[Federal Register Volume 65, Number 250 (Thursday, December 28, 2000)]
[Rules and Regulations]
[Pages 82298-82299]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-33162]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

 50 CFR Part 679

[Docket No. 001213348-0366-02; 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 revises an existing closure to commercial fishing for 
Pacific cod within critical habitat designated for Steller sea lions in 
the exclusive economic zone (EEZ) off Alaska west of 144 deg. W. long. 
through December 31, 2000. The revision of the existing closure is 
necessary to permit relatively small-scale, fixed-gear fisheries for 
Pacific cod to continue for a limited period of time. The revised 
closure is intended to ensure that Steller sea lions are adequately 
protected based on conclusions in a biological opinion issued November 
30, 2000, while mitigating short-term social and economic effects on 
fixed-gear fisheries for Pacific cod.

DATES: Effective December 22, 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 the 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: Jay Ginter, 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 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, which 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 for pollock, Pacific cod, 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 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 issued a 
final rule on December 14, 2000 (65 FR 79784, December 20, 2000) 
revoking the 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, and because only 
Pacific cod was still available for harvest in certain fisheries, the 
December 20, 2000, final rule prohibited commercial fishing for Pacific 
cod in designated critical habitat through December 31, 2000. 
Commercial fisheries for pollock and Atka mackerel were not included in 
the final rule because fisheries for those species already were 
prohibited through

[[Page 82299]]

December 31, 2000, pursuant to other regulatory requirements.
    This final rule revises the December 14, 2000, final rule by 
permitting directed fishing for Pacific cod by vessels using non-trawl 
gear and continuing the prohibition on directed fishing for Pacific cod 
by vessels using trawl gear in designated critical habitat. This action 
is being taken to allow three previously authorized fisheries for 
Pacific cod with non-trawl gear to continue through the end of the 
fishing year (i.e., December 31, 2000) or until otherwise closed sooner 
due to attainment of catch or bycatch limits. The three previously 
authorized Pacific cod fisheries include: (1) fishing in the BSAI under 
the Community Development Quota (CDQ) Program, (2) fishing in the BSAI 
by vessels less than 60 ft (18.3 m) length overall (LOA), and (3) 
fishing in the GOA by vessels using pot gear for processing by the 
offshore component.
    The number of vessels that were participating in these three 
fisheries and the remaining catch quota of Pacific cod to be harvested 
is small relative to the BSAI and GOA groundfish fisheries generally. 
Based on current participation and harvest information, the CDQ fishery 
could have about 10 vessels using hook-and-line gear to harvest a 
remaining quota of 1,800 mt of Pacific cod in critical habitat in the 
BSAI. The under 60 ft (18.3 m) LOA fishery could have about 4 vessels 
using non-trawl gear to harvest a remaining quota of 1,200 mt of 
Pacific cod in critical habitat in the BSAI. Through December 15, 2000, 
this fishery harvested only 62 mt of this quota and, based on previous 
harvest rates, NMFS anticipates that another 33 mt will be harvested 
before January 1, 2001. No vessels were operating in the GOA 
``offshore'' fishery for Pacific cod as of December 15, 2000. Only 
vessels using pot gear can operate in this fishery because restrictions 
on Pacific halibut bycatch prevent vessels using hook-and-line gear 
from participating in the GOA ``offshore'' fishery for Pacific cod 
through December 31, 2000. Hence, these are relatively small-scale 
fisheries and NMFS has determined that allowing them to continue within 
designated critical habitat would not contravene the Reasonable and 
Prudent Alternative described in Section 9 of the BiOp. In addition, 
this action expires on December 31, 2000, thereby severely limiting the 
potential effect of this action on Steller sea lions.

Classification

    The Assistant Administrator for Fisheries, NOAA (AA), has 
determined that this final 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 final 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 there is good cause to 
waive providing prior notice and an opportunity for public comment for 
the partial 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 30-day delay in the effective 
date.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Recordkeeping and reporting requirements.

    Dated: December 22, 2000.
Penelope D. Dalton
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 (k) is removed and reserved and 
paragraph (l) is added, effective through December 31, 2000, to read as 
follows:


Sec.  679.22  Closures.

* * * * *
    (k) Closure of critical habitat. (Applicable through December 31, 
2000.) Vessels using trawl gear 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, must not retain at any time amounts of 
Pacific cod that exceed the maximum retainable bycatch amounts at Sec.  
679.20(e) and (f).
[FR Doc. 00-33162 Filed 12-22-00; 3:10 pm]
BILLING CODE 3510-22-S