[Federal Register Volume 79, Number 227 (Tuesday, November 25, 2014)]
[Rules and Regulations]
[Pages 70286-70338]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-27658]



[[Page 70285]]

Vol. 79

Tuesday,

No. 227

November 25, 2014

Part II





Department of Commerce





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National Oceanic and Atmospheric Administration





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15 CFR Part 902

50 CFR Part 679





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

Federal Register / Vol. 79 , No. 227 / Tuesday, November 25, 2014 / 
Rules and Regulations

[[Page 70286]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 902

50 CFR Part 679

[Docket No. 140304195-4947-02]
RIN 0648-BE06


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: Final rule.

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SUMMARY: NMFS issues regulations to implement Steller sea lion 
protection measures to insure that groundfish fisheries in the Bering 
Sea and Aleutian Islands Management Area (BSAI) off Alaska are not 
likely to jeopardize the continued existence of the western distinct 
population segment (WDPS) of Steller sea lions or destroy or adversely 
modify their designated critical habitat. These management measures 
disperse fishing effort temporally and spatially to provide protection 
from potential competition for important Steller sea lion prey species. 
This action is intended to protect the endangered Steller sea lions, as 
required by the Endangered Species Act, and to minimize, to the extent 
practicable, the economic impact of fishery management measures, as 
required by the Magnuson-Stevens Fishery Conservation and Management 
Act.

DATES: Effective December 26, 2014.

ADDRESSES: Electronic copies of:
    <bullet> The Steller Sea Lion Protection Measures for Groundfish 
Fisheries in the Bering Sea and Aleutian Islands Management Area 
Environmental Impact Statement (EIS), the Record of Decision, and the 
Regulatory Impact Review/Initial Regulatory Flexibility Analysis (RIR/
IRFA) prepared for this action are available from http://www.regulations.gov or from the NMFS Alaska Region Web site at http://alaskafisheries.noaa.gov/sustainablefisheries/sslpm/eis/default.htm.
    <bullet> The 2001 Biological Opinion for the Authorization of the 
Bering Sea and Aleutian Islands and Gulf of Alaska Groundfish Fisheries 
(2001 BiOp), the 2010 Biological Opinion on the Authorization of 
Groundfish Fisheries under the Fishery Management Plans (FMP BiOp), and 
the 2014 Biological Opinion for the Authorization of Alaska Groundfish 
Fisheries under the Proposed Revised Steller Sea Lion Protection 
Measures (2014 BiOp) are available at http://alaskafisheries.noaa.gov/protectedresources/stellers/section7.htm.
    <bullet> The 2008 Revised Steller Sea Lion Recovery Plan (2008 
Recovery Plan) is available from the NMFS Alaska Region Web site at 
http://alaskafisheries.noaa.gov/protectedresources/stellers/recovery.htm.
    <bullet> The Fishery Management Plan for Groundfish of the Bering 
Sea and Aleutian Islands Management Area FMP is available from the 
North Pacific Fishery Management Council Web site at http://www.npfmc.org/wp-content/PDFdocuments/fmp/BSAI/BSAIfmp.pdf.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
final rule may be submitted to NMFS at the above address and by email 
to <a href="/cdn-cgi/l/email-protection#9ad5d3c8dbc5a6fbbaf2e8fffca7" mailto:Submission@omb.eop.gov"><span class="__cf_email__" data-cfemail="0a597f68676379796365644a656768246f657a246d657c">[email protected]</span></a>">OIRA_<a href="/cdn-cgi/l/email-protection#c497b1a6a9adb7b7adabaa84aba9a6eaa1abb4eaa3abb2"><span class="__cf_email__" data-cfemail="520127303f3b21213b3d3c123d3f307c373d227c353d24">[email protected]</span></a></a> or fax to 202-395-5806.

FOR FURTHER INFORMATION CONTACT: Gretchen Harrington, 907-586-7228.

SUPPLEMENTARY INFORMATION: NMFS published a proposed rule to implement 
Steller sea lion protection measures on July 1, 2014 (79 FR 37486). The 
comment period on the proposed rule ended on August 15, 2014. NMFS 
received 17 letters of comments on the proposed rule. Additional 
background information and detail on this action is provided in the 
proposed rule and is briefly summarized in this final rule.
    NMFS manages groundfish fisheries in the exclusive economic zone 
(EEZ) under the Fishery Management Plan for Groundfish of the Bering 
Sea and Aleutian Islands Management Area (FMP). The North Pacific 
Fishery Management Council (Council) prepared the FMP under the 
authority of the Magnuson-Stevens Fishery Conservation and Management 
Act (Magnuson-Stevens Act), 16 U.S.C. 1801, et seq. Regulations 
governing fisheries and implementing the FMP appear at 50 CFR parts 600 
and 679.
    NMFS 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. NMFS has the 
authority to promulgate regulations to enforce provisions of the ESA to 
protect such species. As the action agency, NMFS is responsible for 
conducting a section 7 consultation to insure that the Federal action 
of authorizing the Alaska groundfish fisheries is not likely to 
jeopardize the continued existence of an ESA-listed species or result 
in the destruction or adverse modification of its designated critical 
habitat. Under the provisions of section 7 of the ESA, NMFS Alaska 
Region Sustainable Fisheries Division (SFD) is the action agency and 
consults with the NMFS Alaska Region Protected Resources Division (PRD) 
on the impacts of groundfish fisheries for most ESA-listed species of 
marine mammals, including Steller sea lions.
    NMFS listed the WDPS of Steller sea lions as endangered under the 
ESA in 1997 (62 FR 24345, May 5, 1997). Throughout this preamble, the 
term ``Steller sea lions'' means the WDPS of Steller sea lions unless 
otherwise specified. Steller sea lions are distributed from Prince 
William Sound through the Aleutian Islands in Alaska and in Russia on 
the Kamchatka peninsula, Kuril Islands, and the Sea of Okhotsk. NMFS 
uses six sub-regions within Alaska for trend and status monitoring of 
Steller sea lions. These sub-regions include the eastern Gulf of Alaska 
(GOA), central GOA, and western GOA, the eastern Aleutian Islands/
Bering Sea, central Aleutian Islands, and the western Aleutian Islands. 
A seventh sub-region is located outside of the United States and is 
commonly referred to as the Russian sub-region because most of the 
Steller sea lion population in that sub-region is concentrated in 
Russia.
    NMFS designated critical habitat for Steller sea lions and 
identified haulouts, rookeries, and foraging locations throughout 
Alaska waters ranging throughout the GOA, the Bering Sea, and the 
Aleutian Islands (58 FR 45269, August 27, 1993). Since publication of 
critical habitat definitions in 1993 (see 50 CFR 226.202), NMFS has 
identified 19 additional haulouts in the BSAI and the GOA as important 
areas for Steller sea lions needing additional protection from the 
potential effects of groundfish fishing. More information and 
justification for including these haulouts are contained in the 2001 
BiOp (see ADDRESSES). NMFS is currently considering revisions to the 
critical habitat designation to take into account new information that 
has become available since NMFS designated critical habitat in 1993 (79 
FR 46392, August 8, 2014).
    Since listing Steller sea lions, NMFS has implemented a number of 
management measures, commonly known as Steller sea lion protection 
measures, to protect Steller sea lion prey

[[Page 70287]]

from the potential effects of groundfish fishing. Steller sea lion 
protection measures disperse catch of groundfish prey species in time 
(temporal dispersion) and space (spatial dispersion) through a variety 
of harvest limitations and closure areas. Many of these Steller sea 
lion protection measures apply specifically to Atka mackerel, Pacific 
cod, and pollock, which are important prey species for Steller sea 
lions.
    Section 3.5.3 of the FMP, approved by the Secretary of Commerce 
under the Magnuson-Stevens Act, authorizes regulations for fishery 
management measures to protect marine mammals, without requiring 
amendment of the FMP itself (see ADDRESSES). Steller sea lion 
protection measures for the Alaska groundfish fisheries have been 
implemented under this FMP authority since 1998.
    NMFS has revised the Steller sea lion protection measures several 
times. NMFS has conducted several ESA consultations to assess the 
impact of the groundfish fisheries on Steller sea lions. Previous 
actions to implement Steller sea lion protection measures and their 
accompanying ESA consultations have been subject to litigation. A 
detailed history of previous Steller sea lion protection measures, ESA 
section 7 consultations (i.e., biological opinions), and litigation is 
provided in Chapter 1 of the EIS (see ADDRESSES).
    The most recent Steller sea lion protection measures were 
implemented in 2011 with the 2010 Interim Final Rule (75 FR 77535, 
December 13, 2010; corrected 75 FR 81921, December 29, 2010). Steller 
sea lion protection measures implemented in the 2010 Interim Final Rule 
limit harvest of Atka mackerel and Pacific cod. NMFS implemented these 
management measures consistent with the reasonable and prudent 
alternative (RPA) recommended in the 2010 FMP BiOp that NMFS determined 
were necessary to insure that the Alaska groundfish fisheries were not 
likely to jeopardize the continued existence of Steller sea lions or 
result in the destruction or adverse modification of their designated 
critical habitat. The 2010 Interim Final Rule established Steller sea 
lion protection measures primarily in the Aleutian Islands, based on 
the population trends of the Steller sea lions and the harvest of 
principal prey species by the groundfish fisheries in the Aleutian 
Islands. This action retains some and modifies some of the Steller sea 
lion protection measures implemented by the 2010 Interim Final Rule.
    This final rule implements a suite of management measures for the 
Atka mackerel, Pacific cod, and pollock fisheries primarily in the 
Aleutian Islands. These management measures protect Steller sea lion 
prey to comply with the ESA requirement that NMFS insure that its 
actions are not likely to jeopardize the continued existence of 
endangered species or destroy or adversely modify its critical habitat. 
To protect Steller sea lion prey availability, this final rule protects 
specific areas that are important to Steller sea lions and limits the 
amount of fishing within Steller sea lion critical habitat. This final 
rule maintains a precautionary approach to the management of Steller 
sea lion prey species by spatially and temporally dispersing catch, 
particularly in critical habitat, to prevent localized depletion of 
these important prey resources. While protecting Steller sea lion prey, 
this final rule also enhances fishing opportunities and minimizes 
potential adverse economic impacts on fishery participants and 
communities by removing restrictions on fishing implemented by the 2010 
Interim Final Rule that have been determined to be unnecessary based on 
the 2014 BiOp.
    NMFS analyzed the impacts of the action and its alternatives in an 
EIS (see ADDRESSES). NMFS published a notice of intent to prepare the 
EIS in the Federal Register on April 17, 2012 (77 FR 22750). The 
scoping period for the EIS was approximately 6 months with the period 
ending October 15, 2012. NMFS also held a public scoping meeting in 
coordination with a Council meeting on October 2, 2012 (77 FR 52674, 
August 30, 2012). NMFS released the draft EIS for public review on May 
17, 2013 (78 FR 29131). The comment period for the draft EIS ended on 
July 16, 2013. NMFS released the final EIS on May 23, 2014 (79 FR 
29759).
    The decision analyzed in the EIS was whether to maintain the 
existing suite of Steller sea lion protection measures (Alternative 1, 
the 2010 Interim Final Rule) or to implement a new suite of Steller sea 
lion protection measures (Alternatives 2, 3, 4, 5, or 6). To provide a 
comprehensive analysis of the effects of the alternatives, the EIS 
compares the six alternatives relative to each other and relative to a 
baseline period used to assess the environmental conditions affecting 
Steller sea lions (generally from 2004 through 2010). NMFS developed 
these alternatives through a collaborative process with the Council and 
its Steller Sea Lion Mitigation Committee, and considered public 
comments received during the scoping process for the EIS and during the 
public review of the draft EIS.
    NMFS developed all alternatives with the understanding that a 
preferred alternative could only be selected as the proposed action and 
implemented through rule making if NMFS could insure that the action 
was not likely to jeopardize the continued existence of the Steller sea 
lions or result in destruction or adverse modification of their 
designated critical habitat. The Council and NMFS understood that a 
preferred alternative and any resulting rule must meet the requirements 
of the ESA before factors that minimize the economic impacts on fishery 
participants could be considered. A detailed discussion of the purpose 
and need for the action is provided in the EIS (see ADDRESSES).
    The alternatives ranged from Alternative 6, an alternative that 
would restrict fishing more than the status quo alternative 
(Alternative 1), to Alternative 4, the alternative that would allow the 
most fishing opportunities. Alternative 4 would reinstate the Steller 
sea lion protection measures that were in place prior to the 2010 
Interim Final Rule, with a few exceptions. Alternatives 2, 3, and 5 
provided more fishing opportunities and fewer protection measures than 
Alternative 1, but included more protection measures than Alternative 
4. Additional description of the alternatives is available in the EIS 
(see ADDRESSES).
    In October 2013, the Council recommended Alternative 5 as the 
preferred alternative for the EIS. Alternative 5 is a suite of 
management measures for the Atka mackerel, Pacific cod, and pollock 
fisheries that includes fishery closures and limitations on catch in 
specific areas to mitigate the potential adverse effects of fishing on 
Steller sea lion prey resources. Alternative 5 retains important 
Steller sea lion protection measures in Alternative 1 and also allows 
more fishing by removing or modifying some of measures in Alternative 
1. Alternative 5 includes authorization for specific fishery research 
in the BSAI. This final rule implements the Steller sea lion protection 
measures in Alternative 5.
    The Council recommended Alternative 5 as the preferred alternative 
based on the analysis in the draft EIS, public comments, advice from 
its Steller Sea Lion Mitigation Committee, input from the Council's 
Advisory Panel and Scientific and Statistical Committee, and the best 
available scientific information. The Council considered the findings 
of the 2010 FMP BiOp, a review of the 2010 FMP BiOp sponsored by NMFS 
and conducted by the Center

[[Page 70288]]

for Independent Experts, and a review of the FMP BiOp sponsored by the 
States of Alaska and Washington. In recommending Alternative 5 as its 
preferred alternative, the Council determined that Alternative 5 would 
implement management measures that protect Steller sea lion prey as 
required by the ESA. The Council determined that Alternative 5 would 
protect specific areas that are important to Steller sea lions and 
limit the amount of fishing within Steller sea lion critical habitat in 
order to protect Steller sea lion prey availability. Alternative 5 
maintains a precautionary approach to the management of Steller sea 
lion prey species in critical habitat by spatially and temporally 
dispersing catch to prevent localized depletion of these important prey 
resources.
    NMFS conducted a consultation on the proposed action as required 
under section 7 of the ESA to determine whether fishing under 
Alternative 5 would be likely to jeopardize the continued existence of 
Steller sea lions or destroy or adversely modify their critical 
habitat. NMFS issued a biological opinion on April 2, 2014 (2014 BiOp, 
see ADDRESSES). New information in the external reviews of the 2010 FMP 
BiOp and the new analyses that NMFS conducted in response to those 
external reviews were incorporated into the 2014 BiOp to further 
understand the effects of the groundfish fisheries on Steller sea 
lions.
    The 2014 BiOp found that the implementation of the proposed action 
(Alternative 5) was not likely to jeopardize the continued existence of 
Steller sea lions and was not likely to destroy or adversely modify 
designated Steller sea lion critical habitat. The conclusions in the 
2014 BiOp were reached after considering the best scientific and 
commercial information available, including Steller sea lion behavior 
and fisheries data. The 2014 BiOp concludes that the proposed action 
would establish Steller sea lion protection measures for the Atka 
mackerel, Pacific cod, and pollock fisheries in the Aleutian Islands 
subarea that spatially and temporally disperse fishing to mitigate 
potential competition for prey resources between Steller sea lions and 
these fisheries. Spatial and temporal fishery dispersion is 
accomplished through closure areas, harvest limits, seasonal 
apportionment of harvest limits, and limits on participation in a 
fishery. The proposed action would retain or modify existing closure 
areas, harvest limits, seasonal apportionment of harvest limits, and 
limits on participation in ways that are designed to limit competition 
for prey with Steller sea lions.
    The best available scientific information suggests that the effects 
of the groundfish fisheries on Steller sea lions may be greatest around 
rookeries and haulouts due to the overlap of foraging Steller sea lions 
and harvest of their prey species in the fisheries. This action limits 
fishing to the greatest extent from 0 nm to 3 nm from rookeries and 
haulouts, which corresponds with the highest observed at-sea use by 
adult female, young-of-the-year, and juvenile Steller sea lions, as 
shown in the Steller sea lion telemetry data described in the 2014 BiOp 
(see Chapter 5 of the EIS and Section 5.4 of the 2014 BiOp).
    The 2014 BiOp identified the importance of maintaining global, or 
broad scale, limits on the harvest of Atka mackerel, Pacific cod, and 
pollock. Global limits are currently in place for these three species. 
Regulations prohibit directed fishing in the BSAI or GOA if the 
projected spawning biomass of the fish stock falls below 20 percent of 
the unfished spawning biomass (see regulations at Sec.  679.20(d)(4)). 
Atka mackerel, Pacific cod, and pollock fisheries have not experienced 
this type of directed fishing closure since global limits became 
effective in 2003 (68 FR 204, January 2, 2003).

Steller Sea Lion Protection Measures

    This final rule implements a comprehensive suite of Steller sea 
lion protection measures. Steller sea lion protection measures regulate 
fishing by applying a combination of closed areas, harvest limits, and 
seasons that reduce fishery competition for Steller sea lion prey when 
and where Steller sea lions forage. To improve monitoring, this final 
rule also requires vessels named on a Federal Fisheries Permit (FFP), 
that use trawl gear to harvest groundfish that is deducted from the 
Federal total allowable catch (TAC), to set their vessel monitoring 
system (VMS) to transmit the vessel location at least 10 times per 
hour.
    This section provides a summary of the Steller sea lion protection 
measures implemented in this final rule. For a more detailed 
explanation of the regulatory provisions and the purpose of each 
provision, please see the preamble to the proposed rule (79 FR 37486, 
July 1, 2014). The preamble to the proposed rule also provides a 
detailed comparison of this final rule with the 2010 Interim Final 
Rule.

Atka Mackerel, Pacific Cod, and Pollock Fisheries

    This final rule applies primarily to the Atka mackerel, Pacific 
cod, and pollock fisheries in the Aleutian Islands reporting area, 
defined at Sec.  679.2 and shown in Figure 1 to 50 CFR part 679. The 
Aleutian Islands reporting area consists of Statistical Areas 541, 542, 
and 543 in the EEZ and adjacent State of Alaska (State) waters. The EEZ 
includes Federal waters that generally occur from 3 nautical miles (nm) 
to 200 nm from shore. State waters generally occur from shore to 3 nm 
from shore. Area 541 and adjacent State waters correspond to the 
eastern Aleutian Islands; Area 542 and adjacent State waters correspond 
to the central Aleutian Islands; and Area 543 and adjacent State waters 
correspond to the western Aleutian Islands.
    This final rule applies to vessels that catch groundfish that are 
required to be deducted from a TAC under Sec.  679.20 and that are 
required to be named on a FFP issued under Sec.  679.4(b) in the BSAI 
reporting area. This rule also applies to vessels that harvest 
groundfish in State waters that are managed under the State's parallel 
groundfish fisheries. Parallel groundfish fisheries are fisheries that 
occur in State waters and where the catch of groundfish is deducted 
from the Federal TAC. Parallel groundfish fisheries are opened and 
closed by the State concurrently with adjacent Federal fisheries. 
Parallel fisheries are managed by the State under regulations similar 
to those that apply in the Federal fisheries. The State parallel 
fisheries that would be affected by this action are the fisheries for 
groundfish that occur in State waters adjacent to the BSAI. Additional 
detail on State parallel fisheries is provided in Chapters 3 and 8 of 
the EIS (see ADDRESSES).

