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Home » 2014 Issues » 79 FR (11/25/2014) » 2014-27658. Fisheries of the Exclusive Economic Zone Off Alaska; Steller Sea Lion Protection Measures for the Bering Sea and Aleutian Islands Groundfish Fisheries Off Alaska

  2014-27658. Fisheries of the Exclusive Economic Zone Off Alaska; Steller Sea Lion Protection Measures for the Bering Sea and Aleutian Islands Groundfish Fisheries Off Alaska  

  • Start Preamble Start Printed Page 70286

    AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    NMFS issues regulations to implement Steller sea lion protection measures to insure that groundfish fisheries in the Bering Sea and Aleutian Islands Management Area (BSAI) off Alaska are not likely to jeopardize the continued existence of the western distinct population segment (WDPS) of Steller sea lions or destroy or adversely modify their designated critical habitat. These management measures disperse fishing effort temporally and spatially to provide protection from potential competition for important Steller sea lion prey species. This action is intended to protect the endangered Steller sea lions, as required by the Endangered Species Act, and to minimize, to the extent practicable, the economic impact of fishery management measures, as required by the Magnuson-Stevens Fishery Conservation and Management Act.

    DATES:

    Effective December 26, 2014.

    ADDRESSES:

    Electronic copies of:

    Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this final rule may be submitted to NMFS at the above address and by email to OIRA_Submission@omb.eop.gov or fax to 202-395-5806.

    Start Further Info

    FOR FURTHER INFORMATION CONTACT:

    Gretchen Harrington, 907-586-7228.

    End Further Info End Preamble Start Supplemental Information

    SUPPLEMENTARY INFORMATION:

    NMFS published a proposed rule to implement Steller sea lion protection measures on July 1, 2014 (79 FR 37486). The comment period on the proposed rule ended on August 15, 2014. NMFS received 17 letters of comments on the proposed rule. Additional background information and detail on this action is provided in the proposed rule and is briefly summarized in this final rule.

    NMFS manages groundfish fisheries in the exclusive economic zone (EEZ) under the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP). The North Pacific Fishery Management Council (Council) prepared the FMP under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801, et seq. Regulations governing fisheries and implementing the FMP appear at 50 CFR parts 600 and 679.

    NMFS has management responsibility for certain threatened and endangered species, including Steller sea lions, under the Endangered Species Act (ESA) of 1973, 16 U.S.C. 1531, et seq. NMFS has the authority to promulgate regulations to enforce provisions of the ESA to protect such species. As the action agency, NMFS is responsible for conducting a section 7 consultation to insure that the Federal action of authorizing the Alaska groundfish fisheries is not likely to jeopardize the continued existence of an ESA-listed species or result in the destruction or adverse modification of its designated critical habitat. Under the provisions of section 7 of the ESA, NMFS Alaska Region Sustainable Fisheries Division (SFD) is the action agency and consults with the NMFS Alaska Region Protected Resources Division (PRD) on the impacts of groundfish fisheries for most ESA-listed species of marine mammals, including Steller sea lions.

    NMFS listed the WDPS of Steller sea lions as endangered under the ESA in 1997 (62 FR 24345, May 5, 1997). Throughout this preamble, the term “Steller sea lions” means the WDPS of Steller sea lions unless otherwise specified. Steller sea lions are distributed from Prince William Sound through the Aleutian Islands in Alaska and in Russia on the Kamchatka peninsula, Kuril Islands, and the Sea of Okhotsk. NMFS uses six sub-regions within Alaska for trend and status monitoring of Steller sea lions. These sub-regions include the eastern Gulf of Alaska (GOA), central GOA, and western GOA, the eastern Aleutian Islands/Bering Sea, central Aleutian Islands, and the western Aleutian Islands. A seventh sub-region is located outside of the United States and is commonly referred to as the Russian sub-region because most of the Steller sea lion population in that sub-region is concentrated in Russia.

    NMFS designated critical habitat for Steller sea lions and identified haulouts, rookeries, and foraging locations throughout Alaska waters ranging throughout the GOA, the Bering Sea, and the Aleutian Islands (58 FR 45269, August 27, 1993). Since publication of critical habitat definitions in 1993 (see 50 CFR 226.202), NMFS has identified 19 additional haulouts in the BSAI and the GOA as important areas for Steller sea lions needing additional protection from the potential effects of groundfish fishing. More information and justification for including these haulouts are contained in the 2001 BiOp (see ADDRESSES). NMFS is currently considering revisions to the critical habitat designation to take into account new information that has become available since NMFS designated critical habitat in 1993 (79 FR 46392, August 8, 2014).

    Since listing Steller sea lions, NMFS has implemented a number of management measures, commonly known as Steller sea lion protection measures, to protect Steller sea lion prey Start Printed Page 70287from the potential effects of groundfish fishing. Steller sea lion protection measures disperse catch of groundfish prey species in time (temporal dispersion) and space (spatial dispersion) through a variety of harvest limitations and closure areas. Many of these Steller sea lion protection measures apply specifically to Atka mackerel, Pacific cod, and pollock, which are important prey species for Steller sea lions.

    Section 3.5.3 of the FMP, approved by the Secretary of Commerce under the Magnuson-Stevens Act, authorizes regulations for fishery management measures to protect marine mammals, without requiring amendment of the FMP itself (see ADDRESSES). Steller sea lion protection measures for the Alaska groundfish fisheries have been implemented under this FMP authority since 1998.

    NMFS has revised the Steller sea lion protection measures several times. NMFS has conducted several ESA consultations to assess the impact of the groundfish fisheries on Steller sea lions. Previous actions to implement Steller sea lion protection measures and their accompanying ESA consultations have been subject to litigation. A detailed history of previous Steller sea lion protection measures, ESA section 7 consultations (i.e., biological opinions), and litigation is provided in Chapter 1 of the EIS (see ADDRESSES).

    The most recent Steller sea lion protection measures were implemented in 2011 with the 2010 Interim Final Rule (75 FR 77535, December 13, 2010; corrected 75 FR 81921, December 29, 2010). Steller sea lion protection measures implemented in the 2010 Interim Final Rule limit harvest of Atka mackerel and Pacific cod. NMFS implemented these management measures consistent with the reasonable and prudent alternative (RPA) recommended in the 2010 FMP BiOp that NMFS determined were necessary to insure that the Alaska groundfish fisheries were not likely to jeopardize the continued existence of Steller sea lions or result in the destruction or adverse modification of their designated critical habitat. The 2010 Interim Final Rule established Steller sea lion protection measures primarily in the Aleutian Islands, based on the population trends of the Steller sea lions and the harvest of principal prey species by the groundfish fisheries in the Aleutian Islands. This action retains some and modifies some of the Steller sea lion protection measures implemented by the 2010 Interim Final Rule.

    This final rule implements a suite of management measures for the Atka mackerel, Pacific cod, and pollock fisheries primarily in the Aleutian Islands. These management measures protect Steller sea lion prey to comply with the ESA requirement that NMFS insure that its actions are not likely to jeopardize the continued existence of endangered species or destroy or adversely modify its critical habitat. To protect Steller sea lion prey availability, this final rule protects specific areas that are important to Steller sea lions and limits the amount of fishing within Steller sea lion critical habitat. This final rule maintains a precautionary approach to the management of Steller sea lion prey species by spatially and temporally dispersing catch, particularly in critical habitat, to prevent localized depletion of these important prey resources. While protecting Steller sea lion prey, this final rule also enhances fishing opportunities and minimizes potential adverse economic impacts on fishery participants and communities by removing restrictions on fishing implemented by the 2010 Interim Final Rule that have been determined to be unnecessary based on the 2014 BiOp.

    NMFS analyzed the impacts of the action and its alternatives in an EIS (see ADDRESSES). NMFS published a notice of intent to prepare the EIS in the Federal Register on April 17, 2012 (77 FR 22750). The scoping period for the EIS was approximately 6 months with the period ending October 15, 2012. NMFS also held a public scoping meeting in coordination with a Council meeting on October 2, 2012 (77 FR 52674, August 30, 2012). NMFS released the draft EIS for public review on May 17, 2013 (78 FR 29131). The comment period for the draft EIS ended on July 16, 2013. NMFS released the final EIS on May 23, 2014 (79 FR 29759).

    The decision analyzed in the EIS was whether to maintain the existing suite of Steller sea lion protection measures (Alternative 1, the 2010 Interim Final Rule) or to implement a new suite of Steller sea lion protection measures (Alternatives 2, 3, 4, 5, or 6). To provide a comprehensive analysis of the effects of the alternatives, the EIS compares the six alternatives relative to each other and relative to a baseline period used to assess the environmental conditions affecting Steller sea lions (generally from 2004 through 2010). NMFS developed these alternatives through a collaborative process with the Council and its Steller Sea Lion Mitigation Committee, and considered public comments received during the scoping process for the EIS and during the public review of the draft EIS.

    NMFS developed all alternatives with the understanding that a preferred alternative could only be selected as the proposed action and implemented through rule making if NMFS could insure that the action was not likely to jeopardize the continued existence of the Steller sea lions or result in destruction or adverse modification of their designated critical habitat. The Council and NMFS understood that a preferred alternative and any resulting rule must meet the requirements of the ESA before factors that minimize the economic impacts on fishery participants could be considered. A detailed discussion of the purpose and need for the action is provided in the EIS (see ADDRESSES).

    The alternatives ranged from Alternative 6, an alternative that would restrict fishing more than the status quo alternative (Alternative 1), to Alternative 4, the alternative that would allow the most fishing opportunities. Alternative 4 would reinstate the Steller sea lion protection measures that were in place prior to the 2010 Interim Final Rule, with a few exceptions. Alternatives 2, 3, and 5 provided more fishing opportunities and fewer protection measures than Alternative 1, but included more protection measures than Alternative 4. Additional description of the alternatives is available in the EIS (see ADDRESSES).

    In October 2013, the Council recommended Alternative 5 as the preferred alternative for the EIS. Alternative 5 is a suite of management measures for the Atka mackerel, Pacific cod, and pollock fisheries that includes fishery closures and limitations on catch in specific areas to mitigate the potential adverse effects of fishing on Steller sea lion prey resources. Alternative 5 retains important Steller sea lion protection measures in Alternative 1 and also allows more fishing by removing or modifying some of measures in Alternative 1. Alternative 5 includes authorization for specific fishery research in the BSAI. This final rule implements the Steller sea lion protection measures in Alternative 5.

    The Council recommended Alternative 5 as the preferred alternative based on the analysis in the draft EIS, public comments, advice from its Steller Sea Lion Mitigation Committee, input from the Council's Advisory Panel and Scientific and Statistical Committee, and the best available scientific information. The Council considered the findings of the 2010 FMP BiOp, a review of the 2010 FMP BiOp sponsored by NMFS and conducted by the Center Start Printed Page 70288for Independent Experts, and a review of the FMP BiOp sponsored by the States of Alaska and Washington. In recommending Alternative 5 as its preferred alternative, the Council determined that Alternative 5 would implement management measures that protect Steller sea lion prey as required by the ESA. The Council determined that Alternative 5 would protect specific areas that are important to Steller sea lions and limit the amount of fishing within Steller sea lion critical habitat in order to protect Steller sea lion prey availability. Alternative 5 maintains a precautionary approach to the management of Steller sea lion prey species in critical habitat by spatially and temporally dispersing catch to prevent localized depletion of these important prey resources.

    NMFS conducted a consultation on the proposed action as required under section 7 of the ESA to determine whether fishing under Alternative 5 would be likely to jeopardize the continued existence of Steller sea lions or destroy or adversely modify their critical habitat. NMFS issued a biological opinion on April 2, 2014 (2014 BiOp, see ADDRESSES). New information in the external reviews of the 2010 FMP BiOp and the new analyses that NMFS conducted in response to those external reviews were incorporated into the 2014 BiOp to further understand the effects of the groundfish fisheries on Steller sea lions.

    The 2014 BiOp found that the implementation of the proposed action (Alternative 5) was not likely to jeopardize the continued existence of Steller sea lions and was not likely to destroy or adversely modify designated Steller sea lion critical habitat. The conclusions in the 2014 BiOp were reached after considering the best scientific and commercial information available, including Steller sea lion behavior and fisheries data. The 2014 BiOp concludes that the proposed action would establish Steller sea lion protection measures for the Atka mackerel, Pacific cod, and pollock fisheries in the Aleutian Islands subarea that spatially and temporally disperse fishing to mitigate potential competition for prey resources between Steller sea lions and these fisheries. Spatial and temporal fishery dispersion is accomplished through closure areas, harvest limits, seasonal apportionment of harvest limits, and limits on participation in a fishery. The proposed action would retain or modify existing closure areas, harvest limits, seasonal apportionment of harvest limits, and limits on participation in ways that are designed to limit competition for prey with Steller sea lions.

    The best available scientific information suggests that the effects of the groundfish fisheries on Steller sea lions may be greatest around rookeries and haulouts due to the overlap of foraging Steller sea lions and harvest of their prey species in the fisheries. This action limits fishing to the greatest extent from 0 nm to 3 nm from rookeries and haulouts, which corresponds with the highest observed at-sea use by adult female, young-of-the-year, and juvenile Steller sea lions, as shown in the Steller sea lion telemetry data described in the 2014 BiOp (see Chapter 5 of the EIS and Section 5.4 of the 2014 BiOp).

    The 2014 BiOp identified the importance of maintaining global, or broad scale, limits on the harvest of Atka mackerel, Pacific cod, and pollock. Global limits are currently in place for these three species. Regulations prohibit directed fishing in the BSAI or GOA if the projected spawning biomass of the fish stock falls below 20 percent of the unfished spawning biomass (see regulations at § 679.20(d)(4)). Atka mackerel, Pacific cod, and pollock fisheries have not experienced this type of directed fishing closure since global limits became effective in 2003 (68 FR 204, January 2, 2003).

    Steller Sea Lion Protection Measures

    This final rule implements a comprehensive suite of Steller sea lion protection measures. Steller sea lion protection measures regulate fishing by applying a combination of closed areas, harvest limits, and seasons that reduce fishery competition for Steller sea lion prey when and where Steller sea lions forage. To improve monitoring, this final rule also requires vessels named on a Federal Fisheries Permit (FFP), that use trawl gear to harvest groundfish that is deducted from the Federal total allowable catch (TAC), to set their vessel monitoring system (VMS) to transmit the vessel location at least 10 times per hour.

    This section provides a summary of the Steller sea lion protection measures implemented in this final rule. For a more detailed explanation of the regulatory provisions and the purpose of each provision, please see the preamble to the proposed rule (79 FR 37486, July 1, 2014). The preamble to the proposed rule also provides a detailed comparison of this final rule with the 2010 Interim Final Rule.

    Atka Mackerel, Pacific Cod, and Pollock Fisheries

    This final rule applies primarily to the Atka mackerel, Pacific cod, and pollock fisheries in the Aleutian Islands reporting area, defined at § 679.2 and shown in Figure 1 to 50 CFR part 679. The Aleutian Islands reporting area consists of Statistical Areas 541, 542, and 543 in the EEZ and adjacent State of Alaska (State) waters. The EEZ includes Federal waters that generally occur from 3 nautical miles (nm) to 200 nm from shore. State waters generally occur from shore to 3 nm from shore. Area 541 and adjacent State waters correspond to the eastern Aleutian Islands; Area 542 and adjacent State waters correspond to the central Aleutian Islands; and Area 543 and adjacent State waters correspond to the western Aleutian Islands.

    This final rule applies to vessels that catch groundfish that are required to be deducted from a TAC under § 679.20 and that are required to be named on a FFP issued under § 679.4(b) in the BSAI reporting area. This rule also applies to vessels that harvest groundfish in State waters that are managed under the State's parallel groundfish fisheries. Parallel groundfish fisheries are fisheries that occur in State waters and where the catch of groundfish is deducted from the Federal TAC. Parallel groundfish fisheries are opened and closed by the State concurrently with adjacent Federal fisheries. Parallel fisheries are managed by the State under regulations similar to those that apply in the Federal fisheries. The State parallel fisheries that would be affected by this action are the fisheries for groundfish that occur in State waters adjacent to the BSAI. Additional detail on State parallel fisheries is provided in Chapters 3 and 8 of the EIS (see ADDRESSES).

    Area Closures

    NMFS has designated 100,286 square kilometers as critical habitat for Steller sea lions in the Aleutian Islands. This subsection summarizes the critical habitat closed to fishing under this final rule. A detailed discussion of the amount of critical habitat closed under this final rule is in Section 5.3 of the 2014 BiOp (see ADDRESSES). The area closures are implemented by regulations at § 679.22 and Table 6 to 50 CFR part 679 for Atka mackerel, Table 5 to 50 CFR part 679 for Pacific cod, and Table 4 to 50 CFR part 679 for pollock.

    With the final rule, NMFS is closing 90 percent of critical habitat in the Aleutian Islands to Atka mackerel fishing, which results in 8 percent more area open for Atka mackerel fishing in the Aleutian Islands compared to the areas closed under the 2010 Interim Final Rule. This final rule prohibits directed fishing with trawl gear for Atka mackerel in waters from 0 nm to 3 nm Start Printed Page 70289from haulouts and from 0 nm to 10 nm from rookeries in Areas 543 and 542. This final rule also prohibits directed fishing for Atka mackerel in waters from 0 nm to 20 nm from Steller sea lion haulouts and rookeries in Area 542 located between 178° E longitude and 180° E longitude and east of 178° W longitude. In Area 541, this final rule prohibits directed fishing with trawl gear inside critical habitat, except for a portion of critical habitat from 12 nm to 20 nm around Seguam Island.

    With the final rule, NMFS is closing 22 percent of critical habitat in the Aleutian Islands to Pacific cod fishing with non-trawl gear (hook-and-line, pot, and jig), which results in 23 percent more area open to Pacific cod fishing with non-trawl gear in the Aleutian Islands compared to the areas closed under the 2010 Interim Final Rule. In Area 543, this final rule prohibits directed fishing for Pacific cod in waters from 0 nm to 3 nm from rookeries and from 0 nm to 10 nm from Buldir Island for hook-and-line and pot gear vessels. In Area 542, this final rule prohibits directed fishing for Pacific cod in waters from 0 nm to 3 nm from rookeries for hook-and-line and pot gear vessels. In Area 541, this final rule prohibits directed fishing for Pacific cod in waters from 0 nm to 3 nm from rookeries west of 172.59° W longitude and in critical habitat from 0 nm to 20 nm east of 172.59° W longitude for hook-and-line and pot gear vessels. Directed fishing for Pacific cod with hook-and-line, pot gear, and jig gear vessels is prohibited in the Seguam Foraging Area.

    With the final rule, NMFS is closing 52 percent of critical habitat in the Aleutian Islands to Pacific cod fishing with trawl gear, which results in 23 percent more area open to Pacific cod fishing with trawl gear in the Aleutian Islands compared to the areas closed under the 2010 Interim Final Rule. In Area 543, this final rule prohibits directed fishing for Pacific cod with trawl gear vessels in waters from 0 nm to 3 nm from haulouts and from 0 nm to 10 nm from rookeries. In Area 542, this final rule prohibits directed fishing for Pacific cod with trawl gear vessels in waters from 0 nm to 3 nm from haulouts and from 0 nm to 10 nm from rookeries. In Area 541, this final rule prohibits directed fishing for Pacific cod with trawl gear vessels in waters from 0 nm to 3 nm from haulouts and from 0 nm to 10 nm from rookeries, and from 0 nm to 20 nm around Agligadak Island.

