[Federal Register Volume 65, Number 245 (Wednesday, December 20, 2000)]
[Rules and Regulations]
[Pages 79784-79785]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-32323]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 001213348-0348-01; I.D. 121100A]
RIN 0648-AO44


Fisheries of the Exclusive Economic Zone Off Alaska; Removal of 
Groundfish Closure

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

ACTION: Final rule.

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SUMMARY: NMFS removes an existing closure to commercial groundfish 
fishing with trawl gear within critical habitat designated for Steller 
sea lions in the exclusive economic zone (EEZ) off Alaska west of 
144 deg. W. long. and closes this area to commercial fishing for 
Pacific cod through December 31, 2000. The removal of the existing 
closure is consistent with the December 5, 2000, Order of the United 
States District Court for the Western District of Washington. The new 
closure is intended to ensure that Steller sea lions are adequately 
protected based on conclusions in a biological opinion issued November 
30, 2000.

DATES: Effective December 14, 2000 except that Sec.  679.22(k) is 
effective December 14, 2000 through December 31, 2000.

ADDRESSES: Copies of the Endangered Species Act-Section 7 Consultation 
Biological Opinion and Incidental Take Statement on Authorization of 
the Bering Sea and Aleutian Islands groundfish fisheries based on the 
Fishery Management Plan for the Groundfish Fishery of the Bering Sea 
and Aleutian Islands Area and Authorization of the Gulf of Alaska 
groundfish fisheries based on the Fishery Management Plan for 
Groundfish of the Gulf of Alaska, including the reasonable and prudent 
alternative (BiOp), may be obtained by contacting the Alaska Region, 
NMFS, P.O. Box 21668, Juneau, AK, 99802, or Room 401 of the Federal 
Building, 709 West 9th Street, Juneau, AK. The 2000 BiOp is also 
available on the Alaska Region home page at http://www.fakr.noaa.gov.

FOR FURTHER INFORMATION CONTACT: John Lepore, 907-586-7228 or 
[email protected].

SUPPLEMENTARY INFORMATION: NMFS manages the U.S. groundfish fisheries 
in the EEZ of the Bering Sea and Aleutian Islands Management Area 
(BSAI) and Gulf of Alaska (GOA) under the fishery management plans 
(FMPs) for groundfish in the respective areas. The North Pacific 
Fishery Management Council (Council) prepared, and NMFS approved, the 
FMPs under the authority of the Magnuson-Stevens Fishery Conservation 
and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801 et seq. 
Regulations implementing the FMPs appear at 50 CFR part 679. General 
regulations governing U.S. fisheries appear at 50 CFR part 600.
    NMFS also has statutory authority to promulgate regulations 
governing the groundfish fisheries under the Endangered Species Act 
(ESA), 16 U.S.C. 1531 et seq. The ESA requires that each Federal agency 
ensure that any action authorized, funded, or carried out by such 
agency is not likely to jeopardize the continued existence of any 
endangered or threatened species or to result in the destruction or 
adverse modification of critical habitat of such species.
    On August 7, 2000, the United States District Court for the Western 
District of Washington issued an order that granted a motion for a 
partial injunction on the North Pacific groundfish fisheries. 
Greenpeace  v. NMFS, No. C98-4922 (W.D. Wash.). This motion, filed by 
Greenpeace, American Oceans Campaign, and the Sierra Club requested 
injunctive relief until NMFS issues a legally adequate BiOp addressing 
the combined, overall effects of the North Pacific groundfish fisheries 
on Steller sea lions and their critical habitat pursuant to the ESA. 
The population of Steller sea lions west of 144 deg. W. long. 
(hereafter western population) is listed under the ESA as endangered, 
while the population of Steller sea lions east of 144 deg. W. long. is 
listed as threatened.
    To comply with the Court's August 7, 2000, Order, NMFS, pursuant to 
the ESA, issued an interim rule prohibiting fishing for groundfish with 
trawl gear in Steller sea lion critical habitat (65 FR 49766, August 
15, 2000). The critical habitat areas closed by the interim rule were 
defined in regulations codified at 50 CFR 226.202, and in Tables 1 and 
2 to 50 CFR part 226.
    On November 30, 2000, NMFS issued a BiOp that is comprehensive in 
scope and considers the fisheries and the overall management framework 
established by the BSAI and GOA FMPs. After analyzing the cumulative, 
direct and indirect effects of the groundfish fisheries authorized by 
the BSAI and GOA FMPs on listed species, NMFS concluded in the BiOp 
that the fisheries

