Fisheries of the Exclusive Economic Zone Off Alaska; Emergency Interim Rule To Implement Major Provisions of the American Fisheries Act

AGENCY:

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

ACTION:

Emergency interim rule; revisions to 2000 harvest specifications; sideboard directed fishing closures; request for comments.

SUMMARY:

NMFS issues emergency interim regulations implementing major provisions of the American Fisheries Act (AFA). The elements of this emergency interim rule include: A new formula to allocate the Bering Sea and Aleutian Islands Management Area (BSAI) pollock total allowable catch (TAC) among the Western Alaska Community Development Quota (CDQ) program and the inshore, catcher/processor, and mothership industry sectors; new recordkeeping and reporting requirements for the BSAI pollock fishery and for processors that receive groundfish from AFA catcher vessels; new observer coverage and scale requirements for AFA catcher/processors, AFA motherships, and AFA inshore processors; new regulations to govern BSAI pollock fishery cooperatives formed under the AFA; harvesting restrictions on AFA catcher vessels and AFA catcher/processors to limit effort by such vessels in other groundfish and crab fisheries; crab processing restrictions on AFA motherships and AFA inshore processors that receive pollock harvested by a cooperative in a BSAI directed pollock fishery, an excessive share harvesting cap that prohibits any single entity from harvesting more than 17.5 percent of the BSAI pollock TAC, and revised interim groundfish harvest specifications for the BSAI and GOA.

This emergency action also establishes interim 2000 harvest sideboard amounts for AFA catcher/processors and AFA catcher vessels, and issues sideboard directed fishing closures for AFA catcher/processor and AFA catcher vessels in various fisheries. This emergency action is necessary to provide inshore pollock cooperatives with allocations of pollock for the 2000 fishing year as required by the AFA. This emergency action also is necessary to implement sideboard restrictions to protect participants in other Alaska fisheries from negative impacts as a result of fishery cooperatives formed under the AFA.

DATES:

Effective January 21, 2000 through July 20, 2000, except for § 679.5, paragraphs (a)(4)(iv), (f)(3), (i)(l)(iii), and (o) and § 679.60(d), which, upon approval under the Paperwork Reduction Act of the information collections in these provisions will be made effective through separate notification in the Federal Register. Comments on this emergency interim rule must be received by February 28, 2000.

ADDRESSES:

Comments must be sent to Sue Salveson, Assistant Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802, Attn: Lori Gravel, or delivered to Federal Building, Fourth Floor, 709 West 9th Street, Juneau, AK, and marked Attn: Lori Gravel. Comments will not be accepted if sent by e-mail or Internet. Copies of the Environmental Assessment/Regulatory Impact Review (EA/RIR) prepared for this action may be obtained from the North Pacific Fishery Management Council, 605 West 4th Ave, Suite 306, Anchorage, AK 99501, 907-271-2809. Send comments on collection-of-information requirements to the Alaska Region, NMFS, and to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Washington, DC 20503 (Attn: NOAA Desk Officer).

FOR FURTHER INFORMATION CONTACT:

Kent Lind, 907-586-7228 or kent.lind@noaa.gov.

SUPPLEMENTARY INFORMATION:

NMFS manages the U.S. groundfish fisheries in the exclusive economic zone of the BSAI and GOA under the fishery management plans (FMPs) for groundfish in the respective areas. With Federal oversight, the State of Alaska (State) manages the commercial king crab and Tanner crab fisheries in the BSAI and the commercial scallop fishery off Alaska under the FMPs for those fisheries. The North Pacific Fishery Management Council (Council) prepared, and NMFS approved, the FMPs under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801 et seq. Regulations implementing the FMPs appear at 50 CFR part 679. General regulations governing U.S. fisheries also appear at 50 CFR 600.

American Fisheries Act—Background Information

The AFA, Div. C, Title II, Subtitle II, Pub. L. No. 105-277, 112 Stat. 2681 (1998), made profound changes in the management of the groundfish fisheries of the BSAI and, to a lesser extent, the groundfish fisheries of the GOA and crab fisheries of the BSAI. With respect to the groundfish and crab fisheries off Alaska, the AFA—

• Established a new allocation scheme for BSAI pollock that allocates 10 percent of the BSAI pollock total allowable catch (TAC) to the CDQ Program, and after allowance for incidental catch of pollock in other fisheries, allocates the remaining TAC as follows: 50 percent to vessels harvesting pollock for processing by inshore processors, 40 percent to vessels harvesting pollock for processing by catcher/processors, and 10 percent to vessels harvesting pollock for processing by motherships;
• Provided for the buyout of nine pollock catcher/processors and the subsequent scrapping of eight of these vessels through a combination of $20 million in Federal appropriations and $75 million in direct loan obligations;
• Required a fee of six-tenths (0.6) of one cent for each pound round weight of pollock harvested by catcher vessels delivering to inshore processors for the purpose of repaying the $75 million direct loan obligation;
• Listed by name and/or provided qualifying criteria for those vessels and processors eligible to participate in the non-CDQ portion of the BSAI pollock fishery;
• Increased observer coverage and scale requirements for AFA catcher/processors;
• Established limitations for the creation of fishery cooperatives in the catcher/processor, mothership, and inshore industry sectors;
• Required that NMFS grant individual allocations of the inshore BSAI pollock TAC to inshore catcher vessel cooperatives that form around a specific inshore processor and agree to deliver the bulk of their catch to that processor;
• Required harvesting and processing restrictions (commonly known as “sideboards”) on fishermen and processors who have received exclusive harvesting or processing privileges under the AFA to protect the interests of fishermen and processors who have not directly benefitted from the AFA; and
• Established excessive share harvesting caps for BSAI pollock and directed the Council to develop excessive share caps for BSAI pollock processing and for the harvesting and processing of other groundfish.

Since the passage of the AFA in October 1998, NMFS has begun to implement specific provisions of the AFA through a variety of mechanisms. For the 1999 fishing year, NMFS implemented the new AFA pollock allocations and harvest restrictions on catcher/processors through the interim and final BSAI harvest specifications (64 FR 50, January 4, 1999; and 64 FR 12103, March 11, 1999). Required changes to the CDQ program were implemented through an emergency interim rule (64 FR 3877, January 26, 1999; extended at 64 FR 34743, June 29, 1999). The increase in observer coverage levels for pollock catcher/processors and regulatory authority to manage AFA catcher/processor sideboard limits through directed fishing closures were implemented through a separate emergency interim rule (64 FR 3435, January 22, 1999; corrected at 64 FR 7814, February 17, 1999; and extended at 64 FR 33425, June 6, 1999). In December 1998, NMFS administered the buyout of the nine catcher/processors declared ineligible under the AFA, and is currently overseeing the scrapping of the eight vessels scheduled for scrapping under the AFA. The inshore fee system mandated by the AFA will be implemented in early 2000. A proposed rule to implement the inshore fee program was published on December 21, 1999 (64 FR 71396).

Since the passage of the AFA, the Council has taken an active role in the development of management measures to implement the various provisions of the AFA. The Council began consideration of the implications of the AFA during a special meeting in November 1998, during which it discussed AFA-related actions that were required for the 1999 fishing year. At its December 1998 meeting, the Council voted to recommend approval of the two emergency interim rules cited earlier, recommended AFA-related provisions to the 1999 BSAI harvest specifications for groundfish, and began an analysis of a suite of AFA-related management measures that subsequently became known as Amendments 61/61/13/8. The Council conducted an initial review of Amendments 61/61/13/8 and related AFA measures at its April 1999 meeting, and took final action on these amendments at its June 1999 meeting.

In addition, the Council formed an industry advisory committee to assist NMFS in the development of specific measures to govern the development and management of inshore pollock cooperatives. This Council-appointed committee met with NMFS at a public meeting May 17-18, 1999, in Seattle, WA to develop recommendations for the implementation and management of inshore pollock cooperatives. These recommendations were presented to the Council at its June 1999 meeting, and were incorporated into the Council's recommended approach for implementing the inshore pollock cooperative provisions of the AFA.

The Council formed a second industry committee to make recommendations on the development and implementation of crab and groundfish processing limits on AFA pollock processors. This second committee met August 9-10, 1999, in Seattle, WA, and presented its recommendations to the Council at its October 1999 Council meeting.

At its December 1999 meeting, the Council reviewed the status of Amendments 61/61/13/8 and recommended that NMFS proceed immediately with an emergency interim rule to implement the Council's June 1999 recommendations so that AFA regulations could be in place prior to the start of the 2000 fisheries while Amendments 61/61/13/8 and the proposed rule to implement the amendments are under review by NMFS. The suite of management measures contained in this emergency interim rule gives effect to the Council's December 1999 motion and contains all AFA-related management measures necessary to implement the provisions of the AFA for the 2000 fishing year except for the inshore fee program, which is being implemented through separate rulemaking. NMFS previously published a separate emergency interim rule (65 FR 380, January 5, 2000) to give immediate effect to all AFA-related permit requirements so that the fishing industry has the opportunity to apply for and receive AFA-related fishing permits prior to the start of the 2000 pollock fishery.

