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Proposed Rule

Fisheries of the Exclusive Economic Zone Off Alaska; Revision of Steller Sea Lion Protection Measures for the Pollock and Pacific Cod Fisheries in the Gulf of Alaska

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Start Preamble

AGENCY:

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

ACTION:

Proposed rule; request for comments.

SUMMARY:

NMFS publishes a proposed rule that would adjust Steller sea lion protection measures for the pollock and Pacific cod fisheries in the Gulf of Alaska (GOA). The revisions would adjust Pacific cod and pollock fishing closure areas near four Steller sea lion haulouts and modify the seasonal management of pollock harvest in the GOA. The intent of the revisions is to maintain protection for Steller sea lions and their critical habitat while easing the economic burden on GOA fishing communities. This action is intended to Start Printed Page 56385promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP), and other applicable laws.

DATES:

Written comments must be received by October 21, 2004.

ADDRESSES:

Send comments to Sue Salveson, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, Attn: Lori Durall. Comments may be submitted by:

  • Mail to P.O. Box 21668, Juneau, AK 99802-1668;
  • Hand Delivery to the Federal Building, 709 West 9th Street, Room 420A, Juneau, AK;
  • FAX to 907-586-7557;
  • E-mail to SSL2004-0648-AS41@noaa.gov. Include in the subject line of the e-mail comments the following document identifier: GOA SSL Proposed Rule. E-mail comments, with or without attachments, are limited to 5 megabytes;
  • Webform at the Federal eRulemaking Portal: www.regulations.gov. Follow the instructions at that site for submitting comments.

Copies of the Environmental Assessment/Regulatory Impact Review (EA/RIR) prepared for the proposed rule and copies of the 1998 and 2001 Biological Opinions, and the June 19, 2003, supplement to the 2001 Biological Opinion, on the effects of the groundfish fisheries on Steller sea lions may be obtained from the same mailing address above or from the NMFS Alaska Region website at www.fakr.noaa.gov.

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FOR FURTHER INFORMATION CONTACT:

Melanie Brown, 907-586-7228 or melanie.brown@noaa.gov.

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SUPPLEMENTARY INFORMATION:

The groundfish fisheries in the Exclusive Economic Zone of the GOA are managed under the FMP. The North Pacific Fishery Management Council (Council) prepared the FMP under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801, et seq. Regulations implementing the FMP appear at 50 CFR part 679. General regulations governing U.S. fisheries also appear at 50 CFR part 600.

Background

The western distinct population segment (DPS) of Steller sea lions has been listed as endangered under the Endangered Species Act (ESA), and critical habitat has been designated for this DPS (50 CFR 226.202). Temporal and spatial harvest restrictions were established for the groundfish fisheries of Alaska (68 FR 204, January 2, 2003) to protect Steller sea lions from jeopardy of extinction and their critical habitat from adverse modification or destruction from the effects of these fisheries. Pollock and Pacific cod are important prey species for Steller sea lions, and these protection measures apply to the pollock and Pacific cod fisheries in the GOA.

In June 2004, the Council unanimously recommended revisions to the Steller sea lion protection measures in the GOA to alleviate some of the economic burden on coastal communities while maintaining protection for Steller sea lions and their critical habitat. These revisions would adjust pollock and Pacific cod fishing closures near four Steller sea lion haulouts and would revise seasonal management of pollock harvest. NMFS concluded in an ESA Section 7 informal consultation dated August 26, 2004, that fishing under the proposed revisions is not likely to adversely affect Steller sea lions beyond those effects already considered in the 2001 Biological Opinion (BiOp) on the Steller sea lion protection measures and its June 19, 2003 supplement (see ADDRESSES). Based on results of the informal consultation and the EA/RIR (see ADDRESSES), NMFS has determined that this action could provide some economic relief to participants in the pollock and Pacific cod fisheries without adversely affecting Steller sea lions and their critical habitat beyond those effects already analyzed in the 2001 BiOp and its supplement. Each proposed revision is described below.