Area Closures

    NMFS has designated 100,286 square kilometers as critical habitat 
for Steller sea lions in the Aleutian Islands. This subsection 
summarizes the critical habitat closed to fishing under this final 
rule. A detailed discussion of the amount of critical habitat closed 
under this final rule is in Section 5.3 of the 2014 BiOp (see 
ADDRESSES). The area closures are implemented by regulations at Sec.  
679.22 and Table 6 to 50 CFR part 679 for Atka mackerel, Table 5 to 50 
CFR part 679 for Pacific cod, and Table 4 to 50 CFR part 679 for 
pollock.
    With the final rule, NMFS is closing 90 percent of critical habitat 
in the Aleutian Islands to Atka mackerel fishing, which results in 8 
percent more area open for Atka mackerel fishing in the Aleutian 
Islands compared to the areas closed under the 2010 Interim Final Rule. 
This final rule prohibits directed fishing with trawl gear for Atka 
mackerel in waters from 0 nm to 3 nm

[[Page 70289]]

from haulouts and from 0 nm to 10 nm from rookeries in Areas 543 and 
542. This final rule also prohibits directed fishing for Atka mackerel 
in waters from 0 nm to 20 nm from Steller sea lion haulouts and 
rookeries in Area 542 located between 178[deg] E longitude and 180[deg] 
E longitude and east of 178[deg] W longitude. In Area 541, this final 
rule prohibits directed fishing with trawl gear inside critical 
habitat, except for a portion of critical habitat from 12 nm to 20 nm 
around Seguam Island.
    With the final rule, NMFS is closing 22 percent of critical habitat 
in the Aleutian Islands to Pacific cod fishing with non-trawl gear 
(hook-and-line, pot, and jig), which results in 23 percent more area 
open to Pacific cod fishing with non-trawl gear in the Aleutian Islands 
compared to the areas closed under the 2010 Interim Final Rule. In Area 
543, this final rule prohibits directed fishing for Pacific cod in 
waters from 0 nm to 3 nm from rookeries and from 0 nm to 10 nm from 
Buldir Island for hook-and-line and pot gear vessels. In Area 542, this 
final rule prohibits directed fishing for Pacific cod in waters from 0 
nm to 3 nm from rookeries for hook-and-line and pot gear vessels. In 
Area 541, this final rule prohibits directed fishing for Pacific cod in 
waters from 0 nm to 3 nm from rookeries west of 172.59[deg] W longitude 
and in critical habitat from 0 nm to 20 nm east of 172.59[deg] W 
longitude for hook-and-line and pot gear vessels. Directed fishing for 
Pacific cod with hook-and-line, pot gear, and jig gear vessels is 
prohibited in the Seguam Foraging Area.
    With the final rule, NMFS is closing 52 percent of critical habitat 
in the Aleutian Islands to Pacific cod fishing with trawl gear, which 
results in 23 percent more area open to Pacific cod fishing with trawl 
gear in the Aleutian Islands compared to the areas closed under the 
2010 Interim Final Rule. In Area 543, this final rule prohibits 
directed fishing for Pacific cod with trawl gear vessels in waters from 
0 nm to 3 nm from haulouts and from 0 nm to 10 nm from rookeries. In 
Area 542, this final rule prohibits directed fishing for Pacific cod 
with trawl gear vessels in waters from 0 nm to 3 nm from haulouts and 
from 0 nm to 10 nm from rookeries. In Area 541, this final rule 
prohibits directed fishing for Pacific cod with trawl gear vessels in 
waters from 0 nm to 3 nm from haulouts and from 0 nm to 10 nm from 
rookeries, and from 0 nm to 20 nm around Agligadak Island.
    With this final rule, NMFS is closing 65 percent of critical 
habitat in the Aleutian Islands to pollock fishing, which results in 35 
percent more area open to pollock fishing in the Aleutian Islands 
compared to the previous closures. In Area 543, this final rule 
prohibits directed fishing for pollock in 95 percent of critical 
habitat, including 0 nm to 20 nm from rookeries and haulouts, except 3 
nm to 20 nm from Shemya, Alaid and Chirikof haulouts that remain 
outside of 20 nm from rookeries. In Area 542, west of 178[deg] W 
longitude, this final rule prohibits directed fishing for pollock in 
waters from 0 nm to 20 nm from haulouts and rookeries, except in the 
specified open area near the Rat Islands. East of 178[deg] W longitude, 
this final rule prohibits directed fishing for pollock in waters from 0 
nm to 3 nm from haulouts and from 0 nm to 10 nm from rookeries, except 
at Kanaga Island/Ship Rock where directed fishing for pollock is 
prohibited in waters from 0 nm to 3 nm from haulouts and rookeries in a 
portion of Kanaga Sound east of 178[deg] W longitude. In Area 541, this 
final rule prohibits directed fishing for pollock in critical habitat 
from 0 nm to 3 nm from haulouts and 0 nm to 10 nm from rookeries.

Harvest Limits and Seasons

    This final rule, in conjunction with existing regulations, 
establishes harvest limits by sector, area, and season for the Atka 
mackerel, Pacific cod, and pollock fisheries in the Aleutian Islands. 
This subsection summarizes the harvest limits and seasons established 
under this final rule. The preamble to the proposed rule describes the 
harvest limits and seasons in greater detail (79 FR 37486, July 1, 
2014).
    Tables 1, 2, and 3 provide the 2015 estimates of biomass, the 
overfishing levels (OFLs), the acceptable biological catches (ABCs) 
from the 2015 harvest specifications (79 FR 12108, March 4, 2014), and 
the harvest limit amounts for Atka mackerel, Pacific cod, and pollock 
fisheries established under this final rule. Tables 1, 2, and 3 also 
describe the allocations that are made to the Western Alaska Community 
Development Quota (CDQ) Program as CDQ reserves, as well as allocations 
made to accommodate incidental catch amounts (ICAs), and allocations to 
other non-CDQ participants as applicable for the specific fishery from 
the 2015 harvest specifications. The 2015 biomasses, OFLs, ABCs, TACs, 
and harvest limit amounts are subject to change pending the completion 
of the final 2014 Stock Assessment and Fishery Evaluation (SAFE) Report 
and the Council's recommendations for final 2015 and 2016 harvest 
specifications during its December 2014 meeting. NMFS will publish the 
final harvest limits in the final 2015 and 2016 harvest specifications.
    Table 1 provides the Atka mackerel harvest limits for 2015, based 
on the 2015 ABC (79 FR 12108, March 4, 2014). In this final rule, Sec.  
679.20(a)(8)(ii)(C) sets two Atka mackerel harvest limitations for 
Areas 542 and 543. First, in Area 543, the annual TAC is limited to an 
amount no greater than 65 percent of the ABC apportioned for Area 543. 
The second limit would allow no more than 60 percent of the annual TAC, 
evenly apportioned between the A and B seasons, to be harvested in 
critical habitat west of 178[deg] W longitude. This area includes all 
of Area 543 and the western portion of Area 542. Section 
679.20(a)(8)(ii)(A) evenly divides the harvest of TAC between the A and 
B seasons and applies the seasonal apportionment of Atka mackerel 
harvests in Area 543, Area 542, and the combined Area 541/Bering Sea. 
Section 679.23(e)(3)(ii) maintains the directed fishing for Atka 
mackerel with trawl gear A season dates from January 20 through June 
10, and extends the B season from June 10 through December 31. Prior to 
this final rule, the Atka mackerel B season occurred from June 10 
through November 1. This additional season length provides greater 
opportunity for trawl gear harvesters to distribute catch throughout 
the year. Section 679.20(a)(8)(ii)(D) prohibits any unharvested Atka 
mackerel A season allowance that is added to the B season from being 
harvested within waters 0 nm to 20 nm of Steller sea lion sites located 
in Areas 543, 542, and 541. This provision ensures that harvest is not 
concentrated within critical habitat during the B season.

[[Page 70290]]



  Table 1--2015 Bering Sea and Aleutian Islands Atka Mackerel Biomass,
  OFL, ABC, and TAC; Sector, Season, and Area Allocations; and Critical
                  Habitat Limits Under This Final Rule
                      [Amounts are in metric tons]
------------------------------------------------------------------------
 
------------------------------------------------------------------------
              2015 Atka Mackerel Biomass, OFL, ABC, and TAC
------------------------------------------------------------------------
Biomass.................................................         387,308
OFL.....................................................          74,898
ABC.....................................................          64,477
TAC.....................................................          56,769
------------------------------------------------------------------------


----------------------------------------------------------------------------------------------------------------
                                                                     Area 541/
              Sector \1\                         Season             Bering Sea       Area 542        Area 543
----------------------------------------------------------------------------------------------------------------
                      2015 Sector, Season, and Area Allocations and Critical Habitat Limits
----------------------------------------------------------------------------------------------------------------
Area ABC..............................  n/a.....................          21,769          20,685          22,023
Area TAC..............................  n/a.....................          21,769          20,685          14,315
----------------------------------------------------------------------------------------------------------------
CDQ reserve...........................  Total...................           2,329           2,213           1,532
                                        A season................           1,165           1,107             766
                                        Critical habitat limit..             n/a             664             460
                                        B season................           1,165           1,107             766
                                        Critical habitat limit               n/a             664             460
                                         \3\.
----------------------------------------------------------------------------------------------------------------
ICA...................................  Total...................           1,000              75              40
----------------------------------------------------------------------------------------------------------------
Jig \2\...............................  Total...................              92               0               0
----------------------------------------------------------------------------------------------------------------
BSAI trawl limited access.............  Total...................           1,835           1,840               0
                                        A season................             917             920               0
                                        Critical habitat limit..             n/a             552               0
                                        B season................             917             920               0
                                        Critical habitat limit               n/a             552               0
                                         \3\.
----------------------------------------------------------------------------------------------------------------
Amendment 80..........................  Total...................          16,513          16,557          12,743
----------------------------------------------------------------------------------------------------------------
Alaska Groundfish Cooperative for 2015  Total...................           8,958           9,938           7,854
                                        A season................           4,479           4,969           3,927
                                        Critical habitat limit..             n/a           2,981           2,356
                                        B season................           4,479           4,969           3,927
                                        Critical habitat limit               n/a           2,981           2,356
                                         \3\.
----------------------------------------------------------------------------------------------------------------
Alaska Seafood Cooperative for 2015...  Total...................           7,555           6,619           4,889
                                        A season................           3,778           3,310           2,445
                                        Critical habitat limit..             n/a           1,986           1,467
                                        B season................           3,778           3,309           2,444
                                        Critical habitat limit               n/a           1,985           1,466
                                         \3\.
----------------------------------------------------------------------------------------------------------------
\1\ Section 679.20(a)(8)(ii) allocates the Atka mackerel TACs, after subtracting the Community Development Quota
  (CDQ) reserves, jig gear allocation, and incidental catch allowances (ICAs) to the Amendment 80 and BSAI trawl
  limited access sectors. The allocation of the TAC for Atka mackerel to the Amendment 80 and BSAI trawl limited
  access sectors is established in Table 33 to part 679 and Sec.   679.91. The CDQ reserve is 10.7 percent of
  the TAC for use by CDQ participants (see Sec.  Sec.   679.20(b)(1)(ii)(C) and 679.31).
\2\ Section 679.20(a)(8)(i) requires that up to 2 percent of the Eastern Aleutian District and the Bering Sea
  subarea TAC be allocated to jig gear after subtracting the CDQ reserve and ICA. Under the final 2015 harvest
  specifications, this allocation is 0.5 percent. The jig gear allocation is not apportioned by season.
\3\ Any unharvested Atka mackerel A season allowance that is added to the B season is prohibited from being
  harvested within waters 0 nm to 20 nm of Steller sea lion sites listed in Table 6 to this part and located in
  Areas 541, 542, and 543.
Note: Seasonal or sector apportionments may not total precisely due to rounding.

    In this final rule, Sec.  679.20(a)(7)(vii) sets a Pacific cod 
harvest limit based on abundance in Area 543 as determined by the 
annual stock assessment process. NMFS will first subtract the State 
Pacific cod Guideline Harvest Level (GHL) amount from the Aleutian 
Islands Pacific cod ABC, then NMFS will determine the harvest limit in 
Area 543 by multiplying the percentage of Pacific cod estimated in Area 
543 by the remaining ABC for Aleutian Islands Pacific cod. The State 
sets the Pacific cod GHL at 3 percent of the sum of the Aleutian 
Islands and the Bering Sea Pacific cod ABCs. Table 2 provides the 
proposed 2015 Aleutian Islands Pacific cod biomass, OFL, ABC, TAC, GHL, 
the sector allocations under the 2015 harvest specifications, and the 
Area 543 harvest limit under this final rule. The Area 543 harvest 
limit is based on an estimate of Pacific cod abundance for Area 543 
from the 2013 stock assessment for Aleutian Islands Pacific cod.
    In this final rule, Sec.  679.23(e)(5)(ii)(C)(2) extends the 
Pacific cod trawl gear C season from November 1 to December 31 for 
Amendment 80 and Community Development Quota CDQ trawl vessels. Prior 
to this final rule, the Pacific cod trawl gear C season occurred from 
June 10 through November 1. This additional season length provides 
greater opportunity for trawl gear harvesters to distribute catch 
throughout the year.

[[Page 70291]]



 Table 2--2015 Aleutian Islands Pacific Cod Biomass, OFL, ABC, TAC, GHL,
Sector Allocations, and the Area 543 Harvest Limit Under This Final Rule
                      [Amounts are in metric tons]
------------------------------------------------------------------------
 
------------------------------------------------------------------------
    2015 Aleutian Islands Pacific Cod Biomass, OFL, ABC, TAC, and GHL
------------------------------------------------------------------------
Biomass......................................................     58,911
OFL..........................................................     20,100
ABC..........................................................     15,100
TAC..........................................................      6,487
GHL..........................................................      8,613
------------------------------------------------------------------------


------------------------------------------------------------------------
                                                                Harvest
                            Sector                               limit
------------------------------------------------------------------------
                    2015 Sector and Area Allocations
------------------------------------------------------------------------
CDQ portion of the TAC.......................................        694
Non-CDQ allocations..........................................      5,793
Area 543 harvest limit.......................................      1,609
------------------------------------------------------------------------

    In this final rule, Sec.  679.20(a)(5)(iii)(B)(6) sets harvest 
limits for pollock in the A season (January 20 to June 10) and the B 
season (June 10 to November 1) in Areas 543, 542, and 541. In Area 543, 
the A season pollock harvest limit is no more than 5 percent of the 
Aleutian Islands pollock ABC. In Area 542, the A season pollock harvest 
limit is no more than 15 percent of the Aleutian Islands ABC. In Area 
541, the A season pollock harvest limit is no more than 30 percent of 
the Aleutian Islands ABC. These limits apply to all harvests; this 
includes harvests by the Aleut Corporation, CDQ groups, and the 
incidental catch of pollock in all other groundfish fisheries. These 
harvest limits would ensure the harvest of pollock is constrained in 
the winter when pollock harvests are most likely to occur and when 
pollock appears to be an important part of the Steller sea lion diet 
(Section 5.3.3 in 2014 BiOp).
    Table 3 provides estimates of the 2015 Aleutian Islands pollock 
biomass, OFL, ABC, TAC under the 2015 harvest specifications, and area 
specific harvest limits under this final rule. NMFS notes that the 
maximum TAC in the Aleutian Islands pollock fishery is constrained by 
statutory and regulatory provisions that limit the maximum Aleutian 
Islands pollock TAC to 19,000 metric tons (see regulations at Sec.  
679.20(a)(5)(iii)).

   Table 3--2015 Aleutian Islands Pollock Biomass, OFL, ABC, and TAC;
Sector and Season Allocations; and the A Season Harvest Limits, by Area,
                          Under This Final Rule
                      [Amounts are in metric tons]
------------------------------------------------------------------------
 
------------------------------------------------------------------------
            2015 Aleutian Islands Biomass, OFL, ABC, and TAC
------------------------------------------------------------------------
Biomass.................................................         289,307
OFL.....................................................          47,713
ABC.....................................................          39,412
TAC.....................................................      \1\ 19,000
------------------------------------------------------------------------


 
 
----------------------------------------------------------------------------------------------------------------
                           2015 Aleutian Islands Sector, Season, and Area Allocations
----------------------------------------------------------------------------------------------------------------
          Sector \2\                       Seasons \4\               Area 541        Area 542        Area 543
----------------------------------------------------------------------------------------------------------------
Harvest Limits \3\............              A season                      11,824           5,912           1,971
----------------------------------------------------------------------------------------------------------------
CDQ Directed Fishing Allowance  Total...........           1,900
                                A season........             760                        n/a
                                B season........           1,140
----------------------------------------------------------------------------------------------------------------
ICA...........................  Total...........           2,000
                                A season........           1,000                        n/a
                                B season........           1,000
----------------------------------------------------------------------------------------------------------------
Aleut Corporation.............  Total...........          15,100
                                A season........          14,005                        n/a
                                B season........           1,095
----------------------------------------------------------------------------------------------------------------
 \1\ Statutory and regulatory provisions limit the maximum Aleutian Islands pollock TAC to 19,000 mt (see
  regulations at Sec.   679.20(a)(5)(iii)).
\2\ Pursuant to Sec.   679.20(a)(5)(iii)(B)(2)(i) and (ii), the annual Aleutian Islands pollock TAC, after
  subtracting first for the CDQ directed fishing allowance (10 percent) and second the ICA (2,000 mt), is
  allocated to the Aleut Corporation for a directed pollock fishery.
\3\ Note that although the area specific harvest limits total to more than 19,000 mt, the TAC constrains total
  harvests in the Aleutian Islands. NMFS will prohibit fishing if the TAC is reached in the Aleutian Islands
  even if some amount is unharvested within an area specific harvest limit.
\4\ Section 679.20(a)(5)(iii)(B)(3)(i) limits the harvest of Aleutian Islands pollock in the A season to no more
  than 40 percent of the ABC. This harvest includes the directed pollock fishery, CDQ directed fishing
  allowance, and the ICA. To establish the A season directed pollock fishery allocation within the seasonal
  limit, NMFS determines the amount of ICA that will be necessary to support other groundfish fisheries during
  the A season.

Summary of Regulation Changes

    NMFS made three changes to the final rule. One change is in 
response to public comment, and one change is a technical correction. 
The third change revises 15 CFR 902.1(b) to reflect revisions to 
recordkeeping and reporting requirements.
    First, NMFS added the term ``C season'' to Sec.  679.20(a)(7)(v)(B) 
to correct an inadvertent omission. This regulatory correction has no 
impact on the Steller sea lion protection measures but provides an 
accurate description of existing Pacific cod seasons. Additional 
discussion of this change is in Comment 7 included under Response to 
Public Comments, below.
    Second, NMFS revised Sec.  679.20(a)(7)(vii) to more accurately 
describe the process for setting the Pacific cod harvest limit for Area 
543. The proposed rule at Sec.  679.20(a)(7)(vii) said that NMFS would 
adjust the ABC by deducting the State guideline harvest level (GHL). 
This is not the case, as NMFS does not adjust the ABC. NMFS modified 
this paragraph to explain that NMFS will first subtract the State GHL 
Pacific cod amount from the Aleutian

[[Page 70292]]

Islands Pacific cod ABC. Then NMFS will determine the harvest limit in 
Area 543 by multiplying the percentage of Pacific cod estimated in Area 
543 by the remaining ABC for Aleutian Islands Pacific cod. This 
correction clarifies a procedure but does not change the intended 
process for setting the Pacific cod harvest limitation and has no 
impact on the Steller sea lion protection measures.
    Third, this final rule revises and adds data elements within a 
collection-of-information for recordkeeping and reporting requirements; 
therefore 15 CFR 902.1(b) is revised to correctly reference the 
sections resulting from this final rule. 15 CFR 902.1(b) identifies the 
location of NOAA regulations for which Office of Management and Budget 
(OMB) approval numbers have been issued. Section 3507(c)(B)(i) of the 
Paperwork Reduction Act requires that agencies inventory and display a 
current control number assigned by the Director of the OMB for each 
agency information collection.

Response to Public Comments

    The comment period on the proposed rule ended on August 15, 2014 
(79 FR 37486). NMFS received 17 letters during the proposed rule 
comment period. NMFS released the final EIS on May 23, 2014 (79 FR 
29759). NMFS received two letters of public comment on the final EIS. 
The 19 letters received contained 59 unique comments. All of the 
comment letters received are posted on http://www.regulations.gov, 
search term NOAA-NMFS-2012-0013.
    Although NMFS is not required to respond to comments received as a 
result of issuance of the final EIS, NMFS decided to provide responses 
as part of the decision-making process. Due to the overlap of issues, 
NMFS summarizes and responds to the comments received on the final EIS 
and the comments on the proposed rule in this final rule preamble.
    In many of the letters, members of the public also made comments on 
the 2014 BiOp. NMFS responds to comments on the 2014 BiOp that are 
related to the proposed rule and EIS. However, comments on the 2014 
BiOp that are not related to the proposed rule or EIS are not addressed 
further in this preamble. NMFS notes that this final rule does not 
implement the 2014 BiOp, and the 2014 BiOp is not subject to notice-
and-comment rulemaking requiring a response in this final rule. All 
letters were provided to NMFS PRD for their review. NMFS PRD and NMFS 
SFD did not identify any new information provided in public comments 
that would require NMFS SFD to reinitiate ESA section 7 consultation. 
The triggers for reinitiating consultation are provided at 50 CFR 
402.16.

