: NMFS agrees with this statement (see comments 6 and 7).

Comment 9: The 2009 spawning stock biomass for Eastern Bering Sea pollock is predicted to be 26 percent below B_msy.

Response: NMFS agrees with this statement. Despite the current low Eastern Bering Sea pollock spawning stock biomass, models suggest that the spawning stock will exceed B_msy in 2010. This is because the 2006 year class will begin to enter the spawning stock biomass at that time.

Comment 10: Recruitment of Eastern Bering Sea pollock was below average for most recent years.

Response: Recruitment in the Eastern Bering Sea pollock stock is characterized by periodic individual high recruitment years. Because of this, most aggregations of consecutive years throughout the available time series will result in below average recruitment for most years. Therefore, this is not an appropriate measure of the health of the stock. It should be noted that 2006 was a year of high pollock recruitment, and that this year class should recruit into the fishery in 2010.

Comment 11: The most recent Biological Opinions concluded that groundfish fisheries jeopardize the survival and recovery of Steller sea lions when pollock abundance was higher than current levels.

Response: The most recent biological opinion was completed in 2001 and analyzed the effects of the Alaska groundfish fisheries on Steller sea lions and their designated critical habitat. This opinion concluded that the groundfish fisheries conducted within the Steller sea lion protection measures would not likely jeopardize the Steller sea lion's existence or result in adverse modification or destruction of critical habitat. NMFS implemented numerous measures to protect SSL in 2003. This includes the establishment of large fishery closures areas, harvest limits, and seasonal distribution of harvest for the pollock, Pacific cod, and Atka mackerel fisheries. Because the protection measures include a harvest control rule that reduces fishing effort with falling pollock abundance, the current measures take into account the potential for falling biomass and the need to reduce fishing as pollock abundance drops.

Comment 12: Northern fur seal populations have dropped from 2 million to about 0.6 million during the course of the pollock fishery.

Response: While there are not specific protection measures in place for northern fur seals with respect to the Bering Sea groundfish fisheries, NMFS has implemented several protection measures associated with the Pribilof Islands and surrounding waters. This includes, the Pribilof Island Habitat Conservation Zone, which is closed to trawling, a three nautical mile no groundfish fishing site around Walrus Island (east of St. Paul Island) and five pollock fishing closure areas in and around the Pribilof Islands.

Comment 13: Other pollock fisheries are at low levels and the Bogoslof fishery is closed.

Response: The Bogoslof pollock fishery remains closed resulting from an international agreement to prohibit fishing in the international waters of the Bering Sea until stocks reach 1 million mt. The Aleutian Island pollock fishery is open to directed fishing. However, fishing remains light due to the fact that most of the productive fishing areas remain closed to fishing in order to protect Steller sea lions. Despite this lack of fishing pressure, NMFS acknowledges that these stocks remain at levels lower than historic highs, and that the OFLs and ABCs for these stocks have been set accordingly.

Comment 14: Climate change has been proposed as a cause of declining stocks through a mechanism of pollock migrating to Russian waters, but recent years have been cold.

Response: The current models used to calculate OFL and ABC are largely based upon survey data, and do not incorporate migration of stocks to Russian waters. However, NMFS does believe that it is important to explore alternative hypotheses, and to incorporate climate change and ecosystem factors into fisheries management whenever it is appropriate and scientifically sound. These considerations are included in the ecosystems chapter to the SAFE reports and are considered in the development of the stock assessments.

Comment 15: Climate driven change will increase the margin of error, thus more conservative estimates should be adopted.

Response: NMFS believes that the harvest specification process has been developed using precautionary principles. While NMFS believes that climate change may in fact reduce the certainty of stock assessments, NMFS also believes that this uncertainty will be apparent in the surveys and models used to estimate the health of fish stocks. Thus, this uncertainty will be included in models and the OFLs and ABCs will be set accordingly.

Comment 16: From 1998 to 2007, 49 percent of the A season pollock catch was concentrated in the Steller Sea Lion conservation area, which puts fishing pressure on the spawning stock.

Response: NMFS agrees with this statement. Any harvest of mature fish will apply fishing pressure to the spawning stock. This is true in both the A and B fishing seasons (see comment 2). Fishing mortality is an integral part of the Eastern Bering Sea pollock stock assessment and is a major factor considered when setting OFL and ABC limits. NMFS believes that the recommendations produced by the SAFE report authors and the BSAI Plan Team minimize danger to the stocks from excessive fishing pressure. This process is reviewed by the SSC and the Center for Independent Experts.

