Fisheries of the Exclusive Economic Zone Off Alaska; Steller Sea Lion Protection Measures for the Groundfish Fisheries Off Alaska

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS issues a final rule to implement Steller sea lion protection measures to avoid the likelihood that the groundfish fisheries off Alaska will jeopardize the continued existence of the western distinct population segment (DPS) of Steller sea lions or adversely modify its critical habitat. These management measures will disperse fishing effort over time and area to provide protection from potential competition for important Steller sea lion prey species in waters adjacent to rookeries and important haulouts. The intended effect of this final rule is to protect the endangered western DPS of Steller sea lions, as required under the Endangered Species Act (ESA), and to conserve and manage the groundfish resources in the Bering Sea/Aleutian Islands management area (BSAI) and the Gulf of Alaska (GOA) in accordance with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

DATES:

Effective January 1, 2003.

ADDRESSES:

Copies of the environmental assessment/regulatory impact review/final regulatory flexibility analysis (EA/RIR/FRFA) for the regulatory amendment to permit an investigation of the effect of commercial fishing on Walleye pollock distribution and abundance in localized areas off the east side of Kodiak Island; the supplemental environmental impact statement on Steller Sea Lion protection measures in the Federal groundfish fisheries off Alaska (SEIS), including the 2001 biological opinion (2001 BiOp) and regulatory impact review; the November 30, 2000, biological opinion (FMP BiOp); the final regulatory flexibility analysis; and the 2002 Stock Assessment and Fisheries Evaluation report for the BSAI Groundfish Fisheries may be obtained from the National Marine Fisheries Service, Alaska Region, P.O. Box 21668, Juneau, AK 99802-1668. The SEIS is also available on the NMFS Alaska Region home page at http://www.fakr.noaa.gov. Send comments on collection-of-information requirements to NMFS, Alaska Region, and to the Office of Information and Regulatory Affairs (OIRA), Office of Management and Budget (OMB), Washington, DC 20503 (Attn: NOAA Desk Officer).

FOR FURTHER INFORMATION CONTACT:

Melanie Brown, Sustainable Fisheries Division, Alaska Region, 907-586-7228 or email at melanie.brown@noaa.gov.

SUPPLEMENTARY INFORMATION:

NMFS manages the groundfish fisheries in the exclusive economic zone off Alaska under the Fishery Management Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area and the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMPs). The North Pacific Fishery Management Council (Council) prepared the FMPs under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801, et seq. Regulations governing U.S. fisheries and implementing the FMPs appear at 50 CFR parts 600 and 679. NMFS also has management responsibility for certain threatened and endangered species, including Steller sea lions, under the ESA of 1973, 16 U.S.C. 1531, et seq., and the authority to promulgate regulations to enforce provisions of the ESA to protect such species.

Background

On November 30, 2000, NMFS issued a biological opinion on the FMPs, which determined that the pollock, Pacific cod, and Atka mackerel fisheries were likely to jeopardize the continued existence of the western DPS of Steller sea lions and to adversely modify its critical habitat. It contained a reasonable and prudent alternative (RPA) that included large fishery closure areas, harvest limits, and seasonal distribution of harvest for the pollock, Pacific cod, and Atka mackerel fisheries. Before the RPA could be implemented, the President signed Public Law 106-554 on December 21, 2000, which contained a 1-year timetable to phase in the RPA. This year provided the Council with time to develop alternative protection measures that would avoid jeopardy and adverse modification of critical habitat for Steller sea lions.

The Council appointed an RPA Committee consisting of a variety of members including commercial fishery interests, the environmental community, the Alaska Department of Fish and Game (ADF&G), and NMFS. The RPA Committee, which met numerous times throughout 2001 to evaluate the best scientific and commercial data available developed, with the assistance of NMFS expertise, recommendations for Steller sea lion protection measures for the pollock, Pacific cod, and Atka mackerel fisheries. More details on the protection measures development process and the status of Steller sea lions are contained in the preamble to the proposed rule published September 4, 2002 (67 FR 56692).

In a section 7 consultation under the ESA, NMFS issued a 2001 BiOp, which determined that the groundfish fisheries managed under the protection measures in this final rule are unlikely to jeopardize the continued existence of the western DPS of Steller sea lions or adversely modify its critical habitat. Following this determination, the Council adopted and forwarded to NMFS the protection measures contained in this final rule, which are necessary to comply with section 7(a)(2) of the ESA. These measures were implemented in 2002 by emergency interim rule (67 FR 956, January 8, 2002; amended 67 FR 21600, May 1, 2002; corrected 67 FR 45671, July 10, 2002, 67 FR 47472, July 19, 2002, and 67 FR 64315, October 18, 2002; and extended 67 FR 34860, May 16, 2002).

A detailed history on past biological opinions and court cases regarding Steller sea lions and the Alaska groundfish fisheries and a description of how the protection measures meet the national standards in the Magnuson-Stevens Act are presented in the preamble to the January 8, 2002, emergency interim rule (67 FR 956).

