[Federal Register Volume 63, Number 112 (Thursday, June 11, 1998)]
[Rules and Regulations]
[Pages 31939-31941]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-15594]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 980331079-8144-09; I.D. 031198D]
RIN 0648-AK71


Fisheries of the Exclusive Economic Zone Off Alaska; Groundfish 
of the Gulf of Alaska; Seasonal Apportionments of Pollock

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

ACTION: Final rule.

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SUMMARY: NMFS issues a final rule to change the seasonal apportionment 
of the pollock total allowable catch amount (TAC) in the combined 
Western and Central (W/C) Regulatory Areas of the Gulf of Alaska (GOA) 
by moving 10 percent of the TAC from the third fishing season, which 
starts on September 1, to the second fishing season, which starts on 
June 1. This seasonal TAC shift is a precautionary measure intended to 
reduce the potential impacts on Steller sea lions of pollock fishing 
under an increased 1998 TAC by reducing the percentage of the pollock 
TAC that is available to the commercial fishery during the fall and 
winter months, a period that is critical to Steller sea lions. This 
action is intended to promote the conservation and management 
objectives of the Fishery Management Plan for Groundfish of the Gulf of 
Alaska (FMP).

DATES: Effective June 10, 1998.

ADDRESSES: Copies of the Environmental Assessment/Regulatory Impact 
Review (EA/RIR) prepared for this action may be obtained from the 
Sustainable Fisheries Division, NMFS-Alaska Region, P.O. Box 21668, 
Juneau, AK 99802, Attn: Lori J. Gravel.

FOR FURTHER INFORMATION CONTACT: Kent Lind, 907-586-7228 or 
[email protected]

SUPPLEMENTARY INFORMATION: The groundfish fisheries in the exclusive 
economic zone of the GOA are managed by NMFS under the FMP. The FMP was 
prepared by the North Pacific Fishery Management Council (Council) 
under the Magnuson-Stevens Fishery Conservation and Management Act. 
Regulations governing the groundfish fisheries of the GOA appear at 50 
CFR parts 600 and 679.
    Current groundfish regulations apportion the pollock TAC in the W/C 
Regulatory Areas among three statistical areas--610 (Shumagin), 620 
(Chirikof), and 630 (Kodiak)--and divide the TAC apportioned to each 
statistical area into three seasonal allowances of 25 percent, 25 
percent, and 50 percent of the TAC, which become available on January 
1, June 1, and September 1, respectively. This final rule shifts 10 
percent of the TAC from the third to the second season, resulting in 
seasonal allowances of 25 percent, 35 percent, and 40 percent, 
respectively.
    The proposed rule for this action was published in the Federal 
Register on April 30, 1998 (63 FR 23712). The proposed rule described 
the Council's decision making process in recommending a 60-percent 
increase in the 1998 pollock TAC for the W/C Regulatory Areas, the 
current status of Steller sea lions in the W/C Regulatory Areas, 
previous management actions taken to protect Steller sea lions in the 
W/C Regulatory Areas, and current concerns related to the potential for 
increased pollock fishing in the third season to impact Steller sea 
lions. Additional information on this action is contained in the 
preamble to the proposed rule (63 FR 23712, April 30, 1998) and in the 
EA/RIR (see ADDRESSES).