    With this final rule, NMFS is closing 65 percent of critical habitat in the Aleutian Islands to pollock fishing, which results in 35 percent more area open to pollock fishing in the Aleutian Islands compared to the previous closures. In Area 543, this final rule prohibits directed fishing for pollock in 95 percent of critical habitat, including 0 nm to 20 nm from rookeries and haulouts, except 3 nm to 20 nm from Shemya, Alaid and Chirikof haulouts that remain outside of 20 nm from rookeries. In Area 542, west of 178° W longitude, this final rule prohibits directed fishing for pollock in waters from 0 nm to 20 nm from haulouts and rookeries, except in the specified open area near the Rat Islands. East of 178° W longitude, this final rule prohibits directed fishing for pollock in waters from 0 nm to 3 nm from haulouts and from 0 nm to 10 nm from rookeries, except at Kanaga Island/Ship Rock where directed fishing for pollock is prohibited in waters from 0 nm to 3 nm from haulouts and rookeries in a portion of Kanaga Sound east of 178° W longitude. In Area 541, this final rule prohibits directed fishing for pollock in critical habitat from 0 nm to 3 nm from haulouts and 0 nm to 10 nm from rookeries.

    Harvest Limits and Seasons

    This final rule, in conjunction with existing regulations, establishes harvest limits by sector, area, and season for the Atka mackerel, Pacific cod, and pollock fisheries in the Aleutian Islands. This subsection summarizes the harvest limits and seasons established under this final rule. The preamble to the proposed rule describes the harvest limits and seasons in greater detail (79 FR 37486, July 1, 2014).

    Tables 1, 2, and 3 provide the 2015 estimates of biomass, the overfishing levels (OFLs), the acceptable biological catches (ABCs) from the 2015 harvest specifications (79 FR 12108, March 4, 2014), and the harvest limit amounts for Atka mackerel, Pacific cod, and pollock fisheries established under this final rule. Tables 1, 2, and 3 also describe the allocations that are made to the Western Alaska Community Development Quota (CDQ) Program as CDQ reserves, as well as allocations made to accommodate incidental catch amounts (ICAs), and allocations to other non-CDQ participants as applicable for the specific fishery from the 2015 harvest specifications. The 2015 biomasses, OFLs, ABCs, TACs, and harvest limit amounts are subject to change pending the completion of the final 2014 Stock Assessment and Fishery Evaluation (SAFE) Report and the Council's recommendations for final 2015 and 2016 harvest specifications during its December 2014 meeting. NMFS will publish the final harvest limits in the final 2015 and 2016 harvest specifications.

    Table 1 provides the Atka mackerel harvest limits for 2015, based on the 2015 ABC (79 FR 12108, March 4, 2014). In this final rule, § 679.20(a)(8)(ii)(C) sets two Atka mackerel harvest limitations for Areas 542 and 543. First, in Area 543, the annual TAC is limited to an amount no greater than 65 percent of the ABC apportioned for Area 543. The second limit would allow no more than 60 percent of the annual TAC, evenly apportioned between the A and B seasons, to be harvested in critical habitat west of 178° W longitude. This area includes all of Area 543 and the western portion of Area 542. Section 679.20(a)(8)(ii)(A) evenly divides the harvest of TAC between the A and B seasons and applies the seasonal apportionment of Atka mackerel harvests in Area 543, Area 542, and the combined Area 541/Bering Sea. Section 679.23(e)(3)(ii) maintains the directed fishing for Atka mackerel with trawl gear A season dates from January 20 through June 10, and extends the B season from June 10 through December 31. Prior to this final rule, the Atka mackerel B season occurred from June 10 through November 1. This additional season length provides greater opportunity for trawl gear harvesters to distribute catch throughout the year. Section 679.20(a)(8)(ii)(D) prohibits any unharvested Atka mackerel A season allowance that is added to the B season from being harvested within waters 0 nm to 20 nm of Steller sea lion sites located in Areas 543, 542, and 541. This provision ensures that harvest is not concentrated within critical habitat during the B season.

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    Table 1—2015 Bering Sea and Aleutian Islands Atka Mackerel Biomass, OFL, ABC, and TAC; Sector, Season, and Area Allocations; and Critical Habitat Limits Under This Final Rule

    [Amounts are in metric tons]

    2015 Atka Mackerel Biomass, OFL, ABC, and TAC
    Biomass387,308
    OFL74,898
    ABC64,477
    TAC56,769
    Sector 1SeasonArea 541/ Bering SeaArea 542Area 543
    2015 Sector, Season, and Area Allocations and Critical Habitat Limits
    Area ABCn/a21,76920,68522,023
    Area TACn/a21,76920,68514,315
    CDQ reserveTotal2,3292,2131,532
     A season1,1651,107766
     Critical habitat limitn/a664460
     B season1,1651,107766
     Critical habitat limit 3n/a664460
    ICATotal1,0007540
    Jig 2Total9200
    BSAI trawl limited accessTotal1,8351,8400
     A season9179200
     Critical habitat limitn/a5520
     B season9179200
     Critical habitat limit 3n/a5520
    Amendment 80Total16,51316,55712,743
    Alaska Groundfish Cooperative for 2015Total8,9589,9387,854
     A season4,4794,9693,927
     Critical habitat limitn/a2,9812,356
     B season4,4794,9693,927
     Critical habitat limit 3n/a2,9812,356
    Alaska Seafood Cooperative for 2015Total7,5556,6194,889
     A season3,7783,3102,445
     Critical habitat limitn/a1,9861,467
     B season3,7783,3092,444
     Critical habitat limit 3n/a1,9851,466
    1 Section 679.20(a)(8)(ii) allocates the Atka mackerel TACs, after subtracting the Community Development Quota (CDQ) reserves, jig gear allocation, and incidental catch allowances (ICAs) to the Amendment 80 and BSAI trawl limited access sectors. The allocation of the TAC for Atka mackerel to the Amendment 80 and BSAI trawl limited access sectors is established in Table 33 to part 679 and § 679.91. The CDQ reserve is 10.7 percent of the TAC for use by CDQ participants (see §§ 679.20(b)(1)(ii)(C) and 679.31).
    2 Section 679.20(a)(8)(i) requires that up to 2 percent of the Eastern Aleutian District and the Bering Sea subarea TAC be allocated to jig gear after subtracting the CDQ reserve and ICA. Under the final 2015 harvest specifications, this allocation is 0.5 percent. The jig gear allocation is not apportioned by season.
    3 Any unharvested Atka mackerel A season allowance that is added to the B season is prohibited from being harvested within waters 0 nm to 20 nm of Steller sea lion sites listed in Table 6 to this part and located in Areas 541, 542, and 543.
    Note: Seasonal or sector apportionments may not total precisely due to rounding.

    In this final rule, § 679.20(a)(7)(vii) sets a Pacific cod harvest limit based on abundance in Area 543 as determined by the annual stock assessment process. NMFS will first subtract the State Pacific cod Guideline Harvest Level (GHL) amount from the Aleutian Islands Pacific cod ABC, then NMFS will determine the harvest limit in Area 543 by multiplying the percentage of Pacific cod estimated in Area 543 by the remaining ABC for Aleutian Islands Pacific cod. The State sets the Pacific cod GHL at 3 percent of the sum of the Aleutian Islands and the Bering Sea Pacific cod ABCs. Table 2 provides the proposed 2015 Aleutian Islands Pacific cod biomass, OFL, ABC, TAC, GHL, the sector allocations under the 2015 harvest specifications, and the Area 543 harvest limit under this final rule. The Area 543 harvest limit is based on an estimate of Pacific cod abundance for Area 543 from the 2013 stock assessment for Aleutian Islands Pacific cod.

    In this final rule, § 679.23(e)(5)(ii)(C)(2) extends the Pacific cod trawl gear C season from November 1 to December 31 for Amendment 80 and Community Development Quota CDQ trawl vessels. Prior to this final rule, the Pacific cod trawl gear C season occurred from June 10 through November 1. This additional season length provides greater opportunity for trawl gear harvesters to distribute catch throughout the year.

    Start Printed Page 70291

    Table 2—2015 Aleutian Islands Pacific Cod Biomass, OFL, ABC, TAC, GHL, Sector Allocations, and the Area 543 Harvest Limit Under This Final Rule

    [Amounts are in metric tons]

    2015 Aleutian Islands Pacific Cod Biomass, OFL, ABC, TAC, and GHL
    Biomass58,911
    OFL20,100
    ABC15,100
    TAC6,487
    GHL8,613
    SectorHarvest limit
    2015 Sector and Area Allocations
    CDQ portion of the TAC694
    Non-CDQ allocations5,793
    Area 543 harvest limit1,609

    In this final rule, § 679.20(a)(5)(iii)(B)(6) sets harvest limits for pollock in the A season (January 20 to June 10) and the B season (June 10 to November 1) in Areas 543, 542, and 541. In Area 543, the A season pollock harvest limit is no more than 5 percent of the Aleutian Islands pollock ABC. In Area 542, the A season pollock harvest limit is no more than 15 percent of the Aleutian Islands ABC. In Area 541, the A season pollock harvest limit is no more than 30 percent of the Aleutian Islands ABC. These limits apply to all harvests; this includes harvests by the Aleut Corporation, CDQ groups, and the incidental catch of pollock in all other groundfish fisheries. These harvest limits would ensure the harvest of pollock is constrained in the winter when pollock harvests are most likely to occur and when pollock appears to be an important part of the Steller sea lion diet (Section 5.3.3 in 2014 BiOp).

    Table 3 provides estimates of the 2015 Aleutian Islands pollock biomass, OFL, ABC, TAC under the 2015 harvest specifications, and area specific harvest limits under this final rule. NMFS notes that the maximum TAC in the Aleutian Islands pollock fishery is constrained by statutory and regulatory provisions that limit the maximum Aleutian Islands pollock TAC to 19,000 metric tons (see regulations at § 679.20(a)(5)(iii)).

    Table 3—2015 Aleutian Islands Pollock Biomass, OFL, ABC, and TAC; Sector and Season Allocations; and the A Season Harvest Limits, by Area, Under This Final Rule

    [Amounts are in metric tons]

    2015 Aleutian Islands Biomass, OFL, ABC, and TAC
    Biomass289,307
    OFL47,713
    ABC39,412
    TAC1 19,000
    2015 Aleutian Islands Sector, Season, and Area Allocations
    Sector 2Seasons 4Area 541Area 542Area 543
    Harvest Limits 3A season11,8245,9121,971
    CDQ Directed Fishing AllowanceTotal1,900 
     A season760n/a
     B season1,140 
    ICATotal2,000 
     A season1,000n/a
     B season1,000 
    Aleut CorporationTotal15,100 
     A season14,005n/a
     B season1,095 
    1 Statutory and regulatory provisions limit the maximum Aleutian Islands pollock TAC to 19,000 mt (see regulations at § 679.20(a)(5)(iii)).
    2 Pursuant to § 679.20(a)(5)(iii)(B)(2)(i) and (ii), the annual Aleutian Islands pollock TAC, after subtracting first for the CDQ directed fishing allowance (10 percent) and second the ICA (2,000 mt), is allocated to the Aleut Corporation for a directed pollock fishery.
    3 Note that although the area specific harvest limits total to more than 19,000 mt, the TAC constrains total harvests in the Aleutian Islands. NMFS will prohibit fishing if the TAC is reached in the Aleutian Islands even if some amount is unharvested within an area specific harvest limit.
    4 Section 679.20(a)(5)(iii)(B)(3)(i) limits the harvest of Aleutian Islands pollock in the A season to no more than 40 percent of the ABC. This harvest includes the directed pollock fishery, CDQ directed fishing allowance, and the ICA. To establish the A season directed pollock fishery allocation within the seasonal limit, NMFS determines the amount of ICA that will be necessary to support other groundfish fisheries during the A season.

    Summary of Regulation Changes

    NMFS made three changes to the final rule. One change is in response to public comment, and one change is a technical correction. The third change revises 15 CFR 902.1(b) to reflect revisions to recordkeeping and reporting requirements.

    First, NMFS added the term “C season” to § 679.20(a)(7)(v)(B) to correct an inadvertent omission. This regulatory correction has no impact on the Steller sea lion protection measures but provides an accurate description of existing Pacific cod seasons. Additional discussion of this change is in Comment 7 included under Response to Public Comments, below.

    Second, NMFS revised § 679.20(a)(7)(vii) to more accurately describe the process for setting the Pacific cod harvest limit for Area 543. The proposed rule at § 679.20(a)(7)(vii) said that NMFS would adjust the ABC by deducting the State guideline harvest level (GHL). This is not the case, as NMFS does not adjust the ABC. NMFS modified this paragraph to explain that NMFS will first subtract the State GHL Pacific cod amount from the Aleutian Start Printed Page 70292Islands Pacific cod ABC. Then NMFS will determine the harvest limit in Area 543 by multiplying the percentage of Pacific cod estimated in Area 543 by the remaining ABC for Aleutian Islands Pacific cod. This correction clarifies a procedure but does not change the intended process for setting the Pacific cod harvest limitation and has no impact on the Steller sea lion protection measures.

    Third, this final rule revises and adds data elements within a collection-of-information for recordkeeping and reporting requirements; therefore 15 CFR 902.1(b) is revised to correctly reference the sections resulting from this final rule. 15 CFR 902.1(b) identifies the location of NOAA regulations for which Office of Management and Budget (OMB) approval numbers have been issued. Section 3507(c)(B)(i) of the Paperwork Reduction Act requires that agencies inventory and display a current control number assigned by the Director of the OMB for each agency information collection.

    Response to Public Comments

    The comment period on the proposed rule ended on August 15, 2014 (79 FR 37486). NMFS received 17 letters during the proposed rule comment period. NMFS released the final EIS on May 23, 2014 (79 FR 29759). NMFS received two letters of public comment on the final EIS. The 19 letters received contained 59 unique comments. All of the comment letters received are posted on http://www.regulations.gov, search term NOAA-NMFS-2012-0013.

    Although NMFS is not required to respond to comments received as a result of issuance of the final EIS, NMFS decided to provide responses as part of the decision-making process. Due to the overlap of issues, NMFS summarizes and responds to the comments received on the final EIS and the comments on the proposed rule in this final rule preamble.

    In many of the letters, members of the public also made comments on the 2014 BiOp. NMFS responds to comments on the 2014 BiOp that are related to the proposed rule and EIS. However, comments on the 2014 BiOp that are not related to the proposed rule or EIS are not addressed further in this preamble. NMFS notes that this final rule does not implement the 2014 BiOp, and the 2014 BiOp is not subject to notice-and-comment rulemaking requiring a response in this final rule. All letters were provided to NMFS PRD for their review. NMFS PRD and NMFS SFD did not identify any new information provided in public comments that would require NMFS SFD to reinitiate ESA section 7 consultation. The triggers for reinitiating consultation are provided at 50 CFR 402.16.

    Comments on Fishery Management Measures

    Comment 1: The proposed rule continues to reduce the Atka mackerel TAC, restrict catch in Steller sea lion critical habitat, and spread the catch out temporally and spatially. Further, the majority of Steller sea lion critical habitat remains closed for Atka mackerel in the Aleutian Islands: 76 percent of critical habitat in Area 543; 93 percent in Area 542; and almost all of Area 541 except a small area southeast of Seguam Pass. These measures will reduce the operational efficiency of harvesters fishing under the provisions of the Amendment 80 Program. This is particularly true given current low permissible harvest levels, even if allowed catches are managed cooperatively among participants in the Amendment 80 Program.

    Response: NMFS acknowledges the comment. Amendment 80 to the FMP identified participants using trawl catcher/processors in the BSAI active in groundfish fisheries other than Bering Sea pollock (i.e., the head-and-gut fleet or Amendment 80 vessels) and established a framework, known as the Amendment 80 Program, to regulate fishing by this fleet (72 FR 52668, September 14, 2007). The Amendment 80 Program created Amendment 80 quota share based on the historic catch of quota share species by Amendment 80 vessels, facilitated the development of cooperative arrangements (Amendment 80 cooperatives) among quota shareholders, and assigned an exclusive harvest privilege for a portion of the TAC of quota share species for participants in Amendment 80 cooperatives. Chapter 8 of the EIS describes the factors affecting the operational efficiency of vessels in the Amendment 80 Program under this action.

    Comment 2: The development of the Atka mackerel management measures by the Council's Steller Sea Lion Mitigation Committee was guided in large measure by the results of NMFS Fishery Interaction Team studies. The Atka mackerel management measures implemented by this action are intended to meet the goal of reducing the possibility of competition. These Atka mackerel management measures are responsive to the best available information and to the performance standards of the 2010 FMP BiOp (see ADDRESSES). The 2014 BiOp provides a relevant context for evaluating the exposure of Steller sea lions to potential constraining competition between the fishery and Steller sea lions. Roughly 90 percent of the time during a year there will be only 1 or 2 vessels fishing Atka mackerel within a given management area (e.g., Area 542). With the removal of the “platoon system” under this action, the Atka mackerel fishery will be highly dispersed in time and space.

    Response: NMFS acknowledges the comment. Chapter 8 of the EIS describes the operations of vessels fishing for Atka mackerel under this action. Note that the “platoon system” is also called the Atka Mackerel Harvest Limit Area (HLA) fishery. The 2010 Interim Final Rule removed the HLA fishery and this final rule maintains that removal. See the proposed rule preamble for a more detailed discussion of the HLA fishery and the reason for its removal (79 FR 37499).

    Comment 3: Strike the term “Area 541” from the proposed rule at § 679.20(a)(8)(ii)(D) where it reads, “Any unharvested Atka mackerel A season allowance that is added to the B season is prohibited from being harvested within waters 0 nm to 20 nm of Steller sea lion sites listed in Table 6 to this part and located in Areas 541, 542, and 543.” Any unused A season Atka mackerel should roll to B season and be available throughout the area open to fishing within Area 541. This will allow the fleet to disperse effort as was envisioned under this action. This change in regulation is also supported by NMFS research that showed little exchange of Atka mackerel inside and outside of areas 12 nm from shore within Area 541.

    Response: The regulations at § 679.20(a)(8)(ii)(D) are correct and NMFS made no changes to regulations in response to this comment. NMFS intended to prohibit the harvest of Atka mackerel TAC rolled over from the A season inside critical habitat in the B season in Areas 541, 542, and 543. This prohibition preserves the intent of the existing seasonal apportionment of Atka mackerel TAC, which is to temporally disperse harvest. Currently, in each management area, 50 percent of the TAC is assigned to the A season and 50 percent to the B season, see § 679.20(a)(8)(ii)(C)(1)(ii). Also, the ability to roll over unused TAC from the A season to the B season is limited under § 679.20(a)(8)(ii)(D). As explained in the preamble to the proposed rule, the purpose of this provision is to limit the amount of harvest that could occur in critical habitat to further protect Atka mackerel prey resources for Steller sea lions inside critical habitat (79 FR 37500). Unharvested Atka mackerel Start Printed Page 70293TAC from the A season can be harvested in the B season outside of critical habitat. This provision also provides for greater spatial dispersion of harvest away from Steller sea lion critical habitat.

