[Federal Register Volume 64, Number 14 (Friday, January 22, 1999)]
[Rules and Regulations]
[Pages 3446-3453]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-1432]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 981021264-9016-02; I.D. 092998A]
RIN 0648-AL29


Fisheries of the Exclusive Economic Zone Off Alaska; Season and 
Area Apportionment of Atka Mackerel Total Allowable Catch

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

ACTION: Final rule; 1999 interim Atka mackerel specifications.

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SUMMARY: NMFS issues regulations that divide the Atka mackerel total 
allowable catch (TAC) specified for the Aleutian Islands Subarea (AI) 
into two seasonal allowances; reduce the percentage of Atka mackerel 
TAC harvested from Steller sea lion critical habitat (CH) over a 4-year 
period in the Western and Central Districts of the AI; and extend the 
seasonal no-trawl zone around Seguam and Agligadak rookeries in the AI 
Eastern District into a year-round closure. This action is necessary to 
avoid potential jeopardy to the continued existence of Steller sea 
lions due to fishery-induced localized depletions of Atka mackerel, a 
primary prey species for Steller sea lions. This action is intended to 
foster the recovery of Steller sea lions and to further the 
conservation goals of the Fishery Management Plan for the Groundfish 
Fishery of the Bering Sea and Aleutian Islands Area (FMP).

DATES: Effective January 19, 1999.

ADDRESSES: Copies of the Environmental Assessment/Regulatory Impact 
Review/Final Regulatory Flexibility Analysis (EA/RIR/FRFA) prepared for 
this action may be obtained from the Alaska Region, NMFS, P.O. Box 
21668, Juneau, AK 99802, Attn: Lori J. Gravel, or by calling 907-586-
7228.

FOR FURTHER INFORMATION CONTACT: Jay Ginter, 907-586-7228.

SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fisheries in the 
Bering Sea and Aleutian Islands Management Area (BSAI) pursuant to the 
FMP. General regulations governing U.S. fisheries appear at 50 CFR part 
600. The FMP is implemented by regulations appearing at 50 CFR part 679 
issued under authority of the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act). The North Pacific Fishery 
Management Council (Council) prepared the FMP under authority of the 
Magnuson-Stevens Act. Fishing for Atka mackerel (Pleurogrammus 
monopterygius) is governed by the FMP and its implementing regulations.

Background

    The purpose and need for this action were described in the preamble 
to the proposed rule published on November 9, 1998 (63 FR 60288). That 
document and the EA/RIR/FRFA describe the conservation and management 
events leading to this action. In summary, the number of Steller sea 
lions (Eumetopias jubatus) west of 144 deg.W. long. in the Gulf of 
Alaska (GOA) and the BSAI has declined severely during the last several 
decades. In 1997, NMFS recognized these animals as a separate and 
endangered population. NMFS has

[[Page 3447]]

defined CH for this population to generally include marine areas within 
20 nautical miles (nm) of major Steller sea lion rookeries and haul 
outs west of 144 deg.W. long. and principal foraging areas. NMFS is the 
lead agency responsible for the conservation of this marine mammal 
species and its recovery.
    NMFS scientists have found that Atka mackerel are the most common 
prey species for Steller sea lions in portions of the AI Central and 
Western Districts, based on the collection of Steller sea lion scats. 
Further investigation of Atka mackerel fishery data indicates that the 
fishery has led to localized depletions of Steller sea lion prey, 
thereby increasing evidence of competition for Atka mackerel between 
Steller sea lions and the fishery. The single most important feature of 
CH for the Steller sea lion is its prey base. Areas designated as CH 
for this species must include sufficient food to meet the energy 
demands of a stable and healthy sea lion population.
    Although the ultimate cause(s) of the population decline of Steller 
sea lions west of 144 deg.W. long. remain(s) uncertain, NMFS believes 
that the lack of available prey is an important contributing factor. 
Atka mackerel is an important part of the mix of species preyed on by 
Steller sea lions. This rule reduces the proportion of the annual Atka 
mackerel catch taken from within designated CH to prevent potential 
jeopardy to the continued existence of the endangered Steller sea lion 
population and adverse modification of its CH.
    At its meeting in June 1998, the Council adopted the fishery 
management alternative described in the proposed rule. This action 
implements the management elements described in the proposed rule, with 
no change. Briefly, these elements include (1) dividing the Atka 
mackerel TACs specified for each subarea and district of the BSAI into 
two equal seasonal allowances, (2) progressively reducing the catch of 
Atka mackerel within areas designated as Steller sea lion CH and (3) 
extending the seasonal 20 nm no-trawl zones around the Seguam and 
Agligadak rookeries in the Eastern District of the AI into 20 year-
round closures.