Comment 17: Incidental catch of juvenile pollock should be considered.

Response: NMFS fisheries observers during 2008 recorded that the incidental catch of small, i.e., juvenile pollock was low. However, the fishing mortality of juvenile pollock is incorporated into models used to project OFL, ABC, and the future health of pollock stocks.

Comment 18: Bycatch of other species such as Chinook and non-chinook salmon should be considered.

Response: NMFS and the Council have taken and are taking action to reduce salmon bycatch in the pollock trawl fishery because of the potential for negative impacts on salmon stocks, and bycatch in general for all fisheries. Existing measures have reduced salmon bycatch rates in the pollock fishery compared with what they would have been without the measures. NMFS and the Council are engaged in a comprehensive process to evaluate these existing measures and develop alternative measures that may be necessary to further reduce salmon bycatch. Applicable Federal law requires that bycatch be minimized to the extent practicable and establishes processes for assessment and responsive implementation of appropriate management measures if and when warranted.

Comment 19: The rigorous scientific process used to develop the Council recommendations should be acknowledged.

Response: NMFS agrees. NMFS also believes that this has been acknowledged, and that the practices used by the Council have been codified in the MSA to require regional fishery management councils to not exceed recommendations of their SSCs.

Comment 20: The process is open, transparent, and the related information is widely available to the public.

Response: NMFS agrees with this statement.

Comment 21: The Council recommendation of Eastern Bering Sea pollock ABC and TAC of 815,000 mt is consistent with the recommendations of the SSC, the BSAI Plan Team, and the stock assessment author.

Response: NMFS agrees with this statement (see comment 1).

Comment 22: The 2009 Eastern Bering Sea pollock assessment is supported by three consecutive years of benthic trawl and hydroacoustic trawl survey data.

Response: NMFS agrees with this statement.

Comment 23: The assessment concludes that the probability of the Eastern Bering Sea pollock stock falling below B20 percent is very low.

Response: NMFS agrees that this is consistent with the findings of the stock assessment authors and the review of the SSC, and that as the 2006 year class enters the fishery, the stocks are likely to return to B_msy (see comment 9).

Comment 24: The SSC concluded that the Eastern Bering Sea pollock stock should be considered tier 1b because there is sufficient data to determine the B_msy, and the probability density function for F_msy.

Response: NMFS agrees that this is consistent with the findings of the SSC.

Comment 25: The Eastern Bering Sea pollock stock assessment authors, the SAFE, and the SSC cite strong scientific evidence that the 2006 year class appears to be strong, and that there is a strong likelihood that the Eastern Bering Sea pollock stock will approach B_msy by 2010.

Response: NMFS agrees with this statement (see comment 9).

Comment 26: The Eastern Aleutian Island subarea is the only region with consistently increasing Steller sea lion counts.

Response: NMFS agrees with this statement. However, NMFS also believes that one sub-area is an insufficient indicator of the western Steller sea lion stock abundance trend overall, as other subarea counts have consistently declined or remained unchanged over time.

Comment 27: The precautionary approach used to determine the 2009 harvest specifications provide protection for Steller sea lions consistent with existing mitigation requirements.

Response: NMFS agrees with this statement.

Comment 28: The Bogoslof pollock stocks are large enough to allow a directed fishery. However by international agreement, this stock will remain closed until there is enough fish to also support a fishery in the international waters of the Bering Sea.

Response: NMFS agrees (see comment 13).

Comment 29: The Aleutian Island pollock fishery is large enough to support a directed fishery, but that this fishery is effectively limited through closure areas intended to protect Steller sea lions.

Response: NMFS agrees that very little of the Aleutian Island pollock TAC is likely to be harvested due to Steller sea lion protection measures and the location of pollock.

Comment 30: New large Marine Protection Areas are not needed to protect Bering Sea pollock stocks.

Response: NMFS agrees that these new areas are not currently warranted (see comment 3).

Classification

NMFS has determined that these final harvest specifications are consistent with the FMP and with the Magnuson-Stevens Act and other applicable laws.

