Federal Register / Vol. 63, No. 112 /Thursday, June 11, 1998 /Rules and Regulations 31939

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 679

[Docket No. 980331079–8144–09; I.D.

031198D]

RIN 0648–AK71

Fisheries of the Exclusive Economic

Zone Off Alaska; Groundfish of the

Gulf of Alaska; Seasonal

Apportionments of Pollock

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Final rule.

SUMMARY: NMFS issues a final rule to

change the seasonal apportionment of

the pollock total allowable catch

amount (TAC) in the combined Western

and Central (W/C) Regulatory Areas of

the Gulf of Alaska (GOA) by moving 10

percent of the TAC from the third

fishing season, which starts on

September 1, to the second fishing

season, which starts on June 1. This

seasonal TAC shift is a precautionary

measure intended to reduce the

potential impacts on Steller sea lions of

pollock fishing under an increased 1998

TAC by reducing the percentage of the

pollock TAC that is available to the

commercial fishery during the fall and

winter months, a period that is critical

to Steller sea lions. This action is

intended to promote the conservation

and management objectives of the

Fishery Management Plan for

Groundfish of the Gulf of Alaska (FMP).

DATES: Effective June 10, 1998.

ADDRESSES: Copies of the

Environmental Assessment/Regulatory

Impact Review (EA/RIR) prepared for

this action may be obtained from the

Sustainable Fisheries Division, NMFSAlaska Region, P.O. Box 21668, Juneau,

AK 99802, Attn: Lori J. Gravel.

FOR FURTHER INFORMATION CONTACT: Kent

Lind, 907–586–7228 or

kent.lind@noaa.gov

SUPPLEMENTARY INFORMATION: The

groundfish fisheries in the exclusive

economic zone of the GOA are managed

by NMFS under the FMP. The FMP was

prepared by the North Pacific Fishery

Management Council (Council) under

the Magnuson-Stevens Fishery

Conservation and Management Act.

Regulations governing the groundfish

fisheries of the GOA appear at 50 CFR

parts 600 and 679.

Current groundfish regulations

apportion the pollock TAC in the W/C

Regulatory Areas among three statistical

areas—610 (Shumagin), 620 (Chirikof),

and 630 (Kodiak)—and divide the TAC

apportioned to each statistical area into

three seasonal allowances of 25 percent,

25 percent, and 50 percent of the TAC,

which become available on January 1,

June 1, and September 1, respectively.

This final rule shifts 10 percent of the

TAC from the third to the second

season, resulting in seasonal allowances

of 25 percent, 35 percent, and 40

percent, respectively.

The proposed rule for this action was

published in the Federal Register on

April 30, 1998 (63 FR 23712). The

proposed rule described the Council’s

decision making process in

recommending a 60-percent increase in

the 1998 pollock TAC for the W/C

Regulatory Areas, the current status of

Steller sea lions in the W/C Regulatory

Areas, previous management actions

taken to protect Steller sea lions in the

W/C Regulatory Areas, and current

concerns related to the potential for

increased pollock fishing in the third

season to impact Steller sea lions.

Additional information on this action is

contained in the preamble to the

proposed rule (63 FR 23712, April 30,

1998) and in the EA/RIR (see

ADDRESSES).

Comments and Responses

Comments on the proposed rule were

invited through May 15, 1998. Two

letters of comment were received on the

proposed rule by the end of the

comment period and are summarized

and responded to in the 5 comments

below. No changes were made from the

proposed rule in response to comments.

Comment 1: NMFS failed to follow

the precautionary principle by allowing

the Council to increase the 1998 pollock

TAC by 60 percent. The precautionary

principle should clearly direct managers

to minimize human exploitation of the

Steller sea lion’s prey base. Instead, the

Council has substantially increased the

allowable exploitation level of a major

component of the Steller sea lion’s prey

base and NMFS has apparently offered

no opposition to this decision. This is

unacceptable.

Response: Estimated pollock biomass

is one of the principal factors used to set

the TAC for pollock in the W/C

Regulatory Areas. As biomass changes,

either up or down, so changes the TAC.