[[Page 79785]]

for pollock, Pacific cod, and Atka mackerel fisheries, as currently 
prosecuted, jeopardize the continued existence of the western 
population of Steller sea lions and adversely modify their critical 
habitat. NMFS reached this conclusion based on information that the 
pollock, Pacific cod, and Atka mackerel fisheries and the Steller sea 
lions compete for the same species, that this competition causes 
reduced availability of prey for the Steller sea lions, that reduced 
availability of prey leads to nutritional stress, and that nutritional 
stress, especially of juveniles and to a lesser extent adult females, 
is the leading hypothesis to explain the continued decline of the 
western population of Steller sea lions.
    On December 5, 2000, the United States District Court for the 
Western District of Washington issued an order dissolving the 
injunction issued on August 7, 2000. Based on that Order, NMFS revokes 
the current closure of all groundfish trawl fishing in designated 
critical habitat that was published on August 15, 2000 (65 FR 49766). 
However, because the BiOp concluded that the fisheries for Pacific cod, 
along with pollock and Atka mackerel, as currently prosecuted, 
jeopardize the continued existence of the western population of Steller 
sea lions and adversely modify their critical habitat, NMFS is 
prohibiting commercial fishing for Pacific cod in designated critical 
habitat through December 31, 2000. Commercial fisheries for pollock and 
Atka mackerel are not included in this closure because fisheries for 
those species already are prohibited through December 31, 2000, 
pursuant to other regulatory requirements.
    The new closure, promulgated under the authority of section 11(f) 
of the ESA, prohibits all Pacific cod fishing through December 31, 
2000, as the term fishing is defined at 16 U.S.C. 1802(15), authorized 
pursuant to the FMPs, within Steller sea lion critical habitat listed 
in Tables 1 and 2 to 50 CFR part 226 in federally regulated waters west 
of 144 deg. W. long. and the three special aquatic foraging areas 
defined as critical habitat at 50 CFR 226.202(c).

Classification

    The Assistant Administrator for Fisheries, NOAA (AA), has 
determined that this rule is consistent with the Court's Order and is 
authorized by the ESA.
    Because prior notice and opportunity for public comment are not 
required for this rule by 5 U.S.C. 553, or any other law, the 
analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 
et seq., do not apply to this action.
    This final rule has been determined to be not significant under 
section 3(f)(1) of E.O. 12866.
    The AA, under 5 U.S.C. 553(b)(B), finds that there is good cause to 
waive providing prior notice and an opportunity for public comment for 
the removal of the existing closure. This removal stems from a United 
States District Court Order dissolving, as of December 5, 2000, the 
injunction requiring the closure. Delaying this action to provide prior 
notice and opportunity for comment would cause unnecessary economic 
harm to the affected fishermen and thus would be contrary to the public 
interest. Because this action relieves a restriction, under 5 U.S.C. 
553(d)(1), it is not subject to a delay in effective date.
    The AA, under 5 U.S.C. 553(b)(B), finds there is good cause to 
waive providing prior notice and an opportunity for public comment for 
the portion of this action that implements a new closure. An immediate 
new closure is necessary to protect endangered Steller sea lions and it 
would be contrary to the public interest to delay this action to 
provide prior notice and an opportunity for comment. For this same 
reason, the AA, under 5 U.S.C. 553(d)(3), finds there is good cause to 
waive the 30-day delay in the effective date otherwise required for the 
new closure.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Recordkeeping and reporting requirements.

    Dated: December 14, 2000.
William T. Hogarth,
Deputy, Assistant Administrator for Fisheries, National Marine 
Fisheries Service.

    For reasons set forth in the preamble, 50 CFR part 679 is amended 
as follows:

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

    1. The authority citation for 50 CFR part 679 continues to read as 
follows:

    Authority:  16 U.S.C. 773 et seq., 1801 et seq., and 3631 et 
seq.; Title II of Division C, Pub. L. 105-277; Sec. 3027, Pub. L. 
106-31, 113 Stat. 57; 16 U.S.C. 1540(f).

    2. In Sec.  679.22, paragraph (j) is removed, and a new paragraph 
(k) is added to read as follows:


Sec.  679.22  Closures.

* * * * *
    (k) Closure of critical habitat. (Applicable through December 31, 
2000.) All Pacific cod fishing, as the term fishing is defined at 16 
U.S.C. 1802(15) and authorized pursuant to the Fishery Management Plans 
for the Bering Sea/Aleutian Islands and the Gulf of Alaska, within 
Steller sea lion critical habitat within the EEZ and west of 144 deg. 
W. long., as such critical habitat is defined by regulations codified 
at 50 CFR 226.202 and Tables 1 and 2 to 50 CFR part 226, is prohibited.
[FR Doc. 00-32323 Filed 12-14-00; 4:26 pm]
BILLING CODE: 3510-22-S