Haulout Closure Revisions

The proposed action would revise Table 4 to 50 CFR part 679 to reduce the pollock fishing closure area around Puale Bay from 10 nautical miles (nm) to 3 nm from January 20 through May 31. Puale Bay is located in Shelikof Strait on the east side of Kodiak Island. The current 10 nm fishing closure would remain unchanged from August 25 through November 1. The number of Steller sea lions using the haulout at Puale Bay has declined greatly, ranging from 14,234 winter non-pups in 1977, to 40 non-pups in 1997. Since 1990, the usage of this site in the summer and winter has been approximately 100 animals.

The decline in the Steller sea lion population at Puale Bay haulout correlates with the decline of pollock spawning aggregations in Shelikof Strait. Incidental take of Steller sea lions in foreign fisheries targeting spawning aggregations of pollock was observed to be very high in the Shelikof Strait area. The recovery of Steller sea lions at this site and in Shelikof Strait may be linked to the overall biomass level of the spawning aggregations of pollock rather than to the availability of pollock in specific near shore areas (i.e., within the closure zone). Additional fishing for pollock closer to shore of the Puale Bay haulout is not likely to affect the overall spawning aggregations of pollock in the Shelikof Strait because the total allowable catch (TAC) for pollock in the area will remain unchanged. Assuming the recovery of Steller sea lions is linked in some way to the recovery of the spawning aggregations of pollock in the Shelikof Strait, allowing additional pollock fishing near Puale Bay likely would not substantially affect the recovery of the Steller sea lions in the Shelikof Strait. According to NMFS telemetry data, Steller sea lions on the east side of Kodiak Island appear to spend most of their time closer to shore, presumably foraging there. This action would maintain a 3 nm closure to pollock fishing around Puale Bay, providing protection to these nearshore foraging areas for Steller sea lions. By allowing fishing closer to shore, the safety for the pollock fishing fleet would be improved, and the efficiency of harvest may be improved if pollock spawning aggregations occur in the waters between 3 nm and 10 nm of Puale Bay.

To offset any potential effects on Steller sea lions by allowing pollock fishing within 3 nm to 10 nm of Puale Bay, the proposed action also would revise Table 4 to 50 CFR part 679 to expand the pollock fishing closure area around the Cape Douglas/Shaw Island haulout from 10 nm to 20 nm. Pollock spawning aggregations historically have not been observed in this area, but other types of prey species may be used in this area by Steller sea lions. By expanding the closure area, the potential interaction between the fishing fleet and Steller sea lions would be reduced. Cape Douglas is one of 19 haulout sites that have been identified in the 1998 BiOp (see ADDRESSES) as new sites that warranted protection. Added protection to this site may be more beneficial to Steller sea lions than the current closures around Puale Bay, where Steller sea lion recovery may be more dependent on the recovery of the pollock spawning aggregations in Shelikof Strait. This action also would provide some economic relief to pollock fishery participants by offsetting the opening of Puale Bay waters that historically have had more pollock harvests with the closure of Cape Start Printed Page 56386Douglas waters that have had less pollock harvest.

The proposed action also would revise Table 5 to 50 CFR part 679 to reduce the Pacific cod pot gear fishery closure around Kak Island from 20 nm to 3 nm. Because of the overlap of the closure area with the 20 nm closure around Sutwik Island, only the west side of Kak Island would be open from 3 nm to 20 nm. This area periodically has been used by the Chignik area small vessel fleet to fish for Pacific cod with pot gear. Reducing the Pacific cod pot gear fishing closure area around Kak Island would not likely result in significantly increased fishing activities by the small boat fleet. Therefore, this proposed revision is not likely to adversely affect Steller sea lions and their critical habitat beyond those effects analyzed in the 2001 BiOp because of the small number of small vessels that are likely to participate in the Pacific cod pot gear fishery and the slow rate of removal of prey species by the Pacific cod pot gear fishery. This action would provide some economic relief and additional safety to participants in the Pacific cod pot gear fishery by allowing fishing in areas closer to shore.