NMFS is issuing this emergency interim rule to give immediate effect to all AFA-mandated management measures. This emergency action is necessary to provide inshore pollock cooperatives with allocations of pollock for the 2000 fishing year as required by the AFA. Inshore sector cooperatives will provide the inshore industry with the ability to more effectively meet the temporal and spatial dispersion objectives of NMFS' Steller sea lion conservation measures that will be implemented prior to the start of the 2000 pollock fisheries. Without this emergency interim rule, the inshore sector of the BSAI pollock industry would be unable to operate under cooperatives for the 2000 fishing year in the manner provided for in the AFA, and consequently, would lose a valuable method of meeting the temporal and spatial dispersion objectives of NMFS' Steller sea lion conservation measures.

In addition, this emergency action is necessary to implement paragraph 211(c)(1) of the AFA, which mandates sideboard restrictions to prevent AFA catcher vessels from exceeding “in the aggregate the traditional harvest levels of such vessels in other fisheries under the authority of the [Council] as a result of fishery cooperatives in the directed pollock fishery, [and] protect processors not eligible to participate in the directed pollock fishery from adverse effects as a result of the AFA or fishery cooperatives in the directed pollock fishery.” Such sideboard protections must be implemented by January 20, 2000, to prevent adverse economic impacts on the participants of other groundfish and crab fisheries that open on January 20, 2000. Without sideboard measures in place, AFA catcher vessels and catcher/processors could greatly increase their levels of participation in other groundfish and crab fisheries throughout Alaska due to the flexibility provided by cooperatives in the BSAI pollock fishery. Such a result could severely impact fishermen and communities throughout Alaska that are economically dependent on non-pollock groundfish and crab fisheries.

This emergency interim rule would be superseded by the final rule to implement Amendments 61/61/13/8 if approved by NMFS. The primary elements of this emergency interim rule are summarized here.

Recordkeeping and Reporting Requirements

To implement the provisions of the AFA, NMFS is revising existing procedures and establishing new procedures for inseason management of directed fisheries to monitor catch and bycatch taken by various AFA-qualified entities, including fishery cooperatives, and to manage catch limits by AFA-qualified vessels in other fisheries. These include:

Shoreside Processor Electronic Logbook Report

To implement the provisions of the AFA, NMFS must monitor daily pollock harvests and sideboard species harvests on a vessel-by-vessel basis in order to make timely management decisions on pollock closures and sideboard species closures. To collect this vessel-by-vessel delivery information, shoreside processors and stationary floating processors receiving deliveries of groundfish from AFA catcher vessels are required to submit information about those deliveries daily in electronic form.

Shoreside processor electronic logbook software to record and submit this information may be obtained free of charge from the Alaska Region, NMFS (see ADDRESSES or http://www.fakr.noaa.gov). The minimum hardware and operating system requirements for the NMFS electronic reporting shoreside logbook system are a personal computer (PC) with Pentium or equivalent processor, Windows 95, 98, or NT operating system (or equivalent), at least 16 megabytes of RAM (Windows 95) or 32 megabytes of RAM (Windows 95, NT), at least 75 megabytes of free hard disk storage, and telephone modem or internet connection.

As an alternative to the NMFS-provided shoreside processor electronic logbook software, processors may use privately developed software approved by NMFS that conforms to NMFS electronic logbook software specifications. These software specifications are available from the Alaska Region, NMFS, upon request.

The shoreside processor electronic logbook report is designed to provide NMFS with the detailed information needed to manage inshore fisheries under the AFA while reducing the recordkeeping and reporting burden on industry. Shoreside processors and stationary floating processors that are required to use the shoreside processor electronic logbook report are not required to maintain the paper daily cumulative production logbook (DCPL), submit weekly production reports (WPRs), and if the processor is processing CDQ fish, submit CDQ delivery reports. In addition, the processor is not required to submit quarterly DCPL logsheets to NMFS, although the processor is required to generate and retain printed output of the shoreside processor electronic logbook report at the processing plant for use by NMFS Enforcement and groundfish observers.

This emergency interim rule also allows shoreside processors and stationary floating processors that do not receive groundfish from AFA catcher vessels to voluntarily use NMFS-approved shoreside processor electronic logbook software in lieu of existing DCPLs, and WPRs.

Catcher Vessel Cooperative Pollock Catch Report

The designated representative or cooperative manager of each inshore catcher vessel cooperative is required to submit catch reports detailing each delivery of pollock harvested under the allocation made to that cooperative within 1 week of the date of delivery. This information is necessary so that NMFS may monitor cooperative fishing activity and enforce pollock allocations. Two options are available to cooperatives for submittal of the catch report: (1) an electronic data file in a NMFS-approved format, or (2) by FAX.

Changes to the Annual Specifications Process

Under this emergency interim rule, the procedures for allocating pollock TAC among industry sectors and apportioning each sector's TAC between seasons are revised to incorporate the changes contained in the AFA. Section 206 of the AFA sets out the allocation formulas for BSAI pollock, which are included in this emergency interim rule. Under this emergency interim rule, 10 percent of the pollock TAC specified for the Bering Sea (BS) subarea and the Aleutian Islands (AI) subarea is allocated to the CDQ program. The remaining TAC for each subarea, after establishment of an incidental catch allowance for pollock harvested as incidental catch in other groundfish fisheries, is allocated 50 percent to AFA catcher vessels harvesting pollock for processing by AFA inshore processors; 40 percent to AFA catcher/processors and AFA catcher vessels harvesting pollock for processing by AFA catcher/processors, with not less than 8.5 percent of this allocation made available to AFA catcher vessels delivering to catcher/processors; and 10 percent to AFA catcher vessels harvesting pollock for processing by AFA motherships. Under this emergency interim rule, the inshore pollock TAC is further subdivided into two allocations; one allocation to vessels participating in inshore fishery cooperatives, and one allocation to vessels not participating in a cooperative fishery. The annual allocation to inshore cooperatives is equal to the aggregate annual allocations made to each inshore cooperative formed under the provisions of this emergency interim rule. The allocation to vessels that are not in a cooperative fishery is equal to the remaining inshore allocation after subtraction of the allocation to fishery cooperatives.

Each sector's annual BS subarea allocation of pollock is further apportioned among fishing seasons. In a separate action, NMFS is implementing management measures to temporally and spatially disperse the BSAI pollock fishery to implement reasonable and prudent alternatives (RPAs) to protect endangered Steller sea lions.

Observer Coverage Requirements and Scales

This emergency interim rule changes observer coverage and scale requirements for AFA catcher/processors and AFA motherships, and changes observer coverage requirements for AFA inshore processors. However, no changes are made to observer coverage requirements for AFA catcher vessels. These changes are described here.

Unrestricted AFA Catcher/Processors and AFA Motherships

Subparagraph 211(b)(6)(A) of the AFA requires that unrestricted AFA catcher/processors have two observers on board at any time the vessel is fishing for groundfish in the BSAI. Under this emergency interim rule, this statutory requirement is set out in regulation and is extended to AFA motherships because AFA motherships receive unsorted pollock codends and operate in a similar manner to AFA catcher/processors, the only difference being that AFA motherships do not actually harvest the pollock themselves. Under this emergency interim rule, an unrestricted AFA catcher/processor or AFA mothership is required to have aboard two NMFS certified observers for each day that the vessel is used to harvest, process, or take deliveries of groundfish. In addition, this emergency interim rule extends the CDQ program observer workload limits to AFA catcher/processor and AFA motherships. Consequently, more than two observers might be required to allow each haul brought on board the vessel to be sampled by an observer. This situation may occur for some AFA motherships, depending on how many deliveries they receive from catcher vessels in a day. Finally, at least one of the observers must be certified as a lead CDQ observer.

Observers are an increasingly important element of NMFS' monitoring program for AFA catcher/processor and AFA mothership sector pollock harvests. Prior to the AFA, NMFS monitored offshore pollock harvests using a blend of observer data and vessel WPRs. However, under the AFA with its statutory requirement that AFA catcher/processors carry two observers at all times and weigh their catch using NMFS-approved scales, NMFS is now relying only on observers and scale weights to provide inseason harvest data for the AFA catcher/processor sector and is no longer using vessel production data for quota management purposes. In addition, NMFS is reliant on observers to monitor catcher/processor groundfish sideboards as well as catcher vessel sideboards for catcher vessels delivering to catcher/processors and AFA motherships. Given this increased reliance on observers and scales, NMFS believes that the lead CDQ observer requirement is necessary to ensure that at least one of the observers aboard each AFA catcher/processor and AFA mothership has prior experience sampling on a trawl catcher/processor or mothership, is trained and experienced in the use of on-board scales, and is available to monitor the use and calibration of such scales. In addition, NMFS believes that the requirement for at least one lead CDQ observer is necessary to ensure that the compliance monitoring role of the observers aboard AFA catcher/processors can be successfully accomplished.