Interim Specifications

    Regulations at Sec. 679.20(c)(1) require annual publication of 
proposed specifications of catch limits in the BSAI and GOA groundfish 
fisheries for the next fishing year. NMFS published the 1999 proposed 
specifications for the BSAI on December 30, 1998 (63 FR 71867). Interim 
specifications (Sec. 679.20(c)(2)) provide for groundfish fisheries 
that start in early January each year and remain in effect until 
superceded by publication of the final specifications. NMFS published 
interim specifications for the BSAI groundfish fisheries on January 4, 
1999 (64 FR 50). This final rule changes the regulatory procedures for 
setting interim specifications at Sec. 679.20(c)(2)(ii)(A), and 
effectively changes the published interim specifications for Atka 
mackerel to the A season apportionments that appear in Table 3 of the 
proposed BSAI specifications. The A season apportionments of Atka 
mackerel, and catch limits inside CH as specified in Table 3, will 
remain in effect for 1999, until superceded by publication of the final 
specifications for 1999. The revised interim TACs (in metric tons) for 
Atka mackerel are as follows:

------------------------------------------------------------------------
                Subarea & Component                 Inside CH    Total
------------------------------------------------------------------------
Western AI (543)..................................      7,459     11,475
Central AI (542)..................................      7,616      9,520
Eastern AI and BS Jig Gear........................  .........        127
Eastern AI and BS Other Gear......................  .........      6,269
                                                   ---------------------
    Total.........................................  .........     27,391
------------------------------------------------------------------------

Response to Comments

    NMFS invited public comments on the proposed rule from November 9, 
1998, through December 9, 1998 (63 FR 60288, November 9, 1998). NMFS 
received three letters of substantive comment and one letter stating 
that no comment would be made. Ten principal comments from the three 
comment letters are summarized and responded to here.
    Comment 1. The proposed regulations would lessen the jeopardy to 
the Steller sea lions posed by the Atka mackerel fishery and should be 
adopted. Enforcement of the regulations will require detailed knowledge 
of the location of fishing vessels. NMFS should adopt a vessel 
monitoring system (VMS) for the Atka mackerel fishery as soon as 
possible.
    Response. NMFS notes the support for the regulations. As noted in 
the preamble to the proposed rule, the Council recommended that NMFS 
establish a VMS program to monitor the activity of vessels fishing with 
trawl gear in CH areas. NMFS intends to implement VMS requirements in 
1999 before the start of the second Atka mackerel fishing season on 
September 1.
    Comment 2. NMFS should design and implement, in consultation with 
the fishing industry and other agencies, a program for evaluating the 
effectiveness of the regulations on the availability of Atka mackerel 
to Steller sea lions and on Steller sea lion recovery. Such an 
evaluation program should include efforts to determine whether the 
catch of 40 percent of the total AI mackerel harvest in the Steller sea 
lion CH is too high to result in reduced competition between Steller 
sea lions and the Atka mackerel fishery.
    Response. NMFS recognizes that research into the relationship 
between groundfish fisheries and the Steller sea lion is necessary and 
advisable. Information from well-designed research studies may better 
enable NMFS and the Council to craft fishery management measures that 
ensure sufficient prey availability for sea lion recovery and that 
minimize, to the extent practicable, burdensome impacts on the fishing 
industry. NMFS is reviewing a preliminary research plan to investigate 
the effects of the Atka mackerel fishery on Steller sea lion condition 
and fitness, and the efficacy of trawl exclusion zones as a sea lion 
conservation measure. NMFS has initiated planning discussions on how 
best to undertake the initial steps of this proposal, which include 
small-scale bottom trawl surveys and tagging of Atka mackerel for 
movement studies.
    Comment 3. Reducing the likely adverse impacts of high-volume, 
concentrated trawl fishery removals of key prey species from sea lion 
CH should be the highest priority for sea lion conservation. The 
proposed regulations fall short in this respect. Additional measures 
for sea lion conservation should include (1) no trawling for Atka 
mackerel in all Steller sea lion CH and foraging habitat in the AI, (2) 
spreading the catch more evenly in time with quarterly allocations, (3)

[[Page 3448]]

