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:

Proposed rule; request for comments.

SUMMARY:

NMFS issues a proposed 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 proposed 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 area (BSAI) and the Gulf of Alaska (GOA) in accordance with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

DATES:

Comments on the proposed rule must be received on or before October 4, 2002.

ADDRESSES:

Comments must be sent to Sue Salveson, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, P.O. Box 21668, Juneau, AK, 99802, Attn: Lori Gravel-Durall, or delivered to room 401 of the Federal Building, 709 West 9th Street, Juneau, AK. Comments will not be accepted if submitted via e-mail or Internet. Copies of the environmental assessment/regulatory impact review/initial regulatory flexibility analysis (EA/RIR/IRFA) 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 and regulatory impact review, the November 30, 2000, biological opinion, the initial regulatory flexibility analysis, and the October 2000 Biological Opinion Questions NMFS white paper, may be obtained from the same address. 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 (comprehensive BiOp), 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 conservation 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 met numerous times throughout 2001 to evaluate the best scientific and commercial data available and, with the assistance of agency expertise, developed recommendations for conservation measures for the pollock, Pacific cod, and Atka mackerel fisheries. More details on the protection measures development process follow later in this preamble.

In a section 7 consultation under the ESA, NMFS issued a biological opinion (2001 BiOp), which determined that the protection measures in this proposed 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 and, with the assistance of a draft SEIS on a suite of possible management measures, the Council adopted and forwarded to NMFS the conservation actions contained in this proposed rule, which are necessary to comply with the ESA. These measures are currently being implemented by emergency interim rule (67 FR 956, January 8, 2002, amended 67 FR 21600, May 1, 2002, and extended 67 FR 34860, May 16, 2002). The measures contained in this proposed rule will not be implemented until the emergency interim rule expires on December 31, 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.

Status of the Endangered Western DPS of Steller Sea Lions

In 1990, NMFS designated Steller sea lions as a threatened species under the ESA. The designation followed severe declines throughout much of the GOA and Aleutian Islands region. In 1993, NMFS designated critical habitat for the species, including the marine areas within 20 nautical miles (nm) of major rookeries and haulouts west of 144° W longitude (long.) and three large aquatic foraging areas. In 1997, NMFS recognized two separate populations and reclassified the western DPS (west of 144° W long.) as endangered under the ESA.

The western DPS of Steller sea lions has been in decline since the late 1970s when the first reliable population estimates were made (about 109,800 animals). During the 1980s, a precipitous decline of Steller sea lions was observed and by 1996, the population had declined by 80 percent. Counts of adult and juvenile Steller sea lions have continued to decline over the last decade, but at a reduced annual rate of roughly 5 percent.

In the 2001 BiOp, NMFS recognized that the current decline of the species is likely due to multiple factors including environmental changes such as El Nino and the Pacific Decadal Oscillation, predation, subsistence harvests, incidental take in fisheries, and competition for prey resources with pollock, Pacific cod, and Atka mackerel fisheries. This last issue, competition with fisheries, is addressed by this action. Diet studies indicate that Steller sea lions depend on pollock, Pacific cod, and Atka mackerel as major prey resources. Also, the winter time is likely the most sensitive period for juveniles and lactating females during which they may be easily susceptible to local prey depletions. These winter fisheries, in particular, could adversely affect Steller sea lions. However, given the complexity of the marine environment and the lack of complete information on the foraging requirements of Steller sea lions, NMFS has determined that this population is likely to continue to decline into the next decade partly because of the inability to statistically detect a change in the population trajectory until an estimated period of 6 to 8 years has elapsed (3-4 population surveys).

More information on environmental changes in the BSAI and GOA and on potential effects on Steller sea lions is detailed in section 4.4.1 of the 2001 BiOp (see ADDRESSES).

Development of Steller Sea Lion Protection Measures

In January 2001, the Council established an RPA Committee to make recommendations on Steller sea lion protection measures for the second half of 2001 and to develop Steller sea lion protection measures for 2002 and beyond. The RPA Committee was composed of 21 members from the fishing community, the environmental community, NMFS, the Council's Science and Statistical Committee, the Council's Advisory Panel, and the Alaska Department of Fish and Game (ADF&G).

In developing protection measures for the second half of 2001 and for 2002 and beyond, the RPA Committee's first goal was to determine adequate forage for Steller sea lions using the best scientific information available. Its second goal was to maximize the economic benefit to the fishing industry within the constraints imposed by the Magnuson-Stevens Act, the ESA, and other applicable laws. The RPA Committee met numerous times to review current Steller sea lion biology and known habitat requirements, the reasonable and prudent alternative (RPA) from the comprehensive BiOp, the draft SEIS and draft 2001 BiOp for this action, and commercial fishery and scientific survey information. Meetings in 2001 were held on February 10, February 20, March 6-7, March 26-29, April 9, May 9-11, May 21-24, and August 23-24. These meetings were open to the public and several opportunities for the public to comment were available during each meeting.

After the available scientific information on Steller sea lion biology was discussed, the RPA Committee reviewed commercial fisheries and harvest data to determine the competitive overlap between fisheries and Steller sea lions. The RPA Committee then developed a fisheries management program intended to meet all of the requirements of the ESA and to comply with the Magnuson-Stevens Act, including the national standards. In April 2001, the RPA Committee presented its recommendations to the Council for fishery management measures for the second half of 2001. These recommendations were then forwarded by the Council to NMFS and were implemented by amendment to an emergency interim rule (66 FR 37167, July 17, 2001).

In June 2001, the RPA Committee recommended Steller sea lion protection measures for 2002 and beyond. However, the RPA Committee did not reach consensus regarding the recommendations; two representatives from the environmental community objected and provided a minority report with the May 21-24 RPA Committee minutes. Both the RPA Committee's recommendation and the minority recommendation developed by the American Oceans Campaign and the National Environmental Trust were included as alternatives analyzed in the SEIS. Additionally, protection measures in the GOA, developed by the Alaska Marine Conservation Council, were included as an option to the preferred alternative in the SEIS. Minutes from all RPA Committee meetings were distributed at Council meetings and are available on the Council's web site at http://www.fakr.noaa.gov/npfmc/default.htm. In June 2001, the Council recommended alternatives to be analyzed in the SEIS, including the RPA Committee's recommendations and the protection measures described in the minority report mentioned above. NMFS reviewed the Council's recommendations for alternatives and determined that they represented an adequate range of reasonable alternatives as required by the National Environmental Policy Act (NEPA). For purposes of identifying a proposed action in order to initiate formal consultation under Section 7 of the ESA, NMFS identified the RPA Committee's recommendations as the preferred alternative (Alternative 4) in the draft SEIS. Alternative 4 also included three options added by the Council. Two of the options provided exemptions for small vessels using nontrawl gear in directed fishing for Pacific cod in the Chignik and Unalaska areas, and the third option established gear-specific fishing zones for GOA Pacific cod fisheries (the Alaska Marine Conservation Council option).

In July 2001, the NMFS Alaska Region, Sustainable Fisheries Division (SFD) reinitiated consultation under the ESA with the NMFS Alaska Region Protected Resources Division (PRD) based on the availability of new information and on substantial changes in the action since the completion of the comprehensive BiOp. The new scientific information is described in more detail below under the specific protection measures. Consultation was requested on the management measures outlined in Alternative 4 of the draft SEIS. A draft biological opinion (2001 BiOp) was prepared by the PRD and distributed as Appendix A to the draft SEIS, which was available for public review on August 20, 2001 (comment period closed October 15, 2001).

The draft 2001 BiOp did not entirely replace the previous comprehensive BiOp. The analysis contained in the BiOp remains valid and meets NMFS' requirement to consult at the FMP level. However, the RPA measures from the comprehensive BiOp are not being implemented since the management measures developed by the Council and implemented by this rule were also determined in the 2001 BiOp to avoid jeopardy and adverse modification of critical habitat. During informal consultations, the SFD and the PRD concurred that all other listed species occurring in Alaska other than Steller sea lions would not be adversely affected by the implementation of the proposed action. Therefore, only the endangered and threatened DPSs of Steller sea lions were the subject of the formal consultation and draft biological opinion issued by the PRD.

The Council conducted a special meeting in September 2001 to review the draft SEIS and the draft 2001 BiOp. After reviewing these documents and public testimony, the Council identified Alternative 4 in the draft SEIS, with several modifications and without the options identified in June, as its preliminary preferred alternative. The Council decided not to include additional small boat exemptions for Unalaska and Chignik because opening these areas would reduce their values as control sites for evaluating management measures and would increase the likelihood for competitive interactions with sea lions and because these sites have not been economically important to the small boat fleets. Also, the Council decided not to include the GOA “gear zone” option because of potential conflicts with Magnuson-Stevens Act national standards 8 and 10 (i.e., local community access to fishing resources and safety).

In October 2001, based on the analysis of alternatives in the SEIS, public testimony, and the draft 2001 BiOp, the Council made final recommendations for Steller sea lion protection measures. The draft 2001 BiOp concluded that Alternative 4 met the requirements of the ESA to protect listed species. The SEIS concluded that Alternative 5 effects on Steller sea lions and on their critical habitat would be similar to the effects of Alternative 4. Analysis of Alternatives 2 and 3 concluded that effects on Steller sea lions and their critical habitat would be less adverse for those alternatives than under Alternatives 4 and 5. Alternative 1 was more adverse to Steller sea lions than Alternative 4, based on the SEIS analysis. Given the results of the SEIS and the draft 2001 BiOp, the Council assumed that Alternatives 2, 3, 4, and 5 would meet the requirements of the ESA because Alternatives 2, 3, and 5 were considered to have similar or less adverse effects on Steller sea lions compared with Alternative 4.

After the alternatives that met the ESA requirements were identified, the Council then determined which alternative resulted in the least impact on the human environment, including socioeconomic impacts, and which also met the requirements of the Magnuson-Stevens Act, including the national standards. The Council recommended Alternative 4, and NMFS concurs with the Council's recommendation. The final SEIS is available from NMFS (see ADDRESSES) or from the NMFS' home page at http://www.fakr.noaa.gov.

NMFS solicited comments on the draft 2001 BiOp to be considered in the final biological opinion. NMFS released the final 2001 BiOp on October 19, 2001, as an appendix to the final SEIS. Copies of the 2001 BiOp are available from NMFS (see ADDRESSES) or from the Alaska NMFS Region home page at http://www.fakr.noaa.gov. The final 2001 BiOp concluded that the proposed action under Alternative 4, which is contained in this proposed rule, is not likely to jeopardize the continued existence of either the eastern or western DPSs of Steller sea lions or to adversely modify its critical habitat.

In October 2001, the Council modified the preferred alternative. All of these modifications fell within the scope of the draft SEIS and the 2001 BiOp. Two modifications provided additional protection to Steller sea lions during 2002 in the Aleutian Islands subarea by eliminating the directed fishery for pollock and by reducing the proposed harvest of Atka mackerel in Steller sea lion critical habitat. The third modification is a nearshore exemption for small vessels directed fishing for Pacific cod using hook-and-line or jig gear in the Bogoslof area and includes a harvest limit. Because of the extremely small level of harvest and closures around Steller sea lion haulouts in the area, this modification is expected to have no appreciable effects on Steller sea lions or their critical habitat. Public comment on the 2001 BiOp provided at the October Council meeting raised questions regarding the efficacy of using the Bogoslof area as a control site for comparing the fishery effects on Steller sea lions. Based on the extremely limited fishing by small vessels for Pacific cod and fishing prohibitions around Bishop Point, the Council changed its recommendation from September and requested NMFS implement a small vessel exemption in a portion of the Bogoslof area (Option 2 to Alternative 4 in the SEIS). The small vessel exemption in the Bogoslof area is within the scope of Option 2 analyzed in the SEIS.

Protection Measures and the Most Recent Information

Scientists generally agree that the decline of the western DPS of Steller sea lions is due to a combination of factors, including nutritional stress, predation and natural environmental changes. These factors are thought to primarily affect juveniles and, to a lesser extent, adult females, although the mechanism and magnitude of the effects are largely unknown. Of these factors, the groundfish fisheries primarily affect nutritional stress and, through indirect mechanisms, may increase the likelihood for predation due to increased search time for prey. Funding for Steller sea lion research has increased over the past few years and should provide clarification on the causes for the sea lion decline.

The ESA requires NMFS to develop a recovery plan for Steller sea lions that includes criteria for delisting the species. A recovery plan was developed in 1992 with a set of delisting criteria for the Steller sea lion population, which included the entire Steller sea lion population in the North Pacific. However, in 1997 the population was split into two DPSs. The delisting criteria have not been revised for either DPS. A new Steller sea lion recovery team has been assembled and met in January 2002. The team will review the best available scientific and commercial data and will develop a new recovery plan within two years. Because no recovery criteria specific to the western DPS have been developed, the 2001 BiOp addressed recovery in terms of the likely effects of the proposed action on the overall Steller sea lion population trajectory.

The 2001 BiOp concluded that the impact of the groundfish fisheries on the decline of the western DPS of Steller sea lions is likely to be small under the protection measures specified in this proposed rule. Although adverse impacts to the two DPSs of Steller sea lions are expected due to these groundfish fisheries, they are unlikely to jeopardize the continued existence or adversely modify their critical habitat. These protection measures are designed to avoid reductions in the abundance of Steller sea lion prey in a manner which would reduce sea lion foraging success.

