[Federal Register Volume 69, Number 182 (Tuesday, September 21, 2004)]
[Proposed Rules]
[Pages 56384-56403]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-21217]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 040907255-4255-01; I.D. 082704E]
RIN 0648-AS41


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

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS publishes a proposed rule that would adjust Steller sea 
lion protection measures for the pollock and Pacific cod fisheries in 
the Gulf of Alaska (GOA). The revisions would adjust Pacific cod and 
pollock fishing closure areas near four Steller sea lion haulouts and 
modify the seasonal management of pollock harvest in the GOA. The 
intent of the revisions is to maintain protection for Steller sea lions 
and their critical habitat while easing the economic burden on GOA 
fishing communities. This action is intended to

[[Page 56385]]

promote the goals and objectives of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act), the Fishery 
Management Plan for Groundfish of the Gulf of Alaska (FMP), and other 
applicable laws.

DATES: Written comments must be received by October 21, 2004.

ADDRESSES: Send comments to Sue Salveson, Assistant Regional 
Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, 
Attn: Lori Durall. Comments may be submitted by:
     Mail to P.O. Box 21668, Juneau, AK 99802-1668;
     Hand Delivery to the Federal Building, 709 West 9th 
Street, Room 420A, Juneau, AK;
     FAX to 907-586-7557;
     E-mail to [email protected]. Include in the 
subject line of the e-mail comments the following document identifier: 
GOA SSL Proposed Rule. E-mail comments, with or without attachments, 
are limited to 5 megabytes;
     Webform at the Federal eRulemaking Portal: 
www.regulations.gov. Follow the instructions at that site for 
submitting comments.
    Copies of the Environmental Assessment/Regulatory Impact Review 
(EA/RIR) prepared for the proposed rule and copies of the 1998 and 2001 
Biological Opinions, and the June 19, 2003, supplement to the 2001 
Biological Opinion, on the effects of the groundfish fisheries on 
Steller sea lions may be obtained from the same mailing address above 
or from the NMFS Alaska Region website at www.fakr.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Melanie Brown, 907-586-7228 or 
[email protected].

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

Background

    The western distinct population segment (DPS) of Steller sea lions 
has been listed as endangered under the Endangered Species Act (ESA), 
and critical habitat has been designated for this DPS (50 CFR 226.202). 
Temporal and spatial harvest restrictions were established for the 
groundfish fisheries of Alaska (68 FR 204, January 2, 2003) to protect 
Steller sea lions from jeopardy of extinction and their critical 
habitat from adverse modification or destruction from the effects of 
these fisheries. Pollock and Pacific cod are important prey species for 
Steller sea lions, and these protection measures apply to the pollock 
and Pacific cod fisheries in the GOA.
    In June 2004, the Council unanimously recommended revisions to the 
Steller sea lion protection measures in the GOA to alleviate some of 
the economic burden on coastal communities while maintaining protection 
for Steller sea lions and their critical habitat. These revisions would 
adjust pollock and Pacific cod fishing closures near four Steller sea 
lion haulouts and would revise seasonal management of pollock harvest. 
NMFS concluded in an ESA Section 7 informal consultation dated August 
26, 2004, that fishing under the proposed revisions is not likely to 
adversely affect Steller sea lions beyond those effects already 
considered in the 2001 Biological Opinion (BiOp) on the Steller sea 
lion protection measures and its June 19, 2003 supplement (see 
ADDRESSES). Based on results of the informal consultation and the EA/
RIR (see ADDRESSES), NMFS has determined that this action could provide 
some economic relief to participants in the pollock and Pacific cod 
fisheries without adversely affecting Steller sea lions and their 
critical habitat beyond those effects already analyzed in the 2001 BiOp 
and its supplement. Each proposed revision is described below.

