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Proposed Rule

Fisheries of the Exclusive Economic Zone Off Alaska; Steller Sea Lion Protection Measures for the Bering Sea and Aleutian Islands Groundfish Fisheries Off Alaska

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AGENCY:

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

ACTION:

Proposed rule; request for comments.

SUMMARY:

NMFS proposes to implement Steller sea lion protection measures to insure that groundfish fisheries in the Bering Sea and Aleutian Islands Management Area (BSAI) off Alaska are not likely to jeopardize the continued existence of the western distinct population segment (WDPS) of Steller sea lions or destroy or adversely modify its designated critical habitat. These management measures would disperse fishing effort temporally and spatially to provide protection from potential competition for important Steller sea lion prey species in the BSAI. The intent of this proposed action is to protect the endangered WDPS of Steller sea lions, as required by the Endangered Species Act, and to minimize, to the extent practicable, the economic impact of fishery management measures, as required by the Magnuson-Stevens Fishery Conservation and Management Act.

DATES:

Submit comments on or before August 15, 2014.

ADDRESSES:

You may submit comments on this document, identified by FDMS Docket Number NOAA-NMFS-2012-0013, by either of the following methods:

  • Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/​#!docketDetail;​D=​NOAA-NMFS-2012-0013, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
  • Mail: Submit written comments to Glenn Merrill, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region NMFS, Attn: Ellen Sebastian. Mail comments to P.O. Box 21668, Juneau, AK 99802-1668.

Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, or Adobe PDF file formats only.

Electronic copies of:

Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed action may be submitted to NMFS at the above address and by email to OIRA_Submission@omb.eop.gov or fax to 202-395-5806.

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FOR FURTHER INFORMATION CONTACT:

Gretchen Harrington, 907-586-7228.

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SUPPLEMENTARY INFORMATION:

NMFS manages groundfish fisheries in the exclusive economic zone (EEZ) off Alaska under the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP). The North Pacific Fishery Management Council (Council) prepared the FMP under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801, et seq. Regulations governing U.S. fisheries and implementing the FMP appear at 50 CFR parts 600 and 679.

NMFS has management responsibility for certain threatened and endangered species, including Steller sea lions, under the Endangered Species Act (ESA) of 1973, 16 U.S.C. 1531, et seq. NMFS has the authority to promulgate regulations to enforce provisions of the ESA to protect such species. As the action agency, NMFS is responsible for conducting a section 7 consultation to insure that the Federal action of authorizing the Alaska groundfish fisheries is not likely to jeopardize the continued existence of an ESA-listed species or result in the destruction or adverse modification of its designated critical habitat. Under the provisions of section 7 of the ESA, NMFS Alaska Region Sustainable Fisheries Division (SFD) is the action agency and consults with the NMFS Alaska Region Protected Resources Division (PRD) on the impacts of groundfish fisheries for most ESA-listed species of marine mammals, including Steller sea lions.

NMFS listed the WDPS of Steller sea lions as endangered under the ESA in 1997 (62 FR 24345, May 5, 1997). Throughout this preamble, the term “Steller sea lions” means the WDPS of Steller sea lions unless otherwise specified. NMFS has designated critical habitat for Steller sea lions and identified haulouts, rookeries, and foraging locations throughout Alaska waters ranging throughout the Gulf of Alaska (GOA), the Bering Sea, and the Aleutian Islands (58 FR 45269, August 27, 1993). Since publication of critical habitat definitions in 1993 (see 50 CFR 226.202), NMFS has identified 19 additional haulouts in the BSAI and the GOA as important areas for Steller sea lions needing additional protection from the potential effects of groundfish fishing. More information and justification for including these haulouts are contained in the 2001 BiOp (see ADDRESSES).Start Printed Page 37487

Since listing Steller sea lions, NMFS has implemented a number of management measures, commonly known as Steller sea lion protection measures, to protect Steller sea lions from the potential effects of groundfish fishing. Steller sea lion protection measures disperse catch of groundfish prey species in time (temporal dispersion) and space (spatial dispersion) through a variety of harvest limitations and closure areas. Many of these Steller sea lion protection measures apply specifically to Atka mackerel, Pacific cod, and pollock, which are particularly important prey species for Steller sea lions (Chapter 5 of EIS).

The most recent Steller sea lion protection measures were implemented in 2011 by the 2010 Interim Final Rule (75 FR 77535, December 13, 2010; corrected 75 FR 81921, December 29, 2010). Steller sea lion protection measures implemented in the 2010 Interim Final Rule limit harvest of Atka mackerel and Pacific cod in the BSAI. This proposed action would revise some of the Steller sea lion protection measures for Atka mackerel, Pacific cod, and pollock in the BSAI, but primarily in the Aleutian Islands.

NMFS conducted a consultation as required under section 7 of the ESA to determine whether this proposed action to revise Steller sea lion protection measures is likely to jeopardize the continued existence of Steller sea lions or destroy or adversely modify their critical habitat. NMFS issued a biological opinion on April 2, 2014, that determined this proposed action is not likely to jeopardize the continued existence of Steller sea lions or destroy or adversely modify their designated critical habitat (2014 BiOp, see ADDRESSES). Detailed analysis of the Aleutian Islands environmental baseline, Steller sea lions population trends, foraging behavior, and biology, and effects of the groundfish fisheries on Steller sea lions is presented in the 2014 BiOp and the EIS (see ADDRESSES).

Background

The following sections of the preamble describe: (1) General management of groundfish fisheries in the BSAI; (2) the areas and vessels affected by this proposed action; (3) management of the Atka mackerel, Pacific cod and pollock fisheries; (4) Steller sea lion protection measures; (5) the EIS and preferred alternative; (6) the 2014 BiOp; (7) description of the provisions of this proposed action; and (8) specific regulatory amendments.

General Management of Groundfish Fisheries in the BSAI

The FMP and its implementing regulations at § 679.20(c) require that the Council recommend and NMFS specify an overfishing level (OFL), an acceptable biological catch (ABC), and a total allowable catch (TAC) for each stock or stock complex (i.e., each species or species group) of groundfish on an annual basis. The OFL is the level above which overfishing is occurring for a species or species group. The ABC is the level of a species or species group's annual catch that accounts for the scientific uncertainty in the estimate of OFL and any other scientific uncertainty. The ABC is set below the OFL. The TAC is the annual catch target for a species or species group, derived from the ABC by considering social and economic factors and management uncertainty. The TAC must be set lower than or equal to the ABC.

The OFLs, ABCs, and TACs for BSAI groundfish are specified through the annual harvest specification process. The Council's Scientific and Statistical Committee (SSC) recommends and NMFS establishes the OFL and ABC for each species or species group. The Council recommends and NMFS establishes a TAC for each species or species group after considering public input and other management considerations. The TAC for some species and species groups in the BSAI are subject to further allocation among specific regulatory areas (e.g., separate TACs for the Bering Sea and Aleutian Islands), on a seasonal basis, and among vessels using specific fishing gear (e.g., pot or trawl gear), operation type (i.e., catcher vessels or catcher/processors), or sectors (e.g., pot catcher/processors). A detailed description of the allocation of BSAI groundfish OFLs, ABCs, and TACs by species or species group is provided in the final 2014 and 2015 harvest specifications for the BSAI groundfish fisheries (79 FR 12108, March 4, 2014).

To ensure that OFLs, ABCs, and TACs are not exceeded, NMFS requires that vessel operators participating in groundfish fisheries in the BSAI comply with a range of monitoring requirements and restrictions. NMFS uses area, seasonal, gear, operation type, and sector specific fishery closures to maintain catch within specified OFLs, ABCs, TACs and associated allocations. NMFS prohibits vessels from specifically targeting a species or species group, known as directed fishing, when a TAC is reached. Directed fishing is defined in the regulation at § 679.2. NMFS restricts fishing in other fisheries that may incidentally take a species or species group as its OFL is approached. Regulations at §§ 679.20(d)(1), (d)(2), and (d)(3) describe the range of management measures that NMFS uses to maintain total catch at or below the OFL, ABC, and TAC for a species or species group.

Areas and Vessels Affected by This Proposed Action

This proposed action would apply to the EEZ of the BSAI and the adjacent State of Alaska (State) waters, as shown in Figure 1 to 50 CFR part 679. The EEZ includes Federal waters that generally occur from 3 nautical miles (nm) to 200 nm from shore. State waters generally occur from shore to 3 nm from shore. The specific boundaries between State and Federal waters are provided on the NMFS Alaska Region Web site at http://alaskafisheries.noaa.gov/​maps/​reporting_​areas/​index.pdf. This proposed action applies primarily in the Aleutian Islands reporting area, defined at § 679.2 and shown in Figure 1 to 50 CFR part 679. The Aleutian Islands reporting area consists of the Statistical Areas 541, 542, and 543 in the EEZ and adjacent State waters. Area 541 and adjacent State waters correspond to the eastern Aleutian Islands; Area 542 and adjacent State waters correspond to the central Aleutian Islands; and Area 543 and adjacent State waters correspond to the western Aleutian Islands.

This proposed action would apply to vessels that catch groundfish that is required to be deducted from a TAC under § 679.20 and that are required to be named on a Federal Fisheries Permit issued under § 679.4(b) in the BSAI reporting area. This proposed rule would apply to harvests in State waters that are managed under the State's parallel groundfish fisheries. Parallel groundfish fisheries are fisheries that occur in State waters where the catch of groundfish is debited from a TAC. Parallel groundfish fisheries are opened and closed by the State concurrently with adjacent Federal fisheries. Parallel fisheries are managed by the State under regulations similar to those that apply in the Federal fisheries. The parallel fisheries that would be affected by this proposed action include the State parallel fisheries for groundfish species that occur in State waters adjacent to the BSAI. Additional detail on State parallel fisheries is provided in Chapters 3 and 8 of the EIS (see ADDRESSES).

This proposed action would not apply to vessels fishing in State-managed guideline harvest level (GHL) groundfish fisheries in the BSAI reporting area. Specifically, Federally Start Printed Page 37488permitted vessels that participate in the Aleutian Islands District Pacific Cod Management Plan (AI State-managed Pacific cod fishery) authorized by § 28.647 of title 5 of the Alaska Administrative Code (AAC) would not be required to comply with the proposed Steller sea lion protection measures while participating in that fishery. The AI State-managed Pacific cod fishery is established by the State for harvest of a Pacific cod GHL exclusively within State waters. Any groundfish catch occurring in the AI State-managed Pacific cod fishery is not deducted from the TAC, and therefore would not be subject to the provisions of this proposed action. Additional detail on State GHL fishery management generally, and the AI State-managed Pacific cod fishery specifically is provided in Chapters 3 and 8 of the EIS (see ADDRESSES). NMFS notes that the State has adopted the same Steller sea lion protection measures for the AI State-managed Pacific cod fishery as NMFS implemented for the Federal groundfish fisheries in 2003 (68 FR 204, January 2, 2003).

Management of Atka Mackerel, Pacific Cod, and Pollock Fisheries in the BSAI

The groundfish fisheries in the BSAI target a wide diversity of species. Major fisheries include pollock, Pacific cod, halibut, sablefish, Atka mackerel, and numerous rockfish and flatfish species. In the Aleutian Islands subarea of the BSAI, there are eight major targeted Federally managed fisheries—Atka mackerel, Pacific cod, Pacific ocean perch, Individual Fishing Quota halibut and sablefish, Greenland turbot, and since 2008, arrowtooth flounder and Kamchatka flounder. Additional detail on the species and amounts harvested in the groundfish fisheries in the BSAI are provided in Chapters 3, 4, and 8 of the EIS (see ADDRESSES) and in the final 2014 and 2015 harvest specifications for the BSAI groundfish fisheries (79 FR 12108, March 4, 2014).

This proposed action would apply primarily to the Atka mackerel, Pacific cod, and pollock fisheries in the Aleutian Islands. The Atka mackerel, Pacific cod, and pollock fisheries are subject to allocations, seasonal apportionment, and a range of other management measures that affect the harvest of these species in the Aleutian Islands. The net effect of these allocations, seasonal apportionments, and management measures is that currently vessels target, or directed fish, for Atka mackerel and Pacific cod in the Aleutian Islands, but they are not able to target pollock in the Aleutian Islands.

To aid the reader in understanding current management and the effects of this proposed action, the following sections briefly describe relevant management measures for Atka mackerel, Pacific cod, and pollock in the BSAI.

TACs and Seasons

There is a single BSAI OFL for Atka mackerel, but three separate Atka mackerel ABCs and TACs established for Area 541/Bering Sea, Area 542, and Area 543. There are separate Pacific cod OFLs, ABCs, and TACs established for the Bering Sea subarea and Aleutian Islands subarea (Areas 541, 542, and 543 combined). There are separate pollock OFLs, ABCs, and TACs for the Bering Sea subarea and Aleutian Islands subarea (79 FR 12108, March 4, 2014).

NMFS also establishes seasonal allocations of Atka mackerel, Pacific cod, and pollock TACs to temporally disperse catch. The Atka mackerel and pollock fishery TACs are apportioned between two seasonal allocations: an A season from January 1 to June 10, and a B season from June 10 to November 1. Fifty percent of the Atka mackerel TAC is assigned to each season (see § 679.20(a)(8)(ii)(A)). Forty percent of the pollock TAC is assigned to the A season, and 60 percent is assigned to the B season (see §§ 679.20(a)(5)(i)(B) and (a)(5)(iii)(B)(3)).

The Pacific cod TACs in the BSAI is allocated among various sectors as described in the “BSAI Pacific Cod Management” section of the preamble. The TAC allocated to each sector is further apportioned by seasons that vary among the various sectors. There are three seasons—an A, B, and C season—that correspond to the early, middle, and late part of the year. The specific dates established for each season for each sector are defined in regulation (see § 679.23(e)(5)). For the Western Alaska Community Development Quota Program (CDQ Program), Pacific cod TACs are apportioned among seasons that are specific to trawl, hook-and-line, jig, and all other non-trawl gear (e.g., pot gear) (see § 679.20(a)(7)(i)(B)). Different seasonal apportionments apply to the TAC assigned to all other non-CDQ Program participants (see § 679.20(a)(7)(iv)(A)).

NMFS can reallocate a limited portion of unharvested catch of Atka mackerel, Pacific cod, and pollock from one season to the next season within a calendar year (see §§ 679.20(a)(8)(ii)(B), (a)(7)(iv)(B), and (a)(5)(i)(B)(2)). The amount of unharvested catch that can be reallocated from one season to the following season is limited to ensure temporal dispersion of catch. Additional detail on allocations and seasonal apportionments are provided in the final 2014 and 2015 harvest specifications for the BSAI groundfish fisheries (79 FR 12108, March 4, 2014).

CDQ Program

The CDQ Program was implemented by NMFS in 1992 (57 FR 46133, October 7, 1992). The CDQ Program was created to improve conditions in coastal western Alaska communities by making it possible for them to participate in the BSAI fisheries. Regulations implementing the CDQ Program provide a portion of the groundfish, crab, and halibut annual catch limits for use by non-profit entities representing specific eligible western Alaska communities.