These protection measures address competitive interactions between the groundfish fishery and Steller sea lions in several ways. First, these measures would modify the existing harvest control rule to ensure that in the future enough prey resources exist overall and that prey densities are sufficient for Steller sea lions on a large scale. Second, the protection measures would distribute the catch of important prey species over zones of key importance to critical components of the Steller sea lion DPS and over time to reduce the effects of localized depletion. Localized depletion for Steller sea lions is the reduction of prey resources to a level that decreases the efficiency of foraging sea lions, so that it adversely affects their health or increases their risk to predation. Finally, the protection measures will prohibit fishing in areas immediately surrounding all rookery and many haulout sites and curtail fishing for important prey species in significant portions of designated critical habitat to relieve competition in areas considered important to Steller sea lion survival and recovery.

In 1993, critical habitat was established to 20 nm seaward of haulouts and rookeries based on the best scientific information available at the time, such as Platform of Opportunity (POP) data (August 27, 1993, 58 FR 45269). In 1999 through 2001, protection measures included some fishery restrictions out to 20 nm from Steller sea lion rookery and haulout sites.

In most cases, the portion of critical habitat areas considered important for protection in 2002 and beyond is 0-10 nm of haulout and rookery sites with areas closer to shore considered more important for animals with less foraging skills or for females with pups. The best available information on the foraging patterns of Steller sea lions was summarized in a series of white papers by NMFS and the ADF&G. This information, along with historical data, was incorporated into the 2001 BiOp for the two DPSs of Steller sea lions. This new information was primarily gathered through satellite telemetry on sea lions, observing their at-sea distribution, dive characteristics, and haulout patterns. The data, with additional information from juveniles and lactating females, indicate a preference to remain close to shore, generally within 10 nm during the summer. While tagged sea lions were observed to travel beyond 10 nm, these trips were infrequent and often involved trips well beyond the boundaries of critical habitat. About 90 percent of the observations obtained via telemetry showed trips within 10 nm of shore. In the case of adult male Steller sea lions, POP data provide the best information because little telemetry data have been collected for these animals. For adult males, the data indicate much longer trips over greater distances than for juveniles and lactating females.

Juveniles and adult females with pups require access to prey close to shore, due to the need to return often to a rookery or haulout. This behavior pattern makes them more susceptible to localized depletions of prey over relatively small areas. In other words, a lactating female does not have the choice of swimming farther offshore to find additional prey, she must return to feed her pup within a given time period or that pup may starve. The available data suggest that a lack of juvenile survival may be the proximate cause of the decline. This supports NMFS' decision to weigh heavily the telemetry data when determining protections for the western DPS of Steller sea lions. The telemetry data provide the most recent information on the most sensitive aspect of the population and where they are likely to be affected by localized depletion of prey by the groundfish fisheries. For these reasons, NMFS is implementing protection areas that extend from the shore around major rookeries and haulouts to 10 nm. In this way, NMFS has reasoned that the groundfish fisheries are unlikely to substantially reduce the foraging success of Steller sea lions. Animals that do come in contact with groundfish fisheries will have adequate opportunity to find prey such that their foraging success will not be compromised. These animals will be both older males and females that are adept at locating prey and resilient enough to find alternative places to fish.

Steller sea lion count survey data also were used to determine the areas that needed more protection from potential fishery interaction. Some of the rookeries showed declines of more than 10 percent. In some cases, sites with higher rates of decline receive additional protection over areas with less decline under the measures in this proposed rule.

Under the proposed rule, the Bogoslof area, the Seguam foraging area, and the Chignik critical habitat areas would be closed to pollock, Atka mackerel, and Pacific cod directed fishing, except to vessels using jig gear in the Chignik area and to small vessels fishing for Pacific cod using jig or hook-and-line gear in a small portion of the Bogoslof area. Furthermore, the Chiniak Gully would be closed to trawling August 1 through September 20 to determine the impact of trawl fishing on abundance and distribution of pollock. A review of the 2001 BiOp by the National Academy of Sciences may provide further recommendations on whether an experimental design could be developed that uses these closed areas or control sites to provide the information needed on the efficacy of proposed protection measures.

Summary of the 2002 Protection Measures

The following is a summary of protection measures. More detailed descriptions by topic, fishery, and area follow in this preamble. In November 2001, The State of Alaska Board of Fisheries (BOF) adopted the same protection measures for the parallel State fisheries in 2002, with two exceptions in the GOA Pacific cod pot fishery noted below. The ADF&G should be contacted for details on Steller sea lion protection measures inside State waters. Closure areas apply to federally permitted vessels in the groundfish fisheries in the BSAI and GOA reporting areas, including State waters. Protection measures include:

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. For the Atka mackerel, pollock, and Pacific cod directed fisheries in the waters off Alaska, protection measures 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 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 CDQ groundfish program, (h) revisions to the Federal Fisheries Permit requirements, and (i) changes to the catcher vessels fishing trip definition.

3. Aleutian Island subarea protection measures include the following: (a) Pollock directed fishing outside of critical habitat apportioned 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) no 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.

2002 Protection Measures Details for Harvest Controls, Seasons, Limits, and Apportionments

Modification of the Existing Harvest Control Rule (HCR)

The protection measures include a modification of the existing HCR for pollock, Pacific cod, and Atka mackerel. NMFS currently uses an HCR established under Amendments 56/56 to the FMPs when determining the maximum allowable biological catch (ABC). Under the HCR used for groundfish other than pollock, Pacific cod, and Atka mackerel, the ABC for a majority of stocks, including pollock, Pacific cod, and Atka mackerel, is based on a fishing mortality rate intended to reduce the spawning biomass per recruit to 40 percent of its theoretical unfished level (F40%). When the biomass is below the amount necessary to produce the maximum sustainable yield (MSY), the fishing mortality rate is reduced linearly. When the spawning biomass per recruit is reduced to 2 percent of its unfished level, the fishing mortality rate becomes 0, and all fishing for that target stock is prohibited (see Figure 1). A new HCR was used in 2001 that reduced directed fishing for pollock, Pacific cod, and Atka mackerel in a more aggressive linear fashion than the HCR used for other groundfish species and included a directed fishing prohibition at the 20 percent unfished biomass level. The HCR in this proposed rule (2002 HCR) would also prohibit directed fishing when the spawning biomass is below 20 percent of the unfished level but would reduce fishing mortality at the same biomass level and rate as the HCR used for other groundfish species until B20% is reached.

Figure 1 shows the reduction in fishing mortality under the three methods of harvest control: (1) Amendments 56/56 to the BSAI and GOA FMPs for most groundfish species (the existing HCR for most groundfish species), (2) the 2001 HCR, and (3) the 2002 HCR. The harvest rate under the 2002 HCR and under Amendments 56/56 would decrease at the same rate until 20 percent of the unfished spawning biomass is reached.

In a model, NMFS analyzed the difference in recovery rates up to the MSY under the 2001 and 2002 HCRs and found very little difference (3-4 percent) between them. The 2001 BiOp concluded that the 2002 HCR is adequate to avoid locally depleting Atka mackerel, pollock, and Pacific cod for Steller sea lions.

For 2002, the new HCR did not affect the harvest rates for any species. Of the managed stocks under this proposed rule, the GOA pollock biomass is estimated to be closest to the B20% level, with a biomass level estimate of 26 percent of the projected unfished biomass level. Because of uncertainty in the point estimate and continued poor recruitment in the GOA pollock stock, the Plan Team recommended an ABC well below the maximum permissible ABC using the 2002 HCR. Had the current model and the known biomass amounts been used in 2001, overfishing would have occurred if the total TAC had been taken in areas 620, 630, and Southeast District of the GOA. Instead, 78 percent of the GOA pollock TAC was harvested. This action by the Plan Team is reasonable from a Steller sea lion and stock assessment perspective. See the SAFE reports for the GOA and BSAI and Part II of the preamble to the emergency interim rule (67 FR 956, January 8, 2002) for more details. The SAFE reports are available from the Council website at http://www.fakr.noaa.gov/npfmc/default.htm.

Steller Sea Lion Protection Area Definition, Fishing Trip Definition and Maximum Retainable Amount (MRA) Calculation Modifications, and Retention Prohibitions

The proposed rule would remove the definition of Steller sea lion protection areas. This definition was used previously to describe management measures implemented by emergency rule in 2000 and 2001. This proposed rule would change the management measures for protecting Steller sea lions such that the Steller sea lion protection area definition is no longer needed.

This proposed rule modifies the definition of fishing trip for catcher vessels. The definition is divided between catcher/processor and mothership fishing trips and catcher vessel fishing trips. The conditions defining a fishing trip for catcher/processors and motherships remain unchanged. The catcher vessel fishing trip definition is limited to the offload or transfer of all fish or fish product from the vessel. This change will facilitate the determination of the time when a fishing trip begins and ends for catcher vessels and of the circumstances to which a maximum retainable amount (MRA) of incidental catch species applies.

The calculation of the MRA under § 679.20(e) would be revised so that vessels that enter open and closed fishing areas during a trip will be required to comply with the lowest MRA applicable at any time during the fishing trip.

Modifications to CDQ Program

This proposed rule would remove the specific directed fishing calculation and determination for both groundfish and pollock CDQ. These changes are necessary to ensure that the Steller sea lion protection measures are applicable to groundfish CDQ harvesting activities. Such protection measures are typically predicated on whether a vessel is considered to be engaged in directed fishing for a given species such as pollock, Pacific cod, or Atka mackerel.

In the non-CDQ fisheries, a vessel is engaged in directed fishing for a species of groundfish if it retains on board an amount of a given species in excess of the MRA for that species. When the TAC for a species is approached, NMFS closes directed fishing for that species. Traditionally, NMFS has not needed to determine whether or not a vessel participating in a CDQ fishery is engaged in directed fishing because directed fishing closures have not applied to the CDQ program. Directed fishing in the groundfish and pollock CDQ fisheries is currently determined based on the species composition of the total groundfish or pollock catch while harvesting CDQ species. This determination is made on a haul-specific basis for catcher/processors and on the species composition of catch on board for catcher vessels.

Typically, NMFS uses directed fishing determinations to calculate halibut bycatch mortality and pollock catch, rather than for at-sea enforcement of other management measures. Determining whether a vessel is pollock fishing facilitates the proper accounting of pollock caught in the groundfish CDQ fisheries toward either the pollock CDQ reserve or the pollock Incidental Catch Allowance. Using current CDQ directed fishing determinations could conflict with the calculated target fishery derived by using MRA calculations.

Removing the specific directed fishing determinations for the CDQ fisheries is necessary to establish a means to readily enforce time and area closures to directed fishing for pollock, Pacific cod, and Atka mackerel. The directed fishery determination currently used in the non-CDQ fishery will now apply to participants in the CDQ groundfish fisheries. This will give consistency to the at-sea determination of both a vessel's non-CDQ and CDQ target fisheries. Additionally, to lessen the potential for confusion by NMFS staff, U.S. Coast Guard boarding personnel, vessel operators, and CDQ groups, MRAs will be used to define directed fishing for all groundfish CDQ species. Information obtained from observer data and CDQ catch reports will assist NMFS management in determining when catch limits have been reached, when area closures should occur, and how to account for pollock caught in the groundfish CDQ fisheries.

Steller Sea Lion Protection Measures for Pollock, Atka Mackerel and Pacific Cod Fisheries

The 2002 Steller sea lion protection measures include fishing seasons and area restrictions for the pollock, Pacific cod, and Atka mackerel fisheries. The apportionment of TAC by seasons will distribute these fisheries over time. Critical habitat harvest limits for pollock and Atka mackerel contained in this proposed rule are consistent with the Council's recommendations. Critical habitat limits will distribute the Atka mackerel and pollock fisheries over a range of areas, reducing the potential for localized depletion of prey.

In order to manage fishing to protect Steller sea lions, this proposed rule includes changes to the permit information collected under § 679.4. Vessel owners using pot, hook-and-line, or trawl gear will need to register with NMFS to participate in the directed fisheries for pollock, Pacific cod, or Atka mackerel. These directed fisheries will appear as endorsements on the vessel's Federal Fishery Permit (FFP). Section 679.7(a)(1) would also be revised to prohibit directed fishing for Pacific cod, pollock, or Atka mackerel without an endorsed FFP, as described above. Vessel owners wishing to fish for Atka mackerel in critical habitat will also need to indicate whether they will fish in Federal regulatory areas 542, 543, or both. The Atka mackerel registration information will be used for group management that is explained later in this preamble.

The protection measures addressing temporal and spatial dispersion of the pollock, Atka mackerel, and Pacific cod directed fisheries are as follows:

1. Aleutian Island Subarea Pollock Fishery

In the AI subarea, directed fishing for pollock outside the critical habitat is apportioned between the A season (January 20-June 10, 40 percent) and the B season (June 10-November 1, 60 percent).

2. Bering Sea Subarea Pollock Fishery

In the Bering Sea subarea, fishing seasons are continued for the four sectors of the Bering Sea pollock fishery that are defined in the AFA. These seasons are defined as the A season (January 20-June 10, 40 percent) and the B season (June 10-November 1, 60 percent).