Summary of the 2002 Protection Measures

For more detailed descriptions by topic, fishery, and area, see the preamble to the proposed rule (67 FR 56692, September 4, 2002). Closure areas apply to vessels named on a Federal Fisheries Permit issued under § 679.4(b) in the groundfish fisheries in the BSAI and GOA reporting areas, including the State waters within those reporting areas. The following is a summary of protection measures:

1. Area closures for all groundfish fishing within 0-3 nm of 39 rookery sites. These sites are considered the most sensitive for females with pups, and the nearshore marine critical habitat is the most important to protect from interactions between groundfish fisheries and Steller sea lions.

2. Protection measures for the Atka mackerel, pollock, and Pacific cod directed fisheries in the waters off Alaska, which include the following: (a) a modified harvest control rule to prohibit directed fishing when the spawning biomass falls below 20 percent of the projected unfished spawning biomass, (b) closures within 10 or 20 nm of selected haulout and rookery sites to directed fishing for Atka mackerel, pollock, and Pacific cod in the GOA and BSAI, (c) closure of the Seguam foraging area and most of the Bogoslof area to all gear types, (d) a Vessel Monitoring System (VMS) requirement to facilitate enforcement of closed areas, (e) closure of the Chignik area to pot, trawl, and hook-and-line gears, (f) closure within 10 or 20 nm of 46 rookeries and haulouts to hook-and-line fishing for Pacific cod and 44 rookeries and haulouts to pot fishing for Pacific cod, (g) modifications to the Community Development Quota (CDQ) groundfish program, (h) revisions to the Federal Fisheries Permit requirements, and (i) changes to the catcher vessel fishing trip definition.

3. Aleutian Island subarea protection measures include the following: (a) conduct of any pollock directed fishery authorized in the Aleutian Islands subarea outside of critical habitat and apportionment to two seasons (40:60 percent), (b) Pacific cod total allowable catch (TAC) apportionment by season and gear, as well as gear specific area restrictions that alternate with the Atka mackerel fishery in critical habitat in waters west of 178° W long., (c) closure of the Seguam foraging area to pollock, Atka mackerel, and Pacific cod directed fishing by all gear types, (d) critical habitat harvest limit of 60 percent for Atka mackerel in waters west of 178° W long., (e) grouping of vessels for Atka mackerel fishing in critical habitat in waters west of 178° W long., (f) requirements for two observers for critical habitat Atka mackerel directed fishing, (g) closures of at least 0-3 nm around all haulouts for Atka mackerel and Pacific cod trawl fishing, and (h) closure to Atka mackerel critical habitat directed fishing with trawl gear east of 178° W long.

4. Bering Sea protection measures include the following: (a) two seasons (40:60 percent apportionment) for the pollock fishery with no more than 28 percent of the annual directed fishing allowance taken from the Steller sea lion conservation area (SCA) before April 1, (b) establishment of the Bering Sea Pollock Restriction Area (BSPRA) during the A season, (c) closure of the Catcher Vessel Operation Area (CVOA) to non-CDQ pollock trawl catcher/processors during the B season, (d) Pacific cod TAC apportionments by season and gear, as well as gear specific area restrictions, and (e) closure of all Bering Sea subarea critical habitat within 20 nm of rookeries and haulouts to Atka mackerel trawl fishing.

5. Gulf of Alaska protection measures include the following: (a) distribution of pollock harvest evenly among 4 seasons, (b) closure of directed fishing for pollock in areas that vary from 0-20 nm to 0-3 nm around rookeries and haulouts, (c) two seasons (60:40 percent apportionment) for Pacific cod fishing and area restrictions that are dependent on gear type and vessel size, and (d) continuation of the NMFS Chiniak Gully research project to explore the effects of commercial fisheries on pollock abundance and distribution in the GOA.

In November 2002, the State of Alaska Board of Fisheries (BOF) adopted the same protection measures for the State parallel fisheries, with two exceptions in the GOA Pacific cod pot fishery. The ADF&G should be contacted for details on Steller sea lion protection measures inside State waters. Under the Steller sea lion protection measures implemented in 2002 and in this final rule, Caton Island and Cape Barnabas are closed from 0-3 nm to Pacific cod fishing with pot gear by vessels named on a Federal Fisheries Permit issued under 50 CFR 679.4(b). The State did not adopt these closures. In October 2002, the Council recommended to open waters from 0-3 nm around Cape Barnabas and Caton Island to directed Pacific cod pot fishing by vessels named on a Federal Fisheries Permit. Opening these areas for the Pacific cod pot fishery will ensure consistency between State and Federal groundfish fisheries regulations and prevent unnecessary constraint on the Pacific cod pot fishery. NMFS will publish a notice of proposed rulemaking proposing the opening of these areas in early 2003.

Changes to the Steller Sea Lion Protection Measures From the Proposed Rule

The notice of proposed rulemaking explained that NMFS would use CDQ catch reports to determine when catch limits have been reached, when area closures should occur, and how pollock catch should be accounted for in the groundfish CDQ fisheries. See 67 FR 56698, column 1 (September 4, 2002). In order to use the CDQ catch reports to manage the CDQ fisheries as proposed, NMFS must be able to assign reported CDQ catch to the reporting vessels' target fisheries. However, the proposed rule text omitted a necessary provision specifically requiring vessels participating in CDQ fisheries to indicate their intended target species on the CDQ catch reports submitted to NMFS. This omission is corrected in this final rule at § 679.5(n)(2)(iii)(B)(4). This requirement was implemented by emergency interim rule in 2002 (67 FR 956, January 8, 2002) and was included in the Paperwork Reduction Act clearance submission prepared for the proposed rule.

