[Congressional Record (Bound Edition), Volume 146 (2000), Part 18]
[Senate]
[Pages 26530-26534]
[From the U.S. Government Publishing Office, www.gpo.gov]



                  STELLER SEA LION BIOLOGICAL OPINION

  Mr. STEVENS. Mr. President, I have come to the floor because, as we 
are considering the final wrapup of the appropriations bills, I face 
the problem of having to modify a provision that was in a bill as we 
were ready to send it to the President before the election dealing with 
Steller sea lions.
  It is sort of a long story, but let me start from the beginning.
  In 1969, as a new Senator, I flew from Kodiak to the Pribilof Islands 
in a Navy plane. I observed hundreds--hundreds--of foreign fishing 
vessels--factory trawlers--between those two islands off our coast. 
They were catching Alaska's seafood. As a matter of fact, they were 
beyond the 3-mile limit. They were in international waters at that 
time.
  Subsequently, I asked the Coast Guard, and I think the Fish and 
Wildlife Service then, to take some photographs of those vessels. We 
found, after examining photographs, that on the top of the vessels, on 
the decks, there were pens, literally, where they would toss a fur seal 
here and a harbor seal there, and a baby sea lion there. And then there 
was what we called a ``glory hole'' in the center, and they just shoved 
all of the fish into that hole. And it was ground up and sent back into 
the world's economy as protein. None of it came ashore in the United 
States or Alaska.
  That appalled me. I came back and we worked with people in the House. 
We devised a bill and introduced it to claim the 200 miles off our 
shore for the protection of the marine resources. That did not pass 
that year.
  The next year, I asked my good friend, Senator Warren Magnuson of 
Washington, and he introduced the bill as chairman of the Commerce 
Committee. I was cosponsor. But we worked to get that bill passed.
  By 1976, that bill was passed. We obtained control over the 200 miles 
off our shore. In that process we started the concept of Americanizing 
the 200 mile zone so we could get better control over the vessels that 
harvested our fish.
  The grand story of the whole continuum since 1976 is the pollock and 
cod of the North Pacific. Pollock and cod were at that time a fairly 
insignificant fishery. They were taking probably 10-20 million pounds a 
year--a little bit more--and would bring it ashore here into our 
country.
  But the difficulty with pollock is, it must be fleshed and boned soon 
after it is caught. It turns into a wonderful, white protein. The 
Japanese use it as surimi. We use pollock and cod as fillets and in 
fish sticks. If you go to Long John Silver's or McDonald's, any one of 
those entities today to buy a fish sandwich, there is a 9 out of 10 
chance you are going to be eating Alaska pollock.
  But here is the beauty of the control mechanism we set up over the 
200-mile limit. Pollock in the North Pacific is cannibalistic. I have 
said that on the floor before. As they mature, they get lazy, do not 
want to forage for food, and they eat their young. We found that if you 
harvest the mature fish--take them to market--the biomass expands.
  The biomass of Alaskan pollock is about five times the size it was 
when we created the 200-mile limit. It now sustains the most enormous 
fishery in the world. It is a vital necessity to the economy of the 
Pacific Northwest and an absolute necessity to our State.
  By virtue of an action taken just recently, the administration has 
now denied access to Alaskan pollock and cod, to the extent that about 
1,000 boats will not fish in January who would otherwise go out and 
start fishing.
  The Department of Commerce released, last Friday, a biological 
opinion on the relationship between the Steller sea lion and the 
Alaskan groundfish fleet. This 588-page document contains a massive 
rewrite of the fishery management plan for the Bering Sea and the Gulf 
of Alaska groundfish fisheries.
  Mind you, under the Magnuson Act--it is now called the Magnuson-
Stevens Act--but under that Act that commenced in 1976, the duty to 
create fishery management plans for the areas off our shore lies in the 
regional councils. Alaska is the only State that has its own council--
because of the massive area of our State; more than half the coastline 
of the United States is in Alaska--we have a regional council.
  As I mentioned, the duty to prepare fishery management plans under 
Federal law is in the regional councils.