Comments on Fishery Management Measures

    Comment 1: The proposed rule continues to reduce the Atka mackerel 
TAC, restrict catch in Steller sea lion critical habitat, and spread 
the catch out temporally and spatially. Further, the majority of 
Steller sea lion critical habitat remains closed for Atka mackerel in 
the Aleutian Islands: 76 percent of critical habitat in Area 543; 93 
percent in Area 542; and almost all of Area 541 except a small area 
southeast of Seguam Pass. These measures will reduce the operational 
efficiency of harvesters fishing under the provisions of the Amendment 
80 Program. This is particularly true given current low permissible 
harvest levels, even if allowed catches are managed cooperatively among 
participants in the Amendment 80 Program.
    Response: NMFS acknowledges the comment. Amendment 80 to the FMP 
identified participants using trawl catcher/processors in the BSAI 
active in groundfish fisheries other than Bering Sea pollock (i.e., the 
head-and-gut fleet or Amendment 80 vessels) and established a 
framework, known as the Amendment 80 Program, to regulate fishing by 
this fleet (72 FR 52668, September 14, 2007). The Amendment 80 Program 
created Amendment 80 quota share based on the historic catch of quota 
share species by Amendment 80 vessels, facilitated the development of 
cooperative arrangements (Amendment 80 cooperatives) among quota 
shareholders, and assigned an exclusive harvest privilege for a portion 
of the TAC of quota share species for participants in Amendment 80 
cooperatives. Chapter 8 of the EIS describes the factors affecting the 
operational efficiency of vessels in the Amendment 80 Program under 
this action.
    Comment 2: The development of the Atka mackerel management measures 
by the Council's Steller Sea Lion Mitigation Committee was guided in 
large measure by the results of NMFS Fishery Interaction Team studies. 
The Atka mackerel management measures implemented by this action are 
intended to meet the goal of reducing the possibility of competition. 
These Atka mackerel management measures are responsive to the best 
available information and to the performance standards of the 2010 FMP 
BiOp (see ADDRESSES). The 2014 BiOp provides a relevant context for 
evaluating the exposure of Steller sea lions to potential constraining 
competition between the fishery and Steller sea lions. Roughly 90 
percent of the time during a year there will be only 1 or 2 vessels 
fishing Atka mackerel within a given management area (e.g., Area 542). 
With the removal of the ``platoon system'' under this action, the Atka 
mackerel fishery will be highly dispersed in time and space.
    Response: NMFS acknowledges the comment. Chapter 8 of the EIS 
describes the operations of vessels fishing for Atka mackerel under 
this action. Note that the ``platoon system'' is also called the Atka 
Mackerel Harvest Limit Area (HLA) fishery. The 2010 Interim Final Rule 
removed the HLA fishery and this final rule maintains that removal. See 
the proposed rule preamble for a more detailed discussion of the HLA 
fishery and the reason for its removal (79 FR 37499).
    Comment 3: Strike the term ``Area 541'' from the proposed rule at 
Sec.  679.20(a)(8)(ii)(D) where it reads, ``Any unharvested Atka 
mackerel A season allowance that is added to the B season is prohibited 
from being harvested within waters 0 nm to 20 nm of Steller sea lion 
sites listed in Table 6 to this part and located in Areas 541, 542, and 
543.'' Any unused A season Atka mackerel should roll to B season and be 
available throughout the area open to fishing within Area 541. This 
will allow the fleet to disperse effort as was envisioned under this 
action. This change in regulation is also supported by NMFS research 
that showed little exchange of Atka mackerel inside and outside of 
areas 12 nm from shore within Area 541.
    Response: The regulations at Sec.  679.20(a)(8)(ii)(D) are correct 
and NMFS made no changes to regulations in response to this comment. 
NMFS intended to prohibit the harvest of Atka mackerel TAC rolled over 
from the A season inside critical habitat in the B season in Areas 541, 
542, and 543. This prohibition preserves the intent of the existing 
seasonal apportionment of Atka mackerel TAC, which is to temporally 
disperse harvest. Currently, in each management area, 50 percent of the 
TAC is assigned to the A season and 50 percent to the B season, see 
Sec.  679.20(a)(8)(ii)(C)(1)(ii). Also, the ability to roll over unused 
TAC from the A season to the B season is limited under Sec.  
679.20(a)(8)(ii)(D). As explained in the preamble to the proposed rule, 
the purpose of this provision is to limit the amount of harvest that 
could occur in critical habitat to further protect Atka mackerel prey 
resources for Steller sea lions inside critical habitat (79 FR 37500). 
Unharvested Atka mackerel

[[Page 70293]]

TAC from the A season can be harvested in the B season outside of 
critical habitat. This provision also provides for greater spatial 
dispersion of harvest away from Steller sea lion critical habitat.
    Comment 4: The proposed rule would restore some productive fishing 
grounds in the Aleutian Islands and remove the no-retention regulations 
for the Pacific cod fishery in Area 543. These measures provide some 
reduction in the impacts of Steller sea lion protection measures to the 
Pacific cod fishery relative to the 2010 Interim Final Rule. However, 
the amount of TAC available to the Pacific cod fishery in the Aleutian 
Islands will be only a small fraction of what was available and what 
was harvested prior to 2011 because of the decision to separate BSAI 
Pacific cod into separate stocks with separate OFLs, ABCs, and TACs. 
With the adoption of separate Pacific cod TACs for the Aleutian Islands 
and Bering Sea, the new measures provide much better protection of the 
Pacific cod resource at the global scale than did the 2010 FMP BiOp RPA 
implemented in the 2010 Interim Final Rule.
    Response: NMFS acknowledges the comment. Chapter 8 of the EIS 
describes the management of the Pacific cod fishery under this action.
    Comment 5: NMFS could alleviate the concern over the concentration 
of Pacific cod harvest in Area 543 and 542 by including re-consultation 
triggers in the final rule similar to the re-consultation triggers NMFS 
included in the 2010 Interim Final Rule that established non-trawl and 
trawl sector guideline harvest limits for Pacific cod by area. NMFS 
should consider re-consultation triggers as non-regulatory guideline 
harvest levels distinct for trawl and non-trawl sectors Pacific cod 
harvest in Areas 543 and 542 (and possibly 541). These re-consultation 
triggers could serve as an interim measure to address immediate 
concerns until superseded by Council action. Re-consultation triggers 
would ensure less concentration of harvest in these areas due to 
greater temporal dispersion of harvest by vessels using fixed gear, 
which is more temporally dispersed than harvest by vessels using trawl 
gear. Re-consultation triggers would also ensure harvest by non-trawl 
gear, which fishes at a slower rate than trawl gear and is less likely 
to contribute to localized depletion.
    Response: NMFS included triggers for reinitiation of the section 7 
consultation for Pacific cod harvest in Areas 541 and 542 as part of 
the RPA in the 2010 FMP BiOp. The Pacific cod ABC and TAC were 
specified as a combined BSAI ABC and TAC under the proposed action 
analyzed in the 2010 FMP BiOp. Because there were no limits on the 
amount of the BSAI Pacific cod TAC that could be caught in Areas 541 
and 542, the RPA contained triggers to cue NMFS and the public that 
reinitiation of section 7 consultation should occur if fishing exceeded 
historical catch amounts in these management areas. NMFS considered 
these triggers important because the RPA and its implementing 2010 
Interim Final Rule also closed Area 543 to directed fishing and 
prohibited retention of Pacific cod. With the closure of Area 543 to 
directed fishing and retention of Pacific cod prohibited under the 2010 
Interim Final Rule, NMFS was concerned that harvest displaced from Area 
543 would cause an increase in harvest in Areas 542 and 541. NMFS 
included a discussion of these triggers from the 2010 FMP BiOp in the 
preamble to the 2010 Interim Final Rule; however, as explained in that 
preamble, NMFS did not include these triggers in the implementing 
regulations (75 FR 77541).
    The 2014 BiOp did not recommend reinitiation triggers for the 
Pacific cod fishery because the nature of the Pacific cod fishery and 
harvest limits have changed since the 2010 FMP BiOp. As of 2014, 
Pacific cod OFLs, ABCs, and TACs are specified separately for the 
eastern Bering Sea and Aleutian Islands. The amount of Pacific cod 
catch in the Aleutian Islands is expected to be substantially reduced 
relative to prior years when the OFL, ABC, and TAC were combined for 
the BSAI. Therefore, the potential for a shift of a substantial amount 
of fishing effort from one area of the Aleutian Islands to another does 
not exist under this action.
    The reinitiation notice in Section 10.0 of the 2014 BiOp stated 
that formal consultation may be required if the Aleutian Islands 
Pacific cod harvest is concentrated in Areas 542 or 543, as this would 
reflect a pattern not seen in the historical fishery data. The EIS and 
the 2014 BiOp anticipated that a larger proportion of the Aleutian 
Islands Pacific cod TAC is likely to be harvested by trawl gear rather 
than by non-trawl gear and the Council did not recommend harvest 
limits.
    Comment 6: Make two changes to the regulations: (1) Apportion the 
Aleutian Islands Pacific cod TAC between fixed gear and trawl gear for 
Areas 543, 542, and 541; and (2) apportion the Aleutian Islands Pacific 
cod TAC between the A and B seasons for Areas 543, 542, and 541. 
Without these changes, the proposed rule, in conjunction with separate 
management of Aleutian Islands Pacific cod and increasing State of 
Alaska GHL Pacific cod fishery, could reduce fixed gear harvest 
opportunity in the Aleutian Islands and increase the proportion of 
trawl harvest of Pacific cod. The lack of an Aleutian Islands Pacific 
cod TAC apportionment between fixed gear and trawl gear for Areas 543, 
542, and 541 will result in a decreased proportion of fixed-gear 
Pacific cod harvest in the Aleutian Islands and an increased proportion 
of trawl Pacific cod harvest in the Aleutian Islands. This means more 
Pacific cod harvest in the Aleutian Islands will be harvested by trawl 
gear that is more temporally compressed (February and March), fishes at 
a higher rate (than fixed gear), and is more likely to cause localized 
depletion. This is inconsistent with the stated intent of the proposed 
rule.
    Response: This final rule implements measures necessary to protect 
Steller sea lion prey. The changes proposed by the commenter to 
apportion the Aleutian Islands Pacific cod TAC between fixed gear and 
trawl gear and between the A and B seasons are not Steller sea lion 
protection measures. Apportioning the Aleutian Islands Pacific cod TAC 
between fixed gear and trawl gear and between the A and B season would 
require a separate regulatory amendment. NMFS cannot add this provision 
or an interim measure to the final rule because it not been considered, 
analyzed, or made available for public comment. The Council could 
consider and analyze this proposal and make a recommendation to NMFS 
for a future regulatory amendment.
    A separate Aleutian Islands Pacific cod TAC was established 
starting in 2014 that resulted in a substantial reduction in the 
Pacific cod available for harvest in the Aleutian Islands. The Council 
and NMFS were aware of the impact of the Aleutian Islands Pacific cod 
TAC on the fixed gear fleet's harvest opportunities when the Council 
took action to split the Pacific cod TAC. With the Aleutian Islands 
Pacific cod TAC, it is likely that trawl vessels will be able to fully 
harvest this limited TAC before the Pacific cod are available for 
harvest by fixed gear vessels.
    The EIS analyzed the impacts of the proposed action and its 
alternatives with the understanding that a separate Pacific cod TAC 
would be implemented in 2014 (see Chapter 5 of the EIS). The 2014 BiOp 
acknowledged the impacts of the Pacific cod TAC split, including the 
fact that the trawl fishery would harvest the TAC, when it analyzed the 
proposed suite of Steller sea lion protection measures and found that 
the implementation of this final rule was not likely to jeopardize the 
continued existence of Steller sea lions and was

[[Page 70294]]

not likely to destroy or adversely modify designated Steller sea lion 
critical habitat. Therefore, the final rule is consistent with the 
stated intent for this action.
    Comment 7: The proposed regulatory text at Sec.  679.20(a)(7)(v)(B) 
states, ``Harvest of seasonal apportionments in the Amendment 80 
limited access fishery. (1) Pacific cod ITAC assigned for harvest by 
the Amendment 80 limited access fishery in the A season may be 
harvested in the B seasons.'' This mistakenly omits a reference to the 
C season contained in paragraph (a)(7)(v)(A) that states, ``Use of 
seasonal apportionments by Amendment 80 cooperatives. (1) The amount of 
Pacific cod listed on a CQ permit that is assigned for use in the A 
season may be used in the B or C season.'' We believe this was an 
inadvertent omission and the words ``or C'' belong in paragraph 
(a)(7)(v)(B)(1) so that it would read: ``Pacific cod ITAC assigned for 
the harvest by the Amendment 80 limited access fishery in the A season 
may be harvested in the B or C seasons.''
    Response: NMFS agrees that this was a typographical error and has 
made the change to the final rule Sec.  679.20(a)(7)(v)(B) to correct 
this inadvertent omission. Section 679.20(a)(7)(v)(B) now reads, 
``Harvest of seasonal apportionments in the Amendment 80 limited access 
fishery. (1) Pacific cod ITAC assigned for harvest by the Amendment 80 
limited access fishery in the A season may be harvested in the B or C 
seasons.'' The changes NMFS made to Sec.  679.20(a)(7)(v) are discussed 
in the preamble to the proposed rule (79 FR 37502). This regulatory 
correction has no impact on the Steller sea lion protection measures.
    Comment 8: The management measures put forward in the proposed rule 
are, on the whole, a significant improvement over the measures that are 
currently in place from the 2010 Interim Final Rule, particularly in 
regards to the re-opening of Area 543 to Pacific cod fishing. The new 
measures are more consistent with the best available science on the 
impacts of groundfish fisheries on the Steller sea lions and reflect 
management measures developed and supported by the Council and its 
Steller Sea Lion Mitigation Committee.
    Response: NMFS acknowledges the comment.
    Comment 9: The Pacific cod fishery has been the primary basis of 
seafood processing in Adak and a mainstay of the local economy. Re-
opening portions of critical habitat to fishing will provide more 
spatial dispersion of the fishery. Setting a separate TAC for Aleutian 
Islands Pacific cod is a precautionary measure that will protect the 
long term productivity of the Pacific cod stock. While these measures 
will result in less Pacific cod being available in the Aleutian Islands 
in the short run, the more conservative management of Aleutian Islands 
Pacific cod could provide the community of Adak with a more stable 
resource base in the long run.
    Response: NMFS acknowledges the comment and notes that this final 
rule is intended to spatially disperse the Pacific cod fishery.
    Comment 10: Prior to the 2014 BiOp, no analysis of a commercial 
pollock fishery in the Aleutian Islands had been undertaken since 
Congress allocated pollock to the Aleut Corporation in 2004. The 2014 
BiOp takes the first hard look at the spatial distribution of the 
historic Aleutian Island pollock fishery in comparison to the telemetry 
data on Steller sea lion foraging locations. It also compares Steller 
sea lion dive profiles with pollock fishing depths. In both cases the 
2014 BiOp finds the least overlap of any of the three prey species. 
Additionally, scat data presented in the 2010 FMP BiOp showed Aleutian 
Islands pollock had the lowest frequency of occurrence in Steller sea 
lion scat of the three prey species of concern.
    The statutory and regulatory provisions that limit the maximum 
amount of pollock TAC that may be harvested in the Aleutian Islands 
means that the pollock TAC in 2015 would be less than 50 percent of the 
Aleutian Islands pollock ABC. The commenter notes that Aleutian Islands 
pollock harvest is likely to be significantly less than the TAC because 
allocations provided to CDQ groups (i.e., 10 percent of the Aleutian 
Islands TAC) may be harvested in the Bering Sea, and regulations 
allocate 50 percent of the TAC remaining after allocation to CDQ groups 
to vessels less than 60 feet in length overall. These smaller vessels 
will have difficulty harvesting their pollock allocations due to the 
greater depths at which pollock is found in the Aleutian Islands and 
the more limited fishing capabilities of smaller vessels to harvest 
pollock at depth given the necessary horsepower and gear requirements.
    Response: NMFS agrees that the Aleutian Islands pollock TAC is 
likely to be substantially below the Aleutian Islands pollock ABC in 
the foreseeable future because existing statutory and regulatory 
provisions limit the maximum Aleutian Islands pollock TAC to 19,000 mt 
(see regulations at Sec.  679.20(a)(5)(iii) and Table 3 in this 
preamble). NMFS notes that although catch of Aleutian Islands pollock 
may be less than the TAC for the reasons stated by the commenter, NMFS 
does not have specific information indicating that catch will be 
consistently below the Aleutian Islands TAC in future years. The EIS 
and the 2014 BiOp assumed that pollock catch in the Aleutian Islands 
would equal the TAC for purposes of analyzing the effects of this 
action.
    Comment 11: The proposed rule to allow pollock fishing in some 
portions of critical habitat will finally realize Congress' intent of 
providing for economic development for Adak in the 2004 legislation 
allocating Aleutian Islands pollock to the Aleut Corporation.
    Response: NMFS acknowledges the comment.
    Comment 12: Reduce the TAC for the Bering Sea Aleutian Islands 
pollock fishery by 50 percent because it may be a cause in the Steller 
sea lion population decline. One of the Steller sea lion's primary food 
sources is pollock. Not having a stable food supply forces the Steller 
sea lions to travel farther and compete with other marine animals for 
different food resources. Local residents are wondering why there are 
more frequent Steller sea lion sightings in areas of the Bering Sea 
that were previously uninhabited by sea lions.
    Response: NMFS manages pollock in the Aleutian Islands separately 
from the Bering Sea. This action changes management of the Aleutian 
Islands pollock fishery, as detailed in this preamble. The Aleutian 
Islands pollock TAC is greatly reduced from the ABC due to a number of 
factors described in Comment 10 and shown in Table 3 in this preamble. 
The Bering Sea pollock fishery is outside the scope of this action.
    The 2010 FMP BiOp analyzed the impacts of the Bering Sea pollock 
fishery on Steller sea lions and concluded that the management measures 
currently in place, including the management measures for the Bering 
Sea pollock fishery, are not likely to jeopardize the continued 
existence of Steller sea lions or destroy or adversely modify their 
designated critical habitat. The 2014 BiOp concluded management 
measures in this action for the Aleutian Islands pollock fishery are 
not likely to jeopardize the continued existence of Steller sea lions 
or destroy or adversely modify their designated critical habitat.
    A wide range of factors can affect the distribution of Steller sea 
lions (see Chapter 5 of the EIS for additional details on Steller sea 
lion distribution). The occurrence of Steller sea lions at a

[[Page 70295]]

location not previously observed may be due to reasons other than the 
lack of adequate prey resources in other locations.

Comments on Steller Sea Lion Issues

    Comment 13: The proposed rule preamble fails to include any 
information regarding the current total population status of Steller 
sea lions. The status of the Steller sea lion population should be 
included in the preamble to the rule to give context to the proposed 
management measures. The proposed rule is for management measures to 
protect Steller sea lions, but the rule provides no information on the 
total population status.
    Response: A complete description of the status of the Steller sea 
lion population is provided in Section 5.1.1 of the EIS and Section 3.3 
of the 2014 BiOp. The WDPS of Steller sea lions is distributed from 
Prince William Sound through the Aleutian Islands in Alaska and in 
Russia on the Kamchatka peninsula, Kuril Islands, and the Sea of 
Okhotsk. The 2008 Recovery Plan (see ADDRESSES) uses the population 
trend in non-pups to gauge the species' status.
    In 2012, the estimated abundance of the entire WDPS of Steller sea 
lions (pups and non-pups, United States and Russia/Asia) was 79,300 sea 
lions (see Section 3.3.1 of the 2014 BiOp). Abundance of the United 
States portion of the population is estimated at 52,200 animals based 
on data from 2012. Steller sea lion abundance in the Russian portion of 
the population is estimated at 27,100 animals based on data collected 
through 2012.
    There is evidence that Steller sea lion non-pup counts in Alaska 
increased at an average rate of 1.67 percent per year between 2000 and 
2012. Because the United States portion of the range occurs exclusively 
within Alaska, reference to the United States portion of the Steller 
sea lion population is synonymous with the Alaska portion of the 
Steller sea lion population. However, there are strong differences in 
trends across the range of Steller sea lions in Alaska. There is strong 
evidence of a positive trend (2.89 percent per year) east of Samalga 
Pass and strong evidence of a continued decline (-1.53 percent per 
year) west of Samalga Pass.
    NMFS uses six sub-regions within Alaska for trend and status 
monitoring of Steller sea lions. These sub-regions include the eastern 
GOA, central GOA, and western GOA, the eastern Aleutian Islands/Bering 
Sea, central Aleutian Islands, and the western Aleutian Islands. A 
seventh sub-region (i.e., Russia/Asia) is located outside the United 
States and is commonly referred to as the Russian sub-region because 
most of the Steller sea lion population in that sub-region is 
concentrated in Russia. NMFS receives information on the trend and 
status of Steller sea lions in this sub-region from its counterparts in 
Russia and Japan.
    Non-pup counts increased at a significant rate from 2000 through 
2012 in the eastern GOA, the western GOA, and the eastern Aleutian 
Islands. Non-pup counts increased at a non-significant rate from 2000 
through 2012 in the central GOA. Counts of non-pups decreased at a 
significant rate in the western Aleutian Islands and at a non-
significant rate in the central Aleutian Islands from 2000 through 
2012.
    The Russian sub-region of Steller sea lions is estimated to have 
increased from 13,000 sea lions in the 1990s to 16,000 by 2005. Data 
collected through 2012 indicate that overall Steller sea lion abundance 
in the Russian sub-region continues to increase and is now similar to 
the 1960s (27,100). Between 1995 and 2012, pup production increased 
overall in the Russian sub-region by 3.1 percent per year. However, 
just as in the United States portion of the range, there are 
significant regional differences in Steller sea lion population trends 
in the Russian sub-region (see the EIS Chapter 5 and 2014 BiOp for full 
details).
    Comment 14: Given the robust increase in the total United States 
population of Steller sea lions, the removal of some of the Steller sea 
lions protection measures in the 2010 Interim Final Rule is warranted. 
Additionally, this population increase, combined with the fact there is 
no evidence supporting the nutritional stress hypothesis (i.e., that 
fisheries are removing key Steller sea lion prey species in a way that 
diminishes resources for Steller sea lions), is grounds for the removal 
of additional undue restrictions on the BSAI groundfish fisheries.
    Response: NMFS acknowledges the comment; however, the changes made 
to Steller sea lion protection measures are based on the best available 
scientific information and not those stated in the comment.
    Comment 15: The 2014 BiOp fails to provide a sound, scientific 
basis for concluding no jeopardy or adverse modification and, 
therefore, it does not provide an objective foundation for the proposed 
rule. The 2014 BiOp analysis on which the proposed rule is based is 
flawed to such an extent that it should be set aside, the proposed rule 
withdrawn, and the consultation re-initiated.
    Response: NMFS based this rule on the preferred alternative 
recommended by the Council. See response to Comment 16.
    The 2014 BiOp considered the effects of two proposed actions: The 
modified Steller sea lion protection measures in the Aleutian Islands 
Federal groundfish fisheries and State of Alaska parallel groundfish 
fisheries for Atka mackerel, Pacific cod, and pollock (the action 
implemented through this final rule); and research to better understand 
the potential effects of these fisheries on Steller sea lions. As 
required by the regulations codified at 50 CFR 402.14, the 2014 BiOp 
includes a summary of the information on which the opinion is based, a 
detailed discussion of the effects of the action on the listed Steller 
sea lions and designated critical habitat, and NMFS' opinion that the 
action is not likely to jeopardize the continued existence of the WDPS 
of Steller sea lions or destroy or adversely modify their designated 
critical habitat. NMFS based its opinion in the 2014 BiOp on the best 
scientific and commercial data available as required by 50 CFR 402.14. 
Please see the 2014 BiOp for additional detail (see ADDRESSES).
    Comment 16: The proposed rule is premised on the unprecedented 
finding from the 2014 BiOp that the preponderance of available data 
does not support a conclusion that the groundfish fisheries and 
groundfish abundance are limiting Steller sea lion population growth 
rates.
    Response: These implementing regulations are premised on the 
information available to the Council, its Steller Sea Lion Mitigation 
Committee, and NMFS throughout the development of this action. When it 
recommended the suite of Steller sea lion protection measures 
implemented in this final rule, the Council reviewed all of the 
information available, including the 2010 FMP BiOp, the Center for 
Independent Experts' review of the 2010 BiOp, as well as the external 
review commissioned by the States of Alaska and Washington, the EIS 
analysis, and public comments.
    NMFS then conducted an ESA section 7 consultation on the Council's 
recommended proposed action and issued the 2014 BiOp. The 2014 BiOp 
concluded that the proposed action is not likely to jeopardize the 
continued existence of the WDPS of Steller sea lions or destroy or 
adversely modify their critical habitat. The 2014 BiOp also explains 
that NMFS maintains that a cautionary approach to fishing for prey 
species in Steller sea lion critical habitat is warranted, especially 
in winter when NMFS has the least information about prey biomass, and 
that catch should be dispersed in time