The notice of proposed rulemaking specified that any vessel using pot, hook-and-line, or trawl gear in directed fisheries for Atka mackerel, Pacific cod, or pollock would have to register with NMFS and obtain endorsements for these directed fisheries on the vessel's Federal Fisheries Permit (FFP). A vessel would be prohibited from directed fishing for Atka mackerel, Pacific cod, or pollock without an endorsed FFP as described above. See 67 FR 56698, column 2, September 4, 2002. Although this language published in the proposed rule clearly indicates that the endorsement requirement and prohibition should apply only to vessels using pot, hook-and-line, or trawl gear, the proposed rule text would erroneously apply the prohibition to vessels using any type of gear. This error is corrected in this final rule at § 679.7(a)(1)(ii) by limiting this prohibition only to vessels using pot, hook-and-line, or trawl gear.

The proposed rule did not specify a first seasonal allowance of Pacific cod that would be available for harvest as an interim harvest specification at the beginning of a fishing year. Interim harvest specifications are established by regulations at § 679.20(c) to manage the annual fisheries during the period prior to the effective date of the final annual harvest specifications, which typically are not published until February or March. Pollock, Atka mackerel, and Pacific cod fisheries yield high economic value in the period from January through March because of the quality of the fish and high catch per unit of effort on spawning aggregations.

The interim specifications for pollock and Atka mackerel are specified by regulations as the first seasonal allowances for these species proposed in the annual notice of proposed harvest specifications. Although the proposed Steller sea lion protection measures explained that 60 percent of the Pacific cod TAC is allocated to the A season beginning in January each year (see 67 FR 56701, Table 2, September 4, 2002), the proposed rule text does not specifically make this first seasonal allowance of Pacific cod available for harvest under the interim specifications. This omission is corrected in the final rule at §§ 679.20(c)(2) and 679.20(c)(2)(ii)(B) by specifying that the interim harvest specification for Pacific cod fisheries will be the first seasonal allowance of Pacific cod proposed in the annual notice of proposed harvest specifications. A similar omission relating to the CDQ Atka mackerel and CDQ Pacific cod fisheries is corrected at § 679.20(c)(2)(ii)(B) in the final rule. These changes are necessary to achieve temporal dispersion of the pollock, Atka mackerel, and Pacific cod fisheries, as described in the notice of proposed rulemaking implementing the Steller sea lion protection measures.

In § 679.20(d)(4), the term “biomass” is changed to “spawning biomass” to clarify the type of biomass that is considered in the harvest control rule.

Text in § 679.22 is changed to clarify application of closure areas. The term “federally permitted vessels” is replaced with “by vessels named on a Federal Fisheries Permit issued under § 679.4(b)”. NMFS may issue a number of different permits to owners of vessels for fishing activities in the BSAI and GOA. The permits are issued to an owner, and a vessel is named on the permit. This change will identify the vessels, and the type of permitting that is affected by the Steller sea lion protection measures, thereby reducing confusion.

Footnote 4 to Table 5 is changed in the final rule from the proposed rule to clarify the location of waters closed to pot and hook-and-line directed fishing for Pacific cod. Closures for these gear types are applicable to critical habitat in waters east of 173° W long. Amlia I./East and Tanadak I. (Amlia) haulouts are located at nearly 173° W long., and Footnote 4 to Table 5 in the final rule is corrected to indicate that the 20-nautical mile (nm) closures for these haulouts applies only to waters east of 173° W long., as described in the preamble to the proposed rule.

The regulatory text in the emergency interim rule implementing 2002 Steller sea lion protection measures did not include applicability date language for Tables 21, 22, 23, and 24. Without applicability date language, the tables appeared to be a permanent regulatory amendment, which cannot be accomplished by emergency interim rule. This final rule replaces these tables with Tables 4, 5, 6, and 12. Tables 21, 22, 23, and 24 are removed to prevent confusion.

Response to Comments

NMFS received 2 letters with comments in response to the May 16, 2002, extension of the emergency interim rule (67 FR 34860) that implemented the Steller sea lion protection measures and the 2002 harvest specifications.

One letter supported the extension of the emergency interim rule to protect Steller sea lions. The writer agreed with the temporary constraint on the fisheries and was concerned about overexploitation of marine resources.

The second letter was a copy of the comments submitted by the writer regarding the January 8, 2002, emergency interim rule. Responses to these comments were provided in the preamble to the proposed rule (67 FR 56692, September 4, 2002) and no further response is needed.

One letter of comment was received before the proposed rule was published concerning the VMS requirements that this rule will implement. The letter made three points. First, VMS should only be required on vessels that had previous fishing violations. Second, VMS should not be required when vessels are engaged in fishing operations other than directed fishing for Pacific cod, Atka mackerel or pollock or when the vessel is being used for personal uses such as hunting. Third, VMS should not be required when a fishery is only open in another area. For example, if a fishery is only open in the BSAI, the vessel should not be required to use a VMS if it only fishes in the GOA.