    Comment 4: The proposed rule would restore some productive fishing grounds in the Aleutian Islands and remove the no-retention regulations for the Pacific cod fishery in Area 543. These measures provide some reduction in the impacts of Steller sea lion protection measures to the Pacific cod fishery relative to the 2010 Interim Final Rule. However, the amount of TAC available to the Pacific cod fishery in the Aleutian Islands will be only a small fraction of what was available and what was harvested prior to 2011 because of the decision to separate BSAI Pacific cod into separate stocks with separate OFLs, ABCs, and TACs. With the adoption of separate Pacific cod TACs for the Aleutian Islands and Bering Sea, the new measures provide much better protection of the Pacific cod resource at the global scale than did the 2010 FMP BiOp RPA implemented in the 2010 Interim Final Rule.

    Response: NMFS acknowledges the comment. Chapter 8 of the EIS describes the management of the Pacific cod fishery under this action.

    Comment 5: NMFS could alleviate the concern over the concentration of Pacific cod harvest in Area 543 and 542 by including re-consultation triggers in the final rule similar to the re-consultation triggers NMFS included in the 2010 Interim Final Rule that established non-trawl and trawl sector guideline harvest limits for Pacific cod by area. NMFS should consider re-consultation triggers as non-regulatory guideline harvest levels distinct for trawl and non-trawl sectors Pacific cod harvest in Areas 543 and 542 (and possibly 541). These re-consultation triggers could serve as an interim measure to address immediate concerns until superseded by Council action. Re-consultation triggers would ensure less concentration of harvest in these areas due to greater temporal dispersion of harvest by vessels using fixed gear, which is more temporally dispersed than harvest by vessels using trawl gear. Re-consultation triggers would also ensure harvest by non-trawl gear, which fishes at a slower rate than trawl gear and is less likely to contribute to localized depletion.

    Response: NMFS included triggers for reinitiation of the section 7 consultation for Pacific cod harvest in Areas 541 and 542 as part of the RPA in the 2010 FMP BiOp. The Pacific cod ABC and TAC were specified as a combined BSAI ABC and TAC under the proposed action analyzed in the 2010 FMP BiOp. Because there were no limits on the amount of the BSAI Pacific cod TAC that could be caught in Areas 541 and 542, the RPA contained triggers to cue NMFS and the public that reinitiation of section 7 consultation should occur if fishing exceeded historical catch amounts in these management areas. NMFS considered these triggers important because the RPA and its implementing 2010 Interim Final Rule also closed Area 543 to directed fishing and prohibited retention of Pacific cod. With the closure of Area 543 to directed fishing and retention of Pacific cod prohibited under the 2010 Interim Final Rule, NMFS was concerned that harvest displaced from Area 543 would cause an increase in harvest in Areas 542 and 541. NMFS included a discussion of these triggers from the 2010 FMP BiOp in the preamble to the 2010 Interim Final Rule; however, as explained in that preamble, NMFS did not include these triggers in the implementing regulations (75 FR 77541).

    The 2014 BiOp did not recommend reinitiation triggers for the Pacific cod fishery because the nature of the Pacific cod fishery and harvest limits have changed since the 2010 FMP BiOp. As of 2014, Pacific cod OFLs, ABCs, and TACs are specified separately for the eastern Bering Sea and Aleutian Islands. The amount of Pacific cod catch in the Aleutian Islands is expected to be substantially reduced relative to prior years when the OFL, ABC, and TAC were combined for the BSAI. Therefore, the potential for a shift of a substantial amount of fishing effort from one area of the Aleutian Islands to another does not exist under this action.

    The reinitiation notice in Section 10.0 of the 2014 BiOp stated that formal consultation may be required if the Aleutian Islands Pacific cod harvest is concentrated in Areas 542 or 543, as this would reflect a pattern not seen in the historical fishery data. The EIS and the 2014 BiOp anticipated that a larger proportion of the Aleutian Islands Pacific cod TAC is likely to be harvested by trawl gear rather than by non-trawl gear and the Council did not recommend harvest limits.

    Comment 6: Make two changes to the regulations: (1) Apportion the Aleutian Islands Pacific cod TAC between fixed gear and trawl gear for Areas 543, 542, and 541; and (2) apportion the Aleutian Islands Pacific cod TAC between the A and B seasons for Areas 543, 542, and 541. Without these changes, the proposed rule, in conjunction with separate management of Aleutian Islands Pacific cod and increasing State of Alaska GHL Pacific cod fishery, could reduce fixed gear harvest opportunity in the Aleutian Islands and increase the proportion of trawl harvest of Pacific cod. The lack of an Aleutian Islands Pacific cod TAC apportionment between fixed gear and trawl gear for Areas 543, 542, and 541 will result in a decreased proportion of fixed-gear Pacific cod harvest in the Aleutian Islands and an increased proportion of trawl Pacific cod harvest in the Aleutian Islands. This means more Pacific cod harvest in the Aleutian Islands will be harvested by trawl gear that is more temporally compressed (February and March), fishes at a higher rate (than fixed gear), and is more likely to cause localized depletion. This is inconsistent with the stated intent of the proposed rule.

    Response: This final rule implements measures necessary to protect Steller sea lion prey. The changes proposed by the commenter to apportion the Aleutian Islands Pacific cod TAC between fixed gear and trawl gear and between the A and B seasons are not Steller sea lion protection measures. Apportioning the Aleutian Islands Pacific cod TAC between fixed gear and trawl gear and between the A and B season would require a separate regulatory amendment. NMFS cannot add this provision or an interim measure to the final rule because it not been considered, analyzed, or made available for public comment. The Council could consider and analyze this proposal and make a recommendation to NMFS for a future regulatory amendment.

    A separate Aleutian Islands Pacific cod TAC was established starting in 2014 that resulted in a substantial reduction in the Pacific cod available for harvest in the Aleutian Islands. The Council and NMFS were aware of the impact of the Aleutian Islands Pacific cod TAC on the fixed gear fleet's harvest opportunities when the Council took action to split the Pacific cod TAC. With the Aleutian Islands Pacific cod TAC, it is likely that trawl vessels will be able to fully harvest this limited TAC before the Pacific cod are available for harvest by fixed gear vessels.

    The EIS analyzed the impacts of the proposed action and its alternatives with the understanding that a separate Pacific cod TAC would be implemented in 2014 (see Chapter 5 of the EIS). The 2014 BiOp acknowledged the impacts of the Pacific cod TAC split, including the fact that the trawl fishery would harvest the TAC, when it analyzed the proposed suite of Steller sea lion protection measures and found that the implementation of this final rule was not likely to jeopardize the continued existence of Steller sea lions and was Start Printed Page 70294not likely to destroy or adversely modify designated Steller sea lion critical habitat. Therefore, the final rule is consistent with the stated intent for this action.

    Comment 7: The proposed regulatory text at § 679.20(a)(7)(v)(B) states, “Harvest of seasonal apportionments in the Amendment 80 limited access fishery. (1) Pacific cod ITAC assigned for harvest by the Amendment 80 limited access fishery in the A season may be harvested in the B seasons.” This mistakenly omits a reference to the C season contained in paragraph (a)(7)(v)(A) that states, “Use of seasonal apportionments by Amendment 80 cooperatives. (1) The amount of Pacific cod listed on a CQ permit that is assigned for use in the A season may be used in the B or C season.” We believe this was an inadvertent omission and the words “or C” belong in paragraph (a)(7)(v)(B)(1) so that it would read: “Pacific cod ITAC assigned for the harvest by the Amendment 80 limited access fishery in the A season may be harvested in the B or C seasons.”

    Response: NMFS agrees that this was a typographical error and has made the change to the final rule § 679.20(a)(7)(v)(B) to correct this inadvertent omission. Section 679.20(a)(7)(v)(B) now reads, “Harvest of seasonal apportionments in the Amendment 80 limited access fishery. (1) Pacific cod ITAC assigned for harvest by the Amendment 80 limited access fishery in the A season may be harvested in the B or C seasons.” The changes NMFS made to § 679.20(a)(7)(v) are discussed in the preamble to the proposed rule (79 FR 37502). This regulatory correction has no impact on the Steller sea lion protection measures.

    Comment 8: The management measures put forward in the proposed rule are, on the whole, a significant improvement over the measures that are currently in place from the 2010 Interim Final Rule, particularly in regards to the re-opening of Area 543 to Pacific cod fishing. The new measures are more consistent with the best available science on the impacts of groundfish fisheries on the Steller sea lions and reflect management measures developed and supported by the Council and its Steller Sea Lion Mitigation Committee.

    Response: NMFS acknowledges the comment.

    Comment 9: The Pacific cod fishery has been the primary basis of seafood processing in Adak and a mainstay of the local economy. Re-opening portions of critical habitat to fishing will provide more spatial dispersion of the fishery. Setting a separate TAC for Aleutian Islands Pacific cod is a precautionary measure that will protect the long term productivity of the Pacific cod stock. While these measures will result in less Pacific cod being available in the Aleutian Islands in the short run, the more conservative management of Aleutian Islands Pacific cod could provide the community of Adak with a more stable resource base in the long run.

    Response: NMFS acknowledges the comment and notes that this final rule is intended to spatially disperse the Pacific cod fishery.

    Comment 10: Prior to the 2014 BiOp, no analysis of a commercial pollock fishery in the Aleutian Islands had been undertaken since Congress allocated pollock to the Aleut Corporation in 2004. The 2014 BiOp takes the first hard look at the spatial distribution of the historic Aleutian Island pollock fishery in comparison to the telemetry data on Steller sea lion foraging locations. It also compares Steller sea lion dive profiles with pollock fishing depths. In both cases the 2014 BiOp finds the least overlap of any of the three prey species. Additionally, scat data presented in the 2010 FMP BiOp showed Aleutian Islands pollock had the lowest frequency of occurrence in Steller sea lion scat of the three prey species of concern.

    The statutory and regulatory provisions that limit the maximum amount of pollock TAC that may be harvested in the Aleutian Islands means that the pollock TAC in 2015 would be less than 50 percent of the Aleutian Islands pollock ABC. The commenter notes that Aleutian Islands pollock harvest is likely to be significantly less than the TAC because allocations provided to CDQ groups (i.e., 10 percent of the Aleutian Islands TAC) may be harvested in the Bering Sea, and regulations allocate 50 percent of the TAC remaining after allocation to CDQ groups to vessels less than 60 feet in length overall. These smaller vessels will have difficulty harvesting their pollock allocations due to the greater depths at which pollock is found in the Aleutian Islands and the more limited fishing capabilities of smaller vessels to harvest pollock at depth given the necessary horsepower and gear requirements.

    Response: NMFS agrees that the Aleutian Islands pollock TAC is likely to be substantially below the Aleutian Islands pollock ABC in the foreseeable future because existing statutory and regulatory provisions limit the maximum Aleutian Islands pollock TAC to 19,000 mt (see regulations at § 679.20(a)(5)(iii) and Table 3 in this preamble). NMFS notes that although catch of Aleutian Islands pollock may be less than the TAC for the reasons stated by the commenter, NMFS does not have specific information indicating that catch will be consistently below the Aleutian Islands TAC in future years. The EIS and the 2014 BiOp assumed that pollock catch in the Aleutian Islands would equal the TAC for purposes of analyzing the effects of this action.

    Comment 11: The proposed rule to allow pollock fishing in some portions of critical habitat will finally realize Congress' intent of providing for economic development for Adak in the 2004 legislation allocating Aleutian Islands pollock to the Aleut Corporation.

    Response: NMFS acknowledges the comment.

    Comment 12: Reduce the TAC for the Bering Sea Aleutian Islands pollock fishery by 50 percent because it may be a cause in the Steller sea lion population decline. One of the Steller sea lion's primary food sources is pollock. Not having a stable food supply forces the Steller sea lions to travel farther and compete with other marine animals for different food resources. Local residents are wondering why there are more frequent Steller sea lion sightings in areas of the Bering Sea that were previously uninhabited by sea lions.

    Response: NMFS manages pollock in the Aleutian Islands separately from the Bering Sea. This action changes management of the Aleutian Islands pollock fishery, as detailed in this preamble. The Aleutian Islands pollock TAC is greatly reduced from the ABC due to a number of factors described in Comment 10 and shown in Table 3 in this preamble. The Bering Sea pollock fishery is outside the scope of this action.

    The 2010 FMP BiOp analyzed the impacts of the Bering Sea pollock fishery on Steller sea lions and concluded that the management measures currently in place, including the management measures for the Bering Sea pollock fishery, are not likely to jeopardize the continued existence of Steller sea lions or destroy or adversely modify their designated critical habitat. The 2014 BiOp concluded management measures in this action for the Aleutian Islands pollock fishery are not likely to jeopardize the continued existence of Steller sea lions or destroy or adversely modify their designated critical habitat.

    A wide range of factors can affect the distribution of Steller sea lions (see Chapter 5 of the EIS for additional details on Steller sea lion distribution). The occurrence of Steller sea lions at a Start Printed Page 70295location not previously observed may be due to reasons other than the lack of adequate prey resources in other locations.

    Comments on Steller Sea Lion Issues

    Comment 13: The proposed rule preamble fails to include any information regarding the current total population status of Steller sea lions. The status of the Steller sea lion population should be included in the preamble to the rule to give context to the proposed management measures. The proposed rule is for management measures to protect Steller sea lions, but the rule provides no information on the total population status.

    Response: A complete description of the status of the Steller sea lion population is provided in Section 5.1.1 of the EIS and Section 3.3 of the 2014 BiOp. The WDPS of Steller sea lions is distributed from Prince William Sound through the Aleutian Islands in Alaska and in Russia on the Kamchatka peninsula, Kuril Islands, and the Sea of Okhotsk. The 2008 Recovery Plan (see ADDRESSES) uses the population trend in non-pups to gauge the species' status.

    In 2012, the estimated abundance of the entire WDPS of Steller sea lions (pups and non-pups, United States and Russia/Asia) was 79,300 sea lions (see Section 3.3.1 of the 2014 BiOp). Abundance of the United States portion of the population is estimated at 52,200 animals based on data from 2012. Steller sea lion abundance in the Russian portion of the population is estimated at 27,100 animals based on data collected through 2012.

    There is evidence that Steller sea lion non-pup counts in Alaska increased at an average rate of 1.67 percent per year between 2000 and 2012. Because the United States portion of the range occurs exclusively within Alaska, reference to the United States portion of the Steller sea lion population is synonymous with the Alaska portion of the Steller sea lion population. However, there are strong differences in trends across the range of Steller sea lions in Alaska. There is strong evidence of a positive trend (2.89 percent per year) east of Samalga Pass and strong evidence of a continued decline (−1.53 percent per year) west of Samalga Pass.

    NMFS uses six sub-regions within Alaska for trend and status monitoring of Steller sea lions. These sub-regions include the eastern GOA, central GOA, and western GOA, the eastern Aleutian Islands/Bering Sea, central Aleutian Islands, and the western Aleutian Islands. A seventh sub-region (i.e., Russia/Asia) is located outside the United States and is commonly referred to as the Russian sub-region because most of the Steller sea lion population in that sub-region is concentrated in Russia. NMFS receives information on the trend and status of Steller sea lions in this sub-region from its counterparts in Russia and Japan.

    Non-pup counts increased at a significant rate from 2000 through 2012 in the eastern GOA, the western GOA, and the eastern Aleutian Islands. Non-pup counts increased at a non-significant rate from 2000 through 2012 in the central GOA. Counts of non-pups decreased at a significant rate in the western Aleutian Islands and at a non-significant rate in the central Aleutian Islands from 2000 through 2012.

    The Russian sub-region of Steller sea lions is estimated to have increased from 13,000 sea lions in the 1990s to 16,000 by 2005. Data collected through 2012 indicate that overall Steller sea lion abundance in the Russian sub-region continues to increase and is now similar to the 1960s (27,100). Between 1995 and 2012, pup production increased overall in the Russian sub-region by 3.1 percent per year. However, just as in the United States portion of the range, there are significant regional differences in Steller sea lion population trends in the Russian sub-region (see the EIS Chapter 5 and 2014 BiOp for full details).

    Comment 14: Given the robust increase in the total United States population of Steller sea lions, the removal of some of the Steller sea lions protection measures in the 2010 Interim Final Rule is warranted. Additionally, this population increase, combined with the fact there is no evidence supporting the nutritional stress hypothesis (i.e., that fisheries are removing key Steller sea lion prey species in a way that diminishes resources for Steller sea lions), is grounds for the removal of additional undue restrictions on the BSAI groundfish fisheries.

    Response: NMFS acknowledges the comment; however, the changes made to Steller sea lion protection measures are based on the best available scientific information and not those stated in the comment.

    Comment 15: The 2014 BiOp fails to provide a sound, scientific basis for concluding no jeopardy or adverse modification and, therefore, it does not provide an objective foundation for the proposed rule. The 2014 BiOp analysis on which the proposed rule is based is flawed to such an extent that it should be set aside, the proposed rule withdrawn, and the consultation re-initiated.

    Response: NMFS based this rule on the preferred alternative recommended by the Council. See response to Comment 16.

    The 2014 BiOp considered the effects of two proposed actions: The modified Steller sea lion protection measures in the Aleutian Islands Federal groundfish fisheries and State of Alaska parallel groundfish fisheries for Atka mackerel, Pacific cod, and pollock (the action implemented through this final rule); and research to better understand the potential effects of these fisheries on Steller sea lions. As required by the regulations codified at 50 CFR 402.14, the 2014 BiOp includes a summary of the information on which the opinion is based, a detailed discussion of the effects of the action on the listed Steller sea lions and designated critical habitat, and NMFS' opinion that the action is not likely to jeopardize the continued existence of the WDPS of Steller sea lions or destroy or adversely modify their designated critical habitat. NMFS based its opinion in the 2014 BiOp on the best scientific and commercial data available as required by 50 CFR 402.14. Please see the 2014 BiOp for additional detail (see ADDRESSES).

    Comment 16: The proposed rule is premised on the unprecedented finding from the 2014 BiOp that the preponderance of available data does not support a conclusion that the groundfish fisheries and groundfish abundance are limiting Steller sea lion population growth rates.

    Response: These implementing regulations are premised on the information available to the Council, its Steller Sea Lion Mitigation Committee, and NMFS throughout the development of this action. When it recommended the suite of Steller sea lion protection measures implemented in this final rule, the Council reviewed all of the information available, including the 2010 FMP BiOp, the Center for Independent Experts' review of the 2010 BiOp, as well as the external review commissioned by the States of Alaska and Washington, the EIS analysis, and public comments.

    NMFS then conducted an ESA section 7 consultation on the Council's recommended proposed action and issued the 2014 BiOp. The 2014 BiOp concluded that the proposed action is not likely to jeopardize the continued existence of the WDPS of Steller sea lions or destroy or adversely modify their critical habitat. The 2014 BiOp also explains that NMFS maintains that a cautionary approach to fishing for prey species in Steller sea lion critical habitat is warranted, especially in winter when NMFS has the least information about prey biomass, and that catch should be dispersed in time Start Printed Page 70296and space to prevent localized depletion—at least until such time as NMFS has better local biomass and exploitation rate estimates (see the 2014 BiOp, page 227). Consistent with that recommendation, the Steller sea lion protection measures implemented in this final rule dispersed fishing in time and space to prevent localized depletion of prey species.

    Comment 17: While measures other than those currently in place conceivably might satisfy NMFS' obligations under the ESA, the available scientific information about the fisheries and Steller sea lions does not justify new measures that simply allow more fishing without a coincident increase in other protections. Alternative 5 is arbitrary because it is based on the 2014 BiOp.