[[Page 70296]]

and space to prevent localized depletion--at least until such time as 
NMFS has better local biomass and exploitation rate estimates (see the 
2014 BiOp, page 227). Consistent with that recommendation, the Steller 
sea lion protection measures implemented in this final rule dispersed 
fishing in time and space to prevent localized depletion of prey 
species.
    Comment 17: While measures other than those currently in place 
conceivably might satisfy NMFS' obligations under the ESA, the 
available scientific information about the fisheries and Steller sea 
lions does not justify new measures that simply allow more fishing 
without a coincident increase in other protections. Alternative 5 is 
arbitrary because it is based on the 2014 BiOp.
    Response: Alternative 5 (the preferred alternative implemented in 
the final rule) was not based on the 2014 BiOp. NMFS worked with the 
Council and its Steller Sea Lion Mitigation Committee to identify the 
reasonable range of alternatives for analysis in the EIS. In developing 
the alternatives, the Steller Sea Lion Mitigation Committee and Council 
considered the 2010 FMP BiOp, external reviews of 2010 FMP BiOp, the 
draft EIS, public comments, and NMFS' response to public comments 
received on the draft EIS. Based on this information, the Council 
determined that the available scientific information about the 
fisheries and Steller sea lions supports alternative Steller sea lion 
protection measures to those in the 2010 Interim Final Rule. The 
Council then recommended Alternative 5 as the preferred alternative 
based on the analysis in the draft EIS, public comments, and the best 
available scientific information.
    In the 2014 BiOp, NMFS analyzed the effects of Alternative 5 after 
it was recommended by the Council. NMFS conducted the ESA section 7 
consultation on Alternative 5 prior to releasing the final EIS and 
commencing rulemaking. The 2014 BiOp found that the implementation of 
Alternative 5 was not likely to jeopardize the continued existence of 
the WDPS of Steller sea lions and was not likely to destroy or 
adversely modify designated Steller sea lion critical habitat. The 
conclusions in the 2014 BiOp were reached after considering the best 
scientific and commercial information available, including Steller sea 
lion behavior and fisheries data.
    Comment 18: The 2010 FMP BiOp remains valid and, for precisely this 
reason, both the proposed rule and 2014 BiOp must be abandoned. The 
proposed rule simply cannot be reconciled with the 2010 FMP BiOp--as 
the proposed rule would repeal the very Steller sea lion protection 
measures instituted as the 2010 RPA. Because the 2010 FMP BiOp reflects 
a credible and consistent analysis of the best available science, the 
status quo protection measures for Steller sea lions adopted as a 
consequence of that analysis and reflected in the 2010 Interim Final 
Rule must be at least maintained--if not strengthened.
    Response: The connection between the 2010 FMP BiOp and the 2014 
BiOp on the Alaska groundfish fisheries is explained in Section 1.0 of 
the 2014 BiOp. The 2014 BiOp did not entirely replace the previous 2010 
FMP BiOp. The analysis contained in the 2010 FMP BiOp remains valid and 
meets NMFS' requirement to consult at the FMP level.
    NMFS did a project-level, focused consultation on the proposed 
action to modify Steller sea lion protection measures in the Aleutian 
Islands. The 2014 BiOp is the result of that consultation. The 2014 
BiOp considered a different proposed action than the 2010 FMP BiOp, 
namely the proposed changes to the Aleutian Islands Pacific cod, Atka 
mackerel, and pollock fisheries; scientific research on these fisheries 
and other changes to the fishery management structure since 2010; and 
new information available subsequent to completion of the 2010 FMP 
BiOp. The proposed action to modify Steller sea lion protection 
measures replaces the RPA in the 2010 FMP BiOp, which was implemented 
as the 2010 Interim Final Rule. Based on an analysis of the proposed 
action and the new information, the 2014 BiOp concludes that the 
proposed action is not likely to jeopardize the continued existence of 
Steller sea lions or destroy or adversely modify their designated 
critical habitat.
    Comment 19: The proposed rule violates NMFS' ESA obligation to 
avoid jeopardizing the prospects of Steller sea lions for recovery and 
is inconsistent with the 2008 Recovery Plan (see ADDRESSES). The best 
available science, reflected in the 2008 Recovery Plan, indicates that 
a large sub-regional population decline constitutes a threat to the 
prospect of recovery for Steller sea lions as a whole. NMFS is 
proposing to allow additional fishing within the designated critical 
habitat for the western and central Aleutian sub-regions, even though 
Steller sea lion populations continue to decline in those areas and 
NMFS acknowledges that existing fishing levels cannot be ruled out as a 
contributing cause of the ongoing decline. Significantly, the western 
Aleutian sub-regional population declined substantially--60 percent 
from 2000 to 2012--and a 2013 study found that the probability of 
extinction in the western Aleutian Islands is substantial within 50 
years.
    Response: The recovery criteria in the 2008 Recovery Plan are 
discussed in Section 3.5 of the 2014 BiOp and Section 1.9.4 of the EIS. 
The recovery criteria compose the core standards upon which to base a 
decision to remove Steller sea lions from the Endangered Species List. 
The biological (demographic) recovery criteria are intended to maintain 
Steller sea lion populations throughout their range. Currently, there 
are no geographic gaps in the range of Steller sea lions and the 
Recovery Team determined, and NMFS concurred, that it is important to 
the species' viability to maintain populations in all six sub-regions 
of the WDPS. Significant declines over large areas (two sub-regions or 
more) could indicate that the extinction risk may still be high and 
that further research would be needed to understand the threats before 
delisting. NMFS notes that although the recovery criteria are still 
applicable, there have been substantial improvements in the best 
available scientific information on Steller sea lions since the 
publication of the 2008 Recovery Plan. The 2014 BiOp considered the 
best available scientific information.
    The abundance of Steller sea lions in Alaska is increasing at a 
statistically significant rate; however, the increase is due to 
significant increases in population growth in three of the six sub-
regions (the eastern Aleutian Islands, the western GOA, and the eastern 
GOA). Steller sea lions continue to decline in the central Aleutian 
Islands and western Aleutian Islands. The rate of decline is not 
statistically significant in the central Aleutian Islands, but is 
statistically significant in the western Aleutian Islands. The rate of 
increase is uncertain in the central GOA. See response to Comment 13 
for additional information on the population status of Steller sea 
lions.
    Section 3.6 of the 2014 BiOp and Section 5.1.1.2 of the EIS discuss 
the extinction risk of Steller sea lions in Alaska. The studies 
presented in those sections show no risk of extinction for Steller sea 
lion in the WDPS within 100 years. These studies also considered the 
probability of extinction in each of the six specific sub-regions 
within 100 years. The studies concluded that Steller sea lion 
populations in all six of the sub-regions, with one exception, have no 
risk of extinction within 100 years. The population in the western 
Aleutian Islands sub-region is predicted

[[Page 70297]]

to have a high probability of extinction within 100 years.
    As explained in Section 7.1 of the 2014 BiOp, NMFS considered the 
effects of the proposed action on the survival and recovery of sea lion 
populations in the individual sub-regions per the criteria in the 2008 
Recovery Plan. NMFS' opinion in the 2014 BiOp is that the preponderance 
of available data does not support a conclusion that the groundfish 
fisheries as proposed and the current groundfish abundance are limiting 
Steller sea lion population growth rates. NMFS acknowledges that, due 
to significant data gaps, NMFS cannot rule out the effects of fishing 
as contributing to the continued decline in the western Aleutian 
Islands and the lack of recovery in the central Aleutian Islands (see 
Section 5.4.5 of the 2014 BiOp).
    Given these data gaps, NMFS maintains that a precautionary approach 
to fishing for sea lion prey species in Steller sea lion critical 
habitat is warranted, especially in winter, and that catch of prey 
species should be dispersed in time and space to prevent localized 
depletion of prey at least until NMFS has better information about 
local biomass and exploitation rates (see Section 5.4.5 of the 2014 
BiOp). The Steller sea lion protection measures implemented in this 
final rule maintain substantial groundfish fishery closures and catch 
limits in Steller sea lion critical habitat (see Section 5.3 in the 
2014 BiOp and Sections 2.1.5 and 5.2.2.6 of the EIS) to reduce the 
potential for competition for prey between the fisheries and sea lions 
and to ensure that the fisheries are not likely to jeopardize the 
continued existence of the WDPS of Steller sea lions or destroy of 
adversely modify their designated critical habitat.
    For example, directed fishing for Atka mackerel, pollock, and 
Pacific cod with trawl gear will be prohibited in 76 percent, 95 
percent, and 76 percent, respectively, of the area designated as 
critical habitat in the western Aleutian Islands (Area 543). Limits 
will be imposed on the amount of the TAC of these Steller sea lion prey 
species that may be taken from Area 543, which corresponds with the 
western Aleutian Islands sub-region (see Section 2.1.5 of the EIS). 
Seasonal catch limits will also be imposed and the amount of Atka 
mackerel that can be caught in Steller sea lion critical habitat in the 
central and western Aleutian Islands (Areas 543 and 542) will be 
limited to 60 percent of the TAC. Refer to the preamble to the proposed 
rule for the full suite of Steller sea lion protection measures 
implemented by this final rule.
    NMFS' opinion about the effects of the proposed fisheries on the 
Steller sea lion population in the western Aleutian Islands sub-region 
and their designated critical habitat is summarized in Section 7.3 of 
the 2014 BiOp. The measures implemented by this final rule to reduce 
potential competition between the groundfish fisheries and Steller sea 
lions overall, and in sea lion critical habitat in the western Aleutian 
Islands, are not likely to appreciably reduce the likelihood of 
survival or recovery of the western Aleutian Islands Steller sea lion 
sub-population. However, based on an assessment of the available data, 
NMFS concluded that a decline in numbers of the western Aleutian 
Islands Steller sea lion population is likely to continue for unknown 
reasons, even apart from any changes in the fisheries, and that the 
measures implemented by this rule are not likely to yield population 
level effects that would appreciably change the likelihood of survival 
or recovery of the Steller sea lion population within the western 
Aleutian Islands sub-region. NMFS also concluded that the effects of 
the proposed fisheries in the central Aleutian Islands (corresponding 
with NMFS management areas 542 and 541) are not likely to appreciably 
reduce the likelihood of survival or recovery in the central Aleutian 
Islands sub-region. Because the proposed fisheries are not likely to 
reduce the survival or recovery of Steller sea lion populations in the 
western and central Aleutian Islands sub-regions, NMFS concluded that 
the proposed fisheries are not likely to appreciably reduce the 
likelihood of survival or recovery of the WDPS of Steller sea lions 
(Section 7.3 of the 2014 BiOp).
    Comment 20: All protections should remain in place to protect 
Steller sea lions until NMFS can confirm that the threats that have 
resulted in the unforeseen and unexplained declines of Steller sea lion 
populations in the central and western Aleutian Islands have abated. 
The 2010 Interim Final Rule management measures to protect the 
population in these sub-regions represent the maximum spatial extent 
and amount of fishing that can be permitted by the commercial 
groundfish fisheries. In fact, with ongoing declines persisting in 
these areas despite the protection measures instituted by the 2010 
Interim Final Rule, additional protection measures may be necessary. 
There are no conditions under which these endangered Steller sea lions 
would not be jeopardized if restrictions were relaxed. The 
environmental impact of fishing is never conducive to the preservation 
of wildlife or natural habitats.
    Response: NMFS is concerned about the continued decline of Steller 
sea lions in the western and central Aleutian Islands sub-regions. 
However, NMFS concluded that the changes to the Aleutian Islands 
groundfish fisheries management in this final rule are not likely to 
reduce the survival or recovery of sea lion populations in the western 
or central Aleutian Island sub-regions, let alone the WDPS of Steller 
sea lions as a whole. See response to Comment 19. The EIS analyzed the 
environmental impacts of the proposed action and its alternatives on 
wildlife and habitat.
    Comment 21: NMFS' refusal to address the correlation between sub-
regional population trends and Steller sea lion protection measures is 
arbitrary and harmful because it defies a key performance standard set 
forth in the 2010 FMP BiOp. The proposed rule purports to maintain the 
goal of providing more protection to Steller sea lions where more 
decline in their population is evident. As the proposed rule would 
eliminate Steller sea lion protection measures in the central and 
western Aleutian Islands, the portion of the species' range where the 
population continues to decline, it obviously fails to meet this 
performance standard. The proposed rule would open more critical 
habitat to more fisheries in Area 543 relative to Areas 541 and 542, 
despite the fact that the negative population trend is most pronounced 
in Area 543.
    Response: Contrary to the commenter's assertion, this final rule 
does not eliminate Steller sea lion protection measures in the central 
and western Aleutian Islands, but rather maintains or modifies Steller 
sea lion protection measures in a manner that is consistent with the 
mandates of the ESA and the Magnuson-Stevens Act.
    Section 1.10.3 of the EIS describes the objective and performance 
standards to mitigate potential adverse impacts of the fisheries on 
Steller sea lions. The Council and NMFS considered these performance 
standards when selecting the preferred alternative in the EIS. The 
performance standards reflect concepts NMFS has applied for over a 
decade to mitigate potential impacts of the groundfish fisheries on 
Steller sea lions and their critical habitat. The specific set of 
performance standards for this action originated in the 2010 FMP BiOp 
and was subsequently modified in the EIS to reflect new information 
available since the since 2010 FMP BiOp was prepared. The action 
implemented in this final rule adheres to the performance standards by 
closing important Steller sea lion habitat and

[[Page 70298]]

foraging areas to directed fishing for Steller sea lion prey species, 
dispersing catch between seasons, limiting the amount of sea lion prey 
species that may be caught inside critical habitat, maintaining and 
establishing 3-nm groundfish fishing closures around designated and 
emerging rookeries in the Aleutian Islands, and including additional 
harvest controls for Steller sea lion prey species in Area 543--the 
western Aleutian Islands. This final rule also conserves prey 
availability for Steller sea lions by closing areas to directed fishing 
for Atka mackerel where tagging studies indicate high movement of fish 
from inside to outside closure areas.
    A greater percentage of the critical habitat area will be open to 
directed fishing for Atka mackerel and Pacific cod in Area 543 relative 
to Areas 542 or 541 under this final rule. However, this final rule 
imposes stricter harvest limits for Atka mackerel and Pacific cod in 
Area 543 compared to the harvest limits that will apply in Areas 542 
and 541 (see Section 2.1.5 of the EIS) in accordance with the 
performance standards in the 2010 FMP BiOp. Taken as a whole, these 
measures meet the performance standards by limiting catch overall in 
the areas where the rate of decline is most evident. The specification 
of a separate Aleutian Islands Pacific cod ABC and TAC beginning in 
2014 (see Section 3.3.3 of the EIS) substantially reduced Pacific cod 
harvests in the Aleutian Islands relative to baseline harvests. The 
historical data indicate that higher Pacific cod catches are expected 
in Area 541 compared to Areas 542 and 543 (see EIS Sections 8.11 and 
8.18.3). As explained in the preamble to the proposed rule (79 FR 
37486), the measures to mitigate the potential effects of the pollock 
fishery on Steller sea lions and critical habitat conform to the 
performance standard and are more protective where the Steller sea lion 
decline is most evident. To meet the objective of the mitigation 
measures (see EIS Section 1.10.3), the Council and NMFS considered the 
performance standards, changes to the fisheries relative to the action 
analyzed in the 2010 FMP BiOp, and the effects of the alternatives when 
selecting the preferred alternative being implemented in this final 
rule.
    Comment 22: The Council's recommended preferred alternative is 
supported by the EIS and the 2014 BiOp. Together, these two documents 
fulfill the U.S. District Court's directive to NMFS to take a hard look 
at the data. In doing so, NMFS has been responsive to the Center for 
Independent Experts' review of the 2010 BiOp, as well as to public 
comment on the 2010 BiOp and to the external review commissioned by the 
states of Alaska and Washington.
    Response: NMFS acknowledges the comment.
    Comment 23: The EIS's focus on raw numbers concerning area closures 
and catch volumes do not meaningfully capture the severity of the 
impacts or the degree to which the action may adversely affect Steller 
sea lions or their habitat. The EIS analysis assumes that fishery 
removals of prey may adversely affect Steller sea lions, and that 
incremental increases in prey removals and opening more areas of 
critical habitat, relative to status quo, could have incremental, 
adverse effects on prey availability for Steller sea lions. While these 
assumptions are appropriate, the EIS applies them in an exclusively 
relativistic manner, never offering an ultimate, objective judgment of 
the environmental effects of the alternatives on Steller sea lions.
    Response: Chapter 5 of the EIS provides a clear explanation of the 
methods used for the analysis of the potential effects of the fisheries 
on Steller sea lions. The analysis examines the effects of the 
alternatives on incidental takes (Section 5.2.1), harvest of prey 
species (Section 5.2.2), and disturbance (Section 5.2.3). Section 5.2.2 
describes the method and assumptions used to analyze the effects of the 
alternatives with the best scientific information available. The best 
available scientific information includes quantitative fisheries catch 
information in time and space and critical habitat locations in 
relation to fishing activity. This information is used to compare and 
contrast the effects of the alternatives. The EIS provides conclusions 
for each effect based on the results of the analysis. The assumptions 
that are used in the analysis are clearly stated for the public's 
understanding of the nature of the available information and how this 
information is used in the analysis. The commenter's request that this 
information be presented and that an objective judgment on the effects 
of the alternatives be provided can be found in the EIS in the sections 
referenced above and in its conclusions.
    Comment 24: The 2014 BiOp is premised on an examination of the 
overlap in depth between the fisheries and Steller sea lion diving, by 
season, based on our best understanding of the two variables. The EIS 
undercuts the reliability of this work to reach a conclusion of no 
jeopardy, stating that the extent to which competition between 
fisheries and Steller sea lions may be avoided through partitioning of 
resources by depth can be difficult to judge using the available 
information. Scientific studies of Steller sea lion foraging patterns 
are just beginning to characterize the diving depths and patterns of 
Steller sea lions, and they are likely capable of foraging patterns not 
yet described or anticipated. Describing the overlap in depth between 
fisheries and Steller sea lions is further complicated by diet or 
seasonal vertical migrations of the fish resources for reproduction, 
refuge, or foraging.
    Response: Overlap in fishery and Steller sea lion foraging depth is 
one necessary condition for competition between fisheries and Steller 
sea lions for prey species. Information on sea lion foraging and 
fishing depths is discussed in Section 5.3.5 of the 2014 BiOp and 
Section 5.2.2.1 of the EIS. The 2014 BiOp contains a detailed analysis 
of fishery and Steller sea lion foraging depths as one aspect of the 
exposure analysis. The objective of an exposure analysis in a 
biological opinion is to establish the extent of spatial and temporal 
overlap of the proposed action with the listed species and designated 
critical habitat. NMFS conducted a new exposure analysis in the 2014 
BiOp in response to comments from two external scientific reviewers who 
cited shortcomings with the exposure analysis in the 2010 FMP BiOp.
    While the depth analysis in the 2014 BiOp is more detailed than in 
the EIS, the conclusions of the respective analyses are in accord with 
each other. For example, the EIS concludes that competition may be less 
likely between Steller sea lions and fisheries that harvest species 
found deeper in the water column. In the 2014 BiOp, NMFS also inferred 
greater potential depth overlap with sea lions between the Pacific cod 
and Atka mackerel fisheries than for pollock fisheries, based on the 
available data. The pollock fishery occurs at deeper depths than the 
Pacific cod and Atka mackerel fisheries (see Section 5.3.5 in the 2014 
BiOp). NMFS also noted in the 2014 BiOp that there were limitations in 
the available data for drawing inferences about the cause of apparent 
depth partitioning in some portion of sea lion dives and pollock trawl 
hauls. These conclusions are consistent with the conclusions in Section 
5.2.2.1 of the EIS, which notes that diel or seasonal vertical 
migrations of fish complicates the description of depth overlap between 
the fisheries and Steller sea lions.
    Comment 25: The assessment of the frequency and intensity of 
fishery removals in the 2014 BiOp does not support the BiOp's ``no 
jeopardy'' conclusion. This assessment is also