Pollock fishing will be prohibited during the A season in the BSPRA. This area is delineated by straight lines tangential to haulouts, 10 nm from the shore between the eastern edge of the SCA and the western edge of statistical area 519. The BSPRA is intended to reduce the likelihood of localized depletion and competitive interactions during critical winter months when juvenile Steller sea lions are learning to forage.

This proposed rule will remove the “fair start” provisions at § 679.7(b) that required vessels fishing for pollock in the Bering Sea to cease fishing for groundfish during the week preceding each pollock season or face a mandatory stand-down period during the first week of the pollock season. The Council determined that these fair start requirements were no longer necessary, given the changes to the pollock fishery that occurred under the AFA.

Catcher vessel exclusive fishing seasons at § 679.23(i) are contained in this proposed rule. Vessels fishing in one season in the GOA or in the BSAI are prohibited from fishing in the alternative management area until the following season. This prohibition will limit the concentration of fishing effort in one area and reduce the potential for localized depletion of Steller sea lion prey. Catcher vessels less than 125 ft (38.1 m) LOA fishing east of 157° W long. are exempt from this prohibition.

This proposed rule also includes the use of the SCA established by the emergency rule published January 25, 2000 (65 FR 3892). The SCA includes the portion of Bering Sea critical habitat known as the Bogoslof Foraging area and the portion of the Catcher Vessel Operational Area (CVOA) that extends eastward from the Bogoslof Foraging area. This eastern portion of the CVOA overlaps with the pollock trawl exclusion zone for Sea Lion Rocks (Amak Island). Inclusion of this eastern portion of the CVOA in the SCA is necessary to provide sufficient protection from concentrated fishing and the resulting localized depletions of sea lion prey in (1) the narrow corridor between the Bogoslof Foraging area and the Sea Lion Rocks (Amak Island) trawl exclusion zone and (2) the adjacent portions of critical habitat.

The SCA consists of the area of the Bering Sea between 170°00' W long. and 163°00' W long., south of straight lines connecting the following points in the order listed:

55°00' N lat. 170°00' W long.;

55°00' N lat. 168°00' W long.;

55°30' N lat. 168°00' W long.;

55°30' N lat. 166°00' W long.;

56°00' N lat. 166°00' W long.;

56°00' N lat. 163°00' W long.

This proposed rule specifies the amount of the annual pollock directed fishing allowance (PDFA) that can be taken from the SCA during portions of the A season. The PDFA is equal to the sum of each sector's total allowable catch (TAC) minus the incidental catch allowance (ICA) and 10 percent CDQ reserve. Until April 1, the harvest within the SCA is limited to 28 percent of the annual PDFA, which is equivalent to 70 percent of the A season apportionment. The remaining 12 percent of the annual PDFA allocated to the A season may be taken outside the SCA before April 1 or inside the SCA after April 1. If the 28 percent of the annual PDFA is not taken inside the SCA before April 1, the remainder may be taken inside the SCA after April 1. The A season pollock SCA harvest limit will be apportioned to each industry sector in proportion to each sector's allocated percentage of the PDFA as set forth in the AFA. This action is necessary to avoid high harvest rates within a relatively small area of the BS subarea that is Steller sea lion critical habitat.

NMFS will monitor catch by each industry sector and close the SCA to directed fishing for pollock by sector when NMFS determines that a sector's specified portion of the SCA limit has been reached. As in 2001, in accordance with the Council's intent to address small vessel safety concerns, inshore catcher vessels less than or equal to 99 ft (30.2 m) LOA will continue to be exempt from SCA closures unless the cap for the inshore sector has been reached. Under the authority of the AFA, NMFS will separate the inshore fishery into cooperative and non-cooperative sector allocations. For each sector, NMFS will announce the closure of the SCA to catcher vessels over 99 ft (30.2 m) LOA before the inshore sector SCA limit is reached. NMFS will implement the closure in a manner intended to leave remaining quota within the SCA sufficient to support directed fishing for pollock by vessels less than or equal to 99 ft (30.2 m) LOA for the duration of the inshore sector opening.

The CVOA will continue to be closed to pollock trawl catcher/processors during the B season (June 10-November 1) to reduce the amount of pollock taken from this area and to reduce the potential for competition with Steller sea lions.

3. GOA Pollock Fishery Seasons and Apportionments

Fishing seasons and pollock TAC apportionments in the GOA Western and Central Regulatory Areas are summarized in Table 1.

Rollover of a seasonal TAC apportionment is permitted as long as it does not exceed 30 percent of the annual TAC.

Section 679.7(b) would be revised to clarify existing prohibitions and to continue other prohibitions implemented by emergency rule and specific to the GOA. The proposed rule would continue to prohibit the use of trawl gear in the GOA east of 140° W long. and would revise the existing language to clarify this prohibition. The 300,000 lb (136 mt) trip limit for catcher vessels harvesting pollock in the directed pollock fisheries of the GOA at § 679.7 supports temporal distribution objectives and is included in this proposed rule. A catcher vessel fishing for groundfish in the GOA will be prohibited from retaining on board more than 300,000 lb (136 mt) of unprocessed pollock harvested in the GOA at any time during a trip. This trip limit will not exempt vessels from existing regulations that require 100 percent retention of pollock when directed fishing for pollock is open. A vessel would have to stop directed fishing for pollock during a fishing trip before the 300,000 lb (136 mt) trip limit is reached to avoid a violation of either the 300,000 lb (136 mt) trip limit or the 100 percent retention requirement for pollock.

In addition, § 679.7 would continue to prohibit vessels from operating as pollock tenders in the GOA east of 157°00' W long. to prevent the large scale use of tender vessels to avoid the trip limit restriction. Vessels operating as tenders in the GOA west of 157°00' W long. will be prohibited from retaining on board more than 600,000 lb (272 mt) of unprocessed pollock or the equivalent of two fishing trips. Tendering west of 157°00' W long. is allowed because smaller vessels delivering to Sand Point and King Cove are more dependent on tenders than the larger vessels that operate east of 157°00' W long. and deliver primarily to Kodiak.

As implemented by emergency interim rule (66 FR 7276, January 22, 2001), catcher vessels or catcher processors in the GOA and BSAI would also be prohibited from acting as a tender until all fish harvested or processed is unloaded. This proposed rule would also prohibit these vessels from harvesting fish at the same time the vessels are used as tenders. These prohibitions would allow for better management of the fisheries by limiting the source of the fish which a vessel may offload and would facilitate accurate recordkeeping.

4. BSAI Atka Mackerel Seasons, Apportionments, Critical Habitat Harvest Limits, and Directed Fishery Groups

In the BSAI, the A season for the Atka mackerel trawl fishery will begin January 20 and end April 15. The B season will begin September 1 and end November 1. The CDQ Atka mackerel fishery will have a single season from January 20 through November 1 because the vessels used in the non-CDQ Atka mackerel fishery are generally the same vessels used in the CDQ fishery and because the CDQ harvest historically takes place when the non-CDQ season is closed.

To clearly identify the Steller sea lion protection areas for Atka mackerel directed fishing in areas 542 and 543, this proposed rule includes a new definition at § 679.2. For purposes of establishing groups for Atka mackerel directed fishing in critical habitat and for restriction of Pacific cod trawling during the Atka mackerel critical habitat directed fishery, the definition of the harvest limit area (HLA) is waters west of 178° W long. within 20 nm seaward of Steller sea lion sites listed on Table 6 of 50 CFR part 679 and west of 177°57.00 W long. This definition is needed to include Rat Island and Cape Ivakin haulouts because these are not listed under 50 CFR 226.202 as critical habitat but are identified by NMFS as needing protection. This definition also includes that portion of the 20 nm arc of critical habitat related to Tanaga Island/Bumpy Point that occurs west of 178° W long.

Fifty percent of the annual TACs for the western (area 543), central (area 542), and eastern (area 541) Aleutian Islands districts is available during each season. No more than 60 percent of the seasonal TAC may be taken from within the HLA in statistical areas 542 and 543 in the AI subarea. This is an increase from the 46 to 48 percent critical habitat limit effective in 2001. The 2002 limit is based on the assumed distribution of Atka mackerel based on the depth contour of the continental shelf and on an objective to reduce the amount of rockfish bycatch that has occurred historically at relatively high levels outside the critical habitat in deeper waters in areas 542 and 543. One of the objectives in setting harvest levels is to harvest at a level relative to the abundance of the fish in the area to avoid localized depletion. The biomass estimates in areas 542 and 543 indicated that up to 75 percent of the biomass occurs in critical habitat, but the Council recommended, and NMFS concurs, that a more conservative increase in the amount of harvest from critical habitat is appropriate because this fishery has caused measurable localized depletions in the past. Higher levels of harvest in critical habitat may be considered in the future after additional analysis. Analyzing the effectiveness of vessel groupings for managing the fleet in the HLA will provide additional information to understand the potential impact of higher harvest limits in the future. The amount of harvest allowed in the HLA also needs to be enough to encourage participation in the directed fishery groups used to manage the critical habitat fisheries.

NMFS catch data indicate a higher catch rate of Atka mackerel in area 542 than in area 543 so that vessels fishing in area 542 will likely reach their HLA limit quicker than vessels fishing in area 543. Thus, vessels fishing in area 542 could have an earlier opportunity to fish outside the critical habitat and encounter rockfish bycatch in amounts sufficient to pose overfishing concerns so as to close the Atka mackerel fishery without the area 543 HLA limit being reached. With the 60 percent limit in the HLA, vessels will be able to spend more effort inside critical habitat and will be less likely to shut down the Atka mackerel fishery due to rockfish bycatch compared to a limit set at 50 percent or less.

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 area 542 or 543. To facilitate the group assignments before the season start date, NMFS must have information approximately 2 to 4 weeks before the opening date of the season. To participate in the HLA A season fishery, NMFS must receive registration information by 4:30 p.m. of the first working day following January 1. Vessels registered for the A season would be assigned to a B season fishery unless the registration for the HLA fishery is removed. Vessels that did not participate in the A season fishery may participate in the B season fishery if registration information is received by 4:30 p.m. of the first working day following July 31. NMFS would assign vessels to a directed fishery group for each area in which a vessel is registered to fish. Each group in an area would be assigned to fish during one of the two directed fisheries held in the area during a season. The assignment to groups would be accomplished through a lottery system that ensures random selection of vessels to a group. The random selection process would ensure that each participant in a group is provided an equal opportunity to fish in a group of vessels in the HLA in area 542 or 543, and would ensure that the combination of vessels fishing together is determined by chance.

With the random selection process, the potential exists that vessels of less fishing capability may be in a group of vessels with more fishing capability, affecting the smaller vessel's opportunity to harvest fish. By dividing the vessels registered for an area into groups, all vessels would be competing with half of the vessels that they normally compete against, reducing competition on the fishing grounds and potentially enhancing the overall harvest for smaller vessels in the HLA. However, the potential for competitive advantage of larger vessels from the same company working together over the smaller vessels would be reduced with the random group assignments, and the catch would over time be dispersed.

During a fishing season, the fishing limit inside the HLA would be split into two Atka mackerel directed fisheries with each group fishing under a harvest limit in proportion to the number of vessels in the group compared with the number of vessels registered for the area. The time period of the directed fishery is based on the combined harvest potential of the vessels in the group. The start date for the first directed fishery is 48 hours after the closure of the area 541 Atka mackerel directed fishery. Historically, area 541 is harvested first. Vessels then move into areas 542 and 543. Starting the HLA directed fisheries 48 hours after closure of area 541 provides a fair start to the HLA fisheries by allowing for off loading of catch and for travel to areas 542 and 543. When the HLA directed fishery is closed in either area 542 or 543, vessels may fish outside the HLA anywhere in the Aleutian Islands where directed fishing is open.

If a vessel has registered to fish in an HLA in both areas 542 and 543 during a season, it would be assigned to fish in directed fisheries in area 542 and in area 543 that begin on different dates. Regardless of the number of vessels in a group, an HLA directed fishery would last no longer than 14 days to allow each group ample opportunity to harvest in the HLA in area 542 or 543 before the end of the season.

During each season, vessels registered to fish in the HLA in area 542 or 543 would not be allowed to fish for groundfish in any other location while the first directed fishery in an HLA to which the vessel is assigned is open. This stand down provision may last up to 14 days, the maximum length of an HLA directed fishery for Atka mackerel.

All trawl vessels fishing for Atka mackerel in the HLA would be required to carry two observers so that NMFS can meet the requirements of the 2001 BiOp to adequately monitor fisheries to manage critical habitat limits. (The Groundfish Observer Program is due to expire December 31, 2002. At the present time, NMFS is in the process of extending this program through 2007.) Vessels not participating in the groups may fish for Atka mackerel outside the HLA and outside the critical habitat in the BSAI subareas. To provide maximum protection to Steller sea lions, Atka mackerel trawl fishing is prohibited in the Seguam foraging area and in critical habitat around rookeries and haulouts east of 178° W long. since Atka mackerel is readily available in waters outside critical habitat.