In 1998, the estimated biomass of

pollock in the W/C Regulatory Areas

was bolstered considerably by a very

strong 1994 year class. The Council

recommended a TAC increase from the

previous year to allow an increase in

fishing consistent with the estimated

biomass. NMFS approved the 1998

pollock TAC for the W/C Regulatory

Areas as part of the final 1998

specifications for groundfish of the GOA

(63 FR 12027, March 12, 1998). The

1998 TAC will result in increased

removal of pollock from the W/C

Regulatory Areas but is based on the fact

that the biomass of pollock in those

areas has also increased. The

information available indicates that the

unfished pollock biomass will be greater

in 1998 than in 1997 despite the higher

TAC.

This final rule reapportions 10

percent of the TAC from the third to the

second fishing season to reduce the

percentage of pollock TAC that is

available to the commercial fishery

during the fall and winter months, a

period that is critical to Steller sea lions.

NMFS believes the 1998 pollock fishery

in the W/C Regulatory Areas will be

managed in a manner that will not

jeopardize the continued existence of

Steller sea lions.

Comment 2: NMFS should reconsider

its conclusions from its Section 7

consultation on the 1998 TAC. NMFS

should insist that the Council reduce

the approved TAC increase (or eliminate

it altogether) due to the many potential

adverse consequences it could have on

the endangered Steller sea lion

population. NMFS should continue to

oppose TAC increases for pollock into

the foreseeable future, at least until the

western population of Steller sea lions

shows some sign of recovery.

Response: NMFS stands by the

conclusions of the Section 7

consultation made on the 1998 pollock

TAC specified for the W/C Regulatory

Areas. As noted above, the 1998 TAC

increase was supported by increased

biomass estimates. Even with an

increase in fishery removals, the

unfished pollock biomass available to

Steller sea lions will be greater in 1998

than in 1997.

Comment 3: We (a marine mammal

research consortium) conduct research

on Steller sea lions and were surprised

to learn that the leading hypothesis

explaining their decline is ‘‘lack of

available prey.’’ This implies that Steller

sea lions are starving to death; a

statement not supported by field

observations. The hypothesis that most

researchers are working with is that a

high mortality of young is occurring, but

the possible causes are not known. The

problem does not appear to be a lack of

‘‘available’’ prey, but rather, a lack of

‘‘appropriate’’ prey. ‘‘Appropriate’’ prey

include small schooling fish, such as

herring, which are higher in energy

content. The prey that sea lions are

consuming in areas of sharp population

decline are poor in energy or nutritional
31940 Federal Register / Vol. 63, No. 112 /Thursday, June 11, 1998 /Rules and Regulations

content. For example, pollock has about

half the energy content of herring.

Studies with captive sea lions at the

Vancouver Aquarium have

demonstrated that the difference in

usable energy (due to various costs of

digestion) is even greater. From an

energetic viewpoint, sea lions can

survive on a pollock only diet. However,

the level of prey intake would have to

be increased, perhaps to a level

surpassing physiological and ecological

limitations. Sea lions in the areas of

stable populations incorporate a higher

proportion of small schooling fish (such

as herring) in their diet while sea lions

from declining populations rely heavily

upon pollock as their primary prey item.

Response: Although pollock generally

have lower mean energy levels than

some small forage fishes, the range of

energy levels does overlap. In addition,

during January through March, pollock

are in breeding condition and are likely

to contain greater energy content at that

time. Nevertheless, if other forage fish

species were available in sufficient

abundance, then it is likely that sea

lions would prey on them to a greater

extent. Indeed, NMFS recently issued a

final rule to prohibit directed fishing on

all forage fish species in Federal waters

off Alaska, in part, to protect the

availability of these prey species for

Steller sea lions (63 FR 13009, March

17, 1998). However, sea lions are

limited to available prey, regardless of

whether that prey is appropriate, and

simply put, they consume pollock. If

pollock has less energy and nutrient

content, then sea lions would have to

increase the amount of pollock taken to

satisfy their nutritional needs. The

hypothesis of lack of available prey is

supported by size differences observed

in sea lions in the 1970s and 1980s, by

evidence of lower productivity, and by

evidence of decreased juvenile survival.