Haulout Closure Revisions

    The proposed action would revise Table 4 to 50 CFR part 679 to 
reduce the pollock fishing closure area around Puale Bay from 10 
nautical miles (nm) to 3 nm from January 20 through May 31. Puale Bay 
is located in Shelikof Strait on the east side of Kodiak Island. The 
current 10 nm fishing closure would remain unchanged from August 25 
through November 1. The number of Steller sea lions using the haulout 
at Puale Bay has declined greatly, ranging from 14,234 winter non-pups 
in 1977, to 40 non-pups in 1997. Since 1990, the usage of this site in 
the summer and winter has been approximately 100 animals.
    The decline in the Steller sea lion population at Puale Bay haulout 
correlates with the decline of pollock spawning aggregations in 
Shelikof Strait. Incidental take of Steller sea lions in foreign 
fisheries targeting spawning aggregations of pollock was observed to be 
very high in the Shelikof Strait area. The recovery of Steller sea 
lions at this site and in Shelikof Strait may be linked to the overall 
biomass level of the spawning aggregations of pollock rather than to 
the availability of pollock in specific near shore areas (i.e., within 
the closure zone). Additional fishing for pollock closer to shore of 
the Puale Bay haulout is not likely to affect the overall spawning 
aggregations of pollock in the Shelikof Strait because the total 
allowable catch (TAC) for pollock in the area will remain unchanged. 
Assuming the recovery of Steller sea lions is linked in some way to the 
recovery of the spawning aggregations of pollock in the Shelikof 
Strait, allowing additional pollock fishing near Puale Bay likely would 
not substantially affect the recovery of the Steller sea lions in the 
Shelikof Strait. According to NMFS telemetry data, Steller sea lions on 
the east side of Kodiak Island appear to spend most of their time 
closer to shore, presumably foraging there. This action would maintain 
a 3 nm closure to pollock fishing around Puale Bay, providing 
protection to these nearshore foraging areas for Steller sea lions. By 
allowing fishing closer to shore, the safety for the pollock fishing 
fleet would be improved, and the efficiency of harvest may be improved 
if pollock spawning aggregations occur in the waters between 3 nm and 
10 nm of Puale Bay.
    To offset any potential effects on Steller sea lions by allowing 
pollock fishing within 3 nm to 10 nm of Puale Bay, the proposed action 
also would revise Table 4 to 50 CFR part 679 to expand the pollock 
fishing closure area around the Cape Douglas/Shaw Island haulout from 
10 nm to 20 nm. Pollock spawning aggregations historically have not 
been observed in this area, but other types of prey species may be used 
in this area by Steller sea lions. By expanding the closure area, the 
potential interaction between the fishing fleet and Steller sea lions 
would be reduced. Cape Douglas is one of 19 haulout sites that have 
been identified in the 1998 BiOp (see ADDRESSES) as new sites that 
warranted protection. Added protection to this site may be more 
beneficial to Steller sea lions than the current closures around Puale 
Bay, where Steller sea lion recovery may be more dependent on the 
recovery of the pollock spawning aggregations in Shelikof Strait. This 
action also would provide some economic relief to pollock fishery 
participants by offsetting the opening of Puale Bay waters that 
historically have had more pollock harvests with the closure of Cape

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Douglas waters that have had less pollock harvest.
    The proposed action also would revise Table 5 to 50 CFR part 679 to 
reduce the Pacific cod pot gear fishery closure around Kak Island from 
20 nm to 3 nm. Because of the overlap of the closure area with the 20 
nm closure around Sutwik Island, only the west side of Kak Island would 
be open from 3 nm to 20 nm. This area periodically has been used by the 
Chignik area small vessel fleet to fish for Pacific cod with pot gear. 
Reducing the Pacific cod pot gear fishing closure area around Kak 
Island would not likely result in significantly increased fishing 
activities by the small boat fleet. Therefore, this proposed revision 
is not likely to adversely affect Steller sea lions and their critical 
habitat beyond those effects analyzed in the 2001 BiOp because of the 
small number of small vessels that are likely to participate in the 
Pacific cod pot gear fishery and the slow rate of removal of prey 
species by the Pacific cod pot gear fishery. This action would provide 
some economic relief and additional safety to participants in the 
Pacific cod pot gear fishery by allowing fishing in areas closer to 
shore.
    Last, the proposed action would revise Table 5 to 50 CFR part 679 
to eliminate the Pacific cod pot gear fishing closure around the Castle 
Rock haulout. This area has been used by the small vessel fleet to fish 
for Pacific cod with pot gear during seven of the past nine years in 
the State of Alaska Pacific cod fishery. Because of the small number of 
small vessels and the method of fishing, NMFS has determined that 
opening this area to pot gear fishing is not likely to adversely affect 
the western DPS of Steller sea lions or its critical habitat beyond 
those effects already analyzed in the 2001 BiOp and its supplement. 
Opening waters around Castle Rock to Pacific cod pot gear fishing would 
increase safety for the participants in the fishery and would provide 
some economic relief by allowing Pacific cod harvest in those waters.