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

NMFS prepared a Final EIS for this action and made it available to the public on January 12, 2007 (72 FR 1512). On February 13, 2007, NMFS issued the Record of Decision (ROD) for the Final EIS. In January 2009, NMFS prepared a Supplemental Information Report (SIR) for this action. Copies of the Final EIS, ROD, and SIR for this action are available from NMFS (see ADDRESSES). The Final EIS analyzes the environmental consequences of the groundfish harvest specifications and alternative harvest strategies on resources in the action area. The SIR evaluates the need to prepare a Supplemental EIS (SEIS) for the 2009 and 2010 groundfish harvest specifications.

A SEIS should be prepared if (1) the agency makes substantial changes in the proposed action that are relevant to environmental concerns, or (2) significant new circumstances or information exist relevant to environmental concerns and bearing on the proposed action or its impacts (40 CFR 1502.9(c)(1)). After reviewing the information contained in the SIR and SAFE reports, the Administrator, Alaska Region, has determined that (1) approval of the 2009 and 2010 harvest specifications, which were set according to the preferred harvest strategy in the Final EIS, do not constitute a change in the action; and (2) there are no significant new circumstances or information relevant to environmental concerns and bearing on the action or its impacts. Additionally, the 2009 and 2010 harvest specifications will result in environmental impacts within the scope of those analyzed and disclosed in the Final EIS. Therefore, supplemental National Environmental Protection Act (NEPA) documentation is not necessary to implement the 2009 and 2010 harvest specifications.

The proposed harvest specifications were published in the Federal Register on December 10, 2008 (73 FR 75059). An Initial Regulatory Flexibility Analysis (IRFA) was prepared to evaluate the impacts on small entities of alternative harvest strategies for the groundfish fisheries in the Exclusive Economic Zone (EEZ) off Alaska on small entities. The public comment period ended on January 9, 2009. No comments were received regarding the IRFA or the economic impacts of this action. A Final Regulatory Flexibility Analysis (FRFA) was prepared that meets the statutory requirements of the Regulatory Flexibility Act of 1980, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 601-612). Copies of the IRFA and FRFA prepared for this action are available from NMFS, Alaska Region (see ADDRESSES).

Each year, NMFS promulgates a rule establishing the harvest specifications pursuant to the adopted harvest strategy. While the harvest specification numbers may change from year to year, the harvest strategy for establishing those numbers does not change. Therefore, the impacts discussed in the IRFA are essentially the same. NMFS considers the annual rulemakings establishing the harvest specification numbers to be a series of closely related rules stemming from the harvest strategy and representing one rule for purposes of the Regulatory Flexibility Act (5 U.S.C. 605(c)). A summary of the FRFA follows.

The action analyzed in the IRFA is the adoption of a harvest strategy to govern the catch of groundfish in the BSAI. The preferred alternative is the status quo harvest strategy in which TACs fall within the range of ABCs recommended by the Council's harvest specification process and TACs recommended by the Council. This action is taken in accordance with the FMP prepared by the Council pursuant to the Magnuson-Stevens. Significant issues raised by public comment are addressed in the preamble and not repeated here.

The directly regulated small entities include approximately 810 small catcher vessels, fewer than 20 small catcher/processors, and six CDQ groups. The entities directly regulated by this action are those that harvest groundfish in the exclusive economic zone of the BSAI and in parallel fisheries within State of Alaska waters. These include entities operating catcher vessels and catcher/processor vessels within the action area, and entities receiving direct allocations of groundfish. Catcher vessels and catcher/processors were considered to be small entities if their annual gross receipts from all economic activities, including the revenue of their affiliated operations, totaled $4 million per year or less. Data from 2006 were the most recent available to determine the number of small entities.

Estimates of first wholesale gross revenues for the BSAI non-CDQ and CDQ sectors were used as indices of the potential impacts of the alternative harvest strategies on small entities. Revenues were projected to decline from 2006 levels in 2007 and 2008 under the preferred alternative due to declines in ABCs for economically key groundfish species.

The preferred alternative (Alternative 2) was compared to four other alternatives. These included Alternative 1, which would have set TACs to generate fishing rates equal to the maximum permissible ABC (if the full TAC were harvested), unless the sum of TACs exceeded the BSAI optimum yield, in which case TACs would have been limited to the optimum yield. Alternative 3 would have set TACs to produce fishing rates equal to the most recent five-year average fishing rates. Alternative 4 would have set TACs to equal the lower limit of the BSAI optimum yield range. Alternative 5 would have set TACs equal to zero. Alternative 5 is the “no action” alternative.

