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

AGENCY:

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

ACTION:

Interim final rule; request for comments.

SUMMARY:

NMFS issues an interim final rule to implement Steller sea lion protection measures to insure that the Bering Sea and Aleutian Islands management area (BSAI) groundfish fisheries off Alaska are not likely to jeopardize the continued existence of the western distinct population segment (DPS) of Steller sea lions or adversely modify its designated 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 in the BSAI. The intended effect of this interim final rule is to protect the endangered western DPS of Steller sea lions, as required under the Endangered Species Act, and to conserve and manage the groundfish resources in the BSAI in accordance with the Magnuson-Stevens Fishery Conservation and Management Act.

DATES:

Effective January 1, 2011. Comments must be received by January 12, 2011.

ADDRESSES:

Send comment to Sue Salveson, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, Attn: Ellen Sebastian. You may submit comments, identified by RIN 0648-BA31, by any one of the following methods:

• Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal at http://www.regulations.gov.
• Mail: P.O. Box 21668, Juneau, AK 99802.
• Fax: (907) 586-7557.
• Hand delivery to the Federal Building: 709 West 9th Street, Room 420A, Juneau, AK.

All comments received are a part of the public record. No comments will be posted to http://www.regulations.gov for public viewing until after the comment period has closed. Comments will generally be posted without change. All Personal Identifying Information (for example, name, address) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information.

NMFS will accept anonymous comments (enter N/A in the required fields, if you wish to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.

Electronic copies of the Environmental Assessment/Regulatory Impact Review (EA/RIR) prepared for this action, the 2010 Biological Opinion on the Authorization of Groundfish Fisheries under the Fishery Management Plans for the Bering Sea and Aleutian Islands Management Area and the Gulf of Alaska, the 2008 Revised Recovery Plan for the Steller Sea Lion, the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area, and the 2006 Alaska Groundfish Fisheries Biological Assessment are available from NMFS Alaska Region, P.O. Box 21668, Juneau, AK 99802 or from the Alaska Region NMFS Web site at http://alaskafisheries.noaa.gov.

Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this interim final rule may be submitted to NMFS and by e-mail to OIRA_Submission@omb.eop.gov, or fax to 202-395-7285.

FOR FURTHER INFORMATION CONTACT:

Melanie Brown, 907-586-7228.

SUPPLEMENTARY INFORMATION:

NMFS manages the groundfish fisheries in the exclusive economic zone off Alaska under the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (BSAI) 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 Fishery Conservation and Management Act (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 Endangered Species Act (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. As the action agency, NMFS is responsible to insure that the Federal action of authorizing the Alaska groundfish fisheries is not likely to jeopardize the continued existence or modify or destroy designated critical habitat for ESA-listed species. The action implemented by this interim final rule is the result of an ESA section 7 formal consultation biological opinion, which requires the implementation of a reasonable and prudent alternative to the current Alaska groundfish fisheries management.

Background

The Endangered Species Act of 1973 (ESA) requires Federal agencies to “insure that any action authorized, funded, or carried out by such agency * * * is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of habitat of such species which is determined * * * to be critical.” 16 U.S.C. sec. 1536(a)(2). This provision further requires Federal agencies to consult with the Secretary of Commerce on Federal actions that might affect species under the Secretary's jurisdiction that are listed as endangered or threatened (“listed species”). The annual authorization of the Alaska groundfish fisheries under the Magnuson-Stevens Act is an “action authorized, funded, or carried out” by a Federal agency that could affect listed species under the jurisdiction of the Secretary of Commerce, and therefore requires consultation.

In October 2005, the Council recommended that NMFS reinitiate an FMP-level formal section 7 consultation on the effects of the Federal groundfish fisheries on ESA-listed species under U.S. Department of Commerce jurisdiction. This jurisdiction has been formally delegated to NMFS. On April 19, 2006, the Protected Resources Division of NMFS Alaska Region (PRD), as the consulting agency, received a written request from the NMFS Alaska Region Sustainable Fisheries Division (SFD), as the action agency, to re-initiate section 7 consultation on the Federal groundfish fisheries in waters 3 miles to 200 miles off Alaska, as well as several groundfish fisheries that are conducted in waters of the State of Alaska (collectively, the “Alaska groundfish fisheries”), to evaluate the effects of current Federal fisheries management on listed species because of information gained and management actions taken since previous consultations. That request was accompanied by a biological assessment that reviewed the likely effects of the Alaska groundfish fisheries on all twelve of the listed marine species found in waters off Alaska and under NMFS's jurisdiction (see ADDRESSES). In June 2006, PRD concluded that the information provided by SFD's biological assessment showed that the Steller sea lion (both the western and the eastern DPSs), the North Pacific humpback whale, and the North Pacific sperm whale were likely to be adversely affected by the Alaska groundfish fisheries. This determination required the initiation of formal section 7 consultation under the ESA on these species and Steller sea lion designated critical habitat, resulting in the issuance of a biological opinion. Subsequent to reinitiating consultation, a fin whale was taken incidentally in the BSAI pollock trawl fishery. Therefore, fin whales also were included in this consultation. Critical habitat is not designated for humpback, fin, and sperm whales.

Under the ESA and its implementing regulations, if the consulting agency (here, PRD) finds that the proposed action is likely to either jeopardize the continued existence of the species or result in the adverse modification of critical habitat, the consulting agency is required to identify a reasonable and prudent alternative (RPA), if any, that would not violate the ESA. While an action agency (here, SFD) has limited discretion to adopt different measures than those contained in the RPA, it does so at its peril and must still demonstrate why the alternative measures comply with the ESA's mandate to avoid the likelihood of jeopardizing the continued existence of the species or adversely modifying critical habitat.