    Response: Alternative 5 (the preferred alternative implemented in the final rule) was not based on the 2014 BiOp. NMFS worked with the Council and its Steller Sea Lion Mitigation Committee to identify the reasonable range of alternatives for analysis in the EIS. In developing the alternatives, the Steller Sea Lion Mitigation Committee and Council considered the 2010 FMP BiOp, external reviews of 2010 FMP BiOp, the draft EIS, public comments, and NMFS' response to public comments received on the draft EIS. Based on this information, the Council determined that the available scientific information about the fisheries and Steller sea lions supports alternative Steller sea lion protection measures to those in the 2010 Interim Final Rule. The Council then recommended Alternative 5 as the preferred alternative based on the analysis in the draft EIS, public comments, and the best available scientific information.

    In the 2014 BiOp, NMFS analyzed the effects of Alternative 5 after it was recommended by the Council. NMFS conducted the ESA section 7 consultation on Alternative 5 prior to releasing the final EIS and commencing rulemaking. The 2014 BiOp found that the implementation of Alternative 5 was not likely to jeopardize the continued existence of the WDPS of Steller sea lions and was not likely to destroy or adversely modify designated Steller sea lion critical habitat. The conclusions in the 2014 BiOp were reached after considering the best scientific and commercial information available, including Steller sea lion behavior and fisheries data.

    Comment 18: The 2010 FMP BiOp remains valid and, for precisely this reason, both the proposed rule and 2014 BiOp must be abandoned. The proposed rule simply cannot be reconciled with the 2010 FMP BiOp—as the proposed rule would repeal the very Steller sea lion protection measures instituted as the 2010 RPA. Because the 2010 FMP BiOp reflects a credible and consistent analysis of the best available science, the status quo protection measures for Steller sea lions adopted as a consequence of that analysis and reflected in the 2010 Interim Final Rule must be at least maintained—if not strengthened.

    Response: The connection between the 2010 FMP BiOp and the 2014 BiOp on the Alaska groundfish fisheries is explained in Section 1.0 of the 2014 BiOp. The 2014 BiOp did not entirely replace the previous 2010 FMP BiOp. The analysis contained in the 2010 FMP BiOp remains valid and meets NMFS' requirement to consult at the FMP level.

    NMFS did a project-level, focused consultation on the proposed action to modify Steller sea lion protection measures in the Aleutian Islands. The 2014 BiOp is the result of that consultation. The 2014 BiOp considered a different proposed action than the 2010 FMP BiOp, namely the proposed changes to the Aleutian Islands Pacific cod, Atka mackerel, and pollock fisheries; scientific research on these fisheries and other changes to the fishery management structure since 2010; and new information available subsequent to completion of the 2010 FMP BiOp. The proposed action to modify Steller sea lion protection measures replaces the RPA in the 2010 FMP BiOp, which was implemented as the 2010 Interim Final Rule. Based on an analysis of the proposed action and the new information, the 2014 BiOp concludes that the proposed action is not likely to jeopardize the continued existence of Steller sea lions or destroy or adversely modify their designated critical habitat.

    Comment 19: The proposed rule violates NMFS' ESA obligation to avoid jeopardizing the prospects of Steller sea lions for recovery and is inconsistent with the 2008 Recovery Plan (see ADDRESSES). The best available science, reflected in the 2008 Recovery Plan, indicates that a large sub-regional population decline constitutes a threat to the prospect of recovery for Steller sea lions as a whole. NMFS is proposing to allow additional fishing within the designated critical habitat for the western and central Aleutian sub-regions, even though Steller sea lion populations continue to decline in those areas and NMFS acknowledges that existing fishing levels cannot be ruled out as a contributing cause of the ongoing decline. Significantly, the western Aleutian sub-regional population declined substantially—60 percent from 2000 to 2012—and a 2013 study found that the probability of extinction in the western Aleutian Islands is substantial within 50 years.

    Response: The recovery criteria in the 2008 Recovery Plan are discussed in Section 3.5 of the 2014 BiOp and Section 1.9.4 of the EIS. The recovery criteria compose the core standards upon which to base a decision to remove Steller sea lions from the Endangered Species List. The biological (demographic) recovery criteria are intended to maintain Steller sea lion populations throughout their range. Currently, there are no geographic gaps in the range of Steller sea lions and the Recovery Team determined, and NMFS concurred, that it is important to the species' viability to maintain populations in all six sub-regions of the WDPS. Significant declines over large areas (two sub-regions or more) could indicate that the extinction risk may still be high and that further research would be needed to understand the threats before delisting. NMFS notes that although the recovery criteria are still applicable, there have been substantial improvements in the best available scientific information on Steller sea lions since the publication of the 2008 Recovery Plan. The 2014 BiOp considered the best available scientific information.

    The abundance of Steller sea lions in Alaska is increasing at a statistically significant rate; however, the increase is due to significant increases in population growth in three of the six sub-regions (the eastern Aleutian Islands, the western GOA, and the eastern GOA). Steller sea lions continue to decline in the central Aleutian Islands and western Aleutian Islands. The rate of decline is not statistically significant in the central Aleutian Islands, but is statistically significant in the western Aleutian Islands. The rate of increase is uncertain in the central GOA. See response to Comment 13 for additional information on the population status of Steller sea lions.

    Section 3.6 of the 2014 BiOp and Section 5.1.1.2 of the EIS discuss the extinction risk of Steller sea lions in Alaska. The studies presented in those sections show no risk of extinction for Steller sea lion in the WDPS within 100 years. These studies also considered the probability of extinction in each of the six specific sub-regions within 100 years. The studies concluded that Steller sea lion populations in all six of the sub-regions, with one exception, have no risk of extinction within 100 years. The population in the western Aleutian Islands sub-region is predicted Start Printed Page 70297to have a high probability of extinction within 100 years.

    As explained in Section 7.1 of the 2014 BiOp, NMFS considered the effects of the proposed action on the survival and recovery of sea lion populations in the individual sub-regions per the criteria in the 2008 Recovery Plan. NMFS' opinion in the 2014 BiOp is that the preponderance of available data does not support a conclusion that the groundfish fisheries as proposed and the current groundfish abundance are limiting Steller sea lion population growth rates. NMFS acknowledges that, due to significant data gaps, NMFS cannot rule out the effects of fishing as contributing to the continued decline in the western Aleutian Islands and the lack of recovery in the central Aleutian Islands (see Section 5.4.5 of the 2014 BiOp).

    Given these data gaps, NMFS maintains that a precautionary approach to fishing for sea lion prey species in Steller sea lion critical habitat is warranted, especially in winter, and that catch of prey species should be dispersed in time and space to prevent localized depletion of prey at least until NMFS has better information about local biomass and exploitation rates (see Section 5.4.5 of the 2014 BiOp). The Steller sea lion protection measures implemented in this final rule maintain substantial groundfish fishery closures and catch limits in Steller sea lion critical habitat (see Section 5.3 in the 2014 BiOp and Sections 2.1.5 and 5.2.2.6 of the EIS) to reduce the potential for competition for prey between the fisheries and sea lions and to ensure that the fisheries are not likely to jeopardize the continued existence of the WDPS of Steller sea lions or destroy of adversely modify their designated critical habitat.

    For example, directed fishing for Atka mackerel, pollock, and Pacific cod with trawl gear will be prohibited in 76 percent, 95 percent, and 76 percent, respectively, of the area designated as critical habitat in the western Aleutian Islands (Area 543). Limits will be imposed on the amount of the TAC of these Steller sea lion prey species that may be taken from Area 543, which corresponds with the western Aleutian Islands sub-region (see Section 2.1.5 of the EIS). Seasonal catch limits will also be imposed and the amount of Atka mackerel that can be caught in Steller sea lion critical habitat in the central and western Aleutian Islands (Areas 543 and 542) will be limited to 60 percent of the TAC. Refer to the preamble to the proposed rule for the full suite of Steller sea lion protection measures implemented by this final rule.

    NMFS' opinion about the effects of the proposed fisheries on the Steller sea lion population in the western Aleutian Islands sub-region and their designated critical habitat is summarized in Section 7.3 of the 2014 BiOp. The measures implemented by this final rule to reduce potential competition between the groundfish fisheries and Steller sea lions overall, and in sea lion critical habitat in the western Aleutian Islands, are not likely to appreciably reduce the likelihood of survival or recovery of the western Aleutian Islands Steller sea lion sub-population. However, based on an assessment of the available data, NMFS concluded that a decline in numbers of the western Aleutian Islands Steller sea lion population is likely to continue for unknown reasons, even apart from any changes in the fisheries, and that the measures implemented by this rule are not likely to yield population level effects that would appreciably change the likelihood of survival or recovery of the Steller sea lion population within the western Aleutian Islands sub-region. NMFS also concluded that the effects of the proposed fisheries in the central Aleutian Islands (corresponding with NMFS management areas 542 and 541) are not likely to appreciably reduce the likelihood of survival or recovery in the central Aleutian Islands sub-region. Because the proposed fisheries are not likely to reduce the survival or recovery of Steller sea lion populations in the western and central Aleutian Islands sub-regions, NMFS concluded that the proposed fisheries are not likely to appreciably reduce the likelihood of survival or recovery of the WDPS of Steller sea lions (Section 7.3 of the 2014 BiOp).

    Comment 20: All protections should remain in place to protect Steller sea lions until NMFS can confirm that the threats that have resulted in the unforeseen and unexplained declines of Steller sea lion populations in the central and western Aleutian Islands have abated. The 2010 Interim Final Rule management measures to protect the population in these sub-regions represent the maximum spatial extent and amount of fishing that can be permitted by the commercial groundfish fisheries. In fact, with ongoing declines persisting in these areas despite the protection measures instituted by the 2010 Interim Final Rule, additional protection measures may be necessary. There are no conditions under which these endangered Steller sea lions would not be jeopardized if restrictions were relaxed. The environmental impact of fishing is never conducive to the preservation of wildlife or natural habitats.

    Response: NMFS is concerned about the continued decline of Steller sea lions in the western and central Aleutian Islands sub-regions. However, NMFS concluded that the changes to the Aleutian Islands groundfish fisheries management in this final rule are not likely to reduce the survival or recovery of sea lion populations in the western or central Aleutian Island sub-regions, let alone the WDPS of Steller sea lions as a whole. See response to Comment 19. The EIS analyzed the environmental impacts of the proposed action and its alternatives on wildlife and habitat.

    Comment 21: NMFS' refusal to address the correlation between sub-regional population trends and Steller sea lion protection measures is arbitrary and harmful because it defies a key performance standard set forth in the 2010 FMP BiOp. The proposed rule purports to maintain the goal of providing more protection to Steller sea lions where more decline in their population is evident. As the proposed rule would eliminate Steller sea lion protection measures in the central and western Aleutian Islands, the portion of the species' range where the population continues to decline, it obviously fails to meet this performance standard. The proposed rule would open more critical habitat to more fisheries in Area 543 relative to Areas 541 and 542, despite the fact that the negative population trend is most pronounced in Area 543.

    Response: Contrary to the commenter's assertion, this final rule does not eliminate Steller sea lion protection measures in the central and western Aleutian Islands, but rather maintains or modifies Steller sea lion protection measures in a manner that is consistent with the mandates of the ESA and the Magnuson-Stevens Act.

    Section 1.10.3 of the EIS describes the objective and performance standards to mitigate potential adverse impacts of the fisheries on Steller sea lions. The Council and NMFS considered these performance standards when selecting the preferred alternative in the EIS. The performance standards reflect concepts NMFS has applied for over a decade to mitigate potential impacts of the groundfish fisheries on Steller sea lions and their critical habitat. The specific set of performance standards for this action originated in the 2010 FMP BiOp and was subsequently modified in the EIS to reflect new information available since the since 2010 FMP BiOp was prepared. The action implemented in this final rule adheres to the performance standards by closing important Steller sea lion habitat and Start Printed Page 70298foraging areas to directed fishing for Steller sea lion prey species, dispersing catch between seasons, limiting the amount of sea lion prey species that may be caught inside critical habitat, maintaining and establishing 3-nm groundfish fishing closures around designated and emerging rookeries in the Aleutian Islands, and including additional harvest controls for Steller sea lion prey species in Area 543—the western Aleutian Islands. This final rule also conserves prey availability for Steller sea lions by closing areas to directed fishing for Atka mackerel where tagging studies indicate high movement of fish from inside to outside closure areas.

    A greater percentage of the critical habitat area will be open to directed fishing for Atka mackerel and Pacific cod in Area 543 relative to Areas 542 or 541 under this final rule. However, this final rule imposes stricter harvest limits for Atka mackerel and Pacific cod in Area 543 compared to the harvest limits that will apply in Areas 542 and 541 (see Section 2.1.5 of the EIS) in accordance with the performance standards in the 2010 FMP BiOp. Taken as a whole, these measures meet the performance standards by limiting catch overall in the areas where the rate of decline is most evident. The specification of a separate Aleutian Islands Pacific cod ABC and TAC beginning in 2014 (see Section 3.3.3 of the EIS) substantially reduced Pacific cod harvests in the Aleutian Islands relative to baseline harvests. The historical data indicate that higher Pacific cod catches are expected in Area 541 compared to Areas 542 and 543 (see EIS Sections 8.11 and 8.18.3). As explained in the preamble to the proposed rule (79 FR 37486), the measures to mitigate the potential effects of the pollock fishery on Steller sea lions and critical habitat conform to the performance standard and are more protective where the Steller sea lion decline is most evident. To meet the objective of the mitigation measures (see EIS Section 1.10.3), the Council and NMFS considered the performance standards, changes to the fisheries relative to the action analyzed in the 2010 FMP BiOp, and the effects of the alternatives when selecting the preferred alternative being implemented in this final rule.

    Comment 22: The Council's recommended preferred alternative is supported by the EIS and the 2014 BiOp. Together, these two documents fulfill the U.S. District Court's directive to NMFS to take a hard look at the data. In doing so, NMFS has been responsive to the Center for Independent Experts' review of the 2010 BiOp, as well as to public comment on the 2010 BiOp and to the external review commissioned by the states of Alaska and Washington.

    Response: NMFS acknowledges the comment.

    Comment 23: The EIS's focus on raw numbers concerning area closures and catch volumes do not meaningfully capture the severity of the impacts or the degree to which the action may adversely affect Steller sea lions or their habitat. The EIS analysis assumes that fishery removals of prey may adversely affect Steller sea lions, and that incremental increases in prey removals and opening more areas of critical habitat, relative to status quo, could have incremental, adverse effects on prey availability for Steller sea lions. While these assumptions are appropriate, the EIS applies them in an exclusively relativistic manner, never offering an ultimate, objective judgment of the environmental effects of the alternatives on Steller sea lions.

    Response: Chapter 5 of the EIS provides a clear explanation of the methods used for the analysis of the potential effects of the fisheries on Steller sea lions. The analysis examines the effects of the alternatives on incidental takes (Section 5.2.1), harvest of prey species (Section 5.2.2), and disturbance (Section 5.2.3). Section 5.2.2 describes the method and assumptions used to analyze the effects of the alternatives with the best scientific information available. The best available scientific information includes quantitative fisheries catch information in time and space and critical habitat locations in relation to fishing activity. This information is used to compare and contrast the effects of the alternatives. The EIS provides conclusions for each effect based on the results of the analysis. The assumptions that are used in the analysis are clearly stated for the public's understanding of the nature of the available information and how this information is used in the analysis. The commenter's request that this information be presented and that an objective judgment on the effects of the alternatives be provided can be found in the EIS in the sections referenced above and in its conclusions.

    Comment 24: The 2014 BiOp is premised on an examination of the overlap in depth between the fisheries and Steller sea lion diving, by season, based on our best understanding of the two variables. The EIS undercuts the reliability of this work to reach a conclusion of no jeopardy, stating that the extent to which competition between fisheries and Steller sea lions may be avoided through partitioning of resources by depth can be difficult to judge using the available information. Scientific studies of Steller sea lion foraging patterns are just beginning to characterize the diving depths and patterns of Steller sea lions, and they are likely capable of foraging patterns not yet described or anticipated. Describing the overlap in depth between fisheries and Steller sea lions is further complicated by diet or seasonal vertical migrations of the fish resources for reproduction, refuge, or foraging.

    Response: Overlap in fishery and Steller sea lion foraging depth is one necessary condition for competition between fisheries and Steller sea lions for prey species. Information on sea lion foraging and fishing depths is discussed in Section 5.3.5 of the 2014 BiOp and Section 5.2.2.1 of the EIS. The 2014 BiOp contains a detailed analysis of fishery and Steller sea lion foraging depths as one aspect of the exposure analysis. The objective of an exposure analysis in a biological opinion is to establish the extent of spatial and temporal overlap of the proposed action with the listed species and designated critical habitat. NMFS conducted a new exposure analysis in the 2014 BiOp in response to comments from two external scientific reviewers who cited shortcomings with the exposure analysis in the 2010 FMP BiOp.

    While the depth analysis in the 2014 BiOp is more detailed than in the EIS, the conclusions of the respective analyses are in accord with each other. For example, the EIS concludes that competition may be less likely between Steller sea lions and fisheries that harvest species found deeper in the water column. In the 2014 BiOp, NMFS also inferred greater potential depth overlap with sea lions between the Pacific cod and Atka mackerel fisheries than for pollock fisheries, based on the available data. The pollock fishery occurs at deeper depths than the Pacific cod and Atka mackerel fisheries (see Section 5.3.5 in the 2014 BiOp). NMFS also noted in the 2014 BiOp that there were limitations in the available data for drawing inferences about the cause of apparent depth partitioning in some portion of sea lion dives and pollock trawl hauls. These conclusions are consistent with the conclusions in Section 5.2.2.1 of the EIS, which notes that diel or seasonal vertical migrations of fish complicates the description of depth overlap between the fisheries and Steller sea lions.

    Comment 25: The assessment of the frequency and intensity of fishery removals in the 2014 BiOp does not support the BiOp's “no jeopardy” conclusion. This assessment is also Start Printed Page 70299contrary to the EIS because the EIS acknowledges that the critical link between fisheries removals (e.g., time, rate, location) and the effects on Steller sea lions is poorly understood and that the relationship between these catch rates and the impacts on prey cannot be determined except that higher catch rates in relation to low prey abundance would be more likely to result in localized depletions.

    Response: Section 5.3.7 in the 2014 BiOp analyzes the probable extent of removal of important Steller sea lion prey under the proposed action. Section 5.3.8 of the 2104 BiOp presents NMFS' conceptual model of how Steller sea lions are exposed to the effects of prey removal by the groundfish fisheries. Section 5.3.8 of the 2014 BiOp and Section 5.2.2 of the EIS consistently describe the conditions expected to lead to localized depletion of prey. Consistent with the limitations to assessing effects described in Section 5.2.2.1.4 of the EIS, Section 5.3.8 of the 2014 BiOp acknowledges that NMFS lacks data to determine conclusively whether the fisheries fragment the prey patches, modify the proportion of prey at depth, and ultimately result in reduced prey abundance.

    Comment 26: Assessing the potential overlap in the size of prey consumed by Steller sea lions and those taken in the commercial fishery is another key analytical prong of the 2014 BiOp. The 2014 BiOp's conclusion of limited overlap and no jeopardy is not consistent with the EIS, which found that the ranges of size of prey selected by Steller sea lions, as referenced above, do overlap with the ranges of size of prey taken in the groundfish fisheries in the Aleutian Islands as calculated in this analysis.