The Magnuson-Stevens Act includes provisions applicable to the CDQ Program and authorizes 65 communities to participate in the CDQ Program. These communities participate in the CDQ Program through six nonprofit corporations called CDQ groups. The CDQ groups receive exclusive harvest privileges of groundfish, known as CDQ allocations. These exclusive harvest privileges allow the CDQ groups to tailor their fishing operations to maximize the catch of their CDQ allocations. This allows CDQ groups to avoid an inefficient “race for fish” among other fishery participants competing to maximize their catch before the overall TAC is reached. Each CDQ group is prohibited from exceeding its CDQ allocation, and NMFS has established specific monitoring and enforcement provisions to accurately track the harvest of CDQ allocations.

NMFS first allocates the TAC to the CDQ Program, and then apportions the remaining TAC among other fishery participants. The process for allocating the TACs to the CDQ Program generally and to CDQ groups specifically is described in a final rule defining the regulation of the CDQ Program (71 FR 51804, August 31, 2006). The species and species groups currently allocated to the CDQ Program are specified in the final 2014 and 2015 harvest specifications for the BSAI groundfish fisheries (79 FR 12108, March 4, 2014). Relevant to this proposed action, the CDQ Program is allocated 10.7 percent of the Area 541/Bering Sea, Area 542, and Area 543 Atka mackerel TACs; 10.7 of the Bering Sea and Aleutian Islands Pacific cod TACs; and 10 percent of the Bering Sea and Aleutian Islands pollock TACs.

Amendment 80 Program

Amendment 80 to the FMP identified participants using trawl catcher/processors in the BSAI active in Start Printed Page 37489groundfish fisheries other than Bering Sea pollock (i.e., the head-and-gut fleet or Amendment 80 vessels) and established a framework, known as the Amendment 80 Program, to regulate fishing by this fleet (72 FR 52667, September 14, 2007). The Amendment 80 Program allocated the TACs of six species: BSAI Atka mackerel, Pacific cod, flathead sole, rock sole, yellowfin sole, and Aleutian Islands Pacific ocean perch among all trawl fishery participants. The Amendment 80 Program created Amendment 80 quota share based on the historic catch of quota share species by Amendment 80 vessels, facilitated the development of cooperative arrangements (Amendment 80 cooperatives) among quota share holders, and assigned an exclusive harvest privilege for a portion of the TAC of quota share species for participants in Amendment 80 cooperatives. The Amendment 80 Program added sideboard limits to protect other fisheries from the potential adverse effects arising from the exclusive harvest privileges provided under the Amendment 80 Program.

As noted in the previous section on the CDQ Program and in the American Fisheries Act section that follows, by assigning an exclusive harvest privilege to Amendment 80 cooperatives, these cooperatives can avoid a race for fish and maximize catch within the limits of their cooperative allocations. Each Amendment 80 cooperative is prohibited from exceeding its allocation, and NMFS has established specific monitoring and enforcement provisions to accurately track the harvest of these allocations.

Relevant to this proposed action, Amendment 80 cooperatives receive exclusive harvest privileges for a portion of the Area 541/Bering Sea, Area 542, and Area 543 Atka mackerel TACs. Amendment 80 cooperatives also receive exclusive harvest privileges for Pacific cod that may be harvested in the Bering Sea or Aleutian Islands subareas. Amendment 80 vessels also incidentally harvest a small portion of the Aleutian Islands pollock TAC, but do not receive an exclusive harvest allocation. For more information on the Amendment 80 Program, see the final rule implementing the Amendment 80 Program (72 FR 52667, September 14, 2007). Additional detail on the Amendment 80 Program allocations is provided in the final 2014 and 2015 harvest specifications for the BSAI groundfish fisheries (79 FR 12108, March 4, 2014).

BSAI Pacific Cod Management

BSAI Pacific cod is harvested by trawl and non-trawl gears, and by vessels operating as catcher/processors and catcher vessels. The non-trawl gears are jig, pot, and hook-and-line. Regulations allocate a portion of the BSAI TAC first to CDQ groups, and then to specific non-CDQ fishery sectors defined by a combination of gear, operation type (i.e., catcher vessel or catcher/processor), and vessel size categories (§ 679.20(a)(7)). Regulations define nine Pacific cod non-CDQ fishery sectors in the BSAI (§ 679.20(a)(7)(ii)(A)), referred to as sectors in this preamble. Sector allocations are established on a BSAI-level and are not established separately for the Bering Sea or Aleutian Islands subareas. As noted earlier in this preamble, the proportion of the Pacific cod TAC assigned to the CDQ Program and to the sectors is further apportioned by season. NMFS establishes the BSAI Pacific cod TAC allocations and seasonal apportionments in the annual harvest specifications. The current allocations and seasonal apportionments of BSAI Pacific cod are shown in Table 5 of the 2014 and 2015 final harvest specifications for the BSAI groundfish fisheries (79 FR 12108, March 4, 2014).

Prior to 2014, NMFS established a single BSAI Pacific cod OFL, ABC, and TAC for the combined Bering Sea and Aleutian Islands subareas. At the December 2012 Council meeting, the SSC stated that it would recommend separate Pacific cod OFLs and ABCs for the Bering Sea and Aleutian Islands subareas for the 2014 and 2015 harvest specifications based on the best available scientific information. Separate Bering Sea and Aleutian Islands OFLs and ABCs require separate Bering Sea and Aleutian Islands TACs. The Council recommended and NMFS implemented separate Bering Sea and Aleutian Islands OFLs, ABCs, and TACs beginning in 2014 under the 2014 and 2015 final harvest specifications for the BSAI groundfish fisheries (79 FR 12108, March 4, 2014).

Establishing a separate Pacific cod OFL, ABC, and TAC for the Aleutian Islands resulted in a substantial reduction in the amount of Pacific cod available for harvest in the Aleutian Islands subarea compared to previous years when Pacific cod was managed with a combined BSAI Pacific cod OFL, ABC, and TAC. The 2014 Aleutian Islands Pacific cod TAC is 6,997 metric tons (mt) compared to the 2013 BSAI TAC of 260,000 mt—an amount that could have been harvested in its entirety in either the Bering Sea or Aleutian Island subareas (78 FR 13813, March 1, 2013). Separate management of Pacific cod TAC in the Aleutian Islands greatly reduces the potential impacts of the Pacific cod fisheries on Steller sea lion Pacific cod prey resources. Additional detail on the impact of establishing separate management for Pacific cod in the Aleutian Islands and Bering Sea is provided in Chapters 3 and 8 of the EIS (See ADDRESSES).

American Fisheries Act—Bering Sea Pollock Management

The American Fisheries Act (AFA) was signed into law in October 1998 (Pub. L. 105-227, Title II of Division C). The purpose of the AFA was to clarify U.S. ownership standards for U.S. fishing vessels and to provide the Bering Sea pollock fleet the opportunity to conduct their fishery in a more rational manner while protecting non-AFA participants in the other fisheries. The AFA eliminated the race for Bering Sea pollock through the establishment of cooperatives that were eligible to receive exclusive harvest allocations. The AFA established: specific allocations of Bering Sea pollock; requirements for participation by catcher/processors, catcher vessels, motherships, and processors; excessive share limits; monitoring and enforcement provisions; and annual reporting requirements.

In response to a directive in the AFA, the Council recommended and NMFS established sideboard limits to protect other fisheries from the potential adverse effects arising from the exclusive allocation of Bering Sea pollock under the AFA. Cooperative fishing began under the AFA program in 1999. The effects of AFA on the Bering Sea pollock industry were tremendous: capacity was reduced, efficiency was increased, regulatory bycatch was reduced, a higher portion of the fish was utilized, and higher valued products were produced. More information regarding the AFA program is available from the final rule implementing the AFA (67 FR 79692, December 30, 2002).

Aleutian Islands Pollock Management

In 1999, NMFS closed the Aleutian Islands subarea to directed pollock fishing due to concerns about the potential impact of the pollock fishery on Steller sea lions (64 FR 3437, January 22, 1999). In 2003, NMFS prohibited directed fishing for pollock inside Steller sea lion critical habitat in the Aleutian Islands subarea as a Steller sea lion protection measure (68 FR 204, January 2, 2003).

NMFS allocates a portion of the Aleutian Islands pollock to the Aleut Start Printed Page 37490Corporation, pursuant to the requirements of the Consolidated Appropriations Act of 2004 (Public Law 108-199). NMFS implemented this allocation with Amendment 82 to the FMP in November 2004 (69 FR 67107, November 16, 2004). Regulations implementing Amendment 82 define the amount of pollock TAC that may be allocated in the Aleutian Islands, and how the Aleut Corporation may harvest its portion of this allocation.

When the Aleutian Islands pollock ABC is less than 19,000 mt, the annual TAC is not greater than the ABC; when the ABC is greater than 19,000 mt, the TAC is equal to 19,000 mt (see § 679.20(a)(5)(iii)). Once the TAC is determined, the Aleutian Islands pollock TAC is allocated to the Aleut Corporation as a directed fishery allowance after subtracting the CDQ Program allocation of 10 percent of the TAC, and after subtracting an incidental catch allowance to accommodate the catch of pollock in non-pollock directed fisheries (e.g., the incidental catch of pollock in the directed fishery for Pacific cod). The directed fishery allowance provided to the Aleut Corporation is subject to seasonal apportionment.

Regulations require that 50 percent of the Aleut Corporation's pollock allocation must be harvested by vessels less than 60 feet in length overall (see § 679.20(a)(5)(iii)(B)(5)). The Aleut Corporation may harvest the remaining 50 percent of the pollock allocation with vessels greater than 60 feet length overall. Any vessel greater than 60 feet in length overall that is used to harvest the pollock allocation must be permitted as an AFA vessel (see § 679.4(m)(3)(i)(C)).

Pollock occurs primarily inside Steller sea lion critical habitat in the Aleutian Islands. The existing closure of critical habitat in the Aleutian Islands to directed fishing has effectively precluded directed fishing in the Aleutian Islands. Therefore, the Aleutian Islands pollock allocation has not been fully harvested by the Aleut Corporation and is reallocated each year to the Bering Sea pollock fishery when the Bering Sea pollock TAC is set sufficiently below the ABC. Additional detail on pollock harvests in the Aleutian Islands and the reallocation to the Bering Sea is provided in Chapters 3 and 8 of the EIS.

Amendment 78 Habitat Protection Measures

Amendment 78 to the FMP established Aleutian Islands habitat protection measures and closed a large portion of the Aleutian Islands subarea to nonpelagic trawling. These closures were implemented in 2006 (71 FR 36694, June 28, 2006) and revised in 2008 (73 FR 9035, February 19, 2008). Nonpelagic trawl gear is used for harvesting Atka mackerel and Pacific cod. The Amendment 78 closures to nonpelagic trawling include the Aleutian Islands Habitat Conservation Area (AIHCA), the Aleutian Islands Coral Habitat Protection Areas, and the Bowers Ridge Habitat Conservation Zone. The AIHCA closed most of the Aleutian Islands subarea to nonpelagic trawling (a 279,114 nm2 closure), but left open some areas where nonpelagic trawling historically occurred. The Aleutian Islands Coral Habitat Protection Areas are relatively small, discrete areas closed to all bottom contact gear, including nonpelagic trawl gear. The Bowers Ridge Habitat Conservation Zone, located in the northern portion of Areas 542 and 543, is closed to mobile bottom contact gear, including nonpelagic trawl gear (two areas totaling a 5,329 nm2 closure). These closures, in combination with the Steller sea lion protection measures, substantially limit the locations available for nonpelagic trawling in the Aleutian Islands subarea (see Figures 2-27 and 2-28 in the EIS).

Steller Sea Lion Protection Measures

Section 3.5.3 of the FMP, approved by the Secretary of Commerce under the Magnuson-Stevens Act, authorizes regulations for fishery management measures to protect marine mammals, without requiring amendment of the FMP itself (see ADDRESSES). Steller sea lion protection measures for the Alaska groundfish fisheries have been implemented under this FMP authority since 1998. Since 1998, Steller sea lion protection measures have been revised several times. NMFS has conducted several ESA consultations to assess the impact of the groundfish fisheries on Steller sea lions. Previous actions to implement Steller sea lion protection measures and their accompanying ESA consultations have been subject to litigation. A detailed history of previous Steller sea lion protection measures, ESA section 7 consultations (i.e., biological opinions), and litigation is provided in Chapter 1 of the EIS (see ADDRESSES). The following sections of the preamble summarize recent ESA section 7 consultations, rulemaking, and litigation.

FMP BiOp

In April 2006, NMFS SFD reinitiated ESA section 7 consultation with NMFS PRD on the potential effects of the Alaska groundfish fisheries on ESA-listed species and their designated critical habitat. Consultation was reinitiated in consideration of new scientific information and changes to fisheries management since the 2003 supplement to the 2001 BiOp on the groundfish fisheries (see ADDRESSES). After reviewing all ESA-listed species within NMFS' jurisdiction that may be affected by the Alaska groundfish fisheries, NMFS SFD determined that the Alaska groundfish fisheries were likely to adversely affect Steller sea lions and their designated critical habitat; therefore, a formal consultation was required.

In November 2010, NMFS PRD completed the FMP BiOp on the effects of the authorization of the Alaska groundfish fisheries on Steller sea lions. The FMP BiOp determined that NMFS SFD could not insure that the Alaska groundfish fisheries were not likely to jeopardize the continued existence of Steller sea lions or result in the destruction or adverse modification of their designated critical habitat (collectively referred to as “jeopardy”). The Alaska groundfish fisheries of concern were located in the Central and Western sub-regions of the Aleutian Islands, based on the population trends of the Steller sea lions and the harvest of principal prey species by the groundfish fisheries in these sub-regions. These sub-regions are identified in the 2008 Revised Steller Sea Lion Recovery Plan (see ADDRESSES). As described in the Recovery Plan, the Central sub-region comprises Areas 541 and 542 and the Western sub-region is Area 543.

The FMP BiOp determined that Atka mackerel and Pacific cod fisheries in the Western Aleutian Islands sub-region and portions of the Central Aleutian Islands sub-region may reduce the availability of prey to the extent that a Steller sea lion's condition, growth, reproduction, or survival is diminished. This presumed competition between Steller sea lions and the groundfish fisheries led NMFS PRD to determine that NMFS SFD could not insure that its action was not likely to jeopardize Steller sea lions. The FMP BiOp determined that changes to the Pacific cod and Atka mackerel fisheries in the Aleutian Islands were necessary to avoid jeopardy for Steller sea lions. The FMP BiOp included a reasonable and prudent alternative (RPA) to mitigate the effects of the Alaska groundfish fisheries on Steller sea lions and their critical habitat. The RPA focused on the Atka mackerel and Pacific cod fisheries in the BSAI, and included performance standards to provide more restrictive measures on the harvest of Steller sea Start Printed Page 37491lion prey species in areas where declines in Steller sea lion populations were most evident. Those performance standards helped to guide the initial development of the measures that would be implemented by the proposed rule.