Pollock Harvest Management Revisions

    To provide efficient harvest of pollock, the proposed action would 
revise Sec.  679.23(d)(2) to remove the stand down periods between the 
pollock A and B seasons and between the C and D seasons. Currently, 
pollock fishing must stop between February 25 and March 10 and between 
September 15 and October 1. These stand down periods require fishery 
participants to return to port and wait for the opening of the B season 
or the D season. By allowing continuous fishing between the A and B 
seasons and between the C and D seasons when TACs are available, the 
participants in the pollock fishery would receive some economic relief 
by not having to stop fishing activities between seasons.
    In the past several years, the pollock fishery participants were 
not able to fully harvest the A season pollock TAC in area 620 before 
February 25 because the pollock spawning aggregations moved into the 
area at a later time. A large amount of the unharvested pollock TAC has 
been rolled over into subsequent seasons. To provide greater 
opportunity for harvest of the seasonal TAC apportionments in the A 
season, the length of the A and C seasons would be increased to include 
the time period that previously was the stand down period. The new A 
and C season dates would be: A season, January 20 through March 10; and 
C season, August 25 through October 1. Because the Steller sea lion 
protection measures requiring four equal seasonal apportionments of 
pollock harvest would remain unchanged, NMFS has determined that this 
proposed revision would have no adverse effect on Steller sea lions or 
their critical habitat.
    The proposed action would revise Sec.  679.20(a)(5)(iii)(B) to 
provide for the rollover of unharvested pollock seasonal TAC 
apportionment to a subsequent season based on the estimated biomass 
within a statistical area during a season. The Steller sea lion 
protection measures require pollock harvest to be seasonally 
apportioned and spatially apportioned based on the estimates of pollock 
biomass. The Council's GOA Groundfish Plan Team develops estimates of 
the amount of biomass in each statistical area by season for the annual 
harvest specifications. The seasonal apportionments for the Western and 
Central Regulatory Areas of the GOA are distributed among statistical 
areas 610, 620 and 630 based on the estimate of the amount of pollock 
biomass that occurs in each statistical area in a season. These 
seasonal apportionments are published in the annual harvest 
specifications (69 FR 9261, February 27, 2004) and are the basis for 
temporal and spatial management of pollock harvest in the Western and 
Central Regulatory Areas.
    The protection measures allow limited amounts of unharvested 
pollock to be rolled over into subsequent seasons during a fishing 
year. The current regulations at 50 CFR 679.20(a)(iii)(B) state that 
``within any fishing year, under harvest or over harvest of a seasonal 
apportionment may be added to or subtracted from remaining seasonal 
apportionments in a manner to be determined by the Regional 
Administrator, provided that any revised seasonal apportionment does 
not exceed 30 percent of the annual TAC apportionment for a GOA 
regulatory area.'' This provision does not allow for consideration of 
the estimated distribution of biomass among statistical areas by 
season, as intended by the Steller sea lion protection measures, 
potentially resulting in pollock harvests that are not appropriate for 
the estimated amount of pollock biomass available.
    The proposed action would change the rollover provision to allow 
rollover of a statistical area's unharvested pollock apportionment into 
the subsequent season. The rollover amount would be limited to 20 
percent of the seasonal apportionment for the statistical area. Any 
unharvested pollock above the 20 percent limit could be further 
distributed to the other statistical areas, in proportion to the 
estimated biomass in the subsequent season in those statistical areas. 
Because the harvest of pollock is apportioned among four seasons, the 
20 percent seasonal apportionment limit on the rollover would be 
equivalent annually to the 30 percent annual limit on rollover 
currently in the regulations. The 20 percent seasonal apportionment 
limit would provide for better control of harvest than the current 
regulations because the amount of rollover allowed is based on seasonal 
biomass estimates, better fulfilling the temporal and seasonal 
distribution of harvest intended by the Steller sea lion protection 
measures. The participants in the pollock fishery also would benefit 
from reapportionments among statistical areas of unharvested pollock 
that exceed the 20 percent limit. The industry's ability to fully 
harvest a seasonal apportionment has varied among the statistical areas 
with some area harvests being consistently below the seasonal 
apportionments. The reapportionments among statistical areas would 
reduce the potential for foregone harvest, allowing the pollock fishery 
in the Western and Central Regulatory Areas to fully harvest available 
TAC.