5. BSAI and Western and Central Districts of the GOA Pacific Cod Seasons, Apportionments and Closures

For the BSAI and Western and Central Districts of the GOA Pacific cod seasons, this proposed rule would separate the TACs into separate seasonal apportionments depending on gear type (Table 2). Section 679.20(a)(7)(iii)(B), which describes decision criteria for seasonal allocations for hook-and-line and pot gear, no longer reflects the seasonal allocation specified in the Steller sea lion protection measures. This paragraph would be removed by this proposed rule.

For the nontrawl vessels in the BSAI and Western and Central Districts of the GOA, the A season begins on January 1 and ends June 10. Sixty percent of the annual TAC, after subtraction of any reserves and incidental catch, would be available for harvest during the A season and would be allocated among the various sectors as provided in § 679.20(a)(6)(iii) and (a)(7). The B season for vessels equal to or greater than 60 ft (18.3 m) LOA using hook-and-line gear and for vessels using jig gear in the BSAI begins at 1200 hours, A.l.t., on June 10 and ends on December 31. The B season for vessels using hook-and-line, pot, or jig gear in the GOA and for vessels equal to or greater than 60 ft (18.3 m) LOA using pot gear in the BSAI begins at 1200 hours, A.l.t., on September 1 and ends on December 31. Forty percent of the annual TAC, after subtraction of any reserves and incidental catch, will be available for harvest during the B season and will be allocated among the various sectors as provided in § 679.20(a)(6)(iii)and (a)(7). CDQ vessels using pot gear and vessels less than 60 ft (18.3 m) LOA using pot and hook-and-line gear in the BSAI have no seasonal apportionment.

For the trawl fisheries in the BSAI, the annual TAC is apportioned to three seasons. The A season starts January 20 and ends April 1, with 60 percent of the annual TAC allocated. The B season starts April 1 (1200 hours, A.l.t.) and ends June 10, with 20 percent of the annual TAC allocated. The C season starts June 10 (1200 hours, A.l.t.) and ends November 1, with 20 percent of the annual TAC allocated. In the Western and Central Districts of the GOA, trawl vessels are allocated 60 percent of the annual TAC in the A season and 40 percent in the B season.

Unused Pacific cod allocations among sectors and unused apportionments for seasons in the BSAI and Western and Central GOA may be redistributed, considering bycatch and optimization of catch by gear groups and sectors.

Moving 20 percent of the BSAI Pacific cod TAC from the first season to the second season limits the amount of Pacific cod that can be harvested during the critical January through April time period. In comparison with the 2001 apportionments, the BSAI Pacific cod trawl TAC is apportioned among three seasons shifting 20 percent of the harvest out of the June through October time period. Moving 20 percent of the harvest from the second half of the year enhances the opportunity for the Pacific cod trawl fleet to harvest Pacific cod when it is aggregated, optimizing the potential to reach the annual harvest limit. The apportionment during the first half of the year is further divided into 60 percent and 20 percent of the annual TAC.

Apportioning Pacific cod between two or among three seasons may affect the ability of fishermen to fully utilize the TAC for Pacific cod. In previous years, a large portion of the Pacific cod TAC was taken during the early part of the calendar year. Pacific cod tends to aggregate during the early part of the calendar year when it is easier to locate and catch. Also, as Pacific cod becomes disaggregated, the increased fishing time and effort to catch the same amount of fish result in increases in bycatch, which also can affect the success of fully utilizing the TAC.

In the BSAI, the trawl allocations of Pacific cod TAC are further allocated to catcher vessels and catcher/processors. The seasonal allocation for the Pacific cod trawl catcher vessels is further split to 70 percent in the A season, 10 percent in the B season, and 20 percent in the C season. Pacific cod trawl catcher/processors' portion of the TAC is allocated 50 percent in the A season, 30 percent in the B season, and 20 percent in the C season. Many of these vessels participate in the AFA pollock fishery, which disperses over time not only pollock but also Pacific cod harvests in the BSAI. Rollovers between these sectors would continue to be allowed under § 679.20(a)(7)(ii). Regulatory provisions are included in this proposed rule to allow the rollover of BSAI Pacific cod trawl allocations between seasons. Trawl allocations to catcher vessels and catcher/processors may continue to be moved between vessel types within a season before reallocation to other gear types to allow for full optimization of an allocation by the trawl sector during a season. These gear allocations would further disperse the Pacific cod fishery over time and lessen the potential for depletion of prey.

In the GOA, catch of Pacific cod in other directed groundfish fisheries during the time period between the closure of the Pacific cod A season and the opening of the Pacific cod B season would be deducted from the Pacific cod B season apportionment. This recommendation by the Council is intended to optimize the harvest of Pacific cod when it is most vulnerable to fishing gear while fully providing for Pacific cod incidental and bycatch needs in other groundfish fisheries.

Under this proposed rule, Pacific cod harvest by trawl gear in the HLA would be prohibited during the Atka mackerel HLA directed fisheries. See above discussion of Atka mackerel for the definition of the HLA. This provision reduces potential competition for prey posed by concurrent trawl fisheries in critical habitat. It also would allow for easier management by NMFS of the Atka mackerel fishery during the short time period that the HLA is open to directed fishing for Atka mackerel vessels. Vessels fishing in the HLA during the Atka mackerel directed fishing opening will be managed for Atka mackerel only, instead of being managed for Atka mackerel and for Pacific cod.

Section 679.20(a)(7)(C) specifies the allocation of Pacific cod TAC to vessels using hook-and-line or pot gear. Emergency interim regulations (66 FR 7276, January 22, 2001) further allocated the TAC between pot and hook-and-line vessels over or under 60 ft (18.3 m) LOA. The harvest of Pacific cod by hook-and-line or pot vessels less than 60 ft (198.3 m) LOA accrues against the allocation for vessels greater than 60 ft (18.3 m) LOA when the fishery for the vessels over 60 ft (18.3 m) LOA is open. Otherwise the harvest is counted toward the allocation to vessels less than 60 ft (18.3 m) LOA. This proposed rule would continue this allocation and method of management for Pacific cod hook-and-line and pot vessels in the BSAI.

Closed Areas and Management Measures

The Steller sea lion protection measures include fishery closure areas designed to reduce competition with Steller sea lions, consistent with the concerns described in the 2001 BiOp. Scientific information suggests that the effects of the groundfish fisheries on Steller sea lions may be greatest around rookeries and haulouts. Fishing prohibitions around rookeries and haulouts are important to the most vulnerable Steller sea lions--lactating females, young-of-the-year, and juveniles.

Since publication of critical habitat definitions in 50 CFR 226.202, 19 additional haulouts in the BSAI and the GOA have been identified as areas needing additional protection. The Council recommended that Steller sea lion protection measures should be implemented around the 19 additional haulouts to protect Steller sea lions in these important areas. The majority of these sites had fishing prohibitions consistent with those for critical habitat closure sites in 2001. More information and justification for including these haulouts are contained in the 2001 BiOp (see ADDRESSES).

In November 2001, the BOF authorized Steller sea lion protection measures in State waters for the State 2002 parallel fishery similar to Federal protection measures, with two exceptions described below. The State parallel groundfish fisheries are defined in the Alaska Administrative Code at 5 AAC 28.087(c) as Pacific cod, walleye pollock, and Atka mackerel fisheries in State waters managed by ADF&G to correspond with the times, area, and the gear regulations implemented by NMFS for adjacent Federal waters. NMFS deducts harvest amounts which occur during the State parallel fisheries from the Federal TACs. State-managed fisheries function exclusively under state regulations and management policies. The exception is the State-managed Pacific cod fisheries in the Central, Western, and Prince William Sound State waters of the GOA. In these State fisheries, the State establishes Pacific cod harvest levels that are equal to 25 percent of the federally established ABC specification. The Federal TACs for Pacific cod in the Western and Central Regulatory areas are reduced from the respective ABC by the amounts anticipated to be taken in the State-managed Pacific cod fishery. Vessels participating in the State-managed Pacific cod fishery are exempt from the Pacific cod Steller sea lion no-fishing zones in the GOA.

The State parallel groundfish fisheries management plan authorizes the Commissioner by emergency order to open and close seasons and implement gear, time, and area restrictions to parallel Federal regulations governing the Federal fisheries. The BOF authorized the Commissioner of the ADF&G to exempt pot fishing for Pacific cod within 0-3 nm of Caton Island and Cape Barnabus from the parallel fishery closures detailed in Federal regulations. Because of the slow rate of extraction in the pot fishery and the small amount of Pacific cod harvest by this gear sector, NMFS determined through continued consultation under section 7 of the ESA that this change to the action would not result in any appreciable effects on Steller sea lions or their critical habitat that were not considered in the 2001 BiOp.

In February 2002, the Council requested that NMFS analyze effects of opening waters from 0-3 nm around Caton Island and Cape Barnabus to federally permitted vessels using pot gear in the Pacific cod directed fishery. If there is a determination that this action would not cause jeopardy or adverse modification of habitat for the western DPS of Steller sea lions or their critical habitat and if NMFS approves, subsequent rulemaking may follow to open these two haulouts to directed fishing for Pacific cod by federally permitted vessels using pot gear.

Four haulout sites listed as critical habitat under 50 CFR 226.202 occur in the State's waters within Prince William Sound. These sites are Pt. Elrington, The Needle, Perry Island, and Pt. Eleanor. Glacier Island also occurs in the State's waters within Prince William Sound and is one of the 19 haulouts not listed as critical habitat. No Federal fishery or State parallel fishery occurs in this area. However, the State has imposed pollock trawl closures from June 1 to November 1 from 0-10 nm around Pt. Elrington, The Needle, and Glacier Island. The State also apportioned pollock harvest across three areas of Prince William Sound with no more than 40 percent of the total harvest coming from a single area. This proposed rule includes no additional protection measures for these sites inside State waters.

The proposed protection measures make no changes to the existing 0-3 nm no-entry zones around rookeries listed in 50 CFR 223.202. Although Table 12 to 50 CFR part 679 would implement groundfish fishing closures in sites protected by the no-entry zones, persons should refer to 50 CFR 223.202 for the appropriate locations of the no-entry zones. In some cases those locations may be different than locations for the same sites that are also listed in Table 12 to 50 CFR part 679. NMFS would reconcile any differences between the two sets of regulations in the future. However, until that occurs, persons are advised to refer to 50 CFR 223.202 for the proper location of no-entry zones and to Table 12 to 50 CFR part 679 for proper location of sites for fishery closures. Two additional rookeries are included in Table 12 for 0-3 nm groundfish fishing closures that are not on the list appearing in 50 CFR 223.202. These sites are Wooded Island and Seal Rocks (Cordova). The 0-3 nm groundfish fishing closures apply to all federally permitted groundfish fishing vessels and all gear types. The State emergency orders and regulations prohibit commercial fishing in waters within 0-3 nm of all of the rookeries listed on Table 12.

The RPA Committee recommended closures around haulouts and rookeries considering the rate of decline for the entire western DPS of Steller sea lions and historical fishing patterns. In some cases, sites with higher rates of decline received greater protection over areas with lower declines. Jig vessels are exempt from most of the closure zones beyond 3 nm of rookeries and beyond the shore around haulouts because of their slow rate of extraction and of the small number of vessels that prosecute these fisheries. Site-specific closures are detailed in Tables 4, 5, 6, and 12 of 50 CFR part 679 and in § 679.22 of this proposed rule. Closures would apply to federally permitted vessels. A summary of area and fishery specific closures is as follows:

Groundfish Fishery Closures

1. Directed groundfish fishing by vessels using any gear type would be prohibited within 0-3 nm of all rookeries listed in Table 12 to part 679.

2. Directed fishing for pollock, Pacific cod, and Atka mackerel by vessels using trawl, pot, or hook-and-line gear(s) would be prohibited 0-20 nm around five haulout areas in the Northern Bering Sea. These haulouts are Hall Island, Round (Walrus) Island, St. Lawrence Island/S. Punuk Island, St. Lawrence Island/SW Cape, and Cape Newenham. Historically, only limited fishing has occurred for the three prey species near these haulouts, and closures offer protection from fisheries developing in this area.

3. Directed fishing for pollock, Pacific cod, and Atka mackerel by all vessels using any gear type would be prohibited in the Seguam foraging area, and the Bogoslof area, except catcher vessels less than 60 ft (18.3 m) LOA directed fishing for Pacific cod using hook-and-line or jig gear in the Bogoslof Pacific cod exemption area. In addition, critical habitat areas around two rookeries and four haulouts in the Chignik area are closed to pot, hook-and-line, and trawl directed fishing for the three species.

Aleutian Island Closures

1. Directed fishing for pollock inside critical habitat in the Aleutian Islands subarea would be prohibited. Pollock fishing was prohibited in the Aleutian Islands subarea in 1999 through 2002 as part of Steller sea lion protection measures. In October 2001, the Council recommended opening the Aleutian Islands subarea in 2003 to directed fishing for pollock, outside the critical habitat with two seasonal apportionments (40:60 percent). Because this fishery would occur outside the critical habitat, it is not likely to have a significant, adverse effect on Steller sea lions or their critical habitat. In February 2002, the Council recommended additional analysis of directed fishing for pollock in the Aleutian Islands, including closing directed fishing for pollock in the Aleutian Islands subarea and having a single season for directed fishing for pollock outside of critical habitat.

