04-18958. Fisheries of the Exclusive Economic Zone Off Alaska; Removal of a Harvest Restriction for the Harvest Limit Area Atka Mackerel Fishery in the Aleutian Islands Subarea

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS issues a final rule that removes a harvest restriction on participants in the harvest limit area (HLA) Atka mackerel fishery in the Aleutian Islands subarea. The regulatory amendment allows participants assigned to an HLA fishery to harvest Atka mackerel outside of the HLA during the first HLA fishery in each of two seasons. This action allows participants to harvest Atka mackerel efficiently, reduces competition with Steller sea lions for prey species within the HLA, and does not increase competition among participants in the groundfish fisheries. This action is intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the Fishery Management Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands (FMP), and other applicable laws.

DATES:

Effective September 17, 2004.

ADDRESSES:

Copies of the Regulatory Impact Review (RIR) prepared for this action and the 2000 and 2001 Biological Opinions on the groundfish fisheries may be obtained from NMFS, Alaska Region, P.O. Box 21668, Juneau, AK 99802, Attn: Lori Durall, or from the NMFS Alaska Region website at www.fakr.noaa.gov.

FOR FURTHER INFORMATION CONTACT:

Melanie Brown, 907-586-7228 or [e-mail].

SUPPLEMENTARY INFORMATION:

The groundfish fisheries in the Exclusive Economic Zone of the Bering Sea and Aleutian Islands management area are managed under the FMP. The North Pacific Fishery Management Council prepared the FMP under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801, et seq. Regulations implementing the FMP appear at 50 CFR part 679. General regulations governing U.S. fisheries also appear at 50 CFR part 600.

Background

The western distinct population segment (DPS) of Steller sea lions has been listed as endangered under the Endangered Species Act, and critical habitat has been designated for this DPS (50 CFR 226.202). In order to protect Steller sea lions from jeopardy of extinction and their critical habitat from adverse modification from the effects of the groundfish fisheries, temporal and spatial harvest restrictions were established in regulations for the groundfish fisheries of Alaska (68 FR 204, January 2, 2003). Atka mackerel is an important prey species for Steller sea lions. Under the harvest restrictions, the harvest of Atka mackerel in the Aleutian Islands subarea is managed to control the amount of harvest over time and area. The details for managing the Atka mackerel fishery in 2004 are in the annual harvest specifications (69 FR 9242, February 27, 2004).

The regulations at 50 CFR 679.20(a)(8) establish a HLA fishery to control the removal of Atka mackerel in the HLA. The details of the HLA fishery are explained in the proposed rule for Steller sea lion protection measures (67 FR 56692, September 4, 2002). The HLA is the waters of statistical areas 542 and 543 west of 178° W longitude within 20 nautical miles seaward of sites listed in Table 6 of 50 CFR part 679 and located west of 177°57.00′ W longitude. This area includes critical habitat for Steller sea lions and additional waters around haulouts that are considered important for Steller sea lion foraging.

To reduce the amount of daily catch in the HLA by about half and to disperse the fishery over two areas, the Atka mackerel trawl fleet is divided into two groups assigned to fish in the HLA in either statistical area 542 or statistical area 543. HLA fisheries are conducted twice in each of two seasons. The current regulations at § 679.7(a)(19) and § 679.20 (a)(8)(iii) prohibit fishing for all groundfish outside the HLA, including Atka mackerel, during the first assigned HLA fishery in a season. The intent of this prohibition is to ensure participants in the HLA fishery do not switch to another groundfish fishery during these time periods and increase competition with participants in those fisheries.

This final rule allows participants in the HLA fishery to fish for Atka mackerel outside of the HLA during the first assigned HLA fishery in a season. The prohibition on fishing for groundfish species other than Atka mackerel during the first assigned HLA fishery is not affected by this final rule. This action provides the potential for additional reduction in the rate of Atka mackerel harvest in the HLA consistent with the objectives of the Steller sea lion protection measures. The final rule also provides the fishing industry with additional locations during the first HLA fisheries to Atka mackerel fishing grounds outside of critical habitat without competing with other groundfish fisheries.