Comments and Responses

    Comments on the proposed rule were invited through May 15, 1998. 
Two letters of comment were received on the proposed rule by the end of 
the comment period and are summarized and responded to in the 5 
comments below. No changes were made from the proposed rule in response 
to comments.
    Comment 1: NMFS failed to follow the precautionary principle by 
allowing the Council to increase the 1998 pollock TAC by 60 percent. 
The precautionary principle should clearly direct managers to minimize 
human exploitation of the Steller sea lion's prey base. Instead, the 
Council has substantially increased the allowable exploitation level of 
a major component of the Steller sea lion's prey base and NMFS has 
apparently offered no opposition to this decision. This is 
unacceptable.
    Response: Estimated pollock biomass is one of the principal factors 
used to set the TAC for pollock in the W/C Regulatory Areas. As biomass 
changes, either up or down, so changes the TAC. In 1998, the estimated 
biomass of pollock in the W/C Regulatory Areas was bolstered 
considerably by a very strong 1994 year class. The Council recommended 
a TAC increase from the previous year to allow an increase in fishing 
consistent with the estimated biomass. NMFS approved the 1998 pollock 
TAC for the W/C Regulatory Areas as part of the final 1998 
specifications for groundfish of the GOA (63 FR 12027, March 12, 1998). 
The 1998 TAC will result in increased removal of pollock from the W/C 
Regulatory Areas but is based on the fact that the biomass of pollock 
in those areas has also increased. The information available indicates 
that the unfished pollock biomass will be greater in 1998 than in 1997 
despite the higher TAC.
    This final rule reapportions 10 percent of the TAC from the third 
to the second fishing season to reduce the percentage of pollock TAC 
that is available to the commercial fishery during the fall and winter 
months, a period that is critical to Steller sea lions. NMFS believes 
the 1998 pollock fishery in the W/C Regulatory Areas will be managed in 
a manner that will not jeopardize the continued existence of Steller 
sea lions.
    Comment 2: NMFS should reconsider its conclusions from its Section 
7 consultation on the 1998 TAC. NMFS should insist that the Council 
reduce the approved TAC increase (or eliminate it altogether) due to 
the many potential adverse consequences it could have on the endangered 
Steller sea lion population. NMFS should continue to oppose TAC 
increases for pollock into the foreseeable future, at least until the 
western population of Steller sea lions shows some sign of recovery.
    Response: NMFS stands by the conclusions of the Section 7 
consultation made on the 1998 pollock TAC specified for the W/C 
Regulatory Areas. As noted above, the 1998 TAC increase was supported 
by increased biomass estimates. Even with an increase in fishery 
removals, the unfished pollock biomass available to Steller sea lions 
will be greater in 1998 than in 1997.
    Comment 3: We (a marine mammal research consortium) conduct 
research on Steller sea lions and were surprised to learn that the 
leading hypothesis explaining their decline is ``lack of available 
prey.'' This implies that Steller sea lions are starving to death; a 
statement not supported by field observations. The hypothesis that most 
researchers are working with is that a high mortality of young is 
occurring, but the possible causes are not known. The problem does not 
appear to be a lack of ``available'' prey, but rather, a lack of 
``appropriate'' prey. ``Appropriate'' prey include small schooling 
fish, such as herring, which are higher in energy content. The prey 
that sea lions are consuming in areas of sharp population decline are 
poor in energy or nutritional

[[Page 31940]]