2. Atka mackerel directed fishing by vessels using trawl gear would be prohibited in critical habitat east of 178° W long. in the Aleutian Islands and within 20 nm of rookeries and haulouts of the Bering Sea subareas. Waters 20 nm seaward of Gramp Rock and located east of 178° W long. are included in the critical habitat areas closed to Atka mackerel directed fishing by vessels using trawl gear. Historically, Atka mackerel has been harvested outside the critical habitat east of 178° W long. Consequently, the fishery is expected to be able to harvest the allocation while providing substantial protection to Steller sea lions. West of 178° W long., Atka mackerel directed fishing by trawl gear would be prohibited 0-15 nm of Buldir rookery and 0-10 nm of the remaining rookeries. Due to a continued steep decline in the population at Buldir of greater than 10 percent, an additional 5 nm protection zone was added. Additionally, Buldir is isolated from other nearshore foraging locations making it more susceptible to local depletions. On this haulout, Steller sea lions have less opportunity to move to other foraging areas to escape the possible localized depletion. Atka mackerel directed fishing by trawl gear would also be prohibited 0-3 nm of haulouts west of 178° W long. to protect nearshore foraging areas.

3. Pacific cod fishing closure areas would be dependent on the gear used and location. Hook-and-line and pot vessels would be prohibited from directed fishing for Pacific cod (a) in critical habitat east of 173° W long. to the western boundary of the Bogoslof area to reduce gear conflicts with trawl vessels, (b) 0-10 nm of Buldir rookery, and (c) 0-20 nm of Agligadak rookery. Increased protection around Agligadak is proposed because Steller sea lions at this site are suffering a high rate of count declines. Due to limited harvest rates by hook-and-line and pot vessels, closures are limited to waters 0-3 nm around rookeries.

Pacific cod trawl directed fishery closures in the Aleutian Islands include (a) waters east of 178° W long. 0-10 nm of rookeries and 0-3 nm of haulouts, except that waters around Agligadak rookery would be closed 0-20 nm, and (b) waters west of 178° W long., 0-20 nm around haulouts and rookeries until the Atka mackerel HLA fishery is completed. After the Atka mackerel HLA fishery is closed, Pacific cod trawling would be prohibited 0-3 nm of haulouts and 0-10 nm of rookeries. Trawl closures are more extensive around haulouts and rookeries due to higher removal rates and large harvest by trawl gear. Increased protection around Agligadak rookery is proposed because this site exhibits a high rate of Steller sea lion decline.

Bering Sea Closures

1. Atka mackerel directed fishing by trawl gear would be prohibited in critical habitat around haulouts and rookeries in the Bering Sea subarea, providing protection to Steller sea lions and critical habitat by reducing the potential for competition for Atka mackerel prey.

2. Pollock directed fishing would be prohibited (a) 0-10 nm of all rookeries and haulouts, except that four Pribilof haulouts would be closed 0-3 nm, (b) in the BSPRA during the A season, and (c) by non-CDQ trawl catcher/processors in the CVOA during the B season (June 10-November 1) to reduce the rate and amount of harvest in critical habitat. NMFS has not undertaken Steller sea lion aerial surveys of the northern haulouts in the Bering Sea. Anecdotal evidence from NMFS' scientists, subsistence users, and others indicates that these areas are used infrequently, mostly during the summer as males pass through the area. Therefore, the Council considered these infrequently used haulouts to be of less importance for protection to 10 nm. The Pribilof Islands Conservation Zone described at § 679.22(a)(6) is a trawl closure area that encompasses some of the Steller sea lion critical habitat areas. Five haulouts and one rookery are located in the BSPRA. This area is closed to pollock fishing in the A season to provide protection to Steller sea lions in the nearshore foraging areas during the most critical time of the year.

3. Pacific cod closures depend on the type of gear used. Directed fishing for Pacific cod with vessels using trawl gear would be prohibited 0-10 nm around all rookeries and haulouts, except that waters around the four Pribilof haulouts would be closed 0-3 nm. All hook-and-line and pot gear vessels would be prohibited from directed fishing for Pacific cod 0-3 nm of rookeries and haulouts, except that waters around the Amak rookery would be closed to hook-and-line and pot gear 0-7 nm. Additional protection was implemented for the Amak rookery out to 7 nm for the hook-and-line and pot gear Pacific cod fisheries. The Council recommended this additional closure area to protect this rookery, which has had an increasing population rate over the last ten years. Vessels over 60 ft (18.3 m) LOA using hook-and-line gear are prohibited from fishing within 10 nm of Bishop Pt. and Reef/Lava haulouts.

These closures are necessary to protect Steller sea lion prey availability around important rookeries and haulouts in the Bering Sea. The differential closure scheme by gear type reflects the best available data indicating that pot and hook-and-line gear are less likely to cause localized depletions of Pacific cod than is trawl gear. Although direct empirical evidence for this conclusion is lacking, catch information indicates that these fisheries are generally dispersed, may actually attract prey, and are relatively slow compared with the trawl fisheries.

A small exemption area was proposed in the southern portion of the Bogoslof area for catcher vessels less than 60 ft (18.3 m) LOA using hook-and-line or jig gear for directed fishing for Pacific cod. This area includes all waters of the Bering Sea south of a line connecting a point 3 nm north of Bishop Pt. to Cape Tanak. The 0-10 nm closure of Bishop Pt. remains in effect for these vessels in the Bogoslof area. The amount of Pacific cod harvested from the exemption area is limited to 113 mt to minimize the possibility of localized depletion of Pacific cod. This exemption will allow a small number of vessels from the Dutch Harbor area a relatively safe location to harvest Pacific cod and will reduce the potential for gear conflicts east of Bishop Pt. These vessels have limited harvesting opportunities because there is no Pacific cod State-managed fishery in the Dutch Harbor area and because some vessels are constrained by their License Limitation permit from fishing in Gulf of Alaska waters.

Vessels greater than or equal to 60 ft. (18.3 m) LOA using hook-and-line gear would be prohibited from directed fishing for Pacific cod 0-10 nm around Bishop Pt. and Reef/Lava haulouts. This restriction was added to reduce the possibility of gear conflicts between hook-and-line and pot vessels in the Pacific cod fishery and to provide added protection to Steller sea lions by reducing fishing effort near these haulouts.

Gulf of Alaska Closures

1. Atka mackerel directed fishing would be prohibited in the Gulf of Alaska subarea. Biomass has been insufficient to support a directed fishery for the past several years.

2. Pollock and Pacific cod directed fishing with trawl gear would be prohibited 0-10 nm or 0-20 nm around most haulouts and rookeries year round. Exceptions are as follows: (a) waters around Marmot Island rookery are closed 0-15 nm during the first half of the year and 0-20 nm during the second half of the year, (b) waters around Gull Point and Ugak Island are closed 0-3 nm in the second half of the year, (c) waters around Cape Barnabus, Cape Ikolik, Mitrofania, Spitz, Whaleback, Sea Lion Rocks, Mountain Point, Castle Rock, and Caton haulouts are closed 0-3 nm, and (d) waters around Pinnacle Rocks rookery are closed 0-3 nm.

The 0-15 nm closure around Marmot Island in the first half of the year would allow the pollock fishing fleet access to pollock that are likely to have roe and are more valuable. Closures are reduced to 3 nm around a number of sites in the GOA year round or for the B season to provide opportunities for fishing by small, local trawl fleets that have historically fished near these sites in consideration of national standard 8 of the Magnuson-Stevens Act. These sites are located in areas that have lower rates of decline for non-pups since 1991 than other areas of the GOA. The rate of harvest by the small vessel trawl fleet is expected to be small enough to avoid any localized depletion of prey for Steller sea lions.

3. Directed fishing for Pacific cod with vessels using hook-and-line or pot gear would be prohibited: (a) 0-10 nm or 0-20 nm of all rookeries, except that Seal Rocks, Wooded Island, Atkins, Chernabura, Clubbing Rocks, and Pinnacle Rock would be closed 0-3 nm, (b) 0-20 nm around Sutwik, Nagai Rocks, Lighthouse Rocks, and Kak haulouts, (c) 0-3 nm around Cape Barnabus, Cape Ikolik, Mitrofania, Spitz, Whaleback, Sea Lion Rocks, Mountain Point, Castle Rock, and Caton haulouts, (d) 0-10 nm around haulouts between 170° W long. and 164° 30'00” W long. for hook-and-line, and (e) 0-20 nm around haulouts between 170° W long. and 164° 30'00” W long. for pot gear.

Directed fishing for Pacific cod would be prohibited within 0-20 nm of sites in the area of Chignik to increase the overall closure area for the GOA. This area also has one of the higher rates of Steller sea lion non-pup count declines in the GOA since 1991, making it an area of greater potential sensitivity to fishing activities. As required by national standard 8 of the Magnuson-Stevens Act, sustained participation of the communities in the Pacific cod fishery in this area was considered by the RPA Committee and Council. Historically, Pacific cod available in the State-managed fishery has not been fully harvested. Even with the Federal fishery closure, opportunity still exists for Pacific cod fishing in State waters with vessels using pot or jig gear under the State-managed fishery. With these gear type fisheries available under the State-managed fishery and jig fishing available under the Federal fishery, the closure of this area should not impose excessive economic hardship on the residents of the small communities who use these fishing grounds.

Vessel Monitoring Systems (VMS)

To ensure vessel compliance with area restrictions, § 679.7 would prohibit a vessel from operating in the BSAI or GOA reporting area if the vessel has been issued an FFP with an endorsement to engage in directed fishing for Pacific cod, pollock, or Atka mackerel, unless it has an operable VMS at all times that the directed fisheries for which it is endorsed are open. The requirements for operating a VMS are specified in § 679.28(f). VMS monitoring is necessary to meet one of the reasonable and prudent measures detailed in the 2001 BiOp requiring that NMFS have the capability to detect illegal fishing activity by vessels endorsed for Pacific cod, pollock, or Atka mackerel fishing inside closed areas. The prohibition applies to operation of a vessel because a number of commercial fishing vessels may be endorsed to harvest Pacific cod and because the vessels may also harvest IFQ halibut, crab, or salmon. Operation also includes fishing related activities in port, such as offloading of fish. Section 679.7(c)(3) would be removed with this action because paragraph (a)(18) of this section would be added to consolidate the requirements for VMS.

The Atka mackerel fishing fleet is currently equipped with VMS, as required by § 679.7(c)(3). Jig vessels are exempt from VMS requirements because they generally are not prohibited except within 3 nm of rookeries (no-fishing zones on Table 12 to 50 CFR part 679) and in the Seguam foraging and Bogoslof areas due to their low and slow method of harvest. The prohibition is also specific to the BSAI and GOA reporting areas so that State of Alaska waters are included in this prohibition for vessels with a FFP. A vessel endorsed for the Pacific cod, Atka mackerel, or pollock directed fishery and fishing in State of Alaska waters would be required to operate VMS when one or more of these fisheries are open so that NMFS can track compliance with the closures around haulouts and rookeries, which include State of Alaska waters.

For vessels that are initially entering a fishery that requires VMS, the vessel owner would be required to receive confirmation of transmission 72 hours before leaving port to allow time to make repairs or to ensure that the transmission is being received before the vessel enters the fishing grounds. A vessel may not operate in a BSAI or GOA reporting area until the transmission is confirmed. Section 679.28(f)(3) would also be revised to clarify that a vessel is required to stop fishing when informed only by an authorized officer rather than by NMFS' staff that position reports are not being received. When a VMS unit is replaced on a vessel, the vessel owner would also be required to inform NMFS of the VMS transponder ID number and the vessel on which the transponder would be used and to receive transmission confirmation before operating in the BSAI or GOA reporting areas. Under proposed § 679.28(f)(6), a VMS must be operated when the vessel is operating in the BSAI or GOA reporting area and when the species and gear type of directed fishery requiring VMS that the vessel is endorsed for is open in either reporting area, regardless of the area of operation indicated on the FFP. For instance, if a vessel is endorsed for Pacific cod hook-and-line directed fishing and is permitted to operate only in the BSAI, it would be required to operate a VMS when the BSAI area Pacific cod hook-and-line fishery is closed but the GOA Pacific cod hook-and-line fishery is open. This is necessary because of the ease of movement of vessels between the BSAI and GOA management areas in some portions of the management areas and the need to monitor fishing activities in Steller sea lion closure areas.

The Chiniak Gully Pollock Research Program

The Council endorsed a research project proposed by NMFS in the Chiniak Gully off Kodiak Island to determine the effect of pollock fisheries on pollock school dynamics and the likelihood of localized depletions. The experiment includes the closure of Chiniak Gully to trawl fishing from August 1 to no later than September 20. A more detailed description of the experiment is provided in the EA/RIR/IRFA 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. For copies of these documents, please contact NMFS (see ADDRESSES). This experiment was implemented by emergency interim rules in 2001 (66 FR 37167, July 17, 2001) and in 2002 (67 FR 956, January 8, 2002). This proposed rule would implement regulations necessary to continue this experiment, including trawl closures necessary to conduct the experiment. The seasonal closure would be implemented through 2004.