Last, the proposed action would revise Table 5 to 50 CFR part 679 to eliminate the Pacific cod pot gear fishing closure around the Castle Rock haulout. This area has been used by the small vessel fleet to fish for Pacific cod with pot gear during seven of the past nine years in the State of Alaska Pacific cod fishery. Because of the small number of small vessels and the method of fishing, NMFS has determined that opening this area to pot gear fishing is not likely to adversely affect the western DPS of Steller sea lions or its critical habitat beyond those effects already analyzed in the 2001 BiOp and its supplement. Opening waters around Castle Rock to Pacific cod pot gear fishing would increase safety for the participants in the fishery and would provide some economic relief by allowing Pacific cod harvest in those waters.

Pollock Harvest Management Revisions

To provide efficient harvest of pollock, the proposed action would revise § 679.23(d)(2) to remove the stand down periods between the pollock A and B seasons and between the C and D seasons. Currently, pollock fishing must stop between February 25 and March 10 and between September 15 and October 1. These stand down periods require fishery participants to return to port and wait for the opening of the B season or the D season. By allowing continuous fishing between the A and B seasons and between the C and D seasons when TACs are available, the participants in the pollock fishery would receive some economic relief by not having to stop fishing activities between seasons.

In the past several years, the pollock fishery participants were not able to fully harvest the A season pollock TAC in area 620 before February 25 because the pollock spawning aggregations moved into the area at a later time. A large amount of the unharvested pollock TAC has been rolled over into subsequent seasons. To provide greater opportunity for harvest of the seasonal TAC apportionments in the A season, the length of the A and C seasons would be increased to include the time period that previously was the stand down period. The new A and C season dates would be: A season, January 20 through March 10; and C season, August 25 through October 1. Because the Steller sea lion protection measures requiring four equal seasonal apportionments of pollock harvest would remain unchanged, NMFS has determined that this proposed revision would have no adverse effect on Steller sea lions or their critical habitat.

The proposed action would revise § 679.20(a)(5)(iii)(B) to provide for the rollover of unharvested pollock seasonal TAC apportionment to a subsequent season based on the estimated biomass within a statistical area during a season. The Steller sea lion protection measures require pollock harvest to be seasonally apportioned and spatially apportioned based on the estimates of pollock biomass. The Council's GOA Groundfish Plan Team develops estimates of the amount of biomass in each statistical area by season for the annual harvest specifications. The seasonal apportionments for the Western and Central Regulatory Areas of the GOA are distributed among statistical areas 610, 620 and 630 based on the estimate of the amount of pollock biomass that occurs in each statistical area in a season. These seasonal apportionments are published in the annual harvest specifications (69 FR 9261, February 27, 2004) and are the basis for temporal and spatial management of pollock harvest in the Western and Central Regulatory Areas.

The protection measures allow limited amounts of unharvested pollock to be rolled over into subsequent seasons during a fishing year. The current regulations at 50 CFR 679.20(a)(iii)(B) state that “within any fishing year, under harvest or over harvest of a seasonal apportionment may be added to or subtracted from remaining seasonal apportionments in a manner to be determined by the Regional Administrator, provided that any revised seasonal apportionment does not exceed 30 percent of the annual TAC apportionment for a GOA regulatory area.” This provision does not allow for consideration of the estimated distribution of biomass among statistical areas by season, as intended by the Steller sea lion protection measures, potentially resulting in pollock harvests that are not appropriate for the estimated amount of pollock biomass available.

The proposed action would change the rollover provision to allow rollover of a statistical area's unharvested pollock apportionment into the subsequent season. The rollover amount would be limited to 20 percent of the seasonal apportionment for the statistical area. Any unharvested pollock above the 20 percent limit could be further distributed to the other statistical areas, in proportion to the estimated biomass in the subsequent season in those statistical areas. Because the harvest of pollock is apportioned among four seasons, the 20 percent seasonal apportionment limit on the rollover would be equivalent annually to the 30 percent annual limit on rollover currently in the regulations. The 20 percent seasonal apportionment limit would provide for better control of harvest than the current regulations because the amount of rollover allowed is based on seasonal biomass estimates, better fulfilling the temporal and seasonal distribution of harvest intended by the Steller sea lion protection measures. The participants in the pollock fishery also would benefit from reapportionments among statistical areas of unharvested pollock that exceed the 20 percent limit. The industry's ability to fully harvest a seasonal apportionment has varied among the statistical areas with some area harvests being consistently below the seasonal apportionments. The reapportionments among statistical areas would reduce the potential for foregone harvest, allowing the pollock fishery in the Western and Central Regulatory Areas to fully harvest available TAC.