As explained in detail below, NMFS issued a biological opinion (2010 BiOp, see ADDRESSES) that concluded that the proposed fishery management action was not likely to jeopardize the continued existence or adversely modify the critical habitat of North Pacific humpback whales, North Pacific sperm whales, fin whales, or the eastern distinct population segment of Steller sea lions, but was likely to jeopardize the continued existence and adversely modify the critical habitat of the western DPS of Steller sea lions.

Section 3.5.3 of the FMP for Groundfish of the BSAI, approved by the Secretary of Commerce under the Magnuson-Stevens Act, specifically authorizes implementation by regulation of special fishery management measures to protect marine mammals, without requiring amendment of the fishery management plan itself (see ADDRESSES). Therefore, NMFS has chosen to implement fishery management measures responding to the biological opinion issued under the ESA via regulations promulgated under the Magnuson-Stevens Act.

In order to provide as transparent a process as possible, on August 3, 2010, NMFS released a draft of the 2010 BiOp, including the RPA, as well as analyses of alternatives to the proposed action (see ADDRESSES). These analyses were a draft environmental assessment (EA) prepared pursuant to the National Environmental Policy Act (NEPA), reviewing the potential impact on the human environment of the proposed action and alternatives; and a Regulatory Impact Review (RIR) pursuant to Executive Order 12866, which analyzes the cost and benefits of the proposed action and alternatives. The draft 2010 BiOp and draft EA/RIR were presented to the Council at a special meeting in August 2010. The Council and the public were provided a comment period to submit suggested changes to the RPA. PRD reviewed the comments from the Council and the public and made revisions to the RPA consistent with principles and objectives in the draft biological opinion. The final 2010 BiOp was signed on November 24, 2010. Both the final 2010 BiOp and EA/RIR are available to the public (see ADDRESSES). This interim final rule adopts the RPA in the final 2010 BiOp. Therefore, NMFS takes this action under the Magnuson-Stevens Act to comply with its responsibilities under the ESA to insure that its action, i.e., the authorization of the Alaska groundfish fisheries, is not likely to jeopardize the continued existence of the western DPS of Steller sea lions or result in the destruction or adverse modification of its designated critical habitat.

In this rulemaking, NMFS adopted the 2010 BiOp's RPA because it was modified based on public comment on the draft RPA to reduce impacts on the fisheries while insuring that the groundfish fisheries are not likely to jeopardize the continued existence of Steller sea lions or adversely modify their designated critical habitat. While NMFS considered public comments that would have allowed greater fishing opportunities, including the Council's proposed alternative, none of those measures as a whole would have met the performance standards of the RPA to insure the groundfish fisheries are not likely to jeopardize the continued existence of Steller sea lions or adversely modify their designated critical habitat.

Because the 2010 BiOp, including the RPA, was not signed until November 24, 2010, and the Alaska groundfish fisheries open on January 1, 2011, it is necessary for these regulations to be issued on an expedited basis, without the usual notice and opportunity for public comment before the regulations go into effect. See the Classification section of this rule for further information on waiver of prior notice and comment.

Findings of the 2010 Biological Opinion

The jeopardy and adverse modification finding for the western DPS of Steller sea lions is based on the continued decline of Steller sea lions in the Aleutian Islands subarea and the potential effects of the harvest of Atka mackerel and Pacific cod in this subarea. Over the last eight years, the numbers of sea lions in the western most district of the Aleutian Islands subarea (Area 543) have declined by approximately 45 percent. Because of the current population decline in Area 543, as well as the slow population decline observed in the central and eastern districts of the Aleutian Islands subarea (Areas 542 and 541, respectively), the recovery of the western DPS of Steller sea lions is not meeting the criteria in the 2008 Recovery Plan (see ADDRESSES). If population trends in the Aleutian Islands subarea continue at current rates, Steller sea lions may be extirpated from this portion of their range.

Atka mackerel and Pacific cod are principal prey species of Steller sea lions. The harvest of these species may impact the foraging success of Steller sea lions. Atka mackerel and Pacific cod harvest have been managed in the Aleutian Islands under the temporal and spatial dispersion requirements implemented by the Steller sea lion protection measures. These protection measures were implemented in 2002 by emergency interim rule (67 FR 956, January 8, 2002; amended 67 FR 21600, May 1, 2002; corrected 67 FR 45671, July 10, 2002, 67 FR 47472, July 19, 2002, and 67 FR 64315, October 18, 2002; and extended 67 FR 34860, May 16, 2002) and by final rule in 2003 (68 FR 204, January 2, 2003; corrected 68 FR 24615, May 8, 2003). Detailed analysis of the environmental baseline; Steller sea lions population trends, foraging behavior, and biology; and effects of the groundfish fisheries on Steller sea lions is presented in the 2010 BiOp (see ADDRESSES).

Reasonable and Prudent Alternative

Based on the continued population decline of Steller sea lions in portions of the Aleutian Islands subarea and the potential effects of groundfish harvests on Steller sea lions and their critical habitat, an RPA to the current management of the BSAI groundfish fisheries must be implemented to insure the Alaska groundfish fisheries are not likely to jeopardize the continued existence of the western DPS of Steller sea lions and adversely modify its designated critical habitat. These protection measures are necessary to comply with section 7(a)(2) of the ESA. Details on the specific protection measures in the RPA and their effects on Steller sea lions and their critical habitat are in chapter 8 of the 2010 BiOp (see ADDRESSES).

The RPA was structured to mitigate effects of the fishery in locations where Steller sea lion abundance continues to decline (Areas 543, 542, and 541) and where available information indicates that reproduction may be reduced to a level that cannot support population growth. The 2010 BiOp determined that the weight of evidence indicates that fisheries for Steller sea lion prey may be appreciably reducing the reproduction and thus numbers of Steller sea lions and adversely modifying the conservation value of their critical habitat in Areas 543, 542, and 541 by removing large quantities of prey species important to Steller sea lions for basic nutrition and reproductive capacity. Competition with fisheries for prey is likely one component of an intricate suite of natural and anthropogenic factors affecting Steller sea lion numbers and reproduction. While natural factors may be contributing, NMFS must insure that actions authorized by NMFS are not likely to appreciably reduce the likelihood of survival and recovery of the western DPS of Steller sea lions.