spreading the catch more evenly in space with smaller spatial 
allocations, and (4) reducing the overall TAC in response to sharp 
declines in the estimates of stock biomass.
    Response. NMFS believes that the measures contained in this action 
will reduce the likelihood of fishery-induced localized depletions of 
Steller sea lion prey within CH. However, if continuing research 
indicates that this is not the case, NMFS will change the regulations, 
in consultation with the Council, to reflect the newly acquired 
understanding of sea lion prey requirements and fishery effects on 
local prey availability. Although the Atka mackerel biomass decreased 
from a peak in 1990 and 1991, the TAC-setting process incorporates 
risk-averse methods that ensure conservative catch levels.
    Comment 4. The proposed regulations are inadequate because they do 
not insure that adverse modification will not occur in sea lion CH, 
especially in the Eastern District of the AI. No analysis exists to 
show that a 50-percent reduction in total fishery removals from CH in 
Districts 542 and 543 is adequate to avoid localized depletions or 
other adverse modifications of CH. The problem of fleet concentration 
and locally intense pulse fishing is not addressed by broad spatial 
allocations because the fishery is likely to remain spatially 
concentrated in discrete locations under the proposed regulations. Two 
equal seasonal allowances of Atka mackerel TACs are not sufficient to 
prevent locally high extraction rates. The proposed measures do not 
adequately address the need to reduce fishing in the fall and winter 
months when sea lion prey is believed to be more scarce. Finally, 
allocating substantial portions of the Atka mackerel TAC outside of the 
CH, without reductions in TAC levels, will likely result in 
transferring the problems to these other areas.
    Response. See response to Comment 3. A 50-percent reduction in 
total fishery removals from CH is a reasonable first step that 
substantially diminishes competition for Atka mackerel between Steller 
sea lions and the Atka mackerel fishery. For example, based on catch 
history and the Atka mackerel TAC of 22,400 metric tons (mt) for the 
Central AI District (542) in 1998, up to 98 percent or 21,952 mt could 
have been caught by the fishery inside CH. Under the conservation 
program implemented by this final rule, and assuming the same TAC, the 
catch of Atka mackerel inside CH would be reduced to 17,920 mt in the 
first year and to 8,960 mt by the fourth year of the program. Further 
in this example, the catches made inside CH without the conservation 
measures normally would be taken at one time of the year, in winter. 
This action will divide the catch inside CH between winter and summer/
fall seasons. Instead of removing 21,952 mt from CH during one winter 
season (in this example) the fishery would ultimately be allowed to 
remove only 4,480 mt during a winter season. Hence, disbursement of the 
fleet by area and season will significantly reduce fishery-induced 
localized depletions of Atka mackerel inside CH. If new information in 
the future indicates otherwise, NMFS will re-examine these measures in 
that light. To this end, the phased-in approach to reducing catch 
levels inside CH is designed, in part, to avoid transferring the 
conservation problem to other areas outside CH by allowing time to 
identify and respond to unanticipated effects of this action.
    Comment 5. The Atka mackerel TAC reapportionment plan should be 
approved for the Eastern and Western AI Districts and modified for the 
Central AI District where only the temporal reapportionment of Atka 
mackerel fishing should be implemented. The proposed CH area 
restrictions for the Central AI District could negatively affect the 
Atka mackerel stock and, thereby, adversely impact foraging 
opportunities for sea lions as a greater proportion of fishing is 
mandated outside of current fishing areas. The Council's Scientific and 
Statistical Committee (SSC) advised the Council to move forward with 
seasonal modifications, but not spatial modifications, to the Atka 
mackerel fishery. The SSC was concerned that disproportionate harvest 
rates of Atka mackerel in marginal areas for the stock (outside CH) 
could hurt the mackerel population and possibly impact sea lions. In 
the Eastern and Western Districts, a reasonable fishery can be 
conducted under the proposed modifications.
    Response. For 1999, the apportionment of Atka mackerel TAC between 
areas inside and outside Steller sea lion CH in the AI Central District 
will be 80 percent inside and 20 percent outside. This represents the 
first year of a four-year phased-in reduction in the proportion caught 
in CH (to 40 percent inside CH in 2002), but only a 15 percent 
reduction from the recent 3-year average of 95 percent caught within CH 
in the Central District. While NMFS recognizes that mandated movements 
of the fishery may have unforeseen consequences to the fishery, the 
Atka mackerel stock, and the habitats of other species, NMFS believes 
that decreased use of CH areas by the fishery will promote the recovery 
of Steller sea lions. Furthermore, the phased-in reduction of the use 
of CH areas will enable NMFS and the Council to revisit these actions 
before 2002. If research, groundfish surveys (to be conducted in both 
2000 and 2002), or other information sources indicate that 
redistribution of the fishery to areas outside CH is having detrimental 
effects on the Atka mackerel stock or the habitats of other species, 
NMFS may consider different measures to promote the recovery of the 
Steller sea lion population and protect the habitats of marine species.
    Comment 6. Although industry presented several options to the 
Council for addressing the potential impact of the Atka mackerel 
fishery on Steller sea lions, NMFS informed the industry and Council 
that the only acceptable options were those based on inside-outside CH 
apportionments of TAC. NMFS stated other options that failed to limit 
harvest within CH could result in a finding that the fishery 
jeopardized the recovery of sea lions (under the Endangered Species 
Act) and could result in fishery closures in 1999. NMFS was acting as 
both judge and jury, stifling the Council process and affecting the 
content of options eventually adopted by the Council. The result was 
approval of measures based on the split of the TAC between inside and 
outside CH despite the Council's reservations regarding the merits of 
such an approach.
    Response. During the process of developing conservation measures to 
address the potentially adverse impact of the Atka mackerel fishery on 
the recovery of the endangered Steller sea lion, NMFS hosted several 
industry workshops and considered comments by the Council's SSC and 
Advisory Panel, as well as public testimony, provided at the April and 
June 1998 Council meetings. The alternative management measures 
presented to the Council included options such as the step-wise 
implementation of CH harvest limitations that were suggested by 
industry and ultimately adopted by the Council. Although both industry 
and conservation groups presented other options, NMFS did not pursue 
these options as reasonable alternatives in light of the standards 
provided by the ESA and other applicable law and due to the limited 
knowledge on fishery interactions with Steller sea lions. NMFS balanced 
these concerns with precautionary principles that require immediate and 
significant action be taken to mitigate activities that pose jeopardy 
to the recovery of Steller sea lions or adversely impact their CH.