The FMP BiOp, the supporting science, and its findings are controversial. This controversy reflects differences in opinion on the interpretation of scientific information and on the application of law in fisheries management. NMFS sponsored a review of the FMP BiOp by the Center for Independent Experts. The States of Alaska and Washington also sponsored an external review of the FMP BiOp. Information on these reviews is available in the 2014 BiOp (see ADDRESSES) and from the NMFS Alaska Region Web site at http://alaskafisheries.noaa.gov/​protectedresources/​stellers/​esa/​biop/​final/​cie/​review.htm.

2010 Interim Final Rule

In December 2010, NMFS published an interim final rule that implemented the RPA in the FMP BiOp (75 FR 77535, December 13, 2010, corrected 75 FR 81921, December 29, 2010). The 2010 Interim Final Rule became effective January 1, 2011. Fishery restrictions were focused primarily on the Atka mackerel and Pacific cod fisheries in the Aleutian Islands subarea, with only a minor change made to the Atka mackerel fishery in the Bering Sea subarea to provide for management of the combined Area 541/Bering Sea TAC.

Litigation

The State of Alaska, the Alaska Seafood Cooperative, and the Freezer Longline Coalition filed suit against NMFS in the U.S. District Court for the District of Alaska in December 2010 on the FMP BiOp and the 2010 Interim Final Rule implemented by NMFS. The Court found that NMFS properly applied the ESA, the Magnuson-Stevens Act, and the Administrative Procedure Act in the development of the FMP BiOp and in the implementation of the 2010 Interim Final Rule. The Court found that the agency's NEPA process for preparing the environmental assessment (EA) for the 2010 Interim Final Rule did not provide the public with sufficient opportunity for review and comment and that the conclusions of the EA were highly controversial and uncertain. Based on these findings, the court ordered NMFS to prepare an environmental impact statement (EIS). The court ordered the EIS to be completed by August 15, 2014 (Case 3:10-cv-00271-TMB Document 193, filed February 20, 2014).

EIS and Preferred Alternative

NMFS published a notice of intent to prepare the EIS in the Federal Register on April 17, 2012 (77 FR 22750). The scoping period for the EIS was approximately 6 months with the period ending October 15, 2012. NMFS also held a public scoping meeting in coordination with a Council meeting on October 2, 2012 (77 FR 52674, August 30, 2012).

The Council and NMFS developed the purpose and need for the proposed action in the EIS (see Section 1.3 of the EIS). The proposed action is needed to comply with the ESA requirement that a Federal agency insure that the agency's actions are not likely to jeopardize the continued existence of endangered species or destroy or adversely modify its critical habitat. The purpose of this action is to implement Steller sea lion protection measures for the Aleutian Islands groundfish fisheries, and supporting research, in a manner that mitigates the Aleutian Islands groundfish fisheries' potential impacts on Steller sea lions and minimizes, to the extent practicable, economic impacts to the groundfish fisheries.

The action area considered in the EIS is the Aleutian Islands reporting areas, with an adjustment to the Atka mackerel fishery management in the Bering Sea. The EIS focused on the fisheries that may affect Steller sea lions or their critical habitat in the Aleutian Islands because that is where Steller sea lions are experiencing the greatest population declines.

In April 2013, the Council recommended a preliminary preferred alternative (PPA, Alternative 5) for the public's consideration during the review and comment period on the draft EIS. The Council considered recommendations from its Steller Sea Lion Mitigation Committee, SSC, Advisory Panel, and public testimony in developing their recommended PPA for the draft EIS. NMFS identified the PPA in the draft EIS and released the draft EIS for public review on May 17, 2013 (78 FR 29131). The comment period for the draft EIS ended July 16, 2013. NMFS summarized and responded to all relevant public comments received during the comment period in the Comment Analysis Report, Chapter 13 of the final EIS. NMFS published the final EIS on May 23, 2014 (see ADDRESSES).

The final EIS describes in detail the six alternatives for the proposed action. These alternatives were developed through a collaborative process with the Council and its Steller Sea Lion Mitigation Committee, and in consideration of public comments received during the scoping process for the EIS and during the public review of the draft EIS. All of the alternatives were developed with the understanding that a preferred alternative could only be selected as the proposed action, and implemented through rule making, if NMFS could insure that the action was not likely to jeopardize the continued existence of the Steller sea lions or result in destruction or adverse modification of their designated critical habitat. The Council and NMFS understood that a preferred alternative and any resulting rule must meet the requirements of the ESA before factors that minimize, to the extent practicable, the economic impacts on fishery participants could be considered.

NMFS analyzed two broad categories of potential measures under all of the alternatives. First, under each alternative NMFS analyzed a range of Steller sea lion protection measures in the BSAI that varied among the alternatives. Second, under each alternative, NMFS analyzed the effects of potential fishery research that could be conducted in the BSAI that may affect Steller sea lions. The same potential fishery research provisions were considered under each of the alternatives.

The decision analyzed in the EIS was whether to maintain the existing suite of Steller sea lion protection measures (Alternative 1, the 2010 Interim Final Rule) or to implement a new suite of Steller sea lion protection measures (Alternatives 2, 3, 4, 5, or 6). To provide a comprehensive analysis of the effects of the alternatives, the EIS compares the six alternatives relative to each other and relative to a baseline period used to assess the environmental conditions affecting Steller sea lions (generally from 2004 through 2010).

The alternatives ranged from Alternative 6, an alternative that would restrict fishing more than the status quo alternative (Alternative 1), to Alternative 4, the alternative that would allow the most fishing opportunities. Alternative 4 would reinstate the Steller sea lion protection measures that were in place prior to the 2010 Interim Final Rule, with a few exceptions. Alternatives 2, 3, and 5 provided more fishing opportunities and fewer protection measures than Alternative 6, but included more protection measures than Alternative 4. NMFS added Alternative 6 to the final EIS in response to public comments that requested an alternative that restricted fishing more Start Printed Page 37492than Alternative 1. Additional description of the alternatives is available in the EIS and not addressed further here (see ADDRESSES).

In October 2013, after consideration of public comments received on the draft EIS, advice from its Steller Sea Lion Mitigation Committee, input from the Council's Advisory Panel and SSC, and public comment, the Council recommended Alternative 5 as the preferred alternative for the final EIS. Alternative 5 is a suite of management measures for the Atka mackerel, Pacific cod, and pollock fisheries that include fishery closures and limitations on catch in specific areas to mitigate the potential adverse effects of fishing on Steller sea lion prey resources. Alternative 5 would allow more fishing than under Alternative 1, but retains and modifies important Steller sea lion protection measures already in place. Alternative 5 would include authorization for specific fishery research in the BSAI.

The Council recommended Alternative 5 as the preferred alternative based on the analysis in the draft EIS, public comments, and the best available scientific information including the findings of the external scientific reviews conducted by the Center for Independent Experts on behalf of NMFS and the panel convened by the States of Alaska and Washington. In recommending Alternative 5 as its preferred alternative, the Council determined that Alternative 5 would implement management measures that protect Steller sea lions as required by the ESA. The Council determined that Alternative 5 would protect specific areas that are important to Steller sea lions, and include specific harvest limits on the amount of fishing within Steller sea lion critical habitat in order to protect Steller sea lion prey availability. Alternative 5 maintains a careful approach to fishing for Steller sea lion prey species in critical habitat by spatially and temporally dispersing catch to prevent localized depletion of these important prey resources.

The Council determined that Alternative 5 is necessary to minimize economic impacts on fishery participants. The EIS found that direct, indirect, and cumulative effects of Alternative 5 on the human environment, including Steller sea lions, were similar to those effects under status quo with the exception that Alternative 5 would enhance fishing opportunities and minimize potential economic impacts. The EIS indicates that additional restrictions on fisheries beyond those considered under Alternative 5 (e.g., Alternatives 1 and 6) may result in additional economic harm to participants in the regulated fisheries, and would not meet the secondary objective of the proposed action.

2014 BiOp

On May 10, 2013, NMFS reinitiated ESA section 7 consultation on the effect of the proposed action (Alternative 5) to revise Steller sea lion protection measures. NMFS reinitiated consultation because the proposed action would change the current management of fisheries in the BSAI. Therefore, the proposed action may result in effects not previously analyzed in the FMP BiOp. Additionally, the research provisions of the proposed action were not considered in the FMP BiOp.

Because the proposed action would modify Steller sea lion protection measures primarily in the Aleutian Islands Atka mackerel, Pacific cod, and pollock fisheries, NMFS did a project-level, focused consultation. The 2014 BiOp is the result of that consultation. The 2014 BiOp did not entirely replace the previous FMP BiOp. The analysis contained in the FMP BiOp remains valid and meets NMFS' requirement to consult at the FMP level.

New information in the external reviews of the FMP BiOp and the new analyses that NMFS conducted in response to those external reviews were incorporated into the 2014 BiOp to further understand the effects of the groundfish fisheries on Steller sea lions. The 2014 BiOp considered whether NMFS has insured that the proposed Aleutian Islands Atka mackerel, Pacific cod, and pollock fisheries and their supporting research are not likely to cause jeopardy for Steller sea lions. On April 2, 2014, NMFS issued the 2014 BiOp.

The 2014 BiOp found that the implementation of the proposed action described in the EIS (i.e., Alternative 5) was not likely to jeopardize the continued existence of Steller sea lions and was not likely to destroy or adversely modify designated Steller sea lion critical habitat. The conclusions in the 2014 BiOp were reached after considering the best scientific and commercial information available, including Steller sea lion behavior and fisheries data. The 2014 BiOp concludes that the proposed action would establish Steller sea lion protection measures for the Atka mackerel, Pacific cod, and pollock fisheries in the Aleutian Islands subarea that spatially, temporally, and globally disperse fishing to mitigate potential competition for prey resources between Steller sea lions and these fisheries. Spatial and temporal fishery dispersion is accomplished through closure areas, harvest limits, seasonal apportionment of harvest limits, and limits on participation in a fishery. The proposed action would retain or modify existing closure areas, harvest limits, seasonal apportionment of harvest limits, and limits on participation in ways that are designed to limit competition for prey with Steller sea lions.

The best available scientific information suggests that the effects of the groundfish fisheries on Steller sea lions may be greatest around rookeries and haulouts due to the overlap of foraging Steller sea lions and harvest of their prey species in the fisheries (see Chapter 5 of the EIS and Section 5.4 of the 2014 BiOp). This proposed action limits fishing to the greatest extent from 0 nm to 3 nm from rookeries and haulouts, which corresponds with the highest observed at-sea use by as adult female, young-of-the-year, and juvenile Steller sea lions as shown in the Steller sea lion telemetry data described in the 2014 BiOp.

The 2014 BiOP identified the importance of maintaining global, or broad scale, limits on the harvest of Atka mackerel, Pacific cod, and pollock. Global limits are currently in place for these three species. Regulations prohibit directed fishing in the BSAI or GOA if the projected spawning biomass of the fish stock falls below 20 percent of the unfished spawning biomass (see regulations at § 679.20(d)(4)). Atka mackerel, Pacific cod, and pollock fisheries have not experienced this type of directed fishing closure since global limits became effective in 2003 (68 FR 204, January 2, 2003).

Proposed Regulatory Provisions

This proposed action would implement Alternative 5, the Council's preferred alternative for Steller sea lion protection measures. Many of the provisions in this proposed action are the same as provisions implemented in the 2010 Interim Final Rule (75 FR 77535, December 13, 2010; corrected 75 FR 81921, December 29, 2010). This section of the preamble explains each provision and notes when the provision is the same as the 2010 Interim Final Rule, a modification of the 2010 Interim Final Rule, or a new provision. All these provisions should be considered together as the proposed action, and NMFS has determined that the public should be provided another opportunity to comment on the 2010 Interim Final Rule regulatory amendments based on the new information.

The following sections describe the general provisions of this proposed action: (1) Removal of the retention Start Printed Page 37493prohibition for Atka mackerel and Pacific cod fisheries in Area 543; (2) harvest limits and closures for the Atka mackerel, Pacific cod, and pollock fisheries in Areas 543, 542, and 541; and (3) general management measures for groundfish fisheries in the BSAI.

Removal of Atka Mackerel and Pacific Cod Retention Prohibitions in Area 543

This proposed action would allow the retention of Pacific cod and Atka mackerel in Area 543 subject to harvest limits addressed in the next section of the preamble. This proposed action would remove the prohibition on the retention of Pacific cod and Atka mackerel in Area 543 at § 679.7(a)(19). This prohibition was implemented under the 2010 Interim Final Rule. Currently, Atka mackerel and Pacific cod cannot be retained in a directed fishery or when incidentally caught in other groundfish fisheries in Area 543. The Council recommended and NMFS proposes to remove the retention prohibition throughout all of Area 543 (i.e., inside and outside of critical habitat) and instead limit Atka mackerel and Pacific cod harvest in Area 543.

By removing the retention prohibition, directed fisheries for Atka mackerel and Pacific cod could occur in Area 543. In addition, Atka mackerel and Pacific cod could be retained if they are incidentally harvested in other non-directed fisheries throughout all of Area 543 (e.g., incidental harvest of Atka mackerel could be retained in a Pacific ocean perch fishery). Incidental harvest of Atka mackerel and Pacific cod would still be limited by Maximum Retainable Amounts (MRAs). MRAs limit the amount of species that a vessel operator can retain if a species is not open for directed fishing. Regulations at § 679.20(e) and (f), and Tables 10 and 11 to 50 CFR part 679, establish MRA percentages for groundfish species and species groups. Chapter 8 of the EIS provides additional detail on the management of MRA limits.

The 2014 BiOp considered a range of information to assess the potential effects of allowing retention of Atka mackerel and Pacific cod in Area 543. Satellite telemetry tags have been deployed on adult female and juvenile Steller sea lions in Areas 541, 542, and 543 to understand sea lion movements and at-sea distribution. The at-sea location data collected from these telemetry tags have been grouped into summer (April through September) and winter (October through March) time periods. Based on telemetry analyses completed for the 2014 BiOp, over 90 percent of the winter and summer juvenile locations and the summer adult female locations were within 20 nm from listed rookeries or haulouts, and 80.6 percent of the winter adult female locations were within 20 nm from listed rookeries or haulouts. Based on these data, the 2014 BiOp concluded that there is less concern about potential interactions between fisheries and Steller sea lions farther than 20 nm from listed rookeries or haulouts. This conclusion is consistent with BiOp NMFS conducted in 2001 (see ADDRESSES).

Allowing retention for Pacific cod and Atka mackerel outside of critical habitat (i.e., further than 20 nm from listed rookeries or haulouts) in Area 543 is consistent with the need to protect Steller sea lion prey resources in areas most important to foraging Steller sea lions while providing the opportunity for fishery harvests in areas where there is less potential for competition between fisheries and foraging Steller sea lions. Allowing retention within critical habitat in Area 543 would be consistent with the need to protect Steller sea lions, provided that the total amount of TAC taken in Area 543 is limited and directed fishing, the source of greatest retention, is further limited near Steller sea lion rookeries and haulouts. These harvest limitations are described in greater detail in the following section of the preamble.