[[Page 26531]]

This is a magnificent experiment in terms of government. The councils 
are created by appointments from the Secretary of Commerce from a list 
submitted by the Governors of the coastal States. The Federal 
Government and the States have each delegated some authority to those 
councils to manage fisheries in those areas.
  But this document, filed last Friday, was prepared in secrecy. No one 
in my State knew what was in it.
  It impacts areas inside Alaska state waters. It covers areas in the 
jurisdiction of other departments. And it was not unveiled until the 
very last minute. In fact, the National Marine Fisheries Service had an 
appointment to brief me on it on Thursday, and they asked to put it off 
until Friday. I changed that appointment for them. The reason was, they 
wanted to file it in court before they met with me. They had already 
delivered the document to the Federal judge involved when we met 
Friday. They prepared this because a Federal judge in Washington had 
enjoined all fishing because they lacked sound science under their 
prior biological opinion, prepared under the Endangered Species Act.
  I am trying to start a line of reasoning here so people understand 
what has happened. The way that that biological opinion under the 
Endangered Species Act has been handled is a direct assault on the 1976 
Magnuson Act because it has taken over the jurisdiction of the regional 
councils to prepare these fishery management plans. In fact, the 
Magnuson Act contains an emergency clause. The Secretary of Commerce is 
enabled, under certain circumstances, to issue emergency orders that 
change or even promulgate a management plan. But this management plan 
is promulgated in a biological opinion issued under the Endangered 
Species Act. There is no emergency clause in the Endangered Species 
Act.
  What we did in 1976 was to provide the tools to each region to manage 
the fisheries in their area. There has never been a more successful 
effort in terms of Federal-State cooperation, in my opinion. Now, 
because of a lawsuit filed by Greenpeace in a Federal court, the 
National Marine Fisheries Service is trying to change the total 
management of the North Pacific as far as the Steller sea lion and 
Alaska groundfish are concerned. This is the real emergency here for 
us, but it is something every coastal State should look at. Because by 
using the authority of the Magnuson Act emergency clause and taking it 
into a process under the Endangered Species Act and issuing a 
management plan that is only outlined by the Magnuson Act, but by 
issuing it in a biological opinion, what they have done is they have 
seized from the States, they have seized from the regional councils any 
management authority over the areas off our shores that the Magnuson 
Act covered.
  I cannot stand by and see this happen. In the first place, as I said, 
this is a terrible blow to the people of my State who work hard 
harvesting and processing this fish. The value of the lost harvest 
alone will be at least $191 million under the biological opinion. But 
if you look at that stream of economic activity it creates in the 
national economy, there is over $1 billion a year that comes from 
groundfish. It is turned into a marketable, salable product and 
develops these retail entities that are world renowned in terms of 
providing quality fish and fish products for consumption by our 
consumers.
  The opinion that was filed is an interesting thing. The first five 
times the National Marine Fisheries Service explored the relationship 
between pollock and the decline of the Steller sea lion, the opinion 
said there was no relationship. Dissatisfied with that, the 
administration dismissed from the area of research the people who had 
written those first opinions and turned to a new researcher who had 
done some research off Atka Island, which is about 1,500 miles west of 
Anchorage, on the relationship of mackerel out there to the fishing 
efforts.
  One man developed what is known as a localized depletion theory. He 
opined that the reason there was a decline around Atka Island was that 
factory trawlers were coming and fishing. In the period after they were 
fishing, there was a localized depletion of the fishery resource. That 
is not a scientific conclusion. That is a theory. But they brought him 
in to write the biological opinion on Steller sea lions in relationship 
to pollock and cod, and he used his new concept of localized depletion. 
He has now brought forward in this biological opinion, through the 
Department of Commerce--I wish I had the map to show the Senate--a 
process which denies access to the groundfish fleet to areas within a 
20-mile radius of most Steller sea lion rookeries. The concept of the 
connection between those rookeries and the pollock is localized 
depletion. It is not science. It is an assumption. And it has not been 
accepted by the scientific community.
  Their own scientists admit they have no data to support this theory, 
and that is a direct violation of both the Magnuson-Stevens Act and the 
Endangered Species Act, which require a sound scientific basis. The 
difficulty is that the biological opinion, if it becomes operative, 
will limit the areas and limit the seasons in which fishermen can fish 
for pollock and cod. That is a limitation that is only authorized under 
the Magnuson-Stevens Act, and it cannot be promulgated except in 
response to a plan presented by the regional council.
  Our regional council denounces this current biological opinion. Our 
State opposes it violently. As I said, no one knew anything that was in 
it. It was totally in camera. Nobody had access to it, unless it was 
the plaintiffs in the lawsuit, Greenpeace. The Commerce Department 
denied me access to it and demanded I wait 12 hours. And in that 12 
hours, they filed it in opinion in court without giving us a chance to 
examine it.
  The Magnuson Act was designed to promote safety at sea. I don't know 
how many people know about it, but the worst death ratio in any 
industry in our country is in commercial fishing off our State. As the 
father of a son who has been out there fishing for 10, 12, 15 years, I 
can tell the Senate, there is no greater worry for a father than to 
have a son on one of those boats because the death toll is horrendous. 
It will be worse because of Government regulations that require 
closures and require actions that aren't based on common sense. In this 
biological opinion, they are now going to force our small boats to fish 
in the dangerous offshore areas in the winter storm season. They say: 
Fish in the winter storm season. We passed the act so we could enact 
regulations so we could get out of the winter storm season. I can't 
understand why they would do that. It is a direct violation of Federal 
law to do that. They should have at least consulted the regional 
council and allowed the regional council to have hearings. They have 
not done so.
  Yesterday in Anchorage the advisory panel to the North Pacific 
Fisheries Management Council voted unanimously to reject this 
biological opinion. They want to restore the regulations that were in 
effect prior to its issuance until we can have public hearings and 
public review and we get the National Academy of Sciences and other 
qualified scientists to review this theory that has been presented by 
the National Marine Fisheries Service under the cloak of sound science.
  I do have a provision I am going to offer to this bill again. It is a 
modification of the amendment that is already there. It would allow the 
fishery to go forward under both the Endangered Species Act and the 
Magnuson-Stevens Act regulations that were in place before this opinion 
was issued. People are saying we are emasculating the Endangered 
Species Act. Nothing is further from the truth. The Endangered Species 
Act was part of the plan that was followed and was in effect before 
this new plan was filed in the lawsuit in Seattle. Earlier this year, 
the Department of Commerce argued in court that these regulations were 
sufficient under the Endangered Species Act.
  Again, I am here to ask the Senators from New England, from the 
Atlantic area, from the South Atlantic area, from the Gulf coast, from 
the Pacific council area, to look at what has happened. This is a 
federalization of fisheries off our shores under the guise of