[[Page 3449]]

NMFS acknowledges the Council's reservations in adopting the proposed 
measures given the scarcity of existing information. However, such 
action is commended, prudent, and subject to change in the future as 
new information becomes available.
    Comment 7. NMFS should not implement the third and fourth year Atka 
mackerel catch reductions in the CH of the Central AI District if data 
from the first and second year's fisheries indicate that this district 
cannot support a fishery for 60 percent of the TAC outside CH. NMFS 
should reconsider its entire area apportionment plan if research in the 
next few years concludes that fishing does not affect the density of 
Atka mackerel in areas inhabited by sea lions. The Council should be 
required to conduct an annual review of the phased-in modifications to 
the Atka mackerel fishery. NMFS made several important commitments to 
research the effect of the fishery on the density of Atka mackerel in 
areas inhabited by sea lions. NMFS also agreed that a better assessment 
of the spatial distribution of Atka mackerel was necessary. NMFS should 
follow through on its commitment so that an adequate review of the 
action can be conducted.
    Response. See responses to Comments 2 and 5. NMFS intends to 
support research on the effects of fishing on Steller sea lion prey to 
the extent funding permits. NMFS also supports periodic review of the 
phased-in catch restrictions inside CH.
    Comment 8. NMFS' expressed intent to manage catch limitations 
inside CH areas by counting all catch from the beginning of a season 
against the catch limits inside CH, regardless of where the fish were 
actually caught, will create a ``race-for-fish'' inside CH contrary to 
the stated objective of the plan. NMFS should delay implementing CH 
restrictions until a VMS program is implemented so that the location of 
catch can be correctly counted against the area in which it is taken. 
The fishing industry is willing to work with NMFS to establish a 
reasonable monitoring system.
    Response. As noted in the response to Comment 1, NMFS intends to 
implement VMS requirements by September 1, 1999. The primary purpose of 
these requirements will be to enforce area closures; not for catch 
accounting purposes. The resolution of catch location data, even with 
the use of a VMS, is not sufficient to determine whether any particular 
catch of fish was taken from inside or outside of the CH area. This is 
because a VMS does not necessarily match a catch of fish to a 
particular area. NMFS' presumption that initial catches of Atka 
mackerel come from within CH is historically based in that significant 
amounts of the Atka mackerel TAC have been harvested within Steller sea 
lion CH. As discussed in the EA/RIR/FRFA, only 5 to 15 percent of the 
Atka mackerel harvest currently occurs outside of CH. Because of this 
current harvesting practice, NMFS' approach should not stimulate any 
more of a ``race-for-fish'' than currently exists without vessel-
specific catch quotas. To not follow this approach would undermine the 
conservation measures implemented by this action to protect Steller sea 
lions. NMFS may alter this approach as data develops concerning 
increased harvests of Atka mackerel outside of CH.
    Comment 9. NMFS has made no explicit allowances for TAC not taken 
in the A season to be incorporated into the B season. NMFS should 
commit to rolling over unharvested A season quota into the B season. 
Otherwise, fishermen will have an incentive to fish in hazardous 
weather conditions which creates a safety issue.
    Response. The proposed rule, at Sec. 679.20(a)(8)(ii)(B), 
specifically provided for the addition of unharvested amounts of the A 
season allowance to the B season allowance. This provision is unchanged 
in the final rule. NMFS will exercise this reapportionment authority 
such that the percentage of an Atka mackerel TAC that may be harvested 
from inside CH during the B season under Sec. 679.22(a)(8)(iii)(B) of 
the final rule is not exceeded. That is, unharvested amounts of the TAC 
apportionment specified for the A season would be reapportioned to the 
B season for harvest outside CH. An overage of the A season TAC 
apportionment would be deducted from the B season TAC apportionment 
proportionately between inside and outside CH areas.
    Comment 10. In the analysis presented to the Council, NMFS 
incorrectly determined that there were no small entities (pursuant to 
the Regulatory Flexibility Act (RFA)) affected by the management 
measures being developed. In the proposed rule, NMFS attempted to 
remedy this error by admitting that some impacted entities could be 
``small entities,'' as defined by the RFA. NMFS should have made this 
determination during development of the measures as it may have changed 
the outcome of the Council decision. Despite a current finding of 
significant impact on small entities, the analyses of impacts should 
have been prepared in conjunction with the development of proposed 
measures instead of in hindsight. NMFS continues to miss the point on 
impacts on communities in the AI that are by definition ``small 
entities'' by maintaining that the issue is impact on Community 
Development Quota (CDQ) communities. Dutch Harbor and Adak are not CDQ 
communities but are clearly small entities which depend heavily on 
income from services provided to vessels participating in the Atka 
mackerel fishery. Further discrepancy exists between the meaning of 
``small entity'' as used in the analysis of impacts of the pollock 
inshore-offshore allocations developed at the same time as the analysis 
of Atka mackerel management measures.
    Response. During the development of alternatives, NMFS prepared an 
analysis of the potential economic impacts of various Steller sea lion 
conservation measures. This initial analysis indicated that this 
measure would not result in significant economic impacts on a 
substantial number of small entities because most of the entities that 
would be directly affected by the measures were not considered ``small 
entities'' under the RFA. For fishing firms, a ``small entity'' would 
have receipts of less than $3 million dollars annually. The initial 
analysis indicated that catcher/processor vessels dominate the Atka 
mackerel fishery and these vessels did not appear to meet this ``small 
entity'' criterion. NMFS presented this analysis to the Council and 
public. Public testimony presented to the Council included comments on 
the impacts on small entities and challenged the tentative view that 
the conservation measures would not have a significant economic impact 
under the RFA. NMFS later determined that a definite certification of 
no significant impact on a substantial number of small entities could 
not be made due to a lack of empirical information. Therefore, NMFS 
prepared an initial regulatory flexibility analysis (IRFA) that was 
available for public review and comment at the time the proposed rule 
was published for public review. A final regulatory flexibility 
analysis (FRFA) was prepared for the final rule.
    The Council process for recommending conservation and management 
measures is public and iterative, and designed to incorporate new 
information as it emerges through this process. Compliance with the RFA 
is primarily an agency responsibility. NMFS is satisfied that the 
public was adequately notified of the potential small entity impacts, 
and that the final agency decision to implement this rule has taken 
these potential impacts into consideration. For example, exemption of 
small entity jig gear vessels from the rule and the phased-in approach 
to