NMFS disagrees with all three suggestions to relax VMS requirements. VMS is a tool to determine in near real time whether a violation may be occurring. If only those vessels with previous fishing violations were required to participate in a VMS program, NMFS would be unable to determine whether violations by vessels without previous violations were occurring. Using other traditional methods of enforcement, significantly less of the illegal incursions are likely to be discovered. While under most circumstances it is possible to determine from a vessel's VMS transmissions whether the vessel is fishing, it is not possible to determine what the vessel is harvesting. Enforcement would be most effective if all fishing vessels were required to operate a VMS at all times. However, in order to reduce impact on those vessels that do not engage in the Pacific cod, Atka mackerel, or pollock fisheries with pot, hook-and-line, or trawl gear, operating a VMS will only be required for those vessels that do participate in these fisheries, and only when these fisheries are open. Vessel owners intending to use their boats for purposes other than directed fishing for Pacific cod, Atka mackerel, or pollock may have NMFS remove the endorsement for those species from their FFP. Concerning the third point, the boundary between the Gulf of Alaska and the Bering Sea is long and many of the critical habitat areas straddle that boundary. If VMS were not required in both areas when a fishery is open in either area, enforcement would be unnecessarily complicated. Vessels that had turned their VMS transmitters off would be able to “hide” in the area where VMS was not required and enter the area where VMS was required making effective surveillance difficult or impossible.

NMFS received three letters with comments regarding the proposed rule for Steller sea lion protection measures. Two letters recommended that NMFS approve software-based VMS technologies that integrate electronics already on the vessel, at least as backup systems. NMFS believes that the modification of VMS standards is outside the scope of this rulemaking. First, NMFS did not propose this measure for public comment. Second, VMS standards are promulgated and amended on a national level and VMS components are approved for use off Alaska based on those standards. At this time, the software-based systems referred to in the comment do not meet the current standards. The comments from the third letter and responses are summarized below.

Comment 1. In general, the commentor disagreed that the groundfish fisheries are likely to jeopardize the continued existence of the western DPS of Steller sea lions or adversely affect its critical habitat. Little, if any, scientific evidence exists of competition between groundfish fisheries and Steller sea lions. NMFS is acting in a highly conservative and precautionary manner by imposing Steller sea lion protection measures contained in the proposed rule.

Response. The ESA requires NMFS to ensure the protection of endangered and threatened species. Sufficient evidence exists of the potential for competition for prey between the groundfish fisheries and Steller sea lions to warrant restrictions on the groundfish fisheries. The protection measures in the final rule ensure that the groundfish fisheries will be unlikely to jeopardize the continued existence of the western DPS of Steller sea lions or destroy or adversely modify its critical habitat.

Comment 2. The zonal approach of restricted fishing areas should not be changed until an evaluation is done. The year 2002 should be used as a baseline.

Response. The effectiveness of the protection measures will be evaluated before any changes are made.

Comment 3. The 2002 pup and non-pup Steller sea lion aerial survey results do not support the concept of groundfish fishery interaction leading to Steller sea lion declines. The locations of increases and decreases in counts are not consistent with areas of more or less amounts of fishing. This again demonstrates that NMFS is acting in a highly conservative and precautionary manner.

Response. NMFS is unable to draw conclusions about the effectiveness of Steller sea lion protection measures using the recent Steller sea lion survey estimate. NMFS has a number of research programs under way that are intended to provide further information about possible groundfish fishery interactions with Steller sea lions. The recently measured increase in the population may indicate the effects of protection measures implemented since 1999, natural environmental changes, or merely a statistical anomaly. In the 2002 FMP BiOp (see ADDRESSES), NMFS determined that we would need 6-10 years (roughly 3-5 surveys) to positively determine a change in the population trajectory given uncertainty in the estimates. NMFS will continue to evaluate this information as it becomes available and will use it to determine the relationship between Steller sea lion population trends and fisheries.

Comment 4. Table 5 should be corrected for five haulouts located just east of 173° West long. The closure areas for these sites only apply to those waters located east of 173° West long. and a footnote should be added to the table to indicate this.

Response. Two of the five haulouts should be corrected. Accordingly, Table 5 is changed from the proposed rule for Amlia I./East and Tanadak I. (Amlia). Footnote 4 to the Table has a sentence added indicating that the 20-nm closure for these haulouts for the hook-and-line and pot Pacific cod fisheries applies only to those waters located east of 173° West long. Other Steller sea lion sites near the 173° West long. are either rookeries with 10 or 20 nm closures or haulouts with 20 nm closures that are overlapped by the Seguam foraging area closure.

Comment 5. The word “spawning” should be inserted immediately before the term “biomass” whenever that term occurs in the regulatory text at § 679.20(d)(4) for the harvest control rule to be consistent with the preamble.

Response. The change is made in the final rule.