In order to monitor and enforce the newly imposed harvest limitations for unrestricted AFA catcher/processors and AFA motherships, observers with more experience and training must be aboard. NMFS-certified CDQ observers have that experience and training. CDQ observers receive special training in sampling for species composition in situations where bycatch may be limiting, in working with vessel personnel to resolve access to catch and other sampling problems, and in using flow scales for catch weight measurements. Monitoring by CDQ observers is essential for accurate catch accounting, given the fact that a fishery cooperative has been established and that the potential exists for fishing to be curtailed when either groundfish or prohibited species harvest limitations specified for unrestricted AFA catcher/processors have been reached. In consideration of the potential observer shortage that these new CDQ observer training requirements may cause for 2000, NMFS is phasing in the observer training requirements for AFA catcher/processors, AFA motherships, and AFA inshore processors. NMFS believes that at least one observer aboard every unrestricted AFA catcher/processor and AFA mothership must be a lead CDQ observer, and is making this requirement effective beginning January 20, 2000. NMFS anticipates implementing separate rulemaking that would require that the second observer on AFA catcher/processors and AFA motherships be a CDQ observer beginning in 2001. The reason for this delay in implementation is to provide observer contractors adequate time to train and deploy these additional CDQ observers.

A detailed discussion on the justification for additional observer training and certification criteria for individual vessel monitoring programs was provided both in the preamble to the proposed rule (62 FR 43866, August 15, 1997) and in the preamble to the final rule (63 FR 30381, June 4, 1998) implementing the Multispecies CDQ program.

In addition, under this emergency interim rule, the CDQ catcher/processor scale requirements and observer sampling station requirements are extended to unrestricted AFA catcher/processors and AFA motherships at all times such vessels are fishing for groundfish in the BSAI or processing groundfish harvested in the BSAI. Subparagraph 210(b)(6)(B) of the AFA requires that unrestricted AFA catcher/processors weigh their catch on an on-board scale approved by NMFS while harvesting groundfish in the BSAI. This emergency interim rule sets out these AFA scale requirements in regulation and extends them to AFA motherships because AFA motherships receive and process unsorted groundfish codends in a manner similar to AFA catcher/processors and thus, generate the same monitoring demands as unrestricted AFA catcher/processors. As a result, scale requirements and observer sampling station requirements for CDQ and unrestricted AFA catcher/processors and AFA motherships are now identical under this emergency interim rule.

Restricted AFA Catcher/Processors

Under this emergency interim rule, vessels receiving restricted AFA catcher/processor permits under paragraph 208(e)(21) of the AFA are required to meet the observer coverage, scale, and sampling station requirements outlined above during any fishing trip in which the vessel engages in directed fishing for BSAI pollock or receives deliveries of pollock from AFA catcher vessels engaged in directed fishing for BSAI pollock. This requirement is necessary because NMFS must monitor the 0.5 percent pollock harvest limit on restricted AFA catcher/processors and cannot adequately do so without scales and an observer present at all times. Because the AFA catcher/processor sideboard limits in other groundfish fisheries do not apply to restricted AFA catcher/processors, NMFS is not increasing the observer coverage requirements for restricted AFA catcher/processors when such vessels are engaged in directed fishing for groundfish other than pollock.

AFA Inshore Processors. Under this emergency interim rule, an AFA inshore processor is required to have a NMFS-certified observer for each consecutive 12-hour period in which the processor takes delivery of, or processes, groundfish harvested by a vessel engaged in directed fishing for BSAI pollock. An AFA inshore processor that takes delivery of or processes pollock during more than 12 consecutive hours in any calendar day is required to have two NMFS-certified observers available during that calendar day. Furthermore, under this emergency interim rule, observers working at AFA inshore processors may not be assigned to cover more than one processing plant during a calendar day. These new observer coverage requirements are necessary so that NMFS can adequately monitor cooperative pollock allocations at each AFA inshore processor. Prior to the AFA, the inshore pollock fishery was managed in the aggregate across the entire sector with NMFS issuing a single closure for the entire inshore sector upon the attainment of a seasonal allocation of pollock TAC. Under the inshore cooperative system set out in this emergency interim rule, each inshore processor and its affiliated cooperative will be operating on its own proprietary pollock allocation. Because NMFS will no longer manage the inshore sector in the aggregate, increased monitoring is required at each individual processor to ensure that cooperative allocations are not exceeded.

Due to potential shortages in CDQ observers during 2000, NMFS is proposing to phase in increased training and experience requirements for AFA inshore processor observers beginning in 2001. In subsequent rulemaking, NMFS intends to propose that all observers deployed at AFA inshore processors be required to be CDQ observers beginning January 1, 2001, to ensure that such observers are adequately trained in the use and monitoring of scales used to monitor pollock landings in AFA inshore processors. However, NMFS is delaying this requirement until 2001 to provide adequate opportunity for observer contractors to recruit and train sufficient numbers of CDQ observers for deployment in both AFA and CDQ fisheries.

AFA Catcher Vessels

This emergency interim rule makes no changes to existing observer coverage levels for AFA catcher vessels.

Catcher/Processor and Mothership Cooperative Restrictions

Subsection 210(a) of the AFA sets out public notice requirements for all BSAI pollock fishery cooperatives. To incorporate these requirements, this emergency interim rule stipulates that any contract implementing a fishery cooperative for the purpose of cooperatively managing directed fishing for pollock for harvest by the catcher/processor or mothership sectors, and any material modifications to any such contract, must be filed with the Council and with the Administrator, Alaska Region, NMFS (Regional Administrator) not less than 30 days prior to the start of fishing under the contract, together with a copy of a letter from a party to the contract requesting a business review letter on the fishery cooperative from the Department of Justice and any response to such request.

In addition, the contracts of all catcher vessel cooperatives delivering to catcher/processors or AFA motherships must include at a minimum: (1) A list of parties to the contract, (2) a list of all vessels and processors that will harvest and process pollock harvested under the cooperative, (3) the amount or percentage of pollock allocated to each party to the contract, and (4) penalties to prevent member vessels from exceeding in the aggregate, a harvest of any other BSAI or GOA groundfish species or species group that is equal to the percentage of each sideboard species that NMFS has attributed to the non-exempt vessels in the cooperative in the calculation of the sideboard amount, unless an inter-cooperative agreement provides for a different distribution of sideboard harvests between AFA catcher vessels. This penalty requirement was recommended by the Council at the request of catcher vessel owners so that the catcher vessel fleet has a mechanism to prevent an uncontrolled catcher vessel race for fish for sideboard species.

In addition, any pollock fishery cooperative governed by this emergency interim rule must submit annual preliminary and final written reports on fishing activity to the Council for public distribution. The preliminary report covering activities through November 1 must be submitted by December 1 of each year and the final report must be submitted by January 31 of the following year. The preliminary and final written reports must contain, at a minimum: (1) The cooperative's allocated amounts of pollock and sideboard species, and any sub-allocations of pollock and sideboard species made by the cooperative to individual vessels on a vessel-by-vessel basis; (2) the cooperative's actual retained and discarded catch of pollock, sideboard species, and PSC on an area-by-area and vessel-by-vessel basis; (3) a description of the method used by the cooperative to monitor fisheries in which cooperative vessels participated; and (4) a description of any actions taken by the cooperative to penalize vessels that exceed their allowed catch and bycatch in pollock and all sideboard fisheries.

Inshore Cooperative Restrictions

Under the AFA, a fundamental difference exists between the fishery cooperatives authorized to operate in the AFA catcher/processor and AFA mothership sectors, and the fishery cooperatives authorized to operate in the inshore sector. AFA catcher/processor and AFA mothership cooperatives operate at the sector level and do not require separate allocations of pollock from NMFS in order to operate. Inseason management of the AFA catcher/processor and AFA mothership sectors will continue to occur at the sector level regardless of the presence or absence of fishery cooperatives because the formation of cooperatives does not require NMFS to sub-allocate TAC.

However, the inshore catcher vessel cooperatives authorized by the AFA require an entirely different management structure. Subsection 210(b) of the AFA requires that NMFS make separate TAC allocations to inshore catcher vessel cooperatives that form around an AFA inshore processor and that meet certain restrictions. For this reason, inshore cooperatives require substantially greater regulatory and management infrastructure than AFA catcher/processor and AFA mothership sector cooperatives. This emergency interim rule implements the following inshore cooperative management measures under subsection 210(b) of the AFA.