[[Page 70299]]

contrary to the EIS because the EIS acknowledges that the critical link 
between fisheries removals (e.g., time, rate, location) and the effects 
on Steller sea lions is poorly understood and that the relationship 
between these catch rates and the impacts on prey cannot be determined 
except that higher catch rates in relation to low prey abundance would 
be more likely to result in localized depletions.
    Response: Section 5.3.7 in the 2014 BiOp analyzes the probable 
extent of removal of important Steller sea lion prey under the proposed 
action. Section 5.3.8 of the 2104 BiOp presents NMFS' conceptual model 
of how Steller sea lions are exposed to the effects of prey removal by 
the groundfish fisheries. Section 5.3.8 of the 2014 BiOp and Section 
5.2.2 of the EIS consistently describe the conditions expected to lead 
to localized depletion of prey. Consistent with the limitations to 
assessing effects described in Section 5.2.2.1.4 of the EIS, Section 
5.3.8 of the 2014 BiOp acknowledges that NMFS lacks data to determine 
conclusively whether the fisheries fragment the prey patches, modify 
the proportion of prey at depth, and ultimately result in reduced prey 
abundance.
    Comment 26: Assessing the potential overlap in the size of prey 
consumed by Steller sea lions and those taken in the commercial fishery 
is another key analytical prong of the 2014 BiOp. The 2014 BiOp's 
conclusion of limited overlap and no jeopardy is not consistent with 
the EIS, which found that the ranges of size of prey selected by 
Steller sea lions, as referenced above, do overlap with the ranges of 
size of prey taken in the groundfish fisheries in the Aleutian Islands 
as calculated in this analysis.
    Response: As discussed in Section 5.2.2.1.2 of the EIS, overlap in 
size between fish consumed by Steller sea lions and those taken in the 
commercial fishery is one of several necessary conditions for 
competition for prey. Overlap in size of prey eaten by Steller sea 
lions and size of fish caught by the groundfish fisheries is analyzed 
in Section 5.2.2.1.2 of the EIS and Section 5.3.6 of the 2014 BiOp. The 
two analyses consistently conclude that the best available scientific 
information indicates that the size ranges of prey eaten by Steller sea 
lions and the size range of fish taken in the groundfish fisheries in 
the Aleutian Islands overlap. The 2014 BiOp discusses that the best 
available scientific information indicates greater overlap in the size 
of Atka mackerel and pollock taken by the fisheries and Steller sea 
lions compared to the overlap in the size of Pacific cod taken by the 
fisheries and Steller sea lions and notes the limitations of the 
available data and the uncertainty about the extent of potential 
overlap.
    Comment 27: The EIS' approach obscures the potential severity of 
the proposed action for both Steller sea lions in the central and 
western Aleutian Islands and Steller sea lions as a whole. 
Unfortunately, the population trends for non-pups in the central and 
western Aleutian Islands sub-regions continue to decline, with a 
particularly severe decline in abundance (a 60 percent decrease) 
observed in the western Aleutian Islands between 2000 and 2012. A 2013 
study found that the probability of extinction in the western Aleutian 
Islands is substantial even within 50 years. The EIS fails to 
acknowledge that even a modest increase in pressure on prey resources 
in the western Aleutian Islands could precipitate a severe result, 
given that the sub-population already faces a high risk of extirpation. 
The EIS also fails to note that such an outcome could have equally 
severe ramifications outside of the western Aleutian Islands, as the 
best available science indicates that the extirpation of Steller sea 
lions in the western Aleutians would be significant to the WDPS, and 
would be expected to appreciably reduce the likelihood of both their 
survival and recovery in the wild.
    Response: Sections 5.1.1.1 and 5.1.1.2 of the EIS describe the 
population abundance and trends for the entire WDPS of Steller sea lion 
pups and non-pups based on the best scientific information available. 
The purpose and need of the action focuses the alternatives and the 
analysis of the effects on the action area, the Aleutian Islands, which 
is a portion of the range of WDPS of Steller sea lions. Section 5.1.1.2 
describes the population trend for the entire WDPS of Steller sea lions 
(i.e., Alaska and Russia/Asia), the entire Alaska portion of the range 
of Steller sea lions, and the population trends in each sub-region in 
Alaska. This puts the population trend in the action area in context 
for the entire population. NMFS notes that the abundance of WDPS 
Steller sea lions in Alaska is increasing at a statistically 
significant rate, though the Steller sea lion population in the western 
Aleutian Islands sub-region is declining at a statistically significant 
rate (see response to Comment 13).
    The EIS analysis focuses on the effects on Steller sea lions that 
occur in the Aleutian Islands. EIS Section 5.1.1.2 discusses the 
process Johnson (2013) developed for forecasting the population of 
Steller sea lions and summarized the probability of the population 
falling below a quasi-extinction threshold within 50 and 100 years. A 
quasi-extinction threshold is the population size, greater than zero, 
at which a population is ultimately doomed to extinction due to genetic 
or physical constraints of the small, remaining population. NMFS 
examined three methods: The Morris and Doak (MD) method (Morris and 
Doak 2002), and restricted and unrestricted agTrend methods (Johnson 
2013). The results for each method were qualitatively the same: There 
is approximately a zero percent probability of quasi-extinction of the 
Steller sea lion population in Alaska as a whole within the next 100 
years. Similarly, there is approximately a zero percent probability of 
quasi-extinction of the Steller sea lion population from each of the 
sub-regions within Alaska within the next 100 years, with one exception 
for the western Aleutian Islands sub-region. The probability of 
extirpation of the Steller sea lion population in the western Aleutian 
Islands sub-region is substantial even within 50 years.
    The EIS states that competition with fisheries may affect prey 
availability to Steller sea lions. In the EIS, prey effects are 
considered adverse effects because, based on information available on 
prey interaction, it is assumed there are no beneficial effects from 
removal of prey. Removal of prey can have direct and indirect adverse 
effects on Steller sea lions. The EIS discusses the potential adverse 
effects to Steller sea lions from the harvest of prey resources in the 
Aleutian Islands under all of the alternatives. After conducting this 
analysis, and analysis of other factors detailed in the EIS, NMFS 
concluded in the 2014 BiOp that although there is a substantial risk of 
extinction of the Steller sea lion population in the western Aleutian 
Islands based on projected population trends, additional management 
measures beyond those implemented in this final rule were not required 
to insure that groundfish fisheries are not likely to jeopardize the 
continued existence of the WDPS of Steller sea lions or destroy or 
adversely modify their designated critical habitat.
    Comment 28: The EIS does not comply with NEPA because it fails to 
analyze the significance of the effects of the action on endangered 
Steller sea lions. The EIS did not determine the population-level 
effects to Steller sea lions from the indirect effects of fishing on 
prey availability for the alternatives. Rather than assess potential 
population-level consequences of each alternative using objective 
metrics, prey effects were analyzed purely in comparative form by 
evaluating the percentage of

[[Page 70300]]

critical habitat closed to each fishery and the harvest of prey species 
in critical habitat by each fishery exclusively within the western and 
central Aleutian Islands. The details on local closures and catch 
within critical habitat in Areas 541, 542, and 543, while appropriate, 
are no substitute for further analysis in a broader context, including 
at the population level of the WDPS of Steller sea lions. A population-
level analysis for each alternative in the EIS is essential to making a 
reasoned choice among the proposed management regimes for the western 
and central Aleutian Islands because the best available science as 
reflected in the 2008 Recovery Plan (see ADDRESSES), provides a clear 
basis for the conclusion that sub-regional declines have a profound 
effect on the future of the entire species.
    Response: The EIS analysis provides the decision makers with the 
ability to compare and contrast the effects of the alternatives on the 
human environment consistent with the requirements of NEPA by 
disclosing information on fishery removals of prey and critical habitat 
closures under the alternatives within the action area. EIS Chapter 5 
includes the evaluation of the effects of the alternatives on Steller 
sea lion incidental takes, disturbance, and potential effects on prey 
using the best available information. NMFS reviewed the information 
available to inform the analysis and determined that a population-level 
analysis was not necessary to determine the potential effects of the 
alternatives on Steller sea lions and their critical habitat because 
the effects of fishing occur at the local scale and the decision was 
which suite of protections measures is appropriate to meet the purpose 
and need for the action. EIS Section 5.2.2 describes the method used to 
analyze the effects of the alternatives with the best available 
scientific information and the assumption applied to the analysis. Best 
scientific information available includes quantitative fisheries catch 
information in time and space and critical habitat locations in 
relation to fishing activity. This information is used to compare and 
contrast the effects of the alternatives.
    Comment 29: We strongly disagree with the core of NMFS' rationale 
for this proposal which is: (1) There are enough fish in the Bering Sea 
and Aleutian Islands for fishermen and Steller sea lions to share; the 
small Steller sea lions population only consumes a small portion of 
fish we think are there; and (2) we have designed a system with enough 
spatial and temporal dispersal of the fishing effort such that fishing 
does not overlap with Steller sea lions critical habitat to a great 
degree. Yes, on a mass balance basis, there are enough fish for 
fishermen and Steller sea lions to share. But Steller sea lions are not 
the only inhabitants of this ecosystem; other predators like seabirds, 
killer whales, and seals depend on fish being abundant in this area and 
some of those species are showing worrisome declines that may be 
related to too few fish in the ocean.
    Response: NMFS' rationale for this final rule is supported by the 
2014 BiOp (see ADDRESSES). The 2014 BiOp concludes that the proposed 
action would establish Steller sea lion protection measures for the 
Atka mackerel, Pacific cod, and pollock fisheries in the Aleutian 
Islands subarea that spatially and temporally disperse fishing to 
mitigate potential competition for prey resources between Steller sea 
lions and these fisheries. Spatial and temporal fishery dispersion is 
accomplished through closure areas, harvest limits, seasonal 
apportionment of harvest limits, and limits on participation in a 
fishery. The proposed action would retain or modify existing closure 
areas, harvest limits, seasonal apportionment of harvest limits, and 
limits on participation in ways that are designed to limit competition 
for prey with Steller sea lions.
    NMFS agrees that a wide range of species occurring in the action 
area prey on groundfish. NMFS conservatively manages the groundfish 
fisheries and limits catch for ecosystem considerations, including a 
conservative optimum yield cap and a global control rule. In the 2010 
FMP BiOp, NMFS analyzed the effects of the authorization of groundfish 
fisheries, including the prosecution of parallel groundfish fisheries 
in Alaska state waters (see ADDRESSES). The 2010 FMP BiOp is 
comprehensive in scope and considers the fisheries and the overall 
management framework established by the FMP to determine whether that 
framework contains necessary measures to ensure the protection of 
listed species and critical habitat. The 2010 FMP BiOp analyzed the 
pattern and level of fishery removals occurring in different groundfish 
fisheries and the policy choices, decisions about exploitation 
strategies, and stock and stock complex assessments that set the 
harvest levels.
    The 2014 BiOp identified the importance of maintaining global, or 
broad scale, limits on the harvest of Atka mackerel, Pacific cod, and 
pollock. Global limits are currently in place for these three species. 
Regulations prohibit directed fishing in the BSAI or GOA if the 
projected spawning biomass of the fish stock falls below 20 percent of 
the unfished spawning biomass (see regulations at Sec.  679.20(d)(4)). 
Atka mackerel, Pacific cod, and pollock fisheries have not experienced 
this type of directed fishing closure since global limits became 
effective in 2003 (68 FR 204, January 2, 2003).
    Additionally, NMFS conducts ecosystem modeling and incorporates 
ecosystem considerations, including predation, into the stock 
assessment models. See response to comment 54.
    Further, the EIS analyzes the impacts of the proposed action and 
its alternatives on a wide range of ecosystem elements, including local 
fish populations in Chapter 3, killer whales and seals in Chapter 5, 
seabirds in Chapter 6, and on the ecosystem as a whole in Chapter 7.
    Comment 30: NMFS improperly fails to disclose in the final EIS the 
strong dissenting views held by NMFS scientists regarding the analysis 
and conclusions contained in the draft 2014 BiOp. For example, Alaska 
Fisheries Science Center scientists prepared a memorandum stating that 
the spatial overlap analysis in the draft 2014 BiOp is fundamentally 
flawed and cannot be used as a basis to evaluate spatial overlap 
between fisheries and Steller sea lions, nor support any conclusions 
about whether jeopardy or adverse modification to critical habitat may 
or may not be expected to occur as a result of the fishery action. The 
Steller Sea Lion Coordinator for the Alaska Region prepared a memo 
stating that the exposure analysis in the draft 2014 BiOp was 
fundamentally flawed and needed to be redone and the draft 2014 BiOp 
was not consistent with the NOAA Scientific Integrity Policy because it 
does not provide accurate or adequate acknowledgement or discussion of 
uncertainties or the probabilities associated with both optimistic and 
pessimistic projections for sea lions. These memos indicate there was 
internal dissent within NMFS regarding the draft 2014 BiOp analysis 
that the EIS relies upon for its discussion regarding the environmental 
impacts of the proposed action on Steller sea lions. NMFS was obligated 
to disclose and discuss these adverse opinions within the body of the 
EIS and failed to meet that obligation.
    Response: NMFS is not obligated to discuss pre-decisional internal 
agency discussions in an EIS. However, NMFS does discuss areas of 
controversy and uncertainty in the Executive Summary and in Chapter 5 
of the EIS. NMFS relies on EIS Chapter 5 for the analysis of the 
impacts of the proposed action and its alternatives on Steller sea 
lions. All internal agency discussions were

[[Page 70301]]

considered by NMFS in making the final determination.
    Comment 31: In our July 12, 2013, comments on the draft EIS, we 
recognized the effort of NMFS to produce a thorough analysis that 
articulates the anticipated impacts of a complex proposal and applauded 
your partnerships with the U.S. Coast Guard, U.S. Fish and Wildlife 
Service and the Alaska Department of Fish and Game in developing the 
EIS. We identified Alternative 5 as a practical combination of some of 
the more beneficial aspects of other alternatives for the Atka 
mackerel, Pacific cod, and pollock fisheries, based in large part in 
response to stakeholder concerns identified during scoping. We also 
recognized that an intensive monitoring program will be implemented 
with this alternative, and adjustments made as results are assessed. We 
did not have concerns regarding the preferred alternative and offered 
no additional suggestions for further minimizing impacts. The EIS 
continues to identify modified Alternative 5 as the NMFS preferred 
alternative. We support this decision and recommend that this 
alternative be selected in the Record of Decision.
    Response: NMFS acknowledges the comment.

Comments on Economic Issues

    Comment 32: Reject the proposed rollback of needed protections for 
Steller sea lions. The proposed rule reflects an abdication of NMFS' 
stewardship obligations, does not comply with NMFS' legal or moral 
obligations, is not consistent with the best available science, and 
appears to prioritize short-term economic gain ahead of long-term 
sustainable management. A decision to authorize significant additional 
fishing pressure even as Steller sea lions continue to decline in the 
central and western Aleutian Islands and fail to meet recovery criteria 
overall would run directly counter to those moral, ethical, and legal 
obligations.
    Response: This action implements a suite of Steller sea lion 
protection measures in the Aleutian Islands groundfish fisheries that 
adheres to the requirements of the ESA and Magnuson-Stevens Act, and 
are consistent with our legal and stewardship obligations. NMFS used 
the best available commercial and scientific data to inform development 
of the alternatives and analyze their impacts on Steller sea lions and 
the human environment. This final rule maintains protections consistent 
with the ESA for Steller sea lions through numerous spatial and 
temporal harvest limits and critical habitat area closures applicable 
to the harvest of key Steller sea lion prey species of Atka mackerel, 
Pacific cod, and pollock and sustainable management of the Aleutian 
Islands groundfish fisheries.
    Comment 33: In light of the protective purpose of the ESA, NMFS 
must respect Congress' intent to give the benefit of the doubt to the 
species. NMFS' action should be consistent with the ESA's conservation 
goals and the ESA's policy of institutionalized caution.
    The proposed rule asserts that the Council and NMFS understood that 
a preferred alternative and any resulting rule must meet the 
requirements of the ESA before factors that minimize, to the extent 
practicable, the economic impacts on fishery participants could be 
considered. This assertion notwithstanding, the proposed rule 
repeatedly states that certain lesser protection measures have been 
selected because they ``balance'' conservation of Steller sea lions 
with economic opportunities for the commercial fisheries. The balancing 
approach undertaken by the Council and NMFS is unlawful because the ESA 
disallows balancing the benefit to the species against the economic and 
technical burden on the industry. NMFS proposes an unprecedented 
reversal of the ESA's mandated precaution and appears to premise its 
analysis and conclusions on an illegal shifting of the burden of proof 
and an impermissible elevation of economic considerations.
    Under the ESA, economic considerations may not be considered in an 
agency's determination of whether an action is likely to cause 
jeopardy--a determination that must be based exclusively on the best 
available science. Because the legislation reveals a conscious decision 
by Congress to give endangered species priority over the primary 
missions of Federal agencies, NMFS may not give equal priority to 
economic concerns and its obligations under the ESA.
    Response: The purpose and need for this action is explained in 
Section 1.3 of the EIS. The purposes of this action are to first, 
comply with the requirements of the ESA by implementing Steller sea 
lion protection measures in the Alaska groundfish fisheries and, 
secondly, and only after the first purpose is met, to minimize, to the 
extent practicable, economic impacts to the groundfish fisheries from 
the measures.
    In compliance with the ESA, NMFS conducted a section 7 consultation 
on the action implemented in this final rule. During that consultation, 
NMFS used the best scientific and commercial data available. The 
results of the ESA section 7 consultation are documented in the 2014 
BiOp. In the 2014 BiOp, NMFS concluded that the implementation of the 
proposed action was not likely to jeopardize the continued existence of 
the WDPS of Steller sea lions or destroy or adversely modify designated 
Steller sea lion critical habitat. Economic impacts were not a factor 
in making that conclusion.
    NMFS agrees that ESA section 7 analyses should err on the side of 
the survival and recovery of the listed species when the effects of an 
action are uncertain. The analysis in the 2014 BiOp is a cautionary 
examination of the effects of the groundfish fisheries on Steller sea 
lions and their designated critical habitat. NMFS assumes that 
groundfish fisheries may compete with Steller sea lions for prey. NMFS 
makes this assumption even though there is substantial scientific 
debate as to whether such competition exists, or if it does, whether 
the levels of removals in the fishery would be sufficient to cause 
competition in a way that would impede the survival and recovery of 
Steller sea lions. In Section 5.3.8 of the 2014 BiOp, NMFS presents a 
conceptual model illustrating the pathways through which Steller sea 
lions are exposed to the stressor of reduced prey resources due to the 
groundfish fisheries. NMFS' conceptual model for Steller sea lion 
behavioral and physiological responses to reduced prey resources is 
shown in Section 5.4 of the 2014 BiOp.
    NMFS discusses where the available data allow inference of the 
effects and where the available data are equivocal as to the effects on 
prey availability and subsequent effects on Steller sea lion fitness. 
In cases where the data are equivocal, to avoid underestimating the 
potential risk to the survival and recovery of Steller sea lions, NMFS 
assumes the groundfish fisheries may compete with sea lions for prey 
and assumes that the most extreme physiological consequences would 
result. In those cases, NMFS concluded that local Steller sea lion 
populations may be affected by the proposed action but that the 
magnitude of the effect would not be sufficient to appreciably reduce 
the likelihood of survival or recovery in either the central or western 
Aleutian Islands sub-regions. Because the action is not likely to 
appreciably reduce the likelihood of survival or recovery in the 
individual sub-regions, the proposed action is not likely to 
appreciably reduce the likelihood of survival or recovery of the WDPS 
of Steller sea lions. In other cases, the best scientific data 
available support a conclusion that the proposed groundfish fisheries 
are not likely to cause localized

