[Federal Register: September 21, 2004 (Volume 69, Number 182)]
[Proposed Rules]
[Page 56384-56403]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21se04-18]
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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 SSL2004-0648-AS41@noaa.gov. Include in the
subject line of the e-mail comments the following document identifier:
GOA SSL Proposed Rule. E-mail comments, with or without attachments,
are limited to 5 megabytes;
Webform at the Federal eRulemaking Portal:
http://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 http://www.fakr.noaa.gov.
FOR FURTHER INFORMATION CONTACT: Melanie Brown, 907-586-7228 or
melanie.brown@noaa.gov.
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
[[Page 56386]]
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.
[[Page 56387]]
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.
[[Page 56388]]
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