The RPA was developed based on performance standards that address the effects of the groundfish fisheries and the population status and foraging behavior of Steller sea lions in the Aleutian Islands subarea. The details of these standards are in the 2010 BiOp (see ADDRESSES). One of the performance standards requires that the protection measures be commensurate with the rate of Steller sea lion population declines, with more stringent measures in those locations with greater population declines. The RPA meets this standard by applying more fisheries restrictions in Area 543 where Steller sea lions have the highest population decline and applying fewer fisheries restrictions in Areas 542 and 541, where Steller sea lion population decline is less. The implementation of the RPA is expected to eliminate local competition between Steller sea lions and the Atka mackerel and Pacific cod fisheries in Area 543. This is intended to improve foraging success and prey availability for juvenile and adult Steller sea lions, which is expected to lead to higher survival and natality rates. The RPA also reduces the competitive overlap between Steller sea lions and fisheries for Atka mackerel and Pacific cod in Areas 542 and 541. This is intended to improve foraging success and prey availability for Steller sea lions, particularly adult females with dependent young in winter, which is expected to lead to higher natality rates and survival.

In addition to maintaining the status quo, NOAA considered three different alternatives for analysis under NEPA and under Executive Order 12866 to inform its decisions as to how best to manage the fishery in compliance with the ESA (see ADDRESSES for the EA/RIR). The status quo was rejected because it would not avoid jeopardy or adverse modification. One alternative was an alternative that complied with ESA's statutory mandates regarding jeopardy and adverse modification but had a greater impact on the fishing industry than the RPA. The second alternative was the draft RPA in the draft 2010 BiOp released for public review in August 2010. The second alternative was not implemented as NMFS reviewed the Council and public comments regarding the draft RPA and further refined the RPA to provide additional opportunity for fishing while meeting the RPA performance standards. The third and preferred alternative is the RPA from the final 2010 BiOp. While the RPA may result in substantial impacts on the fishing industry, NMFS determined that the RPA is the least costly alternative among the options that is likely to avoid jeopardy and adverse modification.

Protection Measures Requiring Regulatory Amendments

The following are the revisions to the Steller sea lion protection measures implemented by this interim final rule.

Application of the Revised Protection Measures

The protection measures that are implemented by this rule, and which are further described below, apply to vessels that catch groundfish that is required to be deducted from the Federal total allowable catch (TAC) under § 679.20 and that are required to be named on a Federal Fisheries Permit iss ued under § 679.4(b) in the BSAI reporting areas, including the State of Alaska (State) waters within those reporting areas. Federally permitted vessels that participate in the State Pacific cod fishery authorized by 5 AAC 28.647, Aleutian Islands District Pacific Cod Management Plan (AI State-managed Pacific cod fishery) and that deduct this Pacific cod from the State Pacific cod guideline harvest level and not the Federal TAC, would not be subject to the Pacific cod retention and directed fishing restrictions specified in this interim final rule. The State has adopted the same Steller sea lion protection measures for the AI State-managed Pacific cod fishery as NMFS implemented for the Federal groundfish fisheries in 2003 (68 FR 204, January 2, 2003). The 2010 BiOp included the cumulative impact of the AI State-managed Pacific cod fishery. Based on the findings in the 2010 BiOp, which considered the combination of effects of the AI State-managed Pacific cod fishery and the Federal groundfish fisheries, NMFS has determined that the modifications made by this interim final rule are sufficient to insure that NMFS's authorization of Federal fisheries is not likely to jeopardize the continued existence of the western DPS of Steller sea lions or destroy or adversely modify its designated critical habitat.

Area 543 Atka Mackerel and Pacific Cod Fishing Prohibitions

The RPA requires a protection measure prohibiting the retention of Pacific cod and Atka mackerel in Area 543. Because Area 543 has experienced the most severe decline in Steller sea lion abundance and because Atka mackerel and Pacific cod are important prey items, it is necessary to reduce fishery removals of these prey species. Pacific cod and Atka mackerel may not be targeted or retained when incidentally caught in other groundfish fisheries. If only a directed fishing closure were used to limit Atka mackerel and Pacific cod harvest, these species could be retained up to the maximum retainable amount (MRA) of the basis species specified in Table 11 to 50 CFR part 679. For example, if retention were not prohibited, a vessel targeting Pacific ocean perch could retain Atka mackerel and Pacific cod in amounts up to 20 percent of the amount of Pacific ocean perch retained.

As described in the 2010 BiOp, NMFS model results indicate that allowing fishing to occur, even at substantially reduced levels, would inhibit a significant increase in biomass of Atka mackerel and Pacific cod. NMFS believes a significant increase in biomass of Atka mackerel and Pacific cod will contribute to both the continued survival and recovery of Steller sea lions in Area 543. The biomass of these prey species is expected to increase if all retention of Atka mackerel and Pacific cod is prohibited. Given the potential for Atka mackerel and Pacific cod fisheries to compete with Steller sea lions in a manner that limits their reproduction or survival, as evidenced in population responses observed to date in Area 543, NMFS has determined that it must eliminate this potential competition to comply with the ESA.