Alternatives 3, 4, and 5 produced smaller first wholesale revenue indices for both non-CDQ and CDQ sectors than Alternative 2. Alternative 1 revenues were the same as Alternative 2 revenues in the BSAI for both sectors. Moreover, higher Alternative 1 TACs are associated with maximum permissible ABCs, while Alternative 2 TACs are associated with the ABCs that have been recommended to the Council by the Plan Team and the SSC, and more fully consider other potential biological issues. For these reasons, Alternative 2 is the preferred alternative.

This action does not modify recordkeeping or reporting requirements, or duplicate, overlap, or conflict with any Federal rules.

Adverse impacts on marine mammals resulting from fishing activities conducted under these harvest specifications are discussed in the Final EIS (see ADDRESSES).

Pursuant to 5 U.S.C. 553(d)(3), the Assistant Administrator for Fisheries, NOAA, finds good cause to waive the 30-day delay in effectiveness for this rule. Plan Team review occurred in November 2008, and Council consideration and recommendations occurred in December 2008. Accordingly, NMFS review could not begin until January 2009. For all fisheries not currently closed because the TACs established under the 2008 and 2009 final harvest specifications (73 FR 10160, February 26, 2008) were not reached, the likely possibility exists that they will be closed prior to the expiration of a 30-day delayed effectiveness period because their TACs could be reached. Certain fisheries, such as those for pollock and Pacific cod are intensive, fast-paced fisheries. Other fisheries, such as those for flatfish, rockfish, and “other species,” are critical as directed fisheries and as incidental catch in other fisheries. U.S. fishing vessels have demonstrated the capacity to catch the TAC allocations in these fisheries. Any delay in allocating the final TACs in these fisheries would cause disruption to the industry and potential economic harm through unnecessary discards. Determining which fisheries may close is impossible because these fisheries are affected by several factors that cannot be predicted in advance, including fishing effort, weather, movement of fishery stocks, and market price. Furthermore, the closure of one fishery has a cascading effect on other fisheries by freeing-up fishing vessels, allowing them to move from closed fisheries to open ones, increasing the fishing capacity in those open fisheries and causing them to close at an accelerated pace.

If the final harvest specifications are not effective by March 21, 2009, which is the start of the 2009 Pacific halibut season as specified by the IPHC, the hook-and-line sablefish fishery will not begin concurrently with the Pacific halibut season. This would result in the needless discard of sablefish that are caught along with Pacific halibut as both hook-and-line sablefish and Pacific halibut are managed under the same IFQ program. Immediate effectiveness of the final 2009 and 2010 harvest specifications will allow the sablefish fishery to begin concurrently with the Pacific halibut season. Also, the immediate effectiveness of this action is required to provide consistent management and conservation of fishery resources based on the best available scientific information, and to give the fishing industry the earliest possible opportunity to plan its fishing operations. Therefore NMFS finds good cause to waive the 30-day delay in effectiveness under 5 U.S.C. 553(d)(3).

Small Entity Compliance Guide

The following information is a plain language guide to assist small entities in complying with this final rule as required by the Small Business Regulatory Enforcement Fairness Act of 1996. This final rule's primary purpose is to announce the final 2009 and 2010 harvest specifications and prohibited species bycatch allowances for the groundfish fisheries of the BSAI. This action is necessary to establish harvest limits and associated management measures for groundfish during the 2009 and 2010 fishing years and to accomplish the goals and objectives of the FMP. This action affects all fishermen who participate in the BSAI fisheries. The specific amounts of OFL, ABC, TAC, and PSC are provided in tables to assist the reader. NMFS will announce closures of directed fishing in the Federal Register and information bulletins released by the Alaska Region. Affected fishermen should keep themselves informed of such closures.

Authority: 16 U.S.C. 773 et seq.; 16 U.S.C. 1540(f); 16 U.S.C. 1801 et seq.; 16 U.S.C. 3631 et seq.; Pub. L. 105-277; Pub. L. 106-31; Pub. L. 106-554; Pub. L. 108-199; Pub. L. 108-447; Pub. L. 109-241; Pub. L. 109-479.