Atka Mackerel Harvest Limits in Areas 543 and 542

This proposed action would establish two harvest limits for Atka mackerel in Area 543. The first limit would set the annual TAC at an amount no greater than 65 percent of the ABC in Area 543. Prior to the implementation of the 2010 Interim Final Rule in 2011, Atka mackerel harvest in Area 543 inside critical habitat was limited to 60 percent of the TAC, but the full amount of the TAC could be taken in Area 543 as a whole during a year. The proposed area-wide TAC limit of 65 percent of the ABC in Area 543 would provide limited fishing opportunity inside and outside critical habitat at a level similar to the previous limit that applied only inside critical habitat. The Council and NMFS recommended this measure to ensure the overall harvest in Area 543 would not be likely to impact the area-wide availability of Atka mackerel prey resources for Steller sea lions while allowing some harvesting of Atka mackerel in Area 543.

This second limit would allow no more than 60 percent of the annual TAC, evenly apportioned between the A and B seasons, to be harvested in critical habitat west of 178° W longitude. This area includes all of Area 543 and the western portion of Area 542. The 2010 Interim Final Rule implemented equally apportioned Atka mackerel harvest in critical habitat between two seasons. The Council and NMFS recommend retaining this measure, but modifying it to apply to Area 543 and the western portion of 542 to spatially and temporally disperse catch in Steller sea lion critical habitat to protect potential prey resources. This limit would apply to waters near Steller sea lion rookery or haulout sites where pup and nonpup counts have been declining. It would provide additional potential protection to prey resources inside critical habitat where the Steller sea lion population has been observed to be declining. This limit in critical habitat harvest would balance the need to protect Steller sea lion prey resources, consistent with the FMP BiOp performance standards (see Section 8.2.2 of the FMP BiOP), with the opportunity to harvest Atka mackerel in a few locations available to fishing within critical habitat. Atka mackerel fishing is effectively prohibited in most critical habitat in the Aleutian Islands due to the nonpelagic trawl closures in the AIHCA (see Figure 2-27 in EIS and Section 5.3.4 in 2014 BiOp for additional detail).

Atka Mackerel Fisheries Closures in Area 543

This proposed action would prohibit directed fishing with trawl gear for Atka mackerel in waters from 0 nm to 3 nm from haulouts and from 0 nm to 10 nm from rookeries in Area 543. The Council recommended and NMFS proposes this prohibition to protect Steller sea lion critical habitat, providing more protection to areas around rookeries where adult females and juveniles are more dependent on nearshore prey resources. The existing AIHCA closures in Area 543 in addition to the proposed closures under this action would result in a spatial closure of 76 percent of critical habitat in Area 543 to Atka mackerel directed fishing (see Figure 2-27 in EIS and Section 5.2 in 2014 BiOp).

Pacific Cod Harvest Limit in Area 543

This proposed action would establish a harvest limit for Pacific cod based on abundance in Area 543 as determined by the annual stock assessment process. The Council recommends and NMFS proposes this measure to limit catch in the portion of the Aleutian Islands where Steller sea lions have experienced the greatest decline. This limit would vary from year-to-year depending on stock abundance but would ensure that limits are retained on total harvest. For example, under this proposed limit the Pacific cod catch Start Printed Page 37494limit would have been 3,359 mt for trawl vessels and 1,082 mt for non-trawl vessels in 2014. This limit would balance protection of area-wide Pacific cod prey resources for Steller sea lions using the best available scientific information on biomass distribution while providing some opportunity for Pacific cod harvests.

Pacific Cod Hook-and-Line and Pot Gear Fisheries Closures in Area 543

The proposed action would prohibit directed fishing for Pacific cod in waters from 0 nm to 3 nm from rookeries and from 0 nm to 10 nm from Buldir Island for hook-and-line and pot gear vessels. Hook-and-line and pot gear is typically deployed in locations closer to shore in the Aleutian Islands compared to trawl gear. This is due to the steep bathymetry in the Aleutian Islands and the limited benthic surface available to hook-and-line and pot gear farther from shore. The Council recommended and NMFS proposes these limited closures in Area 543 to Pacific cod hook-and-line and pot gear because harvests occur in much smaller quantities and at slower rates for these gears than trawl gear. This makes it less likely that hook-and-line and pot gear harvests would result in localized depletion of Steller sea lion prey resources (Section 3.3 in EIS). Allowing harvests of Pacific cod by hook-and-line and pot gear in Steller sea lion critical habitat is less likely to cause localized depletion of Steller sea lion prey resources compared to trawl gear fishing.

Pacific Cod Trawl Fisheries Closures in Area 543

This proposed action would prohibit directed fishing with trawl gear for Pacific cod in waters from 0 nm to 3 nm from haulouts and from 0 nm to 10 nm from rookeries in Area 543. The Council and NMFS recommended this action to protect Steller sea lion prey resources in areas important to adult females, young of the year, and juveniles from the potential effects of trawl fisheries. These closures balance the protection of prey resources within critical habitat with the opportunity to harvest Pacific cod by trawl gear in the limited locations available to trawl gear. Establishing this proposed area closure would result in a spatial closure of 76 percent of critical habitat in Area 543 for Pacific cod trawl gear when considered in the context of the existing AIHCA closures (Figure 2-28 in EIS and Section 5.3.4 in 2014 BiOp). However, NMFS expects that Area 543 Pacific cod harvest amounts under these proposed closures to be not much more than harvest amounts in Area 543 under current regulations established by the 2010 Interim Final Rule because of the change to the Pacific cod TAC explained above under the “BSAI Pacific Cod Management” and anticipated participation in the fishery in that area. Therefore, based on that expectation, the Area 543 Pacific cod fishery is not likely to result in localized depletion of Steller sea lion Pacific cod prey resources (Section 5.4.7 in 2014 BiOp).

Pollock Harvest Limit in Area 543

This proposed action would limit the harvest of pollock to no more than 5 percent of the Aleutian Islands pollock ABC during the A season in Area 543. This limit would apply to all harvests; this includes harvests by the Aleut Corporation, CDQ groups, and the incidental catch of pollock in all other groundfish fisheries. The Council recommended and NMFS proposes setting this pollock harvest limit in Area 543, consistent with the goal of providing more protection to Steller sea lions where more decline in their population is evident (see performance standards described in Section 8.2.2 in FMP BiOp). Area 543 is the location with the apparent greatest decline in Steller sea lion abundance compared to Areas 542 and 541. Therefore, this proposed action would establish more restrictive harvest limits in Area 543 than Areas 542 and 541. The 5-percent harvest limit balances the need for additional protection to prey resources during a time of the year when Steller sea lions are more dependent on pollock while providing opportunity for the development of a limited pollock fishery (Section 5.3.3 in 2014 BiOp).

Pollock Fisheries Closures in Area 543

This proposed action would prohibit directed fishing for pollock in most critical habitat in Area 543. This proposed action would prohibit directed fishing for pollock from 0 nm to 3 nm from Shemya, Alaid, and Chirikof haulouts and from 0 nm to 20 nm at the Agattu rookeries in Area 543, as described in Table 4 to 50 CFR part 679 and shown in Figure 1. This proposed action would prohibit directed fishing for pollock from 0 nm to 20 nm in the two remaining rookeries in Area 543. The Council recommended and NMFS proposes these prohibitions to protect important Steller sea lion prey while providing the opportunity for limited pollock fishing in an area where pollock fishing had historically occurred in Area 543 (Figure 3-18 in EIS). The 2014 BiOp found that very little spatial overlap between Steller sea lions and the pollock fishery would be likely because under this proposed management measure, 95 percent of critical habitat in Area 543 would be closed to pollock fishing (Section 5.3.3 in 2014 BiOp). The 2014 BiOp found that there would be a limited degree of overlap between the depth at which the pollock fishery occurs and Steller sea lion dive patterns in Area 543. Therefore, this proposed action would provide a very limited opportunity for pollock harvests to occur in critical habitat within Area 543 while providing protections to Steller sea lion prey resources. To provide the reader with a better understanding of the specific areas open and closed under this proposed provision, see Figure 1 below.

Start Printed Page 37495

Atka Mackerel Critical Habitat Harvest Restrictions in Area 542

This proposed action would make several modifications to Atka mackerel harvest restrictions in Area 542. First, this proposed action would remove the prohibition on fishing inside of critical habitat around Gramp Rock and Tag Island unless the vessel was assigned to an Amendment 80 cooperative or the CDQ Program, as implemented by the 2010 Interim Final Rule under § 679.7(a)(25). This proposed action would remove this prohibition because limiting vessels in this area would not be necessary to control the rate of fishing within this portion of critical habitat in Area 542. This proposed action would provide additional locations in Steller sea lion critical habitat for Atka mackerel fishing. NMFS expects greater spatial dispersion of Atka mackerel harvests inside critical habitat by providing this additional fishing area.

Second, as noted earlier, this proposed action would limit the amount and seasonal apportionment of the Atka mackerel TAC in critical habitat in the western portion of Area 542. No more than 60 percent of the annual TAC, evenly apportioned between the A and B seasons, could be harvested in critical habitat west of 178° W longitude. The Council recommended and NMFS proposes this limit to ensure that the amount of Atka mackerel harvest is constrained within critical habitat in Area 542 west of 178° W longitude similar to historical harvests levels (see Chapter 3 and 11 in EIS, and Section 5.3.4 in the 2014 BiOp).

Third, this proposed action would remove the Amendment 80 and CDQ harvest restrictions and Area 542 TAC limit for Atka mackerel implemented by the 2010 Interim Final Rule at § 679.20(a)(8)(ii)(C) because these harvest restrictions and TAC limit are not necessary under the proposed Steller sea lion protection measures. As determined by the 2014 BiOp, the Area 542 Atka mackerel harvest anticipated under this proposed action is not likely to cause jeopardy to Steller sea lions, and therefore maintaining these additional restrictions would result in potential economic burden on the fishing industry that is not needed to protect Steller sea lion prey species.

Atka Mackerel Fisheries Closures in Area 542

This proposed action would prohibit directed fishing for Atka mackerel in waters from 0 nm to 3 nm of Steller sea lion haulouts and from 0 nm to 10 nm of Steller sea lion rookeries in Area 542. This proposed action also would prohibit directed fishing for Atka mackerel in waters from 0 nm to 20 nm from Steller sea lion rookeries and haulouts in Area 542 located between 178° E longitude and 180° longitude and east of 178° W longitude. This proposed action would revise the 2010 Interim Final Rule prohibition of directed fishing for Atka mackerel in waters from 0 nm to 20 nm from Steller sea lion rookeries and haulouts in Area 542 located between 177° E longitude and Start Printed Page 37496179° W longitude and between 178° W longitude and 177° W longitude. These proposed changes in the Atka mackerel closure areas would be implemented by revisions to Table 6 to 50 CFR part 679.

Establishing this proposed area closure would result in a spatial closure of 93 percent of critical habitat in Area 542 for Atka mackerel fishing when considered in the context of the existing AIHCA closures (see Figure 2-27 in EIS and Section 5.3.1 in 2014 BiOp). Further, telemetry data do not indicate a spatial overlap between Steller sea lions and the Atka mackerel fishery outside of 10 nm from Steller sea lion rookeries or outside of 3 nm from haulouts in Area 542 (Section 5.3 in 2014 BiOp).

The Council and NMFS recommended these prohibitions based on the best available information from the Alaska Fisheries Science Center Fisheries Interaction Team studies (Chapter 11 in EIS). These studies have shown that Atka mackerel move from inside critical habitat to outside critical habitat near Amchitka, and the abundance of Atka mackerel is relatively low in this area compared to other fishing locations in Area 542. This movement and low abundance of Atka mackerel at Amchitka may make Steller sea lion prey resources inside critical habitat in these areas more susceptible to fishing effects. The proposed closures in Area 542 would provide protection to Steller sea lion Atka mackerel prey resources inside critical habitat where Atka mackerel may be more susceptible to localized depletion. This proposed closure would provide a limited opportunity to harvest Atka mackerel in those areas of critical habitat not otherwise precluded due to the existing AIHCA closures (Section 5.3.4 in 2014 BiOp).

Pacific Cod Non-Trawl Fisheries Closures in Area 542

This proposed action would include three revisions to Area 542 protection measures for the Pacific cod non-trawl fisheries. The first revision would change the current 0 nm to 6 nm closures at Steller sea lion haulouts and rookeries to 0 nm to 3 nm from Steller sea lion rookeries in Area 542 to hook-and-line and pot gear vessels directed fishing for Pacific cod year round. The second revision would remove the prohibition on directed fishing for Pacific cod with jig gear from 0 nm to 6 nm of Steller sea lion haulouts and rookeries as implemented under the 2010 Interim Final Rule in § 679.22(a)(8)(iv) and Table 5 to 50 CFR part 679. The Council recommended and NMFS proposes revising the non-trawl gear Pacific cod closures to allow additional fishing opportunity for these gear types in locations that are less likely to affect prey resources for adult females, young of the year, and juvenile Steller sea lions.

Pot and hook-and-line gear must be deployed in relatively shallow water, and those areas are limited in the Aleutian Islands subarea due to the steep bathymetry. Therefore, vessels using pot and hook-and-line gear generally fish for Pacific cod within 10 nm of Steller sea lion haulouts and rookeries in the Aleutian Islands (Section 3.3 in EIS). This proposed rule would close waters from 0 nm to 3 nm from rookeries to directed fishing for Pacific cod by all non-trawl gears to protect prey resources for females that may be limited in their ability to travel longer distances from a nursing pup and for young Steller sea lions with limited foraging capability (Section 5.2 in 2014 BiOp).

Most of the Pacific cod non-trawl fishing in the Aleutian Islands is with pot and hook-and-line gear, which harvest a smaller portion of the TAC and at a slower rate with more temporal dispersion than trawl gear (Section 3.3 in EIS). Very little Pacific cod is harvested with jig gear in the Aleutian Islands and the rate of harvest by this gear type is low compared to all other fishing gear. Based on the low amount of catch and rate of harvest, critical habitat closures for jig gear would not be required to protect Steller sea lion Pacific cod prey (Section 2.1.1.3 in EIS). Therefore, this proposed action would remove most of the existing limitations on the use of jig gear within critical habitat.

The third revision in Area 542 would remove the prohibition on vessels 60 feet (18.3 m) or greater in length overall using non-trawl gear from directed fishing for Pacific cod in waters from 6 nm to 20 nm from Steller sea lion rookeries and haulouts in Area 542 from January 1, 0001 hours, to March 1, 1200 hours, A.l.t. This prohibition was implemented by the 2010 Interim Final Rule as a footnote to Table 5 to 50 CFR part 679. The Council recommended and NMFS proposes to remove this prohibition on Pacific cod non-trawl vessels fishing in the first quarter of the year (from January 1 to March 1) to further temporally disperse the harvest and to align fishing effort by these vessels with the seasons established in regulation at § 679.23. Generally, non-trawl vessels are able to commence fishing January 1.