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the Endangered Species Act based upon a theory that has not been tested 
anywhere.
  In my opinion, the current act that is before us to close out the 
Government should not pass and will not have my signature on the final 
conference report unless something is in there that deals with this 
very odd biological opinion and restores the capability of our people 
to continue to fish in a safe and sound way off our shores.
  Mr. President, I was given a CD-ROM of this document, the biological 
opinion. I think it would be nice reading for some people over the 
weekend. I ask unanimous consent that the executive summary be printed 
in the Record following my remarks. The entire document is available on 
the National Marine Fisheries Service website.
  There being no ojbection, the material was ordered to be printed in 
the Record, as follows:

                  Executive Summary--November 30, 2000

       In compliance with section 7 of the Endangered Species Act 
     (ESA), the National Marine Fisheries Service (NMFS) has 
     completed this biological opinion consulting on the 
     authorization of groundfish fisheries in the Bering Sea and 
     Aleutian Islands region (BSAI) under the Fishery Management 
     Plan (FMP) for the BSAI Groundfish, and the authorization of 
     groundfish fisheries in the Gulf of Alaska (GOA) under the 
     FMP for Groundfish of the GOA. This opinion is comprehensive 
     in scope and considers the fisheries and the overall 
     management framework established by the respective FMPs to 
     determine whether that framework contains necessary measures 
     to ensure the protection of listed species and critical 
     habitat. The opinion determines whether the BSAI or GOA 
     groundfish fisheries, as implemented under the respective 
     FMPs, jeopardize the continued existence of listed species in 
     the areas affected by the fisheries (i.e., the action areas) 
     or adversely modify critical habitat of such species.