[[Page 3450]]

reducing Atka mackerel catches within CH serve to mitigate economic 
impacts of the rule on all directly affected entities.
    For purposes of the RFA, NMFS must identify small entities that are 
expected to comply with the rule, i.e. those that would be directly or 
indirectly regulated by the rule. For this rule, those small entities 
include those small businesses, small organizations, and small 
governmental jurisdictions as described in the FRFA (section 5.2). 
Although the fishing ports of Alaska are small entities, they are not 
regulated by this action. CDQ groups, on the other hand, are small 
entities that are directly regulated by this action. Most of the 
vessels that have participated in the Atka mackerel fishery recently 
have had total annual receipts in excess of $3 million, and few are 
small entities. Similarly, few of the factory trawlers in the BSAI 
pollock fishery should have been identified as small entities for the 
purposes of the IRFA for the inshore-offshore allocation (Amendment 51 
to the FMP). For this action, a summary of the analysis of entities 
affected indirectly is presented in the preamble to the proposed rule. 
Due to public comment indicating that the rule could have adverse 
economic impacts on small entities, including governmental 
jurisdictions, and without empirical information to demonstrate 
conclusively that significant impacts on a substantial number of small 
entities would not occur, NMFS prepared an IRFA and FRFA for this 
action.

Small Entity Compliance Guide

    The following information satisfies the Small Business Regulatory 
Enforcement Fairness Act of 1996, which requires a plain language guide 
to assist small entities in complying with this rule. This rule's 
primary management measures are time and area closures to directed 
fishing for Atka mackerel. These closures affect only fishermen who use 
trawl gear.
    What areas does this rule close? This rule prohibits trawling 
within 10 nm and within 20 nm of the Steller sea lion rookeries 
identified in this final rule at Sec. 679.22(a)(7) and (8). Most of 
these areas were already closed to trawling before this final rule. 
This action makes permanent closures that were seasonal around the two 
Steller sea lion rookeries shown in Table 5b of this rule. In addition, 
this rule prohibits trawling for Atka mackerel within areas designated 
as Steller sea lion CH in the Western and Central Districts of the AI 
when NMFS announces this area closure in the Federal Register. The 
Alaska Region, NMFS will announce these CH closures in an information 
bulletin. Contact the Alaska Region, Sustainable Fisheries Division 
(see ADDRESSES) for further information on obtaining closure 
announcements. Tables 1 and 2, and Figure 4 of rules at 50 CFR part 226 
identify the CH area in the Western and Central Districts of the AI The 
only exception to the CH closure to trawl gear is for harvesting 
groundfish CDQ. However, a CDQ group must cease fishing with trawl gear 
inside CH areas in the Western and Central Districts of the AI, when it 
has taken its specified allocation of Atka mackerel for the fishing 
year.
    When is fishing for Atka mackerel with trawl gear allowed? This 
final rule authorizes directed fishing for Atka mackerel with trawl 
gear in the AI Subarea only during two seasons specified in this rule 
at Sec. 679.23(e)(3). Directed fishing for Atka mackerel during each 
season will end on the last day of the season or when the Alaska Region 
Administrator determines that the seasonal allowance for either season 
has been harvested. NMFS will announce seasonal closures of directed 
fishing for Atka mackerel in the Federal Register and in information 
bulletins released by the Alaska Region. Affected fishermen should keep 
themselves informed of such closure notices.