Atka Mackerel Harvest Limit Area (HLA) Fishery

Under the 2003 Steller sea lion protection measures, the harvest of Atka mackerel inside Steller sea lion critical habitat in Area 543 and the western portion of Area 542 was dispersed by controlling the number of vessels that could harvest Atka mackerel inside the HLA. The HLA included designated critical habitat and waters 0 nm to 20 nm around other locations identified as important to Steller sea lions (Steller sea lion sites). A lottery system assigned vessels to platoons that were allowed to fish inside the HLA in specific locations and at specific times. The details of the HLA fishery are in the 2003 final rule for the Steller sea lion protection measures (68 FR 204, January 2, 2003). Because the RPA would prohibit all retention of Atka mackerel in Area 543 and nearly all directed fishing for Atka mackerel in waters 0 nm to 20 nm around Steller sea lion sites in Area 542, the platoon management of Atka mackerel harvest inside the HLA is no longer needed.

Kanaga Island/Ship Rock Groundfish Closure

Recent Steller sea lion count information indicates that this site is now functioning as a rookery. The rookeries listed in Table 12 to 50 CFR part 679 are surrounded by groundfish fishery closures that extend 0 nm to 3 nm from the site. The RPA requires the Kanaga Island/Ship Rock rookery to be treated the same as other rookeries. Therefore, this action includes a protection measure to close directed fishing for groundfish in waters 0 nm to 3 nm of this site. This closure is necessary to protect animals using this location from potential disturbance by fishing vessels and to protect near shore prey resources. Very little groundfish catch has historically occurred in waters 0 nm to 3 nm from this site. According to the 2010 BiOp, this site is important to the population of the western DPS of Steller sea lions because it is one of the few locations in the Aleutian Islands where Steller sea lion reproduction is occurring.

Pacific Cod Nontrawl Fisheries Winter Closure in Areas 542 and 541

The RPA includes a closure of the Pacific cod hook-and-line, pot, and jig gear (nontrawl) fisheries in Areas 542 and 541 from November 1, 1200 hours, Alaska local time (A.l.t.), to December 31, 2400 hours, A.l.t. This closure of nontrawl fisheries is consistent with the trawl fishery closure during this time period. This closure allows for two months in the winter when Steller sea lions would not compete with vessels for Pacific cod prey. This closure is necessary to prevent expansion of fishing into time periods not previously fished as other time periods and areas historically fished are restricted under these protection measures. This measure is intended to protect prey availability in the winter when Steller sea lion energetic needs are high and when Pacific cod compose a larger proportion of their diet relative to the summer.

Pacific Cod Nontrawl Fisheries Closures in Area 542

The RPA includes two revisions to Area 542 protection measures for the nontrawl Pacific cod fisheries. The first revision closes waters 0 nm to 6 nm of Steller sea lion sites in Area 542 to nontrawl vessels directed fishing for Pacific cod year round. Telemetry data show the relative importance of different portions of critical habitat for foraging Steller sea lions. Steller sea lion at-sea locations from satellite-tagged animals summarized by 2 nm areas show high use by adult female Steller sea lions of waters from 0 nm to 6 nm, especially in summer, and higher use in this area by juveniles relative to other areas within critical habitat in both summer and winter.

Because of the need for extensive shallow-water locations and the relatively narrow continental shelf throughout the Aleutian Islands subarea, hook-and-line gear vessels generally fish for Pacific cod in the Aleutian Islands within 10 nm of Steller sea lion sites (EA/RIR, see ADDRESSES). The closure of waters from 0 nm to 6 nm provides protection to Steller sea lions while providing opportunity for fishing by the hook-and-line vessels. Prohibiting pot and jig gear vessels in this closed area allows for consistent management of all nontrawl gear types and further reduces potential competition for Pacific cod prey in critical habitat.

The second revision prohibits vessels 60 feet (18.3 m) or greater in length overall (LOA) using nontrawl gear from directed fishing for Pacific cod in waters 6 nm to 20 nm from Steller sea lion sites in Area 542 from January 1, 0001 hours, to March 1, 1200 hours, A.l.t. This revision does not apply to nontrawl vessels less than 60 feet (18.3 m) LOA because these vessels account for approximately two percent of historic Pacific cod Area 542 catch, a small proportion of the overall Pacific cod catch. NMFS determined that this small amount of catch would not be detrimental to the western DPS of Steller sea lions. This revised protection measure benefits Steller sea lion prey resources in the winter, an important time to protect prey resources, and provides the fishing industry with access to higher value fish in the later portion of the A season (March 1 to June 10).

Pacific Cod Trawl Vessel Closures in Area 542

The RPA includes revised protection measures for the trawl gear Pacific cod fisheries in Area 542. This interim final rule closes waters 0 nm to 20 nm from Steller sea lion sites to directed fishing for Pacific cod with trawl gear year round in most of Area 542. However, for Steller sea lion sites between 178° W longitude and 177° W longitude, this rule applies the year round closure only to waters from 0 nm to 10 nm. Waters that are 10 nm to 20 nm from Steller sea lion sites and that occur in this one degree longitude area are closed to directed fishing for Pacific cod with trawl gear in the B season (June 10, 1200 hours, A.l.t., to November 1, 1200 hours, A.l.t.), but are open during the A season.

The trawl fishery in Area 542 typically occurs in the A season when Pacific cod are aggregated, which coincides with the time of year in which Steller sea lion energetic needs are high. The 10 nm to 20 nm zone of critical habitat would be closed to trawl gear in the B season to prevent the trawl fishery from expanding into a season they have not traditionally fished in Area 542. Therefore, a year-round closure of 0 nm to 20 nm to trawl gear in most of Area 542 (177° E longitude to 178° W longitude) is intended to conserve the value of critical habitat and prevent an intensification of harvest, especially in the 10 nm to 20 nm zone of critical habitat.

