[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:
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Subarea & Component Inside CH Total
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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
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Total......................................... ......... 27,391
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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