    Response: As discussed in Section 5.2.2.1.2 of the EIS, overlap in size between fish consumed by Steller sea lions and those taken in the commercial fishery is one of several necessary conditions for competition for prey. Overlap in size of prey eaten by Steller sea lions and size of fish caught by the groundfish fisheries is analyzed in Section 5.2.2.1.2 of the EIS and Section 5.3.6 of the 2014 BiOp. The two analyses consistently conclude that the best available scientific information indicates that the size ranges of prey eaten by Steller sea lions and the size range of fish taken in the groundfish fisheries in the Aleutian Islands overlap. The 2014 BiOp discusses that the best available scientific information indicates greater overlap in the size of Atka mackerel and pollock taken by the fisheries and Steller sea lions compared to the overlap in the size of Pacific cod taken by the fisheries and Steller sea lions and notes the limitations of the available data and the uncertainty about the extent of potential overlap.

    Comment 27: The EIS' approach obscures the potential severity of the proposed action for both Steller sea lions in the central and western Aleutian Islands and Steller sea lions as a whole. Unfortunately, the population trends for non-pups in the central and western Aleutian Islands sub-regions continue to decline, with a particularly severe decline in abundance (a 60 percent decrease) observed in the western Aleutian Islands between 2000 and 2012. A 2013 study found that the probability of extinction in the western Aleutian Islands is substantial even within 50 years. The EIS fails to acknowledge that even a modest increase in pressure on prey resources in the western Aleutian Islands could precipitate a severe result, given that the sub-population already faces a high risk of extirpation. The EIS also fails to note that such an outcome could have equally severe ramifications outside of the western Aleutian Islands, as the best available science indicates that the extirpation of Steller sea lions in the western Aleutians would be significant to the WDPS, and would be expected to appreciably reduce the likelihood of both their survival and recovery in the wild.

    Response: Sections 5.1.1.1 and 5.1.1.2 of the EIS describe the population abundance and trends for the entire WDPS of Steller sea lion pups and non-pups based on the best scientific information available. The purpose and need of the action focuses the alternatives and the analysis of the effects on the action area, the Aleutian Islands, which is a portion of the range of WDPS of Steller sea lions. Section 5.1.1.2 describes the population trend for the entire WDPS of Steller sea lions (i.e., Alaska and Russia/Asia), the entire Alaska portion of the range of Steller sea lions, and the population trends in each sub-region in Alaska. This puts the population trend in the action area in context for the entire population. NMFS notes that the abundance of WDPS Steller sea lions in Alaska is increasing at a statistically significant rate, though the Steller sea lion population in the western Aleutian Islands sub-region is declining at a statistically significant rate (see response to Comment 13).

    The EIS analysis focuses on the effects on Steller sea lions that occur in the Aleutian Islands. EIS Section 5.1.1.2 discusses the process Johnson (2013) developed for forecasting the population of Steller sea lions and summarized the probability of the population falling below a quasi-extinction threshold within 50 and 100 years. A quasi-extinction threshold is the population size, greater than zero, at which a population is ultimately doomed to extinction due to genetic or physical constraints of the small, remaining population. NMFS examined three methods: The Morris and Doak (MD) method (Morris and Doak 2002), and restricted and unrestricted agTrend methods (Johnson 2013). The results for each method were qualitatively the same: There is approximately a zero percent probability of quasi-extinction of the Steller sea lion population in Alaska as a whole within the next 100 years. Similarly, there is approximately a zero percent probability of quasi-extinction of the Steller sea lion population from each of the sub-regions within Alaska within the next 100 years, with one exception for the western Aleutian Islands sub-region. The probability of extirpation of the Steller sea lion population in the western Aleutian Islands sub-region is substantial even within 50 years.

    The EIS states that competition with fisheries may affect prey availability to Steller sea lions. In the EIS, prey effects are considered adverse effects because, based on information available on prey interaction, it is assumed there are no beneficial effects from removal of prey. Removal of prey can have direct and indirect adverse effects on Steller sea lions. The EIS discusses the potential adverse effects to Steller sea lions from the harvest of prey resources in the Aleutian Islands under all of the alternatives. After conducting this analysis, and analysis of other factors detailed in the EIS, NMFS concluded in the 2014 BiOp that although there is a substantial risk of extinction of the Steller sea lion population in the western Aleutian Islands based on projected population trends, additional management measures beyond those implemented in this final rule were not required to insure that groundfish fisheries are not likely to jeopardize the continued existence of the WDPS of Steller sea lions or destroy or adversely modify their designated critical habitat.

    Comment 28: The EIS does not comply with NEPA because it fails to analyze the significance of the effects of the action on endangered Steller sea lions. The EIS did not determine the population-level effects to Steller sea lions from the indirect effects of fishing on prey availability for the alternatives. Rather than assess potential population-level consequences of each alternative using objective metrics, prey effects were analyzed purely in comparative form by evaluating the percentage of Start Printed Page 70300critical habitat closed to each fishery and the harvest of prey species in critical habitat by each fishery exclusively within the western and central Aleutian Islands. The details on local closures and catch within critical habitat in Areas 541, 542, and 543, while appropriate, are no substitute for further analysis in a broader context, including at the population level of the WDPS of Steller sea lions. A population-level analysis for each alternative in the EIS is essential to making a reasoned choice among the proposed management regimes for the western and central Aleutian Islands because the best available science as reflected in the 2008 Recovery Plan (see ADDRESSES), provides a clear basis for the conclusion that sub-regional declines have a profound effect on the future of the entire species.

    Response: The EIS analysis provides the decision makers with the ability to compare and contrast the effects of the alternatives on the human environment consistent with the requirements of NEPA by disclosing information on fishery removals of prey and critical habitat closures under the alternatives within the action area. EIS Chapter 5 includes the evaluation of the effects of the alternatives on Steller sea lion incidental takes, disturbance, and potential effects on prey using the best available information. NMFS reviewed the information available to inform the analysis and determined that a population-level analysis was not necessary to determine the potential effects of the alternatives on Steller sea lions and their critical habitat because the effects of fishing occur at the local scale and the decision was which suite of protections measures is appropriate to meet the purpose and need for the action. EIS Section 5.2.2 describes the method used to analyze the effects of the alternatives with the best available scientific information and the assumption applied to the analysis. Best scientific information available includes quantitative fisheries catch information in time and space and critical habitat locations in relation to fishing activity. This information is used to compare and contrast the effects of the alternatives.

    Comment 29: We strongly disagree with the core of NMFS' rationale for this proposal which is: (1) There are enough fish in the Bering Sea and Aleutian Islands for fishermen and Steller sea lions to share; the small Steller sea lions population only consumes a small portion of fish we think are there; and (2) we have designed a system with enough spatial and temporal dispersal of the fishing effort such that fishing does not overlap with Steller sea lions critical habitat to a great degree. Yes, on a mass balance basis, there are enough fish for fishermen and Steller sea lions to share. But Steller sea lions are not the only inhabitants of this ecosystem; other predators like seabirds, killer whales, and seals depend on fish being abundant in this area and some of those species are showing worrisome declines that may be related to too few fish in the ocean.

    Response: NMFS' rationale for this final rule is supported by the 2014 BiOp (see ADDRESSES). The 2014 BiOp concludes that the proposed action would establish Steller sea lion protection measures for the Atka mackerel, Pacific cod, and pollock fisheries in the Aleutian Islands subarea that spatially and temporally disperse fishing to mitigate potential competition for prey resources between Steller sea lions and these fisheries. Spatial and temporal fishery dispersion is accomplished through closure areas, harvest limits, seasonal apportionment of harvest limits, and limits on participation in a fishery. The proposed action would retain or modify existing closure areas, harvest limits, seasonal apportionment of harvest limits, and limits on participation in ways that are designed to limit competition for prey with Steller sea lions.

    NMFS agrees that a wide range of species occurring in the action area prey on groundfish. NMFS conservatively manages the groundfish fisheries and limits catch for ecosystem considerations, including a conservative optimum yield cap and a global control rule. In the 2010 FMP BiOp, NMFS analyzed the effects of the authorization of groundfish fisheries, including the prosecution of parallel groundfish fisheries in Alaska state waters (see ADDRESSES). The 2010 FMP BiOp is comprehensive in scope and considers the fisheries and the overall management framework established by the FMP to determine whether that framework contains necessary measures to ensure the protection of listed species and critical habitat. The 2010 FMP BiOp analyzed the pattern and level of fishery removals occurring in different groundfish fisheries and the policy choices, decisions about exploitation strategies, and stock and stock complex assessments that set the harvest levels.

    The 2014 BiOp identified the importance of maintaining global, or broad scale, limits on the harvest of Atka mackerel, Pacific cod, and pollock. Global limits are currently in place for these three species. Regulations prohibit directed fishing in the BSAI or GOA if the projected spawning biomass of the fish stock falls below 20 percent of the unfished spawning biomass (see regulations at § 679.20(d)(4)). Atka mackerel, Pacific cod, and pollock fisheries have not experienced this type of directed fishing closure since global limits became effective in 2003 (68 FR 204, January 2, 2003).

    Additionally, NMFS conducts ecosystem modeling and incorporates ecosystem considerations, including predation, into the stock assessment models. See response to comment 54.

    Further, the EIS analyzes the impacts of the proposed action and its alternatives on a wide range of ecosystem elements, including local fish populations in Chapter 3, killer whales and seals in Chapter 5, seabirds in Chapter 6, and on the ecosystem as a whole in Chapter 7.

    Comment 30: NMFS improperly fails to disclose in the final EIS the strong dissenting views held by NMFS scientists regarding the analysis and conclusions contained in the draft 2014 BiOp. For example, Alaska Fisheries Science Center scientists prepared a memorandum stating that the spatial overlap analysis in the draft 2014 BiOp is fundamentally flawed and cannot be used as a basis to evaluate spatial overlap between fisheries and Steller sea lions, nor support any conclusions about whether jeopardy or adverse modification to critical habitat may or may not be expected to occur as a result of the fishery action. The Steller Sea Lion Coordinator for the Alaska Region prepared a memo stating that the exposure analysis in the draft 2014 BiOp was fundamentally flawed and needed to be redone and the draft 2014 BiOp was not consistent with the NOAA Scientific Integrity Policy because it does not provide accurate or adequate acknowledgement or discussion of uncertainties or the probabilities associated with both optimistic and pessimistic projections for sea lions. These memos indicate there was internal dissent within NMFS regarding the draft 2014 BiOp analysis that the EIS relies upon for its discussion regarding the environmental impacts of the proposed action on Steller sea lions. NMFS was obligated to disclose and discuss these adverse opinions within the body of the EIS and failed to meet that obligation.

    Response: NMFS is not obligated to discuss pre-decisional internal agency discussions in an EIS. However, NMFS does discuss areas of controversy and uncertainty in the Executive Summary and in Chapter 5 of the EIS. NMFS relies on EIS Chapter 5 for the analysis of the impacts of the proposed action and its alternatives on Steller sea lions. All internal agency discussions were Start Printed Page 70301considered by NMFS in making the final determination.

    Comment 31: In our July 12, 2013, comments on the draft EIS, we recognized the effort of NMFS to produce a thorough analysis that articulates the anticipated impacts of a complex proposal and applauded your partnerships with the U.S. Coast Guard, U.S. Fish and Wildlife Service and the Alaska Department of Fish and Game in developing the EIS. We identified Alternative 5 as a practical combination of some of the more beneficial aspects of other alternatives for the Atka mackerel, Pacific cod, and pollock fisheries, based in large part in response to stakeholder concerns identified during scoping. We also recognized that an intensive monitoring program will be implemented with this alternative, and adjustments made as results are assessed. We did not have concerns regarding the preferred alternative and offered no additional suggestions for further minimizing impacts. The EIS continues to identify modified Alternative 5 as the NMFS preferred alternative. We support this decision and recommend that this alternative be selected in the Record of Decision.

    Response: NMFS acknowledges the comment.

    Comments on Economic Issues

    Comment 32: Reject the proposed rollback of needed protections for Steller sea lions. The proposed rule reflects an abdication of NMFS' stewardship obligations, does not comply with NMFS' legal or moral obligations, is not consistent with the best available science, and appears to prioritize short-term economic gain ahead of long-term sustainable management. A decision to authorize significant additional fishing pressure even as Steller sea lions continue to decline in the central and western Aleutian Islands and fail to meet recovery criteria overall would run directly counter to those moral, ethical, and legal obligations.

    Response: This action implements a suite of Steller sea lion protection measures in the Aleutian Islands groundfish fisheries that adheres to the requirements of the ESA and Magnuson-Stevens Act, and are consistent with our legal and stewardship obligations. NMFS used the best available commercial and scientific data to inform development of the alternatives and analyze their impacts on Steller sea lions and the human environment. This final rule maintains protections consistent with the ESA for Steller sea lions through numerous spatial and temporal harvest limits and critical habitat area closures applicable to the harvest of key Steller sea lion prey species of Atka mackerel, Pacific cod, and pollock and sustainable management of the Aleutian Islands groundfish fisheries.

    Comment 33: In light of the protective purpose of the ESA, NMFS must respect Congress' intent to give the benefit of the doubt to the species. NMFS' action should be consistent with the ESA's conservation goals and the ESA's policy of institutionalized caution.

    The proposed rule asserts that the Council and NMFS understood that a preferred alternative and any resulting rule must meet the requirements of the ESA before factors that minimize, to the extent practicable, the economic impacts on fishery participants could be considered. This assertion notwithstanding, the proposed rule repeatedly states that certain lesser protection measures have been selected because they “balance” conservation of Steller sea lions with economic opportunities for the commercial fisheries. The balancing approach undertaken by the Council and NMFS is unlawful because the ESA disallows balancing the benefit to the species against the economic and technical burden on the industry. NMFS proposes an unprecedented reversal of the ESA's mandated precaution and appears to premise its analysis and conclusions on an illegal shifting of the burden of proof and an impermissible elevation of economic considerations.

    Under the ESA, economic considerations may not be considered in an agency's determination of whether an action is likely to cause jeopardy—a determination that must be based exclusively on the best available science. Because the legislation reveals a conscious decision by Congress to give endangered species priority over the primary missions of Federal agencies, NMFS may not give equal priority to economic concerns and its obligations under the ESA.

    Response: The purpose and need for this action is explained in Section 1.3 of the EIS. The purposes of this action are to first, comply with the requirements of the ESA by implementing Steller sea lion protection measures in the Alaska groundfish fisheries and, secondly, and only after the first purpose is met, to minimize, to the extent practicable, economic impacts to the groundfish fisheries from the measures.

    In compliance with the ESA, NMFS conducted a section 7 consultation on the action implemented in this final rule. During that consultation, NMFS used the best scientific and commercial data available. The results of the ESA section 7 consultation are documented in the 2014 BiOp. In the 2014 BiOp, NMFS concluded that the implementation of the proposed action was not likely to jeopardize the continued existence of the WDPS of Steller sea lions or destroy or adversely modify designated Steller sea lion critical habitat. Economic impacts were not a factor in making that conclusion.

    NMFS agrees that ESA section 7 analyses should err on the side of the survival and recovery of the listed species when the effects of an action are uncertain. The analysis in the 2014 BiOp is a cautionary examination of the effects of the groundfish fisheries on Steller sea lions and their designated critical habitat. NMFS assumes that groundfish fisheries may compete with Steller sea lions for prey. NMFS makes this assumption even though there is substantial scientific debate as to whether such competition exists, or if it does, whether the levels of removals in the fishery would be sufficient to cause competition in a way that would impede the survival and recovery of Steller sea lions. In Section 5.3.8 of the 2014 BiOp, NMFS presents a conceptual model illustrating the pathways through which Steller sea lions are exposed to the stressor of reduced prey resources due to the groundfish fisheries. NMFS' conceptual model for Steller sea lion behavioral and physiological responses to reduced prey resources is shown in Section 5.4 of the 2014 BiOp.

    NMFS discusses where the available data allow inference of the effects and where the available data are equivocal as to the effects on prey availability and subsequent effects on Steller sea lion fitness. In cases where the data are equivocal, to avoid underestimating the potential risk to the survival and recovery of Steller sea lions, NMFS assumes the groundfish fisheries may compete with sea lions for prey and assumes that the most extreme physiological consequences would result. In those cases, NMFS concluded that local Steller sea lion populations may be affected by the proposed action but that the magnitude of the effect would not be sufficient to appreciably reduce the likelihood of survival or recovery in either the central or western Aleutian Islands sub-regions. Because the action is not likely to appreciably reduce the likelihood of survival or recovery in the individual sub-regions, the proposed action is not likely to appreciably reduce the likelihood of survival or recovery of the WDPS of Steller sea lions. In other cases, the best scientific data available support a conclusion that the proposed groundfish fisheries are not likely to cause localized Start Printed Page 70302depletion of prey and are not likely to reduce the fitness of individual sea lions or adversely modify their designated critical habitat.

    In developing the proposed action and its alternatives, the Council and NMFS did consider impacts on fishery participants. NMFS is required to consider the impacts of its fishery management actions on fishery participants under the Magnuson-Stevens Act, Executive Order 12866, and the Regulatory Flexibility Act. In the preamble to the proposed rule, NMFS describes each regulatory provision and provides an explanation as to why the Council recommended and NMFS approved and implemented these regulatory provisions. These explanations address why a particular regulatory provision was included or why a particular provision from the 2010 Interim Final Rule was revised or removed. However, it is NMFS' conclusions in its 2014 BiOp that the regulatory provisions, individually and collectively, are not likely to jeopardize the continued existence of Steller sea lions or destroy or adversely modify designated Steller sea lion critical habitat.

    Comment 34: The EIS does not comply with the National Environmental Policy Act (NEPA) because its statement of purpose and need impermissibly elevates economic considerations and impermissibly qualifies NMFS' conservation obligations pursuant to the ESA and the Magnuson-Stevens Act with a duty to minimize costs, where practicable. NMFS insists that in meeting ESA requirements, it also needs to make sure that the measures that it implements minimize, to the extent practicable, adverse economic impacts to the groundfish fisheries. NMFS' emphasis on a balance of meeting the ESA obligations while minimizing economic impacts to the extent practicable is both misplaced and unlawful.

    Response: NMFS has determined that the EIS complies with NEPA. The purpose and need in the EIS is clear that NMFS needs to implement Steller sea lion protection measures to meet its obligations under the ESA. The ESA is clear that economic factors are not considered by the consulting agency (NMFS PRD) when making a determination about the impact of this action under a section 7 consultation. NMFS SFD consulted on this action and NMFS PRD determined that the implementation of this action was not likely to jeopardize the continued existence of Steller sea lions and was not likely to destroy or adversely modify designated Steller sea lion critical habitat. This determination was made without the consideration of economic impacts, as discussed in response to Comment 33.

    At the same time, NMFS is managing fisheries under the Magnuson-Stevens Act, and the Magnuson-Stevens Act requires NMFS to implement protection measures in a manner that minimizes adverse economic impacts, to the extent practicable, on those affected by the restrictions under the Steller sea lion protection measures. Under the purpose and need for this action, NMFS must meet the requirements of the ESA and do so in a manner that also meets the requirements to manage fisheries to minimize adverse economic impacts to fishery participants and fishery dependent communities, where practicable, under the requirements of Magnuson-Stevens Act.