Atka Mackerel Closures in Area 542

The RPA includes a closure to directed fishing for Atka mackerel in most of the critical habitat in Area 542. This interim final rule prohibits directed fishing for Atka mackerel in waters 0 nm to 20 nm from Steller sea lion sites in Area 542 located between 177° E longitude and 179° W longitude and between 178° W longitude and 177° W longitude. Directed fishing for Atka mackerel is prohibited in waters 0 nm to 10 nm from Steller sea lion sites located between 178° W longitude and 179° W longitude. These closures would provide protection to most of the critical habitat in Area 542, which is currently open to directed fishing for Atka mackerel, from the potential effects of Atka mackerel fishing while allowing a limited Atka mackerel fishery in a portion of critical habitat where the Steller sea lion population trends show less decline. NMFS determined that providing some fishing opportunities in the one degree longitude area within the 10 nm to 20 nm zone of critical habitat reduces the potential for impacting Atka mackerel occurring on Petrel Bank, the primary remaining productive Atka mackerel fishing grounds outside of critical habitat in Area 542.

Atka Mackerel Area 542 Critical Habitat Harvest Restrictions

The RPA includes a limitation on the participation in, and the amount and seasonal apportionment of, the Atka mackerel fishery in critical habitat in Area 542. This interim final rule limits the directed fishery for Atka mackerel in critical habitat between 178° W longitude and 179° W longitude to participants in the Western Alaska Community Development Quota (CDQ) Program or to vessels fishing under the authority of an Amendment 80 cooperative quota permit (72 FR 52668, September 14, 2007, corrected 73 FR 27768, May 14, 2008). The interim final rule also limits the amount of Atka mackerel catch from critical habitat to 10 percent of an Amendment 80 cooperative's Area 542 Atka mackerel allocation, and to 10 percent of a CDQ group's Area 542 Atka mackerel allocation. This 10 percent limit is seasonally apportioned evenly between the A and B seasons.

Limiting access to 10 nm to 20 nm of critical habitat only to operations with a specific allocation, i.e., operations fishing in harvest cooperatives or operations fishing CDQ, prevents a race for Atka mackerel in the open area of critical habitat and insures that allowable harvests in critical habitat is not exceeded. Vessels fishing under a CDQ allocation or an Amendment 80 cooperative allocation are constrained by their allocations and do not have an incentive to engage in a competitive “race for fish” with other participants. Vessels not participating in the CDQ Program or an Amendment 80 cooperative are not held individually accountable to a specific allocation and could have an incentive to “race for fish” in a manner that could cause a catch limit to be exceeded. In 2011, two Amendment 80 cooperatives will be formed. Each Amendment 80 cooperative may catch up to 10 percent of its Area 542 Atka mackerel allocation between 178° W longitude and 179° W longitude. Similarly, each CDQ group receiving an Area 542 allocation may catch up to 10 percent of its Area 542 Atka mackerel allocation within this specified area. Catch is temporally dispersed under either of these allocative programs.

The 10 percent harvest limit prevents catch that may exceed historical amounts taken from this area of critical habitat (2010 BiOp, see ADDRESSES). This 10 percent harvest limit also prevents excessive concentration of Atka mackerel catch inside critical habitat but provides the industry some opportunity to catch Atka mackerel in a location in Area 542 other than the Petrel Banks, where Atka mackerel fishing effort is likely to shift with the implementation of closures under this interim final rule. The seasonal apportionment of the critical habitat catch provides temporal dispersion of catch in critical habitat, reducing potential impacts on Steller sea lion prey availability.

Atka Mackerel Area 542 TAC Limit

The RPA includes a limit of the total catch of Atka mackerel to the historical amount caught in this area, but that is outside of critical habitat. Based on historical harvests, this interim final rule limits the Area 542 Atka mackerel TAC to no more than 47 percent of the Area 542 acceptable biological catch (ABC). The average annual Atka mackerel catch outside of critical habitat from 2003 through 2009 was 47 percent of the total catch in Area 542 (the lowest and the highest years were eliminated in the calculation). Setting the TAC at 47 percent of the ABC preserves historical access to Atka mackerel amounts that had been taken outside of critical habitat while preventing an increase of that amount of catch that could occur if the harvest displaced from the 10 nm to 20 nm zone of critical habitat west of 178° W longitude was allowed to be taken in the open area of Area 542. This limitation on Atka mackerel catch is less stringent than that which is imposed in Area 543 based on the determination by NMFS that measures should be commensurate with the population trends of Steller sea lions in particular areas.

Pacific Cod Nontrawl Vessel Closures in Area 541

The RPA includes a closure to nontrawl directed fishing for Pacific cod in Area 541. This interim final rule closes waters 0 nm to 20 nm from Steller sea lion sites to directed fishing for Pacific cod with nontrawl gear from January 1, 0001 hours, A.l.t., to March 1, 1200 hours, A.l.t., for all Federally permitted vessels in Area 541. After March 1, 1200 hours, A.l.t., nontrawl vessels are prohibited from directed fishing for Pacific cod in waters 0 nm to 10 nm from Steller sea lion sites in Area 541. These closures provide protection to Steller sea lion prey in critical habitat, particularly in the winter, while providing fishing opportunity inside critical habitat in the later portion of the A season and in the B season. This closure provides access to the limited amount of area in Area 541 that can be effectively fished with hook-and-line gear for Pacific cod while preventing fishing in marine critical habitat that is used more frequently by foraging Steller sea lions, based on telemetry data (2010 BiOp, see ADDRESSES). Prohibiting pot and jig gear vessels in this closed area allows for consistent management of these gear types with hook-and-line gear vessels and avoids incentives to use alternative fishing gear to circumvent Steller sea lion protection measures.