Response to Comments

NMFS received eight letters of comment in response to the January 8, 2002, emergency interim rule (67 FR 956) that implemented the Steller sea lion protection measures and the 2002 harvest specifications.

In one letter, the comments were limited to the VMS regulations and the use of electronic logbooks. The writer appeared to conclude that the emergency interim rule was a “draft” regulation and recommended a number of changes to the “draft” regulation. Although NMFS is unable to consider making changes to the emergency interim rule, as recommended, below are the comments and responses that can be addressed in this proposed rulemaking.

Comment 1. The regulations for VMS need to be modified so more than one company may provide the required product. The draft regulations limit competition, are unnecessarily costly to consumers, and retard the development of new products that would result in cheaper and more efficient alternatives to the consumer.

Response. National standards for VMS were developed through a rule-making process and published in the Federal Register on March 31, 1994 (59 FR 15180). The regulations for VMS do not restrict competition or limit the number of providers of VMS. However, to date only one supplier has submitted a VMS for approval that meets the national VMS standards and operational requirements in the waters off Alaska. NMFS disagrees that the VMS standards should be modified solely to provide opportunities for more suppliers to meet a reduced standard.

Comment 2. Current regulations regarding VMS certification were developed several years ago and were based on the level of technology available at the time. The black box is no longer necessary to ensure a tamper-proof system.

Response. The standards for approval of VMS include specific functions that VMS must perform, but do not require a “tamper-proof black box”.

Comment 3. The company currently approved to provide VMS has an exclusive agreement with NOAA for satellite usage at a rate of $5 per day. Other companies pay approximately $70 per day for the same access, making communication costs greater and more difficult for these companies to attract customers.

Response. NMFS is unable to confirm the estimated $70/day cost for other companies. Five dollars per day is a typical cost for VMS transmission from fishing vessels. The supplier of VMS units currently approved by NMFS has an agreement for air time with Service Argos, which uses the NOAA satellite for maintaining its equipment in orbit. NOAA has no agreements with any VMS companies for the use of NOAA satellite equipment and has no involvement in setting the daily transmission costs for VMS equipment.

Comment 4. The economic impact of VMS is substantially different for small vessels compared to larger AFA qualified vessels. This must be addressed under the Regulatory Flexibility Act (RFA).

Response. Because the January 8, 2002, emergency interim rule did not require prior notice and opportunity for comment, the requirements of the RFA did not apply. An economic analysis of the emergency rule was provided in the regulatory impact review (RIR) included in the SEIS for the Steller sea lion protection measures. This RIR discussed the costs associated with the VMS system. An IRFA was prepared for this proposed rule as required by the RFA. The IRFA includes an analysis of the impact of the VMS requirement on small vessels. NMFS agrees that the VMS requirement is likely to impose proportionately larger expenses on small entities. However, NMFS also notes that the Pacific States Marine Fisheries Commission has received a grant to make over $1.5 million available as reimbursements to vessel owners who are required to purchase VMS units by these protection measures. Eligible participants will be able to receive reimbursements for up to $2,000 of the purchase price of the VMS unit. These reimbursements should begin in early June 2002. These reimbursements will significantly offset any alleged lack of proportionality.

Comment 5. Draft regulations should be modified now for consistency and efficiency of rulemaking. Draft regulations should be modified now to allow the use of other VMSs either as primary or back up systems.

Response. To be approved by NMFS, a VMS must meet the published VMS standards, which are not part of the Steller sea lion protection measures rulemaking. Standards should be revised if a change occurs in technology or criteria to ensure equipment will operate as required. Finally, the rules implementing Steller sea lion protection measures are not the appropriate mechanism for changes in the National VMS standards.

In another letter, the comments addressed the excessive share cap and rollover provisions in the harvest specifications and VMS requirement.

Comment 1. In Table 5 to the preamble of the emergency interim rule, Allocations of the Pollock TAC and Directed Fishing Allowances (DFA) to the Inshore, Catcher/Processor, Mothership, and CDQ Components, the excessive share cap (ESC) amounts and footnote 7 are misleading. The calculation for the ESC should include the rollover from the incidental catch allowance which can increase the ESC substantially from the value in the table. Footnote 7 should include a statement regarding the increase of the ESC by 17.5 percent of each rollover.

Response. NMFS agrees that the ESC is adjusted during the year to include any rollover from the incidental catch allowance. The values in the table represent the allocations at the beginning of the year and cannot include rollover amounts that cannot be predicted. NMFS will update the allocations shown in Table 5 as rollovers and adjusted allocations under paragraph 210(e)(1) of the AFA are announced in the Federal Register.

Comment 2. Section 679.7 should clarify what a vessel owner is required to do in the case of a non-operational VMS. The two NMFS observers required on AFA catcher/processors can be used to report the vessel location 24 hours a day. These vessels should be allowed to continue fishing if their VMS stops working until the vessel can reach port where the unit may be diagnosed, repaired and/or replaced. Non-AFA vessels should also be allowed to continue fishing if the VMS stops working until the vessel reaches port because lost fishing time could be quite costly.

Response. Section 679.7 requires vessel owners that use VMS to comply with the requirements of § 679.28. Section 679.28(f)(3) requires a vessel owner to stop fishing immediately if informed by an authorized officer that NMFS is not receiving position reports from the VMS transmitter. If a vessel is fishing and determines that its VMS is not working, NMFS enforcement should be notified immediately so that NMFS may assist in troubleshooting. On a case by case basis, NMFS enforcement will inform the vessel owner of the appropriate steps to take.

AFA catcher/processor observers are usually employed by a contractor and trained by NMFS. Their job requirements are specific to the collection of data from hauls and position information is usually taken from vessel records after a haul survey is completed. They are unable to independently track the vessel's location on a 24-hour basis and, therefore, are not an appropriate substitute for VMS.

To avoid potential extended loss in fishing time, a vessel owner may consider installing a backup VMS to use in case of failure of the primary VMS. NMFS needs to be able to track the location of vessels registered to participate in the directed fisheries for Pacific cod, pollock, and Atka mackerel at all times that these fisheries are open.

Four letters focused comments on small nontrawl gear vessel fisheries and VMS requirements. These comments are summarized below.

Comment 1. The VMS requirements in the emergency interim rule are onerous and cannot be complied with by small vessels endorsed for the Pacific cod directed fishery and also participating in other groundfish, crab, salmon, and/or halibut IFQ fisheries. Estimated costs for purchase and installation of the VMS unit are $4,000. The VMS would have to be operated at all times that the fishery the vessel is endorsed for is open. This is not possible for vessels that cannot run a 110 volt AC power generator 24 hours a day, if no harbor facilities are available.

Response. NMFS and the Council recognized that installation of a VMS unit on some small vessels may be difficult. Jig vessels are not required to have VMS because they have very few restrictions on fishing in Steller sea lion critical habitat. Small vessels using hook-and-line and pot gear take a significant portion of the Pacific cod harvest in the GOA. During 1999, in the GOA Pacific cod pot and hook-and-line directed fisheries, 70 to 98 percent of the Pacific cod was harvested by vessels less than 60 ft (18.3 m) LOA. Because of the significant amount of harvest by small vessels using hook-and-line and pot gear, NMFS needs to track the location of these vessels when the Pacific cod directed fishery is open to ensure Pacific cod is not being harvested from closed areas.

To ensure directed fishing for Pacific cod, pollock, or Atka mackerel is not occurring in closed areas, VMS must be operated by all vessels endorsed for these fisheries as long as the vessels are in the BSAI or GOA reporting areas. The VMS information will allow NMFS to identify Pacific cod, pollock or Atka mackerel endorsed vessels fishing inside the closed areas, and these vessels may be checked at port to ensure the maximum retainable amounts of incidental catch have not been exceeded.

NMFS agrees that the VMS installation costs for small vessels may be proportionally larger than the cost for larger vessels. A VMS is available in a 12 volt configuration which can be installed on most small vessels without additional voltage transformer equipment. The VMS cost is addressed in the IRFA for this proposed rule (see ADDRESSES). See also responses to comments 5 and 7 below.

In addition, the Pacific States Marine Fisheries Commission has received grant funds to reimburse vessel owners required by these protection measures to buy a VMS unit for up to $2,000 of the purchase price of the unit. While these funds may not be used to cover installation or maintenance costs, they should offset a significant part of any financial burden the VMS requirement may impose on small entities. For more information, vessel owners should contact the Pacific States Marine Fisheries Commission, 612 W. Willoughby Avenue, Suite B, Juneau, AK 99801; or telephone (907) 586-8244.

Comment 2. Salmon fishing can occur in Steller sea lion closure areas. Will the U. S. Coast Guard fly over and check vessel gear or will NMFS issue “tickets” based on VMS data if a vessel is endorsed for Pacific cod directed fishing and is in a closure area, even though they are fishing for salmon?

Response. See response to comment 1.

Comment 3. Why is the halibut IFQ program included in the VMS requirements?

Response. Only vessels endorsed for Pacific cod, Atka mackerel or pollock directed fishing are required to operate a VMS. Many GOA Pacific cod vessels are also used for IFQ halibut, crab and/or salmon fishing. A vessel will need to operate its VMS when the Pacific cod fishery is open even though it may be fishing for a species other than Pacific cod, if the vessel's FFP is endorsed for Pacific cod. If the vessel will not be used in the directed fishery for Pacific cod, the vessel owner may amend his or her FFP by removing the Pacific cod endorsement, eliminating the need to operate a VMS.

Comment 4. Small vessels using nontrawl gear under 60 ft (18.3 m) LOA should be exempt from VMS requirements.

Response. See response to comment 1.

Comment 5. Vessels 60 to 50 ft (18.3 to 15.2 m) LOA should be allowed to turn off the VMS when they are not participating in the directed fishery for Pacific cod or pollock and are not carrying legal groundfish gear. Vessels under 60 ft (18.3 m) LOA could declare when they will participate in the groundfish fishery and turn on their VMS. When finished directed fishing, the vessel would report that fishing is completed and turn off the VMS.

Response. The endorsement for Pacific cod, Atka mackerel or pollock authorizes a vessel to participate in these directed fisheries. If a vessel will not be used in these directed fisheries, the FFP may be amended to remove the endorsement, and VMS would not be a requirement for that vessel. NMFS must maintain the ability to track the activities of all endorsed vessels while the directed fisheries are open regardless of where they are in the BSAI and GOA reporting areas and regardless of the type of fishing in which they are engaged. This requirement must be maintained to prevent illegal harvesting activities within Steller sea lion protection areas.

Comment 6. The Council should consider postponing the implementation of the VMS program to allow industry time to discuss alternatives. The Council should focus the VMS requirement on those who would be likely to engage in directed fishing in a Steller sea lion closure area.

Response. NMFS has determined that the protection measures selected afford adequate protection for Steller sea lions. An extensive public process, including preparation of the SEIS and consultation with the Council was followed in developing these protection measures. Many important fishing grounds are included in the Steller sea lion critical habitat. The protection measures, including VMS, were developed to afford vessels an opportunity for continued access to those grounds. Allowing that access, with addition of the VMS requirement, was preferred by the industry to closing the areas entirely. The VMS requirement is applied to all vessels subject to restrictions on directed fishing for pollock, Atka mackerel, and Pacific cod in order to meet the reasonable and prudent measures in the 2001 BiOp, in compliance with the ESA.

Comment 7. A large amount of funding was made available for Steller sea lion research. Some of this money should be used for purchase and service of VMS units. NMFS should make it a priority to release funds for VMS purchase and maintenance for smaller vessels.

Response. Funds appropriated for research cannot be used for other purposes. However, the Pacific States Marine Fisheries Commission has received grant funds to reimburse vessel owners required to buy a VMS unit by these protection measures for up to $2,000 of the purchase price of the unit. These funds should be available in early June 2002. While these funds cannot be used to cover installation or maintenance costs, they should still offset a significant part of the disproportionate burden on small entities.

Vessel owners may choose to amend their FFPs to remove the Pacific cod, pollock, or Atka mackerel endorsement before June 10, 2002, obviating the VMS requirement for the vessel in 2002. More information about potential funding may be available later in 2002 to allow for planning for VMS installation in 2003, when an FFP may again be endorsed for the Pacific cod, pollock, or Atka mackerel directed fisheries.

Another letter was received from several participants in the Pacific cod freezer hook-and-line fishery. Their comments focused on the impact of this fishery on Steller sea lions and the lack of information needed to make protection measure requirements specific to this sector of fishing vessels in the BSAI.

Comment 1. NMFS' imposition of restrictions on the Pacific cod fishery activities in the BSAI to protect Steller sea lions is both arbitrary and capricious in the absence of a scientifically supportable nexus between the survival of Steller sea lions in these waters and the restrictions on Pacific cod fishing practices. These restrictions have resulted in unnecessary economic hardships to the freezer hook-and-line sector.