content. For example, pollock has about half the energy content of 
herring. Studies with captive sea lions at the Vancouver Aquarium have 
demonstrated that the difference in usable energy (due to various costs 
of digestion) is even greater. From an energetic viewpoint, sea lions 
can survive on a pollock only diet. However, the level of prey intake 
would have to be increased, perhaps to a level surpassing physiological 
and ecological limitations. Sea lions in the areas of stable 
populations incorporate a higher proportion of small schooling fish 
(such as herring) in their diet while sea lions from declining 
populations rely heavily upon pollock as their primary prey item.
    Response: Although pollock generally have lower mean energy levels 
than some small forage fishes, the range of energy levels does overlap. 
In addition, during January through March, pollock are in breeding 
condition and are likely to contain greater energy content at that 
time. Nevertheless, if other forage fish species were available in 
sufficient abundance, then it is likely that sea lions would prey on 
them to a greater extent. Indeed, NMFS recently issued a final rule to 
prohibit directed fishing on all forage fish species in Federal waters 
off Alaska, in part, to protect the availability of these prey species 
for Steller sea lions (63 FR 13009, March 17, 1998). However, sea lions 
are limited to available prey, regardless of whether that prey is 
appropriate, and simply put, they consume pollock. If pollock has less 
energy and nutrient content, then sea lions would have to increase the 
amount of pollock taken to satisfy their nutritional needs. The 
hypothesis of lack of available prey is supported by size differences 
observed in sea lions in the 1970s and 1980s, by evidence of lower 
productivity, and by evidence of decreased juvenile survival.
    Comment 4: Decreasing total prey biomass by increasing pollock 
catches has the potential to negatively impact Steller sea lion 
populations, but it also has the potential to positively impact Steller 
sea lions. Unfortunately, despite NMFS assertions, the effects of 
increased pollock catches on overall prey abundance and diversity are 
not known. Shifting the biomass of pollock from older to younger age 
classes should result in more prey for Steller sea lions, not less. 
Steller sea lions tend to feed on small pollock while the commercial 
fishery targets older and larger fish. Similarly, an increase in the 
catch of adult pollock might increase juvenile pollock abundance (the 
preferred prey size for Steller sea lions) by reducing cannibalism; or 
more ideally for Steller sea lions, reducing pollock biomass might 
increase the abundance of other prey types, particularly small 
schooling fish. Unfortunately, we do not know the outcome of fishing 
down pollock is not known, and the scientific ability to make such 
predictions does not exist.
    Response: NMFS shares the commenter's concern regarding the 
hypothesis that increased fishing could result in a shift in prey 
composition. If the composition of prey can be shifted by increased 
fishing, then it is also possible that the current prey composition, 
which is dominated by pollock, reflects the effects of past fishing. If 
that is the case, then the suggestion that increased fishing of pollock 
would return ecosystem composition to something more favorable to 
Steller sea lions implies a reversal of effect, which is possible but 
questionable. As the comment notes, we do not know the outcome of 
fishing down pollock and do not yet have the scientific ability to make 
such predictions. From a precautionary perspective, it seems prudent to 
minimize the degree to which commonly used prey species, such as 
pollock, are locally depleted. Depletion can be minimized by dispersing 
fishing effort more evenly over time.
    Comment 5: Moving part of the pollock fishery to summer may result 
in greater hardship to lactating females that leave their pups to 
search for food.
    Response: The current 25/25/50 apportionment of pollock TAC among 
the three fishing seasons has the greatest potential effect on the fall 
months, when data indicate that pups are beginning to wean. Shifting 10 
percent of the TAC to the summer season increases the catch during the 
summer period when females are still nursing and decreases the TAC 
during the period when females are either still nursing or weaning has 
begun and pups are attempting to forage for themselves. To date, no 
evidence suggests that females and pups are compromised during the 
summer breeding season. One study indicates that pups in the western 
population, where the greatest decline has occurred, are even larger 
during the breeding season than pups in the eastern population. This 
indicates that nutritional stress occurs late in the fall and winter 
months when pups are learning to forage on their own.
    The shift of 10 percent of the TAC was a precautionary measure to 
ensure that pups learning to forage were not compromised by the 
relatively larger catch in the fall/winter period. For pups and adult 
females, winter months are considered the most difficult months due to 
harsher environmental conditions, greater prey dispersal, and increased 
metabolic and energetic requirements.
Amendment to Final 1998 Pollock TAC Specifications for the W/C 
Regulatory Areas
    To implement the final rule in 1998, this action also amends Table 
3 of the 1998 final harvest specifications for groundfish of the GOA 
(63 FR 12027, March 12, 1998). Table 3 of the 1998 specifications is 
revised as follows:

 Table 3.--Distribution of Pollock in the Western and Central Regulatory Areas of the Gulf of Alaska (W/C GOA); 
 Biomass Distribution, Area Apportionments, and Seasonal Allowances. ABC for the W/C GOA is 119,150 Metric Tons 
(mt). Biomass Distribution is Based on 1996 Survey Data. TACs are Equal to ABC. Inshore and Offshore Allocations
                    of Pollock are not Shown. ABCs and TACs are Rounded to the Nearest 5 mt.                    
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                                                                                    Seasonal allowances         
                Statistical area                   Biomass    1998  ABC = --------------------------------------
                                                   percent        TAC         First        Second       Third   
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                                                 ...........                                                    
(3) metric ton                                                                                                  
                                                             ---------------------------------------------------
Shumagin (610).................................           25       29,790        7,450       10,430       11,910
Chirikof (620).................................           42       50,045       12,510       17,515       20,020
Kodiak (630)...................................           33       39,315        9,830       13,760       15,725
                                                ----------------------------------------------------------------
      Total....................................          100      119,150       29,790       41,705       47,655
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[[Page 31941]]