                              Action Area

       The action area consists of ``all areas to be affected 
     directly or indirectly by the Federal action, and not merely 
     the immediate area involved in the action'' (50 CFR 
     402.02(d)). As such, the action area for the Federally 
     managed BSAI groundfish fisheries covers all of the Bering 
     Sea under U.S. jurisdiction, extending southward to include 
     the waters south of the Aleutian Islands west of 170 deg.W 
     longitude to the border of the U.S. Exclusive Economic Zone. 
     The action area covered by the GOA FMP applies to the U.S. 
     Exclusive Economic Zone of the North Pacific Ocean, exclusive 
     of the Bering Sea, between the eastern Aleutian Islands at 
     170 deg.W longitude and Dixon Entrance. The area encompasses 
     sites that are directly affected by fishing, as well as sites 
     likely to be indirectly affected by the removal of fish at 
     nearby sites. The action area would also, necessarily, 
     include those state waters that are encompassed by critical 
     habitat for Steller sea lions.
       The action area includes the Alaska range of both the 
     endangered western and threatened eastern populations of the 
     Steller sea lion. However, the effects of the Federal FMPs on 
     Steller sea lions generally occur within the range of the 
     western population. Therefore, this consultation focuses 
     primarily on areas west of 144 W longitude (the defined 
     boundary of the western population of Steller sea lions).
       NMFS has determined that the action being considered in 
     this biological opinion may affect 22 species listed under 
     the ESA, including 7 species of endangered whales, the two 
     distinct populations of Steller sea lions, twelve 
     evolutionarily significant units (ESU) of Pacific salmonids 
     and one species of endangered sea turtle. The action area 
     also includes 4 species of endangered or threatened seabirds, 
     and 1 species of marine mammal, the northern sea otter, that 
     has been proposed as a candidate species under the ESA.


                         Environmental Baseline

       The environmental baseline for the biological opinion must 
     include the past and present impacts of all state, Federal or 
     private actions and other human activities in the action 
     area, the anticipated impacts of all proposed Federal 
     projects in the action area that have already undergone 
     consultations, and the impact of contemporaneous State or 
     private actions (50 CFR Sec. 402.02). The environmental 
     baseline for this biological opinion includes the effects of 
     a wide variety of human activities and natural phenomena that 
     may affect the survival and recovery of threatened and 
     endangered species in the action area. The opinion recognizes 
     that such phenomena and activities have contributed to the 
     current status of populations of those listed species. While 
     some may have occurred in the past but no longer affect these 
     species, others may continue to affect populations of listed 
     species in the study area.
       The environmental baseline for this action includes 
     fisheries and other FMP-associated activities that are 
     occurring, and that have occurred prior to January 2000. 
     Other human-related activities discussed that may affect, or 
     have affected, the baseline include the impacts of human 
     growth on the action area and the effects of commercial and 
     subsistence harvests of marine mammals. Alaska managed 
     commercial fisheries are also addressed. Those fisheries and 
     their effects on listed species are expected to continue in 
     the action area and into the future. Herring and salmon are 
     fisheries that are managed entirely by the State of Alaska, 
     or, in the case of pollock and Pacific cod, only a percentage 
     of the fishery is managed by State authority, and are species 
     found year-round in the diet of Steller sea lions.
       The environmental baseline also discusses the potential 
     effects of the environmental changes on the carrying capacity 
     of the action area over the past several decades, including 
     the relationship between the dietary needs of Steller sea 
     lions, the regime shift hypothesis, and massive population 
     declines in recent decades. The opinion concludes that it is 
     highly unlikely that natural environmental change has been 
     the sole underlying cause for the decline of Steller sea 
     lion.
       The environmental baseline attempts to bring together all 
     of the estimated mortalities of Steller sea lions and a 
     synthesis of the significance of those takes. The best 
     available scientific information on the magnitude and likely 
     impacts of Orca predation on listed species in the action 
     area are analyzed. Other factors, such as disease, ecological 
     effects of commercial whaling through the 1970s, and 
     pollutants, while not entirely excluded as contributing 
     factors, have been considered, but are given lesser 
     importance in explaining the observed pattern of declines.