Response. The ESA requires NMFS to ensure that any agency action is not likely to jeopardize continued existence of any endangered or threatened species or result in the destruction or adverse modification of critical habitat of such species. A significant portion of the diet of the endangered western DPS of Steller sea lions is Pacific cod. Pacific cod fishing occurs in Steller sea lion critical habitat, leading to the potential for competitive interaction between the Pacific cod fisheries and Steller sea lions. While the extent of the competition between Steller sea lions and the freezer hook-and-line Pacific cod fishery is not fully understood, NMFS is required by the ESA to take steps to ensure Steller sea lions are protected from authorized groundfish fisheries that are likely to jeopardize the Steller sea lion or result in the destruction or adverse modification of its critical habitat. The protection measures, including closures and seasonal allocations by gear grouping, were developed using the best scientific information available and considering the potential cumulative impacts on Steller sea lions and their critical habitat and on the commercial fisheries.

Comment 2. The best available scientific data refute the hypothesis that the freezer hook-and-line sector of the Pacific cod fishery in the BSAI has contributed to nutritional stress on Steller sea lions.

Response. The Pacific cod fisheries have been determined by NMFS to have a likelihood of jeopardizing the continued existence of Steller sea lions and adversely modifying their critical habitat (November 30, 2000, BiOp). The freezer hook-and-line sector removes roughly half of the annual Pacific cod quota in the BSAI, and the best scientific information suggests that nutritional stress is a likely factor in the continued decline of the western DPS of Steller sea lions. Technical data does not presently exist to quantify the relative extent to which trawl fisheries and hook-and-line fisheries adversely affect foraging Steller sea lions and their critical habitat, although NMFS does agree that hook-and-line fisheries may have different effects on the prey field (section 5.3.1.6 of the 2001 BiOp). Hook-and-line fisheries remove Steller sea lion prey from critical habitat and are dispersed temporally and spatially along with trawl, pot, and other Pacific cod fisheries in order to avoid the likelihood of jeopardy and adverse modification of critical habitat.

Comment 3. NMFS should eliminate the mandatory use of VMS for the freezer hook-and-line Pacific cod fishery because of the limited impact this sector has on the recovery of the Steller sea lion population. Commentors were not aware of discussions of a VMS requirement during the extensive Council RPA process.

Response. The 2001 BiOp reasonable and prudent measures require NMFS to monitor fishing activity of Pacific cod, pollock, and Atka mackerel vessels that are restricted from fishing in haulouts, rookeries, and foraging areas. The freezer hook-and-line Pacific cod fishery is restricted from fishing in a number of foraging, haulout, and rookery areas in the BSAI and, therefore, must comply with the VMS requirements. The VMS requirement was part of the 2001 BiOp and Alternative 4 in the Steller sea lion SEIS, which were reviewed in the RPA Committee and Council process in September and October 2001.

Comment 4. NMFS-funded Steller sea lion research efforts should address the Pacific cod prey issues and hook-and-line fisheries competition with Steller sea lions.

Response. A large number of current research projects deal with Steller sea lion prey, foraging behavior, and commercial fisheries interaction. While none of these are specific to only the freezer hook-and-line sector, information from a number of these studies will likely advance the understanding of the interaction between the freezer hook-and-line sector and Steller sea lions and their critical habitat. A listing of the currently funded research projects is available on the NMFS Alaska Region web site at http://www.fakr.noaa.gov/protectedresources/stellers/research.pdf

Comment 5. The commentors do not agree that sufficient grounds exist to mandate the 60-percent TAC allocation to the A season and want additional harvest amounts shifted into the A season.

Response. See response to comment 1. The 60-percent TAC apportionment for Pacific cod is a risk averse approach to protecting Steller sea lion prey during the winter season. The key to avoiding possible localized depletions of prey is to disperse the fishery roughly equally between the winter and summer seasons. A TAC of 60 percent in the winter is consistent with this goal of dispersing the catch between seasons. Given that the winter may be the most critical time period for juvenile sea lions, this approach of dispersing the catch between seasons is reasonable.

Comment 6. Historical fishing areas in the Aleutian Islands are closed to the freezer hook-and-line fishery under the Steller sea lion protection measures. Individual vessels are significantly disadvantaged because they must look for new fishing areas and develop new fishing practices. No sustainable basis exists for maintaining such closures. Nearshore closures create congestion and potential gear conflict in the remaining viable fishing areas, disproportionately impacting the more fragile freezer hook-and-line gear.

Response. See response to comment 1. These impacts were considered by the RPA committee as the Steller sea lion protection measure were developed. Most of Steller sea lion critical habitat outside of 3 nm is available to the hook-and-line fishery in the Aleutian Islands west of the Seguam Foraging area. NMFS agrees that the freezer hook-and-line vessels may experience additional costs if they shift harvest into new fishing areas. Those costs have been examined in the RIR and IRFA for this action.

Several environmental organizations submitted one letter with comments focusing on the Steller sea lion protection measures and harvest specifications rulemaking processes. Their comments are summarized below.

Comment 1. Because the 2002 TAC specifications are being promulgated through the emergency interim rule process, fishing was allowed to commence without sufficient opportunity for public notice and comment. NMFS provides opportunity for comment by members of the fishing industry through the Council process, but this does not provide adequate access and the ability to comment by members of the public who are not members of the fishing industry. Even though NMFS ensured thorough involvement of the Council in the development of Steller sea lion protection measures, NMFS did not take into account the views of the non-fishing public or the deliberative processes of ESA and NEPA.

Response. NMFS disagrees that the public was not given the opportunity to participate in the review processes under the NEPA and ESA for the Steller sea lion protection measures and for the 2002 harvest specifications. The Council decision-making process is open to the fishing and non-fishing public. The Council appointed fishing and non-fishing members to the committee that made Steller sea lion protection measures recommendations to the Council. The public may keep up to date on actions contemplated by NMFS or the Council by contacting NMFS or the Council directly or by periodically reviewing NMFS or the Council's internet web sites at http://www.fakr.noaa.gov or http://www.fakr.noaa.gov/npfmc,, respectively.

NMFS provided opportunities for public involvement in the development of the Steller sea lion protection measures SEIS and the TAC specifications EA for the emergency interim rule action. A notice of availability of the draft SEIS was published in the Federal Register on August 31, 2001 (66 FR 45984). NMFS provided the draft SEIS in September 2001 at the Council meeting and hard copies of the draft EA were made available at the Council meeting in December 2001 for public review and comment and mailed to those requesting a copy. The draft EA was also posted on the Council's website on November 23, 2001. At least one other link was made to that EA from the NMFS Alaska Region NEPA page at http://www.fakr.noaa.gov/sustainablefisheries/ea/ea2001.htm. The SEIS was also made available to the public through these websites.

NMFS received one comment letter on the draft EA, which was from the non-fishing public. A response to this letter was published in the preamble to the emergency interim rule (67 FR 956, January 8, 2002). Numerous comments received from the public regarding the SEIS were addressed and incorporated into the final document.

Although the ESA does not require NMFS to provide public review of draft biological opinions, the draft 2001 BiOp was made available for public review as an appendix to the Steller sea lion SEIS in September 2001 and public comments were solicited.

Comment 2. NMFS' approach to fishery closure areas in this emergency interim rule appears to be a patchwork attempt at Steller sea lion conservation. NMFS' rationale for fishery closures in Steller sea lion critical habitat reflects a greater consideration for the preferred fishing areas of the fleet than it does the survival and recovery of the species. NMFS provides little justification for these closures, and in fact cites numerous examples where exemptions were made to provide access to historic fishing grounds for the fleet. Numerous examples of closure areas and exemptions are provided in the comment.

Response. NMFS disagrees that the conservation measures contained within the emergency interim rule are a patchwork attempt that would jeopardize the continued existence of Steller sea lions or adversely modify critical habitat in exchange for access to preferred fishing grounds. The emergency interim rule outlines the extensive public process that NMFS and the Council used in determining the structure of the closure areas (Part I. Steller Sea Lion Protection Measures at 67 FR 956). This process focused on the biology of Steller sea lions and their foraging requirements. The Council, its RPA Committee, and NMFS utilized the best available scientific information in order to avoid jeopardizing the continued existence of Steller sea lions or destroying or adversely modifying their critical habitat. Only after all this information was taken into account did the Committee consider the needs of the fishing industry in developing access to fishing grounds. For most fisheries, substantial historic fishing grounds were closed in order to promote the recovery of the western DPS of Steller sea lions.

The 2001 BiOp describes the likely effects of the proposed conservation measures. Substantial areas of Steller sea lion critical habitat are closed to pollock, Pacific cod, and Atka mackerel fishing under the emergency interim rule (see Table 5.3, page 169). Based on the latest scientific information, NMFS has determined that nearshore areas (0-10 nm) are the most critical to the western DPS of Steller sea lions (specifically pups and juveniles). This determination differs from NMFS' opinion in past Section 7 consultations on the BSAI and GOA fisheries. New data and analyses of Steller sea lion at-sea distributions imply a foraging pattern not previously understood. Substantial uncertainty still exists in understanding the specific areas important to Steller sea lions and the effects of fisheries in these areas. However, NMFS concludes that current information is sufficient to provide adequate protection for the endangered western DPS of Steller sea lions and its critical habitat while providing access to some of the historical fishing grounds for the pollock, Pacific cod, and Atka mackerel fisheries.

In the 2001 BiOp, Table 5.3 describes the areas closed in relation to their distance from land in Steller sea lion critical habitat. These conservation measures include substantial closures within 10 nm from haulouts and rookeries. When comparing this closure area with the amount of nearshore area closed in the comprehensive BiOp, much more of the 0-10 nm area is closed under this action. Although NMFS determined that nearshore areas are more important than offshore habitat, the total closure area is similar under both scenarios (roughly 60-65 percent of critical habitat). When the effects of these closures are evaluated, weighted by area for Steller sea lion abundance and population trend rates, the result is a strategy as conservative as the RPA contained in the comprehensive BiOp, although the two approaches use different tools to protect the western DPS of Steller sea lions and protect its critical habitat.

Comment 3. NMFS' interpretation of the available telemetry data from Steller sea lions is flawed. NMFS points out numerous limitations and potential biases to the data, as well as criticism by a peer review panel, but does not appropriately integrate this uncertainty into its management of these fisheries in order to avoid adverse effects to Steller sea lions or their critical habitat. Following this reasoning, NMFS did not develop closure areas that are large enough to insure the protection of juvenile and adult female Steller sea lions; the segment of the population which NMFS asserts is the most vulnerable to localized depletions caused by fishing. NMFS has not adequately described what the edge effects may be of large fishery removals of Steller sea lion prey species on the boundary of 3 or 10 nm closures near haulouts and rookeries. Additionally, NMFS did not display the amount of area closed to fishing in a way which could easily be compared to previous conservation measures for pollock and Atka mackerel.

Response. NMFS uses the best scientific and commercial data available in consultations pursuant to section 7 of the ESA. The best information available to NMFS is the at-sea locations based on approximately 100 instrumented animals. NMFS explored various ways of looking at this information in the 2001 BiOp and determined that the distribution of hits was reasonably likely to capture Steller sea lion foraging patterns. As various reviews have pointed out (i.e., Bowen et al., 2001), the effectiveness of NMFS' protection measures are sensitive to this assumption. NMFS expects to have more sophisticated analyses on sea lion foraging patterns within the next several years and will continue to evaluate the important assumptions made in the 2001 BiOp.

NMFS acknowledges that the uncertainty regarding the telemetry information caused NMFS to conservatively protect areas beyond the core 0-10 nm buffer zones. Table 5.3 and section 5.3.4 of the 2001 BiOp outline the complex protection measures in relation to their distance from shore. In general, little or no fishing is allowed within 3 nm of rookeries and haulouts; some nontrawl gear fishing from 3-10 nm (i.e., no trawling); and some trawling and nontrawl gear fishing from 10-20 nm, with trawl gear prohibited from 0-20 nm around rookeries and haulouts in approximately half of the critical habitat sites in all areas. NMFS believes that these closures are more conservative than the RPA of the comprehensive BiOp which would have instituted closure areas in bands, closing all critical habitat within a zone out to 20 nm while other bands, in some cases, would have been open all the way to the shore. Under the January 8, 2002, emergency interim rule, all of the 13 areas receive substantial closures out to at least 10 nm, leaving virtually no “holes” where fishing would occur close to a rookery or haulout. This change in conservation strategy is based on the new telemetry analysis information that was not available to NMFS in November 2000. For these reasons, NMFS believes that the closure areas are adequate because they encompass the areas close to shore that appear to be important to juvenile Steller sea lions, lactating females, and pups.

In the 2001 BiOp, NMFS explored the idea of edge effects and the migration of Steller sea lion prey into critical habitat areas where they would be available to foraging sea lions (see section 5.3.1.7 of the 2001 BiOp). Unfortunately, there is very little information on the migration of Steller sea lion prey species into critical habitat, and the possible effects of fisheries on those small scale fish movements. The 2001 BiOp describes the possible scenarios and the current research on Atka mackerel and pollock. At this point, NMFS' preliminary information indicates that migratory distances for Atka mackerel are small. This is unlikely to explain migration patterns in other species due to differences in life history patterns. NMFS is continuing this research and expects to have further insight into the issue over the next two to three years. Currently, NMFS has no information which would indicate that fishing at the levels authorized under the emergency interim rule would cause localized depletions of prey inside the closure areas.