Classification

    This proposed rule has been determined to be not significant for 
the purposes of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities.

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The proposed rule would amend existing Steller sea lion protection 
measures in 50 CFR part 679 for the GOA pollock trawl and Pacific cod 
pot gear fisheries. The action would modify some fishing closure 
boundaries to better reflect historic use patterns, reduce 
unanticipated and unnecessary potential burdens on the fishing 
industry, and maintain protection for the western DPS of Steller sea 
lions (i.e., avoid jeopardy of extinction for the western DPS of 
Steller sea lions and the destruction or adverse modification of its 
critical habitat). Any changes to the pollock or Pacific cod fisheries 
affected by this action must not reduce overall efficacy of the Steller 
sea lion protection measures.
    The proposed action would open groundfish fishing areas around 
three GOA Steller sea lion haulouts and close an area around one GOA 
Steller sea lion haulout to pollock and Pacific cod fishing; change 
pollock season stand-down periods, and change procedures for the 
rollover of unharvested pollock seasonal apportionments.

Factual Basis for Certification

    Description and estimate of the number of small entities to which 
the rule applies: Small entities will be directly regulated by this 
action. This includes all small fishing operations in the GOA Pacific 
cod pot gear and pollock trawl gear fisheries. NMFS has determined that 
there were 131 small entities participating in the GOA pot gear fishery 
and 110 small entities participating in the GOA pollock trawl gear 
fishery in 2002.
    Estimate of economic impact on small entities, by entity size and 
industry: The proposed regulatory change has a potential to yield some 
small benefit, but with negligible cost to industry. The analysis 
contained in the RIR prepared for this action concludes that all action 
alternative options affecting the GOA pollock trawl fishery have the 
potential to result in positive net benefits. The potential effect of 
the pollock trawl closure area of Option 1 of Alternative 2 (Cape 
Douglas/Shaw Island) is offset by an opening in an area that appears to 
be of somewhat greater historic importance to the fleet (Puale Bay). 
The number of vessels participating in the Cape Douglas/Shaw Island 
fishery is confidential (i.e., four or fewer), while between nine and 
17 vessels have participated in the fishery near Puale Bay from 2001 
through 2003.
    The elimination of pollock trawl stand-down periods in Option 4 of 
Alternative 2 may lead to greater operational efficiency, but will not 
materially alter the revenue earned. Similarly, the change in the 
rollover method proposed in Option 5 of Alternative 2 may make 
additional pollock harvest possible earlier in the year in some areas; 
however, it will not alter the total annual Western and Central GOA 
area apportionment of total allowable catch as set in the groundfish 
harvest specifications process, and thus, will not materially affect 
total revenue. Overall, these measures have the potential to be 
marginally beneficial to all operators in the GOA pollock trawl 
fishery, including 110 small entities.
    The areas proposed to be opened to Pacific cod pot fishing in 
Option 2 of Alternative 2 (Kak Island area) provide some additional 
nearshore fishing area near the port of Chignik and may marginally 
reduce operational costs. This provision has some potential to improve 
safety as well. The area to be opened under Option 3 (Castle Rock) 
provides some potential additional fishing area with no apparent costs. 
All vessels participating in these fisheries are small entities, but 
the number of participants (i.e., four or fewer) is confidential. 
Overall, these measures have the potential to be beneficial, although 
to a very few small entities in the GOA Pacific cod pot gear fishery.
    Criteria used to evaluate whether the rule would impose 
``significant economic impacts'': The two criteria recommended to 
determine significant economic impact are disproportionality and 
profitability of the action. The proposed action would not place a 
substantial number of small entities at a disadvantage relative to 