Classification

    This action has been determined to be not significant under E.O. 
12866.
    Pursuant to the RFA, NMFS has prepared a Final Regulatory 
Flexibility Analysis (FRFA), which is supplemented by the preamble to 
this final rule. A summary of significant issues raised in public 
comments in response to the IRFA and the NMFS response to those 
comments are provided in Comment 10. No new reporting, recordkeeping or 
other compliance requirements are imposed by this rule. The FRFA 
concludes the following regarding the small entities to which this rule 
applies and measures to mitigate significant economic impacts on small 
entities.
    Business entities affected directly. The actions being considered 
for the BSAI Atka mackerel fishery would have direct effects on fewer 
than 15 fishing vessels all of which are expected to be factory 
trawlers. In 1997, 12 factory trawlers participated in the BSAI Atka 
mackerel fishery and eight of these vessels accounted for 81 percent of 
the retained catch in that fishery. All of the factory trawlers in the 
Atka mackerel fishery are owned by seafood companies with annual 
receipts that exceed the $3 million small entity threshold by the Small 
Business Administration for fish harvesting businesses. In 1998, 1 
percent of the Atka mackerel TAC in Area 541 (127 mt) was allocated to 
vessels using jig gear. However, for all of 1998, NMFS did not receive 
any Atka mackerel catch reports by vessels using jig gear in Area 541 
and the entire 127 mt TAC allocation was unharvested. Up to 10 vessels 
using jig gear had expressed interest in fishing for Atka mackerel in 
Area 541 and all of these vessels are small entities. However, the 
final rule would exempt vessels using jig gear from the A-B season 
split, critical habitat restrictions, and VMS requirements. Therefore, 
all small entities using jig gear to fish for Atka mackerel would be 
unaffected by this action.
    Small communities and groups affected directly. Because, very 
little BSAI Atka mackerel is delivered to on-shore processors and 
because the principal participants in this fishery are not residents of 
Alaska fishing communities, with the exception of the CDQ communities, 
few small communities would be affected directly. With the expansion of 
the CDQ program to include all BSAI groundfish and crab, the 50 plus 
CDQ communities would be affected by actions that affect the Atka 
mackerel CDQ. However, the effects on these communities are not 
expected to be significant because Atka mackerel is expected to account 
for less than 5% of the value of the CDQs to these communities, none of 
the actions would eliminate all of the value of the Atka mackerel CDQs, 
and the CDQs are but one source of income for these communities. To 
further reduce the potential impacts of this action on CDQ groups, the 
Council's preferred alternative would exempt CDQ groups from the A-B 
season split so that CDQ groups are not forced to fish small amounts of 
Atka mackerel CDQ during two separate time periods.
    Business entities affected indirectly. A much larger number of 
entities would be affected indirectly if the final rules result in the 
factory trawlers, that have dominated the Atka mackerel fishery, 
switching effort from the Atka mackerel fishery to other groundfish 
fisheries. If the fishing capacity of the eight factory trawlers that 
were the core of the Atka mackerel fleet in 1997 were diverted to other 
fisheries, these vessels could take substantially larger shares of the 
catch in the BSAI rock sole, Pacific cod, flathead sole, or other 
flatfish fishery or the GOA flatfish fisheries. Much of any such 
increase in catch by the core Atka mackerel fleet would be at the 
expense of other factory trawlers in the BSAI and both catcher vessels 
and other factory trawlers in the GOA. In 1996, 67 factory

[[Page 3451]]

trawlers participated in BSAI and GOA Pacific cod fisheries and 42 
factory trawlers participated in the various BSAI and GOA flatfish 
fisheries. In 1996, 180 trawl catcher vessels participated in the 
Pacific cod fisheries of the BSAI and GOA and 62 trawl catcher vessels 
participated in the various flatfish fisheries of the BSAI and GOA. Due 
to inshore/offshore TAC allocations for Pacific cod in the GOA and TAC 
splits between catcher vessels and catcher processors in the BSAI, 
catcher vessels participating in the Pacific cod fishery will be 
unaffected if Atka mackerel factory trawlers shift into the Pacific cod 
fishery. However, catcher vessels fishing for flatfish in the BSAI and 
GOA could face impacts if effort shifts away from Atka mackerel as a 
result of this action. The extent to which these shifts may occur is 
impossible to quantify or predict.
    Most of the factory trawlers operating in the BSAI and GOA Pacific 
cod and flatfish fisheries are owned by or affiliated with ``large'' 
entities. In addition, up to half of the catcher vessels fishing in the 
BSAI are believed to be owned by or affiliated with large entities. 
However, in a written comment to the Council submitted for this action, 
an industry representative for flatfish and Pacific cod factory 
trawlers indicated that more than 30 percent of the factory trawlers in 
the BSAI flatfish and Pacific cod fisheries expected 1998 annual gross 
revenues to be less than $3 million. NMFS does not have information to 
confirm or refute this figure. Furthermore, the ownership 
characteristics of these vessels has not been analyzed to determine if 
they are independently owned and operated or affiliated with a larger 
parent company. Because NMFS cannot quantify the number of small 
entities that may be indirectly affected by this action, or quantify 
the magnitude of those effects, NMFS concludes that it is possible that 
this action could have a significant economic impact on a substantial 
number of small entities.
    Measures taken to reduce impacts on small entities. The Council 
considered and adopted a series of exemptions to reduce the impacts of 
this action on small entities. The final rule contains the following 
elements to reduce impacts on small entities: (1) Vessels using jig 
gear would be exempted from all aspects of the proposed action, (2) CDQ 
groups would be exempted from the A-B season split to prevent having to 
fish for small Atka mackerel CDQ amounts during two times of the year, 
and (3) vessels using hook-and-line gear would be exempt from the 
closure to fishing inside critical habitat. The critical habitat 
closures would affect vessels using trawl gear only, (4) both jig and 
hook and line vessels would be exempted from future VMS requirements 
for the Atka mackerel fishery.
    As stated in the preceding paragraph and in the section entitled, 
``Business entities affected directly,'' all small entities in the Atka 
mackerel fishery (jig boats) are exempt from all aspects of this final 
rule. NMFS is not aware of additional alternatives that could further 
mitigate this action's economic impact on small entities.
    Pursuant to section 7 of the ESA, NMFS initiated consultation on 
the effects of fishing under this action on listed species, including 
the Steller sea lion, and designated CH. The biological opinion 
prepared for this consultation, dated December 3, 1998, as revised 
December 16, 1998, concludes that the Atka mackerel fishery in the AI, 
without this action, would appreciably reduce the likelihood of the 
survival and recovery of Steller sea lions and adversely modify their 
designated CH. With the conservation measures in this final rule fully 
implemented by 2002, the biological opinion further concluded that 
fishing for Atka mackerel under these measures should not appreciably 
reduce the likelihood of both the survival and recovery of Steller sea 
lions. This rule implements the identified conservation measures.
    This final rule contains no new collection-of-information 
requirements subject to the Paperwork Reduction Act.
    The Assistant Administrator for Fisheries, NOAA, finds there is 
good cause under the authority contained in 5 U.S.C. 553(d) to waive 
the 30-day delay in effectiveness because the immediate effectiveness 
of this rule is required to prevent the Atka mackerel fishery from 
exceeding the A season apportionment of the Atka mackerel TAC inside CH 
when directed fishing for this species opens in January 1999.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Reporting and recordkeeping requirements.