The amount of closure area has been described in numerous ways by NMFS. In the SEIS, Table 4.8-3 displays the amount and the percentage of area closed under each of the alternatives. Additionally, in section 5.3.2.1 NMFS explored various methods of describing protection measures in comparison with the previous RPA from the comprehensive BiOp. Section 5.3.4 of the 2001 BiOp also describes the amount of area closed by zones radiating out from rookeries and haulouts.

Comment 4. In previous Section 7 consultations under the ESA, NMFS determined that pollock fisheries were likely to jeopardize Steller sea lions because of their temporal concentration. In the December 3, 1998, Biological Opinion, NMFS outlined 6 criteria necessary to disperse the pollock fisheries in order to avoid jeopardizing Steller sea lions or adversely modifying their critical habitat. NMFS provides no explanation as to why they have not applied similar criteria to TAC allocations for pollock, Pacific cod, and Atka mackerel under the January 8, 2002, emergency interim rule for 2002. For example, numerous examples of TAC allocations are provided that do not comply with NMFS' criteria. How does this action avoid jeopardy and adverse modification of critical habitat when these fisheries are likely to be as temporally concentrated as in 1998 and 2000 when NMFS determined them to be unacceptably high?

Response. The 2001 BiOp on Steller sea lion protection measures provides the rationale for the temporal distribution of the pollock, Pacific cod, and Atka mackerel fisheries in the BSAI and GOA (see section 5.3). The seasonal allocations of TAC are considered together with the spatial dispersion of these fisheries. The “no jeopardy” determination for the western DPS of Steller sea lions and no adverse modification of its critical habitat is based on new information and analyses that became available since the 1998 Biological Opinion was completed (see response to comment 4 above) and in consideration of potential fishery impacts on the western DPS of Steller sea lions as a whole.

Protection measures are consistent from one region to the next. Maximum protection was provided close to shore, within 0-3 nm from rookeries and haulouts. From 3-10 nm from rookeries and haulouts, limited fishing is authorized by gear types unlikely to cause localized depletions. From 10 nm and beyond, trawl fisheries are authorized, in some cases with critical habitat limits in order to protect Steller sea lion prey availability. New information available on the at-sea distribution of Steller sea lions, and their presumed foraging habits, indicated to NMFS that a slightly different management action was necessary in order to adequately protect and recover the endangered Steller sea lion.

In the BSAI, the rationalization of the pollock fishery under the American Fisheries Act and the allocation of Pacific cod TAC among gear types, processing and catcher vessel sectors, and vessel size classes contribute significantly to spatial and temporal dispersion of these two fisheries. Although the Atka mackerel fishery cannot be considered fully “rationalized,” the fleet's harvest rate in the western and central districts of the Aleutian Islands has been reduced by nearly half in critical habitat under the new group management of fishing effort.

The GOA pollock and Pacific cod fisheries are not allocated among gear types or rationalized in a manner that would provide for slowing the pace of the fisheries under these highly competitive scenarios. Thus, more elaborate conservation measures are necessary to prevent locally high harvest rates. These measures include gear-specific fishery closures around rookeries and haulouts, four equal seasonal apportionments of the pollock TAC, and a 60/40 seasonal apportionment of the Pacific cod TAC. Additionally, any rollover of unharvested pollock from one season to the next is limited to 5 percent of the annual TAC (i.e., so that no more than 30 percent of the annual TAC is harvested in any one season). Historically, the GOA Pacific cod TAC has been harvested during the first quarter of the calendar year. The emergency interim rule now restricts the harvest to no more than 60 percent of the TAC during the first 6 months of the year, a substantial new conservation measure that was not required in the RPA for the 1998 BiOp. Thus, the fact that the GOA pollock fishery is temporally dispersed into four seasons while other fisheries are dispersed into fewer seasons is based on consideration of the nature of the fishery, seasonal distribution of prey biomass, TAC allocations among different sectors, closure areas, and the lack of rationalization in the GOA fisheries.

NMFS has determined that the protection measures implemented under the emergency interim rule avoid jeopardy to the western DPS of Steller sea lions and the destruction or adverse modification of its critical habitat without resorting to a uniform approach to the protection measures.

Comment 5. The harvest control rule (HCR) for pollock, Pacific cod, and Atka mackerel does not provide meaningful protection for Steller sea lions. Furthermore, NMFS has not adequately displayed the effects of fishing under the HCR on the Steller sea lion population due to the following: (a) removal of 60 percent of the theoretical biomass of a primary prey species for the endangered Steller sea lion, (b) authorization of a substantial harvest rate even when the biomass is below the B40% target level, and (c) authorizing fishery removals until 80 percent of the biomass of a primary prey species has been removed. In 2002, four stocks are below the B40% biomass level, and the eastern Bering Sea pollock stock, which was estimated in the 2001 Stock Assessment and Fishery Evaluation report to be at a very high biomass level, was only at B45%. NMFS has not addressed issues raised by these biomass removals and the resulting diminished carrying capacity for Steller sea lions.

Response. NMFS disagrees. The HCR provides meaningful protection to the western DPS of Steller sea lions and its critical habitat by halting fishing in the unlikely event that the biomass of a key prey species drops below 20 percent of its theoretical unfished level. Additionally, NMFS considers the harvest restraints implemented under FMP amendments 56/56 to be very conservative. Under these rules, the maximum permissible fishing mortality rates are formally reduced when the stock falls below B40%. In addition, stock assessment scientists often recommend fishing mortality rates that are below the maximum permissible level. These constraints are intended to accelerate the recovery of the spawning stock biomass when stock levels are below B40%. For pollock, Pacific cod, and Atka mackerel, the HCR would prohibit directed fishing before the stock was declared overfished. Thus, the HCR provides added protection to pollock, Pacific cod, and Atka mackerel stocks, if the spawning stock biomass exhibits a rapid decline.

Steller sea lion foraging behavior, physiology, and nutrition are discussed at length in the SEIS, sections 3.1.1.7. and section 3.1.1.8. The discussion of physiology and nutrition is a quantitative presentation of food intake requirements. The analysis includes an examination as to whether the alternative management regime would result in fisheries harvest on prey species of particular importance to marine mammals at levels that could compromise foraging success. The analysis concluded that the effects on the human environment were insignificant for all five alternatives in the SEIS, including the protection measures in the January 8, 2002, emergency interim rule. Therefore, based on all of the above information, NMFS determined that the proposed action would not cause jeopardy to the western DPS of Steller sea lions or adverse modification to its critical habitat.

Classification

The Administrator, Alaska Region, NMFS (Regional Administrator), has determined that this proposed 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 proposed rule is consistent with the Magnuson-Stevens Act and other applicable laws. No relevant Federal rules exist that may 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 an IRFA that described the economic impact this proposed rule, if adopted, would have on small entities. A description of the proposed action, why it is being considered, and the legal basis for this action are contained at the beginning of this preamble.

The IRFA concluded based on the numbers of operations in 2000, that approximately 581 small entities would be directly regulated by the rule. This includes 514 catcher vessels, 30 catcher/processors, and 37 shoreside processors.

Reductions in TACs, increases in the proportions of TACs placed “at risk” due to closure or restriction of accustomed fishing areas, potential long-term market share losses, and possible quality reductions are expected to decrease gross revenues for all fleet segments. CDQs are small entities, and estimates suggest a reduction in gross revenues between 1.6 percent and 6.3 percent. Shoreside processors buying from catcher vessels will have estimated reductions in revenues between 1.1 percent and 5.9 percent. These may translate into reduced ex-vessel revenues for catcher vessels of similar magnitudes. Most catcher vessels are small entities. Catcher/processor revenues will also drop and some catcher/processors are small entities. The low end of the range of possible decreases in gross revenues does not appear to be disproportionate for small entities, but the high end of the range does.

The proposed regulation would increase vessel and processor operating costs for a number of reasons: (a) An increased travel time to and from more distant fishing grounds; (b) costs of learning new grounds; (c) costs of undertaking bycatch avoidance measures, or the costs associated with lost catches from premature closures due to excessive bycatch, if these efforts are unsuccessful; (d) reduced catch per unit effort due to less concentrated target stocks; (e) costs of stand-downs and lay-ups; (f) potential gear conflicts; (g) costs of fishing Pacific cod, pollock, or Atka mackerel when other economically important fisheries are open; (h) operational inefficiencies caused when processing facilities built for high rates of throughput receive slower fish deliveries; and (i) costs for installation and operation of VMS equipment. The cost for the purchase and installation of the VMS is expected to be about $1,900 for all operations; this will impose a proportionately larger increase in the costs incurred by small entities.

The action imposes new recordkeeping and reporting requirements. (1) Questions will be added to the annual fishing permit renewal application and the CDQ catch report. These questions are expected to have small costs per vessel and in aggregate. (2) A VMS is a NMFS-approved transmitter that automatically determines the vessel's position and transits it to a NMFS-approved communications service provider. A VMS unit will allow NMFS to continually track the location of a fishing vessel. This capability is extremely important in order for NMFS to effectively enforce the large number of area-based fishing restrictions designed to protect the Stellers sea lion. Jig vessels have been excluded from this requirement, but other vessels will be required to carry VMS while they are fishing for Pacific cod, pollock, and Atka mackerel. The cost for the purchase and installation of a VMS unit is estimated to be $1,926. Annual maintenance and transmission costs for a small entity are estimated to be $220. The VMS costs should be substantially mitigated for small vessels since the Pacific States Marine Fisheries Commission (PSMFC) has obtained a grant of $1.8 million from NMFS for the purpose of reimbursing vessel owners for VMS purchases that are required under these regulations. PSMFC will reimburse up to $2,000 of the purchase price of each unit. The grants will not cover the costs of installation, maintenance, and operation of the units. (3) The regulation increases the number of observers that must be carried by a vessel fishing for Atka mackerel in Aleutian Islands critical habitat from one to two. The cost for an additional observer was estimated to range between $12,600 and $25,000 a year per operation.

This analysis did not reveal any Federal rules that duplicate, overlap or conflict with the proposed action.

The Council considered five regulatory alternatives and three options for one of these alternatives. Only one of the alternatives (the “no action” alternative involving the expiration of most of the rules that had been implemented by emergency order to protect the Steller sea lions) had smaller adverse impacts on small entities than the preferred alternative. The “no action” alternative was not adopted because it was presumed to violate the provisions of the Endangered Species Act and, therefore, failed to achieve the objectives of the proposed action.

The Council considered, but did not adopt, two options to Alternative 4, which might have produced a reduced impact on the small vessel fleets. One of these would have exempted certain classes of small vessels from fishing restrictions in the vicinities of Chignik and a second would have established a system of “gear zones” along the coast in the GOA, and have restricted larger vessels to a greater extent than small ones in the zones closer to the shore. The Council preliminarily decided not to include the additional small boat exemptions for Chignik due to concerns that opening these areas would reduce the value as a control site for evaluating management measures and increase the likelihood for competitive interactions with sea lions, and that this site has not been economically important to the small boat fleets. The Council preliminarily 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 respectively).

An IRFA has been prepared for the Chiniak Gully experiment in compliance with the Regulatory Flexibility Act of 1980 and the Small Business Regulatory Enforcement Fairness Act of 1996. The IRFA concluded that most of the vessels that otherwise would trawl for groundfish in the proposed Chiniak Gully area during late summer are small entities. Most of these affected vessels are home ported in and operate out of the city of Kodiak, adjacent to the proposed closure area. Although vessels will be able to harvest elsewhere 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. However, these costs would not be significant and would be short-lived. Because these small vessels may 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. The alternatives of no action and of excluding small entities from the action would have reduced the burden on small entities, but did not meet the objectives of the action. Copies of this IRFA are available from NMFS (SEE ADDRESSES).

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/IRFA 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/IRFA 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/IRFA. 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 proposed rule are discussed in the SEIS for this action.

This proposed rule contains and refers to collection-of-information requirements subject to the Paperwork Reduction Act. Applications to amend a permit and register for Atka mackerel, pollock, or Pacific cod directed fisheries have been approved by the Office of Management and Budget (OMB) under OMB control number 0648-0206. Requirements regarding use of a VMS have been approved under OMB control number 0648-0445.

The estimated response time for an application to amend a permit and register for the Atka mackerel, pollock, or Pacific cod directed fisheries is 31 minutes. The response time for VMS-related requirements are 6 hours to install a 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.

The response-time estimates above 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 these burden estimates, or any other aspect of these data collections, including suggestions for reducing the burden, to NMFS (see ADDRESSES) and to the Office of Management and Budget, Washington, DC 20503 (Attn: NOAA Desk Officer).

Notwithstanding any other provisions of the law, no person is required to respond to, and no person shall 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 proposed 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 OPR to OSF, the Director of the OPR determined that fishing activities described in the proposed 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.

List of Subjects in 50 CFR Part 679

Alaska, Fisheries, Recordkeeping and reporting requirements.

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

PART 679—FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

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

Authority: 16 U.S.C. 773 et seq.; 1801 et seq.; 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 added to read as follows:

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

5. In § 679.20:

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

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), (a)(8)(ii)(C), (a)(8)(iii), (a)(11), (b)(2)(i), (b)(2)(ii), (d)(4) and the newly designated paragraph (a)(7)(iii)(B).

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

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

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

8. 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:

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

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

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