Classification

    This action amends final 1998 harvest specifications for the W/C 
Regulatory Areas by shifting 10 percent of the TAC from the third 
fishing season beginning September 1 to the second fishing season 
beginning June 1. A 30-day delayed effectiveness period for this action 
would result in unnecessary closures and disruption within the fishing 
industry because the second pollock season in the W/C Regulatory Areas 
would be opened and closed on the old TACs and then would have to be 
reopened again once this action becomes effective and the additional 10 
percent TAC amount becomes available. Such a closure and reopening of 
the fishery would impose unnecessary costs on industry because fishing 
vessels and processors would be forced to stop and restart their 
operations and would incur the costs of maintaining crews during the 
down time. Waiver of the 30-day delayed effectiveness for this action 
would allow the second season pollock fisheries to continue 
uninterrupted. In addition, this action does not significantly revise 
management measures in a manner that would require time to plan or 
prepare for those revisions. For these reasons, the immediate 
effectiveness of this action is required to provide consistent 
management and conservation of fishery resources and to give the 
fishing industry the earliest possible opportunity to plan its fishing 
operations. Accordingly, the Assistant Administrator for Fisheries, 
NOAA (Assistant Administrator), finds that good cause exists to waive 
the 30-day delayed effectiveness period for this action under 5 U.S.C. 
553(d)(3).
    This final rule has been determined to be not significant for the 
purposes of E.O. 12866.
    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce certified to the Chief Counsel for Advocacy of 
the Small Business Administration that this rule would not have a 
significant economic impact on a substantial number of small entities. 
No comments were received regarding this certification. As a result, a 
regulatory flexibility analysis was not prepared.
    A formal section 7 consultation under the Endangered Species Act 
was initiated for the 1998 final specifications for groundfish of the 
GOA. In a Biological Opinion dated March 2, 1998, NMFS described the 
effects of this action as follows:

    The proposed action is to conduct the Gulf of Alaska pollock 
fishery in 1998 with a 119,150 mt TAC divided among three seasons 
starting January 20, June 1, and September 1. Final specifications 
for the fishery will indicate a 25 percent, 25 percent, 50 percent 
TAC distribution for the three seasons, but the June 1 and September 
1 TAC levels will be revised through rulemaking to a distribution of 
35 percent and 40 percent for the last two seasons. This 
reapportionment will reduce the catch in the season beginning 
September 1 and shorten the duration of this season's pollock 
fishery. This measure will, therefore, minimize potential adverse 
effects of the fishery on Steller sea lions during the winter 
months, when weaned pups are learning to forage and adult females 
may be both pregnant and lactating.

In the Biological Opinion, the Assistant Administrator determined that 
fishing activities conducted under this final rule are not likely to 
jeopardize the continued existence of any endangered or threatened 
species under the jurisdiction of NMFS or result in the destruction or 
adverse modification of critical habitat.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Recordkeeping and reporting requirements.

    Dated: June 5, 1998.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

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

PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

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

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

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


Sec. 679.20  General limitations.

    (a) * * *
    (5) * * *
    (ii) * * *
    (B) Seasonal allowances. Each apportionment will be divided into 
three seasonal allowances of 25 percent, 35 percent, and 40 percent of 
the apportionment, respectively, corresponding to the three fishing 
seasons defined at Sec. 679.23(d)(2).
* * * * *
[FR Doc. 98-15594 Filed 6-10-98; 8:45 am]
BILLING CODE 3510-22-P