On October 5, 2002, the Council provided comment on the proposed rule by recommending the continued closure of the Aleutian Islands subarea to directed fishing for pollock in 2003 and the opening of this subarea in 2004 and beyond to directed fishing for pollock outside the critical habitat, apportioned seasonally (40:60 percent). The Council requested this change to allow for additional analysis of the potential effects of opening the pollock fishery. The Council recommended that NMFS analyze effects of the Aleutian Islands subarea directed pollock fishery on Steller sea lions, bycatch, and other fisheries, including cumulative effects.

The 2001 BiOp found that opening the seasonally apportioned pollock fishery outside of critical habitat in the Aleutian Islands subarea would not likely cause jeopardy or adverse modification of critical habitat for the western DPS of Steller sea lions. At this time, NMFS has no new information that would change the conclusion in the 2001 BiOp concerning the Aleutian Islands subarea directed pollock fishery.

The 2002 Stock Assessment and Fisheries Evaluation report for BSAI pollock (see ADDRESSES) provides an acceptable biological catch level for a directed pollock fishery in the Aleutian Islands subarea based on the condition of the pollock stock.

This final rule provides that any directed pollock fishery authorized in the Aleutian Islands subarea must be conducted outside of critical habitat with seasonal apportionments to temporally disperse the harvest. The pollock fishery conducted in this manner will meet the temporal and spatial dispersion of harvest required by the 2001 BiOp and FMP BiOp.

However, NMFS does acknowledge the concerns expressed by the Council regarding potential impacts of a new directed pollock fishery in the Aleutian Islands subarea on other ecosystem components and on other components of the fishing industry. As such, the 2003 harvest specifications for the BSAI will close the Aleutian Islands subarea to directed fishing for pollock and establish an Aleutian Islands subarea pollock TAC that allows only incidental catch of pollock in other Aleutian Islands subarea groundfish fisheries. NMFS will continue analysis of the potential impacts of a new Aleutian Islands subarea directed pollock fishery and will provide the Council with updated information.

Classification

The Administrator, Alaska Region, NMFS (Regional Administrator), has determined that this final rule is necessary for the conservation and management of the groundfish fisheries of the BSAI and GOA. The Regional Administrator also has determined that this final rule is consistent with the Magnuson-Stevens Act and other applicable laws. No relevant Federal rules exist that duplicate, overlap, or conflict with this action.

The Steller sea lion protection measures have been determined to be significant for purposes of Executive Order 12866.

NMFS prepared two final regulatory flexibility analyses (FRFA) that described the economic impact this final rule would have on small entities. Copies of these FRFAs are available from NMFS (see ADDRESSES). A description of the final action, the reason the action is being considered, and the legal basis for this action are contained at the beginning of this preamble.

One FRFA analyzed the Steller sea lion protection measures. NMFS received no comments on the Initial Regulatory Flexibility Analysis (IRFA). This FRFA concluded, based on the numbers of operations in 2000, that approximately 590 small entities would be directly regulated by the rule. This includes 514 catcher vessels, 33 catcher/processors, 37 shoreside processors, and 6 CDQ groups. The action will create the following new recordkeeping and reporting requirements: (a) questions will be added to the annual FFP renewal application and renewal forms to enable NMFS to identify which vessels will be directed fishing in the Pacific cod, pollock, and Atka mackerel fisheries; (b) vessels, other than jig vessels, will be required to operate a VMS while they are operating in the BSAI or GOA reporting areas when the pollock, Atka mackerel, or Pacific cod fishery they are permitted for is open; (c) an additional question asking CDQ operators to report target species has been added to each CDQ catch report; and (d) Atka mackerel vessels will have to carry additional observers when fishing in Aleutian Islands subarea critical habitat.

The Council and NMFS considered five regulatory alternatives. These were analyzed at length in the final SEIS. Three of these, Alternatives 2, 3 and 5, have adverse impacts on small entities that are greater than those in Alternative 4 (the preferred alternative). Alternative 2 dramatically reduced the TACs available to the fisheries. All three alternatives placed far more of the fisheries gross revenues “at risk” due to restrictions on fishing in closed or restricted critical habitat. These revenue reductions would have led to lower revenues for small entities in the fishery than the revenue reduction in Alternative 4. Alternative 1 had smaller adverse impacts on small entities than those in Alternative 4. However, this alternative was the “no action” alternative under which regulatory measures, which were implemented by emergency rule and designed to protect Steller sea lions, would expire (note that not all regulations to protect the Steller sea lions had been implemented by emergency rule). This alternative was not adopted because the Council found it inadequate to avoid the likelihood that the groundfish fisheries would jeopardize the continued existence of the western DPS of Steller sea lions and adversely modify its critical habitat. Two additional options to Alternative 4 might have produced a reduced impact on the small vessel fleets. The first option would have exempted certain classes of small vessels from fishing restrictions in the vicinities of Chignik, and the second one would have established a system of “gear zones” along the coast in the GOA and would have restricted larger vessels to a greater extent than small ones in the zones closer to the shore. The additional small boat exemptions for Chignik were not included because opening these areas would reduce the value as a control site for evaluating management measures and increase the likelihood for competitive interactions with Steller sea lions, and also because this site has not been economically important to the small boat fleets. The Council decided not to include the GOA “gear zone” option due to potential conflicts with Magnuson-Stevens Act national standards 8 and 10 (i.e., local community access to fishing resources and safety). However, vessel owners' costs associated with VMS purchases required under the preferred alternative will be reimbursed through a NMFS grant to the Pacific States Marine Fisheries Commission.