Pacific Cod Trawl Fisheries Closures in Area 542

This proposed action would revise protection measures for the Pacific cod trawl fisheries in Area 542. This proposed action would close waters from 0 nm to 10 nm from Steller sea lion rookeries and from 0 nm to 3 nm from Steller sea lion haulouts in Area 542. This proposed action would remove seasonal closures from 0 nm to 20 nm from all Steller sea lion haulouts and rookeries to directed fishing for Pacific cod with trawl gear implemented by the 2010 Interim Final Rule at § 679.22(a)(8)(iv) and in Table 5 to 50 CFR part 679. Closing waters from 0 nm to 10 nm from rookeries and from 0 nm to 3 nm from haulouts would ensure the trawl fisheries are not likely to reduce the availability of prey species for juvenile, young of the year, and adult female Steller sea lions in these waters. The Council recommended and NMFS proposes this measure to maintain protections around Steller sea lion rookeries and haulouts in Area 542 and to provide some opportunity for harvesting Pacific cod with trawl gear.

Steller sea lion telemetry, Platform of Opportunity, and fisheries location data, show very little spatial overlap occurs between Steller sea lions and the Pacific cod trawl fisheries in Area 542 inside critical habitat (Section 5.3.4 in 2014 BiOp). Providing additional opportunity for Pacific cod trawl harvests under this proposed action would not be likely to reduce the available Pacific cod prey resources for Steller sea lions inside critical habitat. Given the large reduction in the Aleutian Islands Pacific cod harvest due to the specification of a separate Aleutian Islands TAC and the small amount of Pacific cod taken historically in Area 542, the 2014 BiOp concluded that under the proposed action the Pacific cod trawl fisheries would not be likely to locally deplete Pacific cod stocks in Area 542.

Pollock Harvest Limit in Area 542

This proposed action would limit harvest of pollock to no more than 15 percent of the Aleutian Islands ABC during the A season in Area 542. This limit would apply to all harvest of pollock. The 15 percent pollock harvest limit for Area 542 would be more restrictive than the harvest limit in Area 541, but less restrictive than the harvest limit in Area 543. The Council recommended and NMFS proposes this action to establish limits on pollock harvest consistent with the FMP BiOp performance standards to provide more protection to Steller sea lions where more decline is evident (Section 8.2.2). Start Printed Page 37497The 15 percent pollock harvest limit in Area 542 would balance the protection of Steller sea lion pollock prey resources in the winter when pollock is most important in the Steller sea lion diet (Section 5.3.3. in 2014 BiOp) with an opportunity for limited pollock harvest in Area 542.

Pollock Fisheries Closures in Area 542

This proposed action would prohibit directed fishing for pollock in waters from 0 nm to 20 nm from rookeries and haulouts west of 178° W longitude as described in Table 4 to part 679 with one exception. This proposed rule would create an open area surrounded by closed critical habitat in the Rat Islands Area. The open area would be established by prohibiting directed fishing for pollock in waters from 0 nm to 3 nm from Hawadax Island/Krysi Point, Tanadak, and Segula haulouts, and from 0 nm to 10 nm from Little Sitkin haulout and Ayugudak rookery as described in Table 4 to 50 CFR part 679 and shown in Figure 1. There would be no pollock fishing within critical habitat (from 0 nm to 20 nm) near the remaining Steller sea lion sites in Area 542.

This proposed action would prohibit directed fishing for pollock in waters from 0 nm to 10 nm from rookeries and from 0 nm to 3 nm from haulouts east of 178° W longitude as described in Table 4 to 50 CFR part 679 with an exception at Kanaga Island/Ship Rock. This proposed action would prohibit directed fishing for pollock in waters from 0 nm to 3 nm from rookeries and haulouts in a portion of Kanaga Sound east of 178° W longitude as described in Table 4 to 50 CFR part 679 and shown in Figure 1. Even though Kanaga Island/Ship Rock is a rookery, reducing the closure at this area from 10 nm to 3 nm would not be expected to result in limitations for Steller sea lion prey resources in this portion of critical habitat due to the overall pollock harvest limit applied to Area 542 and the fact that fishing would occur in winter when Steller sea lions are less likely to be using a rookery.

Overall, the critical habitat closures in Area 542 are more restrictive in the western portion of Area 542 where Steller sea lion abundance has experienced more decline, and less restrictive in the eastern portion of Area 542 where Steller sea lion abundance has experienced less decline. These closures are consistent with the performance standards in the FMP BiOp (Section 8.2.2). The Council recommended and NMFS proposes these closures to protect Steller sea lion pollock prey resources while providing a limited area for pollock fishing where pollock harvests have historically occurred in Area 542 (Section 3.4.3 in EIS and Section 5.3.4 in 2014 BiOp).

Atka Mackerel Fisheries Closures in Area 541

This proposed action would prohibit directed fishing with trawl gear inside critical habitat in Area 541 as implemented by the 2010 Interim Final Rule in Table 6 to 50 CFR part 679, except for a portion of critical habitat around Seguam Island. Maintaining most of the critical habitat Atka mackerel closures in Area 541 is similar with past closures applied to the Atka mackerel fishery in this area, but would allow continued harvest of Atka mackerel in Area 541 in a manner similar to past harvest patterns (Section 3.2 in EIS).

This proposed action would open a portion of critical habitat from 12 nm to 20 nm from Seguam Island as shown in Figure 2. The Atka mackerel fishery in Area 541 is currently concentrated outside of critical habitat near Seguam Island. The Council recommended and NMFS proposes this opening because research shows that there is very little exchange of Atka mackerel biomass between Atka mackerel inside critical habitat areas proximate to the islands around Seguam Pass (inside 12 nm) and Atka mackerel beyond 12 nm (Chapter 11 in EIS). This new information suggests that Atka mackerel outside of 12 nm in critical habitat follow bathymetric contours extending from outside critical habitat to inside critical habitat approximately 12 nm from the Steller sea lion sites at Agligadak, Amlia, and Seguam Islands. This proposed action would open the area shown in Figure 2 to Atka mackerel fishing to disperse fishing effort, thereby preventing localized depletion where Atka mackerel is currently harvested outside critical habitat (Section 3.2 in EIS).

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Pacific Cod Non-Trawl Fisheries Closures in Area 541

This proposed action would close portions of critical habitat to hook-and-line and pot gear directed fishing for Pacific cod in Area 541. This proposed action would prohibit directed fishing for Pacific cod with hook-and-line and pot gear in waters from 0 nm to 3 nm around rookeries west of 172.59° W longitude and in critical habitat from 0 nm to 20 nm east of 172.59° W longitude, as described in Table 5 to 50 CFR part 679. Closing all critical habitat east of 172.59° W longitude in Area 541 to directed fishing for Pacific cod with hook-and-line and pot gear would prevent expansion of the use of hook-and-line and pot gear into a portion of Steller sea lion critical habitat that has not been fished historically (Section 3.3 in EIS).

This proposed action would remove all jig gear closures outside of 3 nm from rookeries in Area 541, except the closure of the Seguam Foraging Area, as implemented by the 2010 Interim Final Rule in Table 5 to 50 CFR part 679, footnote 16. Jig vessels harvest a very small portion of the Pacific cod TAC in Area 541 and at a slow rate. Jig vessels are not likely to cause localized depletion of Steller sea lion Pacific cod prey resources in critical habitat (Section 2.1.1.3 in EIS). This proposed action would also remove the January 1 to March 1 closures for non-trawl gear as implemented by the 2010 Interim Final Rule in footnote 16 to Table 5 to 50 CFR part 679. Removing this restriction for fishing in critical habitat in the winter would allow for further temporal dispersion of fishing effort by non-trawl vessels (Section 2.1.2.3 in EIS).

The Council recommended and NMFS proposes these non-trawl gear closures in Area 541 because they would provide vessels using non-trawl gear access to the limited area within Area 541 that can be effectively fished. These closures would prevent fishing in critical habitat that is used more frequently by foraging Steller sea lions, based on telemetry data (Section 5.3.4 in 2014 BiOp). Prohibiting the use of hook-and-line and pot gear in these closed areas allows for consistent management of hook-and-line and pot gear and avoids incentives to use alternative fishing gear to avoid Steller sea lion protection measures (Section 3.3.3 in EIS).

Pacific Cod Trawl Fisheries Closures in Area 541

This proposed action would close portions of critical habitat in Area 541 Start Printed Page 37499to directed fishing by Federally permitted vessels for Pacific cod with trawl gear. This proposed action would prohibit directed fishing for Pacific cod with trawl gear in waters from 0 nm to 3 nm from haulouts and from 0 nm to 10 nm from rookeries in Area 541, except this proposed action would prohibit directed fishing for Pacific cod with trawl gear in waters from 0 nm to 20 nm from Agligadak Island, as described in Table 5 to 50 CFR part 679. The additional critical habitat closure at Agligadak Island would prevent expansion of the Pacific cod trawl fishery into critical habitat near this rookery, where little fishing for Pacific cod with trawl gear has occurred historically (Section 3.3 in EIS).

This proposed action would remove the trawl closures as implemented by the 2010 Interim Final Rule in Table 5 to 50 CFR part 679, footnote 14 that prohibited directed fishing for Pacific cod with trawl gear in waters from 0 nm to 10 nm from Steller sea lion sites in Area 541 year round and prohibited directed fishing for Pacific cod with trawl gear within 10 nm to 20 nm from Steller sea lion haulouts and rookeries in Area 541 from June 10 to November 1. The Council recommended and NMFS proposes removing these closures because Steller sea lion population trends are better in Area 541 than in Areas 542 and 543. Imposing fewer fishery restrictions in an area of improving Steller sea lion abundance is consistent with the performance standards of the FMP BiOp (Section 8.2.2). NMFS expects the majority of the Pacific cod TAC to be taken by trawl gear in Area 541 in a similar manner as observed from 2004 through 2010. The Pacific cod harvest in Area 541 is expected to be taken in a spatially and temporally compressed fashion in February and March. Overall Pacific cod harvests in Area 541 are expected to be substantially constrained relative to harvests prior to 2010 due to the limited amount of TAC available with the implementation of the Aleutian Islands Pacific cod TAC beginning in 2014 (Section 5.4.7 in 2014 BiOp). Steller sea lion telemetry and Platform of Opportunity location data also show very little spatial overlap between Steller sea lions and the Pacific cod trawl fishery in Area 541 (Section 5.3.4 in 2014 BiOp).

Pollock Harvest Limit in Area 541

This proposed action would limit harvest of pollock to no more than 30 percent of the Aleutian Islands ABC during the A season in Area 541. This limit would apply to all harvest of pollock. The harvest limit would ensure the harvest of pollock is constrained in the winter when pollock harvests are most likely to occur and when pollock appears to be an important part of the Steller sea lion diet (Section 5.3.3 in 2014 BiOp). The harvest limit in Area 541 is higher than in Area 542. This is consistent with the FMP BiOp standards to provide more protection to Steller sea lions where more decline is evident (Section 8.2.2). The Council recommended and NMFS proposes this pollock harvest limit to balance the protection of Steller sea lion prey resources with providing the opportunity for a pollock fishery in Area 541.

Pollock Fisheries Closures in Area 541

This proposed action would prohibit directed fishing for pollock in critical habitat from 0 nm to 10 nm from rookeries and from 0 nm to 3 nm from haulouts in Area 541 as described in Table 4 to 50 CFR part 679. Area 541 pollock closures are the least limiting relative to Areas 542 and 543. This is consistent with the performance standards in the FMP BiOp to provide more protection to Steller sea lion prey where more decline is evident (Section 8.2.2 in FMP BiOp). The Council recommended and NMFS proposes these closures to protect prey availability around important Steller sea lion sites while providing the opportunity to directed fish for pollock in Area 541 in locations where pollock fisheries occurred historically (Section 3.4 in EIS). The impact of the proposed pollock and Pacific cod fisheries combined in Area 541 are expected to be similar to the impact of the Pacific cod fishery alone in Area 541 prior to 2014. Steller sea lion pup and non-pups increased at a non-significant rate from 2004 through 2010 in Area 541 despite temporally compressed Pacific cod and minimal pollock fishing. Thus, NMFS does not expect the proposed Area 541 pollock fishery in combination with the limited harvests in the Pacific cod fishery to reduce the survival or recovery of the central Aleutian Islands sub-population of Steller sea lions (Section 7.3.1 of the 2014 BiOp).

Revisions to the Calculation of Maximum Retainable Amount of Atka Mackerel for Amendment 80 and CDQ Vessels in the Bering Sea Subarea

This proposed action includes a revision to the method for calculating the maximum retainable amount (MRA) of Atka mackerel for Amendment 80 and CDQ Program vessels in the Bering Sea subarea. The Council recommended and NMFS proposes to calculate the MRA based on a proportion of total catch at offload rather than as a calculation based on the proportion of total catch onboard a vessel at a specific time. Modifying MRA regulations in the Bering Sea portion of the combined Area 541/Bering Sea areas for Atka mackerel would be expected to allow greater retention of the incidental harvest of Atka mackerel in the Bering Sea where directed fishing is closed. This would allow more Atka mackerel TAC to be harvested in the Bering Sea subarea rather than the Aleutian Islands. This would further disperse the harvest of Atka mackerel spatially relative to existing management measures. This proposed action is intended to reduce regulatory discards of Atka mackerel harvested in the Bering Sea subarea.

Removal of the Atka Mackerel Harvest Limit Area (HLA) Fishery

As implemented by the 2010 Interim Final Rule, this proposed action would maintain the removal of the Atka mackerel HLA fishery. The 2010 Interim Final Rule eliminated the HLA fishery by removing regulations at §§ 679.2, 679.4(b)(5), 679.20(a)(8)(iii), 679.22(a)(8)(iv)(A), and 679.50(c)(1)(x); and by revising Tables 5 and 6 to 50 CFR part 679, and regulations at §§ 679.7(a)(19), 679.20(a)(8)(ii)(C), and 679.20(c)(6). These removals and revisions would be maintained under this proposed action, except §§ 679.7(a)(19) and 679.20(a)(8)(ii)(C), which would be further revised, as explained in the “Specific Regulatory Amendments” section of the preamble. Under the 2003 Steller sea lion protection measures, the harvest of Atka mackerel inside Steller sea lion critical habitat in Area 543 and the western portion of Area 542 was dispersed by controlling the harvest of Atka mackerel inside the HLA. The HLA included designated critical habitat and waters from 0 nm to 20 nm around other locations identified as important to Steller sea lions. A lottery system assigned vessels to platoons that were allowed to fish inside the HLA in specific locations and at specific times. The details of the HLA fishery are described in the 2003 final rule for Steller sea lion protection measures (68 FR 204, January 2, 2003).

The Council and NMFS recommended retaining the elimination of the HLA fishery because it does not disperse fishing temporally and spatially as well as fishing practices observed under the Amendment 80 Program. Since the implementation of the Amendment 80 Program in 2007 (72 FR 52668, September 14, 2007), the Amendment 80 fleet has modified their fishing patterns for Atka mackerel Start Printed Page 37500resulting in a broader distribution of fishing and reduced catch rates relative to the HLA fishery. This change in fishing patterns is due to the fact that Atka mackerel is now harvested by Amendment 80 cooperatives. The cooperative management system under the Amendment 80 Program removes the incentive for a race for fish and provides the Amendment 80 fleet greater opportunity to spread the harvest over time and area than the HLA fishery. Because the Amendment 80 Program is allocated almost all of the available Atka mackerel TACs in the Aleutian Islands, the fishing patterns of Amendment 80 cooperatives are applicable to Atka mackerel fishing generally.