    Dated: January 15, 1999.
Andrew A. Rosenberg,
Deputy 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, paragraphs (a)(8) and (c)(2)(ii)(A) are revised 
to read as follows:


Sec. 679.20  General limitations.

* * * * *
    (a) * * *
    (8) BSAI Atka mackerel--(i) Jig gear. Vessels using jig gear will 
be allocated up to 2 percent of the TAC of Atka mackerel specified for 
the Eastern Aleutian Islands District and Bering Sea subarea, after 
subtraction of reserves, based on the following criteria:
    (A) The amount of Atka mackerel harvested by vessels using jig gear 
during recent fishing years;
    (B) The anticipated harvest of Atka mackerel by vessels using jig 
gear during the upcoming fishing year; and
    (C) The extent to which the jig-gear allocation will support the 
development of a jig-gear fishery for Atka mackerel while minimizing 
the amount of Atka mackerel TAC annually allocated to vessels using jig 
gear that remains unharvested at the end of the fishing year.
    (ii) Other gears. The remainder of the Atka mackerel TAC, after 
subtraction of the jig gear allocation and reserves, will be allocated 
to vessels using other authorized gear types.
    (A) Seasonal allowances. The Atka mackerel TAC specified for each 
subarea or district of the BSAI will be divided equally, after 
subtraction of the jig gear allocation and reserves, into two seasonal 
allowances corresponding to the A and B seasons defined at 
Sec. 679.23(e)(3).
    (B) Overages and underages. Within any fishing year, unharvested 
amounts of the A season allowance will be added to the B season 
allowance and harvests in excess of the A season allowance will be 
deducted from the B season allowance.
* * * * *
    (c) * * *
    (2) * * *
    (ii) * * *
    (A) The interim specifications for pollock and Atka mackerel will 
be equal to the first seasonal allowance for pollock and Atka mackerel 
that is published in the proposed specifications under paragraph (c)(1) 
of this section.
* * * * *
    3. In Sec. 679.22, paragraphs (a)(7) and (a)(8) are revised to read 
as follows.


Sec. 679.22  Closures.

    (a) * * *
    (7) Steller sea lion protection areas, Bering Sea Subarea and 
Bogoslof

[[Page 3452]]

District--(i) Year-round closures. Trawling is prohibited within 10 nm 
of each of the eight Steller sea lion rookeries shown in Table 4a of 
this part.
    (ii) Seasonal closures. During January 1 through April 15, or a 
date earlier than April 15, if adjusted under Sec. 679.20, trawling is 
prohibited within 20 nm of each of the six Steller sea lion rookeries 
shown in Table 4b of this part.
    (8) Steller sea lion protection areas, Aleutian Islands Subarea--
(i) 10-nm closures. Trawling is prohibited within 10 nm of each of the 
17 Steller sea lion rookeries shown in Table 5a of this part.
    (ii) 20-nm closures. Trawling is prohibited within 20 nm of each of 
the two Steller sea lion rookeries shown in Table 5b of this part.
    (iii) Western and Central Aleutian Islands critical habitat 
closures--(A) General. Trawling is prohibited within areas designated 
as Steller sea lion critical habitat in the Western or Central 
Districts of the AI (see Table 1, Table 2, and Figure 4 to part 226 of 
this title) when the Regional Administrator announces by notification 
in the Federal Register that the criteria for a trawl closure in a 
district set out in paragraph (a)(8)(iii)(B) of this section have been 
met.
    (B) Criteria for closure. The trawl closures identified in 
paragraph (a)(8)(iii)(A) of this section will take effect when the 
Regional Administrator determines that the harvest of a seasonal 
allowance of Atka mackerel specified under Sec. 679.20(a)(8)(ii)(A) 
reaches the following percentage identified for each year and district:

------------------------------------------------------------------------
                                                     Western    Central
                       Year                           (543)      (542)
                                                    (percent)  (percent)
------------------------------------------------------------------------
1999..............................................         65         80
2000..............................................         57         67
2001..............................................         48         46
2002 and after....................................         40         40
------------------------------------------------------------------------

    (C) Duration of closure. A Steller sea lion critical habitat area 
trawl closure within a district will remain in effect until NMFS closes 
Atka mackerel to directed fishing within the same district.
    (D) CDQ fishing. Harvesting groundfish CDQ with trawl gear is 
prohibited within areas designated as Steller sea lion critical habitat 
in the Western and/or Central Districts of the AI (see Table 1, Table 
2, and Figure 4 to part 226 of this title) for an eligible vessel 
listed on an approved CDP after the CDQ group has harvested the percent 
of the annual Atka mackerel CDQ specified for the year and district at 
paragraph (a)(8)(iii)(B) of this section.
* * * * *
    4. In Sec. 679.23, paragraph (e)(3) is redesignated as paragraph 
(e)(4) and a new paragraph (e)(3) is added to read as follows:


Sec. 679.23  Seasons.

* * * * *
    (e) * * *
    (3) Directed fishing for Atka mackerel with trawl gear. Subject to 
other provisions of this part, directed fishing for Atka mackerel with 
trawl gear in the Aleutian Islands Subarea is authorized only during 
the following two seasons:
    (i) A season. From 0001 hours, A.l.t., January 1, through 1200 
hours, A.l.t., April 15;
    (ii) B season. From 1200 hours, A.l.t., September 1, through 1200 
hours, A.l.t., November 1.
* * * * *
    5. In part 679, Table 5 is revised to read as follows:

                                          Table 5.--Aleutian Islands Subarea Steller Sea Lion Protection Areas
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             From                                                         To
         Name of island         ------------------------------------------------------------------------------------------------------------------------
                                            Latitude                      Longitude                     Latitude                      Longitude
--------------------------------------------------------------------------------------------------------------------------------------------------------
  3-nm NO TRANSIT ZONES described at 227.12(a)(2) of this title.
 
a. Trawling Prohibited Year-
 Round Within 10 nm:
    Yunaska Island.............  52 deg. 42.0' N                170 deg. 38.5' W              52 deg. 41.0' N               170 deg. 34.5' W
    Kasatochi Island...........  52 deg. 10.0' N                175 deg. 31.0' W              52 deg. 10.5' N               175 deg. 29.0' W
    Adak Island................  51 deg. 36.5' N                176 deg. 59.0' W              51 deg. 38.0' N               176 deg. 59.5' W
    Gramp Rock.................  51 deg. 29.0' N                178 deg. 20.5' W
    Tag Island.................  51 deg. 33.5' N                178 deg. 34.5' W
    Ulak Island................  51 deg. 20.0' N                178 deg. 57.0' W              51 deg. 18.5' N               178 deg. 59.5' W
    Semisopochnoi..............  51 deg. 58.5' N                179 deg. 45.5' E              51 deg. 57.0' N               179 deg. 46.0' E
    Semisopochnoi..............  52 deg. 01.5' N                179 deg. 37.5' E              52 deg. 01.5' N               179 deg. 39.0' E
    Amchitka Island............  51 deg. 22.5' N                179 deg. 28.0' E              51 deg. 21.5' N               179 deg. 25.0' E
    Amchitka Is/Column Rocks...  51 deg. 32.5' N                178 deg. 49.5' E              ............................  ............................
    Ayugadak Point.............  51 deg. 45.5' N                178 deg. 24.5' E
    Kiska Island...............  51 deg. 57.5' N                177 deg. 21.0' E              51 deg. 56.5' N               177 deg. 20.0' E
    Kiska Island...............  51 deg. 52.5' N                177 deg. 13.0' E              51 deg. 53.5' N               177 deg. 12.0' E
    Buldir Island..............  52 deg. 20.5' N                175 deg. 57.0' E              52 deg. 23.5' N               175 deg. 51.0' E
    Agattu Is./Gillion Pt......  52 deg. 24.0' N                173 deg. 21.5' E
    Agattu Island..............  52 deg. 23.5' N                173 deg. 43.5' E              52 deg. 22.0' N               173 deg. 41.0' E
    Attu Island................  52 deg. 54.5' N                172 deg. 28.5' E              52 deg. 57.5' N               172 deg. 31.5' E
b. Trawling Prohibited Year-
 Round Within 20 nm:
    Seguam Island..............  52 deg. 21.0' N                172 deg. 35.0' W              52 deg. 21.0' N               172 deg. 33.0' W
    Agligadak Island...........  52 deg. 06.5' N                172 deg. 54.0' W
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Each rookery extends in a clockwise direction from the first set of geographic coordinates, along the shoreline at mean lower low water, to the
  second set of coordinates; if only one set of geographic coordinates is listed, the rookery extends around the entire shoreline of the island at mean
  lower low water.


[[Page 3453]]

[FR Doc. 99-1432 Filed 1-19-99; 12:48 pm]
BILLING CODE 3510-22-F