A second FRFA has been prepared for the Chiniak Gully experiment implemented by this final rule. NMFS received no comments on the Initial Regulatory Flexibility Analysis (IRFA). This FRFA concluded that most of the vessels that would trawl for groundfish in the proposed Chiniak Gully area during late summer are small entities. This included 145 small entities. Most of these affected vessels are homeported in and operate out of the city of Kodiak, adjacent to the proposed closure area. Although vessels will be able to harvest in other locations in the vicinity of Kodiak Island and should be able to recover most of their lost revenues, they would be expected to incur some additional costs as a result of traveling greater distances to alternative fishing areas. Because harvest may be taken elsewhere and the restriction will last no more than 3 years, the overall impact on the affected vessels should not be large. As these small vessels potentially experience higher costs, they may see some reduction in their cash flow and profits while the program is in effect. Since the affected vessels are mostly small entities, and large trawl entities would not be affected by this trawl closure, the impact may be disproportionately large on small entities. This action imposes no additional reporting requirements on small entities. The alternatives of no action and of excluding small entities from the action were considered and would have reduced the burden on small entities, compared to the preferred alternative. However, the no action alternative would have prevented the experiment from proceeding. Excluding small entities would have eliminated most of the vessels active in the experimental area. Therefore these alternatives would not meet the objective of the action.

Pursuant to the National Environmental Policy Act, NMFS prepared an SEIS for the Steller sea lion protection measures; a notice of availability of the draft SEIS was published in the Federal Register on August 31, 2001 (66 FR 45984). Comments were received and responded to in the final SEIS, and the final document was issued November 23, 2001 (66 FR 58734). An analysis of the Chiniak experiment is provided in the EA/RIR/FRFA for the regulatory amendment to permit an investigation of the effect of commercial fishing on Walleye pollock distribution and abundance in localized areas off the east side of Kodiak Island. The final SEIS and EA/RIR/FRFA are available from NMFS (see ADDRESSES). No significant impacts on the human environment were anticipated from the Chiniak Gully experiment based on the analysis in the EA/RIR/FRFA. Based on a comparison of the effects of the other alternatives in the SEIS, NMFS determined that this action complies with ESA requirements. Potential impacts on marine mammals resulting from fishing activities conducted under this final rule are discussed in the SEIS for this action.

This rule contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA) that have been approved by OMB. Public reporting burden for these collections is listed by OMB control number below.

OMB No. 0648-0206: for a Federal Fisheries Permit application (including the information necessary to register a vessel using trawl gear to conduct directed fishing operations for Atka mackerel in the harvest limit area), 21 minutes per response; OMB No. 0648-0445: 6 hours to install a VMS unit; 12 minutes to fax a check-in report that the VMS is operational; 5 seconds per automated position report; and 4 hours per year for VMS maintenance; and OMB No. 0648-0269: for CDQ target species reporting; 15 minutes per catch report.

These response time estimates 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 regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS and OMB (see ADDRESSES).

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.

Formal and informal section 7 consultations under the ESA were completed for this final rule under the FMPs for the groundfish fisheries of the BSAI and the GOA. In the 2001 BiOp and memorandum dated December 11, 2001, from the Office of Protected Resources (OPR) to the Office of Sustainable Fisheries, the Director of the OPR determined that fishing activities described in this final rule are not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of critical habitat.

On December 18, 2002, the United States District Court for the Western District of Washington entered an Order remanding the biological opinion prepared for the groundfish fisheries managed pursuant to this rule. Greenpeace, et al. v. National Marine Fisheries Service, No. C98-492Z (W.D. Wash.). The Court held that the biological opinion's findings of no jeopardy to the continued existence of endangered Steller sea lions and no adverse modification of their critical habitat were arbitrary and capricious. NMFS is seeking Plaintiff's agreement that the 2003 fisheries will commence pursuant to the Steller sea lion protection measures specified in the 2001 BiOp and implemented by this final rule pending completion of the remand. If such agreement is reached, it will be filed with the Court. If agreement is not reached, NMFS will take such other action as is necessary to ensure the fisheries' compliance with section 7(a)(2) of the ESA pending completion of the remand.

The Steller sea lion protection measures in this rule must be effective by January 1, 2003, the date on which the emergency interim rule implementing these measures expires and the 2003 groundfish fisheries will open. The measures contained in this rule are substantially the same as those contained in the emergency interim rule dated January 8, 2002 (67 FR 956 and extended May 16, 2002, 67 FR 34860), and therefore this rule is largely a continuation of the status quo. Because the industry is already complying with similar measures, additional time is not required for compliance. Accordingly, there is good cause to waive the requirement of a 30-day delay in the effective date for this rule pursuant to 5 U.S.C. 553(d)(3). However, NMFS will make this rule effective on January 1, 2003, thereby providing a short delay in the effective date.