large entities. This action would provide additional opportunity for 
harvest in areas that historically have been used by small entities, 
but this opportunity is not provided exclusively to small entities.
    This rule does not significantly reduce the profit for small 
entities. The costs of harvest would potentially be reduced with the 
opening of the closure areas and with the removal of the stand down 
periods between harvest seasons. The proposed action provides 
additional opportunities, spatially and temporally, for pollock and 
Pacific cod harvest that may result in additional profit for fishery 
participants. The absence of cost data precludes quantitative 
estimation of these potential cost savings and profits, although they 
would be expected to be minor.
    Criteria used to evaluate whether the rule would impose impacts on 
``a substantial number'' of small entities: A very small number of 
small entities have harvested Pacific cod by pot gear in the area of 
Kak Island and Castle Rock haulouts (i.e., four or fewer vessels). NMFS 
is unable to report the actual number of vessels because of 
confidentiality restrictions. The harvest of pollock near Cape Douglas/
Shaw Island haulout has also been by so few vessels that the harvest 
data are also confidential. The opening of Puale Bay is likely to 
provide additional fishing opportunity to fewer than 10 percent of the 
small entities participating in the pollock fishery. The removal of the 
mandatory stand down periods between seasons and revision of the method 
of rolling over unharvested pollock would, however, affect all small 
entities participating in the pollock fishery.
    Description of, and an explanation of the basis for, assumptions 
used: Catch information used for the pollock and Pacific cod fisheries 
is based on catch reporting within a State statistical area (no finer 
resolution of catch location is available). The closures proposed 
encompass only a small portion of one or more State statistical areas. 
The reported catch within a State statistical area was, for lack of a 
better option, assumed to be evenly distributed so that the proportion 
of the closure area to the statistical area(s) would be in the same 
proportion as the estimated catch from the proposed closure area 
compared to the estimated catch for the entire statistical area. 
Because catch information is not collected to a finer scale than the 
statistical area, it is necessary to use this method to get an 
estimated portion of the amount of harvest that may be applied to a 
closure area.
    The economic analysis contained in the RIR (see ADDRESSES) further 
describes the potential size, distribution, and magnitude of the 
economic impacts that this action may be expected to have on small 
entities. Based upon that analysis, it is NMFS' finding that although 
the proposed action may affect a substantial number of small entities, 
it likely does not have the potential to have a significant economic 
impact on the small entities participating in these fisheries.
    The Regional Administrator, Alaska Region, determined that fishing 
activities conducted pursuant to this rule would not affect endangered 
and threatened species or critical habitat under the ESA.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Recordkeeping and reporting requirements.


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    Dated: September 16, 2004.
William T. Hogarth
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For reasons set out in the preamble, 50 CFR part 679 is proposed to 
be 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.; 16 U.S.C. 1540(f); Pub. L. 105-277, Title II of Division C; 
Pub. L. 106-31, Sec. 3027; and Pub. L.106-554, Sec. 209.
    2. In Sec.  679.20, paragraph (a)(5)(iii)(B) is revised to read as 
follows:


Sec.  679.20  General limitations.

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


Sec.  679.23  Seasons.

* * * * *
    (d) * * *
    (2) * * *
    (i) A season. From 1200 hours, A.l.t., January 20 through 1200 
hours, A.l.t., March 10;
* * * * *
    (iii) C season. From 1200 hours, A.l.t., August 25 through 1200 
hours, A.l.t., October 1; and
* * * * *
    4. Tables 4 and 5 to part 679 are revised to read as follows:

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[FR Doc. 04-21217 Filed 9-20-04; 8:45 am]
BILLING CODE 3510-22-S