[[Page 70302]]

depletion of prey and are not likely to reduce the fitness of 
individual sea lions or adversely modify their designated critical 
habitat.
    In developing the proposed action and its alternatives, the Council 
and NMFS did consider impacts on fishery participants. NMFS is required 
to consider the impacts of its fishery management actions on fishery 
participants under the Magnuson-Stevens Act, Executive Order 12866, and 
the Regulatory Flexibility Act. In the preamble to the proposed rule, 
NMFS describes each regulatory provision and provides an explanation as 
to why the Council recommended and NMFS approved and implemented these 
regulatory provisions. These explanations address why a particular 
regulatory provision was included or why a particular provision from 
the 2010 Interim Final Rule was revised or removed. However, it is 
NMFS' conclusions in its 2014 BiOp that the regulatory provisions, 
individually and collectively, are not likely to jeopardize the 
continued existence of Steller sea lions or destroy or adversely modify 
designated Steller sea lion critical habitat.
    Comment 34: The EIS does not comply with the National Environmental 
Policy Act (NEPA) because its statement of purpose and need 
impermissibly elevates economic considerations and impermissibly 
qualifies NMFS' conservation obligations pursuant to the ESA and the 
Magnuson-Stevens Act with a duty to minimize costs, where practicable. 
NMFS insists that in meeting ESA requirements, it also needs to make 
sure that the measures that it implements minimize, to the extent 
practicable, adverse economic impacts to the groundfish fisheries. 
NMFS' emphasis on a balance of meeting the ESA obligations while 
minimizing economic impacts to the extent practicable is both misplaced 
and unlawful.
    Response: NMFS has determined that the EIS complies with NEPA. The 
purpose and need in the EIS is clear that NMFS needs to implement 
Steller sea lion protection measures to meet its obligations under the 
ESA. The ESA is clear that economic factors are not considered by the 
consulting agency (NMFS PRD) when making a determination about the 
impact of this action under a section 7 consultation. NMFS SFD 
consulted on this action and NMFS PRD determined that the 
implementation of this action was not likely to jeopardize the 
continued existence of Steller sea lions and was not likely to destroy 
or adversely modify designated Steller sea lion critical habitat. This 
determination was made without the consideration of economic impacts, 
as discussed in response to Comment 33.
    At the same time, NMFS is managing fisheries under the Magnuson-
Stevens Act, and the Magnuson-Stevens Act requires NMFS to implement 
protection measures in a manner that minimizes adverse economic 
impacts, to the extent practicable, on those affected by the 
restrictions under the Steller sea lion protection measures. Under the 
purpose and need for this action, NMFS must meet the requirements of 
the ESA and do so in a manner that also meets the requirements to 
manage fisheries to minimize adverse economic impacts to fishery 
participants and fishery dependent communities, where practicable, 
under the requirements of Magnuson-Stevens Act.
    Comment 35: According to the EIS, NMFS' assertion that it must 
balance ESA obligations against the potential cost of protection 
measures to the fishery industry is grounded in National Standard 7 of 
the Magnuson-Stevens Act. While National Standard 7 does encourage NMFS 
to minimize costs and to avoid unnecessary duplication where possible, 
NMFS may not give equal priority to economic concerns under the 
Magnuson-Stevens Act and its obligations under the ESA because the ESA 
reflects a conscious decision by Congress to give endangered species 
priority over the primary missions of Federal agencies.
    Despite the proposed rule's frequent and prominent invocation of 
the need to minimize economic impacts, nowhere does the proposed rule 
explain the legal or policy genesis of this objective. While National 
Standard 7 does encourage NMFS to minimize costs and to avoid 
unnecessary duplication where possible, NMFS may not select and elevate 
one Magnuson-Stevens Act obligation from among the several management 
obligations imposed by the statute. In addition to National Standard 7, 
the Magnuson-Stevens Act includes substantive obligations to conserve 
and manage fishery resources and to protect the marine ecosystem. NMFS 
cannot simply ignore these additional Magnuson-Stevens Act obligations 
or prioritize financial benefit for the fishing industry.
    Response: Federal fishery management in the Aleutian Islands as a 
whole is designed to conserve and manage fishery resources, protect the 
marine ecosystem, and promote the long-term healthy and stability of 
the fisheries, in accordance with the Magnuson-Stevens Act. The Council 
and NMFS have fully considered the Magnuson-Stevens Act and the 10 
National Standards in developing these regulations (see EIS Section 
13.2.4).
    The statement of purpose and need specifies the underlying purpose 
and need to which NMFS is responding in proposing the alternatives, 
including the proposed action. As explained in the EIS, the need to 
comply with section 7 of the ESA is the primary driver for implementing 
Steller sea lion protection measures. As NMFS has stated previously in 
the preamble to the proposed rule and in this preamble, NMFS did not 
consider economic factors when determining if the proposed action would 
jeopardize the continued existence of Steller sea lions or destroy or 
adversely modify their designated critical habitat. See response to 
Comment 33 and the 2014 BiOp for additional detail.
    However, after NMFS meets its requirements under the ESA, NMFS also 
needs to make sure that the measures that it implements minimize, to 
the extent practicable, adverse economic impacts to groundfish fishery 
participants under the Magnuson-Stevens Act. This is not the same as 
giving equal priority to economic concerns and ESA obligations.
    This final rule implements an extensive suite of Steller sea lion 
protection measures that impose economic costs on the fishing industry 
compared to no protection measures. This final rule also relaxes some 
Steller sea lion protection measures implemented under the 2010 Interim 
Final Rule. These changes to Steller sea lion protection measures were 
recommended by the Council based on the best scientific information 
available. NMFS conducted a section 7 consultation on the Council's 
recommendation under the requirements of the ESA (see 2014 BiOp) and 
determined that the Council's recommendation was not likely to 
jeopardize the continued existence of Steller sea lions or destroy or 
adversely modify their designated critical habitat. Removing or 
modifying specific protection measures and allowing some increases in 
fishing is not the same as prioritizing financial benefit for the 
fishing industry. See the preamble to the proposed rule for a complete 
discussion of the specific Steller sea lion protection measures that 
are modified or removed with this final rule.
    Comment 36: The approach of the Council and NMFS was to ensure that 
a preferred alternative met the requirements of the ESA before 
considering factors that minimize, to the extent practicable, the 
economic impacts on fishery participants.

[[Page 70303]]

    Response: NMFS agrees and acknowledges the comment.
    Comment 37: In formulating and selecting NEPA alternatives, NMFS 
may not select and elevate one Magnuson-Stevens Act obligation from 
among the several management obligations imposed by the statute. The 
Magnuson-Stevens Act includes substantive obligations to conserve and 
manage fishery resources and to protect the marine ecosystem. NMFS 
cannot simply ignore these additional Magnuson-Stevens Act obligations 
or prioritize financial benefit for the fishing industry.
    Response: Federal fishery management in the Aleutian Islands as a 
whole is designed to conserve and manage fishery resources, protect the 
marine ecosystem, and promote the long-term health and stability of the 
fisheries. The Council and NMFS have fully considered the Magnuson-
Stevens Act and the National Standards in developing this action, its 
alternatives, and the implementing regulations. Specifically, EIS 
Chapter 3 details how NMFS considered the effects of the alternatives 
on target species; EIS Chapter 4 details how NMFS considered the 
effects of the alternatives on non-target species; Chapter 5 details 
how NMFS considered the effects of the alternatives on marine mammals; 
Chapter 6 details how NMFS considered the effects of the alternatives 
on seabirds; and Chapter 7 details how NMFS considered the effects of 
the alternatives on the ecosystem. NMFS responds to public comments on 
each of the Magnuson-Stevens Act's 10 National Standards in EIS Section 
13.2.4.
    This final rule implements an extensive suite of Steller sea lion 
protection measures that impose economic costs on the fishing industry 
compared to no protection measures. This final rule also relaxes some 
restrictions on fishing implemented by the 2010 Interim Final Rule, 
thereby relieving some of the costs imposed by that action. NMFS has 
determined that these specific restrictions were not necessary to 
insure that groundfish fisheries in the BSAI are not likely to 
jeopardize the continued existence of Steller sea lions or destroy or 
adversely modify their designated critical habitat and therefore could 
be removed.
    Comment 38: The proposed rule reflects a positive first step 
towards establishing an appropriate management regime that adequately 
protects the Steller sea lion without imposing unnecessary impacts on 
the Alaskan economy, as did the 2010 Interim Final Rule. The Steller 
sea lion population in Alaska has increased substantially since 2000. 
While populations in some sub-regions have been slower to respond than 
others, minimal, if any, evidence indicates that human activity such as 
fishing and the resulting variations in prey availability negatively 
affect the Steller sea lion population. In light of this tenuous 
connection, the harsh fishing restrictions imposed by the 2010 Interim 
Final Rule were unsupported. In contrast, the proposed rule presents a 
more appropriate management decision, which would ease many of those 
restrictions and enable increased fishing. The proposed rule is both 
consistent with the balanced recommendation of the Council and 
supported by adequate analysis of the best available science presented 
in the 2014 BiOp.
    Response: The Steller sea lion protection measures implemented by 
the 2010 Interim Final Rule were based on the 2010 FMP BiOp (see 
ADDRESSES) and supported by the best available information at that 
time.
    Comment 39: The proposed rule will benefit Alaskans, their 
communities, the commercial fishing fleet, and the seafood processing 
industry by easing the severe fishing restrictions set forth under the 
2010 Interim Final Rule. That rule, which resulted in harsh economic 
impacts, resulted from the hypothesis that groundfish fisheries are 
causing nutritional stress to the Steller sea lions. Subsequent 
independent, expert peer reviewers have questioned the scientific basis 
for and the legitimacy of that hypothesis. The State's interests will 
be best served through implementation of a management structure that 
balances the interests of fishing opportunities with scientifically 
defensible protections for Steller sea lions. The proposed rule would 
accomplish those objectives.
    Response: NMFS acknowledges the comment.
    Comment 40: The proposed rule will eliminate several of the most 
severe limitations implemented under the 2010 Interim Final Rule, 
including complete retention restrictions for Atka mackerel and Pacific 
cod in Area 543, and closures for pollock fishing in designated 
critical habitat in Areas 543, 542, and 541. NMFS would replace these 
complete closures with more targeted temporal and spatial restrictions 
and catch limits based on available data showing the potential overlap 
between Steller sea lion occurrence and the fisheries. The proposed 
rule would retain significant restrictions on fishing that are intended 
to prevent any potential effects of fisheries on Steller sea lions, 
regardless of whether or not the effects are actually occurring. The 
proposed rule takes a very precautionary approach to mitigation, aiming 
for a very high degree of protection for Steller sea lions while 
reducing, but not eliminating, impacts on fishery-dependent industry 
and communities.
    Response: NMFS acknowledges the comment.
    Comment 41: We are encouraged that the economic impacts of the 2010 
Interim Final Rule will be significantly reduced if the measures in the 
proposed rule are approved. The new Steller sea lion protection 
measures under this proposed rule retain a significant amount of 
economic impact to the Amendment 80 sector relative to what was in 
place prior to 2011. After reviewing the proposed rule and the 
specifics of proposed fishery measures and groundfish quotas, we 
estimate that the proposed Steller sea lion measures would restore a 
little less than half of the loss to the Amendment 80 sector from the 
2010 Interim Final Rule.
    Response: NMFS acknowledges the comment.
    Comment 42: The proposed rule will help to alleviate some of the 
economic impact that the 2010 Interim Final Rule has had on the Alaskan 
economy. The proposed rule allows for increased flexibility for Alaskan 
vessels to harvest Atka mackerel, Pacific cod, and pollock, which will 
in turn support the seafood processing industry and the local economies 
of several remote coastal communities. The combination of reduced 
closures and increased catch limits creates a more effective and 
targeted management system in light of the minimal evidence of 
competition for prey between the fisheries and the Steller sea lion. 
Our family business is encouraged by opportunities granted under the 
proposed rule that allow harvest in Areas 541, 542, and 543 otherwise 
not available under the 2010 Interim Final Rule.
    Response: NMFS acknowledges the comment.

Comments on Community Issues

    Comment 43: The measures put in place with the 2010 Interim Final 
Rule hit Adak harder than any other community. Not only was the 
immediate local impact severe, the resulting loss of activity impacted 
long term revenue to Adak attributable to those fiscal years. We 
support the proposed regulations because NMFS provided a well-written 
and well-reasoned justification in the 2014 BiOp for the determination 
that the proposed action will not result in jeopardy or adverse 
modification.
    The proposed rule reduces the negative social and economic impacts 
to the City of Adak and introduces the

[[Page 70304]]

economic certainty to allow for the processing plant operators to 
develop plans that will keep the operation, and all of its 
beneficiaries, employed or otherwise engaged. Re-opening Atka mackerel 
fishing in limited areas west of Adak will provide more opportunity for 
fuel sales and logistical support needs of the Atka mackerel catcher/
processor fleet. This should provide a partial relief to the Adak 
community from the impacts of lower fuel sales resulting from the 2010 
Interim Final Rule. The proposed rule would allow pollock fishing in 
portions of the critical habitat. This change will allow the pollock 
allocation, granted to the Aleut Corporation for the purpose of 
economic development, to be harvested in the Aleutian Islands. This 
will provide the opportunity to generate the necessary revenues to 
address the economic development needs the community has required for 
more than a decade.
    Response: NMFS acknowledges the comment.
    Comment 44: The proposed rule better utilizes the available 
information and properly takes into account relevant factors to ensure 
the Steller sea lion population avoids jeopardy while maintaining 
viable economic opportunities for Aleut Corporation shareholders. Aleut 
Corporation shareholders directly rely on Steller sea lions for 
subsistence needs. No single group would be harmed greater by the lower 
population trends of the Steller sea lions. However, Steller sea lion 
conservation must be balanced with the ability for Aleuts to ``call 
home'' their traditional lands that are economically based on 
commercial fisheries. The proposed rule maintains a high level of 
continued protection around critical habitat (especially in Areas 543 
and 542) with more restrictive measures the farther west one goes. The 
proposed rule also allows for increased fishing opportunities, the 
economic lifeblood of the Aleutian region.
    Response: NMFS acknowledges the comment.
    Comment 45: Continue to consider the economic impacts of decisions 
on local, small-scale, commercial fishermen that deliver their catches 
to on-shore processing facilities. The catcher/processors play an 
important economic role to the Aleutian Islands region, but so do 
local, family businesses who purchase fuel and supplies from the 
community of Adak and who deliver catch to in-state processing 
facilities who greatly contribute to the lifeblood of economic 
development to rural Alaskan communities like Adak.
    Response: NMFS acknowledges the comment. NMFS notes that it 
analyzed the impacts to commercial fishermen in EIS Chapters 8 and 9, 
the initial regulatory flexibility analysis for the proposed rule, and 
in the final regulatory flexibility analysis for the final rule.

Comments on the EIS Alternatives

    Comment 46: The 2014 BiOp is much improved and addresses the 
current conduct of the fishery in a straightforward manner. The 2014 
BiOp also suggests that the areas we now know are important feeding 
areas for Steller sea lions (inside 10 nm) were already mostly closed 
to Atka mackerel, Pacific cod, and pollock fishing even before the 2010 
Interim Final Rule was implemented. This indicates that (1) more of the 
2010 Interim Final Rule's restrictions could have been relaxed; (2) the 
alternatives considered by NMFS should have been expanded to include 
even more fishing; and (3) the preferred alternative is excessively 
protective. More could have been done using the new information in the 
2014 BiOp to reduce restrictions in the regulations without impacting 
Steller sea lions, particularly in the absence of direct information 
supporting the theory that the groundfish fisheries adversely impact 
Steller sea lions.
    Response: The alternative selected by the Council and implemented 
by this rule was selected after considering other alternatives that 
would have allowed more fishing opportunities in the Aleutian Islands. 
Although an alternative suite of management measures could have been 
selected and reviewed under section 7 of the ESA, the management 
measures implemented here represent a precautionary approach to 
management in recognition of the requirements of the ESA. Additional 
detail on the precautionary nature of this action relative to other 
actions considered is provided in the EIS and the 2014 BiOp.
    Comment 47: NMFS must select Alternative 1 (status quo). Among the 
alternatives evaluated in the EIS, Alternative 1 is the only viable one 
consistent with the conservation obligations imposed by the ESA and the 
Magnuson-Stevens Act. The current protection measures for Steller sea 
lions in the central and western Aleutian Islands reflect the minimum 
steps NMFS must take to address ongoing declines and to protect Steller 
sea lions. The outcome of the recent litigation over the 2010 FMP BiOp 
and the status quo Steller sea protection measures compels selection of 
Alternative 1 to maintain current protections. The 2010 FMP BiOp itself 
counsels in favor of Alternative 1, as any lesser protection measures 
than those established by 2010 Interim Final Rule likely are unlawful 
under the ESA. The 2010 FMP BiOp's conclusion reflects NMFS' long-
standing and well-documented rationale that commercial fisheries 
adversely affect Steller sea lions by competing with them for prey. 
Unless and until NMFS can determine that the threats that have resulted 
in ongoing declines have abated, the management measures described in 
Alternative 1 represent the maximum spatial extent and amount of 
fishing that can be permitted by the commercial groundfish fisheries.
    Response: NMFS disagrees. Alternative 5 best meets the purpose and 
need for this action. As NMFS has noted earlier in response to other 
comments, this action is distinct from the action considered in the 
2010 BiOp and includes new information not considered in the 2010 BiOp. 
NMFS has determined that the regulations implementing Alternative 5 are 
in compliance with the Magnuson-Stevens Act, as detailed in the EIS and 
Record of Decision. NMFS has determined that Alternative 5 is in 
compliance with the ESA, as detailed in the 2014 BiOp. The 2014 BiOp 
concludes that the proposed action would establish Steller sea lion 
protection measures for the Atka mackerel, Pacific cod, and pollock 
fisheries in the Aleutian Islands subarea that spatially, temporally, 
and globally disperse fishing to mitigate potential competition for 
prey resources between Steller sea lions and these fisheries. Spatial 
and temporal fishery dispersion is accomplished through closure areas, 
harvest limits, seasonal apportionment of harvest limits, and limits on 
participation in a fishery. The proposed action would retain or modify 
existing closure areas, harvest limits, seasonal apportionment of 
harvest limits, and limits on participation in ways that are designed 
to limit competition for prey between fisheries and Steller sea lions.
    Comment 48: If NMFS wants to take the precautionary approach that 
this situation really requires, it could simply prohibit fishing and 
monitor to see what happens to the Steller sea lion population over the 
next 5 to 10 years. Prohibition or severe reduction of fishing activity 
in the Aleutian Islands is the one and only tool to slow and reverse 
the Steller sea lion decline. The economic impact of prohibiting 
commercial fishing or severely restrict it in Areas 543 and 542 would 
not be large, particularly not compared to the commercial fisheries 
prosecuted in the Bering Sea. NMFS would rather allow a very small 
fishery with $12 million

[[Page 70305]]

dollars per year of ex vessel revenue in 2012 (and perhaps 10 percent 
of that in net profit) to go forward and expand, than to take a 
precautionary approach using more current science and reduce or 
eliminate fishing in the area to save the last 1,000 western Aleutian 
Islands Steller sea lions.
    Response: NMFS analyzed an alternative in the EIS, Alternative 6, 
that would prohibit retention of Atka mackerel, Pacific cod, and 
pollock in the Aleutian Islands (Areas 543, 542, and 541, and adjacent 
State of Alaska waters). The economic impacts of Alternative 6 are 
detailed in EIS Chapter 8. The impacts of Alternative 6 on Steller sea 
lions are detailed in EIS Chapter 5. NMFS did not choose Alternative 6 
as the preferred alternative because while Alternative 6 would provide 
the most protection to Steller sea lion prey species, it is not 
practicable because it would restrict fisheries beyond what is 
necessary to meet the ESA requirement to insure the fisheries are not 
likely to jeopardize the continued existence of Steller sea lions or 
destroy or adversely modify designated Steller sea lion critical 
habitat. Therefore, Alternative 6 would not best meet the purpose and 
need for this action (see Section 1.3 of the EIS).
    Comment 49: NMFS has failed to consider reasonable alternatives 
that would provide additional protections for Steller sea lions. 
Instead of constructing and evaluating an alternative that would 
provide improved protections for Steller sea lions, NMFS evaluated 
closing the entire action area to all fishing. Alternative 6 is not 
responsive to the concerns raised in comments or sufficient to satisfy 
NMFS' legal obligations. Public comments did not propose closing the 
entire Aleutian Islands to all fishing for Atka mackerel, Pacific cod, 
and pollock. A large closure might be a reasonable alternative, but it 
is not a mechanism through which NMFS can improve fisheries management 
choices in such a way as to better ensure that ecosystem 
considerations, like the needs of predators, are taken into 
consideration in setting catch levels. It appears that, upon 
recognizing the glaring deficiency in its draft, NMFS decided to select 
the most extreme version of a protective alternative rather than giving 
careful thought to a useful evaluation of potential changes in 
management. NMFS' choice is both disappointing and insufficient.
    Response: Alternative 6 was designed to be responsive to the 
request in public comment on the draft EIS for a more protective 
alternative than Alternative 1. Some commenters suggested that NMFS 
consider specific measures that were intended to be more protective 
than the management measures implemented under Alternative 1, other 
commenters did not provide specific measures. As discussed in EIS 
Section 2.3, after careful analysis, NMFS found that many of the 
specific measures suggested in public comments were not more 
conservative than Alternative 1. Some of the specific measures 
suggested in public comments were already incorporated in the 
alternatives or in other ongoing NMFS actions. The remaining specific 
measures proposed in public comment were not a reasonable alternative 
to the proposed action. The proposed action is a suite of Steller sea 
lion protection measures. Steller sea lion protection measures control 
the location, gear type, and timing of fishing for Atka mackerel, 
pollock, and Pacific cod in the Aleutian Islands. A number of the 
specific measures proposed in public comments would not control the 
location, gear type, and timing of fishing for Atka mackerel, pollock, 
and Pacific cod in the Aleutian Islands (see EIS Section 2.3 for more 
detail). And, as explained in the response to Comment 59, NMFS is 
already working to ensure that ecosystem considerations, like the needs 
of predators, are taken into consideration in setting catch levels.
    NMFS carefully designed Alternative 6 to be a Steller sea lion 
protection measure that is more conservative than Alternative 1 and 
provides for effects that can be analyzed and compared to the other 
alternatives. Further, Alternative 6 does not close the action area to 
all fishing. As explained in EIS Section 2.1.6, Alternative 6 would 
prohibit retention of Atka mackerel, Pacific cod, and pollock in the 
Aleutian Islands, species identified as important prey species for 
Steller sea lions. Vessels would be prohibited from directed fishing 
for these species and prohibited from retaining any incidental catch of 
these species while directed fishing for other groundfish targets 
(e.g., Pacific ocean perch).
    Comment 50: NMFS' addition of Alternative 6 to the final EIS 
required a supplemental draft EIS because Alternative 6 is outside of 
the range of alternatives analyzed in the draft EIS. The most 
environmentally protective alternative included in the draft EIS was 
Alternative 1, while Alternatives 2, 3, 4, and 5 all allow more 
fishing. The draft EIS specifically stated that alternatives more 
protective than the status quo were not analyzed. Alternative 6 was 
specifically added to the final EIS to have an alternative that is more 
restrictive of fishing relative to Alternative 1 for analysis and 
comparison with the less restrictive protection measures under the 
other alternatives. Because Alternative 6 represents an outlier 
alternative that may not be offered for the first time in the EIS, NMFS 
must refrain from issuing a record of decision and issue a supplemental 
draft EIS--subject to public notice and comment--instead. In addition 
to Alternative 6, the supplemental draft EIS should analyze the other 
feasible conservation alternatives identified in public comments.
    Response: A supplement to an environmental impact statement is 
required ``if: (i) The agency makes substantial changes in the proposed 
action that are relevant to environmental concerns; or (ii) There are 
significant new circumstances or information relevant to environmental 
concerns and bearing on the proposed action or its impacts'' (40 CFR 
1502.9(c)). The addition of Alternative 6 in the final EIS did not make 
substantial changes in the proposed action that were relevant to 
environmental concerns and did not provide significant new 
circumstances or information relevant to environmental concerns and 
bearing on the proposed action or its impacts. Therefore NMFS was not 
required to supplement the draft EIS before releasing the final EIS and 
record of decision. Additionally, EIS Section 2.3 analyzes the 
conservation alternatives identified in public comments and explains 
why they were not reasonable.
    Comment 51: NMFS should rescind the EIS and prepare a new draft EIS 
that--consistent with NMFS' acknowledged obligations pursuant to NEPA, 
ESA, and the Magnuson-Stevens Act--includes a lawful statement of 
purpose and need, evaluates a full range of alternatives, objectively 
accounts for the full context and severity of the potential indirect 
effects of fishing on Steller sea lions, and transparently addresses 
dissenting scientific views within NMFS.
    Response: NMFS disagrees. NMFS has determined that the EIS is 
consistent with NEPA, the ESA, and the Magnuson-Stevens Act. The EIS 
includes a lawful statement of purpose and need (Section 1.3), 
evaluates a full range of alternatives (Chapter 2), objectively 
accounts for the full context and severity of the potential indirect 
effects of fishing on Steller sea lions (Chapter 5), and transparently 
addresses dissenting scientific views (Executive Summary, Chapter 1, 
and Chapter 5).