List of Subjects in 15 CFR Part 902 and 50 CFR Part 679

• Alaska
• Fisheries
• Recordkeeping and reporting requirements

15 CFR Chapter IX

For the reasons set out in the preamble, 15 CFR part 902, chapter IX, is amended as follows:

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

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

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

2. In § 902.1, the table in paragraph (b) is amended by adding under 50 CFR the following entries in numerical order:

50 CFR Chapter VI

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.; 3631 et seq.; Title II of Division C, Pub. L. 105-277; Sec. 3027, Pub. L. 106-31; 57 Stat. 113; 16 U.S.C. 1540(f); and Sec. 209, Pub. L. 106-554.

2. In § 679.2, the definition for “Steller Sea Lion Protection Areas” is removed, paragraph (1) of the definition for “Fishing trip” is revised, and the definition for “harvest limit area (HLA) for Atka mackerel directed fishing” is added in alphabetical order to read as follows:

3. In § 679.4, paragraph (b)(5)(vi) is revised to read as follows:

4. In § 679.5 paragraph (n)(2)(iii)(B)( 4) is revised to read as follows:

5. In § 679.7, paragraph (c)(3) is removed, paragraphs (a)(1), (a)(17), (a)(18), (a)(19), and (b) are revised to read as follows:

6. In § 679.20:

a. Remove paragraphs (a)(7)(iii)(B) and (f)(3), and redesignate paragraph (a)(7)(iii)(C) and (D) as (a)(7)(iii)(B) and (C).

b. Revise paragraphs (a)(5)(i)(A), (a)(5)(i)(B), (a)(5)(ii)(B), (a)(6)(ii), (a)(6)(iii), (a)(7)(i)(C)(2) and (3), (a)(7)(ii)(A), (a)(7)(ii)(D), (a)(7)(iii)(A), the newly designated paragraph (a)(7)(iii)(B), (a)(8)(ii)(C), (a)(8)(iii), (a)(11), (b)(2)(i), (b)(2)(ii), (c)(2)(i) and (c)(2)(ii), and (d)(4).

c. Add paragraph (e)(2)(iv) to read as follows:

(A) Seasonal apportionment and gear allocations. The Pacific cod BSAI gear allocations and apportionments by seasons, as specified in § 679.23 (e)(5), are as follows:

(B) Unused seasonal allowances. Any unused portion of a seasonal allowance of Pacific cod allocated to vessels using hook-and-line or pot gear under paragraph (a)(7)(i)(C) of this section will be reallocated to the remaining seasons during the current fishing year in a manner determined by NMFS, after consultation with the Council.

(8) * * *

(ii) * * *

(C) Harvest limit area (HLA) limits. Atka mackerel harvest is limited in the HLA, as defined in § 679.2, as follows:

(1) The Regional Administrator will establish an HLA harvest limit of no more than 60 percent of the seasonal TAC as specified in paragraph (a)(8)(ii)(A) of this section.

(2) CDQ fishing. A CDQ group is prohibited from exceeding the CDQ portion of the percentage of annual Atka mackerel in areas 542 and/or 543 specified in paragraph (a)(8)(ii)(C)(1) of this section for the HLA.

(iii) Atka mackerel HLA directed fishing--(A) Registration. All vessels using trawl gear to conduct directed fishing for Atka mackerel in the HLA, as defined in § 679.2, are required to register with NMFS. To register, the vessel owner or operator must provide information required by § 679.4(b)(5)(vi) for an endorsement to the vessel's Federal Fisheries Permit issued under § 679.4.

(1) To participate in the A season HLA fishery, registration information must be received by NMFS, Restricted Access Management Program, by 4:30 p.m., A.l.t., of the first working day following January 1.

(2) To participate in the B season HLA fishery,

(i) The vessel must be registered for the A season HLA fishery and must maintain registration for the HLA fishery through the first working day following July 31, or

(ii) The vessel must be registered for the HLA fishery with NMFS, Restricted Access Management Program, by 4:30 p.m., A.l.t., of the first working day following July 31.

(B) HLA assignment. For each season, NMFS will manage the HLA directed fishery for the vessels registered to fish in areas 542 or 543 under paragraph (a)(8)(iii)(A) of this section as follows:

(1) Lottery. The Regional Administrator or his/her designee will randomly assign each vessel to one of two directed fisheries for each statistical area in which the vessel is registered under paragraph (a)(8)(iii)(A) of this section. Each HLA directed fishery within a statistical area will be assigned an equal number of vessels unless there is an odd number of vessels under paragraph (a)(8)(iii)(A) of this section. In the case of an odd number of vessels, the Regional Administrator or his/her designee will assign one additional vessel to one HLA directed fishery. Vessels registering under paragraph (a)(8)(iii)(A) of this section to fish in both area 542 and area 543 will be randomly assigned to an HLA directed fishery in area 542 and will be placed in the area 543 HLA directed fishery occurring at an alternate time during the season.

(2) Notification. The Regional Administrator will provide the results of the lottery under (a)(8)(iii)(B)(1) of this section by notification published in the Federal Register and other means of practicable notification.

(C) HLA directed fisheries. 48 hours after a prohibited directed fishing for Atka mackerel in area 541, the Regional Administrator will allow directed fishing within the HLA in areas 542 and 543. The Regional Administrator will provide notification by publication in the Federal Register of the opening and closure dates of the HLA directed fisheries, as determined by paragraph (a)(8)(iii)(E) of this section. Closures specified in Table 6 to this part and in § 679.22(a)(8) will remain in effect.