Comment 4: Decreasing total prey

biomass by increasing pollock catches

has the potential to negatively impact

Steller sea lion populations, but it also

has the potential to positively impact

Steller sea lions. Unfortunately, despite

NMFS assertions, the effects of

increased pollock catches on overall

prey abundance and diversity are not

known. Shifting the biomass of pollock

from older to younger age classes should

result in more prey for Steller sea lions,

not less. Steller sea lions tend to feed on

small pollock while the commercial

fishery targets older and larger fish.

Similarly, an increase in the catch of

adult pollock might increase juvenile

pollock abundance (the preferred prey

size for Steller sea lions) by reducing

cannibalism; or more ideally for Steller

sea lions, reducing pollock biomass

might increase the abundance of other

prey types, particularly small schooling

fish. Unfortunately, we do not know the

outcome of fishing down pollock is not

known, and the scientific ability to

make such predictions does not exist.

Response: NMFS shares the

commenter’s concern regarding the

hypothesis that increased fishing could

result in a shift in prey composition. If

the composition of prey can be shifted

by increased fishing, then it is also

possible that the current prey

composition, which is dominated by

pollock, reflects the effects of past

fishing. If that is the case, then the

suggestion that increased fishing of

pollock would return ecosystem

composition to something more

favorable to Steller sea lions implies a

reversal of effect, which is possible but

questionable. As the comment notes, we

do not know the outcome of fishing

down pollock and do not yet have the

scientific ability to make such

predictions. From a precautionary

perspective, it seems prudent to

minimize the degree to which

commonly used prey species, such as

pollock, are locally depleted. Depletion

can be minimized by dispersing fishing

effort more evenly over time.

Comment 5: Moving part of the

pollock fishery to summer may result in

greater hardship to lactating females

that leave their pups to search for food.

Response: The current 25/25/50

apportionment of pollock TAC among

the three fishing seasons has the greatest

potential effect on the fall months, when

data indicate that pups are beginning to

wean. Shifting 10 percent of the TAC to

the summer season increases the catch

during the summer period when females

are still nursing and decreases the TAC

during the period when females are

either still nursing or weaning has

begun and pups are attempting to forage

for themselves. To date, no evidence

suggests that females and pups are

compromised during the summer

breeding season. One study indicates

that pups in the western population,

where the greatest decline has occurred,

are even larger during the breeding

season than pups in the eastern

population. This indicates that

nutritional stress occurs late in the fall

and winter months when pups are

learning to forage on their own.

The shift of 10 percent of the TAC

was a precautionary measure to ensure

that pups learning to forage were not

compromised by the relatively larger

catch in the fall/winter period. For pups

and adult females, winter months are

considered the most difficult months

due to harsher environmental

conditions, greater prey dispersal, and

increased metabolic and energetic

requirements.

Amendment to Final 1998 Pollock TAC

Specifications for the W/C Regulatory

Areas

To implement the final rule in 1998,

this action also amends Table 3 of the

1998 final harvest specifications for

groundfish of the GOA (63 FR 12027,

March 12, 1998). Table 3 of the 1998

specifications is revised as follows:

TABLE 3.—DISTRIBUTION OF POLLOCK IN THE WESTERN AND CENTRAL REGULATORY AREAS OF THE GULF OF ALASKA (W/

C GOA); BIOMASS DISTRIBUTION, AREA APPORTIONMENTS, AND SEASONAL ALLOWANCES. ABC FOR THE W/C GOA

IS 119,150 METRIC TONS (MT). BIOMASS DISTRIBUTION IS BASED ON 1996 SURVEY DATA. TACS ARE EQUAL TO

ABC. INSHORE AND OFFSHORE ALLOCATIONS OF POLLOCK ARE NOT SHOWN. ABCS AND TACS ARE ROUNDED TO

THE NEAREST 5 MT.