[[Page 70306]]

    Comment 52: NMFS made a passing attempt in the EIS at exploring the 
effects of an alternative harvest strategy for Atka mackerel on the 
Atka mackerel population. In concert with explicitly considering 
current predation mortality and the projected predation mortality from 
an increasing Steller sea lion population, such a model could begin to 
formally address ecosystem concerns. NMFS, however, failed to analyze 
such an alternative model structure.
    Response: As explained in EIS Section 2.3, evaluations of 
alternative stock assessment model structures and alternative harvest 
strategies do not meet the purpose and need for this action to 
implement Steller sea lion protection measures. The commenter's 
recommendation addresses the stock assessment process used by the 
Council and NMFS on an annual basis. NMFS conducts this work through 
the annual harvest specification process. That process is explained in 
the final rule that implements the annual final 2014 and 2015 harvest 
specifications (79 FR 12108, March 4, 2014).
    NMFS notes that the process for modifying fishery stock assessment 
models for Atka mackerel or any other groundfish species does not 
require rulemaking to develop, analyze, or implement alternative model 
structures. NMFS continues to develop techniques to evaluate the 
effects of the groundfish fisheries and management system on the 
ecosystem. NMFS continues to develop state-of-the-art ecosystem models 
with a goal to better evaluate risks to ecosystem given current and 
alternative harvest strategies. This scientific work is ongoing and, 
while important to groundfish fishery management, it is outside the 
scope of this rulemaking process. This action implements regulations to 
restrict vessels from fishing in specific areas and at specific times 
to limit competition of prey resources with Steller sea lions.
    Comment 53: NMFS should not consider only changes to the 
restrictions on fishing times and areas under the Steller sea lion 
protection measures. Any of the guidelines that affect fisheries that 
compete with Steller sea lions should be subject to review in this 
process. Public comments on the draft EIS suggested measures intended 
to provide a starting place from which NMFS could construct such an 
alternative. NMFS incorrectly rejected any ideas designed to alter or 
affect the harvest strategy in the Aleutian Islands.
    Response: NMFS has considered more than changes to the time and 
area measures. NMFS also considered a range of harvest limits. This 
final rule implements harvest limits for the Atka mackerel, Pacific 
cod, and pollock fisheries in addition to the season and area closures.
    In EIS Section 2.3, NMFS analyzed the ideas suggested in public 
comments to change the harvest strategy in the Aleutian Islands. NMFS 
explains that changes to the harvest strategy are outside the scope of 
this action and do not meet the purpose and need. The revisions to the 
harvest strategy proposed in public comment would not provide the 
necessary protections for Steller sea lions. Revisions to the harvest 
strategy recommended by the commenter do not meet the purpose and need 
for the action because they do not provide additional protections for 
Steller sea lions by reducing potential competition between Steller sea 
lions and fishery harvests when and where Steller sea lions forage. As 
explained throughout the EIS, the Steller sea lion protection measures 
are a suite of measures that regulates fishing activity by applying 
seasons, area closures, and harvest limits all with the goal of 
reducing potential fishery competition for Steller sea lion prey when 
and where Steller sea lions forage.
    NMFS is continually striving to understand the prey requirements of 
Steller sea lions and minimize potential competition at the finest 
scale possible with the best available information. Further, NMFS does 
not change stock assessment methods or harvest strategy through 
regulations. The Council and NMFS are continually assessing the 
scientific methods used for stock assessment. NMFS uses the best 
available scientific information to improve stock assessment methods 
and evaluate ecosystem considerations. An example of this is the 
decision to establish separate ABCs and TACs for Pacific cod in the 
Bering Sea and Aleutian Islands. Starting in January 2014, as 
recommended by the Council and based on genetic and other morphological 
evidence, NMFS separated Aleutian Islands Pacific cod from the Bering 
Sea Pacific cod stock. This results in lower maximum potential catches 
in the Aleutian Islands due to the establishment of separate OFLs, 
ABCs, and TACs in the Bering Sea and Aleutian Islands. With this split, 
the TAC in the Aleutian Islands results in a maximum harvest of roughly 
half the previous average harvest rate in the Aleutian Islands prior to 
the split, and lower fishing mortality rates, than those proposed by 
the commenter. The impacts of the implementation of an Aleutian Islands 
Pacific cod TAC are discussed in EIS Section 3.3, however, that action 
was separate from the action implemented in this final rule.
    Comment 54: In Section 2.3.2 of the EIS, NMFS incorrectly concludes 
that predator needs are fully incorporated into the existing process 
for setting catch levels. This statement is belied by jeopardy and 
adverse modification conclusions reached in NMFS' previous biological 
opinions for Steller sea lions--if the needs of Steller sea lions were 
properly accounted for in setting catch levels, then that catch would 
not result in jeopardy to the population or adverse modification of 
critical habitat. NMFS' insistence that the needs of predator are 
incorporated in the harvest specifications process is contrary to NMFS' 
own identified gaps in applying ecosystem-based fisheries management. 
There is currently no explicit accounting of predation mortality in the 
stock assessments for Atka mackerel, Aleutian Islands pollock, or 
Aleutian Islands Pacific cod. The natural mortality parameters used in 
these models are constant, or change little from year to year. The 
parameters used have little relation to trends in predator populations 
or the actual level of predation. In contrast, when predation mortality 
is explicitly considered in prey population models, the biological 
reference points generated are generally more conservative (i.e., 
recommend higher standing biomass). Moreover, development of a process 
through which to account explicitly for predator needs was considered 
in the draft 2010 FMP BiOp. This draft also called for a process to 
address the dietary needs of sea lions and other predators as fishing 
levels are set. Accounting fully for predator needs in setting catch 
levels would be an important step toward ecosystem-based management, 
and this NEPA process is an appropriate venue through which to do so 
explicitly.
    Response: NMFS disagrees with the comment's characterization of the 
EIS. In Section 2.3.2, NMFS explains that the needs of predators are 
incorporated in the harvest specifications process by applying natural 
mortality (including predation) for a target species stock assessment. 
Additionally, NMFS scientists are evaluating the current groundfish 
management system relative to the impact on the ecosystem. NMFS 
scientists have developed multispecies models that explicitly 
incorporate predator/prey relationships. Results from these models have 
generally concluded that the assumptions used for harvest limit 
recommendations under our existing stock assessment process are 
generally conservative.
    NMFS scientists have compared using a constant, time-invariant 
natural mortality in stock assessment models to using models in which 
natural mortality

[[Page 70307]]

includes time- (and age-) varying estimates of predation mortality 
(Hollowed, A. B., J. N. Ianelli, and P. A. Livingston. 2000. Including 
predation mortality in stock assessments: A case study involving Gulf 
of Alaska walleye pollock. ICES Journal of Marine Science, 57, pp. 279-
293). These and other studies indicate that estimates are uncertain and 
in such cases, using a natural mortality that is more conservative is 
more risk averse (Clark, W.G. 1999. Effects of an erroneous natural 
mortality rate on a simple age-structured model. Can. J. Fish. Aquat. 
Sci. 56:1721-1731).
    NMFS' ongoing scientific work to evaluate predator/prey 
relationships and develop multispecies models is separate from the 
rulemaking process NMFS conducted for this final rule to restrict 
vessels from fishing in specific areas and at specific times to limit 
potential competition with Steller sea lions.
    NMFS disagrees with the comment's characterization of the previous 
biological opinions. As explained in the EIS and all previous BiOps, 
NMFS' concern has been the potential competition of fisheries with 
Steller sea lions for prey when and where Steller sea lions forage. 
NMFS has imposed Steller sea lion protection measures that include 
seasonal restrictions, area closures, and catch limits with the goal of 
reducing the potential of fisheries to affect Steller sea lion foraging 
opportunities. These are coupled with fine-scale fishery evaluations 
following the surgical approach outlined in the 2008 Recovery Plan, the 
2010 FMP BiOp, the 2014 BiOp, and the latest information regarding sea 
lion behavior and prey resources as described in EIS Chapters 3 and 5. 
Implementing the Steller sea lion protection measures that regulate 
fishing activity, as is being done by this final rule, is a separate 
action from NMFS' ongoing scientific work to understand and model 
predator/prey relationships and evaluate the impacts of fish harvest on 
the ecosystem using the latest scientific techniques.

Comments on Additional Issues

    Comment 55: The Council and NMFS have taken significant steps to 
move toward holistic, ecosystem-based management. Continue that 
momentum by seeking a durable, consensus-based resolution to 
controversies about the interaction between industrial fisheries and 
sea lions. Instead, the Council has suggested and NMFS has adopted new 
measures certain to continue the controversy and poor management. Those 
choices are disappointing and potentially illegal.
    Response: The Council and NMFS seek consensus-based resolutions 
where possible, and when such resolutions are consistent with legal 
requirements. However, the Council and NMFS recognize that 
controversial issues such as the potential interaction between 
commercial fisheries and Steller sea lions--a subject of substantial 
scientific debate (see EIS Executive Summary)--are rarely resolved by 
consensus. Furthermore, Section 302(e) of the Magnuson-Stevens Act 
requires that all Council decisions be made by majority vote, 
recognizing the fact that not all controversies or policy choices can 
be resolved by consensus.
    The fact that NMFS is implementing regulations that the commenter 
disagrees with is not a basis to conclude that they represent poor 
management or are illegal.
    Comment 56: Please do not allow any more fishing that would in any 
way impact Steller sea lions. We humans take too much as it is. And we 
have alternatives like a vegan diet, as well as eco-tourism to make 
money off these sea lions over and over again by charging people to 
observe them. Keep the current fishing restrictions in place, and keep 
in mind that the population of these sea lions has not recovered. Show 
some backbone for your convictions and do not cave in to fishing 
interests' pressure.
    Response: NMFS acknowledges the comment.
    Comment 57: Closing areas to commercial fishing and enforcing these 
closures is the only way to protect Steller sea lions from the firearms 
of commercial fishermen.
    Response: NMFS has worked closely with the Council and the State of 
Alaska to eliminate illegal shooting of Steller sea lions. EIS Section 
5.3.4 provides additional information on the occurrence of illegal 
shooting. Closing commercial fishing is not required to eliminate 
illegal shooting.
    Comment 58: As fishermen in these waters, we are appalled that some 
public comments indicate fishermen evoke actions intended to harm 
Steller sea lions. At no time do we ever harass marine mammals.
    Response: NMFS acknowledges the comment.
    Comment 59: Are you telling the public to go to an inaccurate site 
in your Federal Register notice to stifle public comment?
    Response: NMFS encourages public comment. NMFS checked all of the 
Web sites in the Federal Register notice for the proposed rule (79 FR 
37486) and they are all correct, including the instructions for 
submitting comments on http://www.regulations.gov. Additionally, the 
Federal Register notice provides instructions for the public to mail 
written comments to the Sustainable Fisheries Division, NMFS Alaska 
Region.

Classification

    Pursuant to section 305(d) of the Magnuson-Stevens Act, the NMFS 
Assistant Administrator has determined that this final rule is 
consistent with the FMP, other provisions of the Magnuson-Stevens Act, 
and other applicable law.
    This final rule has been determined to be not significant for the 
purposes of Executive Order (E.O.) 12866.
    Formal consultation under section 7 of the ESA was completed for 
this action. On April 2, 2014, NMFS issued a biological opinion (2014 
BiOp) on the action. The 2014 BiOp found that the implementation of the 
action and supporting research described in Chapter 11 of the EIS were 
not likely to jeopardize the continued existence of endangered Steller 
sea lions or result in the destruction or adverse modification of their 
critical habitat.
    NMFS prepared a final EIS for this action. The final EIS was filed 
with the Environmental Protection Agency on May 16, 2014. A notice of 
availability was published on May 23, 2014 (79 FR 29759). In approving 
this action, NMFS issued a Record of Decision identifying the selected 
alternative. A copy of the Record of Decision is available from NMFS 
(see ADDRESSES).
    Pursuant to Executive Order 13175, NMFS mailed letters to 
approximately 660 Alaska tribal governments, Alaska Native Claims 
Settlement Act (ANCSA) corporations, and related organizations 
providing information about the EIS and soliciting consultation and 
coordination with interested tribal governments and ANCSA corporations. 
NMFS received no comments on the EIS from tribal governments or ANCSA 
corporation representatives. Section 1.7 of the EIS provides more 
detail on NMFS' outreach with Alaska tribal governments and ANCSA 
corporations (see ADDRESSES). NMFS received one comment on the proposed 
rule from Kawerak, Inc., a regional non-profit tribal consortium of the 
Bering Strait Region. NMFS summarized and responded to this comment 
under Response to Public Comments, above (see Comment 12). NMFS 
received one comment from Aleut Enterprise, LLC, a wholly owned 
subsidiary of the Aleut Corporation. NMFS summarized and responded to 
this comment under

[[Page 70308]]

Response to Public Comments, above (see Comments 10, 11, 43, and 44).

Final Regulatory Flexibility Analysis

    This final regulatory flexibility analysis (FRFA) incorporates the 
IRFA, a summary of the significant issues raised by the public comments 
in response to the IRFA, and NMFS responses to those comments, and a 
summary of the analyses completed to support the action.
    Section 604 of the Regulatory Flexibility Act requires that, when 
an agency promulgates a final rule under section 553 of Title 5 of the 
U.S. Code, after being required by that section or any other law to 
publish a general notice of proposed rulemaking, the agency shall 
prepare a FRFA. Section 604 describes the required contents of a FRFA: 
(1) A statement of the need for, and objectives of, the rule; (2) a 
statement of the significant issues raised by the public comments in 
response to the initial regulatory flexibility analysis, a statement of 
the assessment of the agency of such issues, and a statement of any 
changes made in the proposed rule as a result of such comments; (3) the 
response of the agency to any comments filed by the Chief Counsel for 
Advocacy of the Small Business Administration (SBA) in response to the 
proposed rule, and a detailed statement of any change made to the 
proposed rule in the final rule as a result of the comments; (4) a 
description of and an estimate of the number of small entities to which 
the rule will apply or an explanation of why no such estimate is 
available; (5) a description of the projected reporting, recordkeeping 
and other compliance requirements of the rule, including an estimate of 
the classes of small entities which will be subject to the requirement 
and the type of professional skills necessary for preparation of the 
report or record; and (6) a description of the steps the agency has 
taken to minimize the significant economic impact on small entities 
consistent with the stated objectives of applicable statutes, including 
a statement of the factual, policy, and legal reasons for selecting the 
alternative adopted in the final rule and why each one of the other 
significant alternatives to the rule considered by the agency which 
affect the impact on small entities was rejected.

Need for, and Objectives of, the Rule

    A statement of the need for, and objectives of, the rule is 
contained on pages 4 through 10 of the preamble to this final rule and 
is not repeated here.

Public and Chief Counsel for Advocacy Comments on the Proposed Rule

    NMFS published a proposed rule on July 1, 2014 (79 FR 37486). An 
initial regulatory flexibility analysis (IRFA) was prepared and 
summarized in the ``Classification'' section of the preamble to the 
proposed rule. The comment period closed on August 15, 2014. NMFS 
received 17 letters of public comment on the proposed rule. No comments 
were received on the IRFA, or on the small entity impacts of this rule. 
The Chief Counsel for Advocacy of the SBA did not file any comments on 
the proposed rule.

Number and Description of Small Entities Regulated by the Action

    The small entity estimates reported in the IRFA for this action 
have been reviewed for compliance with subsequent inflation adjustments 
to SBA thresholds for identifying small entities (79 FR 33647, June 12, 
2014). The change in thresholds did not lead to changes in the small 
entity estimates.
    NMFS identified three groups of entities that would be directly 
regulated by this action: (1) Federally-permitted vessels that harvest 
Atka mackerel, Pacific cod, and pollock in the Aleutian Islands; (2) 
CDQ groups that receive an allocation of Atka mackerel, Pacific cod, 
and pollock in the Aleutian Islands; and (3) the Aleut Corporation, 
which receives an allocation of pollock in the Aleutian Islands. The 
following paragraphs provide estimates of the numbers of small entities 
in these three categories that are directly regulated by this action. 
NMFS estimates that 26 vessels, and the six CDQ groups, are directly 
regulated small entities.
    NMFS identified 51 vessels active in directed fisheries for Atka 
mackerel or Pacific cod in 2010 that would have been directly regulated 
by this action. Twelve vessels--one catcher/processor and 11 catcher 
vessels--were believed to be small entities. One of these vessels was a 
pot catcher/processor, and the remaining vessels were trawl catcher 
vessels. The estimated average gross revenue from the identified small 
entities, in 2012 (the most recent year with complete revenue 
information), was about $1.4 million. Note that firm revenues may have 
been larger, if these firms had revenues from sources other than the 
identified vessels. If this was the case, average gross revenues for 
small entities may be underestimated or the number of small entities 
might be overestimated, and the direction of the impact on average 
revenue for the remaining vessels would be unknown. The remaining 39 
vessels that directly targeted Atka mackerel, Pacific cod, or pollock 
in the Aleutian Islands in 2010 were classified as large entities since 
their gross revenues, or their gross revenues and those of their 
affiliated entities, exceeded the SBA threshold of $20.5 million. The 
IRFA details the process used to determine if a vessel was affiliated 
with other businesses and is not repeated here.
    In addition to vessels in directed fisheries, NMFS identified 20 
vessels with incidental catches of Atka mackerel or Pacific cod in Area 
543 that are directly regulated by this action. Alternative 1, the 
status quo, prohibits retention of Atka mackerel or Pacific cod in Area 
543. This comprehensive prohibition on retention is relaxed under this 
action, the preferred alternative. This prohibition directly regulates 
vessels that would otherwise have retained these species in Area 543. 
Thus, the preferred alternative directly regulates these vessels in 
this area. Only small numbers of vessels took incidental catches of 
these species in Area 543 during the baseline years. Over the entire 
baseline period, from 2004 through 2010, only six separate fixed gear 
catcher/processors or trawl catcher vessels were identified with 
incidental catches of Atka mackerel and/or Pacific cod from 2004 
through 2010. None of these is believed to be a small entity based on a 
knowledge of vessel affiliations. Fourteen fixed gear catcher vessels 
had incidental catches during the same years. All of these are 
considered to be small entities based on a review of their gross 
revenues from all sources, and their affiliations. None of these 
vessels fished all years; the median number of years fishing in Area 
543 for a vessel in this group during the baseline period was two 
years. The aggregate fixed gear catcher vessel revenues from Area 543 
for these vessels are estimated to average about $11,300 a year in real 
2012 dollars, during the baseline years (2004 through 2010). Average 
revenues per vessel-year from this source are estimated to be about 
$2,200.
    Through the CDQ program, the Council and NMFS allocate a portion of 
the BSAI groundfish TACs, and apportion prohibited species catch limits 
for Pacific halibut, Pacific salmon, and several crab species, to 65 
eligible Western Alaska communities. These communities work through six 
non-profit CDQ groups, and are required to use the net proceeds from 
the CDQ allocations to start or support activities that will result in 
ongoing, regionally based, commercial fishery or related businesses. 
The six CDQ groups receive allocations through the specifications

[[Page 70309]]

process, and are directly regulated by this action, but the 65 
communities are not directly regulated. Because they are explicitly 
defined as small nonprofit entities within the Regulatory Flexibility 
Act, the six CDQ groups are considered small entities for purposes of 
this analysis.
    The Aleut Corporation receives all of the pollock directed fishing 
allocation in Areas 541, 542, and 543. The Aleut Corporation is an 
ANCSA corporation, and is a holding company evaluated according to the 
SBA criteria at 13 CFR 121.201, using a $7 million gross annual 
receipts threshold for ``Offices of Other Holding Companies'' (NAICS 
code 551112). As noted, in Table 8-39 of Chapter 8 of the EIS, Aleut 
Corporation revenues exceed this threshold (gross revenues were about 
$159 million in 2010), and the Aleut Corporation is considered to be a 
large entity for purposes of this analysis.