    Comment 35: According to the EIS, NMFS' assertion that it must balance ESA obligations against the potential cost of protection measures to the fishery industry is grounded in National Standard 7 of the Magnuson-Stevens Act. While National Standard 7 does encourage NMFS to minimize costs and to avoid unnecessary duplication where possible, NMFS may not give equal priority to economic concerns under the Magnuson-Stevens Act and its obligations under the ESA because the ESA reflects a conscious decision by Congress to give endangered species priority over the primary missions of Federal agencies.

    Despite the proposed rule's frequent and prominent invocation of the need to minimize economic impacts, nowhere does the proposed rule explain the legal or policy genesis of this objective. While National Standard 7 does encourage NMFS to minimize costs and to avoid unnecessary duplication where possible, NMFS may not select and elevate one Magnuson-Stevens Act obligation from among the several management obligations imposed by the statute. In addition to National Standard 7, the Magnuson-Stevens Act includes substantive obligations to conserve and manage fishery resources and to protect the marine ecosystem. NMFS cannot simply ignore these additional Magnuson-Stevens Act obligations or prioritize financial benefit for the fishing industry.

    Response: Federal fishery management in the Aleutian Islands as a whole is designed to conserve and manage fishery resources, protect the marine ecosystem, and promote the long-term healthy and stability of the fisheries, in accordance with the Magnuson-Stevens Act. The Council and NMFS have fully considered the Magnuson-Stevens Act and the 10 National Standards in developing these regulations (see EIS Section 13.2.4).

    The statement of purpose and need specifies the underlying purpose and need to which NMFS is responding in proposing the alternatives, including the proposed action. As explained in the EIS, the need to comply with section 7 of the ESA is the primary driver for implementing Steller sea lion protection measures. As NMFS has stated previously in the preamble to the proposed rule and in this preamble, NMFS did not consider economic factors when determining if the proposed action would jeopardize the continued existence of Steller sea lions or destroy or adversely modify their designated critical habitat. See response to Comment 33 and the 2014 BiOp for additional detail.

    However, after NMFS meets its requirements under the ESA, NMFS also needs to make sure that the measures that it implements minimize, to the extent practicable, adverse economic impacts to groundfish fishery participants under the Magnuson-Stevens Act. This is not the same as giving equal priority to economic concerns and ESA obligations.

    This final rule implements an extensive suite of Steller sea lion protection measures that impose economic costs on the fishing industry compared to no protection measures. This final rule also relaxes some Steller sea lion protection measures implemented under the 2010 Interim Final Rule. These changes to Steller sea lion protection measures were recommended by the Council based on the best scientific information available. NMFS conducted a section 7 consultation on the Council's recommendation under the requirements of the ESA (see 2014 BiOp) and determined that the Council's recommendation was not likely to jeopardize the continued existence of Steller sea lions or destroy or adversely modify their designated critical habitat. Removing or modifying specific protection measures and allowing some increases in fishing is not the same as prioritizing financial benefit for the fishing industry. See the preamble to the proposed rule for a complete discussion of the specific Steller sea lion protection measures that are modified or removed with this final rule.

    Comment 36: The approach of the Council and NMFS was to ensure that a preferred alternative met the requirements of the ESA before considering factors that minimize, to the extent practicable, the economic impacts on fishery participants.Start Printed Page 70303

    Response: NMFS agrees and acknowledges the comment.

    Comment 37: In formulating and selecting NEPA alternatives, NMFS may not select and elevate one Magnuson-Stevens Act obligation from among the several management obligations imposed by the statute. The Magnuson-Stevens Act includes substantive obligations to conserve and manage fishery resources and to protect the marine ecosystem. NMFS cannot simply ignore these additional Magnuson-Stevens Act obligations or prioritize financial benefit for the fishing industry.

    Response: Federal fishery management in the Aleutian Islands as a whole is designed to conserve and manage fishery resources, protect the marine ecosystem, and promote the long-term health and stability of the fisheries. The Council and NMFS have fully considered the Magnuson-Stevens Act and the National Standards in developing this action, its alternatives, and the implementing regulations. Specifically, EIS Chapter 3 details how NMFS considered the effects of the alternatives on target species; EIS Chapter 4 details how NMFS considered the effects of the alternatives on non-target species; Chapter 5 details how NMFS considered the effects of the alternatives on marine mammals; Chapter 6 details how NMFS considered the effects of the alternatives on seabirds; and Chapter 7 details how NMFS considered the effects of the alternatives on the ecosystem. NMFS responds to public comments on each of the Magnuson-Stevens Act's 10 National Standards in EIS Section 13.2.4.

    This final rule implements an extensive suite of Steller sea lion protection measures that impose economic costs on the fishing industry compared to no protection measures. This final rule also relaxes some restrictions on fishing implemented by the 2010 Interim Final Rule, thereby relieving some of the costs imposed by that action. NMFS has determined that these specific restrictions were not necessary to insure that groundfish fisheries in the BSAI are not likely to jeopardize the continued existence of Steller sea lions or destroy or adversely modify their designated critical habitat and therefore could be removed.

    Comment 38: The proposed rule reflects a positive first step towards establishing an appropriate management regime that adequately protects the Steller sea lion without imposing unnecessary impacts on the Alaskan economy, as did the 2010 Interim Final Rule. The Steller sea lion population in Alaska has increased substantially since 2000. While populations in some sub-regions have been slower to respond than others, minimal, if any, evidence indicates that human activity such as fishing and the resulting variations in prey availability negatively affect the Steller sea lion population. In light of this tenuous connection, the harsh fishing restrictions imposed by the 2010 Interim Final Rule were unsupported. In contrast, the proposed rule presents a more appropriate management decision, which would ease many of those restrictions and enable increased fishing. The proposed rule is both consistent with the balanced recommendation of the Council and supported by adequate analysis of the best available science presented in the 2014 BiOp.

    Response: The Steller sea lion protection measures implemented by the 2010 Interim Final Rule were based on the 2010 FMP BiOp (see ADDRESSES) and supported by the best available information at that time.

    Comment 39: The proposed rule will benefit Alaskans, their communities, the commercial fishing fleet, and the seafood processing industry by easing the severe fishing restrictions set forth under the 2010 Interim Final Rule. That rule, which resulted in harsh economic impacts, resulted from the hypothesis that groundfish fisheries are causing nutritional stress to the Steller sea lions. Subsequent independent, expert peer reviewers have questioned the scientific basis for and the legitimacy of that hypothesis. The State's interests will be best served through implementation of a management structure that balances the interests of fishing opportunities with scientifically defensible protections for Steller sea lions. The proposed rule would accomplish those objectives.

    Response: NMFS acknowledges the comment.

    Comment 40: The proposed rule will eliminate several of the most severe limitations implemented under the 2010 Interim Final Rule, including complete retention restrictions for Atka mackerel and Pacific cod in Area 543, and closures for pollock fishing in designated critical habitat in Areas 543, 542, and 541. NMFS would replace these complete closures with more targeted temporal and spatial restrictions and catch limits based on available data showing the potential overlap between Steller sea lion occurrence and the fisheries. The proposed rule would retain significant restrictions on fishing that are intended to prevent any potential effects of fisheries on Steller sea lions, regardless of whether or not the effects are actually occurring. The proposed rule takes a very precautionary approach to mitigation, aiming for a very high degree of protection for Steller sea lions while reducing, but not eliminating, impacts on fishery-dependent industry and communities.

    Response: NMFS acknowledges the comment.

    Comment 41: We are encouraged that the economic impacts of the 2010 Interim Final Rule will be significantly reduced if the measures in the proposed rule are approved. The new Steller sea lion protection measures under this proposed rule retain a significant amount of economic impact to the Amendment 80 sector relative to what was in place prior to 2011. After reviewing the proposed rule and the specifics of proposed fishery measures and groundfish quotas, we estimate that the proposed Steller sea lion measures would restore a little less than half of the loss to the Amendment 80 sector from the 2010 Interim Final Rule.

    Response: NMFS acknowledges the comment.

    Comment 42: The proposed rule will help to alleviate some of the economic impact that the 2010 Interim Final Rule has had on the Alaskan economy. The proposed rule allows for increased flexibility for Alaskan vessels to harvest Atka mackerel, Pacific cod, and pollock, which will in turn support the seafood processing industry and the local economies of several remote coastal communities. The combination of reduced closures and increased catch limits creates a more effective and targeted management system in light of the minimal evidence of competition for prey between the fisheries and the Steller sea lion. Our family business is encouraged by opportunities granted under the proposed rule that allow harvest in Areas 541, 542, and 543 otherwise not available under the 2010 Interim Final Rule.

    Response: NMFS acknowledges the comment.

    Comments on Community Issues

    Comment 43: The measures put in place with the 2010 Interim Final Rule hit Adak harder than any other community. Not only was the immediate local impact severe, the resulting loss of activity impacted long term revenue to Adak attributable to those fiscal years. We support the proposed regulations because NMFS provided a well-written and well-reasoned justification in the 2014 BiOp for the determination that the proposed action will not result in jeopardy or adverse modification.

    The proposed rule reduces the negative social and economic impacts to the City of Adak and introduces the Start Printed Page 70304economic certainty to allow for the processing plant operators to develop plans that will keep the operation, and all of its beneficiaries, employed or otherwise engaged. Re-opening Atka mackerel fishing in limited areas west of Adak will provide more opportunity for fuel sales and logistical support needs of the Atka mackerel catcher/processor fleet. This should provide a partial relief to the Adak community from the impacts of lower fuel sales resulting from the 2010 Interim Final Rule. The proposed rule would allow pollock fishing in portions of the critical habitat. This change will allow the pollock allocation, granted to the Aleut Corporation for the purpose of economic development, to be harvested in the Aleutian Islands. This will provide the opportunity to generate the necessary revenues to address the economic development needs the community has required for more than a decade.

    Response: NMFS acknowledges the comment.

    Comment 44: The proposed rule better utilizes the available information and properly takes into account relevant factors to ensure the Steller sea lion population avoids jeopardy while maintaining viable economic opportunities for Aleut Corporation shareholders. Aleut Corporation shareholders directly rely on Steller sea lions for subsistence needs. No single group would be harmed greater by the lower population trends of the Steller sea lions. However, Steller sea lion conservation must be balanced with the ability for Aleuts to “call home” their traditional lands that are economically based on commercial fisheries. The proposed rule maintains a high level of continued protection around critical habitat (especially in Areas 543 and 542) with more restrictive measures the farther west one goes. The proposed rule also allows for increased fishing opportunities, the economic lifeblood of the Aleutian region.

    Response: NMFS acknowledges the comment.

    Comment 45: Continue to consider the economic impacts of decisions on local, small-scale, commercial fishermen that deliver their catches to on-shore processing facilities. The catcher/processors play an important economic role to the Aleutian Islands region, but so do local, family businesses who purchase fuel and supplies from the community of Adak and who deliver catch to in-state processing facilities who greatly contribute to the lifeblood of economic development to rural Alaskan communities like Adak.

    Response: NMFS acknowledges the comment. NMFS notes that it analyzed the impacts to commercial fishermen in EIS Chapters 8 and 9, the initial regulatory flexibility analysis for the proposed rule, and in the final regulatory flexibility analysis for the final rule.

    Comments on the EIS Alternatives

    Comment 46: The 2014 BiOp is much improved and addresses the current conduct of the fishery in a straightforward manner. The 2014 BiOp also suggests that the areas we now know are important feeding areas for Steller sea lions (inside 10 nm) were already mostly closed to Atka mackerel, Pacific cod, and pollock fishing even before the 2010 Interim Final Rule was implemented. This indicates that (1) more of the 2010 Interim Final Rule's restrictions could have been relaxed; (2) the alternatives considered by NMFS should have been expanded to include even more fishing; and (3) the preferred alternative is excessively protective. More could have been done using the new information in the 2014 BiOp to reduce restrictions in the regulations without impacting Steller sea lions, particularly in the absence of direct information supporting the theory that the groundfish fisheries adversely impact Steller sea lions.

    Response: The alternative selected by the Council and implemented by this rule was selected after considering other alternatives that would have allowed more fishing opportunities in the Aleutian Islands. Although an alternative suite of management measures could have been selected and reviewed under section 7 of the ESA, the management measures implemented here represent a precautionary approach to management in recognition of the requirements of the ESA. Additional detail on the precautionary nature of this action relative to other actions considered is provided in the EIS and the 2014 BiOp.

    Comment 47: NMFS must select Alternative 1 (status quo). Among the alternatives evaluated in the EIS, Alternative 1 is the only viable one consistent with the conservation obligations imposed by the ESA and the Magnuson-Stevens Act. The current protection measures for Steller sea lions in the central and western Aleutian Islands reflect the minimum steps NMFS must take to address ongoing declines and to protect Steller sea lions. The outcome of the recent litigation over the 2010 FMP BiOp and the status quo Steller sea protection measures compels selection of Alternative 1 to maintain current protections. The 2010 FMP BiOp itself counsels in favor of Alternative 1, as any lesser protection measures than those established by 2010 Interim Final Rule likely are unlawful under the ESA. The 2010 FMP BiOp's conclusion reflects NMFS' long-standing and well-documented rationale that commercial fisheries adversely affect Steller sea lions by competing with them for prey. Unless and until NMFS can determine that the threats that have resulted in ongoing declines have abated, the management measures described in Alternative 1 represent the maximum spatial extent and amount of fishing that can be permitted by the commercial groundfish fisheries.

    Response: NMFS disagrees. Alternative 5 best meets the purpose and need for this action. As NMFS has noted earlier in response to other comments, this action is distinct from the action considered in the 2010 BiOp and includes new information not considered in the 2010 BiOp. NMFS has determined that the regulations implementing Alternative 5 are in compliance with the Magnuson-Stevens Act, as detailed in the EIS and Record of Decision. NMFS has determined that Alternative 5 is in compliance with the ESA, as detailed in the 2014 BiOp. The 2014 BiOp concludes that the proposed action would establish Steller sea lion protection measures for the Atka mackerel, Pacific cod, and pollock fisheries in the Aleutian Islands subarea that spatially, temporally, and globally disperse fishing to mitigate potential competition for prey resources between Steller sea lions and these fisheries. Spatial and temporal fishery dispersion is accomplished through closure areas, harvest limits, seasonal apportionment of harvest limits, and limits on participation in a fishery. The proposed action would retain or modify existing closure areas, harvest limits, seasonal apportionment of harvest limits, and limits on participation in ways that are designed to limit competition for prey between fisheries and Steller sea lions.

    Comment 48: If NMFS wants to take the precautionary approach that this situation really requires, it could simply prohibit fishing and monitor to see what happens to the Steller sea lion population over the next 5 to 10 years. Prohibition or severe reduction of fishing activity in the Aleutian Islands is the one and only tool to slow and reverse the Steller sea lion decline. The economic impact of prohibiting commercial fishing or severely restrict it in Areas 543 and 542 would not be large, particularly not compared to the commercial fisheries prosecuted in the Bering Sea. NMFS would rather allow a very small fishery with $12 million Start Printed Page 70305dollars per year of ex vessel revenue in 2012 (and perhaps 10 percent of that in net profit) to go forward and expand, than to take a precautionary approach using more current science and reduce or eliminate fishing in the area to save the last 1,000 western Aleutian Islands Steller sea lions.

    Response: NMFS analyzed an alternative in the EIS, Alternative 6, that would prohibit retention of Atka mackerel, Pacific cod, and pollock in the Aleutian Islands (Areas 543, 542, and 541, and adjacent State of Alaska waters). The economic impacts of Alternative 6 are detailed in EIS Chapter 8. The impacts of Alternative 6 on Steller sea lions are detailed in EIS Chapter 5. NMFS did not choose Alternative 6 as the preferred alternative because while Alternative 6 would provide the most protection to Steller sea lion prey species, it is not practicable because it would restrict fisheries beyond what is necessary to meet the ESA requirement to insure the fisheries are not likely to jeopardize the continued existence of Steller sea lions or destroy or adversely modify designated Steller sea lion critical habitat. Therefore, Alternative 6 would not best meet the purpose and need for this action (see Section 1.3 of the EIS).

    Comment 49: NMFS has failed to consider reasonable alternatives that would provide additional protections for Steller sea lions. Instead of constructing and evaluating an alternative that would provide improved protections for Steller sea lions, NMFS evaluated closing the entire action area to all fishing. Alternative 6 is not responsive to the concerns raised in comments or sufficient to satisfy NMFS' legal obligations. Public comments did not propose closing the entire Aleutian Islands to all fishing for Atka mackerel, Pacific cod, and pollock. A large closure might be a reasonable alternative, but it is not a mechanism through which NMFS can improve fisheries management choices in such a way as to better ensure that ecosystem considerations, like the needs of predators, are taken into consideration in setting catch levels. It appears that, upon recognizing the glaring deficiency in its draft, NMFS decided to select the most extreme version of a protective alternative rather than giving careful thought to a useful evaluation of potential changes in management. NMFS' choice is both disappointing and insufficient.

    Response: Alternative 6 was designed to be responsive to the request in public comment on the draft EIS for a more protective alternative than Alternative 1. Some commenters suggested that NMFS consider specific measures that were intended to be more protective than the management measures implemented under Alternative 1, other commenters did not provide specific measures. As discussed in EIS Section 2.3, after careful analysis, NMFS found that many of the specific measures suggested in public comments were not more conservative than Alternative 1. Some of the specific measures suggested in public comments were already incorporated in the alternatives or in other ongoing NMFS actions. The remaining specific measures proposed in public comment were not a reasonable alternative to the proposed action. The proposed action is a suite of Steller sea lion protection measures. Steller sea lion protection measures control the location, gear type, and timing of fishing for Atka mackerel, pollock, and Pacific cod in the Aleutian Islands. A number of the specific measures proposed in public comments would not control the location, gear type, and timing of fishing for Atka mackerel, pollock, and Pacific cod in the Aleutian Islands (see EIS Section 2.3 for more detail). And, as explained in the response to Comment 59, NMFS is already working to ensure that ecosystem considerations, like the needs of predators, are taken into consideration in setting catch levels.

    NMFS carefully designed Alternative 6 to be a Steller sea lion protection measure that is more conservative than Alternative 1 and provides for effects that can be analyzed and compared to the other alternatives. Further, Alternative 6 does not close the action area to all fishing. As explained in EIS Section 2.1.6, Alternative 6 would prohibit retention of Atka mackerel, Pacific cod, and pollock in the Aleutian Islands, species identified as important prey species for Steller sea lions. Vessels would be prohibited from directed fishing for these species and prohibited from retaining any incidental catch of these species while directed fishing for other groundfish targets (e.g., Pacific ocean perch).

    Comment 50: NMFS' addition of Alternative 6 to the final EIS required a supplemental draft EIS because Alternative 6 is outside of the range of alternatives analyzed in the draft EIS. The most environmentally protective alternative included in the draft EIS was Alternative 1, while Alternatives 2, 3, 4, and 5 all allow more fishing. The draft EIS specifically stated that alternatives more protective than the status quo were not analyzed. Alternative 6 was specifically added to the final EIS to have an alternative that is more restrictive of fishing relative to Alternative 1 for analysis and comparison with the less restrictive protection measures under the other alternatives. Because Alternative 6 represents an outlier alternative that may not be offered for the first time in the EIS, NMFS must refrain from issuing a record of decision and issue a supplemental draft EIS—subject to public notice and comment—instead. In addition to Alternative 6, the supplemental draft EIS should analyze the other feasible conservation alternatives identified in public comments.