Filing of Inshore Cooperative Contracts

Any inshore catcher vessel cooperative wishing to receive an allocation of pollock for an upcoming fishery year must apply for an AFA inshore cooperative fishing permit as detailed in the previous emergency interim rule to implement AFA permit requirements (65 FR 380, January 5, 2000). Inshore cooperatives also must comply with the contract requirements for AFA catcher/processor and AFA mothership sector cooperatives outlined here. In addition to applying for an inshore cooperative fishing permit, all inshore sector cooperatives must file their contract with the Council and with the Regional Administrator as detailed above.

Inshore cooperatives wishing to receive an allocation of pollock have several additional contract requirements. An inshore cooperative contract eligible for a pollock allocation must be signed by the owners of at least 80 percent of the qualified catcher vessels. In addition, inshore cooperative contracts must specify that the cooperative will deliver at least 90 percent of the pollock harvested in the directed pollock fishery to such shoreside processor during the year in which the fishery cooperative will be in effect and that such shoreside processor has agreed to process such pollock.

Qualified Catcher Vessels

Paragraph 210(b)(3) of the AFA defines a qualified catcher vessel as follows: “[A] catcher vessel shall be considered a “qualified catcher vessel” if, during the year prior to the year in which the fishery cooperative will be in effect, it delivered more pollock to the shoreside processor to which it will deliver pollock under the fishery cooperative * * * than to any other shoreside processor.” This paragraph of the AFA requires that a vessel wishing to join an inshore cooperative must have delivered more pollock to the cooperative's designated inshore processor than to any other inshore processor during the year prior to the year in which the cooperative fishing permit will be in effect. Consequently, catcher vessels wishing to join cooperatives must have made at least one delivery of pollock during the year prior to the year in which the cooperative fishing permit will be in effect.

For the purpose of this emergency interim rule, a catcher vessel is a qualified catcher vessel if: (1) It delivered more pollock harvested in the BSAI directed pollock fishery to the cooperative's designated AFA inshore processor than to any other shoreside processor or stationary floating processor during the year prior to the year in which the cooperative fishing permit will be in effect; and (2) the owner(s) of the catcher vessel in question has submitted a completed application for an AFA catcher vessel permit to the Regional Administrator that was received on or before December 31, 1999, and is not subsequently disapproved.

These two additional measures to the qualified catcher vessel definition in the statute are necessary to implement the inshore cooperative program in this emergency interim rule. The first additional measure, that qualifying harvests must be in the BSAI directed pollock fishery is necessary to prevent a vessel's incidental bycatch of pollock in other fisheries from inadvertently affecting its cooperative qualification. Counting pollock bycatch could create the unintended effect of restricting the ability of catcher vessels to deliver non-pollock groundfish to other markets. Because pollock is a common bycatch species in the Pacific cod fishery and other groundfish fisheries, AFA catcher vessels fishing for Pacific cod may land significant amounts of pollock as incidental bycatch that will be counted against the pollock incidental catch allowance and not the vessel's cooperative quota. The AFA makes no restrictions on either the delivery or processing of non-pollock groundfish species in the BSAI. Consequently, AFA catcher vessels fishing for Pacific cod are free to deliver their Pacific cod and associated incidental catch of pollock to any processor, not just to one of the eight AFA processors that are authorized to receive pollock harvested in the BSAI directed pollock fishery.

If an AFA vessel's cooperative qualification is based on all catch of pollock and not just pollock harvested in the directed fishery, then an AFA catcher vessel fishing for Pacific cod and delivering to a processor other than its AFA pollock processor could inadvertently disqualify itself from its cooperative of choice due to incidental pollock harvests in other fisheries. In fact, because Pacific cod processors other than the eight AFA inshore pollock processors also operate in the BSAI, an active AFA catcher vessel delivering Pacific cod to a non-AFA processor could inadvertently find itself ineligible to join any inshore cooperative because the processor to which it delivered more pollock than any other processor may be a non-AFA processor, absent this clarification that only pollock harvests in the BSAI directed pollock fishery count towards qualifying landings.

The second additional measure, that a “qualified catcher vessel” is a vessel for which the owner(s) has submitted a completed application for an AFA catcher vessel permit to the Regional Administrator that was received on or before December 31, 1999, and is not subsequently disapproved, is necessary for timing reasons. NMFS will not have a final official list of eligible catcher vessels until all owners of potentially eligible vessels have submitted applications to NMFS that have been subsequently approved or denied. Consequently, it is impossible for a cooperative to know by the inshore pollock cooperative fishing permit application deadline if it is composed of at least 80 percent of the eligible catcher vessels. For this reason, and for the purpose of this definition of “qualified catcher vessel” this emergency interim rule considers a vessel qualified if it has submitted a completed application to the Regional Administrator by the December 31 deadline for inshore pollock cooperative fishing permit applications.

Under this emergency interim rule, a vessel that did not engage in directed fishing for BSAI pollock during a fishing year will be ineligible to join any inshore cooperative for the subsequent fishing year. In addition, a catcher vessel that is a member of one cooperative during a fishing year will be unable, under most circumstances, to join a different cooperative for the subsequent fishing year. To change cooperatives, a catcher vessel must qualify to fish for the new cooperative, which could require that the vessel spend a year fishing in the “open access” fishery, unless the catcher vessel is able to deliver more pollock harvested in the BSAI directed pollock fishery to the new cooperative's designated processor than to the designated processor of the vessel's current cooperative. Because cooperative contracts formed under the AFA may provide for the delivery of up to 10 percent of a cooperative's allocation to processors other than the cooperative's designated processor, a vessel could change cooperatives from 1 year to the next if the vessel made use of this 10-percent provision to deliver more pollock to the designated processor of the new cooperative than to the designated processor of the vessel's existing cooperative.

Inshore Cooperative TAC Allocations. Under this emergency interim rule, an inshore pollock cooperative that applies for and receives an AFA inshore cooperative fishing permit will receive a sub-allocation of the annual inshore pollock TAC allocation. Subsection 210(b) of the AFA establishes an explicit formula for allocating pollock TAC to inshore cooperatives based on the percentage of inshore pollock harvested by member vessels during 1995, 1996, and 1997. However, the Council has recommended an alternative formula for allocating pollock TAC to inshore cooperatives that is contained in this emergency interim rule.

Paragraph 213(c)(3) of the AFA provides the Council with the authority to recommend for approval by the Secretary of Commerce (Secretary), an alternative formula for allocating BSAI pollock to inshore cooperatives. Paragraph 213(c)(3) states that “the Council may recommend and the Secretary may approve conservation and management measures in accordance with the Magnuson-Stevens Act * * * that supersede the criteria required in paragraph (1) of section 210(b) to be used by the Secretary to set the percentage allowed to be harvested by catcher vessels pursuant to a fishery cooperative under such paragraph.” After analysis and based on the recommendations of its Advisory Panel, the Council elected to recommend two changes to the inshore cooperative allocation formula set out in the AFA.

The first change recommended by the Council allows catcher vessels with inshore sector endorsements to receive inshore catch history credit for landings made to catcher/processors when the vessel made more than 499 mt of landings to catcher/processors during the 1995 through 1997 qualifying period. The Council recommended this change to assist the cooperatives in meeting the intent of paragraph 210(b)(4) of the AFA, which specifies that: “Any contract implementing a fishery cooperative under paragraph (1) which has been entered into by the owner of a qualified catcher vessel eligible under section 208(a) that harvested pollock for processing by catcher/processors or motherships in the directed pollock fishery during 1995, 1996, and 1997 shall, to the extent practicable, provide fair and equitable terms and conditions for the owner of such qualified catcher vessel.”

The Council chose the 499 mt threshold based on the recommendation of its Advisory Panel that vessels with sustained participation delivering to catcher/processors, but excluded from delivering to catcher/processors under subsection 208(b) of the AFA, should not be disadvantaged by the new management regime. The Council chose 499 mt as the threshold based on information presented in the EA/RIR, which indicated that 499 mt provided a good break point between vessels with significant history of delivering to catcher/processors and vessels that only had incidental deliveries to catcher/processors during the 1995 through 1997 qualifying period. The Council recommended that only deliveries to catcher/processors be considered for “compensation” and not deliveries made to the three motherships listed in subsection 208(d) of the AFA during the qualifying period, because any vessel with more than 250 mt of pollock deliveries to one of the three AFA motherships during the qualifying period will earn an endorsement to deliver pollock to AFA motherships under the AFA and therefore, has not “lost” any fishing privileges as a result of the AFA.

The second change recommended by the Council modifies the allocation formula so that the share of the BSAI pollock TAC that each catcher vessel brings into a cooperative would be based on average annual pollock landings in its best 2 out of 3 years from 1995 through 1997. These changes to the allocation formula were unanimously endorsed by industry representatives during public testimony at the June 1999 Council meeting and were seen as a more equitable method of allocating pollock catch because some vessels may have missed all or part of the inshore fishery in a given year due to unavoidable circumstances such as vessel breakdowns or lack of markets.