The proposed rule for this action was published in the Federal Register on June 2, 2004 (69 FR 31085), with a comment period ending June 17, 2004. No changes were made from the proposed rule in the final rule.

Comments and Responses

One email comment was received regarding the proposed rule. The email contained three separate comments which are summarized and responded to below.

Comment 1: The email address for submitting comments on the proposed rule is ridiculous. It can be easily mistyped which may result in lost comments.

Response: NMFS email addresses for providing public comment on proposed actions contain text that identifies the action on which comments are being accepted. The email address for the proposed rule for this action was AM-HLA-0648-AS10. “AM” stands for Atka mackerel, “HLA” stands for harvest limit area, and “0684-AS10” is the regulatory identification number that was assigned to this action. By using these identifiers in the email address, NMFS can easily sort emails received on a number of actions that are concurrently open for public comment, ensuring public comments are attributed to the correct action. The email commenter will need to carefully type the email address, but the extra effort to type the address will ensure the comment is received and is considered for the correct action.

Comment 2: The commercial fisheries participants seem to not want fish to be available to Steller sea lions. This is abusive to Steller sea lions, and the fishery quotas should be cut.

Response: The action provides additional protection to Steller sea lions by allowing Atka mackerel fishers to harvest Atka mackerel outside of the HLA, an area important for Steller sea lion foraging. The initial request for this action came from commercial fishing industry representatives based on their concern for efficient harvest of Atka mackerel and the additional benefit that potentially could result for Steller sea lions by reducing competition for Atka mackerel in the HLA.

The Atka mackerel total allowable catch (TAC) amounts are set at conservative levels each year during the harvest specifications process, and annual harvest is dispersed over time and space as required by the specifications and fishery regulations. The process of setting the TAC amounts and controlling the spatial and temporal harvest of Atka mackerel meets the requirements of the Steller sea lion protection measures. A reduction of TAC is not needed at this time based on the abundance and condition of the Atka mackerel stock and the fishery's compliance with Steller sea lion protection measures.

Comment 3: The proposed action shows that NOAA is not acting to protect any wildlife at all.

Response: The Atka mackerel fishery is conducted in compliance with the Steller sea lion protection measures. These measures were designed to allow the harvest of Atka mackerel in a manner that does not jeopardize the continued existence or destroy or adversely modify critical habitat for the western distinct population segment of Steller sea lions. This action has the potential to provide additional protection to Steller sea lions by reducing potential competition for prey within the HLA.

Classification

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

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. No comments were received regarding this certification or the economic impact of the rule. As a result, a regulatory flexibility analysis was not required and none prepared.

List of Subjects in 50 CFR Part 679

• Alaska
• Fisheries
• Recordkeeping and reporting requirements

Dated: August 12, 2004.

Rebecca Lent,

Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

For reasons set out in the preamble, 50 CFR part 679 is amended as follows:

PART 679—FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

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

Authority: 16 U.S.C. 773 et seq., 1801 et seq., and 3631 et seq.; 16 U.S.C. 1540(f); Pub. L. 105-277, Title II of Division C; Pub L. 106-31, Sec. 3027; and Pub. L.106-554, Sec. 209.

2. In § 679.7, paragraph (a)(19) is revised to read as follows:

§ 679.7

Prohibitions.

* * * * *

(a) * * *

(19) Atka Mackerel HLA Groundfish Prohibition. For vessels registered for an Atka mackerel HLA directed fishery under § 679.20(a)(8)(iii), conduct directed fishing for groundfish, other than Atka mackerel, during the time period that the first Atka mackerel HLA directed fishery to which the vessel is assigned under § 679.20(a)(8)(iii)(B) is open.

* * * * *

3. In § 679.20, paragraph (a)(8)(iii)(F) is revised to read as follows:

§ 679.20

General limitations.

* * * * *

(a) * * *

(8) * * *

(iii) * * *

(F) Groundfish directed fishery prohibition. Vessels registering under paragraph (a)(8)(iii)(A) of this section are prohibited from participating in any groundfish directed fishery, other than Atka mackerel, during the opening of the first HLA directed fishery assigned to the vessel in a season, as specified in § 679.7(a)(19).

* * * * *