    Response: A supplement to an environmental impact statement is required “if: (i) The agency makes substantial changes in the proposed action that are relevant to environmental concerns; or (ii) There are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts” (40 CFR 1502.9(c)). The addition of Alternative 6 in the final EIS did not make substantial changes in the proposed action that were relevant to environmental concerns and did not provide significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts. Therefore NMFS was not required to supplement the draft EIS before releasing the final EIS and record of decision. Additionally, EIS Section 2.3 analyzes the conservation alternatives identified in public comments and explains why they were not reasonable.

    Comment 51: NMFS should rescind the EIS and prepare a new draft EIS that—consistent with NMFS' acknowledged obligations pursuant to NEPA, ESA, and the Magnuson-Stevens Act—includes a lawful statement of purpose and need, evaluates a full range of alternatives, objectively accounts for the full context and severity of the potential indirect effects of fishing on Steller sea lions, and transparently addresses dissenting scientific views within NMFS.

    Response: NMFS disagrees. NMFS has determined that the EIS is consistent with NEPA, the ESA, and the Magnuson-Stevens Act. The EIS includes a lawful statement of purpose and need (Section 1.3), evaluates a full range of alternatives (Chapter 2), objectively accounts for the full context and severity of the potential indirect effects of fishing on Steller sea lions (Chapter 5), and transparently addresses dissenting scientific views (Executive Summary, Chapter 1, and Chapter 5).Start Printed Page 70306

    Comment 52: NMFS made a passing attempt in the EIS at exploring the effects of an alternative harvest strategy for Atka mackerel on the Atka mackerel population. In concert with explicitly considering current predation mortality and the projected predation mortality from an increasing Steller sea lion population, such a model could begin to formally address ecosystem concerns. NMFS, however, failed to analyze such an alternative model structure.

    Response: As explained in EIS Section 2.3, evaluations of alternative stock assessment model structures and alternative harvest strategies do not meet the purpose and need for this action to implement Steller sea lion protection measures. The commenter's recommendation addresses the stock assessment process used by the Council and NMFS on an annual basis. NMFS conducts this work through the annual harvest specification process. That process is explained in the final rule that implements the annual final 2014 and 2015 harvest specifications (79 FR 12108, March 4, 2014).

    NMFS notes that the process for modifying fishery stock assessment models for Atka mackerel or any other groundfish species does not require rulemaking to develop, analyze, or implement alternative model structures. NMFS continues to develop techniques to evaluate the effects of the groundfish fisheries and management system on the ecosystem. NMFS continues to develop state-of-the-art ecosystem models with a goal to better evaluate risks to ecosystem given current and alternative harvest strategies. This scientific work is ongoing and, while important to groundfish fishery management, it is outside the scope of this rulemaking process. This action implements regulations to restrict vessels from fishing in specific areas and at specific times to limit competition of prey resources with Steller sea lions.

    Comment 53: NMFS should not consider only changes to the restrictions on fishing times and areas under the Steller sea lion protection measures. Any of the guidelines that affect fisheries that compete with Steller sea lions should be subject to review in this process. Public comments on the draft EIS suggested measures intended to provide a starting place from which NMFS could construct such an alternative. NMFS incorrectly rejected any ideas designed to alter or affect the harvest strategy in the Aleutian Islands.

    Response: NMFS has considered more than changes to the time and area measures. NMFS also considered a range of harvest limits. This final rule implements harvest limits for the Atka mackerel, Pacific cod, and pollock fisheries in addition to the season and area closures.

    In EIS Section 2.3, NMFS analyzed the ideas suggested in public comments to change the harvest strategy in the Aleutian Islands. NMFS explains that changes to the harvest strategy are outside the scope of this action and do not meet the purpose and need. The revisions to the harvest strategy proposed in public comment would not provide the necessary protections for Steller sea lions. Revisions to the harvest strategy recommended by the commenter do not meet the purpose and need for the action because they do not provide additional protections for Steller sea lions by reducing potential competition between Steller sea lions and fishery harvests when and where Steller sea lions forage. As explained throughout the EIS, the Steller sea lion protection measures are a suite of measures that regulates fishing activity by applying seasons, area closures, and harvest limits all with the goal of reducing potential fishery competition for Steller sea lion prey when and where Steller sea lions forage.

    NMFS is continually striving to understand the prey requirements of Steller sea lions and minimize potential competition at the finest scale possible with the best available information. Further, NMFS does not change stock assessment methods or harvest strategy through regulations. The Council and NMFS are continually assessing the scientific methods used for stock assessment. NMFS uses the best available scientific information to improve stock assessment methods and evaluate ecosystem considerations. An example of this is the decision to establish separate ABCs and TACs for Pacific cod in the Bering Sea and Aleutian Islands. Starting in January 2014, as recommended by the Council and based on genetic and other morphological evidence, NMFS separated Aleutian Islands Pacific cod from the Bering Sea Pacific cod stock. This results in lower maximum potential catches in the Aleutian Islands due to the establishment of separate OFLs, ABCs, and TACs in the Bering Sea and Aleutian Islands. With this split, the TAC in the Aleutian Islands results in a maximum harvest of roughly half the previous average harvest rate in the Aleutian Islands prior to the split, and lower fishing mortality rates, than those proposed by the commenter. The impacts of the implementation of an Aleutian Islands Pacific cod TAC are discussed in EIS Section 3.3, however, that action was separate from the action implemented in this final rule.

    Comment 54: In Section 2.3.2 of the EIS, NMFS incorrectly concludes that predator needs are fully incorporated into the existing process for setting catch levels. This statement is belied by jeopardy and adverse modification conclusions reached in NMFS' previous biological opinions for Steller sea lions—if the needs of Steller sea lions were properly accounted for in setting catch levels, then that catch would not result in jeopardy to the population or adverse modification of critical habitat. NMFS' insistence that the needs of predator are incorporated in the harvest specifications process is contrary to NMFS' own identified gaps in applying ecosystem-based fisheries management. There is currently no explicit accounting of predation mortality in the stock assessments for Atka mackerel, Aleutian Islands pollock, or Aleutian Islands Pacific cod. The natural mortality parameters used in these models are constant, or change little from year to year. The parameters used have little relation to trends in predator populations or the actual level of predation. In contrast, when predation mortality is explicitly considered in prey population models, the biological reference points generated are generally more conservative (i.e., recommend higher standing biomass). Moreover, development of a process through which to account explicitly for predator needs was considered in the draft 2010 FMP BiOp. This draft also called for a process to address the dietary needs of sea lions and other predators as fishing levels are set. Accounting fully for predator needs in setting catch levels would be an important step toward ecosystem-based management, and this NEPA process is an appropriate venue through which to do so explicitly.

    Response: NMFS disagrees with the comment's characterization of the EIS. In Section 2.3.2, NMFS explains that the needs of predators are incorporated in the harvest specifications process by applying natural mortality (including predation) for a target species stock assessment. Additionally, NMFS scientists are evaluating the current groundfish management system relative to the impact on the ecosystem. NMFS scientists have developed multispecies models that explicitly incorporate predator/prey relationships. Results from these models have generally concluded that the assumptions used for harvest limit recommendations under our existing stock assessment process are generally conservative.

    NMFS scientists have compared using a constant, time-invariant natural mortality in stock assessment models to using models in which natural mortality Start Printed Page 70307includes time- (and age-) varying estimates of predation mortality (Hollowed, A. B., J. N. Ianelli, and P. A. Livingston. 2000. Including predation mortality in stock assessments: A case study involving Gulf of Alaska walleye pollock. ICES Journal of Marine Science, 57, pp. 279-293). These and other studies indicate that estimates are uncertain and in such cases, using a natural mortality that is more conservative is more risk averse (Clark, W.G. 1999. Effects of an erroneous natural mortality rate on a simple age-structured model. Can. J. Fish. Aquat. Sci. 56:1721-1731).

    NMFS' ongoing scientific work to evaluate predator/prey relationships and develop multispecies models is separate from the rulemaking process NMFS conducted for this final rule to restrict vessels from fishing in specific areas and at specific times to limit potential competition with Steller sea lions.

    NMFS disagrees with the comment's characterization of the previous biological opinions. As explained in the EIS and all previous BiOps, NMFS' concern has been the potential competition of fisheries with Steller sea lions for prey when and where Steller sea lions forage. NMFS has imposed Steller sea lion protection measures that include seasonal restrictions, area closures, and catch limits with the goal of reducing the potential of fisheries to affect Steller sea lion foraging opportunities. These are coupled with fine-scale fishery evaluations following the surgical approach outlined in the 2008 Recovery Plan, the 2010 FMP BiOp, the 2014 BiOp, and the latest information regarding sea lion behavior and prey resources as described in EIS Chapters 3 and 5. Implementing the Steller sea lion protection measures that regulate fishing activity, as is being done by this final rule, is a separate action from NMFS' ongoing scientific work to understand and model predator/prey relationships and evaluate the impacts of fish harvest on the ecosystem using the latest scientific techniques.

    Comments on Additional Issues

    Comment 55: The Council and NMFS have taken significant steps to move toward holistic, ecosystem-based management. Continue that momentum by seeking a durable, consensus-based resolution to controversies about the interaction between industrial fisheries and sea lions. Instead, the Council has suggested and NMFS has adopted new measures certain to continue the controversy and poor management. Those choices are disappointing and potentially illegal.

    Response: The Council and NMFS seek consensus-based resolutions where possible, and when such resolutions are consistent with legal requirements. However, the Council and NMFS recognize that controversial issues such as the potential interaction between commercial fisheries and Steller sea lions—a subject of substantial scientific debate (see EIS Executive Summary)—are rarely resolved by consensus. Furthermore, Section 302(e) of the Magnuson-Stevens Act requires that all Council decisions be made by majority vote, recognizing the fact that not all controversies or policy choices can be resolved by consensus.

    The fact that NMFS is implementing regulations that the commenter disagrees with is not a basis to conclude that they represent poor management or are illegal.

    Comment 56: Please do not allow any more fishing that would in any way impact Steller sea lions. We humans take too much as it is. And we have alternatives like a vegan diet, as well as eco-tourism to make money off these sea lions over and over again by charging people to observe them. Keep the current fishing restrictions in place, and keep in mind that the population of these sea lions has not recovered. Show some backbone for your convictions and do not cave in to fishing interests' pressure.

    Response: NMFS acknowledges the comment.

    Comment 57: Closing areas to commercial fishing and enforcing these closures is the only way to protect Steller sea lions from the firearms of commercial fishermen.

    Response: NMFS has worked closely with the Council and the State of Alaska to eliminate illegal shooting of Steller sea lions. EIS Section 5.3.4 provides additional information on the occurrence of illegal shooting. Closing commercial fishing is not required to eliminate illegal shooting.

    Comment 58: As fishermen in these waters, we are appalled that some public comments indicate fishermen evoke actions intended to harm Steller sea lions. At no time do we ever harass marine mammals.

    Response: NMFS acknowledges the comment.

    Comment 59: Are you telling the public to go to an inaccurate site in your Federal Register notice to stifle public comment?

    Response: NMFS encourages public comment. NMFS checked all of the Web sites in the Federal Register notice for the proposed rule (79 FR 37486) and they are all correct, including the instructions for submitting comments on http://www.regulations.gov. Additionally, the Federal Register notice provides instructions for the public to mail written comments to the Sustainable Fisheries Division, NMFS Alaska Region.

    Classification

    Pursuant to section 305(d) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this final rule is consistent with the FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.

    This final rule has been determined to be not significant for the purposes of Executive Order (E.O.) 12866.

    Formal consultation under section 7 of the ESA was completed for this action. On April 2, 2014, NMFS issued a biological opinion (2014 BiOp) on the action. The 2014 BiOp found that the implementation of the action and supporting research described in Chapter 11 of the EIS were not likely to jeopardize the continued existence of endangered Steller sea lions or result in the destruction or adverse modification of their critical habitat.

    NMFS prepared a final EIS for this action. The final EIS was filed with the Environmental Protection Agency on May 16, 2014. A notice of availability was published on May 23, 2014 (79 FR 29759). In approving this action, NMFS issued a Record of Decision identifying the selected alternative. A copy of the Record of Decision is available from NMFS (see ADDRESSES).

    Pursuant to Executive Order 13175, NMFS mailed letters to approximately 660 Alaska tribal governments, Alaska Native Claims Settlement Act (ANCSA) corporations, and related organizations providing information about the EIS and soliciting consultation and coordination with interested tribal governments and ANCSA corporations. NMFS received no comments on the EIS from tribal governments or ANCSA corporation representatives. Section 1.7 of the EIS provides more detail on NMFS' outreach with Alaska tribal governments and ANCSA corporations (see ADDRESSES). NMFS received one comment on the proposed rule from Kawerak, Inc., a regional non-profit tribal consortium of the Bering Strait Region. NMFS summarized and responded to this comment under Response to Public Comments, above (see Comment 12). NMFS received one comment from Aleut Enterprise, LLC, a wholly owned subsidiary of the Aleut Corporation. NMFS summarized and responded to this comment under Start Printed Page 70308Response to Public Comments, above (see Comments 10, 11, 43, and 44).

    Final Regulatory Flexibility Analysis

    This final regulatory flexibility analysis (FRFA) incorporates the IRFA, a summary of the significant issues raised by the public comments in response to the IRFA, and NMFS responses to those comments, and a summary of the analyses completed to support the action.

    Section 604 of the Regulatory Flexibility Act requires that, when an agency promulgates a final rule under section 553 of Title 5 of the U.S. Code, after being required by that section or any other law to publish a general notice of proposed rulemaking, the agency shall prepare a FRFA. Section 604 describes the required contents of a FRFA: (1) A statement of the need for, and objectives of, the rule; (2) a statement of the significant issues raised by the public comments in response to the initial regulatory flexibility analysis, a statement of the assessment of the agency of such issues, and a statement of any changes made in the proposed rule as a result of such comments; (3) the response of the agency to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA) in response to the proposed rule, and a detailed statement of any change made to the proposed rule in the final rule as a result of the comments; (4) a description of and an estimate of the number of small entities to which the rule will apply or an explanation of why no such estimate is available; (5) a description of the projected reporting, recordkeeping and other compliance requirements of the rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record; and (6) a description of the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected.

    Need for, and Objectives of, the Rule

    A statement of the need for, and objectives of, the rule is contained on pages 4 through 10 of the preamble to this final rule and is not repeated here.

    Public and Chief Counsel for Advocacy Comments on the Proposed Rule

    NMFS published a proposed rule on July 1, 2014 (79 FR 37486). An initial regulatory flexibility analysis (IRFA) was prepared and summarized in the “Classification” section of the preamble to the proposed rule. The comment period closed on August 15, 2014. NMFS received 17 letters of public comment on the proposed rule. No comments were received on the IRFA, or on the small entity impacts of this rule. The Chief Counsel for Advocacy of the SBA did not file any comments on the proposed rule.

    Number and Description of Small Entities Regulated by the Action

    The small entity estimates reported in the IRFA for this action have been reviewed for compliance with subsequent inflation adjustments to SBA thresholds for identifying small entities (79 FR 33647, June 12, 2014). The change in thresholds did not lead to changes in the small entity estimates.

    NMFS identified three groups of entities that would be directly regulated by this action: (1) Federally-permitted vessels that harvest Atka mackerel, Pacific cod, and pollock in the Aleutian Islands; (2) CDQ groups that receive an allocation of Atka mackerel, Pacific cod, and pollock in the Aleutian Islands; and (3) the Aleut Corporation, which receives an allocation of pollock in the Aleutian Islands. The following paragraphs provide estimates of the numbers of small entities in these three categories that are directly regulated by this action. NMFS estimates that 26 vessels, and the six CDQ groups, are directly regulated small entities.

    NMFS identified 51 vessels active in directed fisheries for Atka mackerel or Pacific cod in 2010 that would have been directly regulated by this action. Twelve vessels—one catcher/processor and 11 catcher vessels—were believed to be small entities. One of these vessels was a pot catcher/processor, and the remaining vessels were trawl catcher vessels. The estimated average gross revenue from the identified small entities, in 2012 (the most recent year with complete revenue information), was about $1.4 million. Note that firm revenues may have been larger, if these firms had revenues from sources other than the identified vessels. If this was the case, average gross revenues for small entities may be underestimated or the number of small entities might be overestimated, and the direction of the impact on average revenue for the remaining vessels would be unknown. The remaining 39 vessels that directly targeted Atka mackerel, Pacific cod, or pollock in the Aleutian Islands in 2010 were classified as large entities since their gross revenues, or their gross revenues and those of their affiliated entities, exceeded the SBA threshold of $20.5 million. The IRFA details the process used to determine if a vessel was affiliated with other businesses and is not repeated here.

    In addition to vessels in directed fisheries, NMFS identified 20 vessels with incidental catches of Atka mackerel or Pacific cod in Area 543 that are directly regulated by this action. Alternative 1, the status quo, prohibits retention of Atka mackerel or Pacific cod in Area 543. This comprehensive prohibition on retention is relaxed under this action, the preferred alternative. This prohibition directly regulates vessels that would otherwise have retained these species in Area 543. Thus, the preferred alternative directly regulates these vessels in this area. Only small numbers of vessels took incidental catches of these species in Area 543 during the baseline years. Over the entire baseline period, from 2004 through 2010, only six separate fixed gear catcher/processors or trawl catcher vessels were identified with incidental catches of Atka mackerel and/or Pacific cod from 2004 through 2010. None of these is believed to be a small entity based on a knowledge of vessel affiliations. Fourteen fixed gear catcher vessels had incidental catches during the same years. All of these are considered to be small entities based on a review of their gross revenues from all sources, and their affiliations. None of these vessels fished all years; the median number of years fishing in Area 543 for a vessel in this group during the baseline period was two years. The aggregate fixed gear catcher vessel revenues from Area 543 for these vessels are estimated to average about $11,300 a year in real 2012 dollars, during the baseline years (2004 through 2010). Average revenues per vessel-year from this source are estimated to be about $2,200.

    Through the CDQ program, the Council and NMFS allocate a portion of the BSAI groundfish TACs, and apportion prohibited species catch limits for Pacific halibut, Pacific salmon, and several crab species, to 65 eligible Western Alaska communities. These communities work through six non-profit CDQ groups, and are required to use the net proceeds from the CDQ allocations to start or support activities that will result in ongoing, regionally based, commercial fishery or related businesses. The six CDQ groups receive allocations through the specifications Start Printed Page 70309process, and are directly regulated by this action, but the 65 communities are not directly regulated. Because they are explicitly defined as small nonprofit entities within the Regulatory Flexibility Act, the six CDQ groups are considered small entities for purposes of this analysis.

    The Aleut Corporation receives all of the pollock directed fishing allocation in Areas 541, 542, and 543. The Aleut Corporation is an ANCSA corporation, and is a holding company evaluated according to the SBA criteria at 13 CFR 121.201, using a $7 million gross annual receipts threshold for “Offices of Other Holding Companies” (NAICS code 551112). As noted, in Table 8-39 of Chapter 8 of the EIS, Aleut Corporation revenues exceed this threshold (gross revenues were about $159 million in 2010), and the Aleut Corporation is considered to be a large entity for purposes of this analysis.