                           Effects of Actions

       The scope of the ``effects of actions'' analysis is 
     intended to be comprehensive. As such, the opinion is broad 
     and examines a range of activities conducted pursuant to the 
     FMPs including the manner in which the total allowable catch 
     levels are set, the process that leads to the setting of 
     these levels, the amount of prey biomass taken from sea lion 
     critical habitat. The effects of other activities that are 
     interrelated or interdependent are also analyzed. Indirect 
     effects are those that are caused later in time, but are 
     still reasonably certain to occur. Interrelated actions are 
     those that are part of a larger action and depend upon the 
     larger action for their justification. Interdependent actions 
     are those that have no independent utility apart from the 
     action under consideration (50 CFR 402.02).
       The first part of the effects analysis is a description of 
     fishery management as practiced under the FMPs, including an 
     explanation of how ecosystem issues are considered. 
     Particularly important sources of potential ecosystem effects 
     are highlighted in subsequent sections. The second part of 
     the effects analysis focuses on the current exploitation 
     strategy and its potential relevance, both past and present, 
     in shaping changes in the abundance and population structure 
     of groundfish stocks. The present fishery management regime's 
     maximum target fishing reference point of B40% is used as an 
     example to illustrate the potential direction and intensity 
     of direct effects.
       The third part of the effects analysis reviews the annual 
     fishery cycle, from surveys through the establishment of 
     Total Allowable Catch (TAC) levels. The effects are evaluated 
     specific to the major stages of the cycle and to explore 
     whether effects can be compounded through subsequent steps in 
     the cycle. Finally, in the fourth part of the effects 
     analysis, the FMPs and their management tools and policies 
     are examined as guiding documents for management of the 
     fisheries and protection of the associated ecosystems. This 
     part also addresses the fisheries as they are prosecuted 
     under the FMPs.


                           Cumulative Effects

       Cumulative effects include the effects of future State, 
     tribal, local, or private actions that are reasonably certain 
     to occur in the action area. The State groundfish fisheries 
     are generally smaller than the federal groundfish fisheries 
     but are expected to have marginally more impacts (because of 
     location) on listed species with respect to competition for 
     prey and long term ecosystem impacts. The crab fishery is one 
     of the biggest fisheries managed by the state. However, this 
     fishery is not likely to directly compete for prey with 
     either Steller sea lions or other listed species. Herring, 
     salmon, Pacific cod, pollock, squid, and octopus are items 
     found year-round in the diet of Steller sea lions. Species 
     such as salmon and herring occur much more frequently in the 
     summer as determined by analyses of Steller sea lion prey 
     habits from 1990-1998.
       Perhaps the most important interaction between state 
     fisheries and listed species may arise from the pattern of 
     localized removals of spawners. Although the patterns are 
     generally similar from one fishery to the next, the sheer 
     number of distinct fisheries makes it difficult to describe 
     them individually. Likewise, each fishery is distinctly 
     different in either the number of boats, gear used, time of 
     year, length of season, and fish species. Therefore, we 
     present the herring fishery as an example of this type of 
     interaction to demonstrate some of the competitive 
     interactions that may occur.
       The impacts of some of the State fisheries on Steller sea 
     lions and, in some cases,

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     humpback whales would be similar to those of the Federal 
     fisheries: cascade effects and competition. Steller sea lions 
     and some of the State fisheries actively demand a common 
     resource and the fisheries reduce the availability of that 
     common resource to Steller sea lions while they satisfy their 
     demand for fish. The State groundfish fisheries may reduce 
     the abundance or alter the distribution of several prey 
     species of listed species.
       After reviewing the current status of each listed species 
     in the action area, the environmental baseline for the action 
     area, the effects of the FMPs for Alaska Groundfish in the 
     BSAI and GOA, and the cumulative effects of the federal 
     action, NMFS has determined that the FMPs are not likely to 
     jeopardize the continued existence of any listed species in 
     the action area except for the endangered western population 
     of Steller sea lions. In addition, after reviewing the 
     current status of critical habitat that has been designated 
     for Steller sea lions, the environmental baseline for the 
     action area, the FMPs for Alaska Groundfish in the BSAI and 
     GOA, and the cumulative effects, it is NMFS' biological 
     opinion that the FMPs are likely to adversely modify this 
     critical habitat designated for Steller sea lions.