Regulations implementing the HLA fishery required Atka mackerel to be harvested during discrete periods, resulting in a greater concentration of Atka mackerel harvest than has been observed with cooperative management under the Amendment 80 Program. The HLA fishery is not necessary to limit vessel participation as that occurs through the provisions of the Amendment 80 Program cooperative. This proposed action would retain the elimination of the HLA fishery.

Modified Atka Mackerel Trawl Gear Season Dates and CDQ Seasonal Apportions

This proposed action would largely maintain the modified season dates for the Aleutian Islands Atka mackerel trawl fishery and Atka mackerel CDQ seasonal apportions as implemented by the 2010 Interim Final Rule. The 2010 Interim Final Rule revised §§ 679.20(a)(8)(ii)(A), 679.23(e)(3), and (e)(4)(iii) for the Atka mackerel season dates and apportionments. Except for § 679.23(e)(3)(ii), this proposed action would not change the revisions established by the 2010 Interim Final Rule. This proposed action would maintain the protection measures in § 679.20(a)(8)(ii)(A) implemented under the 2010 Interim Final Rule that evenly divide the harvest of TAC between the A and B seasons and applied this seasonal apportionment of Atka mackerel harvests in Area 543, Area 542, and the combined Area 541/Bering Sea. The 2010 Interim Final Rule extended the Atka mackerel seasons by changing the Atka mackerel trawl A season end date and B season start date to June 10 under § 679.23(e)(3)(i); this was recommended by the Council and NMFS to align the Atka mackerel seasons with the Aleutian Islands pollock and Pacific cod trawl fisheries and to temporally disperse catch.

This proposed action would revise § 679.23(e)(3)(ii) to extend the Atka mackerel B season in Areas 543, 542, and Area 541/Bering Sea relative to the 2010 Interim Final Rule. This proposed action would extend the B season until December 31, 1200 hours, A.l.t., relative to the November 1 season end date established by the 2010 Interim Final Rule. This season revision would apply to the Aleutian Islands and Bering Sea subareas. The Council recommended and NMFS proposes these proposed changes to the Area 543, Area 542, and Area 541/Bering Sea Atka mackerel seasons to provide additional temporal dispersion of Atka mackerel harvest by trawl gear. This temporal dispersion would reduce the potential effects on Steller sea lion prey availability and provide additional time for Atka mackerel fishing. This revision is consistent with the performance standard to temporally disperse harvest of Steller sea lion prey species (Section 8.2.2 in FMP BiOp).

The 2010 Interim Final Rule added a provision at § 679.7(d)(10) prohibiting CDQ groups from exceeding the CDQ Atka mackerel seasonal allocations. This paragraph was redesignated as § 679.7(d)(7) by a final rule for the CDQ program on March 2, 2012 (77 FR 6492, February 8, 2012). This proposed action would retain this prohibition, which is consistent with seasonal harvest limitations applied to non-CDQ Atka mackerel fisheries.

Prohibit the Harvest of Atka Mackerel Seasonal Rollover Inside Critical Habitat

This proposed action would prohibit the reallocation, commonly known as a rollover, of Atka mackerel TAC that is unused in one season to the following season during a calendar year if that rollover would allow additional harvests inside Steller sea lion critical habitat in Area 541/Bering Sea, Area 542, and Area 543. The Council recommended and NMFS proposes this provision to limit the amount of harvest that could occur in critical habitat to further protect Atka mackerel prey resources for Steller sea lions inside critical habitat.

Pacific Cod Trawl Seasons

This proposed action would extend the Pacific cod trawl C season to December 31, 1200 hours, A.l.t., for Amendment 80 and CDQ trawl vessels. The Council recommended and NMFS proposes extending the season to December 31 for Amendment 80 and CDQ Program trawl vessels to avoid regulatory discard of Pacific cod harvested by trawl gear in November and December. Amendment 80 cooperative and CDQ Program trawl vessels conduct their fishing under catch share programs that temporally disperse harvest. It is expected that Amendment 80 cooperatives and CDQ Program trawl vessels will continue to operate in a way that temporally disperses harvest; therefore, the season is extended to December 31 to allow additional temporal dispersion of harvests. This proposed change is consistent with performance standards that seek to temporally disperse harvest of Steller sea lion prey species (Section 8.2.2 in FMP BiOp).

Pacific cod harvests by other trawl fishery sectors (i.e., non-Amendment 80 Program and non-CDQ Program participants) are not uniformly managed under a catch share program; therefore, these sectors may not temporally disperse their harvests. Therefore, no additional C season extension is proposed for these other trawl fishery sectors. This proposed season change for Amendment 80 and CDQ Program trawl vessels would balance the recognition that these sectors can spread out their harvests temporally, while considering the importance of providing Pacific cod prey resources to Steller sea lions in winter. This proposed action would provide greater overall temporal dispersion of Pacific cod harvests and would not be expected to impact Steller sea lion prey resource availability.

Pacific Cod Non-Trawl Seasons

This proposed action would remove the prohibition on directed fishing for Pacific cod with non-trawl gear (jig, pot, and hook-and-line) from November 1 to December 31, which was implemented by the 2010 Interim Final Rule under § 679.7(a)(23). Removing this prohibition would provide additional temporal dispersion of Pacific cod fishing by vessels using non-trawl gear. Vessels using non-trawl gear are less likely to harvest amounts of Pacific cod, or harvest at rates in November or December, that could result in localized depletion of Steller sea lion prey resources relative to trawl gear (Section 3.3 in EIS).

Kanaga Island/Ship Rock Groundfish Closure

This proposed action would maintain the protection measures implemented under the 2010 Interim Final Rule that close directed fishing for groundfish by Federally permitted vessels in waters from 0 nm to 3 nm from the Kanaga Island/Ship Rock rookery. This closure was implemented by revising Table 12 to 50 CFR part 679. This site is listed as a haulout under critical habitat Start Printed Page 37501regulations (50 CFR 226.202); however, recent information indicates that it now functions as a rookery. The rookeries listed in Table 12 to 50 CFR part 679 are surrounded by groundfish fishery closures that extend from 0 nm to 3 nm from the site.

The Council recommended and NMFS proposes maintaining this closure to protect animals using this location as a rookery from potential disturbance by fishing vessels and to protect near shore Steller sea lion prey resources. Very little groundfish catch has historically occurred in waters from 0 nm to 3 nm from this site. According to the FMP BiOp, this site is important to Steller sea lions because it is one of the few locations in the Aleutian Islands where Steller sea lion reproduction is occurring. Maintaining the closure at this rookery would ensure it is treated consistently with other Steller sea lion rookery sites listed in Table 12 to 50 CFR part 679.

Bering Sea Subarea Atka Mackerel Directed Fishing Closure

This proposed action would maintain the closure of the Bering Sea subarea and adjacent State waters to directed fishing for Atka mackerel as implemented under the 2010 Interim Final Rule. The 2010 Interim Final Rule added § 679.7(a)(24), revised § 679.22(a)(7)(vi), and removed Atka mackerel site specific closures for the Bering Sea subarea from Table 6 to 50 CFR part 679 to establish the Atka mackerel directed fishery closure in the entire Bering Sea subarea and adjacent State waters. This proposed action would maintain the prohibition under § 679.7(a)(24) but redesignate this prohibition as paragraph (a)(19) to consolidate the regulations. The closure under § 679.22(a)(7)(vi) would be revised to clarify that State waters are included in the Bering Sea Atka mackerel directed fishery closure. This closure would apply to vessels that catch groundfish that is required to be deducted from a TAC under § 679.20 and that are required to be named on a Federal Fisheries Permit issued under § 679.4(b). The revisions to Table 6 to 50 CFR part 679 would be maintained by this proposed action.

This proposed action would maintain the closure to directed fishing for Atka mackerel in the Bering Sea subarea and adjacent State waters. This closure would still allow for limited retention of Atka mackerel consistent with MRAs established for Atka mackerel (Table 11 to 50 CFR part 679). Historically, Atka mackerel has been caught and retained up to the amount permitted under regulations for MRAs (see Table 11 to part 679) in some portions of Steller sea lion critical habitat in the Bering Sea. However, directed fishing for Atka mackerel has not typically occurred historically in the Bering Sea. The Council recommended and NMFS proposes maintaining a directed fishery closure for Atka mackerel in the Bering Sea subarea and adjacent State waters to directed fishing for Atka mackerel to limit the potential for increased harvests in the Bering sea relative to historic harvest patterns. This proposed action would allow some retention of Atka mackerel subject to MRA provisions. Maintaining regulations that continue the current patterns of harvest of Bering Sea Atka mackerel is not likely to result in population level effects on Steller sea lions (Section 5.1.1 in EIS and Section 8.3.2.3 in FMP BiOp).

Including State Waters in Steller Sea Lion Protection Measures Closure Areas

This proposed action would clarify regulations at § 679.22 that Steller sea lion protection measures apply to vessels that catch groundfish that is required to be deducted from a TAC under § 679.20 and are required to be named on a Federal Fisheries Permit issued under § 679.4(b). This would include vessels fishing in adjacent State waters in parallel groundfish fisheries. This revision would ensure closures from the 2003 Final Rule to implement Steller sea lion protection are implemented as intended and would be maintained by this proposed action (68 FR 204, January 2, 2003).

Vessel Monitoring System (VMS) Transmission

This proposed action would require that vessel operators with an FFP using trawl gear that harvest groundfish deducted from the Federal TAC set their VMS to transmit the vessel location at least 10 times per hour. The Council recommended and NMFS proposes this requirement because of the extent and complexity of the proposed trawl closure areas in the Aleutian Islands reporting area. Monitoring is further complicated by the overlap of these proposed trawl closures with the existing AIHCA closures. This requirement would apply to vessels with an FFP that harvest groundfish deducted from the Federal TAC to ensure the VMS requirement applies to trawl vessels participating in Federal and State parallel groundfish fisheries.

The current transmission rate, commonly known as the polling rate, of 2 times per hour could allow vessels to fish in significant portions of these closed areas without detection (Section 8.17.2 in EIS). The increased polling rate would limit the ability of a vessel to operate inside or through a closed area undetected. As described in Section 2.1 of the EIS, vessels using trawl gear have the capability of fishing through a closed area without detection if the polling rate of the transmission is less than 10 times per hour. The proposed increased polling rate would apply only to vessels that harvest groundfish with trawl gear because this proposed action does not establish the same suite of complex closures for non-trawl gear.

Under this proposed action the operator of the vessel would be required to set their VMS unit to transmit at least 10 times per hour. NMFS notes that some existing VMS units may not meet the necessary operating standards to provide reliable transmissions to NMFS at least 10 times per hour. NMFS notes that the vessel operator may need to obtain a VMS unit with the capabilities necessary to ensure compliance with the proposed requirements.

Specific Regulatory Amendments

This proposed action would implement the following specific regulatory amendments. Table 1 lists the regulatory amendments from the 2010 Interim Final Rule that this proposed action would retain and those that would be removed or revised. The public is invited to submit comments on these regulations for NMFS' consideration.

Table 1—Comparison of Regulatory Amendments From the 2010 Interim Final Rule and the Proposed Action

Regulatory amendments from the 2010 Interim Final Rule that would be retained in the proposed actionRegulatory amendments from the 2010 Interim Final Rule that would be removed or revised by the proposed action
§ 679.2. Remove two definitions for the Harvest Limit Area (HLA) Atka mackerel fisheries§ 679.7. Remove paragraphs (a)(19), (a)(23), and (a)(25). Redesignate paragraph (a)(24) as paragraph (a)(19) and revise to include reporting areas.
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§ 679.4(b)(5). Revise to remove references to the HLA Atka mackerel fishery§ 679.20. Revise paragraph (a)(8)(ii)(C) harvest limits.
§ 679.7. Add paragraph (d)(10) for CDQ seasonal allowance for Atka mackerel§ 679.22. Revise paragraphs (a)(7)(vi) and (a)(8)(iv).
§ 679.20 Revise paragraphs (a)(8)(ii)(A) and (c)(6). Remove and reserve (a)(8)(iii)§ 679.23. Revise paragraph (e)(3)(ii) for Atka mackerel B season.
§ 679.22 Remove paragraph (a)(8)(iv)(A). Remove and reserve paragraph (b)(6) due to expired regulationsTables 5 and 6 to 50 CFR part 679. Revise for new closures.
§ 679.23 Revise paragraphs (e)(3)(i) and (e)(4)(iii). Remove paragraphs (e)(4)(iv) and (e)(4)(v) due to expired regulations.
§ 679.50. Remove paragraph (c)(1)(x) observer coverage for HLA fishery.
Table 12 to 50 CFR part 679. Revise to add Kanaga Island/Ship Rock.

Removal of Expired Regulations

The 2010 Interim Final Rule removed §§ 679.22(b)(6), 679.23(e)(4)(iv), and 679.23(e)(4)(v) because these regulations had expired. Section 679.22(b)(6) closed the Chiniak Gully Research Area during research on the effects of the pollock fishery on local pollock prey abundance. This research has ended and the closure is no longer needed to support research (71 FR 31105, June 1, 2006). Section 679.23(e)(4)(iv) and (e)(4)(v) applied to CDQ program season provisions that had expired in December 2002. This proposed action would maintain the removal of these paragraphs implemented under the 2010 Interim Final Rule.

Prohibitions

This proposed action would remove §§ 679.7 (a)(19), (a)(23), and (a)(25) and redesignate § 679.7(a)(24) as paragraph (a)(19).

This proposed action would remove § 679.7(a)(19) to remove the retention prohibition for Atka mackerel and Pacific cod in Area 543 under the 2010 Interim Final Rule.

This proposed action would remove § 679.7(a)(23) because this action removes the prohibition under the 2010 Interim Final Rule for directed fishing for Pacific cod with hook-and-line, pot, and jig gear in Areas 542 and 541 from November 1, 1200 hours, A.l.t., through December 31, 2400 hours, A.l.t.

This proposed action would remove § 679.7(a)(25) because this action removes the prohibition under the 2010 Interim Final Rule for directed fishing for Atka mackerel inside of critical habitat of Gramp Rock and Tag Island unless the participant is fishing under an Amendment 80 cooperative quota permit or under authority of a CDQ allocation.

The prohibition on Atka mackerel directed fishing in the Bering Sea subarea and adjacent State waters under the 2010 Interim Final Rule in § 679.7(a)(24) would be retained by this proposed action and redesignated as paragraph § 679.7(a)(19) to consolidate the regulations. The introductory text to the new § 679.7(a)(19) would be revised to include the Bering Sea reporting areas to prevent confusion over the inclusion of State waters.

General Limitations

This proposed action would revise § 679.20 to add harvest limitations for pollock, Pacific cod, and Atka mackerel fisheries in Areas 541, 542, and 543.

This proposed action would add pollock harvest limitations during the A season in Areas 541, 542, and 543. This proposed action would add § 679.20(a)(5)(iii)(B)(6) to specify these pollock harvest limitations. Section 679.20(a)(5)(iii)(B)(6)(i), (ii), and (iii) would specify limits to pollock harvest during the A season in Areas 543, 542, and 541.