Recordkeeping and Reporting Requirements

    This action would implement new recordkeeping and reporting 
requirements by requiring an increase in VMS polling rates for all 
trawl vessels named on a Federal Fishing Permit under Sec.  679.4(b) 
and fishing for groundfish that is deducted or required to be deducted 
from a Federal groundfish TAC in the Aleutian Islands subarea. Some 
operations may have to upgrade existing VMS equipment, and all will 
have to increase transmission rates. The owner of the trawl vessel must 
ensure NMFS receives the transmission from the VMS unit at least 10 
times per hour. This measure does not apply to fixed gear vessels, 
thus, from the discussion above, it may affect as many as 11 small 
trawl catcher vessel entities. The costs of this requirement are 
discussed in the Collection-of-Information section of this final rule, 
and are incorporated by reference here. In summary, all trawl catcher 
vessels will incur additional transmission costs estimated to be about 
$400 a year, and some may be required to upgrade their VMS equipment at 
a cost estimated to be about $3,500.

Description of Significant Alternatives to the Final Action That 
Minimize Adverse Impacts on Small Entities

    A FRFA must describe the steps the agency has taken to minimize the 
significant economic impact on small entities consistent with the 
stated objectives of applicable statutes, including a statement of the 
factual, policy, and legal reasons for selecting the alternative 
adopted in the final rule and why each one of the other significant 
alternatives to the rule considered by the agency that affect the 
impact on small entities was rejected.
    At its October 2013 meeting, the Council adopted Alternative 5. 
This alternative is described in detail in Chapter 2 of the EIS. 
Section 8.13.1 of the EIS and Section 1.13.1 of the Regulatory Impact 
Review (RIR) provide an analysis of Alternative 5, while Section 8.20 
of the EIS, and Section 1.14 of the RIR compare Alternative 5 to the 
other alternatives for affected fleets. This FRFA describes the impacts 
of Alternative 5 relative to other alternatives for Atka mackerel, 
Pacific cod, and pollock fisheries.
    The elements of Alternative 5 that regulate the Atka mackerel 
fishery are slightly more restrictive than those in Alternatives 3 and 
4, and are less restrictive than those in Alternatives 1, 2, and 6.
    For the Atka mackerel fishery, Alternative 5 is most comparable to 
Alternative 3. Alternatives 3 and 5 are the same in Areas 541 and 542. 
They differ in Area 543 in that Alternative 3 closes certain waters 
around Buldir Island explicitly, while Alternative 5 does not. However, 
Alternative 5 sets an Area 543 TAC limit equal to 65 percent of ABC and 
that limit is not included in Alternative 3. On balance, from 
information during the baseline years, Alternative 5 may be somewhat 
more restrictive in Area 543 than Alternative 3. However, the 
Alternative 5 TAC limit in Area 543 is included to prevent excessive 
harvest of Atka mackerel prey resources near Steller sea lion haulouts 
and rookeries.
    For the Atka mackerel fishery, Alternative 4 is also less 
restrictive than Alternative 5. However, the Council did not recommend 
and NMFS did not select Alternative 4 as its preferred alternative. 
Alternative 4 measures were found to result in jeopardy and adverse 
modification of critical habitat for the Steller sea lions in the 2010 
FMP BiOp. Alternative 5 provides more protection for Steller sea lions 
in Area 543, where population declines have been larger than in Areas 
541 and 542. Alternative 5 was selected over other less restrictive 
alternatives to insure that Atka mackerel fisheries in the BSAI are not 
likely to jeopardize the continued existence of endangered Steller sea 
lions or destroy or adversely modify their designated critical habitat.
    The elements of Alternative 5 that regulate the Aleutian Islands 
Pacific cod fishery are slightly more restrictive than those in 
Alternative 4, and are less restrictive than those in Alternatives 1, 
2, 3, and 6. For Pacific cod, Alternative 5 is most closely comparable 
to Alternative 4. However, Alternative 4 may be less restrictive to 
small entities, since Alternative 5 adds a catch limit for Pacific cod 
in Area 543 that limits area catch in proportion to the annual stock 
assessment. Alternative 5 was selected over the less restrictive 
Alternative 4 to insure that Pacific cod fisheries in the BSAI are not 
likely to jeopardize the continued existence of endangered Steller sea 
lions or destroy or adversely modify their designated critical habitat. 
NMFS notes that Alternative 5 was selected with the clear understanding 
that the Aleutian Islands Pacific cod will be managed as a separate 
stock from the Bering Sea Pacific cod, which limits the amount of catch 
from the Aleutian Islands relative to the baseline harvests analyzed.
    The elements of Alternative 5 that regulate the Aleutian Islands 
pollock fishery are slightly more restrictive than those in 
Alternatives 3 and 4 (Alternatives 3 and 4 are identical in their 
management of the pollock fishery). Alternative 5 differs from 
Alternatives 3 and 4 only in that it includes management area specific 
A season catch limits, and increases critical habitat closures in Area 
542. The A season catch limits are 5 percent of the ABC in Area 543, 15 
percent of the ABC in Area 542, and 30 percent of the ABC in Area 543. 
Alternative 5 is less restrictive than Alternatives 1, 2, and 6.
    The area constraints on pollock fishing contained in Alternative 5 
are not present in Alternatives 3 and 4. Thus, those alternatives may 
be somewhat less restrictive than Alternative 5. Management area limits 
were introduced to provide control over potential harvests in a new 
pollock fishery of unknown potential and, thus, to provide more 
protection for Steller sea lions. These restrictions are more stringent 
in the western areas, where Steller sea lions are not doing as well as 
in the east (this is consistent with the performance standards in the 
2010 FMP BiOp). The extension of the 542 closure areas, west of 
178[deg] W longitude, to 20 nm under Alternative 5, may also contribute 
to making this alternative more restrictive than Alternatives 3 and 4. 
The extension was also included in Alternative 5 to provide more 
protection to Steller sea lion prey species occurring near rookeries 
and haul-outs that have experienced relatively greater declines in 
populations. Alternative 5 was selected over other less restrictive 
alternatives to insure that pollock fisheries in the BSAI are not 
likely to jeopardize the continued existence of endangered Steller sea 
lions or destroy or adversely modify their designated critical habitat.

[[Page 70310]]

Small Entity Compliance Guide

    NMFS has posted a small entity compliance guide on the NMFS Alaska 
Region Web site (http://alaskafisheries.noaa.gov/sustainablefisheries/sslpm/) to satisfy the Small Business Regulatory Enforcement Fairness 
Act of 1996, which requires a plain language guide to assist small 
entities in complying with this rule. Contact NMFS to request a hard 
copy of the guide (see ADDRESSES).

Collection-of-Information Requirements

    This rule contains collection-of-information requirements subject 
to the Paperwork Reduction Act (PRA) and which have been approved by 
the Office of Management and Budget (OMB). The collections of 
information are listed below by OMB control number.

OMB Control No. 0648-0206

    The Federal Fisheries Permit (FFP) is mentioned in the regulatory 
text of this rule, but no changes are made to the application form.

OMB Control No. 0648-0445

    Public reporting burden is estimated to average 4 hours per 
response for the Vessel Monitoring System (VMS) operation (includes 
installation, transmission, and maintenance). Estimates of burden 
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 on these or any 
other aspects of the collection of information to NMFS at the ADDRESSES 
above, and email to OIRA <a href="/cdn-cgi/l/email-protection#411234232c283232282e2f012e2c236f242e316f262e37"><span class="__cf_email__" data-cfemail="d281a7b0bfbba1a1bbbdbc92bdbfb0fcb7bda2fcb5bda4">[email protected]</span></a>, or fax to 202-395-
5806.
    This rule increases the number of transmissions or VMS polling 
rate, from 2 per hour to 10 per hour when a vessel is using trawl gear 
to fish in the Aleutian Islands; however, VMS transmissions are not 
counted as burden, because they are automatic. Some vessels may incur 
additional operating costs due to the increase in the VMS polling rate, 
or they may have to replace existing VMS units to meet the polling rate 
and reliability requirements. NMFS estimates that the increase in the 
polling rate will increase VMS costs by about $400 per year for trawl 
catcher vessels and catcher/processors operating in the Aleutian 
Islands, except for trawl catcher/processors targeting Atka mackerel. 
Trawl catcher/processors targeting Atka mackerel are expected to incur 
costs of about $1,200 per year; however, these are all large entities. 
Although all vessels are required to have an FFP, and all vessels 
fishing in the Aleutian Islands are required to have and operate VMS, 
some of the impacted vessels may have to replace existing VMS units to 
meet the polling rate and reliability requirements. While NMFS is 
unable to estimate the number of entities that may be required to 
replace VMS units to provide the required unit reliability, the 
estimated cost for an additional unit is about $3,500 (including 
installation).
    Estimates of burden 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 on these or any other aspects of the collection of 
information to NMFS at the ADDRESSES above, and email to OIRA 
<a href="/cdn-cgi/l/email-protection#336046515e5a40405a5c5d735c5e511d565c431d545c45"><span class="__cf_email__" data-cfemail="d586a0b7b8bca6a6bcbabb95bab8b7fbb0baa5fbb2baa3">[email protected]</span></a>, or fax to 202-395-5806.
    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. All currently approved NOAA 
collections of information may be viewed at: http://www.cio.noaa.gov/services_programs/prasubs.html.

List of Subjects

15 CFR Part 902

    Reporting and recordkeeping requirements.

50 CFR Part 679

    Alaska, Fisheries, Reporting and recordkeeping requirements.

    Dated: November 18, 2014.
Eileen Sobeck,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, NMFS amends 15 CFR part 
902 and 50 CFR part 679 as follows:

Title 15--Commerce and Foreign Trade

PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE 
PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS

0
1. The authority citation for part 902 continues to read as follows:

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


0
2. In Sec.  902.1, in the table in paragraph (b), under the entry ``50 
CFR'':
0
a. Add an entry in alphanumeric order for ``679.22(a)''; and
0
b. Revise the entry for 679.28(f).
    The addition and revision read as follows:


Sec.  902.1  OMB control numbers assigned pursuant to the Paperwork 
Reduction Act.

* * * * *
    (b) * * *

------------------------------------------------------------------------
                                             Current OMB control number
 CFR part or section where the information  (all numbers begin with 0648-
     collection requirement is located                    )
------------------------------------------------------------------------
 
                                * * * * *
50 CFR:
 
                                * * * * *
679.22(a).................................  -0206
 
                                * * * * *
679.28(f).................................  -0206, -0445
 
                                * * * * *
------------------------------------------------------------------------

Title 50--Wildlife and Fisheries

PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

0
3. 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.


0
4. In Sec.  679.7:
0
a. Remove paragraphs (a)(19), (a)(23), and (a)(25);
0
b. Redesignate paragraph (a)(24) as paragraph (a)(19); and
0
c. Revise the newly redesignated paragraph (a)(19).
    The revisions read as follows:


Sec.  679.7  Prohibitions.

    (a) * * *
    (19) Atka mackerel directed fishing in the Bering Sea reporting 
areas. Conduct directed fishing for Atka mackerel in the Bering Sea 
subarea and adjacent State waters with a vessel required to be 
Federally permitted.
* * * * *
0
5. In Sec.  679.20:
0
a. Add paragraphs (a)(5)(iii)(B)(6), and (a)(7)(v);
0
b. Revise paragraph (a)(8)(ii)(C); and
0
c. Add paragraphs (a)(8)(ii)(D) and (e)(3)(v).
    The additions and revisions read as follows:


Sec.  679.20  General limitations.

    (a) * * *
    (5) * * *
    (iii) * * *
    (B) * * *
    (6) Pollock harvest limitations. Pollock harvests during the A 
season as defined at Sec.  679.23(e)(2) are limited to:
    (i) No more than 5 percent of the Aleutian Islands pollock ABC in 
Area 543.

[[Page 70311]]

    (ii) No more than 15 percent of the Aleutian Islands pollock ABC in 
Area 542.
    (iii) No more than 30 percent of the Aleutian Islands pollock ABC 
in Area 541.
* * * * *
    (7) * * *
    (v) ITAC allocation to the Amendment 80 sector. A percentage of the 
Pacific cod TAC, after subtraction of the CDQ reserve, will be 
allocated as ITAC to the Amendment 80 sector as described in Table 33 
to this part. Separate allocations for each Amendment 80 cooperative 
and the Amendment 80 limited access fishery are described under Sec.  
679.91. The allocation of Pacific cod to the Amendment 80 sector will 
be further divided into seasonal apportionments as described under 
paragraph (a)(7)(iv)(A)(1)(ii) of this section.
    (A) Use of seasonal apportionments by Amendment 80 cooperatives. 
(1) The amount of Pacific cod listed on a CQ permit that is assigned 
for use in the A season may be used in the B or C season.
    (2) The amount of Pacific cod that is listed on a CQ permit that is 
assigned for use in the B season may not be used in the A season.
    (3) The amount of Pacific cod listed on a CQ permit that is 
assigned for use in the C season may not be used in the A or B seasons.
    (B) Harvest of seasonal apportionments in the Amendment 80 limited 
access fishery. (1) Pacific cod ITAC assigned for harvest by the 
Amendment 80 limited access fishery in the A season may be harvested in 
the B or C seasons.
    (2) Pacific cod ITAC assigned for harvest by the Amendment 80 
limited access fishery in the B season may not be harvested in the A 
season.
    (3) Pacific cod ITAC assigned for harvest by the Amendment 80 
limited access fishery in the C season may not be harvested in the A or 
B seasons.
    (vi) ITAC rollover to Amendment 80 cooperatives. If during a 
fishing year, the Regional Administrator determines that a portion of 
the Pacific cod TAC is unlikely to be harvested and is made available 
for reallocation to the Amendment 80 sector according to the provisions 
under paragraph (a)(7)(iii) of this section, the Regional Administrator 
may issue inseason notification in the Federal Register that 
reallocates that remaining amount of Pacific cod to Amendment 80 
cooperatives, according to the procedures established under Sec.  
679.91(f).
    (vii) Pacific cod harvest limitations. During the annual harvest 
specifications process, the Regional Administrator will establish an 
Area 543 Pacific cod harvest limit based on Pacific cod abundance in 
Area 543 as determined by the annual stock assessment process. NMFS 
will first subtract the State GHL Pacific cod amount from the AI 
Pacific cod ABC. Then NMFS will determine the harvest limit in Area 543 
by multiplying the percentage of Pacific cod estimated in Area 543 by 
the remaining ABC for AI Pacific cod.
    (8) * * *
    (ii) * * *
    (C) Atka mackerel harvest limitations. (1) Atka mackerel catch 
within waters 0 nm to 20 nm of Steller sea lion sites listed in Table 6 
to this part and located west of 178[deg] W longitude is:
    (i) Limited to no more than 60 percent of the annual TACs in Areas 
542 and 543; and
    (ii) Equally divided between the A and B seasons as defined at 
Sec.  679.23(e)(3).
    (2) The annual TAC in Area 543 will be no more than 65 percent of 
the ABC in Area 543.
    (D) Any unharvested Atka mackerel A season allowance that is added 
to the B season is prohibited from being harvested within waters 0 nm 
to 20 nm of Steller sea lion sites listed in Table 6 to this part and 
located in Areas 541, 542, and 543.
* * * * *
    (e) * * *
    (3) * * *
    (v) For all vessels not listed in subpart F of this section, the 
maximum retainable amount for Atka mackerel harvested in the Bering Sea 
subarea is calculated at the end of each offload and is based on the 
basis species harvested since the previous offload. For purposes of 
this paragraph, offload means the removal of any fish or fish product 
from the vessel that harvested the fish or fish product to any other 
vessel or to shore.
* * * * *

0
6. In Sec.  679.22, revise paragraphs (a)(7) heading, (a)(7)(vi), 
(a)(8) heading, and (a)(8)(iv) to read as follows:


Sec.  679.22  Closures.

    (a) * * *
    (7) Steller sea lion protection areas, Bering Sea reporting areas.
* * * * *
    (vi) Atka mackerel closures. Directed fishing for Atka mackerel by 
vessels named on a Federal Fisheries Permit under Sec.  679.4(b) and 
using trawl gear is prohibited within the Bering Sea reporting areas.
* * * * *
    (8) Steller sea lion protection areas, Aleutian Islands reporting 
areas.
* * * * *
    (iv) Pacific cod closures. Directed fishing for Pacific cod 
required to be deducted from the Federal TAC specified at Sec.  679.20 
by vessels named on a Federal Fisheries Permit under Sec.  679.4(b) 
using trawl, hook-and-line, or pot gear is prohibited within Pacific 
cod no-fishing zones around selected sites. These sites and gear types 
are described in Table 5 of this part and its footnotes and are 
identified by ``AI'' in column 2.
* * * * *

0
7. In Sec.  679.23, revise paragraphs (e)(3)(ii) and (e)(5)(ii)(C) to 
read as follows:


Sec.  679.23  Seasons.

* * * * *
    (e) * * *
    (3) * * *
    (ii) B season. From 1200 hours, A.l.t., June 10 through 1200 hours, 
A.l.t., December 31.
* * * * *
    (5) * * *
    (ii) * * *
    (C) C season-- (1) Catcher vessels and AFA catcher/processors. From 
1200 hours, A.l.t., June 10 through 1200 hours, A.l.t., November 1.
    (2) Amendment 80 and CDQ. From 1200 hours, A.l.t., June 10 through 
1200 hours, A.l.t., December 31.
* * * * *

0
8. In Sec.  679.28, revise paragraph (f)(3)(i) and add paragraph (f)(7) 
to read as follows:


Sec.  679.28  Equipment and operational requirements.

* * * * *
    (f) * * *
    (3) * * *
    (i) Obtain a NMFS-approved VMS transmitter with transmission 
capabilities required for the areas of vessel operation and have it 
installed onboard your vessel in accordance with the instructions 
provided by NMFS. You may get a copy of the VMS installation and 
operation instructions from the Regional Administrator upon request.
* * * * *
    (7) What additional requirements does an operator have if trawling 
in the Aleutian Islands reporting areas? Operators of vessels named on 
a Federal Fisheries Permit under Sec.  679.4(b), and that are using 
trawl gear in the Aleutian Islands reporting areas to harvest 
groundfish that is required to be deducted from a Federal TAC specified 
at Sec.  679.20, must set their VMS to

[[Page 70312]]

transmit the vessel location at least 10 times per hour.
* * * * *

0
9. Revise Table 4 to Part 679 to read as follows:
BILLING CODE 3510-22-P

[[Page 70313]]

[GRAPHIC] [TIFF OMITTED] TR25NO14.000


[[Page 70314]]


[GRAPHIC] [TIFF OMITTED] TR25NO14.001


[[Page 70315]]


[GRAPHIC] [TIFF OMITTED] TR25NO14.002


[[Page 70316]]


[GRAPHIC] [TIFF OMITTED] TR25NO14.003


[[Page 70317]]


[GRAPHIC] [TIFF OMITTED] TR25NO14.004


[[Page 70318]]


[GRAPHIC] [TIFF OMITTED] TR25NO14.005


[[Page 70319]]


[GRAPHIC] [TIFF OMITTED] TR25NO14.006


[[Page 70320]]


[GRAPHIC] [TIFF OMITTED] TR25NO14.007


[[Page 70321]]


[GRAPHIC] [TIFF OMITTED] TR25NO14.008


[[Page 70322]]


[GRAPHIC] [TIFF OMITTED] TR25NO14.009


0
10. Revise Table 5 to Part 679 to read as follows:

[[Page 70323]]

[GRAPHIC] [TIFF OMITTED] TR25NO14.010


[[Page 70324]]


[GRAPHIC] [TIFF OMITTED] TR25NO14.011


[[Page 70325]]


[GRAPHIC] [TIFF OMITTED] TR25NO14.012


[[Page 70326]]


[GRAPHIC] [TIFF OMITTED] TR25NO14.013


[[Page 70327]]


[GRAPHIC] [TIFF OMITTED] TR25NO14.014


[[Page 70328]]


[GRAPHIC] [TIFF OMITTED] TR25NO14.015


[[Page 70329]]


[GRAPHIC] [TIFF OMITTED] TR25NO14.016


[[Page 70330]]


[GRAPHIC] [TIFF OMITTED] TR25NO14.017


[[Page 70331]]


[GRAPHIC] [TIFF OMITTED] TR25NO14.018


[[Page 70332]]


[GRAPHIC] [TIFF OMITTED] TR25NO14.019


[[Page 70333]]


[GRAPHIC] [TIFF OMITTED] TR25NO14.020


[[Page 70334]]


[GRAPHIC] [TIFF OMITTED] TR25NO14.021


0
11. Revise Table 6 to Part 679 to read as follows:

[[Page 70335]]

[GRAPHIC] [TIFF OMITTED] TR25NO14.022


[[Page 70336]]


[GRAPHIC] [TIFF OMITTED] TR25NO14.023


[[Page 70337]]


[GRAPHIC] [TIFF OMITTED] TR25NO14.024


[[Page 70338]]


[GRAPHIC] [TIFF OMITTED] TR25NO14.025


[FR Doc. 2014-27658 Filed 11-24-14; 8:45 am]
BILLING CODE 3510-22-C


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