                   Reasonable and Prudent Alternative

       Based on the effects discussion and NMFS determination that 
     fishing activity under the FMPs are likely to jeopardize the 
     continued existence of the western population of Steller sea 
     lions and are likely to adversely modify their designated 
     critical habitat, NMFS has developed a reasonable and prudent 
     alternative (RPA) with multiple components for the groundfish 
     fisheries in the BSAI and GOA. The fisheries effects that 
     give rise to these determinations include both large scale 
     removals of Steller sea lion forage over time, and the 
     potential for reduced availability of prey on the fishing 
     grounds at scales of importance to individual foraging 
     Steller sea lions.
       The first RPA element addresses the harvest strategy for 
     fish removal at the global or FMP level. This RPA requires 
     the adoption of a new harvest control rule that would 
     decrease the likelihood that the fished biomass for pollock, 
     Pacific cod and Atka mackerel would drop below B40%. The 
     global control rule is a revised, more precautionary fishing 
     strategy (F40% adjustment procedure) for principal prey of 
     Steller sea lions taken by the groundfish fisheries in the 
     BSAI and GOA (pollock, Pacific cod and Atka mackerel) than 
     that which currently exists under the FMP. The effect of 
     using the global control rule is increased likelihood that 
     the stock is maintained at or above the target stock size by 
     reducing the exploitation rate at low stock sizes.
       Other RPA elements completely protect sea lions from 
     groundfish fisheries at global and regional scales, and in 
     both temporal and spatial dimensions. The other RPA elements 
     reflect a heirarchy of NMFS concerns about the effects of the 
     groundfish fisheries on Steller sea lions. Those concerns are 
     greatest with respect to critical habitat areas around 
     rookeries and major haulouts, and in special foraging areas 
     designated as critical habitat, and less for areas outside of 
     critical habitat where take levels are not considered to be 
     at a level that would jeopardize Steller sea lions. 
     Significant interactions between sea lions and the fisheries 
     for pollock, Pacific cod and Atka mackerel have been 
     eliminated in critical habitat between November 1 and January 
     19, or 22% of the year. This level of partitioning is 
     necessary in this period because sea lions at this time are 
     considered extremely sensitive to prey availability. Because 
     fisheries are restricted to the remaining 78% of the year, 
     dispersive actions taken at finer temporal and spatial scales 
     are also necessary to avoid jeopardy and adverse 
     modification. The RPA extends 3 nautical mile (nm) protective 
     zones around rookeries to all haulouts. In the GOA, EBS and 
     AI, a total of 139 no-fishing zones (note: the rookeries are 
     already no-entry zones) are established that will partition 
     all pups and non-pups from disturbances associated with 
     vessel traffic and fishing in close proximity to important 
     terrestrial breeding and resting habitat. The RPA closes many 
     rookeries and haulouts out to 20 nm to directed fishing for 
     pollock, Pacific cod and Atka mackerel. This second spatial 
     partitioning element excludes all fisheries for pollock, 
     Pacific cod, and Atka mackerel from approximately 63% of 
     critical habitat in the GOA, EBS, and Aleutian Islands. These 
     measures significantly increase the amount of critical 
     habitat protected from directed fishing for Steller sea lion 
     prey, greatly reduces the number of potential takes of 
     Steller sea lions through competition for a prey base inside 
     critical habitat, completely protects all pups and non-pups 
     on rookeries and haulouts out to 3 nm from the effects of 
     fishing activity, and greatly reduces the interactions 
     between fisheries and sea lions during winter months.
       Fisheries occurring in the remaining 34% of critical 
     habitat and the areas outside critical habitat require 
     further dispersive actions to avoid jeopardy and adverse 
     modification. The temporal concentration of fisheries for 
     pollock, Pacific cod and Atka mackerel may result in high 
     local harvest rates that may reduce the quality of habitat by 
     modifying prey availability. The RPA establishes the 
     following measures to disperse fishing effort at regional and 
     local scales and to reduce the effects of groundfish 
     fisheries on prey availability for sea lions to negligible or 
     background levels.
       The RPA separates the fisheries into four seasonal limits 
     inside critical habitat, and two seasonal releases outside of 
     critical habitat, and disperses fishing effort throughout the 
     open portion of the year, January 20-October 31. Season start 
     dates are spaced evenly throughout this period and portions 
     of the TAC is allocated to each season. These actions reduce 
     the proportion of pollock, Pacific cod and Atka mackerel 
     taken inside critical habitat inside the GOA to less than 20% 
     of the total catch. The measure also protects against 
     excessive harvest rates that may rapidly deplete 
     concentrations of prey inside critical habitat. NMFS has 
     concluded that a temporally dispersed fishery would not 
     significantly harm the foraging success of Steller sea lions 
     as the take would be reduced to a level that NMFS believes 
     would not compromise them.
       The spatial concentration of current fishing effort for 
     pollock, Pacific cod and Atka mackerel may result in high 
     local harvest rates that reduce the quality of habitat for 
     foraging Steller sea lions. Fishing inside critical habitat 
     may result in takes of Steller sea lions through adverse 
     modification of habitat (i.e, prey availability). Therefore, 
     this RPA reduces the percentage of pollock taken inside 
     critical habitat from 80 to 42% in the GOA, from 45 to 14% in 
     the EBS and from 74 to 2% in the AI compared to 1998. It also 
     reduces the percentage of Pacific cod caught in critical 
     habitat from 48 to 21% in the GOA, from 39 to 17% in the EBS 
     and from 79 to 17% in the AI as compared to 1998. The RPA 
     reduces the percentage of Atka mackerel caught inside 
     critical habitat in the AI from 66 to 8% as compared to 1998.
       Finally, the RPA is designed to close adequate portions of 
     critical habitat to commercial fishing for the three primary 
     prey species of groundfish, while imposing restrictions on 
     fishing operations in areas open to fishing to avoid local 
     depletion of prey resources for Steller sea lions. This 
     approach of creating areas open and closed to fishing 
     operations provides contrast between complete closures and 
     restricting fishing areas within critical habitat and forms 
     the basis for monitoring the RPA. Over the past decade the 
     North Pacific Fisheries Management Council has noted the 
     importance of assessing the efficacy of conservation measures 
     intended to promote the recovery of the western population of 
     Steller sea lions. To this end, NMFS has incorporated into 
     its RPA a monitoring program that will allow for such an 
     evaluation.