Classification

This proposed rule has been determined to be not significant for the purposes of Executive Order 12866.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. Start Printed Page 56387The proposed rule would amend existing Steller sea lion protection measures in 50 CFR part 679 for the GOA pollock trawl and Pacific cod pot gear fisheries. The action would modify some fishing closure boundaries to better reflect historic use patterns, reduce unanticipated and unnecessary potential burdens on the fishing industry, and maintain protection for the western DPS of Steller sea lions (i.e., avoid jeopardy of extinction for the western DPS of Steller sea lions and the destruction or adverse modification of its critical habitat). Any changes to the pollock or Pacific cod fisheries affected by this action must not reduce overall efficacy of the Steller sea lion protection measures.

The proposed action would open groundfish fishing areas around three GOA Steller sea lion haulouts and close an area around one GOA Steller sea lion haulout to pollock and Pacific cod fishing; change pollock season stand-down periods, and change procedures for the rollover of unharvested pollock seasonal apportionments.

Factual Basis for Certification

Description and estimate of the number of small entities to which the rule applies: Small entities will be directly regulated by this action. This includes all small fishing operations in the GOA Pacific cod pot gear and pollock trawl gear fisheries. NMFS has determined that there were 131 small entities participating in the GOA pot gear fishery and 110 small entities participating in the GOA pollock trawl gear fishery in 2002.

Estimate of economic impact on small entities, by entity size and industry: The proposed regulatory change has a potential to yield some small benefit, but with negligible cost to industry. The analysis contained in the RIR prepared for this action concludes that all action alternative options affecting the GOA pollock trawl fishery have the potential to result in positive net benefits. The potential effect of the pollock trawl closure area of Option 1 of Alternative 2 (Cape Douglas/Shaw Island) is offset by an opening in an area that appears to be of somewhat greater historic importance to the fleet (Puale Bay). The number of vessels participating in the Cape Douglas/Shaw Island fishery is confidential (i.e., four or fewer), while between nine and 17 vessels have participated in the fishery near Puale Bay from 2001 through 2003.

The elimination of pollock trawl stand-down periods in Option 4 of Alternative 2 may lead to greater operational efficiency, but will not materially alter the revenue earned. Similarly, the change in the rollover method proposed in Option 5 of Alternative 2 may make additional pollock harvest possible earlier in the year in some areas; however, it will not alter the total annual Western and Central GOA area apportionment of total allowable catch as set in the groundfish harvest specifications process, and thus, will not materially affect total revenue. Overall, these measures have the potential to be marginally beneficial to all operators in the GOA pollock trawl fishery, including 110 small entities.

The areas proposed to be opened to Pacific cod pot fishing in Option 2 of Alternative 2 (Kak Island area) provide some additional nearshore fishing area near the port of Chignik and may marginally reduce operational costs. This provision has some potential to improve safety as well. The area to be opened under Option 3 (Castle Rock) provides some potential additional fishing area with no apparent costs. All vessels participating in these fisheries are small entities, but the number of participants (i.e., four or fewer) is confidential. Overall, these measures have the potential to be beneficial, although to a very few small entities in the GOA Pacific cod pot gear fishery.

Criteria used to evaluate whether the rule would impose “significant economic impacts”: The two criteria recommended to determine significant economic impact are disproportionality and profitability of the action. The proposed action would not place a substantial number of small entities at a disadvantage relative to large entities. This action would provide additional opportunity for harvest in areas that historically have been used by small entities, but this opportunity is not provided exclusively to small entities.

This rule does not significantly reduce the profit for small entities. The costs of harvest would potentially be reduced with the opening of the closure areas and with the removal of the stand down periods between harvest seasons. The proposed action provides additional opportunities, spatially and temporally, for pollock and Pacific cod harvest that may result in additional profit for fishery participants. The absence of cost data precludes quantitative estimation of these potential cost savings and profits, although they would be expected to be minor.