Pacific Cod Trawl Vessel Closures in Area 541

The RPA includes a closure of portions of critical habitat to directed fishing by Federally permitted vessels for Pacific cod with trawl gear. This interim final rule prohibits directed fishing for Pacific cod with trawl gear in waters 0 nm to 10 nm from Steller sea lion sites in Area 541 year round. The interim final rule also prohibits directed fishing for Pacific cod with trawl gear within 10 nm to 20 nm from Steller sea lion sites in Area 541 from June 10, 1200 hours, A.l.t., to November 1, 1200 hours, A.l.t. These closures protect most of the critical habitat in Area 541 from the potential effects of Pacific cod trawl harvest on Steller sea lion prey availability. Because Steller sea lion population trends are better in Area 541 than Areas 542 and 543, more critical habitat is made available for the Pacific cod fishery in Area 541 compared to Areas 542 and 543. This is consistent with the 2010 BiOp performance standard that protection measures be commensurate with the rate of Steller sea lion population decline.

Atka Mackerel Closure in the Bering Sea Subarea

The RPA includes a closure of the Bering Sea subarea to directed fishing for Atka mackerel. This interim final rule closes the Bering Sea subarea to directed fishing for Atka mackerel to allow for a limited harvest of Atka mackerel in areas of commercial abundance consistent with the MRAs established for Atka mackerel relative to other retained groundfish species open to directed fishing (Table 11 to 50 CFR part 679). These areas of commercial abundance generally occur in critical habitat areas of the Bering Sea subarea, where Atka mackerel has been historically caught up to the MRAs. Under the regulations implementing MRA provisions, codified at § 679.20 (e) and (f), closure of the Bering Sea subarea to directed fishing for Atka mackerel is necessary to allow for continued harvest of Atka mackerel in a manner similar to historical practices. Because Steller sea lion population trends are not a concern in the Bering Sea subarea, the continued location, amounts, and methods of harvest of Bering Sea Atka mackerel is not likely to result in population level effects on Steller sea lions.

Atka Mackerel Seasons in Areas 542 and 541 and in the Bering Sea Subarea

The RPA includes an extension of the Atka mackerel A and B seasons. This interim final rule extends the A and B seasons by ending the A season and starting the B season on June 10, 1200 hours, A.l.t. This season revision applies to the Bering Sea subarea because the Atka mackerel TAC is established for the combined harvest in Area 541 and the Bering Sea subarea. Seasonal harvests also apply to the CDQ program so that all harvests of Atka mackerel in the BSAI are temporally dispersed.

The increased season lengths provide for Atka mackerel fishing in the summer, a time period for which data show that Steller sea lions have less dependence on Atka mackerel. Extending the Area 542 and Area 541/Bering Sea Atka mackerel seasons insure Atka mackerel harvest inside and outside critical habitat is temporally dispersed, reducing potential effects on Steller sea lion prey availability and providing additional time for fishing for the Atka mackerel vessels.

Protection Measures Not Requiring Regulatory Amendments

The RPA also contains three measures that do not require changes to regulations at 50 CFR part 679. These measures address management of the Atka mackerel catch in Area 543 and the amounts of Pacific cod harvests that, if exceeded, would require reinitiation of ESA formal consultation. These measures are listed below and further explained in the 2010 BiOp (see ADDRESSES).

1. NMFS must establish a TAC for Atka mackerel in Area 543 sufficient to support the incidental discarded catch that may occur in other targeted groundfish fisheries.

This measure is necessary to provide for the discarded incidental catch of Atka mackerel that may occur in other groundfish fisheries in Area 543. The Area 543 Atka mackerel TAC is established in the annual harvest specification as required by § 679.20. Because retention of Atka mackerel will be prohibited in Area 543, the Atka mackerel TAC should not be set higher than what is needed to support the discarded incidental catch.

2. For Pacific cod in Area 542, NMFS must reinitiate ESA consultation if the nontrawl gear harvest exceeds 1.5 percent of the BSAI Pacific cod ABC or if the trawl harvest exceeds two percent of the BSAI Pacific cod ABC. These percentages are equivalent to the Area 542 maximum annual trawl and nontrawl gear harvest amounts from 2007 through 2009.

3. For Pacific cod in Area 541, NMFS must reinitiate ESA consultation if the nontrawl gear harvest exceeds 1.5 percent of the BSAI Pacific cod ABC or if the trawl harvest exceeds 11.25 percent of the BSAI Pacific cod ABC. These percentages are equivalent to the Area 541 maximum annual trawl and nontrawl harvest amounts from 2007 through 2009.

The RPA allows Pacific cod fishery removals in Area 542 and 541 that do not exceed recent historical amounts. With the closure of Area 543 to Pacific cod fishing, Pacific cod harvests in Areas 542 and 541 may increase as vessels shift into areas open to Pacific cod directed fishing. If the amount of Pacific cod fishing increases beyond historical amounts in Areas 542 and 541, NMFS will need to consider the potential effects of this increased harvest on Steller sea lions and determine if any additional protection measures are needed to protect the western DPS of Steller sea lions and its designated critical habitat.

Regulatory Amendments

Definitions

Two definitions for the HLA Atka mackerel fisheries are removed from § 679.2. Neither of these definitions is needed with the elimination of the HLA and platooning method of managing Atka mackerel harvest in Areas 543 and 542.

Permits

Section 679.4(b)(5) is revised to remove references to the HLA Atka mackerel fishery. Permit applicants will no longer need to indicate participation in the HLA fishery as this type of harvest management is eliminated by this interim final rule.

Prohibitions

Section 679.7(a) is revised to remove references to the HLA fishery and to add prohibitions for the Atka mackerel and Pacific cod fisheries. Paragraph (a)(19) is revised to remove reference to the HLA fishery and to add the retention prohibition for Atka mackerel and Pacific cod in Area 543. Paragraph (a)(23) is added to prohibit directed fishing for Pacific cod with hook-and-line, pot, and jig gear in Areas 542 and 541 from November 1, 1200 hours, A.l.t., through December 31, 2400 hours, A.l.t. Paragraphs (a)(19) and (a)(23) are specific to vessels harvesting Pacific cod that is required to be deducted from the Federal TAC and that are required to be Federally permitted.