(D) HLA harvest limit. The Regional Administrator will establish the harvest limit for each HLA directed fishery for each area based on the seasonal apportionment at paragraph (a)(8)(ii)(C) of this section and in proportion to the number of vessels in an HLA directed fishery compared to the total number of vessels fishing in the HLA of an area during a season.

(E) HLA directed fishery closure. The Regional Administrator will establish the closure date of the Atka mackerel HLA directed fishery for each statistical area based on the estimated fishing capacity of vessels registered to fish in the area and assigned to the HLA directed fishery under paragraph (a)(8)(iii)(B) of this section. Each HLA directed fishery will last no longer than 14 days.

(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 the one assigned under paragraph (a)(8)(iii)(B) of this section during the opening of the first HLA directed fishery assigned to the vessel in a season, as specified in § 679.7(a)(19).

(11) GOA Pacific cod TAC—(i) Seasonal apportionment. The TAC established for Pacific cod in the Western and Central Regulatory Areas of the GOA will be divided 60 percent to the A season and 40 percent to the B season, as specified in § 679.23(d)(3).

(ii) The Regional Administrator may apply any underage or overage of Pacific cod harvest from one season to the subsequent season. In adding or subtracting any underages or overages to the subsequent season, the Regional Administrator shall consider bycatch needed to optimize catch by gear groups and sectors.

(iii) Pacific cod catch between the A and B seasons. Pacific cod harvested between the closure of the A season and opening of the B season shall be deducted from the B season TAC apportionment.

(b) * * *

(2) * * *

(i) Pollock inshore-offshore reapportionment. Any amounts of the GOA reserve that are reapportioned to pollock as provided by paragraph (b) of this section must be apportioned for processing by the inshore component in the GOA and the offshore component in the GOA in the same proportions specified in paragraph (a)(6)(ii) of this section.

(ii) Pacific Cod inshore-offshore reapportionment. Any amounts of the GOA reserve that are reapportioned to Pacific cod as provided by paragraph (b) of this section must be apportioned for processing by the inshore component in the GOA and the offshore component in the GOA in the same proportion specified in paragraph (a)(6)(iii) of this section.

(c)

(2)

(i) GOA. One-fourth of each proposed TAC and apportionment thereof (not including the reserves or the first seasonal allowances of pollock or Pacific cod), one-fourth of the proposed halibut prohibited species catch amounts, and the proposed first seasonal allowances of pollock and Pacific cod.

(ii) BSAI. Except for pollock, Pacific cod, Atka mackerel, and the hook-and-line and pot gear allocation of sablefish, one quarter of each proposed initial TAC and apportionment thereof, one quarter of each CDQ reserve established by paragraph (b)(1)(iii) of this section, and one quarter of the proposed PSQ reserve and prohibited species catch allowances established by § 679.21.

(A) The interim specifications for pollock, Pacific cod, and Atka mackerel will be equal to the first seasonal allowances for pollock, Pacific cod, and Atka mackerel that are published in the proposed specifications under paragraph (c)(1) of this section.

(B) The interim specifications for CDQ pollock, CDQ Atka mackerel, and CDQ Pacific cod will be equal to the first seasonal allowances that are published in the proposed specifications under paragraph (c)(1) of this section.

(d) * * *

(4) Harvest control for pollock, Atka mackerel, and Pacific cod. If a biological assessment of stock condition for pollock, Pacific cod, or Atka mackerel within an area projects that the spawning biomass in that area will be equal to or below 20 percent of the projected unfished spawning biomass during a fishing year, the Regional Administrator will prohibit the directed fishery for the relevant species within the area. The Regional Administrator will prohibit the directed fishery under this paragraph by notification published in the Federal Register. The directed fishery will remain closed until a subsequent biological assessment projects that the spawning biomass for the species in the area will exceed 20 percent of the projected unfished spawning biomass during a fishing year.

(e) * * *

(2) * * *

(iv) The maximum retainable amount for vessels fishing during an individual fishing trip in areas closed to directed fishing and in areas open to directed fishing is the lowest maximum retainable amount applicable to the prohibited species or species group in any of these areas, and this maximum retainable amount must be applied for the duration of the individual fishing trip.

7. In § 679.22, paragraphs (a)(5), (a)(7), (a)(8), (b)(2), and (b)(3) are revised to read as follows:

8. In § 679.23, paragraphs (d)(2), (d)(3), (e)(2), (e)(3), (e)(4)(iii), (e)(5) and (i) are revised to read as follows:

9. In § 679.28, paragraphs (f)(3)(ii) and (f)(3)(iii) are revised, and paragraphs (f)(4), (f)(5), and (f)(6) are added to read as follows:

10. In § 679.32, paragraph (e) is removed and reserved.

11. In § 679.50, paragraph (c)(1)(x) is revised to read as follows:

12. In 50 CFR part 679, Tables 21, 22, 23, and 24 are deleted, Tables 4, 5, and 6 are revised, Table 12 is added, and Table 13 is removed and reserved to read as follows:

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