       Incidental Take Statement and Conservation Recommendations

       An Incidental Take Statement (ITS) specifies the impact of 
     any incidental taking of endangered or threatened species. It 
     also provides reasonable and prudent measures that are 
     necessary to minimize impacts and sets forth terms and 
     conditions with which NMFS must comply in order to implement 
     the reasonable and prudent measures and to be exempt from the 
     prohibitions of section 9 of the ESA.
       In addition to the RPA and ITS, conservation 
     recommendations have been provided within this biological 
     opinion. An example of one of the conservation 
     recommendations that NMFS believes should be implemented is a 
     more comprehensive stock assessment that would provide 
     detailed information on groundfish stocks on spatial and 
     temporal scales and to provide timely review of possible 
     fishery interactions with listed species (and in the future 
     on essential fish habitat). This would allow for better 
     analysis of the possible impacts of target fisheries on 
     listed species and the more proactive development of time/
     space harvest recommendations at the individual stock 
     assessment level so that fishery interactions with listed 
     species and essential fish habitat can be minimized.
       The cumulative effect of the RPA elements contained in this 
     biological opinion successfully removes jeopardy and avoid 
     adverse modification of designated critical habitat. However, 
     the State fisheries in Alaska, particularly those involving 
     salmon, herring, and Pacific cod are likely to result in take 
     of Steller sea lions and may require modification. As a 
     conservation measure, NMFS also recommends that the State of 
     Alaska request NMFS to assist in the development of a Habitat 
     Conservation Plan (as authorized under section 10 of the 
     ESA). This plan should be designed to mitigate adverse 
     impacts on Steller sea lions and other listed species that 
     might accrue from State managed fisheries. This plan should 
     employ the same standards and principles as used in this 
     biological opinion to prevent completion and minimize take 
     between fisheries and listed species.


                               Conclusion

       After analyzing the cumulative, direct and indirect effects 
     of the Alaska groundfish fisheries on listed species, NMFS 
     concludes that the fisheries do not jeopardize any listed 
     species other than Steller sea lions. The biological opinion 
     concludes that the fisheries do jeopardize Steller sea lions 
     and adversely modify their critical habitat due to

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     competition for prey and modification of their prey field. 
     The three main species with which Steller sea lions compete 
     for prey are pollock, Pacific cod, and Atka mackerel. The 
     biological opinion provides a reasonable and prudent 
     alternative to modify the fisheries in a way that avoids 
     jeopardy and adverse modification.

  Mr. GORTON. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. GORTON. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________