Paragraph (a)(24) is added to prohibit directed fishing for Atka mackerel in the Bering Sea subarea with a vessel required to be Federally permitted. Paragraph (a)(25) is added to prohibit directed fishing for Atka mackerel inside of critical habitat of Gramp Rock and Tag Island unless the participant is fishing under an Amendment 80 cooperative quota permit or under authority of a CDQ allocation. Paragraph (d)(10) is added to require CDQ Atka mackerel fishing to be seasonally apportioned in the same manner as non-CDQ fishing.

General Limitations

Section 679.20 is revised to remove provisions for the HLA Atka mackerel fishery under paragraph (a)(8)(iii) and to change provisions for Atka mackerel harvest in the BSAI. Paragraph (a)(8)(ii)(A) is revised to remove the exception for CDQ reserves in establishing seasonal allowances. This will insure CDQ Atka mackerel fishing is seasonally apportioned in the same manner as non-CDQ fishing. Paragraph (a)(8)(ii)(C) is revised to remove the HLA provisions and to add three subparagraphs to describe the harvest limitations for Atka mackerel in Area 542. These limitations are the 10 percent CDQ or Amendment 80 cooperatives Atka mackerel allocation inside critical habitat at Gramp Rock and Tag Island, the seasonal apportionment of the critical habitat harvest, and the setting of TAC at no more than 47 percent of Area 542 ABC. Paragraph (c)(6) also is revised to remove reference to the HLA fishery for purposes of the harvest specifications.

Closures

Section 679.22 is revised to describe the Pacific cod and Atka mackerel closures implemented by this rule and to remove references to the HLA Atka mackerel fishery. Paragraph (a)(8)(vi) is revised to remove reference to Table 6 and to establish the closure to directed fishing for Atka mackerel in the entire Bering Sea subarea. Reference to Table 6 for Atka mackerel closures is no longer necessary as the entire Bering Sea subarea is closed to directed fishing by this rule.

The Pacific cod directed fishing restriction during the HLA Atka mackerel fishery under paragraph (a)(8)(iv)(A) is removed because of the elimination of the HLA fishery. Paragraph (a)(8)(iv) is modified to include jig gear and to specify that the closures apply to vessels required to be Federally permitted and that harvest Pacific cod that is deducted from the Federal TAC. This revision is necessary to insure the closure areas apply to all Pacific cod gear types and the vessels to which the closures apply are clearly described.

Paragraph (b)(6) is removed from the regulations as this provision for the Chiniak Gully Research Area has expired.

Seasons

Section 679.23 is revised to change the BSAI Atka mackerel seasons and to insure these seasons apply to the CDQ Atka mackerel fishery. Paragraph (e)(3) is revised to remove reference to non-CDQ fisheries for the Atka mackerel seasons and to extend the A and B seasons as described in the RPA. Paragraph (e)(4) is revised to insure the CDQ Atka mackerel fishery is seasonally apportioned. Paragraphs (e)(4)(iv) and (e)(4)(v) are removed from the regulations as these provisions have expired. These revisions are necessary to insure the Atka mackerel seasons apply to CDQ fishing and to implement these seasons as described in the RPA.

Observer Program

Section 679.50(c)(1)(x) is removed because it applied to observer coverage requirements for the HLA Atka mackerel fishery. The HLA fishery is eliminated by this interim final rule so this paragraph is no longer needed.

Tables

Tables 5, 6, and 12 to 50 CFR part 679 are revised by this interim final rule. Because this interim final rule prohibits retention of Atka mackerel and Pacific cod in Area 543, the Steller sea lion sites located in Area 543 are removed from Tables 5 and 6. This revision is needed to clarify the application of closure areas around Steller sea lions sites in the Aleutian Islands subarea.

In Table 5 to 50 CFR part 679, columns 7, 8, and 9 and the footnotes are revised to reflect the closures for Pacific cod by gear type in the Aleutian Islands subarea and elimination of the HLA Atka mackerel fishery implemented by this interim final rule. Footnote 11 is removed to eliminate HLA fishery restrictions for the Pacific cod trawl fishery. Footnote 14 is added to describe the closures for Gramp Rock and Tanaga Island/Bumpy Point, which differ west and east of 178°0′ 00″ W longitude. This footnote also describes the area closures for the footnoted sites during two time periods of the year. Footnote 15 describes the vessel size specific closures for the Pacific cod hook-and-line, jig, and pot vessels in Area 542. Even though jig is not identified in the gear columns of the Table 5, the same restrictions apply to jig vessels, which are separately described in footnote 15. Footnote 16 describes the Pacific cod pot, hook-and-line, and jig closures in Area 541, and jig restrictions are also separately referred to in the footnote. Footnote 17 is added to clarify the closure areas around Kiska Island sites that may overlap into Area 543. These revisions are necessary to insure the closures as described by the RPA are implemented.

Table 6 to 50 CFR part 679 is revised to remove Steller sea lion sites that occur in the Area 543 and in the Bering Sea subarea, to remove reference to the HLA Atka mackerel fishery, and to describe the closures implemented by this interim final rule. The Steller sea lion sites for the Area 543 and for the Bering Sea subarea no longer have closures specific to each site because this interim final rule closes the entire Area 543 to Atka mackerel retention and closes the entire Bering Sea subarea to directed fishing for Atka mackerel. For this reason, these sites are removed from Table 6. Column 7 of Table 6 is revised to show the closures in Area 542. These closures are designed to allow limited fishing inside critical habitat, as provided by the RPA. Footnotes 2 and 3 are revised and Footnote 6 is removed to remove reference to the Bering Sea subarea because directed fishing for Atka mackerel is closed in the entire subarea. Footnote 7 is renumbered to Footnote 4 and revised to describe the closure around Tanaga Island/Bumpy Point implemented by this interim final rule. A new Footnote 6 is added to describe the closure around Gramp Rock implemented by this interim final rule. A new Footnote 7 is added to describe the closures around Amatignak Island, Nitrof Point, Unalga & Dinkum Rocks, Ulak Island/Hasgox Point, and Kavalga Island implemented by this interim final rule. These revisions are necessary to insure that the protection measures described by the RPA are implemented.