Under this emergency interim rule, NMFS will use the allocation formula recommended by the Council to make annual allocations of pollock to each inshore cooperative for each subarea of the BSAI; the BS subarea and the AI subarea. These two subareas are treated as separate pollock stocks under the FMP and receive separate TACs during the annual specification process. Because the AI subarea is currently closed to directed fishing for pollock, cooperative allocations of AI subarea pollock will not be made under this emergency interim rule. Each cooperative will receive an annual allocation of BS subarea pollock only.

Inshore Cooperative Fishing Restrictions

This emergency interim rule imposes a variety of requirements and management standards on inshore fishery cooperatives. First, only catcher vessels listed on the cooperative's AFA inshore cooperative fishing permit are permitted to harvest the cooperative's annual cooperative allocation. Second, all BSAI inshore pollock harvested by a member vessel while engaging in directed fishing for inshore pollock will accrue against the cooperative's annual pollock allocation regardless of whether the pollock was retained or discarded. Third, each inshore pollock cooperative is responsible for reporting to NMFS its BSAI pollock harvest on a daily basis according to the recordkeeping and reporting requirements described above. Fourth, each inshore pollock cooperative is prohibited from exceeding its annual allocation of BSAI pollock, and the owners and operators of all vessels listed on the cooperative fishing permit would be held jointly and severally liable for overages of the cooperative's annual allocation.

Inshore Cooperative Designated Representative

Each inshore catcher vessel cooperative is required to appoint a designated representative. The designated representative will act as the point of contact for all matters related to the cooperative's participation in the AFA fishery, and will be responsible for completing and submitting the catcher vessel cooperative pollock catch report. The owners of the member catcher vessels are jointly and severably responsible for compliance and insuring that the designated representative complies with the recordkeeping and reporting requirements contained in this emergency interim rule.

Inshore Cooperative Agent for Service of Process

Each inshore catcher vessel cooperative is required to appoint an agent to serve on behalf of the cooperative. The appointed agent for service of process may be the owner of a vessel listed as a member of the cooperative or a registered agent. If at any time the cooperative's appointed agent for service of process becomes unable to accept service, then the cooperative members are required to notify the Regional Administrator of a substitute appointed agent. Service on or notice to the cooperative's appointed agent constitutes service on or notice to all members of the cooperative.

NMFS may, at its option, attempt to serve every member of the cooperative individually in addition to service on the cooperative's appointed agent. However, failure to achieve service on the individual member will not affect the validity of constructive notice if service is accomplished on the inshore pollock cooperative's appointed agent for service of process.

Inseason Management of Inshore Cooperative Fishing

Under this emergency interim rule, NMFS will manage the allocations to inshore cooperative and vessels not participating in a cooperative as two separate inshore fisheries. The various inshore cooperatives will be managed as a group for the purpose of making TAC apportionments by season and area and for the purpose of issuing directed fishing closures. NMFS will continue to announce directed fishing closures for each inshore fishery when the Regional Administrator determines that the TAC allocated to that fishery for a particular season and area has been reached. Under this system, fishing by inshore cooperatives will be unaffected by fishing by inshore catcher vessels that are not participating in a cooperative. However, the aggregate harvests by all inshore cooperatives will determine the inshore cooperative directed fishing closures for each season and area.

Due to the complexities of implementing this management program within the short time frame required by the AFA, NMFS is not implementing a system under which each individual inshore cooperative would receive allocations of pollock subdivided by each management area and season. Under this emergency interim rule, each inshore cooperative is given the opportunity to harvest its entire annual allocation of BS subarea pollock, but will not receive a specific guarantee of harvest levels for any particular season or management area within the BS subarea. NMFS encourages cooperatives wishing to further rationalize their annual operations to work with each other to prevent the activities of one cooperative from preempting the harvest plans of another cooperative within a specific season or area.

Inshore catcher vessel cooperatives also are required to complete and submit annual preliminary and final reports of fishing activity to the Council. The submission deadlines and required content are the same as the report requirements for AFA catcher/processor and AFA mothership sector cooperatives as described earlier.

Catcher/Processor Groundfish Sideboards

The AFA establishes harvest restrictions or “sideboards” on the participation of unrestricted AFA catcher/processors in other BSAI groundfish fisheries and completely prohibits AFA catcher/processors fishing in the GOA. These harvest limits apply only to unrestricted AFA catcher/processors listed in paragraphs 208(e)(1) through (20) of the AFA and are not extended to restricted AFA catcher/processors that qualify to fish for pollock under paragraph 208(e)(21) of the AFA. The language establishing catcher/processor harvest limits is set out in paragraphs 211(b)(1) and (2) of the AFA as follows:

(b) Catcher/Processor Restrictions.—

(1) General.—The restrictions in this sub-section shall take effect on January 1, 1999 and shall remain in effect thereafter except that they may be superceded (with the exception of paragraph (4)) by conservation and management measures recommended after the date of the enactment of this Act by the North Pacific Council and approved by the Secretary in accordance with the Magnuson-Stevens Act.

(2) Bering Sea Fishing.—The catcher/processors eligible under paragraphs (1) through (20) of section 208(e) are hereby prohibited from, in the aggregate—

(A) Exceeding the percentage of the harvest available in the offshore component of any Bering Sea and Aleutian Islands groundfish fishery (other than the pollock fishery) that is equivalent to the total harvest by such catcher/processors and the catcher/processors listed in section 209 in the fishery in 1995, 1996, and 1997 relative to the total amount available to be harvested by the offshore component in the fishery in 1995, 1996, and 1997;

(B) Exceeding the percentage of the prohibited species available in the offshore component of any Bering Sea and Aleutian Islands groundfish fishery (other than the pollock fishery) that is equivalent to the total of the prohibited species harvested by such catcher/processors and the catcher/processors listed in section 209 in the fishery in 1995, 1996, and 1997 relative to the total amount of prohibited species available to be harvested by the offshore component in the fishery in 1995, 1996, and 1997; and

(C) Fishing for Atka mackerel in the eastern area of the Bering Sea and Aleutian Islands and from exceeding the following percentages of the directed harvest available in the Bering Sea and Aleutian Islands Atka mackerel fishery—

(i) 11.5 percent in the central area; and

(ii) 20 percent in the western area.

For the 1999 fishing year, NMFS implemented these provisions by publishing the harvest limits in the 1999 BSAI harvest specifications and prohibiting unrestricted AFA catcher/processors from engaging in directed fishing for a groundfish species or species group when NMFS determined that the sideboard limit was likely to be met or exceeded.

At its June 1999 meeting, the Council recommended that catcher/processor harvest limits for BSAI groundfish other than Atka mackerel be based on the 1995 through 1997 retained catch of such groundfish species by the 20 unrestricted AFA catcher/processors listed in paragraphs 208(e)(1) through (20) of the AFA and the nine ineligible catcher/processors listed in section 209 of the AFA, except for Pacific cod which would be based on 1997 retained catch only. The Council recommended that only 1997 catch history be used to determine Pacific cod harvest limits because 1997 was the first year in which the BSAI Pacific cod trawl gear allocation was split between catcher/processors and catcher vessels. Prior to 1997 the BSAI Pacific cod TAC was not allocated between catcher/processors and catcher vessels, meaning that pre-1997 Pacific cod TACs and harvest percentages by AFA catcher/processors are not directly comparable to present day Pacific cod allocations. The Council also recommended that only the years 1996 and 1997 be used to calculate Pacific ocean perch (POP) sideboard amounts because 1996 was the first year in which the POP TAC was divided between the BS subarea and AI subarea.

However, since the Council made this recommendation in June 1999, NMFS has received comments from the public suggesting that the public was not provided adequate notice or opportunity to comment on this recommendation prior to the Council's June, 1999, vote on this issue, and that NMFS would benefit from a more deliberative rulemaking process that allowed for public review and comment on the Council's recommended approach. Adequate opportunity for public review and comment is especially important given that the Council's June discussion and action on catcher/processor sideboards was based on an alterative not addressed in the draft analysis available to the public prior to Council action. For this reason, NMFS has decided to calculate catcher/processor groundfish sideboards amounts for 2000 under this emergency interim rule in the same manner those sideboards were calculated in 1999.

As a consequence, all catcher/processor harvest sideboards other than Atka mackerel will be based on the total catch of each groundfish species by the 20 unrestricted AFA catcher/processors listed in paragraphs 208(e)(1) through (20) of the AFA and the nine ineligible catcher/processors listed in section 209 of the AFA when such vessels were engaged in groundfish fisheries other than pollock. In the future proposed rule to implement the AFA under Amendments 61/61/13/8, NMFS intends to incorporate the Council's recommendation to base these amounts on historical retained catch only, so that the public has opportunity to review and comment on these recommendations before they are approved or disapproved by NMFS as part of the FMP amendment review process.