Statistical area Biomass

percent

1998

ABC = TAC

Seasonal allowances

First Second Third

.................... metric ton

Shumagin (610) ........................................................................................ 25 29,790 7,450 10,430 11,910

Chirikof (620) ............................................................................................ 42 50,045 12,510 17,515 20,020

Kodiak (630) ............................................................................................. 33 39,315 9,830 13,760 15,725

Total ............................................................................................... 100 119,150 29,790 41,705 47,655
Federal Register / Vol. 63, No. 112 /Thursday, June 11, 1998 /Rules and Regulations 31941

Classification

This action amends final 1998 harvest

specifications for the W/C Regulatory

Areas by shifting 10 percent of the TAC

from the third fishing season beginning

September 1 to the second fishing

season beginning June 1. A 30-day

delayed effectiveness period for this

action would result in unnecessary

closures and disruption within the

fishing industry because the second

pollock season in the W/C Regulatory

Areas would be opened and closed on

the old TACs and then would have to

be reopened again once this action

becomes effective and the additional 10

percent TAC amount becomes available.

Such a closure and reopening of the

fishery would impose unnecessary costs

on industry because fishing vessels and

processors would be forced to stop and

restart their operations and would incur

the costs of maintaining crews during

the down time. Waiver of the 30-day

delayed effectiveness for this action

would allow the second season pollock

fisheries to continue uninterrupted. In

addition, this action does not

significantly revise management

measures in a manner that would

require time to plan or prepare for those

revisions. For these reasons, the

immediate effectiveness of this action is

required to provide consistent

management and conservation of fishery

resources and to give the fishing

industry the earliest possible

opportunity to plan its fishing

operations. Accordingly, the Assistant

Administrator for Fisheries, NOAA

(Assistant Administrator), finds that

good cause exists to waive the 30-day

delayed effectiveness period for this

action under 5 U.S.C. 553(d)(3).

This final rule has been determined to

be not significant for the purposes of

E.O. 12866.

The Assistant General Counsel for

Legislation and Regulation of the

Department of Commerce certified to

the Chief Counsel for Advocacy of the

Small Business Administration that this

rule would not have a significant

economic impact on a substantial

number of small entities. No comments

were received regarding this

certification. As a result, a regulatory

flexibility analysis was not prepared.

A formal section 7 consultation under

the Endangered Species Act was

initiated for the 1998 final specifications

for groundfish of the GOA. In a

Biological Opinion dated March 2, 1998,

NMFS described the effects of this

action as follows:

The proposed action is to conduct the Gulf

of Alaska pollock fishery in 1998 with a

119,150 mt TAC divided among three

seasons starting January 20, June 1, and

September 1. Final specifications for the

fishery will indicate a 25 percent, 25 percent,

50 percent TAC distribution for the three

seasons, but the June 1 and September 1 TAC

levels will be revised through rulemaking to

a distribution of 35 percent and 40 percent

for the last two seasons. This

reapportionment will reduce the catch in the

season beginning September 1 and shorten

the duration of this season’s pollock fishery.

This measure will, therefore, minimize

potential adverse effects of the fishery on

Steller sea lions during the winter months,

when weaned pups are learning to forage and

adult females may be both pregnant and

lactating.

In the Biological Opinion, the Assistant

Administrator determined that fishing

activities conducted under this final

rule are not likely to jeopardize the

continued existence of any endangered

or threatened species under the

jurisdiction of NMFS 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.

Dated: June 5, 1998.

Rolland A. Schmitten,

Assistant Administrator for Fisheries,

National Marine Fisheries Service.

For the reasons set out in the

preamble, 50 CFR part 679 is amended

as follows:

PART 679—FISHERIES OF THE

EXCLUSIVE ECONOMIC ZONE OFF

ALASKA

1. The authority citation for part 679

continues to read as follows:

Authority: 16 U.S.C. 773 et seq., 1801 et

seq., and 3631 et seq.

2. In § 679.20, paragraph (a)(5)(ii)(B) is

revised to read as follows:

§ 679.20 General limitations.

(a) * * *

(5) * * *

(ii) * * *

(B) Seasonal allowances. Each

apportionment will be divided into

three seasonal allowances of 25 percent,

35 percent, and 40 percent of the

apportionment, respectively,

corresponding to the three fishing

seasons defined at § 679.23(d)(2).

* * * * *

[FR Doc. 98–15594 Filed 6–10–98; 8:45 am]

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