This proposed rule would add subparagraphs (a)(7)(v) and (a)(7)(vi) to correct an error that removed these regulations. Regulations implementing the Amendment 80 Program inserted regulatory text to implement the allocation and seasonal apportionments of Pacific cod to the Amendment 80 sector in § 679.20(a)(7)(v), and inserted regulatory text in § 679.20(a)(7)(vi) addressing the reallocation of unharvested Pacific cod to Amendment 80 cooperatives (see the final rule implementing Amendment 80 for additional detail (72 FR 52668, September 14, 2007)). These provisions were removed in error by incorrect amendatory language in Amendment 85 to the FMP (72 FR 50788, September 4, 2007) that became effective on January 1, 2008. This proposed rule would add these subparagraphs to correct the regulations.

This proposed action would add § 679.20(a)(7)(vii) to specify that the Pacific cod harvest limit in Area 543 would be based on Pacific cod abundance, as determined by the annual stock assessment process.

This proposed action would revise § 679.20(a)(8)(ii)(C) to remove the Area 542 critical habitat and Area 542 Amendment 80 and CDQ harvest limits that were implemented by the 2010 Interim Final Rule. These would be replaced with regulatory text that describes the harvest limitations for Atka mackerel in Areas 543 and 542. This proposed action would revise Atka mackerel harvest limits inside critical habitat to allow no more than 60 percent of the annual TACs to be harvested west of 178° W longitude in Areas 542 and 543. The seasonal apportionment of the critical habitat harvest in Areas 542 and 543 would be equally divided between the seasons. This proposed action also would revise § 679.20(a)(8)(ii)(C) to set the annual TAC in Area 543 at no more than 65 percent of the ABC in Area 543.

This proposed action would add a subparagraph (D) to § 679.20(a)(8)(ii) to prohibit the harvest of Atka mackerel seasonal allowance that was rolled over from the A season to the B season inside critical habitat.

This proposed action would add § 679.20(e)(3)(v) to modify MRA regulations for Amendment 80 vessels and CDQ sectors operating in the Bering Sea subarea to calculate MRAs for Atka mackerel as an incidental species on an offload-to-offload basis.

Closures

This proposed action would revise § 679.22 to implement the Pacific cod, Atka mackerel, and pollock closures in the BSAI reporting areas proposed by this action. Sections 679.22(a)(7) and (a)(8) titles and area references would be revised from “subarea” to “reporting Start Printed Page 37503areas” to clarify that the closures are applicable to Federally permitted vessels required to deduct their catch from a TAC operating from 0 nm to 3 nm of Steller sea lions sites listed on Table 4, 5, 6, and 12 to 50 CFR part 679 and in the Bering Sea reporting areas for the Atka mackerel directed fishery closure in § 679.22(a)(7)(vi). Section (a)(8)(iv) would be revised to remove the jig gear closures.

Seasons

This proposed action would extend the Atka mackerel B season and the Pacific cod trawl C season for the Amendment 80 and CDQ sectors. Section 679.23(e)(3)(ii) would be revised to extend the Atka mackerel B season end date to December 31. This proposed action would add two subparagraphs to § 679.23(e)(5)(ii)(C) to identify the C season dates for catcher vessels and AFA catcher/processors and for Amendment 80 and CDQ vessels.

Equipment and Operational Requirements

This proposed action would add § 679.28(f)(7) to require 10 VMS transmissions of location per hour by Federally permitted vessels in the Aleutian Islands reporting area using trawl gear to harvest groundfish that is deducted from a Federal TAC.

Tables

This proposed action would revise Tables 4, 5, and 6 to 50 CFR part 679. All references to subareas in these tables would be changed to areas. This change would ensure closures would apply to State and Federal waters as appropriate and would be implemented as stated in the 2003 Final Rule for Steller Sea Lion Protection Measures off Alaska (68 FR 204, January 2, 2003).

The designation of “Rat Island/Krysi Pt.” on Tables 4, 5, and 6 would be changed to “Hawadax Island/Krysi Pt.” based on the new name given to this island in 2012 after the removal of rats by the Island Conservation, U.S. Fish and Wildlife Service, and The Nature Conservancy.

Because this proposed action would allow retention of Atka mackerel and Pacific cod in Area 543 and would establish critical habitat closures to these fisheries in Area 543, the Steller sea lion sites located in Area 543 would be added to Tables 5 and 6. These sites were removed from Tables 5 and 6 by the 2010 Interim Final Rule because it prohibited retention of Atka mackerel and Pacific cod in Area 543. This revision is needed to identify the closure areas around Steller sea lions haulouts and rookeries in the Area 543 reporting area.

In Table 4 to 50 CFR part 679, column 7 and the footnotes would be revised to reflect the closures for the pollock directed fishery in the Aleutian Islands reporting area. Corrections would be made to Table 4 to ensure that all closures are listed in column 7. Footnotes 3, 4, 5, 7, and 9 to Table 4 would be revised to use language consistent with other footnotes for prohibitions on fishing. A technical edit would be made to footnote 10 to capitalize Federal. A technical edit would be made to footnote 11 to specify “gear types” instead of “gears types.” Footnotes 13, 14, and 15 to Table 4 would be added to describe the open areas inside critical habitat at Shemya, Rat Islands, and Kanaga where directed fishing for pollock may occur.

In Table 5 to 50 CFR part 679, columns 7, 8, and 9 and the footnotes would be revised to reflect the closures for the directed Pacific cod fishery by gear type in the Aleutian Islands reporting area. A technical edit would be made to footnote 4 to specify “gear type” instead of “gear types.” A technical edit would be made to footnote 5 to add a comma after “BA”. A technical edit would be made to footnote 6 to read “hook-and-line.” Footnotes 7 and 8 to Table 5 would be revised to use language consistent with other footnotes for prohibitions on fishing. Footnote 13 to Table 5 would be revised to describe the closure that directed fishing for Pacific cod with hook-and-line and pot gear is prohibited in waters from 0 nm to 3 nm from rookeries west of 172.59° W longitude and in waters located between 0 nm and 20 nm east of 172.59° W longitude. Footnote 14 to Table 5 would be revised to specify directed fishing for Pacific cod with hook-and-line and pot gears would be prohibited only in waters located between 0 nm and 20 nm of these sites west of 170° W long. Footnote 15 would be revised to specify directed fishing for Pacific cod with hook-and-line is prohibited in waters located between 0 nm and 10 nm on the east side of 170° W long. and is prohibited in waters located between 0 nm and 20 nm on the west side of 170° W long. Footnote 16 to Table 5 would be deleted to remove the jig gear fishery closures and remove vessel size and seasonal specific hook-and-line and pot critical habitat closures that were implemented under the 2010 Interim Final Rule. Footnote 17 to Table 5 would be removed to eliminate reference to the retention prohibition for Pacific cod in Area 543 implemented under the 2010 Interim Final Rule. The coordinates in columns 3, 4, and 5 for Great Sitkin would be corrected to match the coordinates for this site in Tables 4 and 6, which are the correct coordinates.

In Table 6 to 50 CFR part 679, column 7 and the footnotes would be revised to reflect the closures for the directed Atka mackerel fishery in the Aleutian Islands reporting area. Column 7 of Table 6 would be revised to show the closures in Area 542. Footnotes 4 and 6 to Table 6 would be revised to implement the proposed closures in critical habitat in Areas 543, 542, and 541 for directed fishing for Atka mackerel under this proposed action. A technical edit would be made to footnote 5 to specify “gear type” instead of “gears types.” Footnote 7 to Table 6 would be revised to describe the open area inside critical habitat to the southeast of Seguam Pass in Area 541 where directed fishing for pollock may occur.

Classification

Pursuant to sections 304(b) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed action is consistent with the FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further considerations received during the public comment period.

This proposed action has been determined to be not significant for the purposes of Executive Order (E.O.) 12866.

Formal consultation under section 7 of the ESA was completed for this proposed action. On April 2, 2014, NMFS issued a biological opinion (2014 BiOp) on the preferred alternative in the EIS (Alternative 5, proposed action). The 2014 BiOp found that the implementation of the proposed action and supporting research described in Chapter 11 of the EIS were not likely to jeopardize the continued existence of Steller sea lions or result in the destruction or adverse modification of its critical habitat.

NMFS prepared a final environmental impact statement for this proposed action; a notice of availability was published on May 23, 2014 (79 FR 29759). The EIS is described above under “EIS and Preferred Alternative.”

Pursuant to Executive Order 13175, NMFS mailed letters to approximately 660 Alaska tribal governments, Alaska Native Claims Settlement Act (ANCSA) corporations, and related organizations providing information about the EIS and soliciting consultation and coordination with interested tribal governments and ANCSA corporations. NMFS received no comments from tribal government Start Printed Page 37504and ANCSA corporation representatives. Section 1.7 of the EIS provides more detail on NMFS' outreach with Alaska tribal governments and ANCSA corporations (see ADDRESSES).

An Initial Regulatory Flexibility Analysis (IRFA) was prepared for this action, as required by section 603 of the Regulatory Flexibility Act (RFA). An IRFA is required to include (a) a description of the reasons why action by the agency is being considered; (b) s succinct statement of the objectives of, and legal basis for, the proposed rule; (c) a description of and, where feasible, an estimate of the number of small entities to which the proposed rule will apply; (d) a description of the projected reporting, recordkeeping and other compliance requirements of the proposed rule; (e) an identification, to the extent practicable, of all relevant Federal rules which may duplicate, overlap or conflict with the proposed rule; (f) a description of any significant alternatives to the proposed rule which accomplish the stated objectives of applicable statutes and which minimize any significant economic impact of the proposed rule on small entities. A description of the action, why it is being considered and the legal basis for this action are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble. A summary of the remainder of the IRFA follows. A copy of the IRFA is available from NMFS (see ADDRESSES).

The entities directly regulated by this action include: (1) Business firms operating trawl catcher/processors and catcher vessels, and non-trawl catcher/processors and catcher vessels, fishing for Atka mackerel and Pacific cod, in the three Aleutian Island management areas (Areas 541, 542, and 543); (2) CDQ groups that receive allocations of Atka mackerel, Pacific cod, and pollock in these three Aleutian Island management areas; (3) the Aleut Corporation, which receives an allocation of pollock in the Aleutian Islands; and (4) vessels taking Atka mackerel or Pacific cod as incidental catches in Area 543. The Aleut Corporation is directly regulated by the pollock measures under this proposed action because it receives the pollock allocation and has discretion over its disposition. The fishing operations contracted to the Aleut Corporation are not considered directly regulated. The Small Business Administration defines a small commercial finfish fishing entity as one that has annual gross sales of less than $19 million; a shellfish fishing small entity is one with less than $5 million annual gross revenue, and other marine fishing operations are small if they have less than $7 million in gross revenue (78 FR 37398, July 22, 2013).

Of the 51 vessels identified as having been active in directed Atka mackerel or Pacific cod fisheries in 2010, 12 were believed to constitute small entities. One of these vessels was a pot catcher/processor, and the remaining operations were trawl catcher vessels. The estimated average gross revenue for these firms, in 2012, was about $1.4 million. Note that firm revenues may have been larger, if these firms had revenues from sources other than the identified vessels.

Through the CDQ Program, NMFS allocates a portion of the BSAI groundfish TACs, and apportions prohibited species catch limits for Pacific halibut, Pacific salmon, and several crab species, to 65 eligible Western Alaska communities. These communities work through six non-profit CDQ groups, and are required to use the net proceeds from the CDQ allocations to start or support activities that will result in ongoing, regionally-based, commercial fishery or related businesses. The CDQ groups receive allocations through the specifications process and are directly regulated by this action, but the 65 communities are not directly regulated. Because the six CDQ groups are explicitly defined as small nonprofit entities within the RFA, they are small entities for purposes of this analysis.

As previously noted, the Aleut Corporation receives all of the pollock directed fishing allocation in Areas 541, 542, and 543. The Aleut Corporation is an Alaska Native Corporation, and is a holding company evaluated according to the Small Business Administration criteria at 13 CFR 121.201, using a $7 million gross annual receipts threshold for “Offices of Other Holding Companies” (NAICS code 551112). Aleut Corporation revenues exceed this threshold (gross revenues were approximately $159 million in 2010), and the Aleut Corporation is considered to be a large entity for purposes of this analysis (Table 8-39 in EIS).

Some vessels with incidental catch of Atka mackerel and Pacific cod may be directly regulated by this action in Area 543. Alternative 1, the status quo alternative, prohibits retention of Atka mackerel or Pacific cod in Aleutian Islands management area 543. The preferred alternative (i.e., proposed action) does not prohibit retention. A prohibition on retention directly regulates vessels that would have otherwise retained these species in this management area. Six separate fixed gear catcher/processors or trawl catcher vessels were identified with incidental catches of Atka mackerel or Pacific cod during this period. None of these is believed to be a small entity. Fourteen fixed gear catcher vessels had incidental catches during the period. All of these are considered to be small entities. Average revenues from directly regulated incidental catches per vessel-year, during the seven baseline years (2004 to 2010), are estimated to be about $2,200.

An IRFA requires a description of any significant alternatives to the proposed action(s) that accomplish the stated objectives, are consistent with applicable statutes, and that would minimize any significant economic impact of the proposed action on small entities. Chapter 9 of the EIS compares the proposed action (Alternative 5) to the other alternatives. A main difference among Alternatives 1 and 6 and Alternatives 2, 3, 4, and 5 is that the retention prohibitions under Alternatives 1 and 6 are not included in Alternatives 2, 3, 4, and 5. In contrast to Alternatives 1 and 6, where no retention is allowed in portions or all of the Aleutian Islands for some or all of the important Steller sea lion prey species, under Alternatives 2 through 5, fishermen would be able to retain Steller sea lion prey species up to the maximum retainable amounts (MRAs) specified in Table 11 to 50 CFR part 679.

The alternatives for pollock ranged from Alternative 6, an alternative that would restrict fishing more than the status quo alternative (Alternative 1), to Alternatives 2, 3, 4, and 5 that allow for more pollock fishing outside and inside critical habitat than the other alternatives. Additional description of the alternatives is available in the EIS and not addressed further here (see ADDRESSES). For pollock, Alternatives 1, 2, and 6 would have greater adverse economic impacts on directly regulated small entities relative to Alternative 5. The protection measures under Alternative 5 are similar to those under Alternatives 3 and 4, which are identical, and would be less restrictive on small entities than other alternatives (Section 8.7 in RIR). Alternative 5 only differs from Alternatives 3 and 4 in that it includes management area specific A-season harvest limits, and increases critical habitat closures in Area 542. The A-season harvest limits are 5 percent of the ABC in Area 543, 15 percent of the ABC in Area 542, and 30 percent of the ABC in Area 543.