Criteria used to evaluate whether the rule would impose impacts on “a substantial number” of small entities: A very small number of small entities have harvested Pacific cod by pot gear in the area of Kak Island and Castle Rock haulouts (i.e., four or fewer vessels). NMFS is unable to report the actual number of vessels because of confidentiality restrictions. The harvest of pollock near Cape Douglas/Shaw Island haulout has also been by so few vessels that the harvest data are also confidential. The opening of Puale Bay is likely to provide additional fishing opportunity to fewer than 10 percent of the small entities participating in the pollock fishery. The removal of the mandatory stand down periods between seasons and revision of the method of rolling over unharvested pollock would, however, affect all small entities participating in the pollock fishery.

Description of, and an explanation of the basis for, assumptions used: Catch information used for the pollock and Pacific cod fisheries is based on catch reporting within a State statistical area (no finer resolution of catch location is available). The closures proposed encompass only a small portion of one or more State statistical areas. The reported catch within a State statistical area was, for lack of a better option, assumed to be evenly distributed so that the proportion of the closure area to the statistical area(s) would be in the same proportion as the estimated catch from the proposed closure area compared to the estimated catch for the entire statistical area. Because catch information is not collected to a finer scale than the statistical area, it is necessary to use this method to get an estimated portion of the amount of harvest that may be applied to a closure area.

The economic analysis contained in the RIR (see ADDRESSES) further describes the potential size, distribution, and magnitude of the economic impacts that this action may be expected to have on small entities. Based upon that analysis, it is NMFS' finding that although the proposed action may affect a substantial number of small entities, it likely does not have the potential to have a significant economic impact on the small entities participating in these fisheries.

The Regional Administrator, Alaska Region, determined that fishing activities conducted pursuant to this rule would not affect endangered and threatened species or critical habitat under the ESA.

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List of Subjects in 50 CFR Part 679

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Dated: September 16, 2004.

William T. Hogarth

Assistant Administrator for Fisheries, National Marine Fisheries Service.

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For reasons set out in the preamble, 50 CFR part 679 is proposed to be amended as follows:

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PART 679—FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

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

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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; and Pub. L.106-554, Sec. 209.

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2. In § 679.20, paragraph (a)(5)(iii)(B) is revised to read as follows:

General limitations.
* * * * *

(a) * * *

(5) * * *

(iii) * * *

(B) GOA Western and Central Regulatory Areas seasonal apportionments. Each apportionment established under paragraph (a)(5)(iii)(A) of this section will be divided into four seasonal apportionments corresponding to the four fishing seasons set out at § 679.23(d)(2) as follows: A Season, 25 percent; B Season, 25 percent; C Season, 25 percent; and D Season, 25 percent. Within any fishing year, underharvest or overharvest of a seasonal apportionment may be added to or subtracted from remaining seasonal apportionments in a manner to be determined by the Regional Administrator, provided that any revised seasonal apportionment does not exceed 20 percent of the seasonal TAC apportionment for the statistical area. The reapportionment of underharvest will be applied to the subsequent season within the same statistical area up to the 20 percent limit specified in this paragraph. Any underharvest remaining beyond the 20 percent limit may be further apportioned to the subsequent season in the other statistical areas, in proportion to estimated biomass and in an amount no more than 20 percent of the seasonal TAC apportionment for the statistical area.

* * * * *

3. In § 679.23, paragraphs (d)(2)(i) and (d)(2)(iii) are revised to read as follows:

Seasons.
* * * * *

(d) * * *

(2) * * *

(i) A season. From 1200 hours, A.l.t., January 20 through 1200 hours, A.l.t., March 10;

* * * * *

(iii) C season. From 1200 hours, A.l.t., August 25 through 1200 hours, A.l.t., October 1; and

* * * * *

4. Tables 4 and 5 to part 679 are revised to read as follows:

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[FR Doc. 04-21217 Filed 9-20-04; 8:45 am]

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