Under this emergency interim rule, the Atka mackerel sideboard percentages laid out in subparagraph 211(b)(1)(C) of the AFA are carried forward unchanged. The AFA catcher/processor sideboard limit for Atka mackerel is zero percent of the BS subarea and Eastern Aleutians annual TAC, 11.5 percent of the Central Aleutians annual TAC, and 20 percent of the Western Aleutians annual TAC.

The Council did not recommend any changes to the formula for establishing prohibited species catch (PSC) bycatch limits set out in subparagraph 211(b)(2)(B) of the AFA. However, the Council recommended that NMFS not implement catcher/processor sideboards for salmon and herring because extensive management measures are already in place to limit bycatch of those PSC species in the BSAI pollock fishery and incidental bycatch of salmon or herring is primarily a concern in the pollock fishery and not in the directed fisheries for other groundfish species.

Management of Catcher/Processor Sideboards

This emergency interim rule amends the BSAI interim groundfish harvest specifications to establish catcher/processor sideboard limits for groundfish and PSC species. These sideboard limits will be managed through directed fishing closures. Under the procedures established in this emergency interim rule, NMFS will evaluate each groundfish harvest limit specified according to the formula outlined previously and will authorize directed fishing by unrestricted AFA catcher/processors only for those BSAI groundfish species for which the harvest limit is large enough to support a directed fishery by unrestricted AFA catcher/processors. Groundfish species for which the catcher/processor harvest limit is too small to support a directed fishery will be closed to directed fishing by unrestricted AFA catcher/processors at the beginning of the fishing year. Using this approach, NMFS will assure that unrestricted AFA catcher/processors will not participate in other directed fisheries at levels that would exceed their level of participation from 1995 through 1997.

Catcher Vessel Sideboards

In addition to catcher/processor harvest restrictions, this emergency interim rule establishes catcher vessel harvest limits for BSAI crab, BSAI and GOA groundfish, and the Alaska scallop fishery. Paragraph 211(c)(1)(A) of the AFA states: “By not later than July 1, 1999, the North Pacific Council shall recommend for approval by the Secretary conservation and management measures to * * * prevent the catcher vessels eligible under subsections (a), (b), and (c) of section 208 from exceeding in the aggregate the traditional harvest levels of such vessels in other fisheries under the authority of the North Pacific Council as a result of fishery cooperatives in the directed pollock fishery.” The Council met this requirement by taking final action on a comprehensive suite of catcher vessel sideboard measures at its June 1999 meeting and forwarding those recommendations to NMFS.

Because the BSAI king and Tanner crab fisheries and the Alaska scallop fishery are managed by the State under Federal oversight, the Council recommended that crab and scallop catcher vessel sideboards be implemented jointly through State and Federal actions. Under Amendment 4 to the scallop FMP, the Council has developed a license limitation program for the Alaska scallop fishery under which only one AFA catcher vessel would be eligible to receive a scallop license. Amendment 4 is currently under review by NMFS and, if approved, would take effect for the 2000 scallop season. In addition, under Amendment 8 to the FMP for the scallop fishery off Alaska, the Council has recommended that the State implement an AFA catcher vessel scallop sideboard limit equal to the percentage of the scallop guideline harvest level that was harvested by AFA catcher vessels in 1997. Therefore, NMFS has determined that additional scallop sideboard measures are not required in this emergency interim rule.

With respect to BSAI crab fisheries, NMFS is limiting participation by AFA catcher vessels through AFA catcher vessel permit endorsements. Only AFA catcher vessels with a demonstrated history in a particular crab fishery may continue participating in that fishery. A catcher vessel that lacks the appropriate crab sideboard endorsements is prohibited from retaining BSAI king and Tanner crab. These crab sideboard endorsements have been implemented under the emergency interim rule to implement AFA permit requirements (65 FR 380, January 5, 2000). In addition to entry restrictions, the Council also recommended that the State implement AFA catcher vessel harvest limits for the Bristol Bay red king crab and Bairdi Tanner crab fisheries under Amendment 14 to the FMP for the BSAI king and Tanner crab fisheries. With respect to Bristol Bay red king crab fishery, the Council recommended an AFA catcher vessel sideboard limit equal to the percentage of Bristol Bay red king crab harvested by AFA catcher vessels from 1991 through 1997, excluding 1994 and 1995 when the fishery was closed. For the Bairdi Tanner crab fishery, the Council recommended that AFA catcher vessels be excluded from the fishery until the Council's Bairdi rebuilding goal is reached, and then be limited to their historic catch percentage from 1995-1996. The State intends to implement these recommended crab sideboard limits through State regulations.

With respect to BSAI and GOA groundfish fisheries, the Council recommended that AFA catcher vessel sideboards be established based on landed catch and be managed through directed fishing closures in the same manner as AFA catcher/processor sideboards. A significant difference between catcher/processor and catcher vessel groundfish sideboards is that the Council recommended that certain AFA catcher vessels be exempt from some BSAI and GOA groundfish sideboards while no exemptions were recommended for unrestricted AFA catcher/processors. This emergency interim rule contains the Council's recommended BSAI and GOA groundfish and PSC sideboards for AFA catcher vessels, which are summarized here

Groundfish Sideboards in the BSAI

Under this emergency interim rule, groundfish sideboards will be established for all BSAI groundfish species using a formula based on the retained catch of AFA catcher vessels of each sideboard species from 1995 through 1997 (1997 only for BSAI Pacific cod) divided by the available TAC for that species over the same period. AFA catcher vessel sideboards will apply to all AFA catcher vessels regardless of sector and regardless of participation in a cooperative except that catcher vessels less than 125 ft (38.1 meters (m)) LOA whose annual BSAI pollock landings averaged less than 1700 mt from 1995 through 1997 (i.e., landed less than 5,100 mt of pollock over the 3-year period) and that made 30 or more landings of BSAI Pacific cod during that time period are exempt from sideboard closures for BSAI Pacific cod and their historic catch is not counted towards the sideboard. In addition, AFA catcher vessels with mothership endorsements are exempt from Pacific cod sideboard closures after March 1 of each year.

In recommending these exemptions for BSAI Pacific cod, the Council noted that many of the AFA catcher vessels with relatively low catch histories of BSAI pollock have traditionally targeted Pacific cod rather than pollock during the January through March BSAI Pacific cod fishery. The Council believed that restricting such vessels in the Pacific cod fishery would be inequitable given their disproportionate history of participation in the Pacific cod fishery and because their historic dedication to Pacific cod fishing in the winter months accounts for their lower catch histories of BSAI pollock during the AFA qualifying years. With respect to the March 1 exemption for AFA catcher vessels with mothership endorsements, the Council made this recommendation for several reasons. In most years, the BSAI Pacific cod fishery is largely concluded by March 1 and fishing is often less productive in terms of catch per unit effort after that date. Given that as few as two non-AFA catcher vessels have fished for BSAI Pacific cod in recent years, the Council believed that some additional vessels might be needed after this date to completely harvest the TAC so that processors are not faced with a slow trickle of Pacific cod deliveries that are uneconomical to process. The Council recommended that AFA catcher vessels with mothership endorsements be allowed to re-enter the BSAI Pacific cod fishery after March 1 because the mothership sector received a relatively smaller pollock quota under the AFA and mothership catcher vessels are more likely to be finished with their pollock operations by that date.

Catcher vessel PSC sideboards for BSAI groundfish fisheries will be managed in the same manner as catcher/processor PSC sideboards, however the sideboard amounts would be calculated differently. Because individual vessel PSC catch histories are not available for AFA catcher vessels, PSC sideboard amounts will be pro-rated based on percentage of groundfish catch in each BSAI groundfish fishery.

Groundfish Sideboards in the GOA

Catcher vessel sideboards for GOA groundfish fisheries will be established and managed in the same manner as the catcher vessel sideboards in the BSAI groundfish fisheries except that catcher vessels less than 125 ft (38.1 m) LOA whose annual BSAI pollock landings averaged less than 1700 mt from 1995 through 1997 (i.e., landed less than 5,100 mt of pollock over the 3-year period) and that made 40 or more GOA groundfish landings over the same period are exempt from sideboard closures for GOA groundfish fisheries. The catch histories of the exempt vessels would not be counted towards the sideboard amounts for non-exempt vessels. As with the BSAI Pacific cod fishery, the Council noted that many AFA catcher vessels with relatively low catch histories in BSAI pollock have traditionally participated in GOA groundfish fisheries. Indeed, many of these vessels are based in Kodiak and other GOA ports and have historically concentrated their fishing effort in GOA fisheries. The Council believed that it would be inequitable to limit such vessels from participating in GOA fisheries when they have historically fished in the GOA and may have relatively low pollock catch histories in the BSAI during the AFA qualifying years due to their history of fishing primarily in the GOA.