    Recordkeeping and Reporting Requirements

    This action would implement new recordkeeping and reporting requirements by requiring an increase in VMS polling rates for all trawl vessels named on a Federal Fishing Permit under § 679.4(b) and fishing for groundfish that is deducted or required to be deducted from a Federal groundfish TAC in the Aleutian Islands subarea. Some operations may have to upgrade existing VMS equipment, and all will have to increase transmission rates. The owner of the trawl vessel must ensure NMFS receives the transmission from the VMS unit at least 10 times per hour. This measure does not apply to fixed gear vessels, thus, from the discussion above, it may affect as many as 11 small trawl catcher vessel entities. The costs of this requirement are discussed in the Collection-of-Information section of this final rule, and are incorporated by reference here. In summary, all trawl catcher vessels will incur additional transmission costs estimated to be about $400 a year, and some may be required to upgrade their VMS equipment at a cost estimated to be about $3,500.

    Description of Significant Alternatives to the Final Action That Minimize Adverse Impacts on Small Entities

    A FRFA must describe the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency that affect the impact on small entities was rejected.

    At its October 2013 meeting, the Council adopted Alternative 5. This alternative is described in detail in Chapter 2 of the EIS. Section 8.13.1 of the EIS and Section 1.13.1 of the Regulatory Impact Review (RIR) provide an analysis of Alternative 5, while Section 8.20 of the EIS, and Section 1.14 of the RIR compare Alternative 5 to the other alternatives for affected fleets. This FRFA describes the impacts of Alternative 5 relative to other alternatives for Atka mackerel, Pacific cod, and pollock fisheries.

    The elements of Alternative 5 that regulate the Atka mackerel fishery are slightly more restrictive than those in Alternatives 3 and 4, and are less restrictive than those in Alternatives 1, 2, and 6.

    For the Atka mackerel fishery, Alternative 5 is most comparable to Alternative 3. Alternatives 3 and 5 are the same in Areas 541 and 542. They differ in Area 543 in that Alternative 3 closes certain waters around Buldir Island explicitly, while Alternative 5 does not. However, Alternative 5 sets an Area 543 TAC limit equal to 65 percent of ABC and that limit is not included in Alternative 3. On balance, from information during the baseline years, Alternative 5 may be somewhat more restrictive in Area 543 than Alternative 3. However, the Alternative 5 TAC limit in Area 543 is included to prevent excessive harvest of Atka mackerel prey resources near Steller sea lion haulouts and rookeries.

    For the Atka mackerel fishery, Alternative 4 is also less restrictive than Alternative 5. However, the Council did not recommend and NMFS did not select Alternative 4 as its preferred alternative. Alternative 4 measures were found to result in jeopardy and adverse modification of critical habitat for the Steller sea lions in the 2010 FMP BiOp. Alternative 5 provides more protection for Steller sea lions in Area 543, where population declines have been larger than in Areas 541 and 542. Alternative 5 was selected over other less restrictive alternatives to insure that Atka mackerel fisheries in the BSAI are not likely to jeopardize the continued existence of endangered Steller sea lions or destroy or adversely modify their designated critical habitat.

    The elements of Alternative 5 that regulate the Aleutian Islands Pacific cod fishery are slightly more restrictive than those in Alternative 4, and are less restrictive than those in Alternatives 1, 2, 3, and 6. For Pacific cod, Alternative 5 is most closely comparable to Alternative 4. However, Alternative 4 may be less restrictive to small entities, since Alternative 5 adds a catch limit for Pacific cod in Area 543 that limits area catch in proportion to the annual stock assessment. Alternative 5 was selected over the less restrictive Alternative 4 to insure that Pacific cod fisheries in the BSAI are not likely to jeopardize the continued existence of endangered Steller sea lions or destroy or adversely modify their designated critical habitat. NMFS notes that Alternative 5 was selected with the clear understanding that the Aleutian Islands Pacific cod will be managed as a separate stock from the Bering Sea Pacific cod, which limits the amount of catch from the Aleutian Islands relative to the baseline harvests analyzed.

    The elements of Alternative 5 that regulate the Aleutian Islands pollock fishery are slightly more restrictive than those in Alternatives 3 and 4 (Alternatives 3 and 4 are identical in their management of the pollock fishery). Alternative 5 differs from Alternatives 3 and 4 only in that it includes management area specific A season catch limits, and increases critical habitat closures in Area 542. The A season catch limits are 5 percent of the ABC in Area 543, 15 percent of the ABC in Area 542, and 30 percent of the ABC in Area 543. Alternative 5 is less restrictive than Alternatives 1, 2, and 6.

    The area constraints on pollock fishing contained in Alternative 5 are not present in Alternatives 3 and 4. Thus, those alternatives may be somewhat less restrictive than Alternative 5. Management area limits were introduced to provide control over potential harvests in a new pollock fishery of unknown potential and, thus, to provide more protection for Steller sea lions. These restrictions are more stringent in the western areas, where Steller sea lions are not doing as well as in the east (this is consistent with the performance standards in the 2010 FMP BiOp). The extension of the 542 closure areas, west of 178° W longitude, to 20 nm under Alternative 5, may also contribute to making this alternative more restrictive than Alternatives 3 and 4. The extension was also included in Alternative 5 to provide more protection to Steller sea lion prey species occurring near rookeries and haul-outs that have experienced relatively greater declines in populations. Alternative 5 was selected over other less restrictive alternatives to insure that pollock fisheries in the BSAI are not likely to jeopardize the continued existence of endangered Steller sea lions or destroy or adversely modify their designated critical habitat.Start Printed Page 70310

    Small Entity Compliance Guide

    NMFS has posted a small entity compliance guide on the NMFS Alaska Region Web site (http://alaskafisheries.noaa.gov/​sustainablefisheries/​sslpm/​) to satisfy the Small Business Regulatory Enforcement Fairness Act of 1996, which requires a plain language guide to assist small entities in complying with this rule. Contact NMFS to request a hard copy of the guide (see ADDRESSES).

    Collection-of-Information Requirements

    This rule contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA) and which have been approved by the Office of Management and Budget (OMB). The collections of information are listed below by OMB control number.

    OMB Control No. 0648-0206

    The Federal Fisheries Permit (FFP) is mentioned in the regulatory text of this rule, but no changes are made to the application form.

    OMB Control No. 0648-0445

    Public reporting burden is estimated to average 4 hours per response for the Vessel Monitoring System (VMS) operation (includes installation, transmission, and maintenance). Estimates of burden include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments on these or any other aspects of the collection of information to NMFS at the ADDRESSES above, and email to OIRA Submission@omb.eop.gov, or fax to 202-395-5806.

    This rule increases the number of transmissions or VMS polling rate, from 2 per hour to 10 per hour when a vessel is using trawl gear to fish in the Aleutian Islands; however, VMS transmissions are not counted as burden, because they are automatic. Some vessels may incur additional operating costs due to the increase in the VMS polling rate, or they may have to replace existing VMS units to meet the polling rate and reliability requirements. NMFS estimates that the increase in the polling rate will increase VMS costs by about $400 per year for trawl catcher vessels and catcher/processors operating in the Aleutian Islands, except for trawl catcher/processors targeting Atka mackerel. Trawl catcher/processors targeting Atka mackerel are expected to incur costs of about $1,200 per year; however, these are all large entities. Although all vessels are required to have an FFP, and all vessels fishing in the Aleutian Islands are required to have and operate VMS, some of the impacted vessels may have to replace existing VMS units to meet the polling rate and reliability requirements. While NMFS is unable to estimate the number of entities that may be required to replace VMS units to provide the required unit reliability, the estimated cost for an additional unit is about $3,500 (including installation).

    Estimates of burden include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments on these or any other aspects of the collection of information to NMFS at the ADDRESSES above, and email to OIRA Submission@omb.eop.gov, or fax to 202-395-5806.

    Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number. All currently approved NOAA collections of information may be viewed at: http://www.cio.noaa.gov/​services_​programs/​prasubs.html.

    Start List of Subjects

    List of Subjects

    15 CFR Part 902

    • Reporting and recordkeeping requirements

    50 CFR Part 679

    • Alaska
    • Fisheries
    • Reporting and recordkeeping requirements
    End List of Subjects Start Signature

    Dated: November 18, 2014.

    Eileen Sobeck,

    Assistant Administrator for Fisheries, National Marine Fisheries Service.

    End Signature

    For the reasons set out in the preamble, NMFS amends 15 CFR part 902 and 50 CFR part 679 as follows:

    Title 15—Commerce and Foreign Trade

    Start Part

    PART 902—NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS

    End Part Start Amendment Part

    1. The authority citation for part 902 continues to read as follows:

    End Amendment Part Start Authority

    Authority: 44 U.S.C. 3501 et seq.

    End Authority Start Amendment Part

    2. In § 902.1, in the table in paragraph (b), under the entry “50 CFR”:

    End Amendment Part Start Amendment Part

    a. Add an entry in alphanumeric order for “679.22(a)”; and

    End Amendment Part Start Amendment Part

    b. Revise the entry for 679.28(f).

    End Amendment Part

    The addition and revision read as follows:

    OMB control numbers assigned pursuant to the Paperwork Reduction Act.
    * * * * *

    (b) * * *

    CFR part or section where the information collection requirement is locatedCurrent OMB control number (all numbers begin with 0648-)
     
    *    *    *    *    *
    50 CFR:
     
    *    *    *    *    *
    679.22(a)-0206
     
    *    *    *    *    *
    679.28(f)-0206, -0445
     
    *    *    *    *    *

    Title 50—Wildlife and Fisheries

    Start Part

    PART 679—FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

    End Part Start Amendment Part

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

    End Amendment Part Start Authority

    Authority: 16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.;Pub. L. 108-447.

    End Authority Start Amendment Part

    4. In § 679.7:

    End Amendment Part Start Amendment Part

    a. Remove paragraphs (a)(19), (a)(23), and (a)(25);

    End Amendment Part Start Amendment Part

    b. Redesignate paragraph (a)(24) as paragraph (a)(19); and

    End Amendment Part Start Amendment Part

    c. Revise the newly redesignated paragraph (a)(19).

    End Amendment Part

    The revisions read as follows:

    Prohibitions.

    (a) * * *

    (19) Atka mackerel directed fishing in the Bering Sea reporting areas. Conduct directed fishing for Atka mackerel in the Bering Sea subarea and adjacent State waters with a vessel required to be Federally permitted.

    * * * * *
    Start Amendment Part

    5. In § 679.20:

    End Amendment Part Start Amendment Part

    a. Add paragraphs (a)(5)(iii)(B)( 6), and (a)(7)(v);

    End Amendment Part Start Amendment Part

    b. Revise paragraph (a)(8)(ii)(C); and

    End Amendment Part Start Amendment Part

    c. Add paragraphs (a)(8)(ii)(D) and (e)(3)(v).

    End Amendment Part

    The additions and revisions read as follows:

    General limitations.

    (a) * * *

    (5) * * *

    (iii) * * *

    (B) * * *

    (6) Pollock harvest limitations. Pollock harvests during the A season as defined at § 679.23(e)(2) are limited to:

    (i) No more than 5 percent of the Aleutian Islands pollock ABC in Area 543.Start Printed Page 70311

    (ii) No more than 15 percent of the Aleutian Islands pollock ABC in Area 542.

    (iii) No more than 30 percent of the Aleutian Islands pollock ABC in Area 541.

    * * * * *

    (7) * * *

    (v) ITAC allocation to the Amendment 80 sector. A percentage of the Pacific cod TAC, after subtraction of the CDQ reserve, will be allocated as ITAC to the Amendment 80 sector as described in Table 33 to this part. Separate allocations for each Amendment 80 cooperative and the Amendment 80 limited access fishery are described under § 679.91. The allocation of Pacific cod to the Amendment 80 sector will be further divided into seasonal apportionments as described under paragraph (a)(7)(iv)(A)(1)(ii) of this section.

    (A) Use of seasonal apportionments by Amendment 80 cooperatives. (1) The amount of Pacific cod listed on a CQ permit that is assigned for use in the A season may be used in the B or C season.

    (2) The amount of Pacific cod that is listed on a CQ permit that is assigned for use in the B season may not be used in the A season.

    (3) The amount of Pacific cod listed on a CQ permit that is assigned for use in the C season may not be used in the A or B seasons.

    (B) Harvest of seasonal apportionments in the Amendment 80 limited access fishery. (1) Pacific cod ITAC assigned for harvest by the Amendment 80 limited access fishery in the A season may be harvested in the B or C seasons.

    (2) Pacific cod ITAC assigned for harvest by the Amendment 80 limited access fishery in the B season may not be harvested in the A season.

    (3) Pacific cod ITAC assigned for harvest by the Amendment 80 limited access fishery in the C season may not be harvested in the A or B seasons.

    (vi) ITAC rollover to Amendment 80 cooperatives. If during a fishing year, the Regional Administrator determines that a portion of the Pacific cod TAC is unlikely to be harvested and is made available for reallocation to the Amendment 80 sector according to the provisions under paragraph (a)(7)(iii) of this section, the Regional Administrator may issue inseason notification in the Federal Register that reallocates that remaining amount of Pacific cod to Amendment 80 cooperatives, according to the procedures established under § 679.91(f).

    (vii) Pacific cod harvest limitations. During the annual harvest specifications process, the Regional Administrator will establish an Area 543 Pacific cod harvest limit based on Pacific cod abundance in Area 543 as determined by the annual stock assessment process. NMFS will first subtract the State GHL Pacific cod amount from the AI Pacific cod ABC. Then NMFS will determine the harvest limit in Area 543 by multiplying the percentage of Pacific cod estimated in Area 543 by the remaining ABC for AI Pacific cod.

    (8) * * *

    (ii) * * *

    (C) Atka mackerel harvest limitations. (1) Atka mackerel catch within waters 0 nm to 20 nm of Steller sea lion sites listed in Table 6 to this part and located west of 178° W longitude is:

    (i) Limited to no more than 60 percent of the annual TACs in Areas 542 and 543; and

    (ii) Equally divided between the A and B seasons as defined at § 679.23(e)(3).

    (2) The annual TAC in Area 543 will be no more than 65 percent of the ABC in Area 543.

    (D) Any unharvested Atka mackerel A season allowance that is added to the B season is prohibited from being harvested within waters 0 nm to 20 nm of Steller sea lion sites listed in Table 6 to this part and located in Areas 541, 542, and 543.

    * * * * *

    (e) * * *

    (3) * * *

    (v) For all vessels not listed in subpart F of this section, the maximum retainable amount for Atka mackerel harvested in the Bering Sea subarea is calculated at the end of each offload and is based on the basis species harvested since the previous offload. For purposes of this paragraph, offload means the removal of any fish or fish product from the vessel that harvested the fish or fish product to any other vessel or to shore.

    * * * * *
    Start Amendment Part

    6. In § 679.22, revise paragraphs (a)(7) heading, (a)(7)(vi), (a)(8) heading, and (a)(8)(iv) to read as follows:

    End Amendment Part
    Closures.

    (a) * * *

    (7) Steller sea lion protection areas, Bering Sea reporting areas.

    * * * * *

    (vi) Atka mackerel closures. Directed fishing for Atka mackerel by vessels named on a Federal Fisheries Permit under § 679.4(b) and using trawl gear is prohibited within the Bering Sea reporting areas.

    * * * * *

    (8) Steller sea lion protection areas, Aleutian Islands reporting areas.

    * * * * *

    (iv) Pacific cod closures. Directed fishing for Pacific cod required to be deducted from the Federal TAC specified at § 679.20 by vessels named on a Federal Fisheries Permit under § 679.4(b) using trawl, hook-and-line, or pot gear is prohibited within Pacific cod no-fishing zones around selected sites. These sites and gear types are described in Table 5 of this part and its footnotes and are identified by “AI” in column 2.

    * * * * *
    Start Amendment Part

    7. In § 679.23, revise paragraphs (e)(3)(ii) and (e)(5)(ii)(C) to read as follows:

    End Amendment Part
    Seasons.
    * * * * *

    (e) * * *

    (3) * * *

    (ii) B season. From 1200 hours, A.l.t., June 10 through 1200 hours, A.l.t., December 31.

    * * * * *

    (5) * * *

    (ii) * * *

    (C) C season— (1) Catcher vessels and AFA catcher/processors. From 1200 hours, A.l.t., June 10 through 1200 hours, A.l.t., November 1.

    (2) Amendment 80 and CDQ. From 1200 hours, A.l.t., June 10 through 1200 hours, A.l.t., December 31.

    * * * * *
    Start Amendment Part

    8. In § 679.28, revise paragraph (f)(3)(i) and add paragraph (f)(7) to read as follows:

    End Amendment Part
    Equipment and operational requirements.
    * * * * *

    (f) * * *

    (3) * * *

    (i) Obtain a NMFS-approved VMS transmitter with transmission capabilities required for the areas of vessel operation and have it installed onboard your vessel in accordance with the instructions provided by NMFS. You may get a copy of the VMS installation and operation instructions from the Regional Administrator upon request.

    * * * * *

    (7) What additional requirements does an operator have if trawling in the Aleutian Islands reporting areas? Operators of vessels named on a Federal Fisheries Permit under § 679.4(b), and that are using trawl gear in the Aleutian Islands reporting areas to harvest groundfish that is required to be deducted from a Federal TAC specified at § 679.20, must set their VMS to Start Printed Page 70312transmit the vessel location at least 10 times per hour.

    * * * * *
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    9. Revise Table 4 to Part 679 to read as follows:

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    10. Revise Table 5 to Part 679 to read as follows:

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    11. Revise Table 6 to Part 679 to read as follows:

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    End Supplemental Information

    BILLING CODE 3510-22-P

    [FR Doc. 2014-27658 Filed 11-24-14; 8:45 am]

    BILLING CODE 3510-22-C

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Document Information

Effective Date:
12/26/2014
Published:
11/25/2014
Department:
National Oceanic and Atmospheric Administration
Entry Type:
Rule
Action:
Final rule.
Document Number:
2014-27658
Dates:
Effective December 26, 2014.
Pages:
70285-70338 (54 pages)
Docket Numbers:
Docket No. 140304195-4947-02
RINs:
0648-BE06: Steller Sea Lion Protection Measures for the Bering Sea and Aleutian Islands Groundfish Fisheries off Alaska
RIN Links:
https://www.federalregister.gov/regulations/0648-BE06/steller-sea-lion-protection-measures-for-the-bering-sea-and-aleutian-islands-groundfish-fisheries-of
Topics:
Alaska, Fisheries, Reporting and recordkeeping requirements
PDF File:
2014-27658.pdf
Supporting Documents:
» RECORD OF DECISION STELLER SEA LION PROTECTION MEASURES FOR GROUNDFISH FISHERIES IN THE BERING SEA AND ALEUTIAN ISLANDS MANAGEMENT AREA FINAL ENVIRONMENTAL IMPACT STATEMENT
» 2014 Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area
» 2014 Errata Biological Opinion for the Authorization of Alaska groundfish fisheries under the Proposed Revised Steller Sea Lion Protection Measures (2014 BiOp)
» 2014 Biological Opinion for the Authorization of Alaska groundfish fisheries under the Proposed Revised Steller Sea Lion Protection Measures (2014 BiOp)
» 2010 Biological Opinion on the Authorization of Groundfish Fisheries under the Fishery Management Plans (FMP BiOp)
» 2001 Biological Opinion for the Authorization of the Bering Sea and Aleutian Islands and Gulf of Alaska groundfish fisheries
» SSL 2014 RIR-IRFA May2014
» 20140500 Final Steller Sea Lion eisvol2
» 20140500 Final Steller Sea Lion EIS vol1
» 20140500 Errata Final SSL EIS
CFR: (6)
50 CFR 679.7
50 CFR 679.20
50 CFR 679.22
50 CFR 679.23
50 CFR 679.28
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