As discussed in Section 7 of the RIR (see ADDRESSES), NMFS is unable to estimate the potential production, or the location of production, under the Start Printed Page 37505different alternatives, and so is unable to determine whether or not the area constraints for pollock fishing would be binding. However, these area constraints are not present in Alternatives 3 and 4. Those alternatives may be somewhat less burdensome for small entities than Alternative 5. Management area limits were introduced to provide control over potential harvests in a new pollock fishery of unknown potential, providing more protection for Steller sea lion prey. The restrictions are more stringent in the western areas, where Steller sea lion abundance is declining (consistent with the FMP BiOp performance standards in Section 8.2.2). The extension of the 542 closure areas for Steller sea lion haulouts and rookeries located west of 178º W longitude to 20 nm (Table 2-22 in EIS) under Alternative 5, may also contribute to making this alternative more restrictive than Alternatives 3 and 4. The extension also was included in Alternative 5 to provide more protection to the Steller sea lion rookeries and haulouts that have experienced relatively greater declines in Steller sea lion abundance compared to sites located farther east.

The alternatives for Atka mackerel ranged from Alternative 6, an alternative that would restrict fishing more than the status quo alternative (Alternative 1), to Alternative 4, the alternative that would allow the most fishing opportunities. Alternatives 2, 3, and 5 provided more fishing opportunities and fewer protection measures than Alternative 6, but included more protection measures than Alternative 4. Additional description of the alternatives is available in the EIS and not addressed further here (see ADDRESSES). For Atka mackerel, Alternatives 1, 2, and 6 would have greater adverse economic impact on directly regulated small entities relative to Alternative 5. Alternative 5 is most comparable to Alternative 3 and the effects on small entities in the limited access trawl fishery, and CDQ groups receiving Atka mackerel allocations may be similar to those under Alternative 3. Alternatives 3 and 5 are the same in Areas 541 and 542. They differ in Area 543 in that Alternative 3 closes additional waters around Buldir Island compared to Alternative 5. However, Alternative 5 sets a TAC limit in Area 543 equal to 65 percent of ABC that is not included in Alternative 3. Alternative 5 may be somewhat more restrictive in Area 543 than Alternative 3. However, the Alternative 5 TAC limit is included to prevent excessive harvest of Atka mackerel and potential adverse impacts on Steller sea lion prey resources.

As discussed in Section 8 of the RIR, Alternative 4 is a less restrictive alternative to directly regulated small entities participating in Aleutian Islands Atka mackerel fisheries than Alternative 5. However, the Steller Sea Lion Mitigation Committee and the Council did not recommend Alternative 4 as its preferred alternative. Alternative 4 is nearly identical to the proposed action that was found to result in jeopardy for Steller sea lions in the FMP BiOp. Alternative 5 may provide somewhat more protection for Steller sea lion prey in Area 543, where Steller sea lion population declines have been larger than elsewhere.

The alternatives for Pacific cod ranged from Alternative 6, an alternative that would restrict fishing more than the status quo alternative (Alternative 1), to Alternative 4, the alternative that would allow the most fishing opportunities. Alternatives 2, 3, and 5 provided more fishing opportunities and fewer protection measures than Alternative 6, but included more protection measures than Alternative 4. Additional description of the alternatives is available in the EIS and not addressed further here (see ADDRESSES). For Pacific cod, Alternatives 1, 2, 3, and 6 would have greater adverse economic impact on directly regulated small entities relative to Alternative 5. Alternative 5 is most closely comparable with Alternative 4. However, Alternative 4 may be less restrictive to small entities because Alternative 5 (Table 2-18 in EIS) adds a harvest limit for Pacific cod in Area 543 in proportion to the annual stock assessment. Alternative 4 was not selected as the preferred alternative because it may provide less protection for Steller sea lion prey than Alternative 5, increasing the potential of adverse effects on Steller sea lion prey resources in Area 543.

An IRFA should include “a description of the projected reporting, recordkeeping, and other compliance requirements of the proposed action, including an estimate of the classes of small entities that will be subject to the requirement and the type of professional skills necessary for preparation of the report or record.”

NMFS proposes a regulatory amendment requiring an increase in VMS polling rates. Polling rates would be increased from 2 per hour to 10 per hour for all trawl vessels holding a Federal Fisheries Permit and fishing for groundfish that is required to be deducted from a Federal groundfish TAC in the Aleutian Islands. A detailed discussion of the need for this increased VMS requirement, and its implications, is included in Section 8.18.2 (“Enforcement”) of the RIR (see ADDRESSES). NMFS estimates that the increase in the polling rate will increase VMS costs by about $400 per year for trawl catcher vessels and catcher/processors operating in the Aleutian Islands, except for trawl catcher/processors targeting Atka mackerel. Trawl catcher/processors targeting Atka mackerel are expected to incur costs of about $1,200 per year; however, these are all large entities. Although all vessels are required to have a Federal fisheries permit (FFP), and all vessels fishing in the Aleutian Islands are required to have and operate VMS, some of the impacted vessels may have to replace existing VMS units to meet the polling rate and reliability requirements. While NMFS is unable to estimate the number of entities which may be required to replace VMS units to provide the required unit reliability, the estimated cost for an additional unit is about $3,500 (including installation).

No duplication, overlap, or conflict between this proposed action and existing Federal rules has been identified.

Collection-of-Information Requirements

This rule contains a collection-of-information requirement for the Alaska Vessel Monitoring System (VMS) Program which is subject to the Paperwork Reduction Act (PRA) and which has been submitted to the Office of Management and Budget (OMB) under control number 0648-0445. This rule would increase the number of transmissions or VMS polling rate, from 2 per hour to 10 per hour when a vessel is trawl fishing in the Aleutian Islands; however, VMS transmissions are not counted as burden, because they are automatic. Some vessels may incur additional operating costs due to the increase in the VMS polling rate, or they may have to replace existing VMS units to meet the polling rate and reliability requirements. As discussed above, NMFS estimates that the increase in the polling rate will increase VMS costs by about $400 per year for trawl catcher vessels and catcher/processors operating in the Aleutian Islands, except for trawl catcher/processors targeting Atka mackerel. Trawl catcher/processors targeting Atka mackerel are expected to incur costs of about $1,200 per year; however, these are all large entities. Although all vessels are required to have a Federal fisheries permit (FFP), and all vessels fishing in the Aleutian Islands are required to have and operate VMS, some of the impacted vessels may have to replace existing VMS units to meet the polling rate and reliability requirements. While NMFS is unable to Start Printed Page 37506estimate the number of entities which may be required to replace VMS units to provide the required unit reliability, the estimated cost for an additional unit is about $3,500 (including installation).

Estimates of burden include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments on these or any other aspects of the collection of information to NMFS at the ADDRESSES above, and email to OIRA Submission@omb.eop.gov, or fax to 202-395-5806.

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 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 at the ADDRESSES above, and email to OIRA_Submission@omb.eop.gov, or fax to (202) 395-5806.

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any 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. All currently approved NOAA collections of information may be viewed at: http://www.cio.noaa.gov/​services_​programs/​prasubs.html.

Comment Period for the Proposed Action

NMFS normally provides 30 days for public review and comments on proposed actions. Due to the scope and controversy of this proposed action, NMFS is providing a 45-day comment period. NMFS anticipates that a 45-day comment period should provide adequate opportunity for public review and comment while providing NMFS sufficient time to complete rulemaking for the revised Steller sea lion protection measures to meet the court-ordered deadline of January 1, 2015.

Start List of Subjects

List of Subjects in 50 CFR Part 679

  • Alaska
  • Fisheries
  • Reporting and recordkeeping requirements
End List of Subjects Start Signature

Dated: June 19, 2014.

Samuel D. Rauch III,

Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

End Signature

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

Start Part

PART 679—FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

End Part Start Amendment Part

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

End Amendment Part Start Authority

Authority: 16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.; Pub. L. 108-447.

End Authority Start Amendment Part

2. In § 679.7,

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a. Remove paragraphs (a)(19), (a)(23), and (a)(25);

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b. Redesignate paragraph (a)(24) as paragraph (a)(19); and

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c. Revise the newly redesignated paragraph (a)(19).

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The revisions read as follows:

Prohibitions.

(a) * * *

(19) Atka mackerel directed fishing in the Bering Sea reporting areas. Conduct directed fishing for Atka mackerel in the Bering Sea subarea and adjacent State waters with a vessel required to be Federally permitted.

* * * * *
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3. In § 679.20,

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a. Add paragraphs (a)(5)(iii)(B)( 6), (a)(7)(v), (a)(7)(vi), (a)(7)(vii);

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b. Revise paragraph (a)(8)(ii)(C); and

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c. Add paragraphs (a)(8)(ii)(D), and (e)(3)(v).

End Amendment Part

The additions and revisions read as follows:

General limitations.

(a) * * *

(5) * * *

(iii) * * *

(B) * * *

(6) Pollock harvest limitations. Pollock harvests during the A season as defined at § 679.23(e)(2) are limited to:

(i) No more than 5 percent of the Aleutian Islands pollock ABC in Area 543.

(ii) No more than 15 percent of the Aleutian Islands pollock ABC in Area 542.

(iii) No more than 30 percent of the Aleutian Islands pollock ABC in Area 541.

* * * * *

(7) * * *

(v) ITAC allocation to the Amendment 80 sector. A percentage of the Pacific cod TAC, after subtraction of the CDQ reserve, will be allocated as ITAC to the Amendment 80 sector as described in Table 33 to this part. Separate allocations for each Amendment 80 cooperative and the Amendment 80 limited access fishery are described under § 679.91. The allocation of Pacific cod to the Amendment 80 sector will be further divided into seasonal apportionments as described under paragraph (a)(7)(iv)(A)(1)(ii) of this section.

(A) Use of seasonal apportionments by Amendment 80 cooperatives. (1) The amount of Pacific cod listed on a CQ permit that is assigned for use in the A season may be used in the B or C season.

(2) The amount of Pacific cod that is listed on a CQ permit that is assigned for use in the B season may not be used in the A season.

(3) The amount of Pacific cod listed on a CQ permit that is assigned for use in the C season may not be used in the A or B seasons.

(B) Harvest of seasonal apportionments in the Amendment 80 limited access fishery. (1) Pacific cod ITAC assigned for harvest by the Amendment 80 limited access fishery in the A season may be harvested in the B seasons.

(2) Pacific cod ITAC assigned for harvest by the Amendment 80 limited access fishery in the B season may not be harvested in the A season.

(3) Pacific cod ITAC assigned for harvest by the Amendment 80 limited access fishery in the C season may not be harvested in the A or B seasons.

(vi) ITAC rollover to Amendment 80 cooperatives. If during a fishing year, the Regional Administrator determines that a portion of the Pacific cod TAC is unlikely to be harvested and is made available for reallocation to the Amendment 80 sector according to the provisions under paragraph (a)(7)(iii) of this section, the Regional Administrator may issue inseason notification in the Federal Register that reallocates that remaining amount of Pacific cod to Amendment 80 cooperatives, according to the procedures established under § 679.91(f).

(vii) Pacific cod harvest limitations. During the annual harvest specifications process, the Regional Administrator will establish an Area 543 Pacific cod harvest limit based on Pacific cod abundance in Area 543 as determined by the annual stock assessment process. After subtraction of the State GHL Pacific cod amount from the AI Pacific cod ABC, the harvest limit in Area 543 will be determined by multiplying the percentage of Pacific cod estimated in Area 543 by the adjusted ABC for AI Pacific cod.

(8) * * * Start Printed Page 37507

(ii) * * *

(C) Atka mackerel harvest limitations. (1) Atka mackerel catch within waters 0 nm to 20 nm of Steller sea lion sites listed in Table 6 to this part and located west of 178° W longitude is:

(i) Limited to no more than 60 percent of the annual TACs in Areas 542 and 543; and

(ii) Equally divided between the A and B seasons as defined at § 679.23(e)(3).

(2) The annual TAC in Area 543 will be no more than 65 percent of the ABC in Area 543.

(D) Any unharvested Atka mackerel A season allowance that is added to the B season is prohibited from being harvested within waters 0 nm to 20 nm of Steller sea lion sites listed in Table 6 to this part and located in Areas 541, 542, and 543.

* * * * *

(e) * * *

(3) * * *

(v) For all vessels not listed in subpart F of this section, the maximum retainable amount for Atka mackerel harvested in the Bering Sea subarea is calculated at the end of each offload and is based on the basis species harvested since the previous offload. For purposes of this paragraph, offload means the removal of any fish or fish product from the vessel that harvested the fish or fish product to any other vessel or to shore.

* * * * *
Start Amendment Part

4. In § 679.22, revise paragraphs (a)(7) heading, (a)(7)(vi), (a)(8) heading, and (a)(8)(iv) to read as follows:

End Amendment Part
Closures.

(a) * * *

(7) Steller sea lion protection areas, Bering Sea reporting areas.

* * * * *

(vi) Atka mackerel closures. Directed fishing for Atka mackerel by vessels named on a Federal Fisheries Permit under § 679.4(b) and using trawl gear is prohibited within the Bering Sea reporting areas.

* * * * *

(8) Steller sea lion protection areas, Aleutian Islands reporting areas.

* * * * *

(iv) Pacific cod closures. Directed fishing for Pacific cod required to be deducted from the Federal TAC specified at § 679.20 by vessels named on a Federal Fisheries Permit under § 679.4(b) using trawl, hook-and-line, or pot gear is prohibited within Pacific cod no-fishing zones around selected sites. These sites and gear types are described in Table 5 of this part and its footnotes and are identified by “AI” in column 2.

* * * * *
Start Amendment Part

5. In § 679.23, revise paragraphs (e)(3)(ii) and (e)(5)(ii)(C) to read as follows:

End Amendment Part
Seasons.
* * * * *

(e) * * *

(3) * * *

(ii) B season. From 1200 hours, A.l.t., June 10 through 1200 hours, A.l.t., December 31.

* * * * *

(5) * * *

(ii) * * *

(C) C season— (1) Catcher vessels and AFA catcher/processors. From 1200 hours, A.l.t., June 10 through 1200 hours, A.l.t., November 1.

(2) Amendment 80 and CDQ. From 1200 hours, A.l.t., June 10 through 1200 hours, A.l.t., December 31.

* * * * *
Start Amendment Part

6. In § 679.28, revise paragraph (f)(3)(i) and add paragraph (f)(7) to read as follows:

End Amendment Part
Equipment and operational requirements.
* * * * *

(f) * * *

(3) * * *

(i) Obtain a NMFS-approved VMS transmitter with transmission capabilities required for the areas of vessel operation and have it installed onboard your vessel in accordance with the instructions provided by NMFS. You may get a copy of the VMS installation and operation instructions from the Regional Administrator upon request.

* * * * *

(7) What additional requirements does an operator have if trawling in the Aleutian Islands reporting areas? Operators of vessels named on a Federal Fisheries Permit under § 679.4(b), and that are using trawl gear in the Aleutian Islands reporting areas to harvest groundfish that is required to be deducted from a Federal TAC specified at § 679.20, must set their VMS to transmit the vessel location at least 10 times per hour.

* * * * *
Start Amendment Part

7. Revise Table 4 to Part 679 to read as follows:

End Amendment Part Start Printed Page 37508

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Start Amendment Part

8. Revise Table 5 to Part 679 to read as follows:

End Amendment Part Start Printed Page 37518

Start Printed Page 37519

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9. Revise Table 6 to Part 679 to read as follows:

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[FR Doc. 2014-14972 Filed 6-30-14; 8:45 am]

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