The Council specifically limited both the BSAI Pacific cod and GOA groundfish sideboard exemptions to vessels with a significant history of participation in those fisheries and indicated that it believed such exemptions were consistent with the catcher vessel sideboard provisions at paragraph 211(c)(1) of the AFA, which require that:

* * * By not later than July 1, 1999, the North Pacific Council shall recommend for approval by the Secretary conservation and management measures to—

(A) Prevent the catcher vessels eligible under subsections (a), (b), and (c) of section 208 from exceeding in the aggregate the traditional harvest levels of such vessels in other fisheries under the authority of the North Pacific Council as a result of fishery cooperatives in the directed pollock fishery * * *

The EA/RIR prepared for this action estimates the potential number of exempt vessels to be 10 catcher vessels in the BSAI and 20 catcher vessels in the GOA. The Council noted that because these exempt vessels traditionally have participated at high levels in the BSAI Pacific cod and GOA groundfish fisheries, such exemptions were not likely to cause the aggregate harvest levels of all AFA catcher vessels to exceed traditional levels in these fisheries. However, the Council noted that even if fishing in the BSAI Pacific cod and GOA groundfish fisheries by exempt vessels does cause the aggregate harvest of all AFA catcher vessels to exceed historic levels in other groundfish fisheries, the exemptions are warranted and within the authority of the Council to recommend under paragraph 213(c)(1) of the AFA, which states:

The North Pacific Council may recommend and the Secretary may approve conservation and management measures in accordance with the Magnuson-Stevens Act—

(1) That supersede the provisions of this title, except for sections 206 and 208, for conservation purposes or to mitigate adverse effects in fisheries or on owners of fewer than three vessels in the directed pollock fishery caused by this title or fishery cooperatives in the directed pollock fishery, provided such measures take into account all factors affecting the fisheries and are imposed fairly and equitably to the extent practicable among and within the sectors in the directed pollock fishery.

The Council believed that these two exemptions are indeed warranted to mitigate adverse economic effects as described above on owners of fewer than three vessels in the directed pollock fishery given that the exempt vessels are primarily owned by independent fishermen who own fewer than three vessels in the directed pollock fishery.

AFA Inshore Processor and AFA Mothership Crab Processing Sideboards

Subparagraph 211(c)(2)(A) of the AFA establishes limits on crab processing for AFA inshore processors and AFA motherships that receive pollock harvested by a fishery cooperative:

Effective January 1, 2000, the owners of the motherships eligible under section 208(d) and the shoreside processors eligible under section 208(f) that receive pollock from the directed pollock fishery under a fishery cooperative are hereby prohibited from processing, in the aggregate for each calendar year, more than the percentage of the total catch of each species of crab in directed fisheries under the jurisdiction of the North Pacific Council than facilities operated by such owners processed of each such species in the aggregate, on average, in 1995, 1996, 1997. For the purposes of this subparagraph, the term “facilities” means any processing plant, catcher/ processor, mothership, floating processor, or any other operation that processes fish. Any entity in which 10 percent or more of the interest is owned or controlled by another individual or entity shall be considered to be the same entity as the other individual or entity for the purposes of this subparagraph.

At its October 1999 meeting, the Council recommended that NMFS implement these crab processing sideboards through processing caps that would be managed in the aggregate through inseason crab processing closures for AFA entities. However, NMFS does not currently have a crab monitoring or management program in place that would provide crab processing data on a sufficiently timely basis to issue inseason crab processing closures to AFA entities. Under the BSAI king and Tanner crab FMP, the primary inseason management responsibility for crab fisheries is delegated to the State and NMFS is not involved with day-to-day management of BSAI crab fisheries. NMFS intends to work closely with the Alaska Department of Fish and Game to develop a management program that could implement the aggregate crab processing sideboards recommended by the Council. However, due to the complexities of developing such an inseason management program, NMFS believes that such a program will not likely be implemented prior to mid-2000 at the earliest.

To meet the January 2000 deadline for crab processing sideboards that is set out in subparagraph 211(c)(2)(A) of the AFA, NMFS is implementing a crab processing sideboard management program on an entity-by-entity basis in this emergency interim rule. Under the interim program set out in this emergency interim rule, all of the individuals, corporations, or other entities that directly or indirectly own or control a 10-percent or greater interest in the AFA mothership or inshore processor will be considered a single AFA inshore or mothership entity and will have crab processing caps issued to the entity based on its collective 1995 through 1997 crab processing activity. To implement this interim program, NMFS is requiring that the owners of an AFA mothership or AFA inshore processor wishing to process pollock harvested by a cooperative identify on their permit applications all individuals, corporations, or other entities that directly or indirectly own or control a 10-percent or greater interest in the AFA mothership and/or inshore processor (collectively the AFA inshore or mothership entity), and any other crab processors in which such entities have a 10-percent or greater interest (the associated AFA crab facilities). For each BSAI king and Tanner crab fishery, NMFS will calculate the average percentage of the total crab harvest processed by the associated AFA crab facilities and issue entity-wide crab processing caps for each crab fishery to each AFA inshore or mothership entity on its AFA mothership or AFA inshore processor permit. Each individual, corporation, or other entity comprising an AFA inshore or mothership entity will be responsible for insuring that the AFA crab processing facilities associated with the AFA inshore or mothership entity do not exceed the entity's caps. The individuals, corporations and other entities comprising the AFA inshore or mothership entity will be held jointly and severably liable for any overage.

These crab processing caps will apply to all crab processed by the associated AFA crab processing facilities including any “custom processing” activity. Custom processing refers to a contractual relationship in which one processing facility processes crab on behalf of another processor. Under this emergency interim rule, custom processing of crab is not prohibited, but any custom processing of crab done under contract with an AFA crab processor will be counted against the associated AFA inshore or mothership entity's crab processing cap.

Excessive Shares Harvesting Limit

Paragraph 210(e)(1) of the AFA establishes an excessive harvesting share cap of 17.5 percent of the directed pollock fishery as follows:

Harvesting.—No particular individual, corporation, or other entity may harvest, through a fishery cooperative or otherwise, a total of more than 17.5 percent of the pollock available to be harvested in the directed pollock fishery.

To implement this provision of the AFA, this emergency interim rule requires that NMFS publish in the proposed, interim, and final specifications, the tonnage amount that equates to 17.5 percent of the pollock available to be harvested in the directed pollock fishery.

Revised 2000 Interim Harvest Specifications

The 2000 interim harvest specifications for BSAI groundfish published on January 3, 2000 (65 FR 60), must be revised to incorporate the new inshore pollock allocations and sideboards implemented by this emergency interim rule. Therefore, in accordance with the provisions of this emergency interim rule, the following additions are made to the 2000 interim specifications for groundfish in the BSAI and GOA. These additional interim specifications are based on the Council's final 2000 TAC recommendations. If NMFS approves these recommendations, the interim pollock allocation and sideboards implemented by this emergency interim rule will be effective for the duration of this action and will not be superseded by the final 2000 harvest specifications. Final 2000 AFA pollock allocations and sideboard limits will be made in conjunction with the final rulemaking that will extend or supersede this emergency interim rule.

BS Subarea Inshore Pollock Allocations

Under § 679.20(a)(5)(i)(D) of this emergency interim rule, NMFS must subdivide the inshore allocation into allocations for cooperatives and vessels not fishing in a cooperative (i.e., the open access sector). In addition, under § 679.22(a)(11)(iv) NMFS must establish harvest limits inside the Steller sea lion conservation area (SCA) and provide 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/B season. Accordingly, the 2000 BSAI interim specifications for groundfish (65 FR 60, January 3, 2000) are amended by Table 1, which subdivides the BS subarea inshore pollock allocation into allocations for vessels fishing in a cooperative and for vessels not participating in a cooperative 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 sector 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 1.

Under the emergency interim rule to establish AFA permit requirements (65 FR 380, January 5, 2000), NMFS set out procedures for AFA inshore catcher vessel pollock cooperatives to apply for and receive cooperative fishing permits and inshore pollock allocations. NMFS received applications from seven inshore catcher vessel cooperatives by the application deadline of December 31, 1999. Table 2 amends the 2000 BSAI interim specifications for groundfish (65 FR 60, January 3, 2000) by making BS subarea interim allocations to the seven inshore catcher vessel pollock cooperatives that have been approved and permitted by NMFS for the 2000 fishing year. Final 2000 allocations of pollock TAC to each cooperative will be made in rulemaking that supersedes this emergency interim rule. Interim allocations for cooperatives and vessels not participating in cooperatives are not made for the AI subarea because the AI subarea has been closed to directed fishing for pollock under the emergency interim rule to implement Steller sea lion RPAs.