Table 12 to 50 CFR part 679 is revised to be consistent with the regulations at 50 CFR 223.202(a)(2) and (a)(3) and to add the Kanaga Island/Ship Rock rookery. Section 223.202(a)(2) and (a)(3) specify the 3-nm no-transit areas around rookeries in the Aleutian Islands subarea and Gulf of Alaska. The Walrus Island rookery has the wrong designation for no-transit areas in column 7 of Table 12 to 50 CFR part 679. Walrus Island is located in the Bering Sea subarea and does not have a 3-nm no-transit area, and this interim final rule corrects this error in Table 12 to 50 CFR part 679. This interim final rule also adds Kanaga Island/Ship Rock rookery to Table 12, applying a 3-nm no groundfish fishing area around this site. Kanaga Island/Ship Rock is not included in the § 223.202(a)(2) and (a)(3) regulations and does not have a 3-nm no-transit area. Column 7 of Table 12 to 50 CFR part 679 is revised for each of these sites to indicate the presence or absence of the 3-nm no-transit areas.

Classification

The Administrator, Alaska Region, NMFS, determined that this interim final rule is necessary for the conservation and management of the BSAI groundfish fishery and that it is consistent with the Magnuson-Stevens Act and other applicable laws. Also, this action is directly responding to a reasonable and prudent alternative recommended in a biological opinion, and fulfills NMFS's responsibility under the ESA.

This interim final rule has been determined to be significant for purposes of Executive Order 12866.

Formal section 7 consultation under the ESA was completed for this interim final rule under the FMPs for the groundfish fisheries of the BSAI and the GOA. In the 2010 BiOp, the NMFS Alaska Region Administrator determined that as currently managed, NMFS could not insure that the Alaska groundfish fisheries are not likely to jeopardize the continued existence of the western DPS of Steller sea lions or adversely modify its designated critical habitat. This interim final rule, developed in response to that finding and based on the RPA in the 2010 BiOp, has been determined by NMFS to insure that the Alaska groundfish fisheries are not likely to jeopardize the continued existence of the western DPS of Steller sea lions or adversely modify its designated critical habitat.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest. NMFS provided a 30-day public review and comment period on the draft 2010 BiOp and on the draft EA/RIR supporting this action. NMFS reviewed and addressed all comments received before completion of the 2010 BiOp and adjusted the proposed RPA in response to public comment. The 2010 BiOp, with the final RPA, was signed November 24, 2010. Because of the timing of the start of the fisheries, which begins on January 1, 2011, in relation to the completion of the 2010 BiOp, it is impracticable to complete rulemaking before the start of the fisheries with a public review and comment period. This interim final rule implements the final RPA based on consideration of public comments on the draft RPA. NMFS must insure the prosecution of a fishery is compliant with the ESA, which would not be possible if additional time was used to provide for a public review and comment period and agency processing of additional public comments on this action, as the fishery commences on January 1. These protection measures are necessary to prevent the likelihood that these fisheries will jeopardize the continued existence of endangered Steller sea lions and adversely modify their critical habitat.

There also is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness. The Steller sea lion protection measures must be effective by January 1, 2011, when the Pacific cod hook-and-line, pot, and jig fisheries are scheduled to open by regulation. These protection measures are necessary to prevent the likelihood that these fisheries will jeopardize the continued existence of endangered Steller sea lions and adversely modify their critical habitat. Accordingly, it is impracticable to delay for 30 days the effective date of this rule. Therefore, good cause exists to waive the 30-day delay in effectiveness pursuant to 5 U.S.C. 553(b)(3), and to make the rule effective January 1, 2011.

Although we are waiving prior notice and opportunity for public comment, we are requesting post promulgation comments until January 12, 2011. Please see ADDRESSES for more information on the ways to submit comments.

Because prior notice and opportunity for public comment are not required for this rule by 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are inapplicable.

This rule contains a collection-of-information requirement subject to the Paperwork Reduction Act (PRA) and which has been approved by OMB under control number 0648-0206. Public reporting burden for Federal Fisheries Permit Application is estimated to average 21 minutes per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see ADDRESSES) and by e-mail to OIRA_Submission@omb.eop.gov, or fax to 202-395-7285.

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.

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 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.; Pub. L. 108-447.

2. In § 679.2, remove the definitions for “Harvest limit area for platoon managed Atka mackerel directed fishing” and “Harvest limit area (HLA) for Atka mackerel directed fishing.”

3. In § 679.4, remove paragraph (b)(5)(vii) and revise paragraph (b)(5)(vi) to read as follows:

4. In § 679.7, revise paragraph (a)(19) and add paragraphs (a)(23), (a)(24), (a)(25), and (d)(10) to read as follows:

5. In § 79.20, remove and reserve paragraph (a)(8)(iii), and revise paragraphs (a)(8)(ii)(A), (a)(8)(ii)(C), and (c)(6) to read as follows:

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

7. In § 679.23, remove paragraphs (e)(4)(iv) and (e)(4)(v) and revise paragraphs (e)(3) and (e)(4)(iii) to read as follows:

8. In § 679.50, remove paragraph (c)(1)(x).

9. In 50 CFR part 679, revise Tables 5, 6, and 12 to read as follows: