Fisheries of the Exclusive Economic Zone off Alaska; Bering Sea and Aleutian Islands Management Area; 2005 Interim Harvest Specifications for Groundfish

AGENCY:

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

ACTION:

Temporary rule; interim specifications.

SUMMARY:

NMFS issues 2005 interim total allowable catch (TAC) amounts for each category of groundfish, Community Development Quota (CDQ) reserve amounts, American Fisheries Act (AFA) pollock allocations and sideboard limits, and prohibited species catch (PSC) allowances and prohibited species quota (PSQ) reserves for the groundfish fisheries of the Bering Sea and Aleutian Islands management area (BSAI). The intended effect is to conserve and manage the groundfish resources in the BSAI.

DATES:

The interim harvest specifications are effective from 0001 hours, Alaska local time (A.l.t.), January 1, 2005, until the effective date of the 2005 final harvest specifications for BSAI groundfish, which will be published in the Federal Register.

ADDRESSES:

Copies of the Environmental Assessment (EA) prepared for this action are available from the NMFS Alaska Region Web site at http://www.fakr.noaa.gov. The final 2003 Stock Assessment and Fishery Evaluation (SAFE) report, dated November 2003, and the final 2004 SAFE report, dated November 2004, are available from the North Pacific Fishery Management Council, West 4th Avenue, Suite 306, Anchorage, AK 99510-2252, telephone (907) 271-2809, or from its Web site at http://www.fakr.noaa.gov/npfmc.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

Background

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

The Council met in October 2004 to review scientific information concerning groundfish stocks, including the 2003 SAFE report and the EA (see ADDRESSES), and to recommend 2005 proposed harvest specifications. The Council recommended a proposed total acceptable biological catch (ABC) of 3,345,963 metric tons (mt) and a proposed total TAC of 2,000,000 mt for the 2005 fishing year. The proposed TAC amounts for each species were based on the best available biological and socioeconomic information.

Under § 679.20(c)(1), NMFS published in the Federal Register the 2005 proposed harvest specifications for BSAI groundfish (December 8, 2004, 69 FR 70974). That document contains a detailed discussion of the 2005 proposed TACs, initial TACs (ITACs) and related apportionments, CDQ reserves, ABC amounts, overfishing levels, PSC allowances, PSQ reserve amounts, and associated management measures of the BSAI groundfish fishery.

This action provides interim harvest specifications and apportionments thereof for the 2005 fishing year that will become available on January 1, 2005, and will remain in effect until superseded by the 2005 final harvest specifications. Background information concerning the 2005 harvest specification process on which this interim action is based is provided in the above mentioned proposed harvest specification document.

Establishment of Interim TACs

Section 679.20(b)(1)(i) requires that 15 percent of the TAC for each target species and species group, except for pollock and the hook-and-line and pot gear allocation of sablefish, be placed in a non-specified reserve. The AFA supersedes this provision for pollock by requiring that the TAC for this species be fully allocated among the CDQ program, incidental catch allowance (ICA), and inshore, catcher/processor, and mothership directed fishery allowances. Section 803 of the Consolidated Appropriations Act of 2004 (CAA), Public Law (Pub. L.) 108-199, supersedes portions of the AFA and allocates the AI directed pollock fishery (DPF) to the Aleut Corporation after subtraction for the CDQ directed fishing allowance and ICA. Amendment 82 to the FMP would establish the management measures for the AI DPF. The proposed rule to implement Amendment 82 was published in the Federal Register for public comment and review on December 7, 2004 (69 FR 70589). If Amendment 82 is approved, final regulations implementing Amendment 82 are anticipated to be effective by March 2005.

Section 679.20(b)(1)(iii) requires that one half of each TAC amount placed in the non-specified reserve, with the exception of squid, be allocated to the groundfish CDQ reserve and that 20 percent of the hook-and-line and pot gear allocation of sablefish be allocated to the fixed gear sablefish CDQ reserve. Sections 679.20(a)(5)(i)(A) and 679.31(a)(2) require that 10 percent of the pollock TAC be allocated to the pollock CDQ reserve. With the exception of the hook-and-line and pot gear sablefish CDQ reserve, the CDQ reserves are not further apportioned by gear. Section 679.21(e)(1)(i) also requires that 7.5 percent of each PSC limit, with the exception of herring, be withheld as a PSQ reserve for the CDQ fisheries. Regulations governing the management of the CDQ and PSQ reserves are set forth at §§ 679.30 and 679.31.

Section 679.20(c)(2) requires interim harvest specifications to be effective at 0001 hours, A.l.t., January 1, and remain in effect until superseded by the final harvest specifications. Section 679.20(c)(2)(ii) provides that the interim harvest specifications will be established as one-fourth of each proposed ITAC amount and apportionment thereof (not including pollock, Pacific cod, Atka mackerel, and the hook-and-line and pot gear allocation of sablefish), one-fourth of each proposed PSQ reserve and PSC allowance established at § 679.21, and the proposed first seasonal allowance of pollock, Pacific cod and Atka mackerel TAC. As stated in the proposed harvest specifications (69 FR 70974), no harvest of groundfish is authorized before the effective date of this action implementing the interim harvest specifications.

2005 Interim BSAI Harvest Specifications

Table 1 provides interim TAC and CDQ amounts and apportionments. Section 679.20(c)(2)(ii) does not provide for an interim harvest specification for the hook-and-line and pot gear allocations of sablefish for the CDQ reserve or for sablefish managed under the Individual Fishing Quota (IFQ) program. As a result, directed fishing for the hook-and-line and pot gear allocations of CDQ sablefish and IFQ sablefish is prohibited until the effective date of the 2005 final harvest specifications.

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

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

Section 679.20(c)(2)(ii) provides that one-fourth of each proposed PSQ reserve and PSC allowance be made available on an interim basis for harvest at the beginning of the fishing year, until superseded by the final harvest specifications. Table 2 lists the PSQ reserves and fishery specific interim PSC allowances for halibut and crab effective at 0001 hours, A.l.t., January 1, 2005.

Directed Fishing Closures

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

The Regional Administrator has determined that the remaining allocation amounts in Table 3 will be necessary as incidental catch to support other anticipated groundfish fisheries for the 2005 fishing year.

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

Therefore, in accordance with § 679.20(d)(1)(iii), NMFS is immediately prohibiting directed fishing for these species in the specified areas in Table 3. These closures will remain in effect from 0001 hrs, A.l.t., January 1, 2005, until superseded by the 2005 final harvest specifications for BSAI groundfish or for the AI DPF on the approval of Amendment 82 and the effective date of its implementing regulations.

In addition, the BSAI Zone 1 annual red king crab allowance specified for the trawl rockfish fishery (see § 679.21(e)(3)(iv)(D)) is 0 mt and the BSAI first seasonal halibut bycatch allowance specified for the trawl rockfish fishery is 0 mt. The BSAI annual halibut bycatch allowance specified for the trawl Greenland turbot/arrowtooth flounder/sablefish fishery categories is 0 mt (see § 679.21(e)(3)(iv)(C)). Therefore, in accordance with § 679.21(e)(7)(ii) and (v), NMFS is prohibiting directed fishing for rockfish by vessels using trawl gear in Zone 1 of the BSAI and directed fishing for Greenland turbot/arrowtooth flounder/sablefish by vessels using trawl gear in the BSAI from 0001 hrs., A.l.t., January 1, 2005, until superseded by the final 2005 harvest specifications for BSAI groundfish. NMFS is also prohibiting directed fishing for rockfish outside Zone 1 in the BSAI until 1200 hrs, A.l.t, July 1, 2005.

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

Bering Sea Subarea Inshore Pollock Allocations

Section 679.4(1) sets forth procedures for AFA inshore catcher vessel pollock cooperatives to apply for and receive cooperative fishing permits and inshore pollock allocations. Table 4 lists the interim pollock allocations to the seven inshore catcher vessel pollock cooperatives for 2005. Allocations for cooperatives and vessels not participating in cooperatives are not made for the AI subarea because the CAA requires the non-CDQ directed pollock fishery to be fully allocated to the Aleut Corporation.

In accordance with regulations at § 679.20(a)(5)(i)(A)(3), NMFS must further divide the inshore allocation into separate allocations for cooperative and open access fishing. In addition, according to regulations at § 679.22(a)(7)(vii), NMFS must establish harvest limits inside the Steller Sea Lion Conservation Area (SCA) and 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 until April 1. Accordingly, Table 5 lists the interim Bering Sea subarea pollock allocations to the inshore cooperative and open access sectors and establishes a cooperative sector SCA set-aside for AFA catcher vessels less than or equal to 99 ft (30.2 m) LOA. The SCA set-aside for catcher vessels less than or equal to 99 ft (30.2 m) LOA that are not participating in a cooperative will be established inseason based on actual participation levels and is not included in Table 5.

Listed AFA Catcher/Processor Sideboard Limits

The basis for these sideboard limits is described in detail in the final rule implementing major provisions of the AFA (67 FR 79692, December 30, 2002). Table 6 lists the 2005 interim catcher/processor sideboard limits.

All groundfish, other than pollock, that is harvested by listed AFA catcher/processors, whether as targeted catch or as incidental catch, will be deducted from the interim sideboard limits in Table 6. However, groundfish, other than pollock, that is delivered to listed catcher/processors by catcher vessels will not be deducted from the 2005 interim sideboard limits for the listed catcher/processors.

Section 679.64(a)(5) establishes a formula for PSC sideboard limits for listed AFA catcher/processors. These amounts are equivalent to the percentage of PSC amounts taken in the groundfish fisheries other than pollock by the AFA catcher/processors listed in subsection 208(e) and section 209 of the AFA from 1995 through 1997 (see Table 7). These amounts were used to calculate the relative amount of PSC that was caught by pollock catcher/processors. That relative amount of PSC was then used to determine the PSC sideboard limits for listed AFA catcher/processors in the 2005 interim fisheries for groundfish other than pollock.

PSC that is caught by listed AFA catcher/processors participating in any groundfish fishery other than pollock listed in Table 7 will accrue against the interim 2005 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 2005 interim PSC sideboard limit listed in Table 7 is reached.

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

AFA Catcher Vessel Sideboards Limits

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 rule implementing major provisions of the AFA (67 FR 79692, December 30, 2002). Tables 8 and 9 list the 2005 interim AFA catcher vessel sideboard limits.

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

The AFA catcher vessel PSC limit for halibut and each crab species in the BSAI, for which a trawl bycatch limit has been established, will be a portion of the PSC limit equal to the ratio of aggregate retained groundfish catch by AFA catcher vessels in each PSC target category from 1995 through 1997, relative to the retained catch of all vessels in that fishery from 1995 through 1997. Table 9 lists the 2005 interim PSC sideboard limits for AFA catcher vessels.

Halibut and crab PSC that are caught by AFA catcher vessels participating in fisheries for groundfish, other than pollock, listed in Table 9 will accrue against the 2005 interim PSC sideboard limits for AFA catcher vessels. Sections 679.21(d)(8) and (e)(3)(v) provide authority to close directed fishing for groundfish other than pollock for AFA catcher vessels once an 2005 interim PSC sideboard limit for the BSAI listed in Table 9 is reached. PSC that is caught by AFA catcher vessels, while fishing for pollock in the BSAI, will accrue against either the midwater pollock or the pollock/Atka mackerel/“other species” fishery categories under regulations at § 679.21(e)(3)(iv).

AFA Catcher/Processor and Catcher Vessel Sideboard Limit Directed Fishing Closures

The Regional Administrator has determined that many of the interim AFA catcher/processor and catcher vessel sideboard limits listed in Table 10 and 11 are necessary as incidental catch to support other anticipated groundfish fisheries for the 2005 fishing year. In accordance with § 679.20(d)(1)(i), the Regional Administrator establishes the directed fishing allowances for the below species or species groups as zero. Therefore, in accordance with § 679.20(d)(1)(iii), NMFS is prohibiting directed fishing by AFA catcher/processors for the species in the specified areas set out in Table 10 and directed fishing by non-exempt AFA catcher vessels for the species in the specified areas set out in Table 11.

Classification

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

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

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

The proposed harvest specifications are based on the preliminary recommendations of the Plan Team, which were reviewed by the Scientific and Statistical Committee, and Council in October 2004, in projecting 2005 biomass amounts, as identified in the 2003 SAFE Report, for the 2005 proposed ABC, overfishing levels, and TAC amounts. The Plan Team recommendations incorporate the most current data available from a number of sources, including current-year industry catch levels, and current-year trawl and hydro-acoustic surveys. These data are not available in time for Council review prior to the October Council meeting, as the surveys are conducted during the summer months, and industry catch levels reflect current year activity. These updated data sources represent the best available scientific information. These data provide the basis for the proposed and interim harvest specifications.

The proposed harvest specifications, as required by § 679.20(c)(1)(i)(A), must be published as soon as practicable after consultation with the Council, which occurs at the Council's October meeting. Because the interim harvest specifications are derived from the proposed harvest specifications, the proposed harvest specifications publication requirement, along with the requirement of National Standard 2 of the Magnuson-Stevens Act to use the best scientific information available, prevents NMFS from publishing the interim harvest specifications in sufficient time to have a public comment period and to have the interim harvest specifications effective on January 1.

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

Likewise, the Assistant Administrator finds good cause to waive the 30-day delay in effectiveness date of the interim harvest specifications. Section 679.20(c)(2) requires NMFS to establish interim harvest specifications to be effective on January 1 and to remain in effect until superseded by the publication of final harvest specifications by the Office of the Federal Register. NMFS interprets § 679.20(c)(2) as requiring the filing of interim harvest specifications with the Office of the Federal Register before any harvest of groundfish is authorized. The interim harvest specifications are based on the 2005 proposed harvest specifications.

The interim harvest specifications rely on data used to propose the 2005 harvest specifications, and those data are not available until after the summer surveys are conducted (see above). Without interim harvest specifications in effect on January 1, the groundfish fisheries would not be able to open on that date, resulting in disruption to the fishing industry. These reasons constitute good cause pursuant to 5 U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness date.

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

Authority:16 U.S.C. 773 et seq., 1801 et seq., and 3631 et seq.; 16 U.S.C. 1540(f); Pub. L. 105-277, Title II of Division C; Pub L. 106-31, Sec. 3027; Pub L. 106-554, Sec. 209; and Pub. L. 108-199, Sec. 803.