Interim 2000 Unrestricted AFA Catcher/Processor Sideboards

Paragraph 679.63(a) of this emergency interim rule establishes a formula for setting AFA catcher/processor sideboard limits for non-pollock groundfish and PSC in the BSAI. The basis for these sideboard amounts are described in the preceding preamble text. The 2000 interim catcher/processor sideboards are set out in Table 3 below.

All non-pollock groundfish that is harvested by unrestricted AFA catcher/processors, whether as targeted catch or bycatch, will be deducted from the harvest limits in Table 3. However, non-pollock groundfish that is delivered to listed catcher/processors by catcher vessels will not be deducted from the 2000 harvest limits for the listed catcher/processors.

Paragraph 679.63(a)(2) of this emergency interim rule establishes a formula for PSC sideboards for unrestricted AFA catcher/processors. These amounts are equivalent to the percentage of prohibited species bycatch limits harvested 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. Prohibited species amounts harvested by these catcher/processors in BSAI non-pollock groundfish fisheries from 1995 through 1997 are shown in Table 4. These data were used to calculate the relative amount of prohibited species catch limits harvested by pollock catcher/processors, which was then used to determine the prohibited species harvest limits for unrestricted AFA catcher/processors in the 2000 non-pollock groundfish fisheries.

PSC that is caught by unrestricted AFA catcher/processors participating in any non-pollock groundfish fishery listed in Table 3 shall accrue against the 2000 PSC limits for the listed catcher/processors. Paragraph 679.21(e)(3)(v) of this emergency interim rule provides authority to close directed fishing for non-pollock groundfish for unrestricted AFA catcher/processors once a 2000 PSC limitation listed in Table 5 is reached.

Crab or halibut PSC that is caught by unrestricted 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 § 679.21(e).

Interim 2000 AFA Catcher Vessel Sideboards

Paragraph 679.63(b) of this emergency interim rule establishes a formula for setting AFA catcher vessel groundfish and PSC sideboard amounts for the BSAI and GOA. The bases for these sideboard amounts are described in the preceding preamble text. The 2000 interim AFA catcher vessel sideboards amounts are shown in Tables 5 and 6.

All harvests of groundfish sideboard species made by non-exempt AFA catcher vessels, whether as targeted catch or bycatch, will be deducted from the sideboard limits listed in Tables 5 and 6.

Paragraph 679.63(b) of this emergency interim rule establishes a formula for PSC sideboards for AFA catcher vessels. The AFA catcher vessel PSC bycatch limit for halibut in the BSAI and GOA, and each crab species in the BSAI for which a trawl bycatch limit has been established is a percentage 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. These amounts are listed in Tables 7 and 8.

Halibut and crab PSC that is caught by AFA catcher vessels participating in any non-pollock groundfish fishery listed in Tables 5 or 6 will accrue against the 2000 PSC limits for the AFA catcher vessels. Paragraphs 679.21(d)(8) and (e)(3)(v) of this emergency interim rule provide authority to close directed fishing for non-pollock groundfish for AFA catcher vessels once a 2000 PSC limitation listed in Table 7 for the GOA or Table 8 for the BSAI 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.

2000 Sideboard Directed Fishing Closures

Catcher/Processor Sideboard Closures

The Regional Administrator has determined that many of the AFA catcher/processor sideboard amounts listed in Table 3 are necessary as incidental catch to support other anticipated groundfish fisheries for the 2000 fishing year. In accordance with § 679.20(d)(1)(iv) of this emergency interim rule, the Regional Administrator establishes these amounts 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 unrestricted AFA catcher/processors for the species in the specified areas set out in Table 9.

AFA Catcher Vessel Sideboard Closures

The Regional Administrator has determined that many of the AFA catcher vessel sideboard amounts listed in Table 5 and 6 are necessary as incidental catch to support other anticipated groundfish fisheries for the 2000 fishing year. In accordance with § 679.20(d)(1)(iv) of this emergency interim rule, the Regional Administrator establishes these amounts 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 non-exempt AFA catcher vessels for the species in the specified areas set out in Table 10.

Classification

The Assistant Administrator for Fisheries, NOAA, has determined that this rule is necessary to respond to an emergency situation and that it is consistent with the Magnuson-Stevens Act, AFA, and other applicable laws.

Pursuant to the National Environmental Policy Act an EA/RIR was developed for this action. It was determined that this action would not have a significant impact on the human environment. The EA/RIR may be obtained in hard copy from the Alaska Regional Office (see ADDRESSES) or via the internet at www.fakr.noaa.gov. NMFS is specifically requesting comments on the EA/RIR. NMFS will respond to those comments in the proposed rule to implement Amendments 61/61/13/8.

This emergency interim rule has been determined to be significant for the purposes of Executive Order 12866.

NMFS finds that there is good cause to waive the requirement to provide prior notice and an opportunity for public comment pursuant to authority set forth at 5 U.S.C. 553(b)(B), as such provisions would be contrary to the public interest. This emergency action is necessary to meet the AFA requirement to provide inshore pollock cooperatives with allocations of pollock for the 2000 fishing year. Inshore sector cooperatives will provide the inshore industry with the ability to more effectively meet the temporal and spatial dispersion objectives of NMFS' Steller sea lion conservation measures that became effective January 20, 2000, and published January 25, 2000. As such, if this rule is not made effective on January 20, 2000, or soon thereafter, the inshore sector of the BSAI pollock industry will be denied the opportunity to fish under cooperatives during the 2000 fishing year. Therefore, this sector of the industry would lose an economically valuable method of meeting the temporal and spatial dispersion objectives of NMFS' Steller sea lion conservation measures. Likewise, pursuant to authority set forth at 5 U.S.C. 553(d)(3), the need to ensure that this rule is in place as soon as possible because the pollock fishing season began on January 20, 2000, constitutes good cause to waive the 30-day delay in effective date otherwise required by 5 U.S.C. 553(d).

Because rule prior notice and opportunity for public comment are not required for this emergency interim rule by 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are inappropriate.

Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the PRA unless that collection of information displays a currently valid OMB control number.

This rule contains collection-of-information requirements subject to review and approval by OMB under the Paperwork Reduction Act (PRA). These regulations have been submitted to OMB for approval. Public reporting burden for these collections of information are estimated to average as follows: For a manager to complete the shoreside processor electronic logbook and print reports is 30 minutes; for a manager to electronically submit the shoreside processor electronic logbook report is 5 minutes; for an operator to complete the at-sea scale inspection request is 2 minutes; for an operator to retain the at-sea scale inspection request is 1 minute; for an operator to complete the at-sea scale test report is 45 minutes; for an operator to print the record of haul weight is 3 minutes; for an operator to retain a scale audit trail print-out is 3 minutes; for an operator to complete the observer sampling station inspection request is 2 minutes; for a cooperative representative to complete a catcher vessel cooperative pollock catch report is 5 minutes; for a cooperative representative to submit a copy of the cooperative contract is 5 minutes; for a cooperative representative to complete an annual written preliminary report from each AFA cooperative is 8 hours; and for a cooperative representative to complete a annual written report from each AFA cooperative is 8 hours. These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Public comment is sought: Regarding whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and the clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques, or other forms of information technology. Send comments on these or any other aspects of the collection of information to NMFS and OMB (see ADDRESSES).

The President has directed Federal agencies to use plain language when communicating with the public, through regulations or otherwise. Therefore, NMFS seeks public comment on any ambiguity or unnecessary complexity arising from the language used in this emergency interim rule.

List of Subjects in 50 CFR Part 679

• Alaska
• Fisheries
• Recordkeeping and reporting requirements

For the reasons set forth in the preamble, 50 CFR part 679 is amended as follows:

PART 679—FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

1. The authority citation for 50 CFR part 679 continues to read as follows:

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

2. In § 679.2, definitions of “Appointed agent for service of process,” and “Designated cooperative representative” are added in alphabetical order, and a new paragraph (4) is added to the existing definition of “Directed fishing” to read as follows:

3. In § 679.5, paragraphs (a)(4)(iv), (f)(3), (f)(4), (i)(1)(iii), and (o) are added to read as follows:

4. In § 679.7, a new paragraph (k) is added to read as follows:

5. In § 679.20, paragraphs (a)(5)(i)(D) and (d)(1)(iv) are added to read as follows:

6. In § 679.21, paragraphs (d)(8) and (e)(3)(v) are added to read as follows:

7. In § 679.50, paragraphs (c)(5) and (d)(5) are added to read as follows:

8. In 50 CFR part 679, a new Subpart F—American Fisheries Act Management Measures (applicable through July 20, 2000) is added to read as follows:

Subpart F—[Amended]